Court File and Parties

Ontario Court of Justice

Date: March 21, 2017

Court File No.: Ottawa 14-RF1055-01

Between:

Her Majesty the Queen

— and —

An Huynh

Before: Justice Heather Perkins-McVey

Decision released on: March 21, 2017

Counsel:

• Ms. D. Hayton — counsel for the Crown
• Mr. M. Ertel — for the defendant, An Huynh

Decision

PERKINS-MCVEY J.:

Introduction

[1] The Accused pled guilty to producing 957 marijuana plants in various stages of growth, contrary to s. 7(1) of the Controlled Drugs and Substances Act. By his plea and acknowledgement of the facts, he admits to producing more than 500 plants and in doing so used the real property of a third party not implicated in the offence. By operation of s. 7(2)(b)(v) and s. 7(3)(a) of the CDSA, the accused faces a mandatory minimum sentence of three years in the penitentiary. The Accused has brought an application to challenge this law and seeks a finding that this MMP violates the protection against cruel and unusual punishment guaranteed by section 12 of the Canadian Charter of Rights and Freedoms.

Jurisdiction of Provincial Court Judges

[2] In the Supreme Court of Canada decision of R. v. Lloyd, 2016 SCC 13, the court addressed whether a provincial court judge has jurisdiction to decide the constitutionality of a Mandatory Minimum Sentence. The court reaffirmed at paragraph 15 that while provincial court judges do not have the jurisdiction to declare that a law is of no force or effect, that they do have the power to determine the constitutionality of a law where it is properly before them.

[3] The court stated at para 16:

"Just as no one may be convicted of an offence under an invalid statute, so too may no one be sentenced under an invalid statute. Provincial Court Judges must have the power to determine the constitutionality validity of mandatory minimum provisions when the issue arises in a case they are hearing. The power flows directly from their statutory power to decide the cases before them. The rule of law demands no less."

[4] The Supreme Court further states at paragraph 18 that once the provincial court judge has determined that the mandatory minimum provision can have no effect on the sentence to be imposed on the offender that there is no need to proceed further to consider part two of the analysis using reasonable hypotheticals. Further the court indicates: "Thus once the Judge in this case determined that the mandatory minimum did not materially exceed the bottom end of the sentencing range applicable to Mr. Lloyd, he could have declined to consider its constitutionality."

Section 12 of the Canadian Charter of Rights and Freedoms

[5] The Application brought by the accused Mr. Huynh challenging the applicable mandatory minimum sentence argues that the impugned legislation violates s. 12 of the Charter and that to impose the mandatory minimum in this case would be "grossly disproportionate" to the punishment that is appropriate.

[6] Section 12 of the Charter provides that everyone has the right not to be subjected to any cruel or unusual treatment of punishment.

The Facts

[7] The facts in brief are that the accused rented property in Kanata owned by Kim Nguyen. There is no evidence that Ms. Nguyen was in any way involved in this criminal activity. While executing a search warrant, police located a hydro bypass, 957 marijuana plants at various stages of growth and 4971 grams of dried cannabis marijuana. The Ottawa police suggest the potential value of the drugs seized would be slightly over 1 million dollars. The accused is 48 years old and I have not been provided with a criminal record. As such the accused must be considered as a first time offender. No other persons were located inside the residence.

The Law in R. v. Nur

[8] The analytical framework to determine whether a MMP sentence constitutes a "cruel and unusual punishment" under s. 12 of the Charter was clarified by the SCC in Nur. In R. v. Nur, 2015 SCC 15 at para 77, the Supreme Court of Canada cites R. v. Smith, stating that a sentence attacked under s. 12 of the Charter must be grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender. The test for gross disproportionality "is aimed at punishments that are more than merely excessive". A sentence will infringe upon s. 12 of the Charter if it imposes a grossly disproportionate sentence on the individual before the court, or if the law's reasonably foreseeable application will impose grossly disproportionate sentences on others.

[9] A challenge to a mandatory minimum sentencing provision under s. 12 of the Charter involves two steps:

1. The court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code. The court need not fix the sentence or the range at a specific point but the court needs to consider generally the appropriate sentence; and

2. The court must ask whether the mandatory minimum sentence requires the judge to impose a sentence that is grossly disproportionate to the offence and its circumstances.

[10] The Supreme Court has referred to proportionality as the relationship between the sentence to be imposed and the sentence that is fit and proportionate. The question as the court stated in Lloyd at para 23 simply put is this: "In view of the fit and proportionate sentence, is the mandatory minimum sentence grossly disproportionate to the offence and its circumstances? If so, the provision violates s. 12." The Supreme Court set a high threshold for finding that a sentence represents a cruel and unusual punishment. A sentence must be more than merely excessive. "It must be 'so excessive as to outrage the standards of decency' and 'abhorrent or intolerable' to society." The Court in Lloyd indicated, in dealing with s. 5(3)(a)(i)(D), that the concern with that provision was that it cast a wide net and as a result it catches not only serious drug trafficking but also conduct that is much less blameworthy and that is what makes the legislation constitutionally vulnerable. On one end it catches the professional dealer of serious drugs in large quantities and at the same time it captures an addict with smaller amounts of drugs who may be sharing drugs with a friend or selling small amounts to feed his or her addiction.

[11] The Supreme Court of Canada in R. v. Nur states that in order to determine whether a mandatory minimum sentence would be grossly disproportionate for others, the court will assess reasonable hypothetical scenarios. In doing this, the court must consider situations which may reasonably arise, not whether such situations are likely to arise in the general day-to-day application of the law. Situations that are remote, far-fetched or excessive are excluded. Parliament's choice to impose mandatory minimums reflect valid and pressing objectives, and the courts should not frustrate the policy goals of our elected representatives based on questionable assumptions or loose conjecture.

Application of the Nur Test to the Case of Mr. Huynh

Part 1: What Constitutes a Proportionate Sentence

General Principles of Sentencing

[12] In determining an appropriate sentence, the court must have regard for the following:

• Circumstances of the offence and personal characteristics of the Offender
• sentencing objectives in s. 718 to s. 718.2 of the Criminal Code
• aggravating and mitigating factors
• the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances
• the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh
• the principle that courts should exercise restraint in imposing imprisonment

[13] The courts have held that the principles of denunciation and deterrence are paramount in cases involving large-scale marijuana production operations. No one factor alone will be necessarily decisive of the question of gross disproportionality. However, if the sentencing provision is not shown to be grossly disproportionate to the particular offender then the court may then move to the next phase of analysis to examine the reasonable hypothetical scenarios put forth by the Applicant and the application of the law to determine whether it is constitutional.

Gross Disproportionality Analysis

Particularized Inquiry

[14] There are several factors to consider when assessing whether a mandatory minimum sentence is grossly disproportionate. R. v. Morrisey, 2000 SCC 39 at para 27 and 28, outlines these factors as:

• the gravity of the offence
• personal characteristics of the offender
• the circumstances of the offence
• the actual effect of the punishment on the particular offender
• the penological goals and sentencing principles reflected in the mandatory minimum sentence
• the existence of valid effective alternatives to the mandatory minimum
• a comparison of punishments previously imposed for similar crimes

[15] The particular provisions in issue in this application, ss. 7(2)(b)(v) and 7(3)(a) of the CDSA, are part of a broader sentencing regime. This sentencing regime includes a minimum jail term for specific drug offences, in relation to substances listed in particular schedules, upon proof of specific aggravating factors. The Crown argues this graduated approach and the imposition of increased MMPs only where the aggravating circumstances are present is what protects these provisions from constitutional vulnerability.

Gravity/Circumstances of the Offence

[16] The accused pled guilty to producing marijuana, contrary to s. 7(1) of the CDSA. He produced 957 marijuana plants using real property that belonged to an innocent third party. When the police investigated, they also found 4971 grams of dried cannabis marijuana. They estimated the potential value of the drugs seized to be slightly over $1 million dollars. The defence does not accept that this was the potential value but agrees there would have been significant value to this operation. This was a large-scale sophisticated grow operation that included a hydro bypass.

[17] The accused's grow operation not only exposed the community to the well-known health and safety risks posed by illegal marijuana production, but his grow operation also contributed to the socially-destructive forces of the commercial drug trade.

Personal Characteristics of the Offender

[18] The accused is a 48-year-old male with no prior criminal convictions. He pled guilty to the offence in question. He was born in Vietnam and came to Canada in 1993. The accused comes from a family of 9 siblings who continue to provide support to him and each other. Despite living in Canada for a number of years, the accused has a limited use of the English Language and the assistance of an interpreter was used throughout these proceedings. The Accused and his wife are separated but they continue to share three children aged 18, 16 and 15. The accused has worked in Vietnamese restaurants and construction from time to time, but at the time of these offences the accused was unemployed. He has had to borrow money from family to make ends meet. It was as result of the financial stress that the accused decided to grow cannabis marijuana in the home he rented in Kanata for monetary gain. In the PSR the accused indicated that he plans to take English Language classes and work as a manicurist in the future.

The Victim

[19] The accused used the rental property of a third party, Kim Nguyen. Ms. Nguyen chose not to submit a Victim Impact Statement. There is no suggestion that Ms. Nguyen was implicated in the marijuana production nor have I been advised that she is seeking any restitution for damage that was done to her house.

Penological Goals and Sentencing Principles Reflected in the Mandatory Minimum Sentence

[20] The Hansard debates have proven to be a helpful tool in assessing the penological goals and sentencing principles reflected in the challenged mandatory minimum sentence. Kerry-Lynne D. Findlay, then Parliamentary Secretary to the Minister of Justice, commented that Parliament was motivated by the significant increase in marijuana grow operations, particularly those located in British Columbia. The mandatory minimum sentences imposed, in relation to these operations, reflected a choice by Parliament at the time to prioritize the objectives of denunciation and deterrence when sentencing offenders for commercial production of marijuana. The goals of Parliament are of course also set out in the general sentencing principles of the Criminal Code. As well, the court in R. v. Goltz notes that it is within the scope of Parliament's ability to choose to focus specifically on the principles of denunciation and deterrence. General deterrence and denunciation have been the paramount sentencing principles applied to such cases of commercial production of marijuana. The reason the case law has articulated that these principles must be paramount is because these cases involve significant planning, they require time, sophisticated equipment and are offences motivated by commercial monetary gain.

The Mandatory Minimum Sentence: Is it Grossly Disproportionate for the Offender

Case Summaries

[21] I have reviewed a number of authorities, in an effort to determine what the appropriate range of sentence would be in this matter in order to compare that range to the sentence required under the MMP. Below is a table setting out the decisions of courts involving large scale marijuana grow operations of a similar size and scale to that of the accused.

Defence Cases

Case	Facts	Mitigating Factors	Aggravating Factors	Sentence
R. v. Nguyen, [2013] O.J. No. 362 (OCA)	Gardener in a large scale residential grow with a hydro bypass. 1200 plants. Street value of plants was $1.2 million			Appeal from 15 months. Sentence of 10 months' jail imposed by the OCA
R. v. Nguyen, [2006] O.J. No. 1607 (OCJ)	Guilty of production of marijuana, possession for the purposes of trafficking and theft of electricity. Sophisticated operation.	No criminal record; Good behaviour between charges being laid and trial	Over 600 plants in various stages of growth; Large scale operation and use of sophisticated equipment; No plea of guilt. Guilty after trial	12 months in jail. Incarceration is the only sentence that is appropriate to the gravity of the offence and degree of responsibility of the offender
R. v. Zheng, [2013] O.J. No. 3218 (SCJ)	Large scale marijuana grow operation; commercial enterprise; accused was only there tending the plants with others a gardener	Plea of guilty; First time offender, 52 years old; No evidence that he received any money	6000 marijuana plants; Property owned by another person	12 months less pretrial custody. MMP did not apply
R. v. Mai, [2011] O.J. No. 920 (OCJ)	Fairly large scale marijuana grow operation, hydro bypass	No criminal record; Has work; Gambling addiction at the root of the offence; Completed counselling	528 plants	10 months in jail
R. v. Su, [2014] O.J. No. 4671 (SCJ)	Hydro bypass at a marijuana grow operation	First time offender; Low risk to reoffend; Accepts full responsibility by pleading guilty	536 plants	6 months in jail

Additional Defence Cases:

• R. v. Bick, [2012] O.J. No. 1787 (OCJ) — 3000 plants grown in a commercial property converted to grow marijuana. 12 month jail sentence imposed.

• R. v. Ingster, [2003] O.J No 4586 — Ontario Court of Appeal upheld a 12 month jail sentence for a sophisticated grow-op of 855 plants. Sentence was imposed after trial.

• R. v. Macsanzsky, 2013 ONCA 672 — Ontario Court of Appeal upheld a 9 month sentence for production, possession for the purpose of trafficking and theft of electricity for a large residential grow-op of a significant value. This sentence was imposed after trial.

• R. v. Nguyen (2007), 2007 ONCA 645, 227 C.C.C.(3d) 262 — the Ontario Court of Appeal described 15 months as "high" but not outside the range for 1,121 plants and 18 pounds of harvested marijuana in a residential grow-op with a hydro bypass.

R. v. Vu, 2015 ONSC 5834

Facts: Large sophisticated marijuana grow operation comprised of 1,020 plants, 66 km of wet marijuana, and a hydro bypass. It was a large and highly sophisticated grow-op. The property was owned by a third party but the PPSC did not rely on that factor. Estimated value of the operation between $175,000 and $250,000. Offender had a prior conviction for cultivation, for which he received a four-month sentence. The grow operation constituted a potential public safety hazard in a residential area due to the fire risk posed by the hydro bypass. The accused was more than a gardener but less than a principal. Accused was 42 and had a prior record for cultivation for which he received a 4 month sentence. Crown sought the three year MMP but agreed the range without the MMP would be 15 to 24 months.

Law: The court found that the appropriate range would be 15 to 24 months without the MMP. The court also found that the imposition of the mandatory minimum would NOT be grossly disproportionate for this offender. But having regard to the reasonable hypothetical if the MMP of three years was imposed in the absence of a hypothetical offender's proven knowledge of the aggravating factor of the potential public safety hazard of the hydro bypass. Similarly, the mandatory minimum would be disproportionate in the hypothetical case of a licensed grower who mistakenly exceeded his or her authorized limit of plants.

Conclusion: A two to three-year sentence would be grossly disproportionate. It followed that s. 7(3)(c) of the Controlled Drugs and Substances Act breached s. 12 of the Charter. The mandatory minimum sentences imposed by ss. 7(2) and 7(3)(c) of the Controlled Drugs and Substances Act were found to be inconsistent with s. 12 of the Charter and were therefore declared of no force or effect.

R. v. Serov, 2016 BCSC 636

Facts: Application for a declaration that the mandatory minimum sentencing provisions for possession of marijuana for the purposes of trafficking and production of marijuana are unconstitutional. 248 plants found in rented warehouse unit. Argued that mandatory minimum sentence provisions in ss. 39 and 46 of the Safe Streets and Communities Act breached ss. 7 and 12 of the Charter. Argued that provisions were grossly disproportionate as they applied to him. Crown agreed that absent the mandatory minimum sentence provisions that the accused, Serov would receive 8 to 15 months' imprisonment. The Crown argued that the effect of the mandatory minimum sentence of 18 months would be to add at most six months to the sentence that he would have received prior to the Criminal Code amendments.

Mitigating Factors: No criminal record. Prior to his conviction, he worked as an insurance adjuster.

Aggravating Factors: Not a mere caretaker or gardener in the growing operation. Number of plants and the fact that the premises were rented to him by a third party.

Conclusion: The mandatory minimum standards applied where certain aggravating factors were present. Serov would have received a sentence of 12 months' imprisonment. The mandatory 18-month sentence was not grossly disproportionate. This was a mid-level operation for commercial profit. The mandatory minimum sentences in ss. 39 to 46 of the Safe Streets and Communities Act were not grossly disproportionate and did not breach ss. 7 or 12 of the Charter.

Crown Cases

Case	Facts	Mitigating Factors	Aggravating Factors	Sentence
R. v. Le, 2015 ONSC 1464	Marijuana grow operation; guilty of production, possession for purposes of trafficking, conspiracy to produce, and forgery. Accused had increased moral blameworthiness	No prior criminal record; Takes care of mother and daughter; A lot of debt	His proven activity involved considerable moral blameworthiness; Large-scale operation with the potential of generating millions of dollars (5,000 plants); Mid-level participant in the scheme	Appropriate range for a large-scale marijuana grow operation is between 3 and 7 years. Where there are mitigating factors, appropriate sentence can be as low as 18 months. In rare cases, a conditional sentence of imprisonment has been imposed. 2 years less one day in prison
R. v. Song, 2009 ONCA 896	Large scale marijuana grow operation in residential area which involved a hydro bypass	First time offender; Significant aggravating factors	1,400 plants	12-month conditional sentence at trial. ONCA found that this was not a case where a conditional sentence would be appropriate. Trial judge erred in not applying general and specific deterrence, the provisions of the CC, and jurisprudence. Because the accused has already served his sentence, not appropriate to send him to prison at this point
R. v. Moffat, 2012 ONSC 1720	Sophisticated operation for no purpose other than commercial gain. Possession of marijuana for the purposes of trafficking, production of marijuana, and possession of a weapon	Cooperative with police and author of pre-sentence report; Entered a guilty plea with respect to the 3 counts before the court; Responded well to community supervision for previous order and completed some counselling programs; Positive work record	451 plants; Prior record, including: marijuana production and assault; Long-term user of marijuana; Marijuana operation in a residential area	12 months in prison followed by 2 years' probation
R. v. Orlandis-Habsburgo, 2014 ONSC 3096	Accused guilty of production of marijuana; possession of marijuana for the purposes of trafficking; and possession of property exceeding $5,000 obtained through crime in a residential area. There were 187 marijuana plants. The accused made an application seeking that a number of provincial and federal privacy acts are unconstitutional, along with Horizon Utilities' practice of passing hydro records onto the police. They seek an order quashing the warrant obtained and the evidence found pursuant to s. 24(2) of the Charter			Majority: There was an implied contract between Horizon and the Applicants. The Applicants have standing to bring the challenges. The cultivation of marijuana in a residential setting for the purposes of trafficking is a serious and significant crime, one with major repercussions to society and to the innocent individual homeowners of these residential grow operations. Consumption data released by Horizon to the police did not go to the biographical core of personal, intimate details of the lifestyle and personal choices of the Applicants, they could not reasonably have had an objective expectation of privacy. It was reasonable for Horizon to release the data to the police. The privacy legislation is not inconsistent with the Charter. Conclusion: No Charter breaches. Search warrant was valid.

Additional Crown Cases:

• R. v. Huy Nguyen, Aug 2, 2016, OCJ, Justice Pockele — Large scale residential grow-op over 600 plants near a school and property owned by a third party. Accused had a license to grow 146 marijuana plants. The court found no violation of s. 12 of the Charter but indicated but for the MMP he would have imposed a sentence of 15 to 24 months.

• R. v. Nguyen, 2016 ONCA 182 — Accused had a garden supply company. Police discovered 4 separate marijuana grow-ops. OCA substituted sentence of 20 months for Production and 20 months Possession for the Purpose of Trafficking.

• R. v. Ha, 2008 ONCA 749 — Accused had a large residential grow-op with a hydro bypass. Accused sought a conditional sentence. 18 months' jail and 8 months' probation imposed for Production. Property owned by his father.

• R. v. Li, 2007 ONCA 645 — Large sophisticated grow-op, over 1121 plants, 18 pounds of harvested marijuana, hydro bypass with theft of over $10,000 of stolen electricity. Conditional sentence denied. 15 month said to be high but not outside the range.

R. v. Judd

Facts: Accused seeks an order declaring ss. 7(2)(b)(v) and (vi) and 7(3)(a) and (c) of the CDSA of no force and effect under s. 52 of the Constitution Act. The accused argues that the provisions do not accord with ss. 7 and 12 of the Charter. The applicant's counsel concedes the mandatory minimum sentences are not inappropriate or grossly disproportionate in respect of the accused's circumstances.

Aggravating factors: The marijuana grow operation was significant in scale (2,190 plants), operation was carried out in a rented residential property, accused has a lengthy criminal record, accused is entrenched in a criminal lifestyle and avoids conventional employment.

Primary hypothetical scenario: Accused is a gardener in a growing operation located in a home. The gardener is only responsible for the operation located in the basement of the home. In the basement, only 250 plants are grown. There are an additional 251 plants grown in others areas. The gardener inquired about activities in the rest of the home but was misled. Accused is unaware of the other plants and is uninvolved in their production.

Analysis: The appropriate range for sentence in cases that predate the amendments to the CDSA is a 12-month conditional sentence to a 6-9-month jail sentence followed by probation of between 9-18 months. The conduct here constitutes serious criminal conduct. It is not appropriate to attempt to equate a party to such an operation with casual growers of a few plants, intended to supply the grower and a few friends. The net cast by these sections is not especially wide. I do not see the impugned sections "catching" anyone with little fault. It is incorrect to minimize the blameworthiness of a gardener involved in a 500 or more plant operation. He or she is someone who takes on and carries out a critical role in the enterprise.

Conclusion: While the mandatory minimum sentences under review might result in some sentences which are excessive relative to those which were imposed before the enactment of the relevant sections, that excessiveness does not transcend being "mere" and reach the heights of outraging the standards of decency or of being intolerable or abhorrent. Application relative to constitutionality dismissed.

[22] In this case, as in any case, there are a number of aggravating as well as mitigating factors that inform the appropriate range of sentence. I take into account the following mitigating factors regarding Mr. Huynh.

Mitigating Factors:

• The accused is a 48 year old man with no prior criminal record.
• He has three teenage children to support.
• The accused pled guilty which is indicative of his remorse and takes responsibility for his actions.
• The accused plea saves considerable court time and the public expense of a trial.
• The drug at issue is a schedule II substance which is considered to be a soft drug.

[23] There are also a number of aggravating facts surrounding the offence, many of which are the factors that trigger the application of the MMP.

Aggravating Factors:

• This is a relatively sophisticated marijuana grow-op involving 957 plants. Dried Marijuana in the amount of 4139 grams was also found.
• There is a significant value attributed to the potential value of the drugs seized.
• There was hydro bypass hooked up to avoid detection and necessarily involved the misappropriation of electricity and increasing the potential hazard to neighbours. This grow-op was located in a residential neighbourhood in Kanata.
• This was a commercial activity for monetary gain. The accused was driving a leased BMW 528i which based on his reported income, he would not have been able to afford.
• The accused moral blameworthiness was high as this is an offence that is not an impulsive act. Production of marijuana takes planning and in this case involved a hydro bypass.

Appropriate Sentencing Range for the Offence

[24] Pursuant to section 10 of the CDSA, the fundamental purpose of any sentence for an offence under part 1 of the CDSA is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment of offenders in appropriate circumstances, and acknowledging the harm done to victims and the community.

[25] Section 718 of the Criminal Code also requires that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[26] Production of Marijuana although without question a serious offence, must be examined in the context of other drugs prohibited in the CDSA. Marijuana is a schedule II substance and is classified as a soft drug compared to those listed in schedule I of the CDSA. It is clearly set out by the case law that in cases of production under s. 7 of the CDSA that general deterrence and denunciation are the paramount principles of sentence to be applied in determining a fit and appropriate sentence.

[27] The accused in this case is treated as first offender. He supports his family of three teenage children and at the time of this offence he was unemployed. He was the only person found on the premises of the grow-op and the information supports that he would be a principal in terms of his involvement, more than a gardener. The lease to the property was in his name.

[28] After reviewing the case law provided by both Crown and defence counsel, and considering the circumstances of the offence and the particular general aggravating and mitigating factors, I have concluded that the appropriate sentencing range for this offence is would be 12 to 15 months absent the MMP.

[29] I have excluded the case of R. v. Le, 2015 ONSC 1464, from my analysis as an anomaly and factually dissimilar to the case before me. This case prescribes a sentence of 2 years less a day for a large scale marijuana grow operation of 5,000 plants. First, 5,000 plants are a significantly larger amount than the 957 plants in the case at bar. Second, in the factually similar case of R. v. Zheng, [2013] O.J. No. 3218, the accused was sentenced to 12 months' custody for 6,000 plants. Unlike all of the other cases, the court in Le states that the appropriate sentence for such an offence, when no mitigating factors are considered, is 3 to 7 years' incarceration. This is incompatible with all of the other case law.

[30] Many of the other cases provided, have dealt with very sophisticated marijuana grow operations, between 528-6,000 plants. Most of the cases dealt with hydro bypasses, real property of innocent third parties, and substantial participation in the operation by the accused. The sentences predominantly ranged from 10-12 months; however, case law supports that sentences have gone as low as 6 months as well. In this case, during submissions the Crown conceded that absent the MMP that the appropriate range of sentence for Mr. Huynh would be 12 to 18 months' custody. The defence suggests that while the range of sentences is "all over the map" and on that point I agree that the range of sentence is somewhere around 12 months for a case such as this. As previously stated, I find the range of sentence to be 12 to 15 months given the various factors previously set out.

[31] The Crown relies on the case of R. v. Judd, where the court determined that the mandatory minimum sentences for ss. 7(2)(b)(vi) and 7(3)(a) of the CDSA did not violate s. 12 of the Charter. In that case, the accused conceded that the mandatory minimum sentences were not grossly disproportionate in respect of the accused's own circumstances, the court continued to test the impact of the impugned provisions on other potential offenders. After reviewing the case law of R. v. Nguyen and R. v. Emonts, the court determined that the appropriate range for this offence was anywhere from a 12 month conditional sentence to a 6-9 month jail sentence followed by probation. The court noted that demonstrating gross disproportionality is a high standard that goes beyond that which is merely excessive. The court determined that the mandatory minimum sentence will not capture a broad range of conduct, that it will be isolated to operations which are commercial in scale, and where the primary motive is profit. The court in Judd considered factors, such as: role in the enterprise, profit and significant property damage. Ultimately, they decided that the mandatory minimum sentence does not infringe s. 12 of the Charter.

[32] I must respectfully disagree with this analysis. At the high end of the range given by Judd, the accused would be sentenced to 9 months in jail followed by probation. This is 27 months less than the mandatory minimum sentence imposed under the circumstances. To me, this is nothing short of grossly disproportionate. Further, the court only contemplated the participation of a gardener or "mastermind" of the operation, but excluded the participation of any individual who may contribute in a smaller capacity. Such individuals will participate less in the operation and profit a substantially smaller amount than both the gardener and the principal. This individual, however, will be charged with the same offence if they are found working in the property of an innocent third party on more than 500 plants. I think it is unwise to claim that this mandatory minimum sentence will not capture a range of offenders, at least to some degree. Ultimately, I do not find the court's analysis in Judd to be persuasive.

[33] I must also consider the case of R. v. Nguyen, August 6, 2016, (OCJ), where an accused was found guilty of production of marijuana in excess of 600 plants in a house owned by a third party. The accused had no prior criminal record. The court reviewed more than seventeen decisions and determined that the appropriate range was between 90 days – 2 years in custody. Justice Pockele, however, stated that he had never imposed a sentence of over 18 months in the circumstances. The court further noted that Mr. Nguyen was some seven plants over the limit and that this mandatory minimum penalty would impact him. In assessing the imposition of a three-year custody term, the court stated at pg. 15 that "this mandatory minimum is a significant and dramatic new benchmark". Despite this, the court determined that the accused was not persuasive in his argument that the imposition of the mandatory penalty would be grossly disproportionate. This decision in my view is difficult to reconcile given that this justice indicated that he had never imposed a sentence of over 18 months for this offence.

[34] In this case, the sentence required to be imposed for this accused by the MMP is double the jail sentence suggested by the Crown at the highest end of the range they suggest is appropriate and three times greater than what they have suggested at the lower end of the appropriate range. I have found the appropriate range to be 12 to 15 months so the required sentence would be approximately 2 1/2 to three times greater than that range. This is the difference between a jail sentence that could be served in a provincial reformatory located close to friends and family versus a sentence served in a federal penitentiary which is usually reserved for the most serious often violent offenders.

[35] In R. v. Lloyd, the Supreme Court of Canada states at paragraph 24 that for a sentence to be grossly disproportionate, a sentence must be "so excessive to outrage the standards of decency" and "abhorrent or intolerable" to society. In my view, a sentence of two or three years greater than what the Crown agrees is otherwise fit and appropriate and one that sends someone to a federal penitentiary rather than a provincial reformatory and the effect that greater sentence would have on the accused is something that would be abhorrent or intolerable to a reasonable person aware of the facts and circumstances.

[36] While it is important to take Parliament's intent into consideration, in imposing mandatory minimum sentences for such aggravating offences, the jurisprudential history leads me to conclude that a three-year mandatory minimum sentence would be grossly disproportionate in the circumstances.

Part 2: Reasonable Hypothetical Inquiry

[37] The Supreme Court in R. v. Goltz notes that the burden is on the applicant to identify reasonable hypothetical scenarios in which the impugned law would give rise to a punishment that is not just harsh or excessive, but so grossly disproportionate that it warrants the extreme remedy of striking down the law. The S.C.C. in Nur indicated that constitutionality should not be tested on the basis of marginal, farfetched or remote or extreme fact patterns. The test is one of reasonable foreseeability whether the MMP will impose sentences that are grossly disproportionate to some people's situations.

[38] The defence has provided the following two hypotheticals:

a) A person who is guilty of assisting another in a marijuana grow-op operation in some minor way at the residence of another person where 502 marijuana plants are growing.

[39] The scenario above fails to specify whether the "residence of another person" is a person who is involved in the grow operation or an innocent third party. Given how the case law has defined residence of another person and the aggravating factor being dealt with in the case at bar, under s. 7(3)(a) of the CDSA, I will consider in the hypothetical that the property belongs to an innocent third party.

[40] If we choose to interpret the hypothetical as being the residence of an innocent third party, the mandatory minimum sentence of three years in jail would be a grossly disproportionate sentence. It would be illogical to sentence an individual with minor involvement in the operation in the same way as a gardener or principal. This individual may have only dropped by and agreed to tend a plant on one or two occasions, and yet would now be sentenced to a term of three years in prison. Even if police knew this to be the case from surveillance or wiretap, the accused would be caught by the three year mandatory sentence. Perhaps the person who stopped by and assisted with tending a plant may have been an addict attending the residence to purchase marijuana, and offered to help for a few moments out of politeness. Neither of these accused would necessarily know that the property was owned by a third party and nor would their actions endanger the public which arguably is the activity the MMP is meant to sanction. This MMP would have to be imposed even in cases where there is not a hydro bypass and where the house is isolated in the countryside where no neighbours would be put at risk. This hypothetical scenario outlines a broad range of offenders which may be caught by this mandatory minimum sentence. It is this type of broad range conduct that may be captured by the minimum sentence that makes it constitutionally vulnerable. The application of this hypothetical would impose a sentence of three years for a person whose involvement was minimal. That deprivation of liberty for someone whose moral blameworthiness is minimal and where there was an absence of any real harm or real risk of harm would result in a sentence which is grossly disproportionate on such offenders.

[41] The second hypothetical suggested by the Applicant is that:

b) An assistant to an 'over the license limit offender' who has a permit to grow 500 plants but is actually growing slightly more plants. The permit holder is the owner of the real property; the assistant is not.

[42] There are a few issues with the above-noted hypothetical scenario. First, the scenario involves an individual who is licensed to grow 500 plants. As such, he is only guilty of growing 2 plants over the limit.

[43] Second, the real property that is used for the grow operation is under the ownership of one of the individuals involved. This individual is complicit to the offence; he is not an innocent third party. This differs from the case at bar, as the property involved is of an innocent third party. I must conclude that this hypothetical scenario, put forward by the defence, is not a reasonable hypothetical scenario which assists in the consideration of gross disproportionality. In order to properly assess whether a sentence is grossly disproportionate, the circumstances presented must not only have some reasonable prospect of arising, but the scenario presented must be one in which the particular offence was committed. The possibility of such a conviction, on the facts put forward by the defence, is both remote and farfetched.

Conclusion

[44] I am persuaded that the defence has met their burden in establishing that the mandatory minimum sentences required by ss. 7(2)(b)(vi) and 7(3)(a) are grossly disproportionate as they apply to other persons who may be caught by this legislation. The mandatory minimum sentence should be found unconstitutional under s. 12 of the Charter.

[45] Having made the finding that the sentence would be unconstitutional, I will now hear argument from the Crown regarding whether this legislation can be saved by Section One of the Canadian Charter of Rights and Freedoms.

Released: March 21st, 2017

Signed: Justice Heather Perkins-McVey

Footnotes

[1] R v Smith, [1987] 1 SCR 1045 at 1073.

[2] Ibid at 1072.

[3] R v Nur, 2015 SCC 15 at para 77.

[4] R v Nur, 2015 SCC 15 at para 46; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R.130 at para 23.

[5] Ibid at 68.

[6] Ibid.

[7] R v Nur, 2015 SCC 15.

[8] Ibid at para 41.

[9] R v Kwiatkowski, 2010 BCCA 238 at para 13; R v Brooks, 2006 ABCA 285 at para 2; R v Chen, 2007 ONCA 230, [2007] OJ No 1153 at para 2; R v Song, 2009 ONCA 896 at paras 15-17.

[10] R v Morrisey, 2000 SCC 39 at paras 27-28.

[11] Hansard, 41st Parl, 1st Sess, No 17 (21 September, 2011) at 1645.

[12] Ibid.

[13] R. v. Goltz, [1991] 3 SCR 485 at para 501.

[14] R v Nguyen, 2004 CarswellOnt 8165.

[15] R v Emonts, 2011 ONCJ 544.

[16] R v Randall Judd, August 12, 2016, Hamilton, Parayeski J (Ont SCJ), unreported, at page 7.

[17] Ibid at page 8.

[18] R v Huy Nguyen, August 6, 2016, Brampton, Pockele J (OCJ), unreported, at page 13.

[19] R v Huy Nguyen, August 6, 2016, Brampton, Pockele J (OCJ), unreported, at 15.

[20] R v Goltz, [1991] 3 SCR 485 at paras 45 and 85.