Phillip Francis McGee didn’t deny that he was a partner in a grow-op with more than 600 marijuana plants in his Surrey rental home.
When it came time to be sentenced in 2016, B.C. Supreme Court Justice Terence Schultes accepted evidence that McGee likely received $20,000 per crop.
The RCMP told the court that two previous crops had been grown by the time McGee was busted in 2013.
But Schultes refused to impose the mandatory minimum prison sentence of three years years on the 60-year-old, who had no prior criminal convictions.
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According to Schultes’ ruling, this violated section 12 of the Canadian Charter of Rights and Freedoms.
It declares that everyone has the right not to be subjected to any cruel and unusual punishment.
Instead, the judge imposed a 10-month sentence.
Today, a three-judge B.C. Court of Appeal panel upheld that earlier B.C. Supreme Court ruling that a three-year sentence for growing more than 500 marijuana plants violates the charter.
The panel in B.C.’s highest court declared that Sections 72(2)(b)(v) and 72(2)(b)(vi) ‘are declared to be inconsistent with s. 12 of the Charter‘.
This means that no one with more than 500 pot plants who’s charged in B.C. will face this mandatory minimum sentence of three years unless the ruling is overturned in the Supreme Court of Canada.
And that appears highly unlikely because that the Supreme Court of Canada almost never hears cases when the appellate court ruling is unanimous
‘Mr. McGee has successfully completed his 10-month sentence,’ wrote Justice Sunni Stromberg-Stein in today’s decision. ‘In my view this sentence is at the very low end of the range suggested in the case authorities.
‘At a very minimum a 12- to 15-month sentence should have been imposed in the circumstances of this case, where Mr. McGee, a principal in an illegal grow operation with more than 500 plants, rendered a rental house uninhabitable in order to profit from the illegal production of marihuana and has made no restitution to the innocent property owners,’ the judge continued. ‘These are aggravating factors which, in my view, the sentencing judge acknowledged, but failed to give sufficient weight. However, as I have noted, the Crown has not argued the sentence is unfit beyond that the mandatory minimum should have been imposed.’
Earlier this year, the B.C. Court of Appeal struck down the mandatory minimum sentence of six months in jail for those who grow between six and 200 plants for the purpose of trafficking.
That was because this penalty also infringed on the charter right not to be subjected to any cruel and unusual treatment or punishment.
While in opposition, Justin Trudeau voted for Harper government legislation that imposed mandatory minimum sentences on marijuana growers.
In 2015, however, Trudeau indictated that he might roll back some mandatory minimums.
Earlier this year as prime minister, Trudeau asked Justice Minister Jody Wilson-Raybould to conduct a review of this issue.
