The B.C. Court of Appeal has struck down as cruel and unusual punishment the six-month mandatory jail sentence for growing between six and 200 marijuana plants for the purposes of trafficking.
The high court decision, which echoed previous rulings that denounced as unconstitutional other former Tory tough-on-crime provisions, underscored the new federal Liberal administration’s tardiness in fulfilling promises to review such laws.
The decision pointed out that sea-changes in social attitudes, to which the Conservative government seemed oblivious, must be taken into account and “energize” Charter interpretations.
“Values are not immutable,” explained Justice Gregory Fitch, writing with the support of Chief Justice Robert Bauman and colleague Peter Willcock.
“They change in response to changing social conditions, social sentiments and expectations, evolving human knowledge, and technological advancement. For this reason, the Charter must adapt to changes in social context and not remain frozen in the past.”
This drug-trafficking provision was enacted as part of the 2012 Safe Streets and Communities Act, which doubled the maximum sentence from seven to 14 years and eliminated conditional sentences for producing marijuana.
“Assessing whether the mandatory minimum term of imprisonment applicable in this case is grossly disproportionate requires consideration of widespread changes in social attitudes toward small-scale, non-commercial marijuana production and use,” Fitch wrote. “The court cannot blind itself to these changes, or to the different policy and legislative choices currently being debated to address the complex issues that arise in this area.”
Prosecutors insisted, however, that compassion and “small-scale” had nothing to do with the case in question — Keith Steven Elliott, 42 at the time, was working at a lucrative commercial Kelowna growing operation feeding the black market. The 195-plant guerrilla garden reputedly produced about 24.4 pounds (about 11 kilos) of bud, which would have fetched between $78,000 and $117,000.