Court of Appeal for Ontario
Paciocco, George and Dawe JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Dominico Gallo
Appellant
Dominico Gallo, acting in person
Maija Martin, appearing as duty counsel
Victoria Rivers, for the respondent
Heard: July 9, 2026
On appeal from the sentence imposed by Justice Timothy E. Breen of the Ontario Court of Justice on July 7, 2025.
REASONS FOR DECISION
1The appellant, Dominico Gallo, pleaded guilty to multiple drug and gun charges. He received a net sentence of just over 8 years’ imprisonment, after credit for his time in pre-sentence custody. He appeals against his sentence only.
2The charges against Mr. Gallo arose after the police searched his residence and found quantities of fentanyl (411 grams), cocaine (126 grams), methamphetamine (55 grams), oxycodone (146 pills), and morphine (51 pills), along with items indicative of drug trafficking. The police also located over $100,000 in cash, and a handgun. Mr. Gallo was 65 years old at the time of sentencing and had a dated criminal record for property offences, but no prior drug convictions.
3The federal Crown sought a net sentence of nine years’ imprisonment on the drug charges, while the provincial Crown requested a consecutive sentence of three to four years imprisonment on the gun charges. Together, their submission was that an appropriate sentence would be one of 12 to 13 years’ imprisonment, less credit for pre-sentence custody. The defence position was that Mr. Gallo should receive a global net sentence of seven years’ imprisonment, less credit for pre-sentence custody.
4The sentencing judge calculated the length of the sentence he imposed by adopting the position that had been set out by a different judge when she had judicially pre-tried the case seven months earlier. On December 2, 2024, the pre-trial judge had indicated that if Mr. Gallo had pleaded guilty, she would have imposed “a sentence of nine years going forward” from that date. Taking Mr. Gallo’s pre-sentence custody into account, this would have translated to an effective sentence of approximately nine years and nine months.
5During a further judicial pre-trial conducted in June 2025, the sentencing judge advised the parties that although he thought “this was a matter that fit comfortably within double figures”, he would give effect to the pre-trial judge’s position. By the time Mr. Gallo ultimately pleaded guilty and was sentenced on July 7, 2025, he could claim credit for the additional seven months he had spent in pre-sentence custody since December 2024. The sentencing judge accordingly imposed a net sentence going forward of 8 years and 53 days. He stated that he had “not allowed any Duncan credit” pursuant to R. v. Duncan, 2016 ONCA 754, as, in his view, the sentence was already “at the bottom of proper range.”
6Mr. Gallo was ably assisted on his appeal by pro bono duty counsel, Ms. Martin. She argues that jail records that were obtained after Mr. Gallo’s sentencing show that he spent a substantial portion of his time in pre-sentence custody under lockdown for all or part of the day, often for multiple days at a time, and that he was also subjected to triple-bunking. She argues that the harsh conditions of Mr. Gallo’s pre-sentence custody justify reducing his sentence.
7We agree that the abysmal conditions in which Mr. Gallo spent his time in pre-sentence custody are properly viewed as a mitigating factor. However, we are not persuaded that the new evidence of these harsh conditions justifies our interfering with the sentence imposed by the sentencing judge.
8The problem of lockdowns and triple-bunking at the Central East Correctional Centre is endemic and well-documented: see e.g., R. v. Cottle, 2026 ONSC 3774, at paras. 31-34; R. v. A.F., 2026 ONSC 1806, at paras. 26-27. As Boswell J. explained in R. v. Elansooriyanathan, 2025 ONSC 5823, at para. 84:
Judges in the Central East Region have been expressing concerns about the conditions at CECC for years. And they have been regularly reducing offenders’ sentences as a result of the harsh conditions they have experienced while in remand custody there. One might reasonably have expected those expressed concerns to lead to positive change. Instead, conditions have only gotten worse. Chronic lockdowns have been a problem for years. An arguably worse problem is triple-bunking and it appears to have become almost routine over the past two years.
9The sad reality is that nothing in the newly available jail records would have come as any surprise to the experienced sentencing judge.
10Moreover, while Mr. Gallo did not adduce evidence at his sentencing hearing of the specific number of days he had spent under lockdown and/or triple-bunked, the Crown did not dispute that he had been subjected to harsh conditions. The provincial Crown submitted that the sentence the prosecution was proposing “already takes into consideration any mitigation that would flow from exceptionally harsh pre-sentence custody.” When the sentencing judge imposed a significantly shorter sentence than that sought by the Crown, but declined to give additional Duncan credit on the basis that “this sentence already is at the bottom of proper range”, it can be inferred that he was also taking into account the very strong likelihood that Mr. Gallo had been subjected to “exceptionally harsh pre-sentence custody”, even in the absence of specific evidence to that effect.
11Finally, Mr. Gallo pleaded guilty after a judicial pre-trial at which the sentencing judge indicated that, although he would have been inclined to impose a higher sentence, he would adhere to the sentencing position outlined by the first pre-trial judge. In these circumstances, it would not be in the interests of justice to reduce Mr. Gallo’s sentence further based on additional evidence that he chose not to put before the sentencing judge.
12In his own submissions on appeal, Mr. Gallo notes that it was undisputed at the sentencing hearing that he was himself a drug addict with a longstanding cocaine dependency, and argues that the sentencing judge erred by expressing skepticism about this. We do not read the sentencing judge’s reasons this way. Rather, the sentencing judge accepted that Mr. Gallo’s own drug addiction was a mitigating factor, but accurately observed that Mr. Gallo was not a typical addict-trafficker, since the police had found more than $100,000 cash and nearly a pound of fentanyl in his residence.
13Likewise, the sentencing judge accepted the Crown’s concession that the police surveillance evidence supported the conclusion that “Mr. Gallo was a street-level dealer, as opposed to someone holding a higher position in the distribution chain.” The sentencing judge acknowledged that Mr. Gallo was not a wholesale commercial trafficker, noting during the Crown’s submissions that Mr. Gallo’s position “in the hierarchy of distribution” distinguished his case from R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366. Nevertheless, the sentencing judge was entitled to consider that Mr. Gallo had been found in possession of a very large quantity of fentanyl, comparable to the amount at issue in Parranto, when assessing the seriousness of his offences: see, Parranto, at para. 75.
14We accordingly grant leave to appeal sentence, but dismiss the sentence appeal.
“David M. Paciocco J.A.”
“J. George J.A.”
“J. Dawe J.A.”