Court File and Parties

DATE: April 30, 2024 ONTARIO COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING — AND — ROMAN SYDOR

Before: Justice H. Borenstein

Heard on: April 19, 2024 Reasons for Judgment released on: April 30, 2024

Counsel: R. McSheffrey, for the Crown J. Lloyd, for Roman Sydor

BORENSTEIN J.:

[1]

Overview

Roman Sydor plead guilty to possessing psilocybin, a schedule 3 substance for the purpose of trafficking, contrary to the CDSA and to possession of $672.00 cash as proceeds of crime contrary to the Criminal Code.

2A store called FUN GUYZ was operating on the Danforth selling “magic mushrooms” or psilocybin in various forms such as dried mushrooms, pills and edibles where it is baked in cookies. On March 9, 2023, police obtained a search warrant for the store and executed that warrant a few days later. Roman Sydor was the only employee working in the store at the time. In the store were 533 grams of psilocybin in various forms including over 15 kilograms of edibles containing mushrooms. Most of the weight of the edibles was from the food ingredients. There were 821 psilocybin pills in in 201 bottles.

3Sydor, the employee, was the only one charged. I am told the police never bothered to find out who was on the lease or whose drugs these were. Sydor is 29 years old. He was born in Ukraine and came to Canada 12 years ago and became a Canadian citizen. He graduated high school and lives with his parents and sister. He has no criminal record. He worked for five years as a cook and then chef. For the last three years, he has worked making kitchen cabinets.

4At the time of this offence, he had taken a part time job at Fun Guyz and was making $15 an hour. He was told by a friend the store was legal and believed it. It is easy to see why. The store is operating openly as any other store in the heart of the Danforth. The defence acknowledges his belief it was legal is not a defence but submits is greatly mitigating. Sydor has not faced any other charges since his arrest last year.

[5]

Positions of the Parties

The Crown submits a six month conditional sentence of imprisonment is warranted arguing deterrence and denunciation are the animating sentencing principles. The Crown submits it is not seeking actual jail to reflect the mitigating circumstances, namely, that Sydor was just an employee, has no criminal record and has plead guilty.

[6] The Crown submits the following aggravating factors need to be reflected in the sentence.

• The store masquerades as a legal business
• There was over a half a kilogram of dried mushrooms and 800 pills
• Psilocybin is a hallucinogenic drug being sold with no quality control

7Mr. Lloyd, counsel for Mr. Sydor, submits a conditional discharge is the appropriate sentence, together with 160 hours of community service. He submits it is obvious Sydor was just a clerk in the store which the Crown accepts. He submits it is extremely mitigating that Sydor took this part time job believing it was legal. The police did not even seem to bother to find out who was on the lease or whose drugs these are. And he has no criminal record.

[8]

Sentencing Precedents

The Crown and defence both submitted cases.

9The Crown submitted R v. Day, a 2011 Ontario Superior Court (ONSC 1148) case and R. v. Jeaurond (ONSC 374), a 2018 Superior Court case.

10Day was sentenced to a 12 month conditional sentence of imprisonment. However, Day possessed an ounce of cocaine, four kilograms of marijuana for the purpose of trafficking, $1,050 of proceeds of crime and possession for the purpose of 385 grams of psilocybin. Day was also a trial, not a guilty plea thought he was considered remorseful. He had completed school and stayed out of trouble since his arrest.

11In Jeaurond, the accused plead guilty to possessing 28 kilograms of psilocybin for the purpose of trafficking, possessing and carelessly storing several unauthorized firearms and possessing $60,000.00 in proceeds of crime. All of these items were found in Jeaurond’s home, not a business in which she was merely the clerk. Even though Jeaurond’s boyfriend was the prime actor in these offences, she nonetheless allowed those items in her home for financial gain. Jeaurond had no criminal record and specific deterrence was not an issue. Jeaurond was sentenced to eight months in jail for the drug charges and three months concurrent for each of the firearms charges. That case is very different than the case at bar in scope, and quality.

12The defence relies on R. v. Garcia, an Ontario Court of Justice sentencing decision from 2024. Garcia, like Sydor, was an employee of the same store, Fun Guyz, in Niagara region.

13Garcia plead guilty to the same CDSA charge as Sydor. Like the case at bar, the Crown proceeded summarily and, like the case at bar, Garcia was the store clerk working in the store. Garcia, like Sydor, had no criminal record and had found employment after being charged. As for the amounts, in Garcia, there were 413 grams of psilocybin mushrooms seized 2520 microdose capsules, edibles with a total retail value of about $15,000. In the case at bar, there were 533 grams and 829 capsules. Justice Brown reviewed essentially the same aggravating factors noted here and many similar mitigating factors. In the end, he imposed a conditional discharge, two years probation on terms and 160 hours of community service.

Aggravating and Mitigating factors

[14]

Aggravating and Mitigating factors

The aggravating factors have been noted, both by the Crown and by Justice Brown in Garcia. By way of mitigation, the accused has plead guilty. He has no criminal record. He has been abiding by his release since his arrest one year ago without incident. He thought he was working legally. He was the low man in this operation. The police did not apparently care to see who was on the lease or behind this operation.

15Despite any need for denunciation and deterrence, those principles need not be emphasized in the sentencing. Mr. Sydor a 29 year old with no criminal record, who thought the job was legal and who has not re-offended since his arrest a year ago. This sentence will emphasize his future and rehabilitation.

[16]

Disposition

A conditional discharge is in Sydor’s interest and not contrary to the public interest in light of all the mitigating factors. I will not saddle him with a criminal record for this offence. Deterrence and Denunciation should be saved for those behind the store.

17He will be sentenced to a conditional discharge as sought by the defence. He will be placed on probation for one year. He will report today in person and thereafter by phone as required. He will keep the peace and be of good behaviour. He will perform 80 hours of community service to the satisfaction of his probation officer. There will be no other terms.

Signed: “Justice H. Borenstein” Released: April 30, 2024