R. v. McDuffie
Ontario Court of Justice
Reasons for Sentence Delivered Orally on 21 May, 2025
Released: 12 August, 2025
Parties and Counsel
Crown: D. Anger
Defence: M. Del Gobbo
Judge: Fergus O'Donnell J.
Overview
[1] Jason McDuffie is a long-haul truck driver. Some of Mr. McDuffie's work involves moving cattle. Some of his work involves crossing the Canada-United States border. He has driven for a living for three decades. He has supported his family over those three decades by driving a truck. Supporting his family—financially and in other ways—is his life focus. He has special-needs grandchildren he helps out with; he has aging parents he helps care for despite his heavy work schedule. His family speak well of him. He has never been in trouble with the law.
[2] It beggars belief, therefore, that Mr. McDuffie's life intersects with my life as a criminal court judge. How did we get here?
[3] We got here because Mr. McDuffie decided to play Russian roulette with the border. Every act of smuggling is a bit like Russian roulette, although the odds of losing may not be the same in each activity and the consequences of losing are definitely not the same. The public interest requires, however, that the consequences of losing at smuggling should not be trivial either. The reality is that the effective functioning of borders between friendly, democratic countries depends massively on the honesty of importers and travellers, with the risk of significant criminal, immigration and/or financial consequences serving as the incentive to remain honest or, looked at from the other perspective, as the deterrent to cheats who seek to gain financially by evading duties and taxes that apply to everyone for the benefit of everyone. Given the level of economic and trade interconnectedness across the globe, and nowhere more so than across the "49th parallel", customs authorities cannot realistically or thoroughly inspect anything more than the tiniest sliver of a percentage of goods, vessels and vehicles crossing the border. Sophisticated smugglers depend on this low risk of detection to smuggle items across borders. However, the controlling minds of smuggling schemes do recognize that there is a risk of there being a live round in the cylinder, as it were, on every illicit border crossing, namely the risk of the person doing the actual importation being caught red-handed. The smartest criminals, therefore, keep themselves out of harm's way by recruiting others to do the riskiest part for the lowest advantage. Mr. McDuffie willingly signed up for that job and that risk, to the significant detriment of his fellow citizens.
[4] And so we are here, with the Crown arguing that Mr. McDuffie, who was foolish enough to take relatively low pay for carrying out the riskiest part of the crime, should forfeit his freedom. His crimes carry a maximum sentence of five years in the penitentiary.
The Charges
[5] Mr. McDuffie pleaded guilty to the following four charges:
a) Smuggling or attempting to smuggle on 31 March, 2021, contrary to s. 159 of the Customs Act.
b) Being in possession of unstamped tobacco on 31 March, 2021, contrary to s. 32 of the Excise Act.
c) Smuggling or attempting to smuggle on 18 August, 2022, contrary to s. 159 of the Customs Act.
d) Being in possession of unstamped tobacco on 18 August, 2022, contrary to s. 32 of the Excise Act.
Although the journey was rather long, Mr. McDuffie intended to plead from very early on in the proceedings.
[6] The Crown proceeded by indictment. The Customs Act offences are punishable by a fine of up to five-hundred-thousand dollars and/or up to five years' imprisonment. The Excise Act offences are punishable by a minimum fine based on weight that would amount to approximately ten million dollars, based on the three seized shipments in this case and/or by up to five years' imprisonment.
The Details of the Offences
[7] The details of the offences are set out in the CBSA case history, which became an agreed statement of facts filed on the guilty pleas. That statement shows as follows.
a) On 31 March, 2021, Mr. McDuffie entered Canada at Queenston with a tractor-trailer supposedly loaded with waste plastic valued at nine-hundred U.S. dollars. The primary officer noticed that the actual weight of the truck was about ten-thousand-pounds out of sync with the accompanying documentation. Secondary inspection showed that the trailer was in fact loaded to the gunwales with one-hundred-and-thirty-two crates of unstamped tobacco, approximately fifteen-thousand kilograms.
b) CBSA investigators examined their records for border crossings by Mr. McDuffie and also his twin brother, James (hereafter "James" to distinguish him from the defendant before me, Jason). These records showed three other similar importations that had not been intercepted, supposedly also scrap plastic. In a sign of sloppiness, the paperwork for multiple shipments listed the weight of those shipments to be exactly the same, down to the second decimal point, or within ten grams of each other across a supposed real weight of thirteen-thousand kilograms. Mr. McDuffie had imported two of the previous shipments and James had imported the other.
c) Mr. McDuffie told CBSA officers that he had been contracted to pick up waste plastic in the United States and had not even gotten out of his cab while the shipment was loaded and sealed.
d) CBSA then put Mr. McDuffie's company on a lookout, which yielded results on 18 August, 2022, when McDuffie Transport filed paperwork for two incoming truckloads, supposedly of steering wheel locks and of aluminum cans. Each truck, one driven by Mr. McDuffie and the other by his brother James, was referred to secondary and found to contain boxes of tobacco that were effectively twins of each other and of the shipment seized from Mr. McDuffie in March, 2021.
e) When interviewed on 18 August, 2022, Mr. McDuffie spun out a cock-and-bull story to investigators for about thirty-four minutes. Eventually CBSA officers confronted Mr. McDuffie with two identical bills of lading from a tobacco company in Virginia, dated two days earlier, each of which had been seized that day from his own tractor. At this point, Mr. McDuffie finally stopped with the nonsense.
f) Mr. McDuffie disclosed that someone named "Rav" had hired him in March, 2021 to bring a shipment from the United States. On the way back to Canada, Mr. McDuffie noticed the smell of tobacco from the trailer, broke the seal and discovered a load of tobacco. He called "Rav" and told him, whereupon "Rav" offered him one thousand dollars on top of the cartage fee to continue with the shipment. Mr. McDuffie did so and delivered the load near Aberfoyle. Later that month, when Mr. McDuffie was first caught by CBSA, "Rav" did not pay him. More recently, "Harb" paid him CAD $2,500.00 on top of the normal shipping charges for each shipment of tobacco he smuggled into Canada and Mr. McDuffie said that he and James had brought in about twelve loads that had not been detected by CBSA. This included all four shipments that were supposedly scrap plastic.
g) Further investigation of border crossings involving the two brothers revealed shipments of "paper" that the manufacturer of the paper said were not genuine.
h) Each intercepted shipment weighed approximately fifteen-thousand-kilograms.
Mr. McDuffie's Background
[8] Mr. McDuffie's pre-sentence report shows that he is fifty-three years old. He was raised by his mother and his step-father, who has been in his life since he was six years old. His childhood was good and leaves him with many positive memories. He has a close relationship with his twin brother, who is his co-accused, and has two slightly younger sisters with whom he does not have a close relationship. His relationship with his parents is close and he regrets that his work schedule keeps him from seeing them as often as he would like, although he always makes himself available to help them as needed.
[9] Mr. McDuffie has been happily married for over thirty years, with very little discord in the relationship. He and his wife have four children, three of whom are adults and now live outside the family home, with the youngest, a seventeen-year-old, still at home. One of his daughters has two children who have special needs and he and his wife provide care for those children and one other grandchild while their daughter is away at school.
[10] Mr. McDuffie has worked as a truck driver since 1993 and is now a self-employed, long-haul contractor. He has no substance or alcohol issues. He is fairly inwardly-focused and values family time and alone time. His wife describes him as a hard worker and his mother and son describe him as devoted, exemplary and generous. He says he wishes he had thought more about what he was doing and had made different decisions.
[11] It bears noting again that Mr. McDuffie has no previous criminal record.
The Positions of the Parties
[12] Mr. Anger has provided a clutch of previous sentencing decisions, which I have reviewed. There are half a dozen of them, a mix of trial and summary-conviction-appeal decisions, setting out sentences imposed for tobacco smuggling offences in the past. All were guilty pleas. As is common, none is a perfect match for Mr. McDuffie—some defendants were indigenous, some had a previous record and some received conditional sentences, while one got a mid-range reformatory sentence of real jail.
[13] Mr. Anger says that given their scope, the appropriate consequence for Mr. McDuffie's crimes is real jail. Each offence provides for fines as a penalty, but the mandatory minimum fine under the Excise Act would amount to over ten-million dollars for those two counts. I do not believe that either Crown or defence sees that as a viable sentencing option. Mr. Anger says that a conditional sentence might be an option, but, correctly in my view, rejects the conditional sentence as modelled by Mr. Del Gobbo as entirely unfit. That proposal would, he says, again rightly in my opinion, have virtually no real-life impact on Mr. McDuffie. Mr. Anger submitted that if a conditional sentence were imposed it should be the maximum possible sentence of two-years-less-a-day with house arrest and exceptions for the entire period.
[14] In making these submissions, Mr. Anger characteristically led by stressing that Mr. McDuffie's guilty plea is of significant weight and that his position at the bottom of the ladder earning a couple of thousand dollars per load is also a factor that weighs in the calculation. The other relevant weight, however, is the huge amount of tobacco involved, even limiting it to the three loads that were intercepted, never mind perhaps an additional nine or so more that made it across the border undetected. Mr. Anger called for a denunciatory and deterrent sentence that would recognize the huge amount of revenue lost to the government as a result of Mr. McDuffie's crimes.
[15] Mr. Del Gobbo likewise points to Mr. McDuffie's good antecedents and lack of a criminal record. He points out that Mr. McDuffie is, "as far from Mr. Big as you could be", which is correct, and says that he, "made a couple of thousand dollars", which doesn't reflect that he made about that much (twenty-five hundred dollars) per load according to his own statement. By his own admission, with about twelve loads imported, his and James's takings would have come in around thirty-thousand dollars. In response to Mr. Anger's assertion that a conditional sentence on the terms proposed by Mr. Del Gobbo would have no impact, Mr. Del Gobbo said that the whole point of a conditional sentence is for a viable candidate to be able to continue to work. He asked that the conditional sentence be split in thirds (house arrest/curfew/no location restrictions) and that Mr. McDuffie be allowed to travel to the United States to continue long-haul trucking there.
[16] Mr. McDuffie himself said his work and away pattern currently is about twenty-six days away from home in each month and four or five days at home. He said he could arrange to work long-haul within Canada on an eight-day-away/seven-days-at-home schedule.
Some Basic Principles of Sentence
[17] I do not propose to list, chapter-and-verse, all of the relevant principles of sentence in these reasons. However, it is important to stress that the purpose of the criminal law is to protect Canadians and to create respect for the law by using appropriate penalties to denounce crime and the harm done by it, to deter Mr. McDuffie and others from breaking the law, to create a sense of responsibility on their part, to maximize the offender's prospects for rehabilitation and to provide reparations for the harm done. Offenders are to be separated from society, or, in plain English, imprisoned, only where necessary and, even then, only to the extent necessary.
[18] The tools available to a sentencing judge include fines, probation orders and sentences of imprisonment. Where a jail sentence of under two years is appropriate, it may be feasible to permit that sentence to be served in the community, that is, as a conditional sentence of imprisonment whereby the offender continues to live in his own home subject to various forms of restraint on what he can do and when he can do it. A conditional sentence is not available, however, unless the court is satisfied that it would not endanger the community (that is, what is the risk of the offender re-offending and the nature of the harm that would be done by him?) and unless the court is satisfied that the sentence would serve the goals of sentencing (including denunciation, deterrence, etc.). As a matter of law, a conditional sentence is a theoretically available option here. As a matter of law, depending on the case, a conditional sentence can serve many of the objectives of sentence, including the harsher objectives such as deterrence and denunciation. Real jail will tend to be better at achieving those objectives but will often come at a real cost to the goal of rehabilitation.
[19] The cardinal principle of any sentence is that it must be proportional. Proportionality means that a sentence balances the objective seriousness of an offender's conduct with the offender's degree of moral responsibility. Factors including, but not limited to, youth, substance-dependence, mental health challenges, etc., etc. might affect a person's degree of moral responsibility, as would the nature of a person's role in an offence.
[20] Every sentence has to be tailored to fit the specific facts of the offences and the offender. Real jail has to be used with restraint.
The Appropriate Sentence
[21] With respect to the seriousness of Mr. McDuffie's offences, the first point is to make it clear that while the charges were laid under the Customs Act and the Excise Act, these are not trivial regulatory offences. These offences were part of a pattern of large-scale and repeated tax-evasion. Ultimately, smuggling like this is nothing other than a location-specific form of fraud, which Oxford Languages defines as: "wrongful or criminal deception intended to result in financial or personal gain." Mr. McDuffie brought trailer-load after trailer-load of contraband into Canada by lying and deceiving customs authorities about what he was carrying. The duties and taxes payable on just the three shipments seized (one on 31 March, 2021 and two on 18 August, 2023) amounts to a staggering $17,516,058.59.
[22] In doing so, Mr. McDuffie sold out his fellow citizens, his neighbours, his friends. The functions of government are many but include protecting Canadians from our enemies (or sometimes from our allies); and providing health-care and education, potable water and breathable air, roads to drive on and cultural enrichment to thrive on, as well as economic opportunities and stability to maximize Canadians' quality of life. All of these things cost money. That money comes from various sources including taxes and duties. Some taxes are not only revenue-generating, but are also intentionally repressive, such as levies on tobacco products, which have historically been a major driver of avoidable early death. In avoiding taxes as Mr. McDuffie did, he both stole from his fellow citizens, whose aging parents might have benefited from a few more hours of PSW support, for example, and undermined long-standing public efforts to eradicate smoking, since one can reasonably expect that anyone receiving the tobacco delivered by Mr. McDuffie wasn't likely to be too concerned about whether it was sold on to minors or any other violations of the Smoke-Free Ontario Act.
[23] To put the dollar values mentioned above in terms that the average Ontarian could understand when upset about his or her twelve-hour wait at the emergency room or the teacher-student ratio in their child's school, the taxes and duties that would have been evaded on just the three seized shipments would hire one-hundred-and-seventy-five nurses or one-hundred-and-seventy-five teachers for a year. If one notes the time-range of the offences, it is particularly galling that all of this evasion and smuggling was happening while the federal and provincial governments were haemorrhaging cash to protect Canadians from the Covid-19 virus.
[24] The issue of Mr. McDuffie's specific role is one that crosses between the seriousness of the offence and his degree of moral responsibility. I accept entirely Mr. Del Gobbo's assertion that Mr. McDuffie is "about as far from Mr. Big as you could be". I suspect that when Mr. McDuffie was charged, and one hopes thereafter ceased smuggling, "Mr. Big" replaced him within a short time with some other person who was willing to compromise himself for a couple of thousand dollars a trip while taking on all of the front-end risk of arrest and prosecution. The reality is that he and his twin brother would be dispensable to the Rav-s and Harb-s who paid them, but that should have been obvious to Mr. McDuffie and his brother all along. In that sense, they are no different than the drug courier, who insulates drug importers by taking most or all of the real risk of apprehension at the border. However, even if Mr. McDuffie was a wee cog and Rav and Harb were medium or big cogs, the reality is that machines with cogs do not work unless all the cogs are in place, however big or small they may think they are. Also, even if Mr. McDuffie was "just" a small cog on the financial balance sheet of the smuggling operation, he was also a very large cog in terms of what needed to be done for the organization to evade about five million dollars in duties and taxes on every load. Without the drivers, none of this could happen.
[25] In relation to Mr. McDuffie's degree of personal responsibility, other points are noteworthy. First, there are the other, unpleaded smuggling events that were read in as part of the plea. Second, he recruited his brother, who helped in the scheme. Third, even after being caught with the shipment in March, 2021, Mr. McDuffie, rather than being scared straight, continued on to sell himself to Rav and Harb or whoever again and again and again. Fourth, Mr. McDuffie committed his crimes as part of a conspiracy, with Rav and Harb and his brother and probably various other people whose existence is unknown to him. It has long been clear that conspiracies or other offences of joint criminal intent are seen as more dangerous to society than individual offenders because the joint effort increases the likelihood that the criminal scheme will succeed.
[26] There are many positive things to be said about Mr. McDuffie. They include the fact that he has pleaded guilty. It is very important that people who plead guilty be treated more leniently than identical offenders who choose to go to trial. He has intended to plead guilty all along. He has no criminal record. I accept his remorse as entirely genuine, although it would be a better reflection on him if it had manifested itself as soon as he was caught with the 31 March, 2021 shipment. He is obviously not a youthful first offender, but he has spent the three decades since the time he would have fit in that category staying out of trouble and working long and hard to support his family, the latter decade of that career in long-haul trucking, a job that involves significant periods of separation from them. The material before me portrays a man who values his family and is valued by them and who, leaving aside the "small" matter of repeatedly smuggling huge amounts of tobacco, is someone anyone would value as a spouse, parent or child.
[27] Mr. McDuffie is thus the bane of every criminal judge's existence: the basically good person who has committed a very serious offence. The more common example of this would be a person with a background like Mr. McDuffie's who has lived a prosocial life for decades and then killed someone in an impaired driving or dangerous driving offence. Mr. McDuffie has obviously not killed anyone, although his tobacco would probably do that over time, but unlike the driving offenders I refer to his offences were calculated and not situational, repeated rather than single.
[28] I suspect that, while he advocated for a period of real jail, Mr. Anger would be reasonably content if I were to impose a maximum-length conditional sentence with real teeth. It is obviously not my job to make Mr. Anger happy, but it is my job to assess all of the available sentencing options and to impose the most restrained punishment that will satisfy the objectives of sentencing. As I said earlier, a conditional sentence is a theoretically available option.
[29] I should also note that there is no such thing as a single correct sentence for a particular offender and a particular offence. There is always a range of sentencing options that different judges, acting reasonably, might consider fit. I do not believe I could dispute that, for Mr. McDuffie and his offences, even as a first offender on a plea, a sentence of real jail in the upper reformatory to lower penitentiary range could be justified, because of the seriousness of the offences and the ensuing harm to society, which is not theoretical. For someone generally parallel to Mr. McDuffie and with a similar background, but who went to trial and thus showed no remorse, I would think that the absence of such remorse on these facts would dictate a sentence of real jail in the upper reformatory to low penitentiary range. For someone in a higher position in the operation, perhaps a Rav or a Harb, assuming they are mid-level rather than top-level participants, I would think that on a guilty plea a sentence from the top of the reformatory range to perhaps three years would be appropriate and a conditional sentence at the bottom end of that range would seem highly improbable. Sentences for the people profiting substantially from the scheme should be higher still.
[30] I take from Mr. Del Gobbo's submissions that he does not quibble with a maximum conditional sentence of two-years-less a day as being an appropriate sentence for Mr. McDuffie. However, I fear that his conception of the framework of that conditional sentence and my conception of an appropriate framework diverge substantially.
[31] First, while Mr. Del Gobbo had obtained confirmation from Recovery Science Corporation that Mr. McDuffie's residence was compatible with GPS electronic monitoring, he suggested that it was not mandatory. He is correct that it is not mandatory but conceded that it is applied in the vast majority of cases, at least where the conditional sentence is anything other than very brief. Given that the conditional sentence is a form of incarceration, one struggles to think of reasons why electronic monitoring ought not to be almost automatic. I have yet to hear any intelligent argument to the contrary in this or other cases.
[32] Second, Mr. Del Gobbo proposed a conditional sentence of eight months with house arrest and exceptions, eight months with a curfew and exceptions and eight months (less a day presumably) with neither house arrest nor curfew. However appropriate such a structure might be in another case, I would think that its use in the present case would tend to diminish the objective gravity of Mr. McDuffie's crimes dramatically and would contribute, in the eyes of a reasonable member of the public, to a decline in confidence in the courts.
[33] Third, Mr. Del Gobbo envisaged a conditional sentence whereby Mr. McDuffie could continue in his long-haul driving career. Whether one adopts the original plan (which Mr. McDuffie said would involve him being away from home twenty-six out of thirty or thirty-one days, or approximately eighty-four percent of the time) or Mr. McDuffie's alternate suggestion (of eight-days away/seven-days home, or approximately fifty-three percent of the time), either model involves him being away from his home, also known as his prison, for a very large part of the sentence. There would be effectively no meaningful supervision of Mr. McDuffie for either half of his sentence or as much as four-fifths of his sentence as his home and his workplace and prison while away on a long-haul run would be his truck. I accept Mr. Del Gobbo's comment that conditional sentences are intended to, among other things, allow people to keep working, which allows them to maintain stability, continue being pro-social, support their family, etc., but conditional sentences do not necessarily allow people to get on with their lives as usual. All mechanisms have a breaking point, and I am confident that the structure proposed by Mr. Del Gobbo goes well beyond what a reasonable observer would consider to be the breaking point of a conditional sentence.
[34] I also note the defence suggestion that Mr. McDuffie be permitted to continue to drive cargo across the border during the course of his proposed conditional "incarceration". There is a number of problems with this proposal. The first is that I was provided no basis at all upon which to conclude that Mr. McDuffie would be allowed into the United States after his sentencing. The roles of border officers vary from country to country: in autocratic and autocratic-adjacent countries they often serve a role controlling thought and dissent as well as goods. But the one universal idea that is innate in customs officers is that they disapprove of smuggling. The suppression of smuggling is quite simply their root function, whatever other regulatory and additional roles might have been added over the years. The suppression of smuggling is embedded in customs officers' history and encoded in their DNA. Mr. McDuffie has pleaded guilty to the crime of smuggling on multiple occasions. Once the United States authorities are aware of these convictions and sentences, I would be most surprised if he remained admissible to the United States. Our indictable offences are the rough equivalent of American felonies, smuggling is a form of fraud and fraud is an "offence of moral turpitude", which is a key driver of inadmissibility to the United States. While Canadian courts are not experts in United States immigration law, the simple reality of presiding in a busy border region suggests to me that the likelihood of Mr. McDuffie remaining admissible to the United States without obtaining a waiver is dim. I do not have to determine the issue of admissibility because, unlike other less serious cases, I have been presented with zero basis upon which to conclude that he is likely to remain admissible to the United States. In the absence of any such legal opinion, the idea that he has a future as a cross-border trucker into the United States lacks an air of reality.
[35] However, even if Mr. McDuffie remains admissible to the United States after he has been sentenced, I would still not allow him to continue to cross the border as a commercial truck driver (if at all) while serving a conditional sentence. To allow him to continue as if nothing had happened would be to allow him to return at will to the scene of his crimes, armed with his weapon of choice, his truck. I cannot imagine that the courts would retain the confidence of an informed and reasonable public if I allowed that to happen.
[36] I also note that Mr. McDuffie has only spent part of his life as a long-haul or cross-border driver. Indeed, his long-haul life seems to amount to about a third of his career. There is nothing before me to suggest he cannot obtain short-haul work, even if that might be somewhat more inconvenient for him or somewhat less remunerative than long-haul work. Short-haul work, however, will be much less inconvenient for him and much more remunerative than would a significant sentence of real custody, which would not be outside the range of reasonable sentencing options here.
[37] I reject the idea that I should allow Mr. McDuffie to continue to drive long-haul within Canada. Whether on the schedule he has had to date, where he is away from home almost all the time or on the half-on/half-off schedule that he suggested when he addressed the court, it is quite simply too much of a dilution of the notion of a conditional sentence to serve the essential roles of deterrence and denunciation and would, like the border crossing, bring the court's behaviour into disrepute in the eyes of a reasonable-minded public. At a certain point, these proposed exceptions to house arrest would reduce such a conditional sentence to a mere skeleton of a sentence and an abuse of the concept. Ultimately, a conditional sentence cannot be imposed if it would not achieve the objectives of sentencing and the format proposed by Mr. Del Gobbo would fall hugely short of achieving those objectives, which include denunciation, deterrence, protection of the public and generating respect for the law.
What is the Appropriate Sentence?
[38] Having addressed the submissions made and identified some of the shortcomings therein, the question remains: "what is the appropriate sentence for Mr. McDuffie?" The problem is that, as a person, Mr. McDuffie has lived his life, for the most part, as the ideal candidate for a conditional sentence—a mature, pro-social, hard working person. However, the damage done by his offences could easily justify a sentence of real jail.
[39] The conflict can be resolved in this way: sometimes, even when the offences are dire, a less harsh form of sentence than real jail may suffice so long as the attendant conditions are sufficiently demanding that they achieve all of the requirements of sentence, which is a prerequisite for a conditional sentence as set out in s. 742.1(a) of the Criminal Code. Although it is an extremely close call, I have concluded that a conditional sentence can be crafted that recognizes the seriousness of Mr. McDuffie's crimes and the positive attributes in his background, although it will bear almost no similarity to the model proposed by Mr. Del Gobbo.
[40] On each count Mr. McDuffie will be sentenced to a conditional sentence of imprisonment for two years less a day, followed by one year's probation. The sentences will be concurrent on each count.
[41] The conditions of the conditional sentence are as follows:
a) Report to a supervisor not later than 4 p.m. on Monday, 26 May, 2025 and thereafter as required.
b) Cooperate with your supervisor and sign releases and provide proof of compliance.
c) Live at [address removed], Ontario or a place approved by the supervisor and not change that address without the supervisor's prior consent.
d) You will be under home confinement for the entirety of the sentence and under electronic monitoring.
e) You are to remain in your residence or within 100m of the residence at that address at all times, except:
i. A five-hour period once per week to obtain the necessities of life, at a time approved by your supervisor.
ii. For any medical emergencies involving you or any member of your immediate family or your spouse's immediate family. This includes grandchildren. This does not include routine care.
iii. For going directly to and from and while at employment approved of by your supervisor on a schedule approved by the supervisor. Unless specifically approved by your supervisor or otherwise permitted by this order, you shall not be away from home overnight for more than four nights in any thirty-day period and are otherwise required to remain in your home overnight.
iv. Up to and including 31 August, 2025, in order to allow a period of transition in the nature of your employment if that is required, you may be away from home overnight for up to eight nights in a thirty-day period for the purpose of approved employment, but shall otherwise be required to remain in your home overnight. You shall obtain prior approval from your supervisor for any overnight absence.
v. For going directly to and from any legal medical or dental appointments approved by your supervisor.
vi. For going directly to and from any assessment and counselling sessions required by your supervisor.
vii. For going directly to, from and while performing community service hours.
viii. For carrying out any legal obligations regarding compliance with this conditional sentence order.
ix. You will confirm your schedule in advance with the supervisor setting out the times for any absences from your home.
f) During your home confinement:
i. You cannot change your residence without the prior approval of the supervisor.
ii. You must present yourself at your doorway on the request of your supervisor or a peace officer for the purpose of verifying your compliance with your home confinement.
g) You shall sign all required undertakings and agreements in relation to the Recovery Science electronic monitoring programme and abide by all of the requirements of that programme.
h) You shall attend for any assessment and counselling directed by your supervisor as set out in your pre-sentence report.
i) You shall perform 200 hours of community service at a placement approved of by your supervisor on a schedule and rate approved of by your supervisor. These 200 hours must be completed within the first eighteen months of the sentence.
j) You are to make reasonable efforts to seek and maintain suitable employment and provide proof as required.
k) You shall not leave Canada at any time during the conditional sentence without the prior approval of the court and shall not, personally or through any partnership or any corporation that you own, control or have any direct or indirect financial interest in, have any involvement, directly or indirectly with the cross-border movement of goods. You shall not have any contact or communication directly or indirectly with your brother James at any time within thirty days of any completed or anticipated entry into or return from the United States by him.
l) You shall, not later than 20 June, 2025, advise your supervisor if your illicit income from smuggling was declared to the Canada Revenue Agency and provide proof of any such declaration. If that income was not declared, you shall, not later than 29 August, 2025 file revised income tax declarations with the Canada Revenue agency declaring all income derived by you from smuggling for the period from 1 March, 2021 to 30 August, 2022. You shall provide proof of those revised declarations to your supervisor not later than 26 September, 2025 and shall provide your supervisor with all correspondence between you and the Canada Revenue Agency, including any notices of reassessment, payments, payment agreements, etc. until such time as any re-assessments have been paid in full.
[42] After the completion of the conditional sentence you will be on probation for a period of one year, on the following conditions:
a) Report to your probation officer within fourteen days of the start of the probation order.
i. Your obligation to report ends when you have completed all of the community service required by this order and any issues regarding your undeclared income with the Canada Revenue Agency have been resolved to the satisfaction of your conditional sentence supervisor or probation officer as the case may be.
b) You are to perform one hundred hours of community service at a placement approved of by your supervisor within the twelve months.
c) If your declarations of smuggling income, reassessments and payment of outstanding income taxes arising therefrom were not completed during the period of your conditional sentence, you shall complete that process as set out in that order before the end of the probation period.
d) You are to sign any releases required by probation and provide any proof required by them to verify your compliance with this order.
Conclusion
[43] In closing, I stress that if any of the elements of this sentence were absent, I would no longer consider it a fit sentence. There are cases where a defendant, even a pro-social first offender, rides the razor's edge between serving a substantial reformatory sentence and escaping that outcome by the skin of his teeth. In those circumstances, tinkering with any of the elements of a conditional sentence—the imposition of which enables the offender to escape real jail—deprives the conditional sentence of its legitimacy. This concern on my part might seem misplaced because it has so often been said that the Court of Appeal does not "tinker" with sentences (this, however, is only ever said in a non-ironic way by judges of the Court of Appeal). Anyone who has spent enough time arguing cases in the Court of Appeal will instead know two things: first, that this is a common assertion on the part of appellate judges hearing sentence appeals and, second, that it is universally true—except when it is not. See, for example: R. v. Ferguson, 2023 ONCA 870. This is not the sort of thing a trial judge should have to mention, never mind stress, but experience proves the truth of the aphorism, "once bitten, twice shy". To put it in plain English, in cases where an offender hovers on the boundary between real jail and a conditional sentence, "burdensome" sentence features (such as community service or monitoring, to name but two, also known as "reparations for harm done…to the community" in the language of s. 718(e) of the Criminal Code, one of the purposes of a criminal sentence) provide the added heft that, were they absent, would require a sentence of real jail. Removing such elements would deprive a non-custodial outcome of its legitimacy. I would go so far as to borrow a term from a different context and suggest that diluting the sentence by removing elements like community service and monitoring would render the sentence "unhinged".
Released: 12 August, 2025
Fergus O'Donnell J.