COURT OF APPEAL FOR ONTARIO DATE: 20211001 DOCKET: C64322 & C64323

Judges: Watt, Pardu and Trotter JJ.A.

DOCKET: C64322 BETWEEN: Her Majesty the Queen Respondent

and

Zhang Jian Fan Appellant

DOCKET: C64323 AND BETWEEN: Her Majesty the Queen Respondent

and

Jian Ling Appellant

Counsel: Kim Schofield and Mindy Caterina, for the appellants Kerry Benzakein and Sobia Virk, for the respondent

Heard: June 30, 2021 by video conference

On appeal from the convictions entered by Justice Elizabeth Quinlan of the Superior Court of Justice, on May 5, 2017, and the sentences imposed on January 18, 2018.

Trotter J.A.:

A. Introduction

[1] The appellants were involved in a large-scale cannabis grow operation located at Mr. Fan’s farm. Mr. Fan leased greenhouses on his farm to a third party to produce the cannabis; Mr. Ling acted as a “gardener” for the cannabis plants. The police executed a search warrant at the farm and seized 1,025 plants; the harvested marihuana would have been worth between $6.6 to $15.375 million.

[2] Although there were multiple Health Canada licences on-site that authorized cannabis production, neither appellant was a named licence-holder and none of the licences designated the farm as an authorized production or storage site.

[3] The appellants were convicted of the following offences under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”): possession of marihuana (s. 4(1)), possession of marihuana for the purposes of trafficking (s. 5(2)), and production of marihuana (s. 7(1)).

[4] The appellants asserted a defence of honest but mistaken belief that the grow operation was properly licenced. They relied on the licences, notarized statutory declarations that purported to transfer the licences to the farm property, and assurances from third parties (none of whom were lawyers or state officials) that the documents were legitimate.

[5] The trial judge found that, even if the appellants were truly mistaken about the legality of their operation, it was a mistake of law, not a mistake of fact. She found the appellants guilty and sentenced Mr. Fan to imprisonment for 20 months, and Mr. Ling for 15 months. The appellants appeal their convictions and sentences.

[6] I would dismiss the conviction appeal because the trial judge did not accept the appellants’ evidence that they believed the grow operation was legal. I also agree with her conclusion that, if the appellants’ accounts were believable, they were labouring under a mistake of law, which is not a valid defence. I would uphold the sentences as fit.

B. Factual Background

(1) Introduction

[7] Both Mr. Fan and Mr. Ling were born in China and immigrated to Canada as adults. Neither speaks, writes, or reads English. They both testified at trial with the assistance of an interpreter.

[8] Mr. Fan purchased the 100-acre farm property in 2013, the year after he immigrated to Canada. He built 40 greenhouses on the land. He and his business partner, Bin Lin, grew vegetables to sell to Chinese supermarkets and restaurants.

[9] Mr. Fan testified that, in February 2015, Guanhua Li approached him and Mr. Lin about leasing part of the farm to grow cannabis. Mr. Li told Mr. Fan that the grow operation would be legal and for personal use. He showed Mr. Fan his production licence, which authorized Mr. Li to grow 244 cannabis plants and store a set amount of dried cannabis, all indoors. He also told Mr. Fan that if Mr. Li’s driver’s licence was registered to the farm property, his production licence would follow. At some point, Mr. Li showed Mr. Fan the following documents:

• six production licences (Mr. Li’s licence plus five licences belonging to other individuals);
• six statutory declarations, one for each production licence, dated March 26, 2015, indicating that each corresponding production site could be moved to the farm property;
• an Authorization to Possess (“ATP”) dried cannabis for medical purposes, in Mr. Li’s name; and
• an Ontario Ministry of Transportation document entitled “Change of Address Confirmation Driver Licence”, effective December 24, 2014, setting out the farm property as Mr. Li’s residential address.

[10] In April 2015, Mr. Fan and Mr. Li executed an Agreement to Lease (that may have been backdated to December 31, 2014), which permitted Mr. Li to lease part of the farm, at a rate of $3,000/month, for “plantation” purposes for one year. [^1]

[11] Mr. Li hired Mr. Ling in April 2015 to be the “gardener” for the grow operation on the farm: his job was to irrigate, fertilize, and remove dried cannabis leaves. He moved to the farm and was paid $3,000 a month in cash.

(2) The Police Investigation

[12] The appellants were arrested in September 2015. However, they place significance on an earlier visit the police made to the farm.

[13] In July 2015, the police went to the farm looking for Mr. Li, who was a potential witness in another investigation. Mr. Lin was present and told the police Mr. Li was renting the greenhouses to grow medical cannabis. An officer noted the licences on site were expired and began a follow-up investigation. He abandoned the investigation in light of a Federal Court injunction, discussed below.

[14] The police initiated a second investigation in September 2015, after a police officer in the area noticed a strong smell of fresh cannabis coming from the farm property. Although the outside row of greenhouses, which were visible from the road, appeared to be empty, the police could see cannabis plants growing through the tops and sides of some of the other greenhouses.

[15] The police seized 1,025 cannabis plants from 25 of the 40 greenhouses. Only some of the greenhouses were covered. The residence and outbuildings on the property contained various amounts of dried cannabis, drying racks, grow lights, ballasts, and cases of freezer bags. There were also motion detection sensors and video surveillance cameras covering the greenhouses and the entryway to the property.

[16] The police also seized four licences and four corresponding statutory declarations from one of the greenhouse doors (the remaining licences and documents were presented at trial). Together, the four licences permitted 634 plants to be grown indoors. None of the licence-holders were present at the farm, and none of the licences listed the farm address as an authorized production or storage site. Health Canada confirmed there were no licences issued to Mr. Fan for any address; nor were there licences for the farm address under any name.

[17] Mr. Fan and Mr. Ling were present at the farm when the police conducted the search. Though Mr. Ling initially ran from police (he testified that he believed it was a robbery), he stopped and was apprehended near the greenhouses.

[18] In a report filed on consent, an expert witness opined that the value of the seized plants ranged from $6.6 to $15.375 million. The plants were larger than typical cannabis plants. The expert witness estimated the 1,025 seized plants would yield roughly 5,125 pounds of cannabis. This amount of cannabis was consistent with a high-level trafficker and the operation was typical of a commercial grow operation. The marihuana was clearly not grown for personal use, or for medical purposes.

(3) The Licences and Regulatory Regime

[19] Producing marihuana in the absence of explicit authorization under the CDSA is a criminal offence. The production and possession of marihuana is regulated through a rather complicated statutory regime, which has evolved over the years. [^2] The appellants stress the complexity of the scenario they walked into. However, as discussed below, this complexity has little impact on the application of the applicable legal principles in this case.

[20] The licences in this case were granted under the Marihuana Medical Access Regulations, S.O.R./2001-227 (the “MMAR”), which authorized licence-holders to produce cannabis, at designated locations, for individual medical use. Under the MMAR, anyone with an ATP could apply for a licence to produce cannabis, either through a Personal Production Licence (“PPL”, under which the PPL-holder could produce cannabis for personal medical use only) or a Designated Person Production Licence (“DPL”, under which the DPL-holder could produce cannabis on behalf of a PPL-holder, but only for the PPL-holder’s personal medical use).

[21] PPLs and DPLs were subject to explicit terms and conditions that governed the specific location of the authorized production site, the mode of production (indoors or outdoors), the maximum number of cannabis plants that could be produced, the specific location of the authorized storage site where harvested cannabis could be kept, the maximum quantity of dried cannabis that could be stored, and the licences’ expiry dates. Only the licence-holders were permitted to produce the cannabis – the MMAR did not allow non-licence holders to participate in any production operations.

[22] As noted above, in this case, there were five PPLs and one DPL. Each licence named a different person as the licence-holder, none of whom were either appellant. Similarly, none of the licences named the farm property as a designated production or storage site.

[23] Each licence-holder swore a statutory declaration before a lawyer that they were moving their licenced grow operation from the site authorized on the face of the licence to the farm property.

[24] In June 2013, the Marihuana for Medical Purposes Regulations, S.O.R./2013-119 (the “MMPR”) came into force. The MMPR purported to repeal the MMAR on March 31, 2014 and replace the PPL and DPL system with a “Licenced Producers” scheme using production licences. The scheme is broader than the MMAR system, and more commercially focused. The MMPR permitted licenced producers to possess, produce, and sell cannabis at authorized production sites. It also allowed licenced producers to designate one or more “responsible person in charge”, who would be responsible for supervising the cannabis-related activities at the authorized sites. It also allowed licenced producers to hire employees, but required a “responsible person in charge” to be present in any area containing cannabis while an employee was in those areas.

[25] The constitutionality of the MMPR scheme was challenged in court. To ensure licences under the MMAR regime remained valid while litigation over the MMPR progressed, the Federal Court granted an injunction that extended the expiry date of any PPL or DPL granted before March 31, 2014, until the court resolved the constitutional issue: see Allard v. Canada, 2014 FC 280, 451 F.T.R. 45, rev’d in part, Allard v. Canada, 2014 FCA 298, 324 C.R.R. (2d) 78. This applied to the licences in this case, which had expired.

[26] The upshot of all of this is that, when the appellants were arrested, the MMAR and MMPR schemes were operating simultaneously. The MMPR was struck down in 2016, while this case was proceeding to trial: Allard v. Canada, 2016 FC 236, 394 D.L.R. (4th) 694. [^3]

[27] The appellants submit that “the law was in a state of flux and confusion abounded.” This submission was not made at trial. In any event, the grow operation was not authorized under either framework.

(4) The Appellant’s Position at Trial

[28] The appellants testified that they believed the operation was legal and was authorized by the licences referred to above.

[29] Mr. Fan testified that, although he did not know where to go to confirm the lawfulness of the licences, the “stamps from the lawyer” convinced him the licences and the operation were legal. He would not have entered into the lease with Mr. Li unless he was sure the proposed operation was authorized.

[30] Mr. Lin understood some English and helped Mr. Fan with the documents. Mr. Lin told him the licences were all certified by a lawyer’s stamp and came with “lawyer’s letters” (the statutory declarations), which were also stamped. Mr. Lin explained the letters to Mr. Fan and told him they allowed the licence addresses to be changed to the farm property. Mr. Lin also told Mr. Fan that the licences collectively authorized the production of roughly 1,100 cannabis plants.

[31] When Mr. Li asked Mr. Ling to work for him, Mr. Ling said he did not want to do anything illegal. Mr. Li then showed Mr. Ling six licences, five letters notarized by a lawyer, and Mr. Li’s driver’s licence with the farm property listed as his residential address. He assured Mr. Ling that these documents proved he was legally authorized to grow cannabis.

[32] Mr. Ling’s friend roughly translated the documents for him. His friend described the licences to Mr. Ling, indicating how many plants could be planted and how many grams of cannabis could be possessed. He also confirmed that the letters were notarized by a lawyer and explained that the letters certified that the addresses on the licences could be changed.

[33] Mr. Ling said that he took several steps to ensure the operation was legal. He sought assurance from Mr. Li, did online research to make sure licenced grow operations existed in Canada, consulted people he trusted to confirm his research (though he admitted none of those people had experience growing cannabis or dealing with licences), showed friends photos of the licences and documents, and reviewed the statutory declarations.

[34] In their apparent quest to determine the legality of the operation, neither appellant made any inquiries of official sources, despite the fact that each licence bore the logo of Health Canada and contained the following bold typeface notation: “All inquiries regarding this licence should be directed to the Marihuana Medical Access Program toll-free number: 1-866-337-7705.”

(5) The Trial Judge’s Reasons

[35] The trial judge did not accept the appellants’ claim that they were labouring under a mistake of fact in their belief that the licences authorized the production and storage of marihuana on the farm.

[36] The trial judge found that the appellants were aware that the production and possession of marihuana is illegal unless authorized. She distinguished R. v. Darquea (1979), 47 C.C.C. (2d) 567 (Ont. C.A.), in which this court found that the accused’s mistaken belief that his employer had a licence to manufacture a controlled substance in the laboratory where he worked was a mistake of fact. The trial judge held that, “[h]ere, the issue turns on the accused persons’ understanding or interpretation of the licences and statutory declarations, their authoritative scope and applicability to their situation.” Applying the Supreme Court of Canada’s decision in R. v. MacDonald, 2014 SCC 3, the trial judge found that the appellants’ mistake was legal, not factual.

[37] The trial judge summarized her conclusions in the following passage from her reasons:

Mr. Fan and Mr. Ling were aware that valid licences were required to produce marihuana. As in R. v. Stucky, 2009 ONCA 151, 240 C.C.C. (3d) 141], and even if I accepted that the accused persons had an honest belief in the lawfulness of their actions, they relied on the advice or directions of others regarding the legal consequences of their actions: that it was legal to use licences granted to other persons when accompanied by either the holder’s statutory declaration to change the production site or a driver’s licence changed to the farm property’s address. Mr. Fan and Mr. Ling, therefore, fell prey to a mistake of law about whether the documentation authorized them to produce marihuana without personally being lawfully authorized and whether the farm property was a lawfully authorized production site. As such, any honest belief they may have had is irrelevant. [Emphasis added.]

[38] Finding all other elements of the offences had been proved, the trial judge found both appellants guilty on all counts.

C. Mistake of Fact or Ignorance of the Law?

(1) Rejection of the Appellants’ Evidence

[39] The appellants’ main focus on appeal is the trial judge’s conclusion that their misunderstanding was a mistake of law rather than a mistake of fact. They say that she mischaracterized the situation. I do not agree. But there is a more direct and practical basis upon which this appeal should be dismissed – the trial judge simply did not accept the appellants’ evidence that they believed that they were acting within the scope of the law.

[40] As noted above, in her reasons for judgment, the trial judge said “even if I accepted that the accused persons had an honest belief in the lawfulness of their actions”, it amounted to a mistake of law. The appellants contend that the trial judge only implicitly rejected their testimony.

[41] It would have been preferable had the trial judge been more transparent in expressing her credibility findings in these reasons. However, it is appropriate to look at the trial judge’s subsequent reasons, post-conviction, to gain a more complete understanding of her findings. As Feldman J.A. stated in R. v. B.J.T., 2019 ONCA 694, 378 C.C.C. (3d) 238, at para. 43: “While it is expected that a trial judge sitting alone will clearly include all of his or her findings in the reasons for conviction, … a court of appeal may look at the reasons for sentence as well as the reasons for conviction to understand the basis for conviction.”: see also R. v. A.H., 2018 ONCA 677, 366 C.C.C. (3d) 69, at para. 23; R. v. Trobert, 2000 SKCA 113, 199 Sask. R. 224, at para. 11.

[42] In this case, after the appellants were found guilty, they moved to strike down the mandatory minimum sentence in s. 7(2)(v)(b) of the CDSA as being contrary to s. 12 of the Canadian Charter of Rights and Freedoms. In her reasons allowing this application, the trial judge stated, “I do not accept that either of them had an honest but mistaken belief in the legality of the operation” and gave reasons for this adverse credibility finding: R. v. Ling, 2017 ONSC 5627, at para. 31. In her subsequent reasons for sentence, the trial judge reverted to the language from her reasons for judgment, again writing, “even if I accepted that both offenders had an honest belief in the lawfulness of their actions”.

[43] When the trial judge’s reasons for judgment are considered in conjunction with the language in her constitutional ruling, it is apparent that she rejected the appellants’ evidence that they believed the grow operation was legal. This is sufficient to dispose of this appeal. Nonetheless, in the event that I am mistaken in this conclusion, and for the sake of completeness, I consider the trial judge’s finding that the mistake was one of law, not fact.

(2) Classifying the Mistake

Ignorance of the Law

[44] The question of whether an error reflects a mistake of fact or ignorance of the law is a vexing one. However, the trial judge made no error in her characterization of the appellants’ asserted misunderstanding as a mistake of law.

[45] Section 19 of the Criminal Code provides that: “Ignorance of the law by a person who commits an offence is not an excuse for committing that offence”. This provision, which was enacted in 1892, codifies the common law: see Don Stuart, Canadian Criminal Law – A Treatise, 8th ed. (Toronto: Thomson Reuters, 2020), at p. 374. [^4]

[46] Section 19 enjoys a broad application. It applies both to “ignorance of the existence of the law and that as to its meaning, scope or application”: Molis v. The Queen, [1980] 2 S.C.R. 356, at p. 362. In this case, the appellants were aware that the production and possession of marijuana was illegal unless properly authorized. Thus, they were aware of the existence of the law; their apparent mistake pertained to its application.

[47] Traditionally, s. 19 applied to a person’s understanding of a statute. Today, the section applies to the existence and language of offence-creating provisions, as well as authorizations required for regulated activities, such as the possession of firearms and drugs.

[48] This is demonstrated in MacDonald, a decision relied upon by the trial judge, in which the accused made a mistake about the scope of his licence to possess a firearm under the Firearms Act, S.C. 1995, c. 39. The licence authorized possession only in Alberta; MacDonald was found in possession of the firearm in Halifax. MacDonald was convicted at trial.

[49] The Nova Scotia Court of Appeal set aside the conviction, holding that MacDonald was labouring under a mistake of fact, vitiating mens rea: 2012 NSCA 50, 317 N.S.R. (2d) 90, rev’d in part 2014 SCC 3, [2014] 1 S.C.R. 37. In restoring the conviction, the Supreme Court of Canada held, at para. 57, that given that s. 19 extended to the terms of his licence, “Mr. MacDonald’s subjective belief that he could possess the firearm in Halifax is therefore nothing other than a mistake of law.” This principle has been applied to licences under the CDSA in R. v. Vu, 2018 ONCA 436, 140 O.R. (3d) 641, at para. 67. [^5]

[50] To require the Crown to prove that the appellants understood the legal framework in which they operated confuses actus reus and mens rea requirements. In this context, a proper authorization or licence negates the actus reus of activity that would otherwise be illegal. Conceived as a mens rea component, it would require the Crown to prove that an accused person knew the conditions of their licence or authorization. As Lamer C.J. held in R. v. Forster, [1992] 1 S.C.R. 339, at p. 346: “[K]nowledge that one’s actions are contrary to the law is not a component of the mens rea for an offence, and consequently does not operate as a defence.” See also R. v. Docherty, [1989] 2 S.C.R. 941, at pp. 960-61.

[51] This case is analogous to MacDonald. Whereas MacDonald was mistaken that his licence permitted him to possess a firearm at a certain location, the appellants were wrong in their asserted belief that: (a) the licences permitted them to produce and store marihuana; (b) the licences permitted production and storage of marihuana at the farm property; and (c) the marihuana could be produced outdoors. As in Forster, at p. 348, the appellants were “mistaken not about the factual context or the quality of [their] actions, but rather about their legal consequences.”

[52] As noted above, in her ruling striking down the mandatory minimum sentence, the trial judge expanded on her rejection of the appellants’ evidence. In this part of her reasons, the trial judge concluded that the appellants “were wilfully blind to the grow operation’s illegality.” Applying MacDonald and Forster, the concept of wilful blindness had no role to play in this analysis. Nonetheless, I am still satisfied that she reached the correct conclusion that the appellants were labouring under a mistake of law.

Were the Appellants “Duped”?

[53] In her submissions on the appellants’ behalf, Ms. Schofield argued that the appellants were “duped” by Mr. Li’s representations. This theory was not advanced at trial [^6] and there was no evidence that addressed this issue. Accordingly, I would reject this submission. The question of whether deception by a third party is relevant to the mistake of law/mistake of fact determination is a matter best left for another day, based on an adequate record.

The Complexity of the Regulatory Regime and the Appellants’ Diligence

[54] The appellants also rely on the fact that their conduct occurred in a complex, regulatory framework that was in a state of flux at the time. They further submit that they took steps to confirm the legality of their grown operation by consulting various sources. I am not persuaded by either argument.

[55] It has long been the case that s. 19 may operate in highly regulated contexts. In R. v. Jorgensen, [1995] 4 S.C.R. 55, Lamer C.J., writing for himself in a concurring judgment, addressed the feature of complexity when considering whether the concept of officially induced error of law should be introduced into Canadian law, noting at p. 29:

As several of the cases where this rule has been discussed note, the complexity of contemporary regulation makes the assumption that a responsible citizen will have a comprehensive knowledge of the law unreasonable. This complexity, however, does not justify rejecting a rule which encourages a responsible citizenry, encourages government to publicize enactments, and is an essentially foundation to the rule of law. [Emphasis added.]

The Supreme Court formally recognized officially induced error in Lévis (City) v. Tétreault, 2006 SCC 12, [2006] 1 S.C.R. 420, at pp. 433-36. [^7]

[56] The appellants did not rely on an officially induced error of law. In their apparent attempts to confirm the legality of the grow operation, they consulted no official sources. Although they purported to rely upon the statutory declarations accompanying the licences, this was no substitute for consulting an “official” for the purposes of the officially induced error exception to s. 19: see Stucky, at para. 109. As noted above, all six licences in question disclosed a toll-free Health Canada number from which information about the licences could be obtained.

[57] The appellant’s reliance on their efforts to confirm legality is simply a claim that they did their best, a claim the trial judge rejected. Even if accepted, these efforts could not elude the reach of s. 19 of the Criminal Code. In La Souveraine, Compagnie d’assurance générale v. Autorité des marchés financiers, 2013 SCC 63, [2013] 3 S.C.R. 756, Wagner J. (as he then was) said, at para. 57: “A defendant can therefore gain nothing by showing that it made a reasonable effort to know the law or that it acted in good faith in ignorance of the law, since such evidence cannot exempt it from liability.” Section 19 does not reward effort; it demands correctness. Canadian jurisprudence does not recognize the concept of “a reasonable mistake of law”. [^8] To do so would undermine the rule with respect to ignorance of the law, which Lamer C.J. said in Jorgensen, at para. 5, is “an orienting principle of our criminal law which should not be lightly disturbed.”

Potential Authorization Under the MMPR

[58] The appellants further submit that the enactment of the MMPR, which authorizes the commercial production of marihuana, could have applied to exempt them from criminal liability. Relying on R. v. Tong, 2019 ONSC 6400, the appellants contend that the potential legality of their conduct, under a different regulatory regime, transformed their mistake of law into a mistake of fact.

[59] I do not accept the appellants’ submissions. As already noted, the issue of whether the MMPR could have authorized the appellants’ conduct was not raised at trial. Moreover, even if the MMPR could apply to the appellants’ grow operation, it would not assist the appellants because the MMPR required security clearances for individuals who are central to commercial operations. Outdoor production was not permitted and the appellants are unable to escape the fact that the farm was not a designated location for the production or storage of cannabis. Moreover, and as the trial judge noted, “[n]either the MMAR nor the MMPR allowed a valid change of production site by statutory declaration.” The appellants’ claim essentially dissolves into the untenable assertion that, had they obtained different licences, their operation would have been legal. It is tantamount to the accused in MacDonald submitting that, because he may have been able to obtain a licence to possess the firearm in Nova Scotia, his mistake about the scope of his existing licence became factual. I would reject this line of reasoning.

Existence of a Licence vs. Terms of a Licence

[60] Finally, the appellants rely on the previous decisions of this court in Darquea, R. v. Johnson, 2016 ONCA 654, and R. v. Pilgrim, 2017 ONCA 309, 347 C.C.C. (3d) 141. All three cases involved mistakes about the existence of licences or authorizations, not about their scope or application.

[61] In Darquea, the accused mistakenly believed that the head of the laboratory where he worked was licenced to produce the drug in question. In Johnson, the accused mistakenly believed that a PPL existed for a property when none existed; in Pilgrim, the accused laboured under the mistaken belief that her spouse had a drug prescription under the Narcotic Control Regulations, C.R.C., c. 1041, when no such prescription existed. All three scenarios amounted to mistakes of fact.

[62] By contrast, in this case, the appellants were mistaken as to the reach of the licences they knew existed and, as such, were mistaken as to the applicable law. As this court aptly put it in Vu, at para. 67 (discussing Johnson), “a mistake as to the terms of one’s license is a mistake of law, not a mistake of fact.”

[63] I would dismiss this ground of appeal.

D. The Sentence Appeal

[64] When the offences were committed, Mr. Fan was 54 years old. He had no criminal record. In a positive Pre-Sentence Report, he was a described as hard-working family man.

[65] Mr. Ling was 27 at the time of the offences. Like Mr. Fan, Mr. Ling had no prior criminal record. In an equally positive Pre-Sentence Report, he too was described as a hard worker who supported two children from a previous marriage, as well as a step-daughter. When he was sentenced, his wife was pregnant.

[66] Both appellants potentially faced adverse immigration consequences as a result of their convictions and sentences.

[67] The trial judge imposed global sentences of 20 and 15 months on Mr. Fan and Mr. Ling, respectively. While she recognized each appellant benefited from several mitigating factors, those had to be weighed against the aggravating factors. In particular, the trial judge noted that “[cannabis] cultivation often leads to other social evils and risks to public safety including violent criminal activity”, especially those in vulnerable groups: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at paras. 85-91; R. v. Evans, [1996] 1 S.C.R. 8, at para. 24; R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571, at paras. 134-37; R. v. Tran, 2005 ONCA 3937, 194 O.A.C. 278 (C.A.), at para. 5; and R. v. Nguyen, 2007 ONCA 645, 227 C.C.C. (3d) 262, at paras. 46-48. In imposing the appellants’ sentences, the trial judge also relied on jurisprudence from this court that establishes that denunciation and deterrence are paramount considerations in cases involving large-scale cannabis grow operations: R. v. Peltier, 2013 ONCA 141, 303 O.A.C. 87; R. v. Chen, 2007 ONCA 230.

[68] The appellants raise two issues on the sentence appeal: the trial judge erred in considering the risk of violence and risk to members of vulnerable groups as aggravating factors; and the trial judge misapplied the parity principle and consequently imposed disproportionate and demonstrably unfit sentences.

[69] I accept the appellants’ submissions that the legal landscape relating to the production and possession of marihuana has changed significantly in recent years; however, this court’s approach to large-scale grow operations has not.

[70] In R. v. Strong, 2019 ONCA 15, this court said, at para. 4, that it is not the case that “prolonged trafficking for profit in marijuana is somehow viewed as less serious because of the legislative changes in respect of personal possession and use.” See also R. v. Kennedy, 2019 ONCA 77, at para. 11.

[71] Furthermore, contrary to the appellants’ submissions, it is not the case that the risks to vulnerable groups as detailed in earlier jurisprudence has been “debunked” such that the trial judge erred in relying on them. As the Crown correctly points out, the current legislative scheme governing cannabis use – despite decriminalizing it for those of legal age – still incorporates safety rules and warnings geared toward some of the very concerns addressed in the jurisprudence on which the trial judge relied: see Cannabis Regulations, S.O.R./2018-144, s. 123(1)(d)-(e).

[72] Moreover, what happened at the time of arrest in this case is very telling. Mr. Ling attempted to escape, apparently fearful that he was going to be robbed. He further testified that Mr. Li had told him that security cameras were installed around the farm to prevent this kind of occurrence. Accordingly, the trial judge’s reliance on this factor was not misplaced.

[73] Finally, the sentences were proportionate in the circumstances and on par with those imposed in analogous cases: see R. v. Bentley, 2017 ONCA 982, at para. 11. The trial judge correctly observed that, while neither appellant was the directing mind behind the operation, they each played a critical role in the enterprise. The plants seized from the farm were larger than typical cannabis plants, and their estimated value ranged upwards of $15 million. Considering the size of the potential yield from the farm’s plants – roughly 5,125 pounds – it was reasonable for the trial judge to rely on cases involving larger grow operations.

[74] The trial judge properly considered the circumstances of the offences and offenders, the applicable mitigating and aggravating factors, each appellant’s respective level of the moral blameworthiness, and the governing principles and purposes of sentencing. There is no basis for this court to interfere: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 38-41.

[75] Lastly, the trial judge imposed victim surcharges on both appellants. In light of R. v. Boudreault, 2019 SCC 58, [2018] 3 S.C.R. 599, and with the consent of the Crown, they are set aside. I would otherwise dismiss the sentence appeals.

E. Disposition

[76] I would dismiss the conviction appeals. I would grant leave to appeal sentence and set aside the victim surcharges. Any monies paid in satisfaction of the surcharges are ordered returned to the appellants. In all other respects, both sentence appeals are dismissed.

Released: October 1, 2021 “D.W.” “Gary Trotter J.A.” “I agree. David Watt J.A.” “I agree. G. Pardu J.A.”

Notes

[^1]: Though Mr. Fan was unclear at trial on the exact dates and sequence of events, the discrepancies are irrelevant to the issues on appeal. [^2]: See the discussion of the history of this regulatory regime in R. v. Vu, 2018 ONCA 436, 140 O.R. (3d) 641, at paras. 30-36. [^3]: Additional reasons released, 2016 FC 237, motion for reconsideration refused, 2016 FC 492. [^4]: Professor Stuart identifies the purported justifications for the rule, at pp. 375-382: (1) allowing a defence of ignorance of the law would involve the courts in insuperable evidential problems; (2) it would encourage ignorance where knowledge is socially desirable; (3) otherwise every person would be a law unto himself, infringing the principle of legality and contradicting the moral principles underlying the law’ and (4) ignorance of the law is blameworthy itself. At p. 379, he finds that none of these stated rationales are “very convincing.” [^5]: This decision was made, not in the context of determining liability, but to the consideration of reasonable hypothetical scenarios in an analysis under s. 12 of the Charter. [^6]: Neither Ms. Schofield nor Ms. Caterina were trial counsel. [^7]: The defence of officially induced error operates as an exception to the rule that ignorance of the law is no defence. An individual may rely on this defence where they “reasonably relied upon the erroneous legal opinion or advice of an official who is responsible for the administration or enforcement of the regulation” (see Jorgensen, at paras. 28-35). See also Stuart, at pp. 391-401. [^8]: In MacDonald, at para. 61 and in R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, the Supreme Court held that a mistake as to the law may be a mitigating factor on sentence.