ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
BRANDON McCALLUM
Before Justice J.R. Richardson
Heard on November 18, 2025; March 31, 2026
Sentence Pronounced Orally on June 4, 2026
Reasons for Sentence released on June 5, 2026
Tim McCann counsel for the Crown
Forest Poff-Smith counsel for the accused
Facts
1On November 18, 2025, Mr. McCallum entered pleas to the following charges:
a) Possession of Methamphetamine for the Purpose of Trafficking in Renfrew on December 13, 2024, contrary to section 5(2) of the Controlled Drugs and Substances Act;
b) Possession of Cocaine for the Purpose of Trafficking in Renfrew on December 13, 2024, contrary to section 5(2) of the Controlled Drugs and Substances Act;
c) Possession of Cocaine in Arnprior on January 24, 2025, contrary to section 4(1) of the Controlled Drugs and Substances Act;
d) Breaching his release order by possessing drugs in Arnprior on January 24, 2025, contrary to section 145 of the Criminal Code.
2The Crown proceeded by Indictment.
3In or about November 2024, police received information from a confidential informant that Mr. McCallum was trafficking in controlled substances in Renfrew.
4Police conducted surveillance on November 12 and 22, 2024. They did not directly observe hand-to-hand transactions between Mr. McCallum and purchasers of controlled substances but they made observations that they believed were consistent with Mr. McCallum engaging in drug trafficking.
5As a result of these observations, they sought and were granted a tracking warrant with respect to Mr. McCallum’s movements as well as a data recorder warrant with respect to his devices.
6They also continued surveillance. Once again, they did not observe direct hand-to-hand transactions, but they made observations that they believed were consistent with Mr. McCallum engaging in drug trafficking.
7On December 13, 2024, police observed Mr. McCallum travelling in a white Ford Fusion. They stopped the vehicle. A search of the vehicle revealed:
a) 41.72 grams of powdered cocaine;
b) 14.76 grams of crack cocaine;
c) 20 amphetamine assault capsules;
d) 10.48 grams of MDMA;
e) 446 methamphetamine tablets;
f) 7.75 oxycodone tablets;
g) 2 morphine capsules;
h) Plastic bags believed to be used for trafficking in controlled substances;
i) Two cell phones;
j) $2896.50;
k) Three digital scales;
l) Cutting agents;
m) A Safe;
n) The frame and slide of a Glock-style Air Pistol.
8Mr. McCallum gave a statement to police in which he took ownership of some items
9Mr. McCallum was released on bail
10One of the conditions of Mr. McCallum’s bail order was that he not possess controlled substances or drug paraphernalia.
11On January 24, 2025, police executed two search warrants in the Town of Arnprior. One warrant was executed at the residence of AJ. Police observed a blue Mazda 3 vehicle, which they knew to be operated by Mr. McCallum parked there. Four people were found in the residence, including Mr. McCallum.
12A search of the residence revealed two bags of cocaine with a total weight of approximately 24 grams on an armrest near where Mr. McCallum was sitting.
13A search of Mr. McCallum incident to arrest resulted in the seizure of 4.25 grams of cocaine in a small zip lock bag as well as one gram of crack cocaine.
14Additional drug paraphernalia was found in the Mazda 3.
15Upon hearing these facts, I found Mr. McCallum guilty of the offences to which he entered his pleas and I ordered the preparation of a Pre-Sentence Report.
16The issue in this case is the appropriate sentence. The Crown seeks an 18-month jail sentence. Defence counsel seeks a conditional sentence.
The Criminal Record
17Mr. McCallum has a relatively minor criminal record which begins in 2013 and ends in 2018. It lists the following convictions:
a) One conviction for Operating a Motor Vehicle with More than 80 milligrams of alcohol in 100 milliltres of blood;
b) Two convictions for Failing to Comply with Bail Conditions;
c) One conviction for Mischief Under $5000;
d) One conviction for Assault; and
e) One Conviction for Uttering a Threat.
18Mr. McCallum has never served more than thirty days in custody. All of his custodial sentences were intermittent (weekend) sentences, which before COVID-19, were imposed with much more regularity than they are now.
19Each disposition also includes a requirement that Mr. McCallum complete a period of probation. Although he has breached bail orders twice, there are no convictions for Breach of Probation on his record.
20Nor are there any drug-related convictions.
21The offences before me are the most serious offences Mr. McCallum has committed.
The Pre-Sentence Report
22The Pre-Sentence Report, which was prepared by Paul Redman of the Ottawa West Probation and Parole Office, was quite positive. It reveals the following:
a) Mr. McCallum is 43 years of age.
b) He is a Canadian citizen.
c) He does not identify as an Indigenous person.
d) He has three children, two of whom are under the age of 18.
e) He has resided in Renfrew County since he was two years old.
f) His parents separated when he was three. He has not had any contact with his biological father since they separated.
g) There is no history of physical, sexual or emotional abuse.
h) He has one sister who is paraplegic.
i) Mr. McCallum graduated with his high school diploma in 2001. He did not pursue post-secondary education. There were no behavioural issues while he was in school. He did not have any developmental delays or learning disabilities. He described his academic performance as “average”.
j) Mr. McCallum reported that he started to use drugs when he was about 15 years old. First he used alcohol and marihuana. Within a couple of years, he was using cocaine on a daily basis. He denies ever using opiates.
k) He has worked in construction as a general labourer. He has also been on social assistance from time to time.
l) He has a good relationship with his mother, with whom he has been residing and who has been his surety since his last release from custody.
m) He had a good relationship with his step-father, until his step-father was killed in a snowmobiling accident. Mr. McCallum stated that after his step-father died, his use of cocaine intensified.
n) He was in a common-law relationship between 2007 and 2019. His partner was the victim of the assault that is on his criminal record. Despite this, they are on good terms and they have raised their children amicably without family court order.
o) Mr. McCallum engaged in counselling for substance abuse while he was on probation. He expressed a desire to engage in such counselling again.
p) Mr. McCallum’s probation records from his prior probationary dispositions noted “moderate engagement” on his part with no concerns for enforcement.
q) Mr. McCallum’s mother has been providing him with structure since his last release and Mr. McCallum contributes to the household.
r) Mr. McCallum reports abstaining from hard drugs since the last incident in January 2025. He continues to use marihuana to assist him with sleep. His mother and others contacted for input essentially confirmed this.
s) Mr. Redman noted that Mr. McCallum appeared on time for the interviews. He was courteous and respectful. He did not hesitate in disclosing detailed information about himself. He was cooperative and remorseful.
t) Mr. McCallum reported being diagnosed with Chronic Obstructive Pulmonary Disease (COPD), which he attributed to the use of tobacco. He reported taking medication to reduce his addiction to nicotine, manage anxiety and depression and assist in managing his COPD.
u) Mr. McCallum acknowledges past suicidal ideation, but he has never acted on these thoughts. This is under control with prescription anti-depressant medication.
v) Mr. McCallum reported past involvement in sports including basketball, hockey and baseball. He presently spends his spare time at home where he reads, watches sports and engages with his family.
w) Mr. McCallum reported that he has disassociated from his prior associates with whom he engaged in drug use. He expressed the desire to be more of a role model for his children.
x) Mr. Redman opined that Mr. McCallum was a suitable candidate for community supervision.
Mr. McCallum Has Re-Engaged in Treatment
23Defence counsel filed a letter from Lise Laframboise, the Executive Director of Pathways Alcohol and Drug Treatment Services. Ms Laframboise reported that Mr. McCallum re-engaged in treatment in December 2025.
Letters of Support from Mr. McCallum’s Mother
24Mr. McCallum’s mother wrote two letters of support dated February 15, 2026 and March 27, 2026. They reveal the following:
a) She has acted as Mr. McCallum’s surety for over a year without any incidents.
b) Throughout this time, he has been subject to ankle monitor and a house arrest bail.
c) She expressed the hope that he would engage in inpatient treatment for his drug problem. She also believes that mental health counselling would also be beneficial.
d) She stated that she does not allow him to associate with his former friends or allow those friends to visit.
e) She noted that she fractured two vertebrae in her neck as a result of a fall at home. She anticipates further surgery. She anticipates relying on Mr. McCallum to assist her with care and home maintenance.
f) She reported that he has a close relationship with his children.
g) She reported that Mr. McCallum’s sister is a paraplegic as a result of Spina Bifida. Although she lives independently in Ottawa, she comes home for visits and Mr. McCallum assists with transferring her to her wheelchair and putting her wheelchair in her vehicle for visits.
h) She asked me to consider imposing a conditional sentence with a house arrest and an ankle monitor to allow him to continue to support her and her family.
Letter Confirming COPD and Depression Diagnoses
25Mr. McCallum’s doctor wrote a letter dated February 5, 2026 indicating that Mr. McCallum has recently been diagnosed with COPD/Asthma overlap syndrome. He is taking prescription medication. She also reported that he has “major depressive disorder” for which he is also taking medication.
Submissions of the Crown
26Crown counsel asked me to impose a custodial sentence of 18 months in the reformatory.
27Crown counsel relied on R. v. Woolcock, [2002] O.J. 4927 (Ont. C.A.), which sets the range of sentence for a low-level drug trafficker at between six months and two years in custody.
28Crown counsel noted that the quantities, nature of the substances and array of substances were all aggravating factors. He stated that Mr. McCallum’s behaviour and the drugs that he possesses are a scourge on society, resulting in tremendous financial costs, significant mental and physical health issues on the part of those who are addicted to controlled substances and serious violent crime.
29Accordingly, Crown counsel argued that general deterrence and denunciation are the primary sentencing objectives.
Submissions of Defence
30Defence counsel advocated for an 18-month conditional sentence followed by a period of probation. He stated that Mr. McCallum was an addict-trafficker – i.e. one who engaged in drug trafficking to support his own addiction. He argued that Mr. McCallum’s abstention from hard drugs since January 2025 should be viewed as a significant mitigating factor.
31Defence counsel also pointed to the other mitigating factors:
a) Mr. McCallum has completed fourteen months of house arrest bail without a breach.
b) Mr. McCallum entered a guilty plea, which saved the time and expense associated with his trial. Defence counsel also argued that there were significant issues of proof in the Crown’s case and Mr. McCallum entered a plea nonetheless.
c) Mr. McCallum has re-engaged with his children.
d) Mr. McCallum has been diagnosed with COPD.
32He argued that Mr. McCallum no longer poses a risk to the community. He maintained that the long-term protection of the public is better served by allowing Mr. McCallum to remain in the community where he will continue to assist his family and engage in treatment.
Mr. McCallum’s Allocution
33Mr. McCallum told me that his relationship with his children means the world to him. He stated that he did not realize how much time he lost with them until he became sober.
34He indicated that he was looking forward to “being clean” for the rest of his life.
35He attributed his initial involvement with drugs in his teens to “bad peers”. He said that it got out of control in the past ten years.
Analysis
Statutory Sentencing Provisions
36The maximum sentence for possession of cocaine for the purpose of trafficking is life imprisonment. It is likewise for the offence of possession of methamphetamine for the purpose of trafficking.
37The maximum sentence for simple possession of cocaine, where, as here, the Crown has elected to proceed by Indictment, is seven years in custody.
38The maximum sentence for breach of a release order, where, as here, the Crown has elected to proceed by Indictment, is two years in custody.
39There is no minimum sentence.
40Section 718 of the Criminal Code states:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
a) to denounce unlawful conduct in the harm done to victims or to the community that is caused by unlawful conduct;
b) to deter the offender and other persons from committing offences;
c) to separate offenders from society, where necessary;
d) to assist in rehabilitating offenders;
e) to provide reparations for harm done to victims or to the community; and
f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.
41Section 718.1 of the Criminal Code establishes the fundamental principle of sentencing: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
42Section 718.2 of the Criminal Code sets out “other sentencing principles”:
A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor,
(ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(ii.2) evidence that the offender involved a person under the age of 18 years in the commission of the offence,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
(iii.2) evidence that the offence was committed against a person who, in the performance of their duties and functions, was providing health services, including personal care services,
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,
(v) evidence that the offence was a terrorism offence,
(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act, and
(vii) evidence that the commission of the offence had the effect of impeding another person from obtaining health services, including personal care services,
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
Caselaw
43The Crown’s sentencing position is not unreasonable. Despite its age, Woolcock remains good law with respect to the starting point and range for street-level traffickers with an ounce or less of cocaine. Street-level traffickers with more than an ounce but less than half a kilogram find themselves looking at two to four years in the penitentiary. Higher levels of incarceration – in the five to eight year range -- are warranted where the offender is a mid-level trafficker in possession of half a kilogram of cocaine or more: R. v. Bajada, 2003 15687 (Ont. C.A); R. v. Bryan, 2011 ONCA 273. Double digit penitentiary awaits an offender in possession of multiple kilograms of cocaine.
44Denunciation and deterrence are also the primary sentencing considerations.
45This is not to say that a non-carceral sentence is outside the range. As has often been observed, sentencing cases reflect starting points and ranges; they are not straight jackets. The Court must also give effect to that fact that the organizing principle of sentencing is proportionality. As I discuss below, sometimes carceral sentences are not proportionate for offenders who have made considerable progress in turning their life around and would, in fact, be a step backwards.
46The long-term protection of the public is not enhanced by sending such an offender back to jail and potentially undoing all the good that they have done to improve themselves.
47For offenders such as this, the Courts have recognized that conditional sentences can be sufficiently denunciatory and deterrent that they are fit sentences, notwithstanding that they are outside the range or below the starting point traditionally considered in cases of this nature.
48In R. v. Colton, 2021 ONCJ 249, police received information that the accused was trafficking in drugs from his business in Lakefield and started an undercover operation. The undercover officer made three purchases consisting of 3.5 grams of cocaine; 3.5 grams of cocaine and 14 grams of psyilocybin and an ounce of mushrooms (psilocybin). With respect to the last transaction, the undercover officer asked for seven grams of cocaine. The accused told him that he only had five grams, but would be resupplied soon. When the accused told the undercover officer that he had more supply, police executed a search warrant resulting in the seizure of six ounces of cocaine (approximately 170 grams), 3.4 pounds of psilocybin and 14 pounds of marihuana.
49The accused had one prior trafficking conviction from 2008. He entered guilty pleas. There was a positive pre-sentence report which revealed that he was subjected to emotional and physical abuse as a child. After his 2008 conviction, he was sober for about ten years. He relapsed when his business started to fail. After he was charged with the offences he pleaded to, he engaged in counselling. He was the sole support for his family which includes a partner and two young children. The Crown sought a penitentiary sentence of between 24 and 36 months. Defence sought a conditional sentence.
50Justice Konyer found that the accused was a street-level trafficker who sold to older and more affluent customers. As such, following the decision of Justice Code in R. v. Graham 2018 ONSC 6817, the range of sentence was between six months and two years. Justice Konyer noted that the accused’s conduct was “premeditated and commercial in nature” which suggests a high level of moral responsibility. On the other hand, His Honour found that the accused was “not a healthy and rational person when he made these choices”. Accordingly, he concluded that the accused should receive an upper reformatory sentence.
51Justice Konyer then went on to consider the applicability of a conditional sentence. First, with respect to the risk of harm if the accused were to serve his sentence in the community, His Honour found that “[h]e appears to have taken serous steps towards addressing the root causes of his behaviour”, including obtaining stable salaried employment, engaging in substance abuse counselling, abstaining from substance abuse since he was arrested, attending counselling to address past trauma and marital counselling. He has also become a father. Based on this, Justice Konyer found that the accused would pose little risk to the community, “particularly if he were subject to home confinement terms enforced by way of electronic monitoring.”
52Justice Konyer acknowledged that the more difficult aspect of the conditional sentence calculus was whether a conditional sentence would be consistent with the purposes and principles of sentencing. He noted that denunciation and deterrence were the primary sentencing objectives for the offender’s crimes. His Honour found that a conditional sentence with house arrest and electronica monitoring would “achieve the required measure of denunciation” and that “incarceration is not necessary to adequately denounce [his] conduct”. He also noted that a conditional sentence also provided a modicum of specific deterrence, noting his remorse and insight, and the steps that the accused has taken to address his addictions.
53With respect to general deterrence, Justice Konyer stated at paragraph 39:
Long judicial experience also demonstrates that incarceration is a poor general deterrent in drug trafficking cases. Incarceration has been the primary sentencing tool employed to address these serious offences for decades without any discernible deterrent impact. Drug trafficking continues to be a serious social problem despite the mass incarceration of those who have been convicted of engaging in this conduct. The prohibition on the possession, use, sale, production and distribution of controlled substances, together with the highly addictive nature of many of these substances ensures that a lucrative underground market continues to exist. Incarcerating Mr. Colton, in my view, is unlikely to have any greater general deterrent effect than confining him to his home on a conditional sentence. On the other hand, the message communicated by a conditional sentence would be that addict-traffickers who rehabilitate themselves and take meaningful steps to address the root causes of their criminal conduct will be treated more leniently. In my view, a sentence that confines Mr. Colton to his home, permits him to work and support his family, requires him to continue with counseling and to make reparations to the community would also advance the protection of society further in the long term than simply separating this largely rehabilitated offender from society for a period of years. Accordingly, I am not satisfied that the sentencing goal of general deterrence would be advanced by incarcerating Mr. Colton as opposed to permitting him to serve his sentence in the community.
54Justice Konyer imposed a two-year less a day conditional sentence with 12 months house arrest and 100 hours of community service. This was to be followed by a two-year probation order, which included another 100 hours of community service.
55R. v. Collins, 2023 ONSC 5768 is a very interesting case. The accused was arrested as part of Project Sunder, which was a lengthy police investigation involving, among other things, wiretap. The group that was targeted was the Eglington West Cripps. The accused ultimately entered guilty pleas to two counts of possession of cocaine for the purpose of trafficking, possession of a loaded handgun, and possession of proceeds of crime. The accused trafficked in the First Nation on Manitoulin Island. He was prohibited from possessing any firearm by virtue of a previous order. In addition to the wiretap evidence, police searched 24.2 grams of cocaine, 46 oxycodone pills and a black digital scale. Four and a half months later, police sought a search warrant based on confidential informant information and wiretap and located 42.89 grams of cocaine as well as a loaded nine-millimeter semi-automatic handgun.
56Prior to the pleas and sentencing, Justice Code presided over two Charter applications and found violation of the accused’s rights. A third application was brought at sentencing on the basis that the accused was “strip searched” when arrested, but Justice Code found that the accused’s rights were not violated. Justice Code later found that the two Charter violations worked to provide “some mitigating effect on sentence but its significance should not be overstated” (underlining Code, J.’s)
57The accused was 25 and 26 years old at the time of the offences and 29 when he was sentenced. His mother was 17 when he was born and she worked as a stripper and sold drugs. The accused was apprehended when he was three and went to live with his father. The accused’s father was also troubled. Fortunately for the accused, his father had taken a new partner who was pro-social and provided him support throughout his life. That said, the accused witnessed domestic violence between his father and step-mother which culminated in separation and a custody dispute for the accused. He was awarded to the step-mother.
58The accused’s birth mother was murdered when he was 13. Her body was not found until he was 16. When he was 14, his best friend was shot and killed. The accused was also the victim of armed robberies involving firearms.
59The accused returned to live with his father from time to time to get out of his crime-ridden neighbourhood. By this time, his father had stabilized and taken up employment. Unfortunately, by this time, the accused had already started to stray into criminal behaviour and he quit school when he was in Grade 11. He started selling drugs, committing break and enters and using drugs. He was also the victim of a gang-related shooting. By the time Justice Code sentenced him, he had a criminal record with thirteen entries.
60At the time of sentencing, the accused had been involved in a long-term relationship with a high school sweetheart. He was released on bail and served a house arrest of a year and eight months, until the house arrest terms were relaxed. At about the same time, he became a father which had a profound effect upon him. The accused also started to develop a significant music business, to the point where at sentencing he was making between $50,000 and $70,000 a year. Finally, the accused started attending counselling for the trauma he experienced in childhood and during his youth.
61After citing numerous authorities, Justice Code stated at paragraph 90:
In my view, the principle that emerges from cases like Whittaker, Sellars, and Hassan is that exceptionally strong mitigating circumstances, relating to both diminished moral culpability and the complete reformation of the accused while on bail, can justify a departure from the normal need for substantial jail sentences in firearms possession and drug trafficking cases.
62At paragraph 95, His Honour noted with respect to denunciation and deterrence:
In my view, there is a “pressing” need for denunciation and deterrence of both the gun crimes and the trafficking of hard addictive drugs in this case. That is because gun crime has reached crisis levels in Toronto and because trafficking in hard addictive drugs is presently of epidemic proportions in Canada. The consequences of both these crimes are tragic and grave. That is why the normal sentences that they attract are lengthy terms in jail, especially in the case of recidivists. However, there are unusual circumstances in this case that have persuaded me, like Backhouse J. in Hassan, that the more effective way to address these “pressing” needs for denunciation and deterrence is to impose a maximum conditional sentence with strict terms that will require Collins to continue the crime prevention work that he is presently doing in his community. If Collins can help to reform and change any number of disadvantaged youths who would otherwise join gangs, acquire illegal handguns, and traffic in hard addictive drugs, then he will be directly participating in the denunciation and deterrence of these activities which is so desperately needed in this city.
63Justice Code also noted at paragraph 96 that although the decision to impose a conditional sentence in the case was based on the “totality” of seven mitigating factors he identified
…the one most significant and essential mitigating circumstance is Collins’ track record of crime prevention community service. It is Collins’ ongoing willingness to engage in this valuable and effective form of community service that can have the deterrent effect that is essential to this kind of case. [Emphasis Code, J.’s]
64In R. v. Landell, 2023 ONSC 6526 the accused entered a plea to one count of possession of cocaine for the purposes of trafficking. The police started investigating the accused in 2016. He was arrested on March 1, 2017 and a search warrant was executed at his residence. The search revealed 257.5 grams of cocaine, 29.5 grams of crack cocaine and $4000 in cash. The accused admitted responsibility.
65A Pre-Sentence report was ordered, which Goodman, J. found was “generally positive”. The accused, however, did not have a drug problem and did not use cocaine. He was essentially a commercial trafficker only. His Honour noted that the accused also “apparently minimized his actions for this crime” in the PSR. The accused was a permanent resident.
66The accused a criminal record which included one dated conviction for possession of a controlled substance, and convictions for assault with a weapon and failing to comply with a recognizance. He last conviction was fifteen years earlier, in 2008, when he received a six-month sentence for aggravated assault. His Honour noted that there had been no breaches while the accused was on release. The accused has seven children. He ”expressed some degree of regret”.
67In imposing a two-year sentence in the penitentiary, Justice Goodman stated at paragraph 45:
Conditional sentence orders should only be granted in rare or exceptional circumstances for drug traffickers of “hard drugs” such as cocaine. While Mr. Evans’ arguments in support of a conditional sentence is within the oft-referred to range, it is clearly not reflective of the principles of denunciation and deterrence arising in this case, when considering the circumstances of the offence and of the offender.
68In R. v. Luff, 2025 ONCJ 712 the accused entered pleas in relation to two sets of charges. In the first set, the accused entered pleas to possession of cocaine, oxycodone and hydromorphone for the purposes of trafficking. This case arose after the accused was arrested on an outstanding warrant. A purse fell out of her vehicle when she was arrested. It contained crack cocaine and scales. In the rear of her vehicle, police located a ”large quantity” of money, cellular phones and Oxycocet pills. Police then obtained a search warrant for her residence and another vehicle and located 38.88 grams of crack cocaine, 40.76 of powder cocaine, 708 Oxycocet pills, 96 hydromorphone pills, 21 morphine pills and more money.
69After this set of charges the accused was released on house arrest bail.
70About two months later, after conducting surveillance on the accused she was arrested and her vehicle was searched. Police located 26.25 grams of cocaine, 67 Dilaudid pills and more money.
71The Crown sought three years in custody. Defence sought a conditional sentence.
72The accused was 33 years of age. She had a “difficult upbringing and had to overcome some challenging life circumstances.”, which included not having a relationship with her biological father, witnessing physical abuse between her mother and her stepfather, being apprehended by the Children’s Adi Society at the age of nine, being subjected to physical and emotional abuse and neglect while in foster care, struggling with school, and unplanned pregnancy at the age of 18. She was involved in a long-term relationship with a partner who engaged in substance abuse, which led the accused to also engage in substance abuse. Justice Fraser found that she engaged in a “sophisticated and sustained drug trafficking operation, done primarily for profit.”
73Justice Fraser noted the following aggravating factors: the trafficking of highly addictive, extremely destructive hard drugs, the significant quantities of illegal drugs seized, and the continued course of conduct despite arrest and release on bail. He found that the accused was a mid-level trafficker. Mitigating factors included her guilty plea, the fact that she had no criminal record, support of her family and friends, engaging in counselling for substance abuse while on bail and once re-incarcerated, 141 days of harsh pre-sentence custody (entitling her to sixty days of so-called “Duncan credit”). His Honour noted a significant collateral consequence of imprisonment would be separation from her 14-year-old daughter.
74His Honour distinguished cases where the Court imposed a conditional sentence on the basis of the significant quantities of cocaine involved and found that a three-year sentence was appropriate. After deduction of Duncan credit (60 days), Summers credit (141 days) and Downes credit (90 days), Justice Fraser imposed a two year sentence in the penitentiary.
75In R. v. Stokes, 2026 ONSC 501, the accused entered a guilty plea to one count of possession of cocaine for the purposes of trafficking. The police engaged in surveillance of the accused, which led to a warrant for his residence. In the course of the search, they located 1176.6 grams of cocaine and $65,000. The accused was 20 at the time that he committed the offences and 22 when he was sentenced. He was raised in a ”dysfunctional environment”, owing to his mother’s extremely deprived childhood. His father was an alcoholic and had mental health problems. One night the accused woke up and found his home on fire. His father had been intoxicated. He left his father’s residence and started selling cocaine.
76The accused was on bail for almost three years, without reoffence. The first year was a house arrest. It was varied to allow for a curfew. His father was his surety. Unfortunately, his father commit suicide about six months before he was sentenced. The accused completed a program in business at community college. He got a job two and half years before he was sentenced as a trailer mechanic. He had letters of support from family, and friends. When given the chance to address the Court, he expressed “deep remorse”.
77Justice Boswell found that the accused was a mid-level trafficker and as such, the normal range of sentence was between five and eight years in the penitentiary. Despite this, the Crown sought a 26 month sentence, having regard to the accused’s background, his attempts to turn his life around, and the significant length of time that he was on bail.
78Defence sought a conditional sentence.
79His Honour concluded at paragraph 49:
After much anxious consideration, I have concluded that a conditional sentence of two years less one day, with strict conditions, coupled with a three-year period of probation, is capable of meeting the objectives of denunciation and deterrence, and at the same time recognizes Mr. Stokes’ exceptional efforts towards rehabilitation. In my view, incarcerating Mr. Stokes in the penitentiary would be counter productive to his rehabilitation and is not necessary to meet the objectives of denunciation and deterrence.
Summary of Mitigating Factors
80I find the following factors are mitigating:
a) the accused has entered a guilty plea;
b) the accused is clearly remorseful;
c) the accused has strong family support;
d) by all indications, the accused has abstained from using substances since his most recent release in January 2025 (with the exception of marihuana which he uses to assist him to sleep);
e) the accused has stopped associating with negative influences that encouraged his drug use. He now keeps to himself and his family;
f) the accused has developed COPD. Although this can be a serious debilitating illness, there is no evidence that the custodial authorities would not be able to accommodate it;
g) the accused has anxiety and depression and has considered suicide in the past. He had difficulty coping with the loss of his step-father;
h) the accused has started a course of treatment for his drug problem;
i) the accused has been on restrictive bail for 18 months without reoffence;
Summary of Aggravating Factors
81I find the following factors are aggravating:
a) Cocaine, methamphetamine and oxycodone are highly addictive and destructive hard drugs;
b) the amount of cocaine seized is significant, particularly for Renfrew County. That said, the accused is a street-level trafficker. I find that he would be above the Woolcock range but below the range normally associated with mid-level traffickers. He also meets the definition of an addict-trafficker. His engagement in the drug trade is not solely for profit;
c) there are two incidents before the Court. The accused was released on bail after the first incident and he reoffended. This is highly aggravating. This is tempered by his progress since release after the second incident;
d) the accused has a criminal record. This is tempered somewhat by the fact that the most time he has ever spent in custody is 30 days;
e) the accused had a prior opportunity to attend treatment for his drug problem after his 2008 convictions. The Probation Officer questioned his commitment to treatment. This is tempered by the fact that the accused now appears to be committed to treatment;
Collateral Factors
82The following factors are collateral factors. I must consider them, and if I can impose a sentence that mitigates them. The sentence imposed, however, cannot be made unfit by consideration of these factors:
a) the accused’s mother is in ill-health and she relies upon him for support;
b) the accused’s sister is paraplegic and she relies upon him for assistance during family visits;
c) the accused has three children, two of whom are under the age of 18. He has renewed his relationship with them and these efforts would be jeopardized by his incarceration.
The Appropriate Sentence
83Having considered the aggravating, mitigating and collateral factors of sentencing in this case, on balance, I find that a conditional sentence is a fit sentence.
84Were I to base his sentence solely on the quantity of drugs seized and the aggravating factor of having committed the second round of offences while on bail for the first, I would have found that the appropriate global sentence in this case, before consideration of Downes credit for onerous bail terms and before considering the accused’s substantial efforts to turn his life around at around 30 months.
85With respect to Downes credit, had I been sentencing the accused to a carceral sentence, I would have given him credit for six of the 18 months he spent on house arrest with electronic monitoring. I note that Downes credit is a matter of the sentencing judge’s discretion: R. v. Downes, 2006 3957 (Ont. C.A.). At paragraph 37 of Downes, the Court of Appeal made it clear that I must consider the length of time spent on house arrest, the stringency of the conditions, the impact on the offender’s liberty, and the offender’s ability to maintain normal relationships, employment and daily activities.
86On this basis, a reduction of a 30 month sentence to 24 months brings him within a hair’s breath of the maximum conditional sentence range. Thus, a conditional sentence, which may have initially had the gloss of an exceptional sentence is not necessarily so exceptional after all.
87I therefore find that the accused should serve a Conditional Sentence of two years less one day.
88I will order that 12 months of that to be further house arrest.
89I will order the following six months be a curfew between 10 pm and 6 am.
90I will also require the accused to comply with conditions for counselling, a condition not permitting him to possess drug paraphernalia, a condition requiring him to perform 100 hours of community service, and a weapons prohibition.
91Upon completion of the conditional sentence, I will place the accused on probation for a period of twelve months. The terms will be exactly the same as the conditional sentence order, except there of course will be no house arrest and no curfew.
92I will impose a section 109 firearms prohibition for ten years.
93The property seized will be forfeit to the Crown.
94I will require the accused to give a sample of his DNA on the national DNA databank.
95This sentence is imposed on both possession for the purpose charges concurrent.
96With respect to the breach and the simple possession charges, I will suspend the passing of sentence and impose one year probation on each count concurrent.
97Given that the accused is not working, I will waive the Victim Fine Surcharge.
Released: June 5, 2026
Signed: Justice J.R. Richardson