Canadian Judge Strikes Down Pot Grower’s Mandatory Minimum Sentence as ‘Unconstitutional’

By Justin Ling

Photo via Flickr user Mark

Because Hai Thi Pham was growing 1,110 marijuana plants in a high-rise building in north west Toronto, in an apartment she didn't own, she should have received a mandatory minimum sentence of two—maybe three—years in prison.

But an Ontario judge called that sentence cruel, unusual, and unconstitutional this week, adding another crack in the dam of Stephen Harper's trademark mandatory minimum sentences for drug crimes. 

Justice Michael Code of the Ontario Superior Court tore through the Criminal Code sentences for marijuana cultivation. 

Under Canadian law, there are a series of escalating punishments for growing pot.

If you're growing 200 or fewer plants for the purposes of trafficking, the mandatory minimum is six months. A BC court declared that sentence unconstitutional in March. If you're growing between 200 and 500, it's one year. That law is still in force. 

The two-year mandatory minimum applies if the grow-op consists of more than 500 plants, and the three year minimum applies if, on top of the grow-op, the grower is using property that belongs to someone else, there's a public safety hazard presented to the public, or if they booby trapped the area. 

Police contended that the 45-year-old mother of two, who has worked her entire life as a seamstress, and that the grow-op she was working on in unit 1006 "posed a public safety hazard...because of the risk of other crimes associated with grow-ops (such as robberies and break-ins)," and because of the threat of fire and airborne toxic mold. 

Code ripped through the idea that Pham was knowingly jeopardizing anyone, or knowingly posed any sort of public risk. In fact, the court decided she was probably just a gardener. 

The judge went on to note that growing marijuana, under Canada's medical marijuana regime, is a perfectly legal activity, so long as you have a license. The absurdity of licensing and regulating an activity on one hand, and punishing it with a two-year jail sentence on the other, was grossly disproportionate, Code ruled. 

The court underscored that these mandatory minimums, especially in this case, remove a judge's ability to use their discretion to come to a reasonable sentence. 

And that's what Code did. Weighing all the facts of the case, and Pham's mental state—the she said she suffered post traumatic stress disorder and depression resulting from her arrest—Code sentenced her to 10 months in prison, followed by 18 months probation where she would be required to seek psychiatric help.