Court’s decision to strike down mandatory minimum is important

An Ontario judge’s decision to strike down the six-month mandatory minimum jail term for growing six to 200 marijuana plants for the purpose of trafficking – one of the Conservative government’s signature drug laws – is an important recognition of the individual circumstances that bring each accused person before the courts, says Toronto criminal lawyer Roots Gadhia.

“Judges are tasked to see the individual and the facts that are either mitigating or aggravating in each case and apply a just and reasonable sentence that does not become punitive or draconian,” she tells

Taking these individual circumstances into account is a fundamental part of our justice system, says Gadhia.

The ruling is the outcome of a constitutional challenge brought forward by a man who pleaded guilty to working in a grow-op, reports the Globe and Mail. Duc Vu, 42, of Brampton, Ont. argued the minimum sentences for growing marijuana were “cruel and unusual punishment” under the Charter of Rights and Freedoms, says the article.

Justice Bruce Durno agreed with him.

Mandatory minimum sentences have been a major part of the Harper government’s tough-on-crime agenda, which has led to the creation of some 60 mandatory minimum prison terms for drugs, guns, sex offences and other crimes, says the article. There have also been a number of high-profile court challenges.

This latest ruling comes on the heels of a Supreme Court of Canada decision, R. v. Nur, in April, which struck down a three-year minimum prison term for illegal gun possession.

Durno‘s reasoning in the Vu case was similar to that of the Supreme Court in that those individuals who have licences for legal actions, such as growing medical marijuana, may be caught up by minimum sentences, even in circumstances where they make a mistake and grow more than they are permitted, says the article.

While the Vu ruling only applies in Ontario, it could influence other decisions if similar Charter challenges are launched in other provinces, says the newspaper.

Gadhia says the ruling on the Vu matter is a timely assertion that judges give voice to Parliament’s laws and “although not permissible to altogether dispense with Parliament’s intentions, judges bear the responsibility of recognizing each matter on a case-by-case basis.”

She says it’s a reminder that laws cannot “compartmentalize people into boxes and categories.”

Gadhia says the Harper government’s mandatory minimums and The Truth in Sentencing Act disregard the individual, thus failing to understand the human element.

“Justice Durno in Vu and the SCC in Nur are not rewriting the law, but infusing it with understanding, compassion and the human element,” she says. “If our courts fail to do that, we all lose in the long run.”

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