COURT FILE NO. CR-14-90000043-0000 DATE: 20160901 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HAI THI PHAM Applicant – and – HER MAJESTY THE QUEEN Respondent

Counsel: Kim Schofield and Dan Stein for Pham Chris De Sa and David Morlog, for the Crown

HEARD: July 14, 15, and 22, 2016

M.A. Code J.

REASONS FOR JUDGMENT

A. OVERVIEW

[1] The accused Hai Thi Pham (hereinafter, Pham) was charged in a two count indictment with production of marijuana and possession of marijuana for the purpose of trafficking, contrary to ss. 7(2)(b) and 5(2) of the Controlled Drugs and Substances Act (the C.D.S.A.). After a trial by judge and jury, Pham was convicted of both offences on March 3, 2015. She was remanded for sentencing.

[2] On August, 15, 2015, Pham filed a Notice of Constitutional Question asserting that the two and three year mandatory minimum sentences provided for in ss. 7(2) and 7(3) of the C.D.S.A. contravened s. 12 of the Canadian Charter of Rights and Freedoms (the Charter) and should be declared of no force or effect pursuant to s. 52 of the Charter. Her sentencing hearing, and Charter application, were scheduled to be heard on September 28, 2015.

[3] The trial judge, Frank J., became seriously ill and was not able to resume sitting. The sentencing hearing and Charter application were adjourned a number of times until it became apparent that Frank J. would not be able to preside in the near future. A new trial judge was then assigned to the case pursuant to s. 669.2 of the Criminal Code.

[4] On March 9, 2016, I made various case management orders concerning the conduct of the sentencing hearing and Charter application. The parties were asked to make their best efforts to negotiate an Agreed Statement of Fact relating to the evidence heard at trial that would be relied on at the sentencing hearing. In addition, the evidence relied on in support of the Charter application was to be filed in a documentary record, including any affidavits and cross-examinations. The parties complied with these orders and a large written record and facta were filed in relation to both sentencing and the Charter issue.

[5] I heard oral argument in July 2016 over parts of three days, in relation to both sentencing and the Charter issue, and reserved judgment. These are my Reasons for Judgment.

B. FACTS RELATING TO THE OFFENCES

[6] The facts relating to the two offences are set out in the Agreed Statement of Fact, in the expert reports of Det. Canepa and Det. Desrocher, and in a videotape of the premises in question that was taken by the police when executing a search warrant.

[7] On February 28, 2013, enforcement officers from the Canadian Border Services Agency (the CBSA) were investigating possible illegal immigrants at a high rise apartment building located at 2755 Jane Street in north west Toronto. They observed Pham at the door to unit 1006 and thought that she resembled one of the individuals wanted on immigration warrants. She had been inside unit 1006 and she had the key to this unit when officers approached and asked to speak to her. Pham invited them into unit 1006.

[8] The CBSA officers observed various indicia of a marijuana grow-op inside the three bedroom apartment. They called the Toronto police. The apartment did not appear to be lived in and Pham was not listed as the tenant nor was she on the lease provided by the building superintendent. Pham was cooperative with the CBSA officers and did not attempt to leave. She was arrested when the police arrived. A search warrant was obtained and the premises were searched.

[9] It is apparent from the police video taken during the search that the sole purpose of the leased premises was the growing of marijuana. A total of 1110 plants were found in the kitchen and in all three bedrooms. A large pile of soil can be seen on the living room floor. The bathroom was full of various pails, buckets and jugs containing fertilizers and chemicals. There were 19 high pressure sodium lights suspended above the marijuana plants in the four rooms. The lights were connected to 20 ballasts which transform the electrical current in order to make it compatible with 1000 watt lightbulbs. There were empty pots, hoses, three oscillating fans, venting equipment, carbon filters, 5 timer boards, and numerous spare fuses inside the apartment. Electrical wires can be seen running everywhere throughout the apartment, connected to the lamps, ballasts and timers. An electrical box of some kind appears to have been installed in a rough cut-out area of the drywall. Connections between bare wires can be seen out in the open because the wires were not connected inside an electrical box or inside an outlet. The walls inside the apartment were covered with grey plastic sheets. Black mold was visible on the walls and significant amounts of dirt can be seen on the floor.

[10] Based on the widespread mold on the walls, the soil on the floor, and the empty pots, it could be inferred that marijuana plants had been growing inside the apartment for at least a year prior to Pham's arrest on February 28, 2013. There was no Health Canada license permitting the growing of marijuana on the premises.

[11] Det. Canepa's evidence before the jury was that 1110 marijuana plants would yield 77,700 grams of dried marijuana. If sold in kilo amounts for between $5000 and $6000 a kilo, the marijuana was worth between $390,000 and $468,000. If sold in gram amounts for $20 a gram, the marijuana was worth $1,554,000. These are trafficking quantities of marijuana. I should note that there is some disagreement about these valuations but it has no effect on the fact that this was a large commercial operation.

[12] Det. Desrocher's expert report is relevant to the s. 7(3) statutory aggravating factor concerning whether "the production constituted a public safety hazard in a residential area." His evidence was not before the jury but was filed at the sentencing hearing. Det. Desrocher's opinion was that the marijuana grow-op in unit 1006 "posed a public safety hazard for residents of 2755 Jane Street" because of the risk of other crimes associated with grow-ops (such as robberies and break-ins), because of "the threat of fire and electrocution," because of "the threat of airborne toxic mold" which can cause various illnesses, and because of the "web of wiring which is dangerous to emergency service personnel who respond to fires."

C. FACTS RELATING TO THE OFFENDER

[13] Pham testified before Frank J. on a pre-trial Charter Motion. Frank J. found that Pham's account was "not credible" and gave detailed reasons dismissing the Charter Motion on February 25, 2015. No defence evidence was called at the jury trial.

[14] At the sentencing hearing, the defence filed a psychiatric report from Dr. Gojer. Ms. Schofield also made submissions concerning Pham's antecedents. Pham was born in Vietnam in 1971 and is now 45 years old. She was 41 at the time of the present offences. She emigrated to Canada with her husband in 1998 at age 27.

[15] Pham's father died in 1973 when she was very young. Her mother remarried when Pham was still a child. Pham related well to her step-father as a child. Her mother eventually emigrated to Canada and now lives with Pham. The mother is in her late 60s. Pham has three siblings who all live in Vietnam. She has a good relationship with them. There is no known history of mental illness, drug abuse, or criminality in the family. Pham was healthy growing up and did not suffer any behavioural, developmental, or medical problems as a child. She was not abused as a child. However, she dropped out of school at a young age and began working as a seamstress with her mother because her mother could not afford to send her to school. Pham has been a seamstress all her life.

[16] Pham married her husband in 1995 while they still lived in Vietnam. He worked at various jobs. He is now in his 60s. He is retired and collects old age pension. They have a son age 15 and a daughter age 13. They live in a house that they own in North York. The children are in school and are doing well. Pham separated from her husband in 2002. However, they reunited and remarried after she was charged with the present offences in 2013 and after she had become anxious and depressed. She and her husband now have a good relationship. She still works as a seamstress. She speaks very little English.

[17] Dr. Gojer's report is dated March 7, 2016 and it describes Pham as follows: "average in intelligence," and not sophisticated; "suffering from anxiety, panic attacks, is easily startled"; she "suffers from hypertension" and takes medication for high blood pressure; she has been seeing a psychiatrist for the past year, Dr. Phuong, who diagnosed her with Post Traumatic Stress Disorder and depression and prescribed medication; there was no history of anxiety or depression prior to her arrest; her mood is now "significantly depressed and anxious"; she is coherent and orientated and there is "no evidence of any delusions, bizarre ideas, suicidal or homicidal thoughts"; she does not suffer from a "personality disorder or psychopathic traits" and has no prior criminal history.

[18] Dr. Gojer agreed with her psychiatrist's diagnosis, to the effect that Pham suffers from Major Depressive Illness and Post Traumatic Stress Disorder, which appears to have been "triggered" by her arrest and by "the fact that she is facing charges." In Dr. Gojer's opinion, it is "unlikely that she will reoffend." In terms of treatment, Dr. Gojer recommended changing her medication and seeing a counselor for "intensive treatment."

D. THE SECTION 12 CHARTER APPLICATION

(i) Introduction

[19] As noted previously, Pham stands convicted of two offences under the C.D.S.A. The s. 5(2) offence of possession of marijuana for the purpose of trafficking (in an amount over 3 kilos) is subject to a maximum sentence of life imprisonment. There are a number of mandatory minimum sentences for this offence, set out in s. 5(3)(a), but none of them apply to Pham.

[20] The s. 7(1) offence of unauthorized production of a scheduled substance is subject to a maximum sentence of 14 years imprisonment, pursuant to s. 7(2)(b), if the substance in question is marijuana. In addition, a series of escalating mandatory minimum sentences are set out in s. 7(2)(b) and s.7(3), based on the number of plants produced and certain statutory aggravating circumstances. These provisions were enacted as part of Bill C-10, the Safe Streets and Communities Act, which came into force on November 6, 2012. This legislation doubled the maximum sentence from 7 years to 14 years and prohibited conditional sentences for production of marijuana, as well as introducing the new mandatory minimum sentences in ss. 7(2) and (3).

[21] Two of these mandatory minimum sentences apply to Pham and they are the subject of her s. 12 Charter application. Section 7(2)(b)(v) and (vi) provide as follows:

(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;

Section 7(3)(c) provides as follows:

(c) the production constituted a potential public safety hazard in a residential area;

[22] I am satisfied beyond reasonable doubt that Pham actively participated in the growing of more than 500 marijuana plants and that the production "constituted a potential public safety hazard," based on the jury's verdict, the agreed facts, the report of Det. Desrocher, and a common sense assessment of the police video of the premises. Accordingly, Pham is subject to the two year mandatory minimum sentence in s. 7(2)(b)(v) and to the three year mandatory minimum sentence in s. 7(2)(b)(vi) and s. 7(3)(c). The Crown does not seek any more than these mandatory minimum sentences, if either or both of them survive the s. 12 constitutional attack.

[23] Section 12 of the Charter protects against "cruel and unusual treatment or punishment." The application of this provision to legislated minimum penalties has been the subject of a number of recent binding authorities. In particular, two decisions of the Supreme Court set out the now well known methodology to be followed when testing mandatory minimum sentences against the s. 12 Charter guarantee. See: R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Lloyd, 2016 SCC 13, [2016] S.C.J. No. 13. In addition, Durno J. recently released two carefully considered decisions concerning s. 12 Charter attacks on some of the mandatory minimum sentences found in s. 7(2) and s. 7(3) of the C.D.S.A. See: R. v. Vu, 2015 ONSC 5834; R. v. Vu, 2015 ONSC 7965.

[24] In light of the above authorities, I do not intend to engage in any elaborate analysis of the s. 12 jurisprudence. McLachlin C.J.C., speaking for the majority in R. v. Nur, supra at paras. 65 and 68, summarized the s. 12 issue in the following terms:

I conclude that a mandatory minimum sentence may be challenged on the ground that it would impose a grossly disproportionate sentence either on the offender or on other persons in reasonably foreseeable situations. The constant jurisprudence of this Court and effective constitutional review demand no less. In the result, a mandatory minimum sentencing provision may be challenged on the basis that it imposes cruel and unusual punishment (i.e. a grossly disproportionate sentence) on the particular offender before the court, or failing this, on the basis that it is reasonably foreseeable that it will impose cruel and unusual punishment on other persons.

The reasonable foreseeability test is not confined to situations that are likely to arise in the general day-to-day application of the law. Rather, it asks what situations may reasonably arise. It targets circumstances that are foreseeably captured by the minimum conduct caught by the offence. Only situations that are “remote” or “far-fetched” are excluded: Goltz, at p. 515. Contrary to what the Attorney General of Ontario suggests there is a difference between what is foreseeable although “unlikely to arise” and what is “remote [and] far-fetched”: (A.F., at para. 66). Moreover, adoption of the likelihood standard would constitute a new and radically narrower approach to constitutional review of legislation than that consistently adhered to since Big M. The Court has never asked itself whether a projected application of an impugned law is common or “likely” in deciding whether a law violates a provision of the Charter. To set the threshold for constitutional review at common or likely instances would be to allow bad laws to stay on the books.

[25] Mr. Stein, who argued the s. 12 Charter application on behalf of Pham, does not suggest that the two year and three year mandatory minimum sentences set out in ss. 7(2) and (3) of the C.D.S.A. would be "grossly disproportionate" in relation to Pham herself. The Crown submits that the normal range of sentence for the present case, prior to the 2012 amendments, would have been 8 months to 2 years less a day and that Pham would have been situated towards the upper end of that range. Mr. Stein submits that a 3 year minimum sentence would be "excessive" for Pham but would not be "grossly disproportionate."

[26] Accordingly, the only issue on the s. 12 Charter application is whether the 2 year and 3 year minimum sentences are "grossly disproportionate" in certain other "reasonably foreseeable situations," leaving aside Pham's own case.

(ii) The 3 Year Minimum where a "Potential Public Safety Hazard" exists

[27] The constitutional challenge to the 3 year mandatory minimum sentence provided for in ss. 7(2)(b)(vi) and 7(3)(c) is relatively straightforward, in my view. In R. v. Vu, supra at paras. 182-198, Durno J. held that s. 7(3)(c) violated s. 12 of the Charter because the mandatory one year additional jail sentence in all cases where the Crown proved that "the production constituted a potential public safety hazard" was grossly disproportionate. He held that this provision would capture cases where an accused was at fault for the "public safety hazard" as well as cases where the accused was not at fault, either because the hazardous circumstances were unknown or because the accused had exercised due diligence in trying to prevent the safety hazards. Durno J. went on to hold that s. 7(3)(c) could not be justified pursuant to s. 1 of the Charter.

[28] I agree with Durno J.'s reasoning in Vu and, in any event, his decision should be followed for reasons of judicial comity. Strathy J., as he then was, summarized the law relating to comity between judges of the same court in R. v. Scarlett, 2013 ONSC 562 at paras. 43-4, in a case like the present one that dealt with a s. 12 Charter challenge to a mandatory minimum sentence:

The decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them: see Re Hansard Spruce Mills Ltd., 1954 BCSC 253, [1954] 4 D.L.R. 590 (S.C.); R. v. Northern Electric Co. Ltd., 1955 ONSC 392, [1955] O.R. 431, [1955] 3 D.L.R. 449 (H.C.) at para. 31. Reasons to depart from a decision, referred to in Hansard Spruce Mills, include (a) that the validity of the judgment has been affected by subsequent decisions; (b) that the judge overlooked some binding case law or a relevant statute; or (c) that the decision was otherwise made without full consideration. These circumstances could be summed up by saying that the judgment should be followed unless the subsequent judge is satisfied that it was plainly wrong. I am not satisfied that the decision in Smickle is plainly wrong.

In a constitutional case, where a statute has been declared invalid by a judge of coordinate jurisdiction, there is strong reason for judicial restraint on the part of a subsequent judge, for the reasons identified by Chief Justice McLachlin in Ferguson. To create a judicial exemption, based on the facts of the particular case before me, would create uncertainty and unfairness. This is particularly so because an appeal of both Nur and Smickle is to be heard by a single panel of the Court of Appeal next month. [Emphasis added.]

[29] The Crown alleged certain errors in Durno J.'s reasons and submitted that his decision in Vu should not be followed. I am not persuaded concerning these alleged errors. I am told that Vu has been appealed to the Court of Appeal. The Crown can make these arguments alleging error by Durno J. at the appeal, if so advised. In addition to adopting Durno J.'s reasons, I would add one further point that supports the result he reached in Vu. The imposition of mandatory imprisonment on a basis that does not involve any fault (whether by way of knowledge, recklessness or lack of due diligence), has always violated constitutional principles. See: Reference re Section 94(2) of the B.C. Motor Vehicle Act, 1985 SCC 81, 23 C.C.C. (3d) 289 (S.C.C.); R. v. Creighton, 1993 SCC 61, 83 C.C.C. (3d) 346 (S.C.C.); R. v. Hundal, 1993 SCC 120, 79 C.C.C. (3d) 97 (S.C.C.); R. v. Pontes, 1995 SCC 61, 100 C.C.C. (3d) 353 (S.C.C.); R. v. Nguyen, 1990 SCC 89, 59 C.C.C. (3d) 161 (S.C.C.); R. v. Wholesale Travel Group Inc., 1991 SCC 39, 67 C.C.C. (3d) 193 (S.C.C.). I agree with the Crown that s. 7(3)(c) enacts an aggravating factor on sentence, and not an element of the offence. Accordingly, mens rea or fault need not be proved in relation to this factor at the sentencing stage. However, this does not mean that fault is somehow irrelevant at sentencing. The form in which this particular C.D.S.A. aggravating factor on sentence has been legislated, with a minimum jail sentence attached, means that it must always result in mandatory imprisonment. It therefore becomes constitutionally important to preserve judicial discretion, at the sentencing stage, so that the aggravating factor can be given full force where there is fault but given less weight where there is no fault.

[30] For all these reasons, and for the reasons given by Durno J. in Vu, ss. 7(2)(b)(vi) and 7(3)(c) violate s. 12 of the Charter and cannot be justified pursuant to s. 1 of the Charter.

(iii) The 2 Year Minimum where more than 500 Plants are Produced

[31] The more difficult issue on the Charter application is whether the 2 year mandatory minimum sentence in s. 7(2)(b)(v) for production of more than 500 marijuana plants violates s. 12. In other words, can Parliament impose a mandatory sentence of this length in cases of large commercial marijuana grow-ops, without violating s. 12 of the Charter?

[32] In my view, the answer to this question is largely determined by Nur. In that case, the Supreme Court struck down the 3 year mandatory minimum sentence for possession of a loaded handgun, as set out in s. 95(1) of the Criminal Code. The constitutional flaw in this provision was that it is not unlawful to possess a loaded handgun in all circumstances. Rather, it is a regulated activity. As a result, the s. 95(1) offence captures a broad range of conduct. At one end of the spectrum is the unlicensed gun possessed for a criminal purpose. At the other end of the spectrum is the licensed gun possessed for a lawful purpose but possessed at a time, manner, or place that violates the terms of a license. As McLachlin C.J.C. explained in R. v. Nur, supra at paras. 82-3:

Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not. At one end of the range, as Doherty J.A. observed, “stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. . . . [T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public”: para. 51. At this end of the range — indeed for the vast majority of offences — a three-year sentence may be appropriate. A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years’ imprisonment may be disproportionate, but not grossly so. At the far end of the range, stands the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. For this offender, a three-year sentence is grossly disproportionate to the sentence the conduct would otherwise merit under the sentencing provisions of the Criminal Code.

Given the minimal blameworthiness of the offender in this situation and the absence of any harm or real risk of harm flowing from the conduct (i.e. having the gun in one residence as opposed to another), a three-year sentence would be grossly disproportionate. Similar examples can be envisaged. A person inherits a firearm and before she can apprise herself of the licence requirements commits an offence. A spouse finds herself in possession of her husband’s firearm and breaches the regulation. 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. [Emphasis added.]

[33] In my view, the same reasoning applies to the s. 7(1) offence of production of marijuana. It too is a licensed activity and the s. 7(1) C.D.S.A. offence is framed in similar terms to the s. 95(1) Criminal Code offence. Both provisions criminalize only unlicensed activity. The s. 95(1) offence provides as follows:

95 (1) Subject to subsection (3), every person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm, without being the holder of

(a) an authorization or a licence under which the person may possess the firearm in that place; and

(b) the registration certificate for the firearm. [Emphasis added.]

The s. 7(1) offence provides as follows:

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

[34] In R. v. Nur, supra at para. 10, McLachlin C.J.C. stated that the "licensing and registration requirements under the Firearms Act are reinforced through a series of Criminal Code offences that criminalize the possession of firearms where the possession contravenes the terms and conditions of the Firearms Act. The provision at issue in this appeal is s. 95 of the Criminal Code." Similarly, in R. v. Perka, 1984 SCC 23, 14 C.C.C. (3d) 385 at 405 (S.C.C.), Dickson J. (as he then was) gave the unanimous judgment of the Court on this point and described the scheme of the Narcotics Control Act, the predecessor to the C.D.S.A., including the s. 6(1) offence of cultivation, in much the same terms as those used by McLachlin C.J.C. in Nur:

The Narcotic Control Act provides for several statutory exceptions to its broad prohibitions against importation, sale, manufacture, and possession. The offences created by the Act are generally subject to the proviso that the accused not have been acting under the authority of the Act or the regulations thereunder. See ss. 3(1) (possession), 5(1) (importation) and 6(1) (cultivation). Section 12 of the Act implements this scheme by providing for a set of regulations governing the issuance of licences for, inter alia, the importation, sale, manufacture or possession of narcotics. One who sells, imports, manufactures or possesses narcotics pursuant to such authority does not commit an offence. [Emphasis added.]

The old s. 6(1) of the Narcotics Control Act, to which Dickson J. was referring in Perka, provided as follows:

6. (1) No person shall cultivate opium poppy or marijuana except under the authority of, and in accordance with, a licence issued to the person under the regulations. [Emphasis added.]

Also see R. v. Parker, 2000 ONCA 5762, 146 C.C.C. (3d) 193 at paras. 165-190 (Ont. C.A.) concerning the regulatory scheme that existed under the C.D.S.A., prior to issuance of the current regulations.

[35] In my view, there is no meaningful distinction between the way in which the old s. 6(1) of the Narcotics Control Act and the more recent s. 7(1) of the C.D.S.A. are framed. In both cases, compliance with a license or exemption issued under the regulations is a complete defence to the offence. Mr. DeSa submitted, on behalf of the Crown, that a mere violation of the regulatory terms of a license could and would be prosecuted under the regulations, as they contain their own scheme of lesser penalties. This may be true, in practice and in some cases, but it would depend on an exercise of prosecutorial discretion. In R. v. Nur, supra at paras. 85-7, the Crown had a similar discretion to proceed summarily for s. 95 offences in minor cases and thereby avoid the mandatory minimum sentence. McLachlin C.J.C. held that reliance on prosecutorial discretion cannot save an unconstitutional law:

The Attorneys General of Canada and Ontario argue that the Court of Appeal erred by not taking into account the Crown’s ability to elect to proceed summarily and thereby avoid the mandatory minimum sentence in the indictable offence. They argue that the hybrid nature of the offence should be taken into account as a factor when assessing the likelihood that a general application of the offence would result in a grossly disproportionate sentence being imposed. Put differently, they contend that the Crown’s election to proceed summarily and thereby avoid a mandatory minimum prevents s. 95 from being grossly disproportionate when the conduct is at the less serious end of the spectrum.

I cannot agree. To accept this argument would result in replacing a public hearing on the constitutionality of s. 95 before an independent and impartial court with the discretionary decision of a Crown prosecutor, who is in an adversarial role to the accused.

Sentencing is inherently a judicial function. It is the courts that are directed by Parliament to impose a mandatory minimum term of imprisonment, and it is the duty of the courts to scrutinize the constitutionality of the provision. The Crown’s submission is in effect an invitation to delegate the courts’ constitutional obligation to the prosecutors employed by the state, leaving the threat of a grossly disproportionate sentence hanging over an accused’s head.

[36] In any event, Mr. Stein was able to point to a number of actual cases where prosecutorial discretion was not exercised and where an accused, who believed that he/she was acting in compliance with a license, was prosecuted for a s. 7(1) offence. In R. v. Zheng, [2015] O.J. No. 274 (C.J.), the premises in question had been issued four licenses authorizing production of a total of 128 marijuana plants. Two of the licenses had recently expired and they had not been renewed in a timely way. The two remaining licenses, which were still valid, authorized production of only 30 marijuana plants. Furthermore, the licenses were granted to persons other than the accused Zheng. He was hired, presumably by the licensees or by their agent, as a night watchman at the premises and he also performed minor gardening functions on occasion. He telephoned the police when a break, enter, and theft of some of the marijuana plants was taking place during his watch. The police arrived and arrested the thieves. The police discovered a total of 1507 marijuana plants at the licensed premises. Zheng was convicted of aiding and abetting production of all but 30 of these plants, given that there was significant non-compliance with the terms of the four licenses. The trial judge, Green J., found that the accused Zheng honestly but mistakenly believed "that the marijuana cultivation at the … grow-up was authorized by production licences issued by Health Canada. However, I find that this belief amounts to a mistake of law and, accordingly, does not exculpate the defendant from responsibility for the two offences before me."

[37] The facts of the Zheng case took place on March 6, 2012, eight months before the 2012 amendments to s. 7 of the C.D.S.A. came into force. As a result, no mandatory minimum sentences existed at the time. Green J. sentenced the accused to a conditional discharge, given the mitigating effect of his mistake of law, his minor role in the offence, and his status as a youthful first offender with dependents. See: R. v. Zheng, [2015] O.J. No. 7182 (C.J.).

[38] Another case arising out of the regulatory licensing context is R. v. Jiang, [2015] O.J. No. 7077. The facts were similar to the Zheng case. It involved a large sophisticated marijuana grow-op with over 2000 plants. The accused Jiang was employed to provide "primarily security and perhaps some caretaking and maintenance work." The trial judge found that Jiang "did in fact believe that he was engaged in a lawful enterprise" based on "the conspicuous nature of the grow-op in a residential part of Toronto," the fact that the neighbours appeared to be aware of it and it had been in operation "for a number of years," the number of employees, and the fact that "at least some valid licenses and other official certificates were posted ostentatiously in an area of the factory's office." The accused was a relatively unsophisticated 46 year old first offender who spoke little English, who had always worked at various menial jobs, and who had raised two children. He was sentenced to a suspended sentence and probation.

[39] A third example of a criminal C.D.S.A. prosecution arising out of the regulatory licensing context is referred to in R. v. Vu, supra at paras. 229-231. Durno J. described the case in the following terms:

Between 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 [in the Vu case] 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.

To 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.

Even 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. [Emphasis added.]

On the basis of this hypothetical, Durno J. held that ss. 7(2)(b)(i) and (ii) violated s. 12 of the Charter. He held that the hypothetical case was limited to licensees who mistakenly or deliberately exceeded their allowed number of plants by a small amount (something "less than 201" plants, as provided for in ss. 7(2)(b)(i) and (ii)).

[40] As Durno J. noted in the above passage from his judgment in Vu, the s. 12 Charter jurisprudence now clearly permits reference to actual cases, when determining the reach of the offence in question. McLachlin C.J.C. addressed this point in R. v. Nur, supra at para. 72:

A third ancillary question is whether reported cases should be considered in determining whether it is reasonably foreseeable that a mandatory minimum sentencing provision will result in cruel and unusual punishment, contrary to the s. 12 guarantee. The majority in Morrisey said reported cases should be excluded if the court considers them “marginal”, and the minority, without qualification, said they may be considered. In my view, they can. Reported cases illustrate the range of real-life conduct captured by the offence. I see no principled reason to exclude them on the basis that they represent an uncommon application of the offence, provided that the relevant facts are sufficiently reported. Not only is the situation in a reported case reasonably foreseeable, it has happened. Reported cases allow us to know what conduct the offence captures in real life. However, they do not prevent the judge from having regard to other scenarios that are reasonably foreseeable: see Morrisey, at para. 33.

[41] Based on the above three examples of regulatory licensing cases that have led to criminal prosecutions for the s. 7(1) production offence, I am satisfied that the 2 year mandatory minimum sentence in s. 7(2)(b)(v) violates s. 12 of the Charter. That is because cases "may reasonably arise" where licenses authorizing "more than 500" plants have expired and not been renewed in a timely way, as in a case like Zheng, or where the licenses do not cover the size or scope of a large commercial operation but an unsophisticated accused with a minor role honestly believes that they do, as appears to be the case in both Zheng and Jiang, or where the licenses are issued to certain named persons but the licensees delegate the production to a different unauthorized person, as in Zheng. In such cases, the mandatory minimum 2 year sentence is "grossly disproportionate."

[42] The Supreme Court has held that honest belief in the existence of an applicable license is a mistake of law and is no defence at trial, but that it has a mitigating effect on sentence because of the "minimal blameworthiness of the offender in this situation and the absence of any harm or real risk of harm." See: R. v. Nur, supra at paras. 80-83; R. v. MacDonald, 2014 SCC 3, 303 C.C.C. (3d) 113 at paras. 55-61 (S.C.C.). In cases where lawful licenses exist, but their terms are not being strictly complied with, the harm to the public will be much reduced, depending on the extent of the departure from the terms of the license. In cases where the accused honestly believes there has been compliance with a license or licenses, that accused's moral blameworthiness is also much reduced. In these circumstances, the 2 year minimum sentence is "grossly disproportionate."

[43] Mr. De Sa, on behalf of the Crown, submitted that the mistake of law made by the accused in cases like Zheng and Jiang, and in the hypothetical relied on by Durno J. in Vu, are actually mistakes of fact. Accordingly, they should give rise to valid defences of lack of mens rea at trial. The Crown relies on R. v. Darquea, 1979 ONCA 2995, 47 C.C.C. (2d) 567 (Ont. C.A.), in this regard, and submits that cases involving licensing mistakes are not reasonable hypotheticals for s. 12 purposes because the accused are simply not guilty. The accused in Darquea argued that they honestly believed that "the laboratory by which they were employed was authorized to manufacture the controlled drug" in that case, namely, methamphetamine. The Court held that a "genuine belief that the laboratory was licensed under the Act and the Regulations to manufacture the controlled drug is a belief as to a matter of fact, and constitutes a defence to the charge."

[44] Professor Stuart's leading text, Canadian Criminal Law, 6th Ed. 2011, at p. 382, characterizes Darquea somewhat sceptically as one of a number of cases where the courts "are bending over backwards to avoid the harsh" consequences of ruling that "ignorance of the law is no excuse." In R. v. MacDonald, 2012 NSCA 50, 283 C.C.C. (3d) 308 at paras. 66-96 (N.S.C.A.), the Nova Scotia Court of Appeal relied on Darquea and held that "the accused must know that the gun is being possessed illegally." The Court referred to the licensing provisions that apply to s. 95(1) firearms offences and held that the Crown must prove "that the accused knows his possession is unauthorized." The Court of Appeal acquitted MacDonald of the s. 95(1) offence because he honestly but mistakenly believed that his license to possess a handgun at his home in Calgary extended to a second home in Halifax.

[45] On further appeal, the Supreme Court reversed the Nova Scotia Court of Appeal on this point and held that the accused MacDonald's mistake about the scope of his firearms license was a mistake of law. LeBel J. gave the unanimous judgment of the Court on this point and stated (R. v. MacDonald, supra at paras. 55-6):

An individual who knowingly possesses a loaded restricted firearm in a particular place with an intention to do so will be liable to punishment for the offence provided for in s. 95(1) unless he or she holds an authorization or a licence under which the firearm may be possessed in that place. Thus, a proper authorization or licence serves to negate the actus reus of the offence, thereby allowing someone who legitimately possesses a restricted firearm in a given place to avoid liability.

With respect, the Court of Appeal erred in law by improperly reading a defence of ignorance of the law into s. 95(1). In the majority’s view, the Crown had to prove that Mr. MacDonald knew or was wilfully blind to the fact that his possession was unauthorized. Such a burden would compel the Crown to prove that an accused knew the conditions of his or her authorization or licence. This amounts to requiring the Crown to prove that the accused knew the law. [Emphasis added.]

[46] In its earlier decision concerning the s. 19 Criminal Code provision, which holds that mistake of law is no defence, R. v. Molis, 1980 SCC 8, 55 C.C.C. (2d) 558 at 563 (S.C.C.), Lamer J. (as he then was) gave the unanimous judgment of the Court and stated:

… Parliament has by the clear and unequivocal language of s. 19 chosen not to make any distinction between ignorance of the existence of the law and that as to its meaning, scope or application. Parliament has also clearly expressed the will that s. 19 of the Criminal Code be a bar to any such defence … [Emphasis added.]

The accused in Molis were manufacturing the drug MDMA in a laboratory at a time when MDMA was not a scheduled drug and when it was therefore lawful to produce it. Once a regulation was enacted, adding MDMA to the schedule of restricted drugs for the first time, the accused continued to manufacture the drug. They tried to argue that their honest belief that MDMA was not a scheduled drug was a mistake of fact and that it provided them with a defence. The Supreme Court held that their mistake related to the law and was, therefore, not a valid defence.

[47] In my view, MacDonald and Molis hold that a mistake as to "the conditions of his or her authorization or license" or a mistake as to the "meaning, scope or application" of a regulation concerning the production of drugs, is a mistake of law. The mistakes made by the accused in cases like Zheng and Jiang, and in the hypothetical case relied on by Durno J. in Vu, are mistakes of law and not mistakes of fact. Accordingly, they are legitimate examples of the scope of criminal liability under s. 7(1), for purposes of s. 12 Charter analysis.

[48] The Crown also argued that these three cases were not reasonable hypotheticals because they relied on the old regulatory regime authorizing medical marijuana production (known as the Marihuana Medical Access Regulations or MMAR). These regulations existed at the time of the present offence, in February 2013, but they were repealed on June 7, 2013 and replaced with the Marihuana for Medical Purposes Regulations (or MMPR). The effect of this change in the regulatory regime was described by the Crown's expert from Health Canada, Andrea Budgell, in her affidavit filed on the Charter application:

The MMPR came into force on June 7, 2013, and do not permit personal production of marijuana as an option for accessing marijuana for medical purposes; instead marijuana for medical purposes may be accessed through Licensed Commercial Producers.

The Crown submits that Mr. Stein's reliance on past cases and hypotheticals relating to MMAR licenses, which were widely disseminated to private individuals, is no longer applicable because the MMPR regime restricts the production of marijuana to a small number of large commercial producers.

[49] This argument raises a number of complex issues because the Federal Court declared the new MMPR to be unconstitutional on February 24, 2016 and then suspended the declaration of invalidity until August 24, 2016. The federal Government had not yet issued new medical marijuana regulations as of the time, in July 2016, when this application was argued. Furthermore, a Federal Court injunction had preserved an apparently large number of the old MMAR licenses in the interim. See: Allard v. Canada, 2014 FC 280; Allard v. Canada, 2016 FC 236. The affidavit of the Health Canada expert, Ms. Budgell, states that 28,228 MMAR licenses were active at the end of 2013, including 219 licenses authorizing production of over 500 plants. She goes on to state that Health Canada does not know how many of these licenses currently remain valid under the Allard injunction but that the effect of the injunction is that an unknown number "are valid under their existing terms." A few weeks after submissions were concluded on the present application, the federal Government released new medical marijuana regulations which are to take effect on August 24, 2016. It appears that current licenses covered by the Federal Court injunction will not be affected by the new regulations (according to senior Health Canada officials quoted in a Globe & Mail article dated August 12, 2016). The parties did not seek to re-open argument of the present application on the basis of the new regulations.

[50] In all these circumstances, I am satisfied that an unknown number of MMAR licenses remain valid today, as they were at the time of the present offence. Accordingly, they can be used as the basis for reasonable hypotheticals and for determining the present scope of the s. 7(1) offence.

[51] There are two final issues that should be mentioned, before leaving the s. 12 Charter application. The first issue concerns the effect of cases that have not struck down s. 7(2)(b)(v). In R. v. Vu, supra, Durno J. struck down ss. 7(2)(b)(i) and (ii) – which deal with "less than 201" plants – but did not strike down any other mandatory minimum sentences in s. 7(2)(b) because the particular hypotheticals relied on by counsel in that case simply did not reach these other provisions. In R. v. Li, 2016 ONSC 1757, Bird J. did not strike down s. 7(2)(b)(iii) – which deals with “less than 501” plants – because the only hypothetical relied on by counsel in that case involved the facts of the accused Li's own case. Bird J. held that the minimum one year sentence that applied to Li was not "grossly disproportionate" in the circumstances of Li's own case. Finally, in R. v. Kennedy, 2016 ONSC 3438, Gorman J. did not strike down ss. 7(2)(b)(v) and (vi) – which deal with "more than 500" plants – because the only hypothetical relied on by counsel was the accused Kennedy's own case. Gorman J. held that the applicable 3 year minimum sentence was not "grossly disproportionate" in that particular case. In none of these cases did counsel advance, or the Court consider, the particular licensing and/or mistake of law hypotheticals advanced by Mr. Stein and considered by me in the above analysis. Also see: R. v. Hanna, 2015 BCSC 986.

[52] The effect of these prior s. 12 Charter decisions in a subsequent s. 12 case was addressed by McLachlin C.J.C. in R. v. Nur, supra at para. 71:

This brings us to the second ancillary question — the effect of a ruling that a particular mandatory minimum provision does not violate s. 12. Two questions arise. First, can a particular offender argue in a future case that the provision violates s. 12 because it imposes cruel and unusual punishment on him or her? The answer, all agree, must be yes. If the offender can establish new circumstances or evidence, including mitigating factors specific to the offender, it is open to a court to reconsider the constitutionality of the law. Second, can the offender in a future case argue that the provision as applied to others violates s. 12? The answer to this question is that it depends. Once a law is held not to violate s. 12, stare decisis prevents an offender in a later case from simply rearguing what constitutes a reasonably foreseeable range of the law. But stare decisis does not prevent a court from looking at different circumstances and new evidence that was not considered in the preceding case. A court’s conclusion based on its review of the provision’s reasonably foreseeable applications does not foreclose consideration in future of different reasonable applications: Morrisey, at para. 89, per Arbour J. That said, the threshold for revisiting the constitutionality of a mandatory minimum is high and requires a significant change in the reasonably foreseeable applications of the law. In a nutshell, the normal rules of stare decisis answer the concern raised by the Attorney General of Ontario that “each subsequent trial court [will be asked] to duplicate the analysis”: A.F. at para. 39. [Emphasis added.]

[53] The above passage in Nur addresses the reach of stare decisis and the extent to which binding constitutional decisions can be subject to reconsideration. See, e.g.: Bedford v. Canada, 2013 SCC 72, 303 C.C.C. (3d) 146 at paras. 38-47 (S.C.C.). That is not the issue before me. Rather, the issue in the present case is whether the principle of comity between judges of coordinate jurisdiction, which I have previously discussed, has any application to the earlier decisions of this Court that have not struck down certain s. 7(2) mandatory minimum sentences.

[54] In my view, the above passage from Nur is helpful in this regard as it holds that even stare decisis would not prevent reconsideration based on "different circumstances and new evidence that was not considered in the preceding case," nor would it prevent reconsideration based on "different reasonable applications." Durno J., Bird J., and Gorman J. never considered or made any decision concerning the applications of s. 7(1) and s. 7(2) that have been submitted to me and that I have considered. I am satisfied that judicial comity does not prevent me from ruling on them, any more than stare decisis.

[55] The final issue I should mention concerns a number of other reasonable hypotheticals that Mr. Stein relied on in order to illustrate the scope of the s. 7(1) offence. These hypotheticals were less persuasive because they did not always involve large commercial grow-ups with more than 500 marijuana plants and because they often depended on the most compassionate, sympathetic, or altruistic personal circumstances imaginable. See, e.g.: R. v. McPherson, [2011] B.C.J. No. 2717 (Prov. Ct.); R. v. Simpson, [2008] N.S.J. No. 70 (S.C.); R. v. Lange, 2002 BCPC 483; R. v. Small, 2001 BCCA 91; R. v. Young, [2008] M.J. No. 410 (Prov. Ct.); R. v. Hogan, 2003 BCPC 543; R. v. Prior, 2015 ONCJ 141; R. v. Placek, 2012 BCSC 1660. The majority judgment in R. v. Nur, supra at paras. 73-6, expressed some scepticism about this kind of hypothetical. In the end, I did not find it necessary to consider these additional hypotheticals and I make no findings as to whether they provide further bases for the s. 12 Charter application, in this particular case, which involves a large commercial marijuana grow-up with "more than 500" plants and which has none of the extraordinarily sympathetic circumstances found in the above cases.

(iv) Section 1 of the Charter

[56] For all these reasons, I am satisfied that ss. 7(2)(b)(v) and (vi) violate s. 12 of the Charter. The remaining issue is whether these provisions can be justified pursuant to s. 1 of the Charter. This issue is relatively straightforward in light of Nur and Lloyd. In R. v. Nur, supra at paras. 116-118, the majority held that s. 95 of the Criminal Code did not meet the minimal impairment or proportionality branches of the Oakes test because "there are less harmful means of achieving the legislative goal" and because the finding of "gross disproportionality" meant that the Court could "not find that the limits are a proportionate justification under s. 1." In R. v. Lloyd, supra at paras. 3, 36, and 49, the majority repeatedly referred to the usefulness of a statutory exemption from mandatory minimum sentences, as a "safety valve that would allow judges to exempt outliers … [in] exceptional cases." The majority cited the widespread use of this legislative technique, in conjunction with minimum sentences, in other free and democratic countries. The majority referred to Parliament's failure to make use of this available legislative tool in its analysis of the s. 1 "minimal impairment" issue:

Parliament’s objective — to combat the distribution of illicit drugs — is unquestionably an important objective: R. v. Oakes, 1986 SCC 46, [1986] 1 S.C.R. 103, at p. 141. This objective is rationally connected to the imposition of a one-year mandatory minimum sentence for the offence of possession for the purpose of trafficking of Schedule I drugs. However, the law does not minimally impair the s. 12 right. As discussed above, the law covers a wide array of situations of varying moral blameworthiness, without differentiation or exemption, save for the single exception in s. 10(5) of the CDSA. The Crown has not established that less harmful means to achieve Parliament’s objective of combatting the distribution of illicit drugs, whether by narrowing the reach of the law or by providing for judicial discretion in exceptional cases, were not available. Nor has it shown that the impact of the limit on offenders deprived of their rights is proportionate to the good flowing from their inclusion in the law. [Emphasis added.]

In my view, the same reasoning applies to the present Charter application.

[57] In conclusion, the 2 year mandatory minimum sentence enacted in s. 7(2)(b)(v) violates s. 12 of the Charter and is not justified under s. 1. It is, therefore, of no force or effect pursuant to s. 52.

E. SENTENCING IN THIS CASE

[58] Having found that the applicable 2 year and 3 year mandatory minimum sentences are unconstitutional, the only remaining issue is determining a fit and appropriate sentence in this case.

[59] The principles of sentencing are set out in ss. 718, 718.1, and 718.2 of the Criminal Code and in s. 10(1) of the C.D.S.A., and I am bound by those principles. The most fundamental principle is "proportionality," as set out in s. 718.1, namely, that the sentence must be proportionate to "the gravity of the offence and the degree of responsibility of the offender." None of the statutory aggravating circumstances set out in s. 10(2) of the C.D.S.A. apply in this case.

[60] As noted previously, the Crown's position is that 8 months to 2 years less a day was the appropriate range of sentence for a first offender who cannot be proved to have been more than a gardener in a large commercial marijuana grow-op. Given certain aggravating features in this case, the Crown situates Pham at the 18 month to 24 month top end of that range. This was said to be the range prior to the 2012 amendments. Mr. Morlog goes on to submit that the 2012 amendments have increased the maximum sentence from 7 years to 14 years and, as a result, the appropriate sentence has now increased to a range of 2 years to 3 years imprisonment for a case like this.

[61] Ms. Schofield, on behalf of the defence, takes the position that a sentence well outside the normal range should be imposed in this case, in light of certain exceptional mitigating features. She submits that a suspended sentence and probation is the appropriate sentence. In the alternative, she submits that a 90 day intermittent jail sentence and probation should be imposed. The probationary terms should be restrictive, including a curfew, but should also be restorative, focusing on treatment of Pham by a psychiatrist and/or by the Hong Fook Society where counselors speak the Vietnamese language.

[62] In my view, the aggravating circumstances in the present case include the following:

• This was a large sophisticated commercial grow-op where the sole motivation for the operation was profit. The marijuana being grown had very significant value in the illegal market place. The operation had been ongoing for about a year. The case has none of the altruistic, compassionate or non-commercial aspects seen in cases involving medical marijuana;
• There was significant danger to the public as the operation was located in a high-rise apartment building with numerous immediate neighbours. Inside the unit, obviously dangerous open electrical connections were apparent amongst the proliferation of loose wires. In addition, substantial amounts of potentially toxic mold were found on the walls. The case is quite different from small grow-ops in the basement or back yard of a detached home or in the fields or outbuildings of a rural property;
• There was significant damage to property associated with the grow-op. A large pile of soil was on the living room floor, the apartment must have been contaminated by the mold, large amounts of dirt had accumulated, electrical wiring had been modified, and drywall had been cut out in order to install an electrical box and to install venting. There must have been significant costs incurred by the landlord in order to restore the property, once the grow-op was dismantled.

[63] On the other hand, the mitigating circumstances include the following:

• Pham is a first offender with a family of dependents, including two children. She has worked her whole life at a lawful occupation. There is no suggestion that she is a risk to re-offend;
• Pham has undoubtedly suffered as a result of being caught and successfully prosecuted. She is currently diagnosed with depression and post-traumatic stress disorder and she is under the care of a psychiatrist. These disorders apparently did not exist prior to her arrest;
• Pham's role in the operation was admittedly not that of a leader or organizer. She was probably some kind of hired gardener and caretaker. She certainly did not have the means or the sophistication to be running the operation or to own and distribute the large quantities of marijuana. However, I am satisfied that she had an active role in the operation;
• Her case has been delayed through no fault of her own. She has been on bail for some 3½ years, without incident, complying with some restrictive terms such as a curfew. See R. v. Downes, 2006 ONCA 3957, 205 C.C.C. (3d) 488 (Ont. C.A.). The trial judge's illness and the constitutional application have caused 1½ years delay in the sentencing proceedings, subsequent to the jury verdict. I am sure these post-conviction delays have exacerbated Pham's anxiety and have caused her ongoing uncertainty. See: R. v. T.M.B., 2013 ONSC 4019, 299 C.C.C. (3d) 493 at para. 74 (Ont. S.C.J.).

[64] The sentencing case law dealing with large sophisticated commercial marijuana grow-ops, like this one, stresses the fact that this particular kind of crime is rationally planned and premeditated. Significant amounts of time, money, preparation, and planning must have gone into the operation that was set up in unit 1006 at 2755 Jane Street. This is the kind of criminal activity that is particularly amenable to, and that requires, emphasis on the sentencing principles of denunciation and deterrence. In addition, the Court of Appeal has repeatedly stressed the "prevalence" of this offence, and the "serious risks" associated with it, as relevant considerations. See: R. v. Tran, 2005 ONCA 3937, 194 O.A.C. 278 (C.A.); R. v. Ha, 2006 CarswellOnt 9770 (S.C.J.), aff'd 2008 ONCA 749; R. v. Nguyen, 2007 ONCA 645; R. v. Nguyen, 2013 ONCA 51.

[65] I do not agree with the Crown's submission that 18 to 24 months was the appropriate range for a case like the present one, prior to the 2012 amendments. The Crown relies on R. v. Nguyen, supra (the 2007 case) and R. v. Nguyen, supra (the 2013 case), while conceding that the actual sentences imposed in both of these cases were below the Crown's suggested range. In the first of the two Nguyen decisions, the Court of Appeal upheld a 15 month sentence for a female co-accused who went to trial in a case involving a large commercial grow-op, while commenting that the sentence was "somewhat high" but not "outside the range." In the second Nguyen decision, the Court of Appeal imposed an effective sentence of 12 months in a case involving a large commercial grow-op where a 15 month sentence was treated as appropriate but where the accused was entitled to a reduction of about 3 months in mitigation because of an early guilty plea. The only appellate authority supporting an 18 to 24 month range of sentence is R. v. Ha, supra where an 18 month sentence was upheld in a case where the accused was the principal who was in charge of a large commercial grow-op. Even granting some effect to the increased maximum sentence, resulting from the 2012 amendments, the appropriate range of sentence cannot simply be increased in a mechanical fashion by adding a year or more, as if it were a new minimum sentence. In my view, the increased maximum sentence is a legislative signal that the offence is to be treated more seriously.

[66] I also do not agree with the defence submission that a suspended sentence or 90 day intermittent sentence would be appropriate. Conditional custodial sentences, prior to the 2012 amendments, were repeatedly held to be "rare" and were only imposed in cases involving smaller scale grow-ops, where there was less concern about danger to the public, or where some extraordinary personal circumstances existed. See, e.g., R. v. Jacobson, 2006 ONCA 12292, [2006] O.J. No. 1527 (C.A.). The significant aggravating circumstances in this case, in my view, require a custodial sentence beyond the intermittent range. See, e.g., R. v. Vu, [2002] O.J. No. 5361 per Blacklock J.

[67] It is particularly difficult to determine an appropriate length of custodial sentence in this case, given that the aggravating and mitigating circumstances are relatively evenly balanced. The size and sophistication of the operation, the risk to the public, and the role of the accused are similar to the two Nguyen cases where 15 month sentences were held to be appropriate. On the other hand, the mitigating circumstances in the present case justify a shorter sentence. In particular, the delay in sentencing the accused, the lengthy period on bail, and Pham's somewhat fragile mental state lead me to the conclusion that a 10 month custodial sentence would be long enough to achieve the goals of denunciation and deterrence but not so long as to crush her.

[68] The 10 month custodial sentence is to be followed by an 18 month period of probation on the statutory terms, as well as a term requiring psychiatric counseling through the Hong Fook Society, as recommended by Dr. Gojer and Ms. Schofield.

[69] The Crown requests two ancillary orders, both of which are granted: a s. 109 firearms prohibition Order for 10 years, which is mandatory; and a forfeiture Order in relation to the grow-op equipment, which is justified.

[70] I would like to thank all counsel for their assistance in this interesting case.

M.A. Code J.

Released: September 1, 2016