R. v. Terrio, 2022 NSSC 133

SUPREME COURT OF Nova Scotia Citation: R. v. Terrio , 2022 NSSC 133 Date: 20220513 Docket: CRH No. 485720 Registry: Halifax Between: Her Majesty the Queen v. Alexander Jesse Terrio SENTENCING DECISION Judge : The Honourable Justice Peter J. Rosinski Heard : May 6, 2022 in Halifax, Nova Scotia Counsel : Glen Scheuer for Her Majesty the Queen Sarah M. White for Alexander Jesse Terrio By the Court: Introduction [1] [ 1 ] Mr. Terrio is 31 years of age and has no criminal record. [ 2 ] He worked with the military for five years and received an honourable discharge.

He continued his education by completing a two-year Power Engineering program and worked in that capacity for 2 ½ years until he decided that that work was not for him. [ 3 ] Early in 2018 he was at loose ends and made a trip from Sydney to Halifax to consider his future. [ 4 ] During that trip, he attended at the retail premises of a so-called “cannabis products dispensary” (publicly known as the Atlantic Compassion Club Society [“ACCS”] a.k.a. “the Cana-Clinic”). He made a favourable impression on the supervisory staff, and they offered him a job on the spot, which he accepted.

He concluded a move to Halifax would be helpful to improve his mood and give him a fresh start. [ 5 ] Mr. Terrio worked there for several months. [ 6 ] By early March 2018 he had been promoted (from working the sales till, and as floor manager of sales staff) to supervising store manager. His only credentials for that position were that he had worked there for several months and had been promoted. In May

2018, he was charged for having on April 17, 2018, possession for the purpose of trafficking [2] : 1. not in excess of 3 kg of cannabis marijuana contrary to section 5(2) of the Controlled Drugs and Substances Act , SC 1996 c. 19 (“ CDSA ”); and 2. not in excess of 3 kg cannabis resin contrary to section 5(2) of the Controlled Drugs and Substances Act , SC 1996 c. 19 . [ 7 ] He is before the court for sentencing. The maximum sentence on each count is five years less one day in custody - s. 5(3)(a.1) CDSA . [ 8 ] Although, at first glance, a sentence of imprisonment could be justified here, I am satisfied that Mr.

Terrio should be sentenced to a 12-month conditional discharge per s. 730 of the Criminal Code (“ CC ”). [ 9 ] Let me explain this conclusion by examining the sentencing positions of the Crown and Defence and the circumstances of the offences and Mr. Terrio. The positions of the Crown and Defence [ 10 ] The Crown and Defence take philosophically different perspectives on the nature of Mr.

Terrio’s unlawful conduct. [ 11 ] The Crown argues he has pled guilty to possession for the purpose of trafficking cannabis marijuana and cannabis resin, and therefore he is essentially like any other “illegal drug dealer” (and should be sentenced based on the sentencing ranges in relation to such individuals), except that Mr. Terrio sold his product from a visible public location and with the belief that he was helping people who were seeking access to cannabis. [ 12 ] Mr.

Terrio’s counsel argued that the following factors significantly lessen his moral blameworthiness or culpability from that of a traditional cannabis trafficker: 1. his genuine belief that he was just helping people access cannabis, which some tout as having a medicinal quality; 2. his perception over the several months he worked at ACCS that the police were purposefully not strictly enforcing the prohibition of such sales; 3. his perception that the business was “legitimate” since, among other things, his pay stubs had the usual indicia associated with such businesses; and 4. his perception was buttressed by evolving societal views regarding the benefits as opposed to harms associated with cannabis consumption. [3] [ 13 ] In present circumstances, all other things being equal between Mr.

Terrio and traditional “illegal cannabis drug dealers”, strictly speaking I do not find his moral blameworthiness to be significantly less than the traditional “illegal cannabis drug dealer”. However, I accept that the individualized nature of such sentencings and the greater likelihood of mitigating factors for offenders like Mr. Terrio will sometimes result in a materially less punitive sentence for such offences.

Thus, I agree generally that the range of sentence for cannabis dispensary staff (pre- Cannabis Act ) was likely broader than for the traditional “illegal cannabis drug dealer”. [4] [ 14 ] Firstly, let us not forget why cannabis remains a highly regulated drug. As the Supreme Court of Canada stated in R. v. Malmo- Levine , 2003 SCC 74 at paras. 135 and 136 : …Marihuana is a psychoactive drug whose "use causes alteration of mental function" according to the trial judge. This alteration creates a potential harm to others when the user engages in "driving, flying and other activities involving complex machinery".

Chronic users may suffer "serious" health problems. Vulnerable groups are at particular risk, including adolescents with a history of poor school performance, pregnant women and persons with pre-existing diseases such as cardiovascular diseases, respiratory diseases, schizophrenia or other drug dependencies.

These findings of fact disclose a sufficient state interest to support Parliament's intervention should Parliament decide that it is wise to continue to do so, subject to a constitutional standard of gross disproportionality, discussed below. 136 The criminalization of possession is a statement of society's collective disapproval of the use of a psychoactive drug such as marihuana (Morgentaler, supra, at p. 70), and, through Parliament, the continuing view that its use should be deterred. The prohibition is not arbitrary but is rationally connected to a reasonable apprehension of harm.

In particular, criminalization seeks to take marihuana out of the hands of users and potential users, so as to prevent the associated harm and to eliminate the market for traffickers.

In light of these findings of fact it cannot [page643] be said that the prohibition on marihuana possession is arbitrary or irrational, although the wisdom of the prohibition and its related penalties is always open to reconsideration by Parliament itself. [ 15 ] Moreover, as I noted in my decision 2020 NSSC 88 , at paras. 7-15 , it appears that the Halifax Regional Municipality did engage in enforcement of its Land Use Bylaw against such businesses, and I independently conclude that there is no evidence of police condonation of such businesses in Halifax at the material times. [ 16 ] While the retail location of ACCS and presentation of these illegal cannabis products might superficially have lent an air of legitimacy to such businesses, and they purport to provide a medical service, they remain at their core no different from the conduct of a traditional large-scale commercial “illegal drug dealer”.

Without any state-supervised safety and related oversight, both provide a prohibited controlled substance (of an unconfirmed nature and quality, and which likely encourages other illegal activity related to the sourcing of the cannabis) to members of the public for money. The difference is in how each group “markets” its products. [5] [ 17 ] These so-called cannabis “dispensaries” were not in what some have referred to as a “legal grey zone”. They were

unquestionably illegal - and they remain so in Nova Scotia - only the Nova Scotia Liquor Commission is presently authorized to make such sales to the public. [ 18 ] Mr. Terrio clearly knew what he was doing was illegal. Arguably, his behaviour was more brazen because of it being so public. On the other hand, he was more misguided in his motivation than he was intending to assist a criminal enterprise in the traditional sense. The sentence recommendation of the Crown [ 19 ] The Crown argues Mr.

Terrio should be sentenced to a short period of incarceration (i.e. less than six months), and if the court concludes the requirements are met, the sentence could be served as a conditional sentence order per s. 742.1 CC . [6] [ 20 ] It also seeks a so-called firearms prohibition order pursuant to s. 109(1)(

c) CC and forfeiture of all offence-related property per s. 16 CDSA and s. 462.37 CC (a copy of the listing of the articles forfeited is attached hereto as Appendix “A”). [ 21 ] It points out that the cannabis marijuana and cannabis resin sold from the dispensary is from unknown origins (and I infer beyond a reasonable doubt that it was illegally sourced) and has not been tested to ensure that its contents’ nature and quality make it safe and saleable for public consumption. [ 22 ] I agree with the Crown that the evidence does not establish on a balance of probabilities that ACCS only, or even for a majority of its consumers, sold to those with medical authorizations permitting them to consume cannabis. [7] [ 23 ] The police seized from ACCS premises [8] : 1. 1826.5 g of cannabis marijuana valued at street market prices in total $18,000-$27,000; 2. 106.22 g of cannabis resin valued at street market prices of $1,000-$2,600; and 3. numerous boxes and packages of cannabis THC-infused products including edibles, oils, creams, capsules and liquid THC.

Such edible cannabis, extracts and topical creams etc. only became legal for sale upon the enactment of Federal Regulations as of October 17, 2019. [ 24 ] Cash dispensing ATM receipts showed very substantial transactions over time. Approximately $12,600 cash was seized from the premises at the date of the execution of the search warrant. Mr. Terrio’s sentence recommendation [ 25 ] Mr.

Terrio argues that he should receive an absolute or conditional discharge (he does not wish to be “on probation”), and indicated through counsel he would be agreeable to entering into a peace bond [9] to stay away from any so-called cannabis products dispensary. [ 26 ] Mr. Terrio says he should be treated like other cannabis dispensary employees (not owner/operators) who have been sentenced for these offences (i.e. according to certain unreported decisions – in which Ms.

White was herself counsel and reported to the court by her) to absolute/conditional discharges or by entering into peace bonds, especially in light of him having no previous criminal record, and excellent prospects for not re-offending in any manner, as well as from an examination of his positive PSR, and the many “reference letters” in his favour. A consideration of the statutory and common law factors relevant to determining what is a “just” sentence [ 27 ] I must sentence Mr.

Terrio by applying the applicable statutory law in effect at the time of the offences (in particular s. 10 CDSA and the relevant principles arising from the Criminal Code ) and relevant jurisprudence, based on the circumstances of the offences and Mr. Terrio. [ 28 ] Generally stated, those principles are that this sentence should contribute to respect for the law and maintenance of a just, peaceful, and safe society while encouraging rehabilitation and treatment of Mr. Terrio and acknowledging the harm done to victims and to the community; it should deter Mr.

Terrio and others from committing such offences and promote a sense of responsibility in Mr. Terrio. [ 29 ] Sentences should be proportionate to the gravity of the offences and the degree of responsibility of Mr. Terrio. Sentences will fluctuate in severity depending on the aggravating or mitigating circumstances relating to the offences or the offender. [ 30 ] The fact that Mr.

Terrio worked there for several months is an aggravating factor on his sentencing for his April 17, 2018, offences, but I bear in mind that strictly speaking he is not being sentenced for that ongoing conduct. [ 31 ] Sentences should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, and an offender should not be deprived of their liberty if less restrictive sanctions may be appropriate in the circumstances. [10] [ 32 ] Let me briefly consider Mr. Terrio’s arguments in support of his receiving an absolute or conditional discharge. [ 33 ] Mr.

Terrio relies on the following suggested mitigating factors in relation to his sentencing: 1. He pleaded guilty at a relatively early point in the proceedings (November 8, 2021). His counsel in her brief pointed out that his trial was set to commence on November 9, 2021, and only on September 28 did the Crown provide “a position which would open the door for Mr. Terrio to be able to argue for a discharge on this date. The court was advised that the matter would be resolving on October 19, 2021.

The turnaround time from resolution offer to acceptance of plea was 22 days.” This involves the tetrahydrocannabinol count. There remains some mitigating effect in spite of the lateness of the guilty plea, which was due to Mr. Terrio’s self-interest rather than

genuine remorse, and I note the case against him was substantial. A proportionate recognition for his guilty plea is appropriate. 2. He genuinely believed he was helping people who “needed” it to get access to cannabis – this factor should only be given modest consideration because his good intentions cannot overwhelm the fact that he well knew his actions and conduct were illegal – moreover the dispensary was already there, and he did not have to become involved in order to ensure that people who “needed” cannabis could get it. 3.

He genuinely believed the business was “legitimate” – this factor should receive no consideration, since the business could well be providing paychecks with deductions for income taxes, remitting HST to the provincial government etc. yet still conducting business in an illegal product. Moreover, he has acknowledged that he knew it was illegal for the business to provide cannabis to the public, and there is no evidence that the dispensary exclusively, or even for the majority of its customers, provided cannabis only to those with medical authorizations. 4.

He was only a “low level manager”– his own career at the dispensary and the evidence available belies this description. He started as a floor sales-till employee, then moved on to supervising staff in those positions, and at the time of the offences was the second most senior person, after the general manager, in the store. Moreover, when police called as a result of the break and enter/robbery of cannabis product on April 17, 2018, he was able to provide the police access to the CCTV surveillance video recordings because he had knowledge of the password permitting such access.

These are signs that he was trusted by the owners, and entirely aware of the details of the operation of the dispensary. Video surveillance showed him in the office receiving THC liquid product from a courier/runner and paying that person with cash out of the locked safe; similarly he is seen on video surveillance attending to the ATMs by stocking and unloading them of cash and similar actions such as the documentary evidence shows: payment of staff wages/backpay, payment of expenses, authorization for work to be done around the store by outside companies etc. 5.

He cooperated with police when they arrived on April 17, 2018, in response to the break and enter/robbery of product from the premises. Yes, he was called in the early morning hours and did arrive and assist police to access the CCTV surveillance videotapes and otherwise in a manner that helped the police advance their investigation of identifying who the two people who broke in and robbed the store were (see my reasons in 2020 NSSC 88 at paras.19-36).

However, when the police asked him to open the safe while they were conducting their search by warrant of the premises, he claimed he did not know the code/combination, although video shows him repeatedly accessing the safe - this factor should be only given modest weight as I am satisfied he was acting primarily in the interests of ACCS during his contact with police. 6. He has very many positive reference letters vouching for his generous and compassionate nature which include one from his aunt Suzanne Rogers who knows him particularly well.

She is concerned that he be able to continue receiving professional help through therapy and prescription medication which he did not have the benefit of until recently, and I infer played a role in his becoming involved with ACCS. She also confirmed that he lives with his 78-year-old grandmother on a large property, and he helps her with all the household chores and property maintenance. As a result, she is able to remain in her own home which is a great help to the family as most of the family no longer live in Cape Breton. These character references, and Mr.

Terrio’s lack of any criminal record, before or since, is a very significant factor in his favour. The PSR amply echoes the tenor of those comments. Moreover, I accept that there is a likelihood that Mr. Terrio was self-medicating while he was working at ACCS, and that with proper prescription medication his circumstances will remain improved, providing a springboard for his full rehabilitation. He is said to be seeking a referral to mental health services through his family doctor. This is an important step in his rehabilitation.

I accept that at the time of these offences his mental health challenges largely contributed to his involvement with ACCS. [ 34 ] Mr. Terrio also made a statement to the court. He recounted how he was at a low point in his life and went to Halifax to meet some friends and reflect on what to do next. He purchased some cannabis from ACCS and indicated his interest in what they were doing. That same day they offered him a job.

He said of his experience there: We were told – we are helping people; we were told who not to sell to; told about the grey market niche [of the business]; I really thought I was helping people access cannabis as medicine. [ 35 ] As a result, he wanted to stay in Halifax, and he says his mental state improved. Conclusion as to an appropriate sentence [ 36 ] While a period of incarceration (whether in an institution or served in the community) is not out of the question in these circumstances, it is not required here. [11] [ 37 ] I similarly rule out an absolute (or unconditional) discharge. [ 38 ] Mr.

Terrio has the burden to establish that a sentence of an absolute (or conditional) discharge would not be contrary to the public interest. [ 39 ] The meaning of “public interest” was considered in R. v. Sellars , 2013 NSCA 129 at paras. 32-41 per Beveridge JA. While difficult to define it in an all-encompassing fashion, a factor to be considered is whether a discharge would lack sufficient general deterrent effect on others inclined to commit those offences. [ 40 ] Mr.

Terrio’s moral blameworthiness, and a consideration of the numerous relevant factors, lead me to conclude that he has failed to establish that the granting of an absolute discharge would not be contrary to the public interest. [ 41 ] On the other hand, he has established that a conditional discharge is both in his best interests and not contrary to the public interest. Instead of convicting him, I will by order direct that he be discharged on conditions prescribed in a probation order made under subsection 731(2) CC . [ 42 ] I sentence Mr.

Terrio to a 12-month conditional discharge with the conditions required by s. 732.1 (2) (a), (b), (c); and the

optional conditions under ss. 3(a), (b), and under (

f) to perform 200 hours of community service; and under (

g) make best efforts to maintain your mental health by, among other things, staying in regular contact with your Family Doctor and, if so directed by your probation officer, to regularly attend for mental health counselling. [ 43 ] I also order:

a) that he be prohibited from possessing firearms etc. per section 109(1)(

c) CC ; and

b) forfeiture of all items sought by the Crown pursuant to ss. 16 CDSA and 462.37 CC . [ 44 ] I am further satisfied that no victim surcharge should be payable by Mr. Terrio given the hardship it would occasion for him per s.737.

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