R. v. Nguyen Date:, 2017 BCPC 261

Citation: R. v. Nguyen Date: 20170825 2017 BCPC 261 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: June 28, 2017 Date of Judgment: August 25 , 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. The grow operationwas being vacated. [2] Mr. Le and Mr. Thai were found in and arrested by police at the Sundale Residence. Mr. Nguyen and his family members leftthe residence, when police arrived. He was arrested on March 28, 2013. [3] 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. [4] In Reasons for Judgment filed on October 29, 2015, Mr. Le and Mr. Thai were found not guilty by me. However, I convictedMr.

Nguyen of the following charges on information 198905: possession of marijuana for the purposes of trafficking (Count 1),cultivation/production of marijuana (Count 2) and theft/fraud (Count 3) in relation to the diverted hydro. [5] This application is focussed on the sentencing regime in the Controlled Drugs and Substances Act (“CDSA”), where minimummandatory sentences are prescribed for marijuana production. Positions of the Parties/Issues [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. In separate Reasons filed May, 9, 2017, I found that the one-year minimum mandatory jail sentence in s. 7(2)(b)(iii)did not violate s. 12 of the Charter. [7] Crown counsel has also given notice to the applicant that that they intend to rely on s. 7(3)(

c) of the CDSA which, incombination with s. 7(2)(b)(iv), creates a mandatory minimum jail sentence of 18 months, where the marijuana grow operation creates a“potential public safety hazard” and that marijuana production occurs in residential area. [8] Mr. Klein, Q.C. submits that s. 7(3)(

c) in combination with s. 7(2)(b)(iv) of the CDSA violates ss. 7 and 12 of the Charter,because it requires “no mens rea and yet imposes a minimum punishment and therefore violates the principles of fundamental justice andin the alternative is overbroad”. Additionally, Mr. Klein submits these sections violate s. 12 of the Charter, as they constitute cruel andunusual punishment, having regard to the reasonable hypothetical I found existed in my Reasons dated May 9, 2017. Mr. Klein submitsthat the overall sentence of 18 months jail would not result in a sentence that is unduly harsh for Mr. Nguyen.

However, that minimummandatory sentence is grossly disproportionate when viewed in the context of the reasonable hypothetical I accepted in the previousapplication, where the hypothetical offender’s moral culpability is time limited and significantly less than the mid to large scalecommercial marijuana grower who produces these crops for profit. [9] Crown counsel submits that s. 7(2)(b)(iv) is engaged because the actual marijuana production at the Sundale Residenceconstituted a potential public safety hazard in a residential area.

Specifically, the Crown alleges that there is a hydro electrical bypasspresent at the residence which gives rise to a “potential public safety hazard” and it occurred in a “residential area”. [10] The Crown further argues that Mr. Nguyen’s claims of s. 7 breaches are “properly dealt with under s. 12 of the Charter, as thes. 7 infringements are substantially the same as the infringement he claims under s. 12”. [11] Regarding Mr.

Nguyen’s claims under s. 12 of the Charter, the Crown submits that the “only issue in this hearing is whetherthe addition of the aggravating factor and six additional months of jail to the minimum mandatory sentence takes the hypothetical frombeing reasonable to so excessive as to outrage the standards of decency”. [Crown’s written argument, Exhibit 10, at para. 4] Jurisdiction of the Provincial Court [12] In R. v. Lloyd, 2016 SCC 13 , [2016] S.C.J.

No. 13 at paragraph 15, Chief Justice McLachlin observed that the law isclear with respect to the jurisdiction of provincial court judges (“PCJs”) and Charter applications: “PCJs are not empowered to makeformal declarations 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.” [13] PCJs do have the authority to consider the constitutionality of laws before them: “It has always been open to provincial courts todeclare legislation invalid in criminal cases.

No one can be convicted of an offence under an invalid statute”. [Lloyd, at para. 15, citingR. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295 at p. 316.] [14] 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 [15] Crown counsel served Mr. Nguyen with notice under s. 8 of the CDSA. The Crown relies on s. 7(2)(b)(iv) and seeks a greatersentence based on the number of marijuana plants produced being more than 200 but less than 501. This

section takes into account s.

7(3)(

c) which requires the imposition of a further six-month sentence, where there the production constituted a potential public safety issue in a residential area. [ 16 ] A Conditional Sentence Order is not available because there is a minimum mandatory sentence. Legislation [ 17 ] Production of substance – CDSA 7

(1) Except as authorized under the regulations, no person shall produce a substance included in

Schedule I, II, III or IV. Punishment

(2) Every person who contravenes subsection (1) … (

b) if the subject matter of the offence is cannabis (marijuana), is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years, and to a minimum punishment of (

i) imprisonment for a term of six months if the number of plants produced is less than 201 and more than five, and the production is for the purpose of trafficking, (ii) imprisonment for a term of nine months 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 factors set out in subsection (3) apply, (iii) imprisonment for a term of one year if the number of plants produced is more than 200 and less than 501, (iv) imprisonment for a term of 18 months if the number of plants produced is more than 200 and less than 501 and any of the factors set out in subsection (3) apply, (

v) imprisonment for a term of two years if the number of plants produced is more than 500, or (vi) imprisonment for a term of three years if the number of plants produced is more than 500 and any of the factors set out in subsection (3) apply; … Factors

(3) The following factors must be taken into account in applying paragraphs (2)(

a) to (b): (

a) the person used real property that belongs to a third party in committing the offence; (

b) the production constituted a potential security, health or safety hazard to persons under the age of 18 years who were in the location where the offence was committed or in the immediate area; (

c) the production constituted a potential public safety hazard in a residential area; or (

d) the person set or placed a trap, device or other thing that is likely to cause death or bodily harm to another person in the location where the offence was committed or in the immediate area, or permitted such a trap, device or other thing to remain or be placed in that location or area. … Notice 8 The court is not required to impose a minimum punishment unless it is satisfied that the offender, before entering a plea, was notified of the possible imposition of a minimum punishment for the offence in question and of the Attorney General’s intention to prove any factors in relation to the offence that would lead to the imposition of a minimum punishment. … Sentencing Purpose of sentencing 10

(1) Without restricting the generality of the Criminal Code , the fundamental purpose of any sentence for an offence under this

Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. Specific Facts Relating to Mr. Nguyen [ 18 ] Mr. Nguyen is 50 years old. He has no previous criminal record. He is the owner of the Sundale Residence where the marijuana grow operation occurred. At the time the grow operation occurred, he lived in the residence with his wife and children, aged 5 and 9. He still resides at the house. He works as a painter and home renovator.

Evidence at Trial Relevant to the Issues in this Application [ 19 ] Cst. Trenn was qualified at the trial as an expert in the area of cultivation, production, possession for the purpose of trafficking, use, distribution, price and packaging of marijuana, as well as the roles in a marijuana grow operation. [ 20 ] She calculated the value 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 25,152 grams, which equalled 55.35 pounds of dried marijuana bud. She assumed a value of $1,000.00 per pound, and concluded that the total value of the marijuana grow operation, if sold at the pound level, was $55,350.00. [ 21 ] 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 with other electrical equipment, including ballasts and shrouds, which directed the light onto the plants.

She also detected the presence of a hydro bypass located in the garage. She testified that electrical bypass equipment is expensive and is commonly used to avoid alerting BC Hydro to excessive hydro consumption at residences where there are grow operations. Additionally, she testified that a bypass reduces the cost of the electricity, as the energy is being diverted from BC Hydro and does not get recorded by the Hydro meter.

It also increases the risk of electrical fires and harm to the house and potentially to neighbours. [ 22 ] There were also fans and charcoal filters used to mask the odour of the growing marijuana and Mylar plastic present in the residence. [ 23 ] Cst. Trenn testified that marijuana grow operations are expensive to set up, as electrical and green house equipment must be purchased, doors must be reinforced, and plumbing and wiring must be enhanced. Further, she observed that there is a considerable period of planning associated with such ventures. [ 24 ] In her opinion, Cst.

Trenn stated that the grow operation at the Sundale Residence was moderately sophisticated. [ 25 ] Mr. Stringfellow was also qualified at trial as an expert in the area of electrical bypass and theft of electricity. He is employed by BC Hydro as an electrician and often attends when search warrants are executed by police to ensure that the police are “electrically safe” to execute them. [ 26 ] Mr.

Stringfellow described that an electrical bypass is an electrical diversion which occurs when a conductor is connected to pre-existing BC Hydro service wires for the purpose of re-directing electricity before it enters the BC Hydro meter that measures the volume of electricity consumed by a customer. The effect of the bypass is to divert electricity from the meter, so Hydro does not know the electricity is being consumed. Therefore the customer does not pay for the electricity and the authorities are not alerted to the excessive consumption of electricity. [ 27 ] Mr.

Stringfellow attended to the Sundale Residence on March 20, 2013 with members of the Surrey RCMP and observed that there was an electrical bypass in the garage of the Sundale Residence, which bypassed the BC Hydro meter. He followed those wires from the electrical diversion and noted that they led to a panel in the basement, which in turn had wires feeding high pressure sodium light bulbs in the grow operation. He also located timers connected to the light switches which were scheduled to go on at eight-hour intervals.

He formed the opinion that the electricity used to power these two high-pressure sodium lights was not being recorded by the Hydro meter, and therefore the electricity was being diverted by of the hydro bypass he saw in the garage. Because this electricity was being diverted before it was going through the meter, it was not being recorded. Accordingly, whoever was responsible for creating the bypass that diverted the electricity was not paying for it. [ 28 ] There are hazards associated with a bypass including an elevated risk of fire.

Further, if wires are exposed, it increases the chances of someone touching a live wire and being electrocuted. [ 29 ] Mr. Stringfellow noted that the bypass was actually drywalled into the garage wall and that he had to look for it to find it. A bypass is like a junction and many of those devices are up to code, as junctioning wires is something frequently done by electricians. Further, if it is properly installed, an electrical bypass is not unsafe; however, it must have a CSA approval on it to pass Canadian code. No CSA approved code was present on the hydro bypass he observed at the Sundale Residence.

EVIDENCE ADMITTED AT SENTENCING [ 30 ] Cpl. Chow and S/Sgt. Patrick Murray’s qualifications as experts in the area of health and public safety issues associated with marijuana grow operations were admitted by defence counsel for the purpose of the sentencing hearing. S/Sgt. Murray’s report was also filed as an exhibit. [ 31 ] Ms. Wiancko, Crown counsel, summarized the public safety issues associated with marijuana grow operations in her written submissions. Mr. Klein did not take any issue with those submissions. [ 32 ] In

summary, marijuana grow operations are harmful to communities and create health and safety concerns for the public including the following: • by exposing members of the public to unsafe building modifications designed to facilitate indoor production areas; • electric bypasses are created, enabling marijuana producers to avoid paying for increased electricity and avoid detection from the electrical companies due to unusually high or excessive hydro bills; • electrical bypasses 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 the high value of the commercial marijuana crops; and • increased presence of weapons and traps to protect the grow operation, which increases risks to innocent bystanders and neighborsin residential neighborhoods. [33] Marijuana production requires planning, capital outlay and financial investment. It is not a “spur of the moment decision”.

Asnoted by the Crown, in her previous written submissions at paragraph 50: “invariably the offender makes a deliberate choice to break thelaw, for personal gain.” SENTENCING CASE LAW IN B.C. RELATING TO MARIJUANA PRODUCTION [34] Many decisions have followed the British Columbia Court of Appeal’s (“BCCA”) decision in R. v. Su, 2000 BCCA 480, wherethe BCCA agreed with the trial judge’s finding that marijuana grow operations create safety risks to the public in the communities wherethey are located.

The Crown, in their written submissions in this case, relies upon the Su decision and other BCCA decisions for thatproposition. [See Crown’s written argument, Exhibit 10, at paras. 29-30.] [35] In the British Columbia Supreme Court (“BCSC”), sentencing decision of Su, Mr. Justice Stewart, found Mr. Su guilty ofcultivation of and possession for the purpose of trafficking of marijuana. The cultivation of the marijuana occurred in a residentialdwelling house.

During the sentencing hearing, Stewart J. made a number of findings in the case in the course of conducting a “socialanalysis of this kind of crime”. [Su, para. 5.] As noted by Lambert J.A. in the Su sentence appeal decision, some of Stewart J.’s analysiswas “based on evidence and some of it based on form of judicial notice in relation to problems created by a grow operation”. [Su, para.5.] Ultimately, the BCCA substituted the two-year jail sentence Stewart J. imposed with a one-year jail sentence, but they did not disturbhis findings relating to the nature of the offence of cultivation of marijuana (as it was then called) and the risks to the communityassociated with this type of activity. [36] Lambert J.A. found that even though the sentence imposed by Mr.

Justice Stewart was excessive, having regard to theprinciples of sentence, Stewart J.’s discussion of the nature of the crime (production of marijuana) and the risks associated with it, wereall factors that could be “taken into account in considering the range that is appropriate”. [Su, para. 10.] Those factors considered byStewart J. were: “the risks that it creates for law-abiding neighbours, the risks it creates for violence, and without being precise, abouthome invasions of innocent people”. [Su, para. 10.] Those factors could “all be taken into account in considering the range [ofsentence] that is appropriate”. [Su, at para. 10.] [37] In R. v.

Hill, 2007 BCCA 309, the BCCA observed: …as the sentencing judge noted, the marihuana industry in this province has become pervasive. It is a lucrative business permeated byorganized crime and it is often accompanied by violence and danger to innocent citizens and other “vile and destructive consequences”,to use the words of the sentencing judge.

In my view, as one progresses up the chain of the illegal drug industry from the user to theupper levels of trafficking, the effects on sentencing of the consequences at the user-level should carry less weight in relation to themalignant consequences of the industry generally. [38] In R. v. Wallis, 2007 BCCA 377, the BCCA referenced the Hill case at paras. 30-31 and found: [30] That there is a significant and lucrative illegal marihuana industry in this province and that it has grown in scale andpervasiveness in recent years can hardly have escaped the notice of any informed citizen of the province.

These aggravating facts arewithin the first class mentioned in R. v. Find [2001 SCC 32 at para. 48] and the sentencing judge did not err in judicially noticing them. Indeed, this Court has taken judicial notice of the illegal drug trade in previous cases. For example, in R. v. Chang (2002),179 B.C.A.C.72, 2002 BCCA 644 , Esson J.A. referred, at paragraph 12, to "the serious social problems that have been and are being createdby the great level of drug distribution going on in our community and throughout this province"; in R. v.

Aitkens (2004), 202 B.C.A.C.167, 2004 BCCA 411 , Newbury J.A. remarked at paragraph 7 that "[d]rug trafficking has become a blight in our society ingeneral"; and in R. v.

Van Santvoord, 2007 BCCA 23 , Ryan J.A. said at paragraph 42 that "over the years other cases ofmarihuana production have demonstrated that its illegal production creates the risk that it will attract other illegal activities anddangerous consequences to the community in which it takes place". [31] The impact of crime on the community is a factor that local judges are in a position to be aware of and reflect in their sentencingdecisions, and is one of the reasons appellate courts show deference to those decisions: see R. v.

M.(C.A.), (SCC),[1996] 1 S.C.R. 500 at paras. 91-92. [39] At paragraphs 28-31 of the Crown’s written argument, Exhibit 10, the Crown makes detailed submissions about the dangerpresent and the harm caused to the community by marijuana grow operations. [40] In my view, the case authorities cited above provide ample authority for the proposition that sentencing judges may drawinferences about the potential public safety hazard that arises from any marijuana grow operations of between 201-500 plants, located inresidential neighbourhoods, including the increased risk of home invasions by other people who are seeking to forcibly seize and removethe valuable marijuana plants from the marijuana producer(s).

LAW Sections 7 & 12 of the Charter [41] Mr. Klein brings this application under both s. 7 and s. 12 of the Charter.

Section 12 of the Charter

[42]

Section 12 of the Charter asserts that a person is “not to be subjected to any cruel and unusual treatment or punishment”. Atparas. 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 "exceedsconstitutional 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. [43] The Elliott case was recently appealed to the BCCA. Mr. Justice Fitch, writing for the court, upheld Madam Justice Fenlon’sdecision. [R. v.

Elliott, 2017 BCCA 214.] [44] Fitch J.A. found that in s. 12 challenges, two questions arise. The first question is whether the minimum mandatory sentencewould result in a grossly disproportionate sentence to the offender. If the answer is no, then the next inquiry is whether there arereasonably foreseeable hypothetical situations where the mandatory minimum sentences will visit grossly disproportionate consequenceson other offenders. In both the Elliot appeal and the case before me, only the latter issue arises, as Mr.

Nguyen acknowledges that themandatory minimum sentence of 18 months would not be grossly disproportionate in his specific situation. [45] In the Elliott decision, Fitch J.A. also observed the following other points in relation to s. 12 applications: • “mandatory minimum sentences for offences that can be committed in many ways by offenders who are not similarly situated andwhose conduct spans a wide spectrum of moral culpability are constitutionally vulnerable.”…“the wider the range of conduct andcircumstances captured by the mandatory minimum, the more likely it is that the minimum will extend to offenders for whom thesentence would be grossly disproportionate.” [Elliot, at para. 29, citing Lloyd at para. 24.] • “while the distinction between advertent and inadvertent offending may be an important factor in the analysis, the intentionalcommission of an offence does not necessarily mean that the mandatory minimum sentences of imprisonment for that conduct liesoutside the reach of s. 12.” [Elliott, para. 32.] • “the existence of prosecutorial discretion as to whether to invoke a legislated mandatory minimum sentence does not insulate theprovision from review under s. 12 of the Charter: Nur at paras 92-97.” [Elliott, para 35.] [46] Duncan J. in R. v.

Serov, [2016] B.C.J. No. 2610 at para. 19, dealt with a s. 12 challenge in relation to a similar subsection of theCDSA, where the minimum mandatory penalty of 12 months for offenders where the production of between 201-500 plants wasincreased to 18 months if the production occurred in a third party’s home. She found that “a short mandatory minimum sentence issubject to constitutional scrutiny in the same manner as a long one”.

Section 7 of the Charter [47] Mr. Nguyen also alleges s. 7 breaches. In particular he alleges that the statutory aggravating factor set out in s. 7(3)(

c) of theCDSA mandates an additional custodial sentence in circumstances in which there is no requirement for mens rea in relation to that factorand is also overbroad. [48] In both Elliott and Nur, the courts are clear that where legislation is found to contravene s. 12 of the Charter, it is not necessaryto conduct a separate inquiry to determine whether the legislation also offends s. 7. [49] As a result, I will address Mr. Nguyen’s s. 12 arguments first.

Section 12 – Stage One Analysis [50] 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, and

the range of sentence for similar offences. [See: R. v. Nur, 2015 SCC 15 , [2015] 1 S.C.R. 773.] [51] The Defence agrees with the Crown that the mandatory minimum sentence of 18 months 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 offender acknowledges that on a particularized inquiry the provisions of s. 7(2)(b)(iv) and s. 3(

c) do not engage s. 12 of the Charter.

Section 12-Stage Two Analysis [52] Mr. Klein submits that in stage two of the s. 12 analysis, I should find that the reasonable hypothetical scenario I accepted in myMay 9, 2017 Reasons applies equally here.

He submits that I should find that an 18-month sentence for the offender described in thereasonable hypothetical would result in a sentence that is not just “harsh or excessive, but so grossly disproportionate that it warrants afinding that the law is unconstitutional.” [Elliot, supra, at para. 41.] [53] 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.” [54] In Nur, supra, McLachlin C.J.C. canvassed the law relating to reasonable hypotheticals and in particular, what was required tomeet the threshold of “reasonable”: [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 Hypothetical – Analysis of Section 7(2)(b)(iii) [55] In the paragraphs below, I have repeated the analysis I undertook in my May 9, 2017 Reasons about s. 7(2)(b)(iii) of the CDSA,where I found that a reasonable hypothetical existed where an offender, who was a party to the offence, participated on a time limitedbasis in the grow operation. [56] 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.] [57] 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. [58] 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. [59] 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. [60] 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 sophisticatedcommercial grow operation was being conducted. I reasoned that based on the quantity alone, the applicant was guilty of possessing themarijuana for the purpose of trafficking. There was no evidence that Mr.

Tran was involved in the packaging or distribution of marijuanaor that he derived any benefit to such a production scheme.

Rather, the evidence showed that he was simply a party to the offence andprovided unspecified assistance to the grower or the principal of this illegal operation. [61] In the Tran case, at paragraph 41, Goodman J. also noted that “most significantly, the applicant was not the principal player inthe enterprise”. [62] While McGee, supra, was in relation to a greater number of plants, the existence of the reasonable hypothetical situationSchultes J. envisioned is equally applicable to the fact scenario that is before me in this case: where the Crown is proceeding on the basisthat there are more than 200 but less than 501 plants.

In other words, the existence of the reasonable hypothetical in this fact pattern isdirected to the mode of and degree of participation of the offender, not the number of plants. [63] 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-yearminimum sentence proscribed in s. 7(2)(b)(iii) of the CDSA. This case is subsequent to Schultes J.’s decision in McGee. Duncan J. didnot consider the reasonable hypothetical set out in McGee, as she was of the view that Schultes J. upheld the minimum mandatorysentence 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, butnot 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 onothers and that it violates s. 12 with respect to them. [64] Duncan J. in R. v. Serov, supra, at paragraph 11, sets out the basis upon which judges may continue to hear “freshhypotheticals” in the second aspect of the inquiry under s. 12 of the Charter, notwithstanding that courts have already made findings thatthe 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 differentfacts or a new reasonable hypothetical not previously considered by the court. [65] Accordingly, for the reasons stated above, it is my view that it is appropriate for me to consider Schultes J.’s hypotheticalsituation 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 disproportionatesentence in the context of the minimum mandatory sentence of an 18-month jail sentence required under s. 7(2)(b)(iv) and s. 7(3)(

c) ofthe CDSA. Reasonable Hypothetical – Section 7(2)(b)(iv) and Section 7(3)(

c) of the CDSA and

Section 12 of the Charter [66] For the purpose of this s. 12 Charter analysis, I consider the reasonable hypothetical situation set out above: the offender whoaids and abets the production of marijuana by maintaining the environment in which the marijuana is produced, with the purpose orintent to assist in the offence of production, on a limited temporal basis, where they are aware that there is a commercial marijuanaproduction taking place. Mr.

Justice Schultes in McGee envisions that the hypothetical offender is a party to the offence who providesassistance in a brief temporal way by maintaining the environment of the marijuana production site by watering plants, providing plants,and/or providing nutrients or soil.

Schultes J.’s concludes that while the duration of the activity may be short lived, both the actus reusand mens rea for the offence of production of marijuana are established. [67] In addition, it is necessary to add in the following further assumptions to the reasonable hypothetical: • The grow operation occurs in a “residential area” where neighbouring houses are present but there are no hydro bypasses located; • The Crown in the reasonable hypothetical is simply relying on previous case law in British Columbia, set out previously thatpermits judges to infer that there is a “potential public safety hazard” on the basis that: the grow operation is between 200 and 501 plants;those marijuana plants are valuable; there is a risk that people will want to steal those plants given their value; and there is a risk thatthose people will use force including a forced break in/home invasion to access those plants.

All of those activities will occur in aresidential neighbourhood; • The Crown is not calling any expert evidence, nor are they relying on the presence of a hydro bypass;

• They simply rely on the number of plants alone and ask the judge to draw an inference about the potential public safety hazard in a residential area; • Further, assume the offender is a youthful, first time offender, with no previous criminal record and good prospects for rehabilitation. Discussion of the Requirements of Section 7(3)(

c) of the CDSA [ 68 ] Section 7(3)(

c) of the CDSA provides that: the marijuana production constitutes a potential public safety hazard in a residential area. The phrase “potential public safety hazard” is not defined, nor is “residential area”. The Crown acknowledges that the words “residential area” are very broad and may include any home, regardless of how remote the dwelling is, or how far away “neighbours” are located, including in a rural area, as other potential occupants of that remotely situated home may be exposed to the potential safety hazard.

However, for the purposes of this analysis, I am applying the broader definition for “residential area” that would include homes in neighbourhoods where other homes are adjacent to the home where the grow operation is occurring. [ 69 ] Defence argues, and I accept that the word “potential” is very broad and includes within it a “possibility” of a public safety hazard. The Oxford Dictionary defines the word “potential” as the “possibility of something happening”. The word “hazard” is defined in the Oxford Dictionary as a “danger or risk”.

Thus, I find that the phrase “potential public safety hazard” means the possibility of a risk of harm to the public arising from a marijuana grow operation of between 200 and 501 plants . [ 70 ] Accordingly, I find that those terms in s. 7(3)(

c) are very broadly cast, thus capturing a wide variety of conduct, which conduct includes a wide spectrum of moral culpability. [ 71 ] In the particularized inquiry before me, the Crown identifies that the conduct that constitutes the “potential public safety hazard” is the presence of a hydro bypass.

However, in the reasonable hypothetical, the “potential public safety hazard” is the presence of between 200-501 marijuana plants in a residential area. [ 72 ] I have outlined earlier in my Reasons that courts in British Columbia have drawn inferences absent expert evidence being called that marijuana productions of this size are valuable. Therefore, there is an increased likelihood that they will be targeted for theft. That theft may include violence, along with home invasions.

Based on the case law in British Columbia, if that grow operation is inside a “residential area”, then the statutory aggravating features set out in s. 7(3)(

c) of the CDSA will be met, without further proof of any other factor being necessary. A court can infer that there is a possibility of a risk of harm to the public arising from the marijuana grow operation of between 200-501 plants without expert evidence being called. [ 73 ] While I recognize that the CDSA legislative scheme is part of a broader “regime” enacting minimum jail terms for certain drug offences, it appears to me based on the very general wording of s. 7(3)(

c) and the evolution of the sentencing case law in British Columbia, that every marijuana production of between 200-500 plants that occurs in a residential area is a “potential public safety hazard”. Thus, even though the legislation prescribes a minimum mandatory sentence of 12 months for production, the reality is that every marijuana grow operation of this size in a home in a “residential area” in British Columbia falls within this definition and therefore will also attract a minimum mandatory sentence of 18 months, as the other statutory aggravating factors in s. 7(3)(

c) are always present, given their very broad application. Therefore, the only thing that separates the use of this legislation in every offence of production in a residential area is the exercise of Crown discretion, which the Supreme Court of Canada has found will not otherwise save legislation that offends s. 12 or other sections of the Charter .

ANALYSIS [ 74 ] 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. [ 75 ] 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. [ 76 ] Crown counsel also relies on the submissions of the Honourable Kerry-Lynne D.

Findlay [ Hansard , 41 st Parliament, Second session (2011), No. 19 (21 September 2011), at 1308-1311], then Parliamentary secretary to the Minister of Justice, which are referenced at paragraph 15 of the Crown’s written submissions, filed as Exhibit 10. 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.” Further along in describing the legislation, the Honourable Kerry-Lynne D.

Findlay also stated that: For the offence of marijuana production, the bill proposes mandatory penalties based on the number of plants involved: production of six to two hundred plants and if the plants are cultivated for the purpose of trafficking, six months; production of 201 plants to 500 plants, the penalty is one year, production of more than 500 plants, two years; and production of cannabis resin for the purpose of trafficking, one year. The minimum sentences for the production of

schedule II drugs increases by 50% where any of the aggravating factors relating to health and safety, which I have just described, are present. [ 77 ] Defence counsel does not take issue with the Crown’s reliance on case law from the BCCA where the court has found that 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”. [See 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. [ 78 ] There is no question that British Columbia courts have found that mid to large level commercial grow operations for profit

engage sentencing principles relating to public safety. [79] Mr. Justice Schultes in McGee envisioned a scenario where the offender is a party to the offence of production of marijuana ona time limited or brief temporal basis. These brief acts are described as intentional acts of assistance, but limited acts. Thus, the offenderhas 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 ofa two-year minimum federal sentence. Schultes J.

In McGee does not consider whether this would be the case in relation to a one-yearminimum mandatory sentence, as that issue did not arise on the facts of McGee. [80] At paragraph 24 in Lloyd, McLachlin C.J. noted that the wider the range of conduct captured by the minimum mandatorysentencing regime, the more likely it is that the minimum mandatory sentence will be grossly disproportionate for offenders whosecriminal offending behaviour falls at the low end of the spectrum.

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

Offenders who knowingly occupy the premises to provide a veneer of normalcy to the residence to dissuadepotential break and entries, and to fool neighbours in to believing that they are ordinary residents living in the house with their familyand friends are caught by this legislation. At the far end of the spectrum, in terms of low moral culpability, are people who providesome level of assistance to the principal, but their actions are time limited, of minor overall importance and their gain, if any, is small orremote.

These offenders possess the requisite intention to participate in the offence of marijuana production, however they do so on thelower end of the spectrum of culpability. [81] 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.] [82] 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: A challenge to a mandatory minimum sentencing provision under s. 12 of the Charter involves two steps: Nur, at para. 46. First, thecourt 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. [83] Relying on para. 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, up to the possibility of a one-year jail sentence. [84] 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. [85] 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. [ 86 ] 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, the rough scale of appropriate sentence.” [ 87 ] When I considered the reasonable hypothetical relating to s. 7(2)(b)(iii) in my decision dated May 9, 2017 (which was framed within the context of an offender, with no previous record, who knowingly provided 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 the hypothetical offender which is at the low end of the spectrum, an appropriate penalty ranges from a suspended sentence in exceptional circumstances to one year in custody [see: Tran ].

In my view, the likely sentence for a minimally involved party in a mid-level commercial grow operation, given the lower level of moral culpability, yet the compelling public safety issues associated with these types of clandestine marijuana operations, is still a jail sentence, absent exceptional circumstances. [ 88 ] In relation to s. 7(2)(b)(iii), I found that 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 .] [ 89 ] 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 .] Dealing with s. 7 (2)(b)(iii), I found that 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 did not find that the defendant had met the burden of establishing that a one-year minimum sentence in s. 7(2) (b)(iii) violates s. 12 of the Charter . [ 90 ] Sections 7(2)(b)(iv) and 7(3)(

c) of the CDSA impose a further 6-month consecutive sentence in the case of the hypothetical offender who produces marijuana in a residential area, and that production constitutes a “potential safety hazard” in the residential area. [ 91 ] When I examine s. 7(3)(

c) of the CDSA , that

section increases by 50% the mandatory minimum jail sentence to marijuana producers who grow marijuana in a residential area. While Parliament’s expressed intention in Hansard was to increase punishment by 50% when certain aggravating features were present, given the breadth of the words they chose to describe those aggravating factors and the evolution of the case law in British Columbia, every marijuana production of 201 up to 500 plants that occurs in a residential area will attract a 50% increase in punishment where, regardless of their particular circumstances or degree of participation.

No other specific aggravating factors, such as the presence of a hydro bypass, need be present for this

section to apply. [ 92 ] Does a further 50% increase of sentence from 12 months to 18 months, because the production of this size occurs in a residence, render the legislation invalid under s. 12 of the Charter ? I must consider the following: • Mr. Nguyen bears the onus of establishing that the sentence of 18 months is grossly disproportionate; • excessive or disproportionate sentences are not grossly disproportionate; • courts must “consider and defer to the valid legislative objectives underlying the criminal law responsibilities of Parliament” [ R. v.

Latimer , 2001 SCC 1 ]; • the offence carries with it a maximum sentence of 14 years; • marijuana production is harmful to the community by exposing members of the community in residential areas to risk of violence or harm, and health and building safety issues; • the grow operation in the reasonable hypothetical was a mid-level grow operation; • the offender in the reasonable hypothetical was involved in a temporal, time limited fashion in aiding and abetting the principal, without financial gain, and had no prior criminal record, and was a youthful first time offender with good prospects for rehabilitation; • I found in my May 9, 2017 Reasons that the approximate/”rough” sentence for such an offender was somewhere between a suspended sentence and a one-year jail sentence.

The sentence this offender would receive, absent exceptional circumstances, was a jail sentence. I found a one-year minimum mandatory sentence was not grossly disproportionate. [ 93 ] I concluded that an approximate sentence for the hypothetical offender, who was minimally involved on a time limited basis aiding the principal, and otherwise was a youthful first time offender in a grow operation of this size, would be a jail sentence of some length – up to one year.

I am now being asked to consider whether increasing the minimum jail sentence by a further 50%, because a “potential public safety hazard exists in a residential area”, would be grossly disproportionate to the offender’s moral blameworthiness. [ 94 ] I have considered the antecedents of the above noted hypothetical offender, along with their degree of participation, which I have characterized as being at the low end of the spectrum for this level of production. The hypothetical offender is not the principal, and her participation is time limited. She is not sharing in the profit of the grow operation.

Given the seriousness of the offence and the potential for harm to the public, society would not be alarmed if the hypothetical offender was sentenced to six months in jail. Indeed, I found that the imposition of a one-year sentence may be excessive but would not rise to the level of being grossly disproportionate. Without changing or adding any other feature of this offender’s circumstances, except that this production occurred in a residential area, s. 7(3)(

c) requires that the offender now receive an 18-month jail sentence. This sentence is now potentially three times greater than a six-month sentence and 50% greater than the one-year minimum mandatory sentence under s. 7(2)(b)(iii). The only additional feature that has changed is that the production constitutes “a potential public safety hazard in a residential area”. The mandatory minimum 18- month sentence does not distinguish between the mode of participation of the offender, nor does it account for the fact that the

hypothetical offender has no profit stake in the grow operation. It does not permit the sentencing judge to consider the offender’spersonal background. It does not account for the fact that there is also a spectrum of risks that exist in residential grow operations. Insome of those grow operations, there are many additional features, including hydro bypasses that are not up to code, and thereforepresent a possible fire hazard, presence of harmful chemicals and moulds due to poor ventilation. However, the language in s. 7(3)(

c) isso broadly cast, it now captures every grow operation of more than 200 plants and less than 501 if that occurs in a residence. Because ofthe value of that size of a marijuana crop, there is a possible risk that there could be a violent residential break-in to steal the marijuanacrop.

Therefore, these words – “potential public safety hazard in a residential area” and “production” – are both very broadly cast, andcapture in combination a broad range of conduct and moral blameworthiness that will result in an 18-month minimum jail sentence forthose offenders at the higher end of the moral blameworthiness, who are the principal operating minds behind the grow operation, whowilfully engage in setting up the grow operation, and install bypasses and other electrical renovations that ignore safety requirements, butalso for the hypothetical offender and hypothetical situation identified in this case, who is at the lower end of the spectrum of moralblameworthiness. [95] When I apply Lloyd, I conclude that that a minimum mandatory jail sentence of 18 months for the hypothetical offender in thereasonable hypothetical situation set out above, would result in a sentence that was grossly disproportionate for some offenders in somesituations because the offence “can be committed in many ways and under many different circumstances by a wide range of people”. [Lloyd, para. 3.] Therefore, I find that it violates s. 12 of the Charter.

Section 1 Analysis [96] In Nur, McLachlin C.J. referenced R. v. Oakes, (SCC), [1986] 1 SCR 103 at para. 111 in the context of a s. 1analysis when s. 12 rights have been infringed: In order to justify the infringement of the respondents’ s. 12 rights under s. 1 of the Charter, the Attorney General of Ontario must showthat the law has a pressing and substantial objective and that the means chosen are proportional to that objective.

A law is proportionateif (1) the means adopted are rationally connected to that objective; (2) it is minimally impairing of the right in question; and (3) there isproportionality between the deleterious and salutary effects of the law: R. v. Oakes, (SCC), [1986] 1 S.C.R. 103. It willbe difficult to show that a mandatory minimum sentence that has been found to be grossly disproportionate under s. 12 is proportionate asbetween the deleterious and salutary effects of the law under s. 1. [97] The Crown bears the burden of proof in this application. [98] The Crown submits that ss. 7(2)(b)(iv) and 7(3)(

a) of the CDSA can be saved because the infringement is a reasonable limitunder s. 1 of the Charter. [99] Specifically, in Exhibit 8, Crown Written Submissions on

Section 1 of the Charter (“Crown Written Submissions”), the Crownoutlines its argument at paragraph 1, page 1: The objective of protecting the community from exposure to the physical and social harms associated with the commercial production ofmarijuana that is also a potential public safety hazard in a residential area, is both pressing and substantial. Because the combination ofss. 7(2)(b)(iv) and (3)(

c) of the CDSA is carefully tailored to apply to a relatively narrow set of circumstances, (1) it is rationallyconnected to its objective, (2) it minimally impairs s. 12 Charter rights, and (3) it is not disproportionate in its effects on Charter-protected interests. (

i) Rational Connection [100] Defence concedes that s. 7(3)(

c) of the CDSA “meets the requirement of pressing and substantial objective and the meansadopted are rationally connected to the objective” but submits that the means adopted “do not minimally impair the right nor is it aproportional response to the objectives of the legislation”. [Exhibit 9, Defence Written Argument, para. 41.] [101] Accordingly, using the Oakes test framework I will not dwell any further on the issue, and I conclude that that the impugnedsections are rationally connected to the objectives. (ii) Minimal Impairment [102] In R. v.

J.L.M., 2017 BCCA 258, Bennett J.A., in determining whether s. 212(4) of the Criminal Code was saved under s. 1,considered whether that legislation minimally impaired the right or freedom in s. 12 noted at paras. 76-79: [76] In Nur at paras. 116–117, the Court identified the question to ask at this point in the analysis as “whether there are less harmfulmeans of achieving the legislative goal”. It added, at para. 116: The government must show the absence of less drastic means of achieving the objective “in a real and substantial manner”: [HutterianBrethren of Wilson Colony, 2009 SCC 37 ] para. 55.

The impingement on the Charter right must be no more than what isreasonably necessary to achieve the state’s objective. [77] In Nur, the Court concluded that the legislation could have been drafted more narrowly so that it captured only significantlymorally blameworthy conduct. [78] In Lloyd SCC, the majority concluded that while combatting illicit drugs was unquestionably an important object that wasrationally connected to the mandatory minimum sentence, the law did not minimally impair the s. 12 right.

The majority pointed to otherless harmful ways of combatting illicit drugs, and described ways that mandatory minimum sentences could be made less constitutionallyvulnerable, such as by narrowing the reach of the law or providing for judicial discretion in exceptional cases. The Court highlighted thatpoint at para. 3, where it said:

As this Court’s decision in R. v. Nur, 2015 SCC 15 , [2015] 1 S.C.R. 773, illustrates, the reality is that mandatory minimumsentences for offences that can be committed in many ways and under many different circumstances by a wide range of people areconstitutionally vulnerable because they will almost inevitably catch situations where the prescribed mandatory minimum would requirean unconstitutional sentence. One solution is for such laws to narrow their reach, so that they catch only conduct that merits themandatory minimum sentence.

Another option to preserve the constitutionality of offences that cast a wide net is to provide for residualjudicial discretion to impose a fit and constitutional sentence in exceptional cases.

This approach, widely adopted in other countries,provides a way of resolving the tension between Parliament’s right to choose the appropriate range of sentences for an offence, and theconstitutional right to be free from cruel and unusual punishment. [79] In my opinion, as in Nur and Lloyd SCC, the mandatory minimum sentence in s. 212(4) does not meet the minimal impairmenttest, as there are less harmful means of achieving this very important legislative goal.

For example, granting the judge discretion toimpose something other than the mandatory minimum sentence would maintain the legislative goal of deterring and denouncing adultoffenders engaged in juvenile prostitution, while allowing for a less serious sanction to be imposed in exceptional cases. [103] I have reviewed the cases and the arguments of both counsel. I have found that these sections violate s. 12 of the Charter,because they visit grossly disproportionate penal consequences on some offenders in some situations. I concluded that was the case,because the word “production” was open to broad

interpretations which would capture offending behaviour that, on the one end of thespectrum, addressed offenders who were the operating mind of the grow operation, who systematically created a plan to illegally growmarijuana in an amount where the number of plants exceeded 200 plants up to 500 plants. In addition, that offender utilized means toassist his production by creating hazardous electrical bypasses and made use of other means, including dangerous chemicals to enhancethe plants’ growth and improper ventilation.

However, those sections also capture the hypothetical offender at the other of the spectrumwho assists the principal for a brief time, has no profit stake in the operation, and the grow operation happens to be in a residential area. Because of the broad

interpretation associated with the word “production” and the low threshold required to constitute a “potential publicsafety hazard”, I concluded that every person who assisted a principal grower in a residential grow operation of the size of more than200, but less than 500 plants, on a time limited basis, would be subject to a minimum 18-month sentence. [104] Referring to paragraph 117 in Nur, McLachlin C.J.C. stated: Parliament could have achieved its objective by drafting an offence with a close correspondence between conduct attracting significantmoral blameworthiness-such as those engaged in criminal activity or conduct that poses a danger to others-and the minimum mandatory,rather than a sweeping law that includes in its ambit conduct attracting less blameworthiness for which the minimum mandatory sentencewould be grossly disproportionate.

The government has not discharged its burden on this branch of the Oakes test.

There are lessharmful means of achieving the legislative goal. [105] While I concluded that a 12-month minimum mandatory sentence would not offend s. 12 of the Charter, I have concluded thatan increase in sentence of 50% for what I have found to be a potential risk that exists in every residential grow operation of greater than200 plants, but less than 501 plants, does not meet the minimal impairment test. (iii) Proportionality of the Legislation [106] In this part of the analysis, I must assess whether the benefit to society that is derived from the legislation outweighs inimportance the seriousness of the infringement. [107] In Nur, McLachlin C.J. at paragraph 111, as set out above, that it would be difficult to establish proportionality where adetermination was made that the legislation was grossly disproportionate under s. 12 of the Charter.

However, I will undertake thisanalysis in light of the facts of this case. [108] The Crown’s position is that this type of conduct is different than what was present in Smith, which mandated a seven-yearminimum sentence and Nur which imposed a three-year minimum. In the case before me, the minimum mandatory sentence is 18months. The Crown submits that when I balance this infringement against the objectives of this legislation, the minimum sentence isproportionate. [109] In R. v.

McGee, 2017 BCSC 594, Schultes J., in assessing whether the Crown had met its burden under the proportionality test inOakes, stated the following at paragraph 25: [25] But these types of potential benefits are greatly outweighed by both the actual and reasonably foreseeable imposition of grosslydisproportionate sentences that I have found these minimum sentences lead to.

When engaging in the balancing required by Oakes, it ishard to think of a more severe deleterious effect than a mandatory sentence of imprisonment whose length is grossly disproportionate towhat the facts of the case and the applicable sentencing principles actually require, since that outcome undermines the core principle ofproportionality, or “just deserts”, that guides the entire philosophy of sentencing in Canada. [110] Ultimately, Justice Schultes concluded that the “deleterious effects” outweighed the “salutary ones”, and he found that thebreaches of s. 12 were not saved by s. 1. [111] I appreciate that Mr.

Justice Schultes was also dealing with a different

section of the sentencing regime of the CDSA, directed atprotecting third party’s property interests, rather than potential public safety hazards arising from grow operations, and further, that themandatory sentence he was considering would result in a federal sentence, rather than an increased provincial sentence. [112] However, I do note, based on the comments made in Hansard, that it was Parliament’s intention in passing increased minimummandatory penalties that public safety would be enhanced. See comments referenced earlier in these reasons.

Further, while theminimum mandatory sentence at stake here is not a federal sentence, the sections in question have the effect of increasing an offender’ssentence by a further 50%, which I have found would result in a grossly disproportionate sentence for some offenders in some situations. When I consider these circumstances I am satisfied that the seriousness of the infringement overbears the benefit from the legislation.

[ 113 ] Accordingly I find that the ss. 7(2)(b)(iv) and 7(3)(

c) are invalid and I decline to apply them in the present circumstances before me.

Section 7 Analysis [ 114 ] In light of my decision about s. 12 of the Charter , and my conclusions relating to s. 1 of the Charter , it is unnecessary for me to consider Mr. Nguyen’s s. 7 arguments. The Honourable Associate Chief Judge M. Gillespie Provincial Court of British Columbia