Jodie Giesz-Ramsay v. Registrar, Alcohol and Gaming Commission of Ontario Act, 2019, 2023 CanLII 7284

Licence Appeal Tribunal

Date: 2023-02-03

Appeal from the Notice of Proposal by the Registrar, Alcohol and Gaming Commission Act, 2019 to Refuse Licence under the Cannabis Licence Act, 2018, S.O. 2018, c.12, Sched. 2

Between:

Jodie Giesz-Ramsay

Appellant

and

Registrar, Alcohol and Gaming Commission of Ontario Act, 2019

Respondent

DECISION AND ORDER

Adjudicator: Kevin Lundy, Member

Appearances:

For the Appellant: Jack Lloyd, Counsel

For the Respondent: Aviva Harari, Counsel

Observers: Rena Khan (Counsel for Respondent) Alexandra McVittle (Respondent Articling Student) Ellen Egar (Respondent Records Clerk) Ashley An (Respondent Observer) Dragana Rakic (Respondent Observer) Bruce Stanton (Tribunal Member) Rupinder Hans (Tribunal Member)

Heard by Teleconference: January 24 and 25, 2023

REASONS FOR DECISION AND ORDER

OVERVIEW

1On July 7, 2022, the Registrar, Alcohol and Gaming Commission of Ontario Act 2019 (the 'respondent') issued a Notice of Proposal to Refuse Licence as a Cannabis Retail Manager ('NOP') to Jodie Giesz-Ramsay (the 'appellant') pursuant to section 5(6)(b) of the Cannabis Licence Act, 2018, S.O. 2018, c. 12, Schedule 2 (the 'Act').

2The respondent takes the position that there are reasonable grounds to believe that the appellant will not, in acting as a cannabis retail manager, act in accordance with the law, or with integrity, honesty or in the public interest, having regard to her past conduct.

3On August 9, 2022, the appellant filed a Notice of Appeal ('NOA') with the Licence Appeal Tribunal (the 'Tribunal'). The appellant maintains that her criminal record and related past conduct do not warrant disentitlement to registration and requests that the Tribunal direct the respondent to set aside the NOP and to grant the application for a licence as a cannabis retail manager subject to appropriate terms and conditions.

ISSUE

4The issue to be determined on this appeal is whether the respondent has established that there are reasonable grounds to believe that the appellant will not, in acting as a cannabis retail manager, act in accordance with the law, or with integrity, honesty or in the public interest, having regard to her past conduct. If I am satisfied that there are reasonable grounds to believe that the appellant will not act in accordance with the law and with honesty and integrity, then I must decide the appropriate outcome, whether to order the Registrar to refuse a licence or to grant a licence with conditions. I am not bound by the respondent's position on outcome as set out in the NOP.

RESULT

5For the reasons set out below and pursuant to sections 15(2), (3) and (4) of the Act, I substitute my opinion for that of the Registrar, set aside the NOP and direct the Registrar to issue a cannabis retail manager licence to the appellant without conditions.

THE LAW

6Pursuant to paragraph 1 of section 5(4)(a) of the Act, an applicant is not eligible to be issued a cannabis retail manager licence where there are reasonable grounds to believe that the applicant will not, in acting as a cannabis retail manager, act in accordance with the law, or with integrity, honesty or in the public interest, having regard to the past or present conduct of the applicant. Section 5(5) of the Act provides that the above provision does not prevent the issuance of a cannabis retail manager licence to an applicant if the applicant has been convicted of or charged with a prescribed offence under the Controlled Drugs and Substances Act (the 'CDSA') in relation to cannabis.

7Section 5(6) of the Act requires the Registrar to consider every application for a cannabis retail manager licence, and either issue the cannabis retail manager licence if the applicant has met the application requirements, is not ineligible to be issued a cannabis retail manager licence and has paid the required fee; or issue a proposal to refuse the application.

8Section 15 empowers this Tribunal to hold the hearing and may direct the Registrar to carry out the NOP or substitute its opinion for that of the Registrar and attach any conditions to its order or to a licence.

PRELIMINARY ISSUES

Income Tax Arrears

9The NOP included an additional basis for refusing the appellant's application for licence as a cannabis retail manager, specifically that as the date of the NOP, she had an outstanding balance owing to the Canada Revenue Agency from 2019. However, as of the date of the hearing, this balance had been paid in full and the respondent confirmed that this issue no longer represented a concern or bar to licencing.

Admissibility of Proposed Expert Report of Neil Boyd

10The appellant intended to rely upon a document written by Professor Neil Boyd and sought to have him qualified as an expert on criminology and rehabilitation. Subsection 15(1) of the Statutory Powers Procedure Act permits the Tribunal to admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court, any oral testimony and any document or other thing, relevant to the subject-matter of the proceeding and may act on such evidence but may exclude anything unduly repetitious.

11Having considered the testimony of the witness on his qualifications and experience as well as the submissions of counsel, while I agree that while he may well be qualified as an expert in criminology, he described little to no experience with respect to administrative law or licencing. He did not address the issue of rehabilitation while under examination by either counsel or in the proffered report and although he has a bachelor's degree in psychology, his experience relates more to public policy. His expertise in criminology and related public policy would have greater relevance to the government's choice to enact cannabis licencing legislation than an analysis of whether this specific appellant is likely to reoffend. However, the government's public policy decisions that underpin the legislation that it creates are not an issue before this Tribunal. As such, Professor Boyd's opinion is irrelevant and would simply repeat the appellant's evidence clothed in the mantle of expert opinion.

12A careful assessment of the appellant's own evidence and that of the other lay witnesses would provide far more cogent information regarding the issue before me, specifically whether there are reasonable grounds to believe that the appellant will not act in accordance with the law and with honesty and integrity if licenced. As a result, although he could be qualified as an expert in criminology, that expertise is not relevant to the issue before this Tribunal. The report and the witness' anticipated testimony on criminal law and sentencing principles would serve only to usurp the role of the Tribunal itself, charged with deciding whether if granted a licence as a cannabis retail manager, the appellant would comply with the terms of that licence and with the Act and regulations. This is the issue for consideration by the Tribunal in the present hearing de novo. As a result, I declined to qualify Professor Boyd as an expert in a relevant field that would be necessary to assist in deciding the issue before me. As the tendered report contains only legal argument, it was excluded as irrelevant and unduly repetitious to the appellant's own submissions.

EVIDENCE AND ANALYSIS

13The appellant has been a long time advocate for the legalization of cannabis and since 1994 has been involved in public efforts to remove the prohibitions against its possession and use. Prior to the legalization of cannabis in October 2018, she and her then husband, Mark Emery ('M.E.'), operated illegal cannabis dispensaries under the brand, "Cannabis Culture."

14Former Toronto Police Services officer, Chris Bently, offered background context to the respondent's refusal to issue a cannabis retail manager licence to the appellant. Starting in 2016, the Toronto Police Service had become aware of a large number of illegal dispensaries operating in the City of Toronto. At that time, it was not legal to sell cannabis through storefront locations or otherwise. The day after police shut down numerous dispensaries in Toronto, the first Cannabis Culture dispensary opened and began selling cannabis. The appellant gave a press conference indicating that she and others would continue to open dispensaries following any subsequent police closures. To that end, on the day following the execution of search warrants on the primary Cannabis Culture storefront, approximately thirteen new locations promptly opened not only in Toronto but across southern and eastern Ontario and Montreal, with the headquarters based in Vancouver. In response to the resumption of illicit cannabis trafficking, the Toronto Police Service initiated Project Gator, lead by Chris Bently.

15M.E. created Cannabis Culture initially as a newsletter and later a "head shop" for the sale of cannabis related paraphernalia such as rolling papers and bongs with the organization eventually becoming a corporation operating through multiple subsidiaries. He also operated a business selling seeds with which the appellant was not involved. While M.E. was incarcerated in the United States in 2010, the appellant assumed operational control of the business. The appellant was also the sole director of a company called J. Emery Holdings Ltd., also known as 0883466 BC Ltd. J. Emery Holdings in turn operated 0883467 BC Ltd., which was originally M.E.'s "Cannabis Culture Headquarters." The appellant confirmed that the dispensaries already began making payments into this holding company. She explained that this entity also represented her method at the time for paying herself a weekly salary for her retail and media activities as an alternative to payroll but has since shut this down as payroll allowed her to better manage her taxes.

16On March 9, 2017, Project Gator concluded when officers executed search warrants at various storefront locations for Cannabis Culture, as well as the residences of the appellant and M.E. and franchise owners, Erin Goodwin, Chris Goodwin and Britney Guerra. Officers seized documents and a substantial amount of cannabis and cash as well as assorted equipment related to cannabis use. The appellant, M.E., and the above franchise operators were all arrested and charged with various offences under the CDSA and the Criminal Code of Canada (the 'Code').

17Documents seized in the course of the raid demonstrated that Cannabis Culture represented a sophisticated and highly lucrative franchise model for the illegal sale of marijuana, with the anticipation of Cannabis Culture dispensaries operating all across Canada. According to the facts agreed at the guilty plea, the corporation sold franchises for an initial fee of $25,000.00, although this amount could vary depending on the agreement with a particular franchisee. Franchisees were also required to pay $3,000.00 per month in marketing fees, as well as royalty fees paid to the corporation at six per cent of the gross income generated by the dispensary up to ten per cent of net sales, again depending upon on the specific agreement between the franchisee and the franchisor.

18The corporation covered the sales and payroll taxes and issued all invoice payments and payroll cheques for employees. It was also responsible for promoting the dispensaries and guarantees that M.E. would appear at a franchisee's store for the grand opening. Individual owners then operated their own location, hired their own employees and were required, as part of the franchise agreement, to cover the legal costs and have a lawyer on retainer, should any of the employees be arrested. According to the franchise agreement, franchisees agreed to sell Cannabis Culture merchandise, which was distributed by the corporation itself. Similarly, the Cannabis Culture Corporation maintained the right to ensure quality control over all the products sold. At the hearing, the appellant explained that this represented the business plan for future franchising but maintained that no contracts had yet been signed by the time that Project Gator shut down operations. This was substantially confirmed by Chris Bently, who testified that officers found only handwritten notes during their raid of Cannabis Culture but no formal contracts.

19Each of the Cannabis Culture storefronts sold marijuana for profit. At the hearing, the appellant confirmed that Cannabis Culture did not purport to limit sales to those with a medical need or pursuant to a prescription. Rather, their mandate was simply to sell marijuana and marijuana products to anyone over the age of nineteen. Each dispensary owner was responsible for acquiring the marijuana and marijuana products to sell at their dispensary. As there was no legal producer of cannabis available at that time, product was obtained entirely from illicit sources.

20Prior to her arrest on March 9, 2017, the appellant was actively involved in promoting the dispensary franchises via social media and other media outlets. In addition, after the earlier execution of the search warrants at various locations across Canada, they actively assured customers that Cannabis Culture locations would reopen and personally attended at those re-openings. Bently readily acknowledged that the appellant's prolific postings on social media affected the ease of the investigation into her involvement within the organization. He also agreed that his knowledge of her activities was at least in part attributable to her public statements and admissions.

21On December 18, 2017, the appellant plead guilty to one count of possession of a Schedule II controlled substance (marijuana) for the purpose of trafficking, contrary to subsection 5(2) of the CDSA and one count of possession of proceeds of crime over $5,000.00, contrary to subsection 354(1) of the Code. She received a $150,000.00 fine ($75,000.00 for each count), two years probation as well as a mandatory weapons prohibition. As with her lengthy period on judicial interim release (bail) prior to her guilty plea, she complied with all terms of her probation and incurred no further charges. She had no prior or subsequent criminal charges or convictions.

22When the appellant submitted her application for a licence as a cannabis retail manager, she acknowledged the above convictions and sentence and provided the respondent with a copy of the transcript of the guilty plea proceedings on December 18, 2017.

23Michael Dowlat ('M.D.') is an intelligence analyst employed by the respondent with a background as an eligibility officer in the gaming industry, working primarily with assorted bingo halls in the Greater Toronto Area. He conducted an open search on the internet with respect to the appellant and compiled a report of his findings that essentially consisted of various screen captures related to her activities, including various public events after her conviction in 2017. At the hearing, he played a video recording of a post dated November 4, 2022 in which the appellant urged the public to participate in the legislative process by completing an online questionnaire offered by the federal government for public input on how to reform and improve the existing legislation on legalization and regulation. In the same post, she encouraged interested parties to access the video and written text of her own testimony and submissions to the House of Commons committee in 2017.

24While M.D. was somewhat vague in his testimony with respect to the criteria he employed to cherry-pick various items from the internet and elsewhere that he deemed relevant, as Diane Pace ('D.P.) never viewed the contents of his report in the course of her own decision making process on behalf of the Registrar, I assign his evidence little to no weight. That having been said, as the present matter is a hearing de novo, the evidence was nonetheless presented in support of the respondent's position. At its highest, the appellant's conduct as described by M.D. largely amounts to the appellant urging the public to engage in lawful grassroots advocacy directed at the provincial and federal legislatures through the public consultation process on the issue of cannabis legalization. Lawful participation in the democratic process cannot equate to reasonable grounds to believe that the applicant will not act in accordance with the law, or with integrity, honesty or in the public interest.

25D.P. has served as the Manager of Cannabis Eligibility since legalization began in 2018. She provided an overview of the application and investigation process. Following confirmation that an application has been filled out completely and sufficient details have been included in response to all required questions, the Ontario Provincial Police ('OPP') conduct background checks while external consultants perform due diligence investigations. While D.P. described the scope of the external consultant's investigations as similar to that performed by M.D. involving an applicant's credit and tax history and social media information, the results of this investigation with respect to the appellant were neither disclosed to the appellant nor submitted as evidence at the hearing. As a result, part of the information that contributed to the total evidence upon which D.P. relied in her analysis remained unknown.

26By contrast, Steven Hurst ('S.H.'), testified to his investigation on behalf of the respondent as an OPP officer and an eligibility officer for the Registrar. He conducted an eligibility review with respect to the appellant's application that included criminal and driving records checks, credit history checks and open source and social media investigations. He also conducted a telephone background interview with the appellant in December 2020. He confirmed that the appellant answered all of his questions and did not obfuscate at all. He described her as "very upfront, open and honest" with him regarding her past and present involvement with the cannabis legalization movement and her ongoing activism. While he necessarily offered no opinion to D.P. regarding registration, she confirmed that she considered the contents of his report, along with other collected evidence.

27The Goodwins and Britney Guerra all plead guilty on the same date and to the same charges as the appellant and all expressed remorse upon sentencing. Unlike the appellant, at least some of the other defendants had criminal records before December 18, 2017. Yet the applications for licencing as retail cannabis managers for the Goodwins and Britney Guerra were approved while the appellant's application was denied. D.P. explained that she assesses each application on its individual merits and, with respect to applicants with convictions under the CDSA or the Code, she considers the age and involvement of the applicant and severity and duration of the offences, consistent with established standards in other regulated industries such as gaming and liquor.

28D.P. explained that unlike the Goodwins and Britney Guerra, who were part-owners and essentially salespersons at their illegal storefronts, the respondent viewed the appellant to have a greater moral culpability as she acted in a directing capacity much like a chief executive officer for the Cannabis Culture organization. Both parties essentially agreed that M.E. did not receive a licence due to his significantly more extensive criminal record and ongoing tax arrears.

29D.P. confirmed that the respondent had no concerns with non-disclosure by the appellant and acknowledged that her act of volunteering the transcript of her guilty plea and sentence demonstrated honesty. While the respondent would have almost inevitably obtained the details of her plea in any event, the appellant provided the transcript unsolicited and did not thereby compel S.H. to hunt it down. No new information was unearthed through the due diligence investigation that the appellant did not freely offer at the outset. As well, D.P. acknowledged that the appellant is not statutorily barred from registration by paragraph 2 of section 5(4) of the Act as she has not been charged or convicted of any offence under the Cannabis Control Act, 2017 or the federal Cannabis Act.

30The role of cannabis retail manager is a highly regulated position. As a regulated industry in Ontario, the provision of cannabis retail operations requires that the utmost honesty and integrity be demonstrated by a licensed cannabis retail manager in order to maintain the confidence of the public in the regulation of cannabis retail operation. D.P. expressed concern that based upon her past public statements advocating resistance to lawful restrictions and enforcement, if licenced, the appellant may simply choose to disregard a provision of the Act or Regulations with which she disagrees.

31In Ontario (Alcohol and Gaming Commission of Ontario) v. 751809 Ontario Inc., 2013 ONCA 157, the Ontario Court of Appeal found that as a standard of proof, "reasonable grounds for belief" is lower than the "balance of probabilities." It requires more than mere suspicion and an objective basis for the belief based upon compelling and credible information. At paragraph 29, the Court also noted that when examining past conduct, the registrar is not limited to the operation of licensee's business and may consider both criminal and noncriminal conduct. Further, according to CS v. Registrar, Real Estate and Business Brokers Act, 2002, 2019 ONSC 1652, there must be a nexus between the appellant's past conduct and his or her ability to conduct business under the Act serving the interests of the public. In the present case, the respondent noted that the appellant's convictions are industry specific in that she deliberately violated the law in the same industry in which she now intends to be regulated.

32The appellant emphasized that if she received a licence, she would comply with any terms and conditions including regular reporting as well as the Act and Regulations. She also expressed no issue with the requirement to purchase cannabis exclusively from the Ontario Cannabis Store and noted the health and safety benefits of doing so as unregulated illicit sources could pose serious risks to consumers.

33The appellant acknowledged that during the period that she operated the illegal dispensaries, she was aware that the federal Liberal government was moving towards legalization. However, she emphatically maintained that the franchise operation shut down in 2017 represented a model of how an efficient and responsibly managed and regulated dispensary system could look post-legalization. That said, there was no dispute that she knowingly and deliberately engaged in a course of conduct that she was aware to be illegal.

34She described her actions prior to her arrest as "public civil disobedience" to illustrate the effects of laws that she regarded as outdated and punitive through her own arrest, as well as to promote a workable model to the government and the general public for adult legal cannabis sales, including age limits, regulations and blurred windows. To that end, she operated her business in a transparent manner and invited the public, government and law enforcement to observe her model to better demonstrate its potential effectiveness. She compared her dispensary model to the contemporaneous operations by Uber and Airbnb in the transportation and hospitality industries, which were similarly unlicenced at the time but ultimately entered the legal and regulated markets. The distinction was that Cannabis Culture offered a model of adult use separate and apart from medical use which was then moving into the legal environment.

35These actions were combined with running as a candidate in elections, attending public media events and engaging in other advocacy towards reforming the laws against cannabis possession and use in place at the time. Even then she had expressed an intention to operate her business as a legal dispensary but did not wait for the legislation to change despite substantial involvement in the parliamentary consultation process undertaken by both the province and the federal government on changes to the relevant legislation. It was her hope that the government would permit illicit operations such as Cannabis Culture to transition into legal regulated outlets.

36The appellant acknowledged that her chosen method of delivering that model to the public through illicit means was "unwise" in hindsight and she repeatedly expressed regret for her actions. She also stated that she understands the difference between disagreeing with a given law and breaking it and now appreciates that her former methods were both wrong and ultimately impractical given the police raids and her conviction.

37At the hearing, she repeatedly expressed remorse for her actions. As well, as the sentencing judge noted on December 18, 2017, a defendant's decision to plead guilty to a criminal offence has long been acknowledged by the courts as a traditional sign of remorse. Ironically, D.P. expressed a rejection of this interpretation of remorse as a mitigating factor in her own assessment of the facts on the grounds that she personally disagrees with it.

38While the appellant expressed a continued belief in the libertarian principles that motivated her actions, she confirmed that she would never again engage in illegal practices to accomplish her objectives given that her arrest and conviction caused significant disruption to her life and will continue to do so for some time. While she may well continue to engage in public discourse to recommend improvements to various policies, she would do so legally as she plans to transition to operating in the legal industry. She emphasized that she would comply with any and all requirements and responsibilities of a licence, including terms that would require regular reporting of any criminal or regulatory charges, just as she fully complied with her terms of bail and probation.

39Although the appellant emphasized that her purpose in opening Cannabis Culture related to civil liberties rather than selling marijuana for illicit profit, the documents seized by police through Project Gator portrayed a highly lucrative business model. As a result, the respondent took the position that the appellant chose not to wait for the impending legalization and opened Cannabis Culture when she did largely to gain a jumpstart over potential competitors for the substantial demand in the market for recreational use.

40I do not find that the objectives of civil disobedience are necessarily incompatible with capitalism or that the efficiency of the appellant's model undermines her claims of principled resistance to the former prohibitions. Similarly, the appellant's apparent aptitude for entrepreneurship in and of itself does not equate to evidence that she will not act in accordance with the law, or with integrity, honesty or in the public interest if licenced. In light of the appellant's public and transparent actions, that her model would have generated significant income relates more to its likely efficiency and financial success as a regulated business than evidence of a propensity for illicit motivation or subterfuge.

41The respondent also suggested that the appellant was motivated more by profit than civil rights or altruism having opted not to distribute cannabis under an existing medical regulatory scheme. However, as the appellant noted, the medical cannabis program that had been in place at the time had been struck down by the Federal Court in Allard v. Canada in 2016, 2016 FC 236, [2016] 3 FCR 303. As a result, I make no adverse inference from the appellant's failure to limit her business to medical use since this was also illegal at the time.

42The appellant submitted several letters of support from various members of the community. These included a senior lawyer involved in the legalization process in British Columbia, a fellow activist and medical cannabis resource operator, two Members of Parliament and the executive director of Cannabis Amnesty. All expressed praise for the appellant's efforts to reform the legislation and confidence that she would conduct herself with honesty and integrity should she receive a licence. However, as none of the authors of these letters testified at the present hearing, I assign little weight to this evidence.

43I find that to assign these documents the same evidentiary value as direct testimony without allowing the respondent any means of cross examining the declarants on the basis of their statements or qualifications to provide them would be unduly prejudicial under the circumstances. While section 15(1) of the SPPA permits admission of unsworn hearsay statements and allows the Tribunal to assign it the appropriate probative weight, for the evidentiary concerns I have outlined, I would assign this evidence substantially reduced probative weight. To the extent that the letters of support from members of Parliament are probative, they tend to support the pro-social aspect of her activism and democratic engagement. In the case of the letter from the senior lawyer, I agree with the respondent that this letter should be accorded no weight at all since, like the excluded report from Prof. Boyd, it consists solely of legal argument rather than any evidence that may assist the Tribunal with its decision.

44The respondent emphasized that it considered totality of each applicant's conduct including not only the fact of convictions but the circumstances surrounding them. In this case, the appellant's repeated defiance in the face of police raids on the dispensaries, and the sophistication of her franchise model all caused concern that she cannot be reasonably governed by terms or conditions. As well, D.P. noted that no convictions were necessarily acceptable or solely determinative of refusal.

45In Ontario (Registrar of Motor Vehicle Dealers and Salesman) v. Clermont, [1974] O.J. No. 1028 (Ont. Sup. Ct., H.C.J.), the Ontario Supreme Court held that a single action may in certain cases support refusal of registration and that an ongoing course of conduct or multiple convictions are not mandatory. As the Court explained at paragraph 7, "past conduct...may in certain circumstances consist of one isolated mistake, if it is of such a nature and in circumstances that there are reasonable grounds for belief that the person applying to be registered would not carry on business in accordance with law and with integrity and honesty."

46Similarly, while the appellant completed her sentence several years ago and has not re-offended, the respondent relied upon the Tribunal decision in Lisa Marie Devoe o/a M.E. Convenience v. Registrar, Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996, 2019 CanLII 101534 at para. 19 (ON LAT) ('Devoe'). In Devoe, the Tribunal found that the mere passage of time since the conduct of concern may not cure the troubling past conduct. However, I note significant differences between the facts in Devoe and the present case. In Devoe, the appellant's convictions involve fraud and a breach of trust, not only against her employer, H & R Block, but also against those customers who provided the firm with their personal information for the preparation of their tax returns. Ms. Devoe not only devised a scheme to defraud her employer but used her access to her customers' personal information to carry out her fraud. By contrast, in the present case, the appellant consistently operated openly with no attempt to deceive or avoid apprehension.

47Lastly, the respondent relied upon the Ontario Divisional Court's decision in Ontario v. Mander, 2018 ONSC 1795 ('Mander'), which echoed the respondent's concern that the appellant will not accede to regulatory enforcement. I find that this case is also readily distinguishable from the situation before me. While the respondent reiterated its concern over Ms. Giesz-Ramsay's somewhat bombastic rhetoric when she vowed to boldly re-open Cannabis Culture stores in the face of enforcement, her defiant conduct ceased immediately with her arrest. By contrast, even by the date of his own appeal to Divisional Court, Mr. Mander remained subject to an outstanding arrest warrant in Calgary for his failure to appear in court. As noted above, the appellant in the present case fully complied with all conditions of her release and completed her sentence without incident long before submitting her application for licencing. Since the date of her conviction, she has devoted her time to legal endeavours centering around cannabis legalization and responsible regulation. While the respondent repeatedly noted that the best predictor of future performance is the appellant's past conduct, her change of perspective following arrest and present commitment to complying with enforcement must also factor into the totality of the relevant circumstances.

48Ultimately, I find that in light of all of the evidence, the respondent has failed to demonstrate that there is reasonable grounds for belief that the appellant will not, in acting as a cannabis retail manager, act in accordance with the law, or with integrity, honesty or in the public interest, having regard to her past conduct. Her past conduct has been defined by transparency in her engagement with law enforcement and the disclosure requirements of the licence application process. While her past contact with the criminal justice system was serious, she never sought to obfuscate or conceal her objectives and readily accepted the consequences of her actions. In addition, her compliance with the terms of her release and sentence combined with her pattern of transparency indicates a high probability that she will comply with the terms of a licence as a retail cannabis manager.

49On the issue of terms and conditions, the appellant suggested that reporting conditions would be appropriate and readily agreed to comply with any terms or conditions that the Tribunal deemed fit to impose. However, there must be some rational nexus between the terms imposed and some articulable concern held by the Tribunal based upon the evidence. The appellant did not propose any specific terms and the respondent took the position that no licencing would be appropriate, opting not to explain whether any terms or conditions would protect the public in the event that the Tribunal chose to set the NOP aside. The respondent did not submit any evidence that the appellant could not or would not comply with a specific regulation on her licence or with the requirements of any of the duties and responsibilities of a retail cannabis manager as set out in the Act and the Regulations. In consideration of all of the evidence and the appellant's transparent and forthcoming engagement with respondent throughout the licencing process, I find that the imposition of terms and conditions would therefore be arbitrary. As a result, no terms or conditions are ordered.

ORDER

50Pursuant to sections 15(2)(a), 15(2)(b) and 15(3) of the Act, the Tribunal substitutes its opinion for that of the Registrar, orders that the NOP refusing to issue a cannabis retail manager licence to the appellant be set aside, and pursuant to section 15(4) of the Act, directs the Registrar to issue a cannabis retail manager licence to the appellant without conditions.