On her s. 12 application, Ms. Pham conceded that the
mandatory minimum sentences were not grossly disproportionate in relation to her personally. Rather, she argued that the two
and three-year mandatory minimum sentences in ss. 7(2)(b)( v)
(over 500 plants) and ( vi) (over 500 plants plus a statutory
aggravating factor) were grossly disproportionate in reasonably
foreseeable cases. I will begin with the three-year mandatory
minimum and then turn to the two-year mandatory minimum.
(2) The ss. 7(2)(b)( vi) and 7(3)(c) issue
(a) The Pham sentencing judge’s reasons
 Based on an expert report filed at the sentencing hearing
and other evidence, the Pham sentencing judge found that
“Pham actively participated in the growing of more than 500
marijuana plants and that the production ‘constituted a potential public safety hazard’” (at para. 22).
 Concerning the s. 12 issue, the Pham sentencing judge
began his analysis by addressing the three-year mandatory minimum sentence under ss. 7(2)(b)( vi) and 7(3)(c) of the CDSA
where a potential public safety hazard exists. He noted that the
Vu sentencing judge had held that s. 7(3)(c) could result in sentences that are grossly disproportionate and therefore violate
s. 12 of the Charter. This was because s. 7(3)(c) would capture
cases where an accused was not at fault in relation to the potential public safety hazard — either because the accused was unaware of the potential public safety hazard or had exercised due
diligence in trying to prevent it. The Vu sentencing judge also
went on to hold that s. 7(3)(c) of the CDSA could not be saved by
s. 1 of the Charter.
 The Pham sentencing judge agreed with the Vu sentencing judge’s analysis. Citing a number of authorities,5 he added
that the imposition of mandatory imprisonment on a basis that
does not involve fault (whether by way of knowledge, reckless-ness or lack of due diligence) has always violated constitutional
principles. The Pham sentencing judge accepted the Crown’s
position that because the s. 7(3)(c) aggravating factor is not an
element of the offence, it is unnecessary to prove mens rea —
5 Reference re Motor Vehicle Act (British Columbia) S 94(2),  2 S.C.R.
486,  S.C.J. No. 73; R. v. Creighton,  3 S.C.R. 3,  S.C.J.
No. 91; R. v. Hundal,  1 S.C.R. 867,  S.C.J. No. 29; R. v. Pontes,  3 S.C.R. 44,  S.C.J. No. 70; R. v. Nguyen,  2 S.C.R.
906,  S.C.J. No. 91; R. v. Wholesale Travel Group Inc. (1991), 4 O.R.
(3d) 799,  3 S.C.R. 154,  S.C.J. No. 79.