Mandatory minimums for growing cannabis struck down after Kelowna case sets precedent in B.C.

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      (Lawyer John Conroy will be a panelist at the Georgia Straight's upcoming event, Grassroots: An Expo for the Cannabis Curious on April 7 and 8, 2018. Get your tickets now.)

      British Columbians facing mandatory minimums for growing marijuana can breathe a sigh of relief, thanks to the outcome of a recent Kelowna court case.

      When Kevin Steven Elliott took a job trimming plants for $20 an hour in 2011, it was unlikely that the man, who was in a tough financial spot at the time, thought he'd ever be subjected to the Controlled Drugs and Substances Act—but when the operation in the Okanagan city was busted in June 2013, Elliott found himself facing a mandatory minimum sentence.

      Under the Act, anyone found to be producing marijuana in a grow operation between six and 200 plants is size with the intent to traffic is liable to a mandatory minimum imprisonment of six months. The basement operation Elliott was associated with used 195 plants.

      The Vernon-based outlet InfoNews reported that the sentencing judge, Justice Lauri Ann Fenlon, "found that provision unconstitutional based on a complex legal test that examines whether or not the mandatory minimum would be grossly disproportionate for hypothetical offenders."

      "I note that a six-month sentence is typical for a first-time trafficker involved in a relatively sophisticated commercial dial-a-dope operation. Imposing that sentence on a 19-year-old student or a migraine sufferer who is growing six plants intending to share them with friends would, in my view, be abhorrent to most Canadians," Fenlon said.

      Elliott avoided jail time and instead, received a suspended sentence with two years probation.

      Although the Crown appealed the ruling, the B.C. Court of Appeal upheld it in a June 9 decision.

      The Straight spoke with John Conroy, the Abbotsford-based lawyer who defended the case, earlier today to find out exactly what this decision means for British Columbians.

      "If you're charged with growing six to 200 plants, that mandatory minimum has now been struck down, so it doesn't exist in B.C. anymore. It's unconstitutional," he said.

      Conroy added that while the judge is no longer obligated to issue mandatory minimums, the Crown is still able to seek imprisonment. Though the case is only binding in the province of B.C., lawyers elsewhere can use it to argue that such sentences be set aside there too.

      "It's great that the court of appeal has struck this down, because people aren't facing a mandatory minimum for this offence anymore. It's up to the judge to decide, not some politician who thinks you have to get a mandatory minimum," he added.

      Like many cannabis activists and law professionals alike, Conroy finds it frustrating that despite plans to legalize cannabis, the federal government continues to seek mandatory minimum sentences.

      "The government is going to legalize marijuana... so why are they still seeking mandatory minimums?

      "It's one the to have something be prohibited, but surely when a government says, 'okay, fine, we've finally looked at everything and we think the cure is worse than the disease, and we're going to legalize', surely that signals a change in conduct, so that denouncing the conduct before is no longer as serious as it used to be," he said. 

      "In this case, the Court of Appeal... seems to recognize that there are changes in social values and expectations and that the charter has to adapt to these changes and not remain frozen in the past."

      Conroy argued that instead of continuing to give notices of mandatory minimums to those charged under the Act, the government should move to repeal them. He said it would make more sense for judges to issue conditional sentence orders that would allow people to serve under house arrest while continuing to work.