Bill C-15 imposes mandatory minimum jail sentences for a variety of CDSA (Controlled Drugs and Substances Act) offences including the sale and production of cannabis. It also raises the maximum penalty for producing cannabis from 7 years to 14 years. This article will focus on the impact on cannabis producers and distributors, though we should be aware that the negative consequences of this Bill will affect all Canadians.
The Bill, proposed by the Conservative minority government in the House of Commons and supported by the Liberals and New Democrats, was amended, slightly, by the Senate Committee that studied it. While the Committee heard from a lot of witnesses, the amendments that were adopted tell me that they didn’t hear what those witnesses had to say. I am profoundly disappointed in the members of the Committee who, at the very least, could have amended this Bill to protect medical cannabis producers and sellers. For a time it seemed they would – I was asked specifically to write amendments for that purpose. They were not even debated. The Committee could also have amended the Bill to restore judicial discretion to depart from mandatory sentences in appropriate circumstances (as it did for aboriginal offenders). That didn’t happen either.
The one amendment that affects cannabis removed the mandatory sentences for between 6 and 200 plants if, and only if, no aggravating factors apply. Let me repeat that to be clear: the Senate amendment did not remove mandatory jail time for under 200 plants. It only removed jail as an option if none of the aggravating factors are present.
Unfortunately the aggravating factors are so broad as to make the amendment nearly meaningless. Mandatory minimums will still be imposed for producing between 1 and 200 cannabis plants for the purpose of trafficking if there were weapons used or found, the location was booby trapped or rendered unsafe, the production created a danger to the public in a residential area or the property of a third party (ie, a rental unit) was used in the offence. These four factors are called “aggravating factors” and they also increase the mandatory sentences if more plants are being grown.
On a practical level, this will impact renters disproportionately. Also, when was the last time a cannabis production site in a residential area was not considered to be a danger to the public? Prohibitionists have mounted a decade-long propaganda war that has successfully convinced the public that cannabis can only be produced unsafely – something we know is completely false but that has become dogma. This means that, if you grow cannabis to sell (or even give away), in order to avoid the impact of the mandatory sentences you basically have to do it on rural property that you own. Oh, and by the way, if you do it on property you own you run the very real risk that the government will seek to forfeit that property, in some cases without even needing to convict you of the crime!
If you produce between 1 and 200 plants for the purpose of trafficking and one of the aggravating factors is present, you will be sentenced to nine months in prison.
If you produce between 201 and 500 plants for any purpose you will be sentenced to one year in prison. If any of the aggravating factors are present, the sentence is increased to eighteen months.
If you produce more than 501 plants for any purpose you will be sentenced to two years. If any of the aggravating factors are present, the sentence is increased to three years.
Hash, resin, oil, cookie producers
If you produce anything in Schedule II to the CDSA (which contains essentially all of the cannabis derivatives including resin) for the purpose of trafficking you will be sentenced to one year in prison. If any of the aggravating factors are present, the sentence is increased to eighteen months.
If you sell cannabis (or any Schedule II substance) in amounts greater than 3 kilograms, or possess such amounts for the purpose of trafficking, you will be sentenced to a mandatory year in prison if you commit the offence in connection with a criminal organization, threaten or use violence in committing the offence, carry, use or threaten to use a weapon in the commission of the offence or if you were convicted of, or served a term of imprisonment for, a “designated substance offence” in the last 10 years. “Designated substance offences” are basically production and sale offences. Note that the Senate Committee changed the last aggravating factor to read “convicted of and served at term of imprisonment of at least one year, or served a term of imprisonment for a ‘designated substance offence’”.
The sentence is increased to two years if you commit the offence in or near a school, on or near school grounds or in or near a place usually frequented by people under 18, in a prison or on prison grounds, or if you involve a person under 18 in committing the offence.
The purpose of trafficking: what does it mean?
One of the prerequisites to mandatory sentences for producing less than 201 plants or for producing hash and byproducts is that it be done for the purpose of trafficking. This will have to be proven beyond a reasonable doubt at trial or at a sentencing hearing. The typical manner of proof is to put forward evidence that suggests trafficking: score sheets, scales, quantities of cash, multiple cell phones, baggies and the like. Obviously having those things at your production site will significantly increase your chances of facing a mandatory jail sentence.
Another method is to use a police “expert” witness to give an opinion based on the various circumstances. Police will, for example, typically assign average yields to plants and multiply that yield by the number of plants found to come up with an expected harvest. The witness will then assign values to that harvest at per gram (“street”) and per pound prices. The officer then opines on the average consumption habits of even heavy, chronic users and suggests that the harvest will produce so much cannabis that the person could not possibly use it all before it goes bad. These things, according to the expert, support a conclusion that the purpose of producing the cannabis was to sell it.
It is certainly likely that people accused of producing for the purpose of trafficking will need to find and call rebuttal experts to seek to poke holes in the police theories. Police often, for example, fail to take into account things like sexing the plants, crop failure, genetic predisposition on yield, harvest fluctuation due to manner of growth (ie, 200 plants in a “sea of green” garden will yield substantially less cannabis than 200 growing 8 feet high in a warehouse) and other factors. They also tend to underestimate the ability of people to consume vast amounts of cannabis, or the different methods of ingestion that affect how much of the plant is used.
Other aspects of C-15
One of the more pernicious, and little discussed, aspects of C-15 is its effects on the availability of discharges (either absolute or conditional) and Conditional Sentence Orders.
A discharge is a sentencing option that allows the finding of guilty but no entry of a criminal conviction. Absolute discharges take effect immediately, at sentencing. Conditional discharges take effect after the individual completes certain conditions, typically spending a period of time on a sort of probation.
Discharges have often been used to give people second chances, or to dispense with the need for a conviction when it is in the interests of justice to do so. I have often had success obtaining discharges for persons growing cannabis for medicinal purposes, or for people growing a few plants for their own personal use.
Unfortunately, if C-15 passes, those days are over. Discharges are not permitted if the offence is punishable by either a mandatory minimum sentence or if a 14-year sentence is available. Cannabis production will now carry a 14-year maximum (up from 7), meaning that even personal non-commercial producers – even those not subject to the mandatory sentences – will no longer be discharge-eligible.
A Conditional Sentence Order (CSO) is a custodial sentence served in the community. The sentence length is set by the judge, though it must be under 2 years, and so are the conditions. Conditions can run the gamut from very strict 24-hours-a-day house arrest to much less restrictive curfews. A CSO is imposed in situations where the judge feels that the offence was serious enough to merit custody but the offender is not a risk to the community and the CSO fits with the principles of sentencing.
I’ve been successful in obtaining CSO dispositions even for persons charged with very large commercial production when, for example, there was no evidence of violence, no involvement with organized crime, the person was a first time offender with a family, job and good community involvement. Judges are often receptive to giving people a chance to continue contributing to their family and community instead of incarcerating them for growing cannabis.
Unfortunately, that discretion has also been stripped away by C-15. A CSO is not available for offences that carry mandatory minimum sentences.
What does it all mean?
One of the most ironic effects of C-15 will be to drive “mom and pop” growers out of the business. This will inevitably mean that organized crime will further solidify its grip on cannabis production and distribution. Despite propaganda to the contrary, the reality of cannabis production is that there are a whole lot of people engaged in relatively small scale production for distribution to friends and acquaintances. Organized crime certainly operates the massive production sites: much of this product is destined for the export markets. But by and large the cannabis that ordinary Canadians buy and use comes from small-scale local producers and is sold to them by people they describe as friends. That is probably going to change.
Another ironic effect will be an increase in the number of production sites. The market will respond to this legislation. Not by going away – that idea is lunacy. But, instead, organized criminals (who have substantial financial resources due to prohibition) will avoid the most harsh mandatory sentences by (a) buying properties to avoid the “rental property” aggravating factor; and (b) establishing many smaller production sites (with larger plants) to avoid the harsher penalties for over 200 and 500 plants.
A final irony comes when comparing the sentences for importing with that for production. Importing any amount of cannabis (from one joint to a hundred thousand pounds) will carry a mandatory minimum sentence of one year in jail. This means that the mandatory minimum sentence for importing cannabis is less than that imposed for growing 501 plants. Whether this will increase the import trade remains to be seen as these are mandatory minimums and importers of any significant quantity almost always receive penalties substantially longer than one year in prison.
Medical cannabis producers and sellers will be impacted severely by this legislation. It was not unusual to obtain discharges for people truly motivated by compassion. That will no longer be an option. If police decide to take enforcement action against Canada’s compassion clubs a lot of good, caring, compassionate people will be facing long jail terms.
People that produce hash and cannabis products such as cookies will also face severe penalties – production of even one gram of hash or a dozen cookies, if made to sell or even to give away, will carry a minimum one year sentence and possibly more if you are baking the cookies in a rental property.
All told, the effects of this legislation on the cannabis community should not be underestimated. Canadian enjoy cannabis: we consume an estimated 7 – 10 million grams of it each week. Someone has to grow, process and sell it to the over two million regular consumers. Because of Bill C-15, it is likely that the exact people we don’t want controlling this marketplace will be able to tighten their grip perhaps to the point of a virtual monopoly. This bodes ill for all Canadians.
Kirk Tousaw is barrister and social justice advocate, the Chair of the Drug Policy Committee of the British Columbia Civil Liberties Association and is a member of its Board of Directors, and the executive director of the Beyond Prohibition Foundation. Read his blog on Cannabis Culture.