ONTARIO COURT OF JUSTICE

CITATION: R. v. Carroll, 2019 ONCJ 133

DATE: 2019 03 12

COURT FILE No.: Halton 17-0531

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Robert CARROLL

Before Justice David A. Harris

Heard on January 31, 2018, January 31, 2019

Reasons for Sentence released on March 12, 2019

Mark Miller............................................................................................. counsel for the Crown

Jack Lloyd........................................................ counsel for the defendant Robert Carroll

D.A. Harris J.:

[1] Robert Carroll pled guilty to possession of marihuana (less than 3 kilograms) for the purpose of trafficking. This offence occurred on February 14, 2017 in Burlington.

[2] This is an indictable offence.

[3] Mr. Carroll is before me today to be sentenced.

[4] Crown counsel suggested that I should impose a fine of $5000.

[5] Counsel for Mr. Carroll suggested that I should grant him an absolute discharge.

[6] Both agreed that I should order the forfeiture of certain things, including money and prepaid credit cards that were seized by the police.

[7] I find that a fine of $5000 is the appropriate sentence.

[8] My reasons for this are set out under the following headings:

(1) The law regarding conditional discharges,

(2) The fundamental purpose and principles of sentencing,

(3) The facts underlying the offence,

(4) The background of Mr. Carroll, and

(5) Analysis.

CONDITIONAL DISCHARGE

[9] Section 730(1) of the Criminal Code provides that:

Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for 14 years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

[10] There is no minimum sentence here. The offence is not punishable by imprisonment for 14 years or life.[^1] So I can grant Mr. Carroll a conditional discharge if I consider it to be in his best interests and not contrary to the public interest.

[11] Crown counsel did not argue that a discharge would not be in Mr. Carroll’s best interests.

[12] With respect to the second half of this test, I note that Mr. Carroll does not have to satisfy me that a discharge is in the best interests of the general public, only that it is not contrary to the public interest.[^2]

[13] In Regina v. Sanchez-Pino, the Ontario Court of Appeal stated that:

16 ….. In my view, the primary purpose of Parliament in enacting that section was to provide that an individual, although found guilty of what may loosely be described as a "less serious" offence, would not have a conviction recorded against him in all cases. In other words, he would not "have a criminal record" as a result of the occurrence.

17 The trial Judge in this case was right in saying that the guide-lines are meagre. The section does not apply to corporations, nor to offences for which a minimum sentence is prescribed, nor to offences punishable, in the very proceedings, by imprisonment for 14 years or for life or by death. The granting of some form of discharge must be "in the best interests of the accused". I take this to mean that deterrence of the offender himself is not a relevant consideration, in the circumstances, except to the extent required by conditions in a probation order. Nor is his rehabilitation through correctional or treatment centres, except to the same extent. Normally he will be a person of good character, or at least of such character that the entry of a conviction against him may have significant repercussions. It must not be "contrary to the public interest" to grant some form of discharge. One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a like offence -- a standard part of the criteria for sentencing.

18 Obviously the section is not confined to "simple cases of possession of marijuana". It is not confined to any class of offences except to the extent I have noted. On the other hand, it is only common sense that the more serious the offence, the less likely it will appear that an absolute discharge, or even a conditional one, is "not contrary to public interest". In some cases, the trivial nature of the offence will be an important consideration; in others, unusual circumstances peculiar to the offender in question may lead to an order that would not be made in the case of another offender.[^3]

[14] In R. v. Fallofield, the British Columbia Court of Appeal made a number of observations regarding the discharge provisions, including the following:

(1) Discharges are not limited to technical or trivial violations;

(2) Generally, the requirement that a discharge would be in the best interest of the accused would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions; and

(3) While the public interest in the deterrence of others must be given due weight, it does not preclude the judicious use of the discharge provisions.[^4]

[15] In R. v. Meneses, the Ontario Court of appeal took into account:

(1) that the appellant was a widow with children;

(2) that she has had a good standing in the community;

(3) that she has no criminal record;

(4) that her misconduct was an isolated one and out of keeping with her past good character; and

(5) that a conviction might have a detrimental effect on her ability to obtain gainful employment in the profession of dentistry of which she already had some expertise.[^5]

[16] It was in the public interest for this woman to be given every opportunity to become a useful person in the community and earn a livelihood for herself and her family.[^6]

[17] Further:

The argument that a conviction and fine against this accused must stand to effect a more apparent deterrent to others must give way when other considerations are more paramount, and when the broad view of the public interest is considered. In our opinion, the knowledge of speedy apprehension, arrest and trial should be an effective deterrent to persons such as the accused who may be tempted to commit such an offence. A conviction and a fine would not be a deterrent to a professional shoplifter, but, of course, such a person would not receive either an absolute or conditional discharge.[^7]

[18] Finally:

It is always to be borne in mind that a person who is granted a conditional discharge does not go scot-free after committing the offence. In this case the accused is subject to the terms of the probation order, and in the event that the terms of the probation order are met, she will have earned her discharge.[^8]

[19] In R. v. Carson, the Ontario Court of Appeal stated that:

The sentencing judge rejected certain of the Crown's submissions concerning sentence on the basis that they would have an unnecessarily harsh impact on the appellant's prospects to continue his employment as a police officer. This is a legitimate factor, among others, to be taken into account at a sentence hearing. Neither the appellant's personal interest nor the societal interest would be served by the imposition of a sentence, not otherwise warranted, that would preclude the appellant's continued employment as a police officer.[^9]

[20] There are of course limits on how far this may be taken. In R. v. Swierszcz, the Ontario Court of Appeal stated that, “The fact that a person may suffer professional consequences cannot justify the imposition of a sentence that is outside of the appropriate range”[^10]. The Court of Appeal allowed the Crown appeal since a conditional discharge was far outside of the range appropriate for the kind of criminal conduct in that case.

[21] That does not however take away the fact that, subject to the above limitation, collateral consequences, such as a negative impact on employment, are a legitimate factor to be considered when determining the appropriate sentence.

[22] I also note the following comments by Justice Hill of the Ontario Superior Court of Justice in two summary conviction appeals[^11]:

(1) Discharges are not restricted to trivial matters;[^12]

(2) Where an offender has acted entirely out of character, perhaps in the context of unusual pressure or stress, a discharge may be a fit sanction;[^13]

(3) Where a criminal record will have a tendency to interfere with employment, a discharge should be given serious consideration;[^14]

(4) A suspended sentence is not necessarily a greater deterrent to others than a conditional discharge.[^15]

[23] Counsel for Mr. Carroll provided me with 35 cases from across Canada but primarily from British Columbia, including a number in which discharges were granted for similar offences. During his oral submissions, however, he focussed on two recent decisions from the Ontario Court of Justice.

[24] In R. v. Reeve[^16] Justice Zivolak granted Mr. Reeve an absolute discharge for a similar offence. I note however that Justice Zivolak repeatedly stressed the fact that Mr. Reeve was only providing medical marihuana in a bricks and mortar setting to people who would otherwise have to obtain it through the mail. She accepted that some of these people might have difficulty accessing the mail-order system although they had valid licences or prescriptions that allowed them to do so legally. This is significantly different from the facts before me. I will say more about this later.

[25] In R. v. Churchill[^17], Justice H.F. Pringle granted Mr. Churchill a conditional discharge for a similar offence. She too was satisfied that Mr. Churchill was selling marihuana only to customers who had valid licences or prescriptions that allowed them to obtain it legally. In her decision she referred to earlier cases in which the sentences ranged from a discharge to a large fine.

[26] One of the cases Justice Pringle referred to was R. v. Holder-Zirbser[^18] where there was a joint submission for a discharge. The only issue was whether it should be absolute or conditional. Justice Boxall granted Ms. Holder-Zirbser an absolute discharge because she had no criminal record and was only 21 years old at the time of her arrest and did not realize that the dispensary in which she worked was operating illegally. She would not have taken the job had she been aware of the possible consequences.

[27] Again, the particular facts in these two cases are significantly different from the facts before me.

[28] I note that the same thing can be said about a number of the cases from British Columbia.

[29] Crown counsel also provided me with several cases that he was relying on.

[30] Following my review of all of the cases referred to, I note that the range of sentences that have been imposed is broad and includes both discharges and substantial fines.

[31] It is clearly necessary for me to examine the fundamental purpose and principles of sentencing in order to determine whether a discharge would be appropriate in the particular circumstances of this case.

FUNDAMENTAL PURPOSE AND PRINCIPLES OF SENTENCING

[32] The fundamental purpose of sentencing as expressed in section 718 of the Criminal Code is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[33] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.[^19]

[34] Section 10 (1) of the Controlled Drugs and Substances Act provides that:

Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the 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 to the community.

[35] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.[^20]

[36] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.[^21]

[37] He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.[^22]

[38] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.[^23]

[39] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

[40] Section 718.2(d) provides that “an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances”.

[41] The Supreme Court of Canada noted in Gladue v. The Queen that section 718 now requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender.[^24] As a general matter restorative justice involves some form of restitution and reintegration into the community.

[42] Section 10 (2) of the Controlled Drugs and Substances Act sets out a number of circumstances that are deemed to be aggravating factors in drug cases. None of these are applicable here.

[43] Before applying these principles, I must take into account the facts underlying the offence and the background of Mr. Carroll.

THE OFFENCE

[44] Mr. Carroll operated a marihuana dispensary in Burlington.

[45] Following a period of surveillance, police obtained and executed a search warrant at the premises on February 14, 2017. They found 2.8 kilograms of marihuana, as well as eight scales and other paraphernalia, cash (either $2,166.30 or $4,462.60, I was given both figures), four prepaid credit cards, and a number of blank membership forms.

[46] This business was operated out of a two-story commercial unit on Harvester Road in Burlington.

[47] The first floor contained a small reception area for Budtanica Pain Relief Group. There, a potential client would meet a receptionist / intake person who would provide them with a membership form. The completed form would then be reviewed by the intake person who would then provide the client a passcode that opened the locked door at the base of a flight of stairs leading to the second story which contained the store area for Budtanica.

[48] There, the client was presented with two options.

[49] The first option was to place a Skype call through Cannascribe Medical Marihuana Prescription Service to a medical doctor in order to obtain a prescription for marihuana. If he chose to issue such a prescription, the doctor would send it to a licenced producer who would then send the marihuana to the client by mail.

[50] Mr. Carroll was not a licenced producer.

[51] The second option was for the client to buy marihuana from the store right there. This option was in violation of both section 5 of the Controlled Drugs and Substances Act and of the Access to Cannabis for Medical Purposes Regulations. The 2.8 kilograms of marihuana found on the premises was for sale under these circumstances.

[52] All approved clients were at least 19 years old.[^25]

BACKGROUND OF MR. CARROLL

[53] I have been provided with a resume / curriculum vitae for Mr. Carroll, a letter from him and a number of reference letters. From these I have learned the following about Mr. Carroll.

[54] He is a young man.

[55] He grew up on the east coast[^26] and in Thunder Bay.

[56] He worked hard in school, received academic awards, was captain of the football team and did volunteer work. He has worked since he was 14 years old.

[57] Since being charged, he returned to McMaster University to complete his Bachelor’s degree in business. He worked at a number of jobs while doing this and has obtained full-time employment as of this month.

[58] The numerous people who have signed reference letters all speak highly of him. Former clients were effusive in their gratitude for what he did for them.

[59] I take special note of the following comments extracted from Mr. Carroll’s letter to the court:

First of all, I would like to verbally express my remorse and regret for the actions I took leading up to my arrest two years ago on February 14th. I would like to believe I tried doing something good for people, while living up to my ambitions but I went about it in the wrong way. I was naive and made poor judgements. I take full responsibility for my actions and am extremely displeased for the outcome it has had on my life and the lives of those I love and truly care about. I have my family and partner here today to support me through this process.

I wanted to open a dispensary because of the amazing things I have seen in the world of cannabis. From my friend's grandmothers' literally being able to cook and clean and walk about without pain, as well as my mom dealing with her new-found arthritis. And my aunt who has now passed away after fighting breast cancer for several years. I have seen some truly amazing recoveries because of this plant and its healing properties. I have also had personal success due to the use of cannabis for severe muscle and back pain and am a medical patient of over two years now. Through my own process and the paths of others I have seen people struggle to access this medication and get the access and education they need. This is why I decided to do what I did. Our store was always operated in a professional manner.

All staff had mandatory training, were taught steps of service and what makes for good customer service were cornerstones to our brand and store reputation. We wanted to allow people access to education and medication for which they were having a hard time getting through the current system. But most importantly it was a chance for me to prove to myself I was capable of building a great brand and business. The fact that so many of our patients were brought in by family members of all ages from 21 to 80 years of age, speaks to the comfortable atmosphere and professionalism in which we conducted ourselves. All members felt it was a safe place to learn how to deal with their ailments.

[60] Mr. Carroll had no prior criminal record.

ANALYSIS

[61] Doherty J.A. aptly described my task here when he began the judgment in R. v. Hamilton, supra by stating:

The imposition of a fit sentence can be as difficult a task as any faced by a trial judge.[^27]

[62] Sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case is "a highly individualized exercise that goes beyond a purely mathematical calculation."[^28]

[63] I must craft a sentence that is proportionate to the gravity of the offence committed and the degree of responsibility of Mr. Carroll and yet, at the same time, one that is responsive to his unique circumstances.

[64] I must consider both the aggravating factors and the mitigating factors when determining the appropriate sentence here.

[65] As I stated earlier, none of the statutorily-aggravating factors enumerated in section 10(2) of the Controlled Drugs and Substances Act apply here.

[66] However, a number of aggravating factors can be found in the facts surrounding the offence.

[67] The size of the operation is an aggravating factor.

[68] The police seized 2.8 kilograms of marihuana and between $2500 and $4500 in cash. By Mr. Carroll’s own account, he had a significant number of regular clients or customers.

[69] While one motive for offending was to provide good quality medicinal marihuana products, another motive was financial gain and, in his own words, “building a great brand and business”.

[70] Mr. Carroll was not qualified to dispense marihuana to persons medically. There was no suggestion that any of his employees was qualified to do this. Mr. Carroll was thereby potentially putting his customers at risk. Fortunately for him, there is no evidence of actual harm caused here.

[71] Illegal marihuana dispensaries have been the targets of crime, including violence, robberies, and even weapons use. Luckily, none of those events occurred, but operating outside the law still posed this risk to him, his employees, his customers, and the community. This, too, is an aggravating factor.

[72] Today, marijuana may be sold for any use, including recreational use, as part of a legal government enterprise.

[73] At the time Mr. Carroll committed his offence, however, he was knowingly operating outside the law. The Code of Conduct attached to the Membership Application cautions applicants that “It is still illegal in Canada to possess, grow or distribute cannabis. Know your rights and take precautions to avoid the harmful effects of arrest, cannabis seizure, imprisonment and criminal record”.

[74] I note also that one of the questions asked on the same page, just above that caution, is “Are you a member of police services and are you on duty at this time?” It would appear that Mr. Carroll was following his own advice and taking precautions to avoid the “harmful effects of arrest”.

[75] Prior decisions make it clear that Mr. Carroll’s punishment must reflect the law as it was at the time of his offence.

[76] In R. v. Tran, Trotter J. (as he then was) stated that:

If judges refuse to apply laws based on their subjective impressions of the likelihood of reform, the rule of law would be seriously undermined. It would cause great confusion about which laws are enforceable and which ones are not.[^29]

[77] He then quoted from R. v. Song, where the Court of Appeal stated:

Judges are entitled to hold personal and political opinions as much as anyone else. But they are not free to permit those views to colour or frame their trial and sentencing decisions. They are bound to apply the law as it stands.[^30]

[78] Trotter J. then went on to say:

Just as judges are not entitled to pick and choose which laws they wish to apply, members of the public are not free to select which laws they wish to obey, even with the prospect of reform on the horizon. In present circumstances, prosecutorial discretion and executive clemency, not judicial fiat, are the only legitimate sources of reprieve. In the meantime, I must apply the CDSA faithfully and sentence offenders according to the customary principles and binding precedent.[^31]

[79] I must, therefore, impose a sentence that speaks to general deterrence and denunciation.

[80] While fully recognizing these limitations I agree with the following comments in R. v. Churchill, supra:

The cases of best assistance to me are those from this level of court, this moment in time, and this community. In reviewing these cases, I cannot help but notice a de-escalation, towards present day, of sanctions imposed on the offenders. This, in my view, reflects society's changing attitude towards the sale and consumption of marijuana.[^32]

[81] Pringle J. went on to say:

38. … I accept the Crown's submission about the risk of community harm these dispensaries present. I wholly recognize the need to communicate that, in sentencing Mr. Churchill, a peaceful and orderly society depends on all of us respecting the rule of law. But I cannot ignore how our government and our society currently views marijuana consumption. It is an intoxicant with some risks similar to alcohol, but with indisputable medicinal qualities, as Rosenberg J.A. accepted in R. v. Clay, (2000) 2000 5760 (ON CA), 135 O.A.C. 66 and R. v. Parker, (2000) 2000 5762 (ON CA), 135 O.A.C. 1.

39 It is not for me to decide, here, whether marijuana as medicine is less addictive or harmful than a prescription for fentanyl or oxycodone. It is not for me to decide whether marijuana is more or less harmful than alcohol. But in my considered view, sentences imposed for similarly situated offenders, for similar offences, currently reflect a change in social mores and attitudes towards marijuana consumption, even pre-decriminalization. This is why recent sentences imposed, in Ontario, are non-custodial and include the imposition of conditional and absolute discharges. The tide has been demonstrably changing.[^33]

[82] She relied in part on the comments of O’Donnell J. in R. v. Bao, that:

It seems clear, therefore, that Mr. Bao must be sentenced in light of the law as it is, not the law as it might be, which looming law would arguably convert the regulation of cannabis in Canada from a purely criminal law model to a model with many of the characteristics of alcohol and tobacco regulation. At the same time, the sentence imposed on him must, like any sentence, take into account the social mores of the time when he is sentenced. Canadian society has come a tremendous distance from the hysterical and fear-mongering outlook towards cannabis characterized by films such as Reefer Madness in the 1930s (and criminal law policies that were not much more rational than that film), to a more nuanced view that, while cannabis use presents some very real dangers, especially for some groups such as young people, it also has rather benign uses no worse than alcohol, as well as some medically advantageous uses, including uses that could be much safer than society's over-reliance on prescribed opioids for pain relief, the effects of which this court sees daily. Recognizing those social realities in determining an appropriate sentence, like recognizing any social reality that changes over time in imposing sentence, is qualitatively different than calling in aid a legislative change that has not taken place, even if it may lead some distance down the same path in determining sentence.[^34]

[83] Crown counsel appears to have accepted this proposition in as much as he has asked for a fine in circumstances where previously I might have expected him to suggest jail.

[84] On the other hand, he did refer me to a very recent endorsement where the Ontario Court of Appeal rejected the submission that “the changed social attitude toward marihuana use warrants a reduction in the established range” of sentence.[^35]

[85] The Court of Appeal concluded by stating that:

Parliament has not significantly altered the applicable penalty. Nor, in our view, can one assume that a large scale, prolonged trafficking for profit in marijuana is somehow viewed as less serious because of the legislative changes in respect of personal possession and use.[^36]

[86] Without details as to what constituted “a large scale, prolonged trafficking for profit”, I cannot and do not equate Mr. Carroll’s offence with that one. I do note however that these are the latest comments of the Court of Appeal which has yet to weigh in on cases such as R. v. Reeve, supra, or R. v. Churchill, supra, or this one before me.

[87] My final observation with respect to aggravating factors is that while the possession of small quantities of marihuana has now been legalized, it would still be illegal for Mr. Carroll to sell it and that the potential penalties for doing so would be significant.

[88] That brings me to the mitigating factors that are present here.

[89] Mr. Carroll pled guilty. I take that to be an expression of remorse and an admission of responsibility.

[90] Unlike some of the people charged with similar offences, Mr. Carroll chose to leave the marihuana business. I am aware that others have attempted to reopen the same or a different marihuana dispensary after being charged. I view the fact that Mr. Carroll did not do this as an absence of an aggravating factor rather than the presence of a mitigating factor but it also indicates that Mr. Carroll has been personally deterred from repeating his mistake.

[91] It also casts a positive light on his prospects of rehabilitation. He ceased the offending conduct immediately. He has been a stable, hard-working, productive member of society for most of his life. He had no prior criminal record. He has stayed out of trouble since being charged more than two years ago. In fact, he has used that time to return to school and to better himself. He enjoys strong support from both his family and others in the community.

[92] I am satisfied that there is very little, if any risk that he will re-offend again, in any way.

[93] There have already been collateral consequences for Mr. Carroll.

[94] His business was shut down costing him whatever he had invested in it.

[95] Money was seized.

[96] He has suffered some public disgrace.

[97] A conviction could very likely affect his ability to obtain employment. It will definitely affect his ability to enter the United States. I have not however been provided with any information as to whether his ability to enter that country will already be affected by his participation in the marihuana business.

[98] I do not accept counsel’s submission that I should give extra weight to the guilty plea because Mr. Carroll could have chosen instead to challenge the constitutionality of the marihuana laws. The law as it stood at the time of Mr. Carroll’s offence has not been overturned and I am not prepared to sentence Mr. Carroll on the basis that it might have been, if only he had challenged it.

[99] I do note that one of his motives was a desire to help people who would benefit medically from medical marihuana. I am satisfied that he did in fact help some people.

[100] He is very different from Mr. Reeve and Mr. Churchill, however, in that he did not limit his sales to people who were legally entitled to use medical marihuana.

[101] As described earlier, anyone who was approved for membership was presented with two options.

[102] The first option was to place a Skype call through Cannascribe Medical Marihuana Prescription Service to a medical doctor in order to obtain a prescription for marihuana. If he chose to issue such a prescription, the doctor would send it to a licenced producer who would then send the marihuana to the client by mail. This was the legal option.

[103] I repeat that Mr. Carroll was not a licenced producer.

[104] The second option was for the client to buy marihuana from the store right there. This was the illegal option and involved both the client and Mr. Carroll in breaking the law.

[105] Further, the screening process fell far short of limiting memberships to people who wanted to use marihuana solely for medicinal purposes.

[106] I note that the membership application completed by would-be clients does not ask if the applicant had a prescription for medical marihuana or a licence to use it. It does not even ask if the applicant had previously consulted a doctor at all about whether medical marihuana might be appropriate for the applicant.

[107] The Code of Conduct which is attached to the application does include the statement that, “Upon leaving Budtanica I will consult with a health care practitioner such as a doctor for a consultation regarding the health risks, benefits and any concerns I may have regarding the use of marihuana products”.

[108] There are a number of obvious problems with this.

[109] It does not indicate who qualifies as “a health care practitioner such as a doctor” but clearly it need not necessarily be a doctor.

[110] Further, the consultation would occur after the applicant had already obtained marihuana from Mr. Carroll.

[111] Finally, there is no mechanism in place to enforce this statement of intention.

[112] The application itself does ask the following questions:

• Are you presently taking any prescription medications / pharmaceuticals?

• If you answered “YES”, please list your medications, drug regimen, as well as any side effects:

• How long have you been using cannabis as a medicine / treatment option?

• How does cannabis help you reduce your symptoms?

• Have you experienced negative effects from taking cannabis?

• If you answered “YES” or “NOT SURE”, please explain?

• How much and how often do you use cannabis and cannabis products?

• Does the dosage you use alleviate your symptoms?

• Are you currently a member of a Medical Marijuana Dispensary? Name?

[113] Again, I see a number of obvious problems here.

[114] The biggest problem is that there is no apparent mechanism in place to verify the accuracy of the answers given by the applicant.

[115] In addition, I have been given no information as to what criteria would be applied to the answers to determine who would qualify for membership nor any information as to the qualifications of the person who made that determination. It is clear however that Mr. Carroll had the final say in who could buy marihuana from him, something that he was not qualified to do.

[116] With respect to former clients who wrote references for Mr. Carroll, one chose not to take advantage of the option that would have enabled her to obtain marihuana legally. The other was properly licenced but chose not to purchase it through the approved mail order program because “I need to look at my cannabis and smell it before I buy it or use it”. She also wanted to speak to someone with knowledge about the cannabis and found that she could not speak to anyone in the government program. Finally, she had to buy at least five grams of marihuana from the government program whereas Mr. Carroll permitted her to buy smaller amounts to try a particular type of marihuana to see if it worked for her.

[117] After taking all of this into account, I am satisfied that Mr. Carroll was in a very different situation than Mr. Reeve and Mr. Churchill.

[118] As a final observation, I will point out that I have not limited my sentencing options to a fine or an absolute discharge. I have also considered the middle ground of imposing a conditional discharge with probation for three years and a provision for the maximum allowable hours of community service. Community service orders were introduced approximately 40 years ago. At the time they were touted as an alternative to imprisonment. They can have some deterrent and denunciatory effect. They can also provide an element of restorative justice as they require offenders such as Mr. Carroll to give something back to the community. I have already stated earlier that nothing further is needed to specifically deter Mr. Carroll or to rehabilitate him.

[119] After considering all of the above, I am satisfied that even a conditional discharge would be contrary to the public interest here. It would send the wrong message to others who might be considering doing what Mr. Carroll did.

SENTENCE

[120] For all of the above reasons, I sentence Mr. Carroll to a fine of $5000.

[121] I also make the forfeiture order requested.

Released: March 12, 2019

Signed: Justice D.A. Harris

[^1]: The maximum sentence is imprisonment for five years less one day.

[^2]: R. v. Bothman, [1983] O.J. No. 70 (Ont. C.A.)

[^3]: Regina v. Sanchez-Pino, 1973 794 (ON CA), [1973] O.J. No. 1903 (Ont. C.A.) per Arnup J.A. at paras. 16 to 18.

[^4]: R. v. Fallofield, [1973] B.C.J. No. 55 (B.C.C.A.) at para. 21.

[^5]: R. v. Meneses, 1974 1659 (ON CA), [1974] O.J. No. 736 (Ont. C.A.) per Dubin J.A.) at para. 7; See also R v. Moreau (1992), 1992 3313 (QC CA), 76 C.C.C. (3d) 181 (Que. C.A.).

[^6]: R. v. Meneses, supra at para. 9.

[^7]: Ibid, at para. 10.

[^8]: Ibid, at para. 12.

[^9]: R. v. Carson, [2004] O.J. No. 1530 (Ont. C.A.) at para. 38.

[^10]: R. v. Swierszcz, 2006 8713 (ON CA), [2006] O.J. No. 1088 (Ont. C.A.) at para. 5; see also R. v. Hamilton, 2004 5549 (ON CA), [2004] O.J. No. 3252 (Ont. C.A.) at paras. 156 to 158; R. v. Preston, [2008] O.J. No. 5136 (Ont. C.A.); R. v. Pham, 2013 SCC 15, [2013] S.C.J. No. 100 (S.C.C.) at paras. 11 to 20.

[^11]: R. v. Hayes, [1999] O.J. No. 938, (Ont. S.C.J.) per Hill J. at para. 32; R. v. Barilko, [2014] O.J. No. 792 (Ont. S.C.J.) per Hill J. at para. 31.

[^12]: Ibid, citing Regina v. Vincente (1975), 18 Crim. L.Q. 292 (Ont. C.A.).

[^13]: Ibid, citing Regina v. Taylor (1975), 1975 1447 (ON CA), 24 C.C.C. (2d) 551 (Ont. C.A.), at 552.

[^14]: Ibid, citing Regina v. Myers (1978), 1977 1959 (ON CA), 37 C.C.C. (2d) 182 (Ont. C.A.) at pp. 184-5; Regina v. Culley (1977), 1977 1965 (ON CA), 36 C.C.C. (2d) 433 (Ont. C.A.), at p. 435.

[^15]: Ibid, citing Regina v. Cheung and Chow (1976), 19 Crim. L.Q. 281 (Ont. C.A.).

[^16]: R. v. Daniel Reeve, an unreported decision by Zivolak J. of the Ont. C.J dated January 8, 2019 at Hamilton.

[^17]: R. v. Churchill, [2018] O.J. No. 6415 (Ont. C.J.) per H.F. Pringle J.

[^18]: R. v. Holder-Zirbser, [2018] O.J. No. 512 (Ont. C.J.) per Boxall J.

[^19]: R. v. Hamilton, supra at para. 102; R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309 (S.C.C.) at para. 26; R. v. Morrisey, 2000 SCC 39, [2000] S.C.J. No. 39 (S.C.C.) at para. 46.

[^20]: Criminal Code, section 718.1

[^21]: R. v. Hamilton, supra, at para. 90.

[^22]: Ibid, at para. 91.

[^23]: R. v. Priest, 1996 1381 (ON CA), [1996] O.J. No. 3369 (Ont. C.A.) at para. 26, quoted in R. v. Hamilton, supra, at para. 92.

[^24]: Gladue v. The Queen, 1999 679 (SCC), [1999] S.C.J. No. 19 (S.C.C.) at paras. 43 and 48; see also R. v. Proulx, 2000 SCC 5, [2000] S.C.J. No. 6 (S.C.C.), at paras. 18 to 20.

[^25]: The Code of Conduct attached to the Application for Membership specifies that the applicant is 21.

[^26]: I am assuming the east coast of Canada as opposed to some part of the country.

[^27]: R. v. Hamilton, supra at para.1

[^28]: R. v. Muzzo, 2016 ONSC 2068, [2016] O.J. No. 1506 (Ont. S.C.J.) per Fuerst J. at para. 59.

[^29]: R. v. Tran, [2016] O.J. No. 2568 (Ont. S.C.J.) per Trotter J. as he then was at para. 26.

[^30]: R. v. Song, 2009 ONCA 896, [2009] O.J. No. 5319 (Ont. C.A.) at para. 10.

[^31]: R. v. Tran, supra, at para. 27.

[^32]: R. v. Churchill, supra. at para. 37.

[^33]: Ibid, at paras. 38 and 39.

[^34]: R. v. Bao, [2018] O.J. No. 1154 (Ont. C.J.) per O’Donnell J. at para. 18.

[^35]: R. v. Strong, [2019] O.J. No. 139 (Ont. C.A.) at para. 2.

[^36]: Ibid, at para. 4.