Last week an Ontario judge struck down the Conservative government’s mandatory minimum sentence of six months in jail for growing between six and 200 marijuana plants for the purpose of trafficking.
Every time this happens, and it happens all too frequently, I get an ever so brief feeling of smug satisfaction. That is quickly replaced, however, with anger that this government intentionally passes these laws even though they are destined for the unconstitutional bin.
It costs a lot of money to pass legislation. It ends up costing even more when the Conservatives double down and appeal these decisions. And they always do.
This is the problem with governing by ideology.
In another sweeping indictment of Conservative policy, legislators in the United States completed a bi-partisan deal in the Senate last week to eliminate mandatory minimums in that country.
“After a legislative drive in the 1980s and 1990s to get tough on drug crime and halt the spread of crack cocaine, the new legislation is seen by supporters as an overdue corrective response to a mandatory sentencing program that has punished offenders out of proportion to their crimes, sapped resources from law enforcement and deprived communities of people who could contribute and be productive if given a chance,” wrote Carl Hulse and Jennifer Steinhauer in the New York Times.
It is no secret that Stephen Harper is a huge fan of Ronald Reagan. You can see it in everything he does from tough-on-crime to the ridiculous, and failed, policy of trickle-down economics.
Also last week, I was appalled to see the Conservatives get a boost in the polls over the racist, dog-whistle politics of fear engendered in the niqab hysteria. Pollsters attributed this to softening of NDP support in Quebec over Tom Mulcair’s correct and principled defence of religious rights.
Getting back to the latest legal setback for the Harper ideology, in an interesting twist, Duc Vu, the 42-year-old who brought the constitutional challenge to the court, may end up serving a two-year mandatory minimum yet.
Duc Vu was arrested in a residential grow-op where police found 1,020 marijuana plants and a hydro bypass so the house could steal large amounts of electricity.
“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,” wrote Justice Bruce Durno of the Ontario Superior Court.
He based the ruling on something called the “reasonable hypothetical,” i.e., that even in the absence of case law, it is not unreasonable to envision a hypothetical case in which someone might make a legitimate mistake. Durno cited another case he is currently on in which a man with a licence to grow 122 plants is facing charges for having about twice that number.
There is another case from B.C. where a judge discharged a sick man who was caught growing 414 plants, although that jurist did not strike down the law.
Durno only struck down the mandatory minimum for less than 200 plants, though. Lawyers for both defence and Crown are expected to be back in court in November to argue the merits of striking down the mandatory minimums for 201 – 500 plants (one year) and more than 500 plants (two years) as well.
Duc Vu has a previous conviction for which he served four months. Even if the judge tosses all the mandatory minimums, he could still face serious time, so despite winning he still might lose.
By then, I just hope beyond hope that we have a new government in Ottawa that respects the rule of law and that we will be well on our way to wresting control over sentencing back from Parliament into the hands of judges where it belongs.
