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?

Law, Literature, and "Inherit The Wind"

When I lecture, I like to take a Brain Break or a moment to reflect on a particular issue being discussed. Usually, this takes the form of big idea questions, or a fact situation, or even a decision-making exercise, which the class then tackles in smaller discussion groups. So let's take a Brain Break, on this October Wednesday, through a segue from human rights to literature, and discuss Inherit The Wind by Jerome Lawrence and Robert E. Lee (no, not the Civil War Lee who died in 1870 on this day - is this irony?).

Inherit The Wind is a dramatisation of the infamous Scopes "Monkey Trial" where the theory of evolution expounded by Darwin was "on trial" as a result of a high school biology teacher's decision to teach the theory rather than the accepted idea of biblical creationism. Clarence Darrow, one of the great trial lawyers of the era, represented the teacher and turned the trial into a reflective examination of society's tolerance for differing and controversial view-points.

In the movie version, Clarence Darrow is brilliantly played by Spencer Tracy with Frederick March as his nemesis prosecutor Matthew Brady. Completing the triumvirate, is Harry Morgan (aka Col. Sherman T. Potter - another civil war reference?) as the presiding Judge. The play is indeed, even on a surface reading, an engaging repartee between two conflicting ideals: one of freedom of expression thought, and belief and the other, freedom of religion and sacred thought. Aha, we are back to expression! A fundamental freedom at the core of our most deeply held beliefs and so many times, opposing other fundamental Charter values, such as religion and equality.

On a deeper reading, Inherit The Wind is a treasure. Written by the authors during the period of oppressive McCarthyism, the book does not just harken back to a tumoltous time of civil rights, but brings us back to the present as our Supreme Court of Canada hears argument on the Whatcott case.

Follow the SCC on Twitter as the arguments come down at #SCC or #Whatcott to formulate your own connections between the past and present.