Court File and Parties

COURT FILE NO.: 17-17

DATE: 20180614

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Greg Alexander Roy

Defendant

COUNSEL:

Tilton Donihee, counsel for the Federal Crown

Michael Purcell, counsel for the Provincial Crown

Ian Paul, counsel for the Defendant

HEARD: June 11th, 2018 Oral Reasons on June 14th, 2018

REASONS FOR SENTENCE

LACELLE J.

Introduction

[1] The offender, Mr. Roy, has been found guilty of production of cannabis marihuana under ss. 7(1) of the Controlled Drugs and Substances Act and possession of psilocybin (magic mushrooms) for the purpose of trafficking pursuant to s. 5(2) of the CDSA. In addition, he has been found guilty of the following offences under the Criminal Code of Canada: careless storage (s. 86(2)), unauthorized possession of a firearm (s. 91(1)), possession of a prohibited firearm with readily accessible ammunition (s. 95), and possession of a restricted firearm contrary to an order under s. 109 of the Code (s. 117.01). Following my ruling dismissing his pre-trial application to exclude evidence seized by police, Mr. Roy pleaded not guilty to the offences. However, he consented to the Crown filing an Agreed Statement of Facts. No additional evidence was presented at trial.

[2] Mr. Roy is before me now for sentencing. The defence argues that he should be sentenced to a period of 2 years in custody. The Crowns argue that consecutive sentences should be imposed for the drug and gun offences, resulting in a sentence of between 5 years and 9 months and 6 years.

Overview of the offences

[3] The circumstances of the offences may be briefly summarized. In June of 2015, police executed search warrants on the rural property where the offender lived with his spouse. A third individual had been living on the property for about a month.

[4] The premises were found to contain a cannabis grow operation in a Quonset hut. Police found 755 plants at various stages of growth. The estimated value of the plants that could be harvested for their product was between $7, 200 and $8, 800.

[5] During the search of the residence, police found approximately 28 kg of psilocybin mushrooms located in a suitcase in the basement in individually packaged Ziploc bags. Police found 123 bags, each containing approximately a half pound of mushrooms. The estimated value of the mushrooms was between $30, 750 and $61, 500.

[6] The expert evidence report which provides the assessment of the value of the drugs seized also further details the production methods being used. While the report noted that the marijuana grow operation was not optimally set up to maximize yield, given the totality of the evidence, I conclude that this was a sophisticated and commercial enterprise.

[7] During the execution of the warrant, police also seized 52 items believed to be firearms. Twelve of these items were found to be firearms within the definition of the Criminal Code. Two of the firearms were handguns which were classified as restricted firearms. Ten firearms were non-restricted firearms. The balance of the 52 items seized were deemed not to be firearms for various reasons. In at least two instances, this was because the item seized was "rare". No ammunition was available to the police to test them because of that. Other items had "deteriorated" or were otherwise inoperable.

[8] One of the handguns found to be a restricted firearm (the Luger), was tested and fired with ammunition located in the same room in the upstairs of the residence. The other handgun which met the definition of a restricted firearm (the Browning) was fired with "police stock ammo".

The positions of the parties

The defence

[9] Counsel for the defence argues that a sentence of 1 year is appropriate for the drug offences with a further sentence of 2 years for the weapons offences resulting in a global sentence of 3 years. He submits that given the time the offender has spent on pre-sentence bail, his 11 days in pre-sentence custody, and the credit which might be given to reflect the breach of his Charter rights by police, a reduction in sentence of a year is appropriate. This would leave a sentence of 2 years to be served from this date.

[10] The defence emphasizes the evidence showing that the offender is also a collector and that some of his firearms were antiques. He says the evidence supports the offender's contention that he was not using the weapons to defend his drug operation. Given that none of the firearms in this case were found in a loaded condition, and other circumstances, counsel argues that the dangerous circumstances described in some of the sentencing case law for similar weapons offences are not found here. While he acknowledges the offender was bound by a prohibition order and was not licensed, the fact that the offender collected weapons as a hobby means that his offences did not present the same level of danger as in some of the cases where the weapons were actively used in the course of the drug operation.

[11] The defence distinguishes many of the cases relied upon by Crown counsel on various bases, including whether a mandatory minimum sentence was in force at the time those cases were decided.

The federal Crown

[12] The federal Crown submits that a sentence of 12-15 months is appropriate for the production of marijuana while the sentence for the possession for the purpose of trafficking the psilocybin mushrooms should be 9 months consecutive. This results in a global sentence of 21-24 months for the drug offences. Counsel's position is premised on the sentences for the drug offences being imposed consecutively to those for the weapons offences.

[13] Counsel acknowledges that there are few cases to demonstrate a range for the trafficking offence where the involved substance is psilocybin mushrooms. Given the significant quantities found here, and the relatively low quantities at issue in the case law, he submits that the sentence for this offence is properly made consecutive to the marijuana related offence.

[14] Counsel highlights that the offender in this case has never had a drug addiction, does not use drugs, and that the drug operation here was purely for commercial gain. While some of the aggravating factors in the marijuana drug operation cases are not present here, such as the presence of a hydro by-pass, in this case, there is the aggravating feature of the cache of firearms that was located. Counsel further emphasizes the offender's role as a chief operator, as opposed to being a gardener for the operation.

The provincial Crown

[15] The provincial Crown argues that a global sentence of 4 years consecutive to the sentence for the drug offences is fit given the limited mitigating factors and significant aggravating factors at play in this case. He suggests that the s. 95 count should attract a 3.5 year sentence, with 3 years concurrent being imposed on the balance, save for the breach of the s. 109 prohibition which should attract a consecutive sentence of 6 months. Counsel emphasizes that the offender possessed the firearms found while engaged in a purely commercial drug enterprise. He submits that this sentence would address the quantity of firearms found, the seriousness of the s. 95 offence (an offence for which even first time youthful offenders receive significant custody), the presence of a firearm in the kitchen of the residence, the breach of a court order, and the offender's status as a repeat offender.

[16] As regards the defence submission that the antique nature of his collection mitigates the risk it posed, the Crown submits that even antique guns are capable of causing serious bodily harm or death, and that their presence in the context of a commercial drug operation creates inherent risk. This is so regardless of any specific intent the offender says he had for his possession or use of the firearms.

The general principles of sentencing

[17] The Criminal Code sets out a number of principles of sentencing which must be considered in determining a fit sentence.

[18] The fundamental purpose of sentencing is confirmed in s. 718. That section provides that the sanction imposed by the court should have one or more of the following objectives:

a. To denounce 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 and to the community.

[19] In sentencing an offender, s. 718.1 provides that the court must adhere to the fundamental principle of ensuring that the sentence imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 of the Code identifies additional principles of sentencing, including that the court should increase or decrease the sentence to account for any relevant aggravating or mitigating factors.

Circumstances of the offender

[20] The offender is 43 years old. He has a criminal record for production of a scheduled substance under s. 7(1) of the CDSA from 2002 but no other record.

[21] The offender is in a stable and supportive relationship with his long time spouse, who was also a co-accused in this matter. The offender reports a difficult relationship with his father who was abusive. His relationship with his mother was positive, however, and the two remain close.

[22] As far as education and employment are concerned, the offender has completed some post-secondary education at the college level. While in school, he reportedly did well. He has worked in farming, mechanics and restoring furniture. He recently started a furniture business through e-bay and buys and sells antique furniture. This business venture is working well for him and is his main source of income. Friends and associates acquired in connection with that business describe the offender as kind and outgoing. His friends reportedly had no knowledge of the offender's criminal conduct until after charges were laid.

[23] The offender does not suffer from any addictions. He does not use alcohol. He has no mental health issues.

Aggravating and Mitigating Factors

Mitigating Factors

The offender's history of stability and social support

[24] The PSR indicates that the offender is capable of leading a stable life. He has managed to establish a new business venture while on bail conditions. He has been with his spouse for over 20 years. He has a supportive relationship with his mother, and associates who speak well of him. In his letter to the court about his time on bail since the charges were laid, the offender indicates that he plans to open an antique store when his legal issues are behind him. There is good reason to expect that the offender can lead a pro-social life going forward.

The offender's consent to the filing of an agreed statement of facts

[25] The defence argues that while the offender did not plead guilty, his conduct in not contesting the Crown's ability to present its case with an agreed statement of fact shortened the court time required for this matter. While the accused is not entitled to the mitigation that a plea or other evidence of remorse might provide, and there is a fair argument to be made that the triable issues in this case were litigated fully without concessions demonstrative of remorse, I do consider that the offender's consent to the filing of an agreed statement of fact conserved court resources as well as the resources of the police since officers were not required to testify at trial.

Sentence reduction to remedy a Charter breach

[26] The defence seeks a reduction in sentence by reason of the Charter breaches committed by police during their investigation. One of the breaches related to the police failure to file the report to a justice as required by the Criminal Code following the execution of the search warrant. The other resulted from the police providing the offender with a defective copy of the search warrant. The breaches were further assessed and discussed in my ruling on the pre-trial application brought by the offender so I do not repeat my findings here.

[27] The Supreme Court of Canada has held that police violence or other state misconduct may be a relevant factor in crafting a fit sentence regardless of whether a Charter breach has been proved: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at para. 3, 53-55. If a Charter breach has been established, a trial judge may reduce the sentence accordingly, "so long as the incidents giving rise to the breach are relevant to the usual sentencing regime": at para. 55. As explained by the court at para. 48, this is because "s. 718.2(a) of the Code provides that a court should reduce a sentence "to account for any relevant ....mitigating circumstances relating to the offence or the offender." It further directed that "[a]s mitigating factors, the circumstances of the breach would have to align with the circumstances of the offence or the offender ... Naturally, the more egregious the breach, the more attention the court will likely pay to it in determining a fit sentence".

[28] In some cases, such as in those involving excessive force used by police, an offender's sentence has been reduced to reflect that misconduct. Sentences have also been reduced to reflect excessive but not unconstitutional delay, unlawful searches, police conduct short of entrapment, and other circumstances creating harm or prejudice to the offender: see Nasogaluak at paras. 50-54.

[29] The Crown argues that the case of R. v. Shin, 2012 ONSC 6293, varied at 2015 ONCA 189, is analogous to this one. In that case, the offender had suffered what were described as "very minor injuries" during the course of his arrest. In addition, police were found to have breached his s. 8 and 10(b) rights. While the breaches were described as serious, they were not found to be the product of bad faith by police. No evidence had been obtained as a result of the breaches. Citing Nasogaluak at para. 48, the sentencing judge held that "[g]iven the absence of anything approaching egregious conduct on the part of the police, I see no need to mitigate this sentence for what are merely technical breaches of the Charter". This finding was not disturbed on appeal.

[30] I arrive at a similar conclusion. The breaches in this case were not the product of bad faith. No evidence was obtained as a result. The offender suffered no physical injury or prejudice because of them. I am not persuaded that the nature of the Charter breaches in this case align with the circumstances of the offence or offender to the point that they ought to mitigate the offender's sentence.

Credit for restrictive bail terms

[31] Restrictive pre-sentence bail terms are a factor which may mitigate a sentence. House arrest in particular is a form of punishment. When it is imposed in advance of a finding of guilt, an offender receives no credit towards parole eligibility.

[32] The relevant principles to be considered in determining whether to give an offender credit at sentencing were articulated in R. v. Downes, [2006] O.J. No. 555 (C.A.). Various cases have applied those principles since then, including R. v. Daley, 2016 ONSC 3513. In that case, Durno J. provides a useful summary of the law at paras. 24-34. I have considered the principles contained in that summary.

[33] In this case, the offender was released on bail following 11 days of pre-sentence custody. He has been subject to a bail order for approximately 3 years now. The terms of the bail involved house arrest, but permitted the accused to leave his residence in the presence of his surety. About a year later, and on consent of the Crown, an additional surety was added with whom he could also leave his residence. He was also permitted to travel within a radius of 200 km with a surety, which allowed him to pursue his furniture business.

[34] The offender has presented evidence of the impact of the bail conditions which has not been contested by the prosecution. The offender describes the limits on his freedom while bound by his bail conditions, including not being able to attend at a hospital emergency room when he was ill because his surety would not wait with him. He indicates his sureties were only available on a limited basis and his activities were severely curtailed as a result. For instance, his ability to further develop his business was diminished. He was unable to be with his father and mother when his father became extremely ill and died. In the aftermath of his father's death, he was unable to be there for his mother who has no other meaningful support. An email from the offender's mother confirms this impact.

[35] During submissions, counsel agreed that the Crown had consented to the variation permitting the second surety and radius extension and that no other applications to vary had been made by the offender. Counsel for the defence does not rely on the portion of the offender's letter about seeking a variation for employment because that request was never formally presented to the Crown.

[36] Based on this evidence, counsel for the defence argues that the offender should receive a credit of 3-4 months for each year he has been subject to his bail conditions, for a total credit of between 9-12 months.

[37] The provincial Crown says that the bail conditions in this case were like those in Dailey, and can be described as "moderately stringent". He notes that they permitted the offender to leave his home with his sureties and that he was able to further his business while on bail. Accordingly, this was not the strictest form of house arrest. The offender also had a substantial property available to him and to the extent that he was confined to it, this was not as onerous a situation as in some cases where the living conditions experienced by offenders have been considerably more confined. The Crown also draws the court's attention to the case law that has commented on the offender's diligence in seeking a bail variation: see for instance R. v. Magno, 2011 ONSC 5552 at para. 66; R. v. Vallada at para. 23, citing R. v. Junkert (2010), 2010 ONCA 549, 259 C.C.C. (3d) 14 (Ont. C.A.), at p. 22, R. v. E.H., 2015 ONCA 532, at para 54 and R. v. Peterkin, 2013 ONSC 2116, at para. 41. Counsel submits that nothing precluded the offender from applying to a court for further review of his conditions. Ultimately counsel argues that nothing but a modest reduction in the sentence is warranted given this record.

[38] While it is clear post-Downes that credit for pre-sentence bail conditions is a matter of discretion and not subject to a rigid formula, some courts have chosen to assign specific periods of time to the credit given. Other courts have elected to consider the pre-sentence deprivation of liberty as part of the overall balancing of factors: see for instance R. v. Sanchez, 2018 ONSC 1294 at para. 32. I prefer the latter approach in this case.

[39] In terms of my findings on this issue, I find that the conditions at issue here were more stringent than those in Daley. There were no exceptions to the house arrest at all, including for the purposes of employment or emergencies. However, I also have no evidence that at the outset of these proceedings there was any employment held by the offender which might have favoured that exception being included in his conditions at that time. Notwithstanding these restrictive conditions, the offender was able to pursue his business, albeit not to the same extent that would have been possible without the house arrest term. As in Magno, I also question why the offender did not apply to the Crown or the court for further variation of his conditions. Nevertheless, I find that offender has presented evidence of the impact of the bail conditions upon him and that his liberty interests were meaningfully affected over the course of approximately 3 years. His ability to carry on normal relationships, employment and activity were all curtailed. The impact of that was particularly felt during the period when his father was ill and following his death. These restrictions on the offender's liberty are appropriately considered in mitigating sentence. I will address how this mitigation will be given effect later in my reasons.

The aggravating factors

The prior criminal record

[40] As previously indicated, the offender has a dated but related record. In 2002 he was convicted of production of a scheduled substance pursuant to s. 7(1) of the CDSA. While the gap principle applies and tempers the impact of the record, this is nevertheless an aggravating factor on sentencing.

The number of firearms involved in the offences and their locations

[41] The number of firearms involved in a case may be an aggravating factor: R. v. Delchev, 2014 ONCA 448 at para. 11. I consider therefore that the offender ran the drug operation from premises which contained twelve firearms, two of which were handguns. A majority of the firearms, including the gun involved in the s. 95 offence, were found in the residence. At least one firearm was located in the kitchen. Even though no firearm was found in a loaded condition, the careless storage of the firearms and ammunition in the residence heightened the risk they posed.

The combination of drug and gun offences

[42] As in Delchev, while I find that there is no evidence that the offender used the firearms in connection with the drug operation, the combination of drug and gun offences is aggravating: see para. 11. This is because possessing firearms in these circumstances increases the risk of their use.

[43] I have considered the defence argument that the antique nature of the offender's firearm collection meant it presented less of a risk than if it had consisted of modern firearms. I have limited evidence about the era in which the firearms were manufactured, though there is evidence before me that a number of the items seized from the property had deteriorated or were inoperable. In any case, my concern in this matter is with the twelve firearms that were found to be operable and to meet the definition of "firearm" in s. 2 of the Criminal Code. I am not persuaded that the antique nature of any of the firearms meeting that definition is mitigating. While I agree with the defence that it would certainly be aggravating had the offender also possessed automatic weapons or a silencer, the absence of these items does not render the firearms that were found any less capable of causing serious bodily harm or death.

The breach of a court order

[44] The offender was bound by a lifetime s. 109 order as a result of his prior drug conviction. He flagrantly disregarded the court's authority in possessing restricted firearms. I fail to see how the offender's claim that he had these firearms in his collection as a hobbyist can assist him in the face of this court order.

The offences were motivated by greed

[45] As argued by the federal Crown, the evidence points to the conclusion that the offender was uniquely motivated by greed in the commission of his offences. He was not caught in the drug sub-culture because of his own addictions. There are no other sympathetic circumstances that led to the commission of the offences. They were committed for profit.

The commercial and sophisticated nature of the drug operation

[46] The size of the drug operation is also significant. The circumstances in which the drugs were found permit no conclusion other than this was a sophisticated and commercial operation.

The offender's role in the drug operation

[47] The evidence supports the conclusion that the offender was a chief operator in the drug operation. He was not a gardener or a mid-level participant. This increases his moral blameworthiness for the offences.

Analysis

[48] In determining a fit sentence for Mr. Roy, I am assisted by the cases presented by counsel. For the defence, these include: R. v. Serban, 2017 BCSC 1443, R. v. Macsanszky, 2013 ONCA 672, R. v. Li, 2007 ONCA 645, R. v. Ingster, [2003] O.J. No. 4586 (C.A.), R. v. Delege, 2017 BCSC 1504, R. v. Woodward, 2015 BCSC 2227, R. v. James, 2017 ONSC 473, R. v. Dunstan, 2016 ONSC 971, R. v. Di Ruzza, 2016 QCCQ 9275. In turn, the provincial Crown relies on: R v. Thavakularatnam, 2018 ONSC 2380, R. v. Delchev, 2014 ONCA 448, R. v. Boussoulas, 2015 ONSC 1536, upheld at 2018 ONCA 222, R. v. Whyte, 2011 ONSC 181, R. v. Hector, 2014 ONSC 1970, R. v. Ball, 2014 BCCA 120 and R. v. Trott, 2014 BCSC 2299. The federal Crown directs the court to these additional cases: R. v. Sanchez, 2018 ONSC 1294, R. v. Hobeika, 2018 ONSC 1293, R. v. Lauda, [1999] O.J. No. 2180 (C.A.), R. v. Nguyen, 2007 ONCA 645, R. v. Doan, 2011 ONCA 626, R. v. Zheng, 2014 ONCA 345, R. v. Vu, 2015 ONSC 5834, R. v. Pham, 2016 ONSC 5312, R. v. Vu, 2018 ONCA 436, R. v. Tran, 2017 ONSC 651, and R. v. Lee, 2017 ONSC 3304.

The firearms offences

[49] With respect to the firearms offences, the seriousness of these offences and particularly offences contrary to s. 95 of the Code have been repeatedly discussed in the case law. As noted by Akhtar J. in R v. Thavakularatnam, 2018 ONSC 2380 at para. 18 in the course of his review of the recent case law at paras. 14-21, "the appellate authorities emphasize the need for a severe sentence to meet the gravity of the offence even when the offender is young and has a previously unblemished character". Indeed, our Court of Appeal has given the following direction in R. v. Smickle, 2014 ONCA 49 at para. 19:

Most s. 95 offences will attract a penitentiary term even for first offenders. Offences like that committed by the respondent, while somewhat less serious than the typical s. 95 offence, will demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders.

[50] Sentences for breaching firearms prohibition orders also attract jail sentences. While it is not binding on me, I agree with the conclusion of the Court of Appeal for British Columbia that sentences on s. 117 breaches should generally run consecutively to a s. 95 offence: see R. v. Ball, 2014 BCCA 120 at para. 24; see also R. v. Hector, 2014 ONSC 1970 at para. 43. In that case, the court also accepted a typical range of sentence is between six months and one year.

[51] While I have considered all of the authorities provided to me by counsel, the cases considered by our Court of Appeal assist a great deal in determining the appropriate range of sentence.

[52] The case of R. v. Boussoulas, 2015 ONSC 1536, upheld at 2018 ONCA 222 is also instructive. In that case, the offender pleaded guilty after the trial judge dismissed his application to exclude evidence. The circumstances of the offender were particularly sympathetic. He had obtained the firearm which was the subject of a s. 95 conviction to protect himself and his family because he had become a witness in a drug case. He was a 65 year old man with ongoing health problems, no prior record, with family support and an impressive work history. He was described as "a good family man and a hard-working, contributing member of society". He was sentenced to 21 months in jail because he had a loaded handgun hidden behind a bureau in his bedroom. The sentencing judge noted at paras. 19-20 that the offence was not akin to a regulatory matter (as discussed in R. v. Nur, 2014 S.C.C.A. No. 17) and was properly considered a "true crime".

[53] While the handgun which is the subject of the s. 95 count was not found in loaded condition in this case, this case presents with many more aggravating factors, including the prior record of the offender, a prior court order prohibiting him from possessing the firearm, the number of firearms and other firearm offences that were committed, and the fact that they were found in premises which also housed a drug operation run by the offender. One of the mitigating factors present in Boussoulas is also absent here - the offender's guilty plea and expression of remorse and insight into his conduct. If the offences in Bassoulas could attract a sentence of 21 months, the sentence here must be much more significant. I cannot accept the position of the defence that a sentence of 24 months is appropriate.

[54] The case of Delchev is closer to this one on the facts. In that case the 36 year old offender had a prior but less serious criminal record from 1991 for possession of a narcotic and possession of property obtained by crime under $1000. His most serious prior sentence was a fine and probation. He was employed as a fibre optics technician and was a drug user. The trial judge did not accept he was an addict, and found that he was carrying on a small trafficking business for financial gain. He was convicted following a jury trial of various drug and firearms offences, including a s. 95 offence and two counts of possession for the purpose of trafficking. The s. 95 offence involved a prohibited firearm with readily accessible ammunition. This offender was also convicted of possession of a prohibited device (a high-capacity magazine for an assault rifle). The offences were discovered following the execution of a search warrant at the offender's residence. Police found what was described as a "veritable arsenal" of weaponry plus ammunition as well as some drugs and related paraphernalia. The drugs found were cocaine (10.5 grams), oxycodone, marijuana and hashish. The firearms included an assault rifle, a pistol with readily accessible ammunition, and three rifles. Additional knives and weapons were also found, in addition to a paper target, military literature, a silencer and body armour.

[55] The trial judge found that there was no evidence that the respondent ever used the firearms in connection with his drug business. Additional factors considered on sentence included that the offender had expressed some remorse and responsibility for his actions. The trial judge imposed a global sentence of 3.5 years. While the Court of Appeal found that this was at the low end of the range, it held that this sentence was fit. Even in the context of this case, where the firearms were not actively used, and the s. 95 offence did not involve a loaded gun, the Court of Appeal held at para. 20 that "the increase in gun violence and in gun violence associated with drug dealing in Toronto, requires the imposition of significant sentences in order to address the goals of denunciation and deterrence and to express society's abhorrence of this increasing, extremely serious phenomenon".

[56] I agree with the defence that while Delchev also involved a significant quantity of firearms, the nature of the firearms found in Delchev are more concerning than those involved in this case. However, a number of aggravating factors in the case before me are not present in Delchev, including the more recent and related prior record of the accused, the scope of the drug operation, and the offender's breach of the prior firearms prohibition. Again here there is the absence the mitigation that comes with an offender's expression of remorse and responsibility for his actions. The absence of any evidence of remorse or insight on the part of Mr. Roy, particularly in combination with the breach of a prior court order, makes specific deterrence a more prominent issue in this case than with the offender in Delchev.

[57] To be clear, as was observed by Trotter J. (as he then was) in R. v. Vallada 2016 ONSC 887 at para. 17, a lack of remorse is not an aggravating factor. The offender is entitled to maintain his innocence. But the lack of remorse "requires that, in addition to general deterrence and denunciation, [the court] must also address specific deterrence". That is particularly true here given the s. 117.01 offence.

[58] Given all the authorities, and the circumstances of the offence and offender here, I conclude that a global sentence of 4 years is appropriate for the firearms offences.

The drug offences

[59] The authorities relating to the drug offences show the wide divergence in sentences and the interplay of various aggravating and mitigating factors in these kinds of cases. Crown and defence counsel agree that there is very little authority involving cases with psilocybin mushrooms. The cases involving this substance have tended to involve offences involving even more harmful narcotics, and far lesser amounts of psilocybin. The sentences imposed for the psilocybin mushroom related offences have generally been concurrent sentences to the sentences imposed for the more serious charge. Those sentences have been in the range of 9 to 12 months: see Dunstan, Sanchez, and Hobeika.

[60] Insofar as the production of marijuana is concerned, it is difficult to find a case with the number of plants at issue here, but also the low value estimated for what was seized, quite apart from all the other factors which affect the range of sentence. The cases provided to the court show ranges in sentence from 9 months to 2 years, albeit in some of those cases the mandatory minimum sentences were still in force.

[61] Counsel for the Crown argues that the marijuana production should attract a sentence of 12-15 months, and that a consecutive sentence of 9 months is appropriate for the psilocybin offence. As indicated previously, this would result in a sentence of between 21 and 24 months. The defence argues that a global sentence of 12 months is fit.

[62] Given the circumstances before me, and applying the principle of totality to the drug offences alone, I find that a global sentence of 18 months is the least restrictive sentence that is appropriate for the drug offences. While I am mindful that "there is no absolute rule that drugs and weapons convictions must attract consecutive sentences in all cases" (see Delchev at para. 34), I find that the sentence for the drug offences and the sentence for the firearm offences should run consecutively in this case. The offences engage different societal interests and are not part of the same endeavour. Given the presence of a prior s. 109 order which was breached by the offender, issues of specific deterrence also favour consecutive sentences for the firearms offences.

[63] In these circumstances, as argued by the defence, the totality principle must be further considered and applied. I also apply the mitigating credit for the pre-sentence custody and deprivation of liberty to these offences. In the result, I find that sentences of 12 months concurrent on each of the drug offences is fit having regard to the sentence also imposed on the firearms offences.

Conclusion

[64] The resulting global sentence will therefore be 5 years in prison. In arriving at that global position, I have also applied the gap principle. Had the offender's record been more recent, the global sentence of 6 years sought by Crown, and possibly a higher sentence, would have been more appropriate.

The sentence imposed

[65] In the result, Mr. Roy will be sentenced as follows:

[66] For the s. 7(1) offence, count 1 for sentencing, 12 months in custody.

[67] Fort the s. 5(2) offence, count 2 for sentencing, 12 months in custody, concurrent to count 1.

[68] For the s. 95 offence, count 3 for sentencing, 3.5 years consecutive to count 1.

[69] For the s. 91 offence, count 4 for sentencing, 3 years concurrent to count 3.

[70] For the s. 86 offence, count 5 for sentencing, 3 years concurrent to count 3.

[71] For the s. 117.01 offence, count 6 for sentencing, 6 months consecutive to count 3.

[72] With respect to the ancillary orders, there will be an order under s. 109 of the Code for life. The offender is ordered to provide a sample of his DNA. There is a forfeiture order pursuant to s. 491 of the Code. Finally, I impose the Victim Fine Surcharge in the amount of $1200.

The Honourable Justice Laurie Lacelle

Released: June 14th, 2018