CITATION: R. v. Davis, 2026 ONSC 1520

COURT FILE NO.: CR-24-90000072-00AP

DATE: 20260312

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

STOLLMEYER DAVIS

L. Precup-Pop, for the Crown

K. Tousaw and J. Lloyd, for the Respondent

HEARD: October 27, 2025

S.A.Q. AKHTAR J.

1On appeal from the sentence imposed on 28 October 2024 by Justice Michael Block of the Ontario Court of Justice.

FACTUAL BACKGROUND AND OVERVIEW

Background Facts

2On the afternoon of 12 August 2023 police conducted surveillance of the Shroomyz store, an establishment openly selling psilocybin located at 488 Queen Street West in Toronto. The store’s business hours, advertised online, were between 10 a.m. and 11 p.m., seven days a week. The officers observed, within a half hour period, 24 persons enter the store, some of whom left the store holding a logo free white bag. Their online store advertised availability of a list of psilocybin products including psilocybin-infused chocolate and gummies.

3Police applied for and were granted a search warrant under the Controlled Drugs and Substances Act, S.C. 1996, c. 19, (the “CDSA”), to search the store and executed it on 15 August 2023. Upon entry they discovered the respondent behind the store’s cashier counter. He fled, was pursued and placed under arrest.

4Officers located a total of 126.31 kg of psilocybin and $2190 in cash. The psilocybin was in a number of different forms including pills, gummies, teabags and chocolate. The estimated value of the drugs seized was approximately $200,000.

5On 27 August 2024, Mr. Davis pleaded guilty to two offences: possession of a Schedule III substance drug for the purpose of trafficking contrary to section 5(2) of the CDSA and possessing proceeds under $5000 contrary to s. 354(1) of the Criminal Code, R.S.C., 1985, c. C-46. At his guilty plea hearing, Mr Davis admitted to working at the store for approximately two months at the time of his arrest. He told the court that he was a part-time employee working two days a week, approximately 4-5 hours a day.

6All parties accepted that he was not the owner, operator, or manager of the store. The Crown further agreed that the respondent did not participate in any profits and was paid $15 an hour - a rate of pay under the minimum wage.

7Mr. Davis was sentenced on 28 October 2024. The sentencing judge imposed a conditional discharge with 2 years probation.

8The Crown appeals the sentence arguing that it was manifestly unfit.

The Sentencing Judge’s Reasons

9The sentencing judge considered the defence submission that the respondent may not have realised that he was “the front man for an illegal enterprise”. However, he proceeded on the assumption that this was the case without making a finding on the issue. The judge used the historic example of how illegal business owners used their employees working on scene as “fall guys” who would suffer the consequences if discovered by police.

10The judge acknowledged the harm caused by psilocybin and the monies obtained from its sale. However, he found that even if the respondent was ignorant of the illegal status of the drug this would not provide a defence in law even though it might be a mitigating factor. He took into account the material provided by the defence and found that a conditional discharge was the appropriate sentence along with a period of 2 years probation, which would include 200 hours of community service. The judge also imposed a s. 110 order prohibiting the respondent from the possession of weapons for a period of 10 years.

Grounds of Appeal

11The Crown seeks leave to appeal on two grounds:

That the sentence was manifestly unfit
That the sentencing judge failed to provide adequate reasons for his decision

LEGAL PRINCIPLES

Appellate Review of Sentencing

12In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11, the Supreme Court of Canada made clear that in the absence of an error of law or principle that has an impact on sentence, an appellate court cannot vary a sentence unless it is demonstrably unfit. Deference is owed to sentences imposed after trial. An appellate court may only intervene if the sentencing court has made an error in principle, failed to consider a relevant factor, overemphasised otherwise appropriate factors or imposed a sentence that is demonstrably unfit: Lacasse, at para. 11; R. v. Lu, 2013 ONCA 324, 17 Imm L.R. (4th) 191, at para. 37; R. v. Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261, at paras. 67-73.

13In R. v. Fallofield (1973), 1973 1412 (BC CA), 13 C.C.C. (2d) 450 (B.C. C.A), at pp. 454, the court described the use of an absolute or conditional discharge as being one that is in the best interests of the accused and also not contrary to the public interest.

14The sentencing judge was also bound by the principles set out in s. 718.1 of the Criminal Code to consider the principles of denunciation, deterrence, rehabilitation and the encouragement of responsibility when imposing a sentence.

ANALYSIS

15There are cases that treat the trafficking of psilocybin as a serious enough matter to impose a conditional sentence order.

16For example, in R. v. Osores, 2024 ONCJ 358, the court dealt with the same trafficking operation that employed the respondent. Mr. Osores pleaded guilty to possession of 17 kilograms of psilocybin, a far lesser amount of the drug than the 126 kilograms that the respondent admitted possessing. There, Jones J. held that even lower level participants involved in the drug business should face a substantial sentence.

17In R. v. Abuce, unreported, 18 October 2024, the court imposed a conditional sentence in a case in which 24.6 kilograms of psilocybin were seized. Tuck-Jackson J. held that a number of factors needed to be looked at including the nature of the plea, whether the accused was the owner of the product, the amount of product seized, the value of the product and the scale and sophistication of the enterprise selling the drug.

18On the other hand, in R. v. Garcia, unreported, 15 March 2024, Brown J. imposed a conditional discharge on an employee working in a psilocybin store because a conviction would seriously impact the accused’s ability to work as a cross-border truck driver and inflict negative impacts on his family.

19In R. v. Gordon, 2024 ONCJ 649, Fiorucci J. imposed a conditional discharge in a case where 7 kilograms of psilocybin were seized. The judge held that the drug was a Schedule III substance and therefore not as serious as a Schedule I or II drug. He also took into account the offender’s financial difficulties at the time of the offence.

20In this case, the respondent is correct that sentencing is an individualised process and that the judge did allude to a number of factors that were mitigating, including the lack of a criminal record, family commitments and that the respondent was “unlikely to re-offend” by working at such establishments. However, this had to be balanced against the need for denunciation and deterrence based on the amount of psilocybin seized and the reality that these establishments can only be operated by those working in the front line of sales.

21One of the difficulties that arise in this case comes from the judge’s opening comments that there was “some suggestion in some of the pre- sentence material, an implicit suggestion, that Mr. Davis may not have understood that he was a front man for an illegal enterprise. I am going to address him on the basis that that is the case without finding that it is so”. The judge repeated this view later when he reminded the respondent that “even if you were completely ignorant of its illegal status, that is not a defence before the law”. This, according to the judge mitigated the respondent’s involvement “to some extent”.

22It is unclear how the judge could have sentenced on this basis. The respondent pleaded guilty to possession of psilocybin for the purpose of trafficking and possession of proceeds knowing that all or part of the said proceeds had been derived directly from an offence punishable by indictment.

23In other words, the essence of the plea was that the respondent knew he was involved in an illegal enterprise. It may well have been that the respondent was the “fall guy” getting caught whilst the owners of the establishment were absent. However, by pleading guilty to the offences with which he was charged, the respondent clearly knew that he was involved in the sale of illegal drugs and worked at the store willingly.

24The judge’s comments reflect an error in principle that permits appellate intervention.

25However, irrespective of these comments I am of the view that the sentence was demonstrably unfit.

26This was a substantial amount of psilocybin and far larger than any of the reported cases referred to above. The fact that psilocybin is a Schedule III substance may make it a less serious offence than similar possession of a Schedule I offence, but it remains a drug that has harmful effects and consequences. See for example: R. v. Brown, 2022 SCC 18, [2022] 1 S.C.R. 374, and R. v. Sullivan, 2022 SCC 19, [2022] 1 S.C.R. 460, where the use of psilocybin led to very serious consequences to the victims of assault.

27I concur with Jones J.’s comments in Osores, at para. 60, that operating a store front and selling these illicit drugs online creates the misleading impression that the psilocybin products are not only legal but also safe and have been approved by health authorities.

28For these reasons, I find that a conditional discharge would be contrary to the public interest in this case.

29The appropriate sentence in this case would have been the 12 months conditional sentence order originally sought by the Crown and rejected by the sentencing judge.

30However, at this stage I am reluctant to impose that order as the respondent appears to have completed the bulk of his probation without any difficulties.

31For these reasons, I would allow the appeal and vary the sentence to one of a suspended sentence with all other conditions imposed by the sentencing judge to remain in place.

S.A.Q. Akhtar J.

Released: 12 March 2026