Ontario Criminal

Charter of Rights

Provisions of Controlled Drugs and Substances Act violated s. 12 of Canadian Charter of Rights and Freedoms

Accused pleaded guilty to production of marijuana and theft of hydro in relation to large, sophisticated grow operation in home. Crown sought mandatory minimum sentence of three years’ imprisonment, which applied to production of over 500 plants where aggravating factor in s. 7(3)(c) of Controlled Drugs and Substances Act, that production constituted potential public safety hazard in residential area, was established. Accused applied for declaration that mandatory minimum sentences for production were unconstitutional and of no force or effect. Application granted. Crown established aggravating factor in s. 7(3)(c). Three-year sentence would not be grossly disproportionate in accused’s case. Accused involved in operation and not merely gardener. Reasonable hypotheticals established possibility for gross disproportionality in other cases. Section 7(3)(c) violated s. 12 of Canadian Charter of Rights and Freedoms because offender could be subject to mandatory minimum sentence based on circumstances unknown to him or her. Offender’s specific level of moral culpability in relation to potential public safety hazard was irrelevant. Absent proof of knowledge of potential risk, result would be grossly disproportionate sentences. Section 7(2)(b)(i) and (ii) of act violated s. 12 of Charter because offender with medical marijuana production licence could be subject to mandatory minimum sentence for unknowingly exceeding authorized number of plants. Impugned provisions failed minimal impairment and proportionality tests and not be saved by s. 1.

R. v. Vu (Oct. 20, 2015, Ont. S.C.J., Durno J., File No. 74/14) 126 W.C.B. (2d) 178.

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