R. v. Sikora and Mann (aka. Sikora), 2018 BCPC 109

Citation: R. v. Sikora and Mann (aka. Sikora) 2018 BCPC 109 Date: 20180509 File No: 16510 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DOUGLAS PETER SIKORA and VRINDER MANN a.k.a. MICHELLE SIKORA REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. MERRICK Counsel for the Crown: H. Magnin Appearing on their own behalf: D. Sikora and M. Sikora Place of Hearing: Sechelt , B.C. Dates of Hearing: April 4, 5, 18, Oct 4, Nov 8, 2017; Mar 8, 2018 Date of Judgment: May 9, 2018

The Charges [1] Michelle Sikora and Douglas Peter Sikora are charged with possession of cannabis in an amount not exceeding three kilogramsfor the purpose of trafficking. Ms. Sikora is also charged with two counts of trafficking and Mr. Sikora is also charged with three countsof trafficking. The substance in each trafficking count is cannabis.

Summary of the Charges [2] The Sikoras operate the S & M Medicinal Sweet Shoppe. On November 28, 2015 police searched their house and found whatwas described as “a store” in the downstairs of the house. The display cabinets contained what was believed to be a large quantity ofedible cannabis products. The Sikoras van was also searched and what was believed to be edible cannabis products were found in thetrunk area. [3] Between July 10, 2015 and November 18, 2015 it is alleged that the Sikoras either together or separately sold edible cannabisproducts to an undercover police officer on four occasions.

Position of the Parties [4] The Sikoras submit that if the Crown has proven all of the essential elements of the trafficking charges beyond a reasonabledoubt, they still should be found not guilty because they argue the decisions in R. v. Smith 2015 SCC 34 and Allard v.

Canada,2016 FC 236 permitted them to sell the edible cannabis products. [5] With respect to the possession for the purpose of trafficking charge, they submit their possession was lawful in accordance withthe Smith and Allard decisions and because they had authorizations which permitted their possession of cannabis. [6] Crown Counsel submits that this case is not about access to medical marijuana. Crown Counsel argues that the evidence in thiscase demonstrates this was not an operation that provided medical marijuana because the undercover officer was never required to showhe had a license to possess cannabis.

The Credibility and Reliability of the Undercover Officer’s Testimony [7] During the cross examination of the undercover officer (hereinafter referred to as “the officer”) the Sikoras challenged thecredibility and the reliability of the officer’s testimony. Ms. Sikora also testified and contradicted some of the officer’s testimony. TheSikoras submit that the officer’s description of Ms. Sikora on July 10, 2015 was at a minimum inaccurate. They also submit that theofficer’s description of Ms. Sikora’s voice as unique which formed the basis of him recognizing her three months later is unbelievable.

These are good points. However, Ms. Sikora testified and confirmed she did in fact deal with the officer on July 10, 2015 and October10, 2015. Consequently, I have no difficulty accepting the officer’s testimony on these points. While I appreciate that there remainscontradictions between the testimony of the undercover officer and Ms. Sikora on exactly what was said between them there is no issuebased on the testimony of Ms.

Sikora and the officer that the officer did not produce or show a medical authorization to the Sikoras whenhe purchased edible cannabis products. [8] As a result, I am satisfied that the officer’s testimony is reliable as it pertains to the essential elements of the offences. The July 10, 2015 Transaction [9] On July 3, 2015 the officer ordered marijuana candies on the S & M Medicinal Sweet Shoppe website. After completing thesale he received an email that day from Ms. Sikora asking him to call.

The email asked the officer to call “us”, provided a phone numberand was “signed” Michelle & Doug Sikora. [10] On July 10, 2015 the officer called and spoke with Ms. Sikora. He placed an order for three gummies and three hard candies. The testimony of Cst. Johnson confirmed the sale was completed by mail. Samples of the candies were analyzed and found to containlisted substances in the cannabis family in

schedule II of the CDSA. [11] Considering the testimony of the officer, Ms. Sikora and Cst. Johnson and the results of the analysis I am satisfied the Crownhas proven beyond a reasonable doubt that Ms. Sikora sold cannabis as charged in Count 2. [12] While Mr. Sikora did not directly participate in this sale, Exhibit 2, the three pages of screen shots states the location of the S &M Medicinal Sweet Shoppe which is the Sikora’s home. It also names both Mr. and Ms. Sikora on the website and it refers to “we” and“our”. Finally it notes that some of the ingredients are grown on “our” organic farm.

Consequently I am satisfied the Crown has provenbeyond a reasonable doubt that Mr. Sikora was a party to the offence in Count 2. The October 10, 2015 Transaction [13] On October 10, 2015 the officer went to the Sikora’s house. The Sikoras were home and allowed the officer in. Theydiscussed the July 10, 2015 purchase. They also had a discussion about the products that the Sikoras were selling. The officerpurchased five products. These were analyzed and determined to contain cannabis. Based on the testimony of the officer, Ms.

Sikoraand the results of the analysis I am satisfied beyond a reasonable doubt that the Sikoras sold cannabis as charged in Count 3. The November 28, 2015 Transactions [14] On the morning of November 28, 2015 the officer again went to the Sikoras house. The Sikoras were home and allowed the

officer in. In the store in their basement the officer bought four products from Mr. Sikora. An analysis of one of the products determined it contained tetrahydrocannabinol. [ 15 ] Later that morning the officer called Mr. Sikora. The officer placed an order and Mr. Sikora delivered it to the officer at the agreed upon meeting place. The officer received his order of four lollipops and four teabags. A sample of the tea was analyzed and it was determined it contained cannabis (marijuana). [ 16 ] Based on the testimony of the officer I am satisfied beyond a reasonable doubt that Mr.

Sikora sold cannabis as charged in Court 4. The Search of the Sikora Residence [ 17 ] At approximately 3 p.m. on November 28, 2015 police executed a search warrant at the Sikora home. Police seized a considerable amount of cannabis edible products. Mr. Sikora told the officer earlier that morning that they had about $40,000.00 worth of product that might be worth $100,000.00 in retail sales. He also told the officer that morning that they had recently set up the store in their residence because the municipality would not give them a business permit.

The Search of the Sikoras Van [ 18 ] Police also executed a search warrant on the Sikoras’ van. The van had decals advertising the S & M Medicinal Sweet Shoppe. Business cards for the S & M Medicinal Sweet Shoppe were located in the glove box of the van. Two suitcases containing cannabis edible products were located in the trunk area of the van. The Testimony of Ms. Sikora [ 19 ] To the extent that Ms.

Sikora testified that the possession of the cannabis was for personal use and/or in accordance with the authorizations they had to possess cannabis, I do not believe her, nor does her testimony raise a reasonable doubt. The sheer quantity they possessed plus the two sales made on the morning of November 28, 2015 cause me to affirmatively reject this part of her testimony.

Accordingly based on the testimony of the officer, the other officers, and the results of the analysis I am satisfied beyond a reasonable doubt that the Sikoras possessed cannabis in their house and van in an amount not exceeding three kilograms for the purpose of trafficking as charged in Count 1.

The Smith and Allard Decisions [ 20 ] The Sikoras submit that they were permitted to possess and sell cannabis as charged in Counts 1-4 by either or both of these decisions. [ 21 ] With respect, I do not agree that either or both of those decisions permitted the unregulated sale of edible cannabis products to an individual who does not have a medical authorization to possess cannabis. [ 22 ] In Smith , the Court struck down the prohibition on the possession of cannabis for those who had a medical authorization to possess cannabis derivatives for medical purposes. [ 23 ] In Allard , the Court held that although the Marijuana for Medical Purposes Regulations violated the applicant’s rights under s.7 of the Canadian Charter of Rights and Freedoms , this did not invalidate any sections of the CDSA which made it an offence to possess, grow or distribute marijuana.

See R. v. Woolsey, 2018 BCPC 75 at paragraph 8 . Conclusion [ 24 ] In this case, I have determined beyond a reasonable doubt that the Sikoras sold cannabis to an undercover officer on July 10, 2015 and October 10, 2015 and that Mr. Sikora sold him cannabis twice on November 28, 2015. On each of these occasions the officer did not show the Sikoras an authorization that allowed him to possess cannabis. Moreover, I accept Ms. Sikora was told by the undercover officer on July 10, 2015 that he did not have such an authorization.

On the subsequent occasions I am also satisfied beyond a reasonable doubt that the Sikoras did not ask him to produce one. As a result I am satisfied beyond a reasonable doubt that the Sikoras are guilty as charged in Counts 2 and 3 and that Mr. Sikora is guilty as charged in Count 4. [ 25 ] With respect to Count 1, as stated, given the sheer quantity of the cannabis seized, the website and the sales on November 28, 2015, I reject the defence testimony that the possession was for personal use. The evidence is overwhelming. The Sikoras were operating a retail business. [ 26 ] As Ms.

Sikora stated, they chose to sell cannabis to those who wanted to purchase cannabis. [ 27 ] Consequently, I am satisfied beyond a reasonable doubt that the Sikoras are guilty as charged in Count 1. ___________________________ The Honourable Judge S. Merrick Provincial Court of British Columbia