AMHERST – An Amherst defence lawyer is concerned with how pending changes to the Safer Streets and Communities Act could impact offenders.
Jim O’Neil is concerned the public may not be aware of the severity of some of the proposed sanctions.
The legislation takes effect Nov. 20.
“For example, a conviction for the cultivation for as little as six marijuana plants for the purpose of trafficking will attract a minimum six-month jail term,” O’Neil said. “Because of other changes to the law, that jail term cannot be served conditionally in the community but must be served in prison.
He said trafficking condition will not help all people. He said a recent case in Cumberland County involving an elderly man who grew some marijuana plants because it was the only thing that seemed to help his wife’s chronic pain.
“Under the definition of trafficking, passing the drug from one person to another, even though money is not involved, is trafficking,” O’Neil said. “Therefore, even though he produced about 10 plants or so a year, he would’ve been imprisoned for six months, rather than the term of probation he actually received. In that case, the media reported that the judge was compassionate, but compassion will no longer have any role in the courtroom when it comes to this particular offence.”
To make matters worse, O’Neil said the federal government has issued a directive that federal Crown attorneys are not permitted to replace a cultivation charge with one that does not have a minimum jail sentence, such as simple possession of marijuana. They will require departmental approval.
“The common discussion among lawyers was that the Crown attorneys would act compassionately and reduced the charge to simple possession where a clearly minimum sentence would be overkill,” he said. “Again, compassion and common sense would have no place in the plea bargaining process.”
As a result, O’Neil expects most offenders will avail themselves to their right to trail and put the Crown to the strict proof since there will be no benefit whatsoever or leniency possible on a guilty plea.
O’Neil said people need to understand that trafficking in or near a school, on or near school property or near any other public place usually frequented by people under age 18 will attract a two-year minimum jail term. There would be no conditional house arrest, but would have to be served in prison.
“Certainly no one would have sympathy for a drug trafficker selling to school children, however, remember that money does not have to change hands. This means that a student who provides a joint to a friend is trafficking and would be caught with a minimum mandatory two-year prison term.”
The wording of the statute, he said, is broad enough to include most areas youth congregate.
He said parents need to talk to their children about the law and the risks of sharing marijuana near these areas.
“Make no mistake about it, if the youth is over 18, two years in prison will result from a conviction,” he said.