Are clones “plants” for the purposes of s. 7 of the Controlled Drugs and Substances Act?

R. v. Machula 2014 ONCJ 461 – Machula plead guilty to one count of Production of Marihuana, contrary to s. 7 of the Controlled Drugs and Substances Act. A sentencing hearing was then held to establish the number of plants produced by the accused. This was relevant of course due to the various minimum sentences that apply depending on the number of plants.

During the search, officers found 398 three to five inch clones, plus 23 mature plants in the basement. Outside, they located an additional 32 three to five inch clones. It was agreed that the 430 three to five inch clones were cuttings from the mature plants which had been placed in soil, watered, fertilized, and situated under grow lights. They were all in individual peat moss pots.

The issue was whether a clone is a plant as that term is used in s. 7(2)(b)(iii) of the CDSA. Mr. Machula testified that some clones had been cut and planted some two to three weeks earlier and he agreed that they would have root systems. He said, however, that he had cut new clones and put those in pots just two days prior to the search. He said those would not yet have grown roots. He did not say how many recently cut clones there were.  The defence argued that in order to be a plant, there must be a root system. In other words, that a cutting from a mother plant stuck in a pot of dirt is not a plant.

There is no definition of plant in the CDSA. The Crown’s expert testified, that while there was a dispute for legal purposes as to what constituted a plant, he expressed the opinion that:

“A plant was an organism which had or has, the ability to sustain life through photosynthesis. Once a cutting had been planted in some sort of suitable substrate, it became a plant…It was not necessary for a plant to have roots.”

The Crown’s expert included a dead plant within his definition. The defence witness expressed the opinion that a plant was a viable vegetative entity that is capable of sustained and independent life. A cannabis cutting became a plant once it had developed a good root system which was viable in the sense that the cutting was capable of maintaining photosynthesis through it.

The Court decided that a plant “included a cutting which had struck or established roots.” It could then be regarded as an entity separate from the plant from which it had been cut and differentiated from a part of that plant. This meaning also included a dead plant. Thus, the existence of roots, whether alive or dead, is what distinguished a cutting which had become a plant from a cutting which was simply a piece of the mother plant.

Ontario Court Justice R.G. Selkirk then examined the definition of “propagate” and believed that this definition describes the process of cloning whereby a piece of the mother plant is inserted into soil, watered, etc. in the hopes a viable plant will ensue.

“The act of cutting a piece of the mother plant off and treating it with a root hormone, as Mr. Machula did here, and placing it in soil which is watered and fertilized and placed under grow lights fits well within the common usage of the words cultivate or propagate. This requires the cutting to be something more than just a piece or a part of the mother plant. It requires evidence of efforts to grow that piece into a mature plant by placing the cutting into soil and providing it with the necessities for growth such as water, nutrient and light.”

Justice R.G. Selkirk said this definition was appropriate because it avoids mere pieces or parts of the mother plant without anything more falling into the definition of plant, but captures pieces being cultivated or propagated into mature marihuana plants whether or not there are roots. It captures the recently started grow operation which still has all the inherent dangers and risks of a grow operation.

“I will define a marijuana plant as a substance analysed to be contained in Schedule II which is being cultivated or propagated or harvested. Pursuant to that definition, the existence of roots is irrelevant…”

2 Comments

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2 responses to “Are clones “plants” for the purposes of s. 7 of the Controlled Drugs and Substances Act?

  1. Ronald Bourgon Wounded Korean War Vet. 1950-19521

    Can you give any other case law decisionj where (Cannabis cuttings-clones are not plants until roots established.

    • chfudge

      R. v. Li, 2016 ONSC 1757, R. v. Tran 2017 ONSC 651, concluded that seedlings were not plants because they had not taken root. There are just as many decisions that took a contrasting view, however (e.g. R. v. Quan, 2011 ONCJ 194, R. v. Blackwood, 2016 ONSC 4217, R. v. Grant, 2013 ABCA 430).

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