Bill C-15 has passed in Canada. You will get 6 Months prison for one plant. ORGANIZE.

[mr noodles]

what i dont get is why rob nicholson is so fucking mad about this retarded bill amended or not .

maybe there a loophole we dont see yet that make nicholson and is legal team shit bricks like that and talk about a Christmas gift for pot growers like he did .

i am also very curious to see how this bill can be interpreted by good layers and the charter of rights .


and fatigues is an amazing writer , is knowledge is fantastic . stunning .

respect

 

[j6p]

what i dont get is why rob nicholson is so fucking mad about this retarded bill amended or not.

The Senate amendments forced it back to the Commons. This buys time, and if the Liberals fail to support C-15, it goes nowhere.

Could it be that Nicholson thought C-15 was a done deal, and did not anticipate this remote possibility. None of the Conservatives are happy about this.

The Canadian Press writes in confusion:
"It is not clear what will become of the changes when the amended bill is sent back to the Commons, where it must again be ratified before it can become law."

 

[Rakkasan]

.

 

[J. Greenstein]

One of the many absurd things about this bill...on one hand I think you can get caught with up to 3kg of MJ with intent to distribute and there is no mandatory minimum...yet growing an oz or two in your apartment without intent to distribute gets you 9 months. So it is ok to deal but not ok to grow your own and avoid dealers alltogether? Having 9k worth of pot to sell is ok but growing a few hundred bucks worth of personal gets you jail! It is appalling when you hear these pro C-15 politicians say this bill is about higher level dealers when it is really attcking the little guys, who aren't typically criminal or gang related.

 

[fatigues]

..yet growing an oz or two in your apartment without intent to distribute gets you 9 months. So it is ok to deal but not ok to grow your own and avoid dealers alltogether? Having 9k worth of pot to sell is ok but growing a few hundred bucks worth of personal gets you jail!

Not so.

If you grow less than 200 plants, the purpose must be for trafficking if any mandatory minimum is to apply. Growing less than 200 plants for personal use does not attract a mandatory minimum penalty.

If it is more than 200 plants, a trafficking purpose is presumed. Which is, in fairness, a reasonable presumption.

The mandatory minimums imposed by the Bill at the higher end is for political show. Reality is, a judge exercising his or her discretion is likely handing out a sentence stronger than the minimum imposed by C-15 anyways.

It's at the bottom end where the Bill becomes pernicious. A personal grower of, say, 20 or 30 plants is then charged and faces a possibility of a mandatory minimum if the Crown says that intend to prove a trafficking purpose at trial. That has a real effect on the way that plea bargains are dealt with because of C-15.

 

[Black Ra1n]

The Crown always pushes for trafficking....

 

[fatigues]

The Crown often pushes for trafficking....

I fixed that for you.

A charge of trafficking without any air of reality exposes the Crown to an action for malicious prosecution. In the USA, prosecutors can make all sorts of ridiculous charges and cower behind the standard for proving malicious prosecution. (Which, in the USA, essentially means you need a CSI style videotape showing the deed presented in court by Jesus Christ himself, in order to prove it.)

Americans are, in the end, pretty loonie on the whole law-and-order thing.

In Canada, it's nowhere near that hard to prove and the Crown can be called to account for laying a charge it had no factual basis to proceed with.

Most growers aren't sophisticated enough to push back on this; however, some are.

"Always" is too strong by half.

 

[headband 707]

Should we still write senators?

Should we still write senators?

I was wondering if it's too late to write all the senators or if it's passed that now? I have a big list of senators email addys lol peace out Headband707

 

[FrankDiscussion]

Hi fatigues,

Kirk Tousaw asked me to post this here. Let me know your thoughts.

-FrankD

---

Why "potential" danger is a residential area may catch even small, safe, production sites


My recent discussion of the possible impact of Bill C-15 stirred up some discussion about whether I'm overstating the risk to small producers in residential areas. Specifically, at least one thoughtful commenter remarked that I went "much too far" in suggesting that the aggravating factor "the production constituted a potential public safety hazard in a residential area" would broadly apply to most, if not virtually all, production in residential areas. Because this issue is critical to understanding just how pernicious this legislation is, I wanted to make a detailed reply.


Disclaimer:


There is clearly a difference between fact and opinion. Just as there is between a fully-researched and formed legal opinion and a short summary of legislation that hasn't been ruled upon or interpreted by any court. Nobody can really say how this aggravating factor will be applied and, indeed, it will be applied differently in each case depending on the particular facts and what the Crown is able to prove. And taking anyone's opinions on this legislation (or probably any legal issue) as fact rather than opinion is a bad idea - there are far too many pronouncements about the law that are made as if they are inarguably correct.


But I don't think that differentiation detracts from these points: (1) the prohibitionists have waged a largely successful public relations battle that has the public, and many courts, believing that all cannabis production is or can be dangerous; and (2) people producing cannabis in residential areas are at risk (and I think real, tangible risk) of attracting the mandatory minimum.


Here is what the Minister of Justice says about this Bill in relation to production:


"Large grow operations imply both future trafficking activity and exporting. Because growers use insecticides, fungicides, fertilizers and other volatile material, and frequently obtain their electricity illegally, marijuana grow operations pose a threat to public health and safety."http://www.justice.gc.ca/eng/news-nouv/nr-cp/2007/doc_32175.html


"Large" is open to interpretation, of course, but the slew of recent media on C-15 suggests that, among others, the Minister of Justice thinks that anything over five plants is large. Certainly 50 plants is going to be considered "large" by many Crown and judges.


Defence counsel will be able to point to Mr. Saint-Denis' (senior Justice witness) testimony to the Senate to suggest that their client's small, residential production was not the intended target of the legislation. Of course, medical producers are not the intended targets either but if one is convicted of producing 501 plants for purposes of selling to a compassion club the penalty is going to apply to them. Intent behind the legislation is not dispositive. And so if a judge believes that your small "quiet" grow constituted a potential danger - not an actual danger, but a potential danger - you are going to jail.


I should also point out that Mr. Saint-Denis' example of what "danger" was being targeted was a production site that used insecticide. And the Ministry is worried about "insecticide, fungicides, fertilizers." The purported risk of these supposed dangerous chemicals appears in many of the cases as well (I'll say more about the caselaw below). It is claim that shouldn't be examined uncritically. Most producers use insecticide. All use fertilizer. Some use fungicide. So if that is the "potential danger" many, many producers have a real risk of being caught by this legislation. Yet the insecticides and fertilizers typically used by small producers is identical in chemical constituents to that used by all manner of home gardeners and is available off the shelf in every garden store and nursery in Canada. Not to mention that used on every farm. Why that product somehow runs the risk of blowing up a house when used on cannabis but apparently not when used on Grandma's petunias is never mentioned, by Mr. Saint-Denis or any other witness.


Mr. Saint-Denis' testimony aside, and despite my disclaimer above that this law hasn't been interpreted yet, the courts have had many opportunities to discuss the alleged dangers associated with cannabis production in residential areas. Doing so is already routinely used as an aggravating factor at sentencing even in the absence of specific facts relating that the individual site at issue. And that scares me. Judges are used to believing and finding, when pronouncing sentence, that residential cannabis production is dangerous and an aggravating factor. I am not optimistic that they will stop doing if it means that a mandatory sentence will be imposed.


R v. Pham and Vu 2008 BCPC 142 (http://www.canlii.org/en/bc/bcpc/doc/2008/2008bcpc142/2008bcpc142.html) is a good case to read to get a sense of how a sentencing analysis currently is conducted by a judge. Keep in mind that right now the standard of proof at sentencing is generally "balance of probabilities" but when dealing with aggravating factors the Crown must already prove them "beyond a reasonable doubt." Factually it is not a small production site (600 plants) but in reviewing the decisions on conviction (R v. Pham and Vu 2007 BCPC 355; (http://www.canlii.com/en/bc/bcpc/doc/2007/2007bcpc355/2007bcpc355.html)) and on sentence I saw nothing to indicate any actual danger specific to the site was alleged much less proven. There was a hydro bypass but the accused were not convicted of that charge.


The sentencing judge had this to say:


[31] I find that at all material times the grow operation in issue in this case was operated in a home being used as a residence for the two accused and their children and accordingly, the three children were exposed to certain of the often described dangers inherent in grow operations in this case. They are well described in the cases on point and include the risks of fire, electrical in origin, or caused by high intensity lights used in closed spaces, electrical faults and grow rip violence.
[32] The mitigating factors include that Mr. Vu does not have a criminal record, restitution has been made to B.C. Hydro for the power taken, Mr. Vu was a refugee for a period of time, he is married, works and I am told was never on welfare. These may be seen as mitigating factors. Some of them also apply to Ms. Pham. She is married and worked, at least when in Campbell River.
[33] The aggravating factors in my view are Ms. Pham's related record, the size and sophistication of the grow op, where it was located, and the probability it was run for profit. I consider it to be an aggravating factor that these two accused persons would expose their own children to the above risks.
Notice that none of the risks were said to be proven in this actual case. The judge is worried about risks "inherent in grow operations of this type". That includes "grow rips" (another wildly overstated risk alleged by police but one that by its very nature applies to any production site) and fire. Notice also that these "risks" are "well described in the cases on point."


The judge goes on to reflect on some of the cases in including R. v. Nguyen, 2002 BCCA 12, where the accused, a 46-year-old woman with an 18-year-old daughter and three minor children, and no criminal record and was convicted of keeping a grow operation of 263 plants. Not that many, frankly. The judge in that case said "In committing this offence, Ms. Nguyen exposed her eighteen year old daughter to prosecution and her younger children to the dangers of living with a marihuana grow operation, including harmful chemicals, risk of fire and risk of robbery." Ms. Nguyen got eight months in jail, upheld on appeal by the BCCA.


After canvassing many cases, the sentencing judge in Pham and Vu had this to say about dangers:


[150] Ms. Pham and Mr. Vu exposed their own children on and about February 7th, 2005 and for some considerable time in all likelihood, and the public, to all the risks referred to in the authorities that exist with respect to grow operations. It seems they were either indifferent to their safety or because the commercial and financial gains in their very sophisticated grow operation were so significant, they chose to overlook them.


and


[187] While there is no evidence any weapons or booby-traps were found on the search, nonetheless this grow operation was in a residential area and all the well-known risks including of fire and grow rip activities were therefore being run in the midst of other people close at hand who were also exposed to potential danger if any of these risks materialized.


Both accused were sentenced to one year in prison. They were parents to minor children who were, as a result, deprived of both parents for an extened period of time. The judge thought it was better for the kids than being exposed to the "risks" of cannabis production. As you can see, none of those potential risks were proven to actually exist in the case. Instead they are those "well known" risks "referred to in the authorities" that when the production is "run in the midst of other people close at hand" expose people "to potential danger if any of these risks materialized."


Note that the legislation imposing mandatory sentences does not require actual risk, just potential risk.


My fear, and I think it is very legitimate, is that because judges and caselaw already establish that producing cannabis in a residential area involves "potential risks" to the public that are "well known" this aggravating factor is going to be applied widely and often irrespective of whether the particular production site at issue was, in fact, risky at all.


Kirk Tousaw, Executive Director
Beyond Prohibition Foundation

 

[deepforest]

hey fatigues.. thanks for the information. i dont disagree with it, i was just curious as id never heard of such a law and it was surprising to me.

 

[fatigues]

Hi fatigues,

Kirk Tousaw asked me to post this here. Let me know your thoughts.

-FrankD

Kirk Tousaw writes:

But I don't think that differentiation detracts from these points: (1) the prohibitionists have waged a largely successful public relations battle that has the public, and many courts, believing that all cannabis production is or can be dangerous; and (2) people producing cannabis in residential areas are at risk (and I think real, tangible risk) of attracting the mandatory minimum.

I am in complete agreement with the above statement.

I am not sure where his post you are quoting originates, or else I would go there and make the reply there myself. I trust you will relay this to him as well -- with my regards.

Defence counsel will be able to point to Mr. Saint-Denis' (senior Justice witness) testimony to the Senate to suggest that their client's small, residential production was not the intended target of the legislation. Of course, medical producers are not the intended targets either but if one is convicted of producing 501 plants for purposes of selling to a compassion club the penalty is going to apply to them. Intent behind the legislation is not dispositive. And so if a judge believes that your small "quiet" grow constituted a potential danger - not an actual danger, but a potential danger - you are going to jail.

I think that may go a little too far. I think it's fair to say that if the judge believes that - he or she can certainly put you in jail for it acting under their own discretion.

As to whether or not those types of "potential dangers" are the dangers referred to in Section 7(3), that is another matter. We simply don't know that and won't know that until the matter is clarified by an appellate court in BC or Ontario and leave to appeal from it is denied (alternatively, heard and resolved by the SCC).

I don't disagree with Kirk's analysis of the case law, either. Judges who are prohibitionist in nature (and there are a great many of them) will essentially make findings of fact drawing upon findings made in other cases. It's inappropriate - but they do it; many of them do it often.

I think Kirk Tousaw and I are in complete agreement that the subsection is dangerous and its meaning will be pressed by the Crown in a manner so as to be as expansive as possible at the first opportunity.

That said, this is not purposive legislation that is to be interpreted remedially and as expansively as possible. It is, to the contrary, legislation which deprives citizens of their liberty, and so any doubt is to be resolved in favour of the accused.

Were the matter to be decided wholly upon the case law, I think Kirk's interpretation is more likely than not to prove right in many respects.

That said, we have been gifted by Mr. Saint-Denis' testimony. A reference to "volatile chemicals" and a notation that the section is referred to in connection with methamphetamines and ecstasy which notoriously use precursor chemicals is a highly persuasive gem.

Given Kirk Tousaw's position at John Conroy's firm in B.C., it is my hope that he publicizes Saint-Denis' testimony in an article that will draw the attention of defence counsel in B.C. should C-15 pass. It is very helpful evidence of legislative intent which is very likely to be overlooked by some members of the defence bar who operate under real financial constraints when it comes to legal research. I highly doubt that many counsel are likely to discover Saint-Denis' comments on their own. It's just not something that is easy to find in a typical QL search -- or via Google, for that matter.

If Kirk Tousaw cites the testimony of Saint-Denis in an article aimed at the profession - and thereby makes that passage easily located and readily available to the defence bar - then it is far more likely to be cited to the judge when this matter first comes up for interpretation. To be clear - that's my chief concern in citing it in the manner that I did and I am very pleased to learn that it came to his attention.

Kirk Tousaw and I are on the same side of this. While we may quibble a bit concerning what is likely to be determined by a court when the provision is interpreted by the courts, we certainly both share the same disapproval over the language employed which is inherently ambiguous. Both of us agree that the language used is large enough for a judge to drive a truck through, if that is the way the court ultimately choose to run with it.

I should also point out that Mr. Saint-Denis' example of what "danger" was being targeted was a production site that used insecticide.

Mr. Tousaw is stepping into the shoes of the Crown here

Mr. Saint-Denis said "volatile chemicals". Technically, "volatile" means chemicals that are likely to evaporate easily. In the common vernacular, it is used as a synonym for highly reactive chemicals which result in a vigorous explosion -- the precise concern that factually arises during crystal meth manufacturing and while making BHO, for that matter. I think, read fairly, that's how Mr. Saint-Denis was using the term - and that's the point to be pressed in court on behalf of an accused, in my view.

I don't think the requirement of the grow ALSO being in a residential area is reasonably associated with the supposed environmental effects of fertilizers or pesticides. Those are as destructive in an agrarian area as a residential one - indeed - arguably more so.

My fear, and I think it is very legitimate, is that because judges and case law already establish that producing cannabis in a residential area involves "potential risks" to the public that are "well known" this aggravating factor is going to be applied widely and often irrespective of whether the particular production site at issue was, in fact, risky at all.

Mr. Tousaw's fears are, indeed, very legitimate. Fears are not certainties, however. On this point, I think he and I are both in substantial agreement as well.

If the pedagogical value of commentary to non-lawyers is diminished by highlighting the uncertainty (and to be fair to Kirk Tousaw, I would agree that it probably is diminished) then I don't suggest he was wrong to do so, either. This is especially so given that an individual's liberty is potentially at stake.

Just so long as those reading what he and I both are saying appreciate that in the end, nobody really knows for certain how the courts will ultimately interpret these provisions. Wise lawyers are not in the business of providing guarantees to their clients - let alone to non-paying members of the general public.

 

[headband 707]

I would like to make a point about the insecticides , fungicides as they are right about this. You make a point of saying it's what we use everyday in our gardens on petunias but you don't smoke a petunia. It's important to note that when companies make a lot of these products they are not thinking about you smoking the end produce. There are many ppl that are allergic to the shit ppl try to put on their bud. Not to mention when it's not flushed properly and ppl overuse the ferts. You will know this when your ashes are black.
Here in BC the City of Surrey has made it manditory to not only have yearly inspections from a landlord so he can't say he didn't know what was going on. They also want the grows done so a fire marshel can go in and pass it. They also work with BC Hydro who reports excessive hydro use. So lots of these things are already inplace here anyways.It still doesn't address the fact that most ppl here can't find Dr.'s to help them .. peace out Headband707

 

[fatigues]

Thanks for you posts about C-15, fatigues! How is it that you're so knowledgeable about the legislation?

Lucky guesses?

Because I happen to be paying close attention to it, that's why.

 

[WheelsOG]

Here's an article put out today regarding the bill. It's missing probably the biggest piece of info; growing in rental property will result in a mandatory nine month sentence.

http://www.thestar.com/news/canada/article/736786--senate-votes-to-remove-mandatory-minimum-sentences-from-tory-pot-law


Senate votes to remove mandatory minimum sentences from Tory pot law

OTTAWA – The Senate has voted in favour of changing a Conservative crime bill that would have imposed a mandatory six-month minimum sentence on people convicted of growing as few as five pot plants.

By a vote of 49-44, the Liberal-dominated upper chamber agreed to amend Bill C-15 to give judges greater discretion in sentencing convictions for growing between five and 200 plants.

The amendments also provide aboriginal convicts with an exemption from the minimum sentences, require judges to explain why they are not imposing the suggested minimums, and add in a cost-benefit review of how the legislation is working after five years.

However, mandatory minimum sentences of nine months still remain in place if there are aggravating factors to the marijuana grow-op, such as endangering the health of a child or creating a public safety hazard.

The Conservative government has sharply criticized the Senate for tinkering with legislation that has already been passed by the elected House of Commons.

It is not clear what will become of the changes when the amended bill is sent back to the Commons, where it must again be ratified before it can become law.

http://www.thestar.com/news/canada/article/736786--senate-votes-to-remove-mandatory-minimum-sentences-from-tory-pot-law

 

[theJointedOne]

wow canada sucks

 

[mr noodles]

strong rumors of prorogation in the air !

this might be the death call for harper and is nazi admin .
c-15 will die .

 

[fatigues]

strong rumors of prorogation in the air !

this might be the death call for harper and is nazi admin .
c-15 will die .

The Plot Thickens!

Yes it will. It will be re-introduced should that happen - but the fact is, after the amendments in the Senate it's already essentially been sent back to Square 1 already.

The real issue is that Harper wants to stop the Aghan Prisoner inquiry. The internal polling on this issue must be indicative of some seriously bad mojo for Harper to want to do this. But he did it last Xmas and got away with it. He may roll the dice and do it this time, too, to stop those committee revelations from taking up the front page of the Gazzette, Star and Globe+Mail and the nightly National News every single day.

Copenhagen and GreenPeace barraging Canadians with the truth that they aren't really as well respected internationally as they like to pretend isn't helping Harper on the public opinion polls either. Canadians wear the whit hat. They will not tolerate wearing the black hat - not overtly.

So with all that going on, Harper is getting dangerously close to one more sensational news story with a week's worth of bad news toppling his government.

Harper isn't stupid - if the Tories poularity drops another 3 points over this - and the Liberals gain that number in turn - his government will be over. There will be a non-confidence motion brought immediately and then the table post-election is rigged against him. The Liberals WILL do a deal with the NDP and do a side deal with the Bloc. Don't you think they won't. The Liberals have had enough of being in the opposition. So even if they win fewer seats, as long as they are close - they'll go with a coalition and seize power. And Harper won't be able to stop it, either.

And then Harper will be moving out of 24 Sussex - and likely out of Ottawa. His day will have come and gone.

Never mind current legislation given those possibilities. This is about saving his government and his personal political ass. This talk of proroguing until after the Olympics kills that Parliamentary Torture inquiry. That's what this is all about.

But for C-15 - it's a death-knell.

As I've said - the Fat Lady has not yet Sung on Bill C-15. And even if there is a next time, I wouldn't bet on the Liberals rolling over and backing it like they did last time. They'll be more inclined to amend legislation in the House along with the Bloc and NDP - as their ability to unilaterally amend in the Senate will be pretty much gone after January 2010.

The stink in Ottawa is becoming mighty dank, indeed.

 

[mr noodles]

im very happy of the recent events on the political scene . the momentum to destroy harper admin is perfect .


a serious action for us would be to use the same tactics that the conservative use since in power. they have a team of peoples who literaly flood all the media comments/blog whit pro harper propaganda . this week at cbc .com it was obvious...the neo con where saying how we should not give a shit about the afghani prisoners , how beating them with a shoe is normal and how ignatieff is evil even if not related to the story .

the conservative bloggers are everywhere and we should start to figth them on their fucking ground .

no matter your political belief , go register and told your indignation of the harper admin , their team will flip banana and act very against canadians values . beat them at their own game . anyway troll them they are very easy to target and provoke....get them banned !

think beyond pot, think canadian ! it will work against the most anti Canadian government we ever had

fight !!!!!!!!!!!!!!!!!!!!!!!!

 

[Kirk Tousaw]

Mr. Tousaw's fears are, indeed, very legitimate. Fears are not certainties, however. On this point, I think he and I are both in substantial agreement as well.

If the pedagogical value of commentary to non-lawyers is diminished by highlighting the uncertainty (and to be fair to Kirk Tousaw, I would agree that it probably is diminished) then I don't suggest he was wrong to do so, either. This is especially so given that an individual's liberty is potentially at stake.

Just so long as those reading what he and I both are saying appreciate that in the end, nobody really knows for certain how the courts will ultimately interpret these provisions. Wise lawyers are not in the business of providing guarantees to their clients - let alone to non-paying members of the general public.

Hi fatigues. Thank you for the thoughtful commentary (with a h/t to FrankDiscussion for pushing it on to me). It was a real pleasure to read insightful comments from someone that has clearly spent the time necessary to really understand the legislation. And it prompted me to spend the time replying, which assisted in my thinking about the potential impacts of C15 on the cannabis community.

We are in substantial agreement.

Kirk Tousaw
Executive Director, Beyond Prohibition Foundation
www.whyprohibition.ca
www.tousawlaw.ca
www.johnconroy.com

 

[myc]

The cons are already starting to spin this shit.
front page of their website - "Conservative’s protecting our youth against drugs"

here are some mildly amusing parts:

==
..This campaign is the right step towards keeping our children safer, and it’s not the only work our Conservative Government has been doing on the issue.

Unfortunately, our previous action to crack down on drug dealers who target kids, or who sell drugs near where children play, was gutted by Michael Ignatieff’s unelected Liberal Senators.

Michael Ignatieff’s Liberals claim to share Canadians concerns about drugs, but when the cameras are off they gut, derail, delay or block urgently-needed legislation that will help keep Canadians and their families safe.

For too long in Canada, Liberal governments have sent mixed messages on drugs to Canadians.

Our Conservative Government’s message is clear: drugs are dangerous and destructive. We will always work for the safety and well being of Canadians and their families.
==

Interesting timing on their campaign.