R. v. Letellier, 2022 BCPC 110

Citation: R. v. Letellier 2022 BCPC 110 Date: 20220609 File No: 68602-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SIMON LETELLIER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.C. CHALLENGER Counsel for the Crown: L. Dumbrell Counsel for the Defendant: Z. Myers Place of Hearing: North Vancouver , B.C. Date of Hearing: March 2, 2022 Date of Judgment: June 9, 2022

[ 1 ] Simon Letellier pled guilty on March 2, 2022 to one count of unlawfully possessing cannabis, and one count of unlawfully possessing cannabis solids, for the purpose of selling it, contrary to s. 10(2) of the Cannabis Act (the Act ). The offences occurred in The Resort Municipality of Whistler, B.C., on or about June 6, 2021. [ 2 ] The Crown proceeded by Indictment. The maximum penalty available is imprisonment for not more than 14 years. There are no maximum fine amounts set out in the Act with respect to indictable offences. A conditional sentence order is available following the decision of R. v.

Chen, 2021 BCSC 697 . [ 3 ] The Crown submitted a fine in the amount of $10,000.00 and a three year term of probation is appropriate. The probationary term would permit the imposition of 100 hours of community work service and a curfew. [ 4 ] Counsel for Mr. Letellier submits that a fine of $3,000.00 is appropriate taking into account his moral culpability and ability to pay and urges the Court to impose an 18 month period of probation. Circumstances of the Offence [ 5 ] An Agreed Statement of Facts was filed.

It outlined an ongoing investigation into transactions involving the delivery of cannabis products to consumers. When stopped by the police, the delivery vehicles contained significant amounts of product and cash, along with cell phones. Business cards were also located in the name of “CBD Delivery”. [ 6 ] The investigation revealed that Mr. Letellier had a total of four vehicles registered in his name which were being used to conduct the cannabis product delivery scheme. One vehicle had been rented in Mr. Letellier’s and other persons names.

Only one vehicle was in fact owned by him. [ 7 ] Over the course of the spring of 2021, the vehicles and their drivers were under surveillance as they conducted suspected transactions. Mr. Letellier and others were observed operating those vehicles. [ 8 ] The vehicles were observed frequenting a container in a storage facility. The storage company evicted the leaseholder due to suspicious activity. The leaseholder of the storage container was involved in the cannabis delivery scheme along with this offender. [ 9 ] Further surveillance led to the belief that the product had been moved to an Econoline van.

Later, the police observed the vehicles involved in the deliveries attending to a motor home registered to the offender. [ 10 ] On June 6, 2021, Mr. Letellier was arrested as he left the motor home. During a search of his person the police located two small paper bags which appeared to each contain an order of dried cannabis. He was also in possession of two cell phones, $210.00 in cash and keys to the motor home. [ 11 ] Mr. Letellier says he took the opportunity, offered by an acquaintance, to make extra income by managing the inventory of the illicit online cannabis delivery scheme.

He denies participating in the delivery of product. He was involved in the scheme for four months before being arrested. [ 12 ] The product in the motor home had a total estimated value of $64,333.00. The inventory consisted of individually packaged dried marijuana, packaged joints, various CBD gummies and oils and cannabis infused sugar for making edibles. There were also numerous edibles named as, and packaged to appear to be, popular brands of candy marketed to children. $200.00 in cash, rolling papers and lighters were also located. [ 13 ] Two of the vehicles used to make deliveries were searched.

Two cell phones were located, one of which was receiving email requests for delivery. Documents relating to this offender were also found in his personal vehicle. [ 14 ] The illicit cannabis distribution scheme operated using a website. Purchasers would request their product online, provide an address and pay cash upon delivery. Deliveries were made the same day between the hours of noon to 9:00 p.m., along the Sea to Sky corridor from Squamish through to Pemberton. Antecedents of the Accused [ 15 ] Mr. Letellier is 40 years of age and has no criminal history.

He graduated from high school and took some post secondary education in business management. [ 16 ] He has two children who live in Ontario. He is close to his children and says he provides them with financial support. He separated from their mother and moved to Whistler in the early spring of 2020, just prior to the imposition of the pandemic related travel restrictions. He had been planning to stay in Whistler briefly and then to travel internationally. He chose to remain in Whistler and obtained legitimate employment doing bathroom renovations earning approximately $2,000.00 per month. [ 17 ] Mr.

Letellier has no health, mental health or substance abuse issues. He maintains a minimalist lifestyle. He had been residing in the motor home which was used to store the product until it was seized. He and the mother of his children share a live aboard boat in Florida where they had lived on a seasonal basis. [ 18 ] There is no explanation or evidence as to why Mr. Letellier could not earn at least a full time minimum wage income. To the contrary, Mr. Letellier appears to be able to work as a skilled labourer in renovation work, which would allow him to earn substantially more than $2,000.00 per month.

The Applicable Law [ 19 ] The most relevant provisions of the Act are:

7 The purpose of this Act is to protect public health and public safety and, in particular, to (

a) protect the health of young persons by restricting their access to cannabis; (

b) protect young persons and others from inducements to use cannabis; (

c) provide for the licit production of cannabis to reduce illicit activities in relation to cannabis; (

d) deter illicit activities in relation to cannabis through appropriate sanctions and enforcement measures; (

e) reduce the burden on the criminal justice system in relation to cannabis; (

f) provide access to a quality-controlled supply of cannabis; and (

g) enhance public awareness of the health risks associated with cannabis use. Sentencing 15

(1) Without restricting the generality of the Criminal Code , the fundamental purpose of any sentence for an offence under this Division is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

(2) If an individual is convicted of a designated offence, the court imposing sentence on the individual must consider any relevant aggravating factors, including that the individual (

a) in relation to the commission of the offence, (

i) carried, used or threatened to use a weapon, (ii) used or threatened to use violence, or (iii) sold or distributed cannabis or possessed it for the purpose of sale or distribution, in or near a school, on or near school grounds or in or near any other public place usually frequented by young persons; and (

b) was previously convicted of a designated offence , as defined in subsection 2(1) of this Act, or a designated substance offence , as defined in subsection 2(1) of the Controlled Drugs and Substances Act .

(3) If, in the case of an individual who is convicted of a designated offence, the court is satisfied of the existence of one or more of the aggravating factors enumerated in paragraphs (2)(

a) and (b), but decides not to sentence the individual to imprisonment, the court must give reasons for that decision.

Appeal to young persons 31 Unless authorized under this Act, it is prohibited to sell cannabis or a cannabis accessory that has an appearance, shape or other sensory attribute or a function that there are reasonable grounds to believe could be appealing to young persons. [ 20 ] Under the Act , delivery of cannabis products is not authorized except where it has been dispensed pursuant to a medical prescription. [ 21 ] Counsel were unable to provide the Court with any sentencing authorities for factually similar matters under the Act due to its relatively recent enactment in late 2018. [ 22 ] In R. v.

Coffey, 2020 BCCA 195 , the offender was convicted for offences relating to the cultivation of large quantities of marijuana in a sophisticated grow operation while taking advantage of licenses issued for medical purposes. He was prosecuted for offences under the Controlled Drugs and Substances Act . The Court referenced the Cannabis Act as follows: [34 ] I am unable to accept the argument that the judge erred by imposing a sentence that fails to reflect changing public attitudes towards marihuana cultivation.

The judge addressed this issue in his reasons, noting that the penalties for possessing large quantities of marihuana for the purpose of trafficking and illicitly producing marihuana have not significantly changed since the enactment of the Cannabis Act . A similar point was made in R. v. Strong , 2019 ONCA 15 at paras. 2–4 : [2] The appellant’s main argument rests on the assertion that … the changed societal attitude toward marijuana use warrants a reduction in the established range for this kind of offence.

We cannot accept this submission. [3] While the societal perception of the seriousness or harmfulness of the offender’s conduct has a role to play in considering factors such as denunciation and deterrence, we see no basis to conclude that the conduct involved in this case would be viewed as anything other than serious criminal misconduct. [4] Parliament has not significantly altered the applicable penalty.

Nor, in our view, can one assume that a large scale, prolonged trafficking for profit in marijuana is somehow viewed as less serious because of the legislative changes in respect of personal possession and use. [35] I see no error in principle in the judge’s conclusion that the type of conduct engaged in by the appellant in the case at bar continues to be serious criminal conduct that warrants the imposition of penalties within established ranges.

[ 23 ] In R. v. Daniels, 2021 NSSC 103 , the Court was dealing with an offender who was selling marijuana through an unauthorized dispensary but only to those with medical prescriptions. The Court adopted the following comments from R. v. Murphy, 2018 NLSC 256 : [43] Justice Burrage discussed in detail the changes in how Canadian law dealt with marijuana over the years. The Court summarized the changes from the CDSA to the Cannabis Act as follows: 43 While continuing to treat the unauthorized possession of cannabis for distribution and sale of cannabis as a criminal offence, at its more serious level there are three noteable [ sic ] changes between the CDSA and the Cannabis Act : (

a) The maximum period of imprisonment is reduced from life to 14 years; (

b) The elimination of mandatory minimum terms of imprisonment; and (

c) The lack of a graduated sentence based on the quantity of cannabis involved. 44 In circumstances, such as those faced by Mr. Murphy, there is no change in relation to the unavailability of a conditional sentence, or a discharge, the

section 109 firearms' prohibition and discretionary DNA order. [44] The Court further reflected on the sentencing principles regarding illicit cannabis activities and found that, while the relevant principles remained the same, the weight attached has changed: 62 As the language of the Cannabis Act closely approximates

section 10 of the CDSA , and section 15(1) of the Cannabis Act is prefaced with the language ‘Without restricting the generality of the Criminal Code ...’, I do not discern any appreciable change in the principles of sentencing for cannabis related offences post legalization. As we shall see, the relative weight to be attributed to these principles, in particular those of denunciation and deterrence, may be another matter.

What will now constitute ‘appropriate sanctions’ directed towards deterrence? [45] Justice Burrage then assessed a wide range of sentences involving marijuana trafficking which were broken down into three time periods: the “conditional sentence era” (see paras. 65-86), the “post conditional sentence era” (see paras 87-99), and “sentencing in anticipation of legalization” (see paras 100-120). The Court found that it must give weight to the passing of the Cannabis Act , which was no longer speculative, as reflective of society’s and the government’s shifting attitudes.

It concluded that denunciation and deterrence were made out in this case such that a jail term was unnecessary: 127 What, then, of the principles of denunciation and general deterrence? On the facts of this case , does a proportional sentence demand that these principles should take precedence over the antecedents of Mr. Murphy, such that a term in jail is nonetheless warranted? In my view, they do not. 128 In Thompson the Ontario Court of Justice observed that, "Assessment of communal values by sentencing judges is important, because values change.

Sentencing ranges change too" (at paragraph 29). 129 In Provost , our Court of Appeal echoed a similar sentiment: "It is good when judges are mindful of developments in their communities and of patterns of offences that come before the courts," (at paragraph 14). … 132 It is true that there remains a societal interest in ensuring that the quality of legalized cannabis is preserved and that this drug does not find its way into the hands of young people. The illegal production, sale and distribution of cannabis runs contrary to this interest.

Hence the continued need for general deterrence through ‘appropriate sanctions and enforcement measures’ ( Cannabis Act ,

section 7 (d)). The new Canadian world of legalized cannabis is not a world where anything goes. Of course, the same may be said for two of this country's other legalized drugs, alcohol and tobacco. … 135 All things being equal, it is fair to say that the principles of general deterrence and denunciation, while still relevant, have less prominence than prior to legalization. To this I would add an important caveat, for all things are seldom equal. Undoubtedly, there will be circumstances where deterrence and denunciation will merit greater weight than in the case before me. I am thinking, for example, of those cases where one or more of the aggravating circumstances in

section 15 of the Cannabis Act are present. However, the application of the principles of denunciation and deterrence is not a matter of a one size fits all. [italics in original] [46] The Newfoundland and Labrador Court of Appeal upheld Justice Burrage’s treatment of past sentencing ranges (see para. 8) and the conclusion that denunciation and deterrence had less significance in marijuana trafficking cases since the passing of the Cannabis Act (see para. 46). The lower end of the range was supported by the case law and thus the parity principle was also addressed by the suspended sentence.

This recent case provides a strong appellate counterbalance to the earlier case law suggesting that, in general, marijuana trafficking cases start with a range of one year’s incarceration despite present legalization. [ 24 ] The principles of sentence are set out in ss. 718 to 718.21 of the Criminal Code and I have considered them in conjunction with those set out in s. 15 of the Act . [ 25 ] Under s. 718, the fundamental purpose of sentencing is to protect society and promote respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions.

The objectives of such sanctions include denouncing unlawful conduct, deterring offenders and others from committing crimes, separating offenders from society where necessary, rehabilitating offenders,

providing reparations for harm done to victims or to the community, and promoting a sense of responsibility in offenders. [ 26 ]

Section 718.1 sets out the fundamental principle of sentencing. A sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the offender. [ 27 ]

Section 718.2 sets out a number of other sentencing principles. Sentences are to be increased or reduced to account for any aggravating or mitigating circumstances and should be similar for similar offences committed by similar offenders in similar circumstances. Sections 718.2(

c) to (

e) promote restraint in sentencing and direct that offenders should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. Aggravating and Mitigating Circumstances [ 28 ] The aggravating circumstances are that this offence was motivated solely by greed and the lure of “easy money”. The scheme was sophisticated and ongoing with the potential to produce significant profits. The offender’s choice to become and to remain involved was freely made. [ 29 ] Mr. Letellier had an integral role and was in a position of trust in the scheme.

He participated not only in the management of the inventory, but also by having vehicles which he did not own registered in his name. He used his own vehicle and motor home to assist in the scheme. [ 30 ] There are no statutory aggravating factors as set out in s.15 (2) of the Act. [ 31 ] In mitigation, the offender entered a guilty plea at a very early stage in the proceedings and gave up his right to a trial. His guilty plea also saved the Court significant resources. [ 32 ] Mr. Letellier is sincerely remorseful and accepts responsibility for participating in the scheme. He is a person with no criminal history.

I accept he has been specifically deterred and I do not expect to see him back before the Courts again. [ 33 ] Mr. Letellier had no control over the products being sold and, more specifically, the edibles packaged to appear to be popular brands of candy marketed to children. [ 34 ] He has forfeited almost $10,000 in value relating to the seizure of his vehicle and motor home. Discussion [ 35 ] The nature of the offence before the Court undermines the legislated aims of Parliament to regulate and control the safe production and taxable distribution of cannabis products.

Such a scheme also undermines legitimate businesses which must operate as “brick and mortar” retail establishments and amounts to unfair competition for those who invested in obtaining the necessary licenses and permits to operate those retail outlets. [ 36 ] There is a need to strongly discourage the “black market” for cannabis products through the penalties imposed by the Courts under the Act . The sale of illicit cannabis has historically presented and, regrettably, continues to present an opportunity to reap enormous tax free profit.

Such a profit motive has, in turn, a well established connection to the involvement of criminal organizations and the violence and corruption which follows. [ 37 ] The decision to regulate cannabis products to allow for legal retail sales and personal possession reflected Canadian society’s general acceptance of, and softening attitudes toward, the consumption of cannabis.

However, there has not been any softening of attitudes towards those who choose to engage in the violation of laws which regulate drugs such as alcohol, tobacco and now cannabis products. [ 38 ] It cannot be lost sight of that production of substances which are intended for internal consumption in unregulated, and therefore unknown circumstances, can result in products with unknown ingredients and uncertain potency.

As a result, the consumption of illicit cannabis gives rise to serious health and safety risks. [ 39 ] I do not accept that four years after the enactment of the Cannabis Act in October of 2018, there is room left for any “grey area” or misapprehension about the legal sale of cannabis products in Canada. Ignorance of the law is no excuse. At this juncture, any failure to comprehend that unregulated production and distribution of cannabis products is illegal could only arise from wilful blindness. [ 40 ] The Resort Municipality of Whistler has seen fit not to permit any retail cannabis stores.

This does not in any way justify the operation of illicit delivery schemes. The submission that there were two other illicit cannabis delivery schemes in operation in the area at the time this offender was arrested only serves to demonstrate the great profit potential for such schemes.

This supports the need for the Courts to impose denunciatory and deterrent penalties sufficient to send a strong message condemning such conduct. [ 41 ] Those who wish to purchase regulated and legal cannabis products can do so at retail stores in Squamish and Pemberton. [ 42 ] Division 2, Subdivisions A through D of the Act address the need to strictly limit the promotion of the consumption of cannabis products, in particular, for persons under the age of 18. There are limited exceptions for licensed sellers inside their premises.

These provisions, similar to those relating to tobacco and alcohol, are aimed at encouraging responsible use by adults only and to limit the negative physical and mental impact from the over consumption of such substances. [ 43 ] Packaging cannabis edibles as brands of candy marketed to appeal to children is specifically prohibited by the Act .

The reasons for this prohibition are self evident as this could lead to the poisoning of small children who consume what they believe to be candy, but which actually contains a potentially potent drug. [ 44 ] Denunciation and deterrence must be given significant weight in determining the penalty for offences which undermine

regulatory aims and are engaged in for profit. Illicit drug distribution schemes which promise easy money entice non-addicted persons who possess the skills and capacity to be business like and organized.

These people are, like the offender before the Court, often of previous good character and are most likely to be deterred by imposing significant penalties. [ 45 ] In order to deter like minded people from choosing to become involved in these kinds of offences, the Courts must make clear that, if they are detected, they will face a significant monetary penalty or incarceration, in addition to the stigma of a criminal conviction for a drug related offence and forfeiture of any property related to the offence. [ 46 ] Counsel for the offender submits that he entered his guilty plea despite the assessment that there were triable issues.

Mr. Letellier says he has been specifically deterred by his arrest, the process of facing charges in court and now a conviction for criminal offences. He knows he will now face limitations on his ability to travel to the United States and potentially other countries. He will be unable to access his boat in Florida or share time there with his children. [ 47 ] His involvement in the illicit scheme was out of character. He presents as a first time offender at the age of 40. However, his moral culpability is not attenuated by any personal circumstances. [ 48 ] Counsel for Mr.

Letellier submits the Court must give significant weight to the principle of restraint. The offender says he has a limited ability to pay a fine and therefore the imposition of a total amount of $3,450.00, including the victim fine surcharge, represents a significant penalty. The imposition of a fine in the total amount of $11,500.00 would be overly punitive in his circumstances. The offender is willing and able to perform substantial community work service hours. There is no need to impose a probation term for any other purpose related to a need to assist with rehabilitation.

Conclusion [ 49 ] Counsel for the Crown has quite properly not asked the Court to consider incarcerating Mr. Letellier given that he is a first time offender who is of previous good character. However, their position with respect to a $10,000.00 fine is a fair and reasonable one which speaks to the need for denunciation and deterrence. A $3,000.00 fine would not meet those principles of sentence. [ 50 ] Taking into account that Mr. Letellier has already forfeited approximately $10,000.00 in value and is prepared to perform community work service, I find that a total fine in the amount of $6,000.00 is appropriate.

I will also impose 240 community work service hours which is the maximum allowable number. This results in a total cost to him of approximately $20,000.00 if the work service hours are valued at minimum wage. [ 51 ] Mr. Letellier will be placed on probation for a period of two years to allow him to perform his hours. I will grant him two years to pay the fine and victim fine surcharge of $900.00. He may apply to terminate his probation as soon as he completes his hours and pays his fine in full. _______________________________ The Honourable Judge J.C. Challenger Provincial Court of British Columbia