



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fan, 2021 ONCA 674

DATE: 20211001

DOCKET: C64322 & C64323

Watt, Pardu and Trotter JJ.A.

DOCKET: C64322

BETWEEN

Her Majesty the Queen

Respondent

and

Zhang Jian Fan

Appellant

DOCKET: C64323

AND BETWEEN

Her Majesty the Queen

Respondent

and

Jian Ling

Appellant

Kim Schofield and Mindy Caterina, for
    the appellants

Kerry Benzakein and Sobia Virk, for the
    respondent

Heard: June 30, 2021 by video conference

On appeal from the convictions entered
    by Justice Elizabeth Quinlan of the Superior Court of Justice, on May 5, 2017,
    and the sentences imposed on January 18, 2018.

Trotter J.A.:

A.

Introduction

[1]

The appellants were involved in a large-scale cannabis
    grow operation located at Mr. Fans farm. Mr. Fan leased greenhouses on his
    farm to a third party to produce the cannabis; Mr. Ling acted as a gardener
    for the cannabis plants. The police executed a search warrant at the farm and
    seized 1,025 plants; the harvested marihuana would have been worth between $6.6
    to $15.375 million.

[2]

Although there were multiple Health Canada licences
    on-site that authorized cannabis production, neither appellant was a named
    licence-holder and none of the licences designated the farm as an authorized
    production or storage site.

[3]

The appellants were convicted of the following
    offences under the
Controlled Drugs and Substances Act
, S.C. 1996, c.
    19 (
CDSA
): possession of marihuana (s. 4(1)), possession of
    marihuana for the purposes of trafficking (s. 5(2)), and production of marihuana
    (s. 7(1)).

[4]

The appellants asserted a defence of honest but
    mistaken belief that the grow operation was properly licenced. They relied on
    the licences, notarized statutory declarations that purported to transfer the
    licences to the farm property, and assurances from third parties (none of whom
    were lawyers or state officials) that the documents were legitimate.

[5]

The trial judge found that, even if the
    appellants were truly mistaken about the legality of their operation, it was a
    mistake of law, not a mistake of fact. She found the appellants guilty and sentenced
    Mr. Fan to imprisonment for 20 months, and Mr. Ling for 15 months. The appellants
    appeal their convictions and sentences.

[6]

I would dismiss the conviction appeal because
    the trial judge did not accept the appellants evidence that they believed the
    grow operation was legal. I also agree with her conclusion that, if the appellants
    accounts were believable, they were labouring under a mistake of law, which is not
    a valid defence. I would uphold the sentences as fit.

B.

factual background

(1)

Introduction

[7]

Both Mr. Fan and Mr. Ling were born in China and
    immigrated to Canada as adults. Neither speaks, writes, or reads English. They
    both testified at trial with the assistance of an interpreter.

[8]

Mr. Fan purchased the 100-acre farm property in
    2013, the year after he immigrated to Canada. He built 40 greenhouses on the land.
    He and his business partner, Bin Lin, grew vegetables to sell to Chinese
    supermarkets and restaurants.

[9]

Mr. Fan testified that, in February 2015, Guanhua
    Li approached him and Mr. Lin about leasing part of the farm to grow cannabis. Mr.
    Li told Mr. Fan that the grow operation would be legal and for personal use. He
    showed Mr. Fan his production licence, which authorized Mr. Li to grow 244 cannabis
    plants and store a set amount of dried cannabis, all indoors. He also told Mr.
    Fan that if Mr. Lis drivers licence was registered to the farm property, his
    production licence would follow. At some point, Mr. Li showed Mr. Fan the
    following documents:

·

six production licences (Mr. Lis licence plus
    five licences belonging to other individuals);

·

six statutory declarations, one for each
    production licence, dated March 26, 2015, indicating that each corresponding production
    site could be moved to the farm property;

·

an Authorization to Possess (ATP) dried cannabis
    for medical purposes, in Mr. Lis name; and

·

an Ontario Ministry of Transportation document
    entitled Change of Address Confirmation Driver Licence, effective December
    24, 2014, setting out the farm property as Mr. Lis residential address.

[10]

In April 2015, Mr. Fan and Mr. Li executed an
    Agreement to Lease (that may have been backdated to December 31, 2014), which
    permitted Mr. Li to lease part of the farm, at a rate of $3,000/month, for
    plantation purposes for one year.
[1]

[11]

Mr. Li hired Mr. Ling in April 2015 to be the
    gardener for the grow operation on the farm: his job was to irrigate,
    fertilize, and remove dried cannabis leaves. He moved to the farm and was paid
    $3,000 a month in cash.

(2)

The Police Investigation

[12]

The appellants were arrested in September 2015.
    However, they place significance on an earlier visit the police made to the
    farm.

[13]

In July 2015, the police went to the farm
    looking for Mr. Li, who was a potential witness in another investigation. Mr.
    Lin was present and told the police Mr. Li was renting the greenhouses to grow
    medical cannabis. An officer noted the licences on site were expired and began
    a follow-up investigation. He abandoned the investigation in light of a Federal
    Court

injunction, discussed below.

[14]

The police initiated a second investigation in
    September 2015, after a police officer in the area noticed a strong smell of
    fresh cannabis coming from the farm property. Although the outside row of
    greenhouses, which were visible from the road, appeared to be empty, the police
    could see cannabis plants growing through the tops and sides of some of the
    other greenhouses.

[15]

The police seized 1,025 cannabis plants from 25
    of the 40 greenhouses. Only some of the greenhouses were covered. The residence
    and outbuildings on the property contained various amounts of dried cannabis,
    drying racks, grow lights, ballasts, and cases of freezer bags. There were also
    motion detection sensors and video surveillance cameras covering the
    greenhouses and the entryway to the property.

[16]

The police also seized four licences and four
    corresponding statutory declarations from one of the greenhouse doors (the
    remaining licences and documents were presented at trial). Together, the four
    licences permitted 634 plants to be grown indoors. None of the licence-holders
    were present at the farm, and none of the licences listed the farm address as
    an authorized production or storage site. Health Canada confirmed there were no
    licences issued to Mr. Fan for any address; nor were there licences for the
    farm address under any name.

[17]

Mr. Fan and Mr. Ling were present at the farm
    when the police conducted the search. Though Mr. Ling initially ran from police
    (he testified that he believed it was a robbery), he stopped and was
    apprehended near the greenhouses.

[18]

In a report filed on consent, an expert witness opined
    that the value of the seized plants ranged from $6.6 to $15.375 million. The
    plants were larger than typical cannabis plants. The expert witness estimated
    the 1,025 seized plants would yield roughly 5,125 pounds of cannabis. This
    amount of cannabis was consistent with a high-level trafficker and the
    operation was typical of a commercial grow operation. The marihuana was clearly
    not grown for personal use, or for medical purposes.

(3)

The Licences and Regulatory Regime

[19]

Producing marihuana in the absence of explicit authorization
    under the
CDSA
is a criminal offence. The production and possession of
    marihuana is regulated through a rather complicated statutory regime, which has
    evolved over the years.
[2]
The appellants stress the complexity of the scenario they walked into. However,
    as discussed below, this complexity has little impact on the application of the
    applicable legal principles in this case.

[20]

The licences in this case were granted under the
Marihuana Medical Access Regulations
, S.O.R./2001-227 (the 
MMAR
),
    which authorized licence-holders to produce cannabis, at designated locations,
    for individual medical use. Under the
MMAR
, anyone with an ATP could
    apply for a licence to produce cannabis, either through a Personal Production
    Licence (PPL, under which the PPL-holder could produce cannabis for personal medical
    use only) or a Designated Person Production Licence (DPL, under which the
    DPL-holder could produce cannabis on behalf of a PPL-holder, but only for the
    PPL-holders personal medical use).

[21]

PPLs and DPLs were subject to explicit terms and
    conditions that governed the specific location of the authorized production
    site, the mode of production (indoors or outdoors), the maximum number of
    cannabis plants that could be produced, the specific location of the authorized
    storage site where harvested cannabis could be kept, the maximum quantity of
    dried cannabis that could be stored, and the licences expiry dates. Only the
    licence-holders were permitted to produce the cannabis  the
MMAR
did
    not allow non-licence holders to participate in any production operations.

[22]

As noted above, in this case, there were five PPLs
    and one DPL. Each licence named a different person as the licence-holder, none
    of whom were either appellant. Similarly, none of the licences named the farm
    property as a designated production or storage site.

[23]

Each licence-holder swore a statutory
    declaration before a lawyer that they were moving their licenced grow operation
    from the site authorized on the face of the licence to the farm property.

[24]

In June 2013, the
Marihuana for Medical
    Purposes Regulations
, S.O.R./2013-119 (the 
MMPR
) came into
    force. The
MMPR
purported to repeal the
MMAR
on March 31, 2014
    and replace the PPL and DPL system with a Licenced Producers scheme using
    production licences. The scheme is broader than the
MMAR

system,
    and more commercially focused. The
MMPR
permitted licenced producers
    to possess, produce, and sell cannabis at authorized production sites. It also
    allowed licenced producers to designate one or more responsible person in
    charge, who would be responsible for supervising the cannabis-related
    activities at the authorized sites. It also allowed licenced producers to hire
    employees, but required a responsible person in charge to be present in any
    area containing cannabis while an employee was in those areas.

[25]

The constitutionality of the
MMPR
scheme was challenged in court. To ensure licences under the
MMAR
regime remained valid while litigation over the
MMPR
progressed, the
    Federal Court granted an injunction that extended the expiry date of any PPL or
    DPL granted before March 31, 2014, until the court resolved the constitutional
    issue: see
Allard v. Canada
, 2014 FC 280, 451 F.T.R. 45, revd in
    part, 2014 FCA 298, 324 C.R.R. (2d) 78. This applied to the licences in this
    case, which had expired.

[26]

The upshot of all of this is that, when the
    appellants were arrested, the
MMAR
and
MMPR
schemes were
    operating simultaneously. The
MMPR
was struck down in 2016, while this
    case was proceeding to trial:
Allard v. Canada
, 2016 FC 236, 394
    D.L.R. (4th) 694.
[3]


[27]

The appellants submit that the law was in a
    state of flux and confusion abounded. This submission was not made at trial. In
    any event, the grow operation was not authorized under either framework.

(4)

The Appellants Position at Trial

[28]

The appellants testified that they believed the
    operation was legal and was authorized by the licences referred to above.

[29]

Mr. Fan testified that, although he did not know
    where to go to confirm the lawfulness of the licences, the stamps from the
    lawyer convinced him the licences and the operation were legal. He would not
    have entered into the lease with Mr. Li unless he was sure the proposed
    operation was authorized.

[30]

Mr. Lin understood some English and helped Mr.
    Fan with the documents. Mr. Lin told him the licences were all certified by a
    lawyers stamp and came with lawyers letters (the statutory declarations),
    which were also stamped. Mr. Lin explained the letters to Mr. Fan and told him
    they allowed the licence addresses to be changed to the farm property. Mr. Lin
    also told Mr. Fan that the licences collectively authorized the production of
    roughly 1,100 cannabis plants.

[31]

When Mr. Li asked Mr. Ling to work for him, Mr.
    Ling said he did not want to do anything illegal. Mr. Li then showed Mr. Ling
    six licences, five letters notarized by a lawyer, and Mr. Lis drivers licence
    with the farm property listed as his residential address. He assured Mr. Ling
    that these documents proved he was legally authorized to grow cannabis.

[32]

Mr. Lings friend roughly translated the
    documents for him. His friend described the licences to Mr. Ling, indicating
    how many plants could be planted and how many grams of cannabis could be
    possessed. He also confirmed that the letters were notarized by a lawyer and
    explained that the letters certified that the addresses on the licences could
    be changed.

[33]

Mr. Ling said that he took several steps to
    ensure the operation was legal. He sought assurance from Mr. Li, did online
    research to make sure licenced grow operations existed in Canada, consulted
    people he trusted to confirm his research (though he admitted none of those
    people had experience growing cannabis or dealing with licences), showed
    friends photos of the licences and documents, and reviewed the statutory
    declarations.

[34]

In their apparent quest to determine the
    legality of the operation, neither appellant made any inquiries of official
    sources, despite the fact that each licence bore the logo of Health Canada and
    contained the following bold typeface notation: 
All inquiries regarding
    this licence should be directed to the Marihuana Medical Access Program toll-free
    number: 1-866-337-7705.


(5)

The Trial Judges Reasons

[35]

The trial judge did not accept the appellants
    claim that they were labouring under a mistake of fact in their belief that the
    licences authorized the production and storage of marihuana on the farm.

[36]

The trial judge found that the appellants were
    aware that the production and possession of marihuana is illegal unless
    authorized. She distinguished
R. v. Darquea
(1979), 47 C.C.C. (2d) 567
    (Ont. C.A.), in which this court found that the accuseds mistaken belief that
    his employer had a licence to manufacture a controlled substance in the
    laboratory where he worked was a mistake of fact. The trial judge held that, [h]ere,
    the issue turns on the accused persons understanding or interpretation of the
    licences and statutory declarations, their authoritative scope and
    applicability to their situation. Applying the Supreme Court of Canadas
    decision in
R. v. MacDonald
, 2014 SCC 3, [2014] 1 S.C.R. 37, the trial
    judge found that the appellants mistake was legal, not factual.

[37]

The trial judge summarized her conclusions in
    the following passage from her reasons:

Mr. Fan and Mr. Ling were aware that valid
    licences were required to produce marihuana. As in
Stucky
[2009 ONCA 151,
    240 C.C.C. (3d) 141], and
even if I accepted that the accused persons had an
    honest belief in the lawfulness of their actions, they relied on the advice or
    directions of others regarding the legal consequences of their actions
:
    that it was legal to use licences granted to other persons when accompanied by
    either the holders statutory declaration to change the production site or a
    drivers licence changed to the farm propertys address.
Mr. Fan and Mr.
    Ling, therefore, fell prey to a mistake of law about whether the documentation
    authorized them to produce marihuana without personally being lawfully authorized
    and whether the farm property was a lawfully authorized production site. As
    such, any honest belief they may have had is irrelevant
. [Emphasis added.]

[38]

Finding all other elements of the offences had
    been proved, the trial judge found both appellants guilty on all counts.

C.

Mistake of fact or ignorance of the law?

(1)

Rejection of the Appellants Evidence

[39]

The appellants main focus on appeal is the trial
    judges conclusion that their misunderstanding was a mistake of law rather than
    a mistake of fact. They say that she mischaracterized the situation. I do not
    agree. But there is a more direct and practical basis upon which this appeal
    should be dismissed  the trial judge simply did not accept the appellants
    evidence that they believed that they were acting within the scope of the law.

[40]

As noted above, in her reasons for judgment, the
    trial judge said even if I accepted that the accused persons had an honest
    belief in the lawfulness of their actions, it amounted to a mistake of law. The
    appellants contend that the trial judge only implicitly rejected their
    testimony.

[41]

It would have been preferable had the trial
    judge been more transparent in expressing her credibility findings in these
    reasons. However, it is appropriate to look at the trial judges subsequent
    reasons, post-conviction, to gain a more complete understanding of her
    findings. As Feldman J.A. stated in
R. v. B.J.T
.
, 2019 ONCA
    694, 378 C.C.C. (3d) 238, at para. 43: While it is expected that a trial judge
    sitting alone will clearly include all of his or her findings in the reasons
    for conviction,  a court of appeal may look at the reasons for sentence as
    well as the reasons for conviction to understand the basis for conviction.:
    see also
R. v. A.H.
, 2018 ONCA 677, 366 C.C.C. (3d) 69, at para. 23;
R.
    v. Trobert
, 2000 SKCA 113, 199 Sask. R. 224, at para. 11.

[42]

In this case, after the appellants were found
    guilty, they moved to strike down the mandatory minimum sentence in s.
    7(2)(v)(b) of the
CDSA
as being contrary to s. 12 of the
Canadian
    Charter of Rights and Freedoms
. In her reasons allowing this application,
    the trial judge stated, I do not accept that either of them had an honest but
    mistaken belief in the legality of the operation and gave reasons for this
    adverse credibility finding:
R. v. Ling
, 2017 ONSC 5627, at para. 31.
    In her subsequent reasons for sentence, the trial judge reverted to the
    language from her reasons for judgment, again writing, even if I accepted that
    both offenders had an honest belief in the lawfulness of their actions.

[43]

When the trial judges reasons for judgment are
    considered in conjunction with the language in her constitutional ruling, it is
    apparent that she rejected the appellants evidence that they believed the grow
    operation was legal. This is sufficient to dispose of this appeal. Nonetheless,
    in the event that I am mistaken in this conclusion, and for the sake of
    completeness, I consider the trial judges finding that the mistake was one of law,
    not fact.

(2)

Classifying the Mistake

Ignorance of the Law

[44]

The question of whether an error reflects a
    mistake of fact or ignorance of the law is a vexing one. However, the trial
    judge made no error in her characterization of the appellants asserted
    misunderstanding as a mistake of law.

[45]

Section 19 of the
Criminal Code
provides that: Ignorance of the law by a person who commits an offence is not
    an excuse for committing that offence. This provision, which was enacted in
    1892, codifies the common law: see Don Stuart,
Canadian Criminal Law  A
    Treatise
, 8th ed. (Toronto: Thomson Reuters, 2020), at p. 374.
[4]


[46]

Section 19 enjoys a broad application. It
    applies both to ignorance of the existence of the law and that as to its
    meaning, scope or application:
Molis v. The Queen
, [1980] 2 S.C.R.
    356, at p. 362. In this case, the appellants were aware that the production and
    possession of marijuana was illegal unless properly authorized. Thus, they were
    aware of the
existence
of the law; their apparent mistake pertained to
    its
application
.

[47]

Traditionally, s. 19 applied to a persons
    understanding of a statute. Today, the section applies to the existence and
    language of offence-creating provisions, as well as authorizations required for
    regulated activities, such as the possession of firearms and drugs.

[48]

This is demonstrated in
MacDonald
, a
    decision relied upon by the trial judge, in which the accused made a mistake about
    the scope of his licence to possess a firearm under the
Firearms Act
,
    S.C. 1995, c. 39. The licence authorized possession only in Alberta; MacDonald
    was found in possession of the firearm in Halifax. MacDonald was convicted at
    trial.

[49]

The Nova Scotia Court of Appeal set aside the
    conviction, holding that MacDonald was labouring under a mistake of fact,
    vitiating
mens rea
: 2012 NSCA 50, 317 N.S.R. (2d) 90, revd in part
    2014 SCC 3, [2014] 1 S.C.R. 37. In restoring the conviction, the Supreme Court
    of Canada held, at para. 57, that given that s. 19 extended to the terms of his
    licence, Mr. MacDonalds subjective belief that he could possess the firearm
    in Halifax is therefore nothing other than a mistake of law. This principle
    has been applied to licences under the
CDSA
in
R. v. Vu
, 2018
    ONCA 436, 140 O.R. (3d) 641, at para. 67.
[5]

[50]

To require the Crown to prove that the
    appellants understood the legal framework in which they operated confuses
actus
    reus
and
mens rea
requirements. In this context, a proper
    authorization or licence negates the
actus reus
of activity that would
    otherwise be illegal. Conceived as a
mens rea

component, it
    would require the Crown to prove that an accused person knew the conditions of
    their licence or authorization. As Lamer C.J. held in
R. v. Forster
,
    [1992] 1 S.C.R. 339, at p. 346: [K]nowledge that ones actions are contrary to
    the law is not a component of the
mens rea
for an offence, and
    consequently does not operate as a defence. See also
R. v. Docherty
,
    [1989] 2 S.C.R. 941, at pp. 960-61.

[51]

This case is analogous to
MacDonald
.
    Whereas MacDonald was mistaken that his licence permitted him to possess a
    firearm at a certain location, the appellants were wrong in their asserted belief
    that: (a) the licences permitted
them
to produce and store marihuana;
    (b) the licences permitted production and storage of marihuana
at
the
    farm property; and (c) the marihuana could be produced outdoors. As in
Forster
,
    at p. 348, the appellants were mistaken not about the factual context or the
    quality of [their] actions, but rather about their legal consequences.

[52]

As noted above, in her ruling striking down the
    mandatory minimum sentence, the trial judge expanded on her rejection of the
    appellants evidence. In this part of her reasons, the trial judge concluded
    that the appellants were wilfully blind to the grow operations illegality.
    Applying
MacDonald

and
Forster
, the concept of wilful
    blindness had no role to play in this analysis. Nonetheless, I am still
    satisfied that she reached the correct conclusion that the appellants were
    labouring under a mistake of law.

Were the Appellants Duped?

[53]

In her submissions on the appellants behalf, Ms.
    Schofield argued that the appellants were duped by Mr. Lis representations.
    This theory was not advanced at trial
[6]
and there was no evidence that addressed this issue. Accordingly, I would
    reject this submission. The question of whether deception by a third party is
    relevant to the mistake of law/mistake of fact determination is a matter best
    left for another day, based on an adequate record.

The Complexity of the Regulatory Regime
    and the Appellants Diligence

[54]

The appellants also rely on the fact that their
    conduct occurred in a complex, regulatory framework that was in a state of flux
    at the time. They further submit that they took steps to confirm the legality
    of their grown operation by consulting various sources. I am not persuaded by
    either argument.

[55]

It has long been the case that s. 19 may operate
    in highly regulated contexts. In
R. v. Jorgensen
, [1995] 4 S.C.R. 55,
    Lamer C.J., writing for himself in a concurring judgment, addressed the feature
    of complexity when considering whether the concept of officially induced error
    of law should be introduced into Canadian law, noting at p. 29:

As several of the cases where this rule has
    been discussed note, the complexity of contemporary regulation makes the
    assumption that a responsible citizen will have a comprehensive knowledge of
    the law unreasonable.
This complexity, however, does not justify rejecting a
    rule which encourages a responsible citizenry, encourages government to
    publicize enactments, and is an essentially foundation to the rule of law
.
    [Emphasis added.]

The Supreme Court formally recognized
    officially induced error in
Lévis (City) v. Tétreault
, 2006 SCC 12,
    [2006] 1 S.C.R. 420, at pp. 433-36.
[7]

[56]

The appellants did not rely on an officially
    induced error of law. In their apparent attempts to confirm the legality of the
    grow operation, they consulted no official sources. Although they purported to
    rely upon the statutory declarations accompanying the licences, this was no
    substitute for consulting an official for the purposes of the officially
    induced error exception to s. 19: see
Stucky
, at para. 109. As noted
    above, all six licences in question disclosed a toll-free Health Canada number
    from which information about the licences could be obtained.

[57]

The appellants reliance on their efforts to
    confirm legality is simply a claim that they did their best, a claim the trial
    judge rejected. Even if accepted, these efforts could not elude the reach of s.
    19 of the

Criminal Code
.
In
La
    Souveraine
,
Compagnie dassurance générale v. Autorité des marchés
    financiers
, 2013 SCC 63, [2013] 3 S.C.R. 756, Wagner J. (as he then
    was) said, at para.
57: A defendant can therefore gain
    nothing by showing that it made a reasonable effort to know the law or that it
    acted in good faith in ignorance of the law, since such evidence cannot exempt
    it from liability. Section 19 does not reward effort; it demands correctness.
    Canadian jurisprudence does not recognize the concept of a reasonable mistake
    of law.
[8]
To do so would undermine the rule with respect to ignorance of the law, which
    Lamer C.J. said in
Jorgensen
, at para. 5, is an orienting principle
    of our criminal law which should not be lightly disturbed.

Potential Authorization Under the
MMPR

[58]

The appellants further submit that the enactment
    of the
MMPR
, which authorizes the commercial production of marihuana, could
    have applied to exempt them from criminal liability. Relying on
R. v. Tong
,
    [2019] O.J. No. 5710 (S.C.), the appellants contend that the potential legality
    of their conduct, under a different regulatory regime, transformed their
    mistake of law into a mistake of fact.

[59]

I do not accept the appellants submissions. As
    already noted, the issue of whether the
MMPR
could have authorized the
    appellants conduct was not raised at trial. Moreover, even if the
MMPR
could apply to the appellants grow operation, it would not assist the
    appellants because the
MMPR
required security clearances for
    individuals who are central to commercial operations. Outdoor production was
    not permitted and the appellants are unable to escape the fact that the farm
    was not a designated location for the production or storage of cannabis.
    Moreover, and as the trial judge noted, [n]either the
MMAR
nor the
MMPR
allowed a valid change of production site by statutory declaration. The
    appellants claim essentially dissolves into the untenable assertion that, had
    they obtained different licences, their operation would have been legal. It is
    tantamount to the accused in
MacDonald

submitting that, because
    he may have been able to obtain a licence to possess the firearm in Nova
    Scotia, his mistake about the scope of his existing licence became factual. I
    would reject this line of reasoning.

Existence of a Licence vs. Terms of
    a Licence

[60]

Finally, the appellants rely on the previous decisions of this court
    in
Darquea
,
R. v. Johnson
, 2016 ONCA 654, and
R. v.
    Pilgrim
, 2017 ONCA 309, 347 C.C.C. (3d) 141. All three cases involved mistakes
    about the
existence
of licences or authorizations, not about their scope
    or application.

[61]

In
Darquea
, the accused mistakenly believed that the head
    of the laboratory where he worked was licenced to produce the drug in question.
    In
Johnson
, the accused mistakenly believed that a PPL existed for a
    property when none existed; in
Pilgrim
, the accused laboured under the

mistaken belief that her spouse had a drug prescription under the
Narcotic
    Control Regulations
, C.R.C., c. 1041, when no such prescription existed. All
    three scenarios amounted to mistakes of fact.

[62]

By contrast, in this case, the appellants were mistaken as to the
    reach of the licences they knew existed and, as such, were mistaken as to the
    applicable law. As this court aptly put it in
Vu
, at para. 67
    (discussing
Johnson
), a mistake as to the terms of ones license is a
    mistake of law, not a mistake of fact.

[63]

I would dismiss this ground of appeal.

D.

The Sentence Appeal

[64]

When the offences were committed, Mr. Fan was 54
    years old. He had no criminal record. In a positive Pre-Sentence Report, he was
    a described as hard-working family man.

[65]

Mr. Ling was 27 at the time of the offences. Like
    Mr. Fan, Mr. Ling had no prior criminal record. In an equally positive
    Pre-Sentence Report, he too was described as a hard worker who supported two
    children from a previous marriage, as well as a step-daughter. When he was
    sentenced, his wife was pregnant.

[66]

Both appellants potentially faced adverse
    immigration consequences as a result of their convictions and sentences.

[67]

The trial judge imposed global sentences of 20 and
    15 months on Mr. Fan and Mr. Ling, respectively. While she recognized each
    appellant benefited from several mitigating factors, those had to be weighed
    against the aggravating factors. In particular, the trial judge noted that
    [cannabis] cultivation often leads to other social evils and risks to public
    safety including violent criminal activity, especially those in vulnerable
    groups:
Pushpanathan v. Canada (Minister of Citizenship and Immigration
)
,

[1998] 1 S.C.R. 982, at paras. 85-91;
R. v. Evans
, [1996] 1 S.C.R.
    8, at para. 24;
R. v. Malmo-Levine; R. v. Caine
, 2003 SCC 74, [2003] 3
    S.C.R. 571, at paras. 134-37;
R. v. Tran
, 2005 CanLII 3937, 194 O.A.C.
    278 (C.A.), at para. 5; and
R. v. Nguyen
, 2007 ONCA 645, 227 C.C.C.
    (3d) 262, at paras. 46-48. In imposing the appellants sentences, the trial
    judge also relied on jurisprudence from this court that establishes that
    denunciation and deterrence are paramount considerations in cases involving
    large-scale cannabis grow operations:
R. v. Peltier
, 2013 ONCA 141,
    303 O.A.C. 87;
R. v. Chen
, 2007 ONCA 230.

[68]

The appellants raise two issues on the sentence
    appeal: the trial judge erred in considering the risk of violence and risk to
    members of vulnerable groups as aggravating factors; and the trial judge misapplied
    the parity principle and consequently imposed disproportionate and demonstrably
    unfit sentences.

[69]

I accept the appellants submissions that the
    legal landscape relating to the production and possession of marihuana has
    changed significantly in recent years; however, this courts approach to
    large-scale grow operations has not.

[70]

In
R. v. Strong
, 2019 ONCA 15, this
    court said, at para. 4, that it is not the case that prolonged trafficking for
    profit in marijuana is somehow viewed as less serious because of the
    legislative changes in respect of personal possession and use. See also
R.
    v. Kennedy
, 2019 ONCA 77, at para. 11.

[71]

Furthermore, contrary to the appellants
    submissions, it is not the case that the risks to vulnerable groups as detailed
    in earlier jurisprudence has been debunked such that the trial judge erred in
    relying on them. As the Crown correctly points out, the current legislative
    scheme governing cannabis use  despite decriminalizing it for those of legal
    age  still incorporates safety rules and warnings geared toward some of the
    very concerns addressed in the jurisprudence on which the trial judge relied:
    see
Cannabis Regulations
, S.O.R./2018-144, s. 123(1)(d)-(e).

[72]

Moreover, what happened at the time of arrest in
    this case is very telling. Mr. Ling attempted to escape, apparently fearful
    that he was going to be robbed. He further testified that Mr. Li had told him
    that security cameras were installed around the farm to prevent this kind of
    occurrence. Accordingly, the trial judges reliance on this factor was not
    misplaced.

[73]

Finally, the sentences were proportionate in
    the circumstances and on par with those imposed in analogous cases: see
R.
    v. Bentley
, 2017 ONCA 982, at para. 11.

The trial judge correctly observed
    that, while neither appellant was the directing mind behind the operation, they
    each played a critical role in the enterprise. The plants seized from the farm
    were larger than typical cannabis plants, and their estimated value ranged
    upwards of $15 million. Considering the size of the potential yield from the farms
    plants  roughly 5,125 pounds  it was reasonable for the trial judge to rely
    on cases involving larger grow operations.

[74]

The trial judge properly considered the
    circumstances of the offences and offenders, the applicable mitigating and
    aggravating factors, each appellants respective level of the moral
    blameworthiness, and the governing principles and purposes of sentencing. There
    is no basis for this court to interfere:
R. v. Lacasse
, 2015 SCC 64,
    [2015] 3 S.C.R. 1089, at paras. 38-41.

[75]

Lastly, the trial judge imposed victim
    surcharges on both appellants. In light of
R. v. Boudreault
, 2019 SCC
    58, [2018] 3 S.C.R. 599, and with the consent of the Crown, they are set aside.
    I would otherwise dismiss the sentence appeals.

E.

Disposition

[76]

I would dismiss the conviction appeals. I would
    grant leave to appeal sentence and set aside the victim surcharges. Any monies
    paid in satisfaction of the surcharges are ordered returned to the appellants.
    In all other respects, both sentence appeals are dismissed.

Released: October 1, 2021 D.W.

Gary Trotter J.A.

I agree. David Watt J.A.

I agree. G.
    Pardu J.A.





[1]
Though
Mr. Fan was unclear at trial on the exact dates and
    sequence of events, the discrepancies are irrelevant to the issues on appeal.



[2]
See the discussion of the history of this regulatory regime in
R.
    v. Vu
, 2018 ONCA 436, 140 O.R. (3d) 641, at paras. 30-36.



[3]

Additional reasons released,
2016 FC 237,
    motion for reconsideration refused, 2016 FC 492.



[4]

Professor
    Stuart identifies the purported justifications for the rule, at pp. 375-382:
    (1) allowing a defence of ignorance of the law would involve the courts in
    insuperable evidential problems; (2) it would encourage ignorance where
    knowledge is socially desirable; (3) otherwise every person would be a law unto
    himself, infringing the principle of legality and contradicting the moral
    principles underlying the law and (4) ignorance of the law is blameworthy
    itself. At p. 379, he finds that none of these stated rationales are very convincing.



[5]
This decision was made, not in the context of determining
    liability, but to the consideration of reasonable hypothetical scenarios in an
    analysis under s. 12 of the
Charter
.



[6]

Neither Ms. Schofield nor Ms. Caterina were trial counsel.



[7]
The defence of officially induced error operates as an exception to
    the rule that ignorance of the law is no defence. An individual may rely on
    this defence where they reasonably relied upon the erroneous legal opinion or
    advice of an official who is responsible for the administration or enforcement
    of the regulation (see
Jorgensen
, at paras. 28-35). See also Stuart, at
    pp. 391-401.



[8]

In
MacDonald
, at para. 61 and in
R. v. Suter
,
    2018 SCC 34, [2018] 2 S.C.R. 496, the Supreme Court held that a mistake as to
    the law may be a mitigating factor on sentence.


