Court File and Parties

Court File No.: CR-23-0244-00 Date: 2025-10-31

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

S. Elliot-Lehto, for the Crown

- and -

Brian Kelneric

J. Danto-Clancy, for the Accused

Accused

HEARD: September 15, 2025, at Thunder Bay, Ontario

Regional Senior Justice W. D. Newton

Criminal Sentencing

Overview

[1] Following an unsuccessful application to exclude evidence and a trial, Mr. Kelneric was convicted of possession of cocaine for the purposes of trafficking (290 grams), possession of oxycodone, and possession of proceeds of crime exceeding $5,000 ($9,470).

[2] What is left to determine is the fit sentence for these offences.

The Facts

a. Circumstances of the Offences

[3] On December 21, 2021, local police received a complaint from a tenant that unwanted persons were in her apartment and selling drugs from there.

[4] Police attended and announced their presence. All occupants except Mr. Kelneric and another person, who had passed out, exited the apartment. Mr. Kelneric was found hiding underneath a shelf in a closet. Close to where he was hiding was a fanny pack with three cellphones and about 30 grams of cocaine/crack cocaine. When searched incident to arrest, Mr. Kelneric had $960 cash and a key fob for a vehicle in his pockets.

[5] A scale and other drug paraphernalia including baggies and glass pipettes, "crack pipes", were in plain view in one of the bedrooms.

[6] When a search warrant for the vehicle activated by the key fob that was in Mr. Kelneric's possession was executed, police further found 260 grams of cocaine, $8510 cash, and documents linking Mr. Kelneric to the vehicle.

[7] Mr. Kelneric is not from Thunder Bay, but from Scarborough.

b. Circumstances of the Offender

[8] Mr. Kelneric is a 34-year-old, single, black male. He has a single prior conviction for failure to comply with an undertaking in 2013 for which he received a fine of $150.

[9] According to his pre-sentence report dated September 24, 2024, Mr. Kelneric was then residing with his mother who was his surety. She works as a nurse in a long-term care home. He has 6 half-siblings.

[10] Mr. Kelneric described his relationship with his mother as "positive" and stated that he does not have a meaningful relationship with his father since his parents divorced when he was in middle school. He has a "close" relationship with two of his half-siblings, but not the others.

[11] Mr. Kelneric stated that he started to use opioids, cannabis, and alcohol to cope emotionally with the divorce.

[12] He had a relationship for about five years which ended in 2019. He has a daughter who is eight years old.

[13] He completed high school but not until he re-attended at an adult education centre. He has held several jobs in the past and, at the time of his interview with the report writer, was working in a printing shop.

[14] He believes that drug use has negatively impacted his life and stated that, at the time of the offences, he was "high" and "on a bender". He said that, at that time, he was at a low point in his life and just "wanted to party to take the pain away".

[15] He acknowledged that he has a drug problem and is currently taking medication for depression.

[16] Since his conviction for these offences and after the preparation of the pre-sentence report, Mr. Kelneric was charged with second-degree murder with an offence date of November 14, 2024. He has been detained on those charges since November 15, 2024, and was recently released on August 13, 2025. The terms of release include house arrest, with GPS ankle monitoring, and a pledge of $100,000 by one of his sureties.

[17] While in custody at the Toronto South Detention Centre, Mr. Kelneric completed six programs.

[18] It appears that this new charge relates to a confrontation between Mr. Kelneric and the victim. Hospital records received post sentencing submissions confirm that Mr. Kelneric was hospitalized from November 14 to November 22, 2024. He sustained multiple lacerations and penetrating stab wounds to his left leg, face, left shoulder, right hand, chest, and back. The leg wound was life-threatening resulting in significant blood loss requiring blood transfusions and then surgical repair of a partially transected left anterior tibial artery and left profunda femoris artery. Counsel advised that Mr. Kelneric states that he cannot bear weight on his left leg. Because he was in custody until recently, he says that he has not received the medical treatment he needs and is currently waiting to be assessed at a pain clinic.

[19] When given an opportunity to speak to sentence, Mr. Kelneric stated that he was very remorseful.

c. Impact on the Victim and/or Community

[20] There were no formal victim or community impact statements tendered. My colleague, Pierce J., recently took judicial notice of the harm that comes from drug trafficking and observed:

[68] There are no victim impact statements from individuals standing before me complaining that Mr. Parker's supply of drugs got them addicted to cocaine, interfered with their schooling, got them fired, or deprived them of opportunities or relationships they would otherwise have enjoyed with the partners, parents and children.

[69] There is no one to complain that their physical and mental health has been affected, their income misappropriated, leaving them marginalized or homeless. And yet I see them.

[70] There are no victim impact statements from families standing before me, from parents without their children or children without their parents, describing the pain they feel in having lost a loved one to a drug overdose, their grief on each succeeding anniversary of their death, or their birthdays. And yet I hear them.

[71] These are the voices of the sufferers, and yet the community harm does not end there.

[72] The emergency department of the Thunder Bay Regional Hospital is strained on a daily basis by people seeking care because they suffer the consequences of drug addictions. Sometimes they are brought to the hospital by first responders called out to save lives.

[73] Daily, police officers investigate, document, and arrest suspected drug traffickers, and attend at court to give evidence about it.

Position of the Parties

Position of the Crown

[21] The Crown argues that the paramount sentencing considerations in this case are general and specific deterrence to address the significant drug trafficking crime in this country, and particularly in this region. As such, the Crown submits that a penitentiary sentence of two to two and one-half years is warranted. The Crown relies upon R. v. Bryan and R. v. Bajada.

[22] The Crown also seeks the following ancillary orders:

a. a weapons prohibition for 10 years pursuant to s. 109(1)(c) of the Criminal Code;

b. that Mr. Kelneric be ordered to provide a sample of his DNA to the DNA Data Bank; and

c. forfeiture of drugs, drug paraphernalia, cash, and cell phones seized.

Position of the Defence

[23] Counsel for Mr. Kelneric submits that an appropriate sentence in this case is a "global sentence" of two years less a day, less credit for pre-sentence custody and harsh conditions. Mr. Kelneric relies upon R. v. Bogle and R. v. Francis.

[24] Counsel propose that it is fit that Mr. Kelneric be permitted to serve the balance of his sentence in the community pursuant to a conditional sentence order on the same terms as his release order on the murder charge, that is, "house arrest".

[25] In support of the submission for a conditional sentence order, Mr. Kelneric submits that further imprisonment will restrict his ability to get medical care for his injuries.

[26] Mr. Kelneric seeks a Summers credit for pre-sentence custody of 295 days at 1.5 days credit, for a credit of 443 days.

[27] He seeks a Duncan credit or mitigation of sentence based on harsh pre-sentence conditions of incarceration. While in custody, the facilities were in full or partial lockdown for 105 days and Mr. Kelneric was triple bunked for 90 days.

[28] He also seeks a Downes credit or mitigation of sentence for stringent bail conditions – four months of curfew.

The Case Law

[29] The decisions relied upon by the Crown are not particularly helpful in this case. In Bryan, the Court of Appeal stated that, generally, sentences of five to eight years would reflect the proper range of sentence for someone, without a record, convicted of possession for the purposes of trafficking in slightly more than a pound of cocaine (454 grams). In Bajada, the Court of Appeal observed that sentences of five to five-and-one-half years are "not uncommon for possession of a substantial amount of cocaine for the purposes of trafficking following an accused's plea of guilty or where the accused has no prior record".

[30] In Bogle, the convictions were for trafficking cocaine and possession of cocaine (118.7 grams) for the purpose of trafficking. Mr. Bogle had a prior conviction for trafficking and received a six-month conditional sentence. He received a global sentence of 26½ months in custody. In Francis, Mr. Francis pled guilty to possession of cocaine (101 grams) for the purpose of trafficking and simple possession of oxycodone and was sentenced to nine months less a Downes "credit" of four months for having been constrained for two years with a curfew.

[31] In Parker, the sentence imposed after a guilty plea to possessing 450 grams of cocaine for the purpose of trafficking was 42 months. It was acknowledged that Mr. Parker's motivation to sell drugs was financial. Pierce J. rejected the defence submission that a conditional sentence of two years less a day appropriately reflects the sentencing principles of denunciation and deterrence.

Mitigating and Aggravating Factors

[32] Section 718.2 of the Criminal Code directs the court to consider aggravating and mitigating factors when imposing a sentence.

[33] Mitigating factors include Mr. Kelneric's relative youth and the absence of any significant criminal record. That he was a heavy drug user himself, has mental health issues, and not purely motivated by profit is also a factor. The pre-sentence custody conditions of lockdowns and triple bunking in custody are also mitigating factors.

[34] Aggravating factors include that he travelled to this region, a region with a significant drug use and drug trafficking crime, to sell a significant quantity of drugs (he had 290 grams remaining and cash acquired through sales of just under $10,000), preying upon those with significant vulnerabilities.

Purpose and Principles of Sentencing

[35] The Criminal Code provides:

718. 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 and 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 acknowledgment of the harm done to victims or to the community.

Fundamental principle

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Other sentencing principles

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(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.

Analysis and Disposition

[36] The sentencing objectives paramount in this case are denunciation, deterrence, and acknowledgement of the harm done to the community. Sanctions less restrictive than incarceration do not accomplish these objectives.

[37] In imposing sentence, I acknowledge that Mr. Kelneric's degree of moral culpability is somewhat diminished by his own issues with drugs but, nevertheless, he chose to travel to this city to prey upon those with their own issues and addictions. Others who would do so must be deterred, and allowing Mr. Kelneric to return to his home and live his life with the restrictions imposed by a conditional sentence is not a sufficient deterrent in this case.

[38] Mr. Kelneric's injuries and his apparent need for further treatment are factors in determining the period of imprisonment.

[39] Taking all these factors into consideration and the sentences imposed in the cited cases, I determine that the fit sentence for possession of cocaine for the purpose of trafficking is imprisonment for two years less a day or 729 days as submitted by counsel for Mr. Kelneric. It is not contested by the Crown that Mr. Kelneric is entitled to a Summers credit of 443 days (295 days x 1.5). Mr. Kelneric was in lockdown or triple bunked for 195 days and a further reduction of .5 day per day or 100 days will be deducted as Duncan credit. I am not satisfied that a further Downes credit is warranted in this case for the four months of curfew. The total reduction in sentence for Summers and Duncan is 543 days and, therefore, the effective sentence will be 186 days in custody. I accept that Mr. Kelneric is motivated to be free of drugs and I do not see a need for further supervision by the state through probation. I sentence Mr. Kelneric to twelve months for possession of proceeds of crime and one month for possession of oxycodone, both sentences to be served concurrently with the sentence for trafficking subject to the same credit.

[40] There will also be imposed the following ancillary orders:

a. Mr. Kelneric will be subject to a weapons prohibition for 10 years pursuant to s. 109(1)(c) of the Criminal Code;

b. Mr. Kelneric is ordered to provide a sample of his DNA to the DNA Data Bank; and

c. An order will issue for the forfeiture of all drugs, drug paraphernalia, cash, and cell phones seized.

The Hon. Regional Senior Justice W. D. Newton

Released: October 31, 2025