a residential area or even the fact of a hydro bypass. Rather, the
Crown must prove beyond a reasonable doubt that “the production constituted a potential public safety hazard in a residential
area” (emphasis in the original).
 Evidence is required to show that a particular grow-op
was a potential public safety hazard. In the Vu case, expert evidence was required. Further, as the Vu sentencing judge noted,
not all hydro bypasses can be shown to be a potential public
safety hazard on a criminal standard of proof (see, for example,
R. v. Nguyen,  O.J. 2688 (C.J.)). As he said, it would not be
readily apparent that all grow-ops are a potential public safety
hazard. A gardener hired after a grow-op was set up could be
unaware of the existence of a hydro bypass or that it or other
venting or wiring issues created a potential public safety hazard.
 The decisions cited by the Pham sentencing judge support
the principle that there cannot be punishment without fault. The
inherent seriousness of the offence of large-scale marijuana production cannot justify a mandatory one-year 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.
 I would not give effect to the Crown’s argument on this
(3) The s. 7(2)(b)( v) issue
(a) The Pham sentencing judge’s reasons
 After finding that the three-year mandatory minimum
imposed under ss. 7(2)(b)( vi) and 7(3)(c) of the CDSA violates
s. 12 of the Charter, the Pham sentencing judge turned to the
two-year mandatory minimum imposed under s. 7(2)(b)( v) of the
CDSA. In his view, the issue was largely determined by Nur.
 In Nur, a majority of the Supreme Court of Canada found
the mandatory minimum sentences imposed by s. 95(2)(a) of the
Criminal Code in relation to the s. 95(1) offence — unauthorized
possession of a prohibited or restricted firearm when the firearm
is loaded or kept with readily accessible ammunition — in violation of s. 12 of the Charter.
 In particular, the majority found that “s. 95(1) foreseeably
catches licensing offences which involve little or no moral fault
and little or no danger to the public” (at para. 83). The court
concluded that for such offences, “three years’ imprisonment
[imposed under s. 95(2)(a)( i) of the Criminal Code] is grossly
disproportionate to a fit and fair sentence”. The majority also
found the five-year mandatory minimum imposed on repeat