Mandatory Minimum Ruled Unconstitutional


[56]           For all these reasons, I am satisfied that ss. 7(2)(b)(v) and (vi) violate s. 12 of the Charter. The remaining issue is whether these provisions can be justified pursuant to s. 1 of the Charter. This issue is relatively straightforward in light of Nur and Lloyd. In R. v. Nur, supra at paras. 116-118, the majority held that s. 95 of the Criminal Code did not meet the minimal impairment or proportionality branches of the Oakes test because “there are less harmful means of achieving the legislative goal” and because the finding of “gross disproportionality” meant that the Court could “not find that the limits are a proportionate justification under s. 1.” In R. v. Lloyd, supra at paras. 3, 36, and 49, the majority repeatedly referred to the usefulness of a statutory exemption from mandatory minimum sentences, as a “safety valve that would allow judges to exempt outliers … [in] exceptional cases.” The majority cited the widespread use of this legislative technique, in conjunction with minimum sentences, in other free and democratic countries. The majority referred to Parliament’s failure to make use of this available legislative tool in its analysis of the s. 1 “minimal impairment” issue:

Parliament’s objective — to combat the distribution of illicit drugs — is unquestionably an important objective: R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, at p. 141. This objective is rationally connected to the imposition of a one-year mandatory minimum sentence for the offence of possession for the purpose of trafficking of Schedule I drugs.  However, the law does not minimally impair the s. 12 right.  As discussed above, the law covers a wide array of situations of varying moral blameworthiness, without differentiation or exemption, save for the single exception in s. 10(5) of the CDSA. The Crown has not established that less harmful means to achieve Parliament’s objective of combatting the distribution of illicit drugs, whether by narrowing the reach of the law or by providing for judicial discretion in exceptional cases, were not available. Nor has it shown that the impact of the limit on offenders deprived of their rights is proportionate to the good flowing from their inclusion in the law. [Emphasis added.]

In my view, the same reasoning applies to the present Charter application.

[57]           In conclusion, the 2 year mandatory minimum sentence enacted in s. 7(2)(b)(v) violates s. 12 of the Charter and is not justified under s. 1. It is, therefore, of no force or effect pursuant to s. 52.

E.        SENTENCING IN THIS CASE

[58]           Having found that the applicable 2 year and 3 year mandatory minimum sentences are unconstitutional, the only remaining issue is determining a fit and appropriate sentence in this case.

[59]           The principles of sentencing are set out in ss. 718, 718.1, and 718.2 of the Criminal Code and in s. 10(1) of the C.D.S.A., and I am bound by those principles. The most fundamental principle is “proportionality,” as set out in s. 718.1, namely, that the sentence must be proportionate to “the gravity of the offence and the degree of responsibility of the offender.” None of the statutory aggravating circumstances set out in s. 10(2) of the C.D.S.A. apply in this case.

[60]           As noted previously, the Crown’s position is that 8 months to 2 years less a day was the appropriate range of sentence for a first offender who cannot be proved to have been more than a gardener in a large commercial marijuana grow-op. Given certain aggravating features in this case, the Crown situates Pham at the 18 month to 24 month top end of that range. This was said to be the range prior to the 2012 amendments. Mr. Morlog goes on to submit that the 2012 amendments have increased the maximum sentence from 7 years to 14 years and, as a result, the appropriate sentence has now increased to a range of 2 years to 3 years imprisonment for a case like this.

[61]           Ms. Schofield, on behalf of the defence, takes the position that a sentence well outside the normal range should be imposed in this case, in light of certain exceptional mitigating features. She submits that a suspended sentence and probation is the appropriate sentence. In the alternative, she submits that a 90 day intermittent jail sentence and probation should be imposed. The probationary terms should be restrictive, including a curfew, but should also be restorative, focusing on treatment of Pham by a psychiatrist and/or by the Hong Fook Society where counselors speak the Vietnamese language.

[62]           In my view, the aggravating circumstances in the present case include the following:

  •                   This was a large sophisticated commercial grow-op where the sole motivation for the operation was profit. The marijuana being grown had very significant value in the illegal market place. The operation had been ongoing for about a year. The case has none of the altruistic, compassionate or non-commercial aspects seen in cases involving medical marijuana;
  •                   There was significant danger to the public as the operation was located in a high-rise apartment building with numerous immediate neighbours. Inside the unit, obviously dangerous open electrical connections were apparent amongst the proliferation of loose wires. In addition, substantial amounts of potentially toxic mold were found on the walls. The case is quite different from small grow-ops in the basement or back yard of a detached home or in the fields or outbuildings of a rural property;
  •                   There was significant damage to property associated with the grow-op. A large pile of soil was on the living room floor, the apartment must have been contaminated by the mold, large amounts of dirt had accumulated, electrical wiring had been modified, and drywall had been cut out in order to install an electrical box and to install venting. There must have been significant costs incurred by the landlord in order to restore the property, once the grow-op was dismantled.

[63]           On the other hand, the mitigating circumstances include the following:

  •                   Pham is a first offender with a family of dependents, including two children. She has worked her whole life at a lawful occupation. There is no suggestion that she is a risk to re-offend;
  •                   Pham has undoubtedly suffered as a result of being caught and successfully prosecuted. She is currently diagnosed with depression and post-traumatic stress disorder and she is under the care of a psychiatrist. These disorders apparently did not exist prior to her arrest;
  •                   Pham’s role in the operation was admittedly not that of a leader or organizer. She was probably some kind of hired gardener and caretaker. She certainly did not have the means or the sophistication to be running the operation or to own and distribute the large quantities of marijuana. However, I am satisfied that she had an active role in the operation;
  •                   Her case has been delayed through no fault of her own. She has been on bail for some 3½ years, without incident, complying with some restrictive terms such as a curfew. See R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 205 C.C.C. (3d) 488 (Ont. C.A.). The trial judge’s illness and the constitutional application have caused 1½ years delay in the sentencing proceedings, subsequent to the jury verdict. I am sure these post-conviction delays have exacerbated Pham’s anxiety and have caused her ongoing uncertainty. See: R. v. T.M.B. (2013), 299 C.C.C. (3d) 493 at para. 74 (Ont. S.C.J.).

[64]           The sentencing case law dealing with large sophisticated commercial marijuana grow-ops, like this one, stresses the fact that this particular kind of crime is rationally planned and premeditated. Significant amounts of time, money, preparation, and planning must have gone into the operation that was set up in unit 1006 at 2755 Jane Street. This is the kind of criminal activity that is particularly amenable to, and that requires, emphasis on the sentencing principles of denunciation and deterrence. In addition, the Court of Appeal has repeatedly stressed the “prevalence” of this offence, and the “serious risks” associated with it, as relevant considerations. See: R. v. Tran (2005), 2005 CanLII 3937 (ON CA), 194 O.A.C. 278 (C.A.);  R. v. Ha, 2006 CarswellOnt 9770 (S.C.J.), aff’d 2008 ONCA 749 (CanLII); R. v. Nguyen, 2007 ONCA 645 (CanLII); R. v. Nguyen, 2013 ONCA 51 (CanLII).

[65]           I do not agree with the Crown’s submission that 18 to 24 months was the appropriate range for a case like the present one, prior to the 2012 amendments. The Crown relies on R. v. Nguyen, supra (the 2007 case) and R. v. Nguyen, supra (the 2013 case), while conceding that the actual sentences imposed in both of these cases were below the Crown’s suggested range. In the first of the two Nguyen decisions, the Court of Appeal upheld a 15 month sentence for a female co-accused who went to trial in a case involving a large commercial grow-op, while commenting that the sentence was “somewhat high” but not “outside the range.” In the second Nguyen decision, the Court of Appeal imposed an effective sentence of 12 months in a case involving a large commercial grow-op where a 15 month sentence was treated as appropriate but where the accused was entitled to a reduction of about 3 months in mitigation because of an early guilty plea. The only appellate authority supporting an 18 to 24 month range of sentence is R. v. Ha, supra where an 18 month sentence was upheld in a case where the accused was the principal who was in charge of a large commercial grow-op. Even granting some effect to the increased maximum sentence, resulting from the 2012 amendments, the appropriate range of sentence cannot simply be increased in a mechanical fashion by adding a year or more, as if it were a new minimum sentence. In my view, the increased maximum sentence is a legislative signal that the offence is to be treated more seriously.

[66]           I also do not agree with the defence submission that a suspended sentence or 90 day intermittent sentence would be appropriate. Conditional custodial sentences, prior to the 2012 amendments, were repeatedly held to be “rare” and were only imposed in cases involving smaller scale grow-ops, where there was less concern about danger to the public, or where some extraordinary personal circumstances existed. See, e.g., R. v. Jacobson, 2006 CanLII 12292 (ON CA), [2006] O.J. No. 1527 (C.A.). The significant aggravating circumstances in this case, in my view, require a custodial sentence beyond the intermittent range. See, e.g., R. v. Vu, [2002] O.J. No. 5361 per Blacklock J.

[67]           It is particularly difficult to determine an appropriate length of custodial sentence in this case, given that the aggravating and mitigating circumstances are relatively evenly balanced. The size and sophistication of the operation, the risk to the public, and the role of the accused are similar to the two Nguyen cases where 15 month sentences were held to be appropriate. On the other hand, the mitigating circumstances in the present case justify a shorter sentence. In particular, the delay in sentencing the accused, the lengthy period on bail, and Pham’s somewhat fragile mental state lead me to the conclusion that a 10 month custodial sentence would be long enough to achieve the goals of denunciation and deterrence but not so long as to crush her.

[68]           The 10 month custodial sentence is to be followed by an 18 month period of probation on the statutory terms, as well as a term requiring psychiatric counseling through the Hong Fook Society, as recommended by Dr. Gojer and Ms. Schofield.

[69]           The Crown requests two anciliary orders, both of which are granted: a s. 109 firearms prohibition Order for 10 years, which is mandatory; and a forfeiture Order in relation to the grow-op equipment, which is justified.

[70]           I would like to thank all counsel for their assistance in this interesting case.

M.A. Code J.

Released: September 1, 2016

Citation: R. v Pham, 2016 ONSC 5312 (CanLII), <http://canlii.ca/t/gt77b>, retrieved on 2016-09-06
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