Overview

1Mr. Griffiths pled guilty to possession for the purposes of trafficking fentanyl. Mr. Griffiths had approximately 108 grams of fentanyl located on his person at the time of his arrest.

The Circumstances of Mr. Griffiths

2Mr. Griffiths is a relatively young black gentleman. He was approximately 28 years of age at the time of the offence. He is now 30 years of age.

3Mr. Griffiths is the father of 3 children;two of whom he apparently had custody of prior to his release. He was living with his children along with his mother who runs a nursing type business. The children are presently being raised by Mr. Griffiths mother assisted by his brother.

4Included in the sentencing materials provided to the court was an extensive medical brief from CNCC. Included in that brief is a medical note which I reproduce in its entirety as it provides some insight into Mr. Griffiths’ background:

(a) Elijah Griffiths – New patient June 7, 2024

(b) ID: 28yo male, previously in Brampton prior to incarceration with his mother. He was on OW. Here for 6 months.

(c) Social: His mother was a nurse. Grew up with mom, did not know dad. He had 1 sister on dads [sic] side, 3 brothers on moms [sic] side. He moved out of the home 2016, went to stay at his girlfriend’s in Barrie. He has 3 sons. Early fighting.

(d) Education/Work: Elementary fighting. He completed up to the 12th grade and is working on his final credit here in jail. He was completing his final credit today. He found it easier to focus while in his cell. No early conduct disordered behavior.

(e) Work: Worked for 2 years, stopped due to lack of transportation.

(f) PMH: Strep pneumonia in the past and he was at RVH for 1 month and a half. He was confused and was given medication while there. He had some unclear heart problems. He was given pain medication. Stabbed two years ago while Barrie, trying to defend himself.

(g) Past Psychiatry: ADHD treated when age 14, given medication. FH – Brothers with ADHD.

(h) SA – Cannabis in community, calmed him, no negative effects, struggled to cut down, though he was inactive due to excess cannabis use and wanted to be active for his kids. MOMA on occasion.

(i) HPI:

(j) Elijah was arrested two years ago, punched out by police at the time. Now when he sees police, he gets jumpy. He stated this was unexpectedly and he was later told he was selling drugs. He stated “wrong place wrong time”, he then went to McDonalds. He stated that he should have stayed at his girlfriend’s house. He reported that he believed it was “a racist thing.” He stated that he was not in the area to cause trouble. He stated that he sometimes twitches to make sure they wont “roll on me rough”. He worried it better not be him and he had high anxiety. He recalled they were being rude. He believed that hanging out with criminals may lead to his being taken down.

(k) He plays looney, cards, exercises. Appetite is good. Sleep is here and there, at times up at night, hearing the cops walk” and “slam doors”, peaking [sic] in to “beat me up”.

(l) He stated that he sometimes feels depressed and then wants to fight people, irritability. He was obtaining nabilone from a friend in jail, using inappropriately.

(m) He was fairly linear.

(n) He reported early ADHD symptoms, however he was able to complete school successfully.

(o) Mental Status – Cooperative. Mood is good, TP was linear, TC paranoia, no disorganization. No SI, HI.

(p) Risk – no prior suicide attempts, no SI, no self harm.

(q) Other specified trauma and stressor related disorder Cannabis Use Disorder.

(r) Conduct Disordered traits

(s) Sertraline 25mg qd x 1 week 50mg x 1 week then 75mg x 2 weeks Hydroxyzine 25mg tid prn

(t) Trazodone 50mg hs Follow-up in 4 weeks

Y. Naidoo, MD

Time Served, Lockdown and Triple Bunking

5Mr. Griffiths has a criminal record. On April 4, 2025 he received a suspended sentence and probation of 18 months with credit for 425 days in relation to a charge of fail to comply and possession of a firearm. The trafficking charge for which Mr. Griffiths is being sentenced relates to his arrest on January 3, 2024.

6Mr. Griffiths has been incarcerated since the time of arrest. Counsel are agreed that as of May 1, 2026, Mr. Griffiths would be entitled to a deduction of 28 months and 10 days from any sentence to be imposed by the court. An additional 15 days needs to be added since the court heard submissions on May 1.

7Counsel are not in agreement as to how this court should provide any further reduction in sentence to account for the time Mr. Griffiths has been in lockdown and triple bunked. Crown counsel originally argued a sentence of 8 years already took into account any credit for periods of lockdown and triple bunking. On further reflection, Crown counsel changed her position to reflect a sentence of 9 years which should then be reduced to take into account periods of lockdown and triple bunking, for a total sentence of 8 years.

8It is agreed between counsel that the total number of lockdown time experienced by Mr. Griffiths as of May 1, 2026 has been 262 days and 136 days of being triple bunked. Counsel for Mr. Griffiths argues that the court should reduce any sentence to be imposed by 6 to 8 months to reflect these periods of time when Mr. Griffiths has been in lockdown and or triple bunked. It was suggested in argument that this could be further increased to as much as a year to reflect the lack of medical treatment Mr. Griffiths should have received for a serious keloid condition that has remained untreated while he has been incarcerated.

Aggravating and Mitigating Factors

9The seizure of 108.3 grams of fentanyl represents a substantial mid-level commercial quantity with a high street value. The presence of two functional scales, cutting agents and multiple other drugs (48.7g powder cocaine, 13.3g crack cocaine, 123.8g methamphetamine, and approximately 100 Schedule I pills/capsules) confirms an ongoing trafficking enterprise rather than isolated possession.

10Mr. Griffiths was subject to stringent conditions from prior drug and firearms matters (April 2023 release order), including house arrest except in the direct presence of his surety, prohibition on attending Simcoe County and no possession of drug paraphernalia or weapons. He breached these by leaving his residence unsupervised, entering prohibited territory (Simcoe County), possessing scales and a knife and using cellular devices. These are serious, intentional violations that undermine public protection.

11Mr. Griffiths has a demonstrated pattern of involvement in drug trafficking (multiple prior charges and investigations). He was convicted on April 4, 2025 of failing to comply with an order (s. 145(5)(a)) and unauthorized possession of a firearm (s. 92(1)), receiving a suspended sentence plus 18 months’ probation (with credit for 425 days pre-sentence custody). This recent recidivism while on release aggravates his moral blameworthiness.

Mitigating Factors

12Mr. Griffiths entered an early guilty plea, accepting responsibility and conserving judicial resources. His eloquent comments to the court when asked if he had anything to say before the court imposed sentence also reflect remorse on the part of Mr. Griffiths. I have also read Mr. Griffiths personal note to the court which demonstrates that he has a clear understanding of the tragic toll that fentanyl has taken on those drawn to drug dealers in need of a fix for their drug addiction. It is rare that a drug dealer convicted of trafficking in fentanyl acknowledges their role in the tragic outcomes we see all too frequently in the media and our courts

13Mr. Griffiths while not a young offender, he is relatively young - approximately 28–29 years old at the time of the offence.

14While in custody Mr. Griffiths has to his credit earned his Ontario Secondary School Diploma in August 2024 and completed short educational sessions on substance use (March 2025) and anger management (March 2025). These reflect some insight and effort toward rehabilitation.

15Conditions of custody: The lockdown report indicates Mr. Griffiths was triple-bunked for 106 days

16Medical circumstances: The records document treatment for chronic issues, including pain related to a prior gunshot wound, dermatological concerns, and dental matters, as well as a history of ADHD and anxiety. He received appropriate institutional care for these issues A review of the medical records however makes clear that Mr. Griffiths suffers from a significant keloid condition on his face which has gone untreated while he has been in custody

Position of the Crown

17For mid-level commercial fentanyl trafficking involving approximately 100–130 grams in Ontario, post-Parranto and Lynch jurisprudence supports a range of 7 to 10 years before credits. Cases with comparable quantities and aggravating factors (records, breaches) commonly fall in the 8 to 9 year range, while exceptional aggravation (e.g., firearms, extensive organization) pushes higher: see R. v. England, 2024 ONCA 360 at 104.

18This case falls squarely in the mid-to-upper portion of the mid-level category due to the quantity, poly-drug involvement, commercial paraphernalia, multiple serious breaches and recent related conviction. However, the guilty plea and absence of a firearm in the current seizure justify restraint from the upper end.

19The Crown seeks a global sentence of 9 years as a fit, proportionate and consistent with parity and the paramount objectives of denunciation and general deterrence in fentanyl cases.

Position of the Defence

20Counsel for Mr. Griffiths suggests that the appropriate sentence should be one of 4-5 years less time served. It is also argued this court should allow a further credit of 6-8 months to reflect the time Mr. Griffiths was triple bunked (136 days) and in lockdown (262 days). It is suggested that the court should also consider a further credit to reflect the lack of medical treatment that should have been afforded to Mr. Griffiths in respect of a serious keloid condition on his face.

21Counsel referred the court to a number of sentencing decisions: R. v. Disher, 2020 ONCA 710; R. v. Jaber, 2021 ONCJ 247; R. v. Hillier, 2021 ONCJ 634; R. v. Wickens, 2020 ONCJ 106; and R. v. Dvmkowski, 2022 ONSC 6821 – a decision of Goodman J.

22The only decision referenced by the defence that deals with Parranto is the decision of Goodman J in Dvmkowski. The sentencing before Goodman J involved an accused who was found guilty after a trial of possession of fentanyl and cocaine for the purposes of trafficking. He was acquitted of two firearms offences and pled guilty to another count of possession of fentanyl (23.8 grams) for the purposes of trafficking. The Crown sought a total sentence of 11 years while the defence suggested a global sentence of 8 years-acknowledging that the accused was a mid-level trafficker. The sentence imposed by Goodman J was a total of 9 years.

23The decision of Javed J in Hillier is interesting as the sentencing judge did an extensive review of the caselaw dealing with the sentencing of an accused person convicted of trafficking in fentanyl. At the time of his arrest, Mr. Hillier had in his possession 28.1 grams of fentanyl;19.7 grams of methamphetamines and 9.2 grams of cocaine. The Crown sought a sentence of 5.5 years. The defence sought a sentence of 3 years. The decision of Javed J was released on November 2, 2021. The decision of the Supreme Court in Parranto was released on November 12, 2021. The sentence imposed in Javed of 4.5 years may well have been different if Parranto had been decided 11 days earlier.

Principles of Sentencing

24The principles of sentencing are well known and are set out in s. 718.1 and 718.2 of the Criminal Code of Canada (the “Code”). The principles of sentencing are intended for the protection of society and maintenance of a just, peaceful and safe society achieved by the denunciation of unlawful conduct; deterrence both general and specific; and the separation of an offender from society where necessary. Another important principle of sentencing is, of course, rehabilitation and reparation for harm done to victims and/or the community as well as the promotion of a sense of responsibility in the offender and an acknowledgement of the harm done.

25Pursuant to the provisions of s. 718.1 of the Code, a fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence as well as the degree of responsibility of the offender. Aggravating and mitigating circumstances are to be taken into account pursuant to the provisions of s. 718.2 of the Code. As well, a sentence to be imposed must be a sentence similar to those that are imposed on similar offenders in similar circumstances.

26As it relates to a finding of guilt in relation to possession for the purposes of trafficking in fentanyl, the jurisprudence has evolved and makes clear now that those convicted of trafficking in fentanyl will face a significant penitentiary sentence and that denunciation and deterrence are of fundamental importance.

27Section 10(1) of the Controlled Drugs and Substances Act also reflects that a fundamental purpose of sentencing in a drug case is to contribute to respect for the law and the maintenance of a just, peaceful and safe society while at the same time encouraging rehabilitation and treatment in appropriate circumstances. There is no evidence before this court that Mr. Griffiths, while convicted of possession for the purposes of trafficking, was doing so for the purposes of his own drug habit. I accept the submissions of Crown counsel that the quantity of fentanyl (108 grams) would generally be associated with a mid-level trafficker and as such, associated with profit as its fundamental purpose.

Analysis

28The imposition of sentence on almost any person convicted of a criminal offence is one of the more challenging tasks that trial judges must undertake. He has been convicted of a very serious offence involving a mid-level quantity of fentanyl – a drug which has been, and continues to be, associated with needless tragedy, all too frequently involving death. Appellate jurisprudence over the last few years makes it abundantly clear that even first offenders found guilty of trafficking in fentanyl may face a significant penitentiary term of imprisonment.

29Decisions out of the Supreme Court and the Court of Appeal like R. v. Parranto, 2021 SCC 46 and R. v. Lynch, 2022 O.J. No. 570 send very clear warnings to anyone involved in trafficking in fentanyl. The court also has to craft a sentence that properly weighs rehabilitation in the balance. General deterrence and denunciation are clearly in the forefront of any sentence involving the trafficking of fentanyl. Rehabilitation, however, has not been thrown out as a relevant consideration.

30In Parranto, Brown and Martin JJ dealt with the issue of range of sentence. From paragraph 36 of their reasons it is clear that ranges of sentence are guidelines and not hard and fast rules. Of equal importance at para. 26 is the guidance to trial judges that in imposing sentence, judges may “individualize sentencing both in method and outcome” and “different methods may even be required to account properly for relevant systemic and background factors.”

31As it relates to the starting point for the imposition of sentence, it is also worth repeating from Parranto at para. 61 that while on the facts before the court the starting point that was set was nine years, the court makes clear that sentencing judges are “free to depart from the starting point and move up and down from this marker based on the specific characteristics of the offender in order to meet the primary sentencing principle proportionality.”

32The danger of fentanyl has been well known now for many years. Despite these known dangers there are members of our society who seem to have no concern that what they do is causing untold misery and death. In his reasons in Parranto, Moldaver J. reviews at great length the impact that fentanyl has had on Canadian society. Noteworthy at para. 98 of his reasons, Moldaver J. states that trafficking in fentanyl is a crime “marked by greed and the pursuit of profit at the expense of violence, death and the perpetuation of a public health crisis previously unseen in Canadian society.”

33In the case of Mr. Griffiths, given the quantity of fentanyl found on his person at the time of his arrest, there can be little doubt that a significant motivating factor for his involvement in the drug trade was to make quick and easy money. At the point in his life when he was caught trafficking in fentanyl, Mr. Griffiths saw an easy way to make money that did not involve hard work.

34In Disher, one of the cases referenced in the defence brief of authorities, the Court of Appeal dealt with an accused who pled guilty to possession of 42.6 grams of fentanyl for the purposes of trafficking. The Crown sought a sentence of 12 years while the defence suggested a sentence of five to seven years. Mr. Disher was noted to have a serious criminal record spanning a period of 15 years without any significant or recent gaps in his offending behaviour. It was also noteworthy that within two weeks from the time of his release on a recognizance for other trafficking charges Mr. Disher was arrested again for trafficking in heroin that contained fentanyl.

35The trial judge imposed a sentence of 12 years, less pre-trial custody. Mr. Disher appealed on a number of grounds, one of which involved the failure of the trial judge to address the issue of rehabilitation. In addressing that argument, Gillese J.A. at para. 22 stated:

I do not accept the Crown’s submission. Section 718 of the Criminal Code states that, “The fundamental purpose of sentencing is to protect society and to contribute … 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 six specified objectives. Deterring the offender and assisting in rehabilitating offenders are two of those objectives – and both must be addressed when crafting a “just sanction” that meets the fundamental purpose enunciated in s. 718. In the Statement, the sentencing judge is addressing only whether past sentences had fulfilled the objective of specific deterrence. Nowhere in his reasons does the sentencing judge expressly advert to the rehabilitation objective or consider Mr. Disher’s rehabilitative prospects.

36Ultimately in Disher, the Court of Appeal reduced the sentence from 12 years to eight years. The failure of the trial judge to address Mr. Disher’s rehabilitative potential was one of the reasons why the Court of Appeal reduced the sentence.

37The guidance given sentencing judges by Moldaver J. in Parranto is that the range of sentence for those convicted of large scale trafficking in fentanyl is in the upper single digit to lower double digit – with justification where circumstances warranted to apply a higher range – see para. 101 Parranto.

38Since Parranto, the Ontario Court of Appeal has also dealt with the range of sentence for those convicted of mid-level trafficking in fentanyl. In R. v. Lynch, 2022 ONCA 109 the Crown appealed the sentence of four years imposed on Mr. Lynch for trafficking in cocaine and fentanyl. The quantity of fentanyl was 41.37 grams. The Crown in Lynch had sought a sentence of 10 years while the defence had argued for a sentence of three years.

39In allowing the Crown appeal, Nordheimer J.A. at para. 14 of his reasons in Lynch, held that the sentencing judge was in error when he compared mid-level trafficking in cocaine to mid-level trafficking in fentanyl. As fentanyl is a far more dangerous drug than cocaine, the aforesaid comparison was wrong. The more dangerous the drug the higher the sentence – see para. 15 Lynch.

40Ultimately at para. 25 of his reasons Nordheimer J.A. in Lynch concluded that the requested sentence of the Crown (10 years) for someone convicted of mid-level trafficking in fentanyl was “not unreasonable”. However, at para. 46 of his reasons, Nordheimer J.A. accepted that Mr. Lynch’s plea of guilty was a significant “mitigating factor” and taking into account Mr. Lynch’s age (29) and his one entry criminal record, the appropriate sentence was six years.

41More recently, the Court of Appeal in R. v. England, 2024 ONCA 360 at 104 dealt with the sentence for someone convicted of trafficking in fentanyl where the amount at issue was 95 grams. The sentence imposed as it relates to the fentanyl charge in England was 10 years. The sentence appeal was dismissed. At para 102-103 Zarnett J.A. stated:

102The appellant was not just trafficking fentanyl. He was trafficking large quantities of cocaine and an enormous amount of crystal meth. A loaded firearm was involved. To impose a sentence that focuses narrowly on the quantity of fentanyl in the appellant’s possession when he was arrested would ignore the substantial harms resulting from these other offences. The sentence that the trial judge imposed, conversely, is proportionate to the total gravity of the appellant’s crimes.

103The appellant’s sentence is also proportionate to his moral responsibility. The trial judge found that the appellant held a high-level position in a commercial drug trafficking enterprise. The appellant has an extensive record of drug trafficking and firearm offences. He has repeatedly re-offended despite serving multiple penitentiary sentences and being subject to multiple weapons prohibition orders.

42It is clear from a review of the jurisprudence that general deterrence and denunciation are the primary considerations when addressing how to craft a sentence involving someone convicted of mid-level trafficking in fentanyl. I am satisfied that Mr. Griffiths falls within the category of someone who was a mid-level trafficker in fentanyl.

43It is equally clear that the court is given the discretion to raise or lower the range of sentence depending upon the circumstances of the offender and in that regard the rehabilitative potential of the offender is a relevant consideration. Having listened to Mr. Griffiths and having reviewed Exhibit 8 (Mr. Griffith’s letter to the Court) I believe Mr. Griffiths has developed real insight into why dealing in fentanyl is not a victimless crime. It is in fact a crime that all too frequently ends up in an unsuspecting purchaser suffering from an overdose or worse-death. Mr. Griffiths also has shown insight into furthering his education. He is a father of 3 children. He has a supportive mother and family. I believe Mr. Griffiths has the real potential for rehabilitation .

44Taking into account all of the factors that I have reviewed above, in my view, the appropriate sentence to impose on Mr. Griffiths is one of seven years.

45As it relates to the deductions from this sentence it is agreed that Mr. Griffiths is entitled to a deduction of 28 months and 10 days to which I add an additional 15 days since this court heard submissions on May 1,2025 which I have rounded up to 29 months . The net sentence to be served before any deduction to reflect the period of lockdowns and triple bunking is 55 months or 4.58 years.

Duncan Credit

46As previously noted above Crown counsel initially suggested an eight year sentence taking the position this reflected any credit that Mr. Griffiths was entitled to for the period of lockdowns and triple bunking he has experienced since his incarceration at CNCC. When defence counsel suggested he was asking the court to credit Mr. Griffiths with an additional 6-8 months for the lockdowns and triple bunking Crown counsel changed her position to seek a 9 year sentence reduced to 8 years to reflect the conditions in CNCC experienced by Mr. Griffiths.

47In addition to oral submissions the court received written submissions from the Crown. As it relates to the lockdowns and triple bunking at CNCC the Crown (not Ms Dhewan) wrote:

“The lockdown and triple-bunking conditions, though uncomfortable, are systemic challenges faced across many Ontario institutions and do not rise to the level of exceptional hardship that would justify significant Duncan/Marshall credit beyond ordinary pre-sentence custody credit.

The report confirms that efforts were made to provide out-of-cell time even during lockdowns, and the offender spent most of his remand in open living units.”

48In her recent decision R. v. Reid 2026 ONSC 136 Molloy J reviewed at some length the principles to apply when deciding how and how much Duncan credit should be allowed to reflect harsh pre trial conditions of incarceration. I can do no better than reproduce what Molloy J wrote at para 32 and following:

32In its 2016 decision in R. v. Duncan, Court of Appeal for Ontario held that sentences could be reduced beyond the Summers credit to reflect particularly harsh conditions during an accused’s pre-sentencing custody. Thereafter, many sentencing judges made sentence reductions for what came to be known as the “Duncan credit”, typically as a multiplier based on the number of days of such harsh conditions. The Court of Appeal addressed the issue again in 2021 in R. v. Marshall, holding that the “Duncan credit” is more properly characterized as a mitigating factor in sentence, rather than a “credit” against what would otherwise be a fit sentence. Doherty J.A. held that it remains permissible for sentencing judges to calculate the reduction as a multiplier, or to quantify it in some way, although, it is also permissible to say that it was being considered as a mitigating factor without quantifying it as such. The important point from Marshall is that regardless of how the reduction for harsh pre-sentencing custody is calculated, the amount of the reduction cannot be permitted to result in a sentence that is unfit.

33In my view, the preferable of these two options is to quantify how much is being deducted for the Duncan/Marshall factor. This provides a better picture of what the “real” sentence is for the offence (providing better precedential value for the decision) while providing more transparency with respect to the extent the harsh conditions in the institution affected the sentence. I dealt with this issue in an earlier decision, R. v. Shaikh and Tanoli, and will simply reproduce here what I said then:

With the greatest of respect for the guidance provided by the Court of Appeal for Ontario in Marshall, I consider it preferable, not merely acceptable, to quantify the period of time by which a sentence is reduced to reflect the harsh and punitive conditions of pre-trial custody provided for in Duncan. I take no issue with this being properly characterized as a mitigating factor, nor that it should not be used so liberally as to make a sentence unfit. However, in my opinion, the Duncan credit by its nature, lends itself to being expressed numerically, which is not the case for other kinds of mitigating factors, such as remorse, youth, and the like.

Transparency and consistency are two important underlying principles of sentencing that are best served by specifying the amount of the Duncan credit. If a sentencing judge merely states that the punitive pre-trial custody conditions have been factored in, without specifying how, neither the accused, the public, the government, nor correctional officials will know the extent to which this has been done. In the result, there will be no public knowledge of the impact deplorable conditions in the prisons are having on the sentences served by offenders, providing little incentive to those in authority to fix the problem. While the amount of credit to be given is a matter of discretion to which deference would typically be afforded, sentencing judges being transparent about the amount of the sentence reduction given will also provide a better opportunity for appellate oversight and error correction.

Consistency in sentencing is enhanced in two ways by specifying the amount of the Duncan credit. First, individual sentencing judges will have a better sense of the extent to which other judges are taking the Duncan credit into account. This would reduce the risk of some judges awarding substantial credit for harsh conditions, while other judges may be making only a minimal adjustment to the sentence. This facilitates sentencing judges in complying with the requirement of the Criminal Code that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”

Second, if the sentence that would have been imposed without the Duncan credit is clearly stated, this will assist in determining consistency in sentencing for any given offence. Otherwise, sentences for particular offences may seem completely out of proportion to other sentences, a difference which might be fully explainable by the difference in the circumstances of pre-trial incarceration. In that manner, the Duncan credit will not have the effect of distorting what the “real” sentence would have been, but for the mistreatment of the offender in the correctional institution.

34As I noted in Shaikh and Tanoli, other judges of this court have taken the same approach, including Schrek J. in R. v. Ahmed, Forestell J. in R. v. Bernard, Himel J. in R. v. Hassan, and Allen J. in R. v. Kongolo. Since that time, there have been many others, including Lacelle J. in R. v. Rush, Kelly J. in R. v. Pintyi, Barrett J. in R. v. Llanos, Schreck J. in R. v. Charley, and R. v. Gorgievski, and Nishikawa J. in R. v. Noor.

35The Toronto South Detention Centre provided records of triple bunking and lockdowns for the time Mr. Reid was incarcerated there. As I noted in my oral reasons, there is no indication that there has been any improvement in those conditions. Thus, it is reasonable to conclude that the same harsh conditions extended for the rest of his incarceration, post-dating the completion of the report. The records show that the Toronto South was subject to lockdowns for 180 days over the approximate two-year period Mr. Reid had been there. That means that for 25% of his time served, the institution was in lockdown, typically due to staff shortages. During that same period covered by the report, he was triple-bunked for a total of 166 days, which, if carried forward to the date of sentencing, equates to 208 days. I have therefore calculated the appropriate Duncan reduction based on 208 days of triple bunking and 203 days of lockdowns.

36I recognize that some of the lockdowns were for shorter periods of time, and some of the lockdown and triple-bunking days overlap. However, there is a considerable aggravating impact given that during a lockdown, three inmates are locked in a cell built for only two. Even with two to a cell, the space is cramped. The addition of a third man on a mattress on the floor is bad enough, but enduring that during lockdown conditions can only be described as intolerable. Furthermore, many of these triple-bunking days were sequential. Again, one night of triple-bunking is bad enough, but multiple days in a row is unacceptable. The records show that Mr. Reid was triple bunked for multiple weeks in a row. For example, he was triple bunked from October 7 to October 31, 2024 (8 days of which were during lockdowns), and from February 1 to February 20, 2025 (including 7 days on lockdown). These are just two examples; there are others.

37This is not an isolated problem. It is endemic and ongoing. For the past several years, I and numerous other judges, have written often about this problem and granted additional reductions in sentence for unacceptably harsh conditions at the Toronto South Detention Centre (and other nearby institutions). And yet, the underlying problems persist. Such reductions have now become more the norm rather than the exception.

38I have commented before on these problems, including in Shaikh and Tanoli,10 and will not repeat here everything that I said before.

39As futile as it may seem, all I can do in response to this mistreatment is provide some relief by way of a sentence reduction to the unfortunate individuals who have been forced to live this way. I am aware that this is but a band-aid and that it appears to do little to persuade those with power to do anything to fix the root cause. It is particularly troubling that so many of the inmates in these institutions are enduring these conditions while waiting for their trials and, therefore, while presumed innocent. These conditions are not civilized and will likely result in justifiable resentment and outrage against “the system” rather than promoting or encouraging positive attitudes towards rehabilitation.

40Nevertheless, politicians continue to urge that fewer people be released on bail and stiffer sentences be imposed on those found guilty of offences. My question is: where are these people meant to go? Adding more inmates to already over-crowded jails will simply exacerbate the situation. More tempers will flare in these anxiety-producing conditions; more correctional officers and inmates will be exposed to violence; more correctional officers will be off on sick leave; more will seek employment elsewhere; and fewer people will apply for correctional officer positions because of the poor working conditions. All I can do is provide some minimal relief after-the-fact, and that is what I will continue to do. However, I continue to feel that I am pounding my head on the proverbial concrete walls of the Toronto South Detention Center and other institutions like it.

41There is no science to the calculation of the reduction for the Duncan factor. Sometimes, it is based on a multiplier applied to the number of days when the conditions were particularly harsh; sometimes it is expressed as an additional multiplier for the whole of the time served (for example, an additional half day for all the days served, effectively granting a 2:1 credit for time served when the Summers credit is added; other times, it is simply what the sentencing judge considers to be a fair reduction for the overall harshness of the circumstances. In this case, the conditions were more generalized and a simple multiplication of the days does not reflect the harshness of the impact of overlapping lockdowns and triple-bunking. In my view, the appropriate reduction for the harsh conditions is 1.7 years.

49The Crown in his written submissions suggests that lockdowns and triple bunking while “uncomfortable” are “systemic challenges faced across many Ontario institutions” and thus do not “rise to the level of exceptional hardship” that would warrant any significant Duncan/Marshall credit. With the greatest of respect to the Crown these submissions fail to acknowledge that many of the accused persons in a provincial institution are awaiting their trials and are thus deemed innocent until proven guilty. To suggest that three people triple bunked in a cell designed at most for two people is merely uncomfortable truly does a disservice to our judicial system. Triple bunking coupled with being locked in that cell for lengthy periods of time because of “staff shortages” is again something more than just uncomfortable – it is fundamentally wrong.

50As Molloy J. in Reid notes, the Court of Appeal in Marshall suggests that any Duncan credit is more properly characterized as a mitigating factor in sentence, rather than a “credit” against what would otherwise be a fit sentence. However, Doherty J.A. does allow in Marshall for judges imposing sentence to quantify the credit given for pre trial incarceration that has an inordinate amount of lockdowns and or triple bunking. I agree with the comments of Molloy J (and others) that it in fact may be preferable to quantify the Duncan/Marshall credit.

51It is important that the person being sentenced fully understands that the sentencing court in fact has taken into account what credit is to be given (if any) for lengthy periods of lockdown and triple bunking. Equally important are the members of the public. The public deserves to know that an accused person might otherwise have received a sentence of “X” years but that the “X” years has been reduced by a quantifiable period of time to take into account things like lockdowns and triple bunking. It is within the control of the government to eliminate any Duncan/Marshall credit by dedicating the resources needed to ensure that accused people awaiting their trial and presumed innocent are not subject to unnecessary lockdowns and triple bunking. As long as those resources are not extended to our provincial jails it is entirely appropriate to consider the application of Duncan and Marshall to ensure the accused person receives a fit and fair sentence that takes into circumstances within the control of the government.

52The Crown in her oral submissions suggested if the court was considering a Duncan credit that she would resile from her original position of 8 years to a suggested sentence of 9 years. I infer from this change in position that the Crown would recognize the appropriate Duncan credit that should apply to Mr. Griffiths is one year. It is agreed that Mr. Griffiths was in lockdown for 262 days and triple bunked for 136 days. Triple bunking meant that Mr. Griffiths was often sleeping on the floor on a mattress abutting the toilet. While not all of the 262 lock down days were full days nonetheless the lockdowns were frequent as were the number of days Mr. Griffiths was left to sleep on the floor of his cell.

53Mr. Griffiths did receive medical treatment while he was incarcerated at CNCC. He could not, however, access the treatment he needed for the keloids on his face.

54The appropriate Duncan/Marshall credit that this court deems appropriate, weighing all of the factors reflected in these reasons, is a period of one year.

55The total remaining sentence to be served by Mr. Griffiths is one of 43 months (55 months minus Duncan credit of 12 months) or 3.58 years.

56The Crown also seeks a forfeiture order, a mandatory order under s. 109 as well as a DNA order, all of which are conceded on behalf of Mr. Griffiths and such orders shall issue.

Edwards, J

Released: May 15, 2026

CITATION: R. v. Griffiths, 2026 ONSC 2831

COURT FILE NO.: CR-24-00000134-0000

DATE: 20260513

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

ELIJAH GRIFFITHS

Defendant

REASONS FOR DECISION

Edwards, J

Released:May 15, 2026