IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           On March 19, 2013, Surrey RCMP attended to a residential marijuana grow operation located at 5642 Sundale Grove, Surrey, BC (“Sundale Residence”), where 259 plants in a vegetative state and 265 drying marijuana plants were located.  The grow operation was being vacated.

[2]           Mr. Le and Mr. Thai were found in and arrested by police at the Sundale Residence.  Mr. Nguyen and his family members left the residence, when police arrived.  He was arrested on March 28, 2013.

[3]           All three accused were charged with possession for the purposes of trafficking of the marijuana plants.  Additionally, Mr. Nguyen was charged with production of cannabis (marijuana) and fraudulent use of hydro.

[4]           In Reasons for Judgment filed on October 29, 2015, Mr. Le and Mr. Thai were found not guilty by me.  However, I convicted Mr. Nguyen of the following charges on information 198905: possession of marijuana for the purposes of trafficking (Count 1), cultivation/production of marijuana (Count 2) and theft/fraud (Count 3) in relation to the diverted hydro.

[5]           This application is focussed on the sentencing regime in the Controlled Drugs and Substances Act (“CDSA”), where minimum mandatory sentences are prescribed for marijuana production.

[6]           Mandatory minimum sentences are prescribed for offences of production of marijuana.  In s. 7(2)(b)(iii) of the Controlled Drugs and Substances Act (“CDSA”), a 12-month minimum jail sentence is prescribed where offenders produce more than 220 plants, and less than 501.  In separate Reasons filed May, 9, 2017, I found that the one-year minimum mandatory jail sentence in s. 7(2)(b)(iii) did not violate s. 12 of the Charter.

[7]           Crown counsel has also given notice to the applicant that that they intend to rely on s. 7(3)(c) of the CDSA which, in combination with s. 7(2)(b)(iv), creates a mandatory minimum jail sentence of 18 months, where the marijuana grow operation creates a “potential public safety hazard” and that marijuana production occurs in residential area.

[8]           Mr. Klein, Q.C. submits that s. 7(3)(c) in combination with s. 7(2)(b)(iv) of the CDSA violates ss. 7 and 12 of the Charter, because it requires “no mens rea and yet imposes a minimum punishment and therefore violates the principles of fundamental justice and in the alternative is overbroad”.  Additionally, Mr. Klein submits these sections violate s. 12 of the Charter, as they constitute cruel and unusual punishment, having regard to the reasonable hypothetical I found existed in my Reasons dated May 9, 2017.  Mr. Klein submits that the overall sentence of 18 months jail would not result in a sentence that is unduly harsh for Mr. Nguyen.  However, that minimum mandatory sentence is grossly disproportionate when viewed in the context of the reasonable hypothetical I accepted in the previous application, where the hypothetical offender’s moral culpability is time limited and significantly less than the mid to large scale commercial marijuana grower who produces these crops for profit.

[9]           Crown counsel submits that s. 7(2)(b)(iv) is engaged because the actual marijuana production at the Sundale Residence constituted a potential public safety hazard in a residential area.  Specifically, the Crown alleges that there is a hydro electrical bypass present at the residence which gives rise to a “potential public safety hazard” and it occurred in a “residential area”.

[10]        The Crown further argues that Mr. Nguyen’s claims of s. 7 breaches are “properly dealt with under s. 12 of the Charter, as the s. 7 infringements are substantially the same as the infringement he claims under s. 12”.

[11]        Regarding Mr. Nguyen’s claims under s. 12 of the Charter, the Crown submits that the “only issue in this hearing is whether the addition of the aggravating factor and six additional months of jail to the minimum mandatory sentence takes the hypothetical from being reasonable to so excessive as to outrage the standards of decency”.  [Crown’s written argument, Exhibit 10, at para. 4]

[12]        In R. v. Lloyd, 2016 SCC 13 (CanLII), [2016] S.C.J. No. 13 at paragraph 15, Chief Justice McLachlin observed that the law is clear with respect to the jurisdiction of provincial court judges (“PCJs”) and Charter applications: “PCJs are not empowered to make formal declarations that a law is of no force and effect under s. 52(1) of the Constitution Act, 1982: only superior court judges of inherent jurisdiction and courts with statutory authority possess this power.”

[13]        PCJs do have the authority to consider the constitutionality of laws before them: “It has always been open to provincial courts to declare legislation invalid in criminal cases.  No one can be convicted of an offence under an invalid statute”.  [Lloyd, at para. 15, citing R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295 at p. 316.]

[14]        At paragraph 19 in Lloyd, Chief Justice McLachlin summarizes the jurisdiction of a PCJ:

[15]        Crown counsel served Mr. Nguyen with notice under s. 8 of the CDSA.  The Crown relies on s. 7(2)(b)(iv) and seeks a greater sentence based on the number of marijuana plants produced being more than 200 but less than 501.  This section takes into account s. 7(3)(c) which requires the imposition of a further six-month sentence, where there the production constituted a potential public safety issue in a residential area.

[16]        A Conditional Sentence Order is not available because there is a minimum mandatory sentence.

[17]        Production of substance – CDSA

[18]        Mr. Nguyen is 50 years old.  He has no previous criminal record.  He is the owner of the Sundale Residence where the marijuana grow operation occurred.  At the time the grow operation occurred, he lived in the residence with his wife and children, aged 5 and 9.  He still resides at the house.  He works as a painter and home renovator.

[19]        Cst. Trenn was qualified at the trial as an expert in the area of cultivation, production, possession for the purpose of trafficking, use, distribution, price and packaging of marijuana, as well as the roles in a marijuana grow operation.

[20]        She calculated the value of the marijuana grow operation present at the Sundale Residence by using a plant yield of 48g/plant (based on Cpl. Krauss’ observations of the marijuana plants) and multiplied this amount by 524 plants located at the residence.  In total, the yield was 25,152 grams, which equalled 55.35 pounds of dried marijuana bud.  She assumed a value of $1,000.00 per pound, and concluded that the total value of the marijuana grow operation, if sold at the pound level, was $55,350.00.

[21]        Cst. Trenn did not physically attend the marijuana grow operation; rather, she viewed photographs of it.  Cst. Trenn testified that when she viewed those photos she observed that there were high pressure sodium bulbs, commonly used in grow operations, along with other electrical equipment, including ballasts and shrouds, which directed the light onto the plants.  She also detected the presence of a hydro bypass located in the garage.  She testified that electrical bypass equipment is expensive and is commonly used to avoid alerting BC Hydro to excessive hydro consumption at residences where there are grow operations.  Additionally, she testified that a bypass reduces the cost of the electricity, as the energy is being diverted from BC Hydro and does not get recorded by the Hydro meter.  It also increases the risk of electrical fires and harm to the house and potentially to neighbours.

[22]        There were also fans and charcoal filters used to mask the odour of the growing marijuana and Mylar plastic present in the residence.

[23]        Cst. Trenn testified that marijuana grow operations are expensive to set up, as electrical and green house equipment must be purchased, doors must be reinforced, and plumbing and wiring must be enhanced.  Further, she observed that there is a considerable period of planning associated with such ventures.

[24]        In her opinion, Cst. Trenn stated that the grow operation at the Sundale Residence was moderately sophisticated.

[25]        Mr. Stringfellow was also qualified at trial as an expert in the area of electrical bypass and theft of electricity.  He is employed by BC Hydro as an electrician and often attends when search warrants are executed by police to ensure that the police are “electrically safe” to execute them.

[26]        Mr. Stringfellow described that an electrical bypass is an electrical diversion which occurs when a conductor is connected to pre-existing BC Hydro service wires for the purpose of re-directing electricity before it enters the BC Hydro meter that measures the volume of electricity consumed by a customer.  The effect of the bypass is to divert electricity from the meter, so Hydro does not know the electricity is being consumed.  Therefore the customer does not pay for the electricity and the authorities are not alerted to the excessive consumption of electricity.

[27]        Mr. Stringfellow attended to the Sundale Residence on March 20, 2013 with members of the Surrey RCMP and observed that there was an electrical bypass in the garage of the Sundale Residence, which bypassed the BC Hydro meter.  He followed those wires from the electrical diversion and noted that they led to a panel in the basement, which in turn had wires feeding high pressure sodium light bulbs in the grow operation.  He also located timers connected to the light switches which were scheduled to go on at eight-hour intervals.  He formed the opinion that the electricity used to power these two high-pressure sodium lights was not being recorded by the Hydro meter, and therefore the electricity was being diverted by of the hydro bypass he saw in the garage.  Because this electricity was being diverted before it was going through the meter, it was not being recorded.  Accordingly, whoever was responsible for creating the bypass that diverted the electricity was not paying for it.

[28]        There are hazards associated with a bypass including an elevated risk of fire.  Further, if wires are exposed, it increases the chances of someone touching a live wire and being electrocuted.

[29]        Mr. Stringfellow noted that the bypass was actually drywalled into the garage wall and that he had to look for it to find it.  A bypass is like a junction and many of those devices are up to code, as junctioning wires is something frequently done by electricians.  Further, if it is properly installed, an electrical bypass is not unsafe; however, it must have a CSA approval on it to pass Canadian code.  No CSA approved code was present on the hydro bypass he observed at the Sundale Residence.

[30]        Cpl. Chow and S/Sgt. Patrick Murray’s qualifications as experts in the area of health and public safety issues associated with marijuana grow operations were admitted by defence counsel for the purpose of the sentencing hearing.  S/Sgt. Murray’s report was also filed as an exhibit.

[31]        Ms. Wiancko, Crown counsel, summarized the public safety issues associated with marijuana grow operations in her written submissions.  Mr. Klein did not take any issue with those submissions.

[32]        In summary, marijuana grow operations are harmful to communities and create health and safety concerns for the public including the following:

[33]        Marijuana production requires planning, capital outlay and financial investment.  It is not a “spur of the moment decision”.  As noted by the Crown, in her previous written submissions at paragraph 50: “invariably the offender makes a deliberate choice to break the law, for personal gain.”

[34]        Many decisions have followed the British Columbia Court of Appeal’s (“BCCA”) decision in R. v. Su, 2000 BCCA 480, where the BCCA agreed with the trial judge’s finding that marijuana grow operations create safety risks to the public in the communities where they are located.  The Crown, in their written submissions in this case, relies upon the Su decision and other BCCA decisions for that proposition.  [See Crown’s written argument, Exhibit 10, at paras. 29-30.]

[35]        In the British Columbia Supreme Court (“BCSC”), sentencing decision of Su, Mr. Justice Stewart, found Mr. Su guilty of cultivation of and possession for the purpose of trafficking of marijuana.  The cultivation of the marijuana occurred in a residential dwelling house.  During the sentencing hearing, Stewart J. made a number of findings in the case in the course of conducting a “social analysis of this kind of crime”.  [Su, para. 5.]  As noted by Lambert J.A. in the Su sentence appeal decision, some of Stewart J.’s analysis was “based on evidence and some of it based on form of judicial notice in relation to problems created by a grow operation”.  [Su, para. 5.]  Ultimately, the BCCA substituted the two-year jail sentence Stewart J. imposed with a one-year jail sentence, but they did not disturb his findings relating to the nature of the offence of cultivation of marijuana (as it was then called) and the risks to the community associated with this type of activity.

[36]        Lambert J.A. found that even though the sentence imposed by Mr. Justice Stewart was excessive, having regard to the principles of sentence, Stewart J.’s discussion of the nature of the crime (production of marijuana) and the risks associated with it, were all factors that could be “taken into account in considering the range that is appropriate”.  [Su, para. 10.]  Those factors considered by Stewart J. were: “the risks that it creates for law-abiding neighbours, the risks it creates for violence, and without being precise, about home invasions of innocent people”.  [Su, para. 10.]  Those factors could “all be taken into account in considering the range [of sentence] that is appropriate”.  [Su, at para. 10.]

[37]        In R. v. Hill, 2007 BCCA 309, the BCCA observed:

[38]        In R. v. Wallis, 2007 BCCA 377, the BCCA referenced the Hill case at paras. 30-31 and found:

[39]        At paragraphs 28-31 of the Crown’s written argument, Exhibit 10, the Crown makes detailed submissions about the danger present and the harm caused to the community by marijuana grow operations.

[40]        In my view, the case authorities cited above provide ample authority for the proposition that sentencing judges may draw inferences about the potential public safety hazard that arises from any marijuana grow operations of between 201-500 plants, located in residential neighbourhoods, including the increased risk of home invasions by other people who are seeking to forcibly seize and remove the valuable marijuana plants from the marijuana producer(s).

[41]        Mr. Klein brings this application under both s. 7 and s. 12 of the Charter.

[42]        Section 12 of the Charter asserts that a person is “not to be subjected to any cruel and unusual treatment or punishment”.  At paras. 22-25, in R. v. Elliot, [2016] B.C.J. No. 449, Madam Justice Fenlon (now Fenlon, J.A.) sets out the parameters of a s. 12 analysis:

[43]        The Elliott case was recently appealed to the BCCA.  Mr. Justice Fitch, writing for the court, upheld Madam Justice Fenlon’s decision.  [R. v. Elliott, 2017 BCCA 214.]

[44]        Fitch J.A. found that in s. 12 challenges, two questions arise.  The first question is whether the minimum mandatory sentence would result in a grossly disproportionate sentence to the offender.  If the answer is no, then the next inquiry is whether there are reasonably foreseeable hypothetical situations where the mandatory minimum sentences will visit grossly disproportionate consequences on other offenders.  In both the Elliot appeal and the case before me, only the latter issue arises, as Mr. Nguyen acknowledges that the mandatory minimum sentence of 18 months would not be grossly disproportionate in his specific situation.

[45]        In the Elliott decision, Fitch J.A. also observed the following other points in relation to s. 12 applications:

[46]        Duncan J. in R. v. Serov, [2016] B.C.J. No. 2610 at para. 19, dealt with a s. 12 challenge in relation to a similar subsection of the CDSA, where the minimum mandatory penalty of 12 months for offenders where the production of between 201-500 plants was increased to 18 months if the production occurred in a third party’s home.  She found that “a short mandatory minimum sentence is subject to constitutional scrutiny in the same manner as a long one”.

[47]        Mr. Nguyen also alleges s. 7 breaches.  In particular he alleges that the statutory aggravating factor set out in s. 7(3)(c) of the CDSA mandates an additional custodial sentence in circumstances in which there is no requirement for mens rea in relation to that factor and is also overbroad.

[48]        In both Elliott and Nur, the courts are clear that where legislation is found to contravene s. 12 of the Charter, it is not necessary to conduct a separate inquiry to determine whether the legislation also offends s. 7.

[49]        As a result, I will address Mr. Nguyen’s s. 12 arguments first.

[50]        A stage one inquiry is also known as a particularized inquiry.  It takes into account the particular circumstances of the offender to determine whether the minimum mandatory sentence is grossly disproportionate, having regard to the circumstances of the offender, including their moral culpability, the gravity of the offence, and the particular aggravating and mitigating factors.  Regard must be had for the principles of sentence as set out in ss. 718 -718.2 of the Criminal Code.  Additionally, the “penological goals and sentencing principles” in the legislative scheme that is being challenged must be examined, including the availability of reasonable alternatives, and the range of sentence for similar offences.  [See: R. v. Nur, 2015 SCC 15 (CanLII), [2015] 1 S.C.R. 773.]

[51]        The Defence agrees with the Crown that the mandatory minimum sentence of 18 months imprisonment is “not outside of the range of sentences available to the Applicant”.  While the mandatory minimum sentence makes it impossible for the accused to demonstrate that a lesser sentence would be appropriate, he acknowledges that this sentence is not grossly disproportionate.  Therefore, the offender acknowledges that on a particularized inquiry the provisions of s. 7(2)(b)(iv) and s. 3(c) do not engage s. 12 of the Charter.

[52]        Mr. Klein submits that in stage two of the s. 12 analysis, I should find that the reasonable hypothetical scenario I accepted in my May 9, 2017 Reasons applies equally here.  He submits that I should find that an 18-month sentence for the offender described in the reasonable hypothetical would result in a sentence that is not just “harsh or excessive, but so grossly disproportionate that it warrants a finding that the law is unconstitutional.”  [Elliot, supra, at para. 41.]

[53]        The law is clear that in a stage two analysis, the defendant bears the burden, on a balance of probabilities, of identifying a scenario where the minimum mandatory sentence creates a situation where the minimum sentence imposed is so “grossly disproportionate.”

[54]        In Nur, supra, McLachlin C.J.C. canvassed the law relating to reasonable hypotheticals and in particular, what was required to meet the threshold of “reasonable”:

[55]        In the paragraphs below, I have repeated the analysis I undertook in my May 9, 2017 Reasons about s. 7(2)(b)(iii) of the CDSA, where I found that a reasonable hypothetical existed where an offender, who was a party to the offence, participated on a time limited basis in the grow operation.

[56]        I accept that Mr. Justice Schultes’ hypothetical envisions that there were actions of an offender, knowing that a commercial scaled grow operation was taking place, offered a “relatively minor and time-limited act of assistance” to the production of marijuana.  Justice Schultes finds those actions of the hypothetical offender include for example:  “delivering a tray of seedlings or a bottle of nutrients, briefly assisting a friend who acts as the ongoing caretaker or gardener, pitching in on the day that the product is cut down, or as Cpl. Forbes envisioned in relation to this specific case, forming part of the bucket brigade to bring dirt into the crawl space.” [McGee, supra, at para. 128.]

[57]        Mr. Justice Schultes’ hypothetical is in relation to an offender who has a brief temporal participation as a party to a grow operation where they are aware that there is a commercial marijuana production taking place.  They knowingly participate by “aiding or abetting in the production of marijuana by maintaining the environment in which the marijuana is produced, with the purpose or intent to assist in the crime.”  [See Ngo, supra, at para. 52].  Mr. Justice Schultes envisions that a party to the offence provides assistance in a brief temporal way, where they participate in maintaining the environment of the marijuana production site by watering plants, providing plants, and/or providing nutrients or soil.  His position is that while the duration of the activity may be short lived, the actus reus is made out, as is the mens rea.  The issue about whether the activity is of sufficient duration to warrant a charge of production is one where prosecutorial discretion is applied.  On many occasions, this type of offender may not be charged; but they could be.  The decision to prosecute involves an application of prosecutorial discretion which does not otherwise save unconstitutional legislation.  Schultes J. also draws a distinction between this type of offender whose participation in the marijuana production is time limited, as compared to other parties to the offence who are referenced in many of the cases cited by Crown counsel, where that party has an ongoing and continuing role as a gardener or waterer, or provides ongoing security, for example.  Schultes J. finds that those latter participants are more culpable.

[58]        In R. v. Tran, 2017 ONSC 651, Goodman J. was confronted with an issue related to quantifying the number of plants found in a commercial grow operation.  At paragraphs 24 and 25, he reviewed the case law relating to what constitutes a “plant” in a grow operation.  He also reviewed the definition of “production”:

[59]        Goodman J.’s discussion of “production” is significant, as it supports Schultes J.’s rationale that the definition of production is broad, and it is reasonably foreseeable that a person may aid and abet the production of marijuana, “which includes the whole range of plant production” on a limited temporal basis.

[60]        In addition, Goodman J. found Mr. Tran guilty of production and trafficking.  The facts upon which Mr. Tran was found guilty are summarized by Goodman J. at paragraph 40:

[61]        In the Tran case, at paragraph 41, Goodman J. also noted that “most significantly, the applicant was not the principal player in the enterprise”.

[62]        While McGee, supra, was in relation to a greater number of plants, the existence of the reasonable hypothetical situation Schultes J. envisioned is equally applicable to the fact scenario that is before me in this case: where the Crown is proceeding on the basis that there are more than 200 but less than 501 plants.  In other words, the existence of the reasonable hypothetical in this fact pattern is directed to the mode of and degree of participation of the offender, not the number of plants.

[63]        I also note that in R. v. Serov, [2017] B.C.J. No. 105, Duncan J. was asked to consider the constitutionality of the one-year minimum sentence proscribed in s. 7(2)(b)(iii) of the CDSA.  This case is subsequent to Schultes J.’s decision in McGee.  Duncan J. did not consider the reasonable hypothetical set out in McGee, as she was of the view that Schultes J. upheld the minimum mandatory sentence of two years, pursuant to s.7(2)(b)(v).  In fact, Schultes J. in McGee found that this section did violate s. 12 of the Charter, but not s. 7 of the Charter:

[64]        Duncan J. in R. v. Serov, supra, at paragraph 11, sets out the basis upon which judges may continue to hear “fresh hypotheticals” in the second aspect of the inquiry under s. 12 of the Charter, notwithstanding that courts have already made findings that the legislation is constitutional:

[65]        Accordingly, for the reasons stated above, it is my view that it is appropriate for me to consider Schultes J.’s hypothetical situation in the context of s. 12 of the Charter.  In other words, I find that it meets the threshold of being a “reasonably foreseeable” hypothetical.  Therefore, it is necessary for me to assess whether the situation outlined in McGee gives rise to a grossly disproportionate sentence in the context of the minimum mandatory sentence of an 18-month jail sentence required under s. 7(2)(b)(iv) and s. 7(3)(c) of the CDSA.

[66]        For the purpose of this s. 12 Charter analysis, I consider the reasonable hypothetical situation set out above: the offender who aids and abets the production of marijuana by maintaining the environment in which the marijuana is produced, with the purpose or intent to assist in the offence of production, on a limited temporal basis, where they are aware that there is a commercial marijuana production taking place.  Mr. Justice Schultes in McGee envisions that the hypothetical offender is a party to the offence who provides assistance in a brief temporal way by maintaining the environment of the marijuana production site by watering plants, providing plants, and/or providing nutrients or soil.  Schultes J.’s concludes that while the duration of the activity may be short lived, both the actus reus and mens rea for the offence of production of marijuana are established.

[67]        In addition, it is necessary to add in the following further assumptions to the reasonable hypothetical:

[68]        Section 7(3)(c) of the CDSA provides that: the marijuana production constitutes a potential public safety hazard in a residential area.  The phrase “potential public safety hazard” is not defined, nor is “residential area”.  The Crown acknowledges that the words “residential area” are very broad and may include any home, regardless of how remote the dwelling is, or how far away “neighbours” are located, including in a rural area, as other potential occupants of that remotely situated home may be exposed to the potential safety hazard.  However, for the purposes of this analysis, I am applying the broader definition for “residential area” that would include homes in neighbourhoods where other homes are adjacent to the home where the grow operation is occurring.

[69]        Defence argues, and I accept that the word “potential” is very broad and includes within it a “possibility” of a public safety hazard.  The Oxford Dictionary defines the word “potential” as the “possibility of something happening”.  The word “hazard” is defined in the Oxford Dictionary as a “danger or risk”.  Thus, I find that the phrase “potential public safety hazard” means the possibility of a risk of harm to the public arising from a marijuana grow operation of between 200 and 501 plants.

[70]        Accordingly, I find that those terms in s. 7(3)(c) are very broadly cast, thus capturing a wide variety of conduct, which conduct includes a wide spectrum of moral culpability.

[71]        In the particularized inquiry before me, the Crown identifies that the conduct that constitutes the “potential public safety hazard” is the presence of a hydro bypass.  However, in the reasonable hypothetical, the “potential public safety hazard” is the presence of between 200-501 marijuana plants in a residential area.

[72]        I have outlined earlier in my Reasons that courts in British Columbia have drawn inferences absent expert evidence being called that marijuana productions of this size are valuable.  Therefore, there is an increased likelihood that they will be targeted for theft.  That theft may include violence, along with home invasions.  Based on the case law in British Columbia, if that grow operation is inside a “residential area”, then the statutory aggravating features set out in s. 7(3)(c) of the CDSA will be met, without further proof of any other factor being necessary.  A court can infer that there is a possibility of a risk of harm to the public arising from the marijuana grow operation of between 200-501 plants without expert evidence being called.

[73]        While I recognize that the CDSA legislative scheme is part of a broader “regime” enacting minimum jail terms for certain drug offences, it appears to me based on the very general wording of s. 7(3)(c) and the evolution of the sentencing case law in British Columbia, that every marijuana production of between 200-500 plants that occurs in a residential area is a “potential public safety hazard”.  Thus, even though the legislation prescribes a minimum mandatory sentence of 12 months for production, the reality is that every marijuana grow operation of this size in a home in a “residential area” in British Columbia falls within this definition and therefore will also attract a minimum mandatory sentence of 18 months, as the other statutory aggravating factors in s. 7(3)(c) are always present, given their very broad application.  Therefore, the only thing that separates the use of this legislation in every offence of production in a residential area is the exercise of Crown discretion, which the Supreme Court of Canada has found will not otherwise save legislation that offends s. 12 or other sections of the Charter.

[74]        The offence of production of marijuana of more than 200 plants and less than 501 plants, contrary to s 7(2)(b)(iii) of the CDSA, is punishable by a one-year minimum sentence and a maximum 14-year jail sentence.

[75]        The principles of sentence are set out in ss. 718 and 718.1 of the Criminal Code, including protection of the public, deterrence and denunciation figure prominently in assessing the appropriate sentence for mid-to-large sale commercial grow operations in residential properties.

[76]        Crown counsel also relies on the submissions of the Honourable Kerry-Lynne D. Findlay [Hansard, 41^st Parliament, Second session (2011), No. 19 (21 September 2011), at 1308-1311], then Parliamentary secretary to the Minister of Justice, which are referenced at paragraph 15 of the Crown’s written submissions, filed as Exhibit 10.  In part, the Honourable Kerry-Lynne D. Findlay stated that “illicit drug production can pose serious health and public safety hazards, pose clean up problems and endanger the lives and health of whole communities.”  Further along in describing the legislation, the Honourable Kerry-Lynne D. Findlay also stated that:

[77]        Defence counsel does not take issue with the Crown’s reliance on case law from the BCCA where the court has found that marijuana grow operations are “pervasive” in a large province-wide “marijuana industry”, that is “permeated with organized crime” and often “accompanied by violence”, “danger to other citizens” and other “vile and destructive consequences”.  [See R. v. Hill, 2009 BCCA 309 at para. 21.]  There is a significant risk of “violence arising from home invasions” because the marijuana crop is lucrative.  The prospect of easy money in setting up a grow operation, and similarly, of others violently ripping it off, creates risks to neighbours in residential neighbourhoods where grow operations are often found.  The prospect for targeted violence is high, and sometimes the wrong house is identified and violently entered.

[78]        There is no question that British Columbia courts have found that mid to large level commercial grow operations for profit engage sentencing principles relating to public safety.

[79]        Mr. Justice Schultes in McGee envisioned a scenario where the offender is a party to the offence of production of marijuana on a time limited or brief temporal basis.  These brief acts are described as intentional acts of assistance, but limited acts.  Thus, the offender has knowledge that they are assisting the principal in the production of the marijuana but only briefly.  It is in this context that Schultes J. finds that “a minor and time limited act of assistance” would result in a grossly disproportionate sentence resulting with the imposition of a two-year minimum federal sentence.  Schultes J. In McGee does not consider whether this would be the case in relation to a one-year minimum mandatory sentence, as that issue did not arise on the facts of McGee.

[80]        At paragraph 24 in Lloyd, McLachlin C.J. noted that the wider the range of conduct captured by the minimum mandatory sentencing regime, the more likely it is that the minimum mandatory sentence will be grossly disproportionate for offenders whose criminal offending behaviour falls at the low end of the spectrum.  Borrowing from the language of McLachlin C.J in Lloyd at para 28, s. 7(2)(b)(iii) captures serious commercial marijuana producers who produce a significant amount of plants.  It also includes other offenders who aid and abet the principals in the production of marijuana, regardless of whether they have active and ongoing roles as gardeners or caretakers.  Offenders who knowingly occupy the premises to provide a veneer of normalcy to the residence to dissuade potential break and entries, and to fool neighbours in to believing that they are ordinary residents living in the house with their family and friends are caught by this legislation.  At the far end of the spectrum, in terms of low moral culpability, are people who provide some level of assistance to the principal, but their actions are time limited, of minor overall importance and their gain, if any, is small or remote.  These offenders possess the requisite intention to participate in the offence of marijuana production, however they do so on the lower end of the spectrum of culpability.

[81]        The reason such a broad range of conduct is captured by this section is due to the broad definition of production.  As is observed in the Tran case, Mr. Tran had no criminal record, was “at a minimum, a caretaker who entered the unoccupied home on several occasions with a key and was aware of the production.  He was not the leader of the operation and there is no evidence that Mr. Tran profited directly from the distribution of the drugs.”  [Tran, at para 136.]

[82]        At paragraph 23 in Lloyd, McLachlin C.J set out the parameters of the analysis that judges should undertake in assessing whether the minimum mandatory sentence would offend s. 12 of the Charter:

[83]        Relying on para. 23 of Lloyd, it is my view that the range of sentence for the reasonable hypothetical(s) in this case would encompass a range that potentially included a suspended sentence, up to the possibility of a one-year jail sentence.

[84]        In the Tran case, Goodman J. found that that considering the principles of sentence in the Criminal Code, and the seriousness of the offence and the offender’s circumstances, an appropriate sentence was actually a one-year jail sentence, notwithstanding the low level of participation of the accused in the production of the marijuana.

[85]        In British Columbia, in R. v. Voong, 2015 BCCA 285, the Court of Appeal has found that suspended sentences are available where there is no minimum mandatory sentence proscribed by law.  Specifically, in the case of drug traffickers, including dial-a-dope drug traffickers in schedule 1 substances, the British Columbia Court of Appeal has determined that a suspended sentence is available in certain circumstances, notwithstanding that the Court of Appeal has also stated that generally speaking, deterrence and denunciation are to be given significant weight in these types of cases, given the harm to society caused by schedule 1 substances, the pernicious impact to society of delivering drugs into residential neighbourhoods and the level of premeditation associated with dial-a-dope drug trafficking:

[86]        In Lloyd, McLachlin C.J. recognized that it is difficult for a “court to fix a sentence or sentencing range at a specific point, particularly for a reasonable hypothetical case framed at a high level of generality.  But the court should consider, even implicitly, the rough scale of appropriate sentence.”

[87]        When I considered the reasonable hypothetical relating to s. 7(2)(b)(iii) in my decision dated May 9, 2017 (which was framed within the context of an offender, with no previous record, who knowingly provided time limited assistance, as a party to the production of marijuana in a mid-large scale commercial grow operation (200-501 plants)), the “rough scale of an appropriate sentence” having regard to the principles of sentence, the moral culpability of the hypothetical offender which is at the low end of the spectrum, an appropriate penalty ranges from a suspended sentence in exceptional circumstances to one year in custody  [see:Tran].  In my view, the likely sentence for a minimally involved party in a mid-level commercial grow operation, given the lower level of moral culpability, yet the compelling public safety issues associated with these types of clandestine marijuana operations, is still a jail sentence, absent exceptional circumstances.

[88]        In relation to s. 7(2)(b)(iii), I found that there is a “high bar” set by courts that must be met to justify a finding by a court that a sentence falls within the parameters of cruel and unusual punishment in s. 12 of the Charter.  [Lloyd, supra, at para. 23.]

[89]        The burden is on the accused to demonstrate that the sentence is “grossly disproportionate”.  This means that the sentence must be “so excessive as to outrage standards of decency”.  [Lloyd, at para. 24.]  Dealing with s. 7 (2)(b)(iii), I found that  a minimum sentence of one year for the offender in the hypothetical scenario advanced may be excessive, but it is not “so excessive as to outrage the standards of decency”.  Therefore, I did not find that the defendant had met the burden of establishing that a one-year minimum sentence in s. 7(2)(b)(iii) violates s. 12 of the Charter.

[90]        Sections 7(2)(b)(iv) and 7(3)(c) of the CDSA impose a further 6-month consecutive sentence in the case of the hypothetical offender who produces marijuana in a residential area, and that production constitutes a “potential safety hazard” in the residential area.

[91]        When I examine s. 7(3)(c) of the CDSA, that section increases by 50% the mandatory minimum jail sentence to marijuana producers who grow marijuana in a residential area.  While Parliament’s expressed intention in Hansard was to increase punishment by 50% when certain aggravating features were present, given the breadth of the words they chose to describe those aggravating factors and the evolution of the case law in British Columbia, every marijuana production of 201 up to 500 plants that occurs in a residential area will attract a 50% increase in punishment where, regardless of their particular circumstances or degree of participation.  No other specific aggravating factors, such as the presence of a hydro bypass, need be present for this section to apply.

[92]        Does a further 50% increase of sentence from 12 months to 18 months, because the production of this size occurs in a residence, render the legislation invalid under s. 12 of the Charter?  I must consider the following:

[93]        I concluded that an approximate sentence for the hypothetical offender, who was minimally involved on a time limited basis aiding the principal, and otherwise was a youthful first time offender in a grow operation of this size, would be a jail sentence of some length – up to one year.  I am now being asked to consider whether increasing the minimum jail sentence by a further 50%, because a “potential public safety hazard exists in a residential area”, would be grossly disproportionate to the offender’s moral blameworthiness.

[94]        I have considered the antecedents of the above noted hypothetical offender, along with their degree of participation, which I have characterized as being at the low end of the spectrum for this level of production.  The hypothetical offender is not the principal, and her participation is time limited.  She is not sharing in the profit of the grow operation.  Given the seriousness of the offence and the potential for harm to the public, society would not be alarmed if the hypothetical offender was sentenced to six months in jail.  Indeed, I found that the imposition of a one-year sentence may be excessive but would not rise to the level of being grossly disproportionate.  Without changing or adding any other feature of this offender’s circumstances, except that this production occurred in a residential area, s. 7(3)(c) requires that the offender now receive an 18-month jail sentence.  This sentence is now potentially three times greater than a six-month sentence and 50% greater than the one-year minimum mandatory sentence under s. 7(2)(b)(iii).  The only additional feature that has changed is that the production constitutes “a potential public safety hazard in a residential area”.  The mandatory minimum 18-month sentence does not distinguish between the mode of participation of the offender, nor does it account for the fact that the hypothetical offender has no profit stake in the grow operation.  It does not permit the sentencing judge to consider the offender’s personal background.  It does not account for the fact that there is also a spectrum of risks that exist in residential grow operations.  In some of those grow operations, there are many additional features, including hydro bypasses that are not up to code, and therefore present a possible fire hazard, presence of harmful chemicals and moulds due to poor ventilation.  However, the language in s. 7(3)(c) is so broadly cast, it now captures every grow operation of more than 200 plants and less than 501 if that occurs in a residence.  Because of the value of that size of a marijuana crop, there is a possible risk that there could be a violent residential break-in to steal the marijuana crop.  Therefore, these words – “potential public safety hazard in a residential area” and “production” – are both very broadly cast, and capture in combination a broad range of conduct and moral blameworthiness that will result in an 18-month minimum jail sentence for those offenders at the higher end of the moral blameworthiness, who are the principal operating minds behind the grow operation, who wilfully engage in setting up the grow operation, and install bypasses and other electrical renovations that ignore safety requirements, but also for the hypothetical offender and hypothetical situation identified in this case, who is at the lower end of the spectrum of moral blameworthiness.

[95]        When I apply Lloyd, I conclude that that a minimum mandatory jail sentence of 18 months for the hypothetical offender in the reasonable hypothetical situation set out above, would result in a sentence that was grossly disproportionate for some offenders in some situations because the offence “can be committed in many ways and under many different circumstances by a wide range of people”.  [Lloyd, para. 3.]  Therefore, I find that it violates s. 12 of the Charter.

[96]        In Nur, McLachlin C.J. referenced R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103 at para. 111 in the context of a s. 1 analysis when s. 12 rights have been infringed:

[97]        The Crown bears the burden of proof in this application.

[98]        The Crown submits that ss. 7(2)(b)(iv) and 7(3)(a) of the CDSA can be saved because the infringement is a reasonable limit under s. 1 of the Charter.

[99]        Specifically, in Exhibit 8, Crown Written Submissions on Section 1 of the Charter (“Crown Written Submissions”), the Crown outlines its argument at paragraph 1, page 1:

[100]     Defence concedes that s. 7(3)(c) of the CDSA “meets the requirement of pressing and substantial objective and the means adopted are rationally connected to the objective” but submits that the means adopted “do not minimally impair the right nor is it a proportional response to the objectives of the legislation”.  [Exhibit 9, Defence Written Argument, para. 41.]

[101]     Accordingly, using the Oakes test framework I will not dwell any further on the issue, and I conclude that that the impugned sections are rationally connected to the objectives.

[102]     In R. v. J.L.M., 2017 BCCA 258, Bennett J.A., in determining whether s. 212(4) of the Criminal Code was saved under s. 1, considered whether that legislation minimally impaired the right or freedom in s. 12 noted at paras. 76-79:

[103]     I have reviewed the cases and the arguments of both counsel.  I have found that these sections violate s. 12 of the Charter, because they visit grossly disproportionate penal consequences on some offenders in some situations.  I concluded that was the case, because the word “production” was open to broad interpretations which would capture offending behaviour that, on the one end of the spectrum, addressed offenders who were the operating mind of the grow operation, who systematically created a plan to illegally grow marijuana in an amount where the number of plants exceeded 200 plants up to 500 plants.  In addition, that offender utilized means to assist his production by creating hazardous electrical bypasses and made use of other means, including dangerous chemicals to enhance the plants’ growth and improper ventilation.  However, those sections also capture the hypothetical offender at the other of the spectrum who assists the principal for a brief time, has no profit stake in the operation, and the grow operation happens to be in a residential area.  Because of the broad interpretation associated with the word “production” and the low threshold required to constitute a “potential public safety hazard”, I concluded that every person who assisted a principal grower in a residential grow operation of the size of more than 200, but less than 500 plants, on a time limited basis, would be subject to a minimum 18-month sentence.

[104]     Referring to paragraph 117 in Nur, McLachlin C.J.C. stated:

[105]     While I concluded that a 12-month minimum mandatory sentence would not offend s. 12 of the Charter, I have concluded that an increase in sentence of 50% for what I have found to be a potential risk that exists in every residential grow operation of greater than 200 plants, but less than 501 plants, does not meet the minimal impairment test.

[106]     In this part of the analysis, I must assess whether the benefit to society that is derived from the legislation outweighs in importance the seriousness of the infringement.

[107]     In Nur, McLachlin C.J. at paragraph 111, as set out above, that it would be difficult to establish proportionality where a determination was made that the legislation was grossly disproportionate under s. 12 of the Charter.  However, I will undertake this analysis in light of the facts of this case.

[108]     The Crown’s position is that this type of conduct is different than what was present in Smith, which mandated a seven-year minimum sentence and Nur which imposed a three-year minimum.  In the case before me, the minimum mandatory sentence is 18 months.  The Crown submits that when I balance this infringement against the objectives of this legislation, the minimum sentence is proportionate.

[109]     In R. v. McGee, 2017 BCSC 594, Schultes J., in assessing whether the Crown had met its burden under the proportionality test in Oakes, stated the following at paragraph 25:

[110]     Ultimately, Justice Schultes concluded that the “deleterious effects” outweighed the “salutary ones”, and he found that the breaches of s. 12 were not saved by s. 1.

[111]     I appreciate that Mr. Justice Schultes was also dealing with a different section of the sentencing regime of the CDSA, directed at protecting third party’s property interests, rather than potential public safety hazards arising from grow operations, and further, that the mandatory sentence he was considering would result in a federal sentence, rather than an increased provincial sentence.

[112]     However, I do note, based on the comments made in Hansard, that it was Parliament’s intention in passing increased minimum mandatory penalties that public safety would be enhanced.  See comments referenced earlier in these reasons.  Further, while the minimum mandatory sentence at stake here is not a federal sentence, the sections in question have the effect of increasing an offender’s sentence by a further 50%, which I have found would result in a grossly disproportionate sentence for some offenders in some situations.  When I consider these circumstances I am satisfied that the seriousness of the infringement overbears the benefit from the legislation.

[113]     Accordingly I find that the ss. 7(2)(b)(iv) and 7(3)(c) are invalid and I decline to apply them in the present circumstances before me.

[114]     In light of my decision about s. 12 of the Charter, and my conclusions relating to s. 1 of the Charter, it is unnecessary for me to consider Mr. Nguyen’s s. 7 arguments.