r v. NORMAND MARTIN, 2016 QCCQ 5592

Unofficial English Translation Directeur des poursuites criminelles et pénales c. Martin 2016 QCCQ 5592 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF DRUMMOND LOCALITY OF DRUMMONDVILLE "Criminal and Penal Division" N°: 405-01-030643-133 DATE: June 20, 2016 ______________________________________________________________________ PRESIDING: THE HONOURABLE ÉRICK VANCHESTEIN, J.C.Q. ______________________________________________________________________ DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS Prosecutor v.

NORMAND MARTIN Accused and ATTORNEY GENERAL OF QUEBEC Intervener ______________________________________________________________________ JUDGMENT ON SENTENCING AND ON THE CONSTITUTIONAL VALIDITY OF SUBPARAGRAPH 7(2)( b )(iii) OF THE CONTROLLED DRUGS AND SUBSTANCES ACT (

Section 12 of the Canadian Charter of Rights and Freedoms ) ______________________________________________________________________ [ 1 ] The accused pleaded guilty to one count of producing cannabis and one count of theft of energy of more than $5,000. [ 2 ] On the count of production of cannabis, counsel for the prosecution filed a notice of intent to seek the 18-month minimum prison sentence. This notice was based on the seizure of 260 cannabis plants and the existence of the aggravating circumstance set out under section 7(3) (

a) of the Controlled Drugs and Substances Act ( CDSA ), that is, the use of real property that belongs to a third party in committing the offence. [ 3 ] Counsel for the accused contests this minimum sentence, which he believes to be grossly disproportionate considering the specific characteristics of the accused and his limited role in the affair.

He suggests that a 90-day prison sentence to be served intermittently and a probation order would meet the ends of justice in this case. [ 4 ] He therefore filed a notice challenging the constitutionality of the minimum sentence set out under paragraphs 7(2)( b )(iii) and 7(2) ( b )(iv), and subsection 7(3) of the CDSA . [ 5 ] Only the Attorney General of Quebec intervened to support the constitutional validity of this sentence. [ 6 ] On the first day of the hearings for submissions on sentencing, counsel for the DCPP informed the Court that he would not present evidence of an aggravating circumstance.

He sought only the mandatory minimum sentence of one year’s imprisonment, set out under subparagraph 7(2)( b )(iii) CDSA . ISSUES [ 7 ] The parties made their submissions in November of 2015. [ 8 ] Since then, two judgments of significance to this case have been rendered. [ 9 ] On February 26, 2016, the Federal Court rendered judgment in R. v. Allard [1] on the constitutional validity of the Marihuana for Medical Purposes Regulations ( MMPR ), which had an impact on one of the reasonable hypotheticals submitted by the accused to

demonstrate the constitutional invalidity of the sentence. [ 10 ] On April 15, 2016, the Supreme Court of Canada rendered R v. Lloyd , [2] in which it declared the minimum one-year sentence for drug trafficking under subparagraph 5(3)( a )(i)(

D) of the CDSA to be inoperative. [ 11 ] In the wake of these judgments, the parties presented additional oral and written arguments. [ 12 ] The notice of constitutional invalidity filed by the accused is based on sections 7 , 9 , and 12 of the Canadian Charter of Rights and Freedoms . [3] He argues that this minimum sentence is cruel, unusual, and arbitrary and that it violates the principles of fundamental justice [ 13 ] The accused alleges that the combination of various constitutional violations also renders

section 742.1 of the Criminal Code unconstitutional by limiting the imposition of a conditional sentence. This argument was dropped during arguments. [ 14 ] Moreover, this sentence is unconstitutional because it violates the exercise of judicial discretion. [ 15 ] Some of the elements debated during submissions in November of 2015 – the application of

section 7 of the Charter to the issue of minimum sentences and the limitations on the jurisdiction of provincial courts to declare a legislative provision unconstitutional – were clearly defined by the Supreme Court in Lloyd .

This narrowed the issues initially submitted in the notice of constitutional invalidity. [ 16 ] For the purposes of this case, the Court finds that the principles of curial deference require that it limit its consideration to what is directly related to the sentence applicable in the accused’s case. [4] [ 17 ] The Court expresses the issues it must decide as follows: - Does the mandatory minimum one-year prison sentence under section 7(2)( b )(iii) of the CDSA violate the accused’s rights, which protect him from cruel and unusual punishment under

section 12 of the Charter ? - If so, is this mandatory minimum sentence justified in light of the

section 1 Charter principles? FACTUAL BACKGROUND [ 18 ] On January 30, 2013, police officers received a tip that there was a grow op at 1501 St-Pierre Range in Saint-Zéphirin-de-Courval. [ 19 ] The investigation revealed that this house did not appear to be inhabited. Surveillance of the premises twice noted the accused’s automobile on the premises. [ 20 ] On April 25, 2013, police officers carried out a search of this building. On the first floor, they discovered a greenhouse with 260 cannabis plants being produced in two separate rooms.

They also found equipment required for cannabis production. [ 21 ] The state of the ground floor confirmed that the building was not used principally as housing. [ 22 ] The police officers also discovered that the electric controls were diverting energy to steal the electricity required for production. [ 23 ] The building’s owner, Dany Dupuis, was very difficult to reach. The police officers did not meet with him until November of 2013. [ 24 ] After the search, the accused was arrested in his home without a warrant.

He cooperated with the officers and provided an incriminating statement. [ 25 ] The Hydro-Quebec account had been in the accused’s name since April 23, 2012. The accused explained that he took over the electricity account as a favour to an acquaintance who had previously helped him financially. He was not aware that electricity was being diverted. [5] [ 26 ] The accused’s role in the production was limited to that of gardener for a few months. He was supposed to be paid $2,400 but never received it. [ 27 ] Moreover, he paid Hydro-Québec the amount diverted, including the fine imposed.

ATTORNEY GENERAL OF QUEBEC’S CASE [ 28 ] The intervener wishes to demonstrate the scale of the cannabis cultivation phenomenon and the damage caused by indoor cultivation to justify the constitutional validity of the minimum sentence at issue. [ 29 ] Suzanne De Larochellière has been a police officer with the Sûreté du Québec since June of 1988. She is a sergeant specializing in drugs.

For this file, she was declared an expert in drug matters. [ 30 ] Her testimony related the operation of the “Cisaille” program, which targets both outdoor and indoor cannabis cultivation. [ 31 ] The Mauricie, the Centre du Québec, and the Eastern Townships represent the second and third of the three most problematic areas in cannabis cultivation, with production there continuously growing. [ 32 ] Prior to 2001, cannabis production was controlled by criminal motorcycle gangs.

After major police operations over the last decade targeted these criminal groups, other organizations have moved in to fill the gap. [ 33 ] Sometimes, the networks are more insular, limited to villages or specific areas. In other cases, they are new, distinct criminal

groups, either Asian or local, that purchase several residences and delegate cultivation to other individuals. [ 34 ] The phenomenon involves using several pseudonyms to purchase a house, making the minimum down payment. The building is abandoned after a certain number of harvests or after a search. [ 35 ] Since the 1970s, levels of THC, the active substance in cannabis, has more than quadrupled. In the past, THC levels were 5%, whereas they now hover around 22%.

For the production of medical marijuana, THC levels are limited to 12%, a level illegal growers do not respect. [ 36 ] In this case, by analyzing the pictures taken during the search, De Larochellière estimates the value of the equipment found on site to be about $10,000. [ 37 ] According to the expert, the cultivation method posted on the walls of the production room planned out a 60-day production cycle, showing intensive cultivation potential. [ 38 ] The following amounts represent a conservative estimate of the value of the production in this case: - The harvest yields 2.5 ounces per plant.

In this case, 260 plants represent 650 ounces or 40.6 pounds; - A pound of cannabis sells for between $1,800 and $2,200; - In this case, a harvest is worth about $73,000. [ 39 ] This kind of cultivation necessarily involves a person with ties to organized crime because access to a network is needed to move the product. [ 40 ] There are two types of networks: through a [ translation ] “broker”, who buys from several producers and sells in bulk or, in the case of smaller operators, direct sales to dealers. [ 41 ] Since 2006, Quebec has ranked first of all Canadian provinces in cannabis production. [ 42 ] The parties accept as testimony the expert report prepared by Marie-Alix d’Halewyn, a microbiologist, immunologist and epidemiologist.

The objective of her report is to analyze and establish a link between indoor cultivation and certain material damage caused to the building and the risks to the health of the occupants. Her conclusions are as follows: [ translation ] An indoor cannabis grow op is difficult to spot but may exist in any neighbourhood, whether rich or poor. An illegal, indoor greenhouse is a threat to public health and safety and contributes to lowering property values. Modifications to the building by producers damage its finishings and sometimes even its structure.

Furthermore, the devices used to steal electricity and the high-consumption equipment on site are fire hazards. The excessive heat and humidity created by the conditions necessary to operate these indoor greenhouses can contribute to the deterioration of nearby materials. The excessive humidity and heat resulting from indoor cannabis grow ops create an environment favourable to the propagation of mould.

Such contamination causes significant damage to the building structure and indoor surfacing materials, but even more importantly, such contamination may cause significant health problems for current and future occupants. [6] [ 43 ] The parties also agreed to file the sworn statement of Christopher Rose as testimony. He is the director of operations for the Office of Medical Cannabis at Health Canada. [ 44 ] Rose explained how the new Marihuana for Medical Purposes Regulations work.

These new regulations, in force since March 31, 2014, prohibit the production of marihuana for medical purposes by individuals inside their homes. [ 45 ] Henceforth, businesses are subject to stringent regulations and controls making it impossible for authorized producers to inadvertently produce without renewing their license. [ 46 ] Counsel for the intervener also submits as extrinsic evidence a series of documents from Parliamentary proceedings preparing for the legislative amendments. THE ACCUSED’S SITUATION [ 47 ] The accused is now 51 years old.

He does not have a criminal record or any drug use issues. [ 48 ] He is a father of four. He has custody of the youngest child every other week. Also, one of his adult sons has returned to live at home, causing unforeseen additional costs. [ 49 ] The accused got involved in this business when he was experiencing some financial difficulties.

He had to pay significant orthodontic and medical costs to address his son’s health issues. [ 50 ] His involvement as a mere gardener meant that he had to be present twice weekly, for which he was remunerated $140 a week. [ 51 ] He had no particular knowledge of or involvement in the establishment of the plantation. His involvement was supposed to be temporary. His actions were reckless and he regrets them bitterly. [ 52 ] The pre-sentence report is extremely positive and favourable to the accused. He takes full responsibility for his actions, as shown

by, inter alia, his reimbursement of the amounts stolen from Hydro-Québec and payment of a fine. [53] The arrest resulted in his dismissal from a job he had occupied for several years. He has been working at a new job for the lastyear. [54] The accused has always been an asset to society and has no particular problems. The judicial process had a profound effect on himand the risk of re-offending is practically non-existent. He fears losing his assets and the impact on his immediate family if he is given acustodial sentence.

The pre-sentence report concludes as follows: [translation] In short, the subject is a prosocial individual, who became involved in criminal commercial activities late in life, learned a real lessonfrom his current legal situation, has made efforts to repair the harm he caused, and in our opinion is very unlikely to re-offend.[7] POSITIONS OF THE PARTIES [55] Each party provided very detailed written submissions, which the Court has read with the utmost attention.

It is pointless toprovide a detailed account of each party’s position, as they will be addressed in the following analysis. [56] Suffice it to say that counsel for the accused feels that, considering his client’s situation, a prison sentence would be grosslydisproportionate. Moreover, applied to reasonable hypothetical situations that we will analyze below, this minimum sentence alsoviolates

section 12 of the Charter. [57] Counsel for the intervener argues that Parliament has learned since the Supreme Court’s judgment in Smith.[8] The new piece oflegislation is moderate and proportionate, in light of the seriousness of the offences at issue. Cannabis production is a real societalproblem, and Parliament has responded appropriately, in accordance with the constitutional principles of

section 12 of the Charter. ANALYSIS Does the mandatory minimum one-year term of imprisonment under section 7(2)(b)(iii) of the CDSA violate the accused’s rights,which protect him from cruel and unusual punishment under

section 12 of the Charter? [58] The accused acknowledges his involvement in the production of 260 cannabis plants. [59] Under section 7(2)(b)(iii) CDSA, the Court must impose a mandatory minimum one-year term of imprisonment because “... thenumber of plants produced is more than 200 and less than 501”.[9] [60] The accused challenges this mandatory minimum sentence because it allegedly violates his constitutional rights under

section 12 ofthe Charter, which states: “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment”.[10] [61] In Smith,[11] the Supreme Court of Canada defined the analytical framework of

section 12 and more recently refined it in Nur[12]and Lloyd.[13] PRINCIPLES OF

SECTION 12 OF THE CHARTER [62] The purpose of

section 12 is to protect citizens from cruel and unusual punishment. [63] In Lloyd, the Supreme Court summarized the applicable analytical objective and process as follows: 22. ... A sentence will infringe s. 12 if it is “grossly disproportionate” to the punishment that is appropriate, having regard to the natureof the offence and the circumstances of the offender: Nur, at para. 39; R. v. Smith, (SCC), [1987] 1 S.C.R. 1045, p.1073).

A law will violate s. 12 if it imposes a grossly disproportionate sentence on the individual before the court, or if the law’sreasonably foreseeable applications will impose grossly disproportionate sentences on others: Nur, at para. 77).[14] [64] To determine whether the sentence is grossly disproportionate, the Supreme Court establishes a two-step analysis: 23. A challenge to a mandatory minimum sentencing provision under s. 12 of the Charter involves two steps: Nur, at para. 46).

First, thecourt must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles ofsentencing in the Criminal Code. The court need not fix the sentence or sentencing range at a specific point, particularly for a reasonablehypothetical case framed at a high level of generality. But the court should consider, even implicitly, the rough scale of the appropriatesentence. Second, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grosslydisproportionate to the offence and its circumstances: Smith, at p. 1073; R. v.

Goltz, (SCC), [1991] 3 S.C.R. 485, at p.498; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at paras. 26-29; R. v. Lyons, (SCC), [1987] 2 S.C.R. 309, p. 337-338). In the past, this Court has referred to proportionality as the relationship between the sentence to be imposed and the sentence that isfit and proportionate: see e.g. Nur, at para. 46; Smith, at pp. 1072-73. The question, put simply, is this: In view of the fit andproportionate sentence, is the mandatory minimum sentence grossly disproportionate to the offence and its circumstances?

If so, theprovision violates s. 12.[15] [65] The meaning of a grossly disproportionate sentence goes beyond a merely excessive sentence. According to the Supreme Court: 24. ... It must be “so excessive as to outrage standards of decency” and “abhorrent or intolerable” to society ... .

The wider the range ofconduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply tooffenders for whom the sentence would be grossly disproportionate.[16] [66] This grossly disproportionate test is also defined by the fact “that most Canadians would be shocked to find that such a person

could be sent to prison for one year”[17] or, as worded by counsel for the intervener, that an ordinary person would not understand thissentence. THE APPROPRIATE SENTENCE FOR THE ACCUSED [67] In the first step, “... the court must determine what constitutes a proportionate sentence for the offence having regard to theobjectives and principles of sentencing in the Criminal Code. ...”.[18] [68] In Nur, the Supreme court considered the fundamental principles of sentencing: 40.

In determining an appropriate sentence for purposes of the comparison demanded by this analysis, regard must be had to thesentencing objectives in s. 718 of the Criminal Code, ... . 41. The sentencing judge must also have regard to the following: any aggravating and mitigating factors, ... and the principle that courtsshould exercise restraint in imposing imprisonment... . 42.

In reconciling these different goals, the fundamental principle of sentencing under s. 718.1 of the Criminal Code is that “[a] sentencemust be proportionate to the gravity of the offence and the degree of responsibility of the offender.” 43. It is no surprise, in view of the constraints on sentencing, that imposing a proportionate sentence is a highly individualized exercise,tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime: R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500, par. 80). “Only if this is so can the public be satisfied that the offender ‘deserved’ thepunishment he received and feel a confidence in the fairness and rationality of the system”: Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, at p. 533, per Wilson J.[19] [69] According to the evidence adduced by the intervener, cannabis production has only increased in recent years.

This situation showsa clear increase in demand resulting in serious public health and safety issues, among other things. [70] Consuming cannabis containing an increasingly strong active substance has significant effects on the health of its users,particularly the young ones. [71] In addition to the problems of organized crime connected to cannabis production, indoor production gives rise to public safetyissues such as fire hazards and damage due to mould. [72] Certainly, Parliament wanted to respond to these issues when it increased the objective seriousness of the offence to 14 years’imprisonment and began to impose mandatory minimum sentences. [73] Even before Parliament amended the law, the courts followed the teachings of the Court of Appeal and usually imposed custodialsentences for cannabis production, generally favouring the objective of general deterrence.[20] [74] On this matter, as with drug trafficking, the Court of Appeal noted that trial judges cannot limit their analysis to this factor alone.

InR v. Ricard, the Court of Appeal stated the rule as follows: [translation] 4. This Court has already eloquently pointed out that drug trafficking causes major social devastation. Obviously, the statement must beadapted to the circumstances, but the act of trafficking drugs or possessing them for the purpose of trafficking represents seriouslyharmful behaviour. The sentence for this type of offence must make an impact on collective awareness and the offender if it is to dealadequately with the objective seriousness of the offence.

This Court has also stated, however, that judges cannot limit their considerationto this aspect of sentencing alone.

While drug trafficking often results in a custodial sentence, this Court has rejected the idea that such asentence should be the rule; rather, a sentence should comply with the principle of individualization in sentencing.[21] [75] Counsel for the accused submits a list of recent cases rendered prior to the amendments to the law, where, in cases involving muchlarger plantations, the accused were given lighter prison sentences than the minimum mandatory sentence at issue here.[22] [76] He bases his sentencing submission in this case on R v.

Bilodeau,[23] where a 56 year old man with a criminal record for othertypes of offences was given a 90-day term of imprisonment to be served intermittently plus a fine and a 2-year probation order for a well-organized plantation with 382 plants. One of the objectives of the sentence in that case was also to let the accused keep his job. [77] What is the appropriate sentence for the accused? [78] His involvement in this case was very limited.

His role was to be the gardener, which he performed by going to the premises twicea week. [79] According to the evidence, he acted for a short period of time, four months at most. He was to receive a total of $2,400, which is asmall amount compared to the overall value of the production as established by the expert. [80] In this case, the mitigating circumstances are many and significant. [81] The accused is 51 years old and does not have a criminal record. [82] He got involved in this case during a very trying financial period.

The money he was to receive was going to pay for the health carehis son needed. [83] His arrest caused him to lose his job. The accused nevertheless has very good social values because he accepted his responsibility

completely and on all fronts. [ 84 ] He continued to provide for his children and found a new full-time job. [ 85 ] He fulfilled his responsibility towards Hydro-Québec, even though he had not known that electricity was being diverted. He paid all the amounts owed and claimed. [ 86 ] He cooperated with police officers from the moment of his arrest and pleaded guilty as soon as he could realistically do so. [ 87 ] He was neither the instigator nor the organizer of this business.

He played only a very limited role. [ 88 ] With respect to aggravating circumstances, aside from those related to the objective seriousness of the offence that call for significant denunciation, the only one is the fact that the accused was motivated by greed. This circumstance, however, is tempered by the fact that the money was going to be used to pay for health care and the accused admits that he [ translation ] “was taking a chance”. [ 89 ] Thus, in light of to the sentencing objectives and principles in

section 718 of the Criminal Code , the Court finds that there is no reason to deter the offender specifically, since the judicial process has had a significant impact on him. [ 90 ] In these circumstances, there is no need to isolate him from society; the accused represents absolutely no danger. Social rehabilitation must be favoured instead, by protecting his involvement in the workforce and with his family. [ 91 ] The accused can repair the harm caused to the community otherwise than by serving a 12-month custodial sentence. He is already aware of his responsibility for his actions as described above. [ 92 ] The Court cannot ignore the principles set out in paragraphs 718.2 (

d) and (

e) of the Criminal Code , which require, before an offender is deprived of liberty, a consideration of any less restrictive sanctions and any available sanctions other than imprisonment that are justifiable in the circumstances. [ 93 ] Thus, in the case of the accused, in light of his exemplary conduct since committing the offence and the absence of any risk of re- offending, the suggestion of a 90-day term of imprisonment to be served intermittently appears entirely appropriate.

It may be coupled with a certain number of community service hours as reparation to the community. [ 94 ] The intervener alleges that the purpose of the minimum sentence for cannabis production specifically targets the deterrence of persons like the accused who have no criminal records and who play minor but vital roles in the production. [ 95 ] In R v.

Ruel , the Court of Appeal reiterated that the intermittent prison term [ translation ] “allows the objectives of deterrence and denunciation to be achieved”. [24] [ 96 ] According to the Court, in the case of the accused, imposing the mandatory minimum one-year term of imprisonment would be grossly disproportionate and unjust, as stated in Nur : 44. Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing.

They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range. They may, in extreme cases, impose unjust sentences, because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality .

They modify the general process of sentencing which relies on the review of all relevant factors in order to reach a proportionate result.

They affect the outcome of the sentence by changing the normal judicial process of sentencing. [25] (Emphasis added.) [ 97 ] As the Supreme Court of Canada stated in Lloyd , “... most Canadians would be shocked to find that such a person could be sent to prison for one year”. [26] [ 98 ] The Court is convinced that an ordinary person, such as the one described in St-Cloud , is: 87. ... a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case.

However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused. [27] [ 99 ] This properly informed citizen would not understand that a person like the accused could be sentenced to 12 months’ imprisonment, even though he was involved in a dangerous activity.

Given the limited actions of the accused and the nature of the substance at issue, this citizen would not understand imprisoning him for a year, with all the financial and emotional consequences to his family and society in general that this would entail. [ 100 ] Thus, in the first step of the analysis, the Court finds that section 7(2)( b )(iii) of the CDSA violates

section 12 of the Charter and the Court “refuse[s] to apply it in the case at bar”. [28] APPLICATION TO REASONABLY FORESEEABLE SITUATIONS [ 101 ] The Court’s conclusion in the first step of the analysis seals the accused’s fate. The Court could limit its analysis to this step. [ 102 ] In deference to the Court of Appeal and the parties who argued the subject at length, however, the Court considers that, even though it found differently in the first step, it is nevertheless its duty to analyze whether the mandatory minimum sentence of one year’s imprisonment under section 7(2)( b )(iii) of the CDSA is grossly disproportionate in certain reasonably foreseeable situations, since it has

the constitutional issue before it. [ 103 ] A court may rule on reasonably foreseeable situations when it concludes in the first step of the analysis that the sentence does not appear to be disproportionate; there is also nothing to prevent a court from doing so when it finds that it does. [ 104 ] In Lloyd , the Supreme Court added that the doctrine of mootness must be flexibly applied. “...

If an issue arises as to the validity of the law, the provincial court judge has the power to determine it as part of the decision-making process in the case. ...”. [29] [ 105 ] The judge’s role at this stage is clearly defined in Nur : 61. ... Determining the reasonable reach of a law is essentially a question of statutory

interpretation. At bottom, the court is simply asking: What is the reach of the law? What kind of conduct may the law reasonably be expected to catch? What is the law’s reasonably foreseeable impact? Courts have always asked these questions in construing the scope of offences and in determining their constitutionality. 62. The inquiry into cases that the mandatory minimum provision may reasonably be expected to capture must be grounded in judicial experience and common sense . ... Fanciful or remote situations must be excluded: Goltz , at p. 506.

To repeat, the exercise must be grounded in experience and common sense. Laws should not be set aside on the basis of mere speculation. [30] [Emphasis added]. [ 106 ] Counsel for the accused has formulated two types of reasonable hypothetical situations.

Persons who occasionally gets involved with his neighbour’s production, and persons authorized to produce cannabis for medical purposes. [ 107 ] Following the additional submissions and the rewording of the hypotheses submitted by counsel for the accused and those raised by the Court, counsel for the intervener responded that none of the suggested hypotheses meet the analytical test of the constitutionality of

section 12 of the Charter because they are not reasonably foreseeable and the minimum sentence is neither cruel nor unusual in these situations. [ 108 ] In the Court’s view, the hypothetical situations suggested can be grouped into three categories: • Production of marijuana for medical purposes; • Persons occasionally involved; • Drug addicts. Production of marijuana for medical purposes [ 109 ] On February 24, 2016, in R v. Allard , the Federal Court [31] found that the MMAR were invalid because they violated

section 7 of the Charter . This declaration of invalidity was suspended for six months, however, to allow Parliament to remedy the situation. The judgment was not appealed. [ 110 ] Counsel for the accused, on the basis of the constitutional invalidity of the MMAR , submitted hypothetical situations where persons with licenses to cultivate cannabis for medical purposes made certain technical errors with respect to the number of plants or failed to comply with certain regulations for renewing the licence or providing notice of a change of address, thereby risking a disproportionate one-year prison sentence.

These scenarios were reasonably foreseeable under the former Marihuana Medical Access Regulations ( MMAR ) and had been accepted in R v. Vu . [32] [ 111 ] Currently, the MMPR are still in force and apply to the consumption of cannabis for medical purposes.

The intervener presented very convincing evidence that the MMPR limits the cultivation of cannabis for medical purposes solely to licensed businesses, with the exception of persons who have benefited from an injunction. [ 112 ] Christopher Rose has presented very probative evidence that Health Canada acts toward this substance as it would toward any other controlled pharmaceutical substance.

Given the controls to which these businesses are subject, it appears unlikely that a serious business involved in this type of cultivation would inadvertently forget to renew its licence or cultivate more plants than the number authorized. [ 113 ] According to the current state of the law, describing reasonable situations involving an individual’s cultivation of cannabis for medical purposes is purely speculative. This hypothetical situation is therefore not realistic.

Persons occasionally involved [ 114 ] Counsel for the accused submits the hypothesis of helpful neighbours, where one agrees to water a plantation a few times while the other is away. [ 115 ] Counsel for the intervener states that this hypothesis is fanciful in light of the experience required to maintain a plantation, which cannot be trusted to just anybody. [ 116 ] Counsel for the intervener’s argument is based solely on indoor plantations, which are more sophisticated.

Section 7(2)( b )(iii) of the CDSA , however, makes no distinction between indoor or outdoor plantations, as the minimum sentence is identical in both instances. [ 117 ] The neighbour scenario is not unlikely, but many other situations could occur where a person is involved in a production from time to time, for a variety of reasons. These persons would face the same minimum sentence as the main instigator.

[ 118 ] For the purposes of this category and the next, the Court relies on judicial experience, which reveals many situations where persons are found to be occasionally involved in the production of cannabis in a very limited capacity. [ 119 ] For example, an electrician might carry out repairs on an electric panel dedicated to the plantation in the basement of his sister’s house, which would otherwise be at risk of burning down. He may be well aware that his work contributes to the production of cannabis, but his involvement is very limited and a one-time thing.

He risks the same sentence as the person in charge of the production. [ 120 ] The same is true of the spouse of an individual who is growing an outdoor plot containing over 201 plants at the couple’s second home. If the spouse is involved from time to time, either by watering or maintaining the plants, she will receive the same sentence as her husband. Even though she may have expressed her disagreement with her husband’s venture, several reasons related to their long-term conjugal situation may explain her involvement.

This has no impact on the minimum sentence, however. [ 121 ] Another reasonably foreseeable situation was raised in the testimony of De Larochellière.

She asserts that at certain times of the year, schools empty out for harvesting, mainly at outdoor plantations. [ 122 ] Thus, a young eighteen-year-old student who agreed to work the harvest once to replace a friend who could not do it would receive the same twelve-month sentence as the owner of the production. [ 123 ] Clearly, this sentence is grossly disproportionate in light of his involvement and moral blameworthiness. [ 124 ] As the Supreme Court stated, in each of the situations previously described, “... most Canadians would be shocked to find that such a person could be sent to prison for one year”. [33] Drug addicts [ 125 ] Another situation frequently encountered by the courts is that of drug addicts who get involved in production mainly to meet their own needs.

If they successfully complete therapy, quit using drugs, and turn their lives around completely after the arrest, a 12-month prison sentence would only hamper their efforts to get their lives in order. [ 126 ] In Lloyd , the Supreme Court described exactly this situation in paragraph 33: 33. Another foreseeable situation caught by the law is the following. A drug addict with a prior conviction for trafficking is convicted of a second offence. In both cases, he was only trafficking in order to support his own addiction.

Between conviction and the sentencing he goes to a rehabilitation centre and conquers his addiction. He comes to the sentencing court asking for a short sentence that will allow him to resume a healthy and productive life. Under the law the judge has no choice but to sentence him to a year in prison. Such a sentence would also be grossly disproportionate to what is fit in the circumstances and would shock the conscience of Canadians. [34] [ 127 ] In R v.

Paquette , this Court [35] imposed a conditional sentence on an individual who had been charged with producing a very large quantity of cannabis but who had since regained control and rebuilt his life.

This is no longer possible today because of the minimum sentence, among other things. [ 128 ] Thus, at this stage, the Court finds that the scope of conduct and circumstances that incur the mandatory minimum sentence is broad and that it is therefore likely to “apply to offenders for whom the sentence would be grossly disproportionate”. [36] Thus, the mandatory minimum sentence of one year under section 7(2)( b )(iii) of the CDSA violates

section 12 of the Charter . If so, is this mandatory minimum sentence justified in light of the principles in

section 1 of the Charter ? [ 129 ] The Supreme Court’s analysis of this issue in Lloyd [37] applies entirely to this situation. Parliament’s objective of ensuring that cannabis production is limited is laudable and has a rational connection to the imposition of the mandatory one-year minimum sentence. [ 130 ] This legal rule, however, does not minimally impair the rights guaranteed under

section 12 of the Charter . [ 131 ] On this issue, the remarks of the Supreme Court are clear and apply directly to this case: 49. [This law] ... covers a wide array of situations of varying moral blameworthiness, without differentiation or exemption, save for the single exception in s. 10(5) of the CDSA . The Crown has not established that less harmful means to achieve Parliament’s objective of combatting the distribution of illicit drugs, whether by narrowing the reach of the law or by providing for judicial discretion in exceptional cases, were not available.

Nor has it shown that the impact of the limit on offenders deprived of their rights is proportionate to the good flowing from their inclusion in the law. [38] [ 132 ] The intervener has failed to show that the mandatory minimum sentence under section 7(2)( b )(iii) of the CDSA is a reasonable limit on

section 12 Charter rights as can be demonstrably justified in a free and democratic society. FOR ALL THESE REASONS, THE COURT: On count 1: FINDS that the mandatory minimum sentence under section 7(2)( b )(iii) CDSA violates

section 12 of the Charter ;

REFUSES to apply the mandatory minimum sentence under section 7(2)( b )(iii) CDSA in the accused’s case; CONDEMNS the accused to ninety days’ imprisonment to be served intermittently, the terms of which will be established at the hearing; ORDERS a probation period of two years, with mandatory conditions and the following specific condition: - Within a period of 18 months, perform 125 hours of community service. On count 3: CONDEMNS the accused to a fine of $500 to be paid within eight months. MAKES an order prohibiting the accused from possessing firearms and other similar items in accordance with

section 109 of the Criminal Code , for a period of ten years. DOES NOT ORDER payment of the victim surcharge in light of the accused’s limited financial resources. __________________________________ ÉRICK VANCHESTEIN, J.C.Q. Mtre Kevin Mailhiot For the prosecution Mtre Frédéric Beaulne For the accused Mtre Alexandre Duval For the intervener Dates of hearing: November 11 and 12, 2015, April 25, 2016.