CITATION: R. v. Li, 2016 ONSC 1757
OSHAWA COURT FILE NO.: OCJF No. 13708/14
DATE: 20160311
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
– and –
Wenwen Li
Applicant
Kevin Wilson, for Respondent Public Prosecution Service of Canada
Darren Sederoff, for the Applicant
HEARD: March 7 and 9, 2016
RULING ON CONSTITUTIONAL CHALLENGE TO SECTION 7(2)(b)(iii) OF THE CONTROLLED DRUGS AND SUBSTANCES ACT
Bird J.:
Background
[1] On December 14, 2015, a jury convicted Wenwen Li of production of marijuana and possession of marijuana for the purpose of trafficking. On May 18, 2013, Mr. Li was found to be the only occupant of a home in located on Rockcreek Drive in Oshawa when police entered to execute a Controlled Drugs and Substances Act (CDSA) search warrant in the early hours of the morning.
[2] Mr. Li was found in the basement of the home coming from the area of one of four marijuana grow rooms. The basement was divided into four different rooms, all of which contained marijuana plants in various stages of growth. The evidence at trial demonstrated that the home was being used exclusively for the purpose of running a sophisticated grow operation. Mr. Li did not dispute this. His defence at trial was that the Crown could not prove beyond a reasonable doubt that he was more than passively present in the home. When he was found by the police, he was not actively tending to the plants and did not have anything in his hands. By reaching the verdicts it did, the jury was clearly satisfied that Mr. Li was an active participant in the production of marijuana on May 18, 2013.
[3] The rooms in the basement had been divided by the use of black tarps with zippers in them. There were buckets of chemicals in the home, bags containing soil and dozens of extra pots. Each of the four rooms was equipped with high intensity lights that were hung from the ceiling. There were a significant number of ballasts in the basement which were used to provide the necessary energy for the operation.
[4] Detective Connolly was qualified to provide expert opinion evidence at trial about the indicia of the production of marijuana, the possession of marijuana for the purpose of trafficking and about the expected yield from marijuana plants. He reviewed a scene video and testified that a lot of financial resources had been invested into this particular grow operation. He estimated the equipment to be worth approximately $25,000. There was a hydro by-pass in the home but no evidence was called about the theft of electricity or any safety hazard created by the by-pass.
[5] With respect to the number of plants that were found in the home, the evidence of the exhibits officer was that there were a total of 517 in the basement. There were 135 seedlings found in the kitchen sink that were not included in this total. A marijuana seedling becomes a plant within the meaning of Section 7 of the CDSA when it has taken root. There is no evidence that the seedlings in the kitchen had done so.
[6] At the outset of the sentencing hearing, the Applicant sought a ruling about the precise number of plants the Crown had proven beyond a reasonable doubt were in the basement. This fact was not determined by the jury and I was therefore required to resolve the issue based on the evidence at trial. The officer who took the scene video testified that there were seedlings in the basement in addition to those in the kitchen sink. He did not clarify what he meant when he used the term “seedling”, but did agree in cross-examination that he saw “seedlings or seeds” in one of the rooms in the basement.
[7] The video of this room did not show each individual pot in sufficient detail to determine whether they all contained plants that had rooted. It is clear from the video that the vast majority, if not all of the pots in the room, contained small marijuana plants that were in the early stages of growth. Based on the ambiguity in the evidence, I was not satisfied that there were exactly 517 marijuana plants that had rooted in the basement. The Applicant conceded that there were close to 500 plants and that is the basis upon which he is being sentenced. The video is consistent with there being at least 475 marijuana plants in the basement of the home.
[8] The significance of this finding is that Mr. Li is subject to a mandatory minimum sentence of one year imprisonment as set out in Section 7(2)(b)(iii), rather than two years pursuant to Section 7(2)(b)(v) which applies to people who produce more than 500 plants.
[9] There was no evidence at trial other than his presence at the scene on the day the warrant was executed that connected Mr. Li to the home. The owner of the home was a third party and Mr. Li was not the account holder for any of the utilities. There were no documents found with his name on them and none of his personal belongings were located in the home. He was not the target of the search warrant and there is no evidence that he was seen at the home on any other day. The Crown concedes that Mr. Li was a gardener. Through counsel, Mr. Li advised that he was recruited to be a gardener at the restaurant he was working at.
[10] By way of personal background, Mr. Li is now 28 years of age. He is a permanent resident, having come to Canada from China in 2005. He has been employed as a cook at the Dragon King restaurant since 2012. Mr. Li has a wife and an infant daughter. He is the sole support for his family. At the time of these offences he had no criminal record. He was released on a strict bail after spending four days in pre-sentence custody and now has a conviction for failing to comply with that recognizance. It was apparently a technical breach and resulted in a nominal fine.
[11] Because of his status as a permanent resident, Mr. Li will almost certainly be deported if he is sentenced to imprisonment for six months or more. Section 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), renders a permanent resident inadmissible on the grounds of serious criminality, which is defined as an offence for which a term of imprisonment of six months or longer is imposed. Section 64(1) of the Act removes the right of appeal to the Immigration Appeal Division for a permanent resident who has been found to be inadmissible on the grounds of serious criminality. This means that the imposition of the mandatory minimum sentence of one year on the Applicant would virtually guarantee his removal from Canada. While he can apply to the Minister for protection as outlined in Section 112, this is unlikely to be successful. Mr. Li sponsored his wife to come to Canada from China. The effect of his deportation on her immigration status was not the subject of any evidence. However, the impact of a sentence of six months imprisonment or longer on Mr. Li clearly has the potential to be devastating for his family.
[12] Mr. Li, therefore, submits that the imposition of the mandatory minimum sentence required by Section 7(2)(b)(iii) of the CDSA would constitute cruel and unusual punishment within the meaning of Section 12 of the Charter. He seeks a declaration pursuant to Section 52 of the Constitution Act, 1982 that Section 7(2)(b)(iii) is of no force or effect.
The Law
[13] The legal principles that apply to the consideration of the constitutionality of mandatory minimum sentences are not in dispute. R. v. Nur, 2015 SCC 15, set out the approach to be followed in making this determination. The following principles can be extracted from the judgment in Nur:
In order to violate Section 12 of the Charter, a sentence must be grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender. This is a high bar for the Applicant to meet. The test of gross disproportionality is aimed at sentences that are more than “merely excessive”.
A sentence can be grossly disproportionate, as applied to the offender being sentenced, or to a reasonable hypothetical offender.
In determining what an appropriate sentence is for comparison purposes, the sentencing judge must take into account the sentencing objectives in Section 718 and the factors set out in Section 718.2 of the Criminal Code. In reconciling the different goals and principles it must be remembered that the fundamental sentencing principle, as stated in Section 718.1, is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Mandatory minimum sentences have the potential to depart from the principle of proportionality because 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.
[14] The correct approach to assessing the constitutionality of a mandatory minimum sentence first requires the sentencing judge to determine what a fit sentence would be, applying traditional sentencing principles. The question is then whether the mandatory minimum sentence is grossly disproportionate to the fit and proportionate sentence. If it is grossly disproportionate for the offender being sentenced, the mandatory minimum violates Section 12 of the Charter. Even if it is not grossly disproportionate for the specific offender, the sentencing judge must consider whether the mandatory minimum sentence would be grossly disproportionate for a reasonably foreseeable hypothetical offender.
[15] If the mandatory minimum sentence is found to be grossly disproportionate for either the specific offender or a reasonable hypothetical one, the judge must determine whether the infringement is justified under Section 1 of the Charter.
[16] With respect to the meaning of “gross disproportionality” the court in Steele v. Mountain Institution, 1990 CanLII 50 (SCC), [1990] 2 S.C.R. 1385, said that it will only be on rare and unique occasions that a sentence will be so grossly disproportionate that it violates Section 12. The test is stringent and demanding (at page 1417). A sentence which is merely excessive or disproportionate will not offend Section 12 (R. v. Ferguson, 2008 SCC 6, at paragraph 14). Similarly, in R. v. McDonald, 1998 CanLII 2673 (ON CA), [1998] O.J. No. 641(C.A.), the court stated that even a sentence that is demonstrably unfit does not constitute cruel and unusual punishment. The court was concerned that a three to four year penitentiary sentence would go beyond what was necessary to punish, rehabilitate or deter the offender, and did not take into account his mental health issues. Notwithstanding these concerns, the court did not find that the mandatory minimum sentence of four years violated Section 12.
[17] In R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, the court cautioned that it is not for courts to comment on the wisdom of Parliament with respect to the gravity of offences and the range of appropriate penalties. Courts should take a deferential approach and only interfere in the clearest of cases when the punishment prescribed is so excessive that it outrages standards of decency. In McDonald, supra, the court stated that it is not for courts to debate the wisdom or otherwise of new sentencing regimes. Likewise, in R. v. Song, 2009 ONCA 896, the court made it very clear that judges are not permitted to allow any personal or political opinions to affect sentencing decisions. Judges are required to apply the law as it stands (at paragraph 10).
The Mandatory Minimum Applied to the Applicant
[18] In assessing whether a mandatory minimum sentence is grossly disproportionate for a particular offender I must consider the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case, in order to determine what the appropriate range of sentence is. The effect of the sentence to be imposed must also be measured, and includes its nature and the conditions under which it is to be applied (Smith, supra, at paragraph 56).
[19] With respect to the gravity of the offence, this was a sophisticated commercial grow operation. The house was being used exclusively for the purpose of cultivating marijuana and a significant amount of time and money had been invested into it. While Detective Connolly did not provide an opinion about the value of the plants, he did testify that the expected yield per plant is four ounces of marijuana. Assuming there were 475 plants in the basement, they would yield approximately 119 pounds of marijuana. This is clearly a significant amount and would result in a meaningful profit.
[20] On the issue of the harm caused by marijuana, the Applicant called Dr. Marni Brooks to provide expert opinion evidence about the risks and benefits of marijuana. The Crown objected to her testimony on the basis that it was not relevant to the issues to be determined by me. The Crown otherwise conceded that the evidence of Dr. Brooks satisfied the test for the admissibility of expert evidence as set out in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9. I find that there is some relevance to the opinion of Dr. Brooks on the issue of the gravity of the offence of producing marijuana. As noted in R. v. Boswell, 2011 ONCA 283, [2011] O.J. No. 1646 (C.A.), the threshold for establishing relevance for the admission of expert evidence is not particularly onerous.
[21] I found Dr. Brooks to be a very knowledgeable and balanced expert witness. She has considerable expertise in the area of addiction medicine. I accept her opinion that marijuana has many benefits from a medical perspective and can be used to effectively treat a number of serious conditions with very few, if any, adverse side effects. I further accept her view that marijuana is less dangerous in many ways than alcohol and cigarettes. It is certainly not in the same category in terms of risk as opiates, cocaine or heroin. This is consistent with the opinion of the Centre for Addiction and Mental Health as expressed in its Cannabis Policy Framework published in October of 2014.
[22] That is not to say that marijuana is harmless. There is a concern about its use by people under the age of 25 whose brains are not fully developed and by anyone at risk for any mental disorder involving psychosis. In R. v. Malmo-Levine, [2003] 3 S.C.R. 517, the court recognized that while marijuana presents a low risk of harm to the majority of users, there are sufficient concerns to support Parliament’s intervention.
[23] However, I must consider not only the impact of marijuana on users but the potential negative effects of it being sold illegally. There is no suggestion that the marijuana the Applicant was involved in producing was going to be used for any medical purpose. The illegal sale of any controlled substance carries with it the risk of violence which is inherent in the drug trade. The court of appeal acknowledged the risk of violence and threats associated with marijuana grow operations in the case of R. v. Nguyen, 2007 ONCA 645 (at paragraph 48).
[24] Turning to the particular circumstances of the offender and the case, it is at this point that aggravating and mitigating factors are considered. The only aggravating factor is the sophistication of this grow operation. The Crown did not call any evidence that it posed a specific safety hazard or that any electricity was stolen. There is no evidence about the prevalence of marijuana grow operations in the Durham Region.
[25] The Crown concedes that Mr. Li’s role was limited to that of a gardener. As noted, the only date on which he was seen at the house was the date of the offences. His proven involvement, therefore, is at the lowest possible end of the spectrum.
[26] By way of mitigation, Mr. Li had no criminal record at the time of these offences and has been working to support himself and his family for several years. The most significant factor he relies on in support of his position that the mandatory minimum sentence is grossly disproportionate in his case is the serious immigration consequences that such a sentence will have on him. It will almost certainly result in his deportation. This is a very difficult aspect of this case. Mr. Li came to Canada as a teenager eleven years ago. He has a wife who he sponsored to come here and a newborn daughter who is a Canadian citizen. Deportation can fairly be characterized as a harsh consequence in these circumstances.
[27] Immigration consequences to an offender may be taken into account by a sentencing judge. They are part of an offender’s individual circumstances that are relevant to the determination of a fit and fair sentence. However, the flexibility of the sentencing process cannot be used to avoid the collateral consequences that may flow from legislation, thereby circumventing Parliament’s will. Immigration consequences must not be permitted to dominate the sentencing process, or skew it either in favour of or against deportation. Consideration of this factor cannot lead to separate sentencing scheme for offenders who are at risk of deportation (R. v. Pham, 2013 SCC 15 at paragraphs 15 and 16).
[28] In R. v. Freckleton and Jones, 2016 ONCA 130, the court refused to reduce Mr. Jones’ sentence when the request was made solely for immigration reasons. A sentence of less than six month in his case would not have been fit. The court recognized that it was Parliament’s clear intention in enacting Section 24 of the Faster Removal of Foreign Criminals Act to remove the right of appeal for people who are rendered inadmissible by reason of serious criminality. The court was not prepared to reduce an otherwise fit sentence for the purpose of circumventing a clear Parliamentary intent.
[29] Similarly in R. v. R. B., 2013 ONCA 36, the court accepted that the risk of deportation can be a relevant factor in determining what an appropriate sentence is for a particular offence and offender. The court specifically considered Section 64(1) of the IRPA which removes the right of appeal for people deemed inadmissible due to serious criminality. The appellant had been in Canada for 26 years by the time his appeal was heard. He was married and had three children who were all born in Canada. He was the sole provider for his family and had no prior criminal record. While the court was sympathetic to the appellant’s position, it held that the loss of a potential remedy against deportation is not a mitigating factor on sentence. The sentencing process cannot be used to circumvent the provisions and policies of the IRPA.
[30] Therefore, while I am sympathetic to the Applicant’s concerns about the immigration consequences of the imposition of the mandatory minimum sentence, I cannot permit this factor to dominate the process. The prospect of deportation alone cannot transform what would otherwise be a constitutionally acceptable sentence into one that is grossly disproportionate. Such a finding would have the effect of creating a separate sentencing regime for offenders who are facing immigration consequences.
[31] In support of his position that a sentence of 12 months is grossly disproportionate for a gardener tending to fewer than 500 plants, the Applicant relies on three cases by way of comparison. In R. v. Lin, 2015 ONCA 314, the court upheld a sentence of 12 months for a person who was in possession of three kilograms of marijuana for the purpose of trafficking. Mr. Sederoff was counsel and advised that Mr. Lin held a high level position in the grow operation. Mid-level participants received conditional sentences of six months.
[32] The Applicant also relies on the case of R. v. Zheng, 2013 ONSC 4582, which involved a grow operation with over 6000 marijuana plants. Mr. Zheng was seen at the property on three occasions and was tending to the plants when the police arrived to effect arrests. He had no criminal record and would have faced deportation if he was given a sentence in excess of six months. One of his co-accused received an 18 month conditional sentence. Mr. Zheng was not subject to the mandatory minimum sentence because he committed the offences prior to the CDSA being amended. Fuerst J. took into account the collateral immigration consequences for Mr. Zheng and sentenced him to six months less one day to be served consecutively on two counts.
[33] In the related case of R. v. Li, 2014 ONSC 1800, the offender was convicted of production of marijuana and possession of marijuana for the purpose of trafficking. She was involved in an extensive outdoor grow operation with more than 5,900 plants. Ms. Li was seen working with the plants on two dates. No concerns were raised about Ms. Li’s immigration status and she was given an 18 month conditional sentence.
[34] A conditional sentence is not available to the Applicant because his offences post-date the 2012 amendments to Section 742.1 of the Criminal Code. However, he submits based on these three cases that a sentence of 12 months imprisonment is grossly disproportionate to sentences imposed upon offenders in much more serious circumstances.
[35] In contrast, the Crown submits that a sentence of 12 months is within the appropriate range of sentences for a commercial grow operation and relies on several cases by way of comparison. In R. v. Nguyen, 2007 ONCA 645, a sentence of 15 months imprisonment was upheld in relation to a residential grow operation that involved 1,121 plants. There were 18 pounds of harvested marijuana recovered and $10,000 worth of electricity had been stolen. Ms. Nguyen was a first offender and argued on appeal that she should have received a conditional sentence. In rejecting this position, the court stated that the sentence of 15 months was somewhat high, but not outside of the range.
[36] R. v. Doan, 2011 ONCA 626, involved a grow operation with 369 mature plants found in the basement of a home that was being used for the predominant purpose of growing marijuana. The appellant was present in the home on three consecutive days. In upholding a sentence of 10 months imprisonment, the court found it was in the appropriate range for a relatively sophisticated commercial operation.
[37] A sentence of two years less a day was upheld by the Manitoba Court of Appeal in the case of R. v. Nguyen, 2012 MBCA 72. The offender pleaded guilty and had one prior conviction for trafficking. On this occasion he was a gardener in a grow operation consisting of 690 marijuana plants. The court found that the sentence was at the high end of the range but nonetheless fit.
[38] In R. v. Nguyen, 2013 ONCA 51, the court substituted a sentence of 10 months imprisonment for an offender who entered a guilty plea and acknowledged that he was a gardener in a residential grow operation involving more than 1,200 plants and a hydro by-pass. Similarly, a sentence of 10 months imprisonment was found to be within the appropriate range in R. v. Zheng, 2014 ONCA 345. That case involved a residential grow operation with 343 marijuana plants and a hydro by-pass.
[39] Durno J. dealt with a constitutional challenge to Section 7(2)(b) of the CDSA in R. v. Vu, 2015 ONSC 5834, [2015] O.J. No. 5278. Mr. Vu was neither a principal nor merely a gardener. The grow operation he was involved with consisted of 1,020 plants. There was a hydro by-pass which resulted in the theft of over $25,000 in electricity. In addition, there was evidence of a risk of harm caused by the modifications to the home to facilitate the operation. Mr. Vu had a prior conviction for the same offence. After thoroughly canvassing the sentencing authorities, Durno J. found that an appropriate sentence for Mr. Vu, absent the mandatory minimum, would be in the range of 15 to 24 months, or slightly higher. He found that a two year sentence would be at or near the top of the range. As a result, the mandatory minimum sentences of either two or three years created in Sections 7(2)(b)(v) and (vi) of the CDSA were not grossly disproportionate for Mr. Vu.
[40] The constitutionality of Section 7(2)(b) of the CDSA was also considered in R. v. Elliott, 2016 BCSC 393. That case involved a marijuana grow operation that was found in the basement of a home. There were a total of 195 plants in various stages of growth. Mr. Elliott worked as a gardener in the operation for about a year and a half. Fenlon J. considered several sentencing cases and determined that absent the mandatory minimum, the appropriate range of sentence for a first offender involved in a commercial residential grow operation consisting of approximately 200 plants is four to twelve months imprisonment. As a result, she held that the mandatory minimum sentence of six months imprisonment contained in Section 7(2)(b)(i) was not grossly disproportionate for Mr. Elliott specifically. It actually fell squarely within the range of appropriate sentences.
[41] Taking into consideration the facts of these offences, the personal circumstances of the Applicant, the principles of sentencing and the relevant case law, absent the mandatory minimum sentence, the appropriate range for Mr. Li would be a period of imprisonment between six and twelve months. In light of the immigration consequences to Mr. Li, if I had the discretion to do so I would be inclined to sentence him to six months less one day on the charge of producing marijuana. However, the mandatory minimum falls at the top of what I believe is the appropriate range of sentence in this case. In those circumstances, it is not grossly disproportionate and does not contravene Section 12 of the Charter in relation to the Applicant personally.
The Mandatory Minimum Applied to a Reasonable Hypothetical Offender
[42] With respect to the standard to be applied at this stage of the analysis, the court in Nur held that the test of reasonable foreseeability is not limited to situations that are likely to arise in the day-to-day application of the law. The question to be asked is what situations may reasonably arise. Only situations that are remote or far-fetched are excluded (at paragraph 68). The inquiry must be based on common sense and experience. While it is not appropriate to imagine the most sympathetic case possible, the personal characteristics of a hypothetical offender cannot be entirely excluded (at paragraphs 74 and 75).
[43] In Vu, supra, Section 7(2)(b)(i) was struck down on the basis of a hypothetical involving a licence holder who exceeded his or her limit by a small amount. This has no application in the current case in light of the number of plants involved in this grow operation. In the second Vu judgment (R. v. Vu, 2015 ONSC 7965), Durno J. stated that this hypothetical could not apply to a licensee who grew 201 or more plants over his or her limit (at paragraph 29). Further, he noted that Mr. Vu did not take the position that Section 7(2)(b)(iii) was constitutionally invalid based on any of the hypotheticals advanced in that case. As a result, the declaration of constitutional invalidity applies only to Sections 7(2)(b)(i) and (ii).
[44] Fenlon J. also found Section 7(2)(b)(i) to be unconstitutional based on reasonably foreseeable hypothetical scenarios in Elliott, supra. Those hypotheticals have no application to Section 7(2)(b)(iii) because they involved a small number of plants intended for personal use and to be shared with friends. Consequently, the finding of constitutional invalidity in Elliott was restricted to Section 7(2)(b)(i).
[45] The Applicant concedes that he cannot conjure up a more sympathetic hypothetical offender than himself. The number of plants he was convicted of producing was close to the top end of the range captured by Section 7(2)(b)(iii). The most favourable hypothetical scenario that could apply to this particular section would involve a youthful first offender facing deportation who was involved in a less sophisticated grow operation that consisted of 201 plants. Such an offender would be at the very bottom of the range established in Section 7(2)(b)(iii).
[46] The Applicant submits that Parliament has acted arbitrarily in drawing a bright line at 201 plants. Particularly now that there is no mandatory minimum sentence for producing 200 plants or less, the Applicant asserts that the sentence for a 201 plant offender would be grossly disproportionate in comparison to that of a 200 plant offender. A person convicted of producing 200 plants could theoretically receive a suspended sentence or an intermittent jail sentence. The disparity between sentences in that range and the 12 month mandatory minimum that takes effect at 201 plants is arbitrary, according to the Applicant.
[47] In response, the Crown relies on the case of R. v. A.B., 2015 ONCA 803, for the proposition that Parliament is entitled to draw bright lines to achieve legitimate legislative goals. While A.B. involved a challenge to the age of consent for sexual activity, the Crown submits that the statements by the court about Parliament’s ability to legislate are applicable to this case. Feldman J.A. adopted the observation in R. v. Clay, 2003 SCC 75, that it is not for the courts to micromanage Parliament’s creation of prohibitions backed by penalties.
[48] In Vu, Durno J. viewed the scaled approach to mandatory minimum sentences established by Section 7(2)(b) as being preferable to the broad approach of Section 95 of the Criminal Code because it takes into account the degree of an offender’s moral blameworthiness (at paragraph 204).
[49] In my view, Parliament’s decision to increase the mandatory minimum sentences based on the number of plants is reasonable and is entitled to deference. By way of analogy, Parliament has also drawn a bright line in creating the offences of theft, possession and fraud under $5,000 as compared with theft, possession and fraud over $5,000. Those who are charged with offences that involve a value greater than $5,000 face significantly higher maximum sentences. One could argue that the disparity in potential sentences for someone who commits a fraud in the amount of $4,900, as compared with a similar offender who commits a fraud in the amount of $5,100, is arbitrary. However, Parliament has to have the ability to distinguish differing degrees of moral blameworthiness and that will, at times, involve drawing bright lines.
[50] With respect to the one hypothetical scenario the Applicant has put forward involving a youthful first offender facing deportation and involved in a relatively unsophisticated grow operation consisting of 201 plants, I am not satisfied that a sentence of one year imprisonment reaches the high bar of gross disproportionality. Two hundred and one plants would still represent a significant commercial grow operation. Using Detective Connolly’s expected yield of four ounces per plant, it would result in approximately 50 pounds of marijuana being produced.
[51] The mandatory minimum for such a hypothetical offender might go beyond what is necessary as described in McDonald. It might be excessive or even demonstrably unfit. However, in light of the range of sentences imposed in cases involving commercial grow operations, it would not reach the level of being grossly disproportionate within the meaning of Section 12 of the Charter.
Conclusion
[52] The Applicant has not established that the mandatory minimum sentence of 12 months imprisonment set out in Section 7(2)(b)(iii) of the CDSA is grossly disproportionate either in relation to him personally or to a reasonable hypothetical offender. His application to have the section declared null and void pursuant to Section 52 of the Constitution Act is therefore dismissed.
Justice L. Bird
Released: March 11, 2016