that this three-year mandatory minimum can apply to persons
who have no moral culpability in relation to the statutory
aggravating factor. The provisions could have been tailored to
avoid this result. They are neither minimally impairing nor
 Similarly, with respect to s. 7(2)(b)( v), as the Pham sentencing judge noted, Parliament could have provided a safety
valve to allow judges to grant exemptions in exceptional cases.
Once again, the provisions are neither minimally impairing nor
(5) The reading down remedy
 At the appeal hearing, the Crown requested that if any of
s. 7(2)(b)( iii), ( v), or ( vi) are found unconstitutional that an alternative remedy be considered, namely, the provision’s applicability
could be read down, by inserting into each subsection the words
“if the production is for the purpose of trafficking”.
 According to the Crown, the scheme of s. 7(2)(b) makes it
obvious that Parliament’s intention was to impose mandatory
minimum penalties on marijuana growers planning to do illegal
things — namely, traffic in marijuana. The words “if the production is for the purpose of trafficking” appear in ss. 7(2)(b)( i) and
( ii) dealing with less than 201 and more than five plants to make
that intention clear. Those words do not appear in the later sections dealing with greater numbers of plants because of an
implicit assumption that significant overproduction on the scale
contemplated by those sections must be for an illicit purpose. It
was not Parliament’s intention to impose mandatory minimum
sentences on the morally innocent who may be captured under
s. 7(2)(b)( iii), ( v) or ( vi) based on reasonable hypotheticals. Any
constitutional infirmity in the impugned provisions can be rectified by the proposed change, which in the circumstances, clearly
reflect Parliament’s intention.
 I would not grant this remedy.
 The general rule is that appellate courts will not entertain entirely new issues on appeal: Kaiman v. Graham, 
O.J. No. 324, 2009 ONCA 77, 245 O.A.C. 130. This applies to
constitutional arguments: R. v. Reid (2016), 132 O.R. (3d) 26,
 O.J. No. 3554, 2016 ONCA 524.
 The decision to allow new arguments is discretionary and
must be guided by balancing the interests of justice as they
affect all parties (Kaiman, at para. 18). The interests of justice
do not favour allowing the Crown to raise the issue of reading
down. Not only was this argument not raised in the court below,
it was raised for the first time in this court in oral argument.