When Does One Marijuana Plant Plus One Shared Joint Equal Nine Months Incarceration?

Yesterday, I read a number of twitters about the new Omnibus Crime Bill now making its fast and furious way through the Canadian Parliament. This particular set of tweets pointed out an absurdity: a person can be sentenced to a mandatory 9 months in jail for growing a marijuana plant, smoking a joint with friends, all while sitting in the comfort of his or her own rental apartment. My first reaction was one of disbelief. I shared this tweet with my criminal procedure class with interesting results.

Some of the students, not unlike my reaction, gasped and shook their heads. But there was one student who applauded the action. This student, as an owner of rental property, was glad to hear that property rights will be protected. Instead of that much bandied about acronym (lawyers love acronyms!), NIMBY, it was NITPILO – Not In The Property I Lease Out. The student had a good point.

So I decided to investigate this new amendment further. Upon reading the actual amendment, the following became clear:

1. This is a mandatory minimum sentence or MMS
2. Applies to less than 201 marijuana plants
3.  Must be convicted of production for the purpose of trafficking
4. One of a list of factors must apply
5. One of those factors is the accused “used real property that belongs to a third party”

What does this add up to? Well, an argument. My spouse, who is also a criminal lawyer, and I had a boisterous argument over the application of this new amendment. The issue was; who can be captured by this amendment?

The argument revolved around the offence of production for the purpose and the meaning of using property “belonging to” another. So, we did what all good lawyers do when we disagree, we ran to our respective computers and did some legal research.

What did we find? I found more questions than answers. Although an accused will be acquitted of possession for the purpose of trafficking if the marijuana is for personal use, not necessarily so for production for the purpose. Under the Controlled Drugs and Substances Act (CDSA is the acronym), production includes “cultivating, propagating, and harvesting.”

So yes, you a grow a plant or two and harvest it to make a joint, you are producing contrary to the Act. But it must be for the purpose of trafficking. Okay, so if you produce for yourself only, you are not within this new amendment. But, if you grow the plant, harvest the plant, roll a joint and give the joint to a friend– that is trafficking the produced drug.

But how about that last factor – in rental property? It says real property belonging to a third party. My husband and I really argued about this. Many drug forfeiture hearings revolve around ownership of the property. The ownership is sometimes obscured through numbered companies, which are actually owned by criminal organizations. His argument was; this would only apply to those nefarious cases. I disagreed; this factor refers to rental property. It is protecting my student and many others who rent out property.

Who is right? Just read the House of Commons publication explaining the new legislation. The factors are for “health and safety.” Remember Safe Communities Act. The aggravating factor is committing the offence in a rental property.

Bottom line? The math does add up if there is a situation of a grow-op in a rented home. Bad things happen to homes used as grow-ops and adding a further disincentive to do this can be a good thing. Whether or not a MMS (acronym for mandatory minimum sentence) is appropriate or constitutional is for another blog.

Where the math does not add up however, is in the situation of the lost soul who grows a couple of plants, makes some joints from them and invites friends over for a smoke in his rented apartment. Is that justice? You do the math.

My question to the lawyers out there: in light of yesterday’s SCC decision in Cote, in which the Court showed strong support for Charter values and rights in their 24(2) analysis, would this legislation pass Charter scrutiny under a s.1 reasonable limitation argument?

Poetic Justice?

Does poetry have a place in the courtroom? An Ottawa Crown thinks so. In an attempt to convince a judge to convict an accused of an impaired driving charge, the Crown set his submissions to rhyme. Although the judge convicted the accused, she did not mention the use of the unusual literary device. My advice to the Crown: don’t quit your day job.

Poetry and the law are no strangers. Many eminent poets have also been trained in the law such as the American, Wallace Stevens and the Spanish poet, Frederico Garcia Lorca. In Canada, F. R. Scott was a legal scholar who also waxed poetic. He held the position of the McGill Dean of Law in 1961 and was a well-respected constitutional/human rights litigator. Indeed, he was a vocal proponent against the Quebec anti-communist statutes known as the “Padlock Laws.” His poems are beautiful. They are insightful reflections of a proud Canadian and are well worth reading.

But does poetry, for it’s own sake, have a place in the legal arena? It depends on the use. In the Emkeit case, the Crown read an inadmissible and inflammatory poem to the jury on a murder trial. Although the majority of the SCC did not overturn the conviction, the strongly worded dissent by Hall, Spence, and Laskin JJ. suggest they were not amused by the “so-called poem.”

On the other hand, in light of the contextual approach used by the SCC in Charter cases, poetry and other literary material may have a place in elucidating and interpreting Charter rights and values.

For those interested in further reading, there are suggestions at the Law and Literature blog from April.

Update on Friday, October 14, 2011 at 1:03PM by Lisa A. Silver

I just did a very quick search of Supreme Court of Canada cases to see if any literary books and/or authors have been refrred to or quoted. In the 2003 Wu case, Binnie J., speaking for the majority, on the issue of the use of conditional sentences in lieu of fines, referred to the concept of debtor's prison and said:

The trial judge of course put his finger on a serious problem.  Debtors’ prison, a dreadful institution excoriated by Charles Dickens in Little Dorrit, is no longer with us.  But according to the most recent report from Statistics Canada, 17 percent of all people in custody in provincial or territorial institutions in 2000-2001 were jailed for default on unpaid fines...

By using the Dickens analogy, Binnie J. quickly transports us to the dank and dark world of 19th century England with great effect. Now, this is the way law and literature can really connect!

Would You Like Some Coffee With That Mug-Shot?

In the morning, I like to pour myself a hot steaming mug of coffee. The coffee helps me clear my mind and start the day. But what if, groggy and disoriented, I reach into the cupboard and blindly choose a mug? And, not only is it not my 100-reasons-why-lawyer's-are-essential mug, but it is a mug with a mug-shot on it! What? How is this possible?

Well, it is possible. Recently, the Art and Artifice blog, on art and law, commented on old mugshots being placed on coffee mugs for commercial sale. There is an excellent discussion on the blog concerning the legalities of this. Privacy and reputation is an issue as well as the philosophical question of when have criminals paid their debt to society? Is the legal punishment enough or do we, as a society, require something more than that? And, do we have a right to require more? 

How would these mugs go over in Canada? Certainly, a fundamental Charter value is individual dignity and self-worth. Privacy is one of the most personal and therefore strongly held Charter rights we enjoy. Usually privacy rights give away to security and protection of society - just leaf through the Criminal Code and the Anti-Terrorism Act for examples of that. Reputation is also a right protected through the Charter. In the SCC case of Hill, Justice Cory said this about reputation:

 Although it is not specifically mentioned in the Charter, the good reputation of the individual represents and reflects the innate dignity of the individual, a concept which underlies all the Charter rights.  It follows that the protection of the good reputation of an individual is of fundamental importance to our democratic society.

So it appears these mugs could potentially damage one's reputation as well as possibly become an unsanctioned form of punishment.

Does the source of these photos matter? In Canada, this too may be an issue. On a reading of s. 2(3) of the Identification of Criminals Act (R.S.C., 1985, c. I-1), identification/arrest photographs can only be used for the purpose of

affording information to officers and others engaged in the execution or administration of the law.

So it appears the photos can be used for a photographic identification line-up but can’t be used for commercial purposes. If so used, is there an illegal search and seizure argument? Is there a civil suit for the harm caused by an illegal search and seizure and the resultant damage to a reputation?

I will leave that to you to ponder.

Is "Innocent Nudity" Expression?

When is a nude a nude and when is being nude, contrary to the Criminal Code? When you walk through a local park sans clothing or when you go through a Tim Horton's drive-through with nothing but your charms to recommend you.

Today, in my human rights class, we talked about just that. Is nudity expression? And if so, does s. 174 of the Criminal Code, which prohibits public nudity, violate s.2(b) of the Charter? 

It appears Ontarians, Mr. Coldin and Mr. Cropper, would answer yes to both. Both men are charged with public nudity under s.174  of the Criminal Code and their counsel have argued a Charter violation. According to these avowed naturists, their nudity is an expression of a oneness with nature, in other words going au natural for nature. This "innocent nudity," they argue has expressive content and should not attract criminal penalties. 

First, the class tackled the issue of expression: is nudity expression? Well, it turns out the answer is not so clear. What is the expressive content of nudity? Is wearing nothing able to express anything? Let's just ask the Emperor who thought he wore new clothes. Was he "expressing" something when he waltzed down main street in his natural born state? Perhaps. And Coldin and Cropper, are they saying something through their nudity? I say yes. An expression of "getting back to nature" and an expression of "let's get back to the basics in this overly material world." Could this be a call to arms (uncovered of course) for an Occupy Nature movement? 

Now we have determined expression. How about the restriction? See anything wrong with the Criminal Code section? The class did.

s.174(1) Every one who, without lawful excuse,

(a) is nude in a public place, or

(b) is nude and exposed to public view while on private property, whether or not the property is his own,

is guilty of an offence punishable on summary conviction.

As Arnold Horshack would say, hand raised, "Ooh-ooh-ooooh."  How about this. It harkens back to the basic principles of criminal law, which require a minimum mens rea requirement.This offence may not be a true crime and attract a subjective liability requirement but does this section even permit an objective liability standard? Section reads more like an absolute liability offence: you are nude, you are guilty.

Aha, you say. How about that lawful excuse? What kind of "lawful" excuse could there be for being nude? Okay, you sleep in the nude, fire alarm goes off in the middle of the night and you jump out of bed and run outside stark naked. So the lawful excuse seems to be: I did not intend to be publically nude. A lack of mens rea, which is a required element of an offence, as a lawful excuse?

I could go on, but I will stop here.

What kind of offence is this anyway? Is it Charter bad or Charter good? What do you think?

Update on Wednesday, October 12, 2011 at 6:27PM by Lisa A. Silver

A student in my human rights class reminded me of the 1991 Guelph, Ontario woman who took her shirt off on a warm day. She was charged with an idecent act contrary to s.173 of the Criminal Code. CBC recently did a follow-up story of the case. The Ontario Court of Appeal acquitted Gwen Jacob on the basis that her actions did not amount to an indecent act, which required a sexual context. The Charter was not invoked. This decision did open the way for breast feeding in public, however it did not start a female shirtless movement, either on a hot day or otherwise. You will have to go to Europe for that.

Bodily Substance Warrants Under s. 487.05

Some criminal law fun!

In my criminal procedure and evidence class at MRU, we discussed warrants to take bodily substances for DNA analysis under s. 487.05 of the Criminal Code. Such samples must be taken in accordance with the investigative procedures as set out in s. 487.06, which include taking samples by the plucking hairs, by the taking of buccal swabs, or by the taking of blood by "pricking the skin surface with a sterile lancet." A peace officer, who "by virtue of training or experience" may be authorized under the warrant to take these samples.

Okay. I was a little concerned with this. Potentially a non-medical person can be authorized to take a sample of blood based on "experience" only? In the words of my teenage daughter: OMG. Calm down you say - under s. 487.06 this procedure is done by "pricking the skin surface with a sterile lancet." Sounds easy doesn't it? Well, take a look at the WHO Guidelines for Drawing Blood and it doesn't look so easy or, quite frankly, so safe. This is a medical procedure and there are possible medical outcomes.

In contrast, take a look at the blood sample warrant authorization for imparied/over 80 offences involving death or bodily harm under s. 256. Such samples must be taken by a qualified medical practitioner "who is satisfied that taking the samples would not endanger the person's life or health." This is what we want! We want medical procedures to be done by qualified people. We want samples to be taken only if the benfits outweigh the harm. Why are we not providing the same protection for taking bodily samples for DNA purposes?

Yes, s. 256 authorizes the taking of blood samples, which is more invasive than a skin prick by lancet. Agreed. But there are still potential health risks whenever blood is taken. Particularly when the person taking the sample may be doing it "by virtue" of experience and not necessarily training. 

Answer? We need some safeguards albeit not the high level of safety mandated by s.256. Otherwise, such authorization may be contrary to Charter rights and values. But I will leave that discussion to you.