CITATION: R. v. Morrell, 2017 ONSC 5606

COURT FILE NO.: CR-15-4957

DATE: 2017-10-27

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Wendy Houtmeyers, for the Respondent Federal Crown

Respondent

• and -

DALE MORRELL

Brent Hurst, for the Applicant

Applicant

HEARD: September 19, 20, 2017

REASONS FOR JUDGMENT ON SECTION 12 CHARTER APPLICATION

Justice Skarica

OVERVIEW

[1] On December 19, 2016, the accused Dale Morrell pled guilty to a count of producing marijuana, contrary to section 7(1) of the Controlled Drugs and Substances Act (CDSA) and a further count of possessing marijuana in an amount that exceeded three grams, for the purpose of trafficking, contrary to section 5(2) of the CDSA.

[2] The accused admitted to operating a marijuana grow operation in his basement that consisted of 239 plants. The plants consisted of 113 stage one marijuana plants and 126 stage three marijuana plants. The rest of the house was used by the accused, his wife and their children. There was no theft of hydro or a hydro by-pass.

[3] Section 7(2)(b)(iii) of the CDSA prescribes a minimum punishment of one year imprisonment if the number of plants produced is more than 200 and less than 501.

[4] The accused brings a constitutional challenge to the mandatory one-year minimum sentence prescribed by the CDSA arguing that it constitutes cruel and unusual punishment contrary to section 12 of the Charter and that section 1 of the Charter cannot save the unconstitutional provision of a mandatory one-year minimum punishment in these circumstances.

ISSUES

[5] The issues to be determined are threefold:

1. Is the mandatory minimum sentence of one year, as prescribed by section 7(2)(b)(iii) of the CDSA, a grossly disproportionate sentence to the offence and so excessive as to outrage standards of decency and abhorrent or intolerable to society that it represents a cruel and unusual punishment contrary to section 12 of the Charter?

2. If there is a violation of section 12 of the Charter, can the section 7(2)(b)(iii) one-year minimum sentence be saved by section 1 of the Charter?

3. What is the appropriate sentence in the circumstances of this case?

ISSUE #1 – DOES SECTION 7(2)(b)(iii) VIOLATE SECTION 12 OF THE CHARTER?

FACTS

[6] On May 22, 2014, the police, pursuant to a valid search warrant, entered and searched 8 Lorupe Court in Hamilton, the residence of Dale Morrell, his wife and their two children.

[7] In the basement, the police found a marijuana grow operation in two rooms that consisted of 239 plants. The rooms contained 113 stage one marijuana plants and 126 stage three marijuana plants. The rest of the house was used by the applicant, his wife and their children as their residence. There was no theft or hydro bypass.

[8] The accused has no record. He operates a courier business called Dale’s Cartage. The business nets some $35,000 per year. In his filed affidavit, the accused indicates that his wife’s income is minimal and that if he goes to jail for one year, the business will fail and there will be no income for his family. Their house will have to be sold and the accused will not be able to pay his child support from a previous relationship. In addition, others may lose their employment if the accused’s business fails. The accused was not cross-examined on his affidavit and the statements in the affidavit go unchallenged.

LAW ON SECTION 12 OF THE CHARTER – CRUEL AND UNUSUAL PUNISHMENT

[9] In R. v. O’Neil Harriott, 2017 ONSC 3393, I dealt with a similar constitutional application and I set out the road map that I must follow as dictated by the various appellate courts, at paras. 27-31:

[27] Section 12 of the Canadian Charter of Rights and Freedoms indicates, “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”

[28] A sentence will be cruel and unusual only if it is grossly disproportionate in the context of the offence, and the offender, having regard to a number of sentencing-related factors. This test sets a high bar and is aimed at punishments that are more than merely excessive. Justice McLachlin in the leading case of R. v. Nur, 2015 SCC 15, defines the test as follows, at para. 39:

[39] This Court has set a high bar for what constitutes "cruel and unusual ... punishment" under s. 12 of the Charter. A sentence attacked on this ground must be grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender: R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, at p. 1073. Lamer J. (as he then was) explained at p. 1072 that the test of gross disproportionality "is aimed at punishments that are more than merely excessive". He added, "[w]e should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation". A prescribed sentence may be grossly disproportionate as applied to the offender before the court or because it would have a grossly disproportionate impact on others, rendering the law unconstitutional.

[29] Pursuant to Nur [SCC] at para. 46, a challenge to a mandatory minimum sentence on the ground that it constitutes cruel and unusual punishment under section 12 of the Charter involves two steps:

1. The court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code. The court may consider not only the offender’s situation but consider other reasonably foreseeable situations where the impugned law may apply. The focus must be on “reasonable hypothetical circumstances as opposed to far-fetched or marginally imaginable cases.” See Nur [SCC] at paras. 46, 54, 58, 65, 77.

2. Then the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence. If the answer is yes, the mandatory minimum provision is inconsistent with section 12 and will fall unless justified under section 1. See Nur [SCC] at para. 46.

STEP 1 – DETERMINATION OF A PROPORTIONATE SENTENCE

[30] In determining the appropriate sentence, Justice McLachlin in Nur [SCC] outlines the factors to be considered at paras. 40-46:

[40] In determining an appropriate sentence for purposes of the comparison demanded by this analysis, regard must be had to the sentencing objectives in s. 718 of the Criminal Code, which instructs the sentencing judge as follows:

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

(a) to denounce unlawful conduct;

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

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[41] The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listed in s. 718.2(a)(i) to (iv); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2 (c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)).

[42] In reconciling these different goals, the fundamental principle of sentencing under s. 718.1 of the Criminal Code is that "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

[43] It is no surprise, in view of the constraints on sentencing, that imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 80. "Only if this is so can the public be satisfied that the offender 'deserved' the punishment he received and feel a confidence in the fairness and rationality of the system" (Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at p. 533, per Wilson J.). As LeBel J. explained in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433:

• Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system... . Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other. [para. 37]

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

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

[46] To recap, a challenge to a mandatory minimum sentencing provision on the ground it constitutes cruel and unusual punishment under s. 12 of the Charter involves two steps. First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code. Then, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence. If the answer is yes, the mandatory minimum provision is inconsistent with s. 12 and will fall unless justified under s. 1 of the Charter.

STEP 2 – GROSS DISPROPORTIONALITY ANALYSIS - FACTORS

[31] Justice Doherty in R. v. Nur, 2013 ONCA 677, aff’d 2015 SCC 15, outlines the factors that underline the gross disproportionality analysis at paras. 78, 79:

[78] A number of factors may inform the gross disproportionality analysis, both as it applies to the particular accused and to reasonable hypotheticals: see Smith, at p. 1073; Goltz, at paras. 25-27; and Morrisey, at paras. 27-28. The factors identified in the case law are:

• the gravity of the offence;

• the personal characteristics of the offender;

• the particular circumstances of the case;

• the actual effect of the punishment on the individual;

• the penological goals and sentencing principles reflected in the challenged minimum;

• the existence of valid effective alternatives to the mandatory minimum; and

• a comparison of punishments imposed for other similar crimes.

[79] There is no formula to be applied in weighing and assessing the various factors in any given case: R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3, at para. 75. Several of the factors are self-explanatory; however, the gravity of the offence, the actual effect of the punishment on the individual, and the impact of penological goals and sentencing principles require further comment.

[10] In R. v. Lloyd, 2016 SCC 13, McLachlin C.J. summarized the analytical framework as follows, at paras. 22-37:

(1) Does the Law Violate Section 12 of the Charter?

[22] The analytical framework to determine whether a sentence constitutes a “cruel and unusual” punishment under s. 12 of the Charter was recently clarified by this Court in Nur. A sentence will infringe s. 12 if it is “grossly disproportionate” to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender: Nur, at para. 39; R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, at p. 1073. A law will violate s. 12 if it imposes a grossly disproportionate sentence on the individual before the court, or if the law’s reasonably foreseeable applications will impose grossly disproportionate sentences on others: Nur, at para. 77.

[23] A challenge to a mandatory minimum sentencing provision under s. 12 of the Charter involves two steps: Nur, at para. 46. First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code. The court need not fix the sentence or sentencing range at a specific point, particularly for a reasonable hypothetical case framed at a high level of generality. But the court should consider, even implicitly, the rough scale of the appropriate sentence. Second, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the offence and its circumstances: Smith, at p. 1073; R. v. Goltz, 1991 CanLII 51 (SCC), [1991] 3 S.C.R. 485, at p. 498; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at paras. 26-29; R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at pp. 337-38. In the past, this Court has referred to proportionality as the relationship between the sentence to be imposed and the sentence that is fit and proportionate: see e.g. Nur, at para. 46; Smith, at pp. 1072-73. The question, put simply, is this: In view of the fit and proportionate sentence, is the mandatory minimum sentence grossly disproportionate to the offence and its circumstances? If so, the provision violates s. 12.

[24] This Court has established a high bar for finding that a sentence represents a cruel and unusual punishment. To be “grossly disproportionate” a sentence must be more than merely excessive. It must be “so excessive as to outrage standards of decency” and “abhorrent or intolerable” to society: Smith, at p. 1072, citing Miller v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. 680, at p. 688; Morrisey, at para. 26; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 14. The wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate.

[25] This brings us to the law challenged in this case. Mr. Lloyd concedes that the one-year minimum jail term is not a sentence that is grossly disproportionate as applied to him but only in relation to reasonably foreseeable applications of the law to others. The question before us is therefore: Could a one-year sentence of imprisonment be grossly disproportionate to the offence of possession for the purpose of trafficking a Schedule I substance in reasonably foreseeable cases?

[26] On its face, a one-year sentence for an offender with a prior conviction for a drug offence who is convicted for trafficking or possession for the purpose of trafficking in a Schedule I drug, such as cocaine, heroin or methamphetamine, may not seem excessive. Schedule I drugs are highly addictive and inflict great harm on individuals and society. Trafficking in these drugs is rightly considered a serious offence: see R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] 2 S.C.R. 825, at para. 6, per L’Heureux-Dubé J.; Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 778 (SCC), [1998] 1 S.C.R. 982, at para. 80, per Cory J. (dissenting on another issue).

[27] The problem with the mandatory minimum sentence provision in this case is that it “casts its net over a wide range of potential conduct”: Nur, at para. 82. As a result, it catches not only the serious drug trafficking that is its proper aim, but conduct that is much less blameworthy. This renders it constitutionally vulnerable.

[28] Three features of the law make it applicable in a large number of situations, varying greatly in an offender’s blameworthiness.

[29] First, it applies to any amount of Schedule I substances. As such, it applies indiscriminately to professional drug dealers who sell dangerous substances for profit and to drug addicts who possess small quantities of drugs that they intend to share with a friend, a spouse, or other addicts.

[30] Second, the definition of “traffic” in the CDSA captures a very broad range of conduct. It targets not only people selling drugs, but all who “administer, give, transfer, transport, send or deliver the substance” (s. 2(1)), irrespective of the reason for doing so and regardless of the intent to make a profit. As such, it would catch someone who gives a small amount of a drug to a friend, or someone who is only trafficking to support his own habit.

[31] Third, the minimum sentence applies when there is a prior conviction for any “designated substance offence” within the previous 10 years, which captures any of the offences in ss. 4 to 10 of the CDSA, except the offence of simple possession. In addition, the prior conviction can be for any substance, in any amount — even, for example, a small amount of marihuana.

[32] At one end of the range of conduct caught by the mandatory minimum sentence provision stands a professional drug dealer who engages in the business of dangerous drugs for profit, who is in possession of a large amount of Schedule I substances, and who has been convicted many times for similar offences. At the other end of the range stands the addict who is charged for sharing a small amount of a Schedule I drug with a friend or spouse, and finds herself sentenced to a year in prison because of a single conviction for sharing marihuana in a social occasion nine years before. I agree with the provincial court judge that most Canadians would be shocked to find that such a person could be sent to prison for one year.

[33] Another foreseeable situation caught by the law is the following. A drug addict with a prior conviction for trafficking is convicted of a second offence. In both cases, he was only trafficking in order to support his own addiction. Between conviction and the sentencing he goes to a rehabilitation centre and conquers his addiction. He comes to the sentencing court asking for a short sentence that will allow him to resume a healthy and productive life. Under the law the judge has no choice but to sentence him to a year in prison. Such a sentence would also be grossly disproportionate to what is fit in the circumstances and would shock the conscience of Canadians.

[34] It is argued that the exception to the mandatory minimum sentence provisions at issue in this case cures its constitutional infirmity. The law does not require the court to impose the one-year minimum jail term if, prior to the imposition of sentence, the offender successfully completes an approved drug treatment court program or a treatment program under s. 720(2) of the Criminal Code: s. 10(5) of the CDSA. This exception is a step in the right direction. However, it is too narrow to cure the constitutional infirmity. First, it is confined to particular programs, which a particular offender may or may not be able to access. At the time of Mr. Lloyd’s sentencing, there was only one approved drug treatment program in Vancouver. Second, to be admissible to these programs, the offender must usually plead guilty and forfeit his right to a trial. One constitutional deprivation cannot cure another. Third, the requirement that the offender successfully complete the program may not be realistic for heavily addicted offenders whose conduct does not merit a year in jail. Finally, in most programs, the Crown has the discretion to disqualify an applicant. As stated in Nur, exemptions from minimum sentences based on Crown discretion provide only “illusory” protection against grossly disproportionate punishment (para. 94).

[35] As I have already said, in light of Nur, the reality is this: mandatory minimum sentences that, as here, apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are vulnerable to constitutional challenge. This is because such laws will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional. If Parliament hopes to sustain mandatory minimum penalties for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit the mandatory minimum sentences.

[36] Another solution would be for Parliament to build a safety valve that would allow judges to exempt outliers for whom the mandatory minimum will constitute cruel and unusual punishment. Residual judicial discretion for exceptional cases is a technique widely used to avoid injustice and constitutional infirmity in other countries: Department of Justice Canada, Research and Statistics Division, Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models (2005) (online), at pp. 1, 4 and 35. It allows the legislature to impose severe sentences for offences deemed abhorrent, while avoiding unconstitutionally disproportionate sentences in exceptional cases. The residual judicial discretion is usually confined to exceptional cases and may require the judge to give reasons justifying departing from the mandatory minimum sentence prescribed by the law. It is for the legislature to determine the parameters of the residual judicial discretion. The laws of other countries reveal a variety of approaches: Criminal Law Amendment Act, 1997 (S. Afr.), No. 105 of 1997, s. 51(3)(a); Firearms Act 1968 (U.K.), 1968, c. 27, s. 51A(2); Violent Crime Reduction Act 2006 (U.K.), 2006, c. 38, s. 29(4); Powers of Criminal Courts (Sentencing) Act 2000 (U.K.), 2000, c. 6, ss. 109(3), 110(2) and 111(2); Sentencing Act (N.T.), s. 78DI; Sentencing Act 1991 (Vic.), s. 10(1); Sentencing Act 2002 (N.Z.), ss. 86E, 102 and 103; Criminal Law (Sentencing) Act 1988 (S.A.), s. 17; 18 U.S.C. § 3553(f) (2012); Penal Code [Brottsbalken] (Swed.), c. 29, s. 5. There is no precise formula and only one requirement — that the residual discretion allow for a lesser sentence where application of the mandatory minimum would result in a sentence that is grossly disproportionate to what is fit and appropriate and would constitute cruel and unusual punishment.

[37] I conclude that the challenged mandatory minimum sentence of one year of imprisonment violates s. 12 of the Charter.

STAGE 1 – APPROPRIATE SENTENCE – THE PARTICULARIZED INQUIRY REGARDING THE ACCUSED MORELL

[11] The accused has no criminal record. He is 46 years of age and operates a business. He supports his wife and three children, ranging from ages 1 to 7, at a modest income. He pays child support for his 18-year-old son from a previous relationship. His wife’s income is marginal and the accused is basically the main financial contributor to the family unit.

[12] The accused operated a grow operation in the basement of the family home that consisted of 239 marijuana plants.

[13] Sentences imposed for other or similar crimes in the same jurisdiction may be considered in determining whether a sentence constitutes cruel and unusual punishment as against the specific offender being sentenced: see R. v. Tran (Trung), 2017 ONSC 651, at para. 38.

[14] The respondent Crown has prepared an Appendix B, to its factum, which outlines that the appropriate sentence for this offence is in a range of 90 days intermittent jail to 12 months jail.

[15] In R. v. Tran (Dac Dung), [2005] O.J. No. 607 (C.A.), the accused operated a residential grow operation that involved 160 plants and theft of electricity. The accused was sentenced to 90 days intermittent and two years’ probation.

[16] In R. v. Nguyen (Van Guip), [2005] O.J. No. 3382 (C.A.), the accused had no criminal record. The grow operation involved 222 plants, but the accused was not the principal in the grow operation. The Court of Appeal dismissed the appeal of a 12-month jail term but did indicate that “this was a relatively heavy sentence given the case law.”

[17] In R. v. Heeralal, 2009 ONCA 303, the grow operation involved 236 marijuana plants. The accused had no criminal record and was the indirect owner of the residence where the grow operation was located. The accused’s appeal of a 12-month sentence was dismissed.

[18] In my opinion, given the cases outlined above along with other authorities referred to by counsel, the range of sentence for the accused Mr. Morrell, with no criminal record, operating a residential marijuana grow operation consisting of 239 plants, is in the range of 90 days to 12 months.

[19] The next question then is: is the one-year minimum sentence a grossly disproportionate sentence on the individual before the court?: see R. v. Nur, 2015 SCC 15, at paras. 46 and 77. To be grossly disproportionate, a sentence must be more than merely excessive; it must be “so excessive as to outrage standards of decency” and be “abhorrent or intolerable” to society: see Lloyd, at para. 24.

[20] Counsel for the accused applicant conceded that, while imposing a one-year sentence on Mr. Morrell would be excessive, it is not so excessive as to meet the grossly disproportionate tests set out in Nur (SCC) and Lloyd. I agree with this submission.

[21] Accordingly, the applicant has failed on the first stage of the section 12 inquiry, i.e. the mandatory minimum of one year does not result in a sentence that is grossly disproportionate to the individual before the court. I am now required to go on to the second question: will the provision’s reasonably foreseeable application impose grossly disproportionate sentences on other accused persons? Remote or far-fetched examples are not part of the inquiry. However, examples gleaned from real-life conduct in reported cases can be considered: see Nur (SCC), at paras. 65-81.

STAGE 2 – APPROPRIATE SENTENCE – REASONABLE HYPOTHETICALS

[22] In Canadian law, there is no absolute prohibition against producing drugs enumerated in Schedules I to V in the CDSA. Section 7(1) of the CDSA indicates, “except as authorized under the regulations, no person shall produce a substance included in Schedule I, II, III, IV or V” (emphasis added).

REASONABLE HYPOTHETICAL #1 – HONEST MISTAKE IN LAW

[23] Persons who are properly licensed or authorized may accordingly produce marijuana. This produces a reasonable hypothetical that a person licensed to produce marijuana may make an honest mistake as to the conditions of his or her authorization or licence or may make an honest mistake as to the meaning, scope or application of a regulation. Code J. indicates that in these circumstances, the accused has made a mistake in law and would be guilty of a section 7 CDSA production offence, but the accused’s moral blameworthiness would be reduced: see R. v. Pham, 2016 ONSC 5312, at para. 42.

[24] Code J. thoroughly reviewed the licensing cases in Pham and I adopt his reasoning as outlined, at paras. 36-42 and 46-47 of Pham:

[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), 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."

[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), 1980 CanLII 8 (SCC), 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.

[25] The Zheng case, reported at 2015 ONCJ 30, provides a striking example of the unfairness of the minimum sentence provisions enumerated in section 7 of the CDSA. In the Zheng case, the cultivation of some marijuana plants was authorized by Health Canada. Four licences had been issued and were located on the premises. Two had expired and the other two only authorized the production of 30 plants. The accused Zheng was an employee at the site and his responsibility was limited to security monitoring and cleaning. Zheng was not the owner or lessor of the site and was not named in the licences. On March 12, 2012, there was a break in at the premises of the grow operation and the accused phoned the police. The accused Zheng testified that he believed that the production of the marijuana plants was authorized by valid licences. The reality was that there were a total of 1,507 marijuana plants seized but only 30 plants were authorized. The trial judge, at para. 58, held that “there is a realistic basis to conclude that the defendant’s conviction in his immunity from criminal exposure, however mistaken, was honestly held.” The trial judge held that the accused made a mistake in law and convicted the accused of production of marijuana and possession of marijuana for the purpose of trafficking.

[26] Code J. in Pham, at para. 37, indicated that the Zheng case took place before the mandatory minimums in section 7 of the CDSA came into force. Green J. sentenced Zheng to a conditional discharge, given the mitigating effect of the mistake of law, his minor role in the offence and his status as a youthful first offender with dependents. Code J. indicated that in Zheng’s case, a mandatory two-year minimum sentence would have been “grossly disproportionate.” See paras. 41-42 of Pham.

[27] Code J. also referred to the Jiang case, reported at [2015] O.J. No. 7077 (C.J.), where licences were exceeded in a sophisticated grow operation involving over 2000 plants. The accused was an unsophisticated 46-year-old first offender who spoke little English, worked at menial jobs and had raised two children. He received a suspended sentence and probation. Code J. indicated that in that case, as well, a two-year minimum sentence was “grossly disproportionate”: see Pham, at paras. 41-42.

[28] Would the result in Pham have been any different had the accused Zheng and Jiang been convicted in the same circumstances but the amounts involved had been “only” 239 plants? That is a reasonable hypothetical that would have subjected Zheng and Jiang to a minimum of one year under the current section 7(2)(b)(iii) as opposed to two years for the higher plant amounts actually found in the Zheng and Jiang grow operations. (Section 7(2)(b)(v) of the CDSA provides for a two-year minimum for growing more than 500 plants.)

[29] In my opinion, where the accused person has no criminal record, has a minor role in the offence, has made an honest mistake in law with minimal moral blameworthiness and the circumstances would normally entitle that accused to a non-custodial sentence, it can be fairly said that a one-year minimum jail sentence is “grossly disproportionate” and would be “abhorrent and intolerable” to society: see Lloyd, at paras. 22-24.

[30] Accordingly, I find, in the circumstances outlined in reasonable hypothetical #1 described above, that a one-year minimum sentence would violate section 12 of the Charter.

REASONABLE HYPOTHETICAL #2 – PLANTS OVER THE LICENCE LIMIT

[31] In R. v. Vu, 2015 ONSC 5834 (Vu #1), Durno J. held that the six-month minimum provision in section 7 of the CDSA for production of 6 to 200 plants for the purpose of trafficking contravened section 12 of the Charter and was unconstitutional.

[32] Durno J. held, at paras. 231-232 of Vu #1:

[231] 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.

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

[33] If a producer unintentionally has more plants than authorized, it would appear that is a mistake of fact for which there would be no conviction: see R. v. Johnson, 2016 ONCA 654, at para. 5, and R. v. Boulton, 2016 ONSC 2979, at paras. 24-26. (I must confess I have some difficulty in reconciling the Johnson “mistake of fact” defence regarding the accused’s belief in his boss having a licence and the Supreme Court of Canada’s “mistake of law” decisions as outlined by Code J. in Pham.) Further, section 7 of the CDSA, in the 6 to 200 plant scenario, requires that the Crown must prove the production is for the purpose of trafficking.

[34] If the producer deliberately has more plants than authorized, there can be no mistake of fact defence. Durno J. indicates that a grower could “push the envelope” by producing more plants than authorized. Durno J. indicates that a producer could mistakenly grow in the area of 10 to 30 plants more than authorized: see Vu #1, at paras. 231-232.

[35] What if the license allowed for 5,000 plants? This would not be unreasonable if the producer is a large-scale commercial operator. Durno J. indicates at, para. 208 of Vu #1, that “there is no dispute that the maximum number of plants under the MMAR can exceed 500.”

[36] If it is reasonable for a producer of 500 plants to have an overage of 25 plants (25 being in the 10 to 30 plant range), then it is reasonable for a 5,000 plant producer to have a 250 plant overage. These overages would be 5 per cent of the authorized and permissible total of plants. The Crown would not have to prove any trafficking intent for a 250 plant overage in the 5,000 plant licence scenario. The producer could have the extra plants for research purposes or on standby to replace damaged or dying plants. Assuming the Crown could prove a deliberate intent to produce this small percentage of overage, a conviction would result and the producer would receive a one-year minimum jail sentence.

[37] Accordingly, a licensed 5,000 plant producer having 5,000 plants would operate within the law but a similarly licensed producer “pushing the envelope” by producing 5,250 plants would receive a minimum one-year jail sentence, even if there was no trafficking intent.

[38] In this reasonable hypothetical, the one-year sentence would be grossly disproportionate to the circumstances of the offender and offence.

REASONABLE HYPOTHETICAL #3 – FAMILY MEMBERS AND FRIENDS

[39] Mr. Morrell lived in his home with his wife and three young children plus he has an 18-year-old son from another relationship. It is reasonable to assume that producers such as Mr. Morrell could ask or even pressure family members to assist in the production in some limited way.

[40] For example, a producer could ask his wife or children to assist in moving dirt for the production on a one-time basis. Assuming that the wife and children were aware of the grow operation, all it would take to convict them would be a single act or very few acts of assistance and they would then be subject to the one-year minimum in a factual scenario of a grow operation involving 239 plants: see Tran (Trung), at paras. 114-115.

[41] I agree with the following comments made by Schultes J. in R. v. McGee, 2016 BCSC 2175, at paras. 127-129:

[127] As can be seen from the excerpt above, Warren J. had before her previous decisions and foreseeable scenarios in which the involvement of the party tracked that ongoing process of carrying on the grow operation, making it difficult to draw meaningful enough distinctions between those parties and the principals to view the minimum as being grossly disproportionate. But the parties provisions do not require that sort of ongoing assistance. Using the simplest example, of aiding, and focusing on the more likely situation of acts, rather than omissions, the parties provision (s. 21(b) of the Criminal Code) includes anyone who: "does ... anything for the purpose of aiding any person to commit [the offence]".

[128] There is no temporal requirement. It could be a single act or very few acts. All that is needed is the intention to assist, coupled with doing anything that does assist. It is not hard to conceive of brief, intentional acts of assistance that would arise within an ongoing grow operation: delivering a tray of seedlings or a bottle of nutrients, briefly assisting a friend who acts as the ongoing caretaker or gardener, pitching in on the day that the product is cut down, or as Cpl. Forbes envisioned in relation to this specific case, forming part of the bucket brigade to bring dirt into the crawl space. In each of these cases a relatively minor and time-limited act of assistance would attract a two-year sentence, with the only remedy being prosecutorial discretion, which as I have said will not suffice.

[129] I conclude, therefore, that these are reasonably foreseeable examples of s. 7(2)(b)(v) having a grossly disproportionate effect on others and that it violates s. 12 with respect to them.

[42] In my opinion, a single act of assistance by family members or friends, which could come from pressure by the producer (assuming that it falls short of the duress defence as outlined in R. v. Ryan, 2013 SCC 3), could render those individuals liable to a minimum one-year penalty despite their potential low level of participation, negligible moral blameworthiness and lack of criminal antecedents. This would result in a grossly disproportionate sentence on those individuals.

[43] As indicated in Lloyd, at para. 24, the wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate.

[44] Again, given reasonable hypothetical #3, I find that section 7(2)(b)(iii) violates section 12 of the Charter.

EFFECT OF OTHER RULINGS

[45] The Crown submits that no court has found section 7(2)(b)(iii) unconstitutional. The Crown relies on Vu #1; R. v. Vu, 2015 ONSC 7965 (Vu #2); R. v. Li, 2016 ONSC 1757 and a variety of British Columbia Superior Court decisions.

[46] Code J. in Pham dealt with the three Ontario decisions listed above, holding, at paras. 51-54:

[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:

[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), 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.

[47] Accordingly, the principles of stare decisis do not prohibit me from making a ruling that section 7(2)(b)(iii) violates section 12 of the Charter. However, the principles of stare decisis do indicate that I should follow the rulings of my brother/sister judges when those decisions are well considered and persuasive and there are no cogent reasons to depart from those decisions: see R. v. Barreira, 2017 ONSC 2478, at paras. 22-24. In this ruling, I have adopted the very persuasive and considered reasons of Code, Goodman and Durno JJ. in Pham, Tran and Vu #1 respectively. Meaning no disrespect, I accordingly do not need to further consider the decisions of other courts, which are not binding on me in any event.

ISSUE #1 – CONCLUSION – DOES SECTION 7(2)(b)(iii) VIOLATE SECTION 12 OF THE CHARTER?

[48] For the reasons outlined above, I find that the minimum mandatory punishment of one year, as prescribed by section 7(2)(b)(iii) of the CDSA constitutes cruel and unusual punishment that violates section 12 of the Charter.

ISSUE #2 – IS THE VIOLATION OF SECTION 12 SAVED BY SECTION 1 OF THE CHARTER?

[49] The comments made by the Supreme Court of Canada in Lloyd, at paras. 48-50 equally apply to the section 12 violation by section 7(2)(b)(iii) of the CDSA:

(3) Is the Violation of Section 12 Saved by Section 1 of the Charter?

[48] In my view, the Crown has not made the case that the challenged law’s imposition of grossly disproportionate punishment on some people is justified by an overarching objective. It is therefore not a reasonable limit on the s. 12 right.

[49] Parliament’s objective — to combat the distribution of illicit drugs — is unquestionably an important objective: R. v. Oakes, 1986 CanLII 46 (SCC), [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.

[50] I conclude that the violation of the s. 12 right is not justified under s. 1 of the Charter.

[50] Doherty J.A. in R. v. Nur, 2013 ONCA 677, suggests that section 1 cannot shelter a cruel and unusual punishment. Doherty J.A. indicates, at paras. 177-181:

(vi) The Application of Section 1 to the Section 12 Breach

[177] All rights and freedoms guaranteed by the Charter are subject to the limitation in s. 1:

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

[178] The format of the s. 1 analysis is well known: e.g. see Smickle (reasons of Molloy J.), at paras. 97-123. I do not propose to go through the steps of that analysis. Given the very high bar set for a finding that a sentence constitutes cruel and unusual punishment, I find it very difficult to imagine how a sentence that clears that high bar could ever qualify as a reasonable limit demonstrably justified in a free and democratic society.

[179] In essence, s. 1 permits what would otherwise be infringements of individual constitutional rights where the societal benefits flowing from the state action that infringes individual rights can “demonstrably” justify that infringement. In my view, the basic quid pro quo underlying s. 1 does not exist where the state imposes punishment that is “so excessive as to outrage standards of decency” and so disproportionate as to be “abhorrent or intolerable” to Canadians: Ferguson, at para. 14. What possible societal benefit could render such punishment “demonstrably justified in a free and democratic society?”

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

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

ISSUE #2 – CONCLUSION – IS THE VIOLATION OF SECTION 12 SAVED BY SECTION 1 OF THE CHARTER?

[51] Accordingly, I declare that section 7(2)(b)(iii) of the CDSA cannot be saved by section 1 of the Charter and I declare section 7(2)(b)(iii) to be of no force and effect pursuant to section 52 of the Constitution Act, 1982.

ISSUE #3 – CONCLUSION – APPROPRIATE SENTENCE IN THE CIRCUMSTANCES OF THIS CASE

[52] The accused Dale Morrell will be sentenced according to the usual considerations set out in section 718 of the Criminal Code and the relevant case law. The mandatory minimum sentence of one year set out in section 7(2)(b)(iii) of the CDSA will not be applied to the accused in determining a fit and proper sentence. I will hear further submissions as to the appropriate sentence for Mr. Morrell when this matter returns on the scheduled sentencing date.

Justice Skarica

Released: October 27, 2017

CITATION: R. v. Morrell, 2017 ONSC 5606

COURT FILE NO.: CR-15-4957

DATE: 2017-10-27

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and -

DALE MORRELL

Applicant

REASONS FOR JUDGMENT ON SECTION 12 CHARTER APPLICATION

Justice Skarica

Released: October 27, 2017