ONTARIO COURT OF JUSTICE DATE: 2022 09 27 COURT FILE No.: 2811-998-20-36933-02
BETWEEN:
HIS MAJESTY THE KING
— AND —
TUAN TAI LE, BA LOC NGUYEN and PHAP HONG NGUYEN
Before: Justice B. Green
Heard on: July 19th and September 6th, 2022
Reasons for Sentence
Counsel: Mr. R. Greenway............................................................ counsel for the Crown Ms. D. Pledge ......................................................... counsel for the defendants
Green J.:
A. Introduction:
[1] During a police investigation of a licenced marijuana grow operation, police located and arrested three gardeners who were found on the property. They were charged that they did, without lawful authority, cultivate, propagate, or harvest cannabis plants, in excess of an amount permitted by law, at a place that was not their dwelling contrary to subsection 12(9) of the Cannabis Act.
[2] All three accused entered pleas of guilty. The crown elected to proceed by summary conviction. The maximum available punishment is a $5,000 fine and/or 6 months incarceration. Despite the early pleas, the lack of any criminal antecedents, their youth, their minimal moral culpability and the substantial collateral consequences suffered by each of these men, the crown is requesting a sentence of six months incarceration. Counsel submitted that discharges would be in her clients’ best interests and not contrary to the public interest.
[3] For the reasons that follow, I find that discharges are in the best interest of each of the defendants and not contrary to the public interest. Any other sentence, in the circumstances of this case, risks bringing the administration of justice into disrepute.
B. Facts:
i. Circumstances of the offence:
[4] The police were investigating a licenced marijuana grow operation to ensure compliance with the permissible number of plants. The police sought a search warrant after receiving information that there was an illegal amount of cannabis being cultivated on a property located at 3451 Elliott Road in Newtonville. On Friday, August 28th, 2020, the drug enforcement unit of Durham Regional Police Services executed the warrant in the morning. The police saw five individuals who appeared to be gardeners. These individuals fled from the area. Canines were used to assist the police to pursue and apprehend them. The police were initially unable to find them.
[5] Once the police returned to the property, they saw a vehicle occupied by six people, so they stopped it. The three defendants were in the back of the vehicle. They smelled of marijuana. They were wet and muddy which was consistent with having fled through the fields. As a result, they were all arrested.
[6] The property in question was licensed to grow 1752 marijuana plants. The authorization for this amount was the combined total of four separate licenses. The governing authorities approved a legal, large scale, cannabis grow operation on this property. However, police seized 500 plants over the amount that the individuals were licensed to grow. The crown submitted that I should take judicial notice that this additional amount made this an illegal, large scale operation and emphasized concerns that, because of the excess amount, this operation posed risks to the safety of our community.
[7] I disagree with the crown’s position. This case is not comparable to sentencing decisions involving substantial illegal or unlicensed marijuana operations. First, any public health and safety concerns must be attenuated considering the governing authorities made the informed decisions to authorize the license holders to produce and cultivate, in that place, a large amount of marijuana legally. Secondly, there was no evidence presented by the crown about the stage of growth or the size of the plants that exceeded the lawful amount. These 500 extra plants could have been anything from seedlings to plants of any size. Moreover, the crown did not present an expert’s report detailing the estimated street value of the excess plants. I cannot take judicial notice of the growth, size or value of the unauthorized, excess plants in the absence of this crucial evidence.
[8] The police specifically targeted this grow operation for investigation but, ironically, none of the individuals who had control over it, profited from it, had knowledge of the legalities of the operation or limits set out in the licenses are being prosecuted for their involvement in this enterprise. Instead, the crown urges me to make an example of these gardeners who were located working on the property to send a deterrent and denunciatory message about the importance of complying with the law.
[9] There was no evidence that linked the three gardeners to the owners of property, renters, lessees or the licence holders in any way other than the fact that they were found working on the property. Counsel provided information about their very tenuous contention to the grow operation and the crown conceded that I can consider this additional evidence.
[10] The accused were fully cooperative with the police after they were arrested. They explained that they had seen and responded to an advertisement in the paper looking for farm workers. The defendants believed that marijuana is legal in Canada, so they were not aware that accepting these jobs could lead to being arrested for tending to the crops.
[11] They were not involved, in any way, in this enterprise other than as manual labourers. They had no knowledge about the licensing requirements, the limitations on the number of legally permissible plants nor that there was an excess number of plants. They had only just recently started working on the property before they were arrested by the police. None of them had even received their first pay cheque for their work.
ii. Circumstances of the offenders:
[12] Each of the defendants entered pleas of guilty at the first available opportunity after retaining counsel and receiving the advice of an immigration lawyer about the potential detrimental impact on their status in Canada as a result of a conviction. This plea of guilty is substantially mitigating in the sense of saving valuable court time.
[13] Each of the defendants have suffered severe, punitive collateral consequences because of these charges. All of them were in Canada on visas that expired after they were arrested. Unfortunately, as a result of the outstanding charge, when their visas expired, they were not able to renew them. They have no legal status in Canada currently, but they were also not permitted to leave the country while their charges were outstanding. They have been unable to work, support themselves or continue with their studies for months during a pandemic. They had to rely on the generosity of friends and family to subsist while awaiting the outcome of these proceedings. None of them have criminal records.
a. Tuan Tai Le:
[14] Mr. Le left Vietnam in 2018 and came to Canada on a student visa. His parents invested in their son’s future because they believed that he could have a better life in Canada. He was attending school taking English as a second language. He planned on completing his high school degree. He wants to work in construction with aspirations to support his family back home.
[15] He is only 20 years old. He does not have any family here. He relies on friends for a place to stay and sustenance. During the pandemic, he needed money to support himself, so he responded to the advertisement for farm work employment. He had not received any payment before he was arrested for this offence.
[16] Since his arrest, his life has been turned upside down. Mr. Le’s student visa expired so he has been unable to continue with his education. He is not able to work legally. He cannot reapply for legal status while the charges are outstanding, nor can he return to his country. He and his co-accused have been trapped in a frustrating legal abyss for months.
[17] He relies on the generosity and kindness of his friends and his family back home. To express his remorse for breaking the law, he made a $500 donation and completed 40 hours of community service work with a Buddhist association. He completed a “prosocial” counseling session to better understand the error of his ways and the obligation to familiarize himself with the laws of this country. He fully appreciates that ignorance of the law is no excuse. He is ashamed that he was arrested. He is very worried about how his parents will react if or when they discover his predicament.
b. Phap Hong Nguyen:
[18] Mr. Nguyen is also youthful. He is 23 years of age. He recently got married in December of 2021. He resides with his wife in Ottawa. He applied to become a permanent resident with the support of his wife’s sponsorship but all of that is on hold as a result of this offence.
[19] Mr. Nguyen was in Canada as an international student on a visa which expired in 2022. He was attending Georgian college in Barrie but was forced to abandon his studies when his student visa expired. His wife is supporting him presently because he cannot work without any status in this country. He has an offer of employment at a nail salon as soon as it is legal for him to work.
[20] He donated $500 to his church and completed 40 hours of volunteer work cleaning the parish. He completed the same prosocial counselling as Mr. Le. He intends to complete the counseling to ensure that he never finds himself in conflict with the law again. He is very eager to remain in Canada with his wife and to become a law abiding and productive citizen.
c. Ba Loc Nguyen:
[21] Mr. Ba Loc Nguyen is the oldest of the three offenders. He is 35 years old. He is married with two children, a boy who is 12 and girl who is 8 years old. His wife and children are living in Vietnam. He came to Canada to obtain work to provide for his family. He hoped that he would become a citizen and sponsor them to this country. His hopes and dreams were similarly dashed when he made the mistake of answering an ad for employment.
[22] Instead of supporting his family in Vietnam, he has become a burden to them. His work permit expired so he cannot work and he cannot return home. He is living in a rooming house and supporting himself with the saving that he intended to use to build a life here as well as some financial support from his family in Vietnam. He also made a $500 donation to a charity, completed 40 hours of community service work and engaged in prosocial counseling. He expressed sincere remorse and regret that he committed a crime because of his ignorance of the laws in this country.
C. Legal analysis:
i. Fundamental principles of sentencing.
[23] The fundamental purposes of sentencing for offences committed contrary to the Cannabis Act are outlined in section 15:
15(1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Division is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.
Factors to take into consideration:
(2) If an individual is convicted of a designated offence, the court imposing sentence on the individual must consider any relevant aggravating factors, including that the individual
(a) in relation to the commission of the offence,
(i) carried, used or threatened to use a weapon,
(ii) used or threatened to use violence, or
(iii) sold or distributed cannabis or possessed it for the purpose of sale or distribution, in or near a school, on or near school grounds or in or near any other public place usually frequented by young persons; and
(b) was previously convicted of a designated offence, as defined in subsection 2(1) of this Act, or a designated substance offence, as defined in subsection 2(1) of the Controlled Drugs and Substances Act.
Reasons
(3) If, in the case of an individual who is convicted of a designated offence, the court is satisfied of the existence of one or more of the aggravating factors enumerated in paragraphs (2)(a) and (b), but decides not to sentence the individual to imprisonment, the court must give reasons for that decision.
Drug treatment court program
(4) A court sentencing an individual who is convicted of an offence under this Division may delay sentencing to enable the individual (a) to participate in a drug treatment court program approved by the Attorney General; or (b) to attend a treatment program under subsection 720(2) of the Criminal Code.
[24] None of the aggravating factors specified in the Act are present in this case. In addition, the Cannabis Act does not limit or restrict the application of the guiding sentencing principles set out in the Criminal Code.
[25] Depending on the nature of an offence, a Court may focus on specific principles of sentencing as the most important factors to guide the decision. Additional guidance with respect to the predominant considerations when sentencing offenders who violate these provisions can be found in Section 7 of the Cannabis Act that sets out the purposes of the Act:
The purpose of this Act is to protect public health and public safety and, in particular, to
(c) provide for the licit production of cannabis to reduce illicit activities in relation to cannabis;
(d) deter illicit activities in relation to cannabis through appropriate sanctions and enforcement measures;
(e) reduce the burden on the criminal justice system in relation to cannabis;
(f) provide access to a quality-controlled supply of cannabis; and
(g) enhance public awareness of the health risks associated with cannabis use.
[26] Accordingly, one of the goals of sentencing these offenders is to generally deter the illicit production of cannabis and to reduce unlawful activities in relation to it. While denunciation and deterrence are important considerations, the Cannabis Act also encourages an emphasis on rehabilitation. Which principle has the greatest impact on the outcome of a sentencing depends on the unique facts of each case.
ii. The unique issue of sentencing offenders whose conduct was impacted by a mistake of law:
[27] The production, distribution and sale of recreational marijuana was legalized in this country in 2018 [1]. This change in the law was the subject of significant media attention. Legal cannabis stores opened up across the country and all over this province. While it is legal, it is understandably a highly regulated enterprise from production through to sales to ensure the safety of the public and marijuana consumers.
[28] In R. v. Marsden, 2019 ONCJ 303 at paras. 36 to 40, Justice Boxall explained that the legalization of marijuana does not mean that breaches of the requirements in the Cannabis Act are not serious offences:
In legislating to decriminalize personal possession of marijuana, Parliament acknowledged changing public opinion with respect to the dangerousness of cannabis, while still maintaining sufficient regulation over marijuana to protect public health and safety. In particular, the Cannabis Act aims to protect youth from the risks associated with marijuana by restricting access, deter the illicit production and trafficking in marijuana by providing a legal avenue of purchase, and to deprive criminal organizations of the revenue derived from marijuana sales.
Legalization is intended to enable the government to provide Canadians with access to a quality controlled supply of marijuana while generating tax revenue. Access to recreational marijuana under the Cannabis Act is regulated in a manner somewhat similar to alcohol and tobacco, in recognition of the parallel public concerns around the three products. Mechanisms such as age limitations, packaging, and labelling requirements, and product display restrictions ensure Canadians are informed of the potential harms associated with marijuana consumption, while also preventing youth from accessing the drug legally. Similarly, government regulation of marijuana ensures consumers that the marijuana products are in fact safe for consumption.
The production of marijuana and possession for the purpose of trafficking in marijuana continues to be a criminal offence under the Cannabis Act. The illegal production and distribution of marijuana sometimes continues to be linked to and provide revenue streams for criminal organizations, while simultaneously representing a loss of public revenue. Illegal transactions also provide youth with an alternative avenue to access marijuana, posing a health risk.
The growing societal acceptance of personal marijuana use compared with Parliament's recent legislative changes appears to have contributed to a shift in sentencing for marijuana convictions that are viewed as having lower moral culpability, see R. v. Santos, 2014 BCPC 266 at paragraph 25.
This shift has not included cases that continue to involve criminal organization and other illicit activities. Ultimately, sentencing of marijuana offences exists on a spectrum that is influenced by changes in societal mores, and presently ranges from permissive activity involving marijuana to harmful criminal acts.
[29] The Ontario Court of Appeal also addressed this issue in R. v. Strong, 2019 ONCA 15 at paras. 3 and 4 (Ont.C.A.):
While the societal perception of the seriousness or harmfulness of the offender's conduct has a role to play in considering factors such as denunciation and deterrence, we see no basis to conclude that the conduct involved in this case would be viewed as anything other than serious criminal misconduct.
Parliament has not significantly altered the applicable penalty. Nor, in our view, can one assume that a large scale, prolonged trafficking for profit in marijuana is somehow viewed as less serious because of the legislative changes in respect of personal possession and use. The sentence was within the established range.
[30] Undoubtedly, large scale illegal marijuana operations can jeopardize public safety thereby necessitating denunciatory sentences for the critical participants in these enterprises. However, the culpability of the operating minds and key contributors who profit from their illegal conduct is vastly different from the individuals who are hired to work tending to the fields or greenhouses or other manual labour. This is especially so when these employees do not receive a share of the profits and have no knowledge of or involvement in the licensing requirements or regulatory compliance. These men were supposed to be paid employees whose legal liability stems from the mistaken belief that they were engaged in legitimate work since marijuana has been legalized In Canada.
[31] These three men did not know that, by tending to the marijuana and the property, it could be unlawful depending on the licensing status of their employers. They did not know that what they were doing was a crime. They were relatively new immigrants to this country who were distrustful and fearful of authorities. I accept that they only ran from the area where they were working because they were frightened by the sudden police presence.
[32] Despite their collective belief that the farm work they were engaged in was not illegal, the Supreme Court of Canada held in R. v. Forster, [1992] 1 S.C.R. 339 at para 15:
It is a principle of our criminal law that an honest but mistaken belief in respect of the legal consequences of one's deliberate actions does not furnish a defence to a criminal charge, even when the mistake cannot be attributed to the negligence of the accused: Molis v. The Queen, [1980] 2 S.C.R. 356. This Court recently re affirmed in R. v. Docherty, [1989] 2 S.C.R. 941, at p. 960, the principle that knowledge 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.
[33] This legal principle is codified in section 19 of the Criminal Code that explicitly states, “ignorance of the law by a person who commits an offence is not an excuse for committing that offence”.
[34] In contrast, a mistake of fact is a defence to an offence. For example, in R. v. Darquea at para. 6 (Ont.C.A.), the Court of Appeal explained that:
We are all of the view that a genuine belief on the part of the appellants that the laboratory by which they were employed was authorized to manufacture the controlled drug, which is the subject of the charge, constitutes a defence. In the case of true crimes a genuine belief in circumstances, which, if true, would make the act with which the accused is charged an innocent act is a good defence. The learned trial judge appeared to be of the view that the belief relied upon by the appellants was a belief as to a matter of law, and not a belief as to a matter of fact, and hence was not a defence. We are all of the view that a genuine belief that the laboratory was licensed under the Act and the Regulations to manufacture the controlled drug is a belief as to a matter of fact and constitutes a defence to the charge. [Emphasis mine]
[35] Similarly in R. v. Johnson, 2016 ONCA 650 at para. 5 (Ont.C.A.), the accused was hired to water marijuana plants at a place that he believed to be a lawful grow operation. When the police attended the property, he immediately told them that his employer had a licence to grow marijuana in his residence. His employer did have a license, but it was for another residence. The Court of Appeal found that:
We are satisfied that the trial judge erred in law in holding that the defence had an onus to establish the honest belief defence. The trial judge found that the defence could not be made out by the appellant unless he had seen a licence. In our view, the trial judge was wrong to place any onus on the appellant and she was wrong to hold that the defence could only be made out by evidence that the appellant had seen a licence. The Crown was required to prove beyond a reasonable doubt that the appellant knew his boss did not have a licence. This was an essential finding before the appellant could be found liable as an aider and abetter. The trial judge was obliged to consider the appellant's statement to the police just as he was obliged to consider the other evidence, including the evidence that his boss had a licence to grow at another residence and had applied for a licence at the Thirty Road North residence. [Emphasis mine]
[36] If these defendants were assured by their employers that this operation was lawful and they honestly but mistakenly believed that their employers possessed valid licences for the full extent of the crops that they were tending to, they could be exonerated. However, because they were not aware of the regulatory requirements for a lawful grow operation, even if they believed that growing marijuana was legal, it is a mistake of law, and they are liable for their role in the commission of an offence contrary to the Cannabis Act.
[37] A mistake of law provides no defence, while a mistake of fact negates the mens reus of an offence. The moral culpability of the defendants in each of these scenarios is virtually indistinguishable but the person whose conduct was influenced by a mistake of law is held responsible for the offence and punished for that ignorance. Moreover, when comparing these binding authorities, there seems to be a fine, almost indiscernible, line between when the Ontario Court of Appeal has found a mistake of fact as opposed to a mistake of law.
[38] Moral blameworthiness for an offender’s involvement in an unlawful grow operation runs a broad spectrum from the ignorant employees and dupes who assist with cultivation and other menial jobs to the operating minds who wilfully and intentionally violate the law for profit. Clearly, the predominant sentencing principles and the applicable sentence ranges must be different depending on the role played by the offenders in the operation of an unlawful enterprise.
[39] The goal is to achieve a just sentence by considering the applicable legal principles and the aggravating and the mitigating facts while ensuring similar offenders who commit similar offences are treated similarly. In addition, a court must always consider the least restrictive sentence that is commensurate with all the circumstances.
iii. The principle of restraint:
[40] Sentencing is a delicate balancing act of these competing considerations. In R. v. Lacasse, 2015 SCC 64 at para 12 (S.C.C.), the Supreme Court of Canada explained that:
The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.
[41] Another important consideration is the principle of restraint which was codified in section 718.2 of the Criminal Code and requires that:
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
[42] I must balance the competing considerations of denunciation and deterrence and the mitigating circumstances of these offenders when crafting the least restrictive sentence in the circumstances of this case. In order to arrive at a fair sentence that addresses each of the principles of sentencing, it is essential to review any similar authorities that have considered the appropriate sentence ranges for this type of offence, with similarly situated offenders and where or whether the sentence should fall within that range of penalties.
iv. The principle of parity:
[43] The principle of parity is set out in subsection 718.2 (a) of the Criminal Code which directs that:
A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[44] While this is a worthy goal, each individual case is often so unique that it is difficult to achieve parity in sentencing. Ultimately, considering the countless ways to commit any crime, the distinctiveness of each offence and each offender, it is often challenging to find comparable cases. As Chief Justice Lamer stated in R. v. M. (C.A.), [1996] 1 S.C.R. 500, (1996), 105 C.C.C. (3d) 327, at paragraph 92:
...Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.
[45] Even though sentences are determined on a case-by-case basis, precedents that discuss sentence ranges do provide some guidance as to the appropriate sanction, but they do not direct a specific sentence. Sentence ranges are not static. Like any other area of law, these ranges are responsive to the proliferation of certain crimes in particular communities and changes in the law. Sentences must be commensurate with our current understanding of the seriousness of certain crimes as opposed to being determined by outdated considerations or ranges.
[46] Cases that were decided prior to the legalization of marijuana emphasized that the cultivation, distribution, and the illegal sale of marijuana contributed to “other social evils and risks to public safety including violent criminal activities”: Pushpananthan v. Canada, [1998] 1 S.C.R. 982. One of the “evils” previously contemplated were crimes motivated by a lack of legal access to this specific drug. This issue is a subsiding concern since marijuana is now lawfully and readily available in stores across the country. Nevertheless, there are still legitimate concerns with respect to the unlawful production, distribution, and sale of marijuana.
[47] In R. v. Fan, 2021 ONCA 674 at paras 69 to 71, the Ontario Court of Appeal recognized this change in the law may impact the sentence meted out, but a lot depends on the nature of the offence and the role of the offender:
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.
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.
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).
[48] The facts in this case are clearly distinguishable from Fan, supra. These individuals were not the operating minds behind a large-scale unlawful grow operation. They did not play any “critical role in the enterprise”: R. v. Fan, 2021 ONCA 674 at para 23. They had no say in the day-to-day operations. They were not involved with reviewing or obtaining the licences for this property. They were not connected to the property owners. They were not offered a portion of the proceeds of the distribution of marijuana. They were recently hired gardeners who hadn’t even been paid yet for tending to the crops.
[49] In R. v. Vu, 2018 ONCA 436, the Court of Appeal recognized that “the existence of a potential public safety hazard is not inherent in a substantial marijuana grow-op in a residential area”. The Court of Appeal emphasized at para 48 and 49 that:
Evidence is required to show that a particular grow-op was a potential public safety hazard. In the Vu case, expert evidence was required. Further, as the Vu sentencing judge noted, not all hydro bypasses can be shown to be a potential public safety hazard on a criminal standard of proof, see for example: R. v. Nguyen, 2013 ONCJ 300. As he said, it would not be readily apparent that all grow-ops are a potential public safety hazard. A gardener hired after a grow-op was set up could be unaware of the existence of a hydro by-pass or that it or other venting or wiring issues created a potential public safety hazard.
The decisions cited by the Pham sentencing judge support the principle that there cannot be punishment without fault. The inherent seriousness of the offence of large-scale marijuana production cannot justify a mandatory one-year increase in penalty based on an aggravating circumstance about which an accused has no culpable mens rea. [Emphasis mine]
[50] The crown did not present any evidence about how this particular operation presented a potential public safety hazard particularly since the enterprise was primarily lawfully licenced to grow a considerable amount of marijuana, but it had exceeded the approved quantity by about 28 percent. These “gardeners” were only hired after this business was set up and there is absolutely no evidence that they were aware of any safety hazards. Moreover, the inherent seriousness of the offence of breaching the mandates of the Cannabis Act is the primarily the responsibility of the operating minds of the business. It should not be used to justify a punitive sentence for these accused who were ignorant of their employers’ unlawful activities.
[51] In light of the limited role of each of the defendants, the cases relied on by the crown to justify a custodial sentence are factually distinguishable.
[52] I found the cases reviewed by Justice Code in the decision of R. v. Pham, 2016 ONCJ 456 at paragraphs 36 to 38 and para. 42 to be particularly helpful to provide guidance with respect to parity in sentencing for similarly situated offenders:
In R. v. Zheng, 2015 ONCJ 274, the premises in question had been issued four licenses authorizing production of a total of 128 marijuana plants. Two of the licenses had recently expired and they had not been renewed in a timely way. The two remaining licenses, which were still valid, authorized production of only 30 marijuana plants. Furthermore, the licenses were granted to persons other than the accused Zheng. He was hired, presumably by the licensees or by their agent, as a night watchman at the premises and he also performed minor gardening functions on occasion. He telephoned the police when a break, enter, and theft of some of the marijuana plants was taking place during his watch. The police arrived and arrested the thieves. The police discovered a total of 1507 marijuana plants at the licensed premises. Zheng was convicted of aiding and abetting production of all but 30 of these plants, given that there was significant non-compliance with the terms of the four licenses. The trial judge, Green J. [2], found that the accused Zheng honestly but mistakenly believed "that the marijuana cultivation at the ... grow-up was authorized by production licences issued by Health Canada. However, I find that this belief amounts to a mistake of law and, accordingly, does not exculpate the defendant from responsibility for the two offences before me."
The facts of the Zheng case took place on March 6, 2012, eight months before the 2012 amendments to s. 7 of the C.D.S.A. came into force. As a result, no mandatory minimum sentences existed at the time. Green J. sentenced the accused to a conditional discharge, given the mitigating effect of his mistake of law, his minor role in the offence, and his status as a youthful first offender with dependents.
Another case arising out of the regulatory licensing context is R. v. Jiang, 2015 ONCJ 707. The facts were similar to the Zheng case. It involved a large, sophisticated marijuana grow-op with over 2000 plants. The accused Jiang was employed to provide "primarily security and perhaps some caretaking and maintenance work." The trial judge found that Jiang "did in fact believe that he was engaged in a lawful enterprise" based on "the conspicuous nature of the grow-op in a residential part of Toronto," the fact that the neighbours appeared to be aware of it and it had been in operation "for a number of years," the number of employees, and the fact that "at least some valid licenses and other official certificates were posted ostentatiously in an area of the factory's office." The accused was a relatively unsophisticated 46 year old first offender who spoke little English, who had always worked at various menial jobs, and who had raised two children. He was sentenced to a suspended sentence and probation. [Emphasis mine]
And further at paragraphs 42:
The Supreme Court has held that honest belief in the existence of an applicable license is a mistake of law and is no defence at trial, but that it has a mitigating effect on sentence because of the "minimal blameworthiness of the offender in this situation and the absence of any harm or real risk of harm." See: R. v. Nur, [2015] 2 S.C.R. 773 at paras. 80-83; R. v. MacDonald, 2014 SCC 3, 303 C.C.C. (3d) 113 at paras. 55-61 (S.C.C.). In cases where lawful licenses exist, but their terms are not being strictly complied with, the harm to the public will be much reduced, depending on the extent of the departure from the terms of the license. In cases where the accused honestly believes there has been compliance with a license or licenses, that accused's moral blameworthiness is also much reduced. In these circumstances, the 2 year minimum sentence is "grossly disproportionate." [Emphasis mine]
[53] Similarly, in R. v. Morrell, 2017 ONSC 5564 at para 29 (Ont.S.C.J.) Justice Skarica reviewed numerous cases and found:
In my opinion, where the accused person has no criminal record, has a minor role in the offence, has made an honest mistake in law with minimal moral blameworthiness and the circumstances would normally entitle that accused to a non-custodial sentence, it can be fairly said that a one-year minimum jail sentence is "grossly disproportionate" and would be "abhorrent and intolerable" to society: see R. v. Lloyd, 2016 SCC 13, at paras. 22-24 [Emphasis mine]
[54] A fundamental principle of sentencing pursuant to section 718.1 of the Criminal Code is that "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." While a mistake of law is not a defence to a charge, it can be a significantly mitigating factor to be considered with respect to the appropriate sentence: R. v. MacDonald, 2014 SCC 3; R. v. Nur, [2015] 2 S.C.R. 773.
[55] These gardeners cannot be held to account for the nature of the grow operation or any potential danger that it posed to the community in the same manner as the individuals who were responsible for setting it up, overseeing and/or funding the operation. Their culpability is restricted to their very limited role in this enterprise. Vulnerable migrant workers or financially desperate labourers who are ignorant of the regulatory requirements of lawful grow operations should not be used as scapegoats to send a deterrent message to the operating minds or focal participants of large-scale grow operation that are partially compliant with the licensing requirements.
v. Collateral consequences that are relevant to the sentencing:
[56] All three of these men are in the same position legally in terms of their immigration status. Counsel retained the services of an immigration lawyer to provide advice about the potential consequences of a conviction. The letter of opinion was filed as an exhibit and explains the impact on their status in Canada if they are convicted of this offence.
[57] The crown was sensitive to the possible collateral consequences of a detrimental impact on their immigration status. As a result of this consideration and the mitigating factors, he elected summarily. However, the election is irrelevant in the context of their immigration status. The Immigration and Refugee Protection Act (S.C. 2001, c. 27) states that:
Criminality
36(2) A foreign national is inadmissible on grounds of criminality for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;
Application
(3) The following provisions govern subsections (1) and (2):
(a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily;
[58] Despite the crown’s election, because it is a hybrid offence, this Act deems that the offence was prosecuted by indictment with a maximum available sentence of 14 years incarceration. Accordingly, any sentence other that an absolute or conditional discharge will result in each of them being found to be inadmissible on the grounds of a conviction for serious criminality. They will have no right of appeal and be subject to removal from this country. The only sentence that may not impact their immigration status is either a conditional or absolute discharge because that is not considered a “conviction”.
[59] The Ontario Court of Appeal has consistently recognized that immigration consequences are a relevant consideration when deciding whether to grant a conditional or absolute discharge: R. v. Melo (1975), 26 C.C.C. (2d) 510 (Ont. C.A.); R. v. Lawani. If they are convicted, they will be sent home. All of the money that their families and they have invested in a better life in Canada will have been wasted. They will bear the burden of the failure to realize their dreams, disappointment, embarrassment, and shame.
vi. The test for imposing a discharge:
[60] I have concluded that sentences of incarceration or fines would not be the least restrictive sanctions that is appropriate in the circumstances. It is unnecessary to incarcerate them to achieve deterrence and denunciation for their very limited role in this offence. Incarceration would unquestionably be disproportionally punitive and unjust. Fines would not be consistent with the principles of parity and proportionality particularly in light of their impecunious state and inability to legally work in this country.
[61] The remaining question is whether I should impose a suspended sentence with probation or a conditional or absolute discharge. Section 730(1) of the Criminal Code provides that:
Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for 14 years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).
[62] There is no minimum sentence for this offence and the maximum period of incarceration is six months. Each of the offenders are men of good character who came to Canada filled with hopes and dreams of finding a better life and to provide for their families back home. While they may have made some poor decisions, their conduct did not reflect any moral turpitude. A conviction could detrimentally impact their future prospects to remain in this country. They suffered severe collateral consequences as a result of their loss of legal status and the inability to financially support themselves or lawfully return home. They are ashamed, genuinely remorseful, and sincerely apologetic for their ignorance of the law.
D. Conclusion:
[63] Mr. Le, Mr. Nguyen and Mr. Nguyen have already suffered significant punitive consequences as a result of their ignorance of the law with respect to the legality of the cultivation of marijuana. Their pleas of guilty are manifestations of their remorse and a public acknowledgement that ignorance of the law is not an excuse. They have been specifically deterred from committing similar offences or any other offences for that matter.
[64] They have no criminal records and have not committed any further offences in the past two years while awaiting the outcome of these proceedings. Two of them are very youthful adults. They made donations and completed community service work as a means to address any perceived harm for their very limited involved in this enterprise. They attended counseling focussed on prosocial values. In terms of rehabilitation, a period of probation is not needed to meaningfully achieve that goal: R. v. Shoker, 2006 SCC 44, [2006] 2 SCR 399.
[65] I have considered the significant negative immigration consequences if they are convicted as well as all of the other mitigating factors. An absolute discharge would definitely be in their best interests.
[66] I acknowledge that there is public interest in ensuring that wilfully or knowingly participating in unlawful marijuana grow operations for profit should be denounced and deterred. Compliance with the governing law is intended to protect the communities in which these businesses operate and their consumers. However, further sanctioning these individuals will not achieve these goals.
[67] Their shared experiences of being arrested, all the positive steps that they have taken since then and their associated life challenges over the past two years are more than ample sanctions to send a message to like-minded offenders that they are obliged to ascertain the legal status of any marijuana enterprise before accepting offers of employment in any capacity. Frankly, it is surprising that the crown did not consider it to be in the public interest to offer them some kind of diversion, especially in light of the impact on their lawful status in Canada.
[68] Any additional punishments for these vulnerable individuals, whose moral blameworthiness is minimal, risks tarnishing the integrity of the criminal justice system. Excessive and unjust sentences undermine public confidence in the administration of justice. Accordingly, it is not contrary to the public interest to impose absolute discharges.
[69] Mr. Le, Mr. Nguyen and Mr. Nguyen are sentenced to absolute discharges. Considering their precarious financial circumstances, it would be an undue hardship to impose victim fine surcharges.
[1] S.C. 2018, c. 16, Enactment Clause, effective October 17, 2018 (SI/2018-52) [2] This is a different Justice Green
