As Canada heads toward a new era of legal marijuana use, federal prosecutors are still trying to jail people who grow small amounts of cannabis in their home to sell to others, sending a tough-on-drugs message that some say is at odds with the new approach. And they continue to seek criminal records, and sometimes jail time, for people charged with simple possession of marijuana for their own use.
In a case in Victoria Harbour, Ont., the public prosecution service is seeking a six-month jail term for a man who grew 29 plants in his home, and who sold a small amount – one ounce a week – to his friends, what his lawyers refer to as "social trafficking." Stephen Morris is a single father and first-time offender, and he pleaded guilty. The prosecutor said in a legal filing he deserves six months in prison because he grew the plants in a room adjacent to one occupied by his teenage daughter. "It's a remarkable thing to have the government say they want to legalize and still want to put people in jail for minor infractions," Osgoode law professor Alan Young said.
Six months is the length of the mandatory minimum sentence the Stephen Harper government created for growing six to 200 plants for the purpose of selling marijuana. In an unusual twist, the prosecution in the Morris case declared an intention to seek the mandatory sentence, but dropped it after Mr. Morris launched a constitutional challenge and the government changed. The challenge would have put the Trudeau government in the uncomfortable position of defending a Harper-era minimum sentence related to marijuana. But the prosecution service is still seeking the same length of time set out in the minimum.
Federal prosecutors are also taking a hard line on possession of small amounts of marijuana for personal use. "They're still seeking the imposition of criminal records for people for an activity that the government has said they would legalize right away," Ottawa lawyer Michael Spratt said. In one case, the prosecution service asked for jail time for a man who violated a condition of his probation by possessing marijuana. A judge refused.
The prosecution service said in response to e-mailed questions from The Globe and Mail that it follows practices outlined in the Public Prosecution Service of Canada Deskbook, published in 2014. On drug offences, the book says prosecutors should stick with the mandatory sentence where it is supported by the facts and, as a general rule, not discard the minimum to achieve a plea bargain. "In situations where the facts supporting the MMP [mandatory minimum penalty] are present and provable, counsel should generally prosecute that offence and the court will impose the MMP," the deskbook says.
Even so, the prosecution service maintains it is applying the same rules after the election as it did before. "The PPSC Deskbook is in force," spokeswoman Nathalie Houle said, refusing to comment on the specifics of the Morris case.
Prof. Young and students participating in Osgoode Hall's test-case program became involved in the case at the request of Raymond Morhan, a Barrie, Ont., lawyer representing Mr. Morris who sought help launching a constitutional challenge. The Osgoode team wrote a 141-page legal document arguing that the courts should rule the mandatory minimum cruel and unusual punishment, and therefore unconstitutional, taking it off the books. Prof. Young said he intends to argue that the court challenge should still be heard. He accuses the prosecution service of trying to shield the mandatory minimum. "If you have it on the books, you have leverage to get guilty pleas." Mr. Morhan said that while the mandatory sentence remains in force, it sets the bar higher for punishment of small growers. Canadian courts have struck down several mandatory minimums passed by the Conservative government.
Both Mr. Morhan and Prof. Young say that, before the Conservatives brought in a mandatory minimum penalty in 2012 for growing six to 200 marijuana plants, Mr. Morris would almost certainly not have done jail time. Once marijuana use is legalized and regulations are created for government-authorized growing and selling, behaviour such as Mr. Morris's will be more of a regulatory offence than a crime – like fishing without a license. He added that Mr. Morris lost his job because of the criminal charge, and then lost his home. Mr. Young said growing marijuana next door to his child's room is not a serious enough transgression to justify a jail sentence.
Mark Kleiman, a professor of public policy at New York University, has created a consulting company that has been hired by Washington State's liquor board to help it develop a framework for selling legal cannabis. "Someone selling four ounces of weed a month is not exactly large-scale crime. But you want to tell him 'No, you can't do it.'" Confiscating his plants could be all that's needed, he said.