ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 74/14
DATE: 20151218

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

HEARD: November 3, 2015

JUDGMENT No. 2 ON CONSTITUTIONAL CHALLENGE TO
ss. 7(2)(b) and 7(3) of
THE CONTROLLED DRUGS AND SUBSTANCES ACT

SEVERANCE RULING

DURNO, J.

1In a ruling released on September 25, 2015, reported at R. v. Vu, 2015 ONSC 5834 (“Vu No. 1”), I found that ss. 7(2)(b)(i) and (ii) of the Controlled Drugs and Substances Act (“CDSA”) were constitutionally invalid as unjustifiable infringements of s. 12 of the Canadian Charter of Rights and Freedoms. During the course of submissions neither counsel nor the court addressed whether an unjustifiable infringement of s. 12 meant that all of the six subsections of s. 7(2)(b) were of no force and effect, or whether the invalid provisions were severable.

2Counsel filed further written arguments and made oral submissions on the severability issue.

3For the following reasons, I find that ss. 7(2)(b)(i) and (ii) are severable. In the result, ss. 7(2)(b)(iii-vi) are not affected by the finding of unconstitutionality.

The Legislation

4Sections 7(1) and (2)(b) of the CDSA state:

7. (1) Except as authorized under the regulations, no person shall produce

a substance included in Schedule I, II, III or IV.

Punishment

(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,

(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;

5Section 52 of the Constitution Act, 1982 states:

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 Law on Severance

6Counsel agree that the leading authority on determining whether to sever an unconstitutional statutory provision instead of striking down the entire section is Schachter v. Canada, 1992 74 (SCC), [1992] 2 S.C.R. 679, [1992] S.C.J. No. 68 [Cited to QL]. In summary, the judgment holds that laws have always been struck down only to the extent of the inconsistency using the doctrine of severance or ‘reading down’ (at para. 26). Severance is used “so as to interfere with the laws adopted by the legislature as little as possible” (at para. 26). When only part of the legislation violates the Constitution, “only the offending portion should be declared to be of no force or effect, and the rest should be spared” (at para. 26). In that way, it allows as much of the legislative purpose as possible to be realized (at para. 29). When only a portion of a statute violates the Constitution, it is common sense that the offending portion should be declared of no force or effect and the rest spared (at para. 26).

7Notwithstanding those findings, there will be cases where “to sever the offending portion would actually be more intrusive to the legislative purpose than the alternate course of striking down provisions which are not themselves offensive but which are closely connected with those that are” (at para. 29, emphasis added). However, to refuse to sever the offending parts and thereby declare inoperative parts of the legislation which do not violate the Constitution “is surely a more difficult course to justify” (at para. 27).

8Lamer C.J. noted that while in some cases it would be prudent to assume Parliament would have passed the constitutional provisions without the unconstitutional ones, that was not always the case. There will be cases where “it will be necessary to go further and declare the inoperative portions of the legislation which are not themselves unsound” (at para. 30).

9The Chief Justice noted:

31 Therefore, the doctrine of severance requires that a court define carefully the extent of the inconsistency between the statute in question and the requirements of the Constitution, and then declare inoperative (a) the inconsistent portion, and (b) such part of the remainder of which it cannot be safely assumed that the legislature would have enacted it without the inconsistent portion.

10Lamer C.J. created an analytical framework to be considered when determining severance issues. First, the Court must define the extent of the inconsistency as follows at para. 85:

A. broadly where the legislation in question fails the first branch of the Oakes test in that its purpose is held not to be sufficiently pressing or substantial to justify infringing a Charter right or, indeed, if the purpose is itself held to be unconstitutional -- perhaps the legislation in its entirety;

B. more narrowly where the purpose is held to be sufficiently pressing and substantial, but the legislation fails the first element of the proportionality branch of the Oakes test in that the means used to achieve that purpose are held not to be rationally connected to it -- generally limited to the particular portion which fails the rational connection test; or,

C. flexibly where the legislation fails the second or third element of the proportionality branch of the Oakes test.

11Second, severance or reading in will be warranted only in the clearest of cases, where each of the following criteria is met:

A. the legislative objective is obvious, or it is revealed through the evidence offered pursuant to the failed s. 1 argument, and severance or reading in would further that objective, or constitute a lesser interference with that objective than would striking down;

B. the choice of means used by the legislature to further that objective is not so unequivocal that severance/reading in would constitute an unacceptable intrusion into the legislative domain; and,

C. severance or reading in would not involve an intrusion into legislative budgetary decisions so substantial as to change the nature of the legislative scheme in question.

12The Supreme Court of Canada has expressed the test in similar ways in several cases. In R. v. Wholesale Travel Group Inc., 1991 39 (SCC), [1991] 3 S.C.R. 154, at p. 207, it was whether a portion of the provision could be struck down without defeating the “unitary scheme” envisaged by Parliament.

13In R. v. Morales, 1992 53 (SCC), [1992] 3 S.C.R. 711, at pp. 741-43, the Court found the public interest component of s. 515(10)(b), the secondary grounds for pre-trial detention, constitutionally invalid while the public safety element was constitutionally valid. Lamer C.J. found that if the terms were disjunctive, it would not interfere with the unitary scheme to strike down only one of the terms. Relying on Rocket v. Royal College of Dental Surgeons of Ontario, 1990 121 (SCC), [1990] 2 S.C.R. 232, at p. 252, the Chief Justice examined whether severance would permit the balance of the provision to “stand as a functioning whole” and whether severance would require the court to add anything to what remained to create a viable provision. In such cases, to remove the entire section would result in a constitutionally valid provision being removed which Parliament has decided should be part of the legislation.

14In R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, when part of the tertiary ground for detention in the bail provisions was found to violate the Charter, the test applied was whether after the offending portion was removed the remainder was “capable of standing alone without doing damage to Parliament’s intention” (at para. 44).

15Schachter cited with approval the following test from Attorney General for Alberta v. Attorney General for Canada, 1947 347 (UK JCPC), [1947] A.C. 503, at p. 518, where the Judicial Committee of the Privy Council held:

The real question is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive or, as it has sometimes been put, whether on a fair review of the whole matter it can be assumed that the legislature would have enacted what survives without enacting the part that is ultra vires at all. (Emphasis added)

16Finally, in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 51, the Supreme Court noted:

When a court opts for severance or reading in as an alternative to striking down a provision, it does so on the assumption that had Parliament been aware of the provision's constitutional defect, it would likely have passed it with the alterations now being made by the court by means of severance or reading in. For instance, as this Court noted in Schachter, the test for severance "recognizes that the seemingly laudable purpose of retaining the parts of the legislative scheme which do not offend the Constitution rests on an assumption that the legislature would have passed the constitutionally sound part of the scheme without the unsound part" (p. 697). If it is not clear that Parliament would have passed the scheme with the modifications being considered by the court -- or if it is probable that Parliament would not have passed the scheme with these modifications -- then for the court to make these modifications would represent an inappropriate intrusion into the legislative sphere. In such cases, the least intrusive remedy is to strike down the constitutionally defective legislation under s. 52. It is then left up to Parliament to decide what legislative response, if any, is appropriate.

17Whether provisions are “inextricably bound up” has been addressed by the Supreme Court of Canada in different contexts. Fishing license conditions in British Columbia legislation were so inextricably linked together with the license itself that the two could not be considered separately. The license itself was bound up with compliance with unconstitutional conditions: R. v. Nikal, 1996 245 (SCC), [1996] 1 S.C.R. 1013, at para. 113. Where cross-referencing existed between the impugned section of the Abolition of Early Parole Act and the remainder of the legislative scheme, removal of the offending section would have rendered other sections meaningless and severance was not ordered: Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392.

The Positions of Counsel

18Counsel agree on the applicable law. They also agree that ss. 7(2)(b)(i) and (ii) can be removed from the section with “surgical precision.” Where they differ is on the application of the law to what is left.

The Position of the Applicant

19Mr. Norris frames the questions as follows: What are the implications, if any, of the previous finding for the remainder of s. 7(2)(b)? Does it result in the whole section being declared of no force or effect, or is it possible to sever subsections?

20He submits that ss. 7(2)(b)(i) and (ii) cannot be severed from the balance of s. 7(2)(b). Accordingly, the entire section should be declared of no force or effect.

21Section 7(2)(b) is a unitary, comprehensive and integrated scheme for those who produce marijuana for the purpose of trafficking. Severance would be a greater interference with the legislative intent than striking down the entire subsection. Parliament’s purpose in enacting any mandatory minimum sentencing provisions is “to remove judicial discretion and send a clear and unequivocal message to potential offenders that if they commit a certain offence, or commit it in a certain way, they will receive a sentence equal to or exceeding the mandatory minimum specified by Parliament:” Ferguson, at para. 55.

22Parliament made a deliberate choice to place a threshold to triggering a mandatory minimum at six plants for the purpose of trafficking. With ss. 7(2)(b)(i) and (ii) removed, the threshold becomes 201 plants. There is no basis upon which to conclude that Parliament would have chosen 201 plants as the threshold given it chose a number so far removed from that figure. With the two subsections removed, the group of producers for the purpose of trafficking exempted from the mandatory minimum scheme is expanded from those who produce 5 or fewer plants to those who produce 200 or fewer plants – a significant interference with Parliament’s expressed intentions. It would permit judicial discretion in sentencing a larger group of offenders and a group over which Parliament had intended to exclude discretion. Accordingly, striking down the entire subsection would be less intrusive into the legislative sphere because the court would not be effectively re-writing the law contrary to Parliament’s express intentions.

23Similarly, Parliament enacted a scheme in which the lowest mandatory minimum sentence was six or nine months. With ss. 7(2)(b)(i) and (ii) removed, the lowest mandatory minimum sentence would be 12 or 18 months. There is no reason to believe Parliament would have made those the lowest mandatory minimum sentences and every reason to think that they would not have done so.

24Finally, s. 7(2)(b) is clearly an integrated approach to sentencing for marijuana production. Each subsection is “inextricably bound up” with the others: Whaling, at para. 85. The sentences escalate in sequence. As this Court found earlier, s. 7(2)(b) provides a “scaled approach to mandatory minimum terms based on the number of plants. The subsections are inter-related”: Vu No. 1 at para. 144. There is no basis upon which to conclude that Parliament would have escalated the sentences had it been working with a different starting point. Put differently, removing the bottom rungs of the ladder impacts on those higher up. This is unlike s. 7(3), in which the factors are entirely independent of each other and s. 7(3)(c) could be severed without undue interference with Parliament’s intention.

The Position of the PPSC

25The PPSC submits that the provisions are severable because the basis upon which s. 7(2)(b)(i) and (ii) were found to be constitutionally invalid cannot reasonably be applied to the remainder of s. 7(2)(b). The remainder can stand without changing the meaning or application of the CDSA. The invalid subsections are not inextricably bound up with those removed: each paragraph independently establishes conditions that trigger a mandatory minimum sentence.

26Applying Lamer C.J.’s analytical framework for severance issues, Mr. North submits that the earlier ruling found the objectives of s. 7(2)(b) were pressing and substantial and that the means used was rationally connected to the objectives: Vu No. 1, at paras. 255-258. The PPSC had failed to discharge its onus in respect to minimal impairment and overall proportionality: Vu No. 1, at paras. 261-266. Accordingly, the extent of the inconsistency should be defined flexibly: Schachter, at para. 85. In addition, since the reasonable hypothetical upon which the ruling was based could only apply to ss. 7(2)(b)(i) and (ii), the extent of the inconsistency is narrow and does not extend to ss. 7(2)(b)(iii – vi).

27As regards the three lines of inquiry in Lamer C.J.’s analytical approach, all three have been met here so that severance is the appropriate remedy. The legislative scheme is obvious and severance would either further that objective or constitute a lesser interference with it than striking down the entire subsection. The objectives are clear and would be advanced by severance. That would constitute a lesser interference with the objectives than striking down the entire subsection.

28The choice of means used by Parliament to further the objective is not so unequivocal that severance or reading in would constitute an unacceptable intrusion into the legislative domain. The remaining subsections apply to the most serious production offences. There is no basis upon which to conclude that Parliament would not have enacted the constitutionally sound subsections of s. 7(2)(b) without those found to be constitutionally invalid. To sever would not go directly against the will of Parliament by reading in a discretion where Parliament clearly chose to exclude discretion. Finally, severance or reading in would have no impact on legislative budgetary decisions.

29The common element between the reasonable hypothetical in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, and the previous ruling in this case was minimal moral blameworthiness. The hypothetical was found to only apply where the overage was relatively small: Vu No. 1, at para. 232. A license holder who exceeded his or her limit by larger amounts would be in a very different situation from the mistaken license holder: Vu No. 1, at para. 241. Accordingly, the hypothetical could not apply to a medical marijuana licensee who produced at least 201 plants over his or her production limit.

30The PPSC submits that ss. 7(2)(b)(iii-vi) are not so “inextricably bound up” with ss. 7(2)(b)(i) and (ii) that they cannot survive independently. Here, the inconsistency between s. 7(2)(b) and s. 12 of the Charter is limited to ss. 7(2)(b)(i) and (ii) because s. 7(2)(b)’s six subsections are not inextricably bound together. Rather, they are distinct and individual sentencing provisions that can survive and be independently interpreted. In addition, severing ss. 7(2)(b)(i) and (ii) would not change the meaning of the legislation.

31The six subsections are not so inextricably linked as the cases noted above where severance was not ordered. They can survive independently from the offending subsections. Each enforces distinct minimum punitive responses to varying degrees of culpability. The validity of a mandatory minimum sentence for production of over 200 plants is in no way predicated upon lower mandatory minimum sentences for lesser numbers of plants. Further, unlike Whaling, there is no cross-referencing of the subsections. Standing alone, the constitutionally valid subsections are not meaningless.

32As was the case in Morales, the subsections of s. 7(2)(b) are disjunctive and can be applied independently of one another. Unlike the cases where individual words or phrases were severed (Wholesale Travel Group and Morales) what was found to be constitutionally invalid here were entirely self-contained and distinct subsections that were part of a section. The remainder is capable of interpretation and application independently of one another.

33As regards whether Parliament would have passed only the remainder of s. 7(2)(b), the question is not whether Parliament intended six or nine months as the starting point for sentencing for marijuana cultivation. The question is whether Parliament considered 12 months to be an appropriate mandatory minimum penalty for production of between 201 and 500 plants. There is no reasonable foundation to conclude, as the applicant contends, that a different starting point would have changed what Parliament considered to be appropriate sentences for each corresponding number of plants.

34The meaning of ss. 7(2)(b)(iii-vi) does not change once ss. (i) and (ii) are removed. At its highest, the removal only narrows the application of the mandatory minimum sentences in s. 7(2)(b). That this Court has struck down the two subsections does not mean that Parliament would not have intended the mandatory minimums to apply to productions of over 200 plants. In effect, the applicant’s argument that Parliament would not have enacted mandatory minimum sentences for those producing over 200 plants for the purpose of trafficking involves an “unsound speculative leap.”

Analysis

35I am persuaded that ss. 7(2)(b)(i) and (ii) are severable from the remaining four subsections for the following reasons.

36First, the applicant does not suggest that ss. 7(2)(b)(iii-vi) are constitutionally invalid based upon the reasonable hypotheticals applied in Vu No.1.

37Second, pursuant to s. 52 of the Constitution Act, 1982, any laws that are inconsistent with the provisions of the Constitution are of no force or effect, to the extent of the inconsistency. The inconsistency in s. 7(2)(b) is restricted to ss. (i) and (ii).

38Third, the Supreme Court of Canada has directed that there should be as little interference as possible with the will of Parliament, that only the offending portions of legislation should be found to be of no force or effect and that courts should allow as much of the legislative purpose as possible to be realized.

39Fourth, relying on the Supreme Court’s judgment in Schachter, the inconsistency must be interpreted flexibly.

40Fifth, with regards to whether the subsections are “inextricably bound up,” during the initial submissions the applicant challenged the constitutional validity of ss. 7(2)(b) and 7(3), submitting that he was entitled to challenge the entirety of both subsections. He could challenge the entirety of s. 7(3), whether or not the PPSC relied upon all of the subsections in this case. He could challenge the entirety of s. 7(2)(b) regardless of the number of plants the PPSC alleged he produced. This was because the subsections were calibrated according to the number of plants so that the ‘scaling’ was one piece of legislation and it would be inappropriate to pull out one section for analysis. All should be examined. His arguments included that the failure to require the prosecution to establish beyond a reasonable doubt the offender knew the number of plants violated s. 12 of the Charter, an argument applicable to each of s. 7(2)(b)’s subsections. He argued that a license holder who produced more plants than his license permitted could be charged for the total number of plants and not just for the number of plants above the license limit, an argument applicable to each of s. 7(2)(b)’s subsections.

41The PPSC argued that the applicant was restricted to challenging the constitutional validity of the provisions that the prosecution relied upon in this case. For example, he could not challenge s. 7(3)(c), that the production constituted a potential security, health or safety hazard to person under the age of 18 years who were in the location where the offence was committed or in the immediate area because the PPSC was not relying on that subsection in this prosecution.

42I found that in regards to s. 7(3), the challenge was restricted to s. 7(3)(c). With respect to s. 7(2)(b), I found that the applicant could challenge its entirety because the provision was a scaled approach to the mandatory minimum sentences so that the subsections were interrelated although it appeared that practically it was not significant: Vu No. 1, at paras. 143-44.

43Based on the arguments to that point, which reasonable hypotheticals would be relied upon, whether there would be a finding of constitutional invalidity and if so, the extent of the inconsistency were unknown. Accordingly, whether severance would apply and the wordings of the test for severance were not considered. It was only when the reasonable hypotheticals were examined, the inconsistency found and its extent was determined, that the possibility of severance arose. I found there was no inconsistency resulting from the fact that the PPSC was not required to establish beyond a reasonable doubt the offender’s knowledge of the number of plants. Finding that the reasonable hypothetical only applied where the overage was relatively small (Vu No. 1, at para. 232) and implicitly that any offence involving a license holder would only apply to the overage, limited the applicability of the reasonable hypothetical.

44While s. 7(2)(b) provides an interrelated scaled approach to sentences for those who produce between 6 and 200 marijuana plants if they are produced for the purpose of trafficking and in any case where over 200 plants are produced, I am not persuaded the subsections are “inextricably bound up.” They are connected and interrelated in the sense that the subsection involves a scale, but they are not interdependent on each other. The subsections are disjunctive. Each subsection can be read without reference to the other subsections. They are “stand-alone” provisions.

45I am not persuaded that removing the first two rungs of the mandatory minimum sentence scale impacts on the higher rungs. The balance of the subsections can stand as a functioning whole. If severance were ordered, nothing would have to be added to the balance. What remains would still involve a scaled approach for the most serious offences. Unlike Whaling, there is no uncertainty about how the remainder of the provisions would work. There is no cross-referencing between the impugned subsections to the other subsections of s. 7(2)(b). The only cross-referencing is with s. 7(3).

46I agree with the PPSC that even without statistics, it is reasonable to conclude that the s. 7(2)(b) does not cover all marijuana producers. The starting point for the “number of plants-based” minimum sentences is six plants that are produced for the purpose of trafficking. Anyone producing 200 or fewer plants where it is not for the purpose of trafficking or anyone producing 5 or fewer plants for any purpose is not subject to a mandatory minimum sentence. Section 7(2)(b) is not a comprehensive and unitary scheme that applies to all producers of marijuana.

47Sixth, accepting that this area involves a significant amount of speculation, there is nothing from which I could conclude that Parliament would not have enacted ss. 7(2)(b)(iii-vi) without (i) and (ii). Nor can I find that Parliament would not have determined that one year was an appropriate minimum sentence for producing between 201 and 500 plants for any purpose. As Mr. North noted, what remains are the largest commercial grow operations. It is logical to assume that Parliament would likely have enacted the mandatory minimum sentences for these operations.

48Seventh, I am not persuaded that finding the entire subsection of no force or effect would be less intrusive than severing ss. (i) and (ii). It is less intrusive to Parliament’s intentions to sever. Striking down the entire subsection cannot be justified.

Conclusion

49The finding of constitutional invalidity applies to s. 7(2)(b)(i) and (ii) only.