Prime Minister Justin Trudeau has received a lot of criticism from activists and advocates because of his decision to uphold marijuana prohibition while his government figures out how to legalize cannabis. Now the high court of British Columbia has entered the debate against the government by ruling that enforcing the law could lead to cruel and unusual punishment for people caught growing cannabis.
In 2012, former Prime Minister Stephen Harper passed a "tough on crime" agenda that included mandatory minimum sentencing for drug traffickers. The bill altered the Controlled Drugs and Substances Act (CDSA) so that people caught growing between six and 200 cannabis plants for the purposes of trafficking were subject to a mandatory sentence of six months imprisonment.
Laws should protect people who give cannabis to friends
The problem with that law, according to B.C. Supreme Court Justice Lauri Ann Fenlon, is that trafficking could apply to people giving away some of their personal supply to family or friends. For instance, someone illegally growing six plants to treat migraines would be considered a drug trafficker if she offered a few buds to a friend who suffered from the same condition.
That's one of the hypothetical scenarios Justice Fenlon used in a Feb. 16 ruling in a marijuana trafficking case. In these trials, judges must consider the case in question, as well as potential ones in which enforcing the law could lead to punishments that are disproportionate with the crime.
"The effect of the mandatory minimum in the section [of the CDSA] in issue is to incarcerate for six months small offenders for whom such a sentence is grossly disproportionate," B.C. Supreme Court Justice Lauri Ann Fenlon ruled. "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.
"In the result, I find that s. 7(2)(b)(i) of the Controlled Drugs and Substances Act violates s. 12 of the Charter."
Section 12 of the Charter of Rights and Freedoms reads, "Everyone has the right not to be subjected to any cruel and unusual treatment or punishment." So prohibition could violate the basic rights of the Canadian people. Fenlon's ruling, however, does not change the laws of the land, though many of them could change in the first mandate of the Trudeau government.
The laws pertaining to this case that are under review include mandatory minimums for offences which judges have found violate Charter rights, and laws governing growing at home. The problem? The government under Trudeau has said it would enforce the current laws, until cannabis is made legal and a regulatory framework is in place.