COURT OF APPEAL FOR ONTARIO

DATE: 2026-02-06

DOCKET: COA-23-CR-0293 & COA-24-CR-0030

Thorburn, George and Dawe JJ.A.

DOCKET: COA-23-CR-0293

BETWEEN

His Majesty the King — Respondent

and

Phillippe Jeannotte — Appellant

DOCKET: COA-24-CR-0030

AND BETWEEN

His Majesty the King — Respondent

and

Jared Herrick — Appellant

Breana Vandebeek and Caraid McGinty, for the appellant Phillippe Jeannotte

Michelle Psutka, for the appellant Jared Herrick

Manasvin Goswami, for the respondent

Heard: December 19, 2025

On appeal from the sentences imposed by Justice Patrick Boucher, R.S.J. of the Superior Court of Justice dated March 2, 2023 (COA-23-CR-0293) and September 19, 2023 (COA-24-CR-0030).

Thorburn J.A.

I. OVERVIEW

[1] Mr. Jeannotte and Mr. Herrick were both addicted to fentanyl. At the request of their fentanyl dealer, they set a Sudbury rowhouse on fire using Molotov cocktails. They did so in exchange for fentanyl, money in Mr. Herrick's case, and in Mr. Jeannotte's case, having his drug debt forgiven. Although they were told the occupants of the house would not be home, four individuals were inside when the fire started. Three of the four occupants died, and the fourth person was seriously injured.

[2] Mr. Jeannotte and Mr. Herrick each pleaded guilty to three counts of manslaughter, and one count of arson causing bodily harm.

[3] On March 2, 2023 Mr. Jeannotte was sentenced to a 16-year term of imprisonment with ancillary orders [^2]. On September 19, 2023, Mr. Herrick was sentenced to a 17-year term of imprisonment with ancillary orders [^3].

[4] The sentencing judge also imposed restitution orders on each of Mr. Jeannotte and Mr. Herrick, requiring them to pay $250,000 each to the City of Greater Sudbury for damage to the properties. The fire caused between $250,000 and $300,000 in damage to several residential homes owned by the City of Greater Sudbury. The targeted property was destroyed, and two adjoining units also became uninhabitable, forcing families to evacuate from their homes.

[5] Both appellants appeal their sentences.

II. THE SENTENCING JUDGE'S REASONS

[6] Before deciding the terms of imprisonment to be imposed on both appellants, the sentencing judge correctly cited the sentencing objectives set out in s. 718 of the Criminal Code namely: (a) to denounce 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 the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. He also noted the importance of proportionality in imposing a sentence.

[7] When sentencing both appellants, the sentencing judge first considered the impact on the victims and the specific circumstances of each offender. He noted that Mr. Jeannotte developed addiction problems in high school but has the support of his parents and his girlfriend. Mr. Jeannotte was also the victim of a group assault while he was an inmate at the Sudbury Jail, which police allege was orchestrated by the fentanyl dealer.

[8] The sentencing judge found that Mr. Herrick also had a difficult upbringing. He had been using cocaine since the age of 19, was diagnosed with post-traumatic stress disorder, opioid use disorder, stimulant use disorder, and major depressive disorder with anxious distress. The psychologist who prepared the report believed Mr. Herrick to be a good candidate for psychological treatment and rehabilitation.

[9] The sentencing judge also considered aggravating and mitigating factors, some of which were common to both offenders.

[10] In both cases the sentencing judge found that there were serious aggravating factors including: (a) this was a deliberate arson in a home resulting in three deaths and bodily harm to a fourth victim; (b) the appellants were reckless to the presence of people in the targeted residence, taking no steps to verify their fentanyl dealer's assertion that no one would be in the home; (c) they were reckless as to the safety of those in neighbouring homes; (d) three units, including the targeted residence became uninhabitable, and it will cost at least $250,000 to make them habitable again; and (e) this offence was committed to exact the fentanyl dealer's revenge, and for the purpose of obtaining more fentanyl and clearing a drug debt (in Mr. Jeannotte's case), and to obtain cash and fentanyl (in Mr. Herrick's case).

[11] The sentencing judge also identified common mitigating factors, included early expressions of remorse by both appellants that were genuine and profound, and their guilty pleas.

[12] The sentencing judge also considered some aggravating and mitigating factors that were unique to each offender.

[13] The sentencing judge noted that although Mr. Jeannotte was not a first-time offender, his prior record was not significant and that it had minimal impact and was therefore not a serious aggravating factor.

[14] In terms of mitigating factors, the sentencing judge noted Mr. Jeannotte's past and continuing efforts to address his addictions and his work history in a skilled trade. He also noted that Mr. Jeannotte waived his bail hearing and his preliminary inquiry.

[15] In Mr. Herrick's case, the sentencing judge considered Mr. Herrick's longer criminal record as an additional aggravating factor especially because he was prohibited from possessing an explosive substance at the time of these offences.

[16] The sentencing judge held, however, that Mr. Herrick's past and present efforts to address his addictions and mental health were mitigating factors.

[17] The sentencing judge considered the appropriate sentence for each offender in light of the principle of proportionality and various cases put forward by the Crown and defence counsel.

[18] Mr. Jeannotte was sentenced to 16 years imprisonment, less Summers credit, for an effective sentence of 13 years. Mr. Herrick was sentenced to 17 years imprisonment, less Summers credit, for an effective sentence of 13.5 years. As part of the sentences, the sentencing judge imposed a $250,000 restitution order against each of Messrs. Jeannotte and Herrick.

III. THE GROUNDS OF APPEAL

[19] Each appellant seeks leave to appeal his sentence, and asks that this court reduce the sentence and quash the restitution order that pertains to him.

[20] The appellants claim the sentencing judge made the following errors:

1. He failed to consider, or give proper effect to, certain factors as mitigating or as relevant to moral blameworthiness, including (i) Mr. Jeannotte's drug addiction, (ii) Mr. Herrick's drug addiction and mental health issues; (iii) that Mr. Jeannotte was assaulted because he cooperated with authorities and has undertaken steps towards rehabilitation; and (iv) that like Mr. Jeannotte, Mr. Herrick waived his preliminary inquiry;

2. The sentences imposed were demonstrably unfit; and

3. The restitution orders were made without considering the appellants' ability to pay.

[21] Both appellants seek to admit fresh evidence on appeal. Among other things, the appellants adduce evidence in the form of emails from Crown counsel which, they say, speak to their cooperative testimony for the prosecution at the trial of the fentanyl dealer who instigated the arson plan, and the critical role their testimony played in securing his conviction on three counts of first degree murder and one count of arson causing bodily harm: R. v. Stinson, 2024 ONSC 4612, at para. 1. The fentanyl dealer's trial took place after Mr. Jeannotte and Mr. Herrick's sentences were imposed, so this evidence was not available at the time of sentencing.

[22] The Crown opposes the admission of this evidence.

IV. THE TEST FOR SENTENCE APPEALS INCLUDING RESTITUTION ORDERS

[23] Sentencing decisions are entitled to deference unless there is an error in principle, a failure to consider a relevant factor, or the erroneous consideration of an aggravating or mitigating factor which had an impact on the sentence imposed, or where the sentence is demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 39-44; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 at paras. 123-126. A sentence is demonstrably unfit if it constitutes an unreasonable departure from the principle of proportionality: Lacasse, at paras. 53-55.

[24] Per s. 738(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, a sentencing judge may order that the offender make restitution where an offence has resulted in damage to, or the loss or destruction of property. An order under s. 738 is discretionary: R. v. Trac, 2013 ONCA 246, 115 O.R. (3d) 424, at para. 32; R. v. Devgan (1999), 44 O.R. (3d) 161 (Ont. C.A.), leave to appeal refused, [1999] S.C.C.A. No. 518, at para. 28. Section 739.1 of the Criminal Code provides that an offender's "financial means or ability to pay" does not prevent the court from making a restitution order.

[25] However, s. 739 does not state that the offender's ability to pay is irrelevant. In interpreting this provision, this Court has noted the significant impact that a restitution order can have on an offender's prospects for rehabilitation and has therefore instructed judges to "weigh and consider" an offender's ability or inability to pay before imposing such an order: R. v. Robertson, 2020 ONCA 367, at paras 7-8; R. v. Biegus (1999), 141 C.C.C. (3d) 245 (Ont. C.A.), at para. 22.

[26] Restitution orders should be imposed with restraint and caution: Robertson, at para. 7; Devgan, at para. 26, citing R. v. Zelensky, [1978] 2 S.C.R. 940.

V. ANALYSIS

Whether the Sentencing Judge Considered the Relevant Mitigating Factors

[27] I see no error in the sentencing judge's assessment of the mitigating factors in the case of either appellant. Specifically, he did not fail to consider the appellants' addictions, or in Mr. Herrick's case, his mental health issues.

[28] The sentencing judge accurately set out the defence position on the causal link between the appellants' addictions, mental health issues and their offending; he reviewed the evidence of the appellants' addictions and mental health; and he took this evidence into account when assessing their moral culpability, rehabilitative prospects, and the appropriate sentence. He reviewed in detail the appellants' past and present efforts to address their addictions and in Mr. Herrick's case, his mental health issues, and he held that those efforts were a relevant mitigating factor that spoke to their rehabilitative prospects.

[29] Ultimately, after considering these submissions, the evidence and other mitigating factors, the sentencing judge concluded that each appellant's addictions "did not prevent him from making the choices he made and taking the steps he took."

[30] Therefore, in the eyes of the sentencing judge, their addictions or mental health issues did not play a central role in the commission of the offences, distinguishing this case from those cited by the appellants: see R. v. Fabbro, 2021 ONCA 494; R. v. Lojovic, 2025 ONCA 319, 177 O.R. (3d) 327.

[31] He also held that the appellants had a high level of moral culpability despite their addictions. This was a planned and deliberate crime, committed by two offenders in a position to refuse to deploy incendiary devices in a home attached to two other houses in exchange for money, drugs, and, in Mr. Jeannotte's case, clearing a drug debt. In that context, it was also not an error for the sentencing judge to treat the motive behind the offences as aggravating: see R. v. Kostyk, 2014 ONCA 447, 312 C.C.C. (3d) 101, at paras. 106-8; R. v. Sliwinski, 2023 ONSC 5329, at paras. 13, 23-25, and 33.

[32] There is "no general proposition that a person who commits a crime to obtain drugs is less morally blameworthy than a person who does so for other reasons" as drug addiction is not a general excuse to break the law: R. v. Burgler, 2024 ONCA 176, at para. 5.

[33] Moreover, before imposing the sentence on Mr. Jeannotte, the trial judge specifically noted that he had "carefully considered" Mr. Jeannotte's personal circumstances including the "jailhouse assault" he allegedly suffered because he cooperated with the prosecution.

[34] The sentencing judge also considered Mr. Jeannotte's rehabilitative efforts in his review of his personal circumstances in arriving at his sentences. The weight given to these factors by the sentencing judge is owed deference: Lacasse, at para. 49.

[35] Nor did the sentencing judge err in failing to mention Mr. Herrick's waiver of his preliminary inquiry.

[36] The failure to explicitly mention a mitigating factor does not automatically lead to the conclusion it was not considered: R. v. Lusted, 2023 ONCA 374, at para. 13; R. v. Navarathinam, 2022 ONCA 377, at para. 7.

[37] When the reasons are read within the context of the sentencing decision, it does not appear that the sentencing judge overlooked Mr. Herrick's waiver. He recognized Mr. Herrick's guilty plea as a mitigating factor, and the waiver was closely intertwined with the plea. Furthermore, he did not mention it as a factor to distinguish the appellants in his detailed parity analysis. In any event, the failure to consider the waiver of a preliminary inquiry alone, would not affect the overall sentence in this case: Lacasse, at para. 44; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 164.

Whether the Sentences Imposed were Demonstrably Unfit

[38] Nor were the terms of the sentences imposed on either appellant demonstrably unfit.

[39] The sentences imposed did not demonstrate an unreasonable departure from the sentences imposed by this court in R. v. Clarke (2003), 172 O.A.C. 133 and R. v. Atherley, 2009 ONCA 195, as the appellants submit. The crimes in this case were more serious as, unlike the above cases cited by the appellants, these crimes resulted in three deaths and a fourth injury, and several other people being displaced in tragic circumstances with far-reaching consequences for many families.

[40] These are meaningful distinctions which demonstrate that the sentencing judge was not bound to be guided by either case.

[41] The sentencing judge considered several cases in his reasons, including Clarke, in arriving at the sentences. He was not obliged to discuss all the decisions put forward by defence counsel on sentencing submissions: R. v. Beckford, 2021 ONCA 56, at para. 11. He recognized that in determining a proportionate sentence, he was not bound by sentencing ranges but was bound to consider parity. The sentencing judge had the difficult task of considering the cases put forward by the parties, none of which were precisely on point, in arriving at an appropriate sentence.

[42] With that in mind, these sentences do not unreasonably depart from those imposed in similar cases. Given his determination that the appellants exhibited high degrees of moral blameworthiness, and that denunciation and deterrence factored significantly into the sentence determination, the sentencing judge expressed and exercised proportionality in arriving at the sentences. For these reasons, we do not agree that the sentences were unfit.

Whether the Restitution Orders Should be Quashed

[43] As noted above, sentencing judges have discretion under s. 738(1)(a) of the Criminal Code to order restitution where an offence has resulted in damage, loss, or destruction of property. However, the ability to pay must be weighed and considered.

[44] The appellants claim the sentencing judge failed to weigh or consider the ability of either appellant to pay such that the restitution orders were inappropriate.

[45] During Mr. Jeannotte's sentencing proceedings, the Crown made a brief submission about a restitution order. Afterwards, the sentencing judge made no inquiries of Mr. Jeannotte's counsel regarding a restitution order, nor did he make any inquiries into Mr. Jeannotte's present or future ability to pay a restitution order.

[46] During Mr. Herrick's sentencing proceedings, neither party addressed restitution orders in their submissions. The sentencing judge made no inquiries about Mr. Herrick's ability to pay, nor did he review any relevant evidence in his reasons. The only information about Mr. Herrick's finances and ability to secure employment came from the presentence report, the psychologist's report, and the appellant's statement to the court. Mr. Herrick said he was "not a good employee as he was not reliable due to his drug use." Mr. Herrick's mother confirmed his difficulty with keeping jobs, surmising that it was due to his addiction, and right before these offences, Mr. Herrick was fired from a new job.

[47] In both sets of reasons, the sentencing judge simply stated that: "I am also making a stand-alone restitution order which requires you to pay $250,000 to the City of Greater Sudbury."

[48] On release, it is likely true that each appellant will "continue to have to battle his addictions as he seeks to become a productive member of society," while hampered with a criminal record and a lengthy period in custody: Robertson, at para. 13.

[49] It is not enough for the sentencing judge to merely be aware of an offender's ability to pay: Robertson, at para. 8. As Weiler J.A. explained in R. v. Castro, 2010 ONCA 718, 102 O.R. (3d) 609, at para. 23: "Care must be taken not to simply add a restitution order to a sentence of imprisonment which, in itself, is a fit punishment for the crime, as this can amount to excessive punishment and offend the totality principle": See also R. v. Mangat, 2021 BCCA 450, 408 C.C.C. (3d) 355, at paras. 54-55. A restitution order should not be made as a "mechanical afterthought" to a custodial sentence: Castro, at para. 23; see also R. v. Nanos, 2013 BCCA 339, 342 B.C.A.C. 22, at para. 14.

[50] The sentencing judge did not weigh and consider the appellants' ability to pay in a way that suggested a restrained and cautioned approach. Instead, the sentencing judge ordered each of Mr. Jeannotte and Mr. Herrick, both of whom continue to struggle with addiction and are already subject to 16 and 17-year sentences, to pay $250,000 each to the City of Greater Sudbury, which together is double the estimated cost of the damage. He did so without considering their ability to pay: Robertson, at para. 11. Nor was there consideration of the effect that this restitution order would have on their prospects for rehabilitation.

[51] I note that the restitution order in this case is about 15 times higher than that in Robertson, where this Court held that the order undermined the offender's prospects for rehabilitation and quashed the order: Robertson at paras. 12-16.

[52] To impose such a crushing order, seemingly as an afterthought, demonstrates an error. For these reasons, I would quash both restitution orders.

Whether the Fresh Evidence Should be Admitted

[53] Each appellant claims that his assistance with the prosecution of their fentanyl dealer after sentencing should also be considered in determining the fitness of his sentence. Mr. Jeannotte also seeks to admit a letter of employment for when he is released from custody and correctional records demonstrating his progress in federal custody.

[54] The proposed evidence does not meet the criteria for admissibility in Palmer v. The Queen, [1980] 1 S.C.R. 759, because this evidence would not have affected the result.

[55] Finality in sentencing is important: R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 30. Addressing these developments might be better heard and considered at the parole board, not appellate courts. Reducing fit sentences on appeal because of post-sentencing cooperation with the authorities also risks creating incentives for offenders to delay cooperation until after they are sentenced.

[56] Finally, Mr. Jeannotte's employment letter and correctional records, post-sentencing rehabilitative efforts and prospects will only exceptionally meet the fresh evidence test and will generally be a matter for correctional authorities who administer the sentence: Sipos, at para. 43; R. v. Bourdon, 2024 ONCA 8, 95 C.R. (7th) 219, at para. 31. His efforts may be a factor to his credit as his eligibility for parole approaches: R. v. E.M.M., 2021 ONCA 436, at para. 40; R. v. L.S., 2017 ONCA 685, 40 C.R. (7th) 351, at para. 117.

[57] Therefore, I would not admit the fresh evidence.

VI. DISPOSITION

[58] For the above reasons, I would allow the appeal in part, I would grant leave to appeal the sentences, but dismiss both sentence appeals, save for the restitution orders, which I would quash.

Released: February 6, 2026 "J.A.T"

"Thorburn J.A." "I agree. J. George J.A." "I agree. J. Dawe J.A."

[^1]: On May 30, 2025, on a joint request made by the parties in case management, Dawe J.A. lifted the s. 486.5(1) publication ban in R v. Herrick (COA-24-CR-0030). A similar order lifting the s. 486.5(1) publication ban was not made in R v. Jeannotte (COA-23-CR-0293). While these reasons were under reserve, we sought the parties' positions on whether the s. 486.5(1) publication ban should also be lifted in the Jeannotte appeal. The parties were in agreement that such an order should be made. We therefore order that the s. 486.5(1) publication ban in Jeannotte be lifted.

[^2]: Ancillary orders include a DNA order, a s. 109 order, and a no-communication order.

[^3]: Ancillary orders include a DNA order, a s. 109 order, and a no-communication order.