Ontario Criminal

Charter of Rights

Cruel and unusual treatment or punishment
Prospect of deportation did not render sentence grossly disproportionate

Accused was found to be only occupant of home that contained marijuana grow operation. Jury found accused guilty of marijuana production and possession of marijuana for purpose of trafficking. There were close to 500 plants in basement and accused was subject to mandatory minimum sentence of one year of imprisonment pursuant to s. 7(2)(b)(iii) of Controlled Drugs and Substances Act (Can.). Crown conceded that accused was gardener. Accused was permanent resident from China and would be deported if sentenced to at least six months of imprisonment. Accused was sole support of family and imposition of mandatory minimum sentence would be devastating. Accused brought application for declaration that s. 7(2)(b)(iii) was of no force and effect because it constituted cruel and unusual punishment within meaning of s. 12 of Canadian Charter of Rights and Freedoms. Application dismissed. Prospect of deportation could not transform otherwise constitutionally acceptable sentence into one that was grossly disproportionate. Without mandatory sentence appropriate range of sentence would be between six and 12 months. Since mandatory sentence was at top of range it was not grossly disproportionate and did not violate s. 12. Sentence was also not grossly disproportionate to reasonable hypothetical offender.

R. v. Li (Mar. 11, 2016, Ont. S.C.J., L. Bird J., Oshawa OCJF 13708/14) 129 W.C.B. (2d) 123.

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