Ontario Court of Justice

Date: 2024 12 13 Court File No.: Hamilton 24-47101355

BETWEEN:

HIS MAJESTY THE KING

— AND —

PATRICK GORDON

Before: Justice J.P.P. Fiorucci

Heard on: June 10, September 19 and December 2, 2024 Reasons for Sentence released on: December 13, 2024

Counsel: Jesse Razaqpur, for the Crown The defendant Patrick Gordon, on his own behalf Robin McCourt, assisting the defendant as Duty Counsel

Introduction

[1] “Magic mushroom” dispensaries are a relatively new phenomenon in Ontario. These dispensaries sell products that contain psilocybin, a controlled substance listed in Schedule III of the Controlled Drugs and Substances Act (CDSA). The dispensaries operate in plain view of the public, with flashy storefronts and websites with product menus and pricing.

[2] Patrick Gordon was employed as a store clerk at one such dispensary in Hamilton when the police executed a search warrant and found him behind the cash counter. Mr. Gordon was arrested. The police seized products containing psilocybin and some Canadian currency.

[3] The commercial nature of the enterprise is not in dispute, nor is Mr. Gordon’s guilt for the offences of possession of psilocybin for the purpose of trafficking (s. 5(2) of the CDSA) and possession of proceeds of crime not exceeding $5,000 (s. 355(b) of the Criminal Code). He entered guilty pleas to these offences as a self-represented accused.

[4] What is in dispute is the sentence that Mr. Gordon should receive for his participation in this illegal commercial enterprise. There is no appellate guidance in Ontario on the range of sentences for the offence of possessing psilocybin for the purpose of trafficking. Instead, judges faced with the task of sentencing an offender like Mr. Gordon have considered comparator cases, mostly from the Ontario Court of Justice, that they feel best represent the gravity of the offence and align with the circumstances of the offender before them. [1] The result has been sentences ranging between a conditional discharge and a conditional sentence of imprisonment (CSO) for store clerks employed in psilocybin dispensaries. In my view, the appropriate sentence for Mr. Gordon is a conditional discharge. [2]

Positions of the Parties

[5] The Crown seeks a 9 to 12 month CSO, a s. 109 Criminal Code weapons prohibition order, and a forfeiture order for the seized items, including the cash. Mr. Gordon asks me to impose a conditional discharge pursuant to s. 730 of the Criminal Code. He takes no issue with the s. 109 order or the forfeiture order. [3]

Circumstances of the Offences

[6] In January 2024, members of the Hamilton Police Service Division 2 HEAT Unit began a CDSA drug trafficking investigation in relation to “Shroomyz” located at 1155 King Street East in Hamilton. A justice granted a CDSA search warrant for this location. When the police executed the search warrant on February 15, 2024, they located Mr. Gordon behind the cash counter of the business. He was arrested.

[7] The police searched the store and seized 2,775 psilocybin capsules, 812 grams of dried psilocybin mushrooms, 4.1 kilograms of psilocybin contained inside 890 edible packages, and cash totaling $1,785 from the cash register and a safe.

[8] Mr. Gordon was an employee of Shroomyz, a store clerk. He was paid a wage to sell the psilocybin products in the dispensary. He was not an owner/operator or manager of the business.

Circumstances of the Offender

[9] Mr. Gordon is 42 years old. He has no criminal record. His parents separated in 1982 due to his father’s alcoholism and abusive behaviour towards his mother which Mr. Gordon witnessed but did not experience himself. Mr. Gordon was, for the most part, raised by his mother, Jackie Gordon. Mr. Gordon described his upbringing with his mother in positive terms to the author of the pre-sentence report (PSR), reporting that his childhood and teenage years were peaceful and good. [4] He continues to have a positive relationship with his mother.

[10] Mr. Gordon did not have a good relationship with his father during his upbringing. However, their relationship improved in his teenage years, and he moved to live with his father when he was 16 years old. In 1998, when Mr. Gordon was 17 years old, his father passed away with cancer. Shortly thereafter, Mr. Gordon went to live with his mother. His father had not disclosed his health problem before his death.

[11] At age 17, Mr. Gordon left his parental home to live with his girlfriend who became pregnant during their romantic relationship. His mother reported that the couple separated after four years in a relationship. When Mr. Gordon’s daughter was about seven years old, the child’s mother passed away. Mr. Gordon assumed full custody of his daughter. Mr. Gordon’s mother explained that this new role was not easy for him because he had to work and take care of his daughter, but she noted that she is proud of him for raising his daughter on his own until she left home as an adult.

[12] Not long after his daughter turned 12 years old, Mr. Gordon had his second child with his current girlfriend. They now have two sons together, ages 9 and 11. Lack of money has been a stressor in Mr. Gordon’s romantic relationship with his current partner.

[13] Mr. Gordon has a grade 10 high school education. Both he and his mother recalled that he struggled in school. He attributes his learning difficulties to significant behavioural and emotional concerns. He was placed in a specialized classroom in grade 10 in Napanee, Ontario. Ms. Gordon advised that her son quit school and started working because he struggled with his education.

[14] Mr. Gordon reported that he started working at a food restaurant in a mall. Later, he worked at a call center for about six years but was laid off. His mother characterized him as having a lack of ambition, saying that he just wanted to get a job to support his family because his family is important to him. Mr. Gordon has been unemployed since his arrest. He currently receives $860 monthly from social assistance.

[15] Mr. Gordon has the ongoing support of his mother, with whom he has daily contact. Mr. Gordon also has the support of friends. A former co-worker, Ms. Crystal Tonelli, attested to Mr. Gordon’s good work ethic and attention to detail, his focus on his community activities and his efforts to secure employment to support his family.

[16] Ms. Linda Whitehouse has known Mr. Gordon, whom she calls by his middle name “Jesse”, her entire life. She considers him to be a trusted friend, a dedicated father to his three children and an honest person. [5] Their mothers were best friends and raised them closely together.

[17] Ms. Whitehouse provided additional insight into Mr. Gordon’s upbringing. She explained how his mom, Jackie, “was a single mother, extremely dedicated to social housing, community well-being and is one of the strongest women I have the honor of knowing to this day”. Ms. Whitehouse confirmed that, after the untimely death of his daughter’s mother, Mr. Gordon “took up the role of single parenting and raised a smart, polite and determined young woman”. She spoke of Mr. Gordon’s two sons who are his first priority.

[18] Ms. Whitehouse has continued to have a close relationship with Mr. Gordon, as they “live in the same neighbourhood, communicate frequently and visit each other on occasion”. Ms. Whitehouse said the following about her friend:

Jesse has always strived for success in his life, working hard at each job opportunity and spending his spare time honing his artist talent as a cartoonist and sculpturist. His son's are articulate, well mannered and bright young boys; I believe this to be evidence that Jesse is a fine father.

In summary, Jesse's life has not been without challenges but he has proven to have unwavering dedication to his family, continues to pursue a good life for (his) children and grows furthermore into a resilient adult with each life obstacle. Given the chance, I wholeheartedly believe Jesse Gordon will show his ability to learn from past mistakes, becoming a wiser individual and continue growing as a mentor to his sons.

[19] Mr. Gordon provided written submissions for the sentencing hearing. In them, he stated that he is “remorseful and ashamed”. He said that he took the job at the dispensary “while greatly stressed” and at a time which he described as “an unusual crisis situation”. He explained that his partner of twenty years had left him, and he was unemployed. This led him to take a job that he should not have taken, which he vowed not to do again. Mr. Gordon reported that, although he is still having employment issues, he and his partner have reconciled and “the stress/emotional crisis has been reduced”. His financial commitments include the support of his partner and young sons and mortgage payments.

[20] In his written submissions, Mr. Gordon also detailed his community involvement, which he says is important to him. He has volunteered at various agencies since his teenage years and, for approximately ten years, he has run the Hamilton Zombie Walk, which is a food drive for local food banks.

Analysis

General Principles of Sentencing

[21] The principal purpose of the criminal law, and in particular sentencing, is the protection of society. [6] This is reflected in the sentencing provisions in Part XXIII of the Criminal Code. Section 718 says that the fundamental purpose of sentencing is to protect society, and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society. These goals are to be achieved by imposing just sanctions. Those just sanctions are to have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[22] Section 10 of the CDSA codifies the purpose of sentencing in the context of drug offences:

10 (1) 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.

[23] Notwithstanding the absence of the words “to protect society” in s. 10(1) of the CDSA, the principal purpose of sentencing for “designated substance offences” [7], including trafficking and possession for the purpose of trafficking, is the protection of society. Section 10(2) of the CDSA instructs sentencing judges to consider any relevant aggravating factors, including a list of specific aggravating factors. In Mr. Gordon’s case, the Crown does not rely on any of the enumerated aggravating factors in s. 10(2).

Proportionality - The Fundamental Principle of Sentencing

[24] In R. v. Nasogaluak, 2010 SCC 6, the Supreme Court of Canada observed that the objectives of sentencing are given sharper focus in s. 718.1 by the fundamental principle of proportionality, which mandates that a sentence be "proportionate to the gravity of the offence and the degree of responsibility of the offender". [8]

[25] Proportionality “requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence”. [9] The proportionality principle thus serves a limiting or restraining function. [10] However, this “rights-based, protective angle of proportionality is counter-balanced by its alignment with the ‘just deserts’ philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused”. [11]

[26] Writing for the Court in Nasogaluak, Justice LeBel said:

Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary. [12]

[27] In R. v. Lacasse, 2015 SCC 64, the Supreme Court of Canada described proportionality as the cardinal principle of sentencing; “the more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be”. [13]

The Principles of Individualization and Parity

[28] Section 718.2(a) of the Criminal Code instructs that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. It also lists specific aggravating circumstances that a court must consider, none of which apply in Mr. Gordon’s case.

[29] Section 718.2(a) codifies the principle that individualization is central to the proportionality assessment. [14] As Chief Justice Wagner wrote in Parranto “[w]hereas the gravity of a particular offence may be relatively constant, each offence is ‘committed in unique circumstances by an offender with a unique profile’”. [15]

[30] Section 718.2(b) states that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This is known as the principle of parity.

[31] The principles of individualization and parity, while important, are secondary principles. [16] Chief Justice Lamer, writing for the Supreme Court of Canada, in R. v. C.A.M., 1996 SCC 230, said this:

It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime… Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. [17]

[32] In Parranto, Chief Justice Wagner said that “parity, as an expression of proportionality, will assist courts in fixing on a proportionate sentence”. [18] He went on to say:

Courts cannot arrive at a proportionate sentence based solely on first principles, but rather must "calibrate the demands of proportionality by reference to the sentences imposed in other cases". [19]

The Role of Sentencing Courts and Appellate Courts

[33] Provincial appellate courts “promote stability in the development of the law while providing guidance to lower courts to ensure the law is applied consistently in a particular jurisdiction”. [20] The Supreme Court of Canada has recognized that “[a]ppellate guidance may take the form of quantitative tools (such as sentencing ranges and starting points), non-quantitative guidance explaining the harms entailed by certain offences, or a mix of both”. [21] Quantitative appellate guidance in the form of sentencing ranges and starting points “often reflect judicial consensus on the gravity of the offence, helping to advance parity and ‘prevent any substantial and marked disparities’ in sentencing”. [22] While not binding, they “are useful tools because they convey to sentencing judges an appreciation of the gravity of the offence. [23] The Supreme Court of Canada has said that appellate sentencing guidance “ought not to purport to pre-weigh or ‘build-in’ any mitigating factors”. [24] They are intended to “reflect the gravity of the offence and the resulting need for deterrence and denunciation”. [25]

[34] Starting points and appellate sentencing ranges – which Chief Justice Wagner described as “formal” or “established” ranges – do not exist for every offence. [26] Where no formal or established range exists, sentencing judges attempt to discern the appropriate range from case law with the assistance of counsel. [27] Chief Justice Wagner referred to these as informal or “discerned” ranges. [28]

[35] In Parranto, the Supreme Court of Canada recognized that, “[a]s with appellate guidance, discerned ranges are a tool for reaching a fit and appropriate sentence”. [29] The parties make submissions on analogous case law and on the appropriate disposition in the circumstances and the sentencing judge discerns a range by considering “comparator cases that best represent the gravity of the offence and the circumstances of the offender”. [30]

[36] In Mr. Gordon’s case, there is no formal or established sentencing range for the offence of possession of psilocybin for the purpose of trafficking. Crown counsel and Duty Counsel, who assisted the self-represented accused Mr. Gordon with his submissions, were not aware of any cases in which either the Crown or the Defence had appealed a sentence imposed for the offence.

The Discerned Range of Sentences for Psilocybin (Magic Mushroom) Dispensaries

[37] The cases relied on by Crown counsel and Mr. Gordon are comparator cases provided to assist me in imposing a fit and proportionate sentence. In the cases involving magic mushroom dispensaries, sentences for possession of psilocybin for the purpose of trafficking range from a conditional discharge to a CSO of 12 months. [31]

[38] In some of the cases filed, the Crown relied on the expert testimony of a toxicologist from the Centre of Forensic Sciences to explain the effects of psilocybin use on the human body, and the societal impacts of selling and consuming psilocybin. This evidence relates to the gravity of the offence. Although no expert evidence was led in Mr. Gordon’s case, the Crown referred to the portions of the cases filed which discuss the effects of psilocybin and related compounds, such as “significant adverse psychological reactions, including anxiety, paranoia, panic, and disorientation”. [32] Furthermore, the Crown cited the cases of R. v. Sullivan, 2022 SCC 19 and R. v. Brown, 2022 SCC 18 as “examples in the jurisprudence to show how these adverse reactions can lead to horrific, tragic consequences”. [35]

(i) Conditional Discharges for Store Clerks

[39] Judges who have granted conditional discharges for store clerks in a psilocybin dispensary have observed that a clerk, who is paid a wage and does not share in the profits of the illegal enterprise, has a lesser degree of moral blameworthiness than an owner/operator of the store. These decisions have emphasized the offender’s rehabilitation and have found that a conditional discharge can achieve specific and general deterrence and the requisite level of denunciation, while promoting a sense of responsibility in the offender before the court. [36]

[40] In R. v. Sydor, 2024 ONCJ 215, Justice Borenstein imposed a conditional discharge for possession of psilocybin for the purpose of trafficking and possession of proceeds of crime for an employee in a magic mushroom and psilocybin dispensary, Fun Guyz, which was operating on the Danforth in Toronto. Mr. Sydor was the only employee in the store at the time the police executed a search warrant in March of 2023. The police seized 533 grams of psilocybin in various forms, 821 psilocybin pills, and 15 kilograms of edibles containing mushrooms. Most of the weight of the edibles was from the food ingredients. The police also seized $672 cash as proceeds of crime. The Crown proceeded by summary conviction on the charges.

[41] Justice Borenstein identified the following aggravating factors in Sydor: (i) the store masquerades as a legal business; (ii) there was over a half a kilogram of dried mushrooms and 800 pills; and (iii) psilocybin is a hallucinogenic drug being sold with no quality control. The mitigating factors included: (i) the guilty pleas; (ii) a 29 year old with no criminal record; (iii) a high school graduate with a steady history of employment; (iv) compliance with the conditions of his release and no re-offending since his arrest a year earlier; (v) he was only a part-time employee making $15 an hour, “the low man in this operation” [37]; and (vi) he was told by a friend that the store was legal and believed it – Justice Borenstein said: “It is easy to see why. The store is operating openly as any other store in the heart of the Danforth”. [38]

[42] In Sydor, Justice Borenstein was troubled by the fact that the police did nothing to investigate who was on the lease for the property or whose drugs they were, and found that “[d]espite any need for denunciation and deterrence, those principles need not be emphasized in the sentencing”. [39] Justice Borenstein opined that deterrence and denunciation “should be saved for those behind the store”. [40]

[43] Many of the mitigating factors upon which Justice Borenstein relied to find that a conditional discharge was in Mr. Sydor’s best interests and not contrary to the public interest are also present in Mr. Gordon’s case, although I note that Mr. Gordon did not claim that he believed the store was operating legally.

[44] The parties did not provide the unreported 2024 sentencing decision of R. v. Garcia. However, Garcia is referred to in other cases that the parties provided. Mr. Garcia worked as the store clerk in a Fun Guyz store in St. Catharines selling psilocybin. The police executed a search warrant and located 413 grams of psilocybin mushrooms, 2,520 micro-dose capsules and edibles. The Crown proceeded by summary conviction on the charge of possession of psilocybin for the purpose of trafficking.

[45] In Garcia, 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". [41] Furthermore, the absence of any form of quality control for the psilocybin being sold created the very real possibility of "unexpected harm" to consumers. [42] Notwithstanding these aggravating factors, Justice Brown granted a conditional discharge in Garcia relying on unique mitigating circumstances. The mitigating circumstances in Garcia included: (i) a guilty plea and expression of remorse; (ii) a 35-year-old offender with no criminal record; (iii) the offender was a store clerk, not an owner/operator; and (iv) the offender found employment after being charged. Again, each of the mitigating circumstances in Garcia are also present in Mr. Gordon’s case aside from the fact that Mr. Gordon has been unable to find employment since his arrest.

[46] In R. v. Vagenos, 2024 ONCJ 254, Justice Garg granted the offender a conditional discharge concurrent on five counts for offences he committed on two separate dates. Mr. Vagenos entered guilty pleas to the five charges. He was a dispensary employee at the Mushroom Cabinet in Hamilton.

[47] On July 5, 2023, Mr. Vagenos sold psilocybin to an undercover officer who was posing as a customer. On July 6, 2023, when the police executed a search warrant for the store, Mr. Vagenos was charged with being in possession of large quantities of psilocybin for the purpose of trafficking and possession of proceeds of crime, $1,000 in Canadian cash, located either in the store or in Mr. Vagenos’ pockets. Mr. Vagenos was released on an undertaking with a condition requiring him to stay 100 metres away from the store.

[48] On July 26, 2023, Mr. Vagenos was in contravention of his undertaking when he was again found in the store, which had been re-stocked with significant quantities of psilocybin and related products. He was again charged with possession of psilocybin for the purpose of trafficking and possession of proceeds obtained by crime, over $1,000 in cash in his wallet. Mr. Vagenos was also charged with failing to comply with his undertaking.

[49] Mr. Gordon’s case lacks the aggravating factor in Vagenos of a blatant breach of an undertaking to return to work at the dispensary. Mr. Gordon complied with the conditions of his release. Many of the mitigating factors in Vagenos are present in Mr. Gordon’s case: (i) guilty pleas; (ii) an offender of similar age with no criminal record; (iii) limited education; and (iv) financial difficulties which motivated the offender to take employment in the magic mushroom dispensary. Mr. Gordon’s case lacks the mitigating factor of mental health challenges which Mr. Vagenos was confronting.

[50] With respect to the gravity of the offence committed by Mr. Vagenos, Justice Garg acknowledged that “drug use has negatively impacted the urban centres of cities and towns across this province, including Hamilton”. [43] However, Justice Garg also made the following observations:

But psilocybin is not on the same plane as many other controlled substances. The evidence from toxicologist Cara Shepherd explains how psilocybin is generally associated with low physiological toxicity and has not been associated with fatal intoxications. Psilocybin is not to blame for what afflicts Hamilton's urban core. Housing instability, mental unwellness, property crime, and violent tendencies cannot be tied to the consumption of psilocybin. While the jurisprudence provides discrete examples of where psilocybin abuse led to deadly consequences, the same could be said for any number of substances, including alcohol. [44]

[51] Justice Garg did not find “selling psilocybin in a public-facing storefront instead of through more furtive means” to be either mitigating or aggravating. [45] However, he did find 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”. [46]

[52] Justice Garg found Mr. Vagenos’ motivations for committing the crimes to be a neutral factor, noting that he was selling psilocybin to make money but was not motivated by greed. Mr. Vagenos was only an employee of the dispensary and was making $20/hour. He returned to work at the store in violation of his undertaking “because he needed to make ends meet”. [47]

[53] Justice Garg explained why a conditional discharge could achieve the relevant sentencing principles. In doing so, he began by referencing subsections 718.2(d) (an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances) and 718.2(e) (all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders). Justice Garg also noted the distinction between Schedule I or II substances and those in Schedule III and found that a conditional discharge could achieve the requisite level of deterrence and denunciation in the circumstances of Mr. Vagenos’ case.

[54] On July 6, 2023, approximately seven months before Mr. Gordon was arrested, the police had executed a search warrant at the very same “Shroomyz” location at 1155 King Street East in Hamilton and arrested Cheyenne McLennon, who was also a store clerk. Within the store, the police found 249 packages of psilocybin with seven grams per package, 166 packages of psilocybin-based edibles, 76 packages of psilocybin tea, 188 chocolate bars containing psilocybin, 190 packages of psilocybin chocolate bites and 148 bottles of psilocybin capsules with 15 capsules per bottle. The cash register contained $1,320 in Canadian cash.

[55] The Crown proceeded by summary conviction. Ms. McLennon entered a guilty plea to possession of psilocybin for the purpose of trafficking. In McLennon, the Crown advanced the following aggravating features to support a 9 to 12 month CSO for Ms. McLennon: (i) the retail operation selling illegal psilocybin products was brazen and open, the location being on a busy main street in Hamilton; (ii) the illicit retail store masqueraded as a legitimate business; (iii) the large quantity and variety of psilocybin and psilocybin-infused products for sale at the location; (iv) the offender, as a retail clerk at this location, was an important and integral part of the criminal enterprise involved in the trafficking of illegal Schedule III drugs to members of the public-without a clerk selling the product, the operation could not function; and (v) such products are not only illegal, but untested and unregulated, which makes consumer safety a legitimate concern. [48]

[56] In McLennon, Justice Brown accepted the Crown’s position that it was an aggravating factor that Ms. McLennon, as a store clerk, was essential to the operation of the store since the store could not operate without clerks. However, Justice Brown considered the cases of Sydor, Garcia, and Vagenos and found that a conditional discharge could achieve the relevant sentencing principles.

[57] The mitigating factors in McLennon included: (i) a guilty plea, which saved valuable judicial and court resources, and sincere remorse; (ii) a relatively youthful first offender; (iii) the offender was not sharing in the profits from the products sold but was merely being paid an hourly wage; (iv) the offender complied with the conditions of her release, had not re-offended and in Justice Brown’s view was unlikely to re-offend in the future; (v) the offender was confronting mental health issues at the time she committed the offence and had since her arrest taken meaningful steps to address those issues and had made substantial progress in doing so; and (vi) the offender completed high school and obtained a mortgage agent licence but had been unable to obtain employment in her chosen field while awaiting disposition of the charge.

[58] Many of the mitigating factors present in McLennon exist in Mr. Gordon’s case. One mitigating factor which is absent in Mr. Gordon’s case is struggles with mental health. Justice Brown found that Ms. McLennon’s offence was out of character “and bears some connection to the mental health issues that she was struggling with at the time that she has made significant steps to address since then”. [49]

(ii) CSO’s for Store Clerks

[59] In two recent cases, judges have emphasized denunciation and deterrence in imposing CSO’s on retail clerks employed in magic mushroom dispensaries.

[60] In R. v. Osores, 2024 ONCJ 358, the police executed a search warrant on November 12, 2022, at a Shroomyz located at 488 Queen Street West in Toronto. The police located Mr. Osores inside with another man. They also located a large quantity of psilocybin and psilocybin edible products. The total weight of the products was over 17.4 kilograms, but a portion of that weight was attributable to packaging. The total value of cash seized was $17,177.90. Mr. Osores had only been working at the store for two weekends before the police executed the search warrant and arrested him.

[61] The Crown proceeded by summary conviction. Mr. Osores entered guilty pleas to possession of psilocybin for the purpose of trafficking and possession of proceeds of crime over $5,000.

[62] Justice Jones identified the following aggravating factors: (i) the quantity of psilocybin products was over 17 kilograms; (ii) the proceeds of crime were over $17,000; (iii) 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 (iv) the products had no warning labels, were not approved by any government agency, and could cause users unintended harm. [50]

[63] The following mitigating factors were identified in Osores: (i) the offender was a young man with no prior criminal record; (ii) he was employed as a clerk, not a manager or owner; (iii) he entered guilty pleas and expressed remorse; (iv) he was employed at the time of sentencing; and (v) several character letters were filed on his behalf. [51] Justice Jones found that Mr. Osores had “excellent rehabilitative potential”. [52]

[64] However, Justice Jones emphasized the need for deterrence and denunciation, and found that it would be contrary to the public interest to grant a conditional discharge as such a disposition would not place adequate weight on Mr. Osores’ intentional participation in a commercial drug trafficking operation. In imposing a 60-day CSO, followed by one year of probation, Justice Jones found the “business's open and notorious features to be extraordinarily aggravating”. [53] He went on to say:

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. [54]

[65] Justice Jones expressed concern that “[t]hose 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”. [55] There was no evidence that customers were screened to ensure they were “19+” or evidence that customers were cautioned about the potential adverse effects of the products or their illegal status. As Justice Jones put it, “[i]llegal businesses such as Shroomyz are designed to provide a veneer of respectability to what is, at its core, a dangerous and unlawful enterprise”. [56] Justice Jones was also “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”. [57]

[66] Justice Jones was not swayed by Mr. Osores’ claim that he did not know the business was illegal. He placed limited weight on the “quite complementary” character letters because the authors did not indicate they were aware of Mr. Osores’ role in the criminal enterprise. And Justice Jones did not find a CSO to be a disproportionate sentence even though Mr. Osores would face increased difficulty crossing into the United States to advance his career in the music industry with a CSO than if he were discharged.

[67] Justice Jones found that, although Mr. Osores was not an owner or manager and his limited role as a retail clerk placed him on the lower end of the spectrum of moral culpability, a CSO was appropriate in the circumstances. At the conclusion of his judgment, Justice Jones referred to Lacasse when he stated “[f]urthermore, 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”. [58]

[68] In Abuce, the police executed a search warrant at Fun Guyz at 1275 Queen Street West in Toronto. Christian Abuce was the dispensary’s sole occupant. He was a retail clerk, not a business manager and not the directing mind of the operation. [59] The police seized 24.6 kilograms of psilocybin and $1,620 in cash.

[69] Justice Tuck-Jackson identified these aggravating factors in Abuce:

(i) the store marketed itself to the public as a “medical dispensary”, creating the risk that members of the public would mistakenly believe that the substances for sale are subject to government regulation and oversight, and therefore, inherently safe, and that those selling the product are qualified to do so; (ii) the store operated on a busy street in Toronto making it accessible to many members of the public; (iii) Fun Guyz marketed itself as a legitimate place of business. It utilized enticing signage and engaged in the practice of branding through the labelling of consumables and a clothing line promoting the store. It provided an ATM, thereby facilitating the requisite cash transactions. It aided and, effectively, abetted consumers to participate in illegal drug transactions. By working as a clerk within a store that lured customers within, as distinguished from engaging in street-level transactions, Mr. Abuce had the opportunity to sell to a much larger consumer base; (iv) the store operated in a brazen fashion, representing a flagrant flaunting of the laws designed to both protect individuals from potential harm caused by unregulated substances and to support informed decisions about what people choose to consume; (v) the amount of product seized, 24.6 kilograms, was significant; (vi) the police seized a not insignificant amount of cash, $1,620; and (vii) Mr. Abuce was uniquely positioned to appreciate the harm that flows to the community from the sale of illicit substances due to his post-secondary coursework in justice studies and policing, and his work as a security guard for many years.

[70] Justice Tuck-Jackson found the following to be mitigating factors: (i) Mr. Abuce entered guilty pleas, accepting responsibility for his actions and demonstrating a degree of remorse, which saved the court valuable trial time; (ii) no prior findings of guilt and the offences were out of character for him; (iii) Mr. Abuce was doing well in all other aspects of his life and had otherwise been a pro-social, productive, and generous member of the community; and (iv) he had the support of his family.

[71] In Abuce, Justice Tuck-Jackson imposed a 90-day CSO, followed by 12 months of probation for possession of psilocybin for the purpose of trafficking and a concurrent 15-day CSO and 12 months of probation for the offence of possession of proceeds of crime not exceeding $5,000. Justice Tuck-Jackson did not treat Mr. Abuce’s role as a store clerk as a mitigating factor, instead finding that, “[a]s the store clerk, he served as the gatekeeper to the product sold”. [60] Justice Tuck-Jackson said:

But for his involvement in the transaction, the sale could not take place. Simply put, Mr. Abuce was an instrumental link in the transaction chain. I regard his role as a neutral factor on sentence. [61]

[72] Justice Tuck-Jackson reviewed the aggravating and mitigating factors in the case and found that the gravity of Mr. Abuce’s offences was high as “[h]e played an instrumental role in a business that actively misled potential consumers as to the product’s safety, for the sake of profit, and did so under the guise of a legitimate business”. [62]

[73] Thus, Justice Tuck-Jackson found Mr. Abuce’s moral blameworthiness to be high, stating that, by reason of his previous studies – in the justice studies/police foundations program – and his employment as a security guard, “he ought to have known of the potential dangers that flow from the distribution of illicit substances in our community”. [63] Therefore, “nothing short of some form of imprisonment would be sufficient to advance the sentencing objectives of denunciation and general deterrence”. [64] Justice Tuck-Jackson said she agreed with the Crown that the statutory prerequisites to a CSO under s. 742.1 of the Criminal Code had been met and that a jail sentence to be served in custody would be a disproportionately punitive sentence in the circumstances.

(iii) CSO for Manager/Owner

[74] In R. v. Ferguson, 2024 ONCJ 252, Justice Camara dealt with the sentencing of a manager/owner of The Mushroom Cabinet operating at 1459 Main Street East in Hamilton. The police executed a search warrant at the store on December 13, 2022. They seized 620 grams of bulk psilocybin mushrooms and 157 grams of psilocybin in the form of edibles and capsules, with a total value of $11,555. The police also seized $1,055 cash.

[75] The aggravating factors identified by Justice Camara were: (i) the large amount of psilocybin; (ii) the retail storefront blatantly selling a Schedule III substance for profit, and the public advertising, including a website associated to the store, and other marketing items like drug packaging, stickers, and business cards; (iii) staff were hired to work at the store and were given lists of chores to complete when the store opened and closed; and (iv) Mr. Ferguson was the manager of the retail store and was motivated by financial gain and the police seized $1,055 in Canadian currency.

[76] In mitigation, Justice Camara considered: (i) Mr. Ferguson entered guilty pleas to possession of psilocybin for the purpose of trafficking and possession of proceeds of crime under $5,000 and expressed sincere remorse during his allocution in court; (ii) no criminal record and a pro-social lifestyle including community involvement and volunteer work with youth; (iii) Mr. Ferguson was a talented comedian and the possibility of a criminal record would impede his employment because he would be unable to travel to the United States to perform; and (iv) he had the support of his parents and sister.

[77] A significant factor in Justice Camara’s decision to impose a 12-month CSO in Ferguson appears to have been Mr. Ferguson’s higher level of moral blameworthiness as a manager. After considering Garcia, Justice Camara said:

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. [65]

[78] At the conclusion of her judgment, Justice Camara noted:

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 [emphasis added]. [66]

(iv) The Crown relies on the Cases of Jeaurond and Frost

[79] Crown counsel noted the paucity of case law dealing with sentencing for s. 5(2) CDSA psilocybin on its own. Reported cases typically deal with sentencing for psilocybin in combination with other controlled substances, often substances included in Schedule I, such as cocaine, fentanyl, or methamphetamine.

[80] However, the Crown relied on R. v. Jeaurond, 2019 ONSC 374, a 2019 sentencing decision of Justice Leroy of the Ontario Superior Court of Justice, and R. v. Frost, 2012 NBCA 94, a 2012 New Brunswick Court of Appeal decision, to argue that sentences of imprisonment are appropriate for possession of psilocybin for the purpose of trafficking. [67] The Crown says that the mitigating factors in Mr. Gordon’s case, which make him a good candidate to serve his sentence of imprisonment in the community, inform the Crown’s position to seek a CSO in this case rather than a jail sentence to be served in a provincial reformatory.

[81] The Crown acknowledges that Jeaurond is factually distinguishable from Mr. Gordon’s case, in that it is not a dispensary case. However, the Crown relied on Jeaurond, one of the few decisions where the offender was sentenced exclusively for s. 5(2) CDSA psilocybin, to argue that sentences of incarceration are appropriate for this offence. Although Ms. Jeaurond was also sentenced for firearms related offences, the Crown argued that the firearms were not the driving force behind the 8-month jail sentence for possession of psilocybin for the purpose of trafficking.

[82] Ms. Jeaurond entered guilty pleas to possession of psilocybin (magic mushrooms) for the purpose of trafficking, careless storage of firearms, and unauthorized storage of firearms. She had knowledge and control of the contents of a residence, a Quonset hut, and other buildings on a rural property. The police seized 28 kilograms of psilocybin mushrooms in the residence. Although Ms. Jeaurond’s common-law partner was the chief operator of the drug operation, she acknowledged that she knew of the ongoing criminal activity in her home and that her objective was financial.

[83] In Jeaurond, Justice Leroy found the large quantity of psilocybin in proximity to ten long guns to be aggravating factors, in addition to the fact that possession of the controlled substance was strictly for financial gain. [68] Justice Leroy noted that the absence of ammunition mitigated the juxtaposition of the long guns and psilocybin. Ms. Jeaurond had many mitigating factors including her guilty pleas, significant family and community support, lack of a criminal record, a university education, steady employment, and genuine remorse. Ultimately, notwithstanding these mitigating factors, Justice Leroy held that a period of incarceration was required.

[84] Like Justice Garg in Vagenos, I find that the facts in Jeaurond are sufficiently different from Mr. Gordon’s case, calling for a different sentence. [69] There is no doubt that those who take a more active role in the trafficking of psilocybin, for profit, in the circumstances outlined in Jeaurond, can expect that jail sentences might follow.

[85] Similarly, in Frost, the New Brunswick Court of Appeal stated that, “[t]hose convicted of possession for the purpose of trafficking or trafficking so called ‘soft drugs’ should, where the quantity of drugs is significant, where there is evidence of long term criminal activity, or where there is evidence of significant profit, face incarceration absent exceptional circumstances”. [70] Again, the circumstances of the offence and the offender in Frost are sufficiently different from Mr. Gordon’s case.

[86] Neither Jeaurond nor Frost are of assistance as comparator cases in fixing a proportionate sentence in Mr. Gordon’s case.

The Gravity of the Offence of Possession of Psilocybin for the Purpose of Trafficking

[87] An assessment of whether the principles of denunciation and deterrence, particularly general deterrence, require a jail sentence, served in the community or in a custodial facility, starts with an examination of the gravity of the offence. The gravity of the offence is also a relevant consideration in assessing whether a discharge is not contrary to the public interest. Section 5 of the CDSA sets out the offences of trafficking and possession for the purpose of trafficking, and addresses the available punishments, which vary based on the substance involved, and whether it is included in Schedule I, II, III, IV or V.

[88] Schedule I and II controlled substances are straight indictable offences which expose an offender to imprisonment for life. Trafficking or possessing Schedule III or V substances for the purpose of trafficking are hybrid offences. When prosecuted by indictment, the offender is liable to imprisonment for a term not exceeding ten years, and when the Crown proceeds by summary conviction, the maximum sentence is eighteen months in jail. Where the subject-matter of the offence is a substance included in Schedule IV, prosecution by indictment can lead to imprisonment for a term not exceeding three years, or imprisonment for a term not exceeding one year where the Crown proceeds by summary conviction.

[89] As the Supreme Court of Canada said in R. v. Friesen, 2020 SCC 9, “[m]aximum penalties are one of Parliament's principal tools to determine the gravity of the offence”. [71] Maximum penalties “are intended to give rough guidance respecting Parliament’s view of the gravity of the offence”. [72] For hybrid offences, “where the Crown elects to proceed summarily rather than by indictment, that is a relevant factor in determining the seriousness of the offence”. [73]

[90] In R. v. Sanatkar, the accused was convicted of two counts of trafficking in methamphetamine, contrary to the Food and Drugs Act, R.S.C. 1970, c. F-27. The offence was a hybrid one and the Crown had elected to proceed by way of summary conviction for which the maximum penalty was 18 months imprisonment. Had the Crown proceeded by way of indictment, the maximum penalty available would have been ten years imprisonment. Lacourciere J.A., writing for the Ontario Court of Appeal in Sanatkar, held that when Parliament creates a hybrid offence with widely divergent maximum sentences, it establishes a clear distinction between the summary conviction and the indictable offence. [75] The Court made it clear that the Crown's election affects the appropriate range of sentence:

... The gravity of the offence reflected by the maximum penalty provided for under the relevant paragraph is not only a relevant factor but is quite properly considered to be the most important factor in determining the fitness of the sentence. It is the most important indicator of parliament's evaluation of the gravity of the offence. In the case of a hybrid offence, such as the present one, parliament has seen fit to confer a discretion upon the Attorney General or his representative and the exercise of this discretion gives the Crown a control over the mode of prosecution which does not infringe any fundamental rights of the accused (see Smythe v. The Queen, , [1971] S.C.R. 680). The election to proceed summarily represents a prosecutorial choice of procedure reflecting the less serious nature of the offence and obviously affecting the permissible range of appropriate sentences. [76]

[91] Psilocybin is a substance included in Schedule III. In Mr. Gordon’s case, the Crown proceeded by summary conviction.

[92] The harm caused by the nature of the drug at issue plays a role in sentencing for drug trafficking. In Parranto, which dealt with fentanyl trafficking, Justices Brown and Martin wrote:

Moreover, the core offence in this case -- drug trafficking -- is not new. As the Crown points out, "[d]rug trafficking as an offence is easily quantifiable by reference to a variety of independent factors such as volume of drugs, price, and level of commerciality" (R.F., at para. 92). Another key factor in the categorization of drug offences, both in relation to criminality and sentencing, has always been the nature of the drug at issue. The composition and dangers of the drugs trafficked may change quickly. As the harms caused by the substance speak directly to the gravity of the offence, appellate courts may step in to provide guidance to ensure sentences reflect those harms, even where the drug is relatively new. We underscore the importance of this fact because harm-based analyses are not an unfamiliar judicial exercise in the sentencing context (Friesen, at para. 114). [77]

[93] Psilocybin is an illegal drug. [78] The case law sets out the adverse consequences both physical and psychological that may arise from its use, as well as some of the desirable effects. [79] Unlike fentanyl, psilocybin is considered safe in terms of physical toxicity. There is no evidence that psilocybin trafficking and use has led to addiction, deaths by overdose, or the devastation to families and communities like the hard drugs discussed in Parranto. Justice Jones noted in Osores that “the harmful effects of psilocybin continue to be studied”. [80]

[94] The Government of Canada website posting regarding psilocybin states:

…Currently, no studies have evaluated the long-term effects of repetitive use of magic mushrooms….

…There is little evidence that people can become physically or psychologically dependent on magic mushrooms… [81]

[95] Sentencing for psilocybin trafficking offences has not reached the point where Parliament, provincial appellate courts, or the Supreme Court of Canada have sent a clear message that denunciation and deterrence are to be prioritized to give effect to the profound wrongfulness and harmfulness of psilocybin trafficking offences. [82]

[96] While deterrence and denunciation are important principles to be taken into account when sentencing for these offences, they cannot overwhelm the other principles of sentencing simply because “Parliament has decided that the risks and potential harms associated with psilocybin justify the prohibition on its sale and consumption”. [83] Psilocybin is a drug of a much different character than drugs like heroin, cocaine and fentanyl, for which denunciation and deterrence are justifiably prioritized.

[97] Thus far, the primary question judges dealing with psilocybin dispensary cases have grappled with is whether “some form of imprisonment” [84] is necessary to give effect to the principles of denunciation and deterrence, even if served in the community in the form of a CSO.

The Aggravating Circumstances in Mr. Gordon’s Case

[98] I find it to be an aggravating circumstance that psilocybin dispensaries, like Shroomyz, operate in an open and public fashion but not because they are public displays of disrespect for the law. Rather, in my view, the aggravating features of the public nature of these businesses were aptly summarized by Justice Jones in Osores when he spoke of the potential confusion created by dispensaries regarding whether the products are legal, safe and reliable, and the fact that “[c]onsumers 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”. [85]

[99] I also agree with Justice Jones that the deception created by these businesses, that market themselves as legitimate, may attract children, teenagers, young adults and the uninformed who may purchase hallucinogens without knowing the potential harms and without knowing that they are purchasing them from an unregulated and criminal enterprise. [86] These same concerns are shared by Justice Tuck-Jackson in Abuce. However, Abuce has the additional aggravating factor that the business marketed itself as a “medical dispensary”, which is absent in Mr. Gordon’s case.

[100] It is an aggravating factor that Mr. Gordon participated in an illegal psilocybin trafficking dispensary which had the potential to create the confusion set out above. Mr. Gordon’s actions had the potential to result in the physical and psychological harms associated with the use of psilocybin in patrons, including consumers who were young and uninformed about the effects of the drug. Like Justice Jones in Osores, I cannot find that Mr. Gordon sold psilocybin products to underage customers or personally deceived anyone. No evidence was led in this regard.

[101] I wish to address the Crown’s reliance on the cases of Sullivan and Brown. These cases demonstrate that the voluntary ingestion of magic mushrooms containing psilocybin can lead to extreme intoxication akin to automatism, leading to tragic consequences. However, in my view, these cases do not permit the Crown to argue that Mr. Gordon’s sale of psilocybin was aggravating because of the potential consequence that someone who bought products from him at Shroomyz would consume them to extreme intoxication akin to automatism.

[102] First, the state of extreme intoxication can be caused by substances that are not illicit, as was the case with Mr. Sullivan who voluntarily took an overdose of a prescription drug and fell into an impaired state, attacked his mother with a knife, and injured her gravely. Next, there is no evidence that Mr. Gordon’s crime had such an exceptional effect on any of the patrons of Shroomyz that he served, so as to make it a relevant consideration on his sentencing. Furthermore, the exceptional state of extreme intoxication akin to automatism from ingestion of magic mushrooms containing psilocybin was not a reasonably foreseeable consequence of Mr. Gordon’s proscribed act.

[103] Although I find the public operation of the Shroomyz dispensary, and Mr. Gordon’s participation in it, aggravating for the reasons set out above, I wish to note that, ironically, the very public way in which this dispensary and others like it operate, assists law enforcement with the detection and dismantling of the operation. The Crown argues that their re-opening within a very short time thereafter, and the prevalence of these dispensaries in Hamilton, call out for deterrent and denunciatory sentences - jail sentences. I will address the Crown’s argument below.

The Mitigating Circumstances in Mr. Gordon’s Case

[104] The following mitigating circumstances are present in Mr. Gordon’s case:

(1) Guilty Pleas and Sincere Expression of Remorse

[105] Mr. Gordon entered guilty pleas as an expression of remorse and acceptance of responsibility. [87] This is consistent with s. 718(f) of the Criminal Code, which states that one of the purposes of sentencing is to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community. In his discussions with the author of the PSR, in his written submissions and during his allocution in court, Mr. Gordon was consistent and sincere in his expression of remorse for having worked at the dispensary. He is ashamed of his criminal conduct. I accept that he is genuinely remorseful, which makes him more likely to be successful in his rehabilitative efforts and thus a lower risk to reoffend. [88]

[106] The guilty pleas have spared the valuable court resources that would have been required for a trial. Saving the justice system the time and expense of a trial has been recognized as a mitigating factor to be considered on sentencing. [89]

(2) No Criminal Record and the Offences are Out of Character

[107] Mr. Gordon is 42 years old and has no prior criminal record. Although Mr. Gordon is not a youthful offender, he is a first-time offender. When sentencing a first-time offender, the primary objectives are individual deterrence and rehabilitation unless the offences are very serious or involve violence. [90]

[108] Mr. Gordon has had gainful legitimate employment in the past to support his family and partner, notwithstanding learning difficulties he experienced in school and limited education. He has a history of community involvement since his teenage years, including ten years running a food drive for local food banks. Mr. Gordon acted entirely out of character when he committed the offences for which he is being sentenced.

(3) Offences Committed in the Context of Stress and Financial Pressures

[109] Mr. Gordon accepted employment at the dispensary at a time which he described as “an unusual crisis situation” and “while greatly stressed”. The primary stress was financial because he was unemployed, but he and his partner had also separated at the time. Although Mr. Gordon continues to have difficulty finding employment, he reports that he and his partner have reconciled and “the stress/emotional crisis has been reduced”. Crimes that are “motivated by personal circumstances of a temporary nature are often viewed as mitigating”. [91] These personal circumstances can include financial difficulties, [92] and marital and family problems. [93]

(4) Store Clerk-Not a Manager/Owner

[110] Mr. Gordon was a store clerk in the dispensary. He was paid a wage and did not share in the profits of the business. Although perhaps not entirely accurate to call this a “mitigating circumstance”, it is a relevant consideration.

[111] In Sentencing, Tenth Edition, Clayton Ruby stated:

Where co-accused are involved in trafficking in a narcotic, the offender who acted as the directing mind of the operation will attract a higher sentence than those who were merely “employees”. As stated: “Moral blameworthiness increases with an offender’s degree (of) control and responsibility.” [94]

[112] The authors of Prosecuting and Defending Drug Cases, Second Edition said the following about the role of the offender in the distribution network:

…the accused’s role in the distribution network is often one of the most important factors in sentencing for trafficking, producing, or importing offences. A person who simply couriers or stores drugs for a distribution network but does not have a direct financial interest in the success and profitability of the network can often expect a significantly lower sentence as compared with a person with a greater stake in the network. [95]

(5) Compliance with Conditions of Release

[113] Since his arrest and release, Mr. Gordon has complied with the conditions of his release. There is no evidence of re-offending despite the difficulties Mr. Gordon has experienced securing employment since his arrest.

(6) Support of Family and Friends

[114] Mr. Gordon has the support of his mother, partner, and friends, which bodes well for his prospects of rehabilitation. He also has young sons whom he is committed to supporting. I find that the stability in his family life increases his prospects of rehabilitation.

The Sentence - A Conditional Discharge

[115] There are three statutory exclusions in s. 730(1) of the Criminal Code which bar consideration of a discharge as the appropriate sentence: (i) where the accused is an organization; (ii) the offence has a minimum punishment prescribed by law; or (iii) the offence is punishable by imprisonment for fourteen years or for life. None of these statutory exclusions exist in Mr. Gordon’s case.

[116] In the circumstances of Mr. Gordon’s case, I am satisfied that a conditional discharge is both in his best interests and not contrary to the public interest.

[117] With respect to the first requirement that a discharge must be in the best interests of the accused, I find that specific deterrence of Mr. Gordon himself is not a relevant consideration, except to the extent required by conditions in a probation order. [96] Mr. Gordon has been deterred by the prosecution itself as evidenced by the sincerity of his expression of remorse, his guilty pleas, his compliance with the conditions of his release and the absence of re-offending since his arrest. He is an offender of prior good character who acted out of character in committing these offences. On the record before me, I find that Mr. Gordon is a low risk to reoffend.

[118] Mr. Gordon has limited education. Throughout these proceedings, he has been candid about the difficulties he continues to have finding new employment and has stated that these outstanding charges have deterred potential employers from considering his applications for employment. It is foreseeable that registering convictions against Mr. Gordon for these offences, may have significant repercussions for him, especially with respect to his continuing efforts to re-enter the workforce. [97]

[119] Furthermore, I agree with the observation made by Justice Garg in Vagenos that a conditional discharge can have a specific deterrent effect. [98] A conditional discharge will continue to specifically deter Mr. Gordon. If he breaches the probation order or commits a new offence, the Crown could seek to revoke the discharge and have Mr. Gordon convicted and sentenced pursuant to s. 730(4) of the Criminal Code. An offender who is granted a conditional discharge must meet the terms of the probation order to earn a full discharge. [99]

[120] It must not be contrary to the public interest to grant some form of discharge. [100] One consideration is general deterrence; “the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a like offence”. [101] 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’". [102] However, “[d]ischarges are not restricted to trivial matters”. [103]

[121] In R. v. Pera, 2016 ONSC 2800, Justice Hill provides a useful summary of our sentencing jurisprudence that has developed governing principles relating to discharges. One of these principles is that “over-emphasis on the nature of the offence as not warranting a conditional discharge must be avoided”. [105] Justice Hill cites R. v. D’Souza, 2015 ONCA 805 as authority for this principle, a case which applies the principle in the context of drug trafficking, and merits closer examination. [106]

[122] In D’Souza, the accused entered a guilty plea to trafficking marijuana, a Schedule III substance at the time. The following is a summary of the facts:

He placed an advertisement on the website 'Craigslist' offering to sell half an ounce (14 to 28 grams) of marijuana. An undercover officer responded to the ad, saying that he needed a quarter pound (110 grams approximately). The appellant agreed to sell this amount for $750. The appellant and the undercover officer met at the Scarborough Town Centre and the transaction took place. The appellant was arrested immediately thereafter. [107]

[123] The Crown proposed a CSO of 120 days. The Defence argued for a conditional discharge. The sentencing judge imposed a $750 fine. Mr. D’Souza appealed the sentence saying, “that the sentencing judge erred in principle by interpreting the public interest too narrowly and by ruling that the nature of the offence, on its own, could not warrant a discharge”. The Ontario Court of Appeal accepted the appellant’s submission, set aside the fine and imposed a conditional discharge. In doing so, the Court of Appeal listed mitigating circumstances: (i) the appellant had taken remarkable steps to change his way of life, including successful treatment for his addiction to marijuana, (ii) substantial volunteer work, (iii) part-time employment, and (iv) full-time university studies. The Court of Appeal went on to say:

The trial judge recognized the appellant's progress, but seemed focussed heavily on general deterrence. In the circumstances of this case, we think there was room to recognize that a criminal record for this first time youthful offender was not necessary. [108]

[124] The Court of Appeal’s decision in D’Souza, therefore, cautions sentencing judges not to place undue focus on general deterrence in the assessment of whether or not a discharge would be contrary to the public interest. This approach is consistent with the sentencing principle of individualization.

[125] In my view, it is not enough to find that a conditional discharge would be contrary to the public interest because Mr. Gordon intentionally participated in a commercial drug trafficking operation. This would preclude the granting of a discharge in every case of drug trafficking, which was the error made by the sentencing judge in D’Souza. The nature of the substance is fundamental to an assessment of the gravity of the offence. Psilocybin is a Schedule III substance. The adverse physical and psychological consequences of psilocybin use are not so grave as to require a finding that a conditional discharge for selling it, or possessing it for the purpose of sale, would be contrary to the public interest. General deterrence in this case can be achieved by the imposition of a conditional discharge. [109]

[126] The Crown submits that, in fashioning an appropriate sentence, I should consider local conditions, specifically the prevalence and recent proliferation of magic mushroom dispensaries in Hamilton. Furthermore, the frequency of an offence in the community may be one of the factors a court considers when assessing the public-interest branch of the statutory test for granting a discharge. [110]

[127] Justice Wagner (as he then was), writing for the majority in Lacasse, explained how this might be a relevant consideration on sentencing:

Although the fact that a type of crime occurs frequently in a particular region is not in itself an aggravating factor, there may be circumstances in which a judge might nonetheless consider such a fact in balancing the various sentencing objectives, including the need to denounce the unlawful conduct in question in that place and at the same time to deter anyone else from doing the same thing. It goes without saying, however, that the consideration of this factor must not lead to a sentence that is demonstrably unfit. [111]

[128] Court dockets in Hamilton, and in particular the Ontario Court of Justice, have seen a recent rise in cases dealing with magic mushroom dispensaries. This fact is evident from the cases I have reviewed in this decision, other unreported cases Crown counsel referred to in his submissions, and outstanding cases of which I am aware. However, in the circumstances of Mr. Gordon’s case, the imposition of a sentence of imprisonment, even a CSO, would be disproportionate to the gravity of the offence and his degree of moral blameworthiness. Registering a conviction against him and imposing a CSO for the purpose of addressing the prevalence of magic mushroom dispensaries in Hamilton would put the full weight of deterrence and denunciation on a store clerk, not sharing in the profits of the business, who comes to court with other significant mitigating circumstances.

[129] In support of its position that a CSO is an appropriate sentence for Mr. Gordon, the Crown relies on the following passage in Lacasse:

While it is true that the objectives of deterrence and denunciation apply in most cases, they are particularly relevant to offences that might be committed by ordinarily law-abiding people. It is such people, more than chronic offenders, who will be sensitive to harsh sentences. [112]

[130] Justice Wagner (as he then was) made this statement in the context of the offences of impaired driving causing bodily harm or death. It is not an invitation to impose a disproportionate sentence in all cases involving ordinarily law-abiding people. Impaired driving offers an apt example. Impaired drivers who have the good fortune of not causing bodily harm or death are often spared jail and receive fines whereas those who cause those devastating consequences receive significant sentences of imprisonment. Lacasse merely confirmed that the principles of denunciation and deterrence must be emphasised to convey society’s condemnation for the offences of impaired driving causing bodily harm or death because of the gravity of the harm caused by those offences.

[131] Imposing a CSO on Mr. Gordon, an otherwise law-abiding citizen, for the offence of possession of psilocybin for the purpose of trafficking to deter otherwise law-abiding citizens from committing the same offence would again place undue weight on the principles of general deterrence and denunciation, and not give proper consideration to the principle of restraint contained in ss. 718.2(d) and (e) of the Criminal Code.

[132] In the circumstances of Mr. Gordon’s case, the principles of sentencing, including denunciation and deterrence, can be achieved without a sentence of imprisonment or registration of convictions. He is a first-time offender, who has entered guilty pleas and expressed sincere remorse for having committed criminal offences. His criminal conduct was out of character for him and happened at a time when he was experiencing financial difficulties and family problems. The Ontario Court of Appeal has recognized that a discharge may be appropriate where the offence is out of character for an accused who “is in the midst of some kind of mental turmoil or some unusual disturbance in his life's routine”. [113] Mr. Gordon has excellent prospects of rehabilitation, fostered by the support of family and friends.

[133] Mr. Gordon was not the directing mind of the dispensary, nor did he have a direct financial interest in the success and profitability of the business. In my view, it would be a mischaracterization of Mr. Gordon’s level of moral blameworthiness to say that he was instrumental in the operation of the dispensary. He was not motivated by greed but rather an attempt to ameliorate his desperate circumstances at the time. Mr. Gordon was an employee who was dispensable to the directing minds of the criminal enterprise.

[134] A conditional discharge is also consistent with the principle of parity in s. 718.2(b). A review of the caselaw shows that conditional discharges have been imposed for employees in magic mushroom dispensaries when mitigating circumstances similar to those of Mr. Gordon have been present. The fact that sentences for possession of psilocybin for the purpose of trafficking, in the context of magic mushroom dispensaries, range between a conditional discharge and a CSO is merely a reflection of the application of the principle of individualization; “[n]o one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case”. [114]

Sentence

[135] Mr. Gordon is discharged on the conditions prescribed in a probation order. [115] The sentence is concurrent on both counts. The probation order will run for 2 years on the following terms:

(1) Keep the peace and be of good behaviour. (2) Appear before the court when required to do so by the court. (3) Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change in employment or occupation. (4) Report in person or by telephone to a probation officer within two working days, and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision. (5) Your reporting requirement ends when you have satisfied your probation officer that you have: (a) completed all your community service hours; and (b) completed all your counselling. (6) Cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this order to your probation officer on request. (7) Attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer. (8) You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling, or rehabilitative programs as directed. (9) You shall provide proof of your attendance and completion of any assessments, counselling, or rehabilitative programs as directed. (10) Perform 80 hours of community service work on a rate and schedule to be directed by the probation officer, but the hours must be completed within 18 months of the start date to this order. (11) Make reasonable efforts to seek and maintain suitable work and provide proof of same as required by the probation officer. (12) Do not seek or maintain employment in any business or organization that sells psilocybin in any form to members of the public.

[136] Pursuant to s. 109(1)(c) and s. 109(2) of the Criminal Code, I make an order prohibiting Mr. Gordon from possessing any firearm (other than a prohibited firearm or restricted firearm) and any crossbow, restricted weapon, ammunition, and explosive substance for a period of 10 years, and prohibiting him from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

[137] I waive the victim surcharge as I find it would cause undue hardship to Mr. Gordon.

Released: December 13, 2024 Signed: Justice J.P.P. Fiorucci