BC Court of Appeal Inadvertently Answers Burning Question about Marijuana Legalization

One of the biggest questions that defence lawyers have about marijuana legalization has to do with marijuana amnesty and sentencing. Individuals who possess marijuana for personal use are still being charged in Canada. Their charges are still going to court.
Despite the fact that the Government has announced their intention to legalize marijuana, people are still leaving court with criminal records for marijuana offences, and some are receiving jail sentences.

​Frankly, I find this practice appalling.

Another interesting question that defence lawyers have posed about marijuana charges is in relation to the point at which the law changes. Can a person still be charged for prior unlawful possession of marijuana once marijuana is made legal? Or should all of those cases be dropped? What about changes in the sentencing structure for marijuana. Should people charged with possession or cultivation or trafficking offences get the benefit of the new sentencing regime where the new laws result in lesser or no penalties?

The BC Court of Appeal has inadvertently answered the question.

In R. v. Cadman the BC Court of Appeal was faced with an interesting question. Mr. Cadman committed some sexual offences in the 1990s. At that time, he did not qualify for a Conditional Sentence Order. That’s essentially house arrest.

By the time he was investigated and charged, Mr. Cadman was eligible to receive a conditional sentence. However, he was not found guilty under after the law changed a third time, again to eliminate the conditional sentence. After his conviction in 2016, he argued that he should be entitled to the benefit of the lowest sentence available during the process. This is consistent with Section 11(i) of the Charter which states that a person is entitled to the benefit of the lowest sentence if the law changes between when the offence was committed and when the sentencing took place.

Although this case may seem like a foregone conclusion, Section 11(i) is rarely used. The law, surprisingly, does not change sentences that fundamentally, that often. The Crown argued that the purpose of Section 11(i) of the Charter was to protect in circumstances where the sentences get higher, not lesser. The point, they argued, was to sentence people based on how they were informed about the law at the time, and that sentencing Mr. Cadman to a lesser sentence in his case would be contrary to the principles of justice and fairness.

The Court of Appeal disagreed.

Which answers our burning marijuana question. If the law changes substantially on sentencing for marijuana production, possession, and trafficking offences such that sentences that were previously unavailable become available then those who are currently in the system will benefit by having their cases decided under the new sentencing regime and can ask for a lesser sentence.

This principle will have a particularly interesting application when it comes to cases like production of marijuana where there are one or two plants, or where there is personal possession in the home of a small amount of marijuana. These will no longer be criminal offences, meaning that the lowest sentence available is no sentence at all. In practice, we may see the application of Section 11(i) of the Charter leading to absolute discharges for all offenders caught in this particularly unique period of time.

Of course, the law still requires a judge to impose a fit sentence. And so just because a lower sentence is available does not mean a person will be eligible to receive it. But there are a lot of good people who are currently facing the possibility of a criminal record or jail for personal possession of small amounts of marijuana. And this case is a beacon of hope for any who are still in the system when legalization happens.

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