R. v. Boulton, 2016 ONSC 2979

Court File and Parties

BARRIE COURT FILE NO.: CR-14-135 DATE: 2016-05-03 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – JEREMY BOULTON Applicant

Counsel: A. Jodouin, for the Crown T.M. Hicks, for the Applicant

HEARD: March 24 and April 26, 2016

Reasons on Constitutional Challenge to Section 7(2)(b)(i) of the Controlled Drugs and Substances Act

QUINLAN J.:

Overview

[1] The applicant applies for an order that the mandatory minimum sentencing provision set out in s. 7(2)(b)(i) of the Controlled Drugs and Substances Act (CDSA) is contrary to s. 12 of the Charter of Rights and Freedoms (Charter), and asks that it be declared null and void pursuant to s. 52 of the Constitution Act, 1982.

[2] The applicant was convicted after trial of producing marijuana for the purpose of trafficking. His operation was set up in the garage and backyard of his family home, where he lived with his wife and two young children. He grew 117 plants for the purpose of trafficking in the illicit drug trade.

[3] Under recent amendments to the CDSA, anyone engaged in the production of six to 200 marijuana plants for the purpose of trafficking is subject to a minimum six-month jail sentence. The applicant does not argue that the mandatory minimum term of imprisonment in s. 7(2)(b)(i) is grossly disproportionate as applied to him; he argues that the mandatory minimum sentence violates s. 12 as it applies to other offenders.

Circumstances of the Offence

[4] On August 16, 2013, police executed a search warrant at the residence of the applicant and his wife. A marijuana grow-operation, consisting of approximately 105 plants and all of the usual related equipment, was located in an enclosed wooden room attached to the detached garage on the property. Police also located approximately ten mature potted marijuana plants some distance from the house, in the backyard. The applicant acknowledged that the plants were his and told the police he “needed extra money”.

[5] A “willsay” prepared by Acting Det. Sgt. Lee Fulford of the Organized Crime Enforcement Bureau, Drug Enforcement Section of the Ontario Provincial Police was filed on consent. Acting Det. Sgt. Fulford has been qualified on a number of occasions to provide expert opinion evidence in the area of marijuana production and yields. The officer opined that the applicant’s marijuana grow-operation was set up to continuously produce marijuana and could produce between two to three crops per year, which would generate a minimum of $24,000 to $36,000 annually. The total estimated value of the yield from the plants seized ranged from $12,000, if sold by the pound, to $36,120, if sold by the gram.

The Law

Section 7(2)(b)(i) of the CDSA

[6] Section 7(2)(b)(i) of the CDSA is part of the broader sentencing regime that was introduced by the Safe Streets and Communities Act, S.C. 2012, c.1, ss. 39-46. The Parliamentary Secretary to the Minister of Justice explained the rationale for the amendments to the CDSA sentencing regime as “propos[ing] targeted, mandatory minimum sentences for serious drug crimes…[to] clearly send the message that Canadians find this type of criminal behaviour unacceptable”.

[7] An offender who has committed a production offence that engages this section has committed a serious indictable offence, punishable by up to 14 years imprisonment. This section targets smaller marijuana grow-operations where the plants are cultivated for the purpose of trafficking. As noted, the mandatory minimum sentence that the applicant faces for the production of between six and 200 marijuana plants for the purpose of trafficking is six months imprisonment.

Section 12 of the Charter

[8] Section 12 of the Charter provides that everyone has the right not to be subjected to any cruel and unusual punishment. A challenge to a mandatory minimum sentencing provision on the ground that it constitutes cruel and unusual punishment involves two steps. First, the court must determine what constitutes a proportionate sentence for the offence, having regard to traditional sentencing principles. The court must then determine whether the mandatory minimum requires the imposition of a sentence that is grossly disproportionate to the fit and proportionate sentence. If it is grossly disproportionate for the offender being sentenced, the mandatory minimum violates s. 12 of the Charter. Even if it is not grossly disproportionate for the specific offender, the sentencing judge must go on to consider whether the mandatory minimum sentence would be grossly disproportionate for a reasonably foreseeable hypothetical offender: R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773 at paras. 38, 46 and 77.

[9] If the mandatory minimum sentence is found to be grossly disproportionate for either the specific offender or a reasonably hypothetical offender, the judge must determine whether the infringement is justified under s. 1 of the Charter.

Gross Disproportionality

[10] In R. v. Nur, at para. 39, the Supreme Court stated:

This Court has set a high bar for what constitutes “cruel and unusual… punishment” under s. 12 of the Charter. A sentence attacked on this ground must be grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender…The test of gross disproportionality “is aimed at punishments that are more than merely excessive”.

[11] As the Supreme Court outlined in R. v. Smith, [1987] 1 S.C.R. 1045 at para. 54, “[T]he criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter is… ‘whether the punishment prescribed is so excessive as to outrage standards of decency’.” It will only be on rare and unique occasions that a sentence will be so grossly disproportionate that it violates s. 12: Steele v. Mountain Institution, [1990] 2 S.C.R. 1385.

Reasonable Foreseeability

[12] The “reasonably foreseeable” test asks what situations may reasonably arise, not whether such situations are likely to arise in the day-to-day application of the law. This second stage of the analysis must be based on “imaginable circumstances which could commonly arise in day-to-day life”: R. v. Goltz, [1991] 3 S.C.R. 485, at p. 516.

[13] The focus must be on “reasonable hypothetical circumstances”, as opposed to “far-fetched or marginally imaginable cases.” As explained in Nur, at para. 57:

The question is simply whether it is reasonably foreseeable that the mandatory minimum sentence will impose sentences that are grossly disproportionate to some people’s situations, resulting in a violation of s. 12.

Such an inquiry must be grounded in common sense and experience. Only situations that are remote or far-fetched are excluded. The inquiry may take into account personal characteristics, but should avoid using personal features to construct the most innocent and sympathetic case imaginable: Nur, at paras. 73-76.

The Interaction between Parliament and the Courts

[14] While judges are responsible for determining whether a particular punishment exceeds the constitutional limits set by the Charter, the Supreme Court cautioned in Smith that courts should nevertheless be “reluctant to interfere with the considered views of Parliament” (para. 48). It adopted Borins J.’s statement in R. v. Guiller, Ont. Dist. Ct., Sept. 23, 1985, unreported, at p. 15, “It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed” (para. 48).

[15] However, more recently, the Supreme Court decided the constitutionality of mandatory minimum sentences under a provision of the CDSA. Despite the warnings in Smith, McLachlin C.J., writing for the majority, alerted judges to the Court’s concern that the duty to apply a mandatory minimum sentence may conflict with the duty to impose a Charter-compliant sentence: R. v. Lloyd, 2016 SCC 13 at para. 1.

[16] In Lloyd, the Supreme Court recognized that:

The wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate (para. 24).

[17] If a mandatory minimum sentence “appl[ies] to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people”, it is “vulnerable to constitutional challenge… because such laws will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional” (Lloyd, at para. 35).

Does Section 7(2)(b)(i) of the CDSA Contravene Section 12 of the Charter?

Stage 1: The Particularized Inquiry

[18] At the first stage of the analysis, the question is whether a six-month sentence of imprisonment is grossly disproportionate given the circumstances of this offence and this offender. The Ontario Court of Appeal in R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, aff’d 2015 SCC 15, [2015] 1 S.C.R. 773, identified a number of factors from the case law that may inform the gross disproportionality analysis, both as it applies to the particular accused and to reasonable hypotheticals:

(a) the gravity of the offence; (b) the personal characteristics of the offender; (c) the particular circumstances of the case; (d) the actual effect of the punishment on the individual; (e) the penological goals and sentencing principles reflected in the challenged minimum; (f) the existence of valid effective alternatives to the mandatory minimum; and (g) a comparison of punishments imposed for other similar crimes (para. 78).

[19] The parties agreed that a proportionate sentence for the offence in the case at bar, or as described in Lloyd, a “rough scale of the appropriate sentence” (para. 23) would be in the range of 90 days to 12 months.

[20] It was common ground that considering the aforementioned factors, the applicant could not have succeeded in establishing that the mandatory minimum sentence would result in a grossly disproportionate sentence in his case.

Stage 2: The Reasonable Hypothetical Offender

[21] The applicant asks the court to find s. 7(2)(b)(i) unconstitutional on the basis of its effect on the reasonable hypothetical of:

(a) an “over the licence limit offender”, as accepted by the court in R. v. Vu, 2015 ONSC 5834, 126 W.C.B. (2d) 178; (b) what I will describe as a “generous university student”, the hypothetical accepted by the court in R. v. Elliott, 2016 BCSC 393; and/or (c) what I will describe as a “caring migraine-sufferer”, the hypothetical accepted by the court in Elliott.

[22] The question at this stage is whether the reasonably foreseeable application of the mandatory minimum sentence may impose cruel and unusual punishment on other offenders. Both Crown and defence agree that established jurisprudence from the Supreme Court mandates that the s. 12 Charter analysis must focus on the particular provision under which the offender is to be sentenced: Goltz, at p. 519.

[23] Nur emphasizes that the enquiry looks to “the law’s reasonably foreseeable impact” (para. 61). The inquiry must be grounded in judicial experience and common sense (para. 62).

The “over the licence limit” scenario

[24] The “over the licence limit” scenario, accepted as a reasonable hypothetical by the court in Vu, involved a commercial marijuana producer who accidentally grew six plants more than the 500 permitted under his licence. I have reviewed the case. I respectfully disagree that this is a reasonable hypothetical. I accept the Crown’s position that the “over the licence limit” scenario in Vu fails to appreciate the distinction between trafficking in the lawful medical marijuana regime and trafficking in the illicit market.

[25] The definition of trafficking under the CDSA is “to sell, administer, give, transfer, transport, send or deliver the substance… otherwise than under the authority of the Regulations” (emphasis added). In order to trigger the mandatory minimum sentence for the production of six to 200 plants, the Crown would have to prove beyond a reasonable doubt that the excess production was “for the purpose of trafficking”, as defined by the CDSA. The section includes what is described in Elliott as a “safety valve” to ensure that only illegal commercial operations are captured. If the licenced grower unintentionally exceeded the limit permitted by his or her licence, he or she would not have the necessary mens rea to traffic “otherwise than under the authority of the Regulations”. The Crown could not prove that the production of the extra six plants was for the purpose of trafficking to an illegal market if there was the honest counting mistake on which the reasonable hypothetical was based in Vu.

[26] I find that the “over the licence limit” hypothetical person relied on by the applicant would not be subject to the laws of trafficking. As such, this is not a reasonably foreseeable hypothetical that can be relied upon to invalidate this provision of the legislation.

The “generous university student”

[27] The defence relies on the scenario of a 19 year-old university student growing six plants in his basement apartment to use and share. As noted earlier, this scenario was accepted by the court in Elliott as a reasonable hypothetical.

[28] The Crown argues that this hypothetical is far-fetched, relies on an extreme fact scenario of the most innocent and sympathetic hypothetical offender and fails to account for possible defences that would prevent the triggering of the mandatory minimum sentence, such as the defence of joint possession and the requirement that the Crown prove, beyond a reasonable doubt, that the entire six plants were produced for the purpose of trafficking.

[29] I do not agree with the Crown’s position. I find that this is not a far-fetched scenario. This is not “the most innocent and sympathetic hypothetical offender”; it is no more sympathetic than that accepted by the Supreme Court in Lloyd. The defence of joint possession would not be available to the student who grows for himself and other, non-specific persons. According to s. 2 of the CDSA, which imports by reference the definition of “possession” in s. 4(3) of the Criminal Code, a finding of joint possession requires the knowledge and consent of the other persons. Where these persons are unspecified, such a defence would fail. Therefore, a generous student growing six plants to share with various, unidentified persons could not avail him/herself of the defence of joint possession. In addition, the reasonable hypothetical in Lloyd involved a “sharing” scenario, which was not rejected by the majority on the basis that it would have constituted joint possession. Likewise, I fail to see how that student could argue that only certain of the plants were produced for the purpose of trafficking. In such a scenario, where the student intended to share an unspecified amount with non-specific persons, I am satisfied that the Crown could prove beyond a reasonable doubt that the six plants were produced for the purpose of trafficking.

[30] S. 7(2)(b)(i) “casts its net” too broadly: it applies, as in Lloyd, “irrespective of the reason for [trafficking] and regardless of the intent to make a profit” (para. 30). The provision applies to persons producing for the purpose of trafficking any number of plants from six to 200. The provision catches not only those involved in serious instances of production for the purpose of trafficking—the legislation’s “proper aim”—but also “conduct that is much less blameworthy” (para. 27). These features of the provision make it applicable in a large number of situations in which the offenders’ blameworthiness varies greatly.

[31] It is reasonably foreseeable that the provision’s reach would extend to the university student described above. This hypothetical offender is “far removed from the offender who produces a number of harvests every year for sale on the black market for commercial gain” (Elliott, at para. 65). His conduct is far removed from the serious drug crimes that the legislation is targeting and from the type of criminal behaviour that Canadians find unacceptable.

[32] If one’s framework is the length of other mandatory minimum provisions, a six-month sentence may not appear “so excessive as to outrage standards of decency” at first blush. However, borrowing from the language in Lloyd, I find that “most Canadians would be shocked to find that such a person could be sent to prison” for six months. I agree with Fenlon J. in Elliott that:

[A] six-month mandatory jail sentence for a student… in these circumstances without a prior criminal record would… be grossly disproportionate to the offence, even taking into account the penological goals of Parliament and the moral gravity of using and sharing illicit drugs. Since trafficking includes giving even without commercial profit, the addition of the requirement that the Crown prove trafficking before triggering the mandatory minimum does not… sufficiently restrict the type of offender and offence falling within the reach of s. 7(2)(b)(i) of the CDSA (para. 68).

[33] A mandatory six-month sentence in the case of this reasonable hypothetical would be grossly disproportionate. As such, s. 7(2)(b)(i) will sometimes mandate sentences that violate the constitutional guarantee against cruel and unusual punishment in s. 12 of the Charter. The ability of the Crown to exercise its discretion not to proceed does not save a provision that on its face breaches the Charter: Nur, at paras. 85, 88, and 89; Lloyd, at para. 34.

[34] Given my finding, I need not consider the hypothetical of a “caring migraine-sufferer”.

Conclusion

[35] Accordingly, I find that s. 7(2)(b)(i) of the Controlled Drugs and Substances Act violates s. 12 of the Charter.

[36] In the event that I concluded that the provision in question violated s. 12 of the Charter, the Crown has requested an opportunity to consider the court’s ruling and to make further submissions on whether the infringement can be justified as a reasonable limit prescribed by law under s. 1 of the Charter. The matter is returnable May 13, 2016 at 9:30 a.m. for further submissions.

QUINLAN J. Released: May 3, 2016