Duc Vu previously plead guilty to working in a cannabis grow-op and was given a six-month minimum sentence for growing between six and 200 cannabis plants for the purpose of trafficking. Vu then challenged the ruling, and said the mandatory sentences were “cruel and unusual punishment.”
Durno agreed, though not that Vu was undeserving of the punishment, but that minimum sentencing could potentially impact those citizens that were not criminals.
The judge based his decision on a hypothetical case of a person legally entitled to produce cannabis, but mistakenly producing more than allowed. Durno said he had, by chance, been at another court where a licensed grower had been charged with producing 265 plants when he was only allowed to grow 122.
“The deprivation of liberty occasioned by a six-month jail term would be grossly disproportionate for a law-abiding citizen who made an honest mistake,” Durno wrote in his ruling.
While the ruling is only applicable in Ontario, it could set precedence nationally for similar challenges.
The Conservatives pushed the mandatory minimum sentences in 2012, as part of their agenda toward drug, violence and sex related crimes.
A 2002 report on mandatory minimum sentences prepared for the Justice Department found the practice to be the least effective measure to deal with drug offences and that both consumption and drug-related crime are unaffected by the mandatory minimums.
“MMS are blunt instruments that provide a poor return on taxpayers’ dollars because they fail to distinguish between low and high-level, as well as hardcore versus transient dealers,” the report stated. “Treatment-oriented approaches are more cost effective than harsh prison terms.”
McLachlin wrote that the mandatory minimums could potentially punish those that have no fault and pose no danger to the public – for instance, inheriting a firearm and not immediately licensing it, which could send the offender away for three years.
“There exists a ‘cavernous disconnect’ between the severity of the licensing-type offence and the mandatory minimum three-year term of imprisonment,” McLachlin wrote.
Durno also found mandatory sentences for cannabis production endangering public safety to be unconstitutional on the grounds that a gardener tending plants could be sentenced, without knowing anything of the operating dangers.
Vu’s lawyer, Meara Conway, was pleased with Durno’s ruling.
“Parliament is attempting to micromanage the sentencing process and wrest control from trial judges,” Conway said.
Vu was found by police hiding in a clothes dryer with 1,020 cannabis plants and a hydro bypass to steal electrical power. Vu pleaded guilty to production of marijuana and theft of hydro.