Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2024 05 23 COURT FILE No.: 23 47100392 Hamilton

BETWEEN:

HIS MAJESTY THE KING

— AND —

MATTHEW FERGUSON

Before: Justice Amanda J. Camara

Heard on: November 28, 2023 and April 25, 2024 Reasons for Judgment released on: May 23, 2024

Counsel: Jesse Razaqpur, counsel for the Crown Jack Lloyd, Counsel for the defendant Matthew Ferguson

Camara J.:

Reasons for Judgment

[1] Matthew Ferguson pled guilty to being in possession of psilocybin for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act (CDSA) and possession of proceeds of crime contrary to section 355 (b) of the Criminal Code. He is before me today for sentencing.

[2] On behalf of the Public Prosecution Service of Canada, Mr. Razaqpur submits that a fit sentence is a 15-month custodial sentence and ancillary orders.

[3] Mr. Lloyd’s position is for a conditional discharge, and he is opposed to the imposition of the ancillary orders.

Circumstances of the Offence

[4] In December of 2022, the Major Drugs and Guns unit with the Hamilton Police Service entered into a CDSA investigation involving a business known as “The Mushroom Cabinet” operating out of 1459 Main Street East in the City of Hamilton. On December 13, 2022 police executed a CDSA section 11 search warrant at 1459 Main Street East. Upon entering the business police observed Jake Simopoulos standing behind the counter and directly behind six large jars that contained bulk psilocybin mushrooms. Police also observed large quantities of different forms of psilocybin behind glass cases all around the room and in the back storage room. Police observed a cash box behind the counter in close proximity to Simopoulos.

[5] A short time later a second male, Matthew Ferguson, attended the address and entered. Ferguson had previously been observed throughout surveillance at the business and is manager/owner of the business. Ferguson was arrested for CDSA 5(2) psilocybin and proceeds of crime under $5000. Ferguson was provided his rights to counsel and searched. He was found to be in possession of keys on a lanyard that stated “Fungi Finder”.

[6] Police searched the business and located the following:

• 350 grams of bulk psilocybin mushrooms valued at $5200.
• 270 grams of bulk psilocybin mushrooms valued at $4000.
• Various different edibles and capsules with a total amount of 157 grams of psilocybin valued at $2355.
• Drug packaging and stickers with the name “Fungi Finger” on them
• A digital functioning scale.
• Large quantity of business cards for “The Mushroom Cabinet”
• A posted list of chores for employees to do during opening and closing hours.

The controlled substances were seized by police.

[7] The total value of the psilocybin seized was $11,555, as per “The Mushroom Cabinet” website, and the total amount of cash seized was $1055.

[8] The court received testimony during the course of the sentencing hearing from Cara Shepard who is a toxicologist from the Center of Forensic Sciences. She provided the court with expert testimony regarding the nature and effects of psilocybin and related compounds. Ms. Shepard explained that when a person consumes psilocybin, that compound converts to psilocin. It is psilocin that creates the effects on the human body. Some of the desirable effects of psilocin include relaxation, euphoria, and giddiness. Psilocin can create sensory distortions including visual distortions, for instance colours are brighter and music is more intense. Psilocin can also have a hallucinogenic effect which means that a person may hear or see something that is not really there.

[9] Some of the physical effects of psilocin include nausea, vomiting, dilation of pupils, increased heart rate, increased blood pressure, dizziness, muscle weakness, and impaired coordination.

[10] In terms of physical toxicity, psilocybin is very different than other drugs such as fentanyl. Fentanyl is associated with overdose because of physical toxicity. Comparatively, psilocybin is considered safe when looking at physical toxicity. In other words, it is unlikely that someone would die from acute physical affects of psilocybin.

[11] Psilocybin is more dangerous when the adverse psychological affects are considered. Adverse psychological affects include anxiety, paranoia, panic, fear, confusion, disorientation and hallucinations. There is a danger that someone experiencing an adverse psychological reaction could impact a person’s behaviour. For instance, Ms. Shepard testified that there was literature that found that there were reports of people experiencing an adverse psychological reaction from psilocybin who injured themselves or who had an accident that led to their death. Ms. Shepard conceded that there was not a lot of research on the adverse reactions of psilocybin.

[12] On this point, the Crown filed two cases from the Supreme Court of Canada in which a person who had consumed magic mushrooms suffered extreme hallucinations and killed or harmed someone. In R v. Brown, 2022 SCC 18, Mr. Brown had consumed alcohol and magic mushrooms. Mr. Brown lost grip on reality and left the house. He was in a psychotic state and broke into the nearby house of a stranger and attacked the occupant. In R v. Sullivan, 2022 SCC 19, Mr. Sullivan had ingested magic mushrooms. He attacked his father with a knife and killed him and seriously injured his father’s partner.

[13] Psilocybin, or magic mushrooms, is consumed orally in the form of edibles, dried or fresh mushrooms, and brewed into teas.

[14] Currently, there is no approved medical preparation for psilocybin or psilocin in Canada. So although there may be an opportunity for someone to receive an exemption through Health Canada to permit them to possess psilocybin or psilocin, there are no approved pharmaceutical products in Canada with psilocybin.

Circumstances of the Offender

[15] Mr. Ferguson is 37 years old and a first-time offender. He was born in Cape Breton and moved to Ontario with his family when he was 6-months old. He is supported by his mother and his father. His father worked at the same company throughout Mr. Ferguson’s life and Mr. Ferguson enjoyed a very stable family life.

[16] Mr. Ferguson attended elementary school in Woodstock. He attended Georgian College for Sports Management. He needs one more credit to graduate. Unfortunately, the Covid-19 pandemic derailed his educational endeavours. Mr. Ferguson found himself out of school and in need of employment. He agreed to manage The Mushroom Cabinet.

[17] Mr. Ferguson had obtained a cannabis retail manager license and had agreed to manage a licensed cannabis shop in Woodstock. Because of these charges, he has since lost that license and lost that employment opportunity.

[18] Mr. Ferguson has an interest in archery and has been involved with archery events including volunteering to help youth learn about archery. One of Mr. Ferguson’s goals is to open an archery range.

[19] I have received two reference letters in support of Mr. Ferguson. One written by Mark Breslin who is the CEO and founder of Yuk Yuk comedy clubs and a second by Patrick Coppolino who is the manager of Levity Comedy Club & Lounge. Both letters speak to Mr. Ferguson’s character as a hardworking and dedicated individual who is a talented comedian.

Legal Principles and Analysis

[20] The fundamental purpose of any sentence for an offence under the CDSA and the Criminal Code is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation of offenders and acknowledging the harm done to victims and to the community.

[21] Sentencing judges attempt to achieve this goal by imposing just sanctions that address one or more of the traditional sentencing principles that are also contained in the CDSA. These include denunciation, general and specific deterrence, rehabilitation, making reparation to victims of crime, and promoting a sense of responsibility in offenders and an acknowledgment of the harm they have caused the community, and specific victims in our community.

[22] As Chief Justice Wagner noted in R v. Bissonnette, 2022 SCC 23, [2022] S.C.J. No. 23 at para 49:

The relative importance of each of the sentencing objectives varies with the nature of the crime and the characteristics of the offender (R v. Lyons, [1987] 2 S.C.R. 309 at p. 329). There is no mathematical formula for determining what constitutes a just and appropriate sentence. That is why this Court has described sentencing as a “delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community.

[23] There is a paucity of jurisprudence dealing exclusively with possession of psilocybin for the purpose of trafficking. Typically, charges relating to psilocybin are prosecuted along with charges relating to cocaine, fentanyl and weapons.

[24] One of the few reported cases which dealt with possession of psilocybin for the purpose of trafficking as a stand-alone charge is R v. Jeaurond, 2019 ONSC 374. Ms. Jeaurond had pled guilty to careless storage of firearms, unauthorized possession of firearms and possession of psilocybin for the purpose of trafficking. Ms. Jeaurond lived in a rural residence and had stored 28 kilograms of psilocybin mushrooms in the residence. There was also evidence of a psilocybin grow operation on the property. In a separate area of the residence police located a number of firearms. There was no evidence that the firearms were connected to the drug business. As a result the court conducted the sentencing analysis for possession of psilocybin as a stand-alone charge. The court noted as an aggravating factor that the psilocybin was being sold for profit which, the court held, heightened the importance of general deterrence. Specially the court stated that “when the law is broken in a deliberate fashion for profit, respect for the rule of law is undermined both for the offender and the wider society who learn from it” (R v. Jeaurond, 2019 ONSC 374, at para 81). In the end the court imposed a custodial sentence of 8-months for the count of possession of psilocybin for the purpose of trafficking.

[25] Mr. Ferguson possessed a smaller quantity of psilocybin than that possessed by Ms. Jeaurond but was blatantly selling the drugs in a store front in the City of Hamilton not storing it at a rural property like Ms. Jeaurond.

[26] In R v. Garcia, Unreported, March 15, 2024, the accused pled guilty to possessing psilocybin for the purpose of trafficking. Mr. Garcia was working inside a retail store that was selling psilocybin; he was neither the owner nor the controlling mind over the retail operation. A search of the retail store revealed 413 grams of psilocybin mushrooms and other edible items. Mr. Garcia was 35 years old and did not have a prior criminal record. The court imposed a conditional discharge with 2-years of probation.

[27] Mr. Ferguson was not just the clerk in the store but was the manager of the store which heightens his level of culpability compared to Mr. Garcia.

[28] The facts before me are distinguishable from the facts in R v. Marsden, 2019 ONCJ 303 where the offender had been convicted of possession for the purpose of trafficking cannabis. The court imposed a conditional discharge and in so doing reviewed the impact of the legislative changes respecting cannabis. In addressing the principles of sentencing, the court took into account the needs and current conditions in the community which obviously included that Parliament had decriminalized personal possession of cannabis and had created the Cannabis Act aimed at providing a legal avenue of purchase and to deprive criminal organizations of the revenue derived from cannabis sales. As far as this court is aware, there has not been a similar shift in the public’s perception of psilocybin nor has legislation been introduced to provide a legal avenue for people to purchase psilocybin. The case before me is not a situation where the sale of a particular drug is legal in certain circumstances and that the person charged was operating outside that legal framework. To the contrary, there are no legal avenues in Canada to purchase psilocybin.

[29] In determining the appropriate sentence for Mr. Ferguson, it is helpful to consider any relevant aggravating or mitigating circumstances that are presently at play. Listing the applicable aggravating and mitigating features assist me in evaluating this case properly and imposing a sentence that is just and appropriate.

[30] I view the following as aggravating factors the court is to consider:

1. There was a large amount of psilocybin located by the police including 620 grams of bulk psilocybin, edibles and capsules with a total of 157 grams of psilocybin. The total value of the psilocybin seized was $11,555.
2. This was a retail store front blatantly selling a schedule III substance for profit. There was public advertising which included a website associated to the store, drug packaging and stickers with the name Fungi Finder and business cards in the name of “The Mushroom Cabinet”. Staff were hired to work at the store and were given lists of chores to complete when the store opened and closed.
3. Mr. Ferguson was the manager of the retail store and was motivated by financial gain. The police seized $1055 in Canadian currency during their search of this store front.

[31] I view the following as mitigating factors the court is to consider:

1. Mr. Ferguson pled guilty. I accept his guilty plea and comments made during his allocution to be a sincere form of remorse. His guilty plea is a public acceptance of responsibility.
2. Mr. Ferguson has led a pro-social life up until this point and is actively involved in the community and volunteering to help youth learn archery. I understand that Mr. Ferguson is a talented comedian and has employment working at various comedy clubs. The possibility of a criminal record would impede Mr. Ferguson’s employment as a comedian because he would be unable to travel to the United States to perform.
3. Mr. Ferguson enjoys the support from his parents and sister.

[32] Counsel advised that Mr. Ferguson had obtained his Cannabis Retail Manager License and had a job managing a licensed cannabis shop in Woodstock. Because of the charges he has now pled guilty to, Mr. Ferguson has lost that license and that employment.

Conclusion

[33] Having considered the circumstances of the offence, the circumstances of the offender, relevant case law, and the submissions of counsel, I am of the view that the fit sentence for Mr. Ferguson is a 12-month custodial sentence that can be served in the community. A custodial sentence is necessary to address the principles of denunciation and deterrence. I agree with the defence submissions that a person cannot be made to suffer a grossly disproportionate punishment simply to send a message to discourage others from offending (R v. Nur, 2015 SCC 15, at para 45). But in this case, a custodial sentence is well within the range for a manager of a retail store blatantly selling, and advertising for sale, large amounts of a schedule III substance for profit, even for a first-time offender.

[34] I am of the view that that sentence can be served in the community. The safety of the community would not be endangered by permitting Mr. Ferguson to serve his sentence in the community.

[35] The terms of the 12-month conditional sentence are as follows:

1. Keep the peace and be of good behaviour.
2. Appear before the court when required to do so by the court.
3. Report to a supervisor within two working days and thereafter as required by the supervisor and in the manner directed by the supervisor.
4. Remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and
5. Notify the court or the supervisor in advance of any change of name or address and promptly notify the court or the supervisor of any change of employment or occupation.
6. You are to reside at an address approved of by your supervisor and do not change that address without obtaining the consent of the supervisor in advance.
7. For the first 6 months of the conditional sentence order you are to obey a house arrest condition and remain in your residence or on the property associated with your residence at all times except: (a) Between 12 -5pm every Thursday in order to acquire the necessities of life (b) For any medical emergencies involving you or any member of your immediate family (c) For going directly to and from or being at school, employment, court attendances, religious services, legal, medical or dental appointments (d) For going directly to and from and while being at any assessment, treatment or counselling sessions (e) For going directly to and from and while performing community service hours (f) With the written approval of the supervisor. The written approval must be carried on your person during these times. (g) For carrying out any legal obligations regarding compliance with this conditional sentence order.
8. You must present yourself at your doorway upon the request of your supervisor or a peace officer for the purpose of verifying your compliance with your home confinement condition.
9. You are not to possess any weapons as defined by the Criminal Code.
10. You are to complete 100 hours of community service to be completed at a rate and schedule to be directed by the supervisor officer.

[36] Section 5(2) of the CDSA is a secondary designated offence. In my view it is in the best interest of the administration of justice to make the order having regard to the circumstances of the commission of this offence. Pursuant to section 487.051 of the Criminal Code, I order that you provide samples of bodily substances reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act.

[37] I will also impose a section 109 order for 10 years under section 109(2)(a) and for life under section 109(2)(b).

[38] You will have 12-months to pay the victim fine surcharge.

Released: May 23, 2024 Signed: Justice Amanda J. Camara