or fault — in relation to it at the sentencing stage. However, he
concluded that because the statutory aggravating factor has a
mandatory minimum jail sentence attached to it, it is “
constitutionally important to preserve judicial discretion, at the sentencing stage, so that the aggravating factor can be given full force
where there is fault but given less weight where there is no
fault” (at para. 29).
(b) The Crown’s arguments concerning ss. 7(2)(b)( vi) and
 The Crown submits that in striking down ss. 7(2)(b)( vi)
and 7(3)(c), the Pham (and Vu) sentencing judge(s) failed to take
proper account of the inherent seriousness of the crime of unauthorized large-scale production of marijuana committed in a residential area. In this regard, the Crown emphasizes that, unlike
the situation in Nur, ss. 7(2)(b)( vi) and 7(3)(c) do not catch “
conduct that falls short of true criminal conduct”. Rather, individuals involved in large-scale production of marijuana intend to
commit what is a very serious criminal offence.
 As illustrated by the sentencing surveys in R. v. Paryniuk,
 O.J. No. 3690, 2013 ONCJ 443, at para. 25; and R. v.
Nguyen,  O.J. No. 5358, 2013 ONSC 6913 (S.C.J.), at
paras. 160-66, even prior to the introduction of the mandatory
minimum penalties, persons involved in large-scale marijuana
production offences were subject to significant penalties. Parliament is entitled to determine the gravity of a particular
offence and to craft an appropriate minimum sentence. A three-year sentence for an offender who was unaware of the potential
public safety hazard might be harsh, or even disproportionate in
some circumstances. However, given the objective seriousness of
the offence of large-scale production of marijuana in a residential area, a three-year mandatory minimum sentence can hardly
be said to be grossly disproportionate.
 I do not accept the Crown’s submissions. The flaw in the
Crown’s argument, in my view, is that ss. 7(2)(b)( vi) and 7(3)(c)
impose a mandatory additional year of imprisonment where the
offender may lack fault completely in relation to the circumstances on which the Crown relies to justify the mandatory
increase in penalty.
 As the Vu sentencing judge noted, the existence of a
potential public safety hazard is not inherent in a substantial
marijuana grow-op in a residential area. As he said, the statutory
aggravating factor is not the presence of a substantial grow-op in