COURT OF APPEAL FOR ONTARIO
Miller, Dawe and Wilson JJ.A.
Howard L. Krongold, for the appellant
Allyson Ratsoy and Kerry Weinstein, for the respondent
Heard: February 11, 2026
On appeal from the sentence imposed on October 31, 2023, by Justice Kristin Muszynski of the Superior Court of Justice.
REASONS FOR DECISION
1Following a judge-alone trial, the appellant was convicted of possession of fentanyl for the purpose of trafficking and sentenced to 4.5 years’ incarceration, less 8 months’ credit for pre-sentence custody and time served on restrictive bail, for a net sentence of 46 months’ imprisonment. She appeals from the sentence. Although accepting that the sentence was fit at the time it was imposed, the appellant seeks a sentence reduction, relying on fresh evidence of changed family circumstances. In her notice of appeal, the appellant appealed both conviction and sentence, but subsequently filed a notice of abandonment for the conviction appeal.
2For the reasons that follow, we admit the fresh evidence and allow the sentence appeal. Although the seriousness of the offence demands a custodial sentence, we are satisfied that a sentence reduction of 10 months is appropriate. This leaves a net remaining sentence of 36 months’ imprisonment.
A. BACKground
3The police executed a search warrant at the appellant’s home on June 26, 2020, and discovered 131 grams of fentanyl and paraphernalia consistent with drug trafficking. The appellant was living in the house with her seven-year-old daughter. Her partner at the time was in prison for other drug-related offences. The only issue at trial was whether the appellant possessed the drugs. The trial judge found that she did and convicted her of one count of possession of fentanyl for the purpose of trafficking.
4At sentencing, the Crown sought a sentence of between five and six years, while the defence asked for a conditional sentence of two years less a day. The trial judge imposed a custodial sentence of 4.5 years which, after credit for presentence custody and time served on restrictive bail, resulted in a net sentence of 46 months.
5The appellant’s appeal from sentence relies on fresh evidence of changed family circumstances. The fresh evidence consists of two affidavits sworn by the appellant, in which she deposes that, for the past three and a half years, she has been in a stable relationship, and that, while on bail pending appeal, she became pregnant with her new partner’s baby, who was born February 25, 2025. Additionally, during her brief incarceration prior to being granted bail pending appeal, the appellant’s older daughter developed serious mental health issues, including anxiety, suicidal ideation, and an eating disorder, and began self-harming. These mental health issues improved after the appellant was released on bail. The appellant has limited family support and, as a result, argues that incarceration would have significant negative impacts on her family. Although she acknowledges that it would be an extremely lenient sentence, she asks that the net sentence of 46 months’ imprisonment be substituted with a conditional sentence.
6The Crown does not oppose admission of the fresh evidence. Nor does it suggest that a sentence reduction is not in order. The Crown merely opposes substitution of the sentence with a conditional sentence. The Crown submits that the appellant committed an extremely serious drug offence and that the sentence imposed was already on the lower end of the range for such offences. It submits that the appellant must be incarcerated, but that a 10-month reduction in the sentence is appropriate.
B. Analysis
7The parties agree that the effective four and a half year sentence – 46 months going forward, after credit for pre-sentence custody and time on restrictive bail – was fit when it was imposed. It is thus the starting point for our analysis.
8In imposing the sentence that she did, the trial judge recognized the severity of the offence. She noted that, in cases of fentanyl trafficking, denunciation and deterrence are the primary considerations, given the devasting impact that fentanyl has on our communities. Additionally, the drugs had been found in various locations throughout the appellant’s home that was shared with her young daughter. They were not locked away and were accessible to her. The trial judge considered this aggravating factor, as well as the fact that the appellant was out on bail pending other drug charges at the time of the offence.2
9The trial judge also took into account the significant mitigating factors in this case. The appellant is a first-time offender who was in an abusive relationship at the time of her offence. Since the offence, the appellant has made significant and commendable strides in her rehabilitation. She has disassociated from the drug subculture in which she was involved, completed a methadone program, complied with the conditions of her bail, and was set to graduate with a diploma from an Addictions and Community Support Worker Program. The appellant expressed wanting to use her experiences to help others facing addiction. The trial judge also considered the fact that the appellant was the primary caregiver for her young daughter.
10The four and a half year sentence, which was below the normal range for this offence, appropriately reflected the balance between these aggravating and mitigating circumstances. The issue on this appeal is whether the fresh evidence, which the parties have agreed should be admitted, reflects changed circumstances that justify a reduction in sentence and, if so, how much of a reduction is appropriate.
11An offender’s family circumstances can impact sentencing in at least two key ways: R. v. Habib, 2024 ONCA 830, 99 C.R. (7th) 110, at para. 47. First, caring and providing for family members shows good character and can increase rehabilitative prospects. It is thus a mitigating factor. Second, the pain of being unable to care and provide for family members while incarcerated is a collateral consequence that increases the severity of incarceration and can jeopardize rehabilitation. Where applicable, judges should consider the mitigating effect of family ties and the collateral consequences of incarceration that flow from severing those ties. Judges must, in crafting a fit sentence, “preserve the family as much as possible”: R. v. Spencer (2004), 2004 CanLII 5550 (ON CA), 72 O.R. (3d) 47, at para. 47 (C.A.), leave to appeal refused, [2005] S.C.C.A. No. 4. In doing so, they may depart – even significantly – from the sentencing range: Habib, at para. 45. However, these considerations must not overwhelm the other principles of sentencing. The sentence imposed must still be proportionate, taking into consideration the seriousness of the offence and the moral culpability of the offender: Spencer, at paras. 46-47.
12Here, a conditional sentence would not be proportionate to the gravity of the offence, nor would it achieve the sentencing goals of denunciation and deterrence, which are of primary importance in this context. Those who traffic large amounts of fentanyl must expect a significant period of incarceration: R. v. Loor, 2017 ONCA 696, at para. 50; R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at para. 92, per Moldaver J. (concurring).
13That said, we are persuaded that the fresh evidence renders the sentence originally imposed unfit and justifies a reduction in sentence. Since sentencing, the appellant has continued to demonstrate that she can be a positive figure in her family’s life, which reduces the need for a lengthy period of incarceration. Moreover, the collateral consequences of separating her from her newborn baby and vulnerable daughter are severe. Considering the fresh evidence, along with the principles of sentencing for drug trafficking offences, we are of the view that a reduction of 10 months is appropriate. This leaves a remaining sentence of 36 months’ imprisonment – a sentence that is necessary to deter others and denounce the serious offence which the appellant was convicted of, but one that also, to the extent possible, mitigates against the negative consequences of incarceration on the appellant and her family.
C. Disposition
14We grant leave to appeal sentence, allow the appeal, and reduce the sentence to 36 months’ imprisonment.
“B.W. Miller J.A.”
“J. Dawe J.A.”
“D.A. Wilson J.A.”