KELOWNA – In what could be a precedent setting case, a man who admitted to growing more than 1200 marijuana plants in a Kelowna house is mounting a constitutional challenge to one aspect of Canada’s marijuana laws.
Under criminal code changes enacted in 2012, Shem Morgan Hanna is facing a mandatory minimum sentence of two years in a federal penitentiary.
His lawyer argues says that would amount to cruel and unusual punishment and therefore contravene Section 12 of the Canadian Charter of Rights.
“Furthermore, a person in these circumstances is not eligible for what they call a Conditional Sentence Order that’s served in the community. So this person will do hard jail time,” says Glenn Verdurmen.
The federal Crown prosecutors say prior to the 2012 implementation of mandatory minimum prison sentences for large size grow-ops, Hanna would likely have been sentenced to between nine and 15 months.
They argue that is not grossly disproportionate to a two year term and so is not cruel and unusual punishment.
Hanna’s case is testing uncharted legal territory. The lawyers were unable to find any previous cases challenging the marijuana mandatory minimum sentences.
“What the honourable judge finds in these circumstances will have a lot to do with how things proceed in the future. Perhaps parliament will react to that, I don’t know.” says Verdurmen.
After four days of submissions this week, the judge will hand down her decision in April.
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