A recent ruling from Ontario Superior Court of Justice judge Michael Code has struck down another of the former Conservative government’s mandatory minimum sentences for growing cannabis.
Hai Thi Pham was charged with operating a grow facility in a rented Toronto apartment, where over 1,000 plants were found in the three-bedroom unit.
Convicted in a two count indictment with production of marijuana and possession of marijuana for the purpose of trafficking in March, 2015, Pham later appealed the two and three year mandatory minimum sentences, saying that they violated her Charter rights.
The Controlled Drugs and Substances Act states that offenders face mandatory “imprisonment for a term of two years if the number of plants produced is more than 500,” and an additional year sentence if “the production constituted a potential public safety hazard in a residential area.”
Police testified that Pham’s grow in the apartment constituted a public safety hazard due to “the threat of fire and electrocution,” “the threat of airborne toxic mold” and due to the “web of wiring which is dangerous to emergency service personnel who respond to fires.”
Code said, in his decision that “this was a large sophisticated commercial grow-op where the sole motivation for the operation was profit” and “the case has none of the altruistic, compassionate or non-commercial aspects seen in cases involving medical marijuana.”
Justice Code didn’t dispute Pham’s guilt, saying that he was “satisfied beyond reasonable doubt that Pham actively participated in the growing of more than 500 marijuana plants” and Pham’s own defence agreed that the three year sentence wouldn’t be grossly disproportionate for Pham, who would have faced up to two years in prison before Harper’s amendments to the criminal code.
Justice Code ruled that, although Pham’s case was an appropriate use of sentencing, the mandatory minimums may not be warranted for other circumstances.
The provision around “public safety hazards” may unintentionally capture cases “where the accused was not at fault, either because the hazardous circumstances were unknown or because the accused had exercised due diligence in trying to prevent the safety hazards.”
As to the production of over 500 plants, Code wrote in his verdict that, as cannabis production is not strictly illegal but a controlled process, cases may reasonably arise where authorized and licensed producers of cannabis may have their licenses expire or growers misinterpret the scope of their license, resulting in a “grossly disproportionate” two year minimum sentence.
After throwing out the mandatory minimum sentences for Pham, Code was left to decide what sentence was appropriate, weighing the situation based on Pham’s role in the cannabis production as a woman with two dependent children, describing Pham’s situation as one where “there is no suggestion that she is a risk to re-offend.”
“Pham’s role in the operation was admittedly not that of a leader or organizer. She was probably some kind of hired gardener and caretaker,” Code wrote. “She certainly did not have the means or the sophistication to be running the operation or to own and distribute the large quantities of marijuana. However, I am satisfied that she had an active role in the operation.”
Pham was ultimately sentenced to a 10 month custodial sentence, followed by an 18 month period of probation, and psychiatric counseling through the Hong Fook Society.