Kim Schofield and Daniel Stein, for Hai Thi Pham and Wen
Nick Devlin and John North, for Public Prosecution Service of
The judgment of the court was delivered by
SIMMONS J.A.: —
 The main issue on these appeals is whether certain mandatory minimum sentencing provisions for the unauthorized
production of marijuana infringe the right to be free of cruel and
unusual punishment under s. 12 of the Canadian Charter of
Rights and Freedoms.
 Each of Duc Vu, Wen Wen Li and Hai Thi Pham (collectively,
the “convicted parties”) was convicted of unauthorized production of marijuana contrary to s. 7(1) of the Controlled Drugs
and Substances Act, S.C. 1996, c. 19 (the “CDSA”), based on acts
that occurred after the mandatory minimum penalties were
 Section 7(2)(b) of the CDSA imposes a sliding scale of
mandatory minimum sentences for unauthorized production of
marijuana. The minimum sentences imposed under s. 7(2)(b)( i)
to ( vi) range from six months’ imprisonment to three years’
imprisonment, depending on the number of plants produced and
whether any of the statutory aggravating factors described in
s. 7(3) of the CDSA applies.
 Because of the number of plants they were involved in producing, Mr. Vu (1,020 plants) and Ms. Pham (1,110 plants) were
subject to the two-year mandatory minimum sentence set out in
s. 7(2)(b)( v) of the CDSA for production of more than 500 plants.
In addition, as against both of these parties, the Crown established that the production constituted a potential public safety
hazard in a residential area, one of the statutory aggravating
factors under s. 7(3)(c) of the CDSA. Both were therefore subject
to the three-year mandatory minimum sentence prescribed
under s. 7(2)(b)( vi) (production of more than 500 plants plus
a statutory aggravating factor).
 Mr. Li (475 plants) was subject to the 12-month mandatory
minimum sentence set out in s. 7(2)(b)( iii) of the CDSA for production of more than 200 and less than 501 plants.
 Prior to sentencing, each of the convicted parties applied for
a declaration that the mandatory minimum sentences infringe
s. 12 of the Charter and are therefore of no force and effect.