Given my findings on the Pham appeal, it is unnecessary
to conduct a full s. 12/s. 1 Charter analysis. In my view, the
hypotheticals I considered in Pham would apply equally to
a grow operation involving 475 plants. Indeed, the hypotheticals
I adopted from Serov related to grow operations involving more
than 200 and less than 501 plants.
 Accordingly, based on my reasoning in relation to the
Pham appeal, I would hold that s. 7(2)(b)( iii) of the CDSA violates
s. 12 of the Charter, cannot be saved by s. 1 and should be
declared of no force and effect under s. 52 of the Constitution Act.
 At the appeal hearing, the Crown confirmed that if it
was unsuccessful in its constitutional arguments, it would not be
seeking any increase in the sentence that the Li sentencing
judge would have been inclined to impose. Accordingly, I would
grant leave to appeal, set aside the 12-month effective sentence
imposed by the Li sentencing judge and substitute a sentence
of six months’ imprisonment less one day with all other terms
of the sentence imposed by the Li sentencing judge to remain
 In summary, I would dismiss the Crown’s appeal in
Pham and uphold the declarations that ss. 7(2)(b)( v), ( vi) and
7(3)(c) of the CDSA are unconstitutional.
 I would also dismiss the Crown’s appeal in Vu. My conclusion in respect of the Pham appeal governs the constitutional
arguments in relation to ss. 7(2)(b)( v), ( vi) and 7(3)(c). The
Crown has not demonstrated that it has an appeal route to this
court relating to their s. 7(2)(b)( i) and ( ii) argument as the declarations of invalidity in relation to those sections had no impact
on the sentence Mr. Vu received. As Mr. Vu has now completed
his sentence, I would dismiss his sentence appeal as moot.
 Finally, I would allow Mr. Li’s appeal. Based on my reasoning in the Pham appeal, I would hold that s. 7(2)(b)( iii) of the
CDSA violates s. 12 of the Charter, cannot be saved by s. 1 and
should be declared of no force and effect under s. 52 of the
Constitution Act. I would reduce Mr. Li’s sentence from 12 months’
imprisonment to six months’ less one day.
Applications allowed; Crown’s appeals dismissed;
V’s appeal dismissed; L’s appeal allowed.