CITATION: R. v. Osores, 2026 ONSC 4299
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Respondent
– and –
FABRICIO OSORES
Appellant
Laura Precup-Pop, for the Respondent
Lindsay Board, for the Appellant
HEARD: June 17, 2026
Pinto J.
REASONS FOR DECISION (SUMMARY CONVICTION sentence appeal)
Overview
1This is a sentencing appeal from the sentence imposed on July 23, 2024 by Jones J. of the Ontario Court of Justice, with reasons reported at 2024 ONCJ 358.
2On July 5, 2024, the appellant pleaded guilty before Jones J. of the Ontario Court of Justice to possession of a Schedule III substance (psilocybin) for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and to possession of proceeds of crime over $5,000 contrary to s. 354(1) of the Criminal Code, R.S.C., 1985, c. C-46. On July 23, 2024, Jones J. sentenced the appellant to a 60-day conditional sentence order (“CSO”) followed by one year of probation.
3The appellant has served his conditional sentence and probation order. He nevertheless appeals his sentence on three grounds:
The sentencing judge erred by relying on the full 17 kg of drug products seized as an aggravating factor when there was a concern that the total quantity of drugs had not been proven beyond a reasonable doubt.
The sentencing judge erred by emphasizing general deterrence over the principle of restraint in sentencing him as a 20-year-old first-time offender.
The sentencing judge erred in failing to apply the parity principle.
4In terms of remedy, the appellant requests that I rescind the CSO and substitute a conditional discharge. In the alternative, he requests that I remit this matter to the Ontario Court of Justice for a redetermination of sentence.
5Following the parties’ submissions, I dismissed the appeal with written reasons to follow. These are those reasons.
Sentencing Decision of Jones J.
6Jones J. found that in October 2022, the Toronto police became involved in an investigation regarding a commercial premises named “Shroomyz”, which operated at 488 Queen Street West in Toronto. The store marketed itself as a “magic mushroom” dispensary. Similar businesses have appeared in other parts of Ontario in the last few years.
7On November 12, 2022, police officers executed a lawfully obtained search warrant for Shroomyz. They located two men inside, one of whom was the appellant, working as a retail clerk.
8Officers searched the premises and located a large quantity of psilocybin and psilocybin edible products. The total weight of the psilocybin products was 17.4 kg. A portion of that weight was attributable to packaging. The total value of cash seized was $17,177.90. The cash was considered proceeds of crime.
9The appellant pleaded guilty to possession of 17.4 kg of psilocybin for the purpose of trafficking, and possession of proceeds of crime over $5,000.
10The appellant was 20 years old at the time of his guilty plea. He had no prior criminal record. The sentencing judge was skeptical of the appellant’s claim that he did not know that the business was illegal but observed that the appellant had only been working there for two weekends before his arrest.
11The sentencing judge noted that the appellant hoped to advance his career in the music industry, which required him to travel periodically to the United States, where there were far greater opportunities. Supportive character letters focused on the appellant’s need to travel to Florida where studio sessions took place.
12The sentencing judge noted the following aggravating factors:
(a) The quantity of psilocybin products was over 17 kg;
(b) The proceeds of crime were over $17,000;
(c) Shroomyz had a retail store front on a busy street in downtown Toronto openly selling an illegal substance with colourful advertising. The company also had a publicly available website;
(d) The products had no warning labels, were not approved by any government agency, and could cause users unintended harm.
13Several mitigating factors were also noted:
(a) The appellant was a young man with no prior criminal record;
(b) He was employed as a clerk, not a manager or owner;
(c) He pleaded guilty and expressed remorse;
(d) At the time of sentencing, he was employed; and
(e) Several character letters were filed on his behalf.
14The sentencing judge held that, generally speaking, when sentencing a youthful first-time offender, a court should focus on the sentencing principles of deterrence and rehabilitation, and that general deterrence should have limited, if any, application.
15The sentencing judge referred to several decisions regarding the sale of psilocybin: R. v. Jeaurond, 2019 ONSC 374; R. v. Garcia (15 March 2024), Niagara, 2111-998-23-21101248-00 (Ont. C.J.); R. v. Sydor, 2024 ONCJ 215; R. v. Vagenos, 2024 ONCJ 254; and R. v. Ferguson, 2024 ONCJ 252.
16The sentencing judge determined that the appellant was a young man with excellent rehabilitative potential. However, he was working at a blatantly illegal drug trafficking operation masquerading as a legitimate business which had a storefront and virtual commercial presence. Everyone associated with one of these stores was informing the community that they were intentionally selling controlled substances in clear defiance of the law. Illegal businesses such as Shroomyz were designed to provide a veneer of respectability to what was, at its core, a dangerous and illegal enterprise.
17The sentencing judge clarified that he did not find that the appellant sold psilocybin products to an underage customer or personally deceived anyone during his brief time in the store. Nor was the appellant directly responsible for the store’s outward appearance or advertising. Yet, the appellant spent many hours immersed in the business and was, at a minimum, wilfully blind to its true nature after exposure to its inner workings. The police located envelopes stuffed with cash. The images of the interior of the business were littered with references to “magic mushrooms”. Any rational adult would begin to ask questions once enveloped in this culture. The sentencing judge was greatly concerned that the public nature of these businesses had a corrosive effect on the respect for the rule of law and sowed confusion surrounding their legality and trustworthiness. He also observed that it is a foundational principle of the criminal justice system in Canada that ignorance of the law is no excuse.
18In conclusion, the sentencing judge held that balancing all the factors in the case and recognizing the appellant’s guilty plea and limited role in the business, a CSO of 60 days followed by a year of probation with 100 hours of community service was a just sentence. He specifically held that it would be contrary to the public interest to grant a discharge as such a disposition would not place adequate weight on the appellant’s intentional participation in a commercial drug trafficking operation. He also held that he did not accept that the collateral travel consequences of a CSO compared to a discharge rendered a CSO a disproportionate sentence.
Discussion
First Ground of Appeal: Improperly relying on the 17 kg of drugs seized as an aggravating factor on sentencing
19To understand the appellant’s first ground of appeal, it is necessary to discuss two related developments: (i) the appellant’s allocution which occurred before he was sentenced; and (ii) the appellant’s application to admit fresh evidence on appeal, brought after he was sentenced.
The Appellant’s Allocution
20At the conclusion of sentencing submissions on July 5, 2024, the appellant was given an opportunity to address the court. In his allocution, which was not under oath, he stated:
Also, I didn’t know there was a basement. So all the product that was in the basement, I had no, no knowledge for. I just only thought we have what was in the store, or what was underneath the cashier. I only worked in that area. I didn’t know, I didn’t deal with anything in the back or in, anywhere else. I just wanted to clarify that for myself, as well, just to show you guys where I’m at.
21In the within sentencing appeal, the appellant submits that nobody in the courtroom, neither trial counsel nor the sentencing judge, intervened following his allocution to investigate his comments or his understanding of the facts to which he was pleading guilty. He argues that this contributed to the sentencing judge’s first error, as explained below.
Application to Admit Fresh Evidence
22In conjunction with this appeal, the appellant brought an application to admit fresh evidence. The purported fresh evidence sought to be admitted was an affidavit sworn by the appellant dated March 13, 2026. He deposed that:
(a) He acknowledged that, as part of his guilty plea, he accepted as a fact that the police seized approximately 17.5 kg of psilocybin products with some packaging from the Shroomyz store.
(b) He attached as an exhibit to his affidavit a copy of a Property Report, which outlined the drugs seized and their respective weights, and the Search Warrant Exhibits Chart, which outlined the location from where the drugs were seized. Read together, the documents showed that approximately 11 kg of the total 17.5 kg of psilocybin products were seized from the basement of the store.
(c) He did not know that there was a basement at the store, therefore he did not know that any psilocybin product was stored there.
23The Crown opposed the defence application to admit fresh evidence on appeal. I will address whether I admit the fresh evidence application as part of my discussion on the first ground of appeal.
24The appellant argues, and I accept, that aggravating factors in sentencing must be proven beyond a reasonable doubt: R. v. Gardiner, [1982] 2. S.C.R. 368, at p. 415. The appellant argues that the sentencing judge relied heavily on the fact that the appellant was found in possession of a large amount of psilocybin because the first aggravating factor identified was that “[t]he quantity of psilocybin products was over 17 kg.” The appellant submits that the sentencing judge erred by relying on the 17 kg of drugs seized when it was not proven beyond a reasonable doubt that the appellant was in possession of that amount. Rather, based on the appellant’s allocution, and the fresh evidence if admitted, the appellant was not aware of the 11 kg of psilocybin in the basement, which would mean that he only had knowledge of, and was in possession of, 6 kg of psilocybin. Consequently, the sentencing judge erred in relying on the 17 kg of drug possession as an aggravating factor when, on a proper view of the sentencing proceeding, the appellant was only prepared to admit to possession of around one-third of that amount.
25For the reasons that follow, I dismiss this ground of appeal. I find no error in the sentencing judge’s identification of the large quantity of psilocybin as an aggravating factor, whether that amount was17 kg or 6 kg. I also dismiss the application to admit fresh evidence but, even if I had admitted the fresh evidence, it would have not altered my decision to dismiss this ground of appeal.
26First, I disagree that, in circumstances where the appellant pleaded guilty to possession of 17.4 kg of psilocybin for the purpose of trafficking, and possession of proceeds of crime over $5,000, the trial judge needed further clarification before finding the appellant in possession of 17.4 kg of psilocybin. Understanding the sequence of events at the sentencing hearing makes this clear.
27On July 5, 2024, the matter first appeared before Jones J. The appellant’s trial counsel advised the court that he had conducted a plea inquiry and that there were no collateral consequences for his client. The appellant was arraigned and pleaded guilty to both counts. The Crown then read the facts into the record. The facts did not delineate where within the premises each kilogram of psilocybin was found. Trial counsel accepted the facts on behalf of the appellant but asked whether the 17 kg of psilocybin included the packaging, which the Crown confirmed. Jones J. then asked the appellant whether he accepted the facts. He responded, “Yes, Your Honour.”
28In my view, Jones J. had, at that point, all that he needed to find that the appellant possessed roughly 17 kg of psilocybin.
29The Crown then filed the plea package, which included the scenes of crime officers’ (“SOCO”) photographs. A photograph of the drugs in the basement was included in the plea package which was filed as an exhibit without any concerns. Trial counsel did not request a pre-sentence report. Both parties made submissions on the appropriate sentence. The Crown sought a six-month CSO while the defence sought a conditional discharge. Following submissions, the appellant addressed the Court via his allocution where, as described earlier, he stated that he did not know about the store having a basement, or about the drugs in the basement.
30In hindsight, I agree with the Crown that it would have been preferable for the trial judge to have made further inquiries about the location of the drugs which may have laid bare the potential disconnect between the appellant pleading guilty to possession of over 17 kg of psilocybin, and his claiming, in his allocution, that he did not know about the basement or, relatedly, the drugs in the basement. But I cannot say that the sentencing judge’s failure to investigate this potential disconnect amounted to an error of law or that, relatedly, his reference to the appellant possessing over 17 kg of psilocybin as an aggravating factor was an error. I say this, in part, because neither counsel submitted the Property Report, which outlined the drugs seized and their respective weights, nor the Search Warrant Exhibits Chart, before the sentencing judge. The Crown provided these documents to the Defence as part of disclosure, but they were never placed before the sentencing judge. Accordingly, it was understandable for the sentencing judge to have accepted at face value the appellant’s acceptance of the facts.
31Turning then to the application to admit fresh evidence, in R. v. Sheppard, 2025 SCC 29, 507 D.L.R. (4th) 78, at para. 109, the test of admitting new evidence on appeal was explained:
The test for admitting new evidence on appeal was set out in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775. There are four criteria for admission: due diligence, relevance, credibility, and impact on the result (ibid.; see also R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 29; R. v. Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728). This test applies “whenever a party seeks to adduce additional evidence on appeal for the purpose of reviewing the decision below, regardless of whether the evidence relates to facts that occurred before or after trial” (Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517, at para. 3). Guided by an overarching concern for the interests of justice, this test strikes a balance between “finality and order in the justice system”, on the one hand, and “reaching a just result in the context of the proceedings”, on the other (paras. 31-32; R. v. Bharwani, 2025 SCC 26, at para. 102).
32I find that the application to admit fresh evidence fails on the criteria of due diligence and impact of the result.
33The appellant’s trial counsel was in possession of the property and drug reports and could have called sworn evidence from the appellant about his lack of knowledge of drugs in the basement. A Gardiner hearing could have been held. The admission of the SOCO photographs during the sentencing hearing, which showed the drugs in the basement, was another opportunity for the appellant’s trial counsel to have raised the issue of the appellant’s apparent lack of knowledge of drugs in the basement. The within appeal was not pursued on the basis of ineffective assistance of trial counsel, but rather the sentencing judge’s purported error in identifying the 17.4 kg of drugs as an aggravating factor. With due diligence, trial counsel could have introduced the evidence and made the submissions about the appellant’s lack of knowledge of drugs in the basement that the appellant’s present counsel now seeks to make.
34With respect to the impact criteria, the application to admit fresh evidence fails because the admission of the fresh evidence would not have affected the sentence in this case. I agree with the Crown’s submission that, balancing the various sentencing factors, a CSO of 60 days with one year of probation remains an appropriate sentence whether the quantity of psilocybin possessed by the appellant was 17.4 or 6 kg. My reasons for this will be apparent when I discuss comparable cases under the third ground of appeal dealing with parity.
35In the alternative, had I accepted the fresh evidence and had I accepted that the sentencing judge should have identified the lower amount of 6 kg of psilocybin as an aggravating factor, I would have still considered a CSO sentence of 60 days to be a fit sentence. Possession of 6 kg of psilocybin may not be a “staggering” amount, but it is certainly a very large quantity for the purpose of trafficking and undeniably constitutes an aggravating factor on sentencing.
Second Ground of Appeal: The sentencing judge erred by emphasizing general deterrence over the principle of restraint in sentencing this 20-year-old first-time offender.
36The appellant had only worked for two weekends as a salesclerk in a part-time job. He was only 20 years old and had no previous record. The appellant submits that, while the sentencing judge referred to the principle of restraint, he failed to apply the principle at the time of sentencing.
37Pointing out the differences between a CSO and a conditional discharge, the appellant also argues that, in light of the significant mitigating factors present in the appellant’s case, the trial judge erred in finding that a discharge was contrary to the public interest. Citing R. v. Sanchez-Pinto, 1973 CanLII 794 (ON CA), [1973] 2 O.R. 314 (C.A.), at p. 320, he argues that the public interest in generally deterring others does not preclude the judicious use of discharges. I disagree.
38First, it should not be forgotten that the appellant was not only sentenced for possession of a large quantity of psilocybin for the purpose of trafficking, but he was also sentenced for possession of proceeds of crime over $5,000, specifically $17,177.90. On appeal, the Crown prepared a chart describing 13 “Psilocybin Dispensary Cases”, as of April 2026, and annexed the chart to the Crown’s appeal factum. Out of 13 cases, proceeds of crime are mentioned in 9 of them. The appellant’s case had the highest amount of proceeds seized by far. The next highest amount of proceeds seized was $6,000 in R. v. Ferguson & Oriol (9 June 2025), Toronto (Ont. C.J.), a case in which 5.4 kg of psilocybin was seized and the two offenders received conditional discharges. Each had significant mitigating factors.
39Second, the Crown sought a CSO of six months, yet Jones J. handed the appellant a CSO of sixty days with one year of probation. This is not to say that the principle of restraint is respected any time a sentencing judge issues a lower sentence than the one requested by the Crown because, in some cases, the Crown’s requested sentence may be wholly unreasonable. I simply find it true in this case. The Crown’s sentencing request was not entirely unexpected given the case law. Here, the sentencing judge showed restraint notwithstanding that it was still a CSO and not a conditional discharge.
Third Ground of Appeal: The sentencing judge failed to apply the parity principle.
40Section 718.2 (b) of the Criminal Code codifies the parity principle. It states that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”
41The appellant alleges that the sentencing judge erred by imposing a CSO on the appellant since, at the time of sentencing, and subsequently, the appropriate sentence for a salesclerk found in possession of psilocybin is a conditional discharge.
42I disagree that the sentencing judge disrespected the parity principle. In fact, a brief review of comparable sentencing decisions reveals that a CSO was not inappropriate, and that the particular 60-day CSO sanction with a one-year probation fits quite logically within the range for this specific offence.
43The appellant was convicted for possession of 17.4 kg of psilocybin and possession of proceeds of crime over $5,000. Initially, I will provide my comments about parity based on the 17.4 kg amount. Later, I will explain why, even if the amount involved was 6 kg, there was no violation of the parity principle.
44In my discussion of comparable psilocybin sentencing cases, I find it helpful to discuss them in order from heaviest to lightest sentence. Doing so, I believe, makes it easier to see that the principle of parity was respected in the appellant’s case.
45In R. v. Davis, 2026 ONSC 1520, Akhtar J. found that, but for the passage of time, a 12-month CSO would have been the appropriate sentence for an offender found in possession of an enormous cache of almost 127 kg of psilocybin and $2,190 in cash. The 30-year-old offender had no prior criminal record and pleaded guilty.
46In R. v. Williams (9 June 2025), Toronto, Javed J. ordered a six-month CSO with one-year of probation for a 28-year-old first-time offender who pleaded guilty to two sets of psilocybin charges. In 2023, he was charged with, inter alia, possession of 13.9 kg of psilocybin and $414.25 in cash (i.e., proceeds of crime). In 2024, while he was on bail for the 2023 charges, he was arrested and found in possession of 3.6 kg of psilocybin and $730 in cash. Javed J. found it particularly aggravating that the offender committed the same offence again.
47In R. v. Abuce (18 October 2024), Toronto, 23-48105980, Tuck-Jackson J. sentenced the offender to a 90-day CSO and 12 months’ probation. The offender was employed as a retail clerk at a “Fun Guyz” store that operated in a brazen fashion and selling illegal psilocybin merchandise. He was 30 years old at the time of sentencing, pleaded guilty, and had no prior criminal record. Police seized 24.6 kgs of psilocybin and $1,620 in cash. The court did not treat the offender’s status as a store clerk as a mitigating factor but rather as a neutral factor.
48The Crown also referred me to R. v. Ferguson, 2024 ONCJ 252, but the case is somewhat distinguishable as the accused in that case was the manager and owner of a business selling psilocybin products. When police searched the business, they found 620 g of bulk psilocybin as well as edibles and capsules with a total of 157 g of psilocybin. Police also seized $1,055 during their search of the store front. The accused was a 37-year-old first-time offender, and he pleaded guilty to being in possession of psilocybin for the purpose of trafficking and possession of proceeds of crime. Camara J. imposed a 12-month CSO, observing that a custodial sentence was within the appropriate range for a manager of a retail store selling and advertising large amounts of a Schedule III substance.
49In Ferguson & Oriol, as referenced above, the two accused, two men in their early twenties without criminal records, pleaded guilty to possession of psilocybin for the purpose of trafficking. They worked as store clerks in a dispensary in downtown Toronto. Police had executed a search warrant at the dispensary and seized 5.4 kg of psilocybin and $6,000. Justice Javed found that both men had strong rehabilitative potential and imposed a conditional discharge followed by two years’ probation for both defendants.
50In R. v. Gordon, 2024 ONCJ 649, the accused was also a store clerk in a dispensary. Police executed a search warrant, arrested Mr. Gordon, and seized 812 g of psilocybin mushrooms, 2,775 psilocybin capsules, 890 edible packages containing 4.1 kg psilocybin, and $1,785. The accused pleaded guilty to possession for purpose of trafficking and possession of proceeds of crime. Observing that the accused was not the directing mind and that he had attempted to ameliorate his desperate circumstances through his employment as a store clerk, Fiorucci J. found that a conditional discharge with a probationary period of two years was appropriate.
51In R. v. McLennon (4 June 2024), Hamilton, 23-47104885, police executed a search warrant at a dispensary in Hamilton and arrested the store clerk in the store at the time. Police seized a large quantity of psilocybin products, including packages, teas, chocolate bars, chocolate bites, and capsules. The total amount of psilocybin was unspecified. The accused, a youthful first-time offender, was only charged with and pleaded guilty to possession of psilocybin for the purpose of trafficking. While the accused as store clerk was essential to the operation of the store, Brown J. found that the offence was out of character and that the arrest and proceedings had a deterrent effect on the accused. She was conditionally discharged with a probationary period of 12 months.
52In R. v. Sevillano-Canicio (2 January 2025), Windsor, 23-81103371, the accused was found in a store selling psilocybin products when police executed a search warrant. He was identified as employee, arrested, and released on bail. Five months later, he sold $50 worth of psilocybin to an undercover officer, which led to a second search of the store and his second arrest. The defendant had no prior criminal record and pleaded guilty to charges for possession for the purpose of trafficking on both occasions. During both searches, police seized an unspecified amount of psilocybin products. The sentencing judge found that the accused was a young and maybe naïve person who was exploited by his employer when he was hired back after his first arrest. Because of his rehabilitative potential and because he had “learned a lesson”, Murphy J. held that a conditional discharge with 30 months’ probation was appropriate, as a criminal record would end the career ambitions he was now pursuing.
53In R. v. Smith (4 June 2024), Windsor, 23-47104885, the accused sold an undercover officer psilocybin worth $50, leading to a subsequent search during which police seized an unspecified amount of psilocybin products and arrested the accused. She was 21 at the time of the offence and facing homelessness when she took the job at the dispensary. Murphy J. found that, since her arrest, she had become stable and re-engaged with her education, leading him to conclude that she had strong rehabilitative potential. He imposed a conditional discharge and placed her on probation for 12 months.
54As this review of comparable psilocybin cases demonstrates, a CSO sentence of 60 days followed by one year of probation falls well within the range of logical and reasonable sentences in light of the existing jurisprudence both at the time of sentencing in 2024, and now. There is no rule or convention that first-time offenders found in possession of psilocybin for the purpose of trafficking who are employed in a salesclerk role must receive conditional discharges. Neither is the quantity of psilocybin a determinative factor, although it is clearly important. While the two offenders in Ferguson & Oriol received conditional discharges for possession of 5.4 kg of psilocybin, it appears that the sentencing judge in that case placed significant weight on their difficult personal and family backgrounds and strong rehabilitative potential. In this case, the sentencing judge, explicitly recognized the appellant’s “excellent rehabilitative potential”, but he also took into account the other sentencing factors, and Shroomyz being a “blatantly illegal drug trafficking operation masquerading as a legitimate business” and the appellant’s indispensable role in that operation. There was no error in that.
55The third ground of appeal, based on the argument that the sentencing judge failed to respect the parity principle, is dismissed.
Conclusion
56For the foregoing reasons, the appeal is dismissed.
Pinto J.
Released: July 23, 2026
CITATION: R. v. Osores, 2026 ONSC 4299
COURT FILE NO.: CR-24-90000057-00AP DATE: 20260723
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Respondent
– and –
FABRICIO OSORES
Appellant
REASONS FOR DECISION
(SUMMARY CONVICTION SENTENCE APPEAL)
Pinto J.