Evidence of meeting #26 for Justice and Human Rights in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was ruling.
A recording is available from Parliament.
4:25 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
So, if I am charged under section 7, of producing a plant--
You understand what I am getting at.
4:25 p.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
Yes, I do.
We were talking about trafficking. We were talking about giving a plant to someone. When you give someone a plant, that is trafficking. However, if you are talking about an individual charged with producing or growing only one plant, there is no minimum sentence, because it is not for the purpose of trafficking. Unless you tell me that the plant was grown for trafficking purposes, there is no minimum sentence. A minimum sentence only applies if someone produces between one and 200 plants for the purpose of trafficking. That is what the bill says.
4:25 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
If I were charged with producing one plant, I could be charged with production of one plant and receive a six-month sentence.
4:30 p.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
I am sorry, but if you look closely at the wording in this provision of the bill, which is subparagraph 7(2)(b)(i), as amended, it reads: “imprisonment for a term of six months if the number of plants produced is less than 201 and the production is for the purpose of trafficking,”.
It is an absolute condition that the grower's intention has to be to produce plants for the purpose of trafficking. But if that is not the case, no minimum sentence applies.
4:30 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
I have not finished yet, Mr. Chairman. What he says is interesting. I would have liked to receive that answer earlier.
As I understand it, then, if he produces plants for the purpose of trafficking, the minimum would be three kilos.
4:30 p.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
Paragraph 7 does not refer to kilos or weight; rather, it refers to the number of plants. In your example, he would have to produce fewer than 201 plants for the purpose of trafficking in order for the six-month minimum sentence to apply.
4:30 p.m.
NDP
Libby Davies NDP Vancouver East, BC
I'd like to ask Mr. Saint-Denis a question also to try to clarify this. Trafficking means to give, deliver, or to transport. This particular clause talks about production for the purpose of trafficking, and it imposes a minimum sentence of six months if there are fewer than 201 plants.
If we had a situation where a young person were moving from one apartment to another, and thus they were transporting, and they were stopped by the police because their car was overloaded, or something, and they happened to have a few marijuana plants in there. Maybe it was a silly thing to have done, but maybe that's what they did. But would they not be hit by this, because trafficking includes transport?
4:30 p.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
Well, I guess the question then is, what offence are we talking about here?
4:30 p.m.
NDP
Libby Davies NDP Vancouver East, BC
It's what's listed in the bill here: “the production is for the purpose of trafficking”. If it's under 201 plants, you get hit with a six-month minimum.
We're trying to think of who's going to be captured by this. I've given you one scenario of a person moving. They put their plants in the back. They get stopped not because of that but because they've got too much in the car, or whatever. I don't know. They look suspicious or something. They're transporting.
4:30 p.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
That's correct. If they're transporting cannabis, the transportation itself is part of the definition of trafficking, so they would be charged with trafficking.
4:30 p.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
No, because the traffic offence is concerned with weight. Unless the combined plants weigh more than three kilograms, there would be no minimum penalty, so there would be no minimum penalty. If it's one or two plants.... Since there is no standard average weight for a plant, you get plants of different sizes depending on circumstances and so on, and it's difficult to tell you--
4:30 p.m.
NDP
4:30 p.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
That's correct.
4:30 p.m.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
In fairness to both Monsieur Lemay and Ms. Davies, I'm not sure if I'm clear on your answer. You seem to have given two different answers, so let's be clear.
Let's get off this idea of young people moving. Let's just say you've got one plant. You've grown the plant. You have possession of a plant. You have a plant. It can be proven one way or another that it was for the purpose of trafficking. Are you saying there's no six-month minimum unless that plant weighs three kilograms?
4:30 p.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
We have to be clear here about what offence we're looking at. If we're looking at the production offence, if the crown or the prosecution can demonstrate that the one plant was being cultivated for the purpose of trafficking, then the minimum penalty will apply, but you have to be able to demonstrate that. You have to have some kind of evidence to show that the motivation for the cultivation of that one plant was for the purpose of trafficking it.
4:35 p.m.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
I hate hypotheticals--I'm sorry, I do--but I'm going to use one: a person who was producing a whole bunch of plants got rid of a whole bunch of plants somehow. He had a history, and the police can go in and prove that this guy had a business of producing plants, but at the time of the investigation, there was only plant there. They could have indices of trafficking and there could be an offence of trafficking proven, and the person would get six months for producing one plant. That's the direct answer, right?
4:35 p.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
No, it isn't. My answer was that if we can demonstrate that the production of that one plant--not prior cultivation incidents, but that one plant--was for the purpose of trafficking, then the six months could apply.
4:35 p.m.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
A person can grow one plant, and if it's proven that it's for trafficking purposes, he gets six months. There's no discretion for the judge whatsoever.
4:35 p.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
That's correct.
