Aug 1, 2018

R. v. Vu, 2018 ONCA 436 - Summary

R. v. Vu, 2018 ONCA 436 (CanLII)

The Court of Appeal for Ontario invalidates more of the mandatory minimum sentences associated to the unauthorised production of cannabis in the Controlled Drugs and Substances Act, as well as the statutory aggravating factor if "the production constituted a potential public safety hazard in a residential area".

Of note is the Court's useful review of the analytic framework of s. 12 of the Canadian Charter (par. 19-24), which provides a quick summary of the applicable principles.

To find s. 7(2)(b)(v) unconstitutional, the Court relies on the reasonable hypotheticals of "a mistaken licensee or minimally involved helper". (par. 74) This remains an important part of all s. 12 analyses, since an error of law is not a defence in Canada because of s. 19 of the Criminal Code. Is is however mightily relevant to the moral blameworthiness of an offender, requiring that it be in some way taken into account. This is usually done at the sentencing stage, something that a mandatory minimum sentence prevents. This is an especially important line of reasoning with the looming partial legalisation, a likely source of mistakes of law in the future.

The invalidity of s. 7(3)(c) of the Controlled Drugs and Substances Act, the statutory aggravating factor if "the production constituted a potential public safety hazard in a residential area", is based on the fact that "[t]he inherent seriousness of the offence of large-scale marijuana production cannot justify a mandatory one-year increase in penalty based on an aggravating circumstance about which an accused has no culpable mens rea." (par. 49). The Court as such again relies on moral blameworthiness. Alternatively phrased by the sentencing judge, it is unconstitutional "because s. 7(3)(c) would capture cases where an accused was not at fault in relation to the potential public safety hazard – either because the accused was unaware of the potential public safety hazard or had exercised due diligence in trying to prevent it." (par. 42). Since "ss. 7(2)(b)(vi) and 7(3)(c) impose a mandatory additional year of imprisonment where the offender may lack fault completely in relation to the circumstances on which the Crown relies to justify the mandatory increase in penalty", (par. 46) they infringe s. 12.

The Court also rejects the Crown suggestion to read down the impugned sections by inserting "if the production is for the purpose of trafficking" as a condition to the mandatory minimums, as is included in ss. 7(2)(b)(i) and (ii). It does so because the issue was improperly newly raised on appeal (par. 89), because it was expressly excluded by Parliament, given that it did include it in the lesser mandatory minimums (par. 90-91), because "[i]t is also far from obvious that reading down is generally an appropriate remedy for unconstitutional mandatory minimums" (par. 92), and because it would not correct the issues raised by the reasonable hypotheticals (par. 93).

Finally, applying similar reasons, the Court also finds that s. 7(2)(b)(iii) is unconstitutional (par. 116-117).

Though this judgement is not really novel in its approach, it does remind us of the necessity to stop letting the mandatory minimum sentences issue linger in our courts. It eats away needlessly at the scarce resources of the system, with the accused bearing the notably financial weight of the contestations. A legislative intervention is beyond needed.