offenders under s. 95(2)(a)( ii) of the Criminal Code to be grossly
disproportionate. That provision could foreseeably catch a person who breached a prohibition order while on bail and later
innocently came into possession of a restricted or prohibited
firearm, together with usable ammunition, without an authorization or licence. Such a person had not caused any harm, nor
any real risk of harm and was not engaged in criminal activity.
 Similar to Nur, the two-year mandatory minimum under
s. 7(2)(b)( v) applies to a regulated activity that is authorized
in some circumstances by regulations promulgated under the
CDSA. In the Pham sentencing judge’s view, as in Nur, the
two-year mandatory minimum could capture a broad range of
conduct — some of which is at the licence-infraction end of the
 The Pham sentencing judge considered hypothetical fact
situations based on three actual cases: R. v. Zheng,  O.J.
No. 274, 2015 ONCJ 30;6 R. v. Jiang,  O.J. No. 7077
(C.J.);7 and a pending case in the Superior Court described by
the Vu sentencing judge in his reasons.8 These hypotheticals
involved two basic scenarios: ( i) “duped employees” — individuals who assisted insufficiently licensed or unlicensed grow operations, believing that the grow operations were licensed; and
( ii) “mistaken licensees” — licensed growers who misinterpreted
his or her licence in some way.
 The Pham sentencing judge rejected the Crown’s argument premised on this court’s decision in R. v. Darquea, 
O.J. No. 696, 47 C.C.C. (2d) 567 (C.A.) that the accused in those
cases had made mistakes of fact that would afford a valid
defence to any charges. In Darquea, this court found that an
6 In R. v. Zheng, two of four grow licences authorizing a total of 128 plants
had expired. The grow operation included 1,507 plants. A night watchman, who also performed minor gardening functions, called the police during a break-and-enter. He was charged and convicted of aiding the
production of all but the 30 plants that were still authorized. The Zheng
trial judge found that Mr. Zheng honestly believed the grow operation was
authorized but concluded that belief amounted to a mistake of law.
7 R. v. Jiang involved an unsophisticated accused hired to do primarily
security, caretaking and maintenance at a grow op with over 2,000 plants.
The Jiang sentencing judge found the accused believed “he was engaged
in a lawful enterprise”, based, in part, on the presence of at least some
valid licences, but that such belief amounted to a mistake of law.
8 The pending Superior Court case involved residents of a house charged
with unauthorized production and possession for the purpose of trafficking, where one of the residents had a valid licence to produce 122 marijuana plants but police found 256 plants in the home.