Cannabis charges being stayed due to court delays

A supreme court judge has entered a stay of charges against a man recently convicted of cannabis cultivation in Chilliwack, BC because the case took too long

A supreme court judge has entered a stay of charges against a man recently convicted of cannabis cultivation in Chilliwack, BC because the case took too long. Over sixty months passed between the charge to the verdict.

The Honourable Justice Grist reviewed the case of R. V. Gerald Allan Chappell, in which the defendant alleged a Canadian Charter of Rights and Freedoms section 11(b) breach for the case not coming to a timely decision.

In BC, Chappell’s grow operation had been searched January 15, 2012, and charges were laid for cultivating marijuana and possession of marijuana for the purposes of trafficking on May 11, 2012. He was found guilty of those charges on May 23, 2017.

In reviewing the case, Justice Grist noted there were considerable delays, both from the crown as well as the defence, including several adjournments.

Of the 60.5 months the case took to resolve, the judge found that 19.5 months were attributed to to time waived by the defendant or to “defence inordinate delay,” three months to unavoidable delay due to witness unavailability, and one and a half months to inordinate Crown delay. This accounting, wrote the judge, leads to an assessment of institutional delay of 36.5 months and a total of 38 months attributable to court procedures and the fairly minimal Crown delay.

The judge stated this period is “clearly” beyond the 30 month proscription set out in the R. v. Jordan case from 2016 1 S.C.R. 631 [Jordan], attributing ‘procedural complacency’ to the delay.

“Notwithstanding this, a simple comparison to the circumstances presented in Jordan, Williamson, and Dass determines the delay in this case in like fashion was beyond what Canadian society can accept as reasonable in all of the circumstances. Put simply, procedural complacency of this order cannot be saved by a more forgiving transitional Morin analysis in light of the 38‑month net delay. Accordingly, a stay is entered.”

Also citing Jordan, the Supreme Court of Canada just re-affirmed today that timelines on criminal trials are to be limited to 18 or 30 months, with no exceptions.

A similar case from New Brunswick today also affirmed a lower court ruling to stay drug trafficking charges against a man, including marijuana, for taking too long to go to trial based on the same Charter S. 11 (b) challenge.

Similar to the Chilliwack case, the supreme court in the New Brunswick case also ruled that the justice system had a responsibility to move forward quickly, even taking into account delays by the defence.

“Under the Jordan framework,” the court said, “every actor in the justice system has a responsibility to ensure that criminal proceedings are carried out in a manner that is consistent with an accused person’s right to a trial within a reasonable time.”

In another BC cannabis growing case earlier this week, a court in Kelowna also threw out a mandatory minimum sentence for cannabis production where a man had been charged with being part of a large 195-plant operation in which he was a low-level employee. The court ruled that a six-month sentence was too extreme and should be reserved for someone involved in a more complex operation.

“I note that a six-month sentence is typical for a first-time trafficker involved in a relatively sophisticated commercial dial-a-dope operation. Imposing that sentence on a 19-year-old student or a migraine sufferer who is growing six plants intending to share them with friends would, in my view, be abhorrent to most Canadians,” writes the sentence judge.

Instead of jail time, the accused received a suspended sentence with two years probation.

In 2015, an Ontario judge also struck down a six-month minimum jail term for growing between six and 200 marijuana plants for the purpose of trafficking. Later in the same year, a judge in Quebec gave a man accused of growing 30 marijuana plants a $1 fine. The Crown had sought 90 days in jail.

Mandatory minimums for cannabis were passed under the previous Harper government. The current Liberal government has committed to legalizing cannabis, but have emphasized that existing criminal charges against cannabis are still in force. Recently released figures from Public Service Canada show over 15,000 arrested for personal possession since the Liberals won a majority in the Oct 2015 election.

Featured image by Khalid Mahmood.

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