Reasons for Sentence

Court File No.: 23-516
Date of Judgment: 2025-05-28
Released: 2025-06-05
Ontario Superior Court of Justice

Between:
His Majesty the King
and
Joshua Biernacki, Defendant

Appearances:
R. Dietrich for the Crown
S. Yeghoyan for the Defendant

Heard: March 12, 2025

Judgment on sentence
M. B. Carnegie (orally)

Introduction

[1] Joshua Biernacki and the victim, Deborah Beer, had a long history together. They had been dating “on and off” since they were teenagers. The two also had a history with drug abuse. They enabled each other’s addictions throughout the years, culminating in Mr. Biernacki, at Ms. Beer’s request, couriering her heroin. Ms. Beer overdosed on heroin on November 6, 2020, dying in a closet inside her own room in the apparent process of consuming heroin. Ms. Beer was 28 years old when she died. She left behind a three-year-old daughter.

[2] As a result, Mr. Biernacki was charged with manslaughter. He went to trial from December 2nd–13th, 2024, before a jury and was found guilty of the lesser included offence of trafficking in heroin.

[3] I must now impose a just sanction upon Mr. Biernacki that will contribute to respect for the law and the maintenance of community safety. This sentencing must express our community’s revulsion for yet another senseless loss of life to the scourge of dangerous drugs like heroin while tempering societal retribution to a disposition that is no more than is necessary to deter Mr. Biernacki and others of a like mind. Every time a dangerous drug, such as heroin, is trafficked the risk is all too clear. Ms. Beer is sadly another example of the meaningless loss of life. Her family is now forever changed because of, in large part, the decisions and actions of this defendant.

[4] Of course, no sentence I can impose will bring back Deborah Beer, or assuage the loss imposed upon her young daughter, mother and sister. That is not the purpose of sentencing. Instead, I must balance the need to deter and denounce this and like behaviour with appropriate restraint that is grounded in Mr. Biernacki’s prospects for eventual rehabilitation.

Circumstances of the Offence

[5] Deborah Beer was the mother of a three-year-old daughter, both of whom were living at her mother’s apartment in London, Ontario, on November 6, 2020, at the time of her death. She was working at Tim Hortons, struggling through a job she did not enjoy but was attempting to maintain to support herself and her daughter.

[6] Ms. Beer’s drug abuse commenced when she was 14 years of age while she was living in Oshawa, Ontario, with her mother. Heroin became an issue early on such that her developing addiction was no secret to her family. Sporadically, Ms. Beer had periods of sobriety attending treatment on occasion. Ultimately, she was able to get off drugs in 2016 once she became pregnant with her daughter. She participated in and largely completed a 12-month methadone treatment program. At trial it was acknowledged by her family that Ms. Beer was an experienced drug user. Up until her death, Ms. Beer’s mother did not notice that she had relapsed and was using again.

[7] In the early morning hours of November 7, 2020, Ms. Beer’s mother was awakened by the sounds of crying from her granddaughter. She had been sleeping with her mother, in her mother’s room, but had awoken in distress. Ms. Beer was discovered by her mother slumped over inside the bedroom closet. She recalls seeing a needle in the victim’s arm. Realizing that her daughter had died, she gathered her granddaughter, left the room and called police. While she believed her daughter had been sober for 5 years, asserting that her granddaughter had saved Ms. Beer, she acknowledged that Ms. Beer did have a history of overdosing on drugs. In particular, Ms. Beer had had a “hard battle” with heroin, a battle she had now lost.

[8] Police investigated Ms. Beer’s death. The postmortem examination determined that the cause of death was “heroin toxicity”. The pathologist identified six needle puncture sites on Ms. Beer’s forearm. The location of the puncture sites suggested that Ms. Beer was an experienced user. A forensic biologist confirmed that the “significant concentration” of heroin found in her system would be fatal for a naïve user, which could be explained if a formerly experienced heroin addict had lost tolerance to the drug over time. Intravenous injection of heroin was the most toxic scenario for its ingestion.

[9] Amidst items found in proximity to Ms. Beer, were a burnt piece of tin foil and a small Ziplock baggie of a substance suspected and later confirmed by Health Canada testing to be heroin. To the responding officer’s experienced eye, there appeared to be approximately 1–1.5 grams of heroin in the baggie, but it was not weighed.

[10] Days after Ms. Beer’s death, when her family was cleaning out her room an Express Post envelope was found addressed to her attention, sent from “Candy Appollon” – an apparently fictitious name unassociated to the provided address, a spa in Mississauga, Ontario. Inside the package was found a clear plastic bag with “0.55H” written on it – which was interpreted as being a reference to just over half a gram of heroin. The plastic bag was ripped open.

[11] Ms. Beer’s cell phone was examined by the police. A significant number of messages between Ms. Beer and Mr. Biernacki were discovered and reviewed in the weeks and days leading up to her death. In these communications, she solicited heroin from Mr. Biernacki. She intended to use some herself and sell the rest to a co-worker. At first, he resisted, counseling her to reconsider, not to sell heroin to a novice co-worker user. However, he ultimately relented and agreed to send her what she wanted in the days leading up to November 6, 2020. He counseled her on apportioning the heroin for sale leaving the rest for herself. He told her how much to use safely. She reassured him that she was not “dumb”, knew what to do, that she had a “kid” which makes her paranoid, so she would be safe. They agreed upon a price, $130, and that he would send her half a gram of heroin.

[12] As if to absolve Mr. Biernacki for a foreseeable overdose, on November 4, 2020 Ms. Beer discussed her perspective on being a buyer of heroin:
“How I look at it and it may sound fucked but the person is making their own decisions by taking it so if you ask don’t put no blame on anyone. I could blame you for giving me jib but in the end I agreed…you didn’t force her to take it. She was already a junkie so whoever is putting that blame is dumb as fuck… I don’t blame anyone for selling me drugs or nothing…I fully made the choice.”

Victim Impact

[13] Victim impact statements were delivered by both the victim’s mother and her sister. The trauma resulting from finding her daughter dead in her bedroom closet with her 3-year-old crying in the room has been significant for the victim’s mother. She shared with me the trauma experienced by the child, and her resulting heartbreak. Fortunately, the child has been going through therapy and I am advised that it has helped. She has focused upon the needs of the child, as any grandmother would, but her life has been radically altered as well and a further parenting obligation has been thrust upon her.

[14] Ms. Beer’s sister is plagued by regret for not knowing more about her sister’s struggles, denying her the ability to intervene. The void left by the victim’s passing in her and all their lives has not been filled. A mother herself, her child has been denied an aunt and she has been denied the opportunity to raise her child together with her sister.

[15] Suffice it to say, the overall impact upon the victim’s family has been profound.

[16] Throughout the heartfelt presentation of these statements, I noted that the offender was outwardly emotional in what I interpreted as genuine regret.

Circumstances of the Offender

[17] Mr. Biernacki is now 33 years of age. He is the only child of his parents’ union, which ended when he was 8 years of age. He lived with his mother until his early teens. His youth was turbulent, witnessing domestic violence and alcohol abuse from his father. His relationship with his mother was troubled, abusive and he described it as “dysfunctional”. He attributed his mother’s mental health issues as a contributing factor. He has been residing with his mother since he has been on bail for this offence, but it has not been going well. Nevertheless, both of his parents are supporting this offender through this court process. They both generally characterize Mr. Biernacki as “pretty good” or a “good kid”, at least when he is sober.

[18] Mr. Biernacki’s education background was adversely impacted by his absenteeism and school suspensions. He ultimately completed his grade 12 within an alternate school environment in 2017. Following the victim’s death, he has enrolled in a college level Addictions and Mental Health course in the spring of 2024. He aspires to work in this field given his life experience with addiction. However, he asserts that everything is on hold due to the court proceedings.

[19] Mr. Biernacki’s employment history is sporadic. As a teenager, he has worked with his father, at a newspaper printing company, and as a cook at a restaurant and later for a water proofing company. As an adult, he was a production assistant at a medicinal cannabis company for 10 years until 2023. He then worked in construction while he was on bail for this charge, but has been unemployed since 2024.

[20] Mr. Biernacki is generally described as a loner and characterizes his relationship with the victim as his one significant relationship in his life. They met in high school and had a “rocky on and off” relationship since then. He candidly acknowledged a prior charge of assault against the victim. He lived with her and her mother “on and off for 8 years”. Both of them had an opioid addiction throughout their time together. Both of Mr. Biernacki’s parents confirmed the significance of his relationship with the victim. His mother attributes her son’s problems starting when commenced this relationship which she described as “toxic”. They enabled each other’s drug dependency, and the offender became “consumed with his late partner”. His mother tried to keep them apart, which alienated her with both of them.

[21] He has been diagnosed with a substance abuse disorder. He reports being addicted to heroin since he was 19 years of age. He described the extent of narcotics abuse he has engaged in, predominately using various opioids, including fentanyl, heroin and crystal methamphetamine. His drug use, early as a teenager and onward, also included cocaine. He has sought treatment for drug addiction over the years, attending various in-patient programs largely since 2019, including various efforts post this offence. He is under the care of a physician at the Concurrent Outpatient Medical and Psychosocial Addiction Support Services clinic at Centre for Addiction and Mental Health (“CAMH”) has been prescribed Sublocade for the past two years but his compliance with this regime has been noted as an area of concern. The offender acknowledges many relapses over the years, including heroin overdoses. He significantly relapsed after hearing of Ms. Beer’s death.

[22] By all accounts, the victim’s passing has had a devasting impact upon him. He describes himself as “the criminal here” and that he regrets what he did. To the Pre-Sentence reporter he qualified his involvement by noting that “I do not traffic drugs for financial gain at all”. He and the victim “never thought about the serious consequences…we both never thought that this could happen to us.” He has been reckless about his drug use because he doesn’t care about himself. He has acknowledged suicidal ideation since Ms. Beer’s death.

[23] He has sought grief counselling and attended in-patient care at the CAMH stemming from this incident. He has been in treatment for a “week or two at a time” on some 15 occasions. His remorse for his role in the victim’s death is extensive. He believes that “my life is ruined, I feel terrible about her demise.” In his allocution, he asserted that he feels terribly sorry for the pain this has caused her family and that he “loved her with all my heart…and thinks about her every day.”

[24] Mr. Biernacki has a limited criminal history. In 2015, he was found guilty of failing to comply with his bail and sentenced to a fine of $400. I do not have background surrounding those circumstances.

[25] Unfortunately, Mr. Biernacki admits to having no idea what his future plans are – “I just want to get through this.”

Positions of the Parties

[26] The Crown seeks a carceral sentence of 2 years imprisonment. It is argued that only a term of imprisonment can adequately reflect the sentencing principles in s. 718 of the Criminal Code, with particular emphasis upon deterrence and denunciation. The prevalence of trafficking offences within this community, and frankly across the country, is aggravating. The Crown is asking the court to make a finding that Ms. Beer consumed the heroin trafficked by this offender, but that the nexus between it and her cause of death was not proven beyond a reasonable doubt – leading to the verdict reached by the jury. Therefore, without firm causation, the victim’s death is not itself an aggravating feature.

[27] Counsel for Mr. Biernacki seeks a 12–18 month conditional sentence order to be followed by 3 years probation. For heroin trafficking offences, it is submitted that this range of sentence is supported. It is also submitted that that a recommendation for in-patient residential treatment would further this offender’s rehabilitation.

Legal Framework

[28] Section 718 of the Criminal Code defines the fundamental purpose of sentencing:
“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:

to denounce unlawful conduct and the harm done to victims of to the community that is caused by unlawful conduct;
to deter the offender and other persons from committing offences;
to separate offenders from society, where necessary;
to assist in rehabilitating offenders;
to provide reparations for harm done to victims or to the community; and
to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.”

[29] Section 718.1 of the Code identifies the fundamental principle of sentencing as proportionality. It is commonly referred to as the ‘cardinal principal’ of sentencing and requires that the court consider the gravity of the offence and the moral blameworthiness of the offender. It is determined both on an individual basis, that is in relation to the accused and the offence committed, and by comparison to sentences imposed on other offenders for offences committed in similar circumstances, known as parity. The Supreme Court in R. v. Lacasse, 2015 SCC 64 emphasized that a proportionate sentence is one that is individualized. In other words, it is one that is deserved by the offender. Simply put, the Lacasse court noted that “the more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be.”

[30] The proportionality principle is central to the maintenance of public confidence in the criminal justice system. It demands that the punishment speak out against the offence and punish the offender, but no more than is necessary. In so doing, it seeks to balance the principle of restraint with the importance of holding offenders accountable for their actions. A helpful tool in this analysis is the consideration of a particular case’s aggravating and mitigating factors.

[31] Of course, the moral blameworthiness of the offender is important. Offenders who intentionally cause harm should be subjected to a greater punishment than those who did not intend the harm that flowed from their conduct. But, as our common law has made clear, when one elects to traffic in serious drugs the consequences of that choice can be extreme whether intended or not. And the consequence of that conduct and an offender’s indifference towards it often plays a significant role when determining the gravity of the offence and, therefore, impacts upon the balance that proportionality envisions.

[32] Section 718.2(b) of the Criminal Code highlights the importance of “parity”. Subject to the particular circumstances of the offence and offender, similar offenders for similar offences in similar circumstances should receive similar sentences. Sentencing judges must seriously consider the importance of parity because, otherwise, simple reliance upon the particular will or idiosyncrasies of whichever sentencing judge walks into the courtroom would diminish the public’s confidence in the administration of justice.

[33] In trafficking cases, the statutory range of sentence is necessarily broad. A common feature of trafficking sentencing for serious or the most harmful drugs is the prioritization of the sentencing principles of denunciation and deterrence (both general and specific). Denunciation refers to the communication, through the imposition of a sentence, of society’s condemnation of the offending conduct. General deterrence contemplates sending a message to the community at large, and, in particular, to those of like mind, to discourage similar conduct in the future. Specific deterrence involves sending a message to the offender before the court, to dissuade him from committing similar acts in the future.

[34] Finally, section 718(d) of the Criminal Code compels me to be mindful of the importance of rehabilitation, particularly when dealing, as here, with an offender with a limited criminal history. Restraint is required, as noted in section 718.2(d) and (e), to ensure that an offender is not deprived of liberty if less restrictive sanctions may be reasonable and appropriate and, if custody is required, the least amount of custody necessary to satisfy other principles of sentencing should be imposed.

Range of Sentence

[35] It is important to frame my sentencing range analysis in the appropriate context. Though tried for manslaughter, Mr. Biernacki was found guilty of trafficking in heroin, contrary to s. 5(1) of the Controlled Drugs and Substances Act. Further, the Crown has responsibly interpreted the jury’s verdict as prohibiting, as an aggravating factor, consideration of this offence as the cause of the victim’s death. With these limitations in mind, I do find that the trial evidence clearly established that Mr. Biernacki trafficked in heroin by sending Ms. Beer heroin, heroin that she consumed given the status of the empty packaging found in her bedroom. This consumption was within a timeframe that was proximate to her receipt of the drugs, overdose and death, but to what extent it contributed to death is unclear.

[36] Despite this context, the Crown seeks a minimum penitentiary sentence range.

[37] A review of heroin trafficking sentencing common law makes plain that I should significantly weigh both denunciation and general deterrence. Further, upon my review, the ranges for heroin trafficking are higher than those for cocaine trafficking, reflecting the greater danger of heroin and its more addictive quality as compared with cocaine. I have reviewed cases where the range of 2 months to over 6 years have been handed down by courts in cases not encumbered by the inclusion of other substances, like fentanyl. What is clear is that even trafficking in small amounts of heroin can attract significant sentences. In R. v. Turner, [2003] OJ No 685 (ONCA), the Ontario Court of Appeal noted that “trafficking in heroin, even small amounts, will attract penitentiary time.” But ‘will attract’ does not necessarily mean must attract.

[38] By and large, the Crown has provided me with sentencing authorities that relate to either trafficking related manslaughter cases or fentanyl related trafficking cases. Over the last decade, fentanyl trafficking cases have proliferated across the country and I am no stranger to the exemplary sentences such behaviour attracts. This is due to the relative seriousness and gravity associated to that substance. Fentanyl is significantly more dangerous than even a toxic substance like heroin. In R. v. Loor, 2017 ONCA 696, the Ontario Court of Appeal commented about how highly dangerous this drug is relative to others: “it is a very powerful drug, up to 100 times more powerful than morphine and 20 times more powerful than heroin.” As a result, substantive penitentiary terms are regularly imposed for fentanyl trafficking offences. The common law makes it clear that the toxicity level of fentanyl – its risk to all in the community – is the driver of the extent of denunciation and deterrence that is required, and thereby the driver of the proportional ranges of sentence relating to that substance.

[39] The same cannot be said for trafficking in heroin.

[40] That said, recency bias respecting the prevalence of fentanyl trafficking cannot blind me to the seriousness of trafficking in heroin. The Ontario Court of Appeal in 2009 in R. v. Sidhu, [2009] OJ No 325 (CA) described heroin as follows:
“Time and again, this court and the Supreme Court of Canada have made it clear that heroin is the most pernicious of the hard drugs – it is the most addictive, the most destructive and the most dangerous. Heroin trafficking has been described as a ‘despicable’ crime and one that ‘tears at the very fabric of our society.’”

[41] In R. v. White, 2019 ONCJ 191, Justice West faced what I believe to be an analogous situation. There, the offender trafficked in what he believed to be and represented as heroin, but was instead fentanyl. He trafficked this drug to a friend who was “drug sick” and in dire need. In essence, he did this as a favour to his friend. The friend consumed the narcotic, overdosed, and died. The offender was described as a low-level drug dealer, unaware of the risk involved as he was deceived respecting the nature of the substance sold. Nevertheless, purchasing heroin for a friend and then providing it to him was a serious offence. The Crown’s request for a 4-year sentence was deemed excessive. Instead, the court imposed an 18-month jail sentence, in effect sentencing this offender as if he trafficked in heroin and not fentanyl, to reflect the lesser moral blameworthiness of this offender, which was followed by 3 years probation and other ancillary orders.

[42] Unlike in the White case, Mr. Biernacki was not responsible for, even inadvertently, trafficking in fentanyl. He trafficked in what he intended. And, perhaps most significant, here the death of the victim will not be treated as an aggravating circumstance.

[43] I must now turn my attention to a fit and proportional sentence for Mr. Biernacki.

Analysis

[44] An individualized sentence necessitates active consideration of what proportionality demands, which includes a balancing of both aggravating and mitigating circumstances.

[45] In this vein, by way of aggravating factors, I have considered the following:

the serious nature of this offending conduct, including a highly addictive substance considered to be among the most serious and dangerous drugs available;
the impact upon the victim’s family and loved ones is nothing short of devastating. A young daughter has lost her mother, a mother has lost her daughter, a sister has lost her sibling. This family’s lives have been indelibly changed. While this trafficking may not have directly caused Ms. Beer’s death, the surrounding circumstances cannot be ignored;
this was not a spontaneous event, as this offender was solicited for these drugs by the victim and he knew her history, understood the risks (even expressing them to her), and proceeded despite them. Any motivation of “helping” a friend in addiction based need by enabling drug abuse does not lessen moral blameworthiness; and
he has an unrelated criminal history for breach of a court order.

[46] Over the course of the trial, as noted, a quantum of text messages were sent between this offender and the victim. Specifically, on November 4, 2020 (2 days before the overdose), Mr. Biernacki discusses with the victim her plan to sell the excess heroin to her co-worker. Mr. Biernacki instructs her how to divide the heroin, package it and what to sell it for. He expresses reservations about the risk of selling this heroin to a first-time heroin user but Ms. Beer dismisses his concerns. According to Ms. Beer, adults are responsible for their own decisions. He then comments about how this is a “moral thing” that he would think about in bed, but also a “legal” issue as he cautions: “if she flops they coming lol look at Tristan”. While the Crown has not noted this concern, it has not escaped my notice that the earlier referenced White decision from Justice West is from Oshawa, Ontario (where Mr. Biernacki resided), involving offender “Tristan White”. It certainly is a remarkable coincidence, at least. If the White circumstances were known to Mr. Biernacki, could that further highlight his self-awareness of the risks and, therefore, would it not further aggravate the circumstances enhancing his moral blameworthiness? To make this finding, I would have to infer based upon an evidentiary record that I do not have. Though suspicious, I will not do so to Mr. Biernacki’s benefit.

[47] I have also considered the following mitigating factors:

as reported in the Pre-Sentence Report, he has accepted and not deflected responsibility for his role in these circumstances. I find that his remorse is genuine and that he feels responsible for the victim’s death;
he had a turbulent and unstable familial upbringing;
he has complied with the court’s expectations while on bail for a protracted period of time; and
given his rekindled but tenuous connection with family, who were present throughout his proceedings and supported him since he was charged, there is arguably some prospect at rehabilitation. Of course, confounding his rehabilitative prospects are his repeated failures at treatment. I acknowledge that addiction recovery, particularly respecting opioid addiction, is not always a linear path. Justice Rosenberg of the Ontario Court of Appeal, in R. v. Green, [2002] OJ No 5976 (ONCA), recognized that it is “unrealistic to expect [that an offender] will succeed at overcoming [an] addiction either on the first or second attempt or even after many attempts… The courts must not be overly critical of an offender in [such a] position. What is important is that he has made and continues to make efforts at curbing his addiction.” That said, Mr. Biernacki’s circuitous recovery route, even years after the death of his former partner which should have provided the loudest of all wake up calls, does not inspire confidence. Mr. Biernacki has much more work to do to escape from the grasp of his confounding addiction, and his will to do so is unclear.

[48] I have considered whether the fact of Mr. Biernacki’s long held opioid addiction is a mitigating factor. In this regard, I remind myself that the offender must do more than simply confirm the addiction but must show its temporal and causal link to the offence. As noted by the Ontario Court of Appeal in R. v. Barham, 2014 ONCA 797, “for mental health issues and addiction to be considered as mitigating factors, there must be some connection between those matters and the criminal conduct at issue.” Here, there is not. Mr. Biernacki acknowledged that he did not sell this heroin to the victim for profit to enable the perpetuation of this lifestyle. Instead, he was merely selling it at cost and helping out his former partner. In R. v. Cinelli, 2018 ONSC 4983, the offender continued to traffic heroin even when he was in treatment and receiving methadone but that was found to defeat any suggestion that his trafficking was materially connected to his addiction. As a result, I decline to treat Mr. Biernacki’s own addiction as a mitigating circumstance. He made a choice to enable a former partner’s drug abuse and addiction not because he had to or was compelled to or did so as a means to enable his ill-advised lifestyle. This is not a subsistence level trafficking scenario bent upon sustaining the personal use of an addict.

[49] Upon my review of trafficking sentencing common law for heroin and like serious substance offences, there appears to be an ongoing debate surrounding the notion that only “exceptional circumstances” can avoid custody for trafficking serious drugs. In R. v. Parranto, 2021 SCC 46, the Supreme Court instructed that appellate courts should not “artificially constrain sentencing judges’ ability to impose a proportionate sentence by requiring ‘exceptional circumstances’ when departing from a range.” Instead, Chief Justice Tulloch from the Ontario Court of Appeal in R. v. Pike, 2024 ONCA 608 characterized ‘exceptional circumstances’ as shorthand for personal circumstances and mitigating factors that are sufficiently compelling to make a conditional sentence appropriate. The task is not to pigeonhole cases into “ill-defined exceptional circumstance categories” but, rather, it is to impose a proportionate sentence.

[50] Here, I believe that this factual narrative presents an unusual circumstance which lessens to some degree Mr. Biernacki’s moral blameworthiness. He presents without a substantive or related criminal history, was not selling this drug to commercially or even personally profit, but instead to placate the “needs” of a friend and former partner, and he made some effort to coach the victim by text through the drug’s consumption to avoid the obvious and known risks. He was aware of the risks despite also being aware of Ms. Beer’s history of heroin usage. Further, the factual record established that he sold this quantity of heroin to Ms. Beer to allow her, in turn, to sell herself and make enough money to offset its cost and also leave some for her own consumption. Unfortunately, it did not get that far because on the heels of the receipt of these drugs, Ms. Beer overdosed.

[51] Overall, this narrative places Mr. Biernacki in the low-level drug trafficker class. While this conduct was reckless, it was not callous or even indifferent. As a result, while denunciation and deterrence must be prioritized, I find that in these particular circumstances restraint and rehabilitation are also relevant principles of sentencing that must be carefully considered and applied.

[52] In so doing, I find that a custodial disposition within the reformatory range is appropriate.

Is a Conditional Sentence Appropriate?

[53] While I agree with the Crown that this offence is inherently serious and merits both a deterrent and denunciatory sentence, incarceration is not the only means to achieve these sentencing goals. If violent crimes, even those causing death, do not, per se, exclude consideration of a conditional sentence if the statutory pre-conditions are met, trafficking related offences can and sometimes do qualify.

[54] A conditional sentence is a custodial sentence. It is distinguishable based upon its service within the community – often commonly referred to as ‘house arrest’. However, the imposition of a conditional sentence will only inspire public confidence if it is punitive in a real sense. As the Supreme Court of Canada stated in R. v. Proulx, 2000 SCC 5: “[P]unitive conditions such as house arrest should be the norm, not the exception.” A conditional sentence cannot become little more than a glorified probation order.

[55] Section 742.1 of the Criminal Code outlines the statutory preconditions for conditional sentence consideration, including:

where the sentence of imprisonment imposed is less than two years;
whether service of a custodial sentence within the community would “endanger the safety of the community” and whether it would be “consistent with the fundamental purpose and principles of sentencing”;
the offence is not punishable by a minimum term of imprisonment (as here); and
the offence is not an enumerated exception, like murder or terrorism (as here).

[56] Whether a conditional sentence is appropriate often comes down to whether it can adequately reflect the gravity of the offence and thereby provide sufficient denunciation and general deterrence and whether it can fit under the two-year cap.

[57] As reminded by our Court of Appeal in R. v. Ali, 2022 ONCA 736, I must consider whether a conditional sentence is appropriate, even with respect to serious offences. There, the offender was being sentenced for aggravated assault. The court noted that considering whether a conditional sentence is appropriate even in cases where the paramount sentencing principles are denunciation and deterrence involves “considering, and weighing, the ability of a conditional sentence to meet the deterrence and denunciation objectives and other relevant sentencing objectives, including restraint and rehabilitation.” Of course, the Ali decision simply reiterated the Supreme Court’s comments in Proulx, 2000 SCC 5, where Chief Justice Lamer noted, that a conditional sentence is "a punitive sanction capable of achieving the objectives of denunciation and deterrence." Punitive provisions, such as house arrest, carry a stigma that should not be underestimated and can provide “a significant amount of denunciation” and “significant deterrence”.

[58] In R. v. Sharma, 2020 ONCA 478, though overturned by the Supreme Court on other grounds, Feldman J.A. noted that “[e]ven in cases where deterrence and denunciation are the paramount sentencing objectives, a conditional sentence may be appropriate, depending on the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served.” The implication is clear, the more serious the offending conduct, the more pressing the need for a denunciatory and deterrent response and, therefore, the more restrictive a conditional sentence must be.

[59] However, Chief Justice Lamer conceded in Proulx, 2000 SCC 5 that there will be cases “in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct.”

[60] Finally, I consider the implication of Parliament’s November 17, 2022, Bill C-5 response to the Supreme Court’s decision in R. v. Sharma, 2022 SCC 39, from November 4, 2022. Instead of maintaining the existing sentencing regime, which enumerated certain types or classes of offences which did not qualify for a conditional sentence, and which the Supreme Court found to be a constitutional use of legislative authority, it stripped away many of the existing restrictions allowing for a broader sentencing assessment. This almost immediate statutory change, when it was not compelled to do so, undoubtedly is a signal from Parliament that conditional sentences remain an effective sentencing tool, even when faced with serious offences. It is reasonable to expect that this legislative development will, as intended, reinvigorate the usage of conditional sentences in appropriate cases.

[61] By analogy, the defence has submitted a persuasive case for my consideration. In R. v. Ul-Haq, Justice Kelly imposed a maximum term conditional sentence upon the offender, with a probation order for 2 years, who sold what he believed to be cocaine, but was actually fentanyl, to two victims, one who was harmed, one who died. He sold this half gram of cocaine/fentanyl for $60. The jury acquitted the defendant of manslaughter and criminal negligence causing bodily harm but found him guilty of trafficking in fentanyl. The Crown sought a penitentiary term of 3–4 years imprisonment. Here, we have heroin trafficking as the lesser included finding.

[62] I have also considered the Ontario Court of Appeal’s recent decision in R. v. Woods, 2024 ONCA 664. There, the offender sold his friend a small quantity of fentanyl for personal use. The friend died of an overdose. The offender had pleaded guilty to trafficking in fentanyl, had a positive employment history and had made “extraordinary” efforts at rehabilitation, including being sober since his arrest and complying with strict bail conditions, including attendance at a residential treatment centre, and having served some pre-trial custody before release. There, despite the fact of trafficking in fentanyl, which caused the victim’s death, the unusual circumstances of that case allowed for a conditional sentence order of two years less one day, which was not disturbed on Crown appeal.

[63] Here, I find that a conditional sentence is an available sentence for these circumstances. The question is whether it is appropriate. Would its imposition endanger the safety of the community and is it consistent with the fundamental purpose and principles of sentencing?

[64] The evidence at trial suggested that approximately half a gram of heroin was sold by Mr. Biernacki to Ms. Beer for $130. He did so fully aware of Ms. Beer’s addiction history, her struggles with this substance and, as evidenced by the text message communications, the inherent risks involved with its use. He counselled Ms. Beer to not use it, despite her pleas. Yet he relented and sent the package anyway. In a proximate period of time, Ms. Beer used the heroin and she overdosed and died. That is the context. The jury was evidently not convinced that the heroin trafficked by Mr. Biernacki caused Ms. Beer’s death, and her death is not an aggravating factor. But the risks were well known to Mr. Biernacki, he disregarded those risks and enabled the victim’s further drug abuse. As a result, from a risk perspective, the gravity of the offending conduct is high and his moral culpability, attenuated only by the lack of a nexus between the trafficking and Ms. Beer’s death, is also high.

[65] I do not need to find “exceptional circumstances” to justify the imposition of a non-carceral sentence. However, having balanced the factual narrative and the available mitigating circumstances, here exceptionality would not be difficult to find. Sadly, Ms. Beer went into this trafficking misadventure with her eyes wide open – she was and communicated her awareness of the inherent risks of using heroin, particularly after her hiatus of whatever duration from heavy use. Knowing the risks, she sought out the heroin from Mr. Biernacki and he was too weak to resist her plea for drug related help or relief. He knew better. He understood Ms. Beer’s circumstances all too well. No one was arguably in a better position to resist. He was not doing Ms. Beer any favours and it is no answer to infer that if he did not sell, she would have found heroin elsewhere. Ms. Beer’s death has devastated her family. Her loss is deeply felt. And, to the extent that Mr. Biernacki contributed to this loss, he is genuinely remorseful. And he ought to be.

Disposition

[66] Given the totality of circumstances, I find that a custodial disposition is required, however it can be served within the community. Mr. Biernacki does not meaningfully pose a risk to the community. His lack of criminal history speaks to that. Further, I am satisfied that in these unusual factual circumstances, where his trafficking in a serious drug has not been found to have caused death beyond a reasonable doubt, both denunciation and general deterrence does not demand a traditional custodial disposition.

[67] In a heroin trafficking case with this relatively small quantity involved, in isolation I would expect to consider a range of 3–9 months custody. With the additional aggravating context present, defence counsel suggests an elevated range between 12–18 months. It is well established that to meet the paramount principles of denunciation and deterrence, a conditional sentence can and often is considered at higher ranges that might be imposed for a carceral jail sentence. But for his years of compliance with bail terms and conditions, and his genuine, palpable remorse, I would have considered the maximum term of two-years less one day as the fit and appropriate quantum. Instead, I have determined that a conditional sentence order is an appropriate sentence here, for a duration of 18 months. I will invite counsel’s submissions upon the appropriate terms and conditions, appreciating that a significant house arrest term, with GPS monitoring, will be included to ensure that this sentence imposes strict penal consequences.

[68] In addition to the conditional sentence order, for enhanced rehabilitative purposes Mr. Biernacki will be further supervised on probation for a period of two years with terms and conditions emphasizing addiction related recovery.

Ancillary Orders

[69] In addition to the custodial term imposed, a trafficking finding compels the imposition of a firearms and weapons prohibition, for a period of 10 years, pursuant to s. 109(2) of the Criminal Code.

[70] Further, on the basis of a secondary designated offence finding, pursuant to s. 487.051, Mr. Biernacki will provide a sample of bodily substance in accordance with the DNA Identification Act.

[71] Finally, s. 737 of the Criminal Code provides for a victim fine surcharge. I find that it would not be a hardship, nor would it be disproportionate to impose the victim fine surcharge upon Mr. Biernacki. A minimum payment of $200 for indictable offences can be imposed. However, pursuant to s. 737(3), an increased surcharge is available if I am satisfied that it is appropriate, and the offender is able to pay. While Mr. Biernacki is presently underemployed and will continue to be throughout the duration of the conditional sentence order, he remains readily employable. He will be required to pay a $500 victim fine surcharge and will be granted two years to make this payment.

Conclusion

[72] For the reasons I have provided, Mr. Biernacki is sentenced to 18 months in custody, to be served on a conditional sentence order. Following which, he will be supervised on probation for an additional period of two years.

[73] Mr. Biernacki will be subject to a firearms and weapons prohibition for 10 years, will be required to provide a DNA sample pursuant to the DNA Identification Act and pay a victim fine surcharge.

M. B. Carnegie
Dated: May 28, 2025
Released: June 5, 2025

R. v. Biernacki, 2025 ONSC 3209

Case Summary