



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 Crowns 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 Crowns 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. Lis 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 ones 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. Phams 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 judges 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 judges 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 Crowns 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 Crowns 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 Crowns submissions. The flaw in the Crowns 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 Crowns argument on this issue.

(3)

The s. 7(2)(b)(v) issue

(a)     The Pham sentencing
    judges 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 judges 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 Crowns argument premised on this courts
    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 accuseds 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 Canadas 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 accuseds moral blameworthiness is also much reduced.
    In these circumstances, the 2 year minimum sentence is grossly
    disproportionate.

(b)     The Crowns arguments
    concerning s. 7(2)(b)(v)

[57]

The
    Crown raises three main arguments concerning the Pham sentencing judges
    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 courts decision in
Darquea
as having been overruled by the Supreme Courts decisions in
Nur
and
MacDonald
.
    This courts 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 judges 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 holders 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 Crowns argument that s. 7(1) of
    the CDSA does not extend to licensing infractions.

[65]

Turning
    to the Crowns second argument, I find it unnecessary to engage in the mistake
    of fact/mistake of law debate concerning the Pham sentencing judges 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 courts 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 friends 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. Johnsons 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. Johnsons 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 ones 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. Johnsons 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 Crowns 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. McGees 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 Crowns third issue, I would not give effect to the Crowns
    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
    judges 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 Crowns 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 provisions 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
Parliaments 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 s
s. 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 Parliaments 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 Parliaments 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 s
s. 7(2)(b)(i) and (ii), but not in the subsequent subsections, I think it
    far from obvious that inserting them would reflect Parliaments 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
    Crowns 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 Crowns 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 Crowns 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 judges 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
    Crowns 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
    judges 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 judges 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. Vus 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 judges
    declarations of invalidity.

[107]

At the appeal hearing, in response to Mr. Vus 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. Vus 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. Vus 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. Vus 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. Vus 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 Crowns 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 Crowns 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. Lis 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 Crowns 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 Crowns 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. Lis 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. Lis 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.





[1]
Ms. Pham also appealed her conviction. We dismissed her conviction appeal in
    oral reasons delivered on the appeal hearing date.



[2]
Mr. Vu was arrested on November 12, 2012; Ms. Pham on February 28, 2013 and Mr.
    Li on May 18, 2013.



[3]

I
n
    March 2014, the Federal Court issued an injunction that exempted persons from
    the repeal of the MMAR, allowing both PPL and DPL license-holders to continue
    to produce marijuana for medical purposes:
Allard v. Canada
,
2014 FC 280, 451 F.T.R.
    45, affd 2014 FCA 298, 324 C.R.R. (2d) 78 (the 
Allard

injunction).




[4]

Following the hearing, the panel sought further
    submissions from the parties on certain issues. As part of those submissions,
    the Crown tendered fresh evidence confirming
that the
Allard

injunction
    has preserved some MMAR licenses. Individuals who were previously authorized to
    possess and/or produce marijuana under the MMAR and meet the terms of the
Allard
injunction may continue to possess and produce marijuana under the
    existing terms of their authorizations to possess and licenses to produce.




[5]

Reference re Section 94(2) of the B.C. Motor Vehicle Act
, [1985] 2
    S.C.R. 486, [1985];
R. v. Creighton
, [1993] 3 S.C.R. 346;
R. v.
    Hundal
, [1993] 1 S.C.R. 867;
R. v. Pontes
, [1995] 3 S.C.R. 44;
R.
    v. Nguyen
, [1990] 2 S.C.R. 906;
R. v. Wholesale Travel Group Inc
.
,
    [1991] 3 S.C.R. 154.



[6]

In
R. v. Zheng
, two of four
    grow licenses authorizing a total of 128 plants had expired. The grow operation
    included 1,507 plants. A night watchman, who also performed minor gardening
    functions, called the police during a break-and-enter. He was charged and
    convicted of aiding the production of all but the 30 plants that were still
    authorized. The
Zheng
trial judge found that
    Mr. Zheng honestly believed the grow operation was authorized but concluded
    that belief amounted to a mistake of law.



[7]

R. v. Jiang
involved an unsophisticated accused hired
    to do primarily security, caretaking and maintenance at a grow op with over
    2,000 plants. The
Jiang
sentencing judge found
    the accused believed "he was engaged in a lawful enterprise", based,
    in part, on the presence of at least some valid licenses, but that such belief
    amounted to a mistake of law.



[8]

The pending Superior Court case involved residents of a house
    charged with unauthorized production and possession for the purpose of
    trafficking, where one of the residents had a valid license to produce 122
    marijuana plants but police found 256 plants in the home.



[9]
The new regulations came into effect only about a week before the Pham
    sentencing judges decision was released on September 1, 2016. The parties did
    not seek to re-open the argument based on the new regulations.



[10]

In response to a post-hearing question from the panel, the
    Crown specified the
mens rea
of production of marijuana for a principal
    as:

(a)

an intention to perform the specific
    physical act that constitutes production; and

(b)

actual knowledge or willful blindness that
    the substance being produced was a controlled substance (citations omitted).


