CITATION: R. v. Ling, 2017 ONSC 5627

BARRIE COURT FILE NO.: CR-16-029

DATE: 20170922

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

JIAN LING and ZHANGJIANG FAN

Applicants

M. Gaspar, for the Crown

B.M. Micner, for the Applicant, Jian Ling

D.S. Sederoff, for the Applicant, Zhangjiang Fan

HEARD: August 17, 2017

RULING ON CONSTITUTIONAL CHALLENGE TO SECTION 7(2)(b)(v) OF THE CONTROLLED DRUGS AND SUBSTANCES ACT

QUINLAN J.:

Overview

[1] Jian Ling and Zhangjiang Fan (the “Applicants”) apply for an order that the mandatory minimum sentencing provision set out in s. 7(2)(b)(v) of the Controlled Drugs and Substances Act (CDSA) contravenes ss. 7 and 12 of the Charter of Rights and Freedoms (Charter). They ask that it be declared unconstitutional and of no force or effect, pursuant to s. 52 of the Constitution Act, 1982.

[2] The Applicants were convicted after trial of possession of marihuana, possession of marihuana for the purpose of trafficking, and production of marihuana. The grow operation—involving 1025 marihuana plants—was set up on farm property owned by Mr. Fan. Mr. Ling was a “gardener”: an employee merely planting and caring for the marihuana crops, and not the enterprise’s controlling mind, owner, or profit-sharer.

[3] Under recent CDSA amendments, anyone engaged in the production of over 500 marihuana plants is subject to a mandatory minimum two-year jail sentence, per s. 7(2)(b)(v). The Applicants argue that this mandatory minimum term is grossly disproportionate as applied to them and to other offenders.

[4] For the reasons set out below, the application is granted. I find that the mandatory minimum sentencing provision set out in s. 7(2)(b)(v) of the CDSA contravenes s. 12 of the Charter. It is not justified under s. 1. It is therefore of no force or effect pursuant to s. 52 of the Constitution Act.

Circumstances of the Offence

[5] A police investigation began after an officer in the area detected a strong odour of fresh marihuana emanating from Mr. Fan’s farm property. The officer saw marihuana plants growing out of the top and side portions of greenhouses on the property. Police confirmed that both the property and its owner were never issued licences, and subsequently obtained a search warrant. While executing the search warrant, police seized 1025 marihuana plants from 25 of 40 greenhouse frames on the property. The plants ranged in height from six to thirteen feet. In the residence and outbuildings, police found dried marihuana and drug paraphernalia.

[6] The quantity of marihuana seized was consistent with a high-level cannabis marihuana trafficker and the operation was typical of a commercial grow operation. The total estimated value of the seized plants ranged from $6.6 to $15.375 million. These plants were larger than the “typical” marihuana plant and thus capable of producing much more marihuana bud per plant, with a potential yield of 5125 pounds. A moderate user would take over 2000 years to use that amount of marihuana.

[7] On the evidence, I was satisfied that the Applicants produced and possessed marihuana for the purpose of trafficking without authorization. Both Applicants knew that marihuana is illegal to grow or possess without authorization. They relied on several documents—including Health Canada licences and lawyer-stamped statutory declarations from some of the licences’ holders—purporting to transfer the authorized production sites to Mr. Fan’s address. The licences posted in the greenhouses permitted production of 634 plants grown indoors; along with other licences produced by Mr. Fan during his testimony, production of slightly more than the marihuana seized would have been permitted at the authorized production sites. None of the licences, however, authorized the Applicants to produce or store marihuana at the farm property through an outdoor grow operation. I found that, even if I accepted that they had an honest belief in the lawfulness of their actions, any belief the Applicants may have held was rooted in a mistake of law and would not absolve them of liability.

The Law

Section 7(2)(b)(v) of the CDSA

[8] Section 7(2)(b)(v) is part of the broader sentencing regime introduced by the Safe Streets and Communities Act, S.C. 2012, c.1, ss. 39-46. The Parliamentary Secretary to the Minister of Justice explained the rationale for the amendments to the CDSA sentencing regime as “propos[ing] targeted, mandatory minimum sentences for serious drug crimes…[to] clearly send the message that Canadians find this type of criminal behaviour unacceptable”.

[9] An offender who committed a production offence engaging this section has committed a serious indictable offence punishable by up to 14 years imprisonment. This section targets large-scale commercial marihuana production. As noted, the Applicants face the mandatory minimum sentence for the production of over 500 marihuana plants: two years imprisonment.

Section 12 of the Charter

[10] Section 12 grants all Canadians the right not to be subjected to any cruel and unusual punishment. A section 12 challenge to a mandatory minimum sentencing provision involves two steps. First, the court determines what constitutes a proportionate sentence for the offence; in so doing, it considers traditional sentencing principles and objectives, independent of the mandatory minimum sentence. Second, the court compares that sentence to the mandated mandatory minimum and decides if imposing the mandatory minimum is grossly disproportionate to the fit and proportionate one.

[11] If the second step establishes that the mandatory minimum sentence is grossly disproportionate for the offender being sentenced, it violates s. 12.

[12] Even if the mandatory minimum is not grossly disproportionate, however, the sentencing judge must continue by considering if the mandatory minimum sentence would be grossly disproportionate for a reasonably foreseeable hypothetical offender: R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773 at paras. 38, 46 and 77. See also R. v. Vu, 2015 ONSC 5834, [2015] O.J. No. 5278 at para. 52.

[13] If the mandatory minimum sentence is found to be grossly disproportionate for either the specific offender or a reasonably foreseeable hypothetical offender, the judge must determine if the infringement is justified under s. 1 of the Charter.

Gross Disproportionality

[14] In Nur (S.C.C.), at para. 39, the Supreme Court stated:

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…. [T]he test of gross disproportionality “is aimed at punishments that are more than merely excessive”.

[15] As the Supreme Court outlined in R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045 (S.C.C.), at p. 1072: “[t]he criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter is … ‘whether the punishment prescribed is so excessive as to outrage standards of decency’.” Only on rare and unique occasions will a sentence be so grossly disproportionate that it violates s. 12: Steele v. Mountain Institution, 1990 CanLII 50 (SCC), [1990] 2 S.C.R. 1385 (S.C.C.), at p. 1417.

Reasonable Foreseeability

[16] The “reasonable foreseeability” test asks what situations may reasonably arise, not whether they are likely to arise in the day-to-day application of the law. This second step of the s. 12 analysis must be based on “imaginable circumstances which could commonly arise in day-to-day life”: R. v. Goltz, 1991 CanLII 51 (SCC), [1991] 3 S.C.R. 485 (S.C.C.), at p. 516.

[17] The focus must be on “reasonable hypothetical circumstances”, as opposed to “far-fetched or marginally imaginable cases.” As explained in Nur (S.C.C.), at para. 57:

The question is simply whether it is reasonably foreseeable that the mandatory minimum sentence will impose sentences that are grossly disproportionate to some peoples’ situations, resulting in a violation of s. 12.

Such an inquiry must be grounded in common sense and experience, only excluding remote or far-fetched situations. The inquiry may consider personal characteristics, but should avoid using them to construct the most innocent and sympathetic case imaginable: Nur (S.C.C.), at paras. 73-76.

The Interaction between Parliament and the Courts

[18] While judges are responsible for determining whether a particular punishment exceeds the constitutional limits set by the Charter, the Supreme Court cautioned in Smith at para. 80, adopting Borins J.’s statement in R. v. Guiller, Ont. Dist. Ct., Sept. 23, 1985, unreported, at p. 15):

It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed … the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency. [Emphasis added.]

[19] More recently, however, the Supreme Court decided the constitutionality of mandatory minimum sentences under a CDSA provision. Despite the warnings in Smith, McLachlin C.J., writing for the majority, alerted judges to the Court’s concern that the duty to apply a mandatory minimum sentence may conflict with the duty to impose a Charter-compliant sentence: R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 1.

[20] In Lloyd, the Supreme Court recognized that:

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 (para. 24).

[21] If a mandatory minimum sentence “appl[ies] to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people”, it is “vulnerable to constitutional challenge… because such laws will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional” (Lloyd, at para. 35).

Does Section 7(2)(b)(v) of the CDSA Contravene Section 12 of the Charter?

Stage 1: The Particularized Inquiry

[22] The first stage of the analysis asks if a two-year sentence of imprisonment is grossly disproportionate given the circumstances of this offence and these particular offenders. The Ontario Court of Appeal in R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, aff’d Nur (S.C.C.), identified several factors from case law that may inform the gross disproportionality analysis, both as it applies to the particular accused and to reasonable hypotheticals:

(a) the gravity of the offence;

(b) the personal characteristics of the offender;

(c) the particular circumstances of the case;

(d) the actual effect of the punishment on the offender;

(e) the penological goals and sentencing principles reflected in the challenged minimum;

(f) the existence of valid effective alternatives to the mandatory minimum; and

(g) a comparison of punishments imposed for other similar crimes (para. 78).

[23] The Applicants rely on policy considerations in their attempt to minimize the gravity of the offence of large-scale illicit marihuana production. I agree with the Crown that Parliament’s intentions to legalize simple possession of marihuana or to repeal mandatory minimum sentences are irrelevant to the issue before this Court. Such intentions address possible future changes to Canada's drug laws rather than the current sentencing regime. The gravity of the offence must be determined objectively and based on current law, not on the Applicants’ subjective views of public opinion or changing public policy.

[24] “Gravity of the offence”, as explained in R. v. Hamilton, 2004 CanLII 5549 (ON CA), [2004] O.J. No. 3252 (Ont. C.A.), refers to:

the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence (para. 90).

[25] The production of over 500 plants is a serious, straight indictable offence punishable by a maximum sentence of 14 years in prison. Marihuana cultivation often leads to other social evils and risks to public safety, including violent criminal activity: Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 778 (SCC), [1998] 1 S.C.R. 982 (S.C.C.), at paras. 85-91; R. v. Kennedy, 2016 ONSC 3438, at para. 22; R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8 (S.C.C.), at para. 31; R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571, at paras. 134-135; R. v. Tran, [2005] O.J. No. 607 (Ont. C.A.), at para. 5; and R. v. Li, 2007 ONCA 645, 51 C.R. (6th) 356, at paras. 46-48. See also R. v. Nguyen, [2002] O.J. No. 2480 (Ont. C.J.), at para. 41, varied on other grounds [2002] O.J. No. 5490 (Ont. C.A.); R. v. Nguyen, 2006 ONCJ 140, at para. 19; R. v. Dao, [2003] O.J. No. 4957 (Ont. S.C.), at para. 27; and R. v. Orlandis-Habsburgo, 2014 ONSC 3096, 311 C.R.R. (2d) 245, at paras. 26-27; affirmed 2017 ONCA 649.

[26] The “moral culpability” component of an offence considers the mental state that must accompany the commission of the prohibited act. Here, the mental state is the intention to produce marihuana without authorization. As stated in Nur (C.A.), at para. 86, “[a]n intention to bring about a prohibited consequence ranks at the top of the criminal law hierarchy of blameworthiness or moral culpability”.

[27] Commercial marihuana production is not a crime of impulse occurring in a momentary lapse in judgment; rather, it requires considerable planning, sophistication, and daily effort for profit. This grow operation was significant in scale and was the product of much planning and maintenance. Even a gardener in an enterprise of this size plays a critical role: R. v. Randall Judd, a decision of the Superior Court of Justice per Parayeski J., released on August 12, 2016 at p. 8, II.10-25; R. v. Huy Nguyen, a decision of the Ontario Court of Justice per Pockele J., released on August 2, 2016 at p. 14.

[28] Mr. Ling acknowledged that he was involved in the production of marihuana. I found that he assisted in planting and caring for the marihuana; by his own admission, he was a gardener. Mr. Ling is a permanent Canadian resident, born January 30, 1987 in China. He arrived in Canada in 2006, and has worked in restaurants and in construction and renovation. He has no criminal record or outstanding charges. In May 2015, he was asked to assist as an employee in the production of marihuana at Mr. Fan’s farm by a Mr. Li. He received a monthly salary, paid in cash.

[29] Mr. Fan knowingly provided the means to produce marihuana and the buildings in which it could be dried and stored. He provided the land, the greenhouses, the watering system and the outbuildings, aware that they would be used to produce and store marihuana. Mr. Fan is a permanent resident of Canada, born February 25, 1961 in China. He arrived in Canada on July 20, 2012. In March 2013, he purchased the farm property which included approximately 100 acres of land. On it, he built 40 greenhouses. He produced vegetables on his property for distribution in Chinese supermarkets and restaurants in Toronto. He has no criminal record or outstanding charges. In late 2014, Mr. Fan was asked to lease 40 greenhouses to produce marihuana.

[30] The Applicants submit that Mr. Fan and Mr. Ling were not main principals or the operating mind of the marihuana production enterprise; they were not responsible for trafficking the marihuana produced, nor did they profit in its production. The Crown did not dispute this. However, both Mr. Fan and Mr. Ling were parties to the unauthorized production of marihuana and possessed it for the purpose of trafficking.

[31] I do not accept that either of them had an honest but mistaken belief in the legality of the operation. This was a large scale marihuana grow operation. Six licences were accompanied by statutory declarations purporting to transfer production sites. Mr. Li’s licence set out another production site, but his driver’s licence was registered to the farm address, supposedly allowing Mr. Li’s production site to be transferred to the farm property.

[32] Mr. Fan testified that he had assurances this transfer was possible from Mr. Li—who leased Mr. Fan’s farm for “plantation” use and had a licence to grow medical marihuana indoors—and Mr. Lin—Mr. Fan’s farm business partner. Moreover, Mr. Fan testified that he believed the “lawyer’s stamps” on the statutory declarations, not just Mr. Li’s assurance. Mr. Fan testified that he did not know where to go to confirm the licences’ lawfulness; once he saw the lawyer’s stamps on the statutory declarations, he believed the documents were lawful.

[33] Mr. Ling testified that he did following: trusted his friend who translated the documents for him; sought assurances from Mr. Li; conducted online research to see whether the Canadian government allowed people with licences to grow marihuana; consulted people that he trusted (none of whom had experience growing marihuana or dealing with licences) to confirm the information from the Internet; showed his friends photographs of the licences and affidavits; reviewed the lawyer’s letters indicating the licences could be transferred; and added up the numbers on the licences.

[34] Neither Applicant spoke to the police, a lawyer or any authorizing agency to ascertain the legality of transferring production sites by either statutory declaration or changing the address on a driver’s licence, or the legality of producing marihuana for medical purposes for other absent persons without authorization.

[35] I find that, under these circumstances, neither Applicant held any belief that could qualify as honest but mistaken. I am satisfied that the Crown proved beyond a reasonable doubt that both Messrs. Fan and Ling were wilfully blind to the grow operation’s illegality. The reasonableness of their actions is relevant in determining the honesty of their belief. Both Applicants knew that production of marihuana without a licence was illegal. Considering the extensive operation being conducted—the number of licences involved, the number of plants purportedly authorized and eventually grown, and the obvious value of the operation—both Applicants knew that the operation, if unauthorized, risked constituting a serious criminal offence; so, they were aware they needed to make some inquiry or not proceed at all in facing that risk: R. v. Sansregret, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570 (S.C.C.), at pp. 584-585.

[36] The steps which the Applicants took to confirm legality were insufficient in the circumstances. As the court noted in R. v. Lagace, 2003 CanLII 30886 (ON CA), [2003] O.J. No. 4328 (Ont. C.A.), at paras. 28-29:

Where an accused makes some inquiry, the question remains whether that accused harboured real suspicions after that inquiry and refrained from making further inquiries because she preferred to remain ignorant of the truth. Where some inquiry is made, the nature of that inquiry will be an important consideration in determining whether the accused remained suspicious and chose to refrain from further inquiry because she preferred to remain deliberately ignorant of the truth.

[37] The Applicants relied on: Mr. Li’s, friends’ or a partner’s opinion of the legality of the operation; on-line research; and the fact that the statutory declarations were stamped by a lawyer. None of those persons or sources could be expected to assess the operation’s legality or the Applicant’s involvement in it. This is a case where the Applicants chose to remain ignorant of the truth. Their language issues did not preclude inquiry from persons or sources that could be expected to provide a knowledgeable assessment of the legality of the operation.

[38] The Applicants argue that the impact of the immigration consequences are so extreme as to pose a serious risk to their security of the person: a sentence of six months or more would invoke deportation and revocation of their permanent residency from Canada without any appeal or hearing. The Applicants argue that any jurisprudence seemingly directing judges to consider the fitness of a sentence in total isolation from its collateral consequences is irreconcilable with the principle of proportionality and the values enshrined in ss. 7 and 12 of the Charter: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739; R. v. Curry, 2005 CanLII 32191 (ON CA), [2005] O.J. No. 3763 (Ont. C.A.); R. v. C. (B.R.), 2010 ONCA 561, 102 O.R. (3d) 135.

[39] The Applicants’ position is that a proportionate sentence in this case equals a suspended sentence and probation.

[40] The Crown’s position is that a conventionally fit sentence for both Applicants, as first offenders in a well-planned and carefully executed commercial venture, falls between 20 months and two years less a day. The Crown posits that mandatory minimums establish a sentencing floor and the proper application of s. 718.1 of the Criminal Code still requires that a higher sentence be imposed on the directing mind than on the hired caretaker. The Crown argues that a two-year sentence is not grossly disproportionate in either Applicant’s case, even accounting for collateral immigration consequences.

[41] The Supreme Court of Canada held that the significance of collateral consequences must be determined in accordance with the facts of the particular case; collateral immigration consequences are “but one relevant factor amongst many others”, and a sentence must be fit having regard to the particular crime and offender. A court is entitled to conclude that even a minimal reduction would render the sentence inappropriate for the particular offence and offender: Pham (S.C.C.) at paras. 13-14 and 20-21. As the Supreme Court cautioned in Pham at paras. 15-16:

The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will.

These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation. Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk.

[42] I find that, even accounting for collateral immigration consequences, a two-year sentence for persons involved in a large-scale commercial marihuana grow operation is not grossly disproportionate for either Applicant. The principles of denunciation and deterrence are held as paramount in cases involving large-scale marihuana grow operations: R. v. Peltier, 2013 ONCA 141 at para. 10; R. v. Kwiatkowski, 2010 BCCA 238, at para. 13; R. v. Chen, 2007 ONCA 230, at para. 2. The objectives of denunciation and deterrence remain in the statutory scheme in issue.

[43] The mandatory minimum jail term mandated by s. 7(2)(b)(v) is not grossly disproportionate to the punishment that is appropriate. It properly gives effect to the sentencing principles of deterrence and denunciation in cases involving large-scale marihuana grow operations, considering the harm such operations cause to the community and the morally blameworthy conduct it involves.

Stage 2: The Reasonable Hypothetical Offender

[44] At this stage, the question is whether the reasonably foreseeable application of the mandatory minimum sentence may impose cruel and unusual punishment on other offenders. Both the Crown and Applicants agree that established Supreme Court jurisprudence mandates the s. 12 Charter analysis to focus on the particular provision under which the offender is to be sentenced: Goltz, at p. 519. Nur (S.C.C.) emphasized that courts consider “the law’s reasonably foreseeable impact” (para. 61) and that the inquiry must be grounded in judicial experience and common sense (para. 62).

[45] The Applicants ask this court to find s. 7(2)(b)(v) unconstitutional on the basis of its effect on these reasonable hypotheticals:

(a) regulatory licensing cases (see R. v. Pham, 2016 ONSC 5312 and Vu);

(b) a “generous university student” (see R. v. Elliott, 2016 BCSC 393, and R. v. Boulton, 2016 ONSC 2979); and/or

(c) a “caring migraine-sufferer” (see Elliott).

[46] For the reasons that follow, I find that the Applicants established a reasonable hypothetical scenario involving an illegal marihuana grow operation of over 500 plants in which a two-year sentence would be so excessive as to outrage standards of decency.

Regulatory licensing cases

[47] In Pham (S.C.), Code J. found s. 7(2)(b)(v) unconstitutional on the basis of its effect on the reasonable hypothetical of a regulatory licensing case. I accept and adopt his reasoning. For example, the two-year mandatory minimum sentence:

“may reasonably arise” where licenses authorizing “more than 500” plants have expired and not been renewed in a timely way … 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 … or where the licenses are issued to certain named persons but the licensees delegate the production to a different unauthorized person… (para. 41).

[48] It is reasonably foreseeable that s. 7(2)(b)(v)’s reach would extend to a caretaker or a gardener who mistakenly believed in an operation’s lawfulness in cases where licences exist but are not strictly complied with. A mistake of law would provide no defence. An honest but mistaken belief, however, would be a relevant and mitigating factor on sentence; the offender’s moral blameworthiness would be minimal. This hypothetical offender’s conduct is far removed from the serious drug crimes that the legislation targets and from the type of criminal behaviour that Canadians find unacceptable. As the court noted in Pham (S.C.), "[i]n cases where lawful licences 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" (para. 42).

[49] I agree with Code J. that, in these circumstances, the two year minimum sentence is “grossly disproportionate”.

[50] Section 7(2)(b)(v) “casts its net” too broadly: it foreseeably catches, as in Nur, licensing offences which involve little or no moral fault and little or no danger to the public. The provision catches not only those involved in serious instances of production for the purpose of trafficking—the legislation’s “proper aim”—but also “conduct that is much less blameworthy”: Lloyd, at para. 27. These features of the provision render s. 7(2)(b)(v) applicable in a large number of situations in which offenders’ blameworthiness varies greatly.

[51] A mandatory two-year sentence in this reasonable hypothetical would be grossly disproportionate. As such, s. 7(2)(b)(v) will sometimes mandate sentences violating the constitutional guarantee against cruel and unusual punishment in s. 12. The Crown’s ability to exercise its discretion not to proceed does not save a provision that on its face breaches the Charter: Nur (S.C.C.), at paras. 85 and 88-89; Lloyd, at para. 34.

[52] Given my finding, I need not consider the other hypotheticals posited.

Is the Infringement Justified under Section 1 of the Charter?

[53] In Nur, the Supreme Court outlined the test to be applied in determining whether an infringement is justified under s. 1. The Crown must show on a balance of probabilities that the law has a pressing and substantial objective, and that the means chosen are proportional to that objective. The Supreme Court defined the test for proportionality as follows:

A law is proportionate if (1) the means adopted are rationally connected to that objective; (2) it is minimally impairing of the right in question; and (3) there is proportionality between the deleterious and salutary effects of the law. [Citation omitted.]

[54] The Supreme Court then opined:

It will be difficult to show that a mandatory minimum sentence that has been found to be grossly disproportionate under s. 12 is proportionate as between the deleterious and salutary effects of the law under s. 1 (Para. 111).

[55] I come to the same conclusion as in Lloyd, where the Supreme Court dealt with a different provision of the CDSA. I find that “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” (Para. 48).

[56] Parliament’s objective—combatting the production and distribution of illicit drugs—is an important one, rationally connected to the imposition of a two-year mandatory minimum sentence for the production of over 500 marihuana plants. The Crown’s justification, however, fails the second prong of the proportionality test, namely, the minimum impairment of the rights protected by s. 12.

[57] In Nur (S.C.C), the majority stated, “The question at this stage is whether the limit on the right is reasonably tailored to the objective.” In other words, the question is “whether there are less harmful means of achieving the legislative goal”.

[58] As with the provision at issue in Lloyd, s. 7(2)(b)(v) “covers a wide array of situations of varying moral blameworthiness without differentiation or exemption”. I find that the Crown has not established that less harmful means were not available to achieve the legislative goal of protecting people from the large-scale production of marihuana, whether by narrowing the reach of the law or providing for judicial discretion in exceptional cases.

[59] I find that the Crown also fails the third prong of the proportionality test. The Crown has not established proportionality between the deleterious and salutary effects of the law.

[60] Accordingly, I find that the violation of the s. 12 right is not justified under s. 1 of the Charter.

Conclusion

[61] In conclusion, the two-year mandatory minimum sentence mandated by s. 7(2)(b)(v) of the CDSA 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 of the Constitution Act.

QUINLAN J.

Released: September 22, 2017