Court File and Parties

Ontario Court of Justice

Date: October 2, 2025

Court File No.: Central West Region - Brampton – 25-31102397

Between:

His Majesty the King

— and —

Tony Imanuel

Before: Justice Andrew F. Falls

Heard on: September 22, 2025

Reasons for Sentence delivered on: October 2, 2025

Counsel:

• M. Bedini, counsel for the Crown
• M. Chernovsky, counsel for the defendant, Tony Imanuel

Reasons For Sentence

A. Falls, J.:

The Circumstances of the Offence

[1] The accused pleaded guilty to importing a Schedule 1 substance, ketamine, pursuant to s. 6(1) of the Controlled Drugs and Substances Act.

[2] On March 7, 2025, the accused arrived at the Toronto Pearson Airport from Frankfurt, Germany. Authorities ultimately discovered 10 packages concealing 7.985 kg of ketamine in the accused's suitcase.

The Circumstances of the Offender

a) Background

[3] I was aided in understanding the accused's background through counsel's submissions.

[4] The accused is 42 years old. He was born in Suriname. He has a high school education, which he upgraded to qualify as a forklift driver.

[5] The accused is married with five children, ranging in age from seven to twenty-two years old.

[6] Before this offence, he was employed full-time as a forklift driver in Belgium. On weekends, he worked with his wife cleaning hotels.

[7] The accused does not have a criminal record.

b) Explanation for the Offence

[8] Seven months before this offence, the accused became ill. He was unable to work, and his financial situation became strained. These financial pressures were the motivating influence behind the commission of this offence. He also experienced some pressure to carry the drugs; however, it did not rise to the level of raising a legal defence of duress.

[9] The accused has accepted responsibility for his offence. During the sentencing hearing, he spoke of his separation from his family and the loss he is feeling.

[10] Although I am not sure that he fully appreciates the seriousness of the offence he has committed, I do accept that he understands the resulting consequences of his actions.

Positions of the Parties

[11] Counsel provided helpful, though divergent, sentencing submissions.

[12] The Crown submitted that a custodial sentence is appropriate. The Crown asked this court to impose a sentence of eight years jail in addition to:

1. A s. 109 weapons prohibition order for 10 years.
2. A DNA order - s. 487.051, and
3. A forfeiture order.

[13] Defence Counsel asked me to consider a sentence of four years less enhanced presentence custody. Should I accept Counsel's argument regarding pre-sentence custody, the accused's net sentence would be two and one-half years. Counsel submitted that this is an appropriate sentence for this offence and the accused's circumstances. Counsel highlighted the circumstances of pre-trial detention at the Maplehurst Correctional Complex. In addition, Counsel pointed to the accused's personal circumstances as a factor deserving of significant mitigation.

Legal Principles & Analysis

[14] The Criminal Code instructs that the goal of any criminal sentence is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society. (See s. 718.)

[15] Sentencing judges attempt to achieve this goal by imposing just sanctions that address one or more of the traditional sentencing principles outlined in the Criminal Code. These include denunciation, general and specific deterrence, rehabilitation, making reparation to victims of crime, and promoting a sense of responsibility in offenders, as well as an acknowledgment of the harm they have caused to the community and specific victims within it. (See s. 718(a) – (f))

[16] Ultimately, the fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence committed and the degree of responsibility of the person who committed it. (See s. 718.1) This means that, for the sentence I impose to be appropriate, it must be tailored to the accused's circumstances, and the circumstances of the offence he committed.

[17] Section 718.1 of the Code ensures that proportionality is the fundamental principle of sentencing. However, proportionality is not the sole principle to be considered. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.[1]

[18] Similar sentencing principles can be found in s. 10(1) of the Controlled Drugs and Substances Act.

[19] As a sentencing tool, imprisonment is to be used only as a last resort when required by the circumstances of the crime and the background of the offender.[2] The principle of restraint requires that the shortest period of incarceration that will meet the penological aims in a given case is the appropriate length for a jail sentence.[3]

Sentencing for Importing Ketamine

[20] Courts have consistently emphasized the importance of deterrence and denunciation in cases involving the illegal importing of drugs.

[21] In considering the appropriate range of sentence, I am mindful of the caution in Lacasse, at paragraph 60, that "sentencing ranges are primarily guidelines, and not hard and fast rules".

[22] As noted in Nasogaluak at paragraph 44:

[I]t must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred.

Nature of Ketamine

[23] The defence did not challenge the Crown's characterization of the nature of ketamine.

[24] Ketamine is a Schedule 1 substance under the Controlled Drugs and Substances Act.

[25] The cases provided by the Crown describe ketamine as a serious drug that poses a danger to society. On a scale of seriousness, ketamine is less dangerous than fentanyl, heroin, or cocaine; however, it is more serious than marijuana. It is more closely compared to MDMA or ecstasy.[6]

[26] Though ketamine possesses fewer addictive qualities,[7] it is sometimes used illegally with other, more serious drugs. Ketamine can produce feelings of euphoria and an out-of-body experience in the user. Ketamine is sometimes used as a party drug and a date rape drug.

[27] Ketamine is dangerous to human health.[8]

[28] I accept this to be an accurate representation of both the nature of and dangers associated with ketamine.

Appropriate Range of Sentence

[29] The maximum sentence for the importation of ketamine is life in prison.

[30] There are not many reported cases considering an appropriate sentence for the importation of ketamine.

[31] The Crown helpfully provided several cases considering the appropriate sentence in cases involving ketamine. Many of the cases referred to consider an appropriate range for possession for the purpose of trafficking ketamine.

[32] The Crown submits that an appropriate range of sentence for importing ketamine is between six and ten years, depending on relevant factors.

[33] As a starting point, I will note that on a scale of culpability, the importation of drugs into Canada is more serious than trafficking.[9] Some courts have considered importing to be equally culpable as the production of drugs. In both instances, the offender is the principal means for the drug to become available to a consumer.[10]

[34] The only case provided by the Crown for importing ketamine was R v Kwok from the British Columbia Court of Appeal. The court imposed a twelve-year custodial sentence for two accused convicted of importing and possession for the purpose of trafficking. An eight-year concurrent sentence was imposed for the possession offence. The Crown acknowledges that Kwok is factually distinct in that it was a sentence imposed after trial for importing over 1,000kg of ketamine. The accused in that case displayed some level of organization and higher involvement in the importing.

[35] Nonetheless, the Kwok case is helpful in considering the harmfulness of ketamine. An important aspect that the Ontario Court of Appeal[12] has adopted.

[36] In 2022,[13] the Ontario Court of Appeal considered the appropriate sentence for possession for the purpose of trafficking of 1.39 kg, 1.6 kg & 11 grams of liquid ketamine. The court considered that a sentence of five to eight years would normally be imposed for possession of that quantity. The court saw no basis to interfere with the trial judge's six-year sentence after a jury conviction.

[37] In R v Lin,[14] the Ontario Court of Appeal reduced a 15½-year sentence to a global sentence of 10 years for production and possession for the purpose of trafficking of 60 kg of ketamine. The court noted that a "sentence of between five and eight years would normally be imposed for possession for the purpose of trafficking in ketamine, with a slightly higher range, perhaps six to ten years, for production of ketamine." The Court of Appeal, citing Kwok, remarked on the serious nature of ketamine, noting that importing is a more serious offence than trafficking. The court further stated at paragraph 31 that an eight-year sentence for production and a six-year consecutive sentence for trafficking would have been appropriate, but for the specific circumstances of the offender.

[38] The Crown provided three additional cases[15] to illustrate how other courts have imposed sentences for possession for the purpose of trafficking of ketamine. Each of these cases predated the Ontario Court of Appeal's recent decisions. In Sadikov, a three-year sentence was imposed for 1 kg. In Phan,[16] a conditional sentence of two years less one day was imposed for 600 grams of ketamine. Finally, in Zhang, for a pill pressing operation involving seized substances that included ketamine mixed with other illegal drugs and 245 grams of ketamine powder, the court imposed a three-year concurrent sentence for possession for the purpose of trafficking of ketamine.

[39] Drawing guidance from these authorities and considering that the importation of ketamine is equally culpable as its production, I accept the Crown's position that the appropriate range of sentence for importing ketamine is between 6 and 10 years.

Aggravating & Mitigating Factors

[40] As I noted, in any sentencing, the court must identify and consider the principles and objectives of sentencing as set out in sections 718 and following of the Criminal Code. A court must consider the aggravating and mitigating factors of the crime, the impact on any victim, the circumstances of the offence and the circumstances of the offender. Ultimately, a court must balance all these factors and arrive at a fair and proportionate sentence. In doing so, the Court should strive to impose sentences similar to those in other cases of a similar nature, recognizing that no two cases are identical.

[41] Listing the applicable aggravating and mitigating features assists me in evaluating this case properly and imposing a sentence that is just and appropriate. I have noted the following aggravating and mitigating factors in this case.

[42] I find the following to be aggravating facts:

1. The circumstances and seriousness of the offence:
   • (i) The accused imported just less than 8kg of ketamine into Canada. This is a large quantity.
   • (ii) Ketamine is classified as a Schedule 1 substance. While it is not considered the most serious Schedule 1 substance, Parliament has designated it as such because of its danger and potential harm to society.
   • (iii) By bringing this drug into Canada, the accused has breached the integrity of Canada's borders. His actions created a risk that a serious substance would become available to Canadian consumers.

[43] I find the following to be mitigating factors:

1. The accused pleaded guilty. His guilty plea is an expression of his remorse.
2. His guilty plea has relieved the Crown from prosecuting this offence. This is a significant savings of court time.
3. The accused is a first-time offender with no criminal record.
4. The accused has family support. He is married with five children.
5. He is educated and commonly gainfully employed, working two jobs.
6. The accused's pre-sentence detention at the Maplehurst Correctional Complex has been difficult.
7. The accused has expressed an understanding of the consequences of his actions, what caused them, and how he can avoid a repetition of this criminal activity. I accept his insight as genuine, and I accept the sincerity of his statement to the court. I have no hesitation in concluding that he regrets his conduct.
8. Further, the accused's moral culpability for committing this offence is to some degree mitigated by the pressure he felt to commit the offence.

[44] Though not a mitigating factor, I have considered that the accused's involvement in this offence was as a courier. There is no suggestion that he was part of any organized enterprise.

Pre-Sentence Custody

Summers Credit

[45] The accused has served 210 days of pre-sentence custody. Enhanced on a 1.5:1 basis, that is 315 days.

Duncan Credit

[46] Defence Counsel argued that the accused should be given enhanced credit for the conditions he experienced while in custody at the Maplehurst Correctional Complex.

[47] The burden falls on the accused, on a balance of probabilities, to establish facts supporting the impact of the conditions in accordance with s. 724(3) of the Criminal Code of Canada.

[48] The granting of this credit is not determined by a mathematical formula. It is the obligation of the sentencing judge to review all relevant factors and decide what credit, if any, should be given.

Maplehurst Correctional Complex

[49] According to records obtained from the Maplehurst Correctional Complex, as of September 16, 2025, the accused spent 170 days in pre-sentence custody. Ninety-seven of those days, or 57% were spent in lockdown – 36 full days of lockdown and 61 partial lockdowns.

[50] The accused was triple-bunked for 149 of the 170 days – 88% of his stay at the Maplehurst Correctional Complex. He has no instances of misconduct.

London – Elgin-Middlesex Detention Centre

[51] The accused spent a shorter period in detention at the Elgin-Middlesex Detention Centre. Evidence was not presented about the conditions of his detention in that facility.

Total Lockdown Calculation & Enhanced Credit

[52] For this sentencing, neither counsel sought to differentiate between the full and partial lockdowns.

[53] In total, the accused has spent 97 days in lockdown at the Maplehurst Correctional Complex.

[54] Defence Counsel invited me to take a punitive view of the accused's custodial conditions. Counsel asked me to publicly indict the institution and the Solicitor General for years of inaction to address the deplorable conditions at the Maplehurst Correctional Complex. Counsel argued that it has been years, and circumstances have not changed. The Court's condemnation should be reflected in an increased tariff imposed for harsh conditions.

[55] Defence Counsel submitted that I should consider applying a 3:1 ratio for lockdown credit.

[56] The Crown conceded that enhanced credit should be given in consideration of the lockdown records. The Crown left the determination of the amount of credit in my hands.

[57] I have carefully considered the defence submission. Although a court might soon be prepared to make such a pronouncement, I am not prepared to do so without a more comprehensive evidentiary record. The only evidence before me consisted of the lockdown records, along with Defence Counsel's submissions. This evidence was uncontested. No evidence was presented regarding institutional considerations, such as evidence heard by other courts deciding this issue. Aside from a general reference in the records that "All lockdowns are the result of Correctional Officer/Staff Shortages or Redeployment, Searches, Contraband Issues, Unscheduled Maintenance Repairs on Unit etc.", I do not know why the accused was subjected to lockdown at the Maplehurst Correctional Complex. The Crown did not provide any additional submissions on this issue. Aside from counsel's helpful submissions, no authority was provided on how other courts have considered the conditions at the Maplehurst Correctional Complex.

[58] In short, I lack the necessary breadth of knowledge to take judicial notice of longstanding systemic issues at the Maplehurst Correctional Complex. I am prepared to take judicial notice that a current problem exists. However, in my view, a more comprehensive evidentiary record is required. The evidence before me does not meet this threshold.

[59] I do not say this to excuse the conditions the accused endured. I am prepared to acknowledge the conditions he experienced and view them as mitigating, however, not to the extent as requested by counsel.

[60] In support of this position, I rely on my local knowledge as a presiding Justice in Peel, where the Maplehurst Correctional Complex serves. I am also aware of recent decisions that describe the ongoing unacceptable conditions within Maplehurst.

[61] In a recent decision, Justice Mirza[17] of the Superior Court of Justice stated:

[70] …In R v Duncan, 2016 ONCA 754, the Ontario Court of Appeal agreed that the appropriate circumstances, particularly harsh presentence incarceration conditions, can provide mitigation apart from and beyond the one point five credit referred to in section 719(3.1) of the Code. In considering whether any enhanced credit should be given, the court will consider both the conditions of the pre-sentence incarceration and the impact of those conditions on the accused.

[71] I can reasonably infer how hard it has been to be in Maplehurst for him over the almost three years. Every judge and justice of the peace in this Court routinely hears about the hardships from frequent lockdowns, triple-bunking, violence and health concerns at Maplehurst.

[72] There is no doubt that it is an institution that is punishing, at times cruel, and it is not a suitable setting for any person long-term.

[62] The case of R v Beals[18] provides a helpful reference on how similar conditions were treated by other judges in this jurisdiction.

[63] Justice Durno in R v Andrew,[19] applying a broad stroke approach, attributed approximately half a day's credit for every day spent in lockdown.

[64] While I am obligated to consider harsh conditions, how that influences the final sentence is a matter of discretion, with no fixed formula for determining the credit to apply. In R v Abraham,[20] the court considered the difficulty in establishing a specific ratio for calculating an appropriate amount of Duncan credit when evaluating all factors holistically. This becomes more complex when considering a mix of partial and full lockdown experiences. That court noted that a better approach would be to assess the impact of lockdowns qualitatively and to mitigate the sentence based on that assessment. I adopt a similar approach in the accused's case by considering the entire record and the arguments presented by counsel.

[65] In the circumstances of this case, the conditions the accused endured must lead to a substantial Duncan credit. In making this determination, I have considered the guidance provided in Marshall. It is one of many factors in determining an appropriate sentence. I have chosen to express this as a discrete number in my assessment of a proper sentence to highlight the seriousness and the importance that the Court attaches to the issues at the Maplehurst Correctional Complex.

[66] I am prepared to credit the accused 194 days for the prolonged lockdowns. I view this as an appropriate mitigation in the circumstances of this case.

What is a Fit & Appropriate Sentence

[67] I now turn to my analysis and determination of a fit sentence.

[68] Though sentencing is an individualized process, and I must consider the accused's circumstances, there exists legal authority to conclude that a strong deterrent and denunciatory message must be sent to the community. I must turn my mind to deterrence and impose a sentence that sends a message to the community and the accused that this behaviour will not be tolerated.

[69] However, my analysis cannot end there. I must also consider the accused's level of participation in the offence. He has no prior criminal involvement, which suggests that there may be prospects for rehabilitation.

[70] The principles of proportionality and restraint require that any sentence imposed should not be unduly long or harsh. While sufficient punishment is required, no more than what is necessary is to be ordered. Though not a primary consideration, I must consider whether the imposition of a sentence is so harsh that it would be crushing for the accused's rehabilitation.

[71] I remind myself that section 718.2 of the Criminal Code of Canada directs me to consider the least onerous sentence consistent with the purposes and principles of sentencing.

[72] Albeit on different facts, as Justice Doherty noted in Nur, different judges, correctly applying the law to the same facts, could properly impose different but fit sentences.[21]

[73] When I balance all the factors I have outlined in this decision, I am satisfied that a custodial sentence of six years is appropriate for the offence the accused committed. For a first-time offender, this is a considerable sentence.

[74] I considered the four-year sentence submitted by the defence. Though I appreciate that sentencing is an individualized exercise, in my view, this sentence does not adequately reflect the seriousness of this offence. As I noted, I draw on the authorities presented by the Crown for support in this conclusion.

[75] After considering reductions for Summers and Duncan credit, along with the accused's personal circumstances, including his level of involvement in the offence, I conclude that the mitigating factors support a sentence at the lower end of the range.

[76] From six years, I deduct the following:

1. 315 days of Summers credit, and
2. 194 days of Duncan credit.

[77] The net result is a further jail sentence of four years and seven months.[22]

[78] I find this to be a fit and proportionate sentence for this offence. Considering the individualized nature of a sentencing hearing, in my view, it most appropriately reflects the gravity of the offence and the accused's degree of responsibility.

Ancillary Orders

[79] In addition, the ancillary orders will be made as requested.

[80] This is a secondary designated offence. Ordering the taking of DNA is discretionary.

[81] Considering it is in the best interests of the administration of justice, the nature of the offences and the surrounding circumstances, including that the accused imported a significant amount of a dangerous drug, and the minimal impact on the accused's privacy, the taking of the accused's DNA shall be ordered and entered into the DNA databank. The accused shall forthwith provide a sample of his DNA while in custody to the Peel Regional Police.

[82] Section 109 is mandatory for this offence. You are prohibited from possessing any firearm, crossbow, restricted weapon, firearm part, ammunition, or explosive substance for 10 years, and you are prohibited from possessing any prohibited or restricted firearm, prohibited weapon, prohibited device, firearm part, and prohibited ammunition for life.

[83] The victim surcharge is waived, as it would cause undue hardship if imposed due to the accused's unemployment.

[84] A forfeiture order is made as requested by the Crown.

Released: October 2, 2025

Signed: Justice Andrew F. Falls

Footnotes

[1] Subsection 718.2(b) of the Code.

[2] Subsections 718.2 (d) and (e) of the Code.

[3] R v Hamilton, 72 OR (3d) 1 at para. 96 & 98.

[4] R v Lacasse, 2015 SCC 64 at para. 60.

[5] R v Nasogaluak, 2010 SCC 6 at para. 44.

[6] R v Kwok, 2015 BCCA 34 at para. 114.

[7] There appears to be conflicting dicta in the caselaw about whether ketamine has addictive properties. In Kwok at para. 66, it was noted that it is not physiologically addictive. However, in R v Phan, 2015 ONSC 4681, it was noted at para. 56 that users can become psychologically addicted to ketamine. My reasons for sentence do not turn on this disparity. Notwithstanding, the caselaw supports a finding that ketamine is harmful to human health.

[8] R v Ling, 2014 ONCA 808 at para. 12.

[9] Kwok, supra. at para. 112; R v Lin, 2020 ONCA 768 at para. 24.

[10] R v Ngo, 2023 ONSC 282 at para. 18.

[11] Kwok, supra.

[12] R v Lin, 2020 ONCA 768 at para. 24.

[13] R v Lin, 2022 ONCA 289.

[14] R v Lin, 2020 ONCA 768.

[15] R v Sadikov, 2015 ONSC 4447; R v Phan, 2015 ONSC 4681; R v Zhang, 2014 ONSC 3132.

[16] In Phan, significant distinguishing mitigating factors were considered by the court, including the accused was a paraplegic, experienced chronic pain, had a supportive family and acted completely out of character.

[17] R v Suliman, 2025 ONSC 5281 at paras. 70-72.

[18] R v Beals, 2023 ONSC 555 at para. 113, 132-137.

[19] R v Andrew, 2021 OJ No 2911 at paras. 58-97.

[20] R v Abraham, 2023 ONSC 4592 at para. 29-46.

[21] R v Nur, 2013 ONCA 677 at para. 109.

[22] I considered six years as equaling 2191 days. 2191 less 509 (194+315) = 1,682 days or 4 years and seven months.