COURT FILE NO.: CR-23-0008 DATE: 2025-05-02 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING – and – Zongxiu Jiang M. Haque, or the Federal Crown C. Schirk, for the accused, Zongxiu Jiang HEARD: October 23, 2024 and May 2, 2025. DECISION ON SENTENCING justice s.k. stothart (Orally)
[ 1 ] On October 23, 2024, the accused, Zongxiu Jiang, pled guilty to and was found guilty of cultivating cannabis in a non-dwelling house on June 7, 2021, contrary to s. 12(6) (a) of the Cannabis Act , S.C. 2018, c.16. On October 23, 2024, I received submissions from counsel and the matter was adjourned for sentencing. As I considered the matter, I decided that a pre-sentence report should be prepared. I have now received and reviewed the pre-sentence report. On todays’ date I also received a letter from Franklin Public School that I have also reviewed.
Facts
[ 2 ] The facts underlying the offence are that between March and April 2020, the Ontario Provincial Police received reports of a strong odor coming from 92 Park Road in Kearney, Ontario. This property is owned by the accused and there is an old steel factory located on the property. The police determined that there were four Health Canada certificates associated with this address that permitted the growing of 390 cannabis plants. At the time, given the certificates, the police did not pursue any further investigation into the property. The Health Canada certificates are not in the accused’s name. The accused is not a registered grower of cannabis.
[ 3 ] On April 2, 2021, the police stopped the accused and another individual exiting the Park Road property pulling a trailer. The police located 525 cannabis plants in the vehicle and trailer. Neither the accused nor his passenger were authorized to possess this cannabis. The accused and the passenger were charged with offences under the Cannabis Act.
[ 4 ] Following this incident, the police conducted surveillance around the Park Road property because they suspected cannabis cultivation was taking place inside the building. During the span of about five weeks, various vehicles were observed attending the property, including the accused’s vehicle.
[ 5 ] On June 7, 2021, the police executed a search warrant on the property and searched the commercial building. Inside they located:
a. 4,500 cannabis plants in various stages of growth; b. 204.4 pounds of processed cannabis (bud); c. A large quantity of cannabis processing equipment, including a debudding machine, portable sprayers, vacuum packaging equipment, and dehumidifiers; and d. 600 unopened bags of soil.
[ 6 ] At the time of the execution of the warrant, the accused was present with two other individuals. There was evidence that people had been staying in the building for days at a time. There was also evidence that the accused had been purchasing propane for the commercial building.
Position of the Parties
[ 7 ] Both the Crown and defence jointly submit that a sentence of 18 months imprisonment is appropriate. They disagree about whether this sentence should be served in the community or in jail.
[ 8 ] The Crown submits that the accused was the principal party in a large-scale drug operation. The accused purchased the building in Kearney which was a large investment. He held a substantial mortgage on the property. The operation itself was sophisticated involving a lot of equipment. The existence of valid cannabis certificates in the names of others provided a cover for the operations at this location. Ultimately, the number of cannabis plants found was over three thousand more than the amount permitted to be grown there. In these circumstances, the Crown submits that a conditional sentence is inappropriate.
[ 9 ] The defence submits that the sentence should be served in the community, as part of a strict conditional sentence order. At the time of this offence, the accused had no criminal record. The accused is a permanent resident of Canada and lives in Toronto with his wife and two children. One of his children has special needs and requires additional parental support and private therapy which is expensive. The defence says that the accused has limited education and was told that cannabis was legal, and you could make money growing it. The accused was loaned money by friends to purchase the Kearney property and has a large mortgage on the property. The accused is now in the process of selling the property.
[ 10 ] The defence submits that the accused has pled guilty and expressed remorse for his actions. In doing so, the accused has forgone a potential Charter argument with respect to the actions of the police who destroyed the cannabis found on the premises. The accused has been on pre-trial release for over three years and has not incurred any further charges or violated the terms of his release.
[ 11 ] The defence submits that there are collateral consequences related to the accused’s plea of guilt. If he is sentenced to 18 months in jail, he may be subject to potential deportation with no right of appeal. A conditional sentence of 18 months would reserve the accused’s right to appeal a deportation order. If he is deported, the accused will be separated from his wife and children and if they remain in Canada, they will be left with no support.
Sentencing principles
General principles
[ 12 ] The task of a sentencing judge is to impose a just sentence tailored to the individual offender and the specific offence in accordance with the principles laid out in the Criminal Code, R.S.C., 1985, c.C-46: Regina v. Morris , 2021 ONCA 680 at para. 13 .
[ 13 ] The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives set out in s.718 of the Criminal Code . Those objectives are:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in the offender, and acknowledgement of the harm done to victims or the community.
[ 14 ] The individualization of the sentencing process requires sentencing judges to prioritize and blend the different objectives of sentencing so as to properly reflect the gravity of the offence and the degree of responsibility of the offender. This is referred to as the principle of proportionality and it is a fundamental principle of sentencing found in s.718.1 of the Criminal Code .
[ 15 ] I am also guided by s.718.2 which requires that any sentence I impose should be similar to sentences imposed on similar offenders in similar circumstances. Further, I am directed that any sentence I impose reflects that an offender should not be deprived of liberty if other less restrictive sanctions may be appropriate and that I consider all available sanctions other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to the victims or to the community for all offenders. This is referred to as the principle of restraint, also an important principle of sentencing.
[ 16 ] There is no mathematical formula in determining a just and appropriate sentence. Rather, a court must attempt to carefully balance the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The fundamental and cardinal principle of sentencing is proportionality. A sentence must be severe enough to denounce the offence but must not exceed what is just and appropriate given the moral blameworthiness of the offender and the gravity of the offence: R. v. Singh , 2023 ONSC 4949 at paras. 47-48 .
[ 17 ] Denunciation is important to reflect society’s condemnation of certain conduct by punishing those who disobey society’s basic values. Deterrence is important to deter the offender in question and to deter others who would commit such offences. These principles are paramount in cases involving large-scale marijuana grow operations: R. v. Peltier , 2013 ONCA 141 at para. 10 ; R v. Chen , 2007 ONCA 230 , at para. 2 .
[ 18 ] In determining an appropriate sentence, the court has a duty to explore dispositions other than jail for a first offender. If jail is imposed, it should be for as short as possible and tailored to the individual circumstances of the offender: R. v. Priest , [1996] O.J. No. 3369 (Ont.C.A.)
Collateral consequences
[ 19 ] Collateral consequences associated with the imposition of sentence may be taken into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentencing judge should not impose an inappropriate sentence in order to avoid collateral consequences such as immigration consequences.: R. v. Pham 2013 SCC 15, [2013] S.C.J. No. 100 at para. 15 .
[ 20 ] Collateral consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation. Immigration consequences should not lead to a separate sentencing scheme in which factually, or legally, a special range of sentencing options is applied where deportation is at risk: R. v. Pham , at para. 16 .
[ 21 ] In R. v. Zhou, 2016 ONSC 3233 , at para. 14 , Pomerance J., as she then was, considered the issue of collateral consequences and summarized the applicable principles as follows:
a. The court may consider the collateral consequences of a sentence in arriving at a fit disposition; b. Collateral consequences may pertain to immigration status, but may also pertain to other life circumstances; c. The court may consider consequences of sentence, not only for the offender him or herself, but for family members; d. Collateral consequences are not properly considered mitigating or aggravating factors. They are personal circumstance bearing on the prospect of rehabilitation; and e. Collateral consequences while relevant to sentence, cannot justify imposition of a sentence that is unfit or disproportionately lenient.
Conditional sentence
[ 22 ] Pursuant to s. 742.1 of the Criminal Code , a conditional sentence is available where a court sentences an accused to two years less one day or less and the court is satisfied that serving the sentence in the community will not endanger the safety of the community and that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing as set out in ss. 718 to 718.2 .
[ 23 ] Conditional sentences are available in principle for all offences in which the statutory prerequisites are satisfied. There are no offence-specific presumptions against the imposition of a conditional sentence. This is because sentencing is an individualized process that requires a court to fashion a fit sentence, having regard to the applicable sentencing principles: R. v. Proulx , 2000 SCC 5 , at paras. 79 , 81-82.
[ 24 ] Conditional sentences are available for offences where the primary sentencing considerations include general deterrence and denunciation: R. v. Priest , [1996] O.J. No. 3369 (Ont.C.A.)
[ 25 ] In some circumstances and for certain offences, courts have held that a conditional sentence will only be appropriate in “exceptional circumstances”. What that means is where there is a need to prioritize denunciation and deterrence for certain offences, and while there is no presumption against conditional sentences, these offences may require more compelling personal circumstances, mitigating factors, and/or the absence of aggravating factors in order to justify a conditional sentence: R. v. Pike , 2024 ONCA 608 , at para. 181-182 .
Range of sentences for large-scale cannabis operations
General principles
[ 26 ] The principles of denunciation and deterrence are paramount in cases involving large-scale marijuana grow operations: R. v. Chen , 2007 ONCA. at para. 2; R. v. Li , 2007 ONCA 645 at para. 47 ; R. v. Ling , 2017 ONSC 5627 at para. 42 . R. v. Chiasson, 2017 ONSC 2521, at para. 43 ; R. v. Koenders , 2007 BCCA 378 at para. 21 .
[ 27 ] One of the reasons these principles are of paramount importance is the nature of the commercial production of cannabis. In R. v. Koenders , the British Columbia Court of Appeal noted at para. 21:
The person who becomes involved in the commercial production of marihuana, solely for profit, makes a deliberate decision to operate outside the laws of this country. Unlike most other offences, the production of marihuana is not situational: no one can operate a grow operation without a large amount of planning, deliberation and organization.
[ 28 ] There is no presumption in favour of or against a conditional sentence, including offences related to the production of marihuana: R. v. Koenders , at para. 12 .
[ 29 ] However, in Ontario, the imposition of a conditional sentences has been rare, even for first offenders, in cases involving large marijuana grow operations: R. v. Song , 2009 ONCA 896 at para. 5 ; R. v. Jacobson , (2006), 207 C.C.C.(3d) 270 (Ont.C.A.) para. 31 ; R. v. Li , at para. 46.
Cited sentencing authorities
[ 30 ] The Crown and defence have provided me with a number of authorities with respect to the appropriate range of sentence in this case.
[ 31 ] The defence has provided a number of authorities that set out sentences imposed related to cultivating or producing marijuana. A summary of these cases is as follows:
a. R. v. Camuso [2004] O.J. No. 4606 . The accused pled guilty to the offence of producing marijuana. In that case the police found 560 to 730 marijuana plants growing in the basement of a house, along with 5.7 pounds of harvested marijuana. When the police executed a search warrant, they found the accused inside working on the plants. The accused did not own the house. The accused had agreed with the owners that he would grow the marijuana and the three would share the proceeds. Justice Fuerst noted at para. 32, that while the principles of general deterrence and denunciation are important in fixing a sentence for the production of marijuana, they do not demand that all offences result in a jail term. Conditional sentences have been imposed for first offenders in cases where 80 to over 1000 plants have been seized and where the grow operation has been described as sophisticated or commercial in nature. In this case the court imposed an 18-month conditional sentence.
b. R. v. McLennan and Munro , 2001 BCCA 299 . The accused pled guilty to unlawful production of marijuana. The marijuana was grown in a barn and the police found 2,472 plants. The British Columbia Court of Appeal converted 2 years less a day sentence to one to be served conditionally.
c. R. v. Shah , 2003 BCCA 294 . The accused was found in a house that had 1,535 plants and hydroponic equipment. The British Columbia Court of Appeal held at para. 6, that the mere size of the crop should not stand in the way of the imposition of a conditional sentence. The Court of Appeal substituted the sentence imposed with a conditional sentence for one year.
d. R. v. Lee , 2013 BCSC 6 . The accused was found growing 247 plants in his home. He was sentenced to a 15-month conditional sentence.
e. R. v. Li , 2014 ONSC 180 . The accused was found guilty, after trial, of production of cannabis and possession of cannabis for the purpose of trafficking. There was an outdoor grow operation on a rural property that contained 5,913 plants. The accused was observed working on the plants. There was extensive evidence called at sentencing which demonstrated that the accused been the victim of domestic violence and compelled to work on the plants. Evidence was received from physicians that the accused suffered from PTSD from the violence and threats. The court imposed an 18-month conditional sentence.
f. R. v. Chow , 2015 BCSC 2063 . The accused pled guilty to production of marijuana. The property was owned by the accused’s brother. When the police executed a search warrant, they found the accused there with another person. The police located 464 plants that had been cared for manually, with the exception of grow lights. The accused was not the principal operator or owner of the grow operation. His involvement was limited to the delivery of potting soil to the property on two occasions. The court imposed a 15-month conditional sentence.
g. R. v. Lemkay [2001] M.J. No. 186 (Man.C.A.) . The police searched a residence that the accused were renting and found a sophisticated grow operation. The police located 104 plants in vegetative stage, 181 seedlings, and 64 plants in flowering stage, and 5652 grams of shake, 1 kg of seed, and 345 grams of bud. The Manitoba Court of Appeal found at para. 9, that the deterrent effect of a conditional sentence is found in its length and replaced the sentence imposed by the sentencing judge with 20- and 22-month sentences to be served in the community.
h. R. v. Zhou , 2016 ONSC 3233 . The accused pled guilty to cultivating marijuana and theft of hydro. The accused was engaged in the maintenance of marijuana plants and was not the controlling mind of the operation. The court imposed a sentence of 5-1/2 months jail.
[ 32 ] The Crown relies on the following authorities:
a. R. v. Chen , 2007 ONCA 230 . The accused, who lived in Toronto, came to Windsor for the purpose of participating in two sophisticated grow operations for personal gain. He was convicted of production of marijuana, two counts of possession of marijuana for the purpose of trafficking and two counts of wilful damage to property. The Ontario Court of Appeal upheld the 18-month custodial sentence having regard to the gravity and seriousness of the appellant’s crimes.
b. R. v. Song , 2009 ONCA 896 . The accused set up and ran a large-scale marijuana grow operation in a residential area. The police located 1,400 marijuana plants and found that the accused had bypassed hydroelectricity. The accused pled guilty to production of marijuana and had no criminal record. The sentencing judge imposed a 12-month conditional sentence and 3 years’ probation. The Ontario Court of Appeal found that the sentencing judge erred in three respects: (a) he ignored or failed to give effect to the jurisprudence emanating from the Court of Appeal that conditional sentences will be rare, even for first offenders, in cases involving large residential marijuana grow operations; (b) he failed to apply the binding jurisprudence mandating that general and specific deterrence be taken into account in arriving at an appropriate sentence in cases of this nature; and (c) he was not objective in his sentencing and imposed an unfit sentence. The Court of Appeal at para. 17, concluded that this was not one of those “rare marijuana-grow-operation” cases where a conditional sentence would have been appropriate.
c. R. v. Just , 2018 ONSC 4088 . The accused was found guilty of two counts of production of cannabis and possession for the purpose of trafficking. The accused cultivated marijuana on rented land and in a rented residence. The police found 3775 plants at the two properties. The court found that the accused was the principal player in a large-scale commercial operation and employed 4 foreign workers. The accused had no criminal record and family support. The accused had also complied with bail terms while awaiting trial. The court imposed a sentence of 2 years jail.
d. R. v. Chiasson , 2017 ONSC 252 . The accused grew marijuana in an abandoned mechanic’s garage. The police found 1364 plants and 12 grams of harvested product. The accused pled guilty to marijuana production and possession of marijuana for the purpose of trafficking. He had no criminal record and had been on bail for three years. The court found that the accused was not a gardener, but rather was the principal in the production and trafficking scheme. The court noted: (a) courts have consistently held that the principles of denunciation and deterrence are paramount in cases involving large scale marijuana grow operations (paras. 9 and 43); and (b) courts have routinely taken notice of the fact that the drug trade spawns pervasive and often violent criminal activity, and is, in and of itself, a danger to the community (para. 27). The court held that the range of sentence for the offence would be 15-24 months incarceration (para. 44).
[ 33 ] I have also reviewed R. v. Bentley , 2017 ONCA 982 . The accused in that case carried on a marijuana grow in a rental house. The police found 3,618 marihuana plants and 7 pounds of processed marihuana. The accused was also stealing electricity from the house to power the growing operation equipment in a shed. The accused had a related but dated record for which he received a conditional discharge. The sentencing judge imposed a sentence of 90 days incarceration, to be served intermittently. The Court of Appeal overturned the sentence as unfit and imposed a sentence of 18 months jail (the execution of which was stayed).
Analysis
Should the range for the illegal production of cannabis or cultivation of cannabis be re-considered in light of the Cannabis Act ?
[ 34 ] In this case, the defence submits that the principles of sentencing as they apply to the cultivation or production of marijuana must now be re-considered in light of the proclamation of the Cannabis Act in 2018. In support of this submission, the defence relies on R. v. Murphy, 2021 NLCA 3 , where the majority of the Newfoundland Court of Appeal accepted that the passage of the Cannabis Act reflected a diminution of the objective seriousness of the offence of possession for the purpose of trafficking cannabis and that this is a factor that may be considered in crafting an appropriate sentence for the offence of possession of cannabis for the purpose of sentencing: R. v. Murphy , at para. 18 .
[ 35 ] The defence submits that under the Controlled Drugs and Substances Act there used to be a plant threshold that applied to the offence of production. Under the Cannabis Act, there is no longer a direct relation between the number of plants and the sentence to be imposed.
[ 36 ] The defence also points to the enactment of Bill C5, which made conditional sentences available for many drug offences for which conditional sentences had previously been unavailable. The defence submits this reflects society’s desire to reduce jail sentences for drug offences.
[ 37 ] The defence concedes that there is very little recent authority with respect to the imposition of conditional sentences for commercial cannabis production. The defence submits that the Ontario Court of Appeal decision in R. v. Strong, 2019 ONCA 15 , which the crown relies on, has less precedential value because it is a judicial endorsement.
[ 38 ] In R. v. Strong , 2019 ONCA 15 , the Ontario Court of Appeal rejected the argument that changed societal attitudes towards marijuana use warranted a reduction in the established range for the offences of trafficking in marijuana. The Court wrote at paras. 3-4:
While the societal perception of the seriousness or harmfulness of the offender’s conduct has a role to play in considering factors such as denunciation and deterrence, we see no basis to conclude that the conduct involved in this case would be viewed as anything other than serious criminal misconduct.
Parliament has not significantly altered the applicable penalty. Nor, in our view, can one assume that a large scale, prolonged trafficking for profit in marijuana is somehow viewed as less serious because of the legislative changes in respect of personal possession and use. The sentence was within the established range. We would dismiss the appeal.
[ 39 ] While Strong is an endorsement, it offers binding authority for the proposition that the sentencing principles likely remain the same with respect to large-scale cannabis grow operations.
[ 40 ] In R. v. Fan, 2021 ONCA 574 , the two accused were found guilty of possession of marijuana, possession of marijuana for the purposes of trafficking, and production of marijuana. In that case, Mr. Fan owned a farm where he leased greenhouses to others who grew marijuana in them. The police found 1,025 plants. There were multiple Health Canada licenses that authorized cannabis production, but the accused were not a named license holder, and the farm was not designated as an authorized production or storage site. Both accused had no prior criminal record and faced potential adverse immigration consequences. In upholding sentences of 20 months for Mr. Fan, and 15 months for his co-accused, Trotter J.A. stated at para. 69:
I accept the appellants’ submissions that the legal landscape relating to the production and possession of marihuana has changed significantly in recent years; however, this court’s approach to large-scale grow operations has not.
In R v. Strong, 2019 ONCA 15 , this court said, at para. 4, that it is not the case that “prolonged trafficking for profit in marijuana is somehow viewed as less serious because of the legislative changes in respect of personal possession and use”. See also R v. Kennedy, 2019 ONCA 77 , at para. 11
[ 41 ] In R. v. McAlpine , 2024 ONSC 797 , at para. 59 , Justice Stribopolous referred to both Strong and Fan , and concluded that pre- Cannabis Act decisions for those offenders involved in the production, distribution or exportation of cannabis or conspiracy to commit these offences remain authoritative.
[ 42 ] With respect to the offence of cultivating cannabis in a non-dwelling, the maximum sentence has not changed following the enactment of the Cannabis Act . The maximum sentence remains 14 years.
[ 43 ] Further, s. 7 of the Cannabis Act sets out its purposes as follows:
The purpose of this Act is to protect public health and public safety and, in particular, to
(a) protect the health of young persons by restricting their access to cannabis;
(b) protect young persons and others from inducements to use cannabis;
(c) provide for the licit production of cannabis to reduce illicit activities in relation to cannabis;
(d) deter illicit activities in relation to cannabis through appropriate sanctions and enforcement measures;
(e) reduce the burden on the criminal justice system in relation to cannabis;
(f) provide access to a quality-controlled supply of cannabis; and
(g) enhance public awareness of the health risks associated with cannabis use.
[ 44 ] Included in the purposes of the Cannabis Act are the need to reduce illicit activities in relation to cannabis and to deter illicit activities in relation to cannabis through appropriate sanctions and enforcement measures. In my view, these purposes recognize Parliament’s desire to deter large scale illegal cannabis production and the illicit activities that are associated with this type of illegal activity. In my view, the stated legislative purpose mirrors the existing Ontario jurisprudence surrounding the principles to be applied when sentencing an accused for an offence involving the large-scale production of cannabis.
[ 45 ] For these reasons, I find that the pre- Cannabis Act authorities with respect to the illegal large-scale production of cannabis remain authoritative and the paramount purpose of sentencing for these types of offences continues to be that of deterrence and denunciation.
Circumstances of the accused
[ 46 ] On the day of the plea and sentencing submissions, the parties did not request a pre-sentence report (PSR). I received submissions from counsel with respect to the accused’s personal circumstances and letters of support from his spouse and friends.
[ 47 ] After receiving submissions, I adjourned the matter so that I could consider the submissions received. As I considered those submissions, I advised the parties that I felt a PSR should be ordered to provide more fulsome information about the accused. A PSR was ordered and prepared. It has been filed as an exhibit in these sentencing proceedings. The parties have been afforded the opportunity today to provide further submissions in light of the PSR.
[ 48 ] Counsel for the accused advised that the accused came to Canada from China when he was 16 years old. His parents are farmers and still reside in China. The accused does not have a lot of education. He has worked in a various jobs including in a poultry factory, as a kitchen helper, doing renovation work, as a roofer, and as a delivery driver. Counsel advised that the accused currently works as a chef in a restaurant in Toronto. The PSR provides a bit of a different perspective, indicating that the accused worked for 10 years in a poultry plant, until 2019 when he began the cannabis cultivation business. The PSR author advises that the accused indicated that he currently works for a restaurant in Toronto but was unable to provide the name of the restaurant or its address. Today counsel provided the name of the restaurant and advised that it is a bubble tea restaurant.
[ 49 ] The accused has been a permanent resident in Canada for over a decade. He met his wife in Toronto, and they married in 2011. His wife’s family lives in Canada and she is a Canadian citizen. The accused and his wife have two children, ages 11 and 12. Both children are Canadian citizens.
[ 50 ] The accused’s son has been diagnosed with autism. I have received a letter from a treating pediatrician who describes the child’s impairment as fairly severe, but there has been gradual progress over time. The letter from the pediatrician refers to the mother receiving a small $5,500 grant from the Ontario Autism Program. The child is on a waiting list for social skills training. The child qualifies for a disability tax credit. Today I received a letter from Franklin Street Public school that confirms that the child attends that school and he is in their Autism community class.
[ 51 ] The accused and wife report that their son’s diagnosis has been very hard on them. It requires a lot of work by both parents to support their son and his development. They say they have had to pay out of pocket for the child’s special education needs and this can amount to hundreds of dollars every week. I have not received any evidence as part of this sentencing with respect to specific payments made by the accused for his son’s therapy.
[ 52 ] Counsel advised that the accused was told that cannabis was legal and that you could make “a lot of money” producing it. Counsel submits that the accused did not commit the offence as a “get rich scheme”. Rather, he was trying to make money to support his family and cover the expenses associated with his son’s therapy. Counsel submits that the accused was loaned money by friends and has a large mortgage on the property in Kearney.
[ 53 ] The PSR indicates that the accused owns a home in Markham, Ontario and he pays $4,000 a month in mortgage payments. In addition, the accused continues to owe over $500,000 with respect to the property in Kearney. It is unclear how the accused manages these financial obligations.
[ 54 ] The accused had no criminal record at the time of his arrest for this offence. He later received a conditional discharge for the offence related to the traffic stop in April 2021.
[ 55 ] I have received five letters of support from the accused’s spouse and friends. The accused’s spouse describes him as good to his parents. He is a loving father who spends time talking and playing with his children when he is home. He is the financial pillar of the family and is her emotional support. The accused’s spouse states that the accused works hard and they have a mortgage on their house. She is understandably terrified of him going to jail and states that she does not know how she will manage.
[ 56 ] The accused’s friends describe the accused as easygoing, respectful, and helpful. They say he is a good person and believe he will be a productive member of Canadian society going forward. He is part of a supportive community in Toronto, and they value his friendship and support.
[ 57 ] Counsel for the accused advises that if the accused is sentenced to 18 months in jail, he may be deported from Canada with no right of appeal. If he receives a conditional sentence, he may still be deported but he will have the ability to appeal this decision and ask to stay in Canada. Counsel submits that the accused needs to receive a conditional sentence in order to have a chance of avoiding the severe impact deportation will have on his family.
Nature of the offence
[ 58 ] This case involves a large scale, sophisticated cannabis cultivation business. The accused purchased a large commercial building in a rural community far from his home. He would have had to arrange for commercial growing equipment, and the evidence is that he paid the propane bills to run the operation. The accused would have been far from his home and family while tending to this business.
[ 59 ] I am satisfied, beyond a reasonable doubt, that this was a commercial enterprise operated for profit. Given the thousands of plants, the pounds of product found, the extensive growing equipment, and the existence of Health Canada certificates not in the accused’s name, it is clear that this was a business designed to make money. The accused was a hands-on operator and owner of this business, evidenced by the fact that he was stopped leaving the property two months prior to the execution of the search warrant driving a vehicle and trailer containing 525 cannabis plants, he was observed coming and going from the property during the period of surveillance, and was present at the property when the search warrant was executed two months later.
[ 60 ] In the PSR the accused’s spouse appeared to believe that the accused had simply grown “too many plants” than he was allowed to. This is incorrect. The Health Canada certificates were not in the accused name, and he was not permitted to legally grow any cannabis.
[ 61 ] The accused has not suggested in these proceedings that he owned or operated this enterprise with anyone else, other than the receipt of a loan from friends to purchase the commercial property. The accused has not suggested that he operated this commercial enterprise as a result of threats or under duress from others. As indicated in the PSR, the accused saw this as an opportunity to make money.
Mitigating factors
[ 62 ] The accused has entered a plea of guilt and I find this to be a mitigating factor in this case. It is an acceptance of responsibility on his part and is an expression of remorse.
[ 63 ] The parties agree that had the matter gone to trial, it would have likely taken three weeks. I accept that the accused’s plea of guilt has saved court time and expense and that is a mitigating factor. With respect to the potential Charter argument, it is difficult for me to assess the significance of this in the absence of a full review of all the evidence. However, I am prepared to accept that a Charter motion would have taken additional court resources, and that the accused has forgone an available argument had the matter gone to trial. I have considered this to be a mitigating factor.
[ 64 ] The accused has been on pre-trial release in relation to these charges for over three years and has not incurred any further charges and there is no suggestion that he failed to comply with the terms of his release order.
[ 65 ] It is mitigating that the accused has led an otherwise pro-social life. He has the support of his family and friends, who describe him as a caring and helpful individual.
[ 66 ] It was submitted that this case did not involve the theft of electricity and that this was mitigating. I find that this is not a mitigating factor, rather it is the absence of an aggravating factor.
Aggravating factors
[ 67 ] It is an aggravating factor in this case that the accused was the owner of the large building and property located in a rural area of Ontario that was illegally producing cannabis. As I have noted earlier, the accused was clearly a hands-on participant in a sophisticated and large-scale commercial production enterprise. He was observed at the property on prior occasions and was present at the time of the execution of the warrant. His ownership of the property was a significant investment on his part and would have served as significant motivation to make this a profitable business. There is no evidence that anyone else was involved in owning and controlling this enterprise. The accused does not assert that he was working for someone else. As such it is reasonable to conclude that the accused was the “operating mind” of this large commercial enterprise.
[ 68 ] The size of the operation in this case is aggravating, with 4,500 cannabis plants in various stages of growth and over 200 pounds of processed cannabis (bud) having been found on the property. In addition, there were a large quantity of cannabis processing equipment located on the property, which speaks to the sophistication of the illegal enterprise. In the cases provided to me, the only case with a similar volume of cannabis is R. v. Li , which can be distinguished on the basis that Ms. Li had been threatened and coerced into cultivating cannabis. In R. v. Bentley , the police found 3,618 marihuana plants and 7 pounds of processed marihuana. On appeal, the Court of Appeal imposed a sentence of 18 months jail.
[ 69 ] It is aggravating that the accused continued to produce illegal cannabis despite having been stopped by the police and charged with illegally possessing cannabis two months prior to the execution of the search warrant that led to these charges. I find that this demonstrates a commitment by the accused to continuing the illegal enterprise, even in the face of outstanding related charges.
Is a conditional sentence appropriate in this case?
[ 70 ] The jurisprudence surrounding the appropriate range of sentencing for the production or cultivation of marijuana makes a distinction between “laborers” or “gardeners”, whose role is to tend to the plants, as opposed to those individuals who are in control of the business or are the “operating minds”. The gravity of the offence and the degree of responsibility of the offender is increased for those who control the illegal commercial enterprise.
[ 71 ] As noted in Koenders , no one can operate a grow operation without a large amount of planning, deliberation and organization. In this case, the accused purchased a large rural property that contained a large commercial building in Kearney, which is far from his home in Toronto. He would have had to arrange for multiple pieces of growing equipment and supplies and have them installed inside the commercial building. The accused paid for the natural gas required to run the enterprise.
[ 72 ] In R. v. Ling , 2017 ONSC, Quigly J. found at para. 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”.
[ 73 ] In this case, I find that the accused was the principal of the enterprise, or the “operating mind”. He owned the property and was actively present and involved. As noted earlier, he was observed going to and from the property during surveillance. Five weeks prior to the execution of the warrant, the accused was stopped in a vehicle, hauling a trailer with 525 plants. I note that he has been sentenced with respect to that offence, and I am not re-sentencing him for that offence, it simply part of the evidence that demonstrates his involvement in the enterprise. On the day the warrant was executed, the accused was present at the property.
[ 74 ] I have difficulty with the accused’s submission that he was not running this large illegal enterprise “to get rich” but rather solely in order to pay for his son’s therapy. As noted in the PSR, the accused has large debts associated with his residence in Markham and this commercial property in Kearney. The commercial enterprise would have to make profit in order to cover these debts.
[ 75 ] The cases provided to me as part of this sentencing are consistent with respect to the need for a sentence that achieves general deterrence and denunciation, and where the facts support it, specific deterrence. Courts in this province and elsewhere have recognized the risks and dangers associated with the illegal drug trade and production in justifying significant sentences for large scale cannabis grow productions.
[ 76 ] I am mindful that a sentence of incarceration in this case may have a significant impact on the accused and his family. It may result in the accused being deported to China and his family having to make the difficult choice of remaining in Canada without the accused or joining him in China. Deportation will remove the accused from a community in which he has lived for a considerable period of time and may impact his prospects of rehabilitation given the loss of his familial and community supports. This is a potential collateral consequence of the accused’s choices and actions.
[ 77 ] I am also mindful that if the accused is deported, or incarcerated, it will leave his wife with the responsibility of caring for their two children, one of whom has special needs. This is also a collateral consequence of the accused’s choice and actions. Although, I would note that it would appear that the accused’s wife has likely been primarily responsible for their two children while the accused has been away in Kearney and involved in what I found to be a large scale sophisticated marijuana grow operation. I have considered these collateral consequences in my consideration of the appropriate sentence to be imposed in this case.
[ 78 ] I am satisfied that the accused otherwise poses a relatively low risk to the community, in that he appears before the court with no prior criminal record and has been on bail for a significant period of time without issue. However, he appears to be in significant financial debt and appears unable or unwilling to disclose the specific details of his current employment.
[ 79 ] The jurisprudence as it applies to those who own and control large scale illegal commercial marijuana operations, requires me to place the principles of denunciation and deterrence at the forefront. I must not only address the accused’s specific deterrence in this sentencing, but I must also address the principle of general deterrence as it applies to those who choose to purchase, set up, and run illegal large-scale, sophisticated cannabis grow operations. Given the seriousness of these offences and the high degree of responsibility by owner/operators, the need for a sentence that generally deters others becomes even more important.
[ 80 ] In R. v. Proulx , Lamer J. stated at para. 116 :
Sentencing judges will frequently be confronted with situations in which some objectives militate in favour of a conditional sentence, whereas others favour incarceration. In those cases, the trial judge will be called upon to weigh the various objectives in fashioning a fit sentence. As La Forest J. stated in R. v. Lyons , [1987] 2 S.C.R. 309 , at p. 329 "[i]n a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offender". There is no easy test or formula that the judge can apply in weighing these factors. Much will depend on the good judgment and wisdom of sentencing judges, whom Parliament vested with considerable discretion in making these determinations pursuant to s. 718.3 .
[ 81 ] In R. v. Pham , at para. 15 , the Supreme Court directed that while a sentencing judge may exercise their discretion and take into consideration collateral consequences, the sentence imposed must remain proportionate to the gravity of the offence and the degree of responsibility of the offender. While the court may exercise some flexibility in addressing those collateral consequences, the court must not misuse collateral consequences to impose an inappropriate sentence to avoid immigration consequences, or the effects such a sentence will have on the accused’s family.
[ 82 ] In this case it was the accused’s choice to purchase, set up, and run a sophisticated, large-scale, illegal cannabis production enterprise. He did so in a community far from his family home. The intent was to make money. I have had to balance that against the collateral consequences that may flow from a sentence of imprisonment. And this has been a difficult decision for this court.
[ 83 ] Given the gravity of the offence, the degree of responsibility of the offender, and the existing jurisprudence with respect to the range of sentence for the principals involved in the large-scale cultivation of cannabis, I find that a conditional sentence would not adequately reflect the principles of sentencing in this case, including the paramount considerations of deterrence and denunciation as the apply in this case.
[ 84 ] Further, I find that the imposition of a conditional sentence in this case, solely to avoid the collateral consequences related to immigration and the impact on the accused’s family, would run counter to the Supreme Court of Canada’s direction in R. v. Pham . It would create a special category for those individuals, involved in sophisticated and serious crime, who then rely on the risk of deportation and the consequences this would have to their family to avoid what is an otherwise appropriate sentence.
[ 85 ] Although I have great sympathy for the accused and his family, when I factor in all the circumstances in this case, including the circumstances of the offender, the circumstances surrounding the commission of the offence, the aggravating and mitigating factors, the jurisprudence surrounding applicable sentencing principles to be applied to the operators of large scale grow operations, the principles of proportionality and restraint, and the prospect of rehabilitation, I conclude that the appropriate sentence is one of 18 months incarceration.
Imposition of sentence
[ 86 ] Mr. Jiang, please stand up.
[ 87 ] On count one of the indictment for the offence of cultivating cannabis in a non-dwelling house, contrary to s.12 (6) (a) of the Cannabis Act , I hereby sentence you to 18 months incarceration.
[ 88 ] I also make the following ancillary orders:
(a) given that this is a secondary designated offence, and being satisfied that it is in the best interests of the administration of justice to do so, the accused shall provide a sample of his DNA pursuant to section 487.051(3)(b) of the Criminal Code ; and
(b) having been convicted of an offence contrary to section 12(1) of the Cannabis Act , there shall also be an order pursuant to s.109 prohibiting the accused from possessing any firearm, other than a prohibited firearm or restricted firearm, any crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years. Further, that the accused shall be prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life.
The Honourable Madam Justice S.K. Stothart Released Orally: May 2, 2025
COURT FILE NO.: CR-23-0008 DATE: 2025-05-02 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – Zongxiu Jiang DECISION ON SENTENCING S.K. Stothart J. Released Orally: May 2, 2025