s. 7(2)(b)( vi), the mandatory minimum sentence therefore rose to three years.
The sentencing judge struck down s. 7(3)(c). He also struck down s. 7(2)(b)( i), which
imposes a mandatory minimum sentence of six months if the number of plants produced is more than five and less than 201 and the production is for the purpose of
trafficking, and s. 7(2)(b)( ii), which increases the mandatory minimum sentence in
s. 7(2)(b)( ii) to nine months if any of the statutory aggravating factors in s. 7(3)
apply. He declined to strike down s. 7(2)(b)( v), and sentenced V to two years’ imprisonment. The Crown and V sought leave to appeal.
P was found in an apartment containing 1,110 marijuana plants. It was clear
that the sole purpose for the apartment was rented to cultivate marijuana and it
had been used for the purpose for more than a year. In P’s case, the sentencing
judge struck down s. 7(3)(c) of the CDSA, and also struck down ss. 7(2)(b)( v)
and ( vi). P was sentenced to ten months’ imprisonment. The Crown sought leave
L was found in a house containing at least 475, but less than 500 marijuana
plants. Under s. 7(2)(b)( iii) of the CDSA, the sentence attracted a mandatory
minimum 12-month sentence because the number of plants was more than 200
and less than 501. The sentencing judge declined to strike down s. 7(2)(b)( iii) and
sentenced L to 12 months’ imprisonment. L sought leave to appeal.
Held, leave to appeal should be granted; the Crown’s appeals should be dismissed; V’s appeal should be dismissed as moot; L’s appeal should be allowed.
Section 7(3)(c) violates s. 12 of the Charter because, in combination with
s. 7(2)(b)( vi), there are reasonable hypotheticals in which it captures cases
where an accused was not at fault in relation to the potential safety hazard,
either because the accused was unaware of the potential safety hazard, or
because the accused had exercised due diligence in trying to prevent it. There
cannot be punishment without fault. The inherent seriousness of large-scale
marijuana production cannot justify an increase in penalty based on an aggravating circumstance about which an accused has no culpable mens rea. To impose an
additional one-year sentence in such circumstances is grossly disproportionate.
The mandatory minimum two-year sentence in s. 7(2)(b)( v) would be grossly
disproportionate in the reasonable hypothetical circumstances of a person who
holds a licence to produce marijuana but is mistaken about the terms of that
licence, and a person who provides minimal assistance to a marijuana grow operation. That conclusion also applied to the mandatory minimum 12-month sentence in s. 7(2)(b)( iii).
Sections 7(2)(b)( iii), ( v) and ( vi) and s. 7(3)(c) cannot be saved under s. 1 of the
Charter as those provisions are neither minimally impairing nor proportionate.
The provisions are of no force or effect. It would not be appropriate to read down
s. 7(2)(b)( iii), ( v) and ( vi) by inserting into each subsection the words “if the production is for the purpose of trafficking”. The Crown raised that argument for the
first time on appeal, in oral argument. The accused had no opportunity to
respond to it and the issue was not fully argued. Moreover, it was far from
obvious that inserting the words “if the production is for the purpose of trafficking” would reflect Parliament’s intention. Finally, it was not clear that the
Crown’s proposed reading down would resolve the gross disproportionality arising from the hypotheticals. The Crown took the position that if its constitutional
arguments failed in the Pham case it was not seeking leave to appeal against
her sentence of ten months’ imprisonment. The Crown’s appeal against her sentence was dismissed.