R. v. Nguyen Date:, 2017 BCPC 263

Citation: R. v. Nguyen Date: 20170509 2017 BCPC 263 File No: 198905-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. THONG VAN NGUYEN RULING ON APPLICATION OF THE HONOURABLE ASSOCIATE CHIEF JUDGE M. GILLESPIE Counsel for the Crown: M. Wiancko Counsel for the Defendant: M. Klein Q.C. Place of Hearing: Surrey , B.C. Date of Hearing: March 13, 2017 Date of Judgment: May 9, 2017

BACKGROUND [1] On March 19, 2013, Surrey RCMP attended to a residential marijuana grow operation located at 5642 Sundale Grove, Surrey,BC (“Sundale Residence”), where 259 plants in a vegetative state and 265 drying marijuana plants were located by the Surrey RCMP. [2] The Sundale Residence is located in a residential neighbourhood in Surrey. It has two floors: a main living area and abasement that opens up to the ground floor outside. [3] Mr. Le and Mr. Thai were found and arrested at the Sundale Residence. Mr. Le was associated to a Budget Rent-a-Van parkedin the driveway, and Mr.

Thai was associated to a garden truck parked on the street near the Sundale Residence. They were botharrested at the residence. Mr. Nguyen left the residence, along with his family, through the back upstairs door and was subsequentlyarrested on March 28, 2013. [4] All three accused were charged with possession for the purposes of trafficking of the marijuana plants. Additionally, Mr.Nguyen was charged with production of cannabis (marijuana) and fraudulent use of hydro. [5] In Reasons for Judgment filed on October 29, 2015, Mr. Le and Mr. Thai were found not guilty by me. However, I convictedMr.

Nguyen on October 29, 2015 on the following charges on information 198905: possession of marijuana for the purposes oftrafficking (Count #1), cultivation/production of marijuana (Count #2) and theft/fraud (Count #3) in relation to the diverted hydro. [6] Mandatory minimum sentences are prescribed for offences of production of marijuana. In s. 7(2)(b)(iii) of the ControlledDrugs and Substances Act (“CDSA”), a 12 month minimum jail sentence is prescribed where offenders produce more than 220 plants,and less than 501. Defence counsel, Mr. Klein.

Q.C., argues that the 12 month minimum sentence mandated by s. 7(2)(b)(iii) of theCDSA violates s. 12 of the Charter, and is unconstitutional. Mr. Klein argues that while a 12 month jail sentence would not result in asentence that is unduly harsh for Mr. Nguyen, he submits that the minimum mandatory sentence is grossly disproportionate when viewedin the context of reasonable hypotheticals, where the accused’s moral culpability is much less than the mid to large scale commercialmarijuana grower. Mr.

Klein seeks an order from me that the minimum mandatory sentence should not be applied in this case, as it doesnot comply with s. 12 of the Charter. Jurisdiction of the Provincial Court [7] In R. v. Lloyd, 2016 SCC 13 , [2016] S.C.J.

No. 13 at para. 15, Chief Justice McLachlin observed that the law is clearwith respect to the jurisdiction of provincial court judges (“PCJs”) and Charter applications: “PCJs are “not empowered to make formaldeclarations that a law is of no force and effect under s. 52(1) of the Constitution Act, 1982: only superior court judges of inherentjurisdiction and courts with statutory authority possess this power”. [8] PCJs do have the authority to consider the constitutionality of laws before them: “It has always been open to provincial courtsto declare legislation invalid in criminal cases.

No one can be convicted of an offence under an invalid stature.” [Lloyd, at para. 15,citing R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295 at p. 316.] [9] At paragraph 19 in Lloyd, Chief Justice McLachlin summarizes the jurisdiction of a PCJ: The effect of a finding by a provincial court judge that a law does not conform to the Constitution is to permit the judge to refuse to applyit in the case at bar. The finding does not render the law of no force or effect under s. 52(1) of the Constitution Act, 1982.

It is open toprovincial court judges in subsequent cases to decline to apply the law, for reasons already given or for their own; however, the lawremains in full force or effect, absent a formal declaration of invalidity by a court of inherent jurisdiction. Prerequisites/Notice under

Section 8 of the CDSA [10] Crown counsel served Mr. Nguyen with notice under s. 8 of the CDSA. The Crown relies on s. 7(2)(b)(iii) and seeks a greatersentence based on the number of marijuana plants produced being more than 200 but less than 501, notwithstanding my finding that thenumber of plants exceeds 501 plants. [11] A Conditional Sentence Order is not available because there is a minimum mandatory sentence. Specific Facts Relating to Mr. Nguyen [12] Mr. Nguyen is 50 years old. He has no previous criminal record. He is the owner of the Sundale Residence where themarijuana grow operation occurred.

At the time the grow operation occurred, he lived in the residence with his wife and children, aged 5and 9. He still resides at the house. He works as a painter and home renovator. [13] Cst. Trenn was qualified as an expert in the trial in the area of expert in cultivation, production, possession for the purpose oftrafficking, use, distribution, price and packaging of marijuana, as well as the roles in a marijuana grow operation. She calculated thevalue of the marijuana grow operation present at the Sundale Residence by using a plant yield of 48g/plant (based on Cpl.

Krauss’observations of the marijuana plants) and multiplied this amount by 524 plants located at the residence. In total, the yield was 25,152grams, which equalled 55.35 pounds of dried marijuana bud. She assumed a value of $1000.00 per pound, and concluded that the totalvalue of the marijuana grow operation, if sold at the pound level, was $55,350.00. [14] I found that the marijuana grow operation was being dismantled. Indeed, I found that Mr. Le, aided by Mr. Thai, was obtainingmarijuana plants he was licensed to grow for medical purposes. [15] Cst.

Trenn did not physically attend the marijuana grow operation; rather she viewed photographs of it. Cst. Trenn testified that

when she viewed those photos she observed that there were high pressure sodium bulbs commonly used in grow operations, along withother electrical equipment including ballasts and shrouds, which directed the light onto the plants. She also detected the presence of ahydro bypass located in the garage. She testified that electrical bypass equipment is expensive and is commonly used to avoid alertingBC Hydro to excessive hydro consumption at residences where there are grow operations.

Additionally, a bypass reduces the cost of theelectricity, as the energy is being diverted from BC Hydro and does not get recorded by the Hydro meter. It also increases the risk ofelectrical fires and harm to the house and potentially to neighbours. [16] There were also fans and charcoal filters used to mask the odour of the growing marijuana and Mylar plastic present in theresidence. Cst. Trenn testified that marijuana grow operations are expensive to set up, as electrical and green house equipment must bepurchased, doors must be reinforced, and plumbing and wiring must be enhanced.

Further, she observed that there is a considerableperiod of planning associated with such ventures. [17] Cst. Trenn’s opinion was that the grow operation at the Sundale Residence was moderately sophisticated. EVIDENCE ADMITTED AT SENTENCING [18] Cpl. Chow and S/Sgt. Patrick Murray’s qualifications as experts in the area of health and public safety issues associated withmarijuana grow operations were admitted for the purpose of the sentencing hearing. S/Sgt. Murray’s report was also filed as an exhibit. [19] Ms.

Wiancko, Crown counsel, summarized the public safety issues associated with marijuana grow operations in her writtensubmissions at paragraphs 35, and 39-49. Mr. Klein does not take any issue with those submissions. [20] In

summary, marijuana grow operations are harmful to communities and create health and safety concerns for the publicincluding the following: • by exposing them to: unsafe building modifications designed to facilitate indoor production areas; • electric by-passes are created, so the people growing the marijuana avoid paying for increased electricity and avoid detection fromthe electrical companies; • electrical by-passes are dangerous, fire hazards and often exposed wires are present; • the growing conditions in marijuana production create increased presence of toxic moulds and fertilizers; • there are high levels of CO2 present; • increased criminal activity in residential neighborhoods due to high value of the commercial marijuana crops; and • increased presence of weapons and traps to protect the grow operation, which increases risks to innocent by-standers and neighborsin residential neighborhoods. [21] Marijuana production requires planning, capital outlay and financial investment.

It is not a “spur of the moment decision”. Asnoted by the Crown, in her submissions at paragraph 50: “invariably the offender makes a deliberate choice to break the law, forpersonal gain”. LAW

Section 12 of the Charter [22] Mr. Klein brings this application under s. 12 of the Charter, which asserts that a person is “not to be subjected to any cruel andunusual treatment or punishment”. At paragraphs 22-25, in R. v. Elliot, [2016] B.C.J. No. 449, Madam Justice Fenlon (now Fenlon,J.A.) sets out the parameters of a s. 12 analysis: [22] The test for whether a particular sentence constitutes cruel and unusual punishment is whether the sentence is grosslydisproportionate: R. v. Smith, (SCC), [1987] 1 S.C.R. 1045. To be considered grossly disproportionate, a sentence mustbe more than merely excessive.

It must be "so excessive as to outrage standards of decency" and disproportionate to the extent thatCanadians "would find the punishment abhorrent or intolerable": R. v. Wiles, 2005 SCC 84 at para. 4, citing Smith at 1072; R.v. Morrisey, 2000 SCC 39 at para. 26; and R. v. Ferguson, 2008 SCC 6 at para. 14. [23] A two-stage test is employed to evaluate the constitutionality of a legislative sentencing provision under s. 12. In R. v. Brown, (SCC), [1994] 3 S.C.R. 749 at 751, Mr. Justice Iacobucci for the Court described the two-stage test articulated in R. v.Goltz, (SCC), [1991] 3 S.C.R. 485 at 505.

The first stage involves viewing the provision in question from theperspective of the particular accused and on the facts of the case before the court. The second stage involves considering reasonablehypotheticals involving the same offence underlying the sentence in the case before the court. [24] Because s. 12 of the Charter imposes a constitutional baseline, the threshold for demonstrating that a particular sentence isgrossly disproportionate is “stringent”: Goltz at 502, citing Steele v. Mountain Institution, (SCC), [1990] 2 S.C.R. 1385at 1417, and Morrisey at para. 70.

To hold otherwise would trivialize the constitutional protection afforded by s. 12 of the Charter: R. v.Latimer, 2001 SCC 1 at para. 76, citing Steele at 1417. Thus a sentence which is shown to be merely excessive ordisproportionate will not offend the threshold of gross disproportionality: R. v. Ferguson at para. 14. [25] Further, the court must approach the analysis with awareness that sentencing policy is a matter within the competence ofParliament. Courts must therefore "consider and defer to the valid legislative objectives underlying the criminal law responsibilities ofParliament": Latimer at para. 76.

While the courts are responsible for determining whether a particular punishment "exceeds

constitutional limits set by the Charter", courts should nevertheless be "reluctant to interfere with the considered views of Parliament",and should only do so "in the clearest of cases" where the punishment is so excessive as to "outrage standards of decency": Latimer atpara. 77, citing R. v. Guiller (1985), (ON SC), 48 C.R. (3d) 226 (Ont. Dist. Ct.) at 238. Stage One Analysis [23] A stage one inquiry is also known as a particularized inquiry.

It takes into account the particular circumstances of the offenderto determine whether the minimum mandatory sentence is grossly disproportionate, having regard to the circumstances of the offender,including their moral culpability, the gravity of the offence, and the particular aggravating and mitigating factors. Regard must be hadfor the principles of sentence as set out in ss. 718 -718.2 of the Criminal Code.

Additionally, the “penological goals and sentencingprinciples” in the legislative scheme that is being challenged must be examined, including the availability of reasonable alternatives, andthe range of sentence for similar offences. [See: R. v. Nur, 2015 SCC 15 , [2015] 1 S.C.R. 773.] [24] Both counsel have reviewed the sentencing authorities summarized by Madam Justice Duncan in R. v.

Serov, [2016] BCSC 636at para.17. [See also the Defence written submissions at paras. 24 and 25.] [25] The Defence agrees with the Crown that the mandatory minimum sentence of one year imprisonment is “not outside of therange of sentences available to the Applicant”. While the mandatory minimum sentence makes it impossible for the accused todemonstrate that a lesser sentence would be appropriate, he acknowledges that this sentence is not grossly disproportionate. Therefore,the defendant acknowledges that on a particularized inquiry the provisions of s. 7(2)(b)(iii) do not engage s. 12 of the Charter. [26] Mr.

Klein submits that in stage two of the s. 12 analysis, I should find that the reasonable hypothetical scenarios give rise tosentences that are not just “harsh or excessive, but so grossly disproportionate that it warrants a finding that the law is unconstitutional”. [Elliot, supra, at para. 41.] [27] In R. v. Picard, [2016] B.C.J. No. 2470 at para. 27, Mr. Justice Butler reviewed the authorities submitted by Crown counselwhich suggested a range of 9 months to three years incarceration for a marijuana grow operation, where the plant yields were within therange of 200-500 plants.

Butler J., at paragraph 28, finds that due to the particular circumstances of the accused, Mr. Picard, a fitsentence would be a custodial sentence of 6-9 months or 12-18 months, if the sentence imposed was a conditional sentence. In his view: a custodial sentence in the range of one year was fit for mid-sized commercial grow operations involving 300-500 plants.

While thedifference in sentences depended on numerous factors, the number of plants had become a very significant factor in establishing thesentence range. [28] The creation of a minimum penalty also results in a conditional sentence order being unavailable for Mr. Nguyen. Mr. Nguyendoes not advance this as part of his argument that the minimum mandatory jail sentence of one year results in punishment that is “grosslydisproportionate”, and thus offends s. 12 of the Charter. In R. v.

Serov, 2016 BCSC 636 at para. 35, Madam Justice Duncan concludedthat there is no constitutional right to a conditional sentence order. Stage Two Analysis [29] The law is clear that in a stage two analysis, the defendant bears the burden on a balance of probabilities of identifying ascenario where the minimum mandatory sentence creates a situation where the minimum sentence imposed is so “grosslydisproportionate”. [30] In Nur, supra, McLachlin C.J.C. canvassed the law relating to reasonable hypotheticals and what was required to meet thethreshold of “reasonableness”: [54] A few years later in R. v.

Goltz, (SCC), [1991] 3 S.C.R. 485, the Court, per Gonthier J. for the majority,confirmed that a s. 12 review of mandatory minimum sentencing laws may look at cases other than that of the offender, and commentedon the scope of that review. Laws should not be struck down as unconstitutional on the basis of examples that were unlikely ever to arise.The focus must be on “reasonable hypothetical circumstances, as opposed to far-fetched or marginally imaginable cases”: p. 506(emphasis in original).

The Court upheld a minimum sentence of seven days’ imprisonment for driving while prohibited. …. [56] These are the only three cases to directly address the question of what cases, or “hypotheticals”, the court should consider on a s.12 challenge to a mandatory minimum sentencing provision. In my view, they do not establish that the jurisprudence is “irreconcilable”.A single theme underlies Goltz and Morrisey – the only two cases to discuss the issue in detail reasonable foreseeability.

When GonthierJ. in Goltz speaks of the “reasonable hypothetical” he is speaking of a situation that may reasonably be expected to arise – not“marginally imaginable”, not “far-fetched”, but “reasonable”.

The early case of Smith is not inconsistent in words or result with thetheme developed in Goltz and Morrisey – in determining whether mandatory minimum sentencing laws violate s. 12, it is appropriate toconsider how the law may impact on third parties in reasonably foreseeable situations. [57] Unfortunately, the word “hypothetical” has overwhelmed the word “reasonable” in the intervening years, leading to debate onhow general or particular a hypothetical must be, and to the unfortunate suggestion that if a trial judge fails to assign a particularconcatenation of characteristics to her hypothetical, the analysis is vitiated.

With respect, this overcomplicates the matter. The question issimply whether it is reasonably foreseeable that the mandatory minimum sentence will impose sentences that are grosslydisproportionate to some peoples’ situations, resulting in a violation of s. 12. The terminology of “reasonable hypothetical” may behelpful in this regard, but the focus remains squarely on whether the sentence would be grossly disproportionate in reasonablyforeseeable cases. At its core, the process is simply an application of well established principles of legal and constitutional

interpretation. Reasonable Hypotheticals

[ 31 ] Defence counsel submits that there are three reasonable hypotheticals that arise where a year mandatory minimum jail sentence pursuant to s. 7(2)(b)(iii) would result in “grossly disproportional” sentences to the hypothetical offender relative to their moral blameworthiness, therefore resulting in cruel and unusual punishment. Hypothetical #1: Discussion of R. v. McGee , infra [ 32 ] Mr. Thai, one of the co-accused, was acquitted because I found that he aided Mr. Le’s lawful possession of marijuana plants pursuant to Mr. Le’s medical marijuana license.

Defence counsel submits as a reasonable hypothetical fact pattern that I should assume that Mr. Le did not have a medical marijuana license, and Mr. Thai aided Mr. Le in moving 300 plants by “simply moving them into his truck”, or by watering the plants because Mr. Le asked him to do so, while Mr. Le loaded the plants into the truck. Further, I should assume that Mr. Thai aided Mr. Le, but as a favour to Mr. Le, not because he was being paid. Defence counsel submits that in this scenario, Mr. Thai’s participation would be at the very low end of criminal conduct. However, under the present sentencing regime, Mr.

Thai would be subject to a minimum mandatory one year jail sentence. [ 33 ] Crown counsel argues that this hypothetical is not reasonable, nor does it amount to cultivation. Mr. Thai would not have been found guilty of cultivation on these facts, and thus he would not be subjected to the minimum mandatory sentence. Crown further argues that even if Mr. Thai’s participation does amount to the offence of production, that the hypothetical is not reasonable, it is too farfetched, and should not be considered by me. Crown relies on Mr. Justice Butler’s decision in R. v. Picard , [2016] B.C.J.

No. 2470 , and the Supreme Court of Canada cases: Nur and Lloyd , supra . ANALYSIS OF THE HYPOTHETICAL #1 and McGEE [ 34 ] The word “produce” is defined in s. 2 of the CDSA : “produce” means, in respect of a substance included in any of Schedules I to IV, to obtain the substance by any method or process including (

a) manufacturing, synthesizing or using any means of altering the chemical or physical properties of the substance, or (

b) cultivating, propagating or harvesting the substance or any living thing from which the substance may be extracted or otherwise obtained, and includes offer to produce; [ 35 ] Defence counsel argues that the definition of “produce” is intentionally very broad. It captures “any method or process” that would cultivate, propagate or harvest the substance. Defence argues that under this broad definition, even watering marijuana plants to get them ready to withstand transport would be sufficient to aid and abet production. [ 36 ] Defence argues though that even if I do not accept that Mr.

Thai’s actions amount to production in Hypothetical #1, or otherwise conclude the facts of the hypothetical are not reasonable, I am bound to follow R. v. McGee , 2016 BCSC 2175 . In McGee , Defence counsel argues that Schultes J. has already found a reasonable hypothetical where the actions of an individual involved as a minimal participant/party to the production of a long term grow operation would result in that accused being a minimally involved participant, yet also being subjected to a minimum mandatory sentence of imprisonment. Mr. Klein notes at paragraph 31 of his written argument that Mr.

Justice Schultes “emphasizes the effect of short term actions and the low threshold of liability under

section 21 (

b) of the Criminal Code ”. Therefore, it is Mr Klein’s position that even if I do not find Mr. Thai’s actions in the hypothetical situation #1 amount to production, I am bound by the findings of Schultes J., where he determines that there is a reasonable hypothetical situation where an accused person may aid and abet the production of marijuana, but their acts are of such a time limited quality, that to visit a minimum sentence of imprisonment of two years on them would be grossly disproportionate. [ 37 ] In McGee , Justice Schultes reviews the decision of Madam Justice Warren in R. v.

Hofer , 2016 BCSC 1442 at paras. 71-78 . Warren J. in Hofer reviews cases where offenders have been convicted as parties rather than principals in commercial grow operations. Warren J. discusses a situation where an elderly offender “is wilfully blind” about the existence of a marijuana grow operation tended by their son, on “rural property” owned by them. Warren J. concludes that in that case a two year minimum mandatory sentence would not be “grossly disproportionate”, as “significant sentences have been imposed even where the offender does not actively participate in the production”. [See R. v.

Nguyen , 2014 BCSC 1252 , 10 months jail for a party for trafficking and production of 694 marijuana plants; R. v. Jesson , 2015 BCPC 171 : 16 month and 18 month CSOs imposed.] [ 38 ] Schultes J. agrees with Warren J.’s reasoning in the cases she has cited.

At paragraphs 126-129 of McGee , Schultes J. observes: [125] However, likely as a consequence of the way in which the case was argued and the type of party participation that the case authorities that were provided dealt with, it does not address an aspect of party liability that I consider to be significant in arriving at reasonably foreseeable applications of this minimum sentence.

That is the potentially gross disparity between the actions and intent necessary to become a party and the relatively protracted actions that are usually seen among participants in this offence, even lesser- involved participants. [126] As the authorities have established, large-scale marihuana grow operations require significant time to set up, maintain and carry through to harvest and packaging. This long-term and repeated focus on the carrying out of illegal actions leads to the significant level of moral culpability that Ryan J.A. identified in Koenders .

It is in contrast to many Criminal Code offences, which often take place over much briefer periods and involve fewer actions by the principal, so that a single act or brief series of acts of aiding or abetting the principal can still play a meaningful and significantly morally culpable role. [127] As can be seen from the excerpt above, Warren J. had before her previous decisions and foreseeable scenarios in which the involvement of the party tracked that ongoing process of carrying on the grow operation, making it difficult to draw meaningful enough distinctions between those parties and the principals to view the minimum as being grossly disproportionate.

But the parties provisions do not require that sort of ongoing assistance. Using the simplest example, of aiding, and focusing on the more likely situation of acts, rather than omissions, the parties provision ( s. 21 (

b) of the Criminal Code ) includes anyone who: “does … anything for the purpose of

aiding any person to commit [the offence]”. [128] There is no temporal requirement. It could be a single act or very few acts. All that is needed is the intention to assist, coupledwith doing anything that does assist. It is not hard to conceive of brief, intentional acts of assistance that would arise within an ongoinggrow operation: delivering a tray of seedlings or a bottle of nutrients, briefly assisting a friend who acts as the ongoing caretaker orgardener, pitching in on the day that the product is cut down, or as Cpl.

Forbes envisioned in relation to this specific case, forming partof the bucket brigade to bring dirt into the crawl space. In each of these cases a relatively minor and time-limited act of assistance wouldattract a two-year sentence, with the only remedy being prosecutorial discretion, which as I have said will not suffice. [39] Further, at paragraph 77 of the Crown’s written submissions, in response to the Hypothetical #1 and any variations advanced onit, as set out by Mr.

Klein, the Crown argues that: These do not constitute scenarios where someone would be guilty as a party to the offence of production and therefore minimums[sentences] do not apply. The offence of production requires active participation in the growing of the marijuana plants. To be guilty asa party, the individual must knowingly aid or abet the principal in the commission of the offence. In the context of indoor marijuanaproduction, a person may aid and abet in the production of marijuana by maintaining the environment in which the marijuana isproduced, with the purpose or intent to assist the crime. [See R. v.

Hubble, 2002 BCCA 561 at paras. 10 and 15; R. v. Ngo, 2009 BCCA30, at para. 52; R. v. Chaif-Gust, 2011, BCCA 528.] [40] Crown counsel also submits that Mr. Justice Schultes’ “hypothetical” is not reasonable, as it is not a situation where productioncharges would be laid, as the brief temporal nature of the act is insufficient to find that the accused, as a party, met the threshold of“active participation” under s. 2 of the definition of “production”.

Crown submits that the definition of “production” requires “activeparticipation in the growing of the marijuana plants”, and in McGee there is no clear analysis of how the hypothetical acts of thehypothetical offender meets that threshold. [41] Mr. Klein disagrees and notes that the broad language in the CDSA, quoted above, defining the offence of production, includesa wide and broad range of activities, such that even this “relatively minor and time-limited act of assistance” is captured by thelegislation. Mr.

Klein further submits that while prosecuting authorities (the Public Prosecution Service of Canada in this case) maychoose not to prosecute these offenders under the production provisions of the CDSA; that decision is premised on the exercise ofprosecutorial discretion. According to R. v. Appulonappa, 2015 SCC 59 at para. 74, “Crown discretion does not save unconstitutionallegislation. [Defence’s written submissions, at para. 37.] [42] I accept that Mr.

Justice Schultes’ hypothetical envisions that there were actions of an offender, knowing that a commercialscaled grow operation was taking place, offered a “relatively minor and time-limited act of assistance” to the production of marijuana. Justice Schultes finds those actions of the hypothetical offender include for example: “delivering a tray of seedlings or a bottle ofnutrients, briefly assisting a friend who acts as the ongoing caretaker or gardener, pitching in on the day that the product is cut down, oras Cpl.

Forbes envisioned in relation to this specific case, forming part of the bucket brigade to bring dirt into the crawl space”. [McGee,supra, at para. 128.] [43] Mr. Justice Schultes’ hypothetical is in relation to an offender who has a brief temporal participation as a party to a growoperation where they are aware that there is a commercial marijuana production taking place. They knowingly participate by “aiding orabetting in the production of marijuana by maintaining the environment in which the marijuana is produced, with the purpose or intent toassist in the crime”. [See Ngo, supra, at para. 52.] Mr.

Justice Schultes envisions that a party to the offence provides assistance in a brieftemporal way, where they participate in maintaining the environment of the marijuana production site by watering plants, providingplants, and/or providing nutrients or soil. His position is that while the duration of the activity may be short lived, the actus reus is madeout, as is the mens rea. The issue about whether the activity is of sufficient duration to warrant a charge of production is one whereprosecutorial discretion is applied. On many occasions, this type of offender may not be charged, but they could be.

The decision toprosecute involves an application of prosecutorial discretion which does not otherwise save unconstitutional legislation. Schultes J. alsodraws a distinction between this type of offender whose participation in the marijuana production is time limited, as compared to otherparties to the offence who are referenced in many of the cases cited by Crown counsel, where that party has an ongoing and continuingrole as a gardener or waterer, or provides ongoing security, for example. Schultes J. finds that those latter participants are more culpable. [44] In R. v.

Tran, 2017 ONSC 651, Goodman J. was confronted with an issue related to quantifying the number of plants found in acommercial grow operation. At paragraphs 24 and 25, he reviewed the case law relating to what constitutes a “plant” in a growoperation. He also reviewed the definition of “production”: [24] However, the jurisprudence includes a discussion of what is considered a “plant” under the CDSA. [25] For example, in R v. Clay, 2003 SCC 75 , [2003] 3 S.C.R. 735, 179 C.C.C. (3d) 540, the Supreme Court of Canada dealtwith a similar argument in the context of the former Narcotic Control Act, R.S.C. 1985, c. N-1.

The Court rejected the argument that theprohibition provisions under the Act would only apply to plants that had achieved certain tetrahydrocannabinol (THC) content.Moreover, it is significant that the definition of “produce” in the CDSA includes “cultivating, propagating or harvesting the substance orany living thing from which the substance may be extracted or otherwise obtained”.

This definition seems to encompass the whole rangeof plant production. [45] Goodman J.’s discussion of production is significant, as it supports Schultes J.’s rationale that the definition of production isbroad, and it is reasonably foreseeable that a person may aid and abet the production of marijuana, “which includes the whole range ofplant production” on a limited temporal basis. [46] In addition, Goodman J. found Mr. Tran guilty of production and trafficking. The facts upon which Mr.

Tran was found guiltyare summarized by Goodman J. at paragraph 40: [40] In the case at bar, the applicant was a party to a larger production. According to my decision, it was accepted that Mr. Tran wasat the property on “three occasions” for various periods of time and that he had access to the vacant house where the sophisticated

commercial grow operation was being conducted. I reasoned that based on the quantity alone, the applicant was guilty of possessing the marijuana for the purpose of trafficking. There was no evidence that Mr. Tran was involved in the packaging or distribution of marijuana or that he derived any benefit to such a production scheme.

Rather, the evidence showed that he was simply a party to the offence and provided unspecified assistance to the grower or the principal of this illegal operation. [ 47 ] In the Tran case, at paragraph 41 , Goodman J. also noted that “most significantly, the applicant was not the principal player in the enterprise”. [ 48 ] While McGee , supra , was in relation to a greater number of plants, the existence of the reasonable hypothetical situation Schultes J. envisioned is equally applicable to the fact scenario that is before me in this case: where the Crown is proceeding on the basis that there are more than 200 but less than 501 plants.

In other words, the existence of the reasonable hypothetical in this fact pattern is directed to the mode of and degree of participation of the offender, not the number of plants. [ 49 ] I also note that in R. v. Serov , [2017] B.C.J. No. 105 , Duncan J. was asked to consider the constitutionality of the one year minimum sentence proscribed in s. 7(2)(b)(iii) of the CDSA . This case is subsequent to Schultes J.’s decision in McGee .

Duncan J. did not consider the reasonable hypothetical set out in McGee , as she was of the view that Schultes J. upheld the minimum mandatory sentence of two years, pursuant to s.7(2)(b)(v). In fact, Schultes J. in McGee found that this

section did violate s. 12 of the Charter , but not s. 7 of the Charter : [129] I conclude, therefore, that these are reasonably foreseeable examples of s. 7(2)(b)(

v) having a grossly disproportionate effect on others and that it violates s. 12 with respect to them. [ 50 ] Duncan J. in R. v. Serov , supra , at paragraph 11 , sets out the basis upon which judges may continue to hear “fresh hypotheticals” in the second aspect of the inquiry under s. 12 of the Charter , notwithstanding that courts have already made findings that the legislation is constitutional: In R. v.

Nur , 2015 SCC 15 , the Supreme Court of Canada did not foreclose a fresh challenge by a new offender on the basis of different facts or a new reasonable hypothetical not previously considered by the court. [ 51 ] Accordingly, for the reasons stated above, it is my view that it is appropriate for me to consider Schultes J.’s hypothetical situation in the context of s. 12 of the Charter . In other words, I find that it meets the threshold of being a “reasonably foreseeable” hypothetical.

Therefore, it is necessary for me to assess whether the situation outlined in McGee gives rise to a grossly disproportionate sentence in the context of the minimum mandatory sentence of a one year jail sentence required under s. 7(2)(b)(iii) of the CDSA . [ 52 ] For the purposes of this analysis, I also consider the circumstances of the hypothetical offender (Mr. Thai) in the reasonable hypothetical advanced by Defence counsel as another example of the situation described by Schultes J. in McGee . In the hypothetical envisioned by Defence counsel, Mr.

Thai, who waters the plants and moves 300 plus “teenage” marijuana plants to Mr. Le’s truck for transportation to another growing facility (assuming that Mr.Le does not have a medical marijuana license, and Mr. Thai knew that) so they could be moved from one grow operation to another. The Crown argues this action is not yet production. However Mr. Le is in this scenario is moving plants from one grow location to another, which I find is part of the continuing transaction of production, as he assumes control over moving those viable marijuana plants from one growing location to another, which Mr.

Thai is aiding him in doing. In the CDSA the definition of “produce” is very broad, and according to Goodman J. in Tran , seems to “encompass the whole range of plant production”. Accordingly, it is my view in the reasonable Hypothetical #1 advanced by defence counsel. Mr. Thai would be a party to production at the low end of the spectrum. In any event, the reasonable hypothetical advanced by Schultes J. in McGee is one that I find I am bound to consider in the context of this application.

Hypothetical #2 [ 53 ] Defence counsel’s hypothetical situation #2 assumes that the offender has a medical marijuana license for 200 plants, but miscounts their crop and ends up having 201 plants. Defence submits that s. 7(2)(b)(iii) would require the judge to impose a one year minimum mandatory sentence of imprisonment. [ 54 ] Defence counsel submits that while Duncan J. dealt with this hypothetical in R. v. Serov , [2016] B.C.J. No. 713 ( Serov #1) , the court rejected the hypothetical on the basis of the exercise of prosecutorial discretion to prosecute under s. 56 of the CDSA , not s. 7 of the CDSA .

Defence argues that this exercise of prosecutorial discretion does not save unconstitutional legislation. [ 55 ] Crown counsel submits that the existence of a medical marijuana license permitting the accused to grow 200 plants would be a complete defence to the application of s. 7(2)(b)(iii) and, at most, the accused would be in possession of one additional plant. Further, in R. v. Vu , 2015 ONSC 5834 , the Crown also argued that an “overage” of plants if it gets too large, beyond the licensed number of plants, becomes hard to justify it as an “accidental” overage.

They also argued that the hypothetical was “far-fetched” and “had never occurred”, as there was no example of this in any reported decisions, however Durno J. had such a case before him. He ultimately found that the imposition of a minimum sentence for the smaller overage would be unconstitutional as it would result in a grossly disproportionate sentence of 6 months in jail. Durno J. agreed that the overage could not be significant or it would call into question the legitimacy of the accidental overage for growers who made a mistake. His ruling is in relation to the provisions of the CDSA (ss. 7(2)(b) (

i) and (ii)) that provide for minimum mandatory jail sentences of 6 months. [ 56 ] I do not find that this Hypothetical #2 is a “reasonable hypothetical”. Either the accused is within the 6 month mandatory minimum, as the licensed amount of plants provides a full defence for the first 200 plants, and then the issue is in relation to the 6 month mandatory minimum; or, in the alternative, the overage exceeds the minimum number of plants by a number that undermines the credibility of the grower in saying he was inadvertently growing a small number of plants over his licensed amount. Either way, s. 7(2) (b)(iii) is not engaged. Thus, in relation to that

section of the CDSA , I do not find Hypothetical #2 to be a reasonable hypothetical. Hypothetical #3

[ 57 ] Hypothetical #3 proposes a hypothetical scenario where a grower produces in excess of 200 plants that are not for commercial resale, but are for example, for compassion clubs. The seller earns no profit.

The real offence is in failing to obtain a license to grow medical marijuana. [ 58 ] The Crown argues that given the risks to the community associated with grow operations and the available options that now exist under the medical marijuana access regulations, this type of behaviour is no longer necessary. [ 59 ] This type of behaviour is reasonably foreseeable, but I rely on Duncan J.’s assessment in Serov , that given the change in legislation and the availability of medical marijuana licensing, a one year sentence now for this type of behaviour would not result in a grossly disproportionate sentence. [ 60 ] The hypothetical set out by defence counsel and summarized above, and the hypothetical advanced by Schultes J. in McGee , where an offender is a party to production of marijuana in excess of 200 plants and less than 501 plants on a time limited basis, is reasonably foreseeable and meets the requirements set out in Nur .

I conclude for the reasons I have indicated, that Hypothetical #1 and Schultes J.’s hypothetical is not far-fetched, remote or extreme. I must now determine whether the hypothetical resulting in this case of a one year minimum mandatory sentence would result in a grossly disproportionate sentence.

Principles of Sentence Associated with Marijuana Grow Operations [ 61 ] The offence of production of marijuana of more than 200 plants and less than 501 plants, contrary to s. 7(2)(b)(iii) of the CDSA , is punishable by a one year minimum sentence and a maximum 14 year jail sentence. [ 62 ] The principles of sentence are set out in ss. 718 and 718.1 of the Criminal Code , including protection of the public, deterrence and denunciation figure prominently in assessing the appropriate sentence for mid to large sale commercial grow operations in residential properties. [ 63 ] There is no question that marijuana grow operations of this size present public safety risks to the community at large.

As noted in other cases, and in this case as well, Crown counsel relies on the submissions of the Honourable Kerry-Lynne D. Findlay, then Parliamentary secretary to the Minister of Justice, which are referenced at paragraph 14 of the Crown’s written submissions. In part, the Honourable Kerry-Lynne D. Findlay stated that “illicit drug production can pose serious health and public safety hazards, pose clean up problems and endanger the lives and health of whole communities”. [ 64 ] Defence counsel does not take issue with the Crown’s reliance on case law from the B.C. Court of Appeal and Staff Sergeant P.

Murphy’s expert report, which details that residential commercial marijuana grow operations are inherently dangerous and harmful: • Marijuana grow operations are “pervasive” in a large province wide “marijuana industry”, that is “permeated with organized crime” and often “accompanied by violence”, “danger to other citizens” and other “vile and destructive consequences”. [Crown’s written argument, para. 39; see also R. v. Hill , 2009 BCCA 309 at para. 21 .] • There is a significant risk of “violence arising from home invasions” because the marijuana crop is lucrative.

The prospect of easy money in setting up a grow operation and similarly of others violently ripping it off creates risks to neighbours in residential neighbourhoods where grow operations are often found. The prospect for targeted violence is high, and sometimes the wrong house is identified and violently entered. [See Crown’s written argument, para. 47.] • Marijuana Grow ops present risks for “fire hazards” and “explosions” arising from illegal electrical by-passes and the presence of high voltage exposed wires improperly installed.

This is often exacerbated as there is also pooling of water and open watering bins located throughout the grow operation to aid the watering of the crop. [Crown’s written argument, para. 40; see also R. v. Su , 2000 BCCA 480 , R. v. Wallis , 2007 BCCA 377 ; R. v.

Van Santvoord , 2007 BCCA 23 .] • The presence of electrical by-passes results in large amounts of electrical power being illegitimately diverted so that the marijuana grow operator does not pay for the large volume of electricity used in the grow operation. • Unsafe structural building modifications take place, and there is the presence of mould and other dangerous and toxic fertilizers. [Crown’s written argument, para. 41, and Expert Report of S/Sgt Patrick Murphy.] [ 65 ] There is no question that mid to large level commercial grow operations for profit engage sentencing principles relating to public safety. [ 66 ] Defence counsel also acknowledges that a one year jail sentence for Mr.

Nguyen, the offender in this case would not be grossly disproportionate. Instead, Defence counsel submits that it is only in the context of other reasonable offenders that the application of this minimum sentence would result in a sentence that was grossly disproportionate. [ 67 ] Mr. Justice Schultes in McGee envisions a scenario where there is a reasonable hypothetical where an offender is a party to the offence of production of marijuana on a time limited or brief temporal basis. These brief acts are described as intentional acts of assistance, but limited acts.

Thus, the offender has knowledge that they are assisting the principal in the production of the marijuana, but only briefly. It is in this context that Schultes J. finds that “a minor and time limited act of assistance” would result in a grossly disproportionate sentence resulting with the imposition of a two year minimum federal sentence.

Schultes J. in McGee does not consider whether this would be the case in relation to a one year minimum mandatory sentence, as that issue did not arise on the facts of McGee . [ 68 ] At paragraph 24 in Lloyd , McLachlin C.J. noted that the wider the range of conduct captured by the minimum mandatory sentencing regime, the more likely it is that the minimum mandatory sentence will be grossly disproportionate for offenders whose criminal offending behaviour falls at the low end of the spectrum.

Borrowing from the language of McLachlin C.J in Lloyd at paragraph 28, s . 7(2)(b)(iii) captures serious commercial marijuana producers who produce a significant amount of plants. It also includes all other offenders who aid and abet the principals in the production of marijuana, regardless of whether they have active and ongoing roles as

gardeners or caretakers. Even offenders who knowingly occupy the premises to provide a veneer of normalcy to the residence todissuade potential break and entries, and to fool neighbours in to believing that they are ordinary residents living in the house with theirfamily and friends are caught by this legislation. At the far end of the spectrum, in terms of low moral culpability, are people whoprovide some level of assistance to the principal, but their actions are time limited, of minor overall importance and their gain, if any, issmall or remote. [69] The reason such a broad range of conduct is captured by this

section is due to the broad definition of production. As is observedin the Tran case, Mr. Tran had no criminal record, was “at a minimum, a caretaker who entered the unoccupied home on severaloccasions with a key and was aware of the production. He was not the leader of the operation and there is no evidence that Mr.

Tranprofited directly from the distribution of the drugs.” [Tran, at para. 136.] [70] At paragraph 23 in Lloyd, McLachlin C.J set out the parameters of the analysis that judges should undertake in assessingwhether the minimum mandatory sentence would offend s. 12 of the Charter: [23] A challenge to a mandatory minimum sentencing provision under s. 12 of the Charter involves two steps: Nur, at para. 46. First,the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles ofsentencing in the Criminal Code.

The court need not fix the sentence or sentencing range at a specific point, particularly for a reasonablehypothetical case framed at a high level of generality. But the court should consider, even implicitly, the rough scale of the appropriatesentence. Second, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grosslydisproportionate to the offence and its circumstances: Smith, at p. 1073; R. v. Goltz, (SCC), [1991] 3 S.C.R. 485, at p.498; R. v. Morrisey, 2000 SCC 39 , [2000] 2 S.C.R. 90, at paras. 26-29; R. v. Lyons, (SCC),[1987] 2 S.C.R.309, at pp. 337-38.

In the past, this Court has referred to proportionality as the relationship between the sentence to be imposed and thesentence that is fit and proportionate: see e.g. Nur, at para. 46; Smith, at pp. 1072-73. The question, put simply, is this: In view of the fitand proportionate sentence, is the mandatory minimum sentence grossly disproportionate to the offence and its circumstances? If so, theprovision violates s. 12. [71] Relying on paragraph 23 of Lloyd, it is my view that the range of sentence for the reasonable hypothetical(

s) in this case wouldencompass a range that potentially included a suspended sentence and a one year jail sentence. [72] In the Tran case, Goodman J. found that that considering the principles of sentence in the Criminal Code, and the seriousness ofthe offence and the offender’s circumstances, an appropriate sentence was actually a one year jail sentence, notwithstanding the lowlevel of participation of the accused in the production of the marijuana. [73] In British Columbia, in R. v.

Voong, 2015 BCCA 285, the Court of Appeal has found that suspended sentences are availablewhere there is no minimum mandatory sentence proscribed by law. Specifically, in the case of drug traffickers, including dial-a-dopedrug traffickers in

schedule 1 substances, the British Columbia Court of Appeal has determined that a suspended sentence is available incertain circumstances, notwithstanding that the Court of Appeal has also stated that generally speaking, deterrence and denunciation areto be given significant weight in these types of cases, given the harm to society caused by

schedule 1 substances, the pernicious impactto society of delivering drugs into residential neighbourhoods and the level of premeditation associated with dial-a-dope drug trafficking: [59] In

summary, absent exceptional circumstances, the sentence for a first offence or with a minimal criminal record, dial-a-dopedrug seller will be in the range of six to eighteen months imprisonment, depending on the aggravating circumstances. Exceptionalcircumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation forthe drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed toharm done to the offender as a result of being caught.

This is a non-exhaustive list, but at the end of the day, there must be circumstancesthat are above and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge toconclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served bya non-custodial sentence. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded thatCSO sentences are not available.

Thus, it will be the rare case where the standard of exceptional circumstances is met. [60] A CSO was considered a sentence of imprisonment because of the strict and punitive conditions that could be imposed. As wehave seen above, a suspended sentence can attract similar strict conditions, but only if they are aimed at protection of the public andreintegration of the offender into society. Rehabilitation clearly plays a significant role in both of those conditions. [61] A suspended sentence can achieve a deterrent effect, as noted above, as well as a denunciatory effect.

And, as Esson J.A. statedin Chang, the fact of being arrested, tried and convicted, can also address these principles.

In other words, the stigma of being aconvicted drug trafficker and the consequences of that conviction—for example, restricted ability to travel outside of Canada andexclusion from many forms of employment—may also play a deterrent effect. [62] Thus, while it is an error to simply substitute a suspended sentence for a CSO, as they are not governed by the same principles,that does not end the inquiry into whether these non-custodial sentences are fit. [74] In Lloyd, McLachlin C.J. recognized that it is difficult for a “court to fix a sentence or sentencing range at a specific point,particularly for a reasonable hypothetical case framed at a high level of generality.

But the court should consider, even implicitly, therough scale of appropriate sentence.” [75] When I consider the reasonable hypothetical which is framed within the context of an offender, with no previous record, whoknowingly provides time limited assistance, as a party to the production of marijuana in a mid-large scale commercial grow operation(200-501 plants), the “rough scale of an appropriate sentence” having regard to the principles of sentence, the moral culpability of thehypothetical offender which is at the low end of the spectrum, an appropriate penalty ranges from a suspended sentence in exceptionalcircumstances to one year in custody [see: Tran].

In my view, the likely sentence for a minimally involved party in a mid-levelcommercial grow operation, given the lower level of moral culpability, yet the compelling public safety issues associated with thesetypes of clandestine marijuana operations, is still a jail sentence, absent exceptional circumstances.

[ 76 ] There is a “high bar” set by courts that must be met to justify a finding by a court that a sentence falls within the parameters of cruel and unusual punishment in s. 12 of the Charter . [ Lloyd , supra , at para. 23 .] [ 77 ] The burden is on the accused to demonstrate that the sentence is “grossly disproportionate”.

This means that the sentence must be “so excessive as to outrage standards of decency”. [ Lloyd , at para. 24 .] In this case a minimum sentence of one year for the offender in the hypothetical scenario advanced may be excessive, but it is not “so excessive as to outrage the standards of decency”. Therefore, I do not find that the defendant has met the burden of establishing that a one year minimum sentence in s. 7(2)(b)(iii) violates s. 12 of the Charter . The Honourable Associate Chief Judge M. Gillespie Provincial Court of British Columbia