L. Precup-Pop

The Crown appealed a conditional discharge imposed on the respondent, an employee at an illegal psilocybin storefront, who pleaded guilty to possession for the purpose of trafficking and possession of proceeds of crime.

Police seized over 126 kg of psilocybin.

The Superior Court of Justice found the sentencing judge erred in principle by suggesting the respondent might not have known the enterprise was illegal, which contradicted the essence of his guilty pleas.

The appeal court also found the conditional discharge demonstrably unfit given the large quantity of drugs and the need for denunciation and deterrence.

The appeal was allowed and the sentence varied to a suspended sentence.

The applicants, members of First Nations operating unlicensed cannabis dispensaries on reserves, brought a constitutional challenge against the federal Cannabis Act.

They argued that the licensing requirements infringed their aboriginal, treaty, and inherent rights under section 35 of the Constitution Act, 1982 and UNDRIPA.

The Superior Court of Justice dismissed the application, finding no evidentiary basis for an aboriginal right to trade cannabis, as the plant is not indigenous to Canada and was not historically traded by the Anishinaabe.

The court also found no treaty right to sell cannabis, noting that historic treaties did not contemplate such trade and any hypothetical right was extinguished by criminal prohibitions enacted in 1923.

Finally, the court held that the legislation did not violate the applicants' inherent rights under UNDRIPA, as the retail sale of cannabis is not an aspect of indigenous identity.