COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Vu, 2018 ONCA 436

DATE: 20180510

DOCKET: C62702, C61601, C61160 and C61850

                           Simmons, van Rensburg and Nordheimer JJ.A.

BETWEEN

DOCKET: C61601 and C61160

Her Majesty the Queen

Respondent/Appellant

and

Duc Vu

Appellant/Respondent

AND BETWEEN

DOCKET: C61850

Her Majesty the Queen

Respondent

and

Wen Wen Li

Appellant

AND BETWEEN                                                                      

DOCKET: C62702

Her Majesty the Queen

Respondent/

Applicant/Appellant

and

Hai Thi Pham

Appellant/Respondent

John Norris, for Duc Vu

Kim Schofield and Daniel Stein, for Hai Thi Pham and Wen Wen Li

Nick Devlin and John North, for the Public Prosecution Service of Canada

Heard: November 1, 2017

On appeal from the sentence imposed on December 18, 2015 by Justice Bruce Durno of the Superior Court of Justice, with related reasons reported at 2015 ONSC 5834 and at 2015 ONSC 7965; from the sentence imposed on March 11, 2016 by Justice Laura A. Bird of the Superior Court of Justice, with reasons reported at 2016 ONSC 1757; and from the sentence imposed on September 1, 2016 by Justice Michael A. Code of the Superior Court of Justice, with reasons reported at 2016 ONSC 5312.

Simmons J.A.:

A.           introduction

[1]          The main issue on these appeals is whether certain mandatory minimum sentencing provisions for the unauthorized production of marijuana infringe the right to be free of cruel and unusual punishment under s. 12 of the Canadian Charter of Rights and Freedoms.

[2]          Each of Duc Vu, Wen Wen Li and Hai Thi Pham (collectively “the convicted parties”) was convicted of unauthorized production of marijuana contrary to s. 7(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”), based on acts that occurred after the mandatory minimum penalties were introduced. 

[3]          Section 7(2)(b) of the CDSA imposes a sliding scale of mandatory minimum sentences for unauthorized production of marijuana. The minimum sentences imposed under s. 7(2)(b)(i) to (vi) range from six months’ imprisonment to three years’ imprisonment, depending on the number of plants produced and whether any of the statutory aggravating factors described in s. 7(3) of the CDSA applies.

[4]          Because of the number of plants they were involved in producing, Mr. Vu (1,020 plants) and Ms. Pham (1,110 plants) were subject to the two-year mandatory minimum sentence set out in s. 7(2)(b)(v) of the CDSA for production of more than 500 plants. In addition, as against both of these parties, the Crown established that the production constituted a potential public safety hazard in a residential area, one of the statutory aggravating factors under s. 7(3)(c) of the CDSA. Both were therefore subject to the three-year mandatory minimum sentence prescribed under s. 7(2)(b)(vi) (production of more than 500 plants plus a statutory aggravating factor).

[5]          Mr. Li (475 plants) was subject to the twelve-month mandatory minimum sentence set out in s. 7(2)(b)(iii) of the CDSA for production of more than 200 and less than 501 plants.

[6]          Prior to sentencing, each of the convicted parties applied for a declaration that the mandatory minimum sentences infringe s. 12 of the Charter and are therefore of no force and effect.

[7]          In the case of Mr. Vu (1,020 plants), Durno J. (the “Vu sentencing judge”) struck down:

·        s. 7(3)(c) of the CDSA (the statutory aggravating factor involving production that constitutes a potential public safety hazard in a residential area), which, in combination with s. 7(2)(b)(vi) would have given rise to a three-year mandatory minimum sentence; and

·        ss. 7(2)(b)(i) and (ii) of the CDSA (the mandatory minimum sentences for production of less than 201 and more than five plants where the production is for the purpose of trafficking).

However, he declined to strike down s. 7(2)(b)(v) of the CDSA (the two-year mandatory minimum sentence for production of more than 500 plants applicable to Mr. Vu). He sentenced Mr. Vu to the mandatory minimum two years’ imprisonment.

[8]          In relation to Ms. Pham (1,110 plants), Code J. (the “Pham sentencing judge”) followed Vu in part and struck down s. 7(3)(c) of the CDSA (the statutory aggravating factor relating to production constituting a potential public safety hazard in a residential area). However, unlike Vu, he also struck down s. 7(2)(b)(v) (the two-year mandatory minimum sentence for production of more than 500 plants) and s. 7(2)(b)(vi) (the three-year mandatory minimum sentence for production of more than 500 plants where a statutory aggravating factor applies).

[9]          In the result, no mandatory minimum sentence applied to Ms. Pham. The Pham sentencing judge sentenced her to 10 months’ imprisonment.[1]

[10]       In relation to Mr. Li (475 plants), Bird J. (the “Li sentencing judge”) declined to strike down s. 7(2)(b)(iii) of the CDSA (the twelve-month mandatory minimum sentence for production of more than 200 and less than 501 plants). She sentenced him to the mandatory minimum 12 months’ imprisonment.

[11]       These three decisions give rise to four applications for leave to appeal sentence.

[12]       Both the Crown and Mr. Vu seek leave to appeal the two-year mandatory minimum sentence imposed on Mr. Vu. The Crown asserts that the Vu sentencing judge erred in holding the three-year mandatory minimum applicable to Mr. Vu unconstitutional. The Crown also says the Vu sentencing judge erred in declaring unconstitutional the mandatory minimums set out in ss. 7(2)(b)(i) and (ii) (for production of more than five and less than 201 plants), which were not applicable to Mr. Vu (1,020 plants). Mr. Vu, on the other hand, submits that the Vu sentencing judge erred in finding that ss. 7(2)(b)(i) and (ii) are severable from the balance of s. 7(2)(b) and in failing to strike down the entire section.

[13]       The Crown seeks leave to appeal the ten-month sentence imposed on Ms. Pham (1,110 plants) and asserts that the Pham sentencing judge erred in holding ss. 7(2)(b)(v) and (vi) (two and three-year mandatory minimum sentences for more than 500 plants) and s. 7(3)(c) (statutory aggravating factor) unconstitutional.

[14]       Mr. Li seeks leave to appeal the twelve-month mandatory minimum sentence imposed on him and asserts the sentencing judge erred in failing to declare unconstitutional s. 7(2)(b)(iii) (the mandatory minimum sentence for production of more than 200 and less than 501 plants).

[15]       The issues raised on these grouped appeals overlap. For the sake of clarity, I will address each appeal separately. For reasons that I will explain, I would dismiss the Crown’s appeal in Pham and uphold the declarations that ss. 7(2)(b)(v), (vi) and 7(3)(c) of the CDSA are unconstitutional. That conclusion will make it unnecessary to separately address the constitutional issues raised by Mr. Vu and Mr. Li.

[16]       I would dismiss the Crown’s appeal in Vu. My conclusion in respect of the Pham appeal governs the constitutional arguments in relation to ss. 7(2)(b)(v), (vi) and 7(3)(c). The Crown has not demonstrated that it has an appeal route to this court relating to their ss. 7(2)(b)(i) and (ii) argument as the declarations of invalidity in relation to those sections had no impact on the sentence Mr. Vu received. As Mr. Vu has now completed his sentence, I would dismiss his sentence appeal as moot.

[17]       I would allow Mr. Li’s appeal and reduce his sentence from 12 months’ imprisonment to six months’ less one day.

[18]       Before turning to the individual appeals, I will briefly review the s. 12 analytical framework, the s. 7(1) CDSA offence and the mandatory minimum sentencing provisions at issue. I will also briefly review the regulatory regimes that authorize production of marijuana in certain circumstances.

B.           The s. 12 analytical framework

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

[20]       A mandatory minimum sentence will constitute cruel and unusual punishment under s. 12 if it is grossly disproportionate to the punishment that would be appropriate, having regard to the nature of the offence and the circumstances of the offender: R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1072; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 39; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para 22.

[21]       To meet the grossly disproportionate standard, the sentence must be “more than merely excessive” or “disproportionate”: Nur, at para. 39. The sentence must be so excessive as to outrage standards of decency and be disproportionate to the extent that Canadians would find the punishment abhorrent or intolerable: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para 14. This is a “high bar”: Nur, at para. 39.

[22]       The s. 12 analysis involves two steps. The first is to determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing under the Criminal Code. It is not necessary to fix the sentence or sentencing range at a specific point, but the court should consider the rough scale of the appropriate sentence: Lloyd, at para. 23.

[23]       At the second step the court must ask whether, in view of the fit and proportionate sentence, the mandatory minimum sentence is grossly disproportionate to the offence and its circumstances: Lloyd, at para. 23. There are two stages to the gross disproportionality analysis. The first stage is to consider whether the impugned sentencing provision is grossly disproportionate in its application to the individual offender (the particularized inquiry). If a sentencing provision is not grossly disproportionate in relation to the offender before the court, the second stage is to consider whether it is grossly disproportionate when applied in “reasonably foreseeable” circumstances: Nur, at para. 77. Legislation should not be struck down based on scenarios that would be “far-fetched”, “marginally imaginable”, or “remote”: Nur, at paras. 54-55 and 75-76.

[24]       Various factors may inform the gross disproportionality analysis, both as it applies to the particular accused and to reasonable hypotheticals. Such factors include: (i) the gravity of the offence; (ii) the personal characteristics of the offender; (iii) the particular circumstances of the case; (iv) the actual effect of the punishment on the individual; (v) the penological goals and sentencing principles reflected in the challenged mandatory minimum; (vi) the existence of valid, effective, alternatives to the mandatory minimum; and (vii) a comparison of punishments imposed for other similar crimes: R. v. Nur, 2013 ONCA 677, 132 O.R. (3d) 719, at para. 78.

C.           the offence and the mandatory minimum sentencing provisions at issue

[25]       Section 7(1) of the CDSA prohibits the production of any substance included in Schedules I, II, III, or IV, “[e]xcept as authorized under the regulations”. Marijuana is included in Schedule II.

[26]       The mandatory minimum sentences for unauthorized production of marijuana were introduced as part of an omnibus remedial legislative package that came into force on November 6, 2012: The Safe Streets and Communities Act, S.C. 2012, c. 1.

[27]       Under s. 7(2)(b) of the CDSA, unauthorized production of marijuana became a straight indictable offence and the maximum sentence was increased from seven years’ imprisonment to 14 years’ imprisonment. This change, in addition to the inclusion of mandatory minimum penalties, also had the effect of eliminating the availability of a conditional sentence: s. 742.1 of the Criminal Code.

[28]       As noted above, ss. 7(2)(b)(i) to (vi) impose a sliding scale of mandatory minimum penalties ranging from six-months’ to three-years’ imprisonment, depending on how many plants are produced and whether any of the statutory aggravating factors in s. 7(3) apply. The sliding scale is as follows:

·        s. 7(2)(b)(i): a six-month mandatory minimum sentence if the number of plants produced is less than 201 and more than five, and the production is for the purpose of trafficking;

·        s. 7(2)(b)(ii): a nine-month mandatory minimum sentence 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 statutory aggravating factors described in s. 7(3) apply;

·        s. 7(2)(b)(iii): a twelve-month mandatory minimum sentence if the number of plants produced is more than 200 and less than 501;

·        s. 7(2)(b)(iv): an 18-month mandatory minimum sentence if the number of plants produced is more than 200 and less than 501 and any of the statutory aggravating factors described in s. 7(3) apply;

·        s. 7(2)(b)(v): a two-year mandatory minimum sentence if the number of plants produced is more than 500;

·        s. 7(2)(b)(vi): a three-year mandatory minimum sentence if the number of plants produced is more than 500 and any of the statutory aggravating factors described in s. 7(3) apply.

[29]       The only statutory aggravating factor at issue on these appeals is s. 7(3)(c), which states: “the production constituted a potential public safety hazard in a residential area”.

D.           The Regulatory Regimes

[30]       Since before the convicted parties were arrested until now, there have been three different regulatory regimes authorizing the production of medical marijuana: (i) the Marihuana Medical Access Regulations, SOR/2001-227 (“MMAR”); (ii) the Marihuana for Medical Purposes Regulations, SOR/2013-119 (“MMPR”); and (iii) the current regime, the Access to Cannabis for Medical Purposes Regulations, SOR/2016-230 (“ACMPR”).

[31]       The regulatory regimes authorizing production of medical marijuana are relevant to this appeal because they prescribe the circumstances under which marijuana can lawfully be produced and therefore impact the reach of the law when considering whether the law constitutes cruel and unusual punishment in reasonably foreseeable circumstances.

[32]       However, as will be explained below, for the purposes of this appeal it is unnecessary to examine the various regulatory regimes in detail. It will suffice to explain that while each regime licensed the production of medical marijuana they authorized production in different circumstances and by different parties.

[33]       On the dates the convicted parties were arrested,[2] the MMAR were in effect. Although the MMAR have been superseded, some MMAR licenses were preserved by injunction proceedings in the Federal Court,[3] and the Crown has confirmed that some MMAR licenses continue to exist.[4]

[34]       The MMAR allowed authorized individual users to produce marijuana under a Personal-use Production License (“PPL”) and also allowed another person to produce marijuana for an authorized user under a Designated-person Production License (“DPL”). A DPL-holder could produce for more than one authorized user; DPL-holders could also produce in common. The MMAR did not however permit a PPL-holder or DPL-holder to delegate their authorization. Put another way, they did not permit assistants.

[35]       On June 7, 2013, the MMAR were repealed and replaced with the MMPR. The MMPR eliminated PPLs and DPLs and set up a licensed producer (“LP”) regime. The MMPR were struck down as being unconstitutional (subject to a six-month suspension of the declaration) on February 24, 2016: Allard v. Canada, 2016 FC 236, 349 C.R.R. (2d) 86.

[36]       The ACMPR were enacted on August 24, 2016. The ACMPR provide for the commercial production of medical marijuana, personal production for one’s own medical purposes as well as production by a designated person. However, like licences under the MMAR, personal and designated producer licenses under the ACMPR do not permit the holder to hire employees, or to delegate their authorization to any other person.

E.           the pham appeal (1,110 plants)

(1)         Background

[37]       Ms. Pham was the only person present in a three-bedroom apartment in a high-rise building when she was arrested on February 28, 2013. The apartment contained 1,110 marijuana plants. The state of the apartment made it clear that the sole purpose of the leased premises was to grow marijuana; moreover, it was apparent that that activity had been taking place for at least a year.

[38]       Ms. Pham was charged with one count of producing marijuana and one count of possessing marijuana for the purpose of trafficking. On March 3, 2015, a jury found her guilty on both counts.

[39]       After the trial judge became ill, the Pham sentencing judge dealt with Ms. Pham’s s. 12 Charter application and the sentencing.

[40]       On her s. 12 application, Ms. Pham conceded that the mandatory minimum sentences were not grossly disproportionate in relation to her personally. Rather, she argued that the two and three-year mandatory minimum sentences in ss. 7(2)(b)(v) (over 500 plants) and (vi) (over 500 plants plus a statutory aggravating factor) were grossly disproportionate in reasonably foreseeable cases. I will begin with the three-year mandatory minimum and then turn to the two-year mandatory minimum.

(2)         The ss. 7(2)(b)(vi) and 7(3)(c) issue

(a)         The Pham sentencing judge’s reasons

[41]       Based on an expert report filed at the sentencing hearing and other evidence, the Pham sentencing judge found that “Pham actively participated in the growing of more than 500 marijuana plants and that the production ‘constituted a potential public safety hazard’” (at para. 22).

[42]       Concerning the s. 12 issue, the Pham sentencing judge began his analysis by addressing the three-year mandatory minimum sentence under ss. 7(2)(b)(vi) and 7(3)(c) of the CDSA where a potential public safety hazard exists. He noted that the Vu sentencing judge had held that s. 7(3)(c) could result in sentences that are grossly disproportionate and therefore violate s. 12 of the Charter. This was because s. 7(3)(c) would capture cases where an accused was not at fault in relation to the potential public safety hazard – either because the accused was unaware of the potential public safety hazard or had exercised due diligence in trying to prevent it. The Vu sentencing judge also went on to hold that s. 7(3)(c) of the CDSA could not be saved by s. 1 of the Charter.

[43]       The Pham sentencing judge agreed with the Vu sentencing judge’s analysis. Citing a number of authorities,[5] he added that the imposition of mandatory imprisonment on a basis that does not involve fault (whether by way of knowledge, recklessness or lack of due diligence) has always violated constitutional principles. The Pham sentencing judge accepted the Crown’s position that because the s. 7(3)(c) aggravating factor is not an element of the offence, it is unnecessary to prove mens rea – or fault – in relation to it at the sentencing stage. However, he concluded that because the statutory aggravating factor has a mandatory minimum jail sentence attached to it, it is “constitutionally important to preserve judicial discretion, at the sentencing stage, so that the aggravating factor can be given full force where there is fault but given less weight where there is no fault” (at para. 29).

(b)         The Crown’s arguments concerning ss. 7(2)(b)(vi) and 7(3)(c)

[44]       The Crown submits that in striking down ss. 7(2)(b)(vi) and 7(3)(c), the Pham (and Vu) sentencing judge(s) failed to take proper account of the inherent seriousness of the crime of unauthorized large-scale production of marijuana committed in a residential area. In this regard, the Crown emphasizes that, unlike the situation in Nur, ss. 7(2)(b)(vi) and 7(3)(c) do not catch “conduct that falls short of true criminal conduct”. Rather, individuals involved in large-scale production of marijuana intend to commit what is a very serious criminal offence.

[45]       As illustrated by the sentencing surveys in R. v. Paryniuk, 2013 ONCJ 443, at para. 25, and R. v. Tan Tien Nguyen, 2013 ONSC 6913, at paras. 160-6, even prior to the introduction of the mandatory minimum penalties, persons involved in large-scale marijuana production offences were subject to significant penalties. Parliament is entitled to determine the gravity of a particular offence and to craft an appropriate minimum sentence. A three-year sentence for an offender who was unaware of the potential public safety hazard might be harsh, or even disproportionate in some circumstances. However, given the objective seriousness of the offence of large-scale production of marijuana in a residential area, a three-year mandatory minimum sentence can hardly be said to be grossly disproportionate.

(c)         Discussion

[46]       I do not accept the Crown’s submissions. The flaw in the Crown’s argument, in my view, is that ss. 7(2)(b)(vi) and 7(3)(c) impose a mandatory additional year of imprisonment where the offender may lack fault completely in relation to the circumstances on which the Crown relies to justify the mandatory increase in penalty.

[47]       As the Vu sentencing judge noted, the existence of a potential public safety hazard is not inherent in a substantial marijuana grow-op in a residential area. As he said, the statutory aggravating factor is not the presence of a substantial grow-op in a residential area or even the fact of a hydro by-pass. Rather, the Crown must prove beyond a reasonable doubt that “the production constituted a potential public safety hazard in a residential area” (emphasis in the original).

[48]       Evidence is required to show that a particular grow-op was a potential public safety hazard. In the Vu case, expert evidence was required. Further, as the Vu sentencing judge noted, not all hydro bypasses can be shown to be a potential public safety hazard on a criminal standard of proof, see for example: R. v. Nguyen, [2013] O.J. 2688 (C.J.). As he said, it would not be readily apparent that all grow-ops are a potential public safety hazard. A gardener hired after a grow-op was set up could be unaware of the existence of a hydro by-pass or that it or other venting or wiring issues created a potential public safety hazard.

[49]       The decisions cited by the Pham sentencing judge support the principle that there cannot be punishment without fault. The inherent seriousness of the offence of large-scale marijuana production cannot justify a mandatory one-year increase in penalty based on an aggravating circumstance about which an accused has no culpable mens rea. To impose an additional one-year sentence in such circumstances is grossly disproportionate.

[50]       I would not give effect to the Crown’s argument on this issue.

(3)         The s. 7(2)(b)(v) issue

(a)     The Pham sentencing judge’s reasons

[51]       After finding that the three-year mandatory minimum imposed under ss. 7(2)(b)(vi) and 7(3)(c) of the CDSA violates s. 12 of the Charter, the Pham sentencing judge turned to the two-year mandatory minimum imposed under s. 7(2)(b)(v) of the CDSA. In his view, the issue was largely determined by Nur.

[52]       In Nur, a majority of the Supreme Court of Canada found the mandatory minimum sentences imposed by s. 95(2)(a) of the Criminal Code in relation to the s. 95(1) offence – unauthorized possession of a prohibited or restricted firearm when the firearm is loaded or kept with readily accessible ammunition – in violation of s. 12 of the Charter.

[53]       In particular, the majority found that “s. 95(1) foreseeably catches licensing offences which involve little or no moral fault and little or no danger to the public” (at para. 83). The court concluded that for such offences, “three years’ imprisonment [imposed under s. 95(2)(a)(i) of the Criminal Code] is grossly disproportionate to a fit and fair sentence.” The majority also found the five-year mandatory minimum imposed on repeat offenders under s. 95(2)(a)(ii) of the Criminal Code to be grossly disproportionate. That provision could foreseeably catch a person who breached a prohibition order while on bail and later innocently came into possession of a restricted or prohibited firearm, together with usable ammunition, without an authorization or license. Such a person had not caused any harm, nor any real risk of harm and was not engaged in criminal activity.

[54]       Similar to Nur, the two-year mandatory minimum under s. 7(2)(b)(v) applies to a regulated activity that is authorized in some circumstances by regulations promulgated under the CDSA. In the Pham sentencing judge’s view, as in Nur, the two-year mandatory minimum could capture a broad range of conduct – some of which is at the license-infraction end of the spectrum.

[55]       The Pham sentencing judge considered hypothetical fact situations based on three actual cases: R. v. Zheng, [2015] O.J. No. 274 (C.J.);[6]  R. v. Jiang, [2015] O.J. 7077 (C.J.);[7] and a pending case in the Superior Court described by the Vu sentencing judge in his reasons.[8] These hypotheticals involved two basic scenarios: (i) “duped employees” - individuals who assisted insufficiently licensed or unlicensed grow operations, believing that the grow operations were licensed; and (ii) “mistaken licensees” - licensed growers who misinterpreted his or her license in some way.

[56]       The Pham sentencing judge rejected the Crown’s argument premised on this court’s decision in R. v. Darquea, (1979) 47 C.C.C. (2d) 567 (C.A.), that the accused in those cases had made mistakes of fact that would afford a valid defence to any charges. In Darquea this court found that an accused’s honest belief that the methamphetamine laboratory they were working in was licensed was a mistake of fact and exempted them from criminal liability. Instead, relying on the Supreme Court of Canada’s decisions in Nur and R. v. MacDonald, 2014 SCC 3, 1 S.C.R. 37, he concluded that the hypothetical accused had made mistakes of law that would not afford a defence to charges under the CDSA. Imposition of a mandatory minimum sentence would be grossly disproportionate where, for example, a licensee misinterpreted his or her license by mistakenly letting it expire or over-producing, or where an innocent dupe assisted an unlicensed, or only partially licensed, grow operation:

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 in the absence of any harm or real risk of harm.” See: R. v. Nur, supra, at paras. 80-83; R. v. [MacDonald] (2014), 303 C.C.C. (3d) 113, at paras. 55-61 (S.C.C.). In cases where lawful licenses exist, but their terms are not being strictly complied with, 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 believe there has been compliance with the license or licenses that accused’s moral blameworthiness is also much reduced. In these circumstances, the 2 year minimum sentence is “grossly disproportionate.”

(b)     The Crown’s arguments concerning s. 7(2)(b)(v)

[57]       The Crown raises three main arguments concerning the Pham sentencing judge’s decision striking down the two-year mandatory minimum under s. 7(2)(b)(v) of the CDSA.

[58]       First, the Crown submits that the Pham sentencing judge erred by relying on what were essentially licensing infractions to strike down s. 7(2)(b)(v) of the CDSA. Section 7(1) of the CDSA is a straight indictable offence that applies to the illicit production of controlled substances. The mens rea for the criminal production of marijuana involves intentional growing of illicit plants. Innocent errors by licensed producers are not captured by s. 7(1). The regulations are a complete code for dealing with licensing infractions. They contemplate suspensions, warnings, and revocations for non-compliance: see ACMPR, ss. 43-46; MMAR, ss. 62-64. Licensing infractions do not provide realistic examples of conduct that will be prosecuted under s. 7(1) of the CDSA.

[59]       Second, the Crown argues that, in any event, many of the licensing hypotheticals relied on by the Pham sentencing judge were actually mistakes of fact and not mistakes of law. Mistakes of fact provide a valid defence to a criminal charge whereas a mistake of law does not. If a hypothetical offender has a valid defence, then it cannot be said that a provision is grossly disproportionate when applied to them because no punishment would occur. The Crown submits that the Pham sentencing judge incorrectly treated this court’s decision in Darquea as having been overruled by the Supreme Court’s decisions in Nur and MacDonald. This court’s recent decision in R. v. Johnson, 2016 ONCA 654, demonstrates that an individual who honestly believed he was assisting a licensed grow operation could have a valid defence of mistake of fact under s. 7(1) of the CDSA.

[60]       Third, in its supplementary submissions provided at the request of the court following oral argument, the Crown noted that the regulatory regime has changed since Pham was argued. Many of the hypotheticals relied on by the Pham sentencing judge, notably the duped employee scenarios, were premised on the former regulatory scheme, i.e., the MMAR. The Crown submits that the constitutionality of the s. 7(2)(b) mandatory minimums should be determined by: i) the law as it applied to the claimants in this case; and ii) reasonable hypotheticals based on the law as it stands today, namely the ACMPR.[9] The Crown argues that the hypotheticals advanced in the court below based on duped employees have no air of reality on a go-forward basis given the changed regulatory scheme.

(c)     Discussion

[61]       As a starting point, the Crown made the argument that s. 7(1) does not extend to licensing infractions to the Pham sentencing judge. As the Pham sentencing judge observed, s. 7(1) of the CDSA is framed in similar terms to s. 95(1) of the Criminal Code, the unauthorized possession of a firearm offence at issue in Nur. In his view, certain hypotheticals he identified provided examples of situations where conduct at the regulatory violation end of the spectrum was prosecuted under the CDSA – just as hypotheticals in Nur provided examples of situations where conduct at the regulatory end of the spectrum could be prosecuted under the Criminal Code.  Even if some or all of the Pham sentencing judge’s examples are invalid, other examples have emerged on appeal demonstrating the point. To succeed on appeal, Ms. Pham need only show one example of a reasonable hypothetical that illustrates a grossly disproportionate sentence.

[62]       In any event, the Crown could point to nothing in either the language of the ACMPR (or the MMAR) that would exclude the operation of s. 7(1) of the CDSA in cases of regulatory infractions; or the language of s. 7(1) of the CDSA that would restrict it to situations where a licensee knew the production was “illicit”. Indeed, when asked to specify the elements of the s. 7(1) offence for a principal, the Crown did not include knowledge that the production was unauthorized as part of the mens rea.[10]

[63]       This response is consistent with MacDonald, in which a majority of the Supreme Court of Canada held that the mens rea of s. 95 of the Criminal Code (the possession of a loaded firearm offence at issue in Nur) does not require proof of knowledge that the possession is unauthorized. It concluded that the license holder’s misinterpretation of the terms of his license, in particular where he could possess a firearm, was a mistake of law and afforded no defence.

[64]       For these reasons, I would not give effect to the Crown’s argument that s. 7(1) of the CDSA does not extend to licensing infractions.

[65]       Turning to the Crown’s second argument, I find it unnecessary to engage in the mistake of fact/mistake of law debate concerning the Pham sentencing judge’s reasonable hypotheticals. As I have said, so long as there is one reasonable hypothetical where the imposition of the mandatory minimum would be grossly disproportionate, then the mandatory minimum provision will offend s. 12. In my view, three cases put to this court illustrate that the reach of s. 7(2)(b)(v) is grossly disproportionate in some cases.

[66]       The first such case is this court’s recent decision in Johnson – a case relied on by the Crown, which illustrates the potential for a grossly disproportionate sentence in two ways. Mr. Johnson was charged with unauthorized production of marijuana at a friend’s grow operation. His friend had a license to produce marijuana at one location, and was in the process of applying for a license to produce at a second location (the location where Mr. Johnson was found). In sending the matter back for a new trial, this court held that Mr. Johnson could have a mistake of fact defence to the charge given that the theory advanced at trial was that Mr. Johnson was liable as an aider.

[67]       However, a person such as Mr. Johnson’s friend would be in a different position if he was mistaken as to the location where he was authorized to produce marijuana. Applying Nur and MacDonald, a mistake of fact defence would not be available to Mr. Johnson’s friend, the actual licensee, even if he was honestly mistaken as to the terms or status of his license and, as a result of the mistake, produced at an unauthorized location. Both Nur and MacDonald make it clear that a mistake as to the terms of one’s license is a mistake of law, not a mistake of fact.

[68]       The second hypothetical that arises from Johnson is that Mr. Johnson was arrested while waiting for a water truck at an unlicensed grow operation because his friend was unable to attend. If Mr. Johnson’s defence of honest but mistaken belief were to fail, he would be exposed to a two-year mandatory minimum sentence even if his only involvement in the grow operation was to wait for the water delivery.

[69]       Two other recent decisions are also instructive. Following the appeal hearing, with the consent of the Crown, counsel for Mr. Vu brought two recent decisions of the British Columbia Court of Appeal to our attention: R. v. Serov, 2017 BCCA 456, and R. v. McGee, 2017 BCCA 457.

[70]       In Serov, the British Columbia Court of Appeal held that ss. 7(2)(b)(iii) and (iv) violate s. 12 of the Charter and cannot be saved by s. 1. It made the same finding in relation to ss. 7(2)(b)(v) and (vi) in McGee. In both cases, the court relied on a hypothetical involving an offender who plays a very limited role in the production of marijuana but at law is considered a party to the production. The court concluded that because of the very limited role of the hypothetical helper, the mandatory minimums at issue resulted in sentences that were grossly disproportionate. Importantly, the hypotheticals considered did not involve employees who believed the production was lawful. Consequently, the mistake of fact/law issue was irrelevant.

[71]       In Serov, the court stated, at para 39, “both provisions cast a wide net, applying equally to a principal, a caretaker or gardener, or to someone whose role may be, for example assisting, on a single day with watering, moving or cutting plants, or repairing an electrical panel.” While the impugned provisions were tailored to reflect the number of plants, they failed to reflect the “role of the offender in committing the offence” (at para. 33). The court concluded that applying the mandatory minimums “regardless of the role of the offender in the marihuana grow operation, is grossly disproportionate in reasonably foreseeable cases of less blameworthy offenders and therefore offends s. 12 of the Charter” (at para. 39).

[72]       Similarly, in McGee, the court agreed with the judge below that a two-year sentence would be grossly disproportionate for a hypothetical offender “who was a party to the offence as a result of minimal involvement in the grow operation by only supplying soil to a grow operation, or delivering seedlings or a bottle of nutrients to a grow site, or helping out at the harvest” (at para. 20). The court rejected the Crown’s argument that such assistance would not amount to aiding in the commission of the offence of producing over 500 marijuana plants.

[73]       The court also noted in McGee that Mr. McGee’s wife faced the very scenario of being potentially subject to a significant mandatory minimum sentence as an offender who played a limited role in a large-scale illicit grow operation.

[74]       I agree that the hypotheticals arising from Johnson, Serov and McGee point to reasonably foreseeable situations in which a mistaken licensee or minimally involved helper could be subject to a mandatory two-year sentence under s. 7(2)(b)(v), which would be grossly disproportionate.

[75]       Finally, turning to the Crown’s third issue, I would not give effect to the Crown’s argument regarding the absence of reasonable hypotheticals under the most recent version of the regulations, the ACMPR. The reasonable hypotheticals I have outlined, dealing with the mistaken licensee and minimally involved helpers in illegal grow operations, could occur under either the MMAR or the ACMPR.

[76]       Like the Pham sentencing judge, I therefore also find it unnecessary to deal with the “most compassionate, sympathetic, or altruistic” hypotheticals advanced on behalf of Ms. Pham.

(4)         The s. 1 issue

(a)     The Pham sentencing judge’s reasons

[77]       In relation to all of ss. 7(2)(b)(v), 7(2)(b)(vi) and 7(3)(c), the Pham sentencing judge concluded that the violations of s. 12 of the Charter could not be saved by s. 1.

[78]       Concerning ss. 7(2)(b)(vi) and 7(3)(c), he adopted the reasoning of the Vu sentencing judge who found that the provisions were not minimally impairing nor proportional because the mandatory minimum would apply to persons who have no culpability in relation to the s. 7(3)(c) aggravating factor.

[79]       Concerning s. 7(2)(b)(v), relying on Nur and Lloyd, he found the violation was neither minimally impairing nor proportional. Parliament could have provided a safety valve to allow judges to exempt offenders from the mandatory minimums in exceptional cases but failed to do so.

(b)     The Crown’s position on the s. 1 issue

[80]       While acknowledging that it will be difficult to demonstrate that a sentence found to be grossly disproportionate is proportionate as between the deleterious and salutary effects of the law, the Crown asserts the two and three-year mandatory minimums prescribed under ss. 7(2)(b)(v), 7(2)(b)(vi) and 7(3)(c) are reasonable limits that are demonstrably justified in a free and democratic society.

[81]       In particular, the Crown argues that the mandatory minimums at issue reflect the gravity of the offence and level of culpability of the offenders, taking into account the scale of the grow operations (more than 500 plants) and, in some instances, the presence of a statutory aggravating factor (potential public safety hazard in a residential area). Unlike the mandatory minimums considered in Nur and Lloyd, any offender subject to the two and three-year mandatory minimums has committed a serious criminal offence that involves more than minimal blameworthiness, which, in some instances, also involves a real risk of harm.

[82]       Taking account of the serious harm caused by illicit large-scale marijuana production and the moral blameworthiness of any offenders caught by the mandatory minimums at issue, the benefits of the mandatory minimums outweigh any deleterious effects.

(c)     Discussion

[83]       I do not accept these submissions. With respect to ss. 7(2)(b)(vi) and 7(3)(c), they ignore the fundamental finding that this three-year mandatory minimum can apply to persons who have no moral culpability in relation to the statutory aggravating factor. The provisions could have been tailored to avoid this result. They are neither minimally impairing nor proportionate.

[84]       Similarly, with respect to s. 7(2)(b)(v), as the Pham sentencing judge noted, Parliament could have provided a safety valve to allow judges to grant exemptions in exceptional cases. Once again, the provisions are neither minimally impairing nor proportional.

(5)         The reading down remedy

[85]       At the appeal hearing, the Crown requested that if any of ss. 7(2)(b)(iii), (v), or (vi) are found unconstitutional that an alternative remedy be considered, namely, the provision’s applicability could be read down, by inserting into each subsection the words “if the production is for the purpose of trafficking”.

[86]       According to the Crown, the scheme of s. 7(2)(b) makes it obvious that Parliament’s intention was to impose mandatory minimum penalties on marijuana growers planning to do illegal things – namely, traffic in marijuana. The words “if the production is for the purpose of trafficking” appear in ss. 7(2)(b)(i) and (ii) dealing with less than 201 and more than five plants to make that intention clear. Those words do not appear in the later sections dealing with greater numbers of plants because of an implicit assumption that significant overproduction on the scale contemplated by those sections must be for an illicit purpose. It was not Parliament’s intention to impose mandatory minimum sentences on the morally innocent who may be captured under ss. 7(2)(b)(iii), (v) or (vi) based on reasonable hypotheticals. Any constitutional infirmity in the impugned provisions can be rectified by the proposed change, which in the circumstances, clearly reflect Parliament’s intention.

[87]       I would not grant this remedy.

[88]       The general rule is that appellate courts will not entertain entirely new issues on appeal: Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130. This applies to constitutional arguments: R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26.

[89]       The decision to allow new arguments is discretionary and must be guided by balancing the interests of justice as they affect all parties (Kaiman, at para. 18). The interests of justice do not favour allowing the Crown to raise the issue of reading down. Not only was this argument not raised in the court below, it was raised for the first time in this court in oral argument. Consequently, the convicted parties had no opportunity to adequately respond and as a result the issue was not fully argued.

[90]       Nor is it clear that reading down is an appropriate remedy in this case. Reading down is “warranted only in the clearest of cases” where: (i) the legislative objective is obvious, (ii) reading down would not constitute an unacceptable intrusion in the legislative domain, and (iii) the remedy would not intrude upon budgetary considerations: Schachter v. Canada, [1992] 2 S.C.R. 679, at para. 87.

[91]       Given that the requested words were included in ss. 7(2)(b)(i) and (ii), but not in the subsequent subsections, I think it far from obvious that inserting them would reflect Parliament’s intention.

[92]       It is also far from obvious that reading down is generally an appropriate remedy for unconstitutional mandatory minimums. As noted by the Supreme Court in Ferguson, at para. 36:

The usual remedy for a mandatory sentencing provision that imposes cruel and unusual punishment contrary to s.12 of the Charter is a declaration that the law is of no force and effect under s. 52 of the Constitution Act, 1982.

(See also Nur and Lloyd where the Supreme Court struck down the infringing mandatory minimums).

[93]       Moreover, I am not convinced that the Crown’s proposed reading down would resolve the gross disproportionality arising from the hypotheticals considered in Serov and McGee.

[94]       For these reasons, I would not give effect to the Crown’s requested remedy.

[95]       As the Crown confirmed at the oral hearing that it was not seeking an increased penalty for Ms. Pham if it was unsuccessful in its constitutional arguments, it is unnecessary that I address the Crown’s argument in its factum in that regard.

[96]       In the result, based on the foregoing reasons, leave to appeal sentence is granted, but the Pham sentence appeal is dismissed.

F.           The Vu Appeals (1,020 plants)

[97]       Mr. Vu was arrested on November 22, 2012, after police executed a search warrant at a house in Brampton and found 1,020 marijuana plants, approximately 70 kilograms of wet marijuana, and a hydro by-pass in the home. They also found Mr. Vu hiding in the laundry dryer.

[98]       Mr. Vu pleaded guilty to production of marijuana and to theft of electricity over $5,000 on May 5, 2014.

[99]       As I have said, Mr. Vu challenged the constitutional validity of the two and three-year mandatory minimum sentences applicable to him. The Vu sentencing judge struck down the six and nine-month mandatory minimums in ss. 7(2)(b)(i) and (ii) of the CDSA (less than 201 and more than five plants) and the three-year mandatory minimum arising from 7(3)(c) of the CDSA in relation to s. 7(2)(b)(vi) (more than 500 plants plus a statutory aggravating factor), but he declined to strike down the two-year mandatory minimum in s. 7(2)(v) (more than 500 plants). While the Vu sentencing judge found the subsections of s. 7(2)(b) were interrelated, he determined ss. 7(2)(b)(i) and (ii) were severable and did not render the balance of s. 7(2)(b) invalid.

[100]    On December 18, 2015, the Vu sentencing judge sentenced Mr. Vu to the mandatory minimum two years’ imprisonment for production of more than 500 marijuana plants and to three months’ imprisonment concurrent for theft of electricity. Mr. Vu was released on parole on August 2, 2016 and his two-year sentence has now been completed.

[101]    Both the Crown and Mr. Vu seek leave to appeal the two-year mandatory minimum sentence imposed on Mr. Vu. The Crown asserts that the sentencing judge erred in striking down the three-year mandatory minimum arising from s. 7(3)(c) of the CDSA and that he further erred in striking down the six and nine-month mandatory minimums imposed by ss. 7(2)(b)(i) and (ii).

[102]    Mr. Vu claims that the sentencing judge erred in concluding that ss. 7(2)(b)(i) and (ii) are severable from the balance of s. 7(2)(b) and in failing to strike down the entire subsection. Further he relies on Pham to assert that ss. 7(2)(b)(v) and (vi) are unconstitutional.

[103]    My conclusions in the Pham appeal – that ss. 7(2)(b)(v), 7(2)(b)(vi) and 7(3)(c) of the CDSA violate s. 12 of the Charter and cannot be saved by s. 1 – govern the constitutional issues in the Vu sentence appeals. Ms. Pham and Mr. Vu were both found guilty of producing more than 500 plants and the Crown relied on the same aggravating factor (s. 7(3)(c)) in relation to both. Accordingly, the same mandatory minimum sentencing provisions applied to both. In the result, I would uphold the Vu sentencing judge’s determination that the three-year mandatory minimum under s. 7(3)(c) is invalid but set aside his determination that the two-year mandatory minimum under s. 7(2)(b)(v) is valid. However, as Mr. Vu has now completed his sentence, I would dismiss his appeal of his two-year sentence as moot.

[104]    As for the Crown’s argument concerning ss. 7(2)(b)(i) and (ii) of the CDSA, I am not persuaded that the Crown has an appeal route to this court concerning the Vu sentencing judge’s declaration that these provisions are invalid. Following the appeal hearing, the court requested additional submissions from the parties concerning this issue.

[105]    The Crown submits that the procedural history of this matter leads to two possibilities. Either the Vu sentencing judge was correct that determining the constitutionality of ss. 7(2)(b)(i) and (ii) was a necessary legal predicate to ruling on the constitutionality of the mandatory minimums applicable to Mr. Vu – in which case the Crown has a right to appeal the Vu sentencing judge’s declaration that ss. 7(2)(b)(i) and (ii) are invalid. Or, the Vu sentencing judge should not have considered those sections in addressing the constitutional validity of the mandatory minimums applicable to Mr. Vu – in which case, the declarations are at most obiter dicta and the Crown asserts this court should state they have no binding force.

[106]    Mr. Vu contends that this court must determine the constitutional validity of ss. 7(2)(b)(i) and (ii) in addressing his argument that the Vu sentencing judge erred in finding those provisions severable from the balance of s. 7(2)(b) (“Mr. Vu’s non-severability argument”). Mr. Vu asserts that it is therefore unnecessary that this court determine whether the Crown has an independent appeal route regarding the Vu sentencing judge’s declarations of invalidity.

[107]    At the appeal hearing, in response to Mr. Vu’s non-severability argument, the Crown argued, in part, that it was not open to the Vu sentencing judge to declare ss. 7(2)(b)(i) and (ii) of the CDSA invalid as those provisions did not apply to Mr. Vu’s circumstances. I agree with this argument. See: R. v. Goltz, [1991] 3 S.C.R. 485, at para. 81, and R. v. Elliot, 2017 BCCA 214, 349 C.C.C. (3d) 1, at para. 26. Accordingly, contrary to Mr. Vu’s post-hearing submissions, it is unnecessary that this court determine the constitutionality of ss. 7(2)(b)(i) and (ii) in addressing his non-severability argument. As it was not open to the Vu sentencing judge to declare invalid the subsections of s. 7(2)(b) not applicable to Mr. Vu, we do not reach Mr. Vu’s non-severability argument. Nor do we reach, as part of his appeal, the issue of the constitutionality of ss. 7(2)(b)(i) and (ii).

[108]    Further, because I agree with the position taken by the Crown at the appeal hearing in response to Mr. Vu’s non-severability argument, I am not persuaded the Crown has an appeal route to this court in relation to the declarations that ss. 7(2)(b)(i) and (ii) are invalid. As it was not open to the Vu sentencing judge to make those declarations, they were not a necessary legal predicate to determining the constitutional validity of the mandatory minimums applicable to Mr. Vu. Under s. 676(1) of the Criminal Code, the Crown’s sole appeal route in this matter is with respect to sentence, with leave. As the declarations of invalidity did not, and could not, play a role in the sentencing decision the Crown challenges, I fail to see how they are the proper subject matter of a Crown sentence appeal to this court.

[109]    In the result, I would grant the Crown’s request for leave to appeal the Vu sentence but dismiss the appeal.

G.          Li Appeal (475 Plants)

[110]    On May 18, 2013, police executing a search warrant at a house in Oshawa found Mr. Li in the basement, exiting one of four marijuana grow rooms. Mr. Li was the only person in the house.

[111]    The basement contained at least 475, but less than 500 marijuana plants. It was not disputed that the home was used exclusively for the purpose of running a grow operation.

[112]    On December 14, 2015, following a five-day trial, a jury found Mr. Li guilty of one count of production of marijuana and one count of possession for the purpose of trafficking.

[113]    At the sentencing proceedings, Mr. Li brought a s. 12 Charter application, challenging the constitutionality of s. 7(2)(b)(iii) of the CDSA, which imposes a twelve-month mandatory minimum for producing more than 200 but less than 501 marijuana plants.

[114]    The Li sentencing judge dismissed the application, holding that the mandatory minimum was neither grossly disproportionate in relation to Mr. Li nor to the reasonable hypotheticals. She found that Mr. Li’s proven involvement in the grow operation was “at the lowest possible end of the spectrum” and concluded that the appropriate sentencing range was six to twelve months’ imprisonment. She also stated that, in light of the immigration consequences to Mr. Li, had she had the discretion to do so, she would be inclined to sentence him to six months’ less one day to avoid a finding of “serious criminality” under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), and prevent his near certain deportation. On March 11, 2016, she sentenced Mr. Li to the mandatory minimum 12 months’ imprisonment for production of marijuana (359 days in addition to 6 days’ time served) and five months’ concurrent for possession of marijuana for the purpose of trafficking.

[115]    Mr. Li seeks leave to appeal sentence and submits that the sentencing judge erred in failing to strike down s. 7(2)(b)(iii) of the CDSA as contrary to s. 12 of the Charter.

[116]    Given my findings on the Pham appeal, it is unnecessary to conduct a full s. 12/s. 1 Charter analysis. In my view, the hypotheticals I considered in Pham would apply equally to a grow operation involving 475 plants. Indeed, the hypotheticals I adopted from Serov related to grow operations involving more than 200 and less than 501 plants.

[117]    Accordingly, based on my reasoning in relation to the Pham appeal, I would hold that s. 7(2)(b)(iii) of the CDSA violates s. 12 of the Charter, cannot be saved by s. 1 and should be declared of no force and effect under s. 52 of the Constitution Act.

[118]    At the appeal hearing, the Crown confirmed that if it was unsuccessful in its constitutional arguments, it would not be seeking any increase in the sentence that the Li sentencing judge would have been inclined to impose. Accordingly, I would grant leave to appeal, set aside the twelve-month effective sentence imposed by the Li sentencing judge and substitute a sentence of six months’ imprisonment less one day with all other terms of the sentence imposed by the Li sentencing judge to remain the same.

H.           Disposition

[119]    In summary, I would dismiss the Crown’s appeal in Pham and uphold the declarations that ss. 7(2)(b)(v), (vi) and 7(3)(c) of the CDSA are unconstitutional.

[120]    I would also dismiss the Crown’s appeal in Vu. My conclusion in respect of the Pham appeal governs the constitutional arguments in relation to ss. 7(2)(b)(v), (vi) and 7(3)(c). The Crown has not demonstrated that it has an appeal route to this court relating to their ss. 7(2)(b)(i) and (ii) argument as the declarations of invalidity in relation to those sections had no impact on the sentence Mr. Vu received. As Mr. Vu has now completed his sentence, I would dismiss his sentence appeal as moot.

[121]    Finally, I would allow Mr. Li’s appeal. Based on my reasoning in the Pham appeal, I would hold that s. 7(2)(b)(iii) of the CDSA violates s. 12 of the Charter, cannot be saved by s. 1 and should be declared of no force and effect under s. 52 of the Constitution Act. I would reduce Mr. Li’s sentence from 12 months’ imprisonment to six months’ less one day.

Released:

“MAY 10 2018”                                   “Janet Simmons J.A.”

“IN”                                                    “I agree K. van Rensburg J.A.”

                                                          “I agree I.V.B. Nordheimer J.A.”