R. v. Hofer, 2016 BCSC 1442

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Hofer, 2016 BCSC 1442 Date: 20160802 Docket: 22448 Registry: Smithers Regina v. Robert Edward Hofer Before: The Honourable Madam Justice Warren Oral Reasons for Judgment Counsel for the Crown: Alexander Clarkson Counsel for the Accused: James L. Straith Place and Date of Hearing: Smithers, B.C. April 14-15, 2016 Place and Date of Sentencing: Smithers, B.C.

August 2, 2016 Introduction [ 1 ] Robert Edward Hofer was charged with two offences relating to a marihuana grow operation: Count 1, possession of a controlled substance for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 [ CDSA ], and Count 2, production of a controlled substance contrary to s. 7(1) of the CDSA . He pleaded guilty to the production offence and the matter came on for sentencing before me on April 14 and 15, 2016.

The Crown has advised that a stay will be directed on the possession for the purpose of trafficking charge at the conclusion of the sentencing proceedings. [ 2 ] Mandatory minimum sentences for the production of marihuana were enacted in the Safe Streets and Communities Act , S.C. 2012, c. 1. The mandatory minimum sentences are graduated in length, depending on the number of plants involved and, for some of the mandatory minimum sentences, the existence of certain aggravating factors. It is agreed that 1,628 growing marihuana plants were involved in the grow operation in question in this case.

Pursuant to s. 7(2) (b)(

v) of the CDSA , every person who commits the offence of producing marihuana is liable to a maximum punishment of 14 years' imprisonment and, if the number of plants produced is more than 500, to a minimum punishment of two years' imprisonment. [ 3 ] Counsel for Mr. Hofer served a notice of constitutional question challenging the constitutionality of s. 7(2) (b)(v). The notice of constitutional question asserted that the mandatory minimum sentence imposed by that provision violates Mr.

Hofer's Charter rights under s. 7 (the right to life, liberty and security of the person), s. 9 (the right not to be arbitrarily detained or imprisoned), and s. 12 (the right not to be subjected to any cruel and unusual treatment or punishment): Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [ Charter ]. However, in his submissions at the hearing, counsel for Mr. Hofer advised that he was relying solely on s. 12 of the Charter. Accordingly, my analysis is confined to s. 12. Circumstances of the Offence [ 4 ] On April 10, 2013, a BC Hydro employee detected the smell of growing marihuana at a residence on a rural property outside Burns Lake, British Columbia. The employee also observed a young male run into the residence. When the employee knocked on the door, no one responded. Through the window, the employee observed marihuana on the table.

A second BC Hydro employee observed alterations to the Hydro meter. The BC Hydro employees reported their observations to the Burns Lake RCMP. [ 5 ] The Burns Lake RCMP obtained and executed a warrant to search the property on April 11, 2013. The gate was locked with a padlock and chain. Upon the officers announcing their presence, Mr. Hofer exited the front door of the residence wearing pajamas, a sweatshirt, and socks.

The registered owner of the property was Mark Walker, but there were no other occupants in the residence or on the property at the time the search warrant was executed. [ 6 ] The residence and the two outbuildings on the property were dedicated to the production of marihuana. The upstairs of the residence contained 720 marihuana plants in the early stages of growth, high intensity lights with shrouds, fans, ventilation ducts, and reflective sheeting on the walls.

The basement contained 908 marihuana plants in the budding stage of growth, high intensity lights with shrouds, fans, ventilation ducts, reflective sheeting, drying nets, watering barrels and hoses, fertilizer containers, ballasts and wiring, and

a carbon filter. The main floor of the residence contained marihuana production equipment, including digital scales, dried marihuana, an instructional book for growing marihuana indoors, handwritten grow instructions, and a live video surveillance feed displaying the three access points to the property. There were additional supplies in an outbuilding. [ 7 ] The main floor of the residence consisted of a kitchen, bedroom, and washroom. Mr.

Hofer's clothing and driver's licence were in the residence and a car registered to him was found on the property. [ 8 ] There were two BC Hydro meters attached to the residence. The first was visible to BC Hydro employees for inspection and included BC Hydro seals which gave it the appearance of legitimacy. The second, in operation at the time of the search, was located in a locked room with no windows and was not visible for inspection by BC Hydro employees. The second meter had visible damage from electrical shorting.

In addition, there was an unconnected Hydro meter found in the residence in a plastic bag along with 12 loose BC Hydro meter seals. [ 9 ] There were no marihuana production or possession licences under the Medical Marihuana Access Regulations , SOR/2001-227 , associated with the property, Mr. Hofer, or Mr. Walker. Analytical Framework [ 10 ]

Section 12 of the Charter provides: Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. [ 11 ] The approach to be taken to a s. 12 challenge of a mandatory minimum sentence has recently been considered by the Supreme Court of Canada in R. v. Nur , 2015 SCC 15 [ Nur SCC ], and R. v. Lloyd , 2016 SCC 13 , and by the Court of Appeal in R. v.

Dickey , 2016 BCCA 177 . [ 12 ] The test for whether a particular sentence constitutes cruel and unusual punishment is whether the sentence is "grossly disproportionate" to the fit and proportionate sentence considering the nature of the offence and the circumstances of the offender: Lloyd at para. 22 ; Nur SCC at para. 39 .

A mandatory minimum sentence "will violate s. 12 if it imposes a grossly disproportionate sentence on the individual before the court, or if the law's reasonably foreseeable applications will impose grossly disproportionate sentences on others": Lloyd at para. 22 , citing Nur SCC at para. 77 .

The former is generally referred to as the particularized inquiry and the latter as the hypothetical inquiry. [ 13 ] The standard of "grossly disproportionate" is a high bar that requires a sentence to be "so excessive as to outrage standards of decency", or disproportionate to the extent that society would find the punishment "abhorrent or intolerable": Lloyd at para. 24 .

Sentences that are merely excessive or disproportionate do not meet the threshold of grossly disproportionate: Lloyd at para. 24 . [ 14 ] Establishing sentencing policy is a Parliamentary prerogative and while the determination of whether a particular punishment is grossly disproportionate is a proper judicial function, "a determination to that effect is to be made only in the clearest of cases": Dickey at para. 15 . [ 15 ] Typically, the analysis commences with the particularized inquiry. [ 16 ] The first step is to determine what the proportionate sentence is for the particular offender before the court having regard to the principles and objectives of sentencing: Lloyd at para. 23 ; Nur SCC at paras. 40-46 .

The second step is to determine whether the imposition of the mandatory minimum sentence is grossly disproportionate to the range of sentence that is found to be proportionate for the particular offender: Lloyd at para. 23 ; R. v. Morrisey , 2000 SCC 39 at paras. 26-29 . The burden is on the offender who is challenging the constitutionality of the mandatory minimum sentence to establish that it is grossly disproportionate. [ 17 ] There are a number of factors that inform the analysis of whether a mandatory minimum sentence is grossly disproportionate: R. v. Elliott , 2016 BCSC 393 at para. 27 , citing R. v.

Nur , 2013 ONCA 677 [ Nur CA ], aff'd 2015 SCC 15 ; Morrisey at paras. 27-28 .

They include: • the gravity of the offence; • the personal characteristics of the offender; • the particular circumstances of the case; • the actual effect of the punishment on the individual; • the penological goals and sentencing principles reflected in the challenged minimum; • the existence of valid effective alternatives to the mandatory minimum; and • a comparison of punishments imposed for other similar crimes. [ 18 ] If the mandatory minimum sentence is not grossly disproportionate when applied to the particular offender before the court, it is necessary to proceed to the hypothetical inquiry, employing the same two-step approach.

At this stage, the fundamental question is whether it is reasonably foreseeable that the mandatory minimum sentence will result in the imposition of sentences that are grossly disproportionate to some peoples' situations or, in other words, whether the mandatory minimum sentence would be grossly disproportionate in reasonably foreseeable cases: Nur SCC at para. 57 . Again, the onus is on the offender who is challenging the constitutionality of the mandatory minimum sentence to raise hypotheticals that are reasonably foreseeable and not "marginally

imaginable" or "far-fetched": Nur SCC at para. 56, citing R. v. Goltz, (SCC), [1991] 3 S.C.R. 485. Many of the samefactors will inform the gross disproportionality analysis at the hypothetical stage. Threshold for Considering the Constitutionality of Section 7(2)(b)(v) [19] Before proceeding to the s. 12 analysis, I note that reasons may exist for not hearing Mr. Hofer's application. [20] First, determining the constitutionality of the mandatory minimum sentence might not be necessary to the disposition of thecase.

It is well established that courts should not decide issues of law, particularly constitutional issues, not necessary to the resolution ofthe matter before the court. Thus, if I were to conclude that I would impose the same sentence on Mr. Hofer irrespective of the existenceof the mandatory minimum, it would not be necessary to resolve the constitutional question. However, the parties agree that but for themandatory minimum sentence, Mr. Hofer would very likely have received a sentence of less than two years and, as such, theconstitutional question is not moot. [21] Second, the constitutionality of s. 7(2)(b)(

v) was upheld in R. v. Hanna, 2015 BCSC 986. However, a subsequent decision hasaffected the precedential value of that judgment with the result that it is not binding on me under the principles articulated in Re HansardSpruce Mills Ltd., (BC SC), [1954] 4 D.L.R. 590 (B.C.S.C.). In particular, in Hanna, Justice Beames considered theavailability of parole as part of the basis for upholding the constitutionality of this particular mandatory minimum sentence (para. 24). She did so in reliance on authority that was later overturned by the Supreme Court of Canada in Nur SCC at para. 98.

Further, and in anyevent, the Supreme Court of Canada made it clear in Nur SCC at para. 71, that even when a sentencing provision has previously beenfound constitutional, a new offender may challenge it on the basis that his situation has not previously been considered but is nowsquarely before the court, or on the basis that there exists a new reasonable hypothetical not previously considered by the court: NurSCC at para. 71. [22] As a result, it is necessary to proceed to the s. 12 analysis. Particularized Inquiry for Mr. Hofer The Defence Submissions on the Particularized Inquiry [23] Counsel for Mr.

Hofer relied on the content of an Agreed Statement of Facts and a Pre-Sentence Report prepared by BarbHuston, a probation officer with North Shore Community Corrections. [24] Mr. Hofer was 41 years of age at the time of the offence. He was born in North Vancouver. He currently resides with hismother and sister in North Vancouver. He assists his mother with tasks at her home, pays rent, and assists with additional householdexpenses. Mr. Hofer was described in the Pre-Sentence Report as a "lone person". Apparently, he keeps to himself but has supportiverelationships with his family members.

He has never been married and has no children. [25] Mr. Hofer left school at Grade 10 and has worked primarily in tree work (tree spacing, trimming, cutting, topping, andremoval). Recently he has been working part time as a stone mason's assistant in the construction industry. His employer states he isreliable, hard-working, and willing to learn. While he admits to some recreational drug use in the past, Mr. Hofer has no substance abuseissues and he advised Ms. Huston that he has not used any drugs in the past six months. [26] Mr. Hofer has a relatively minor and dated criminal record.

On June 14, 1993, he was sentenced to a $75 fine for possession ofa narcotic pursuant to s. 3(1) of the now repealed Narcotic Control Act, R.S.C. 1985, c. N-1, and to a $125 fine for obstructing a policeofficer. On April 2, 1997, he was sentenced to a $500 fine and three-month driving prohibition for failing or refusing to provide asample under s. 254(5) of the Criminal Code, R.S.C. 1985, c. C-46. [27] Mr. Hofer pleaded guilty, accepted responsibility for his actions that led to the current offence, and understands he may besentenced to a period of incarceration. He advised Ms.

Huston that he is prepared to make the best of this difficult situation. [28] There is little evidence about Mr. Hofer's precise role in the grow op in question. In particular, it is not clear whether he was aprincipal or caretaker. The evidence merely establishes that he was not a registered owner of the property and that he was the onlyperson found at the property at the time of the search. [29] Counsel for Mr. Hofer submits that there are several mitigating factors present including that Mr.

Hofer pleaded guilty, he has apositive Pre-Sentence Report, and he has no serious criminal convictions prior to this offence. With respect to moral blameworthiness,his counsel emphasizes that the grow op was in a rural environment with no other houses nearby; there was no indication of any childrenor other persons in the vicinity; there were no weapons or significant fortifications; and there was 'minimal' security. He says the remotelocation reduces the likelihood of a theft or "grow rip" and thereby militates against the violence and risks typically associated with growops. [30] The defence relies on R. v.

Pham, 2015 BCSC 56, as an example of a sentence imposed for a similarly placed offender. In thatcase, a 34-year-old pleaded guilty to production of marihuana and was sentenced to one year's imprisonment. The grow op was locatedin Surrey and involved 1,206 marihuana plants and twelve pounds of dried marihuana. There was significant security at the property inquestion and a hydro bypass. The court found that the offender was not merely a caretaker, but it was his first offence. [31] Relying on Pham, the defence argues that since Mr. Hofer has no serious or recent record and the grow op in this case gave rise

to relatively fewer risks given its rural location and minimal fortification, the principles of proportionality, parity and restraint dictate thata sentence of between 9 and 12 months' imprisonment would be fit. He submits that a two-year mandatory minimum sentence, which isat least double what would otherwise be a fit sentence, is grossly disproportionate. The Crown Submissions on the Particularized Inquiry [32] The parties are not far apart on what would have been a fit and proportionate sentence for Mr. Hofer in the absence of themandatory minimum.

The Crown referred to a number of cases in which sentences were imposed for similarly placed offendersincluding: • R. v. Su, 2000 BCCA 480, in which an offender convicted of possession for the purpose of trafficking and cultivation of marihuanain relation to a grow op involving 300 plants was sentenced on appeal to 12 months' imprisonment. • R. v. Innes, 2001 BCCA 478, in which an offender who pleaded guilty to producing 374 marihuana plants was sentenced to ninemonths' imprisonment. • R. v.

Wallis, 2007 BCCA 377, leave to appeal ref'd [2007] SCCA No. 477, in which an offender who pleaded guilty to producing638 marihuana plants was sentenced to 15 months' imprisonment. • R. v. Koenders, 2007 BCCA 378, in which an offender convicted of production and possession for the purpose of traffickingmarihuana in relation to a grow op involving 2,124 plants was sentenced to two years less a day. • R. v. Anderson, 2007 BCCA 581, in which an offender who pleaded guilty to producing 1,163 marihuana plants was sentenced to10 months' imprisonment. • R. v.

Budd, 2010 BCCA 214, in which an offender convicted of trafficking, possession for the purpose of trafficking, andproduction of marihuana with respect to 316 plants and 1,139 grams of drying marihuana was sentenced to one year's imprisonment. • R. v. Bui, 2013 BCCA 168, in which an offender who pleaded guilty to production of marihuana in relation to a grow op involving2,848 plants was sentenced to three years' imprisonment. • R. v.

Lau, 2014 BCCA 176, in which an offender who pleaded guilty to production of 629 marihuana plants was sentenced to ninemonths' imprisonment. [33] Relying on these cases, the Crown submits that the appropriate range is between 9 and 15 months, and suggests 14 months as fitfor Mr. Hofer, were it not for the mandatory minimum in s. 7(2)(b)(v). [34] In addition to the Agreed Statement of Facts, the Crown relies on the expert evidence of Cpl. Jeff Ringelberg who testifiedabout marihuana production methods, marihuana yields and prices, and the risks associated with marihuana grow ops. [35] Cpl.

Ringelberg was not involved in the search of the property in question. However, he reviewed photographs taken at theproperty and expressed the opinion that this particular grow op was relatively sophisticated given the staggering of plants at differentstages of development and the use of lights with two different spectrums, all of which maximizes efficiency. [36] Cpl. Ringelberg testified that typical marihuana yields range from 3 to 16 ounces per plant, but 6 to 10 ounces per plant is morecommon. In 2013, in northern British Columbia, marihuana sold for between $1,800 and $2,500 per pound at the wholesale level.

Atthe consumer end, the typical price was $10 a gram. Using the lowest per pound price of $1,800 and the lowest expected yield of3 ounces per plant, the plants found at the property in question would have generated marihuana in a quantity that could have been soldfor at least $549,000. [37] Cpl. Ringelberg testified about the risks and harms associated with marihuana grow ops. He explained the prevalence of "growrips" or, in other words, the theft of plants, cash, and/or growing materials.

These thefts are often violent and producers typically seek toprevent them by arming themselves and installing security measures such as camera surveillance and various kinds of "man traps". Thiscreates further risk to the community, first responders, and anyone else innocently happening upon such a property. He emphasized thatit is the clandestine nature of grow ops that make them especially vulnerable to grow rips. The plants themselves are not traceable andare easy to sell if stolen. In addition, the producers typically keep their earnings in cash.

Finally, the producers are unlikely to reportthefts to law enforcement. All of this attracts organized crime. [38] In addition to the risks associated with potential thefts and the involvement of organized crime, Cpl. Ringelberg testified thatgrow ops give rise to health and safety risks from fire, mold, and fertilizers. This is a concern not only for those involved in the grow opbut also for first responders and emergency personnel who might attend at the property. [39] The Crown emphasizes the need to defer to the valid legislative objects of Parliament.

The Crown notes the rationale expressedby government for the amendments to the CDSA sentencing regime that were enacted in 2012. This included the need to address seriousdrug crimes, particularly those involving organized crime; the increase in production offences, which were said to have reached such apoint in some parts of the country that law enforcement agencies had become overwhelmed; and the serious health and public safetyhazards posed by illicit drug production. [40] The Crown also emphasizes that the mandatory minimum in this case, in contrast to those in R. v.

Smith, (SCC), [1987] 1 S.C.R. 1045, and Lloyd, is much more limited in the scope of its application. The CDSA sentencing regime is tailoredsuch that the minimum sentences are graduated in length depending on the number of plants and the presence of aggravating factors. Inparticular, s. 7(2)(b)(

v) only applies to the production of marihuana and only where there are more than 500 plants involved.

[ 41 ] Of the factors that are to inform the gross disproportionality analysis, the Crown emphasized the gravity of the offence, the actual effect of the sentence on Mr. Hofer, and the penological goals and sentencing principles. [ 42 ] In terms of the gravity of the offence, the Crown submits that the large-scale production of marihuana is serious both in terms of harm to the community and in terms of the moral blameworthiness of the conduct. [ 43 ] While there was little evidence of specific harms or risks associated with the particular property in question, Cpl.

Ringelberg's evidence established that there are significant harms and risks associated with grow ops generally. In addition, the Court of Appeal has repeatedly observed that commercial marihuana production is a serious problem in many areas of this province. In Innes at para. 10 , the court referred to its "profound and corrupting effect on society and its institutions". In R. v. Hill , 2007 BCCA 309 at para. 21 , the court referred to the marihuana industry as being "permeated by organized crime", "often accompanied by violence and danger to innocent citizens" with "other 'vile and destructive consequences'".

In Su at para. 10 , the court referred to the risk of violence arising from home invasions, the fire hazards of grow operations, and the threat to the community posed by organized crime. The Crown notes that it is these well-recognized concerns that were the impetuses for the CDSA sentencing amendments in 2012. [ 44 ] The Crown submits that the choice to become involved in a large-scale commercial grow operation for personal gain is highly culpable criminal conduct. Commercial marihuana production is not a crime of impulse that occurs as a result of a momentary lapse of judgment.

To the contrary, it requires ongoing daily effort and a deliberate choice to break the law for personal gain.

While the Crown acknowledges that the owner operator of a commercial grow operation may be more blameworthy and deserving of a more significant punishment than a mere caretaker, the Crown submits that even a caretaker must bear considerable moral culpability for his or her role in producing large quantities of marihuana destined for the illicit marihuana trade given the harm that this activity causes to the community. [ 45 ] The Crown emphasizes that the minimum two-year sentence is as little as 9 to 15 months longer than the sentence Mr. Hofer would have received under the pre-amendment sentencing regime.

Of course, the two-year term of imprisonment mandated under s. 7(2) (b)(

v) would be served in a federal institution. Nevertheless, the Crown says that taking into account the conditions and programs available in federal penal institutions, a sentence of two years in a penitentiary cannot be viewed as excessively harsh or intolerable in comparison to a sentence of 9 to 15 months in a provincial jail. [ 46 ] In addressing the penological goals and sentencing principles, the Crown notes that s. 10(1) of the CDSA expresses the fundamental purpose of sentences for offences under

Part 1 of the CDSA . It states that the fundamental purpose 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".

This statement of purpose must be read together with the more general principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code , which were summarized in Dickey at para. 2 : [2] The fundamental objectives and principles of sentencing are stated in the Criminal Code ( ss. 718 , 718.1 and 718.2 ). They include denunciation, deterrence, the separation of offenders from society where necessary, rehabilitation, the promotion of responsibility, and the recognition of harm done to victims of crime. They require the consideration of aggravating and mitigating circumstances.

They provide that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions, reasonable in the circumstances, other than imprisonment, should be considered for all offenders and in particular for Aboriginal offenders. [ 47 ] The Crown notes that the courts in this province have consistently held that the principles of denunciation and deterrence are paramount in cases concerning the large-scale commercial production of marihuana.

Other sentencing principles, including rehabilitation, may be taken into account, but generally will not justify a sentence that would not adequately serve the principles of denunciation and deterrence. The Crown emphasizes that through the introduction of the minimum two-year term of imprisonment, Parliament has made a policy choice to give priority to the objectives of denunciation and deterrence when sentencing offenders in cases such as this one, and that choice is to be given deference except where a mandatory sentence would be clearly grossly disproportionate. [ 48 ] In

summary, the Crown submits that Mr. Hofer is a mature offender who chose to become involved in the large-scale commercial production of marihuana for personal gain. The Crown submits his conduct exposed the community to the well-known risks associated with commercial marihuana production and contributed to the socially destructive forces of the commercial drug trade. The Crown concedes that his personal antecedents would put him at the lower end of the appropriate range and that this would have resulted in a sentence about half as long as the mandatory minimum sentence.

In all the circumstances, the Crown says a sentence of two years does not meet the high threshold of grossly disproportionate. Conclusion on the Particularized Inquiry [ 49 ] At 1,628 plants, the grow operation in question in this case was relatively large.

Taking into account the cases referred to by both sides, I am satisfied that under the pre-amendment sentencing jurisprudence, an offender with a minimal record involved in a large- scale commercial indoor marihuana grow operation could expect to receive a sentence ranging from 10 to 18 months' imprisonment. [ 50 ] I accept the Crown's assertion that the courts in this province have consistently held that the principles of denunciation and deterrence are paramount in cases concerning the large-scale commercial production of marihuana: see R. v. Kwiatkowski , 2010 BCCA 238 at paras. 7 , 13; Wallis at para. 26 .

This is largely as a result of the widely acknowledged risks to the community associated with the offence. [ 51 ] I have considered the submission of Mr. Hofer's counsel to the effect that the risks associated with this particular grow op were less significant than is typically the case as a result of the rural location and minimal fortification. However, in my view, that speaks to an absence of further aggravating factors rather than the presence of mitigating factors. In any event, I am satisfied by Cpl.

Ringelberg's evidence that significant risks are associated even with rural grow ops, including risks of violence from grow rips and the threat to the community posed by organized crime.

[ 52 ] Taking into account the objectives and principles of sentencing, the mitigating factors with respect to Mr. Hofer, and the previous case law, I find that a fit and appropriate sentence in this case, were it not for the mandatory minimum, would be 12 months' imprisonment. [ 53 ] The question is whether a sentence of two years' imprisonment is grossly disproportionate for Mr.

Hofer given that without the mandatory minimum he would have been sentenced to one year. [ 54 ] It is important to remember that the grossly disproportionate standard sets a high bar that will only be met in the clearest of cases: Nur SCC at para. 39 ; R. v. Latimer , 2001 SCC 1 at para. 77 . It is also important to remember that gross disproportionality is a legal standard grounded in identifiable factors and not simply a reflection of an individual judge's personal sense of the harshness of the sentence or perception of the likely public reaction to the sentence.

This was emphasized by the Ontario Court of Appeal in Nur CA at paras. 67-68 . [ 55 ] The offence carries with it a maximum sentence of 14 years' imprisonment. It is a serious offence, particularly because of the widely acknowledged risks to the community. While Mr.

Hofer's personal circumstances would justify a sentence at the lower end of the pre-amendment range, the effect on him of roughly doubling the sentence from one year to two, while excessive, is not grossly so when assessed in light of the nature of this particular grow op, which was large and sophisticated; the gravity of the offence in terms of risk of harm to the community and in terms of moral blameworthiness; and the principles of deterrence and denunciation that underlie the policy reflected in the CDSA sentencing scheme. [ 56 ] Counsel for Mr.

Hofer observed that the law concerning marihuana is in a state of flux in Canada. I accept that in recent years there has been a softening of attitudes concerning personal marihuana use, but that does not equate to a softening of attitudes about large- scale illicit production. However, not only has a tolerance for personal use developed, but also a policy has been adopted by the Vancouver Police of non-enforcement of the criminal law against many marihuana retail dispensaries in Vancouver. This is condoned by the City of Vancouver.

The question this raises is whether it is possible or appropriate to draw an inference about societal attitudes concerning sentences for large-scale illicit marihuana production from the fact that the criminal law is not being enforced against some large-scale retailers of the same product.

In other words, can I conclude that society would find a sentence of two years' imprisonment for a large-scale producer of marihuana to be abhorrent or intolerable, or so excessive as to outrage standards of decency, because some large-scale retailers are carrying on business with impunity? [ 57 ] While I accept that this situation on its face creates a perception of unfairness, I have concluded that this is not enough to support a conclusion that a two-year sentence for a large-scale producer meets the high threshold of gross disproportionality.

While I consider it appropriate to take judicial notice of the prevalence of unlawful retail dispensaries in Vancouver, there is no evidence about the societal response. As already noted, gross disproportionality is a legal standard that does not depend on an individual judge's subjective perception of the potential public reaction to a particular sentence. Rather, it is grounded in identified factors drawn from legal sources, including the gravity of the offence and the principles and objectives of sentencing.

For the reasons already expressed, irrespective of the existence of unlawful retail dispensaries in Vancouver, the large-scale production of marihuana gives rise to serious risks to the community and remains illegal. [ 58 ] Having considered the gravity of the offence, including the particular circumstances of this case which involves in excess of 1,600 plants capable of generating a crop with a value of at least $549,000; the effect of a two-year sentence on Mr.

Hofer; and the penological goals and sentencing principles which include the promotion of respect for the law and the maintenance of a just, peaceful and safe society, I conclude that a sentence of two years' imprisonment is not grossly disproportionate in Mr. Hofer's case. Reasonable Hypotheticals [ 59 ] I turn now to the second stage of the s. 12 analysis, which has come to be known as the hypothetical inquiry.

Again, the burden is on the offender to identify reasonable hypothetical scenarios in which the impugned law would give rise to a punishment that is not just harsh or excessive, but so grossly disproportionate that it warrants a finding that the law is unconstitutional: Elliott at para. 41 , citing Goltz at 506. In other words, Mr.

Hofer must identify some reasonable hypothetical scenario in which it would be grossly disproportionate for an individual involved in the production of more than 500 marihuana plants to be sentenced to two years' imprisonment. [ 60 ] A "reasonable hypothetical" in this context is a "situation that may reasonably be expected to arise", and the constitutionality of a sentence under s. 12 of the Charter is not to be assessed on the basis of marginal, far-fetched or remote examples: Nur SCC at para. 56 ; Elliott at para. 43 .

As stated by Chief Justice McLachlin in Nur SCC at para. 57 , "[t]he question is simply whether it is reasonably foreseeable that the mandatory minimum sentence will impose sentences that are grossly disproportionate to some peoples' situations, resulting in a violation of s. 12." This reasonable foreseeability test encompasses more than situations that are common or likely to arise; rather, it extends to situations that, although unlikely, are "foreseeably captured by the minimum conduct caught by the offence" ( Nur SCC at para. 68 ). [ 61 ] Two hypotheticals were directly raised by counsel for Mr.

Hofer in the course of his oral submissions: Hypothetical 1: A retired gentleman of the hippy generation, who lives an otherwise law-abiding life at his retirement property in the countryside, grows 501 seedlings at his outdoor or indoor garden with the intention of using some of the product himself and giving some to persons who are either licensed or unlicensed medical marihuana users. Hypothetical 2: A licensed grower, because of experience with spider mites that ruined a significant portion of a previous crop, plants 501 extra

marihuana seedlings ( i.e. , 501 more plants than the number allowed by his licence), intending to do a cull. [ 62 ] In addition, in response to a question about the mens rea for the offence of marihuana production, a third hypothetical was developed during the hearing: Hypothetical 3: A person who owns and resides at a large rural property is found to have been wilfully blind to a grow op involving 501 plants being operated by a relative in an outbuilding on the property, and is convicted of being a party to the offence.

Hypothetical 1 [ 63 ] This hypothetical is an adaptation of one of the hypotheticals considered in Elliott . At issue in that case was the mandatory minimum sentence of six months under s. 7(2) (b)(

i) of the CDSA for the production of more than five and fewer than 201 marihuana plants, where the production was for the purpose of trafficking.

Justice Fenlon, then of this Court, found the mandatory minimum sentence violated s. 12 of the Charter because a migraine sufferer with no criminal record who grew six plants and shared them with friends, or a 19-year-old university student who grew six plants to use recreationally and share with friends, could be guilty of trafficking and caught by the mandatory minimum. [ 64 ] In my view, the number of plants required to trigger the application of s. 7(2) (b)(v), namely, in excess of 500 plants, distinguishes this case from that kind of hypothetical. This was also the view of Justice Duncan in R. v.

Serov , 2016 BCSC 636 , who upheld the mandatory minimum of 18 months' under s. 7(2) (b)(iv) of the CDSA for the production of more than 200 and less than 501 plants, where the property in question belonged to a third party. (I note that this decision is under reconsideration following further submissions concerning the effect of the Supreme Court of Canada's decision in Lloyd . ) [ 65 ] Counsel for Mr. Hofer emphasized that the 501 seedlings in this hypothetical are at an early stage of growth.

However, the stage of the plants' development at the time of the discovery does not change the potential yield or materially reduce the risks. On the basis of Cpl. Ringelberg's testimony, marihuana plants mature in as little as eight weeks and 501 plants would produce at least 94 pounds of marihuana. [ 66 ] In my view, it is unlikely that a retired gentleman (or anyone for that matter) would grow this much marihuana to give away.

However, bearing in mind the Supreme Court of Canada's caution in Nur SCC that the reasonable foreseeability test extends to unlikely but foreseeable situations, I am prepared to accept that this hypothetical is, although unlikely, nevertheless foreseeably captured by the minimum conduct caught by the offence. [ 67 ] However, irrespective of the hypothetical gentleman's characterization as a former hippie and leaving aside his intention to give away much of the product to medical marihuana users, it is inescapable that this hypothetical involves a large-scale illicit grow operation.

At $1,800 a pound, which, according to Cpl. Ringelberg, was the bottom of the wholesale price range in northern British Columbia in 2013, the value of the hypothetical crop would be $170,000. In the circumstances, the hypothetical gentleman's conduct gives rise to the same significant community risks as does the conduct of the commercial operator. In other words, notwithstanding the hypothetical gentleman's altruism, his offence is a grave one because it gives rise to a significant risk of harm to the community. He knowingly engaged in serious criminal conduct.

I cannot conclude that a sentence of two years would meet the very high test of gross disproportionality in these circumstances. Hypothetical 2 [ 68 ] This hypothetical involves a licensed marihuana grower who plants 501 more plants than his or her licence allows, intending to do a cull once it is apparent that the crop has not been damaged by spider mites. [ 69 ] As with the retired hippie who was the subject of hypothetical 1, in my view this is an unlikely scenario because of the very large number of extra plants that would have to be grown in order to fall within s. 7(2) (b)(v).

It is unlikely that a licensed grower would jeopardize his or her licence by growing such a large number of extra plants. However, I am prepared to accept that this hypothetical is, although unlikely, foreseeably captured by the minimum conduct caught by the offence. [ 70 ] Nevertheless, for the same reasons expressed in relation to hypothetical 1, I cannot conclude that a sentence of two years' imprisonment would meet the very high test of gross disproportionality if applied to the licensed grower in these hypothetical circumstances.

Again, this is largely due to the fact that the offence is not committed unless the number of unlicensed plants exceeds 500. To the extent it can be assumed that the existence of safety precautions are implied by the existence of a licence, it must also be assumed that the precautions would be those considered appropriate for a much smaller operation. In other words, it cannot be assumed that this hypothetical would not give rise to significant community risk. I am not persuaded that a sentence of two years' imprisonment would be so excessive, in these circumstances, as to outrage standards of decency.

Hypothetical 3 [ 71 ] This hypothetical involves a person who owns and resides at a large rural property and is found to have been wilfully blind to a grow op, involving 501 plants, being operated by a relative of the property owner in an outbuilding on the property. The property owner is not found to have actively participated in the marihuana production, but is convicted of being a party to the offence. [ 72 ] In my view, this is a situation that could reasonably be expected to arise. [ 73 ] First, wilful blindness can substitute for actual knowledge whenever knowledge is a component of the mens rea : R. v.

Briscoe ,

2010 SCC 13 at para. 21 . [ 74 ] Second, there are several examples of offenders being found guilty of marihuana production as a party who has aided or abetted the principal operator: R. v. Ngo , 2009 BCCA 301 ; R. v. Pavalaki , 2014 BCCA 491 ; R. v. Gough and Jesson , 2014 BCPC 204 ; R. v. Nguyen , 2014 BCSC 1000 ; and R. v. Leech , 2013 BCSC 1156 . As stated by the Court of Appeal in Ngo , "it was open to the trial judge to infer knowledge and an intention to aid or abet from all the circumstances" (para. 87).

The circumstances, in that case, were living in the house where the grow op was located which provided a veneer of normalcy; allowing for access to those who were actively involved; providing a monitoring capacity and a measure of security through mere physical presence; and providing a measure of consistency that allowed the actual grower to produce on an ongoing basis.

As Justice Rowles, writing for the court, said at para. 59: Even where a person does not "actively participate" in the production of marijuana, he or she may aid or abet in its production by maintaining the environment where the plants are grown. [ 75 ] Accordingly, it is reasonably foreseeable that, for example, an elderly owner of a rural property whose adult son returned to live on the property and used outbuildings for a marihuana grow op, would be caught by the offence if the circumstances were such that his suspicion was aroused to the point where he saw the need to make inquiries but deliberately chose not to do so.

If the grow op involved more than 500 plants, that elderly offender would be subject to the mandatory minimum two-year sentence. The question is whether such a sentence would be grossly disproportionate in that person's situation. [ 76 ] For the same reasons I found a two-year sentence not to be grossly disproportionate in the first two hypotheticals, I have concluded that it would not be grossly disproportionate here. Significant sentences have been imposed even where the offender does not actively participate in the production.

For example, in Nguyen the sentence was 10 months' incarceration for possession for the purpose of trafficking and production of 694 plants ( 2014 BCSC 1252 ). In Gough and Jesson , 16- and 18-month conditional sentences were imposed on offenders who were found guilty as parties to the offence of production ( 2015 BCPC 171 ). In Leech , a 15-month conditional sentence was imposed.

As observed by Justice Fenlon in Elliott , while conditional sentences are no longer available for production of marihuana under recent amendments to s. 742.1 of the Criminal Code , a conditional sentence of this length imposes significant restrictions on the offender's liberty (para. 38). [ 77 ] In addition, a grow op of this size would attract the same risks I have already mentioned.

While it could be said that the moral blameworthiness of a party is somewhat less than that of a principal, as noted by Justice Joyce in Leech at para. 9 , the fact that an offender is convicted as a party "does not mean that he was not an essential part of the operation". [ 78 ] As with the offenders in the first two hypotheticals, an offender who aids in the large-scale production of marihuana intends to engage in serious criminal conduct. In the circumstances, a sentence of two years would not meet the high threshold of gross disproportionality.

Conclusion [ 79 ] In conclusion, it is important to understand that the scope of the mandatory minimum sentence in issue in this case is quite limited. It only applies to the production of more than 500 marihuana plants. As explained by Chief Justice McLachlin for the majority in Lloyd , "[t]he wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate" (para. 24). [ 80 ] The provision struck down in Lloyd was s. 5(3)(a)(i)(

D) of the CDSA , which provided a minimum sentence of one year of imprisonment for trafficking or possession for the purpose of trafficking, where the offender had been convicted of "a designated substance offence" within the previous 10 years. The definition of "traffic" covers a broad range of conduct and the prior "designated substance offence" captured any offence in the CDSA other than simple possession. In the result, the provision caught not only serious drug trafficking but also conduct that was much less blameworthy.

The Chief Justice observed that this would include an addict charged for sharing a small amount of drugs with a friend or spouse and who had a previous single conviction for sharing marihuana during a social occasion nine years before, or an addict with a prior conviction for trafficking who was convicted of a second offence but, in both cases, was trafficking only in order to support his own addiction and who, between conviction and sentencing, attended rehabilitation and conquered his addiction. [ 81 ] In contrast, the two-year mandatory minimum sentence in issue in this case only applies to offenders convicted of large-scale marihuana production, which is an endeavour that is widely accepted to give rise to significant risks to the community.

In these circumstances, it is not surprising that Mr. Hofer has been unable to identify reasonable hypothetical scenarios in which a two-year sentence would be so excessive as to outrage standards of decency. [ 82 ] For these reasons, I find that the mandatory minimum sentence of two years' imprisonment is not grossly disproportionate with respect to Mr. Hofer. In addition, I am not persuaded that the hypotheticals identified in this case present reasonable circumstances where the mandatory minimum sentence would result in a grossly disproportionate sentence. Consequently, I conclude that s. 7(2) (b)(

v) does not contravene s. 12 of the Charter . [ 83 ] In the result, it is necessary to sentence Mr. Hofer. As already discussed, the Crown acknowledges that Mr. Hofer's personal antecedents put him at the low end of the appropriate range of sentence. In particular, he is a virtual first offender who pleaded guilty and has taken responsibility for his actions. The Crown submits that an appropriate sentence in this case is two years' imprisonment. I agree. [ 84 ] Mr.

Hofer, please stand. [ 85 ] As required by the Controlled Drugs and Substances Act , and in particular s. 7(2) (b)(v), I sentence you to two years in prison on Count 2 of the indictment before the court. In addition, as sought by the Crown, I order that you provide a sample of your DNA,

pursuant to s. 487.051 of the Criminal Code . I ban you from possessing firearms for a period of 10 years, pursuant to s. 109(2) of the Criminal Code . I order that the items seized from the marihuana grow operation at 14473 Spud Lake Road, Ootsa Lake, British Columbia, during the execution of the search warrant be forfeited as offence-related property, pursuant to s. 16 of the Controlled Drugs and Substances Act . Finally, the victim surcharge is waived. [ 86 ] I ask the clerk to note a stay with respect to Count 1. "WARREN J."