R. v. Tran, 2017 ONSC 651

CITATION: R. v. Tran, 2017 ONSC 651

COURT FILE NO.: 14-4552

DATE: 2017-02-03

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

W. Houtmeyers, for the Public Prosecution Service, Respondent

Respondent

• and -

TRUNG TRAN

L. Shemesh, for the Applicant

Applicant

HEARD: December 9, 2016

A. J. Goodman J.:

REASONS FOR JUDGMENT ON SENTENCE AND CONSTITUTIONAL CHALLENGE TO MANDATORY MINIMUM PROVISIONS

[1] On July 16, 2015, after trial, the applicant, Trung Tran was found guilty of production of marijuana and possession of marijuana for the purpose of trafficking, contrary to ss. 7(1) and 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”).

[2] As the allegations related to the production of more than 500 marijuana plants, the applicant faces a mandatory minimum sentence of imprisonment for a term of not less than two years. The Crown does not advance any aggravating features as outlined in s. 7(3) of the CDSA.

[3] The applicant seeks a declaration that the mandatory minimum penalty (“MMP”) provisions are “cruel and unusual treatment or punishment” pursuant to s. 12 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (“Charter”), and therefore unconstitutional.

[4] For a variety of reasons, including but not limited to, the parties’ request to await specific guidance from the appellate courts on the issue of the MMP, the sentencing hearing in conjunction with the s. 12 constitutional challenge was delayed.

BACKGROUND:

[5] After trial, my Reasons for Judgment were provided to the parties (reported at 2015 ONSC 3907). Briefly, prior to the execution of the search warrant, the applicant had been observed by police at a house located at 58 Curran Road, in Ancaster, Ontario. Mr. Tran had attended this location on two prior occasions for various periods of time. On November 14, 2013, Mr. Tran arrived at the house a third time and was arrested just prior to his entering the house.

[6] On the same date, officers with the Hamilton Police Service executed a CDSA search warrant at this property. Upon execution of the search warrant, police officers found a large-scale commercial marijuana grow operation inside the house. In addition to the 992 marijuana plants located in the home, police officers found 687.26 grams of processed marijuana in a kitchen cabinet. While there was some evidence of a hydro by-pass, the Crown has resiled from advancing this aggravating factor for the purposes of s. 7(2)(b)(vi) of the CDSA.

POSITIONS OF THE PARTIES:

[7] The applicant submits that he was involved in the production of 992 marijuana plants. Six hundred fifty-two of those plants were clones. The applicant argues that these 652 clones ought not to be considered as viable marijuana plants. By this logic, the total count would actually be 340 marijuana plants. As the total count was not over 500 plants the mandatory sentence obligates this Court to sentence Mr. Tran to an automatic sentence of one - year imprisonment pursuant to s. 7(2)(b)(iii).

[8] However, and most significantly, the applicant submits that in this case he was found guilty of being a party to the production of the marijuana. The federal Crown (not Ms. Houtmeyers) agreed that the evidence did not support a finding that the applicant was a principal to the production of the marijuana; but rather, he was at most, a party to both alleged offences.

[9] The applicant submits that the MMP provisions—specifically ss. 7(2)(b)(v) to (vii), along with ss. 7(2)(b)(iv) and ss. 7(3)(a),(c) and (d)—constitute cruel and unusual punishment and are thus unconstitutional under s. 12 of the Charter. In other words, should the Court find that the plant count is less than 500, the applicant seeks a declaration that the MMP for quantities of plants between 201 and 500 is unconstitutional. In the alternative, should the Court find the plant count is greater than 500, then the MMP for this quantity is also unconstitutional.

[10] The applicant submits that that the problem with the mandatory minimum sentence provisions is that they cast a net over a wide range of potential conduct. They attempt to catch the commercial trafficker, which is their proper aim, and instead may catch those whose actions are far less blameworthy. This renders the sections constitutionally vulnerable. Moreover, the applicant argues that the MMPs would impose a grossly disproportionate sentence on himself and others. For instance, the MMPs may apply to mere gardeners or minor parties in a larger scheme. In other words, sentences meted out upon those who derive no significant benefit from a drug enterprise are more than merely excessive.

[11] Regardless of which MMP subsection in s. 7(2) is ultimately applied, the applicant’s position is the same. He submits that, as a result of the MMP, in assessing the appropriate sentence in this case, the Court is unable take into account his lack of criminal record, employment history, lifestyle, dependent or any other factor customarily considered pursuant to established sentencing principles. Rather, the Court looks to statutory language and simply sentences the offender according to the MMP. As such, the offender and his circumstances are never considered.

[12] The applicant submits that, not only are the impugned sections unconstitutional in his particular case, they are also unconstitutional when reasonable hypothetical scenarios are considered.

[13] The Crown submits that the applicant was engaged in the large-scale commercial production of marijuana for personal gain. His conduct is deserving of a two-year jail term, in accordance with the statutory minimum sentence provided for by s. 7(2)(b)(v) of the CDSA. This mandatory minimum jail term, which targets the morally blameworthy conduct of those who choose to involve themselves in the large-scale commercial production of marijuana, is not “so excessive as to outrage standards of decency”: R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045 at p. 1072, 34 C.C.C. (3d) 97. Rather, it reflects a legislative scheme that is carefully tailored to address the relative seriousness and moral blameworthiness of a range of drug offending conduct.

[14] The Crown says that the applicant has not established that the MMP would result in a grossly disproportionate sentence in the applicant’s case or when applied to a reasonable hypothetical example. Accordingly, the Crown submits the application should be dismissed.

LEGAL PRINCIPLES:

[15] The relevant sections of the CDSA provide:

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

(2) Every person who contravenes subsection (1)

(a) if the subject matter of the offence is a substance included in Schedule I, is guilty of an indictable offence and liable to imprisonment for life and to a minimum punishment of imprisonment for a term of three years if any of the factors set out in subsection (3) apply and for a term of two years in any other case;

if the subject matter of the offence is a substance included in Schedule II, other than cannabis (marijuana), is guilty of an indictable offence and liable to imprisonment for life, and to a minimum punishment of imprisonment

(i) for a term of one year if the production is for the purpose of trafficking, or

(ii) for a term of 18 months if the production is for the purpose of trafficking and any of the factors set out in subsection (3) apply;

(b) if the subject matter of the offence is cannabis (marijuana), is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years, and to a minimum punishment of

(i) imprisonment for a term of six months if the number of plants produced is less than 201 and more than five, and the production is for the purpose of trafficking,

(ii) imprisonment for a term of nine months if the number of plants produced is less than 201 and more than five, the production is for the purpose of trafficking and any of the factors set out in subsection (3) apply,

(iii) imprisonment for a term of one year if the number of plants produced is more than 200 and less than 501,

(iv) imprisonment for a term of 18 months if the number of plants produced is more than 200 and less than 501 and any of the factors set out in subsection (3) apply,

(v) imprisonment for a term of two years if the number of plants produced is more than 500, or

(vi) imprisonment for a term of three years if the number of plants produced is more than 500 and any of the factors set out in subsection (3) apply;

[16] Section 12 of the Charter provides that “[e]veryone has the right not to be subjected to any cruel and unusual treatment or punishment.”

[17] The Supreme Court of Canada has established a high bar for finding that a sentence represents a cruel and unusual punishment. To be “grossly disproportionate” a sentence must be “so excessive as to outrage standards of decency” and “abhorrent or intolerable” to society: Smith, at p. 1072, citing Laskin C.J.C. in Miller v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. 680 at p. 688; R. v. Ferguson, 2008 SCC 6, at para. 14.

[18] In Ferguson, at para. 54, the Supreme Court of Canada declared that,

The intention of Parliament in passing mandatory minimum sentence laws … is to remove judicial discretion to impose a sentence below the stipulated minimum. Parliament must be taken to have specifically chosen to exclude judicial discretion in imposing mandatory minimum sentences … There is no provision permitting judges to depart from the mandatory minimum, even in exceptional cases where it would result in grossly disproportionate punishment.

[19] In R. v. Lloyd, 2016 SCC 13, at para. 35, the Supreme Court of Canada reasoned the following with respect to MMPs:

[M]andatory 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 case a wide net, it should consider narrowing their reach so that they only catch offenders that merit the mandatory minimum sentences.

ANALYSIS:

Number of plants for the purpose of [s. 7(2)](https://www.canlii.org/en/ca/laws/stat/sc-1996-c-19/latest/sc-1996-c-19.html) of the [CDSA](https://www.canlii.org/en/ca/laws/stat/sc-1996-c-19/latest/sc-1996-c-19.html)

[20] The actual plant count in this case was a threshold issue related to sentencing and the potential implications of the various MMP provisions. The applicant raised the issue of whether “clones” at various stages of growth could be considered “plants” for the purpose of sentencing.

[21] It is clear that the impugned sections and the number of plants will determine whether the applicant falls under the 12-month, 18-month, 2-year, or 3-year section of the MMP regime.

[22] In this regard, I am only addressing the question from the standpoint related to the principles of sentencing and not on any basis associated with a finding of guilt arising from a breach of s. 7(1) of the CDSA, as heard during the trial.

[23] First, are the “stage one” clones seized by police “plants”, thus counting toward the quantities for the purposes of the s. 7(2) MMPs? From the statutory language, the CDSA does not address how plants are to be counted. Neither the CDSA nor the Marihuana Medical Access Regulations, S.O.R./2013-119 (now repealed but in force at the time of the offence), enacted under the CDSA define “plant”. Further, there is no legislative requirement or jurisprudential authority that requires the plant have achieved a certain stage of growth in order to be considered a “drug”.

[24] However, the jurisprudence includes a discussion of what is considered a “plant” under the CDSA.

[25] For example, in R v. Clay, 2003 SCC 75, [2003] 3 S.C.R. 735, 179 C.C.C. (3d) 540, the Supreme Court of Canada dealt with a similar argument in the context of the former Narcotic Control Act, R.S.C. 1985, c. N-1. The Court rejected the argument that the prohibition provisions under the Act would only apply to plants that had achieved a certain tetrahydrocannabinol (THC) content. Moreover, it is significant that the definition of “produce” in the CDSA includes “cultivating, propagating or harvesting the substance or any living thing from which the substance may be extracted or otherwise obtained”. This definition seems to encompass the whole range of plant production.

[26] In R. v. Li, 2016 ONSC 1757, Bird J. concluded that seedlings were not plants because they had not taken root. In R. v. Machula, 2014 ONCJ 461, Selkirk J. determined that clones should be counted in determining whether a one year mandatory minimum sentence applied. In his reasons at paras. 37-40, His Honour considered his colleague’s decision in R. v. Quan, 2011 ONCJ 194, and determined that even an un-rooted clone is a plant within the meaning of the CDSA. In R. v. Blackwood, 2016 ONSC 4217, Koke J. preferred Selkirk J.’s approach and definition of plant as including clones. See also R. v. Grant, 2013 ABCA 430.

[27] The preponderance of jurisprudence suggests that a marijuana seedling becomes a plant within the meaning of s. 7 of the CDSA when it has taken root. I am persuaded that a plant for the purposes of sentencing under s. 7(2), may include clones only if it has been established or can be reasonably inferred that the clones have taken root. I would not go as far as to conclude that pieces of the plant being cultivated or propagated into mature marijuana plants without roots fall within the ambit of plant for the purposes of s. 7(2).

[28] While it is an interesting exercise to define the term “plant” for the purposes of sentencing, by the end of oral submissions it became apparent that the issue could be readily resolved without descending into a further detailed analysis of the appropriate definition or what foliage found at the house constitutes a plant for sentencing purposes.

[29] In this case, the entirety of the expert’s report was admitted into evidence on consent. In his report, Officer Duench states on page 2:

The first room consisted of 478 stage one [plants] (clones) all in soil and pots. The plants ranged from 6 inches to 9 inches in height. There were seven 1000 watt bulbs which were on at the time providing light to the plants all of which were all hooked up to a ventilation system. Each light was hooked up to its own ballast. One oscillating fan, and one exhaust fan were present circulating air flow.

The second room consisted of 165 stage three marihuana plants all in soil and pots. The plants were budded and approximately three and a half feet in height. There were thirteen 1000 watt bulbs, all of which were on at the time, and hooked up to the own ballast. There were three oscillating fans, and two exhaust fans circulating the air flow.

The third room consisted of 175 stage three marihuana plants all in soil and pots. The plants were budded and approximately three and half feet in height. There were seventeen 1000 watt bulbs all of which were off. Each bulb was connected to its own ballast. There were three oscillating fans, three exhaust fans, and a CO2 machine circulating air flow.

In the upper level of the residence was 174 stage one marihuana plants (clones), located in a bedroom closet. There were two fluorescent lights consisting of a total of four bulbs providing light to the plants.

[30] While I leave aside the issue of whether a stage one clone without a root system can actually be defined as a “plant” for the purposes of sentencing and potential imposition of the MMP, I am prepared to take judicial notice that the 478 stage one clones found in the first room must have rooted, in that they were viable in pots with soil, light, and water. Significantly, the clones were described as ranging in height from six to nine inches.

[31] On this basis, I am satisfied that the 478 stage one clones combined with 340 stage three marijuana plants clearly exceeds 500 plants for the purpose of sentencing and consideration of s. 7(2)(b)(v) of the CDSA.

The Constitutional Challenge to Mandatory Minimum Sentences

[32] Given my findings related to the number of plants implicated in sentencing, the analysis in this case is confined to s. 7(2)(b)(v) of the CDSA.

[33] There are two stages of analysis. The first stage of a challenge to the MMP sentencing provisions under s. 12 of the Charter involves a further two steps. First, I must determine what constitutes a proportionate and just sentence for the offence and the particular offender, having regard to the objectives and principles of sentencing in the Criminal Code. A 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. However, I should consider, even implicitly, the rough scale of the appropriate sentence.

[34] Second, I must ask whether the MMP provisions impose a sentence that is grossly disproportionate. This is often described as the “particularized inquiry”, and no single factor will necessarily be decisive of the issue. The question, put rather simply, is this: in view of the fit and proportionate sentence, is the MMP sentence grossly disproportionate to the offence, the particular offender, and his or her circumstances? If so, the provision violates s. 12 of the Charter. If the impugned sentencing provision is not shown to be grossly disproportionate in its application to the particular offender, the Court must move to the second stage.

[35] The second stage of the test requires a Court to consider whether the impugned sentencing provision is grossly disproportionate when applied in “reasonable hypothetical” scenarios.

[36] In determining whether the minimum jail term in s. 7(2)(b)(v) constitutes cruel and unusual punishment under s. 12 of the Charter, a Court need not consider other provisions that would trigger minimum penalties under the CDSA, including the MMPs under ss. 7(2)(b)(i) through (iv). Similarly, I need not consider the constitutionality of the minimum sentences arising from the aggravating factors listed in s. 7(3).

[37] This exercise involves considering the purposes and principles of sentencing set out in the Criminal Code and the CDSA, those derived from the jurisprudence, as well as other aggravating and mitigating factors without considering the mandatory minimum sentences.

The Particularized Inquiry:

[38] As mentioned, at this juncture, I must consider whether the imposition of the impugned sentencing provision constitutes cruel and unusual punishment as against the specific offender being sentenced. A sentence will be cruel and unusual if it is grossly disproportionate in the context of the offence and the offender, having regard to a number of factors. The factors identified in Smith, at p. 1073; R. v. Goltz, 1991 CanLII 51 (SCC), [1991] 3 S.C.R. 485, 67 C.C.C. (3d) 481, at paras. 25-27; and R. v. Morrisey, 2000 SCC 39, at paras. 27-28 are:

(i) the gravity of the offence generally;

(ii) the personal characteristics of the offender and the particular circumstances of the offence;

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

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

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

(vi) a comparison of punishments imposed for other similar crimes.

These factors were reiterated in R. v. Nur, 2013 ONCA 677, at para. 68, aff’d 2015 SCC 15. Sentences imposed for other or similar crimes in the same jurisdiction may also be considered: Goltz, at p. 493.

[39] The phrase “cruel and unusual punishment” has been described as a “compendious expression” of a constitutional norm, meant to guard against punishments considered to be “abhorrent” or “intolerable”: Miller, at pp. 689-690, per Laskin C.J.C., concurring; Smith, at p. 1072; Lloyd, at para. 24. In order to establish that a particular sentencing provision gives rise to cruel and unusual punishment, the punishment must be shown to be grossly disproportionate. The analytical framework was first articulated in Smith; and refined or applied in subsequent decisions including Ferguson; Morrissey; and most recently redefined in the Supreme Court of Canada’s seminal decision in Nur.

[40] In the case at bar, the applicant was a party to a larger production. According to my decision, it was accepted that Mr. Tran was at the property on “three occasions” for various periods of time and that he had access to the vacant house where the sophisticated commercial grow operation was being conducted. I reasoned that based on the quantity alone, the applicant was guilty of possessing the marijuana for the purpose of trafficking. There was no evidence that Mr. Tran was involved in the packaging or distribution of marijuana or that he derived any benefit to such a production scheme. Rather, the evidence showed that he was simply a party to the offence and provided unspecified assistance to the grower or the principal of this illegal operation.

[41] During the course of argument, the applicant asserted that the plant count was well below the counts found in other large-scale commercial growing operation cases. In support of this position, the applicant submitted that there are no aggravating factors present. The applicant was neither tried on the theft of electricity nor were any such findings made. The applicant argued that there was no evidence of a significant loss to the hydro company or a risk to public safety from any electrical by-pass. Moreover, and again most significantly, the applicant was not the principal player in the enterprise. There is no evidence that he was responsible for any stolen electricity or that he was even aware of whether there was indeed a theft of electricity. Similarly, looking to the aggravating factors in s. 7(3) of the CDSA, there is no evidence as to the ownership of the property—aside from the defence evidence called at trial, - no evidence as to any safety hazard ground, and no evidence as to the presence of children.

[42] The Crown responded that it is beyond dispute that extensive and often violent criminal activity is spawned by the drug trade. Ms. Houtmeyers submitted that the gravity of the crime of large-scale commercial marijuana production is high, considering the harm it causes to the community and the morally blameworthy conduct it involves.

[43] “Gravity of the offence” 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 that may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence. Courts have repeatedly held that production of marijuana is a serious offence. Historically, the Supreme Court of Canada had opined on the issue, concluding that “the cultivation of a narcotic is a serious offence, often leading to other social evils”: R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8, 104 C.C.C. (3d) 23, at p. 37. In R. v. Malmo-Levine, 2003 SCC 74, at para. 134, the Supreme Court of Canada noted the risks associated with marijuana use as follows:

[O]ur understanding of the view taken of the facts by the courts below is that while the risk of harm to the great majority of users can be characterized at the lower level of “neither trivial nor insignificant”, the risk of harm to members of the vulnerable groups reaches the higher level of “serious and substantial”.

[44] The Crown further submits that the applicant’s attempt to equate the gravity of the offence with his own role in that offence misapprehends the law. “Moral culpability” is not about the offender’s role; but rather it is about the mental state required by the offence itself: Nur [ONCA], at paras. 86-87. At para. 86 of Nur, the Court of Appeal stated:

The moral culpability component of an offence, the second factor to be considered when assessing seriousness, usually refers to the mental state that must accompany the commission of the prohibited act. There are a variety of culpable mental states, including intention, recklessness, and knowledge. An intention to bring about a prohibited consequence ranks at the top of the criminal law hierarchy of blameworthiness or moral culpability.

[45] The Supreme Court of Canada has made it clear that the s. 12 analysis must focus on the particular provision under which the offender is to be sentenced. The particular provision at issue in this application is part of a broader sentencing regime that includes minimum jail terms for specific drug offences, in relation to substances listed in particular schedules. Subsection 7(2)(b)(v) of the CDSA is specific to production of more than 500 plants.

[46] The applicant argues that the constitutional frailty arising out of the s. 95 mandatory minimum in Nur was that it was a single, one-size-fits-all penalty that applied indiscriminately to any s. 95 offence, regardless of any level of moral culpability.

[47] The Supreme Court of Canada’s concern that licensing-type conduct could be captured by the MMPs in s. 95 is clear, at para. 83:

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. … [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 … . Consequently, I conclude that s. 95(2)(a)(i) breaches s. 12 of the Charter.

[48] Here, the Crown submits that offenders who are caught by these MMPs are clearly involved in serious criminal conduct. Commercial marijuana production is not a crime of impulse that occurs as a result of a momentary lapse in judgment. Rather, commercial marijuana production is an ongoing crime requiring daily effort in hopes of material gain. The applicable level of moral culpability is, accordingly, the intention to produce marijuana, which is as present in the person who tends the plants as it is in the person who owns them. The moral culpability of offenders involved in the production of large scale grow operations is far from minimal, and is very different from a licensed and responsible gun owner who makes a mistake as to where his or her gun can be stored or if a license has expired.

[49] In response, the applicant stresses that marijuana has been found to be non-addictive, medically approved, a soft drug and recreationally used. Ms. Shemesh submits that political leaders in Canada are declaring their intention to decriminalize marijuana and offering to sell it; whether in local dispensaries, LCBO stores, or otherwise. Counsel adds that the federal Liberal government is working tirelessly to overturn the MMP provisions. It is only a matter of time before the government overturns these sections. As a result, those who are currently before the courts should not be imprisoned while we wait for the government to act accordingly.

[50] I have not been provided any evidence with respect to legislative changes. At this juncture, I am loath to take judicial notice, if I am able, of the proper direction of amendments to the CDSA or parliamentary intention. Despite the stated objectives of political leaders, changes to the legislation have not occurred. Ms. Houtmeyers reminds me that enforcement of the various sections of the CDSA has not been curtailed by any political pronouncements to date. Clearly there are arguments going both ways on this dynamic and evolving issue.

[51] The Crown submits that the applicant is attempting to rely on policy considerations to downplay the gravity of the marijuana production offence. His assertions respecting Parliament’s intention to legalize marijuana are irrelevant to the issues before this Court, and they address sentencing policy rather than sentencing law. The Crown says that the applicant was engaged in an illegal grow operation involving 818 plants. While the government has expressed an intention to legalize simple possession of marijuana, it would not legalize the applicant’s conduct.

[52] While Ms. Shemesh may be entirely correct in her interpretation of the political landscape surrounding the legalization, use, and distribution of marijuana, I believe that this subject is best left for Parliament. Social norms and awareness of community standards may be a relevant part of the sentencing consideration fabric, but I am not prepared to embark on an analysis of Parliament’s intent or the degree of social acceptance of marijuana today, absent a proper evidential foundation or clear direction from an appellate authority.

[53] I am not persuaded that the current state of divergent enforcement or denouncement of grow operations or licensing regimes in various parts of the country is determinative of this issue. It is clear to me that current social values, the seriousness or otherwise of marijuana’s use, legalization, distribution or production are subjects upon which reasonable people may reasonably disagree.

[54] To this point, I have been provided with the case of R. v. McGee, 2016 BCSC 2175, citing the decision of R. v. Hofer, 2016 BCSC 1442. I agree with the obiter comments in Hofer, at paras. 56-57, discussing the dynamic that arises in British Columbia on this very issue, found at para. 81 of McGee:

Counsel for Mr. Hofer observed that the law concerning marihuana is in a state of flux in Canada. I accept that in recent years there has been a softening of attitudes concerning personal marihuana use, but that does not equate to a softening of attitudes about large-scale illicit production. However, not only has a tolerance for personal use developed, but also a policy has been adopted by the Vancouver Police of non-enforcement of the criminal law against many marihuana retail dispensaries in Vancouver. This is condoned by the City of Vancouver. The question this raises is whether it is possible or appropriate to draw an inference about societal attitudes concerning sentences for large-scale illicit marihuana production from the fact that the criminal law is not being enforced against some large-scale retailers of the same product. In other words, can I conclude that society would find a sentence of two years' imprisonment for a large-scale producer of marihuana to be abhorrent or intolerable, or so excessive as to outrage standards of decency, because some large-scale retailers are carrying on business with impunity?

While I consider it appropriate to take judicial notice of the prevalence of unlawful retail dispensaries in Vancouver, there is no evidence about the societal response. As already noted, gross disproportionality is a legal standard that does not depend on an individual judge's subjective perception of the potential public reaction to a particular sentence. Rather, it is grounded in identified factors drawn from legal sources, including the gravity of the offence and the principles and objectives of sentencing. For the reasons already expressed, irrespective of the existence of unlawful retail dispensaries in Vancouver, the large-scale production of marihuana gives rise to serious risks to the community and remains illegal.

[55] The point here is not whether either the applicant or the Court agrees or disagrees with Parliament’s policy choices. The issue is whether the MMP offends s. 12 of the Charter based on the circumstances of this particular offender. The gravity of an offence is determined objectively, not by litigants’ subjective views of public opinion or public policy, or at least not without evidence to sustain such an opinion.

[56] This stage of the analysis involves “comparing the mandatory minimum sentence to the sentence that would have been imposed under a sentencing scheme that was identical to the existing scheme save for the requirement of the mandatory minimum”: Nur [ONCA], at para. 104.

[57] The Court must approach the analysis with awareness that sentencing policy is a matter within the competence of Parliament. I must therefore consider the valid legislative objectives underlying the criminal law responsibilities of Parliament. While the judiciary is responsible for determining whether a particular punishment exceeds the constitutional limits set by the Charter, it seems to me that jurists should give deference to the considered views of Parliament, and should only find a punishment unconstitutional in cases where the punishment is more than merely excessive, rather is grossly disproportionate.

[58] Chief Justice McLachlin emphasized that by requiring gross disproportionality in order to establish a breach of s. 12, the Supreme Court has set a “high bar”: Nur [SCC] at para. 39. In this regard, the Chief Justice quoted from Lamer J. (as he then was) from the case of Smith, at p. 1073:

[T]he 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”.

[59] In Lloyd, at para. 24, the Supreme Court elaborated on the stringency of this standard: “[a sentence] must be ‘so excessive as to outrage standards of decency’ and ‘abhorrent or intolerable’ to society [citations omitted].” The analysis brought to this aspect of the inquiry must be grounded in “judicial experience and common sense” while “[f]anciful or remote situations must be excluded. ... Laws should not be set aside on the basis of mere speculation”: Nur [SCC], at para. 62. Nevertheless, a reasonably foreseeable application of the law does not necessarily have to be a “likely” one: Nur [SCC], at para. 68.

[60] The applicant emphasizes that the law may also be inadvertently sending a gardener or a party to an offence to jail for a significant period of time, and for an act as innocuous as tending to a number of plants, acting as a custodian, or removing garbage, for example. The applicant argues that the imposition of an MMP sentence in this case would violate two key elements of sentencing in Canada: individualization and proportionality. The principle of individualization recognizes that offenders are individuals not groups. In contrast, a mandatory sentence presumes that all offenders are identical and undermines the principle that every offender is entitled to have a judge consider his or her own particular circumstances.

[61] In R. v. Vu, 2015 ONSC 5834 [“Vu No. 1”], Durno J. found that Mr. Vu had produced some 1,020 marijuana plants, 66 kilograms of wet marijuana and a hydro by pass. Mr. Vu was hiding in a laundry dryer when police executed the search warrant. Mr. Vu had a prior criminal record for the same offence for which he had received a four-month jail sentence. Justice Durno reasoned that Mr. Vu would have likely received a sentence in the area of 15 to 24 months without considering the mandatory minimum sentence. Justice Durno went on to find that a three-year sentence in the circumstances, even with Mr. Vu’s prior criminal record and a much larger plant count, would be disproportionate, albeit not grossly disproportionate. Justice Durno was not prepared to find that the accused was going to sell the marijuana himself and profit from the sale. The applicant asks this Court to make the same finding in this case.

[62] For this stage of the analysis, I must also assess the offender’s degree of responsibility. The applicant has been convicted of, inter alia, marijuana production. The aggravating features that tend to increase the seriousness of the offence and his degree of moral culpability include the large-scale nature of the indoor marijuana grow operation (i.e., 818 marijuana plants) in which plants were at various stages of growth, its lucrativeness, and its location. The staggering of plant maturity is designed to provide a continuous supply of marijuana. A single crop from this operation could be conservatively expected to produce some 125.53 pounds of marijuana, worth at least $251,000 (if sold at the pound level). The grow operation was set up in a single family dwelling in a residential neighborhood of Hamilton.

[63] Recall that in Vu No. 1, Durno J. reasoned that a sentence of 15 to 24 months was the appropriate range, though Mr. Vu had a prior related record and the production in that case exceeded the amounts implicated here.

[64] In R. v. Hanna, 2015 BCSC 986, at para. 27, Beames J. found that s. 7(2)(b)(v) did not contravene s. 12 of the Charter in the case of a 38-year-old first-time offender who pled guilty to acting as the gardener for a 1,260-plant marijuana grow operation. At para. 27, Beams J. stated:

… I remind myself and counsel, as well as Mr. Hanna, that the test here is not what sentence would I impose or what sentence would I consider fit. The question is whether a two-year mandatory minimum sentence in this case would be grossly disproportionate. On the particulars of this offence and this offender, I am simply not able to conclude that a sentence of two years would be grossly disproportionate, or that a sentence of two years is so excessive as to outrage standards of decency.

[65] In R. v. Boulton, 2016 ONSC 2979, the accused was convicted after trial of producing marijuana for the purposes of trafficking. In addressing s. 7(2)(b)(i), Quinlan J. stated that the “over the license” limit in the reasonable hypothetical scenario would not be subject to the laws of trafficking. Nonetheless, based on another reasonable hypothetical, she concluded that the impugned section was unconstitutional.

[66] In R. v. Kennedy, 2016 ONSC 3438, the accused pled guilty to one count of producing marijuana. There were 884 plants. The accused brought a constitutional challenge to the MMP provisions. Aggravating features included a hydro by-pass. In that case, the accused did not present any reasonable hypotheticals other than relying on his own circumstance. Justice Gorman denied the application.

[67] In R. v. Zheng, 2013 ONSC 4582, Fuerst J. imposed a sentence of six months less one day imprisonment for production of marijuana and six months less fifteen days consecutive for possession of marijuana in excess of three kilograms for the purpose of trafficking.

[68] The facts of Zheng are worth reviewing in greater detail. As stated, Mr. Zheng, had pleaded guilty to production of marijuana and possession of marijuana in excess of three kilograms for the purpose of trafficking. The parties agreed that a term of imprisonment was required but differed as to the length of the term. Mr. Zheng was a 52-year-old first-time offender but was in jeopardy of being removed from Canada by immigration authorities if he received a jail term in excess of six months for either offence. Mr. Zheng was found with others tending just under 6,000 marijuana plants. There was no suggestion that the accused was anything other than a gardener. There was no evidence that he received any direct profit or benefit. A hydro by-pass was absent. Notably, Mr. Zheng’s guilty plea was a sign of his remorse and acceptance of responsibility.

[69] Returning to the case at bar, Crown counsel submits that the applicant participated in what is properly characterized as a “large scale commercial indoor marijuana operation”. Further, while a principal has the greatest moral blameworthiness, the Crown points out that lesser involved participants also make deliberate decisions to become involved in the illegal activity for gain.

[70] The applicant’s view that the MMP equally penalizes the hired caretaker and the directing mind may not fully appreciate the effect of mandatory minimums. I agree with the Crown that MMPs do not nullify the s. 718.1 principles that a sentence must be proportionate to the offender’s degree of responsibility. Because mandatory minimums establish a sentencing floor, s. 718.1 of the Criminal Code necessarily shifts the range upward from that floor. Still, the proper application of s. 718.1 requires that a higher sentence be imposed on the directing mind than on the hired caretaker. The mandatory minimum is not made grossly disproportionate by the applicant’s lesser role.

[71] Although the culpability or moral blameworthiness of those who act as gardeners or caretakers may be lower than that of the owner, organizer, or principal beneficiary of a large-scale commercial grow operation, I agree with the Crown that even such persons must bear responsibility for their role in the production and inevitable distribution of large quantities of illicit drugs as well as the harm to the community that accompanies such operations. A large commercial grow operation cannot be sustained based on a single, isolated or impulsive act. Many successful large-scale commercial marijuana grow operations would likely not exist without a caretaker.

[72] Indeed, in Hofer, at paras. 71-78, Warren J. considered this question in her persuasive and instructive analysis on the issue of party liability:

This hypothetical involves a person who owns and resides at a large rural property and is found to have been wilfully blind to a grow op, involving 501 plants, being operated by a relative of the property owner in an outbuilding on the property. The property owner is not found to have actively participated in the marihuana production, but is convicted of being a party to the offence.

In my view, this is a situation that could reasonably be expected to arise.

First, wilful blindness can substitute for actual knowledge whenever knowledge is a component of the mens rea: R. v. Briscoe, 2010 SCC 13 at para. 21.

Second, there are several examples of offenders being found guilty of marihuana production as a party who has aided or abetted the principal operator: R. v. Ngo, 2009 BCCA 301; R. v. Pavalaki, 2014 BCCA 491; R. v. Gough and Jesson, 2014 BCPC 204; R. v. Nguyen, 2014 BCSC 1000; and R. v. Leech, 2013 BCSC 1156. As stated by the Court of Appeal in Ngo, “it was open to the trial judge to infer knowledge and an intention to aid or abet from all the circumstances” (para. 87). The circumstances, in that case, were living in the house where the grow op was located which provided a veneer of normalcy; allowing for access to those who were actively involved; providing a monitoring capacity and a measure of security through mere physical presence; and providing a measure of consistency that allowed the actual grower to produce on an ongoing basis. As Justice Rowles, writing for the court, said at para. 59:

Even where a person does not “actively participate” in the production of marijuana, he or she may aid or abet in its production by maintaining the environment where the plants are grown.

Accordingly, it is reasonably foreseeable that, for example, an elderly owner of a rural property whose adult son returned to live on the property and used outbuildings for a marihuana grow op, would be caught by the offence if the circumstances were such that his suspicion was aroused to the point where he saw the need to make inquiries but deliberately chose not to do so. If the grow op involved more than 500 plants, that elderly offender would be subject to the mandatory minimum two-year sentence. The question is whether such a sentence would be grossly disproportionate in that person’s situation.

For the same reasons I found a two-year sentence not to be grossly disproportionate in the first two hypotheticals, I have concluded that it would not be grossly disproportionate here. Significant sentences have been imposed even where the offender does not actively participate in the production. For example, in Nguyen the sentence was 10 months’ incarceration for possession for the purpose of trafficking and production of 694 plants (2014 BCSC 1252). In Gough and Jesson, 16- and 18-month conditional sentences were imposed on offenders who were found guilty as parties to the offence of production (2015 BCPC 171). In Leech, a 15-month conditional sentence was imposed. As observed by Justice Fenlon in Elliott, while conditional sentences are no longer available for production of marihuana under recent amendments to s. 742.1 of the Criminal Code, a conditional sentence of this length imposes significant restrictions on the offender’s liberty (para. 38).

In addition, a grow op of this size would attract the same risks I have already mentioned. While it could be said that the moral blameworthiness of a party is somewhat less than that of a principal, as noted by Justice Joyce in Leech at para. 9, the fact that an offender is convicted as a party “does not mean that he was not an essential part of the operation”.

As with the offenders in the first two hypotheticals, an offender who aids in the large-scale production of marihuana intends to engage in serious criminal conduct. In the circumstances, a sentence of two years would not meet the high threshold of gross disproportionality.

[73] I agree entirely with the very persuasive reasoning in Hofer and adopt these sage comments in my analysis.

[74] In this case, Mr. Tran’s conduct, even as a party, dictates a meaningful degree of moral blameworthiness that requires general and specific denunciation and deterrence, albeit at a reduced level from that of a principal party.

[75] For this particularized inquiry, having regard to all of the relevant factors, prior to the introduction of the impugned MMP provisions, and balancing all of these considerations, grounded in the jurisprudence, I find that the appropriate range of sentence would be a period of incarceration of between 12 months and 24 months. I am satisfied that this is the fit range of sentence in these circumstances for this offender who was not shown to be more than a gardener or custodian engaged in a large-scale illicit commercial marijuana grow operation.

[76] Absent the MMP, and based on the well-established sentencing principles, for this applicant in these circumstances, it may be suggested that a two-year sentence for Mr. Tran and similarly placed persons is at the extreme high end of the proportionate range for this type of offence. One could even mount an argument that in this case, the s. 7(2)(b)(v) MMP might be considered excessive.

[77] However, as I have already stated, the issue for this part of the inquiry is not whether the MMP sentence is high or excessive; but rather whether it is “grossly disproportionate” to the punishment that is proportionate and appropriate for this particular offence and offender in these circumstances. In my view, it is not.

Reasonable Hypotheticals:

[78] Having found that the application fails on the particular circumstances of the offence and the applicant, I must now turn to the second stage of the test: whether the impugned sentencing provision is grossly disproportionate when applied in foreseeable “reasonable hypothetical” scenarios.

[79] The burden at the reasonable hypothetical stage is on the applicant to identify reasonable hypothetical scenarios in which the impugned law would give rise to a punishment that is not just harsh or excessive, but so grossly disproportionate that it warrants the extreme remedy of striking down the impugned law.

[80] To demonstrate that s. 7(2)(b)(v) leads to cruel and unusual punishment, the applicant must identify some reasonable hypothetical scenario in which it would be grossly disproportionate for an individual convicted of participation in a large-scale commercial marijuana grow operation to receive a two-year jail sentence. It is not enough to point to other parts of the impugned statute in an effort to identify conduct that might attract the same or substantially the same penalty; the applicant must marshal a reasonable example pertaining to the precise provision being challenged.

[81] I am mindful that the Supreme Court of Canada has repeatedly cautioned and recently reaffirmed in Nur, that Courts should not test the constitutionality of a particular legislative provision under s. 12 of the Charter on the basis of “marginal”, “far-fetched”, or “remote or extreme” fact patterns: at para. 62.

[82] In this exercise, the analysis “may take into account personal characteristics relevant to people who may be caught by the mandatory minimum, but must avoid characteristics that would produce remote or far-fetched examples”: Nur [SCC], at para. 76. In Nur [ONCA], at para. 142, the Court of Appeal specifically says that “[c]haracteristics of individual offenders, be they aggravating or mitigating, are not part of the reasonable hypothetical analysis.” The focus is on “the nature of the act committed and the essential components of the offence as opposed to the individual characteristics of the hypothetical offender”: Nur [ONCA], at para. 137.

[83] The preamble of s. 7(1) of the CDSA provides for a licensing scheme: “[E]xcept as authorized under the regulations, no person shall produce a substance included in Schedule I, II, III or IV”. The applicant inquires how the MMP would apply to an individual who has a license to grow marijuana but exceeds the limits specified in the license. The applicant asks what if an accused, not unlike Mr. Tran, were simply a gardener who watered the plants on the request of the home-owner. In that scenario, the production site would be in the name of a third party, an individual who could be equally be involved without ever coming before the Court. What if the number of plants were unknown? The applicant argues that certain hypothetical situations illustrate these concerns, in this case and from recent jurisprudence.

[84] The applicant suggests a reasonable hypothetical situation in which a licensed marijuana producer grew more than 500 plants by miscounting, resulting in the imposition of the MMP required under s. 7(2)(b)(v) of the CDSA. The applicant suggest this is an example of the MMP being grossly disproportionate.

[85] In addressing this question, I am persuaded by the persuasive reasoning offered by Durno J. in his consideration of s. 7(2)(b)(ii) as it related to a case involving less than 200 plants. While this particular CDSA section is not before me, in Vu No. 1, at para. 232, Durno J. stated that “the hypothetical situation only applies where the overage is relatively small.”

[86] In R. v. Vu, 2015 ONSC 7965 [“Vu No. 2”], Durno J. had occasion to address the other sentencing provisions that fell under s. 7(2)(b). Notably, the fact pattern proposed by the applicant here was implicitly rejected. At para. 29, Durno J. stated:

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

[87] Justice Beames in Hanna, considered a hypothetical situation of a caretaker to a 501-plant outdoor grow operation, with no risk of fire or theft of electricity, to which the two-year mandatory minimum under s. 7(2)(b)(v) would apply. The jurist determined that the sentence would not be grossly disproportionate, stating at para. 28:

… However, it is to be noted that the operation would still attract risks, and would still be a planned and deliberate commission of a criminal offence with significant profits to be made. The same links to crime in the community, and potential links to organized crime, could still exist in that scenario. The outdoor grow operation in the hypothetical scenario would contribute to the commercial drug trade, with all of the negative impacts that has on the community. While the moral culpability of a caretaker is less than that of an owner, many commercial marihuana grow operations would likely not exist without a caretaker.

[88] In addressing the reasonable hypothetical question, the applicant asks this Court to adopt and follow the conclusions reached by Code J. in the recent case of R. v. Pham, 2016 ONSC 5312. In support of his position, the applicant relies primarily on the Pham case and his argument is focused on the analysis provided by the learned jurist, including the specific cases referred to therein.

[89] In Pham, Code J. undertook the Nur analysis and determined that s. 7(2)(b)(v) was unconstitutional on the basis of a reasonable hypothetical advanced by the applicant. Justice Code relied on three main cases in striking down s. 7(2)(b)(v), namely; Vu Nos. 1 and 2, per Durno J.; R. v. Zheng, 2015 ONCJ 30 (sentencing judgment at [2015] O.J. No. 7182 per Green J.; and R. v. Jiang, [2015] O.J. No. 7077 (available on QL) (C.J.) per Green J.

[90] In Vu No. 1, defence counsel proposed the following reasonable hypothetical: a producer with a 500-plant license makes an honest counting mistake and accidentally grows 506 or more plants. What matters is the number of plants above which the license authorizes. If a person grew six extra plants, he or she would be subject to a MMP of six months, pursuant to s. 7(2)(b)(i).

[91] Justice Durno accepted as reasonably foreseeable the scenario of a licensed marijuana grower accidentally exceeding his 500-plant allotment by between 6 and 200 plants, thus rendering the grower liable to the six-month minimum sentence under ss. 7(2)(b)(i) and (ii). It was accepted in submissions before Durno J. that there was no reason why a medical marijuana license could not be for as many as 500 plants and that the grower would be charged only for the amount by which they exceeded their license. Justice Durno concluded that this unintentional violation would result in a grossly disproportionate sentence.

[92] Justice Durno ultimately agreed that ss. 7(2)(b)(i) and (ii) of the CDSA violated s. 12 of the Charter because the offender could be subject to a MMP when he or she makes a mistake as to the number of plants he or she is growing, not knowing he or she has exceeded the limit imposed by a valid growing license. Justice Durno subsequently ruled that this specific finding was severable from any consideration of ss. 7(2)(b)(iii) to (vi), which, of course, includes the applicable MMP in the present case: Vu No. 2, at para. 35.

[93] Justice Code came to a similar conclusion in Pham, expressly adopting Durno J.’s reasoning in relation to the specific two-year MMP. After approving of the reasoning in Vu and reviewing cases in which licensing issues had led to prosecutions, at paras. 41-42, Code J. held:

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.”

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”: Nur, at paras. 80-83; R. v. MacDonald (2014), 2014 SCC 3, 303 C.C.C. (3d) 113 (S.C.C.) at paras. 55-61. 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.”

[94] In the course of argument in relation to Vu No. 2, (and touched upon in oral argument before me), the prosecution in that case submitted that this was a fanciful situation. A person with a license to grow, especially a license to grow 500 plants, is duty-bound to abide by the terms of the license. With commercial operations, their viability is dependent on complying with the limits imposed by the license. The Crown further argued that it was not reasonably foreseeable that offences under the production section would capture offenders engaged in licensing-type offences. Someone charged under s. 7 of the CDSA could not be said to have made a mistake. Rather, they would have committed a serious criminal offence that involves a real risk of harm flowing from the conduct. That person’s blameworthiness cannot be said to be minimal.

[95] In Vu No. #1, Durno J. also described a judicial pre-trial conference over which he had just presided on the question of an excess number of plants in respect of a valid license to produce. At paras. 229 and 231, His Honour stated:

… 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 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.

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.

[96] Justice Durno continued with his observations of hypothetical scenario with his comments at para. 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.

[97] I am of the view that one should therefore be wary of simply transposing the reasonable hypothetical relied upon by Durno J. in the context of ss. 7(2)(b)(i) and (ii) to s. 7(2)(b)(v). The finding that paragraphs (i) and (ii) are unconstitutional based on a reasonable hypothetical does not automatically mean that paragraph (v) is unconstitutional based on that same reasonable hypothetical.

[98] That said, it bears repeating that in Nur, the Supreme Court refined the test for hypotheticals to one of reasonable foreseeability.

[99] It is true that the instant case and Pham are similar. Neither accused was the owner of the residence or the principal behind the offence. Similar numbers of plants were found in each grow operation, along with other indicia of grow operations. Significantly, there was some evidence of a hydro by-pass in this case (albeit not relied upon by the Crown for sentencing) but no such evidence in Pham. Neither grow operation was authorized, at all or in part, by a license in accordance with the medical marijuana licensing regulations in force at the time of the offence, namely the Medical Marihuana Access Regulations.

[100] As I read Pham, it appears that Code J. placed great reliance on Durno J.’s reasoning and the reasonable hypothetical scenarios arising from the aforementioned three cases in declaring s. 7(2)(b)(v) unconstitutional.

[101] The Crown argues that in the instance of s. 7(2)(b)(v), where the quantity of illegal plants in question is more than 500, the overage is visibly large in relation to whatever number of legal plants are present. Where more than 500 illegal plants are also present, moral blameworthiness is necessarily greater. Where moral blameworthiness is greater, the gross disproportionateness of the MMP as it applies to the reasonable hypothetical is suspect. Thus, is the reasonable hypothetical relied upon by Durno and Code JJ. contingent on the specific overage or quantification of the number of plants exceeding the MMP? In other words, is there a requirement to ascertain the number of plants that it takes to invoke a reasonable hypothetical in relation to the licensing regime found in s. 7(2) of the CDSA?

[102] In his discussion of the cases employed as reasonable hypotheticals in Pham, Code J. refers to Zheng as a case where an accused “believed that he/she was acting in compliance with a license” and was prosecuted for a s. 7(1) offence: para. 36. According to the learned jurist, Zheng is an example of a case that can “reasonably arise” when “licenses authorizing ‘more than 500’ plants have expired and not been renewed [sic] in a timely way, as in a case like Zheng”: at para. 41.

[103] With respect, those were not the actual facts of the case, in that there were four licenses at the premises, only two of which were current at the time of the offence. The two expired licenses respectively provided for only 15 and 83 plants to be grown. The two current licenses together provided for 30 plants to be grown. If all four licenses had been valid, 128 plants could be grown. At the premises, police found 1,507 plants, which was 50 times the number of plants permitted to be grown by the current licenses, and over 11 times the number of plants permitted to be grown by the four licenses if all of them had been current.

[104] The Crown submits that issue for Mr. Zheng was not that the two licenses had elapsed, but that the number of plants so grossly exceeded what was at one time permitted by the licenses. The Crown says that while it might be reasonable to accidentally exceed a permitted quantity by a few plants, does 11 or 50 times the permitted quantity veer sharply into the territory of unreasonable or far-fetched? In Zheng, had the number of plants exceeded the permitted number, but remained within the 200-plant upper limit, no MMP would have applied to Mr. Zheng.

[105] For the sake of completeness, I am compelled to distinguish the other authority relied upon by my colleague in Pham. Justice Code, at para. 36, considered the case of Jiang under the heading of “a number of cases where an accused believed he was acting in compliance with a license and [was] prosecuted under s. 7(1)”. However, Mr. Jiang was prosecuted under s. 5(2); no MMP was applicable to the offence as alleged or proven. In fact there is no discussion of MMPs at all. My colleague did not appear to explain why a possession for the purpose of trafficking case with no applicable MMP might apply to a s. 12 constitutional challenge of the MMP for production offences.

[106] Justice Durno suggests, and Code J. references (but does not explicitly agree with the statement), that the reasonable hypothetical only applies when the overage is relatively small: Vu No. 1, at para. 232; Pham, at para. 39. In discussing a small overage, Durno J. refers to an overage of six to 200 plants—which falls within the ambit of ss. 7(2)(b)(i) and (ii): at paras. 214-215. From Zheng, Code J. extracts a reasonable hypothetical situation where “an unsophisticated accused with a minor role honestly believes that [the license(s) cover the scope of a large commercial operation]: Pham, at para. 41.

[107] In those cases, for what it is worth, I accept the ruling that the MMP is grossly disproportionate because it is reasonable that a person might miscount a small quantity of plants. However, as I will explain momentarily, I would go further to opine that the distinction for an excess number of plants is not a material component of this stage of analysis for the reasonable hypothetical scenario.

[108] The Crown makes a strong argument in respect of its challenge to the conclusory reasoning in Pham. In matters of constitutional decisions arising from the same level of court, the principles of judicial comity must be addressed.

[109] The jurisprudence provides that independent of any statutory authority, and from valid consideration of judicial comity, a judge should not overlook and ignore the decision of a judge upon a similar matter in a court of co-ordinate jurisdiction, even though he or she may not be bound by it: R. v. J.B. & Sons Co., 1969 CanLII 54 (SCC), [1970] S.C.R. 220, 9 D.L.R. (3d) 345; Marconi Wireless Telegraph Co. v. Canadian Car & Foundry Co. (1918), 1918 CanLII 844 (CA EXC), 18 Ex. C.R. 241, 44 D.L.R. 378 (Exchequer Ct.); Masse v. Dietrich, 1971 CanLII 554 (ON SC), [1971] 3 O.R. 359, 20 D.L.R. (3d) 399 (Co. Ct); R. v. Kartna (1979), 2 M.V.R. 259, 3 W.C.B. 414 (Ont. H.C.).

[110] Judicial decisions from the same level of court on the very same subject matter and relevant legal principles are very persuasive and ought to be followed in the absence of strong reasons to the contrary, or unless the judge is convinced that it is clearly wrong: R. v. Northern Electric Co., 1955 CanLII 392 (ON SC), [1955] O.R. 431, 111 C.C.C. 241 (H.C.); Horne v. Horne Estate (1986), 1986 CanLII 2786 (ON SC), 54 O.R. (2d) 510, 22 E.T.R. 272 (H.C.) aff’d on other grounds (1987), 1987 CanLII 4090 (ON CA), 60 O.R. (2d) 1, 26 E.T.R. 233 (C.A.).

[111] In Nur, the Supreme Court of Canada had occasion to address the potential for subsequent s. 12 constitutional challenges and in this context provides instructive comments, in obiter, at para. 71:

[C]an 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, 2000 SCC 39, [2000] 2 S.C.R. 90 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” …

[112] I am mindful of the principles of judicial comity, including the high threshold that is engaged upon a re-visitation of a decision of a judge of co-ordinate jurisdiction on the reasonable foreseeability question. While I may be unable to fully adopt or rationalize the specific underlying cases relied upon by the learned jurist to support his analysis, I see no reason not to follow Code J.’s logic and principled conclusions in Pham.

[113] In the alternative, the applicant also emphasizes that in considering foreseeable hypothetical scenarios, the law may also inadvertently impose a disproportionate jail sentence on a gardener or minor party to the grow operation for simply tending to a number of plants, acting as a custodian or other menial activity like retrieving garbage.

[114] In the British Columbia case of McGee, Schultes J. appears to have adopted most of the analysis cited in Hofer, referenced at paras. 123-126. Nonetheless, Schultes J. finds a reasonable hypothetical scenario on the basis of party liability to find that the provision is unconstitutional. This discussion is found at paras. 127 and 128 of McGee:

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]”.

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.

[115] Whether the assistance consists of briefly lending a hand to a friend or pitching in to harvest the crop, the court appears to accept that these are reasonably foreseeable scenarios. The key component in the McGee analysis is the “brief, one occasion, or time-limited” nature of the examples. Again, with respect, I have some trepidation about the temporal analytical approach in McGee as it may tend to comingle the mens rea element of the offence with the principles of sentencing. Nonetheless, the logic is persuasive.

[116] In addressing the important question of the scope of the proper test to be applied, I acknowledge that Ms. Houtmeyers’ argument is convincing. However, I am mindful of the direction from the Supreme Court of Canada and the Ontario Court of Appeal in dealing with the vexing question of the reasonable hypothetical scenario in considering s. 12 Charter relief.

[117] For this application, the Crown argues that in Goltz, and subsequently reinforced in Morrisey, the Supreme Court of Canada reminded trial judges that in challenging MMPs under s. 12 of the Charter, an applicant must “marshal a reasonable example pertaining to the precise provision being challenged”. In those cases, the Court narrowed the scope of what constitutes a “reasonable hypothetical” scenario, to avoid striking down legislation based on “far-fetched”, “marginally imaginable”, “remote”, or “extreme” examples.

[118] With respect, this is where the Crown’s argument falters. In my view, the scope of analysis of the specific reasonable hypothetical question discussed in both Morrissey and Goltz is no longer good law as this approach has been effectively overruled in Nur. At para. 72, the Chief Justice specifically rejects the majority position in Morrissey, which held that you should reject hypotheticals if they can be considered marginal or far removed from the mainstream conduct for such offenses. My understanding of the Nur decision is that you can consider marginal hypotheticals as long as they are reasonable and not far-fetched.

[119] At para. 23 of its factum, the Crown submits that “[t]he constitutional frailty of the s. 95 mandatory minimum in Nur was that it was a single, one-size-fits-all penalty which applied indiscriminately to any s. 95 offence, regardless of its level of moral culpability. The majority’s concern that licensing-type conduct could be captured by the MMPs in s. 95 is clear:

“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.” [emphasis added]

“…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.” [emphasis added]

“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. Consequently, I conclude that s. 95(2)(a)(i) breaches s. 12 of the Charter.” [emphasis added]””

[120] However, as I read para. 23 of the Crown’s factum, counsel is citing the majority’s summary of what Doherty J.A. said in the Court of Appeal’s judgment in Nur. With respect, it seems that Crown counsel is ignoring the fact that the Supreme Court of Canada ruled against a distinction based on levels of offenses. In Nur, at paras. 49, 58 and 65, the Supreme Court of Canada makes it clear that one must consider the reasonably foreseeable hypothetical situation and not just the conduct of the particular offender. Paragraph 68 stipulates that the hypotheticals need not be likely, as it is enough that they may reasonably arise.

[121] At para. 74 of Nur, the Chief Justice specifically held that one can look at hypotheticals at the licensing end of the spectrum – even though, as well all know, Nur had nothing to do with licensing whatsoever. Recall that the appellant in Nur did not even argue that the three-year minimum would be grossly disproportionate to him on his facts; only that it would be grossly disproportionate on reasonably foreseeable hypotheticals. At para. 79 of Nur, the Chief Justice expressly agrees with that proposition.

[122] Importantly, at para. 25 of Nur, the Chief Justice recites a summary of Doherty J.A.’s decision in the Court of Appeal which spoke of different spectrums of conduct that would be caught by s.95, with licensing-type infractions being the lower end of the spectrum. Justice Doherty held that his analysis leading to the conclusion that s. 95 violated section 12 did not prevent Parliament from maintaining the MMP for the “true crime” end of the s. 95 spectrum. However, in para. 82, the Chief Justice captures the essence of Doherty J.A.’s “different ends of the spectrum” analysis. Perhaps somewhat curiously, the Chief Justice does not return to it or adopt it.

[123] Rather, having concluded that there are reasonable hypotheticals at the licensing and/or at the safe storage end of the situations caught by s. 95, the MMP for the impugned section is in violation of s.12. It is upon this basis that I conclude that the Supreme Court of Canada’s decision really stands for the proposition that if there is any reasonable hypothetical that is not far-fetched, which would result in a grossly disproportionate sentence if the MMP was applied, then the MMP violates s. 12. Indeed, the majority makes no effort to carve out different segments of the spectrum, and nowhere do I see any effort by the Supreme Court of Canada to reaffirm Doherty J.A.’s suggestion that Parliament may be able to maintain the MMP for cases in the “true crime” continuum, which will include the vast majority of cases.

[124] Finally, at para. 119 of Nur, the majority upholds the finding that s. 12 is breached by the mandatory minimum sentence contained therein - because it would be grossly disproportionate when applied to a reasonably foreseeable hypothetical – without any allowance or the fact that the minimum would not be grossly disproportionate in the majority of cases.

[125] In this case and equally in Pham, neither accused possessed a legal licence to grow marijuana. For the purposes of this exercise, in my view, it does not matter. In the course of these challenges to the MMP under the reasonably hypothetical analysis, the test is one of reasonable foreseeability.

[126] The Supreme Court of Canada’s ruling in Nur provides direction to appellate and trial judges on the appropriate considerations to address the constitutionality of any MMP provision. The focus of the court’s decision specifically encompasses offences that engage licensing or regulatory oversight or approvals. Indeed, licensing is the central component of the reasonable hypothetical scenarios in both drug and gun cases for the s. 12 Charter analysis. To what extent, if any, consideration of a fitting measure of the amount or overage of illicit plants required to properly sustain a reasonably foreseeable hypothetical scenario for these types of cases is best left for the Court of Appeal.

[127] Therefore, I conclude that a reasonable hypothetical implicating any number of plants over the amounts specified in the licensing provisions captured specifically by the MMP in s. 7(2)(b)(v) would be foreseeable and give rise to a sentence that would be grossly disproportionate.

CONCLUSION:

[128] Under the particularized inquiry, I am not satisfied that the applicant has met his onus in challenging the constitutionality of s. 7(2)(b)(v) of the CDSA. Having regard to the potential harm flowing from this offence and the moral culpability of any offender involved an illicit marijuana production operation involving significantly more than 500 plants, the application of the impugned CDSA provision would not result in a sentence that is grossly disproportionate.

[129] That said, based on the principles arising from the seminal decision of the Supreme Court of Canada in Nur and for the aforementioned reasons, the reasonable hypotheticals employed in this case support the applicant’s constitutional challenge. These foreseeable hypotheticals in the context of the licensing provisions found in the impugned CDSA provision would result in a sentence that is grossly disproportionate.

[130] The applicant has established that the two-year mandatory minimum jail term provided for in s. 7(2)(b)(v) in the circumstances of this case constitutes cruel and unusual punishment and violates s. 12 of the Charter.

SENTENCING:

[131] This court, or any court, is guided by the principles of sentencing as set out in s. 718 to 718.2 of the Criminal Code. As directed by s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing sanctions that reflect enumerated objectives. The objectives relevant to this case are a denunciation of the unlawful conduct, deterrence of other potential offenders and rehabilitation of Mr. Tran. It is important to impose a sentence that promotes a sense of responsibility in offenders, and an acknowledgment of the harm done to the community. The sentence must be proportionate to the gravity of the offence and the offender’s degree of responsibility. The circumstances of the offence and of the offender must be analyzed to identify the aggravating and mitigating factors.

[132] Section 718.2 addresses the principles of totality, parity, and the principle of restraint among other factors. This section also addresses specific aggravating and mitigating factors that shall be taken into consideration on the basis of those enumerated principles. I must also consider the principles outlined in s. 10 of the CDSA.

[133] Before going further, I wish to emphasize that although I have discussed ranges of sentences identified by me and proposed by counsel, they are not meant to be fixed and inflexible. On the contrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges found in the jurisprudence are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences.

[134] As mentioned, the Crown’s position is a sentence of two years jail. Initially, the applicant argued for a conditional sentence; however, during oral submissions, counsel suggested that the appropriate range of sentence for her client was between six to eight months in custody.

[135] For sentencing purposes, I have already addressed the offence and the nature of the conduct in these Reasons. Briefly, in terms of the aggravating features, this was a large sophisticated grow operation where the sole motivation for its existence was profit. The operation was conducted in house and located in a residential neighbourhood where a hydro by-pass and electrical connections were apparent and in use. I can draw the reasonable inference that there was some risk of danger. As mentioned, Mr. Tran’s conduct, even as a party, dictates a meaningful degree of moral blameworthiness requiring denunciation and deterrence, albeit at a reduced level from that of a principal party.

[136] In respect of the offender, I do not have an abundance of personal information about Mr. Tran. The mitigating factors include: Mr. Tran is a 37-year-old man with no criminal record. Mr. Tran was, at minimum, a caretaker who entered the unoccupied home on several occasions with a key and was aware of the production. He was not the leader of the operation and there is no evidence that Mr. Tran would have profited directly from distribution of the drugs. Mr. Tran cannot be penalized for insisting on his right to a trial. However, he does not receive the benefit of mitigation for a guilty plea. His plea of not guilty and lack of any demonstrated remorse in the circumstances of this case are neutral factors.

[137] I have considered the principles of sentencing as well as s. 10 of the CDSA, the seriousness of the offence and the offender’s circumstances.

[138] For all of the aforementioned reasons, the sentence to be imposed is as follows: Mr. Tran is to provide a sample of his DNA pursuant to s. 487.051 of the Criminal Code. Mr. Tran is subject to a weapons prohibition for 10 years and life for other segments in accordance with s. 109 of the Code. Mr. Tran is sentenced to a term of 12 months imprisonment on each count concurrent.

A.J. Goodman J.

Released: February 3, 2017