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SENTENCING - Controlled drugs and substances - Maximum or minimum sentence available

Thursday, June 21, 2018 @ 9:53 AM  

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Appeals and cross-appeals involving three offenders, Vu, Li and Pham, challenging the mandatory minimum sentencing provisions for unauthorized production of marijuana. Vu and Pham each faced a three-year mandatory minimum sentence for residential marijuana grow operations in the amount of 1,020 and 1,110 plants respectively. Li faced a mandatory one-year minimum sentence for a 475-plant residential marijuana grow operation. Prior to sentencing, each of the convicted parties sought a declaration that the mandatory minimum sentence provisions infringed s. 12 of the Charter. In the case of Vu, the sentencing judge struck down the provisions of the Controlled Drugs and Substances Act imposing mandatory minimum sentences based on operations of five to 201 plants and the aggravating factor of a public safety hazard in a residential area. The mandatory two-year minimum based on operations exceeding 500 plans was upheld and imposed on Vu. In the case of Pham, the sentencing judge struck down the same provisions as in Vu, but also struck down the mandatory two-year minimum. Pham accordingly received a ten-month sentence. In the case of Li, the sentencing judge declined to strike down the mandatory minimum sentence provision for operations of between 200 and 501 plants and imposed the mandatory minimum 12-month sentence. Both the Crown and Vu appealed the Vu sentence. The Crown appealed the Pham sentence. Li appealed her sentence.

HELD: Crown's appeals dismissed; Vu's appeal dismissed as moot; Li's appeal allowed. Under ss. 7(2)(b)(vi) and 7(3)(c) of the Controlled Drugs and Substances Act, an additional year of imprisonment was mandated for growing marijuana in a residential area. As the sentencing judge in Vu observed, the existence of a potential public safety hazard was not inherent in a grow operation in a residential area. In the absence of evidence of such hazard, the imposition of additional imprisonment where an offender may completely lack fault was grossly disproportionate and infringed s. 12 of the Charter. In the Pham case, the declaration of unconstitutionality of s. 7(2)(b)(v) was supported by three reasonable hypotheticals of licensing infractions that illustrated the possibility of a grossly disproportionate sentence. The sentencing judges in Pham and Vu did not err in finding the infringements could not be saved by s. 1 of the Charter. The Vu appeal was moot by virtue of completion of the sentence imposed. With respect to Li, the hypotheticals considered in Pham applied equally to a 475-plant grow operation, resulting in a declaration of invalidity regarding s. 7(2)(b)(iii) of the Controlled Drugs and Substances Act. Li's 12-month sentence was set aside and replaced with a six-month sentence.

R. v. Vu, [2018] O.J. No. 2482, Ontario Court of Appeal, J.M. Simmons, K.M. van Rensburg and I.V.B. Nordheimer JJ.A., May 10, 2018. Digest No. TLD-June112018009