R. v. Churchill, 2018 ONCJ 852

ONTARIO COURT OF JUSTICE CITATION: R. v. Churchill , 2018 ONCJ 852 DATE: 2018 11 30 COURT FILE No.: 4811-998-16-15005268 Toronto Region – Old City Hall BETWEEN: HER MAJESTY THE QUEEN — AND — STEVEN CHURCHILL Before Justice H. Pringle Heard on December 6, 2017, March 1, April 16, May 24, October 4, 2018. Reasons for Judgment released on November 30, 2018 David Morlog........................................................................................ counsel for the Crown Stephen Feldman.......................................................................... counsel for the accused PRINGLE J.: Mr.

Churchill’s Guilty Plea and the Agreed Facts [ 1 ] As part of “Project Claudia”, an investigation into illegal marijuana dispensaries, an undercover officer attended the Toronto Holistic Cannabinoids dispensary on Baldwin Street. He spoke with an employee, who identified himself as “Chris”, and then registered as a member. He and Chris engaged in a conversation about products for sale, leading to the UC’s purchase of 4.63 grams of marijuana.

Chris topped up this purchase with a free THC-infused lollipop. [ 2 ] One month later, “Project Claudia” culminated in the execution of 43 search warrants at local marijuana dispensaries, including Toronto Holistic Cannabinoids. The defendant Steven Churchill was present, at this store, when the search warrant was executed. He readily admitted, to both police and a bylaw officer, that he was a co-owner of this illegal marijuana dispensary. [ 3 ] Police seized 2284 grams of marijuana, 1231 grams of cannabis resin, 49.99 grams of hashish, 12 kilograms of THC-infused edible products, and $475 in cash from the store.

Unlike many other dispensaries targeted in “Project Claudia”, Mr. Churchill’s dispensary did not re-open after the search warrant was executed. He pled guilty on December 6, 2017 to one count of Possession of Marijuana under 3 kg for the Purpose of Trafficking. [ 4 ] In addition to an agreed statement of fact, the Crown tendered eighty-eight SOCO photographs taken. They show a small store, selling various strains of marijuana, hash, resin and edibles. The illicit products, including the edibles, appear to be clearly marked.

Photocopies of thirty-three membership cards were tendered, as were petitions seized, which advocated for the legalized sale of marijuana through private entrepreneurs instead of government. [ 5 ] Mr. Churchill testified for the defence, providing insight into his reasons for opening and running the dispensary. His evidence, and reply evidence from the undercover officer, also addressed a contested Gardiner issue. Particulars of the Offender and the Offence

[ 6 ] Mr. Churchill has no criminal record and is 53 years old. He lives, with his wife and their youngest child, in British Columbia. He has four children in total, ranging from age 24 to 16. This is not his first marriage. His prior spouse passed away from cancer. This experience helped drive his interest in marijuana as medicine. Phoenix Tears, a very potent form of hash oil, provided a better quality of life for his terminally ill ex-wife, in the year before her death. [ 7 ] Mr. Churchill himself has been a Health Canada licensed MMAR user since 2010. He suffers from chronic pain and PTSD.

He has obviously educated himself about the parameters of the MMARs and its replacement legislation, including applicable case law. His own licence permitted him both to grow 35 marijuana plants and to designate a grower. [ 8 ] After 14 years as a locksmith, Mr. Churchill bought into a Vancouver marijuana dispensary out west. Perceiving Toronto to be a less competitive market at the time, he moved here and opened up a store. Mr. Churchill’s intention was to sell to persons with medical marijuana prescriptions only, but he found his partners willing to sell marijuana to anyone who would buy.

This disagreement over what he characterized as “business morals” led to the dissolution of this partnership. [ 9 ] Mr. Churchill then opened up a new store, Toronto Holistic Cannabinoids, on Baldwin Street. He leased the location, disclosing the nature of his business to the landlord. He, his brother, and another partner hired a lawyer and incorporated the business. The purpose of incorporating was to pay taxes on their income and on behalf of their employees. In order to do so, they set up an HST account, a payroll account and tax deductions from employee income.

At the time of the police raid, the business had two employees: Mr. Churchill’s 23 year old son and a gentleman named Chris Bino. [ 10 ] Mr. Churchill testified, and I accept, that his purpose in opening Toronto Holistic Cannabinoids was to provide marijuana to persons who want or need to use it medically. He knew that he was breaking the law prohibiting the sale of marijuana. It was a law he disagreed with. He felt the government’s medical marijuana scheme was flawed and that the quality of legally-issued marijuana was poor.

He knew changes to the law were coming, and on days when he ran the store, his partner was at City Hall advocating for such change. They hoped, when that change occurred, to convert their business to a legal enterprise. [ 11 ] Toronto Holistic Cannabinoids operated on a membership basis. Although anyone was free to come inside and make inquiries, marijuana products were only sold to members. Membership was tracked through a membership card, including membership numbers and identifying photographs. The store had approximately eight hundred members, although only six hundred were active memberships.

Each membership card had an expiry date, which the defendant testified reflected the date the member’s prescription expired. Some of the thirty-three membership cards photocopied had “N/A” listed next to expiry date, but the defendant was not cross-examined on why the store possessed those thirty-three membership cards or what “N/A” meant. I can draw no inferences about the meaning of “N/A” one way or the other. [ 12 ] Mr.

Churchill testified that in order to register as a new member, the customer needed a prescription from their doctor stating that marijuana was necessary for their condition, or an MMAR licence, or a “People with AIDS Society” card. His evidence on this point differed, somewhat, from the agreed facts and certainly from the evidence of the undercover police officer. [ 13 ] For the eleven months that Toronto Holistic Cannabinoids was open, Mr. Churchill testified, it sold marijuana for a medical purpose only.

He resisted the suggestion that his business was “lucrative”, pointing to the $475 in the till on the day of the raid and the fact that he limited his pool of customers to medical users. If he did not know the prescribing doctor, or if the prescription appeared suspect, Mr. Churchill would telephone the doctor and ask whether that prescription was valid. If an MMAR licence was provided, he required matching government identification. [ 14 ] The products Mr. Churchill’s store sold were never obtained from the street.

Instead, to ensure a better quality product, he used marijuana donated by people he knew with personal production licences. Under the MMAR, he explained, a producer was allowed to donate their product. He would then donate money to those people for hydro and costs. He also sold shatter, edibles, CBD crystals and CBD wax. He recommended certain products based on a trial and error process. He knew nothing of his client’s medical histories or what other medications they were on. Customers were able to buy up to an ounce and then return the next day to purchase the same quantum. Mr.

Churchill did not run chemical tests on any of the marijuana he sold. [ 15 ] After his arrest, Mr. Churchill closed up shop, refused to assist customers who called asking for marijuana, and returned to Vancouver. After returning briefly to the locksmith business, Mr. Churchill became a licenced long-haul truck driver. When he testified, back in March 2018, he had been employed in this field for approximately one year. His wife works as the office manager in a grocery store. [ 16 ] Other than the cash found in the cash register, there was no tangible evidence to assist me with the quantum of Mr.

Churchill’s profit. Clearly there were some proceeds of crime, unseized, inside the ATM machine but I do not know how much. Mr. Churchill testified that sales could range from $4000 to $5000 per day, which I understood as gross sales, not accounting for the cost of product, overhead in running the store, and paying employees. In cross-examination, the defendant edged away from this figure, stating that those $5000 days could be few and far between. [ 17 ] He added that recreational marijuana dispensaries could sell approximately $20 000 to $30 000 per day.

While I am similarly unsure about that figure, I am confident that any type of limit Mr. Churchill placed on acquiring membership would have necessarily reduced his sales. There was no evidence about the contents of the store computer system, or the amount of income declared. In the end, I could not reach any solid conclusions on precisely how profitable the business had been for Mr. Churchill. Position of the Parties and the Gardiner Issue [ 18 ] Mr. Feldman, on behalf of Mr. Churchill, sought a conditional discharge. Mr. Morlog, for the Crown, sought a $25 000 fine and a two-year probationary order.

Before assessing sentence, however, I must first consider and resolve the contested factual issue.

[19] The Crown sought to prove that the dispensary would register members who had not been prescribed marijuana, but whopresented a pill bottle with a prescription for pain medication. This, as I understand the Crown’s position, would if proven be a factoraggravating Mr. Churchill’s sentence. The defence submitted that only persons with an MMAR licence, a prescription specifically formarijuana, or a PWA (Persons with AIDS) card would be allowed membership. [20] When Mr. Churchill pled guilty on December 6, 2017, an agreed statement of fact was tendered.

It included facts about theundercover officer’s conversation with a store employee. Paragraph 10 read, “In order to become a registered customer, the UC wasadvised that he would either have to adduce a doctor’s note or prescription, a pill bottle indicating a prescription, or a license under theMedical Marijuana Access Regulations (MMARs).” [21] When the court inquired about acceptance of these facts, Mr. Churchill’s counsel added a qualification which was not acceptedby the Crown.

The question of whether a pill bottle with a prescription for something other than marijuana could suffice to groundmembership became contested. The Crown acknowledged the burden of proof here. [22] Mr. Churchill testified that his rules were strict and that to his belief, his employees followed his rules when he was not at thestore. He denied that a pill bottle alone would suffice to obtain membership. A person who presented a pill bottle would be refusedmembership that day, and told to go to their doctor to obtain something that prescribed or recommended marijuana for their condition.Just because, Mr.

Churchill added, someone was prescribed oxycodone did not mean he was going to give that person marijuana. Theonly exception to this rule was if a person was a registered member of Persons with AIDs. Mr. Churchill testified that he trained hisemployees to follow these rules absolutely, and that he did not believe for a moment his employees would deviate from his training. [23] The undercover officer’s reply testimony belied Mr. Churchill’s belief about his employees. Mr. Churchill was not present inthe store when the UC registered as a customer.

He spoke to an employee named “Chris”, who upon the UC entering the storeimmediately asked if he was a member. The UC replied that he was not, and that he wanted to sign up. He was told that membershiprequired him to produce one of three items: a prescription from a doctor for medical marijuana or any other type of pain or sleepmedication; a prescription on a pill bottle that described any other ailment like back pain or insomnia; or a medical licence for marijuana. [24] The undercover officer, who was cross-examined on a different date than his evidence in chief, was not substantivelychallenged on this evidence.

However, submissions revealed this was due to a misapprehension of his evidence by Mr. Churchill’scounsel, as opposed to Mr. Churchill accepting the UC’s version as true. I could draw no negative inferences, accordingly, fromcounsel’s failure to challenge the UC’s version of events. [25] In resolving this factual issue, I did not find the Crown proved this fact beyond a reasonable doubt. Even had the burden restedwith the defence on a balance of probabilities, I would have reached the same conclusion. In the end analysis, I accepted the evidence ofboth the undercover officer and that of Mr.

Churchill on this point. This left me with the real possibility that both were telling the truth,and that Mr. Churchill’s employee Chris was not always complying with policy when his boss was out of the store. [26] I accepted Mr. Churchill’s evidence because, first of all, I found his belief structure to be rigid and if he believed something wasmorally right, he would admit to this belief even if it was legally wrong. I have no doubt that if he believed it was medically better tosubstitute a prescription for oxycodone with marijuana, and he ran his business on this principle, he would simply say so.

I believed himwhen he stated he hoped to run a lucrative business, but by selling medical marijuana only. His passion for the subject of medicinalmarijuana was palpable, and his real-life experiences, particularly with his terminally ill ex-wife, amply explained this passion. [27] Respectfully, I could not reject Mr. Churchill’s testimony for the reasons submitted by the Crown. For example, it wasdistinctly possible that Mr. Churchill called doctors to ascertain whether prescriptions were real or fake, and that doctors replied withoutviolating PHIPA.

He knew many of the prescribing doctors already, including many addiction specialists, and only made such calls if theproposed member authorized it. It is distinctly viable that doctors provided this information to him without being in violation of PHIPA.I did not see his testimony on this point to be incredible, particularly given the lack of evidence on what PHIPA consents entail. [28] Mr. Churchill withstood a wide-ranging and thorough cross-examination which established no material inconsistencies. Itmatters not that Mr.

Churchill testified the search warrant was executed at 3 pm when it was actually executed at noon. He did say he didnot invest his own money into the business, and then added that he used a $7000 payout from his first Toronto store to pay first and lastmonths’ rent on Baldwin. I did not find this to be a material inconsistency impacting heavily on credibility. At times, Mr. Churchillbecame defensive and aggressive during cross-examination but, to be fair, at times the cross-examination became aggressive and bothparties responded in similar tone to one another. I placed no weight on this demeanour.

Applicable Sentencing Principles [29] The sale of marijuana for any use, including recreational use, is today a legal government enterprise. At the time Mr. Churchillcommitted this offence, however, he was knowingly operating outside the law and his punishment must reflect that prior scheme[1]. InR. v. Tran, at paras. 26 and 27, Trotter J. (as he then was) wrote, prior to marijuana decriminalization: If judges refuse to apply laws based on their subjective impressions of the likelihood of reform, the rule of law would be seriouslyundermined.

It would cause great confusion about which laws are enforceable and which ones are not. As the Court of Appeal held in R.v. Song (2009), 2009 ONCA 896 , 249 C.C.C. (3d) 289 (Ont. C.A.), at p. 292: Judges are entitled to hold personal and political opinions as much as anyone else. But they are not free to permit those views to colour orframe their trial and sentencing decisions.

They are bound to apply the law as it stands. [emphasis added] Just as judges are not entitled to pick and choose which laws they wish to apply, members of the public are not free to select which lawsthey wish to obey, even with the prospect of reform on the horizon. In present circumstances, prosecutorial discretion and executiveclemency, not judicial fiat, are the only legitimate sources of reprieve. In the meantime, I must apply the CDSA faithfully and sentence

offenders according to the customary principles and binding precedent. [ 30 ] I must, therefore, still impose a sentence that speaks to general deterrence and denunciation. I am not allowed to impose my own views, as was the error skewing sentence in R. v. Bentley, 2017 ONCA 982 at para. 6 . Irrespective of the subsequent decriminalization of marijuana, Mr. Churchill’s sentence must still send the message that if you disagree with a law, you are not free to go break it. As the BCCA said in R. v.

DeFelice, 2010 BCCA 273 , at para. 4 : The appellants, who are advocates of the use of marihuana, disagree with Canada’s drug laws and seek to change them. Expressing disagreement with existing law and advocating change is lawful. Indeed, it is a fundamental right in a free and democratic society. Undertaking illegal activity as part of expressing disagreement and advocating is not lawful.

On the contrary, it strikes at the core of a free and democratic society: the rule of law. [ 31 ] In addition, any business that operates outside the law, particularly on a cash basis, is prone to attract other illegal activity. This problem is particularly acute when it comes to illegal marijuana dispensaries. These businesses, operating throughout Toronto, are frequently target of violent robberies, sometimes involving firearms. This put the neighbouring community at undue risk. This puts the dispensary employees and customers at undue risk.

Illegal marijuana dispensaries still, under our current legalization scheme, pose these risks. Mr. Churchill’s sentence should achieve a deterrent effect for those of like mind, even today. [ 32 ] Mr. Churchill’s sentence must meaningfully address specific deterrence. Here, this sentencing goal appears to have been achieved. For example, numerous dispensaries raided in Project Claudia, and other projects, re-opened following their arrests. Indeed, Mr. Churchill witnessed local dispensaries re-opening following the raids, and noted that their business was booming.

Specific deterrence is a pivotal factor in such cases. [ 33 ] The Crown agrees, however, that Mr. Churchill did not re-open Toronto Holistic Cannabinoids, after his arrest. Instead, he returned to British Columbia, obtained his truck driving licence, and began a new and unrelated trade. He has not incurred any further convictions, of any kind, since his 2016 arrest. The evidence has resoundingly convinced me that Mr. Churchill has been, himself, specifically deterred from committing this kind of criminal activity, or any kind of criminal activity, ever again. [ 34 ] The sentence I impose must rehabilitate Mr.

Churchill. His insight into the offending conduct is less than perfect. The impending decriminalization of marijuana, coupled with his motivation to help and to heal through providing good quality marijuana, blinded him somewhat to the fact that no one can choose which laws they wish to follow. [ 35 ] That said, Mr. Churchill’s rehabilitative prospects remain quite strong. He enjoys community support. He ceased the offending conduct immediately. He has been a stable, hard-working, productive member of society for most of his adult life. He has no prior criminal record.

I concluded, after considering his lengthy testimony, that there was likely no risk that he would re-offend again, in any way. Range of Sentence [ 36 ] Mr. Churchill seeks a conditional discharge, while the Crown seeks a $25 000 fine and a two year probationary order. Case law supporting both requests was provided. As well, I was advised that at this courthouse, in R. v. Emery and Emery, unreported, a $150 000 fine was imposed. This sentence was imposed pursuant to a joint submission, in relation to a highly lucrative franchise chain of illegal marijuana dispensaries operated by the Emerys.

In addition, I was referred to: • R. v. Lucas, 2002 BCPC 268 , where Higinbotham J. sentenced the offender to an absolute discharge, despite the presence of a dated criminal conviction. The accused was the president of a compassion society, and provided marijuana to its members for medical use. Unlike Mr. Churchill, the accused expressed an intention to continue breaking the law to make medical marijuana accessible; • R. v. Simpson,

(2008) NSSC 57, where Cacchoine J. imposed a fine of $2000, on top of 1 day presentence custody, on an individual in similar circumstances to Mr. Churchill. The accused was found guilty after a jury trial, and for medicinal purposes only, had been trafficking marijuana he grew himself. The sentencing judge observed at para. 27 that “To grant a discharge in this case, despite the accused’s altruistic purposes, would be to send a message to the community that if you don’t like certain law (sic), just ignore it and there will be no consequences. That, in my opinion, would not be in the public interest”; • In R. v.

Krieger, 2009 MBQB 321 , the accused was found guilty after a jury trial, of selling marijuana for medical purposes. He was the president of a compassion club. He had a prior related conviction and had been engaging in this illegal conduct for over six years. A suspended sentence and probation was imposed. • In R. v. Baldasaro , 2009 ONCA 3955 , the appellants were selling marijuana commercially, under the guise of being a church. The Court of Appeal overturned lengthy jail sentences and imposed 5 months and 3 months jail.

The sentences were imposed after a contested Superior Court trial and both accused had criminal records; • In R. v. Louka, 2017 Carswell 14008, Westman J. imposed absolute discharges on a couple who pled guilty to operating a marijuana dispensary. Like Mr. Churchill, they used marijuana medicinally and opened their dispensary because of the difficulties in accessing affordable, good quality medicinal marijuana. • In R. v. Holder-Zirbser, 2018 ONCJ 59 , Boxall J. imposed an absolute discharge for the same offence, but on an employee of a marijuana dispensary who pled guilty, and, finally; • In R. v.

Hines and Fried , unreported, August 30, 2018, the offenders pled guilty, had no criminal records, operated a single marijuana dispensary, and were relatively youthful. The success and sophistication of their dispensary paled in comparison to the owners of lucrative dispensaries, as Justice Nelson discussed at paragraphs 21-29. In those cases, apparently, fines of $10 000 were regularly

sought by the Crown. Hines and Fried, however, did not fall neatly into this category. The quantum of drugs and money seized, inparticular, were distinguishing factors. Nelson J. imposed conditional discharges on both men. [37] From my review of these cases, clearly the range of available sentences is broad and includes both discharges and substantialfines. The cases of best assistance to me are those from this level of court, this moment in time, and this community. In reviewing thesecases, I cannot help but notice a de-escalation, towards present day, of sanctions imposed on the offenders.

This, in my view, reflectssociety’s changing attitude towards the sale and consumption of marijuana. To borrow from O’Donnell J.’s decision in R. v. Bao, 2018ONCJ 136 at para. 18: At the same time, the sentence imposed on him must, like any sentence, take into account the social mores of the time when he issentenced.

Canadian society has come a tremendous distance from the hysterical and fear-mongering outlook towards cannabischaracterized by films such as Reefer Madness in the 1930s (and criminal law policies that were not much more rational than that film),to a more nuanced view that, while cannabis use presents some very real dangers, especially for some groups such as young people, italso has rather benign uses no worse than alcohol, as well as some medically advantageous uses, including uses that could be much saferthan society’s over-reliance on prescribed opioids for pain relief, the effects of which this court sees daily.

Recognizing those socialrealities in determining an appropriate sentence, is qualitatively different than calling in aid a legislative change that has not taken place,even if it may lead some distance down the same path in determining sentence. [38] I agree. I accept the Crown’s submission about the risk of community harm these dispensaries present. I wholly recognize theneed to communicate that, in sentencing Mr. Churchill, a peaceful and orderly society depends on all of us respecting the rule of law. ButI cannot ignore how our government and our society currently views marijuana consumption.

It is an intoxicant with some risks similarto alcohol, but with indisputable medicinal qualities, as Rosenberg J.A. accepted in R. v. Clay, (2000) (ON CA), 135O.A.C. 66 and R. v. Parker, (2000) (ON CA), 135 O.A.C. 1. [39] It is not for me to decide, here, whether marijuana as medicine is less addictive or harmful than a prescription for fentanyl oroxycodone. It is not for me to decide whether marijuana is more or less harmful than alcohol.

But in my considered view, sentencesimposed for similarly situated offenders, for similar offences, currently reflect a change in social mores and attitudes towards marijuanaconsumption, even pre-decriminalization. This is why recent sentences imposed, in Ontario, are non-custodial and include the impositionof conditional and absolute discharges. The tide has been demonstrably changing. Aggravating and Mitigating Factors [40] None of the statutorily-aggravating factors in s. 10 of the CDSA apply in Mr. Churchill’s case. There are, however, facts thatmust aggravate his sentence.

The quantum of product available for sale in the store is one such aggravating feature. This was no smalloperation, despite the humble appearance of the store. There may have been $475 in the cash register, but there was up to $50 000 ofproduct available for sale. In large part, I found Mr. Churchill’s motive for offending was to provide good quality medicinal marijuanaproducts, but I cannot ignore that his other motive was financial gain. [41] There was a risk of direct community harm in the way Mr.

Churchill ran his operation, and I have to take this into account asaggravating given the prohibition against marijuana at the time. Mr. Churchill was not qualified to distribute marijuana to personsmedically, and was dispensing it on a trial and error basis. But like the Krieger case, there is no evidence of actual harm caused here. [42] Mr. Churchill’s dispensary also posed a risk to the neighbouring community. Illegal marijuana dispensaries clearly beget crime,violence, robberies, and weapons use. Luckily, none of those events occurred at Mr.

Churchill’s store, but operating outside the law stillposed this risk to him, his employees, his customers, and the Kensington Market community. This, too, must aggravate his sentence. [43] The Crown also submitted that mis-using MMAR licences to supply the customers with marijuana is aggravating. With respect,I struggle with why his mode of operation would be more aggravating than buying illegal marijuana off the street, of unknown quality,and thereby becoming a reliable customer source for criminal organizations. Moreover, Mr.

Churchill’s motive in using marijuana grownby MMAR designated producers was to ensure the best quality product for customers in medical need. I did not find this fact toaggravate sentence to any greater degree than had he purchased drugs from the street. [44] I must also observe that some aggravating factors, present in other cases, are not present here. Mr. Churchill ran a soleproprietorship. He was not part of a franchise like Goodwin and he was not, unlike the Emerys, the owner of a chain of franchises.Neither did Mr. Churchill operate entirely outside the law. He incorporated a business.

He paid HST and payroll taxes. [45] There are also mitigating factors here. Mr. Churchill pled guilty, a fact that distinguishes his situation from some cases I wasreferred to. As the Crown acknowledged, Mr. Churchill entered his plea at an early stage in the proceedings. These two facts areexceptionally mitigating upon sentence. They evidence remorse, regret, and his acceptance of responsibility. [46] Mr. Churchill, at age 53, has no prior criminal record and comes before the court as a first offender. When his store was raided,he co-operated with police, admitting he was one of the co-owners of the store.

Unlike many of the dispensaries referred to in theaffidavit of Det. Cst. Ross, Mr. Churchill shuttered his business and did not re-open. This not only mitigates his sentence, it also provesrehabilitative potential. [47] Further, I find that although Mr. Churchill hoped his business would make a profit, and perhaps at times it did, his mainmotivation in opening and operating his dispensary was his desire to help people who, like his terminally ill ex-wife, would benefitmedically from medical marijuana.

The fact that he had a screening process in place, to limit memberships and thus to limit sales,corroborates this motive. Whether or not the screening process was as restrictive as it could be is, respectfully, beside the point.

The Test for a Conditional Discharge [ 48 ] A conditional discharge is a legally available sentence in this case. The test to be satisfied is whether a discharge is in Mr. Churchill’s best interest and is not contrary to the public interest. The Crown concedes the first aspect of this test is met. In relation to the second part of the test, as Boxall J. noted in Holder-Zirbser , at para. 8 : The accused does not have to satisfy the Court that the discharge is in the public interest, but rather, only that it is not contrary to the public interest. R. v. Bothman, [1983] O.J. 70 (Ont. C.A.) .

The standard of not being contrary to the public interest is far lower than being in the public interest. Gilles Renaud, Sentencing in Ontario (Landon Legal Library Press, 2012) vol. 1 at 91. Mr. Churchill’s Sentence [ 49 ] Having considered the agreed facts, the supplementary Crown evidence, the viva voce testimony of Mr. Churchill and Det/Cst. Edgar, and after weighing the aggravating and mitigating factors, I am satisfied that a conditional discharge is both in Mr. Churchill’s interest and is not contrary to the public interest. Mr.

Churchill’s dispensary operation posed a risk of harm, but caused no actual harm. His choice to limit product sales further minimized that risk. His motive for offending was deeply rooted in a desire to help people suffering from illness and pain. I have no evidence of actual community harm or complaints about his business. The only evidence I do have on the point is that the Kensington Market community welcomed him. [ 50 ] I see no meaningful connection between registering a conviction against Mr. Churchill’s name and achieving the goals of sentencing.

In considering general deterrence, I am mindful of the fact that a suspended sentence “is not necessarily a greater deterrent to others than a conditional discharge”: R. v. Cheung and Chow (1976), 19 Crim. LQ. 281 (Ont. C.A.), as quoted by Hill J. in R. v. Hayes, [1999] O.J. No. 938 (S.C.A.D.) at para. 32 . In my opinion, general deterrence in this case can and will be addressed through the sentence I am imposing. [ 51 ] He has been specifically deterred. His rehabilitative potential is strong. Evidence establishes that Mr.

Churchill’s continued rehabilitation, and the reparation he must make to society for breaking its laws, can be achieved through probation terms. He needs to give back to the community what he took by breaking the law, and his probation order will accomplish that. It is not contrary to the public interest to conditionally discharge Mr. Churchill, and thus I will do so. [ 52 ] The length of Mr. Churchill’s probation would have been two years, save and except for the fact that it has taken almost one year to complete this plea and sentencing. Accordingly, I will impose one year of probation.

The terms of my probation order will be: • Keep the peace and be of good behaviour; • Appear before the Court when required to do so; • Not to change your name, your address, your employment, or occupation unless you have notified your probation officer in advance; • Report to a probation officer today, and thereafter as required by your probation officer; • Perform 100 hours of community service, pursuant to a

schedule and at a rate set by your probation officer; • Do not attend at, or participate in, directly or indirectly, any dispensary business that is engaged in the illegal sale of cannabis, the illegal sale of cannabis preparations and derivatives (including THC), and/or the illegal sale any product that contains or purports to contain these things. [ 53 ] Finally, I am giving serious consideration to whether I should increase the Victim Fine Surcharge, as s. 737 permits and as O’Donnell J. did in R. v. Bao .

This strikes me as appropriate, particularly given the unseized proceeds of crime in the ATM machine, which now cannot be subjected to a forfeiture order. I would like to call upon both parties to make submissions on Mr. Churchill’s current ability to pay an enhanced victim fine surcharge. Released: November 30, 2018 Signed: Justice Heather Pringle