minicounsel

Footnotes

The applicant does not rely on the MMPR as s. 13 of the regulation prohibits growing marijuana in a dwelling place.
That production now has a 14 year maximum sentence would also disqualify the offender from consideration for a conditional sentence. Criminal Code, s. 742.1(c)
Pursuant to s. 10(2)(b) of the C.D.S.A. it is also an aggravating factor that the offender was previously convicted of a designated substance offence.
While the Court of Appeal judgment does not include the details of the offence, some are noted in R. v. Paryniuk, 2013 ONCJ 443, at para. 25.
Subsection 5(3) of the Controlled Drugs and Substances Act, enacts mandatory minimum sentences of one or two years where drug trafficking occurs in certain situations.
Subject to further arguments, as the hypothetical is based upon a producer mistakenly growing over his or her limit the ruling would not apply to s. 7(2)(b)(iii-vi) which apply when more than 200 plants are involved.

CITATION: R v. Vu, 2015 ONSC 5834

COURT FILE NO.:74/14

DATE: 20151020

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

JOHN NORTH, for the Respondent, Public Prosecution Service of Canada

Respondent

and -

DUC VU

JOHN NORRIS and MEARA CONWAY, for the Applicant

Applicant

JUDGMENT ON CONSTITUTIONAL CHALLENGE

to ss. 7(2)(b) and 7(3) of

THE CONTROLLED DRUGS AND SUBSTANCES ACT

DURNO J.

Correction Notice

October 20, 2015: Please note the change made to footnote 6 of the original Judgment dated September 25, 2015.

Contents

INTRODUCTION.. 4

THE AGREED STATEMENT OF FACTS.. 5

ADDITIONAL EVIDENCE IN RELATION TO THE GROW OPERATION.. 7

Has the PPSC established beyond a reasonable doubt that the grow operation constituted a potential public safety hazard in a residential area?. 7

THE EVIDENCE.. 8

THE POSITIONS OF COUNSEL. 14

The PPSC’s Position.. 14

The Applicant’s Position.. 15

ANALYSIS.. 15

THE CONSTITUTIONAL ISSUE.. 18

THE LEGISLATION.. 18

The Charter of Rights and Freedoms. 18

The Controlled Drugs and Substances Act 18

Constitutional Challenges relying on s. 12 of the Charter of Rights and Freedoms. 20

THE PARTICULARIZED INQUIRY: HAS THE OFFENDER ESTABLISHED THAT THE MANDATORY MINIMUM SENTENCE WOULD BE GROSSLY DISPROPORTIONATE FOR HIM?. 25

The Position of Counsel 25

The Applicant’s Position.. 25

The PPSC’s Position.. 31

ANALYSIS.. 38

IS THE APPLICANT A GARDENER?. 42

The Positions of Counsel 42

The Position of the Applicant 42

The Position of the PPSC.. 42

ANALYSIS.. 43

THE PURPOSES AND PRINCIPLES OF SENTENCING.. 45

HAS THE OFFENDER ESTABLISHED THAT THE MANDATORY MINIMUM SENTENCE WOULD BE GROSSLY DISPROPORTIONATE IF IMPOSED ON OTHERS?. 49

Reasonable Hypotheticals. 49

LIMITATIONS ON THE REASONABLE HYPOTHETICALS – THE SUBSECTIONS THE APPLICANT CAN RELY UPON.. 49

The Positions of Counsel 49

The Applicant’s Position.. 49

The PPSC’s Position.. 50

ANALYSIS.. 52

LIMITATIONS ON THE REASONABLE HYPOTHETICALS – CAN THE APPLICANT’S HYPOTHETICALS INCLUDE RESIDENTIAL GROW OPERATIONS?. 52

The Positions of Counsel 53

The PPSC’s Position.. 53

The Applicant’s Position.. 53

ANALYSIS.. 53

The Applicant’s Reasonable Hypothetical Situations. 53

T.V.N. and Nguyen. 54

The Positions of Counsel 55

The Applicant’s Position.. 55

The PPSC’s Position.. 55

ANALYSIS.. 55

The 200 Plant Offender and the 201 Plant Offender 56

The Positions of Counsel 56

The Applicant’s Position.. 56

The PPSC’s Position.. 56

ANALYSIS.. 57

THE MENS REA ISSUES.. 57

The Positions of Counsel 58

The Applicant’s Position.. 58

The PPSC’s Position.. 62

ANALYSIS.. 66

The Potential Public Safety Hazard. 66

The Number of Plants. 72

The Over the License Limit Offender 75

The Positions of Counsel 75

The Applicant’s Position.. 75

The PPSC’s Position.. 77

ANALYSIS.. 82

THE SECTION 1 ANALYSIS.. 88

The Positions of Counsel 89

The PPSC’s Position.. 89

The Applicant’s Position.. 92

ANALYSIS.. 93

Pressing and Substantial Objective. 93

Rational Connection.. 94

MINIMAL IMPAIRMENT. 94

PROPORTIONALITY.. 95

CONCLUSION.. 96

INTRODUCTION

1On November 6, 2012, the Controlled Drugs and Substances Act (CDSA) was amended and mandatory minimum sentences were enacted for the production of a controlled substance.

2On November 22, 2012, the Peel Regional Police executed a search warrant at a home located at 18 Picasso Drive in Brampton. Once inside they located a large and highly sophisticated marijuana grow operation with 1,020 marijuana plants, 66 kilograms of wet marijuana and a hydro bypass. When searching the home they located two people. Anh Nguyen was in the garage and Duc Vu was secreted in the laundry dryer. Both were arrested and charged with production of marijuana.

3Duc Vu pled guilty to production of marijuana and theft of hydro. The charges were withdrawn against Mr. Nguyen.

4Mr. North, on behalf of the Public Prosecution Service of Canada (PPSC), sought a mandatory minimum sentence of three years in the penitentiary, two years because of the number of plants and a further year consecutive because of the potential public safety hazard from the grow operation.

5Mr. Norris, on behalf of the offender, submitted that the PPSC had not established this grow operation represented a potential public safety hazard in a residential area, that there was no evidence Mr. Vu knew of the potential risk to public safety, and that the mandatory minimum sentences are contrary to s. 12 of the Charter of Rights and Freedoms and should be declared null and void pursuant to s. 52 of the Constitution Act, 1982. He submitted Mr. Vu should be sentenced to twelve months in the reformatory.

THE AGREED STATEMENT OF FACTS

6The residence at 18 Picasso Drive was a two-story detached home in a residential area. Homes were located on either side of 18 Picasso Drive. All of the windows in the home were covered with shutters. An officer detected the smell of fresh vegetative marijuana coming from the house.

7A land registry check for 18 Picasso Drive showed the owner to be Anton Tharsiyas and that he took ownership on September 12, 2012. Hydro records showed Anton Nguyen was the tenant. While s. 7(3)(a) of the C.D.S.A., provides that it is an aggravating factor if the offender used real property that belonged to a third party in committing the offence, the PPSC does not rely on that subsection in this case.

8The police obtained a hydro reading for the address which showed the readings were significantly higher than other houses on the street.

9Officers had the home under surveillance as they waited for the search warrant to be granted. At 7:44 p.m. a Toyota van registered to the offender arrived at the home.

10At roughly 8:30 p.m. the officers executed the search warrant, knocked on the front door and announced they were police officers. When no response was received, they breached the door and entered the house.

11Anh Nguyen was inside the garage and was arrested. The offender was hiding in the clothes dryer in the laundry room. Officers identified themselves but Mr. Vu refused to come out. The police attempted to remove him but he resisted their efforts. Eventually they were able to take him out and arrested the offender.

12It is admitted that Mr. Vu knew of the hydro by-pass, was at least a party to the theft of electricity and that he knew the by-pass was a means of circumventing regular hydro fees. He participated in the grow operation, an activity that he knew consumed electricity. It is not admitted that he knew the by-pass and/or the grow operation created a potential public safety hazard.

13Officers located 1,020 marijuana plants at various stages of growth inside the residence along with approximately 70 kilograms of wet marijuana. They also located 12 oscillating fans, 7 blowers, 42 shrouds/lights, 30 ballasts, and a hydro by-pass.

14It is agreed that the value for the marijuana was between $175,000 and $250,000.

ADDITIONAL EVIDENCE IN RELATION TO THE GROW OPERATION

15Constable Eric Utigard, of the Peel Regional Police Major Drugs and Vice Unit, testified that marijuana plants were found on the upper level and basement of the house. He provided diagrams and photographs of each room in the house where plants were located. One thousand watt bulbs were used in the operation.

16There was no dried or drying marijuana found anywhere in the house. Constable Utigard testified that this was one of the more sophisticated full house residential marijuana grow operations he had encountered. The entire residence was turned into a grow operation. While it was speculation whether the offender’s sole job was that of a gardener, he testified that at the time the officer was there Mr. Vu had care and control of the plants.

Has the PPSC established beyond a reasonable doubt that the grow operation constituted a potential public safety hazard in a residential area?

17This issue is relevant to both subsections in the constitutional challenge and on the sentencing. It is conveniently addressed at this stage of the reasons before addressing the constitutional challenge. Regardless of the constitutional issues, whether this grow operation posed a potential public safety hazard is a relevant consideration on sentence. It is also relevant to whether the PPSC has established an aggravating factor so as to engage the mandatory minimum in s. 7(3)(c). If the PPSC has not met their onus, there would be no need to consider the constitutionality of the additional minimum term of one year.

18The onus is on the PPSC to establish beyond a reasonable doubt that the aggravating consideration has been established: Criminal Code, s. 724(3)(c) The PPSC called three witness in relation to the potential safety hazard created by this grow operation. The offender called no evidence.

THE EVIDENCE

19In addition to the facts noted earlier, 18 Picasso Drive is located in a residential area of Brampton with detached homes roughly ten feet away on either side. No issue is taken that the grow operation was in a residential area.

20Ralph Williams, the Energy Services Supervisor and Acting Meter Supervisor at Hydro One Brampton, testified a hydro by-pass permits the person to use electricity that was not registered on the meter. Generally, a house is wired from the transformer. Three conductors go from the transformer to the meter. From the meter, electricity goes into the main fuse switch and from there to the panel that distributes electricity safely within the house.

21When a by-pass is used, a core is drilled down in the house’s foundation, dirt is excavated, Hydro’s incoming wires that should go to the meter are clamped, piercing the protective covering and cutting into the wires. It is connected to another cable which brings power into the house to supply the grow operation, bypassing registering on the meter and the safety protection of the main switch and fuses.

22All of the electrical equipment in the home is “sized up” according to the fuses or the breaker switch, which is rated at one or 200 amps. In Brampton, 100 amps is most common. If the power being consumed in the home is greater than 100 amps, it will trip the switch and shut off the supply of power. This prevents drawing more than the rated capacity of the wires. With a bypass, the conductors are alive all the time and there is no protective switch to limit the flow. The only thing to limit the flow would be an equipment breakdown or a component’s catastrophic failure that would cause a fault in the system, with the wire burning through. There would be no safety disconnect associated with a by-pass.

23Hydro One calculated that the by-pass here resulted in the loss of $25,052.63. Restoring the hydro costs approximately an additional $221 to pay a contractor to dig, expose the section of clamped cable, cut the section out, install new sleeves and seal the hole.

24Scott Evenden, from the Emergency Management section of the Office of the Fire Marshall, was qualified to give opinion evidence in determining the origin, cause and circumstances of fires, and identifying fire hazards, public safety risks and dangers associated with marijuana grow operations. The Office of the Fire Marshall, Emergency Management’s mission is to provide for the residents of Ontario an environment safe from fire hazards. Mr. Evenden’s job included training fire investigators and conducting major fire investigations in circumstances that may pose a public safety risk and specifically marijuana grow operations. He was also involved in an advisory section of the Fire Marshall’s office, the Community Safety Enhancement Unit, in relation to the operation of marijuana grow operations.

25Mr. Evenden testified that grow operations pose a serious fire risk to both the community, the people occupying the structures and first responders. Since 2005, the fire investigation section had conducted, as a conservative estimate, approximately 52 investigations where there was an actual fire associated with a grow operation. Of the 52, one involved a fatality and six serious injuries resulted. They were also involved in investigations where there were no fires.

26The concern arises from the grow operations utilizing electricity and different apparatuses without properly qualified or licensed technicians to come in and conduct the alterations to the homes. Electricity can be an ignition source so a failure in the electrical system can be a source of ignition. He personally investigated a Toronto fire that was directly related to a marijuana grow operation. The fire’s origin was in the basement, in the area of the ballast systems that supported the high intensity discharge lighting. A failure in those systems caused the fire that progressed throughout the whole structure. A professional engineer concluded an electronic failure, a catastrophic arc in the electrical system, caused the fire.

27Ballast systems are put in place in grow operations to support the high intensity discharge lighting used to produce the marijuana. The lamps operate at high heat levels, with the lamps’ surface temperature approximately 400 degrees Celsius. Inside the lamp itself the temperature is about 600 to 1,000 degrees Celsius. If the lamps come into contact with a combustible that has an ignition temperature below 400 degrees Celsius, a fire results. In one case, a lamp broke away from the harness assembly hanging from the ceiling and came into contact with potting soil with an ignition temperature of about 230 degrees Celsius. In addition, with a number of high temperature bulbs in one room, the room temperature is very warm. This decreases the ignition temperature of combustibles such as insulation on wiring in the room.

28When vent systems directly related to the grow operation are installed, while the individuals are not conscious of it, they are altering fire separations or natural separations within the dwelling house. They cut through floor and/or closet spaces to install the grow operation-related venting, which often passes directly through the entire house if the grow operation is in the basement. If there is a fire, the altered vent system promotes and exaggerates the growth and speed of the fire and smoke, both products of combustion, throughout the dwelling. Fire and smoke generally take the path of least resistance with fire spreading through open space and through the duct system.

29Looking at the photographs taken at 18 Picasso Drive gave the witness concern in relation to fire safety issues. The home had connections without electrical boxes which posed a fire risk. There were no smoke alarms in the residence. The photographs also showed chemicals and solvents that were a hazard in a bathroom. Chemicals in their own vessel, separate from each other are generally safe. Once exposed to fire, they can mix. There are some chemicals that change their composition to something else and become hazards to individuals in the structure conducting investigations after the fact.

30In looking at the photographs, Mr. Evenden noted high intensity discharge lighting and exposed wires connected together without a metal electrical box that an electrician would install. The boxes are installed as a safety feature to prevent arcing. If there is an arc and no box, and the arc comes into contact with a combustible substance, it would result in a fire. There were also photographs of metal ductwork entering a doorway. If it went through the structure it would compromise separation in the floor space and would raise concerns about the fire and smoke spreading throughout the building.

31The condition of the electrical and vent systems were in direct contravention of the Ontario Fire Code. The residence was designed for residential occupancy and was no longer being used as such. It was regarded as an immediate threat to life and gave the municipal fire department the authority to enter the dwelling.

32Homes have a panel in the basement as an added safety feature. The series of wires leading to the ballast system were in the open. In the absence of a metal box, there would be the potential for arcs that could cause a fire.

33Further, the hydro by-pass was in contravention of the Fire Code and a hazard for first responders. Routinely, first responders isolate the services on the outside of the structure at the meter. However, with a by-pass the building is potentially still energized because of the by-pass and poses a risk. When water is put on fire it often pools in the basement. With a by-pass, the electricity is still active and poses a serious risk. Mr. Evenden concluded the hydro by-passes and high intensity lighting were serious fire safety risks. The electrical modifications that he observed at 18 Picasso were a fire safety risk.

34In cross-examination, Mr. Evenden was asked whether he could quantify the risk at locations such as 18 Picasso where there was no fire. He said that he had serious concerns about the contraventions of the Fire Code because a fire could occur as a result of the contraventions. He could not predict when a fire would occur but he had issues with what he saw in some of the photographs. He could not predict with any degree of confidence whether a fire would occur or not beyond recognizing the potential for a fire.

35Constable Eric Utigard introduced a photograph of the by-pass with the cables going into a 12 inch diameter hole in the concrete. In his opinion, it reflected the type of large scale sophisticated marijuana grow operation he located in the house. Since police officers are not trained in dismantling grow operations because of the hazards involved, their first call was to Hydro One who sent a service person to shut down the power for the entire house to minimize any future hazards. It did not appear that anyone was living in the home. It was a full-time grow operation. There were no weapons, booby traps, dogs or animals in the home.

THE POSITIONS OF COUNSEL

The PPSC’s Position

36The PPSC submits that the evidence establishes beyond a reasonable doubt that the grow operation was a potential public safety hazard. Appellate courts have repeatedly referenced the dangerousness of the offence. For example, in R. v. Tran (2005), 2005 CanLII 3937 (ON CA), 194 O.A.C. 278, the Court noted the “exceedingly serious risks [large and sophisticated grow operations] bring to the community …” See also: R. v. Orlando-Habsburgo 2014 ONSC 3096 at para. 24; R. v. Duong, [2003] O.J. No. 3295 (C.J.), at paras. 28 – 31

The Applicant’s Position

37The offender argues the aggravating factor has not been established beyond a reasonable doubt as the expert evidence cannot quantify the extent of the risk, only that there was a risk. Mr. Evenden testified that he could not predict whether a fire would happen. What the prosecution must establish is a demonstrable risk of a fire happening and that has not been shown.

ANALYSIS

38I am persuaded beyond a reasonable doubt that the PPSC has established this grow operation constituted a potential public safety hazard in a residential area. I reach that conclusion for the following reasons.

39First, there is no requirement that the PPSC quantify the risk in terms of a percentage or degree of risk, nor that actual harm be caused. While a fanciful or remote risk would not qualify, where the prosecution establishes the aggravating consideration has real potential risk, the onus will be met. While addressing the common nuisance offence, the Court of Appeal held, “When the gravity of the potential harm is great, in this case “catastrophic”, the public is endangered even where the risk of harm actually occurring is slight, indeed even if it is minimal.” R. v. Thornton, 1993 CanLII 95 (SCC), [1993] 2 S.C.R. 445, at para. 27. The evidence here establishes that this grow operation posed a potential public safety hazard.

40While the inquiry relates to this grow operation, that there have been a number of fires caused by grow operations is relevant, not to show that all grow operations create potential public safety hazard but as evidence that in some grow operations, risks have become a reality. I note as well that in R. v. Chau, [2003] O.J. No. 2827 (S.C.J.) at para. 6, I referenced 14 fires having occurred in Peel Region because of improper wiring in grow operations.

41Second, I accept Mr. Evenden’s evidence that hydro by-passes and the use of high intensity lighting can pose a serious fire safety risk to residence, neighbours and first responders. All were in place in this grow operation. In addition, the electrical modifications at 18 Picasso posed a fire safety risk.

42Third, in particular, there was no protective switch, there were connections without metal electrical boxes to prevent arcing from causing a fire, and the modifications to the vent system created a serious risk to fire safety.

43Fourth, the home had been designed and wired for residential occupancy. With marijuana being grown in six rooms in the residence, it was no longer being used as a residence. That was a serious breach of the Fire Code and would have entitled the municipality to enter the premises. The exposed wires to the ballast, as well as changes to the venting and electrical system were all violations of the Ontario Fire Code. As Mr. Evenden outlined, there were Fire Code violations as well in relation to hazardous activities, no smoke alarms, fire separation, combustible materials, temporary exposed wiring, operation/maintenance of heating system, hot water tanks, cylinders containing compressed gas and change of use occupancy.

44Fifth, there was no safety disconnect for first responders. As noted earlier, when first responders attend a fire they shut off the electricity using the outside meter. Where a by-pass is used, the electricity continues to flow into the building despite the effort to shut off the electricity.

45In reaching this conclusion, I am not relying on Mr. Evenden’s evidence regarding the chemicals that were found in the home. He said that separately they would not pose a problem but that depending on their composition and contact between the chemicals, this might change when exposed to a fire. Expert evidence would be required to establish that these chemicals posed that risk. That was an area upon which he was not qualified to give an opinion.

THE CONSTITUTIONAL ISSUE

46I turn next to the offender’s argument that the mandatory minimum sentence of three years violates s. 12 of the Charter.

THE LEGISLATION

The Charter of Rights and Freedoms

Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

The Controlled Drugs and Substances Act

(1) Except as authorized under the regulations, no person shall produce a substance included in Schedule I, II, III or IV.

(2) Every person who contravenes subsection (1)

(a) if the subject matter of the offence is a substance included in Schedule I, is guilty of an indictable offence and liable to imprisonment for life and to a minimum punishment of imprisonment for a term of three years if any of the factors set out in subsection (3) apply and for a term of two years in any other case;

(a.1) if the subject matter of the offence is a substance included in Schedule II, other than cannabis (marijuana), is guilty of an indictable offence and liable to imprisonment for life, and to a minimum punishment of imprisonment

(i) for a term of one year if the production is for the purpose of trafficking, or

(ii) for a term of 18 months if the production is for the purpose of trafficking and any of the factors set out in subsection (3) apply;

(b) if the subject matter of the offence is cannabis (marijuana), is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years, and to a minimum punishment of

(i) imprisonment for a term of six months if the number of plants produced is less than 201 and more than five, and the production is for the purpose of trafficking,

(ii) imprisonment for a term of nine months if the number of plants produced is less than 201 and more than five, the production is for the purpose of trafficking and any of the factors set out in subsection (3) apply,

(iii) imprisonment for a term of one year if the number of plants produced is more than 200 and less than 501,

(iv) imprisonment for a term of 18 months if the number of plants produced is more than 200 and less than 501 and any of the factors set out in subsection (3) apply,

(v) imprisonment for a term of two years if the number of plants produced is more than 500, or

(vi) imprisonment for a term of three years if the number of plants produced is more than 500 and any of the factors set out in subsection (3) apply;

(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or

(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months; and

(d) where the subject-matter of the offence is a substance included in Schedule IV,

(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or

(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year. (emphasis added)

(3) The following factors must be taken into account in applying paragraphs (2)(a) to (b):

(a) the person used real property that belongs to a third party in committing the offence;

(b) the production constituted a potential security, health or safety hazard to persons under the age of 18 years who were in the location where the offence was committed or in the immediate area;

(d) the person set or placed a trap, device or other thing that is likely to cause death or bodily harm to another person in the location where the offence was committed or in the immediate area, or permitted such a trap, device or other thing to remain or be placed in that location or area.

Constitutional Challenges relying on s. 12 of the Charter of Rights and Freedoms

47While the written and oral submissions were completed before the Supreme Court of Canada’s judgment in R. v. Nur, 2015 SCC 15 was released, both counsel provided most helpful written submissions after the release of the judgment.

48The Court in Nur reiterated that the applicant must get over a “high bar” for what constitutes cruel and unusual punishment under s. 12 of the Charter. What is required is a finding on a balance of probabilities that the sentence is grossly disproportionate to the appropriate punishment having regard to the nature of the offence and the circumstances of the offender (at para. 39). The gross disproportionality is aimed at punishments that are more than merely excessive. Not every disproportionate or excessive sentence results in a constitutional violation (at para. 39). The sentence must be so excessive as to outrage standards of decency and disproportionate to the extent that Canadians would find the punishment abhorrent or intolerable: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 14.

49As Doherty J.A. put it in R. v. Nur (2013), 2013 ONCA 677, 117 O.R. (3d) 401 (C.A.), at para. 202:

I also agree with the trial judge that the scheme in s. 95(2) inevitably means that some persons will receive "unfit" sentences. Persons who under the generally applicable sentencing provisions might have received sentences of between one and three years will receive sentences of three years if the Crown proceeds by indictment. I do not see this as any evidence that the section acts arbitrarily. Mandatory minimums inevitably mean that some offenders will receive sentences that would be considered unfit using generally applicable sentencing principles. Those potentially unfit sentences become a constitutional problem only if the unfitness reaches the level of gross disproportionality.

50Mandatory minimum sentences have the potential to depart from the principle of proportionality in sentencing and may, in “extreme cases,” impose unjust sentences because the focus shifts from the offender in the sentencing process, violating the principle of proportionality. In determining an appropriate sentence for comparison purposes a court must consider ss. 718, 718.1 and 718.2 of the Criminal Code. (at para. 40-42)

51In assessing the proportionality of a sentence, the Supreme Court has identified the following factors for consideration: the gravity of the offence, the personal characteristics of the offender, the particular circumstances of the case and the actual effect of the punishment on the offender: R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045. Other relevant considerations include whether the sentence is founded on recognized sentencing principles, whether valid alternatives to the punishment imposed exist, whether the punishment is necessary to achieve a valid penal purpose, and whether a comparison with the sentences imposed for other offences in the same jurisdiction reveal disproportionality. Smith, at p. 1074.

52Two questions arise when a mandatory minimum sentence is challenged under s. 12 of the Charter. The first is whether the mandatory minimum term imposes cruel and unusual punishment, namely, a grossly disproportionate sentence, on the offender before the court - the particularized inquiry. The Court determines what constitutes a proportionate sentence for the offence considering the objectives and principles of sentencing without consideration for the mandatory minimum sentence, and then compares that sentence to what is mandated by the mandatory minimum sentences and decides whether the mandatory minimum sentence is grossly disproportionate. If the answer is no, the next question is whether the mandatory minimum sentences reasonably foreseeable applications would impose cruel and unusual punishment on other offenders.

53When examining the second inquiry, the question is what situations may reasonably arise, not whether such situations are likely to arise in the general day-to-day application of the law. What must be excluded from consideration are only remote or far-fetched hypotheticals. In this inquiry, the court may take into account personal characteristics relevant to people who may be caught by the mandatory minimums, but must avoid characteristics that would produce remote or far-fetched examples: Nur, (S.C.C.) at para. 76.

54The question is whether it is reasonably foreseeable that the mandatory minimum sentence will result in sentences that are grossly disproportionate to some people’s situations. While reasonable hypotheticals may be helpful, the focus remains squarely on whether the sentence would be grossly disproportionate in reasonably foreseeable cases: Nur, (S.C.C.) at para. 57. A reasonable hypothetical is “a situation that may reasonably be expected to arise -- not ‘marginally imaginable,’ not ‘far-fetched,’ but ‘reasonable” (at para 56).

55Courts are not limited to reasonable hypotheticals of a regulatory nature. Nor are courts confined to situations that are likely to arise in the general day-to-day application of the law, nor to applications that are common. Courts are entitled to consider reported cases and need not do so with caution. Those cases mirror conduct captured in real life (at para. 72).

56The majority in Nur found a court was simply asking: What is the reach of the law? What kind of conduct may the law reasonably be expected to catch? What is the law’s reasonably foreseeable impact? (at para. 61) In deciding the type of cases that mandatory minimum sentences may reasonably be expected to capture, judges are to bring to bear their “judicial experience and common sense” (at para. 62). Considering fanciful or remote situations or merely speculating are not permitted bases upon which to set aside laws.

57In addition to the facts noted earlier, when given an opportunity to speak at the end of submissions pursuant to s. 726 of the Criminal Code, the offender said he pled guilty and that he realized the law was made to deter people in society like him not to commit any offence and that the law was also made in order to protect the interests of every citizen in the society. He continued:

I am guilty and I would like to apologize and I ask the court to consider my personal and family problems. My wife is always sick and we have two small children that need me and my wife. It is very difficult for the whole family. … To tell you the truth … Your Honour, I got involved into this because I thought that I would make some bread for my family. I don’t really know the exact consequences and the dangers and the risk that my actions would cause for the society … and the community and I am really sorry. The reason I was involved in this mess because at that time … I just got laid off and my wife was not working and we’re sort of cash strapped so, you know, I did what I did and I’m sorry. And because of my language barrier I didn’t know how serious it really is but now I do realize that my action cause a lot of damage … and I am ready for the sentencing that you might impose on me, Your Honour. I hope that Your Honour will give me a last chance because I already learn a very valuable lesson.

THE PARTICULARIZED INQUIRY: HAS THE OFFENDER ESTABLISHED THAT THE MANDATORY MINIMUM SENTENCE WOULD BE GROSSLY DISPROPORTIONATE FOR HIM?

The Position of Counsel

The Applicant’s Position

58The offender submits that an examination of reported cases leads to the conclusion that a two or three-year sentence for this offender is grossly disproportionate for the offences upon which he has entered guilty pleas. He contends that a 12 to 15-month sentence would be at the higher end of the appropriate range previously applied for sophisticated residential grow operations with hydro by-passes.

59Indeed, with the aggravating fact included, the effective sentence can be seen as three times what would have been imposed before the introduction of the mandatory minimum sentences. To place too strict a reliance on the number of plants risks arbitrary and harsh results. This is only exacerbated when the aggravating considerations in ss. 7(3) are added.

60In assessing proportionality, the gravity of the offence, the harm targeted by the offence and the moral culpability required to establish the offence are the most significant factors.

61Mr. Norris argues that in Nur, notwithstanding the significant danger to public safety caused by loaded guns that are inherently dangerous and commonly used in criminal activities, three years was found to be grossly disproportionate and five years as “draconian” despite the increased moral culpability of a repeat offender. When the harm inquiry is conducted in relation to marijuana grow operations in comparison to firearms, the controlled substance offences are at the lower end of the scale. Marijuana grow operations are not inherently dangerous like firearms. Medically approved patients are currently producing their own marijuana in their own homes and can grow an authorized number of plants.

62The Supreme Court of Canada has held that where an offence does not require proof of harm, it is unlikely that mandatory minimum terms in the area of three years could be justified. To establish production does not require proof of actual harm or even a risk of harm.

63Marijuana is a non-addictive, medically approved drug and a soft drug in the recreational context. Before the advent of the mandatory minimum sentences, the dispositions for production were declining in severity. While sentencing for marijuana-related offences may be informed by the principles of deterrence, much greater weight is attributed to the offender’s personal characteristics and his or her potential for rehabilitation.

64The applicant also notes that he currently faces the same mandatory minimum sentences as would be imposed on large-scale producers of a Schedule 1 drugs including heroin, cocaine, methamphetamine and MDMA.

65The applicant also relies on the judgment in Allard v. Canada, 2014 FC 280, [2014] F.C.J. No. 412, where Manson J. granted an interlocutory injunction in relation to several plaintiffs who challenged the Marijuana for Medical Purposes Regulation (MMPR)¹ that replaced the Marijuana Medical Access Regulations (MMAR) in 2014. The MMAR provided for licenses under which eligible persons who had a declaration signed by a medical practitioner, were issued Authorizations to Possess (ATP) marijuana. Those with valid ATPs could lawfully obtain and possess marijuana: 1) through a Personal Use Production License (PPL) that permitted the holder to produce a determined quantity of marijuana for his or her own use; 2) through a Designated Person License (DPL) pursuant to which the holder was able to designate another person to produce his or her marijuana; and 3) by purchasing dried marijuana directly from Health Canada which contracted with a private company to produce and distribute marijuana.

66Under the MMPR, PPLs and DPLs were no longer available and the amount individuals were allowed to possess pursuant to licenses was reduced. In addition, marijuana was to be produced only by a licensed producer and individuals who had an ATP were required to register their prescriptions with a licensed producer to obtain marijuana.

67The plaintiffs, all holders of an ATP and/or a PPL or DPL, contended that the new regime would increase the costs of marijuana and decrease the safety and quantity of the product. They succeeded in showing that they would be unable to afford marijuana produced by licensed producers which would affect their health, endanger their liberty or severely impoverish them. The severe and immediate financial hardship faced by the plaintiffs would constitute irreparable harm.

68Appeals by both sides to the Federal Court of Appeal were dismissed except in relation to two plaintiffs who were granted a further hearing to determine if the application judge omitted their remedy or for the judge to provide reasons for their omission: 2014 FCA 298, [2014] F.C.J. No. 1241 (C.A.).

69The offender relies upon the following cases with respect to parity. In R. v. Bick, [2012] O.J. No. 1787 (C.J.), 12 months was imposed for a commercial grow operation involving over 3,000 plants. The grow operation was in a commercial property that had been converted to grow marijuana. The plants were all within one locked room.

70In R. v. Ingster, [2003] O.J. No. 4586 the Court of Appeal upheld a 12- month sentence for a sophisticated commercial grow operation with 855 plants. It is not clear from the trial ([2001] O.J. No. 6035 (S.C.J.)) or the Court of Appeal judgments whether this was a residential grow operation. The trial judgment notes he was running a marijuana factory in his premises. That was after a trial.

71In R. v. Macsanzsky, 2013 ONCA 672, the Court of Appeal upheld a nine month jail sentence for production, possession for the purpose of trafficking and theft of electricity for a large residential grow operation with marijuana of a significant value. That was after a trial.

72In R. v. Nguyen (2007), 2007 ONCA 645, 227 C.C.C. (3d) 262, the Court of Appeal described 15 months imprisonment as high for 1,121 plants and 18 pounds of harvested marijuana in a residential grow operation with a hydro by-pass.

73Finally, in relation to Ontario cases where jail terms were imposed, the applicant relies on R. v. Bui, [2011] O.J. No. 6539 (S.C.J.) where 12-months was imposed on the principal and directing mind of a plant supply business catering substantially to marijuana grow operations.

74The applicant also relies on previous cases where conditional sentences were imposed, noting that absent the mandatory minimum sentences, the applicant would have been eligible for a conditional sentence.² In R. v. Pollock, [2000] O.J. No. 4430 (S.C.J.), Langdon J. imposed a 12 month conditional for approximately 1,330 plants where the offender had sympathetic personal circumstances.

75In R. v. Jacobson (2006), 2006 CanLII 12292 (ON CA), 207 C.C.C. (3d) 270 the Court of Appeal substituted an 18-month conditional sentence for 6 months’ jail that was imposed at trial.

76In R. v. Gan, 2007 BCCA 59, a 12 month conditional sentence was imposed for over 500 plants where the offender had sympathetic personal circumstances.

77While conceding that the aggravating factors noted in s. 7(3) of the C.D.S.A. have been regarded as aggravating before the amendments, the applicant submits that “there is no substantial discrepancy among sentences for production of marijuana convictions where certain aggravating factors are present, such as the presence of children or some safety hazard, and those where such circumstances are absent.” The cases in support of that position are set out in paragraphs 36 -37 of the Applicant’s Factum.

78Finally, in this area as well as all of the issues raised on this application, the applicant notes the “shifting public understanding and debate around marijuana use.” Some jurisdictions have permitted legal use of marijuana for medical purposes while others have gone further, decriminalizing its recreational use. While mainly extra-judicial considerations, they should “do some work in informing the court’s understanding of the targeted harm as well as the disproportionality of the mandatory sentences in the course of its constitutional review.”

79Finally, the applicant concedes that this branch of his argument is the weaker of the two branches because the disproportionality is less than in the hypotheticals. However, he contends that there is still a gross disproportionality.

The PPSC’s Position

80The PPSC argues that after examining the gravity of the offence, measured by reference to its essential elements and not the circumstances surrounding the commission of the offence in the particular facts before the court, the moral culpability of the offender, the impact of the sentence on the applicant and the impact on the purposes and principles of sentencing, the application fails on this branch. The seriousness of the offence is the product of the harm targeted by the elements of the crime and the moral culpability required to establish guilt. The greater the harm and higher the moral culpability, the more serious the crime. Nur, (C.A.) at para. 83.

81As regards the gravity of the offence, Mr. North stresses that appellate courts have repeatedly noted the serious nature of marijuana production. For example, in R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8, at para. 31, the Court examined whether evidence should be excluded under s. 24(2) of the Charter and held that the cultivation of a narcotic is a serious offence, often leading to other social evils. As regards harm from grow operations, the PPSC submits that it is beyond dispute that extensive and often violent criminal activity is spawned by the drug trade. R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, at p. 1081; Pushpanathan v. Canada (Minister of Citizenship and Immigration)I, 1998 CanLII 778 (SCC), [1998] 1 S.C.R. 982 at pp. 1039-1039. In Evans at para 24, the Supreme Court of Canada found that the “cultivation of a narcotic is a serious offence, often leading to other social evils.” See also: R. v. Nguyen 2007 ONCA 645 at paras. 46-48.

82The PPSC argues that the applicant’s attempts to minimize the production offence’s seriousness run contrary to the law. It is Parliament’s role to set the seriousness of the offence by the penalties it sets, not the Courts. In particular, Mr. North relies on Latimer v. The Queen, 2001 SCC 1, [2001] 1 S.C.R. 3, where the Court adopted the following comments from Borins J. in R. v. Guiller (1985), 1985 CanLII 5996 (ON SC), 48 C.R. (3d) 226 (Ont. Dist. Ct.), at para. 24:

It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed upon those found guilty of committing the offences. Parliament has broad discretion in proscribing conduct as criminal and in determining proper punishment. While the final judgment as to whether a punishment exceeds constitutional limits set by the Charter is properly a judicial function, the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency.

83As Doherty J.A. wrote in Nur in the Court of Appeal for Ontario, “Properly restrained judicial constitutional review accepts the primary law-making responsibility of legislatures by acknowledging the wide ambit of legislative choices available to the elected officials.”

84In dealing with the effect of the mandatory minimum sentences on the penological goals and principles, the PPSC notes Doherty J.A.’s comments in Nur, at para. 102 that minimum sentences that stress denunciation and general deterrence over other sentencing goals are not thereby rendered unconstitutional. However, sentences that are said to be justified on those same principles do not automatically pass constitutional review. Mr. North stresses that emphasizing deterrence and denunciation for drug offences does not signal a shift in emphasis. Those have always been the primary considerations, albeit not to the exclusion of the other purposes and principles of sentencing.

85Mr. North submits that the Supreme Court of Canada has established the framework for the analysis of the gravity of the offence. Parliament has a broad discretion in determining that conduct is criminal and in determining the proper punishment. It is not for courts to assess the wisdom of Parliament with regards to the gravity of the offence and range of penalties that may be imposed. While the courts have the final say as to whether a punishment exceeds constitutional limits set by the Charter, courts should be reluctant to interfere with the considered view of Parliament. It is only where the prescribed punishment is so excessive when compared to other punishments as to outrage standards of decency that courts should interfere: Guiller, at para. 24.

86While at first blush it might seem that the loaded firearm offence examined in Nur would be more serious than marijuana production, that is not what Parliament has determined. By making this offence straight indictable and recently increasing the maximum sentence to fourteen years, Parliament has signalled its view in regards to the seriousness of production of marijuana. It is not for the court to pass on the wisdom of those decisions. It is for the court to determine whether the minimum sentences exceed constitutional limits.

87Mr. North argues that this applicant’s moral culpability is high. The moral culpability component is about the mental state required to commit the offence itself, not about the offender’s role. Nur, at para. 86. As Doherty J.A. held in Nur, at paras. 86 and 87, there are a variety of culpable mental states ranging from intention, recklessness and knowledge. While moral culpability is generally reflected in the mens rea requirement, blameworthiness can lie in the nature of the conduct engaged in. Here, there can be no suggestion that the applicant was reckless. He made a conscious decision to engage in the grow operation. Producing marijuana is not an impulsive act. Rather, it is one that requires time and effort to start up and to produce the marijuana after the set-up is complete.

88In terms of the effect of the sentence on the applicant, his personal circumstances must be considered including his related criminal record having received four months jail in 2002 for the same offence.³ In addition, this operation had over twice the 500 plant limit, it was sophisticated, had a hydro by-pass and was in a residential area. These are all factors that would act in aggravation of the sentence before the mandatory minimum terms were enacted.

89The PPSC also argues that it is the actual impact that must be examined. Accordingly, the impact of parole must be considered. Here, the applicant would be eligible for full parole in twelve months and eligible for day parole within six months. As Doherty J.A. noted in Nur, at para. 98, parole undoubtedly mitigates the impact of a sentence on an offender.

90The PPSC clarifies their original argument in relation to parole, noting the Supreme Court of Canada in Nur concluded that they did not know on the facts of Nur whether parole reduced the actual impact of the mandatory minimum sentence. However, the Court agreed with Nur’s counsel that parole is a statutory privilege and not a right and noted that the discretionary decision of the Parole Board was no substitute for a constitutional law (at para. 98).

91The PPSC relies upon the seventeen cases in the chart appended to the Respondent’s Factum. Those cases show a range from 12 months’ imprisonment served conditionally to intermittent terms to 21 months in jail.

92While he agrees that at one time the sentencing cases for production were “all over the map,” after the Court of Appeal judgment in Jacobson, Mr. North argues that the sentencing landscape changed dramatically.

93In Jacobson, the Court found that for a cultivation of the magnitude, in that case, 376 plants, in a residential area, a conditional sentence would be rare, even for a first offender.

94The PPSC also relies upon the judgment of Dunn J. in R. v. Dao, [2003] O.J. No. 4957 (S.C.J.), where His Honour imposed three years on the gardener for a grow operation that included 984 plants. That offender had no record.

95In R. v. Nguyen, 2007 ONCA 645, for an outdoor grow operation with 1,121 plants and 18 pounds of harvested marijuana, 15 months was upheld by the Court of Appeal after a trial, although the Court noted that the sentence might be said to be somewhat high although not outside the range. That offender had no record.

96In R. v. Ha, [2008] O.J. No. 4295 (CA.), for 480 plants, 18 months was upheld. The offence there was possession for the purpose of trafficking. The grow operation included a hydro by-pass.⁴

97The PPSC also relies upon R. v. Lauda (1999), 1999 CanLII 970 (ON CA), 45 O.R. (3d) 51 (C.A.) where, after a trial, 18 months was imposed for an outdoor grow operation with 700 plants. The Court of Appeal found the 18 months was “eminently fit” and saw no reason to interfere with it.

98Mr. North submits that before the advent of the mandatory minimum sentences, the range of sentences for a first-offender not shown to be more than a gardener was from eight months to two years less one day. He submits that this applicant would have received a sentence of between 15 and 24 months. Accordingly, a two-year sentence cannot be said to be grossly disproportionate. The PPSC submits “it is a significant but measured increase over the conventionally fit jail term for an offence of this severity.”

99Mr. North agrees that if the mandatory minimum sentence is three years, this would be at the high end of the range or perhaps above the range. However, that does not result in a finding the sentence violates s. 12 of the Charter. It would not outrage Canadian standards of decency. He notes as well that Parliament determined that the maximum sentence should increase from 7 years to 14 for this offence which should be expected to result in increases in the sentences imposed.

100I have also considered the Court of Appeal judgment in R. v. Zheng, 2014 ONCA 345, where the Court held that a 10-month sentence for a first offender with 343 plants and a hydro by-pass was within the range for similar offences, referencing Doan, Ha, and R. v. Nguyen, [2006] O.J. No. 1745 (C.A.).

ANALYSIS

101The first step is to determine what sentence the applicant would receive considering the purposes and principles of sentencing set out in the Criminal Code and the C.D.S.A., those derived from the common law as well as the other aggravating and mitigating considerations without considering the mandatory minimum sentences.

102The applicant is 42 years of age, married and has three young children. He and his wife are on social assistance. From his statement, his wife is not in good health but I have no further information on that issue.

103With respect to the aggravating factors, first, this was a large scale, sophisticated grow operation with 1,020 plants.

104Second, there was a hydro by-pass and over $25,000 went uncharged.

105Third, there is evidence of risk of harm given the manner in which the wiring and venting was done, as well as from the hydro by-pass.

106Fourth, the applicant has a previous record for the same offence for which he received a four-month jail sentence. The Court of Appeal has addressed the relevance of a criminal record in R. v. Taylor, 2004 CanLII 7199 (ON CA), [2004] O.J. No. 3439 at para. 39:

Moreover, it is a misconception to say -- as the respondent submits -- that a criminal record may not be an aggravating factor in sentencing. Certainly, it would be wrong to punish a person for his or her past crimes by using a criminal history in effect to impose a "double punishment" on that person, i.e., to impose a sentence for the offence in question and then to add something more for the criminal record: see Regina v. Hastings (1985), 1985 ABCA 20, 19 C.C.C. (3d) 86 at 88 (Alta. C.A.); R. v. Young, [1979] M.J. No. 150, (1979), 22 C.L.Q. 35 (Man. C.A.). Thus, it is not proper to treat the record of the accused as an aggravating factor in the sense that the trial judge is entitled to raise the sentence beyond what would otherwise be a fit sentence: R. v. Carrier (1996), 1996 ABCA 133, 187 A.R. 40 (Alta. C.A.). However, a criminal record, depending on its nature, may be an "aggravating" factor in the sentencing context in the sense that it renders a stiffer sentence "fit" in the circumstances because it rebuts good character and because of what it tells the trial judge and society about the need for specific deterrence, the chances of successful rehabilitation, and the likelihood of recidivism.

107Here, while the record is from 2002, it is apparent that a relatively short straight-time jail term was not sufficient to deter the applicant.

108Fifth, from the cases filed, it is apparent that there is a prevalence of marijuana grow operations in the community. The Court of Appeal has dealt with the prevalence of crime in a community in several cases and found that there has to be an evidentiary basis for the finding. These cases include R. v. Redekopp, [1998] O.J. No. 5366 (C.A.) and R. v. Nguyen 2007 ONCA 645 where the Court found there was an evidentiary basis from an officer.

109However, in R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 30 O.R. (3d) 538 (C.A.), the Court cautioned as follows:

12 The principles to be applied where there appears to be an unusually high incidence of a particular crime in the community have been set down by this court. In 1978, Arnup J.A. in R. v. Sears (1978), 1978 CanLII 2277 (ON CA), 39 C.C.C. (2d) 199 at page 200 (Ont. C.A.) pointed out that prevalence of a particular crime in the community can never be more than one factor to be taken into account.

The trial Judge indicated that in his area, charges of theft under $200 were "not just increasing, but soaring", and he observed that in the protection of society it is the deterrence of others that comes into play. We agree with the statement that in considering the appropriate sentence to be imposed in cases of shop-lifting or related offences, it is appropriate to consider whether in that particular community, at that particular time, there appears to be an unusual amount of that type of crime, which therefore calls for a sentence which will reflect a degree of deterrence to others. At the same time, that situation can never be more than one of the factors which is to be taken into account, the paramount question of course always being: what should this offender receive for this offence, committed in the circumstances under which it was committed? [Emphasis added]

110The applicant acknowledges that marijuana grow operations are prevalent in this community although he does not concede the numbers or that they are at an all-time high.

111There are also factors in mitigation. First, the applicant pled guilty to the offences. Guilty pleas are indicative of remorse and the potential for rehabilitation. The pleas save court time, the public expense of a trial, and the witnesses from having to come to court to testify. That the applicant challenged the legislation does not detract from the mitigating effect of his guilty plea.

112Second, the applicant has a wife and children to support.

113While the role of an offender in the offence is a relevant consideration on sentence and whether the mandatory minimum sentences for this offence would be grossly disproportionate, that an offender being sentenced for production was a gardener only is not mitigating. Rather, it informs the analysis of other cases in which gardeners and principals have been sentenced. As counsel take different views on the offender’s role, it is appropriate to address that issue now.

IS THE APPLICANT A GARDENER?

The Positions of Counsel

The Position of the Applicant

114The applicant submits that it is clear the applicant was only a gardener. Accordingly, he should be sentenced and the constitutional issues determined on the basis that he was the gardener cultivating the plants that were owned by someone else. He does not dispute that the gardener plays an essential role in a grow operation. However, his moral culpability is not the same as the owner and/or a person who was going to sell the marijuana and profit from the sale. It is also implicit in his argument that there is no evidence that he was personally involved in the set-up of the grow operation including creating the hydro by-pass, improper wiring or venting.

115If the PPSC wants to rely on the aggravating factor that he was the principal producer, the prosecution would have to establish that fact beyond a reasonable doubt. In the alternative, if the onus is on the applicant to establish he was only a gardener, he does not wish an opportunity to call evidence on that issue.

The Position of the PPSC

116The PPSC argues that the offender’s role in the grow operation is that of a principal. While the role of gardeners is essential to grow operations, it would be wrong to proceed on the basis that the offender was only the gardener tending to someone else’s plants. While the role of gardeners is essential to grow operations, it would be wrong to proceed on the basis that the offender was only the gardener tending to someone else’s plants. An offender is not entitled to be sentenced on the most favourable set of facts imaginable: R. v. Holt (1993), 4 C.C.C. (3d) 42 (Ont. C.A.); R. v. Smickle (2013), 2013 ONCA 678, 304 C.C.C. (3d) 371 (Ont. C.A.)

117The PPSC submits that based on the judgment in R. v. Holder, (1998), 1998 CanLII 14962 (ON SC), 21 C.R. (5th) 277 (S.C.J.) the starting point should be that the applicant is a principal just as Hill J. found that the presumption was that an importer was a principal and not a courier. If the applicant played a lesser role, he should be required to establish that on a balance of probabilities as a mitigating consideration pursuant to s. 724(3) of the Criminal Code.

ANALYSIS

118First, the law is clear that an offender is not entitled to be sentenced on the basis of the most favourable version of the facts imaginable: Holt and Smickle. The offender’s role is determined on the basis of all the facts in the case. Here, the evidence is that Mr. Vu was at the home when the search warrant was executed, took steps to avoid detection after the police knocked on the door, the location where the police located him had nothing to do with gardening, the house was not in his name, the hydro bill was not in his name, and while warranting minimal weight, when asked if he wished to make a statement on sentencing, he said he was out of work and wanted to make some money for his family. When given an opportunity to lead evidence on the issue, the offender declined. It is on that record that the determination must be made.

119Second, I am not persuaded the presumption the PPSC seeks to be applied is as easily transferred from Holder as the prosecution suggest. Hill J. held at para. 35:

…the appropriate starting reference point is that a convicted importer is a principal. This is a presumption that can be rebutted by an accused individual. The facts relating to the circumstances of the importation are, of course peculiarly within the knowledge of the accused. The presumption that the accused is acting on her own can be rebutted by proof, on a balance of probabilities, pursuant to s. 724(3)(d) of the Criminal Code.

120In importing, there is only one person who is at the scene and arrested. He or she either has the drugs on or in their person or luggage. Here, there are two people in the home when the search warrant was executed. The ownership of the home and the hydro account are in a different name than the applicant’s. The admission is that the applicant was involved in the grow operation.

121On these facts, while I am not prepared to draw the inference the offender is a principal, neither am I persuaded that he was only a gardener. Rather, I will proceed on the basis that the applicant was involved in the grow operation and being paid for his work. I am not prepared to infer he was going to sell the marijuana himself and profit from those sales.

THE PURPOSES AND PRINCIPLES OF SENTENCING

122Turning next to the purposes and principles of sentencing, the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

a) to denounce unlawful conduct,

b) to deter the offender and other persons from committing offences,

c) to separate offenders from society, where necessary,

d) to assist in rehabilitating offenders,

e) to provide reparation for harm done to victims or to the community, and

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community: Criminal Code, s. 718

123Pursuant to s. 10 of the C.D.S.A., without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under Part I of the C.D.S.A. 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 to the community.

124Returning to the Criminal Code, the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. As noted earlier, counsel take very different views with regards to the gravity of the offence.

125The seriousness of an offence involving marijuana is a subject upon which reasonable people may differ. There is no dispute that marijuana is regarded as a soft drug. It is a controlled substance that individuals can obtain licenses to possess and grow. However, as the Supreme Court of Canada has found, it is a psychoactive drug that causes alteration of the mental function: R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571, at para. 3. Both lower courts found that the harm was neither insignificant nor trivial. Some groups, albeit a relatively small percentage of all marijuana users, share a particular vulnerability to its effects including chronic users, pregnant women and schizophrenics (at para. 3).

126In addition, as noted earlier, higher courts have repeatedly noted that the production of marijuana is a serious offence. There is nothing in the case law or legislation to detract from those findings at this time.

127In relation to the theft of electricity count, it is a relatively significant loss. I have already found there was a potential risk to public safety from the by-pass.

128Turning next to the degree of responsibility of the offender, the offender has a previous, albeit somewhat dated, conviction and jail sentence for the same offence. In Nur, the Supreme Court found the moral culpability of a repeat offender was greater than that of a first offender for the offence under consideration in that case. The same applies for production of marijuana.

129As regards the purposes and principles of sentencing, that general deterrence and denunciation are the most important considerations in sentencing for grow operations is well established in the case law and through the C.D.S.A.

130Given the offender’s previous jail sentence for the same offence, there remains a need to address specific deterrence as well as his rehabilitation.

131Parliament has also directed that similar offenders who commit similar offences in similar circumstances should receive similar sentences. I have reviewed all of the cases relied upon by both counsel and conclude that the range suggested by the applicant is too low for this offender for this offence committed in this community. The applicant’s cases do not involve the size of this operation nor offenders with previous records of jail sentences for the same offence. Neither do they include expert evidence to the extent that was called in this case.

132Having regard to the authorities relied upon by both counsel and applying recognized sentencing principles, I conclude that before any consideration of the mandatory minimum sentences, a conditional sentence for the applicant would not be consistent with the purposes and principles of sentencing. To seek a conditional sentence would not be an uphill battle, it would be an effort doomed to failure in the absence of some extraordinary circumstances not revealed on this record.

133I find that the applicant would have received a sentence in the area of 15 and 24 months or slightly higher without considering the mandatory minimum sentences.

134I agree with the PPSC that the two years sentence for the production count is within the appropriate range, albeit at or near the top of the range and that a three year sentence for this offender would be high, even disproportionate, but not grossly disproportionate.

135In summary with regards to the proportionality analysis, production is a serious offence, while the offender has family responsibilities, he has a previous record for the same offence for which he served a jail sentence, the grow operation was large with potential public safety hazard considerations, and while the sentence would be significant, his eligibility for parole is a relevant consideration.

136In all the circumstances, the applicant has not established that a two or three-year sentence for him would be grossly disproportionate.

HAS THE OFFENDER ESTABLISHED THAT THE MANDATORY MINIMUM SENTENCE WOULD BE GROSSLY DISPROPORTIONATE IF IMPOSED ON OTHERS?

Reasonable Hypotheticals

137Two preliminary issues arose in relation to the reasonable hypotheticals to be considered. First, can the applicant rely on subsections of s. 7 (2) and (3) that are not relied upon as aggravating factors by the PPSC in determining whether the mandatory minimum sentences violate s. 12 of the Charter? Second, can the reasonable hypotheticals include residential grow operations which are no longer permitted in Canada?

LIMITATIONS ON THE REASONABLE HYPOTHETICALS – THE SUBSECTIONS THE APPLICANT CAN RELY UPON

The Positions of Counsel

The Applicant’s Position

138Mr. Norris submits that the applicant is entitled to rely on any of the subsections in s. 7(3) and is not restricted to those upon which the PPSC relies in this prosecution. He notes that his Notice of Constitutional Question is broadly worded as follows:

Does the three-year minimum sentence upon conviction for the offence under subsections 7(2)(vi) of the Controlled Drugs and Substances Act violate s. 12 of the Canadian Charter of Rights and Freedoms?

If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society pursuant to s. 1?

Does the two-year minimum sentence upon conviction for the offence under s. 7(2)(v) of the Controlled Drugs and Substances Act violate s. 12 of the Charter?

If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1?

139In the alternative, he submits that he is “not overly concerned” if he is restricted to the risk to public safety criteria as the elements of s. 7(3) appear to operate independently. However, with regards to s. 7(2), with the provisions calibrated according to the number of plants, he submits that “scaling” is effectively one piece and it would be inappropriate to pull out one section only for analysis. It is appropriate to examine all of the subsections.

The PPSC’s Position

140First, the PPSC submits the applicant is restricted to the aggravating facts relied upon in this case, the number of plants and the potential public safety hazard. While there are several routes that engage the mandatory minimum sentences under s. 7 of the C.D.S.A., there are only two engaged in this prosecution. The PPSC has called evidence only in relation to these issues, not the balance of aggravating considerations in s. 7.

141Mr. North relies on the following excerpt from R. v. Goltz, 1991 CanLII 51 (SCC), [1991] 3 S.C.R. 485, at paras. 76-77:

76 Furthermore, having little in the judgment of the Court of Appeal to rely upon, the respondent also failed to discharge on his own the burden of showing gross disproportionality. He argued that from among ss. 25, 83, 84, 85, 86, 87, 94 and 214 of the Act, certain provisions contemplate suspensions or prohibitions for relatively minor offences, such as failure to pay for a licensing examination (s. 85), or failure to reimburse the Insurance Corporation of British Columbia (I.C.B.C.) for money paid on a claim (s. 83(3)), which offences are not sufficiently grave to justify a minimum sentence of seven days' imprisonment. The respondent hypothesized that a single parent, suspended for failure to repay the I.C.B.C., who was required to drive a seriously ill child to the hospital, would receive a grossly disproportionate punishment at the hands of s. 88(1)(c) if convicted of driving while suspended and sentenced to seven days in prison.

77 But whether or not that particular example demonstrates gross disproportionality is not relevant to this appeal. It does not pertain to prohibitions under s. 86(1)(a)(ii) in tandem with s. 88(1)(a) of the Act. The respondent's responsibility was to marshal a reasonable example pertaining to the precise provision being challenged. That he did not do.

142The PPSC also relies on the following passage at para. 128 from Nur in the Court of Appeal in submitting that the constitutional challenge is limited to the sections under which the applicant is charged.

After Goltz and Brown, it seems clear that if the offence to which the mandatory minimum attaches is predicated on the commission of some other offence (e.g. using firearm in the commission of indictable offence), or on the breach of some statutory provision or order (e.g. driving while prohibited), the Crown can limit the constitutional challenge and, hence, the reasonable hypothetical analysis to the same predicate offence or the breach of the same statutory provision or order as occurred on the facts of the case giving rise to the constitutional challenge.

ANALYSIS

143I agree with the PPSC that the applicant is restricted to s. 7(3)(c) in regards to the hypotheticals. The four subsections in s. 7(3) are independent routes to further mandatory minimum sentences and do not rely upon each other. Accordingly, Goltz precludes the hypotheticals being based on ss. 7(3)(a), (b) or (d).

144With respect to s. 7(2), I agree with the applicant that the subsections provide a scaled approach to mandatory minimum terms based on the number of plants. The subsections are inter-related. In those circumstances, the applicant can rely upon all of the subsections, although practically it is not significant.

LIMITATIONS ON THE REASONABLE HYPOTHETICALS – CAN THE APPLICANT’S HYPOTHETICALS INCLUDE RESIDENTIAL GROW OPERATIONS?

145As of June 2013, residential grow operations are no longer permitted in Canada under the regulations to the C.D.S.A.

The Positions of Counsel

The PPSC’s Position

146The PPSC submits that the amendment eliminates from consideration any hypothetical in which there is a residential grow operation.

The Applicant’s Position

147The applicant submits that based on the current injunction in Allard, residential grow operations continue to lawfully exist in Canada. Accordingly, it is too restrictive a view to eliminate residential grow operations from consideration.

ANALYSIS

148I am not persuaded the current legislation precludes any consideration of residential grow operations. First, as a result of the injunction in Allard, residential grow operations continue to lawfully exist in Canada. Second, even if the current legislation is valid, the aggravating factor would continue for residential grow operations. That there can be no lawful residential grow operations does not remove s. 7(3)(c) from the C.D.S.A.

The Applicant’s Reasonable Hypothetical Situations

149The applicant raised four reasonable hypothetical situations. In doing so, he does not suggest that the four scenarios are exhaustive. There could be no limit to one’s imagination in creating scenarios. Rather, the hypotheticals focus on the essence of the aggravating factors.

150The applicant submits that the following situations illustrate the gross disproportionality: first, a comparison between the judgments in R. v. T.V.N., 2011 ONCJ 204, and R. v. Nguyen, [2013] O.J. No. 2688 (C.J.); second, contrasting the sentences for an offender convicted of producing 200 plants who would automatically receive a minimum of six-months and another offender who produced 201 plants who would receive a minimum of 18 months; third, what I will refer to as the mens rea issue - where the offender was not aware of and/or took steps to ensure the aggravating factor in s. 7(3)(c) did not exist, yet it did, would be subject to the mandatory minimum sentence: and fourth, what I will refer to as the “over the license limit offender” – where an otherwise law-abiding medically licensed marijuana producer unintentionally exceeded his or her maximum number of plants under the license and would be subject to a minimum sentence for either the total amount or the number of plants over the license limit.

151I turn next to address each hypothetical.

T.V.N. and Nguyen

152In T.V.N. the offender had a 200-plant grow operation with a hydro by-pass in his home where he lived with his two children. He was 42 years of age and emigrated from Vietnam in 1987. He had a high school education and was employed. T.V.N. received a four month jail sentence and probation.

153Nguyen had a 136-plant grow operation with a hydro by-pass in her home where she lived with her four children. As the by-pass was professionally installed, the trial judge did not consider it as an aggravating factor. The offender was 45 years of age and a single mother. She had a grade seven education and struggled to get by. Ms. Nguyen received a four-year sentence.

The Positions of Counsel

The Applicant’s Position

154The applicant submits that an offender who receives 12 times the sentence of someone with more plants illustrates the gross disproportionality of the mandatory minimum sentences.

The PPSC’s Position

155The PPSC submits that there are important distinguishing features in Nguyen. Of note, Nguyen was serving a conditional sentence for the same offence when she committed the offence for which she was being sentenced. The home owner had significant damages from the grow operation. The neighbours filed Victim Impact Statements and were at risk. That offender had four children in the home and two had told her not to become involved.

ANALYSIS

156I am not persuaded the comparison shows gross disproportionality. The cases are very different. That Nguyen was serving a conditional sentence for the same offence is a most serious aggravating factor that in itself justified a significant difference in the sentences. In addition, there were other distinguishing features including that the home was damaged, it was owned by an innocent victim, the neighbours were impacted, Nguyen had children in the house and two of her daughters had told her not be involved. The comparison of the two cases does not support a finding that the mandatory minimum sentences result in gross disproportionality.

The 200-Plant Offender and the 201-Plant Offender

157The applicant contrasts one offender who was convicted of growing 200 plants who would automatically receive 6 months’ incarceration while another who grew 201 plants with the presence of one of the aggravating factors in s. 7(3) who would receive at least 18 months.

The Positions of Counsel

The Applicant’s Position

158The applicant contends a comparison of the two offenders illustrates the gross disproportionality of the mandatory minimum sentences.

The PPSC’s Position

159The PPSC responds with three submissions. First, the offenders are in fundamentally different positions as the second has an additional aggravating factor that was not present in the first. Second, the comparison proceeds on the basis that the minimum is the sentence imposed. The first offender has to receive at least six months. He or she could receive more.

ANALYSIS

160I am not persuaded the applicant’s second hypothetical supports a finding of gross disproportionality. The two cases are not comparable. In the first, the offender had 200 plants and no additional aggravating factor. In the second, the offender had 201 plants but also had the aggravating factor. While the applicant has provided some cases that would support the view that the aggravating factors did not result in different sentences, the presence of an aggravating factor could have, and often does result in different sentences

THE MENS REA ISSUES

161As the applicant’s next reasonable hypothetical was developed in oral submissions, several components to the mens rea emerged that can be described as follows:

162First, in relation to s. 7(3)(c), an offender was an active participant in a marijuana grow operation and:

i. did not know that a hydro by-pass and/or other factors in relation to the production constituted a potential public safety hazard in a residential community, or

ii. knew of the hydro by-pass and/or other factors in relation to the production existed but had unsuccessfully taken steps to ensure that the production did not constitute a potential public safety hazard in a residential community.

163Second, in relation to s. 7(2), a second hypothetical offender was an active participant in a marijuana grow operation and did not know the number of plants in the operation.

The Positions of Counsel

The Applicant’s Position

164First, the applicant submits that s. 7(3)(c) does not require the PPSC to establish that the offender knew of the potential public safety hazard before the judge is required to impose the mandatory minimum sentence once the existence of the potential public safety hazard is established beyond a reasonable doubt. An active participant in a grow operation who did not know that there was a potential public safety hazard, who lacked the mens rea in regards to that aggravating factor, would have lacked the moral blameworthiness yet would still be subject to the mandatory minimum sentence of at least one year. What is missing is the state of mind that normally attaches to criminal responsibility. It is that absence that creates the gross disproportionality. For example, a person hired as a gardener after the home was altered to accommodate the grow operation and knew nothing of a hydro by-pass or anything else that contributed to a potential public safety hazard would be jailed for at least an additional year.

165The applicant submits that a minimum jail term would be imposed on a person against whom there was no evidence he or she installed the defective wiring, installed the by-pass or adjustments that resulted in the potential public safety hazard in a residential area. It would be a sentence imposed independent of any consideration of the offender’s individual responsibility for the presence of those factors and/or in the absence of any knowledge of the potential risk. There is no requirement that they were aware of the factor(s) that contributed to the potential risk or were negligent in that regard. In addition, Mr. Norris submits that an accused could make an honest mistake in relation to the public risk element and still be subject to an additional year in jail.

166The applicant submits that it would be otherwise if an offender knew of the risk and did nothing or was reckless in that regard. However, there would have to be a finding in that regard. In those scenarios, it would enhance their blameworthiness and result in the mandatory minimum sentence being more proportionate.

167Second, with regards to s. 7(2)(vi), the number of plants, a similar situation arises because the PPSC is not required to establish the offender knew how many plants were involved in the grow operation. Mr. Norris notes that Parliament could have enacted an aggravated production offence somewhat akin to what occurs with assault, assault causing bodily harm and aggravated assault in relation to the injuries. The offences could have been graduated in a scale related to the number of plants. Instead, the legislation puts the number of plants under one production offence without requiring any mental element in relation to the number of plants.

168The applicant relies on the recent judgment of Hill J. in R. v. McCrea, 2015 ONSC 4711, where His Honour found that there was no mens rea requirement in relation to the amount of a controlled substance the offender was importing. His Honour noted the impact of mandatory minimum sentences for importing including that lack of knowledge of the weight, or an honest belief that it was less than one kilogram would is irrelevant to the imposition of a mandatory sentence at para. 63. His Honour quoted from the dissent in United States v. Dado, 759 F.3d 550, (6th Cir., cert, denied, 1235 S. Ct. 510 (2014) at p. 572:

Important principles are also at play here. The majority’s rule runs against the strong presumption against strict liability crimes. Staples v. United States, 511 U.S. 600, 607 n.3 (1994); supra at 24. The majority’s opinion disregards the presumption that the more serious the penalty at issue, the more important intent is to guilt. Staples, 511 U.S. at 616; supra at 24. In Dado’s case, he is facing two mandatory minimum sentences of 20 years triggered by a fact that he did not necessarily even know about. If the measure of mens rea is that it “require[s] that the defendant know the facts that make his conduct illegal,” Staples, 511 U.S., then Dado’s knowledge of the amount of drugs involved in his crime is a necessary condition for his guilt and the application of the mandatory minimum sentences in this crime.

169Third, while acknowledging that in the absence of a statement from an offender admitting that he or she knew of the public safety risk from the particular grow operation it would be very difficult for the PPSC to ever establish knowledge, the applicant submits that should not be determinative as there could be facts from which it could be inferred that a gardener knew of the public safety risk. For example, this would occur where there was evidence of visible arcing of the electricity within the home.

170That those factors apply notwithstanding the existence of any number of mitigating considerations intensifies the risks identified in Nur as follows:

44 Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range. They may, in extreme cases, impose unjust sentences, because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality. They modify the general process of sentencing which relies on the review of all relevant factors in order to reach a proportionate result. They affect the outcome of the sentence by changing the normal judicial process of sentencing.

45 General deterrence -- using sentencing to send a message to discourage others from offending -- is relevant. But it cannot, without more, sanitize a sentence against gross disproportionality: "General deterrence can support a sentence which is more severe while still within the range of punishments that are not cruel and unusual" (R. v. Morrissey, 2000 Supreme Court of Canada 39, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 45, per Gonthier J.). Put simply, a person cannot be made to suffer a grossly disproportionate punishment simply to send a message to discourage others from offending.

The PPSC’s Position

171Mr. North argues the prosecution is not required to establish anything beyond that the aggravating factor(s) existed. What the PPSC has to establish is the offender was intentionally an active participant in a grow operation. That is the only mental state required to be proven because the gravamen of the offence of production is “active participation in the growing of the prohibited plants:” R. v. Powell (1983), 1983 CanLII 246 (BC CA), 9 C.C.C. (3d) 442 (B.C.C.A.). For the number of plants or any item in s. 7(3) there is no requirement to establish the offender knew of the aggravating consideration. That the PPSC is not required to establish the offender’s knowledge of the aggravating factor does not result in a sentence that is grossly disproportionate.

172The PPSC submits the scaled penalties in s. 7 are tailored to a specific level of moral culpability based on the size of the grow operation and the presence of specific aggravating factors. To be subject to at least two years, an offender must actively participate in an illicit grow operation that involves at least 500 plants. For the three-year minimum to apply, the large scale illicit production must constitute a potential public safety hazard in a residential area.

173The PPSC addresses s. 7(3)(b)(c), the potential risk mens rea as follows: “… When a person willingly partakes in a production of more than 500 plants in a residential area, given the nature of the operation, that offender assumes the risk that the production may constitute a public safety hazard and will find themselves liable for the enhanced penalty of three years.”

174Mr. North submits that it is just like a cocaine importer who brings in three kilograms of cocaine but has no idea how much he or she is importing. That person still receives a sentence in the six to eight year range if multi kilograms are imported. There is no requirement that the PPSC establish beyond a reasonable doubt that the offender knew the amount he or she was importing. If the government intended to import a mens rea component, Parliament would have created a new offence in which those factors were elements and had to be established beyond a reasonable doubt.

175The PPSC notes that in Nur the Supreme Court of Canada found the s. 95 offence cast its net too broadly. Its sweeping breadth captured conduct that violated s. 12 because it included conduct at the far end of the range that did not merit a sentence of three years - conduct that resulted in grossly disproportionate sentences. However, the majority was clear that that conduct was “at the licensing end of the spectrum,” for example, “the licensed and responsible gun owner who stored his unloaded firearm safely with ammunition nearby but made a mistake as to where it could be stored.” For that offender, a three-year minimum sentence was grossly disproportionate to the sentence that conduct would otherwise merit under the Criminal Code’s sentencing provisions.

176The PPSC submits that all of the hypotheticals in Nur that would result in grossly disproportionate sentences were licensing offences which involve “little or no moral fault and little or no danger to the public.”

177In contrast, Mr. North submits, conduct that involves more than minimal moral fault or more than a minimal risk of harm would not appear to fall within the “far end” of the lower range contemplated by the majority in the Supreme Court of Canada. Where the conduct does not involve a licensing infraction, it would not be in the majority’s “far end.” Unlike the s. 95 analysis, the PPSC contends it is not reasonably foreseeable that either section in dispute here would capture offenders engaged in licensing-type offences. Anyone caught by either subsection cannot be said to have made a mistake. Rather, they had engaged in serious criminality, conduct that involved a “real risk of harm flowing from the conduct” and more than minimal blameworthiness.

178The PPSC refers to the Court of Appeal judgment in Nur in relation to the moral culpability relating to the offence itself as follows at para. 86:

The moral culpability component of an offence, the second factor to be considered when assessing seriousness, usually refers to the mental state that must accompany the commission of the prohibited act. There are a variety of culpable mental states, including intention, recklessness, and knowledge. An intention to bring about a prohibited consequence ranks at the top of the criminal law hierarchy of blameworthiness or moral culpability.

179The “constitutional frailty” of the s. 95 mandatory minimum in Nur at the Court of Appeal was identified by Doherty J.A. at para. 167 as follows:

The level of moral blameworthiness, however, as with the blameworthiness that knowledge of the possession of a narcotic imputes, depends on a number of variables, all of which fall within the broad scope of the offence as defined in s. 95. Knowledge that one has an unloaded restricted firearm safely stored in one's cottage with useable ammunition readily accessible in the next room, coupled with the knowledge that under the terms of one's licence, the firearm should be kept in one's dwelling, attracts a very different level of moral blameworthiness than does the knowledge of the person standing on the street corner with a loaded gun in his back pocket for which he knows he has no kind of authorization and which he intends to use as he sees fit. Section 95 is written so broadly as to capture offenders with both levels of moral blameworthiness. My reasonable hypothetical focuses on the less blameworthy category of potential offender.

180While the three-year mandatory minimum in Nur was found to be grossly disproportionate for the hypothetical cottage scenario, in contrast s. 7 of the C.D.S.A. contains a graduated series of minimum sentences, each tailored to a specific culpability based on the size of the operation and the presence or absence of any of the factors specified in s. 7(3). The s. 7 net is not nearly as wide as that created by s. 95. Mr. North notes that there is no mandatory minimum for fewer than 6 plants and no mandatory minimum for between 6 and 200 plants unless the Crown proves the plants were for the purpose of trafficking.

181The scaled mandatory minimum sentences are much like those currently in place for importing. They are unlike those to which Doherty J.A. referred to as the “broad sweep of conduct captured” when all importation of narcotics attracted a seven-year minimum sentence before R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045.

ANALYSIS

182There is no dispute that the PPSC is required to establish the existence of the aggravating factor in s. 7(3)(c) and the number of plants noted in s. 7(2) beyond a reasonable doubt. There is also no dispute that the legislation does not require the PPSC to establish the offender knew of the aggravating factors. Where counsel part ways is whether, in the absence of proof of the offender’s knowledge, the result would be grossly disproportionate sentences.

The Potential Public Safety Hazard

183In relation to the potential public safety hazard in s. 7(3)(c), the PPSC is required to establish that the particular grow operation constituted a potential public safety hazard in a residential area. It is the production that must constitute a potential public safety hazard. It is not a statutory aggravating factor that there was a hydro by-pass or that every marijuana grow operation constitutes a potential public safety hazard in a residential area without evidence in relation to the particular grow operation being a potential public safety hazard. Accordingly, the aggravating factor is not established by evidence there was a hydro by-pass alone. Had that been Parliament’s intention, it would have said so.

184If the PPSC relies upon a hydro by-pass alone to establish the aggravating factor, there must be evidence on that issue. The same applies where the particular hydro by-pass along with other factor(s) constitutes a potential public safety hazard in the residential area. As noted in R. v. Nguyen, [2013] O.J. No. 2688 (C.J.), there are some hydro by-passes that do not constitute a potential public safety hazard to the criminal standard of proof.

185Parliament has enacted a series of Criminal Code amendments that provide for statutory aggravating factors on sentence. For example, driving having consumed excess alcohol where the blood alcohol level exceeds 160 milligrams of alcohol in 100 millilitres of blood (Criminal Code, s. 255.1) and certain offences in relation to dwelling houses where there were persons in the home and the offender either knew or was reckless as to whether the home was occupied and used violence or threats of violence (Criminal Code, s. 348.1), are aggravating. The judge must consider the enumerated factors as aggravating on sentence although there is no minimum term.

186Section 7 of the C.D.S.A. also deals with aggravating factors but requires mandatory minimum sentences be imposed when those factors are established.⁵ There is no requirement that the Crown establish beyond a reasonable doubt that the offender created the situation that resulted in the potential public safety hazard or that he or she knew of the potential hazard. In those circumstances, the offender would be subject to mandatory minimum sentences without any moral culpability in regards to the potential risk.

187For the following reasons, I agree with the applicant in relation to the knowledge issue but not in regards to creating the risk.

188First, in relation to the offender participating in the creation of the grow operation’s features that create the potential public safety hazard, that an offender did not personally create the risk does not result in a disproportionate sentence. It is not necessary to prove an offender created the dangerous hydro by-pass or that he or she wired the house or vented it so as to create the danger. Moral blameworthiness does not necessarily mean that an offender personally created or participated in creating the danger. An active participant in a grow operation can know of the risk or be reckless in that regard without having created the risk.

189If however, there was evidence the offender participated in creating the condition that resulted in the potential public safety hazard, it would be open to the sentencing judge to draw the inference that he or she knew of the risk or was reckless in that regard. For example, if an offender with no experience dealing with electricity created a by-pass like the one in this case, he or she could not say that they did not realize the consequences that would flow from their conduct. As occurred with unforeseen consequences of an offender’s assaultive behaviour, he or she could be found responsible and subject to the mandatory minimum sentence: R. v. DeSousa, 1992 CanLII 80 (SCC), [1992] 2 S.C.R. 944.

190However, that the PPSC does not have to establish the offender knew of the risk or was reckless in that regard would result in the imposition of a grossly disproportionate mandatory minimum sentence when there is no requirement for a finding that the specific offender’s moral culpability extends to that knowledge, whether through knowledge or recklessness.

191As regards the PPSC submission that the s. 7 penalties are tailored to a specific level of moral culpability based on the presence of specific aggravating factors, I disagree. In regards to s. 7(3)(c), the sentencing regime is not tailored to an offender’s specific level of moral culpability. Under s. 7(3)(c), his or her specific level of moral culpability in relation to the potential public safety hazard is irrelevant. No finding is required in relation to the offender’s knowledge of the potential risk.

192The mental state of an offender can be based on intention, knowledge or recklessness: Nur, (C.A.) at para. 86. It can be determined by direct or circumstantial evidence. The offender’s knowledge could be based on an admission or, as Mr. Norris submitted, it would be open to a judge to infer that because of the condition of the residence that the offender either knew or was reckless with respect to the conditions that created the potential risk or of the potential risk, for example, if there was obvious arcing from the wires.

193Recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur. It is found in the attitude of one who is aware that there is a danger that his or her conduct could bring about the result prohibited by the criminal law, yet persists despite the risk. It is the conduct of one who sees the risk and takes the chance. The moral culpability is justified by consciousness of the risk and proceeding in face of it: R. v. Sansregret, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570, at pp. 581-82 and 584.

194Wilful blindness, a substitute for actual knowledge, imputes knowledge to an accused whose suspicion is aroused such that he or she knows the need to make further inquiries: R. v. Briscoe, 2010 SCC 13, at para. 21. It occurs where a person becomes aware of the need to make some inquiry yet declines to do so because he or she does not want to know the truth, preferring to remain ignorant. The culpability is justified by the offender’s fault in deliberately failing to make inquiries when they know there are reasons to make the inquiry: Sansregret, at p. 584.

195As regards the fact there is a potential public safety hazard, I am persuaded that subjecting an offender to a sentence of at least one year would result in a sentence that was grossly disproportionate to his or her moral culpability. For example, if after a grow operation was set up, a person was hired as a gardener and that person had no idea whether there was a hydro by-pass and/or that in itself created a potential public safety hazard, to impose at least an additional year would result in punishment in relation to an aggravating factor of which he or she knew nothing. The same result would apply if for other reasons such as the venting or wiring there was a potential public safety hazard of which the offender was unaware or if the gardener took steps to ensure him or herself that there was no potential public safety hazard and believed that was so.

196Nor, am I persuaded that an offender’s knowledge of the s. 7(3)(c) aggravating factor is implicit where one is an active participant in a grow operation. First, in order to establish this grow operation, was a potential risk to public safety, the PPSC had to call Mr. Evenden’s expert evidence as well as Mr. Williams. It is a reasonable inference that it would not be readily apparent to anyone that all grow operations pose a risk to public safety. It is not inherent in the existence of a grow operation.

197By analogy, section 344 of the Criminal Code imposes a mandatory minimum jail sentence if an offender, in committing a robbery, uses a firearm. The use of the firearm is not an element of the offence, as is the case here with the potential risk to public safety. It is relevant to sentence only. If a person was charged as a party to the robbery as the driver who never left the car, with the gun, the Crown would be required to prove beyond a reasonable doubt that the driver knew the principal was armed with a firearm before being found guilty of robbery and the mandatory minimum sentence could be imposed. Watson, at para. 24. Yet for production, an active participant does not have to know of the potential risk: R. v. Watson (2008), 2008 ONCA 614, 240 O.A.C. 370, at paras.24 and 69.

198I conclude that s. 7(3)(c) of the C.D.S.A. violates s. 12 of the Charter because an offender can be subject to a mandatory minimum sentence based on circumstances that are unknown to him or her.

The Number of Plants

199The final question in this area is whether the fact PPSC does not have to establish the offender knew of the number of plants before the sentencing judge is required to impose the mandatory minimum sentences results in grossly disproportionate sentences and thereby violates s. 12 of the Charter.

200In addition to the above noted McCrea judgment, our Court of Appeal has held that the fact an offender did not know the amount of drugs he or she was importing or had possession of, merited little or no weight on the sentence where there was no mandatory minimum sentence. In R. v. Cunningham (1996), 1996 CanLII 1311 (ON CA), 27 O.R. (3d) 786, the Court of Appeal held:

In our opinion, although the factual underpinnings in Bayne are meagre, the outcome of the case serves as a useful guide in arriving at what we believe to be the appropriate range of sentence for first offender couriers who import multiple kilograms of cocaine for personal gain. By its decision, the court in Bayne signalled that substantial penitentiary sentences were called for to reflect both the gravity of the crime and the need to deter those who might otherwise be tempted to import large quantities of cocaine on behalf of others for personal gain. In arriving at this sentence, the court undoubtedly took into account, by way of aggravation, the amount of cocaine involved. The correctness of this approach is not open to challenge.

Our review of the record leads us to conclude that there are no exceptional or extenuating circumstances which would warrant a reduction from the six- to eight-year range. In this regard, we note that the respondent willingly and knowingly chose to import cocaine. The fact that she may not have known the quantity of drugs involved is, in our opinion, deserving of little or no weight. There is nothing to suggest that the respondent took any steps to inform herself as to the amount of cocaine contained within the suitcase. Accordingly, she cannot rely upon her wilful blindness or reckless disregard for the truth as a mitigating factor. (Emphasis added)

201Where there is a mandatory minimum sentence dependent on the number of plants, if the prosecution is not required to establish the offender knew the number of plants, would the result be a grossly disproportionate sentence? I am not persuaded it would for the following reasons.

202First, leaving to another day whether s. 12 concerns arise in importing cases, to be guilty of production the offender must have been found to be an “active participant” in the grow operation. The gardener sees and works with the plants. The owner would know the number of plants or be wilfully blind in that regard. That the offender did not count each plant to determine whether there were 190 or 205 plants would be reckless or wilful blindness.

203Second, that an offender did not know the sentencing regime at the time of the commission of the offence, as Mr. Vu appeared to suggest in his statement at the sentencing hearing, is not the issue. The offender would know at least in a general way the number of plants. If he or she thought the penalties were shorter sentences, it would reflect a mistake of law.

204In these circumstances, I agree with the PPSC that in regards to the number of plants in s. 7(2) that the sentencing regime is scaled to the offender’s moral culpability.

205While I am unaware that it has ever arisen, it is possible that if there was evidence of efforts of his or her part to determine the amount and that they were told it was a smaller quantity, this might impact on the sentence just as occurs when an offender makes inquiries and satisfies him or herself that they are importing marijuana when it is cocaine: R. v. C.(N.H.) (2002) 2002 CanLII 7751 (ON CA), 62 O.R. (3d) 564 (C.A.), at paras. 46-51.

206I am not persuaded a sentence imposed on an offender who did not know the number plants in the marijuana grow operation would be grossly disproportionate.

The Over the License Limit Offender

207The applicant’s fourth hypothetical involves an otherwise law abiding medically approved marijuana producer who unintentionally exceeded his or her authorized number of plants.

208Under the MMAR there is a formula to calculate the maximum number of plants a Personal Use Production License (PURL) allows the license holder to cultivate. There is no dispute that the maximum number of plants allowed under the MMAR can exceed 500. Counsel have made inquiries and determined that there is nothing in the licenses or the regulations that addresses the effect of having more plants than authorized. There is nothing to say that the entire license is invalid if the producer has additional plants or that he or she would be liable to the entire amount or just the overage if they are charged.

The Positions of Counsel

The Applicant’s Position

209The applicant argues that a producer with a 500-plant license could make an honest counting mistake and accidentally grow 506 or more plants. It would not be a speculative or fanciful situation, people can make mistakes. Until fairly recently, licenses could be obtained for 500 plants in non-commercial operations. There is no presumption that any 500-plant licensed operation is commercial. If the person mistakenly grew six or more additional plants and they were produced for the purpose of trafficking, he or she would be subject to at least a six-month minimum sentence, a significant period of custody.

210The applicant does not accept the PPSC’s position that the charge would only relate to the overage. It would be open to the prosecution to allege that the entire number of plants was outside of the license. In that situation, if a grower had a license for 500 plants and grew 506, he or she would be subject to a mandatory minimum sentence of two years.

211The offender argues that Nur signals the appropriateness of considering regulatory scenarios even if their prosecution is uncommon. The test is not whether prosecutions at the lower end of the spectrum are common. Rather, the question is whether the provision would reasonably be expected to capture the conduct: Nur, at par. 81. The “bottom line” was that foreseeability captures licensing offences which involve little or no moral fault and little or no danger to the public.

212In relation to this hypothetical, when I asked whether a person who was licensed to grow 500 plants but grew 550 would be charged with growing 50 plants or 550, the applicant initially submitted that it did not matter. That submission was later clarified. For the purpose of this analysis, it does not matter what the starting point number is for the license. It could be 100 plants or 500 plants. What matters is the number of plants above what the license authorizes.

The PPSC’s Position

213The PPSC initially submitted that the applicant’s hypothetical was fanciful, far-fetched and/or remote. It was not a situation that may reasonably be expected to arise. There had never been a reported case in which a license holder had been prosecuted for exceeding his or her license limit. Accordingly, it is not a reasonable hypothetical upon which to set aside the mandatory minimum sentences.

214I agree that there is no reported case of which I am aware where someone who had a marijuana license has been charged with production. However, that is not to say that it has never happened. In a recently filed indictment in the Superior Court Central West Region, a license holder was charged with production of a number of plants with the prosecution apparently based on the overage only, as will be discussed later. When the case was brought to counsels’ attention, Mr. North submitted that if a person in that situation were charged, the starting point would be the number of plants authorized in the license. Any criminal liability would only relate to the overage, not the total number of plants ignoring the license.

215Mr. Norris agrees that the only reasonable hypothetical for a grower mistakenly growing more plants than authorized would involve relatively low numbers. Between 6 and 200 plants results in a minimum jail term of 6 months. When the overage gets too large, such as 50 to 100 plants, it would be difficult to see it as an accidental overage.

216The PPSC argues that when dealing with licenses that would authorize 500 plants, it is clearly a commercial endeavor, not a “ma and pa operation.” The licensee would have to follow the terms of the license and the regulations. Mr. North concedes that “in theory” a license holder could accidentally grow an additional six plants in excess of his license limit, but notes that person would be duty bound to follow the regulations and their license limits. With commercial operations, their viability depends on compliance with their license. He submits that there would be a very remote possibility that a grower with a 500-plant license would accidentally exceed their limit.

217In addition, Mr. North notes that the mandatory minimum sentences based on the number of plants is not simply possessing the plants. The relevant portions of s. 7(2) state:

(1) Except as authorized under the regulations, no person shall produce a substance included in Schedule I, II, III or IV.

(2) Every person who contravenes subsection (1)

(b) if the subject matter of the offence is cannabis (marijuana), is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years, and to a minimum punishment of

(i) imprisonment for a term of six months if the number of plants produced is less than 201 and more than five, and the production is for the purpose of trafficking, (Emphasis added)

(iii) imprisonment for a term of one year if the number of plants produced is more than 200 and less than 501,

(iv) imprisonment for a term of 18 months if the number of plants produced is more than 200 and less than 501 and any of the factors set out in subsection (3) apply,

(v) imprisonment for a term of two years if the number of plants produced is more than 500, or

(vi) imprisonment for a term of three years if the number of plants produced is more than 500 and any of the factors set out in subsection (3) apply.

218The PPSC argues that for the aggravating consideration to apply, the Crown would have to establish beyond a reasonable doubt that the production was for the purpose of trafficking if the overage was between 6 and 200 plants.

219Mr. North next addressed the definition of trafficking in s. 2:

"traffic" means, in respect of a substance included in any of Schedules I to IV,

(a) to sell, administer, give, transfer, transport, send or deliver the substance,

(b) to sell an authorization to obtain the substance, or

otherwise than under the authority of the regulations. (Emphasis added)

220The PPSC submits that in order to establish the aggravating factor, the prosecution would have to establish beyond a reasonable doubt that the production for the purpose of trafficking was not under the authority of the regulation. An accused who made a mistake would have a defence because he or she believed they were acting under the authority of the regulations. The PPSC would fail on the mens rea element with regard to the aggravating factor of production for the purpose of trafficking.

221In making that argument, Mr. North concedes “some inconsistency” between the PPSC’s position that the aggravating factors that result in the imposition of mandatory minimum sentences in s. 7(3) do not require mens rea while production for the purpose of trafficking in s. 7(2) does.

222The PPSC argues that in Nur the Supreme Court of Canada concluded that conduct “at the far end” of the range of potential conduct captured by s. 95(1) of the Criminal Code would result in grossly disproportionate sentences. It was conduct at the far end, at the licensing end of the spectrum. At that end stood the licensed and responsible gun owner who stored his or her unloaded firearm safely with ammunition nearby, but made a mistake regarding where the gun could be stored (at para. 82). For that offender, the three-year mandatory minimum sentence was grossly disproportionate.

223All of the examples used by the majority in Nur involved licensing offences that involved little or no moral fault and little or no danger to the public. Three years for what was essentially a licensing infraction was totally “out of sync” with the norms of criminal sentencing set out in s. 718 of the Criminal Code.

224The PPSC argues that conduct that involved more than a minimal moral fault or more than a minimal risk of harm would not appear to fall within that far end of the lower range. Conduct that was more than a licensing infraction would not be included at the far end of the range.

225It is not reasonably foreseeable that offences under the production section would capture offenders engaged in licensing-type offences. Someone charged under s. 7 of the C.D.S.A. could not be said to have made a mistake. Rather, they have committed a serious criminal offence, an offence that involves a real risk of harm flowing from the conduct. Their blameworthiness cannot be said to be minimal.

226In addition, the net cast by s. 7(2) of the C.D.S.A. is not nearly as wide as the one created by s. 95(1) of the Criminal Code. The C.D.S.A. contains a graduated series of minimum penalties, tailored to a specific level of moral culpability based on the size of the grow operation.

227The PPSC also submits that s. 95(1) is a hybrid offence, reflective of the broad scope of conduct captured by the offence. In contrast, Parliament has emphasized the inherit seriousness of production by making it a purely indictable offence with a maximum sentence of 14 years for production while the maximum for s. 95(1) offences is 10 years when prosecuted by indictment. Mr. North argues that this indicates that Parliament views some offences under s. 7 more seriously than some under s. 95(1) as well as Parliament’s view of the relative gravity of the offence covered by s. 7 of the C.D.S.A.

ANALYSIS

228The first issue to address is whether this is a reasonable hypothetical, given the PPSC’s position that it is far-fetched and had never occurred. When the submissions were first made on this application, neither counsel provided any case where a license holder was charged with possession for the purpose of trafficking or production because they possessed more plants than their license permitted. Indeed, the PPSC argued it would not occur.

229Between the submission dates, I conducted a judicial pre-trial conference elsewhere in the Central West region where coincidentally the issue arose. An accused with a production license was charged with production and possession for the purpose of trafficking. Because the case was at the pre-trial stage, counsel were provided with a redacted synopsis that showed officers executed a search warrant at a home and located 256 marijuana plants in the basement. A person who lived there had a valid medical marijuana license to produce 122 plants. It appears that the police concluded the accused were unlawfully producing only the 143 extra plants because they dismantled 143 of the 265 plants and charged the residents with unlawful production and possession for the purpose of trafficking.

230To be clear, there is no indication that anyone from the PPSC directed the officers in their interpretation of the law and there is nothing on the face of the indictment that indicates the number of plants that are the subject of the charge. Since there is no prohibition on considering actual court cases as opposed to hypothetical cases, I find I can rely on this case in finding that the hypothetical is not far-fetched or fanciful. The scenario can and has occurred.

231Even without the recent committal for trial, I find that the scenario is not far-fetched or fanciful. There are many people with medical marijuana licenses and many with production licenses. I do not find it too remote or far-fetched that a grower would either intentionally “push the envelope” or unintentionally have more plants than their license permits. The provision would reasonably be expected to capture the conduct in the hypothetical: Nur, (S.C.C.) at para. 81.

232Second, I agree that the hypothetical situation only applies where the overage is relatively small. That does not mean that it is fanciful. Indeed, it would be more likely that a mistake would result in a lower overage. While it is not necessary to set out a line-in-the-sand number, a producer with a 500 plant license could mistakenly grow in the area of 10 to 30 plants more than authorized.

233Third, the PPSC’s argument that the prosecution would still have to establish the production of the six plants was for the purpose of trafficking is answered by their submission that anyone with a 500-plant production license would be involved in a commercial operation, not a “ma and pa” one. They would be producing for the purpose of trafficking, thereby establishing that element of the precondition to the imposition of a mandatory minimum sentence. That he or she was over their license limit would mean their production was not in accord with the regulations.

234Fourth, a licensed producer who made a mistake would have little or no moral fault, and producing six extra plants would not endanger the public yet they would be subject to at least six months in jail. They would not have committed a serious criminal offence. Their offence cannot be said to involve a large scale illegal commercial production operation in a residential area, which in the PPSC’s submission is the target of the legislation.

235Fifth, I find that this hypothetical is similar to those relied upon by the Supreme Court of Canada in Nur in finding s. 95 breached s. 12 of the Charter. In Nur, the Court examined the spectrum of conduct captured by s. 95 adopting Doherty J.A.’s approach from the Court of Appeal. At the true crime end was the outlaw who carried a loaded prohibited or restricted firearm in public as a tool of his or her criminal trade. That person was engaged in truly criminal conduct and posed a real and immediate danger to the public. For the majority of those offenders, a three-year sentence would be appropriate. A little further along the spectrum stood the person whose conduct was less serious and posed less danger. For those offenders, a three-year term may be disproportionate, but not grossly so.

236At the far end of the spectrum in Nur stood the licensed and responsible gun owner who stored his or her unloaded firearm safely with ammunition nearby at another residence, for example, their cottage, mistakenly of the belief that she or he could store his or her gun there when in fact they could only have the firearm in their home. For that offender, a three-year sentence would be grossly disproportionate to the conduct for which he or she was being sentenced applying the statutory and common law sentencing principles. A minimum three- year sentence, given the offender’s minimal blameworthiness and the absence of any harm or real risk of harm as a result of the conduct, resulted in the mandatory minimum three-year sentence being grossly disproportionate.

237The Supreme Court of Canada provided further examples where the mandatory minimum sentence would be disproportionate: a person inherited a firearm and had not apprised her or himself of the license requirements could commit an offence; a spouse who found herself in possession of her husband’s firearm could also breach the regulations. The Court continued:

We need not focus on a particular hypothetical. The bottom line is that s. 95(1) foreseeably catches licensing offences which involve little or no moral fault and little or no danger to the public. For these offences three years' imprisonment is grossly disproportionate to a fit and fair sentence. Firearms are inherently dangerous and the state is entitled to use sanctions to signal its disapproval of careless practices and to discourage gun owners from making mistakes, to be sure. But a three-year term of imprisonment for a person who has essentially committed a licensing infraction is totally out of sync with the norms of criminal sentencing set out in the s. 718 of the Criminal Code and legitimate expectations in a free and democratic society. As the Court of Appeal concluded, there exists a "cavernous disconnect" between the severity of the licensing-type offence and the mandatory minimum three-year term of imprisonment (para. 176). Consequently, I conclude that s. 95(2)(a)(i) breaches s. 12 of the Charter.

238The production hypothetical is similar to the Nur hypotheticals. A law abiding citizen with a license to grow 500 marijuana plants, makes a mistake in counting and has 506 or more plants. Because his or her license is for 500 plants, all of the marijuana is for trafficking as defined in the C.D.S.A. If the person had no license to use marijuana, the “for the purpose” component could be readily established. His or her level of moral blameworthiness would be minimal at its highest and there would be no harm or risk of harm to the public if the producer were to “traffic” in 506 plants when they were licensed to “traffic” in 500 plants.

239Finally, I appreciate that the mandatory minimum in Nur was three years and five years in R. v. Charles, 2015 SCC 215, and the mandatory minimum sentence here is six months. However, that is not to say that a six month mandatory minimum sentence would not be grossly disproportionate. A six month jail sentence might not seem long in comparison to the three-year minimum in Nur and it might be suggested that it would not be grossly disproportionate. The simple and blunt answer is that it is not until it is considered that the law abiding citizen who made a mistake had to serve that term. The deprivation of liberty occasioned by a six-month jail term would be grossly disproportionate for a law abiding citizen who made an honest mistake.

240That length of sentence for possessing a small number of plants is significant. It is a jail sentence and one that cannot be served on an intermittent basis (Criminal Code, s. 732(1)) or conditionally (Criminal Code, s. 742.1(c) because the maximum sentence for production is 14 years). Immediate temporary absence would not be applicable. A six-month jail term can result in the loss of employment, lost educational opportunities and family disruption.

241For all of these reasons, I conclude that s. 7(2)(b)(i) and (ii)⁶ of the C.D.S.A. violates s. 12 of the Charter because the offender can be subject to a mandatory minimum sentence when he or she made a mistake and did not know he or she was over their license limit. One who deliberately exceeded his or her license limit would be in a very different situation.

THE SECTION 1 ANALYSIS

242Section 1 states:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits described by law as can be demonstrably justified in a free and democratic society.

243In Nur, the Supreme Court of Canada set out the applicable test as follows at para. 111:

In order to justify the infringement of the respondents' s. 12 rights under s. 1 of the Charter, the Attorney General of Ontario must show that the law has a pressing and substantial objective and that the means chosen are proportional to that objective. A law is proportionate if (1) the means adopted are rationally connected to that objective; (2) it is minimally impairing of the right in question; and (3) there is proportionality between the deleterious and salutary effects of the law: R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103. It will be difficult to show that a mandatory minimum sentence that has been found to be grossly disproportionate under s. 12 is proportionate as between the deleterious and salutary effects of the law under s. 1.

244Accordingly, the onus is on the PPSC to establish on a balance of probabilities that:

The s. 7 provisions have a pressing and substantial objective, and
That the means chosen by Parliament are proportional to that objective.

245In determining whether the means are proportional, the onus is on the PPSC to show:

The means adopted are rationally connected to that objective,
The means minimally impair the rights in question, and
There is proportionality between the deleterious and salutary effects of the law.

The Positions of Counsel

The PPSC’s Position

246The PPSC submits that the s. 7 sub-sections of the C.D.S.A. in issue are reasonable limits that are demonstrably justified in a free and democratic society. As regards the pressing and substantial objective, the PPSC submits that the objectives are to ensure sentences imposed reflect the seriousness of the offences, to protect citizens from the potential public safety hazards associated with large-scale illegal commercial marijuana grow operations in residential areas and to deter potential offenders. These are pressing and substantial objectives.

247Higher courts have repeatedly recognized the importance of deterrence and denunciation in cases involving large scale grow operations and the public safety concerns. The fight against marijuana grow operations is an objective of sufficient importance to override a constitutionally protected right to freedom. While the production offence does not involve as hard a drug as was the case in R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, the same reasoning applies as used by the Supreme Court of Canada in that case.

248Mr. North contends the means adopted are proportionate. The rational connection may be based on common sense, reason and logic so long as the provision can be said to further, in a general way an important governmental aim, it cannot be found to be irrational. Not only are the objectives directed to deterrence and denunciation, they are also directed to protecting people from public safety hazards often associated with large-scale illegal marijuana grow operations in residential areas. There is a rational connection.

249Illegal production at a commercial level involves an offence with planning and deliberation. It is crime of greed with the offender’s involvement motivated by financial gain. The PPSC submits that the connection to deterrence is stronger for illegal grow operations than for the guns in Nur. The mandatory minimum provisions are rationally connected to all of the objectives of the provisions.

250With respect to minimal impairment, the PPSC correctly notes that it is not necessary to show that Parliament chose the least restrictive means to achieve its objectives. The question is whether the means falls within a range of reasonable solutions to the problem being addressed.

251Put differently, is the limit on the right reasonably tailored to the objective? The PPSC submits that it is because the legislation has been drafted “to ensure that the minimum penalties are tailored and calibrated to a specific level of culpability based on the scale of the grow operation and the presence of specific aggravating factors.” Unlike some offenders identified in Nur as caught by s. 95, anyone who commits an offence under s. 7 has committed a serious criminal offence, one that involves a real risk of harm and more than minimal blameworthiness.

252Finally, as regards overall proportionality, the PPSC concedes that in Nur the Supreme Court of Canada found it would be difficult to show a law that is found to be grossly disproportionate in the s. 12 analysis was nevertheless proportionate with respect to its deleterious and salutary effects under s. 1. However, the court did not say that it was impossible to do so. Were a court to find that the hypothetical(s) upon which the finding(s) of gross disproportionality were based fell somewhere between being unlikely to arise and “remote and fanciful,” that may reasonably be a factor to consider in assessing overall proportionality.

The Applicant’s Position

253The applicant submits that there are sentencing alternatives capable of addressing the valid goals of denunciation and deterrence. A sentence found to be grossly disproportionate so as to constitute cruel and unusual punishment cannot be justified in a free and democratic society.

254The applicant contends that Doherty J.A. provides a complete answer to the s. 1 argument at paras. 178 – 181 of Nur substituting s. 7 of the C.D.S.A. for s. 95 of the Criminal Code as follows:

178 … Given the very high bar set for a finding that a sentence constitutes cruel and unusual punishment, I find it very difficult to imagine how a sentence that clears that high bar could ever qualify as a reasonable limit demonstrably justified in a free and democratic society.

179 In essence, s. 1 permits what would otherwise be infringements of individual constitutional rights where the societal benefits flowing from the state action that infringes individual rights can "demonstrably" justify that infringement. In my view, the basic quid pro quo underlying s. 1 does not exist where the state imposes punishment that is "so excessive as to outrage standards of decency" and so disproportionate as to be "abhorrent or intolerable" to Canadians: [citation omitted]

180 No system of criminal justice that would resort to punishments that "outrage standards of decency" in the name of furthering the goals of deterrence and denunciation could ever hope to maintain the respect and support of its citizenry. Similarly, no system of criminal justice that would make exposure to a draconian mandatory minimum penalty, the cost an accused must pay to go to trial on the merits of the charge, could pretend to have any fidelity to the search for the truth in the criminal justice system.

181 If an argument can be made that could justify sheltering a sentence that amounted to cruel and unusual punishment under s. 1, I have not heard it. The mandatory minimum penalty of three years imposed under s. 95(2)(a) cannot be saved by s. 1.

ANALYSIS

Pressing and Substantial Objective

255While noting that some marijuana laws and the public’s attitude to marijuana have changed, the applicant took no issue that the objectives of the legislation were pressing and substantial. I agree that this element of the s. 1 analysis has been established for the following reasons.

256First, as appropriately conceded by the applicant, albeit in relation to this community, there is a prevalence of production charges in this region. Given the number of reported cases, the same can be said for other jurisdictions. See: R. v. Hill (2007), 2007 BCCA 309, 221 C.C.C. (3d) 472 (B.C.C.A.).

257Second, while the risks associated with this grow operation was established, it is a reasonable inference that this was not an isolated production that created the potential public safety hazard.

258Third, even without legislative intervention, the most important principles of sentencing for this offence are deterrence and denunciation.

Rational Connection

259The PPSC bears the burden of showing the mandatory minimum sentences found to violate s. 12 are rationally connected to the goals of denunciation, deterrence and retribution. To meet that test, the government must show there is a causal connection between the infringement and the benefit sought on the basis of logic. The question is whether the means the law adopts is a rational way for Parliament to pursue its objective? Nur, (S.C.C.) at para. 112.

260While the empirical evidence suggests that mandatory minimum sentences do not deter crimes, being clear that such sentences do not deter more than less harsh, proportionate sentences (Nur, (S.C.C.) at para. 114), there is a rational connection between the mandatory minimum sentences and the sentencing goals of denunciation and retribution. They are also directed towards the protection of the public, a concern that arises with large scale illegal marijuana grow operations in residential areas. There is a rational connection in relation to both subsections.

MINIMAL IMPAIRMENT

261As the Supreme Court of Canada found in Nur at para. 116, the question here is whether the limit is reasonably tailored to the objective. It is not. The legislation is neither restricted to “large scale commercial marijuana grow operations” nor is it “tailored and calibrated to the specific level of culpability” of the offender as the PPSC contends. The legislation catches offenders who lack culpability in relation to one aggravating factor and others who have not committed a serious criminal offence. There are less harmful means of achieving the legislative goal. The PPSC has failed to show in a “real and substantial manner” the absence of less drastic means of achieving the objective. Nur, (S.C.C.) at para. 116 The Charter impinging conduct is more than what was necessary to achieve the legislative objective.

262Parliament could have created an offence with a close correspondence between the prohibited conduct and the moral blameworthiness of the offender, instead of capturing offenders who either had no knowledge of the potential risk or public safety or those who were careless in counting the plants they were permitted to produce. Parliament could also have made the aggravating factors ones that must be considered in aggravation of sentence as has occurred with other offences noted earlier without recourse to mandatory minimum sentences.

263On this branch, the PPSC has failed to discharge its burden in relation to either subsection.

PROPORTIONALITY

264Here, the analysis weighs the impact of the law on protected rights against its beneficial effect in terms of the greater public good: Nur, (S.C.C.) at para. 118. While it is a difficult task, as the Supreme Court of Canada noted in Nur, for the PPSC to show that a law that fails on gross disproportionality, it is not automatic that it fails on proportionality. However, I am not persuaded that the PPSC has met its onus on either subsection.

265As regards the submission that if the hypothetical falls somewhere between the “unlikely to arise” and a “remote and far-fetched” one, it may be a factor to consider, I do not regard either hypothetical as less likely to occur than those relied upon in Nur.

266The PPSC has failed to establish the limits are a proportional response in relation to either subsection.

CONCLUSION

267The mandatory minimum sentences imposed by ss. 7(2)(b)(i)(ii) and s. 7(3)(c) are inconsistent with s. 12 of the Charter and are therefore declared of no force or effect under s. 52 of the Constitution Act, 1982.

268Counsel will be permitted to present further submissions with respect to whether the ruling impacts on ss. 7(2)(b)(iii-vi).

DURNO J.

Released: October 20, 2015

CITATION: R v. Vu, 2015 ONSC 5834

COURT FILE NO.:74/14

DATE: 20151020

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

and –

DUC VU

Applicant

JUDGMENT ON CONSTITUTIONAL CHALLENGE

to ss. 7(2)(b) and 7(3) of

THE CONTROLLED DRUGS AND SUBSTANCES ACT

Durno J.

Released: October 20, 2015

Footnotes

The applicant does not rely on the MMPR as s. 13 of the regulation prohibits growing marijuana in a dwelling place.
That production now has a 14 year maximum sentence would also disqualify the offender from consideration for a conditional sentence. Criminal Code, s. 742.1(c)
Pursuant to s. 10(2)(b) of the C.D.S.A. it is also an aggravating factor that the offender was previously convicted of a designated substance offence.
While the Court of Appeal judgment does not include the details of the offence, some are noted in R. v. Paryniuk, 2013 ONCJ 443, at para. 25.
Subsection 5(3) of the Controlled Drugs and Substances Act, enacts mandatory minimum sentences of one or two years where drug trafficking occurs in certain situations.
Subject to further arguments, as the hypothetical is based upon a producer mistakenly growing over his or her limit the ruling would not apply to s. 7(2)(b)(iii-vi) which apply when more than 200 plants are involved.