R. v. Serov

R. v. Serov

The 18‑month mandatory minimum in s.7(2)(b)(iv) of the CDSA is grossly disproportionate as it captures offenders of relatively low moral blameworthiness (for example a gardener misled about ownership or with minimal culpability) and therefore violates s.12 of the Charter; accordingly the provision is...

Source-derived case information.

Citation
2016 BCSC 2326
Parties
Crown: Regina; Accused: Mikhail Serov
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
9 September 2016
Procedural Posture
Criminal / Sentencing and Constitutional Challenge to Mandatory Minimum Under S.7(2)(b)(iv) of the CDSA
Outcome
Declared the 18‑month mandatory minimum in s.7(2)(b)(iv) of the CDSA to violate s.12 of the Charter as grossly disproportionate.
Legal Topics
Mandatory Minimum Sentences, Charter S.12 Cruel and Unusual Punishment, Charter S.1 Justification, Controlled Drugs and Substances Act Production of Marijuana, Reasonable Hypothetical Offender Analysis
Source Language
english
Criminal Law Constitutional Law Sentencing Law Mandatory Minimum Sentences Charter S.12 Cruel and Unusual Punishment Charter S.1 Justification Controlled Drugs and Substances Act Production of Marijuana Reasonable Hypothetical Offender Analysis

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Parties

Regina

Crown

Mikhail Serov

Accused

Procedural Posture

Criminal / Sentencing and Constitutional Challenge to Mandatory Minimum Under S.7(2)(b)(iv) of the CDSA

Legal Issues

  1. 1 Whether the 18‑month mandatory minimum in s.7(2)(b)(iv) of the CDSA for production of more than 200 and fewer than 501 cannabis plants using third‑party property violates s.12 of the Charter as grossly disproportionate
  2. 2 Whether, applying the Nur/Lloyd framework and reasonable hypotheticals, the mandatory minimum captures low‑blameworthy offenders such that it is unconstitutional
  3. 3 If a s.12 violation is found, whether the Crown can justify the provision under s.1 of the Charter

Ratio Decidendi

The 18‑month mandatory minimum in s.7(2)(b)(iv) of the CDSA is grossly disproportionate as it captures offenders of relatively low moral blameworthiness (for example a gardener misled about ownership or with minimal culpability) and therefore violates s.12 of the Charter; accordingly the provision is unconstitutional in its application to such offenders and the Crown must now attempt to justify the provision under s.1.

Court Disposition

Declared the 18‑month mandatory minimum in s.7(2)(b)(iv) of the CDSA to violate s.12 of the Charter as grossly disproportionate.

Orders

  • s.7(2)(b)(iv) of the Controlled Drugs and Substances Act declared unconstitutional as applied for capturing low‑culpability offenders
  • Sentencing proceedings adjourned and Crown ordered to seek a s.1 justification hearing; parties instructed to schedule the earliest possible hearing date