ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
EMMANUEL KWARTENG
Before Justice S. G. Pratt
Submissions heard on 7 October, 18 November 2025
Reasons for Judgment released on 8 January 2026
Mitchell Witteveen Counsel for the Crown
John Sitter Counsel for the Defendant
Pratt J.:
1On 12 December 2023, following a trial, I found the Offender Emmanuel Kwarteng guilty of three counts of possession of scheduled substances for the purpose of trafficking. Those substances were cocaine, methamphetamine, and fentanyl.
2Sentencing submissions were heard on 7 October and 18 November 2025. Sentencing was significantly delayed as the parties awaited the preparation of an enhanced Pre-sentence Report, and also by the calling of evidence related to credit for pre-sentence custody conditions.
3These are my reasons for sentence.
Facts
4The facts are set out in the Charter ruling made in this case (see: 2023 ONCJ 398) and in my reasons for conviction. Very briefly, the Offender was found in an apartment at 395 University Avenue East. In and around the cot on which he was found police located a fannypack with $4,460 bundled in groups of $20s and $50s, as well as multiple cell phones.
5Under the bed was a duffle bag. Police found men’s clothing in the bag, as well as a second fannypack. That had 63.4g of crystal methamphetamine inside. In a shaving bag, also found in the duffle bag, police located 1.9g of crack cocaine, 7g of powdered cocaine, and 40.9g of fentanyl. The fentanyl was separated into three packages of 23g, 3.5g, and 14.4g. The total value of the drugs, if sold at the gram level, was estimated to be $14,285.
6I note that the count related to the crack cocaine was amended by the Crown and withdrawn.
7Also in the duffle bag was a pair of boots the Offender asked for when he was removed from the apartment.
Positions of the Parties
8The Crown seeks a total sentence of seven years jail minus credit for pre-sentence custody. Specifically, it seeks 7 years on count 3, 2-3 years concurrent on count 4, and 8 months concurrent on count 1. Additionally, it seeks a DNA order, a s. 109 weapons prohibition for ten years, and forfeiture of the seized items. The forfeiture order has already been signed by the Court.
9The Offender seeks a sentence of 4-5 years custody. Once credit is given for pre-sentence custody, the remaining sentence would be under two years and so should be followed by a period of probation. The Offender’s counsel did not take issue with the ancillary orders sought by the Crown.
10As of the first date of sentencing submissions, the Offender had 980 actual days of pre-sentence custody. Since then, he has accrued a further 92 days. In total, therefore, he has 1,072 days of pre-sentence custody. At the standard credit of 1.5:1, that equates to effective pre-sentence custody of 1,608 days, or just short of 53 months.
The Pre-sentence Reports
11I have had the great benefit in this case of two pre-sentence reports. One was completed by Probation Officer Kristen Merritt. The other is an enhanced pre-sentence report completed by Michelle Richards of The Sentencing and Parole Project. This report focuses on the impact of the Offender’s race on his upbringing and lived experiences. I will refer to these reports as the PSR and EPSR respectively.
The PSR
12The most striking feature of the PSR is how uniformly positive it is. The Offender comes from a loving and supportive family. He had a positive, stable childhood but for the separation and reconciliation of his parents. He has completed high school and was employed prior to the pandemic. He is confident that he will be able to find employment on his release from custody.
13While there is some substance use in his past, there are no current concerns in this regard. As for the offences before the Court, he described himself as getting “mixed in with the wrong people” and making a “bad mistake”. I note he has no history of drug offences on his record.
14The PSR author spoke with the Offender’s mother Cynthia Kwarteng. She confirmed her strong support for her son and her hope that he returns to her home on release. If he does, she will put him in contact with their pastor to ensure the Offender gets the guidance he needs. The family has a long history in their church, and Ms. Kwarteng is a minister. Without question, the tools are there for the Offender to succeed on his release.
15That the Offender has a close relationship with his mother and doesn’t want to disappoint her is shown by the remarkable fact that he did not contact his family on his arrest. He was in jail for 11 months before he called his mother. He now wants to return to the family home. Their close connection with their church brings to mind the parable of the Prodigal Son. It seems the Offender will be welcomed back in the same way. I hope he realizes what a gift this is.
The EPSR
16The EPSR is a more detailed summary of the Offender’s history. Like the PSR, it notes he grew up with family and was provided for. The EPSR, however, reveals a less stable life. The Offender attended many different schools with varying degrees of success. Often, he was the only or one of the only Black students, and felt he was treated differently as a result. His school history is dotted with disciplinary issues but he told the EPSR author that it was common for him to be punished while other students were not even when they engaged in the same behaviour.
17At home, the Offender felt he had to be the man of the house after his father left. As a result, he gained a measure of independence and frequently made dinner for the family. His relationship with his mother suffered when she considered reconciling with his father. It was shortly after this conflict that he moved to Windsor in search of employment. He did not tell his family he was leaving.
18As noted in the PSR, the Offender did not tell his family about his arrest. Not knowing where he was and not having heard from him for months, both his mother and sister feared the Offender was dead. When he finally contacted his mother in advance of the PSR, she was understandably emotional. As stated at page 3, “She remains distressed about his decision to endure this process alone without family support.”
19As a teen, the Offender experienced what he saw as anti-Black racism in the community. Police would frequently stop him and his friends, claiming they “fit the description” of someone they were looking for. He was the target of aggressive policing and demeaning comments that should have no place in 21st century Canada.
20Both reports referred to Tevin Glen, a friend of the Offender. Mr. Glen has known the Offender for several years and holds a very positive opinion of him. The Offender is godfather to one of Mr. Glen’s children. In his experience, the Offender is “a peaceful, quiet, thoughtful person with a great sense of humour.” Mr. Glen also corroborated the Offender’s account of racism in their teen years at the hands of authorities.
21Finally, the EPSR notes the conditions the Offender endured during his pre-sentence custody. I will address this area when considering mitigating factors.
22Overall, both reports are extremely positive. They portray a young man with a strong morality and solid work ethic. There is no reason for him to be in the situation he is in. That he has wasted years of his life on the offences before me is nothing short of tragic.
Principles of Sentencing
23Parliament directs sentencing judges to impose sentences that protect society and encourage respect for the law. Denunciation and deterrence, together with rehabilitation, are key objectives when a court considers the issue of sentence.
24Section 10 of The Controlled Drugs and Substances Act details both the purpose of sentencing in drug cases and factors that courts should consider. I have reviewed the list of potential aggravating factors set out in that section. None apply to the present case.
25Any sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the Offender. It should be similar to sentences imposed in similar cases, and when custody is imposed, it should only be as long as necessary to achieve the objectives of sentencing.
Caselaw
26Caselaw on the possession of fentanyl for the purpose of trafficking is growing quickly. I have reviewed the cases relied on by the Crown in the recent cases of R. v. Harun 2025 ONCJ 356 and R. v. Coulter 2025 ONCJ 206. I rely on my prior analyses of these cases. I will not review the authorities in detail as a result, but I have considered all of them.
27Based on the guidance provided by these cases, I find I disagree with counsel for the Offender that he is a low-end fentanyl dealer. The amount in his possession, 40.9g, belies that notion. So too does the presence of other controlled substances like cocaine and crystal methamphetamine. The fentanyl was packaged for sale, and was found along with a large amount of money and several cell phones. The only inference is that the Offender was engaged in the business of drug dealing. He was not a low-level dealer. I find he was a mid-level dealer, and should be sentenced as such.
28I do agree with counsel that there is a difference between possession for the purpose of trafficking and actual trafficking. The Offender was not caught in the act of selling. If he had been, the sentence I impose today would likely have been higher. That he wasn’t is not a mitigating factor, but it is relevant to the sentencing calculus.
Aggravating and Mitigating Factors
29It is aggravating that the Offender was found with multiple controlled substances. This underscores the commercial nature of the possession. Further, while all the substances found are Schedule I drugs, the deadly nature of fentanyl makes its possession for the purpose of trafficking especially serious. The amount he possessed was not trivial or indicative of personal use. It was packaged in amounts commonly seen in trafficking and was enough to kill many people. The Offender represented a grave danger to the public. Every year, opioids kill thousands of Canadians. By his conduct, the Offender played a crucial role in maintaining this epidemic, and did so for his own financial gain.
30In mitigation, as I’ve noted, the Offender has strong family support. He seems to recognize the error of his ways and is motivated to change. On release from custody, he will have all the tools necessary to succeed.
31While the Offender has a prior record, it is unrelated. In 2020 he was given a conditional sentence. According to the PSR, he completed this sentence without incident and had good reporting habits. He completed his required community service hours and was employed. This is encouraging.
32I also consider the conditions of the Offender’s pre-sentence custody as they relate to potential mitigation of sentence. I heard significant evidence on this point and will summarize it below.
33As stated above, the Offender has 1,072 days of pre-sentence custody. Assessing the standard 1.5:1 credit, that represents 1,608 days, or just under 53 months.
34In the course of his pre-sentence custody, the Offender has been housed in at least three different facilities: the Southwest Detention Centre (“Southwest”) in Windsor, the Elgin-Middlesex Detention Centre (“EMDC”) in London, and the Central North Correctional Centre (“CCNC”) in Penetanguishene. He seeks additional credit for the conditions he endured, pursuant to R. v. Duncan 2016 ONCA 754, [2016] O.J. No. 5255 (C.A.).
Southwest
35According to the summary provided by the Offender’s counsel, he was at Southwest for a total of 406 days. This number only reflects custody up to 22 April 2025. In that time, he was in a cell with two other prisoners for 302 days.
36In addition, the Offender was subject to lockdowns on 83 days. Thirty were institution-wide while 53 were specific to his unit.
37Of the 30 institution-wide lockdowns, 22 were made necessary by staff absences. Of the 53 unit lockdowns, 36 were for that reason. Other lockdowns were the result of, for example, contraband searches, inmate behaviour, or maintenance.
38Staff Sergeant Peter Spourdalakis testified to the conditions experienced at Southwest by inmates. He acknowledged the Offender’s time spent three to a cell, and the lockdowns noted in the records.
39He was asked about the Offender’s time spent in a dry cell. He confirmed the records indicated he was housed this way for nine days. When asked why that happened, he did not answer regarding the Offender specifically. He said a dry cell is used when a person is suspected of concealing contraband in their body. He did not say that was the reason for the Offender’s stay in a dry cell.
40Looking at the records, no reason for the dry cell is noted anywhere. I have reviewed the “Tracking and Observation Report” for the days the Offender was in the dry cell. There is an area titled “Reason(s) For Placement” on some pages. The options are Disciplinary Placement, Inmate Needs Protection, Protect Security of Institution/Safety of Others, and Inmate Refused to be Searched. None of the boxes are checked on any of the pages with this pre-printed area. It is concerning that the records do not show a reason for placing the Offender in a dry cell, and that the witness also provided no specific evidence on that point.
41In his evidence, Staff Sergeant Spourdalakis testified that inmates in dry cells get access to a nurse a minimum of twice a day. If I am reading the records correctly (a big if, given the legibility of the writing), the Offender met with the nurse on 21 January at 900am. The records also show the following entries that appear to relate to medical care:
(1) 22 Jan: MH assessment Ø observed sleeping 1010am
(2) 23 Jan: MH assessment – sleeping 932am
(3) 25 Jan: MH assessed sleeping 1020am
(4) 26 Jan: MH assessment 1005am
(5) Undated report (possibly the 28th as that date is otherwise missing from the records) met with nurse, 940am
42There are no such notations for 24 January. It is unclear if, on the days when the Offender appeared to be sleeping, he was awakened for what I am assuming was a mental health assessment.
43In the EPSR, the Offender told of the conditions while in the dry cell. He said he was placed there after his cell was searched. This search was carried out as a result of drugs being found in the facility. He said he and his two cellmates “reportedly scanned dirty” and were taken to segregation where they were stripped. He said he was kept in a dry cell for ten days, wearing only a sleeveless bib. He had a small mat instead of a mattress, and no blanket. He said the cell was freezing and the toilet was broken. There was urine and feces on the floor.
44Staff Sergeant Spourdalakis was asked about the conditions an inmate in a dry cell would experience. He confirmed the inmate would wear a sleeveless gown instead of the usual inmate clothing. He described the gown as “considerably thicker” than the t-shirt or jumpsuit inmates would normally wear. He called the mattress a “security mat” and said it was thicker than a normal mattress. He also said inmates would be given two security blankets.
45When asked about the temperature of the dry cell, he testified that the cells used are not permanently designated as dry cells. They are regular cells on a range. They are converted for use as dry cells. He said there would be no temperature difference. I do note from the “Dry Cell Protocol” included in the records that one of the steps to be taken is to “Shut off the cell’s toilet and sink water from the adjacent pipe chase”. This corroborates the notion that dry cells are converted regular cells.
46In the EPSR, the Offender stated that he had no access to a shower while in the dry cell. The records contradict that comment. There is a notation of “shower to scan” at 1213pm on 22 January, the day after he was first placed in the dry cell. There is another notation that reads “out to shower” at 1040am on 25 January.
47The Offender also told the EPSR author of an incident where a dog was brought into the facility to search for drugs. He said the dog defecated in one of the cells and that the officers just laughed. Staff Sergeant Spourdalakis was asked about this incident. He said that as he is the direct supervisor of the K9 officer who would be involved in these searches, he would know if the dog did what was claimed. He had never heard of any such incident.
48The Offender also said he was in the behavioural unit for a month, resulting in restricted privileges. This was done, he said, because he had spoken out about the mistreatment of Black inmates. Staff Sergeant Spourdalakis agreed that being in that unit resulted in less time outside the cell but disagreed that 22-hour daily lockdowns were typical.
49The records show that on leaving the dry cell on 29 January 2024, the Offender was immediately placed in the behavioural unit in range A5. He remained there until 16 February. He was also on A5 from 27 June to 15 July 2023.
50I am concerned about the level of record-keeping at Southwest related to the time the Offender was in a dry cell. There is no evidence of why he was put there in the first place. Nothing is noted on the records and no evidence was provided to explain this decision. While the observations of the Offender are noted every twenty minutes, 24 hours a day, the notations are often nearly illegible. This limits a reviewing body’s ability to assess exactly what took place. At times, the acronyms used to describe the observations are not taken from the “Acronym Legend” at the bottom of each page. Notations like “OS”, “OB”, or “RS” are not defined. I can surmise the latter two might be “on back” or “right side”, meaning the position in which the inmate is seen lying down, but it isn’t clear. More careful notetaking would give the Court more information. In an age where Duncan credit is commonly sought, this information would be valuable.
51It is also unclear just how much medical care the Offender received while in the dry cell. The records seem to suggest visits from a nurse, but they are so brief as to be of little use. Given the use of the character “Ø” in an entry where a mental health assessment was to be carried out, I am left wondering if this visit was nothing more than looking into the cell and leaving. The psychological effects of segregation in prisons are well-known. Care must be taken to monitor the mental health of inmates and proper notes must be taken of those efforts.
52I am also concerned, candidly, about the possibility that the Offender has exaggerated the harshness of his conditions. By no means should I be taken as finding the conditions he experienced were simple and easy. But, his claim of having no access to showers, for example, was contradicted by the records. Similarly, his statement that the dry cell was freezing conflicts with the fact that dry cells are just ordinary cells converted for that purpose. There would be no temperature difference between cells in that range.
53Overall, taking into account the number of staffing-related lockdowns (a preventable situation), the overcrowding that has become a standard feature of detention centres in Ontario, and the use of segregation for no documented reason, I find the Offender’s time in Southwest entitles him to mitigation on sentence.
EMDC
54The Offender was housed at EMDC from 29 August to 31 October 2023. I have evidence from the Offender himself on this experience as related to the EPSR author, from Staff Sergeant Adnan Hamsic, and from records provided by the institution.
55According to the records, the Offender was subject to 22 periods of lockdown while at EMDC. Ten of these were “Full lockdowns”, which impose the most restrictions on inmate movement. The remainder were partial lockdowns, where groups of cells are opened on a rotating basis. I have no evidence for the reason behind any of these full or partial lockdowns.
56The Offender was subject to triple-bunking on three days, from 11 – 13 October.
57In the EPSR, the Offender described very difficult conditions. He said he saw White correctional officers beat inmates. He said inmates would be strip searched if they displayed attitudes, and mentioned an incident where a White female officer entered a cell and slapped a Black inmate for no reason. He also referred to an incident where an inmate died in custody, though I note that was in 2021, before the Offender entered EMDC. When asked about inmate deaths, Staff Sergeant Hamsic testified to one incident where the death was attributed to officers. He said that was in 2012. He was unaware of any other inmate deaths at the hands of officers. There have, however, been several inmate deaths in the facility, before and after the Offender’s time there. An inquest into seven of those deaths remains outstanding following a judicial review application decided last year (see: Ontario (Ministry of the Solicitor General) v. Carlisle [2025] O.J. No. 4511 (Div. Ct.)).
58I have no evidence on the reason for the lockdowns experienced by the Offender at EMDC. It seems likely, however, given the ubiquity of staffing-related lockdowns in Ontario institutions, that at least some of them were for that reason. In 64 days at EMDC, the Offender was locked down 22 times beyond the usual daily periods of lockdown. I will consider this as a mitigating factor on sentence, though without specific information on how many were indeed related to staffing shortages, the mitigating effect will be limited.
59I also have the Offender’s statement to the EPSR author related to racism within the EMDC. On the specific record before me, I am unable to find that the Offender experienced particularly harsh pre-sentence conditions on the basis of his race. This should not be taken as a positive finding that racism does not exist inside EMDC. It is a case-specific conclusion based on the evidence tendered, and applying the test set out in Duncan, supra.
CNCC
60The Offender was housed at CNCC from 5 May 2024 to 14 April 2025, a total of 344 days. During that time, he resided in area 6F.
61In her testimony, Cheryl Spooner of CNCC explained what conditions are typically like. She said the Offender was on an “open living unit” during his time in the facility. This meant he was out of his cell and free to take showers, watch television, exercise, or interact with other inmates from 700am to 700pm.
62That liberty was restricted on many occasions by unscheduled lockdowns. On 137 days, the Offender’s unit was locked down for as little as four hours, or as much as twelve hours (i.e. the entire day). Of the 137 lockdowns, only four were for reason other than “Staffing Issues”. One was “Contraband/Search”, two were “Maintenance/Construction”, and one was “Other Crisis Management”.
63The records provided by CNCC list several reasons why a lockdown may be initiated, though only one such reason relates to staffing. That reason includes sick calls by staff, and the need to escort inmates to hospital which can result in temporary shortages while the escort is taking place. There was no breakdown provided for which staffing-related lockdowns were related to sick calls or to other reasons.
64In her testimony, Ms. Spooner stated that even in times of lockdown efforts are made to allow inmates access to showers. Visits would only be cancelled if there was a search for contraband or weapons. Medical treatment would still be provided regardless of lockdowns.
65The Offender was triple-bunked on 48 days. Ms. Spooner confirmed that the third bed in a cell built for two would be placed on the floor. She equated the comfort level of the two arrangements as she noted the bunk beds were steel and the floor was concrete.
66In my view, the number of lockdowns related to staffing issues merits consideration as a mitigating factor. Lockdowns took place on nearly 40% of the days the Offender spent at CNCC. As I have said, earlier in these reasons and in other decisions, staffing shortages are generally preventable problems. So long as this issue remains unaddressed, it should result in a mitigation of sentence. It is an unnecessary and significant restriction on inmates’ already compromised liberty.
67Overall, I find the conditions of the Offender’s pre-sentence custody warrant mitigation of sentence. I decline to calculate a specific number of days of additional credit. Duncan credit is a mitigating factor, not an addition to the standard 1.5:1 credit permitted by the Criminal Code. In my view, there is no jurisdiction to go beyond 1.5:1, and doing so results in an overemphasis on pre-sentence custody as a mitigating factor. Courts do not assign a given number of days’ credit to a lack of a prior record or a guilty plea, so there is no principled reason to do so with pre-sentence custody conditions.
Sentence
68The Offender’s crimes are gravely serious. The toll taken on society by the drugs he possessed is stark and horrifying. Thousands of Canadians around the country lose their lives every year to addiction. The effect of fentanyl in particular cannot be understated. The Offender had a significant quantity of this drug, packaged and ready for sale. His conduct must be denounced in strong terms. Those who would seek to sell this poison for financial gain must be deterred. The caselaw is clear on these points.
69That said, I cannot ignore the circumstances of the individual before me. The Offender is a young man. He has a very limited criminal record. Most importantly, he seems to understand just how wrong his actions were. He has the support of his family. He is intelligent and capable of success. There is no reason at all why we should ever see him back in court.
70Balancing the aggravating and mitigating factors present, and bearing in mind the principles of sentencing set out in both the Criminal Code and the caselaw, I find the appropriate sentence to be one of six years minus credit for pre-sentence custody.
71The Offender will be sentenced as follows. All sentences will run concurrently:
(1) Count 1: Eight months jail. The information will reflect 160 days of pre-sentence custody enhanced to 240 days, plus one further day.
(2) Count 3: Six years jail. The information will reflect 1,072 days of pre-sentence custody enhanced to 1,608 days, plus a further 582 days.
(3) Count 4: Two years jail. The information will reflect 485 days of pre-sentence custody enhanced to 730 days, plus one further day.
(4) Probation on each count for two years, concurrent on each count. Conditions will be:
(a) Report in person to a probation officer within two working days of your release from custody and thereafter as required by your probation officer or anyone authorized by your probation officer to assist in your supervision;
(b) Cooperate with you probation officer. You must sign any releases necessary for the probation officer to monitor your compliance and you must provided proof of compliance with any condition of this order to your probation officer in request;
(c) You are not to contact, directly or indirectly, by any physical, electronic, or other means, with Elizabeth Reid Dietrich;
(d) Do not go within 100m of anywhere you know Ms. Reid Dietrich to live, work, go to school or any other place you know her to be except for required court attendances;
(e) Do not possess anything defined in the Criminal Code as a weapon;
(f) Do not possess or consume any unlawful drugs or substances except with a valid prescription in your name or those available over the counter.
(5) There will be an order on each count for the Defendant to provide a sample of his DNA to the Windsor Police Service for inclusion in the national DNA databank on or before 31 January 2026.
(6) There will be a weapons prohibition on each count under s. 109 of the Criminal Code for ten years.
72Given the custodial sentences, I will waive the Victim Surcharges that would otherwise be payable.
73I wish the Offender the best of luck in the future. As I have said, you have all the tools necessary to succeed. I hope you take advantage of them.
Released: 8 January 2026
Signed: Justice S. G. Pratt