ONTARIO COURT OF JUSTICE
DATE: 2025-04-29
COURT FILE: Toronto# 4810 998 23 48124578-00
BETWEEN:
HIS MAJESTY THE KING
— AND —
JASON GALLANT
SENTENCING DECISION
Before Justice Brock Jones
Heard on December 12, 2024; April 4 and 15, 2025
Written Reasons Provided on April 29, 2025
B. Chu — counsel for the PPSC
R. Sherman — counsel for Mr. Gallant
Introduction
1On December 12, 2024, Jason Gallant pleaded guilty to four counts of trafficking fentanyl on different dates in 2023, contrary to section 5(1) of the Controlled Drugs and Substances Act (CDSA).
2The Supreme Court has identified the proliferation and abuse of fentanyl across Canada as a matter of grave national importance. A powerful denunciatory statement is required from the courts when those who trafficked in fentanyl are brought to justice, even when other mitigating factors might be present.
Facts In Support of the Guilty Pleas
3On September 19, 2023, an undercover officer contacted Mr. Gallant by phone. He agreed to sell the officer fentanyl. They met in person, and he sold the officer 0.86g of fentanyl for $200.
4The process was repeated on October 7, October 17, and November 21, 2023. On those dates, Mr. Gallant sold 1.6 grams, 0.52 grams, and 2.5 grams of fentanyl to an officer for $200, $60, and $240, respectively.
5On the last date, he was arrested. A search incident to arrest revealed another 3.4 grams of fentanyl in his possession.
6At the time of these transactions, Mr. Gallant was homeless. He was addicted to fentanyl and other substances. He was in poor health and was characterized as an addict-dealer.
Pre-Sentence Report (“PSR”) and Other Information About Mr. Gallant
7Mr. Gallant is 50 years old. He has a substantial prior criminal record, but the last entry was in 2007.
8His mother raised him in Summerside, Prince Edward Island. He has four siblings and a large extended family. Unfortunately, he has no relationship with any of his family members.
9His stepfather struggled with alcoholism and was physically and verbally abusive. He was struck as a child. At the age of 10, he was placed in foster care. He had already experienced a tough childhood. He described the group home where he was placed as traumatic.
10His problems with addiction stretch back many years. Mr. Gallant began experimenting with drugs when he was only eight years old. At ten, he began to use alcohol. As a teenager, he used other drugs, including cocaine.
11He had regular contact with the criminal justice system during his teenage years and early adulthood. He was often in jail. His addictions only grew stronger. After being released from custody at age 26, he admitted he would use “anything that you could get in a needle.”
12At the age of 30, he attended a nine-month drug treatment program. He was then clean for twelve years but relapsed.
13His addiction to drugs has cost him dearly. In 2017, he was married. Sadly, he has not contacted his wife for many years. The relationship ended due to his drug addiction. He has two adult children from two other women and has no relationship with them either.
14He currently resides in a rooming house. He is not employed. He supports himself with government assistance.
15For the last eight years, he has used crystal meth, fentanyl and crack cocaine daily.
16There have been glimmers of hope. He is currently taking prescription medication to assist him with curbing his addiction. Hannah Levitt, a case manager at Mobile Safer Opioid Supply, advised that she has been working with Mr. Gallant since May 2022. She believes she has witnessed a remarkable difference in his demeanour. He has attended counselling regularly.
17Mr. Gallant believes he may have an undiagnosed mental health issue. No further evidence was presented to support this belief at the sentencing hearing, other than a reference to suffering from depression. He was also diagnosed with arthritis and has back pain.
18When he exercised his right of allocution, Mr. Gallant explained that every day for him as a person with an addiction has been a struggle. He used drugs to try to block out the shame and guilt he continues to feel due to his difficult life experiences. In particular, he expressed great regret for his marriage falling apart. He does not consider himself a “pusher” and thought he was helping someone out when he provided fentanyl on the offence dates.
Testimony of Ms. M. Juhary
19Ms. Juhary testified during the sentencing hearing and adopted the report she authored. Mr. Sherman challenged her on certain portions of the report, suggesting they may have been inaccurate. I will expand upon the controversial portions of her report later in this judgment. She emphasized in her testimony that she cautioned Mr. Gallant several times that anything he told her would be included in the final report.
Other Evidence
20Two letters from Ms. P. Mahindan were provided. She is a nurse practitioner at Parkdale Queen West Community Health Centre. She has been providing care to Mr. Gallant since 2022. She explained that he has been battling substance use issues for many years. He joined a safer opioid supply program as a means of decreasing his reliance on street drugs. He suffers from depression as well. He has struggled with homelessness in the past, but has now acquired housing.
21Gehan Imbrahim, a pharmacist at Gate Pharmacy, provided a letter confirming that Mr. Gallant has been a patient for three years. He regularly attends to obtain his medication.
Positions of the Parties
22Mr. Chu seeks a reformatory jail sentence of two years less a day. He submits that there are several aggravating factors present, including the deadly nature of fentanyl that Mr. Gallant trafficked for profit and his prior criminal record. He provided me with a list of reported decisions that have all held that custodial sentences are necessary to reflect the gravity of the harm associated with trafficking in fentanyl.
23He noted, correctly, that the “proliferation of fentanyl strains our hospitals, destroys families and injures and kills individuals.”
24Mr. Sherman submits that a conditional sentence of two years less a day meets the applicable sentencing principles. He asked me to consider his client’s guilty plea, the challenges of his life, and his commitment to rehabilitation. His client has not reoffended and has stable housing. While his client still uses drugs daily, he has cut back considerably.
25Mr. Sherman provided several prior reported decisions supporting his position, which I will address in the following reasons.
Sentencing for Trafficking in Fentanyl
26The fundamental principle of sentencing is that a sentence must be proportionate to “the gravity of the offence committed and the moral blameworthiness of the offender”: see Criminal Code section 718.1. Proportionality must be understood as a fundamentally individualized concept, demanding “an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them”: see R. v. Ipeelee, 2012 SCC 13, para. 75.
27While those individual characteristics are important, the gravity of the offence and the harm to the community must also be appropriately considered. As the Supreme Court of Canada stated in R. v. Lacasse, 2015 SCC 64, para. 12, “[t]he more serious a crime and its consequences, or the greater the offender’s degree of responsibility or moral blameworthiness, the heavier the sentence will be.” The offence of trafficking in a Schedule I substance is punishable by a maximum of life imprisonment: CDSA section 5(3). Trafficking in fentanyl is so severe that even a first-time offender can potentially face a significant penitentiary sentence: see R. v. Loor, 2017 ONCA 696, para. 50.
28In R. v. Parranto, 2021 SCC 46, Justices Moldaver and Côté commented on the dangers associated with trafficking in hard drugs in general:
[88] Trafficking in such substances causes both direct and indirect harms to society. Directly, the distribution and abuse of hard drugs leads to addiction, debilitating adverse health effects, and, all too frequently, death by overdose. As Lamer J. (as he then was) astutely observed, where addiction and death occur — as they so often do — those who oversee the distribution of these drugs are personally “responsible for the gradual but inexorable degeneration of many of their fellow human beings” (R. v. Smith, 1987 SCC 64, [1987] 1 S.C.R. 1045, at p. 1053).
[89] Trafficking also leads indirectly to a host of other ills, including an increase in all manner of crime committed by those seeking to finance their addiction, as well as by organized crime syndicates (Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 SCC 78, paras. 85‑87, per Cory J., dissenting, but not on this point; R. v. Kang-Brown, 2008 SCC 18, para. 184, per Deschamps J., dissenting, but not on this point). Given that much of this criminal activity is violent, trafficking has come to be understood as an offence of violence, even beyond the ruinous consequences it has for those who abuse drugs and in the process, destroy themselves and others…
[90] A further and perhaps even more devastating consequence of the hard drug trade is its impact on families and the intergenerational trauma it causes:
Trafficking in drugs, and in particular hard drugs such as cocaine, is a crime whose victims can be found far beyond the individuals who become addicted to the drugs. Families can be torn apart by either the loss of the individual to the addiction itself or to the violence that all too often accompanies the drug trade. . . . Children suffer immense harm from the effects of addiction in their home, whether this addiction be from pre‑natal impact or from physical and/or emotional violence in the homes that they should be safe in. The future of these children and their families is damaged and all of society pays the price. (R. v. Profeit, 2009 YKTC 39, paras. 25‑26)
[91] Finally, the trafficking of hard drugs leads to “significant if not staggering” costs to society in terms of health care and law enforcement expenses, as well as lost productivity (Pushpanathan, at para. 89; see also R. v. Lloyd, 2016 SCC 13, para. 82). In 2017, for example, it is estimated that abuse of opioids and cocaine in Canada resulted in total costs of $9.6 billion (Canadian Substance Use Costs and Harms Scientific Working Group, Canadian Substance Use Costs and Harms (2015‑2017) (2020), at p. 1).
29Fentanyl trafficking raises specific concerns for sentencing courts. Fentanyl is “an extremely dangerous and powerful painkiller and sedative… [its] potential for harm is… significantly greater than other opioids”, with the risk of “overdose and death… extremely high”: Parranto at para. 94.
30In R. v. Campbell, 2024 SCC 42, para. 132, the majority of the Supreme Court of Canada commented, again, on the magnitude of the risk presented by abusing even small quantities of fentanyl:
Fentanyl is a highly addictive and extremely powerful opioid pain reliever and sedative intended to be administered in medical settings. It is estimated to be up to 100 times more potent than morphine and about 25 to 50 times more potent than heroin. A lethal dose can be less than two milligrams, or about the size of a single grain of salt. Fentanyl is also much cheaper than other drugs, and so drug dealers will often mix small amounts of it with other drugs to create a cheaper product with similar effects, thus significantly increasing their profits. Because fentanyl is visually indistinguishable from other hard drugs, it exposes vulnerable drug users to the risk of serious harm, including brain damage, organ damage, coma, and death.
31The Alberta Court of Appeal noted the devastating effects of fentanyl in R. v. Bellows, 2025 ABCA 100, para. 63, released earlier this year:
In recent years, our society has been stunned by the impact of the commonly lethal artificial drugs fentanyl and carfentanyl being part of what Statistics Canada has reported as a total of 49,105 opioid toxicity deaths in Canada between January 2016 and June 2024, mostly in British Columbia, Alberta and Ontario. What is worse about such drugs is that there seems to be an inexhaustible supply of such manufactured poisons, they can be made here from precursors or supplied by unfriendly nations, and addiction to opioids can occur accidentally.
32Justice Barrett described the harm associated with fentanyl trafficking in R. v. Ahmed, 2024 ONSC 6664, para. 23:
Trafficking in a deadly drug such as fentanyl causes immeasurable harm to the community. As noted by the Court of Appeal for Ontario in R. v. Loor, 2017 ONCA 696, para. 33, “Every day in our communities, fentanyl abuse claims the lives of Canadians.” Indeed, given its deadly and addictive properties, fentanyl has been described as “public enemy number one”: R. v. Parranto, 2021 SCC 46, para. 93; R. v. Mengesha, 2022 ONCA 654, para. 16; R. v. Campbell, 2022 ONCA 666, para. 83.
33Succinctly put: fentanyl kills. We are bombarded with cases in this courthouse regularly about the devastating effects of this drug. Each life lost is a tragedy. Every death could have been prevented.
34Our jurisprudence continues to evolve and develop in response to this growing menace. Yet, some principles must always be taken into consideration. Section 10 of the CDSA states that:
Without restricting the generality of the Criminal Code, 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.
35While this section speaks to “encouraging rehabilitation and treatment in appropriate circumstances,” there is no doubt that the primary sentencing principles in cases of trafficking a Schedule I substance such as fentanyl are deterrence and denunciation: see R. v. Lawal, 2024 ONSC 3621, para. 27; R. v. Johnson, 2020 MBCA 10, para. 12.
36Mr. Gallant trafficked fentanyl on four dates. The total amount of fentanyl trafficked was 5.4 grams, and he had another 3.4 grams on his person when arrested. The repeated nature of the offences and the quantum of fentanyl are aggravating. He furthermore trafficked for profit, which is another aggravating factor. I also agree with Mr. Chu’s submission that trafficking in fentanyl is qualitatively different than possessing fentanyl for the purpose of trafficking. Active trafficking is an objectively more serious offence: see R. v. King, 2013 ONCA 417, para. 54; R. v. Malabre, 2024 ONSC 6111, para. 50.
37Penitentiary sentences for repeatedly trafficking in fentanyl are the norm. In R. v. Campbell, 2024 ONSC 2220, Justice Boswell of the Superior Court of Justice reviewed the existing authorities that have been reported for trafficking in small amounts of fentanyl and noted that the appropriate sentencing range for this offence was “not yet settled”: see para. 45. Nevertheless, a sentence between two and three years was generally appropriate, although upper reformatory sentences were imposed in some cases with sufficient mitigating factors: see para. 46.
38Two other recent decisions of the Superior Court of Justice in Ontario have similarly held that penitentiary sentences are generally appropriate. In Lawal, the offender pleaded guilty to three counts of trafficking in fentanyl. The total amount of fentanyl was 1.19 grams. The accused was only 22 years old at the time of the offences, with a minor and unrelated criminal record. There were significant mitigating factors before the court, including the guilty plea and expression of remorse, and social-context evidence that suggested the offender was motivated by a desire to help his mother escape poverty in a problematic neighbourhood in Toronto. The offender had strong family support and had complied with his bail conditions for nearly five years.
39Yet Justice Nakatsuru imposed a penitentiary sentence of 29 months: see para. 27.
40In Ahmed, the offender trafficked in fentanyl on three different dates. The total amount was approximately 10 grams. He pleaded guilty. He did not have a prior criminal record. Like Mr. Gallant, he struggled with addiction. He had the support of his family and had taken some steps towards his rehabilitation since his arrest.
41Despite a finding that he had “strong rehabilitative prospects,” Justice Barrett wrote the following in para. 34 (my emphasis added):
It is purely good fortune that no one was killed …Minimal amounts of fentanyl can and do cause death. Because of these dire risks and the prevalence of fentanyl in our society, the sentences meted out by courts are lengthy, even for simple possession. The sentences communicate a strong message of denunciation and general deterrence in an attempt to rid our society of this insidious drug. I find that the fact that you trafficked this deadly drug, not just once, but on three occasions, makes a sentence of less than two years unfit. A reformatory sentence is simply not appropriate given all of the circumstances of this offence. In fact, were it not for the many mitigating factors in this case, a sentence of five years would be entirely appropriate.
42The final sentence was 30 months of concurrent custody on each charge (served concurrently).
43In R. v. Landell, 2023 ONSC 6526, Justice Goodman held that a conditional sentence for trafficking in hard drugs should be reserved for rare or exceptional cases. Mr. Sherman has attempted to persuade me that this is one such case, mainly because his client is an addict-trafficker. He is correct that the Ontario Court of Appeal has recognized that some drug traffickers are themselves victims of a drug culture they struggle to escape. In appropriate cases, their treatment and rehabilitation better serve the public interest: see R. v. N.H. (C.), 2002 ONCA 7751, para. 31. An offender who is an addict trafficker may also have a lesser degree of moral blameworthiness for his offending behaviour: see Loor at para. 41.
44Mr. Sherman directed me to several cases where courts have found exceptional or sufficiently mitigating circumstances to justify a conditional sentence. I have also reviewed several other reported decisions.
45In R. v. Maki, 2023 BCSC 2470, the 30-year-old offender pleaded guilty to one count of possession of fentanyl for the purpose of trafficking. Following a traffic stop, a search of his vehicle incidental to arrest revealed a plastic bag containing $74,680 in Canadian currency, a total of 42 grams of fentanyl in powder form and 804 fentanyl pills. Mr. Maki explained during the sentencing process that he had accepted a ride from a person he knew to be a drug dealer and that he knew about the presence of the drugs in the vehicle. That was the extent of his liability.
46He was involved in two car accidents, where he suffered injury and was diagnosed with a brain tumor at age 18. He suffered from addiction but had regularly attended Alcoholics Anonymous. He was employed and had strong community support, including his family. Justice Church was satisfied there were exceptional circumstances and imposed a conditional sentence order of two years less a day.
47In R. v. Gordon, 2023 ONCJ 157, the offender pleaded guilty to possession for the purpose of trafficking fentanyl. The total amount was 12.07 grams. He accepted that he also possessed 7.02 grams of cocaine and 30 hydromorphone pills for the purpose of trafficking. He was an addict trafficker, homeless, and impoverished at the time of his offences. By the time of his sentencing hearing, he had obtained housing and was committed to treatment at CAMH. The court imposed a conditional sentence for two years less a day.
48In R. v. Williams, 2023 ONCJ 259, the 25-year-old offender pleaded guilty before me to one count of possession for the purpose of trafficking fentanyl. He was found to have 14.27 grams of fentanyl. He provided financial support to his sister and her two children. He also had a child that he co-parented with his former partner. He was employed. Justice Monahan imposed a conditional sentence of two years less a day.
49In R. v. Nacinovich, 2020 ONSC 7604, the offender pleaded guilty to possession for the purpose of trafficking in fentanyl. The total amount was 8.6 grams. He was also an addict-trafficker. However, he had abstained from using drugs for 18 months by the date of sentencing. A physician was treating him. He received a conditional sentence of two years less a day, but it was reduced by the 211 actual days he had already spent in pre-sentence custody in jail.
50In R. v. Han, 2022 ONCJ 343, the offender pleaded guilty to possession for the purpose of trafficking fentanyl. The total amount was 15.6 grams. The offender was 24 years old and had no prior criminal record. He had an addiction. Before sentencing, she attended 24 drug rehabilitation sessions and obtained employment. The court imposed a conditional sentence of two years less a day.
51In R. v. Russell, 2023 ONCJ 133, the offender pleaded guilty to one count of possession of fentanyl for the purpose of trafficking. He was arrested, and a search warrant was then executed at his home, where police discovered 7.73 grams of fentanyl, 33 grams of cocaine and $5,500 in cash. He was a single father responsible for four dependent children. Justice Silverstein imposed a conditional sentence, in large part due to concerns about what would happen to his children if he were incarcerated.
52In R. v. Hugh, 2024 ONSC 6135, the first-time, 63-year-old offender pleaded guilty to one count of possession of fentanyl for the purpose of trafficking. He was observed by officers conducting a street-level transaction in downtown Toronto. He was arrested and searched. He was caught with 15.70 grams of fentanyl. There was medical evidence presented to the court that the offender had suffered from a stroke, had previously been unfit to stand trial, and would experience hardship in jail accordingly. A conditional sentence was imposed.
53Very recently, in R. v. Benjamin, 2025 ONCJ 129, Justice Porter imposed a conditional sentence of two years less a day for an offender found guilty of trafficking fentanyl on four different dates. He turned 21 just before the last transaction. He had no prior criminal record.
54Justice Porter found that during his teenage years and at the time he committed the offence, Mr. Benjamin was addicted to opioids and was “desperate for money.” As he was a youthful first-time offender with good rehabilitative prospects, Justice Porter imposed a two-year conditional sentence, less a day.
55There is also appellate authority in support of Mr. Sherman’s position. In R. v. Hall, 2024 ONCA 664, the offender was convicted of trafficking fentanyl. He used drugs with his friends and sold the victim a small quantity of fentanyl for personal use. Tragically, the user died. The offender had a “particularly difficult life” and became an opioid addict as a result of an injury. He entered an early guilty plea, was remorseful, had a positive employment history, and had made “extraordinary” efforts at rehabilitation. The trial judge imposed a conditional sentence of two years less a day, followed by three years of probation. The Crown appealed the sentence, but it was upheld by the Court of Appeal.
56However, the Court noted that the “objectives of denunciation and deterrence will typically require carceral sentences where fentanyl trafficking is concerned.” Based on the “unusual circumstances” of the case, it was open to the sentencing judge to impose a conditional sentence: see para. 6.
57In my view, Mr. Gallant’s circumstances do not align with those of these other offenders. Mr. Gallant is not a first-time offender. He was not inadvertently involved in the drug trade. He decided to sell fentanyl on four occasions. He has a considerable prior criminal record, even if it is dated, including trafficking in controlled substances. He has continued to abuse drugs since his arrest. He is not employed. As I will describe, his attitude towards the trafficking of fentanyl is alarming and speaks to his likelihood of reoffending.
58What was revealed in Mr. Gallant’s PSR is of great concern. I accept the contents of that report as accurate and reliable. Ms. Juhary was an excellent witness, and I find she conducted herself fairly and professionally when dealing with Mr. Gallant. Nothing that arose during cross-examination raised concerns about accepting the PSR's contents.
59Mr. Gallant admitted to selling fentanyl repeatedly since 2020. He downplayed the risks associated with this illegal activity, claiming those risks are made out to be a “bigger deal than it is.” He believed the drug should be legalized. He also told Ms. Juhary that because he “tested” the fentanyl himself before selling it, he did not consider it risky. He explained that any potential consumers would inevitably obtain their fentanyl from another source, so it did not matter if he was dealing. In his mind, at least he was selling “clean” fentanyl.
60These comments are shocking and disturbing. Mr. Gallant’s attitude to distributing fentanyl and his lack of appreciation for the harm he is causing are very alarming. As an addict himself and having witnessed firsthand the devastating consequences his addiction has had on his life, Mr. Gallant knew how harmful hard drugs are to those who abuse them. Yet he continued to sell fentanyl regardless, potentially victimizing others and attempting to falsely rationalize his conduct while downplaying his high degree of moral culpability.
61Mr. Sherman submitted that these were simply expressions of Mr. Gallant’s personal views that drugs should be decriminalized. His personal beliefs should not be used against him by the court. While Mr. Gallant, like any citizen, is entitled to his views about drug policy, I disagree with Mr. Sherman that they should play no role in my determination of an appropriate sentence. Mr. Gallant’s statement to Ms. Juhary that there is nothing wrong or dangerous with selling fentanyl that he deems “clean” to members of the community demonstrates that he does not understand the seriousness of his offences.
62It is also directly linked to his risk of re-offending. Whatever progress he appears to have made with Ms. Levitt, the contents of the PSR cause me to question whether Mr. Gallant has truly gained meaningful insight into his crimes and the pressing need for him to stop trafficking fentanyl. I note that he has been working with Ms. Levitt since 2022, but these offences occurred in the fall of 2023. Furthermore, the suggestion that a street-level user, such as Mr. Gallant, can determine, on their own, what is “clean” fentanyl (meaning somehow safe for consumption) is frighteningly misguided, and anyone who subscribes to this falsehood must know it will find no traction in the courts.
63Ms. Juhary also noted that Mr. Gallant had failed to attend two scheduled appointments to prepare the PSR. When he arrived for the third appointment, he fell asleep and had to be awoken multiple times. He admitted he was unprepared and described the report as a “waste of time.” He admitted to using crack cocaine and fentanyl before the appointment. When offered to return on a different day to conduct the interview, he stated that he uses drugs every day, so rescheduling would not “make a difference.”
64These remarks greatly diminish the weight I can place on Mr. Gallant’s commitment to rehabilitation and whether he can be trusted to comply with a community-based sentence. I appreciate that an addiction to drugs is a lifelong struggle to overcome. Mr. Gallant has made some progress on his path to healing, as detailed in the letters from Ms. Mahindan from Parkdale Queen West Community Health Centre. Nevertheless, his attitude towards his offences and his inability to remain sober even when attending an interview with a probation officer demonstrate that his commitment to refraining from using and distributing fentanyl is uncertain at best. This is a relevant consideration when determining if a conditional sentence is appropriate, as I must consider the offender’s future dangerousness: see R. v. Bynoe, 2025 ONCA 274, para. 11.
Conclusion
65Despite Mr. Sherman’s able and passionate submissions, I am not satisfied that this is an exceptional case. The severe harm that fentanyl has wreaked must be acknowledged through significant sentences from the courts. Every instance of trafficking carries an unacceptable risk to human life.
66As noted by Justice Barrett, penitentiary sentences of as high as five years should be expected for an offender who trafficks fentanyl on multiple occasions.
67The mitigating factors in this case are of moderate weight but not exceptional. While Mr. Gallant pleaded guilty, the case against him was overwhelming. His remarks to the PSR author dramatically attenuate his purported acceptance of responsibility. He is not a young first-time offender. He is a mature man in his 50s.
68He has recently undertaken some efforts at rehabilitation, with decidedly mixed results. He continues to abuse drugs daily.
69I have no evidence of any diagnosed mental health issues, whether purportedly linked to his childhood trauma or otherwise. Even if they were present, to constitute a mitigating factor, a causal link between any mental health concern and the trafficking of drugs must be established: see R. v. McKnight, 2024 BCCA 394, para. 25; R. v. Barham, 2014 ONCA 797, para. 8.
70However, I agree with Mr. Sherman that his client’s physical health concerns and vulnerabilities remain relevant. The particular vulnerabilities of any offender must be considered before imposing a jail sentence: see R. v. Hills, 2023 SCC 2, para. 135; R. v. Salehi, 2022 BCCA 1, para. 65. No matter where Mr. Gallant serves his sentence, his time in jail will be difficult. However, this factor cannot be given undue weight. The correctional authorities are required, by law, to address the healthcare needs of all inmates, and I have heard no evidence that Mr. Gallant’s particular needs cannot be provided with adequate accommodations: see R. v. R.C., 2015 ONCA 313, para. 8. [1]
71In my view, Mr. Chu’s position already fairly incorporates consideration of Mr. Gallant’s circumstances and the other mitigating factors present in this case. Indeed, it is lenient. A penitentiary sentence of at least three years would have been entirely appropriate.
72After discussions with counsel, I have chosen to impose a two-year sentence. Notwithstanding the position of the PPSC, in my view, the objective gravity of trafficking in fentanyl on four occasions can only be adequately reflected in a penitentiary sentence. Furthermore, Mr. Gallant will receive more suitable rehabilitative programming in a better environment for his needs in the federal correctional system than in a provincial jail.
73Ancillary orders include a lifetime weapons prohibition order (Criminal Code section 109(1)(c)) and an order for a sample of Mr. Gallant’s DNA to be taken (Criminal Code section 487.051).
74A forfeiture order was granted for the property associated with drug dealing that was in Mr. Gallant’s possession at the time of his arrest.
75The victim fine surcharge is waived.
Released: April 29, 2025
Signed: Justice Brock Jones
1I acknowledge that where compelling evidence in this regard is presented, it may justify a conditional sentence as opposed to imprisonment: see, for example, R. v. Faroughi, 2024 ONCA 178, paras. 121-122.