2019 QCCQ 7292, 2019 QCCQ 7292

R. c. Quaraan 2019 QCCQ 7292 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU “Criminal Division” No: 550-01-098016-175 DATE: September 23, 2019 ______________________________________________________________________ PRESENT: THE HONOURABLE ANOUK DESAULNIERS, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v. FATIMA E.

QUARAAN Accused ______________________________________________________________________ REASONS ON SENTENCING (Rendered orally on September 23 rd , 2019) ______________________________________________________________________ [ 1 ] The accused, Fatima Elizabeth Quaraan, pleaded guilty to possession for the purpose of trafficking in cannabis marihuana and cannabis resin in amounts of no more than 3 kgs.

These offences are punishable by a maximum term of imprisonment of five years less a day. [ 2 ] She also pleaded guilty to the possession of a sum of money of a value not exceeding $5,000, knowing that it was obtained by the commission of an offence. This is punishable by a maximum term of imprisonment of two years. [ 3 ] The facts of the case are as follows. The accused worked for about a month in a cannabis dispensary in Toronto operated by a company called Cannaplus. She was offered an administrative position in a new dispensary opening in Gatineau.

The accused moved to the area and rented an apartment near her new workplace. She used her personal “Airbnb” account but the cost of the rental was paid for using the company’s credit card. [ 4 ] The dispensary was only open for a couple of days in Gatineau before the police obtained and executed a search warrant at the premises. The police also searched the accused’s apartment. A total of 3kgs of cannabis were seized at both locations, as well as 1kg of hashish. An amount of $3,866 was also seized at the accused’s apartment.

The accused admits that this money was obtained by the commission of an offence, i.e., the operation of the cannabis dispensary. [ 5 ] Cannaplus was in the business of selling medical marihuana for a profit. Clients wishing to purchase cannabis from Cannaplus at its Toronto and Gatineau locations were required to consult, through a “Skype” call, a medical practitioner located in British Columbia. After a short video interview, the medical practitioner would decide whether or not to issue a prescription for marihuana.

When a prescription was issued, the accused would record it in the company’s computer records, along with the client’s personal data. The client would then be able to purchase cannabis from the dispensary. [ 6 ] The accused was very familiar with this process because when she first learned about the Toronto dispensary, she became a client and obtained a prescription for cannabis through a similar “Skype” interview. [ 7 ] She admits that the process of issuing a medical marihuana prescription did not involve contacting the client’s family doctor or checking their official health record.

Clients were not required to provide their health care card. [ 8 ] The accused did not indicate that any mechanism was in place to verify the information provided by the client during the Skype interview. Any verification process would obviously be very short as prescriptions were usually emailed to her right after the appointment between the medical practitioner and the client. [ 9 ] The accused did not realize that the two dispensaries in which she worked were operating outside the law. She apparently was not aware that by working for Cannaplus, she was engaging in drug trafficking.

Cannaplus told her it was entitled to sell medical marihuana in Ontario and Quebec because it was registered in British Columbia. The accused did not try to confirm this information in any way and was unaware of the law, which is not a defence, pursuant to

section 19 of the Criminal Code . [ 10 ] The two dispensaries operated openly and publicly. It seems that the Toronto location was tolerated by local police authorities at the time the accused became involved, because she worked there for a month without any police intervention. This situation may have

contributed to misleading her as to the legal nature of the operation in Gatineau. [ 11 ] This is not the first time that an employee working for a medical marihuana dispensary is unaware of the illegal nature of the operation. Such was the case, for example, in the recent case of R . v. Holder-Zirbser [1] , where the court was called upon to sentence a dispensary employee who pleaded guilty to the same drug charges as the case at bar. She was granted a conditional discharge. [ 12 ] The general purpose and principles of sentencing are set out in sections 718 to 718.2 of the Criminal Code . Concerning drug offences more specifically,

section 10 of the Controlled Drugs and Substances Act (CDSA) provides that “the fundamental purpose of any sentence for an offence under this

Part 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”. [ 13 ] The Crown submits that a four months’ conditional sentence would appropriately reflect the need for specific and general deterrence.

The defence, on the other hand, seeks an absolute discharge or, in the alternative, a conditional discharge. [ 14 ] I was not able to find any Quebec decision dealing with the sentencing of a marihuana dispensary owner or employee. However, a number of decisions from Ontario and British Columbia deal with this specific issue. [2] [ 15 ] From my review of these cases, sentences for first-time offenders involved in the illegal operation of medical marihuana dispensaries usually range from an absolute discharge to a substantial fine.

Jail terms, including jail terms to be served in the community, are usually reserved for cases with a number of aggravating circumstances. [ 16 ] It bears mentioning that the changed societal attitude toward marihuana use, reflected by the recent legalization of recreational cannabis in Bill C-45, does not warrant a reduction in the established sentencing range for this kind of offence.

Parliament has not lowered the applicable penalty for the offence of possession for the purpose of trafficking, and there is no reason to believe that large- scale trafficking for profit in marihuana is somehow viewed as less serious because of the legislative changes in respect of personal possession and use. [3] [ 17 ] Illegal dispensaries pose a risk not only to their customers but also to the neighboring communities.

They can attract crime, violence and robberies. [4] [ 18 ] Also, public, open violation of the law must be met with appropriate condemnation. [5] [ 19 ] However, the case at bar presents a number of mitigating factors. [ 20 ] The accused is 27 years old and does not have any prior criminal record. She was not aware that the dispensary was operating illegally. She did not play a central role in the administration of the dispensary, as she was only in charge of recording clients’ data and prescriptions.

I should note, however, that she did store in her apartment some of the cannabis destined for sale at the dispensary, which constitutes a more direct involvement in the operation of the dispensary. [ 21 ] The accused pleaded guilty to the three charges, thereby preventing a multi-day trial. She also cooperated with the police and is a key witness for the prosecution in a trial relating to the Toronto dispensary. [ 22 ] The accused has been studying psychology at York University for six years and is currently completing her master’s degree.

She plans to do her Ph.D. and work in this field. [ 23 ] As for aggravating factors, the Court must consider the large quantity of drugs seized: in total, 4 kgs of cannabis and hashish were found in the dispensary and the accused’s apartment.

The large amount of money seized at her apartment also speaks to the size of the dispensary’s operation. [ 24 ] The accused’s involvement in the Gatineau Cannaplus dispensary was driven by financial gain and not the activism or altruism found in a number of other court cases involving similar dispensaries. [6] [ 25 ] In light of all of the above and, in particular, the mitigating factors, which are compelling, I find that a jail term, even one to be served in the community, is not necessary for specific or general deterrence. [ 26 ] The Court notes that a distinction must be made with respect to such decisions as R . v.

DeFelice , [7] where the Court of Appeal for British Columbia ordered a conditional sentence for unrepentant marihuana dispensary operators who had previous drug-related convictions and operated a dispensary for many years. Such is not the case here. [ 27 ] I must then consider if the sentence should be a fine, a suspended sentence and probation, or a conditional or absolute discharge. [ 28 ] The granting of a conditional or absolute discharge must be in the best interest of the accused and not be contrary to the public interest.

Section 730 of the Criminal Code , which allows the granting of a discharge, does not limit it to technical or trivial offences. This

section provides that the court may direct that an accused be discharged for any offence, other than an offence for which a minimum sentence is prescribed by law or an offence punishable by imprisonment of 14 years or more.

Thus, a discharge is available and the Court must consider the best interest of the accused and whether a discharge is contrary to the public interest. [ 29 ] The courts have often ordered a discharge in cases involving first time offenders involved with the distribution of medical marihuana. [8] [ 30 ] As for the interest of the accused, she testified that she intends to further her studies in psychology, finish her master’s degree and go on to do her Ph.D. She plans to work in this field. A criminal record would restrict the opportunities available to her as she would

not be allowed to work in a vulnerable sector, such as with children. [ 31 ] The accused has successfully demonstrated that a discharge would be in her best interest. [ 32 ] The accused has also successfully demonstrated that a discharge would not be contrary to the public interest. [ 33 ] It is in society’s interest that the accused be able to work in all sectors of her field of expertise, psychology. [ 34 ] She was not the instigator of the dispensary; her role was merely that of an employee.

No evidence was presented to suggest that she participated in the profits of the operation, other than by receiving a salary. She was not aware that the dispensary was operating outside of the law. Cannaplus told her that its business was legal. [ 35 ] The accused cooperated fully with the investigation and demonstrated a sense of responsibility evidenced by her guilty plea and her role as a key Crown witness in the Toronto trial. She does not have any prior record. The dispensary in Gatineau was only open for a couple of days.

CONCLUSION [ 36 ] For all of the above reasons, a conditional discharge, accompanied by an obligation to perform 100 hours of community service, would address general deterrence while contributing to respect for the law and encouraging rehabilitation. THEREFORE, THE COURT: ORDERS a conditional discharge; IMPOSES a one-year probation with the following terms: 1. Keep the peace and be of good behaviour; 2. Appear before the Court when required to do so by the Court; 3. Notify the probation officer; 4.

Perform 100 hours of community service within 11 months as of today and comply with the terms of performance indicated by the probation officer or any other caseworker designated by the probation officer. Report to the officer within 48 hours; 5. Do not attend at, or participate in any dispensary business that is engaged in the illegal sale of cannabis products. __________________________________ Anouk Desaulniers, J.C.Q. Mtre Simon Pelletier For the Crown Mtre Jean Dury For the accused Date of hearing: June 4, 2019