ONTARIO COURT OF JUSTICE DATE: 2024 07 23 COURT FILE: Toronto 22-10006740
BETWEEN:
HIS MAJESTY THE KING
— AND —
FABRICIO OSORES
SENTENCING JUDGMENT
Before Justice Brock Jones
Heard on July 5, 2024 Written Reasons Provided on July 23, 2024
L. Precup-Pop....................................................................................... counsel for the PPSC W. Jaksa.............................................................................................. counsel for Mr. Osores
Jones J.:
Introduction
[1] On November 12, 2022, a business named Shroomyz operated at 488 Queen Street West in Toronto. The store marketed itself as a “magic mushroom” dispensary. Similar businesses have appeared in other parts of Ontario in the last few years.
[2] Shroomyz, like these other businesses, dispenses products containing psilocybin, a controlled substance under Schedule III of the Controlled Drugs and Substances Act (“CDSA”). There are virtually no legal means to obtain these products in Canada. Advocates tout their purported medical benefits and suggest the law has left these businesses attempting to fill a vacuum. Customers may purchase the products for any reason, however, including recreational use.
[3] These businesses thus share a common element that lies at the centre of this case: they are illegal drug trafficking operations.
[4] Fabricio Osores was employed at Shroomyz as a retail clerk. Following a lawfully executed search warrant on November 12, 2022, he was arrested and charged with possession of a Schedule III substance for the purpose of trafficking (CDSA section 5(2)) and possession of proceeds of crime over $5000 (Criminal Code section 354(1)).
[5] On July 5, 2024, he pleaded guilty to both charges. The Crown proceeded summarily. I heard sentencing submissions from the parties and reserved my decision. These are my reasons.
Background Facts
[6] The parties filed an agreed statement of facts in support of the guilty pleas. I have made some slight modifications to these facts for narrative purposes.
[7] On Saturday, October 29th, 2022, Toronto Police Service (“TPS”) officers became involved in an investigation regarding a commercial premise located at 488 Queen St. W, Toronto, named Shroomyz. Officers investigated the business over a two-week period, after which it was determined to be appropriately characterized as a potential site of illegal drug activity. Several complaints from the community were also received.
[8] The business did not conceal the product they were selling and had a complete website with product menus and pricing. An image of the front of the business was provided with the agreed statement of facts and is reproduced in this judgment.
[9] On Friday, November 11th, 2022, officers were granted a CDSA search warrant for Shroomyz. On Saturday, November 12th, 2022, at 19:05 hours, TPS officers from 14 Division executed the search warrant and located two men inside. One was Mr. Osores. Both men were arrested.
[10] Officers searched the premises and located a large quantity of psilocybin and psilocybin edible products. They also located proceeds of crimes. These were seized and included the following (weight in grams):
- Gummies: 10,500.12g
- Oil: 4000g
- Tea: 269.35g
- Dried goods: 1,026.90g
- Pills: 1,657.08g (1,574.00 pills in total)
[11] The total weight of the products was over 17.4 kilograms. A portion of that weight is attributable to packaging.
[12] The total value of the cash seized was $17,177.90.
Background of the Offender
[13] Mr. Osores was 20 years old at the time of the offences. He has no prior criminal record.
[14] At 15, he was forced out of his home by his parents, who disapproved of his lifestyle choices, including his desire to pursue a career in the music industry. After two years without a permanent residence, he nevertheless finished high school. Due to this achievement, his grandmother allowed him to live with her.
[15] Before his arrest, he had been working at another business at 488 Queen St. West. This is the same commercial building that housed Shroomyz. He became friendly with the employees and ultimately secured a position for himself.
[16] He did not know the business was illegal and had only been working there for two weekends before the police executed the search warrant and arrested him.
[17] Mr. Osores hopes to advance his career in the music industry. This requires him to travel periodically to the United States, where there are far greater opportunities.
[18] Several character letters were submitted on Mr. Osores’s behalf. The authors speak to his professionalism, industriousness, and commitment to his work projects in the sound recording and music business. They also comment on his kindness and integrity. However, none of the authors specifically commented on the drug trafficking allegations or demonstrated they were aware of the facts underlying this resolution. The letters focus on his need to travel to Florida where studio sessions take place. [1]
Positions of the Parties
[19] Ms. Precup-Pop submits that a six-month conditional sentence order (“CSO”) is necessary to reflect the sentencing principles of deterrence and denunciation. Dispensaries have been appearing in various cities across Ontario. This is becoming a problem, driven by the very lucrative nature of these illegal businesses, and the situation calls out for sentences that will send a message that they are unlawful and participants will face meaningful consequences.
[20] While the harmful effects of psilocybin continue to be studied, she rejects any suggestion that the state of these businesses is somehow akin to the legally ambiguous character of marijuana dispensaries prior to the decriminalization of cannabis. There is simply no mainstream discussion of legalizing psilocybin at present.
[21] Mr. Jaksa submits his client should receive a conditional discharge. He was young, perhaps naïve, and had only worked at this location for two weekends. He was paid an hourly wage but did not enjoy any of the business's profits.
[22] He pointed me to the ongoing debate about the harmful vs. beneficial effects of psilocybin. It is a Schedule III substance and nothing like Schedule I substances such as cocaine, and I should tailor my approach to sentencing accordingly.
[23] The collateral consequences of a conviction may be significant for his client. However, he accepted that even a conditional discharge might result in difficulty for Mr. Osores crossing the border into the United States.
Psilocybin and Its Adverse Effects
[24] There are three ways a person can theoretically obtain and use psilocybin legally at present. First, one could participate in a clinical trial. Second, one can request an exemption under the Controlled Drugs and Substances Act. Third, one can apply to Health Canada's Special Access Program. The latter two options require a recommendation from a doctor and government approval.
[25] While a person can theoretically receive an exemption through Health Canada to permit them to possess psilocybin or psilocin, there are no approved pharmaceutical products in Canada containing psilocybin. It is, for all intents and purposes, only available illegally.
[26] In R. v. Ferguson, 2024 ONCJ 252, Justice Camara summarized the potentially adverse consequences of consuming psilocybin after hearing expert testimony. She wrote at paras. 9 – 11:
Some physical effects of psilocin include nausea, vomiting, dilation of pupils, increased heart rate, increased blood pressure, dizziness, muscle weakness, and impaired coordination.
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 effects of psilocybin.
Psilocybin is more dangerous when the adverse psychological effects are considered. Adverse psychological effects 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.
[27] The consumption of psilocybin has been linked to violent conduct. In R. v. Brown, 2022 SCC 18, the appellant consumed alcohol and magic mushrooms. It provoked “psychotic, delusional and involuntary conduct” and left the appellant in a psychotic state: see para. 4. He caused permanent injuries to his victim. In R. v. Sullivan, 2022 SCC 19, the appellant Chan voluntarily ingested magic mushrooms and subsequently attacked his father with a knife and killed him: see para. 1.
Applicable Sentencing Law
[28] Section 10 of the CDSA states that “[t]he fundamental purpose of any sentence… is to contribute to the respect for the law and maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and the community.”
[29] A sentence must be proportionate to “the gravity of the offence committed and the degree of responsibility of the offender”: R. v. Suter, 2018 SCC 34 at para. 4; Criminal Code section 718.1. Sentencing is a highly individualized process that must consider the offender’s personal circumstances and degree of moral blameworthiness: see R. v. Parranto, 2021 SCC 46, at paras. 16 and 40.
[30] Section 718.2(a) of the Criminal Code requires that a "sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender." The following aggravating factors are present in this case:
- The quantity of psilocybin products was over 17 kg;
- The proceeds of crime were over $17,000;
- Shroomyz had a retail store front on a busy street in downtown Toronto openly selling an illegal substance with colourful advertising. They also had a publicly available website; and
- The products had no warning labels, were not approved by any government agency, and could cause users unintended harm.
[31] There are also important mitigating factors:
- Ms. Osores is a young man with no prior criminal record;
- He was employed as a clerk, not a manager or owner;
- He pleaded guilty and expressed remorse;
- He is presently employed; and
- Several character letters were filed on his behalf.
[32] Generally speaking, when sentencing a youthful first-time offender, a court should focus on the sentencing principles of specific deterrence and rehabilitation: see R. v. Priest (1996), 110 CCC (3d) 289 (Ont. C.A.) at pp. 543-44. General deterrence should have limited if any, application.
[33] Additionally, sections 718.2(d) and 718.2(e) codify the restraint principle, which holds that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered.
[34] The test for a discharge is contained in Criminal Code section 730(1):
- The court must be satisfied that it is in the best interests of the accused; and
- The court must be satisfied that it is not contrary to the public interest that the accused receive a discharge.
[35] In R. v. Suter, 2018 SCC 34, the Supreme Court held that sentencing courts should also examine the collateral consequences of a sentencing decision. A collateral consequence includes “any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender”: see para. 47. Relevant collateral consequences include the sentence’s potential impact on the offender’s employment prospects and the ability to travel internationally.
[36] In R. v. Taylor (1975), 24 C.C.C. (2d) 551, the Ontario Court of Appeal held that a discharge is appropriate when an offence seems “out of character” or that the offender was struggling with “mental turmoil or some unusual disturbance in his life’s routine”: see p. 552. The Alberta Court of Appeal held that a discharge should be imposed when a crime is an “aberration attributable to stimuli that will probably never exist” in the future: see R. v. Turner, 2022 ABCA 11, at para. 38.
[37] Ms. Precup-Pop placed great emphasis on the need for deterrence in her submissions. In R. v. Smart-James, 2022 ONSC 3711, Justice Campbell noted that a discharge has some deterrent effect. However, a court should consider that discharges and convictions should be seen as “occupying different positions on a scale of reproach” when considering the principle of proportionality: see para. 24.
Prior Decisions Regarding the Sale of Psilocybin
(i) R. v. Jeaurond, 2019 ONSC 374
[38] Ms. Jeaurond pleaded guilty to careless storage of firearms, unauthorized possession of firearms and possession of psilocybin for the purpose of trafficking. She lived in a rural residence and stored 28 kilograms of psilocybin mushrooms in the basement of the residence. They were valued at between $30,750 and $61,500. There was also evidence of a psilocybin grow operation on the property. The large quantity was deemed to be an aggravating factor: see para. 82.
[39] Justice Leroy noted that the psilocybin was being sold for profit, which heightened the importance of general deterrence. His Honour wrote that “when the law is broken in deliberate fashion for profit, respect for the rule of law is undermined both for the offender and the wider society who learn from it”: see para. 81.
[40] A sentence of 8 months in jail was imposed.
(ii) R. v. Garcia, unreported, March 15, 2024 (OCJ)
[41] The accused worked in a retail store called “Fun Guyz” selling psilocybin in St. Catharine’s. He was 35 years old with no prior criminal record. He was present when a search warrant was executed. The police located a large quantity of products, but far less than the amount seized in this case. They did not find any proceeds of crime.
[42] The offender pleaded guilty to one count of possession of a Schedule III substance for the purpose of trafficking.
[43] Justice Brown held that “selling drugs of this sort invites, at best, the perception to the public that either such products are lawful, when they are not, or that such illegal sales of products in the community are of no concern or consequence to the police”: see. para. 106. The court also noted that the drugs sold were not subject any form of quality control leaving the very real possibility of “unexpected harm” to consumers.
[44] After carefully analyzing Mr. Garcia’s circumstances, Justice Brown granted a conditional charge. However, the court noted that there were “unique mitigating circumstances,” and his decision was not meant to suggest that custodial dispositions would not otherwise be appropriate cases of a similar nature: see para. 111.
(iii) R. v. Sydor, 2024 ONCJ 215
[45] The 29-year-old offender pleaded guilty to possessing psilocybin for the purpose of trafficking and possession of $672.00 cash as proceeds of crime. He worked as a retail clerk at another “Fun Guyz” in Toronto. It advertised itself as offering “magic mushrooms” and similar products.
[46] The police executed a search warrant and located Mr. Sydor as the lone employee. 533 grams of psilocybin were located. The products took various forms, including over 15 kg of edibles.
[47] He had no prior criminal record. Justice Borenstein granted a conditional discharge, including 80 hours of community service. Regarding the Crown’s arguments, he wrote that “[d]eterrence and denunciation should be saved for those behind the store”: see Sydor at paras. 15-16.
(iv) R. v. Vagenos, 2024 ONCJ 254
[48] The offender pleaded guilty to five counts, including possession of psilocybin for the purpose of trafficking, possession of proceeds obtained by crime, and failure to comply with an undertaking.
[49] On July 6, 2023, the Hamilton police executed a search warrant for a store called “The Mushroom Cabinet.” Mr. Vagenos was working behind the counter. Officers located a large quantity of psilocybin in various products and over $1,000 in cash.
[50] Mr. Vagenos was ultimately released on an undertaking that required him to stay 100 metres away from the store.
[51] On July 26, 2023, the police re-attended the store and located Mr. Vagenos behind the counter again. The display cases had been re-stocked. Upon arrest, the police found over $1,000 in cash in his wallet. This violated a term of the undertaking he was placed on after his first arrest.
[52] He was 45 years old with four children. He had no prior criminal record. He experienced severe sexual abuse as a child, which the court found contributed to ongoing and lifelong mental health challenges.
[53] Garg J. sentenced the offender to a conditional discharge with 30 months of probation and a requirement to complete 180 hours of community service.
(v) R. v. Ferguson, 2024 ONCJ 252
[54] The offender pleaded guilty to possession of psilocybin for the purpose of trafficking and possession of proceeds of crime. He was the store manager of The Mushroom Cabinet, where Mr. Vagenos was employed.
[55] On December 13, 2022, Hamilton police officers executed a CDSA search warrant. They located 350 grams of bulk psilocybin mushrooms valued at $5200, 270 grams of bulk psilocybin mushrooms valued at $4000, various edibles and capsules with a total amount of 157 grams of psilocybin valued at $2355, and $1055 cash.
[56] Ferguson was 37 years old with no prior criminal record. Justice Camara found that the store was “blatantly selling a schedule III substance for profit” as an aggravating factor. The court held that a 12-month CSO was required, given Mr. Ferguson’s degree of moral culpability.
Analysis
[57] Mr. Osores is a young man. He has excellent rehabilitative potential. However, this was a blatantly illegal drug trafficking operation masquerading as a legitimate business. The storefront involved a large, colourful display. There was a website advertising its contents.
[58] Reasonable people can disagree about whether psilocybin should remain illegal to possess. What no one can do is choose which laws they wish to obey and disregard those they feel are unjust. Parliament has decided that the risks and potential harms associated with psilocybin justify the prohibition on its sale and consumption. It lies within Parliament’s jurisdiction to make that determination.
[59] Mr. Osores was involved in illegal commercial activity. Law-abiding citizens who see this type of store operating in public so brazenly must wonder how it can be allowed to continue and why those involved appear to escape accountability. I find this business's open and notorious features to be extraordinarily aggravating. Everyone associated with one of these stores is informing the community that they are intentionally selling controlled substances in clear defiance of the law. Presumably, the owners are knowingly taking on whatever risk exists because the financial rewards are evidently so great.
[60] In that regard, I respectfully disagree with Justice Garg, who did not find that using a public storefront is an aggravating factor in these cases. At para. 14 of Vagenos he wrote that “a storefront that only sells psilocybin is less harmful to the community than a roving drug dealer who offers psilocybin amongst their panoply of offerings.” I am greatly concerned that by operating a retail storefront and having a website through which Canadians can access these products, confusion may arise not only about whether the products are legal but whether they are safe and reliable. Consumers may wrongly assume that if this business can operate so publicly, its products may have been formally approved and are, therefore, at least subject to some kind of government-sanctioned quality-control process. They are not. [2]
[61] Those most vulnerable to this deception and misinformation are children, teenagers, and young adults who may be seduced by the business’s advertising and marketing, which goes to great lengths to appear legitimate. While the front door to Shroomyz stated it was “19+,” I heard no evidence that customers were screened or that any cautions were provided to warn consumers of the potentially adverse effects of the products or their illegal status. The images of the products introduced as evidence on the plea contain nothing that constitutes such a warning. Essentially, I am left to wonder if the purported good intentions of those involved in an unregulated, criminal industry that is centred around selling hallucinogens are sufficient to protect the underage and the uninformed. I have no faith that is the case.
[62] If one buys illegal drugs from a “roving drug dealer” who operates with subterfuge, one knows the risk of these transactions. There is no suggestion that the sale is lawful nor that the products are safe. Illegal businesses such as Shroomyz are designed to provide a veneer of respectability to what is, at its core, a dangerous and unlawful enterprise.
[63] To be clear, I do not find that Mr. Osores sold psilocybin products to an underage customer or personally deceived anyone during his brief time at the store. No evidence was presented of that. Nor is he directly responsible for the store’s outward appearance or advertising. I am, nevertheless, greatly concerned that the public nature of these businesses has a corrosive effect on the respect for the rule of law and sows confusion surrounding their legality and trustworthiness.
[64] Indeed, when he addressed the court, Mr. Osores stated he didn’t know the store was illegal, demonstrating why this is such a severe concern. Yet even if that were initially true (and I am deeply skeptical of this claim), an employee who spent many hours immersed in the business would be, at a minimum, wilfully blind to its true nature after enough exposure to its inner workings. The exterior of the building boasts that entrants can “walk into a new reality.” The images of the interior of the business are littered with references to “magic mushrooms,” a variety of products with suggestive titles, and neon and brightly lit advertising. The police located envelopes stuffed with cash. Any rational adult would begin to ask questions once enveloped in this culture.
[65] It is, furthermore, a foundational principle of the criminal justice system in Canada that ignorance of the law is no excuse.
[66] Mr. Jaksa is correct to note that his client did not have a hand in the business's profits and that he was undoubtedly not an owner or manager. His limited role as a retail clerk must be considered, placing him on the lower end of the spectrum of moral culpability: see Prosecuting and Defending Drug Cases, Second Edition (Toronto: Emond Publishing, 2024), at 271. However, it does not shield him from responsibility for his actions. The Ontario Court of Appeal has long made clear that those who become involved in the illegal drug business, even in limited roles such as couriers, must face significant sentences: see R. v. Wellington. [3] The role of low-level participants remains essential to the illegal drug trade, as those who are ultimately in control and operate behind the scenes do not wish to take the risk of being caught themselves. As Ms. Precup-Pop correctly stated in her submissions, these businesses cannot survive without willing participants such as Mr. Osores.
[67] In this regard, I also respectfully disagree with Justice Borenstein, who held that deterrence and denunciation should not be emphasized in the sentencing of retail clerks in these cases: see Sydor at paras. 15-16. All participants in illegal drug trafficking must know that they will be appropriately held accountable if they are convicted. Thus, general deterrence must be considered in this case, even if given diminished weight because Mr. Osores is a first-time offender who was not more heavily involved in the business.
[68] Furthermore, it is not mitigating that Mr. Osores may have believed he was helping some customers by selling these products: see Vagenos at para. 15. The personal motivations of those participating do not alter the fact that the trafficking of psilocybin is a criminal offence.
[69] I place limited weight on the character letters. While they are quite complimentary about Ms. Osores’ work ethic in the music industry, the authors do not indicate they were aware of his role in this enterprise: see R. v. Ruthowsky, 2024 ONCA 432, at paras. 165-7.
Conclusion
[70] The case law surrounding magic mushroom dispensaries is still developing. To the extent that the legality of these businesses remains unclear to those who would become involved with them, in its 2022 decision of R. v. Brown, the Supreme Court put it succinctly: psilocybin is an illegal drug: see para. 15. Anyone employed at, managing, or owning such a business is engaged in criminal activity.
[71] Advocates for change to our drug laws can pursue lawful means to achieve their goals. They cannot decide to disregard a statute they disagree with. That is outright contempt for the rule of law.
[72] Balancing all the factors in this case and recognizing Mr. Osores’s guilty plea and limited role in this business, I impose a CSO of 60 days followed by a year of probation. He is ordered to complete 100 hours of community service. It would be contrary to the public interest to grant a discharge. In my view, such a disposition would not place adequate weight on Mr. Osores’ intentional participation in a commercial drug trafficking operation. I do not accept that the collateral consequences of Mr. Osores facing increased difficulty crossing into the United States for a longer period of time than he would face if discharged renders this outcome disproportionate.
[73] Had Mr. Osores’ involvement at the store been for a more substantial period of time, I would have been inclined to agree with the position taken by Ms. Precup-Pop. I agree this case meets the criteria for a CSO contained in section 742.1 of the Criminal Code and a jail sentence is not required. However, jail sentences will be entirely appropriate in other cases where an accused person’s involvement is greater than that of Mr. Osores or other aggravating factors exist.
[74] Furthermore, if these stores continue to proliferate, and the prevalence of this criminal activity grows in the community, the more courts should emphasize deterrence and denunciation in their sentencing decisions: see R. v. Lacasse, 2015 SCC 64, at para. 154.
[75] A weapons prohibition order is mandatory under section 109(1)(c) of the Criminal Code. I impose a ten year order where I have discretion.
[76] The victim fine surcharges are imposed and I grant Mr. Osores six months to pay.
Released: July 23, 2024 Signed: Justice Brock Jones
[1] The letters reference “legal challenges” Mr. Osores is facing in a general sense. [2] https://www.canada.ca/en/health-canada/services/substance-use/controlled-illegal-drugs/magic-mushrooms.html [3] The appellant was convicted of importing two kg of hashish into Canada, which I appreciate was objectively a far more serious offence than Mr. Osores’. Nevertheless, this principle of Wellington still has a broader application.