Court Information

Ontario Court of Justice

Date: 2020-01-31

Court File No.: Simcoe 17-400 and Hamilton 18-10289

Parties

Between:

Her Majesty the Queen

— And —

De Fei Wu

Before: Justice J.P.P. Fiorucci

Sentencing Submissions Heard: August 15, 2019

Reasons for Sentence Released: January 31, 2020

Counsel

J. Pereira — Counsel for the Crown (Agent, Public Prosecution Service of Canada)

K. Schofield — Counsel for the Defendant, De Fei Wu

FIORUCCI J.:

INTRODUCTION

[1] On October 3, 2018, Mr. De Fei Wu entered a guilty plea to the offence of Production of a Controlled Substance, Cannabis Marijuana, contrary to section 7(1) of the Controlled Drugs and Substances Act (CDSA). The offence date was June 14, 2017. Counsel requested that I defer making a finding of guilt until such time as an Agreed Statement of Facts could be provided.

[2] For various reasons, sentencing submissions were delayed until August 15, 2019. At that time, counsel filed an Agreed Statement of Facts and I made a finding of guilt. Counsel made their respective sentencing submissions, and submissions with respect to the Crown's application to forfeit the real property upon which the cannabis marijuana was produced as "offence-related property", pursuant to section 16(1) of the CDSA.

[3] On October 18, 2019, I suspended the passing of sentence and placed Mr. Wu on probation for two years with conditions. I also made ancillary orders which I will detail below. I dismissed the Crown's application for forfeiture of the real property, or any part of the real property. These are my reasons for sentence and for dismissing the Crown's forfeiture application.

POSITION OF THE CROWN AND DEFENCE

[4] The Crown sought a four-year jail sentence and submitted that there should be full forfeiture of the real property. The Defence said that a suspended sentence with a period of probation was appropriate, and that there should be no forfeiture of the real property when the court applies the proportionality test set out in section 19.1(3) of the CDSA.

CIRCUMSTANCES OF THE OFFENCE

[5] In March of 2017, police commenced an investigation into the cultivation of marijuana at the property municipally known as 681 Concession 14 Townsend, 681A Concession 14 Townsend, 681B Concession 14 Townsend, 681C Concession 14 Townsend, and 681D Concession 14 Townsend (collectively "the Property"). The Property is on a residential agricultural zoned lot. It consists primarily of greenhouses, outbuildings and a two storey residence.

[6] Mr. Wu purchased the Property on March 1, 2017 for 1.48 million dollars. At all material times, he was a shareholder and the acting mind of the numbered company that was the registered owner of the Property. Mr. Wu purchased the Property for the purpose of producing his own marijuana for medical purposes, and to permit other individuals to produce and store marijuana there pursuant to the Access to Cannabis for Medical Purposes Regulations (ACMPR).

[7] On February 2, 2017, prior to purchasing the Property, Mr. Wu had submitted his first application to produce marijuana for his own medical purposes. This first application was received by Health Canada on February 3, 2017. Mr. Wu anticipated that the licence would be processed quickly and approved. However, Health Canada did not respond to Mr. Wu's first application. It is believed that the first application was either lost, misplaced, or not processed.

[8] The police executed section 11 CDSA search warrants at the Property on June 14, 2017. The police located and arrested Mr. Wu inside one of the greenhouses on the Property. The police also located many other individuals in the greenhouses.

[9] The search of the greenhouses on the Property yielded 5,122 cannabis marijuana plants in different heights and stages of growth and 21 pounds of marijuana shake. The police seized 67 vacuum sealed bags containing 14,942 grams of dry cannabis marijuana bud from a bedroom in the residence. In the bedrooms and the kitchen of the residence, the police seized $14,005 in Canadian currency, $10,400 of which was found in the bedroom being used by Mr. Wu. Other items seized included a commercial vacuum sealer with a quantity of packaging material, a digital weigh scale, and an industrial marijuana bud processor.

[10] Prior to the execution of the search warrants, sixteen individuals had applied to Health Canada for ACMPR licences to grow and store medical marijuana on the Property. On June 14, 2017, all of these applications were pending, except for those of two individuals who were licenced to produce a total of 488 marijuana plants (244 plants each), and to store a total of 21,960 grams of marijuana (10,980 grams each) on the Property.

[11] Of the 5,122 marijuana plants seized by the police, the number of potentially viable plants was 4,075. The Crown could not establish that the remaining 1,047 plants were viable because 712 were clones and 335 were less than two to five inches in height. Had all sixteen licences been granted by June 14, 2017, they would have authorized the production and storage of a quantity of plants and marijuana in excess of the viable plants and marijuana that the police seized.

[12] On June 14, 2017, Mr. Wu was personally producing and had a direct interest in 244 marijuana plants, and he was aware that there was dried marijuana on the Property for which he had not yet been issued a registration certificate. Mr. Wu also knew about the remaining marijuana plants and marijuana that the police seized at the Property. Mr. Wu, as the acting mind and principal of the numbered company, permitted individuals to produce and store marijuana on the Property in consideration of fees ("Growing Fees") that were paid to him. Mr. Wu did not take steps to confirm whether each of these persons had ACMPR licences to produce and store marijuana on the Property. He did not know whether each of these individuals had licences, but he did know that the two individuals mentioned above had been licenced to produce a total of 488 plants and to store a total of 21,960 grams of cannabis marijuana on the Property by June 14, 2017.

[13] The Crown conceded that, on June 14, 2017, the police seized and removed all of the plants and dry marijuana from the Property, including the plants and dry marijuana for which the two individuals had valid licences. These two licences became effective on the date of the search. The police did not know that the two licences had been granted when they seized all of the plants and dried marijuana.

[14] The $14,005 that the police seized from the residence had been collected by Mr. Wu as Growing Fees from other individuals who had not been authorized by Health Canada to produce or possess medical marijuana under the ACMPR.

[15] The estimated value of the seized marijuana was in the range of $1,081,800.00 to $1,803,000.00, if the plants yielded 90% crop potential and sold at the pound level.

[16] After the police executed the search warrants at the Property, the process of obtaining licences under the ACMPR continued. In fact, another individual obtained a licence to produce and store cannabis marijuana on the Property with an effective date of June 15, 2017, one day after the execution of the search warrants.

[17] On July 6, 2017, Mr. Wu re-submitted a second application for his ACMPR licence, which was received by Health Canada on July 10, 2017. Within eleven days Mr. Wu was authorized to grow 244 marijuana plants and to store 10,980 grams of marijuana on the Property. Thereafter, five additional individuals received ACMPR licences to produce and store cannabis marijuana on the Property. These other licences became effective on various dates between September 12, 2017 and February 2, 2018. As of the date of sentencing submissions, individuals including Mr. Wu himself continued to grow and store marijuana on the Property, pursuant to valid medical marijuana licences.

CIRCUMSTANCES OF THE OFFENDER

[18] Mr. Wu is 49 years of age. He has no prior criminal record. He was born in China. In 2006, he came to Canada as a refugee, and obtained permanent residency in 2008. Mr. Wu continues to run the farm. He is also self-employed, doing some renovation work.

[19] Mr. Wu has Hepatitis B, for which he takes medication. He suffers from chest pain caused by surgery. Mr. Wu has severe depression, which has resulted in his hospitalization.

[20] As of July 21, 2017, shortly after the execution of the search warrants, Health Canada granted Mr. Wu his ACMPR licence to produce and store cannabis marijuana on the Property. Health Canada has renewed Mr. Wu's ACMPR licence prior to each expiry date. Therefore, since granting Mr. Wu his first licence, Health Canada has consistently recognized that Mr. Wu has legitimate medical reasons to produce and store his own medical marijuana on the Property. Mr. Wu was legally producing and storing medical marijuana on the Property on the date of the sentencing hearing.

[21] Mr. Wu obtained a legal opinion from an immigration lawyer regarding the potential impact of various criminal sentencing options on his Canadian Immigration status as a permanent resident. This opinion was filed by Defence counsel as part of the sentencing materials. The immigration consequences of a given sentence are neither aggravating nor mitigating factors. The collateral consequence of a sentence, including immigration consequences, may be taken into account in sentencing as a personal circumstance of the offender. For the reasons set out below, I have found that the fit sentence in this case is a suspended sentence, having regard to the gravity of the offence and the degree of responsibility of the offender. In the circumstances, I found it unnecessary to take any collateral immigration consequences into account in arriving at the appropriate sentence.

AGGRAVATING AND MITIGATING FACTORS

[22] The aggravating factors in this case are that Mr. Wu started growing his own medical marijuana on the Property knowing that he did not yet have a valid ACMPR licence to do so. He also permitted others to produce medical marijuana on the Property, and collected Growing Fees from them, without ensuring that proper licences were in place at the time. The size of the premature medical marijuana grow operation was substantial.

[23] The mitigating factors in Mr. Wu's case include the following:

(1) He entered a guilty plea to the production offence which is an acknowledgement of responsibility and demonstrates a willingness to be held accountable for the offence. Mr. Wu pled guilty notwithstanding the Crown's concession that there were some triable issues;

(2) Mr. Wu has no prior criminal record. Mr. Wu is a first offender who has endured the stigma of being charged with and now convicted of a criminal offence. Having regard to the circumstances in which this offence was committed, and the fact that Mr. Wu is of previous good character and has a supportive family, I find that he is unlikely to reoffend;

(3) Mr. Wu was not operating a marijuana grow operation to profit from the illicit sale of cannabis marijuana. Most of the production occurring at the time of the execution of the search warrants was unlicenced, but all of the production was for medicinal purposes. The only commercial aspect of the operation was the collection of the Growing Fees, which were paid by others as rent for being permitted to grow and store their medical marijuana on the Property. The Growing Fees covered Mr. Wu's costs and generated a modest profit for renting out the facilities to others so that they could produce and store their medical marijuana. Each of these other individuals had pending applications for ACMPR licences at the time of the search, with the exception of two individuals who had valid licences which became effective on the same day that the police conducted the searches. Mr. Wu and the others who were producing cannabis marijuana on the Property always expected that licences would be granted to produce their medical marijuana, and licences were subsequently granted. The anticipated use of the Property was for Mr. Wu to grow and store his own medical marijuana and to permit others to do so. Mr. Wu has continued to operate the Property in full compliance with the medical marijuana licencing regime;

(4) Mr. Wu has health issues, including Hepatitis B, chest pain caused by surgery, and severe depression. Health Canada has approved and consistently thereafter renewed Mr. Wu's medical marijuana licence to produce and store his own medical marijuana on the Property.

SENTENCING PRINCIPLES

[24] The goal of any criminal sentence is to protect society, to contribute to respect for the law and the maintenance of a just, peaceful, and safe society. Sentencing judges attempt to achieve this goal by imposing just sanctions that address one or more of the traditional sentencing objectives that are contained in the Criminal Code. These include denunciation, general and specific deterrence, the separation of offenders from society when necessary, rehabilitation, making reparations for harm done to victims of crime or to the community, and promoting a sense of responsibility in offenders and an acknowledgment of the harm that they have caused to victims and to the community.

[25] The fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This means that the sentence I impose must be tailored to Mr. Wu's circumstances, and the circumstances of the offence he committed, with due consideration given to the relevant aggravating and mitigating circumstances.

AUTHORITIES REFERRED TO BY COUNSEL

[26] Crown and Defence counsel referred to numerous authorities to support their respective positions regarding the appropriate sentence for Mr. Wu. I will not refer to each of the authorities provided by counsel, but I will review the authorities which demonstrate that sentences for the illicit production and sale of cannabis marijuana differ significantly from sentences where production of the marijuana is for medical purposes.

[27] The Crown relied on the Ontario Court of Appeal decision of R. v. Gobran in support of its position that a four year penitentiary sentence is appropriate. In Gobran, the offender was involved in three active marijuana grow operations that the sentencing judge described as a substantial commercial enterprise. In total, over 6,000 marijuana plants were seized and the estimated value of the marijuana was $1.6 to $2.5 million. The offender also maintained two storage units for marijuana which contained substantial quantities, all packaged for sale.

[28] Mr. Gobran entered guilty pleas to two counts of production of marijuana and three counts of possession for the purpose of trafficking. The sentencing judge found Mr. Gobran to be the controlling mind behind the operation, and that he was involved for financial gain. The Ontario Court of Appeal upheld the sentence of five years jail concurrent on the production of marijuana counts.

[29] The Gobran decision is distinguishable from Mr. Wu's case. In Gobran, the police seized marijuana at six different locations, both residential and rural. The offender was the principal of a large-scale operation, which had as its goal the illegal distribution of marijuana for financial gain. The grow operation in Gobran was not established for the purpose of producing marijuana for legitimate medical purposes.

[30] The Crown also relied on the Ontario Superior Court of Justice case of R. v. Just. Mr. Just, a vegetable farmer who lived in a rural area, was sentenced to two years jail concurrent on two counts of production of cannabis marijuana and one count of possession of cannabis marijuana for the purpose of trafficking. Like Gobran, the Just decision deals with a first-time offender who was involved in a large-scale commercial operation, although the size of the operation was smaller than that in Gobran. Officers seized 3,775 cannabis marijuana plants at two properties. One location was farmland that Mr. Just was renting from another farmer and the other location was his own residential property. The total estimated street value of the cannabis marijuana that the police seized was $1,283,550.00.

[31] Again, this case is distinguishable from Mr. Wu's in that it did not involve the production of marijuana for medical purposes, but simply for financial gain. Mr. Just was motivated by greed. In running the operation, he employed four men through the Canada/Mexico Agricultural Workers Program. Therefore, the sentencing judge found it to be an aggravating factor that Mr. Just used a federal government program to hire workers to support his illegal enterprise. The operation was large-scale and sophisticated, and the offender used real property belonging to a third party to commit the offence. The case also lacks the mitigating feature of a guilty plea.

[32] The remaining authority that the Crown provided in support of its position is R. v. Lee, an Ontario Court of Justice decision of Rose, J. Mr. Lee was sentenced to a five year term of imprisonment globally for findings of guilt after trial on two counts of production of marijuana and two counts of possession of marijuana for the purpose of trafficking. The Crown contended that Mr. Wu's case has some similar aggravating features to those in Lee.

[33] For instance, the Crown submitted that Mr. Wu was the acting mind of a corporation that operated a large commercial enterprise with over 5,000 plants and that Mr. Wu's motivation was profit. With respect, I disagree with the Crown's characterization of Mr. Wu's motivation. Applications were made by various individuals to grow and store medical marijuana on the Property. These individuals would pay Growing Fees to Mr. Wu. Unlike the cases relied on by the Crown, there was no evidence that Mr. Wu's motivation was to operate a grow operation to facilitate the illicit sale of cannabis marijuana on the open market for profit.

[34] Defence counsel provided numerous authorities in support of Mr. Wu's submission that a suspended sentence was appropriate in these circumstances. The Crown rightly submitted that some of the Defence authorities are distinguishable from Mr. Wu's case. However, I find that some of the authorities relied on by the Defence illustrate the significant distinction between production for illicit purposes and production for medical purposes without being properly licenced.

[35] For instance, in the unreported decision of R. v. Li, the offender permitted others to produce marijuana at a facility that he in part oversaw. Mr. Li knew that these individuals had not yet received their licences to produce medical marijuana. Mr. Li himself did have a licence. In Li, the police seized 2,650 plants. After reviewing the applicable sentencing principles, the presiding Justice suspended the passing of sentence and placed Mr. Li on probation.

[36] One feature that distinguishes Li from Mr. Wu's case is that Mr. Li's case was delayed over five years, at his request, as challenges to the mandatory minimum sentence provisions for marijuana production were being challenged and ultimately struck down in appellate courts. The fact that the delay resulted in Mr. Li being on house arrest for four years was one factor that contributed to the presiding Justice suspending the passing of sentence. However, one significant aggravating factor that existed in Li, which is absent in Mr. Wu's case, was Mr. Li's prior conviction for marijuana production, for which he had received a lengthy conditional sentence. The significant factual similarity between Mr. Wu's case and Li is that both involved the premature production of marijuana prior to valid licences being granted for the production of medical marijuana.

[37] In R. v. Prior, the offender entered a guilty plea to production of cannabis marijuana. On March 3, 2015, police executed a search warrant at Mr. Prior's home and discovered 99 marijuana plants in various stages of growth; there were 60 clones or clippings, 26 flowering plants, and 13 vegetative plants. Mr. Prior had a dated criminal record. However, the record included convictions for trafficking in a substance and possession for the purpose of trafficking (1991), production of a substance (1998), and simple possession of marijuana (2011/2012).

[38] The Crown agreed that Mr. Prior was growing the marijuana for medical use because of severe pain he was experiencing due to a catastrophic motorcycle accident. After his conviction for simple possession of marijuana in 2011/2012, Mr. Prior had made an application for a licence from Health Canada to possess medical marijuana and a licence to produce medical marijuana. Despite his criminal record, Health Canada issued him a licence to produce marijuana for medical purposes.

[39] Mr. Prior sent in the renewal prior to the expiration of his one year licence but did not hear back from Health Canada about whether his licences had been renewed. He was frustrated by some unsuccessful attempts he had made to speak with someone at Health Canada. In entering his guilty plea to production of cannabis marijuana for the plants police seized on March 3, 2015, Mr. Prior admitted that he should have been more diligent in following up with Health Canada. As West J. stated, "[t]his was why he pled guilty to the offence of production, as he had not received the renewal of his license to produce".

[40] Mr. Prior used marijuana to alleviate his pain. The Crown accepted that Mr. Prior sought no commercial benefit in growing the marijuana and that the production was solely for medical purposes. West J. found it to be significant that Mr. Prior had applied for the renewal of his licences to possess and produce medical marijuana prior to the execution of the search warrant:

If Mr. Prior had promptly and diligently followed up his application for renewal with Health Canada it is my belief his renewal would have been granted. The conduct therefore which determines the gravity of the offence committed by Mr. Prior is his failure to properly apply for the renewal of his licenses that Health Canada had previously approved. If his licenses had been renewed, as I believe they would have been, he would not have been guilty of any offences under the CDSA.

[41] The Crown sought a six month jail sentence for Mr. Prior. West J. accepted the Defence submission that a non-custodial sentence was appropriate by suspending the passing of sentence and placing Mr. Prior on probation for two years. In doing so, West J. stated, "[t]he Crown was unable to provide me with a single case that supported a jail sentence for persons charged with producing marihuana for medical reasons".

[42] West J. reviewed numerous authorities which resulted in non-custodial sentences for production of cannabis marijuana or possession of cannabis marijuana for the purpose of trafficking where the offences were committed for medicinal purposes.

[43] West J. noted that the "production of marijuana usually attracts a sentence that addresses the sentencing principles of deterrence and denunciation". However, West J. found that the factual circumstances in Mr. Prior's case "significantly reduce, if not eliminate, the necessity of imposing a sentence to reflect those sentencing principles". West J. went on to state:

It is my view the interests of justice require the imposition of a non-custodial sentence in respect of this charge of production given the unusual and exceptional circumstances I have outlined above. To impose a sentence of jail would be completely disproportionate to the gravity of the conduct engaged in by Mr. Prior and his motivation and reasons for producing the marihuana.

[44] The Ontario Court of Appeal decision of R. v. Maloney provides support for the proposition that the use of cannabis marijuana for medical purposes is a mitigating factor to be considered on sentence. Mr. Maloney entered a guilty plea to one count of possession of marijuana for the purpose of trafficking. He was sentenced to 30 days imprisonment to be served intermittently and a period of probation of 11 months. Mr. Maloney was in possession of 521 grams of cannabis marijuana and 55 grams of cannabis resin. He used cannabis for medicinal purposes due to back pain he suffered as a result of lumbar scoliosis. At the time of the offence, Mr. Maloney did not have an authorization to possess marijuana issued under the Marihuana Medical Access Regulations, S.O.R./2001-227.

[45] The Ontario Court of Appeal allowed Mr. Maloney's sentence appeal and reduced his sentence of imprisonment to time served, although the amount of time that Mr. Maloney had served was not set out in the Court's decision. In reducing the sentence, the Ontario Court of Appeal stated the following:

However, we are satisfied that given the appellant's illness, the uncontested fact that the appellant uses cannabis for medicinal purposes and that he has made efforts to comply with the MMAR, it is now in the interests of justice to allow the sentence appeal. Crown counsel did not oppose this disposition. Accordingly, leave to appeal sentence is granted, the appeal is allowed and the sentence of imprisonment reduced to time served. We see no reason for the period of probation and that order will also be struck out.

THE SENTENCE

[46] No minimum sentence applies to the offence of production of cannabis marijuana. Having considered the aggravating and mitigating factors in this case, I find that the interests of justice require the imposition of a non-custodial sentence.

[47] The principles of general and specific deterrence and denunciation are important principles to be considered in cases involving the production of cannabis marijuana, even in cases where the production is for medicinal purposes. The ACMPR licencing regime was in place at the time Mr. Wu permitted the production of cannabis marijuana in substantial quantities on the Property, knowing that he was not yet licenced to do so, and not having taken steps to ensure that the other individuals had received valid ACMPR licences. Respect for the law requires that individuals involved in the production of cannabis marijuana, even for medicinal purposes, comply with the regulations in existence to control and monitor the lawful production and possession of the substance.

[48] In the circumstances of Mr. Wu's case, the principles of general and specific deterrence and denunciation can be adequately addressed by registering a conviction for the offence. Section 718.2(d) of the Criminal Code states that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. Section 718.2(e) of the Criminal Code requires me to consider all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community.

[49] The mitigating circumstances I outlined above lead me to the conclusion that the stigma of having been involved in the criminal justice system and having been convicted of a criminal offence is sufficient to address the purposes and principles of sentencing in Mr. Wu's case. His compliance with the conditions of his release while awaiting disposition of his charges and his compliance with the medical marijuana regulations after he was charged, together with his previous good character, are all indicators that he does not pose a danger to the public and that he has positive prospects of rehabilitation.

[50] A suspended sentence and period of probation is proportionate to the gravity of the offence Mr. Wu committed and his degree of responsibility in the commission of the offence. The suspended sentence I imposed on October 18, 2019 was accompanied by a two year non-reporting period of probation with the statutory conditions contained in section 732.1(2) of the Criminal Code and a condition that Mr. Wu not possess any weapons as defined in the Criminal Code.

[51] I also made the following ancillary Orders on October 18, 2019. Pursuant to section 109(2)(a) of the Criminal Code, Mr. Wu was prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition and explosive substance for 10 years. Pursuant to section 109(2)(b) of the Criminal Code, Mr. Wu was prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life.

[52] The offence of production of a controlled substance is a secondary designated offence for the purpose of forensic DNA analysis. Accordingly, I was tasked with deciding whether it was in the best interests of the administration of justice to make the DNA order. In doing so, I was required to consider Mr. Wu's criminal record, the nature of the offence and the circumstances surrounding its commission, and the impact on Mr. Wu's privacy and security of the person. Mr. Wu has no criminal record. In terms of the circumstances surrounding the commission of the offence, as I stated above, he permitted production of a controlled substance in substantial quantities without ensuring compliance with the licencing requirements.

[53] In R. v. Hendry, Rosenberg J.A. stated, "[i]n my view, given an adult offender's diminished expectation of privacy following conviction, the minimal intrusion into the security of the person in the ordinary case and the important interests served by the DNA data bank, it will usually be in the best interests of the administration of justice for the judge to make the order". I found that, in light of the circumstances surrounding the commission of the offence, Mr. Wu's privacy interests and security of the person did not outweigh the interests of the administration of justice in having his DNA on file. Therefore, I ordered that Mr. Wu provide samples of bodily substances reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act.

[54] I also made an Order for forfeiture of property to Her Majesty the Queen in Right of Canada. Mr. Wu consented to forfeiture of the $14,005.00 in Canadian currency that the police seized. I also ordered forfeiture of three items: the Centurion Pro Gladiator marijuana trimming machine, digital weigh scale, and commercial vacuum sealer.

DECISION ON FORFEITURE OF REAL PROPERTY

[55] The Crown made an application for forfeiture of the Property as "offence-related property". The CDSA defines "offence-related property" in section 2(1):

2(1)… "offence-related property" means, with the exception of a controlled substance, any property, within or outside Canada, (a) by means of or in respect of which a designated substance offence is committed, (b) that is used in any manner in connection with the commission of a designated substance offence, or (c) that is intended for use for the purpose of committing a designated substance offence.

[56] Production of a substance in section 7(1) of the CDSA is a "designated substance offence". The Property in this case falls within the definition of "offence-related property". Therefore, section 16(1) of the CDSA provides that an order of forfeiture of the Property shall be made, subject to section 19.1 of the CDSA. Before a court orders forfeiture, it must consider the factors set out in section 19.1, including the proportionality factors in section 19.1(3) dealing with real property:

19.1(3) Subject to an order made under subsection 19(3), if a court is satisfied that the impact of an order of forfeiture made under subsection 16(1) … in respect of real property would be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record, if any, of the person charged with or convicted, or discharged under section 730 of the Criminal Code, of the offence, as the case may be, it may decide not to order the forfeiture of the property or part of the property and may revoke any restraint order made in respect of that property or part.

[57] Therefore, when an offender is convicted of a designated substance offence and the Attorney General requests the forfeiture of real property, the Court has a discretion to refuse to order forfeiture, in whole or in part, having regard to the applicable statutory factors in section 19.1(3). In R. v. Craig, Abella J. stated that "[t]he sentencing inquiry focuses on the individualized circumstances of the offender; the main focus of forfeiture orders, on the other hand, is on the property itself and its role in past and future crime". Abella J. also noted that "[t]he forfeiture scheme is focused in part on taking offence-related property out of circulation and on confronting organized crime, whether or not the property is owned by the offender".

[58] The proportionality analysis in section 19.1(3) of the CDSA "sets out different considerations from those mandated by the sentencing principles under the Criminal Code". In Craig, Abella J. stated that, "[w]hile the considerations under s. 19.1(3) are undoubtedly part of what is normally taken into account in the ordinary sentencing inquiry, the circumstances of the offender, a key aspect of the sentencing process, have significantly been excluded".

[59] Therefore, the issue of whether forfeiture is justified is a separate inquiry from the sentencing process. The "court is entitled to refuse forfeiture only if the impact of the forfeiture order would be disproportionate with respect to the three listed factors" in section 19.1(3). Forfeiture orders are not subject to general sentencing principles. As Abella J. noted:

The forfeiture factors found in s. 19.1(3), therefore, should similarly be seen to constitute a complete code for deciding whether, and to what extent, a forfeiture order should be made. This exercise of discretion does not engage the full panoply of principles used to determine whether a sentence is fit when the statute sets out its own guiding factors. The expansive principle of proportionality used in sentencing, therefore, has been excluded both expressly and by necessary implication, in favour of the more specific factors outlined in s. 19.1(3). The different scope and purpose of the two inquiries suggests that they ought logically to be considered as separate.

[60] In Craig, the Supreme Court of Canada held that section 19.1(3) of the CDSA enables a Court to order partial forfeiture of real property:

The proportionality test under s. 19.1(3) therefore allows a court to tailor the amount of property to be forfeited in a way that takes into account the relative weight of the listed factors. Partial forfeiture gives the court greater scope for applying the proportionality test so that the only options available to the sentencing judge are not a stark choice between full or no forfeiture. This establishes a spectrum of potential forfeiture orders that can be adjusted to reflect the relative gravity of the case, pursuant to the purposes of the forfeiture scheme.

[61] The following is my analysis with respect to the three statutory factors set out in section 19.1(3). The first factor to be assessed on the forfeiture inquiry is the nature and gravity of the offence which "could include the character and quantity of the substance involved, the level of sophistication of the crime and the extent to which the commercial production or distribution of drugs was involved".

[62] In relation to this first factor, Mr. Wu produced cannabis marijuana, a substance that is "regarded as much less pernicious" than other substances in the CDSA. Although the police seized 4,075 viable plants from the Property, this was not a case of commercial production and distribution of the drugs involved. All the marijuana that was being produced and stored on the Property was for medicinal purposes. The grow operation, however sophisticated it may have been, was established to produce medical marijuana, not to engage in the commercial production and sale of the substance. This factor militates against forfeiture.

[63] The Supreme Court of Canada has stated that "[t]he second factor, the circumstances surrounding the commission of the offence, might include consideration of the offender's role in the commission of the offence, the nature of the property and the manner in which it was used in the offence, risks to the security or safety of the community, whether the property was used in a manner that detrimentally affected its legitimate use and enjoyment, whether the property was fortified or otherwise adapted to accommodate the grow operation, the extent of the offender's involvement in organized crime and whether the property itself was held by a criminal organization".

[64] Mr. Wu purchased the Property for the very purpose of growing medical marijuana and permitting others to grow and store their medical marijuana pursuant to valid licences. When the farm was purchased, it was a tomato farm. Mr. Wu continued to produce and sell tomatoes while he awaited the medical marijuana licences that he had applied for approximately five months before the execution of the search warrants. The police observed evidence of tomato plants growing on the Property when they conducted the search.

[65] Mr. Wu's role in the commission of the offence consisted of growing and permitting others to grow the cannabis marijuana prematurely, without the necessary licences. The Property was at all material times suitable for the legitimate production and storage of medical marijuana pursuant to the ACMPR licencing regime, as evidenced by its continued use for that purpose. There was no evidence that the premature production or storage of marijuana on the Property created any risks to the security or safety of the public. There was no hydro by-pass for instance, nor did the police find any weapons on the Property.

[66] The Property was used as it was always intended to be used, which included Mr. Wu residing in the home on the Property. Mr. Wu was not involved in organized crime, nor was there any evidence that the Property was itself held by a criminal organization. This is not a case that requires "taking offence-related property out of circulation" in order to confront and combat organized crime or deprive an individual of the tools of his illicit trade. At the time of the hearing of the Crown's application for forfeiture, Mr. Wu was licenced to conduct the very activities on the Property that resulted in his conviction under the CDSA. The second factor also weighs against forfeiture.

[67] The last factor, the criminal record of the offender "will be of particular relevance if the prior offences were drug related". Mr. Wu had no criminal record. This factor too weighs against forfeiture.

[68] I dismissed the Crown's application for an order of forfeiture of the Property, or any part of the Property, because I found that the impact of such an order would be disproportionate having regard to the factors listed in section 19.1(3) of the CDSA. Pursuant to section 19.1(3) of the CDSA, I ordered that the Restraint Order and Related Management Order of the Honourable Justice R.J. Harper of the Superior Court of Justice, dated August 16, 2017, be revoked and that the Property be released to Mr. Wu.

Released: January 31, 2020

Signed: Justice J.P.P. Fiorucci