Ontario Superior Court of Justice
Parties
B E T W E E N:
HIS MAJESTY THE KING
- and -
VERJINE MOSKOVIAN
Counsel
Mark Miller, for the Crown
Daniel Varilone and Royland Moriah, for Ms. Moskovian
HEARD: May 14, July 31, August 22, September 25, November 18, 2024, January 31, March 3, 2025, and March 2, 2026
REASONS FOR SENTENCE
Stribopoulos J:
Introduction
1On October 9, 2016, Verjine Moskovian returned to Canada on a flight from Aruba. During screening by border officials, she was discovered to be concealing 2.67 kg of cocaine on her body and was arrested.
2In May 2024, Ms. Moskovian pleaded guilty before me to importing cocaine into Canada, contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("CDSA"). The lengthy delay between the commission of her offence, Ms. Moskovian's guilty plea and the imposition of sentence mostly stems from the same underlying cause.
3In early 2019, Ms. Moskovian experienced a sudden and unexplained loss of vision. After comprehensive medical testing, she was diagnosed with an aggressive form of optic neuritis affecting both eyes. In the years since, she has undergone extensive treatment. Despite that treatment, she is now blind in her left eye and retains only 10 to 20 percent of her vision in her right eye.
4During the sentencing hearing, the court heard evidence intermittently over time to accommodate the availability of the relevant witnesses. That evidence concerned Ms. Moskovian's medical condition, prognosis, ongoing medical needs, and whether those needs could be adequately met in provincial and federal correctional facilities. Completion of the sentencing hearing was further delayed because Ms. Moskovian's former counsel, Mr. Varilone, left private practice, and her new lawyer, Mr. Moriah, needed time to become familiar with the evidentiary record developed during the proceedings.
5The central issue dividing the parties on sentence is whether Ms. Moskovian's medical needs can be adequately addressed in custody.
6Ms. Moskovian submits that they cannot. She argues that incarcerating her would create a very real risk that she will lose her remaining vision. On that basis, she seeks a conditional sentence, even though such a sentence, which cannot exceed two years, would fall well below the established sentencing range of six to eight years' imprisonment for her offence.
7Although the Crown acknowledges that Ms. Moskovian's circumstances will make incarceration qualitatively harsher for her than for most offenders, and concedes that this justifies a sentence below the usual range, it maintains that her medical needs can nevertheless be adequately addressed in custody. The Crown therefore submits that a conditional sentence is not warranted and that a sentence of four to five years imprisonment should be imposed.
8These reasons proceed in four parts. First, I review the circumstances of the offence. Second, I address Ms. Moskovian's personal circumstances, including her medical condition and ongoing treatment needs. Third, I summarize the evidence concerning the ability of provincial and federal correctional authorities to meet those needs should Ms. Moskovian be incarcerated. Finally, I apply the governing sentencing principles to the evidentiary record, as informed by my findings, to determine the appropriate sentence for Ms. Moskovian for her offence.
I. Circumstances of the Offence
9On October 9, 2016, Ms. Moskovian arrived at Lester B. Pearson International Airport aboard a flight from Aruba.
10Ms. Moskovian had been flagged in the Canada Border Services Agency ("CBSA") system for a "lookout" and, when she presented her customs declaration card to a CBSA officer in the baggage hall, she was referred for secondary inspection.
11In the secondary inspection area, Ms. Moskovian was questioned about her trip. Her luggage and personal belongings were searched, and she was eventually subjected to a personal search, during which the suspected cocaine was found concealed on her body.
12Ms. Moskovian was initially arrested for smuggling under the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), and was advised of her right to counsel and cautioned. After she spoke with duty counsel, the RCMP were contacted and attended at the airport. They then arrested her for importing a controlled substance contrary to the CDSA.
13The substance secreted on Ms. Moskovian's body was ultimately confirmed to be cocaine. In total, Ms. Moskovian imported 2.67 kg of cocaine into Canada.
II. Circumstances of the Offender
14Ms. Moskovian is now 41 years old. She was 32 at the time of the offence. She has no criminal record.
15When she was six years old, Ms. Moskovian immigrated to Canada from Lebanon with her parents and two older siblings. She has a younger brother who was born in Canada. The family settled in Toronto, where Ms. Moskovian grew up.
16Ms. Moskovian graduated from high school in 2004. She began working at age 16, while still a student, and was gainfully employed in the retail and food-service sectors throughout much of her adult life, including in managerial roles, until the onset of her health issues in January 2019. At that time, she was working as an assistant manager at Swiss Chalet. She later attempted to return to work as a customer service representative for the same restaurant chain, but that role required computer work, which proved impossible given her vision limitations. As a result, Ms. Moskovian is no longer able to work.
17Ms. Moskovian has been in a relationship with her common-law partner since February 2017. The couple's daughter was born in late 2018, shortly before the onset of her health issues. Ms. Moskovian lives with her partner, their daughter, her teenage stepdaughter, and her brother. Her brother quit his job and moved in with the family in September 2019 to help care for Ms. Moskovian and assist with her daily living needs, including caring for her daughter.
18Two months after her daughter was born, in January 2019, Ms. Moskovian attended Lakeridge Hospital in Ajax, close to where she lives, because she was experiencing extreme abdominal pain. While there, she blacked out. When she regained consciousness, she was unable to see out of either eye. She remained in the hospital for more than a month. During that time, she was seen by several specialists and underwent extensive testing. An ophthalmologist examined her and found that her eyes were normal, leading her treating physicians to suspect that the problem was behind the eyes, involving the optic nerves.
19In February 2019, a neurologist at Lakeridge Hospital referred Ms. Moskovian to Dr. Arun Sundaram, a neuro-ophthalmologist at Sunnybrook Hospital ("Sunnybrook") and an associate professor at the University of Toronto's medical school. Dr. Sundaram first assessed her on February 27, 2019, and diagnosed her with optic neuritis involving both eyes. He testified at the sentencing hearing.
20Dr. Sundaram described neuro-ophthalmology as a subspecialty that overlaps ophthalmology and neurology. He testified that there are very few neuro-ophthalmologists in Ontario: eight or nine in Toronto, a few in Ottawa and London, one in Hamilton, and one in Kingston.
21Dr. Sundaram eventually diagnosed Ms. Moskovian with optic neuritis, a condition involving inflammation or damage to the optic nerve, which connects the eye to the brain. Hers is an idiopathic case, meaning that the underlying cause is unknown. Both of her optic nerves are affected. The condition causes pain behind the eyes, headaches, and vision loss. Some patients respond well to treatment. Others, like Ms. Moskovian, experience permanent optic nerve damage and resulting vision loss.
22According to Dr. Sundaram, Ms. Moskovian's optic neuritis is among the more aggressive and complex forms he has seen. Given the complexity of her condition, he has sought assistance from several other specialists, including a rheumatologist, a neuroinflammatory specialist, and a neurometabolic disorders specialist.
23Since Dr. Sundaram began treating Ms. Moskovian in 2019, she has experienced multiple relapses despite receiving ongoing treatment. These relapses involve renewed inflammation of the optic nerves. When she experiences a relapse, she has a cluster of symptoms, including pain behind the eye, headaches, and declining vision. Over time, Ms. Moskovian's relapses have caused extensive and permanent damage to her optic nerves, as well as significant further vision loss. She experienced five relapses between January 2019 and May 2024.
24Ms. Moskovian's ongoing treatment consists mainly of a low dose of steroids to reduce inflammation in her optic nerves, and a second medication that suppresses her immune system, which, in her case, is overactive and attacks her own tissue. These medications carry significant adverse side effects. For example, Ms. Moskovian has developed diabetes, medullary sponge kidney, and high blood pressure, and she takes additional medications for some of these conditions.
25Following her optic neuritis diagnosis in 2019, Ms. Moskovian has also struggled with depression. Her depression is connected to the realization that she could ultimately lose what vision remains, and to the ongoing uncertainty about when she will suffer her next relapse. Since 2019, she has seen a psychiatrist regularly and has taken medication to manage her depression.
26The medications Ms. Moskovian takes cause fatigue, light-headedness, and dizziness, requiring her to rest several times a day. Her family doctor oversees her use of these various medications. She sees Dr. Sundaram only for periodic check-ins every three to six months, unless she experiences a relapse.
27Due to her optic neuritis, Ms. Moskovian is now legally blind in her left eye and retains only 10 to 20 percent of vision in the central field of her right eye. She has no peripheral vision in that eye. She describes her remaining vision in her right eye as "like looking through a keyhole."
28Because of her limited vision, Dr. Sundaram testified that Ms. Moskovian is prone to falling and bumping into objects, especially in unfamiliar environments. That has been Ms. Moskovian's experience. She has fallen down the stairs and bumped into objects in her home many times, despite being familiar with its layout, and regularly bumps into people and objects when outside her residence. As a result, she rarely leaves home alone. Ordinarily, when outside her home, she relies on her daughter, now seven, her brother, or a friend to guide her.
29Relatedly, Dr. Sundaram testified that any trauma to Ms. Moskovian's head — such as bumping her head on a hard surface, falling and striking her head, or sustaining a blow to the head — could further damage her optic nerves and worsen her eyesight.
30Dr. Sundaram testified that Ms. Moskovian's relapses are entirely unpredictable. When they occur, she must attend hospital for more intensive treatment. Once there, she undergoes an MRI scan to determine whether there is a new area of inflammation, and receives steroids and an immunosuppressant intravenously. Ordinarily, following a relapse, Ms. Moskovian remains in the hospital for three to five days while receiving intravenous treatment. After discharge, she follows up with Dr. Sundaram on an urgent basis. Dr. Sundaram acknowledged during his testimony that Ms. Moskovian could receive the treatment she requires for a relapse at any hospital.
31Dr. Sundaram testified that when Ms. Moskovian experiences a relapse, timely treatment in hospital is essential. He testified that she must attend hospital "right away" and "without delay" and that any delay in receiving treatment could result in further damage to her optic nerve fibres and additional irreversible vision loss. Dr. Sundaram further testified that with each relapse, and the resulting deterioration of Ms. Moskovian's vision, the need for speedy medical intervention becomes even greater.
32When she experiences symptoms associated with a relapse, Ms. Moskovian immediately attends Lakeridge Hospital, which is 15 minutes from where she lives. Since January 2019, when she first attended Lakeridge and experienced vision loss, the physician primarily responsible for her care at that hospital has been Dr. Aparna Gupta, an ophthalmologist.
33Upon arrival at Lakeridge, Ms. Moskovian presents a card for staff to scan, which provides them with the details of the treatment she urgently requires. She is then immediately placed on an IV drip so she can receive the high-dose steroids and immunosuppressants required to address her relapse.
34After that, Dr. Gupta and Dr. Sundaram are notified of her admission. Dr. Gupta ordinarily sees her within a few hours of admission and again throughout her hospital stay. Dr. Sundaram is also consulted about her treatment while she remains in hospital.
35Ms. Moskovian is terrified by the prospect of being imprisoned because she believes her limited vision would make her especially vulnerable in a custodial setting. She fears being targeted by other inmates because of that vulnerability and worries that, if assaulted, she could lose her remaining vision. She also worries about how she would navigate the institutions where she may be incarcerated and attend to her basic needs, matters with which her family assists her at home. During cross-examination, however, Ms. Moskovian conceded that, if incarcerated, she would not hesitate to ask correctional staff for assistance if she needed to get from one location to another and that, over time, she could familiarize herself with a new environment and learn to navigate it on her own.
III. Ability of Correctional Authorities to Meet Ms. Moskovian's Medical Needs
36Should Ms. Moskovian receive a penitentiary sentence, as the Crown urges, she would necessarily spend at least 15 days, and possibly much longer, in a provincial correctional facility before ultimately being transferred to a federal penitentiary: see Corrections and Conditional Release Act, S.C. 1992, c. 20 ("CCRA"), ss. 12–14. During the sentencing hearing, the court heard testimony from representatives of the provincial and federal correctional systems.
Vanier Centre for Women
37Christine Bintakies testified at the sentencing hearing. She is a registered nurse and the acting health-care manager at the Vanier Centre for Women ("Vanier"), the provincial correctional facility located in Milton where Ms. Moskovian would most likely begin any custodial sentence the court might impose.
38Ms. Bintakies testified that Vanier houses inmates on remand, inmates serving reformatory sentences, and inmates subject to immigration detention. It accommodates inmates who are subject to maximum and medium security classifications. At the time of her testimony, the facility had 340 inmates, near its capacity of 350.
39Ms. Bintakies testified about Vanier's ability to meet the needs of offenders, such as Ms. Moskovian, who have complex medical needs. She noted that, in accordance with s. 57 of the Correctional Services and Reintegration Act, 2018, S.O. 2018, c. 6, Sch. 2, the mandate of health-care services at Vanier is to provide each inmate with essential health care and reasonable access to non-essential mental health care. She testified that the health-care team provides services to inmates with a broad spectrum of medical conditions, both physical and psychiatric, ranging from the routine to the complex.
40Ms. Bintakies provided detailed evidence regarding the composition of Vanier's health-care team and the services they provide to inmates. These include institutional family physician services, with a physician present at the institution from Monday to Friday, 8:00 a.m. to noon, and on call at other times; two on-site nurse practitioners from Monday to Friday, 8:00 a.m. to 4:00 p.m.; two psychiatrists six days a week for at least four hours; mental-health nurses seven days a week from 8:00 a.m. to 11:00 p.m.; a psychologist Monday to Friday from 8:00 a.m. to 4:00 p.m.; and as many as nine and as few as two nurses at any given time, with two on duty overnight. Further, Ms. Bintakies testified that when an inmate's health-care needs cannot be met within the institution, the health-care team arranges and facilitates appointments with specialists in the community, including at clinics or hospitals in Toronto, such as Sunnybrook.
41Ms. Bintakies explained that inmates undergo a comprehensive health care assessment by a nurse upon arrival at Vanier. During that process, inmates are encouraged to share information about their health care needs to ensure continuity of care. If the inmate is taking prescription medications, an order for those medications will then be placed. If the initial assessment reveals complex medical needs, arrangements are made for the inmate to be seen by a doctor the next day, or as soon as the doctor is next available. The doctor then conducts a full medical assessment. Vanier can access an inmate's existing medical records through an online portal or by contacting the inmate's community physicians directly. Additionally, an inmate's doctor can fax medical records to the health-care unit at Vanier in advance of the inmate's arrival.
42According to Ms. Bintakies, Ms. Moskovian's specific health care needs could be effectively addressed at Vanier. She testified that Ms. Moskovian could be housed in a ground-level unit, thereby eliminating the need for her to navigate stairs. Nurses make rounds on each unit and dispense prescribed medications four times per day. The two nurses on staff overnight do not make rounds; they respond to calls from correctional officers regarding inmates experiencing medical issues. Those calls are made by radio or through the institution's paging system. Further, Ms. Bintakies testified that, if assessed as necessary, and assuming one of the ten beds in that unit is available, Ms. Moskovian could potentially be housed in Vanier's medical unit throughout her stay. The medical unit is immediately adjacent to the health-care department, where the overnight nurses are stationed.
43Additionally, Ms. Bintakies testified that, while Ms. Moskovian is at Vanier, arrangements could be made for a nurse to assist her with whatever daily living needs she may have. These could include, for example, dressing, setting up her meals, or showering. The medical unit has its own shower and exercise yard. Ms. Bintakies testified that, during her time at Vanier, the institution had dealt with inmates who had visual impairments, including an inmate who was legally blind.
44Ms. Bintakies testified that neuro-ophthalmology services and renal specialists are available at the two community hospitals closest to Vanier: Milton District Hospital ("MDH") and Oakville Trafalgar Memorial Hospital ("OTMH"). (Her evidence about the availability of neuro-ophthalmology services is not easily reconciled with Dr. Sundaram's evidence about the limited availability of that subspecialty in southern Ontario.) Emergency Medical Services ("EMS") also respond to Vanier as needed, transporting inmates to hospital by ambulance when necessary. Ms. Bintakies testified that MDH is less than a 10-minute drive from Vanier, and OTMH is a 15- to 20-minute drive away.
45Two correctional officers are assigned to each range and monitor inmates when they are outside their cells. When inmates are locked in their cells, correctional officers make rounds every 20 minutes to check on them. Additionally, inmates can summon a correctional officer to their cells by pressing an emergency call button.
46If an inmate raises a medical complaint with a correctional officer, the officer will call for a nurse, who will then attend to assess the situation. If the nurse decides it is necessary, they can seek assistance from a doctor or nurse practitioner. If a doctor or nurse practitioner is not at the institution at the time, the nurse can contact the on-call doctor for guidance. Ms. Bintakies acknowledged that it can sometimes be difficult to reach a doctor between 11:00 p.m. and 6:00 a.m. When that happens, she testified, nurses are to arrange for the inmate to be sent to hospital, which can be done using a Ministry vehicle depending on the circumstances.
47When a nurse determines that an inmate is having a medical emergency requiring immediate hospital treatment, Ms. Bintakies testified that a 911 call would be placed. An ambulance will then attend Vanier. EMS staff will enter the institution through Admitting and Discharge, attend the unit where the inmate is located, assess the inmate, and, if warranted, remove the inmate from the institution, place them in an ambulance, and transport them to hospital in the company of two correctional officers. Ms. Bintakies acknowledged that this process can mean it takes between 30 and 45 minutes for an inmate to arrive at MDH, and longer to arrive at OTMH. However, less time is required for acute medical emergencies, such as a heart attack or an inmate with absent vital signs, because they are priority ambulance calls.
48Ms. Bintakies testified that arranging emergency transport to hospital is not affected by staffing levels at Vanier. Even when the institution is short-staffed, it will be locked down to permit two correctional officers to accompany an inmate to hospital for a medical emergency. However, she did not provide any evidence concerning the amount of time that would be required to lock down the facility.
49During her testimony, Ms. Bintakies acknowledged that violence between inmates is a reality at Vanier. However, she testified that violence is very rare in the medical unit, estimating that there had been only one such incident in that unit during the preceding year. In that regard, she testified that if an inmate with complex medical needs is assessed as posing a risk of acting out violently, they will not be kept in the medical unit but will instead be housed and treated in a more secure unit. Similarly, if an inmate initially housed in the medical unit begins exhibiting aggressive behaviour, they will be moved to a more secure unit.
Grand Valley Institution for Women
50Carrie Byfield also testified at the sentencing hearing. She is a registered nurse and the manager of Health and Rehabilitation Programs and Services at the Grand Valley Institution for Women ("Grand Valley"), located in Kitchener. Grand Valley is the penitentiary where Ms. Moskovian would most likely serve the balance of any sentence of imprisonment of two years or more.
51According to Ms. Byfield's affidavit, as required by s. 86 of the CCRA, the Correctional Service of Canada ("CSC") must provide every inmate with essential health care and reasonable access to non-essential health care, in a manner that conforms to professionally accepted standards. Generally, those needs are met within the institution where an inmate is incarcerated. If that is not possible, they are met through community resources, including clinics and hospitals, or, where appropriate, through a CSC treatment facility, such as the Regional Treatment Centre for Ontario in Kingston.
52Ms. Byfield provided detailed evidence regarding the health-care resources available at Grand Valley, which has a significant number of staff dedicated to inmate health care. Those staff include nurses, a nurse practitioner, registered psychologists, social workers, occupational therapists, and behavioural science technicians. Ms. Byfield testified that there were as many as ten nurses on staff on any given day, including three mental-health nurses. Nurses are present at the institution from 7:00 a.m. to 6:00 p.m. on weekdays, and from 7:00 a.m. to 3:00 p.m. on weekends. Additionally, Grand Valley has a psychiatrist and an institutional physician on contract. The physician has approximately 16 hours per week under her contract, is on site for at least about a day and a half each week, and is otherwise on call from 7:00 a.m. to 6:00 p.m.
53In advance of an inmate's arrival at Grand Valley, health-care staff seek to obtain the inmate's medical records from the provincial correctional facility where the inmate was held. They use that information to ensure that any required prescription medications are on hand. Upon arrival, inmates undergo an initial assessment of their physical and mental-health needs, followed by a more comprehensive assessment in the days or weeks that follow. As part of that process, health-care staff obtain information from the inmate regarding their medical history and have the inmate execute any consents required to obtain records from community treatment providers.
54Ms. Byfield testified that Grand Valley provides services to inmates with a broad range of physical and psychiatric conditions, from routine to complex. Where an inmate's needs exceed what can be provided within the institution, CSC can arrange care through community resources, such as specialty clinics and hospitals. For example, if an inmate arrives with existing specialists and appointments, medical temporary absences can be arranged so the inmate can continue seeing their community specialist, attend scheduled appointments, and have additional appointments scheduled by Grand Valley medical staff.
55Regarding Ms. Moskovian's specific circumstances, Ms. Byfield testified that Grand Valley's medical staff would develop a holistic plan of care for her. In her affidavit and testimony, she identified possible supports that could be made available to Ms. Moskovian, including a personal support worker, if that level of assistance were considered medically necessary. She also testified that an inmate caregiver could assist with some needs, although not with bathing, showering, or personal hygiene. Additionally, Ms. Byfield testified that arrangements could be made to permit Ms. Moskovian to continue seeing her specialist at Sunnybrook.
56Ms. Byfield testified that Grand Valley has previously managed inmates with significant visual impairments, including full or partial blindness. That has included arranging additional assessments, conducting regular check-ins, and arranging assistance from a personal support worker or an inmate caregiver. In one case, Grand Valley arranged for the Canadian National Institute for the Blind to provide white-cane training and instruction in braille reading. However, Ms. Byfield acknowledged that she was unaware of Grand Valley previously managing anyone with an aggressive form of optic neuritis, like Ms. Moskovian.
57Ms. Byfield also testified about Grand Valley's physical layout and housing options. At the time of her testimony, Grand Valley had approximately 214 inmates, with a capacity of about 220. Grand Valley includes minimum, medium, and maximum-security areas. Most medium-security accommodation consists of living units or houses, and not all living units have the same layout. Some have two floors, while others are bungalow-style or trailer-style units with ramp access. If an inmate has mobility issues, cannot navigate stairs, or requires single-room accommodation, health care staff liaise with correctional managers to ensure that the inmate is placed appropriately.
58Ms. Byfield testified that there are three community hospitals in the Kitchener-Waterloo-Cambridge region, where Grand Valley is located: Grand River Hospital, St. Mary's Hospital, and Cambridge Memorial Hospital. She testified that the closest hospital, Grand River Hospital, is about a 15-minute drive from Grand Valley. Ms. Byfield understood that neuro-ophthalmology services were available through a group of doctors shared among the three community hospitals in the region, with someone on call 24 hours a day for emergencies. However, she acknowledged that she had not personally spoken to a neuro-ophthalmologist and did not know the size of the neuro-ophthalmology group. (Dr. Sundaram's evidence about the limited availability of neuro-ophthalmology services in southern Ontario gives me some pause about this aspect of Ms. Byfield's evidence.)
59Regarding unexpected medical issues that may arise with an inmate, Ms. Byfield testified that correctional officers are typically the first to respond. During the day, when nurses are present, a correctional officer will radio health care staff, and a nurse will then attend to assess the inmate. For obvious life-threatening emergencies, correctional officers will begin life-saving measures, such as CPR, and 911 will be called immediately. For less obvious or non-life-threatening medical events, the response may involve assessment by correctional officers and/or nurses, consultation with a doctor or regional hospital nurses, and, ultimately, a decision about whether to call an ambulance. If a 911 call is necessary, Ms. Byfield testified that the EMS response time in Kitchener-Waterloo is approximately 11 minutes.
60Ms. Byfield acknowledged that, at the time of her January 2025 evidence, there were no nurses on site overnight, although that was expected to change after March 31, 2025, with one or potentially two nurses to be added. Overnight, an inmate in a medium-security living unit could use a phone that connects directly to the main control post, which is staffed 24 hours a day. In the secure and maximum-security units, there is a call-bell system. A correctional officer would then respond, assess the situation, and take steps based on their training and the circumstances. For non-life-threatening events after hours, the officer-in-charge could contact regional hospital nurses for guidance, and those nurses could access the patient's file. For clearly life-threatening events, the correctional manager would call 911 for an ambulance to transport the inmate to hospital.
61Ms. Byfield testified that if an ambulance is called, it does not need to be searched or cleared upon arrival at Grand Valley. Depending on the circumstances, EMS may drive up to the living units if that is the fastest way to reach the inmate. She testified that, when all the steps are factored in, it could take 30 minutes or more for an inmate with a medical issue to reach the hospital, and longer if the medical issue is not deemed an immediate medical emergency. Nevertheless, she testified that, for time-sensitive emergencies such as a stroke, staff would attempt to get the person to hospital immediately, and she described the process as mirroring community standards. She also testified that, if an inmate required prolonged hospitalization, the inmate could remain in hospital for months if necessary, with correctional officers assigned, rather than being transferred to the Regional Treatment Centre.
62Finally, Ms. Byfield acknowledged that Grand Valley houses inmates who have committed violent offences and that violence between inmates can occur. She disagreed that vulnerable inmates are necessarily more likely to be targeted, explaining that outcomes depend on many individual and institutional factors.
IV. Law and Analysis
63Sentencing is discretionary by nature. There is no formula that judges can follow to determine the appropriate sentence. Instead, judges must consider the purpose and objectives of sentencing and be guided by the governing sentencing principles, especially the need to impose a proportionate sentence. Against that backdrop, and after accounting for the aggravating and mitigating factors and any collateral consequences, the judge must fashion a just and appropriate sentence.
The Purpose, Objectives, and Principles of Sentencing
64Sentencing judges must remain mindful of the fundamental purpose of sentencing, which Parliament has identified as the protection of society and contributing "to respect for the law and the maintenance of a just, peaceful and safe society": Criminal Code, s. 718.
65Achieving that purpose requires the court to impose "just sanctions" that address one or more of the traditional sentencing objectives: Criminal Code, s. 718. These include denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, reparation to victims, promoting a sense of responsibility in offenders, and acknowledging the harm done to victims and the community: see Criminal Code, ss. 718(a)-(f).
66To fashion an appropriate sentence, the court must respect what Parliament has prescribed as the fundamental principle of sentencing: that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender": Criminal Code, s. 718.1. In other words, the sentence must fit both the seriousness of the crime and the offender's level of moral blameworthiness in its commission: see R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 36-37; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 40-43. The Supreme Court has identified proportionality as the "central tenet" of sentencing: Ipeelee, at para. 36; see also Nasogaluak, at para. 41; R. v. J.W., 2025 SCC 16, 448 C.C.C. (3d) 285, at para. 41.
67To arrive at a proportionate sentence, the court must respect the principle of parity. That is because proportionality is a function of the circumstances of the offence and offender, compared to sentences previously imposed on similar offenders for similar offences committed in similar circumstances. As the Supreme Court has explained, a sentencing judge must reconcile individualization and parity to achieve a proportionate sentence: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53, citing Criminal Code, ss. 718.2(a) and (b). However, they do not operate in tension; "parity is an expression of proportionality": R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 32; see also Friesen, at paras. 30-33; R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at paras. 11-12.
68Ultimately, proportionality "has a restraining function" because it helps "guarantee that a sentence is individualized, just and appropriate": R. v. Bissonnette, 2022 SCC 23, [2022] 1 S.C.R. 597, at para. 51; see also Ipeelee, at para. 37. Accordingly, proportionality "acts as a brake to ensure that, in the pursuit of public protection measures, including deterrence and denunciation, sentences are not unduly excessive": R. v. Gilmore, 2025 ONCA 517, at para. 36; see also Gilmore, at para. 34; Quebec (Attorney General) v. Senneville, 2025 SCC 33, 507 D.L.R. (4th) 653, at paras. 35, and 39.
Sentencing for importing cocaine
69The importation of cocaine is among the most serious offences known to Canadian law: see R. v. Hamilton (2004), 2004 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), at para. 104. Parliament's decision to prescribe a maximum sentence of life imprisonment for this offence reflects its gravity: see CDSA, s. 6(3)(a). As Doherty J.A. observed in Hamilton, at para. 104:
The use and sale of cocaine kills and harms both directly and indirectly. The direct adverse health effects on those who use the drug are enormous and disastrous. Cocaine sale and use is closely and strongly associated with violent crime. Cocaine importation begets a multiplicity of violent acts. Viewed in isolation from the conduct which inevitably follows the importation of cocaine, the act itself is not a violent one in the strict sense. It cannot, however, be disassociated from its inevitable consequences. Unlike the trial judge (para. 224), I characterize cocaine importation as both a violent and serious offence. [citations omitted]
70Given the extraordinarily harmful effects of cocaine, the Court of Appeal has identified denunciation and general deterrence as the preeminent sentencing objectives for cocaine importation. Accordingly, in Cunningham, the Court instructed that"as a general rule, absent exceptional or extenuating circumstances, the range of sentence for first offender couriers who smuggle large amounts of cocaine into Canada for personal gain should be 6 to 8 years in the penitentiary": R. v. Cunningham (1996), 1996 1311 (ON CA), 104 C.C.C. (3d) 542 (Ont. C.A.), at p. 546; see also R. v. H. (C.N.) (2002), 2002 7751 (ON CA), 62 O.R. (3d) 564 (C.A.), at paras. 21-37.
71Nevertheless, it must be remembered that sentencing ranges are "guidelines rather than hard and fast rules": Nasogaluak, at para. 44. They help structure a sentencing judge's exercise of their discretion because they reflect the application of the objectives and principles of sentencing to a particular offence: see Lacasse, at para. 57. Ultimately, a sentencing judge may exercise their discretion to impose a sentence below or above the established range, given that the "determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation": Lacasse, at para. 58; see also Nasogaluak, at para. 44.
The Aggravating and Mitigating Factors
72In determining the appropriate sentence, a sentencing judge must consider any aggravating or mitigating circumstances relating to the offence or the offender: see Criminal Code, s. 718.2(a). A proper inventory of those circumstances is essential to evaluating the gravity of the offence and the offender's degree of responsibility for its commission. They serve to push the sentence up or down the scale of appropriate sentences within the established sentencing range: see Nasogaluak, at para. 43.
73In this case, there are two closely related aggravating factors: the drug imported was cocaine, a highly addictive and dangerous controlled substance, and the quantity imported — 2.67 kg — was significant. Of course, the fact that the substance was cocaine already informs the sentencing range established by the Court of Appeal for couriers who import large amounts of cocaine. Therefore, it is the quantity involved that can meaningfully influence where within the established range an offender's sentence should fall.
74At the same time, there are several significant mitigating factors in this case. Ms. Moskovian has no criminal record. She pleaded guilty, thereby taking responsibility for her actions and sparing the administration of justice the prosecutorial and judicial resources that a trial would have consumed — a significant consideration in a jurisdiction as busy as Brampton. Apart from this offence, Ms. Moskovian has led a prosocial life. Prior to her illness, she enjoyed years of gainful employment. In the almost decade since committing her offence, she has not reoffended. Finally, she enjoys the love and support of her close-knit family. As the Crown fairly concedes, specific deterrence has little role to play in this case. The combined effect of all of this bodes extraordinarily well for Ms. Moskovian's rehabilitation.
Collateral Consequences
75To arrive at a proportionate sentence, a sentencing judge must also account for any collateral consequences: see R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496. A collateral consequence "includes any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender" (underlining added): Suter, at para. 47. Collateral consequences stand apart from aggravating or mitigating factors because they do not relate to the gravity of the offence or the offender's degree of responsibility in its commission: see Suter, at para. 48. Instead, they are relevant to arriving at a proportionate sentence where "the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances": Suter, at para. 48. While the principle of parity generally requires that like offenders be treated alike"collateral consequences may mean that an offender is no longer 'like' the others, rendering a given sentence unfit": Suter, at para. 48. Sentencing judges must therefore take collateral consequences into account.
76A particular offender's physical or mental health circumstances may qualify as a relevant collateral consequence in one of two ways. First, they may mean that the offender's experience of imprisonment will be qualitatively harsher than it would be for other offenders, thereby justifying a shorter sentence than the offender might otherwise receive: see R. v. Hills, 2023 SCC 2, [2023] 1 S.C.R. 6, at paras. 135-136; see also the cases cited at para. 135 of Hills; R. v. Oryia, 2026 ONCA 166, 9 C.R. (8th) 156, at paras. 19, 22, and 28. Second, an offender's health issues "might make a conditional sentence fit where it otherwise would not be, when a carceral sentence would impose a medical hardship that cannot be addressed within the correctional facility": R. v. Seed, 2025 ONCA 698, at para. 9; see also R. v. M.M., 2022 ONCA 441, at para. 16; R. v. Faroughi, 2024 ONCA 178, 171 O.R. (3d) 81, at para. 89; R. v. Pike, 2024 ONCA 608, 173 O.R. (3d) 241, at para. 182.
77As noted at the outset, the Crown acknowledges that, because of her visual impairment, incarceration will be comparatively harsher for Ms. Moskovian than it would be for a fully sighted offender. To account for that reality, the Crown submits that a sentence of four to five years' imprisonment is appropriate, even though such a sentence would fall below the bottom end of the six-to-eight-year range recognized by the Court of Appeal in Cunningham. However, the Crown maintains that Ms. Moskovian could receive the medical care she requires while incarcerated.
78In contrast, Ms. Moskovian submits that any period of incarceration would create an undue risk of her losing her remaining vision. In that regard, she emphasizes that her optic neuritis has proven aggressive, as reflected in her history of repeated relapses; that she requires immediate hospital treatment when a relapse occurs to avoid further vision loss; and that, if she were incarcerated, delays would necessarily be inherent in obtaining the treatment she requires in the event of a relapse. Given all that, she argues that this is a case where a conditional sentence would be appropriate.
79The parties' disagreement over the appropriate sentence therefore turns mainly on their competing interpretations of the record concerning the ability of correctional authorities to meet Ms. Moskovian's medical needs, especially in the event of a relapse. I turn to that issue now.
80If Ms. Moskovian's optic neuritis had proven stable, there could be no doubt that she could receive the ongoing treatment she requires while incarcerated. The evidence heard at the sentencing hearing establishes that, within both provincial and federal correctional facilities, inmates receive required medical treatment and, when necessary, have access to community treatment resources. In Ms. Moskovian's case, that would mean she could continue to see Dr. Sundaram at Sunnybrook for periodic check-ins, as required.
81The complicating consideration is that Ms. Moskovian's optic neuritis has proven unusually aggressive. Although the medical staff at Vanier and Grand Valley have previously managed inmates with complex health issues and visual impairments, they have never managed the care of someone with Ms. Moskovian's particular medical needs. As Dr. Sundaram explained, her condition is among the more aggressive and complex forms of optic neuritis he has seen.
82Ms. Moskovian's illness is idiopathic, meaning that the underlying cause is unknown. That suggests there is little prospect of her condition stabilizing. Since her diagnosis in 2019, she has continued to experience repeated relapses, each causing further damage to her optic nerves and worsening her vision. Her relapses are also entirely unpredictable. When they occur, it is essential that she attend hospital "right away" and "without delay" to receive intravenous treatments to reduce the inflammation of her optic nerves and the risk of further permanent vision loss. As Dr. Sundaram explained, with each relapse and the resulting deterioration of Ms. Moskovian's vision, the need for speedy medical intervention becomes even greater.
83As a result, when Ms. Moskovian experiences the cluster of symptoms associated with a relapse — pain behind her eyes, headaches, and declining vision — she must attend hospital immediately. At home, she can be at her local hospital within 15 minutes of the onset of symptoms. Because staff at that hospital are intimately familiar with her condition, she can begin receiving the intravenous treatment she requires without unnecessary delay.
84Based on the entirety of the record, I am not satisfied that, if incarcerated, Ms. Moskovian would receive the timely emergency medical treatment she requires in the likely event of a further relapse. The concern is not the distance between Vanier or Grand Valley and a community hospital. The distance between each institution and a hospital appears comparable to the distance between Ms. Moskovian's home and her community hospital. Rather, the difficulty is that, in custody, Ms. Moskovian would not be able to arrange her own immediate transport to hospital when she experiences relapse symptoms. Instead, timely treatment would depend on a series of discretionary decisions by correctional officers and any medical staff on duty at the correctional facility when she experiences a relapse.
85At either Vanier or Grand Valley, a critical variable would be the time of day when Ms. Moskovian experiences relapse symptoms. If that were to occur at night, when medical staffing is reduced, it seems likely that Ms. Moskovian's request for medical assistance would first have to be made to a correctional officer.
86At Vanier, that would involve pressing the emergency call button in her cell. A correctional officer is supposed to respond to such a call, but how timely that response would be is unclear. Assuming a timely response by a correctional officer, if the officer did not immediately recognize Ms. Moskovian's situation as requiring emergency medical intervention and call 911, an overnight nurse would be summoned to assess her medical needs. If the nurse did not recognize Ms. Moskovian's condition as an emergency, a telephone call to the on-call doctor might precede any decision to call 911. Each of those steps could occasion delay. Even if either the correctional officer who attends or the nurse who is summoned immediately recognize the situation as urgent and call EMS, the evidence establishes that, from the time a 911 call is placed, it could take 30 to 45 minutes for Ms. Moskovian to arrive at a hospital.
87At Grand Valley, after medical staff have left for the day, the situation would be similar. Ms. Moskovian would have to use the phone in her living unit to call the main control post and summon assistance, assuming she could locate and use the phone without difficulty. A correctional officer would then respond to her living unit and assess the situation. Assuming at least one nurse is now on duty overnight, the nurse might also be summoned to assess Ms. Moskovian's medical needs. If staff did not immediately recognize her situation as a medical emergency requiring hospitalization, the nurse or officer-in-charge might consult Ms. Moskovian's medical file or seek guidance from medical staff at the Regional Treatment Centre. As at Vanier, those steps would necessarily occasion delay. Even if Ms. Moskovian's situation were immediately recognized as a medical emergency and a 911 call were placed right away, the ambulance response time in Kitchener-Waterloo is approximately 11 minutes and the closest hospital is about 15 minutes away. That means that, apart from any delay before 911 is called, it would likely take at least 30 minutes for Ms. Moskovian to arrive at hospital after the call is placed.
88Beyond any delay that might be occasioned before staff at a correctional facility manage to get Ms. Moskovian to a community hospital, once at a hospital, unlike at her local community hospital, where her circumstances and treatment needs are well known, there would be some further delay for her to be assessed and receive the treatment she requires.
89Given Ms. Moskovian's unique medical needs, the unpredictability of her relapses, and the very real prospect that she may experience a further relapse while serving any custodial sentence the court might impose, I am not satisfied, based on the entirety of the record from the sentencing hearing, that she would receive the timely medical treatment she requires to prevent further vision loss. In short, there is a very real risk that, if Ms. Moskovian is incarcerated, she could lose her remaining vision.
Appropriate Sentence
90To be sure, if not for Ms. Moskovian's visual impairment and her ongoing health struggles resulting from optic neuritis, I would have imposed a sentence at the very bottom of the sentencing range — six years' imprisonment. Such a sentence would have been appropriate, considering the combined effect of the various mitigating factors operating in her favour.
91It is Ms. Moskovian's near blindness, continuing health struggles, and unique medical needs that require a considerable departure from the established sentencing range. They qualify as the sort of "exceptional or extenuating circumstances" that Cunningham recognized may justify a sentence below the range it established. After all, the Court of Appeal in Cunningham was careful to note that "judges must retain the necessary degree of flexibility to do justice in individual cases": at p. 546. That is in keeping with the guidance subsequently provided by the Supreme Court in Lacasse, which recognized that sentencing ranges are not "straitjackets" and that, depending on all the circumstances of a particular case, a departure from an established sentencing range may be necessary because sentencing is a highly individualized exercise: see Lacasse, at paras. 57-60.
92The court's ultimate responsibility is to impose a proportionate sentence: see Ipeelee, at paras. 36-38; Nasogaluak, at paras. 40-42; Friesen, at para. 30; Lacasse, at para. 12. A sentence is disproportionate if it exceeds what is just and appropriate having regard to the gravity of the offence, the offender's degree of responsibility, and the actual impact of the sentence on the offender. Proportionality therefore requires attention not only to the seriousness of the offence and the corresponding need for a sentence that serves the objectives of denunciation and deterrence, but also to whether the sentence would have an unduly harsh effect on the particular offender: see Ipeelee, at paras. 36-38; Nasogaluak, at paras. 40-42; Lacasse, at paras. 57-60; Suter, at paras. 47-48. As the Supreme Court explained in Hills"there is no proportionate sentence that only takes into account the offence and ignores the offender": at para. 61. Similarly, as the Court of Appeal has recognized, sentences "must remain proportionate in their real-world effect": Oryia, at para. 28.
93Although importing cocaine is a gravely serious crime that ordinarily requires a sentence emphasizing denunciation and deterrence, any sentence carrying a real risk of causing the complete loss of an offender's vision would be disproportionate, at least where the offender does not pose a risk to public safety. In Ms. Moskovian's unique circumstances, the only sentence that reliably avoids that disproportionate result is a conditional sentence. I therefore conclude that a sentence of two years less one day of imprisonment is appropriate in this case.
94None of the other statutory bars to a conditional sentence is present in this case. First, given that Ms. Moskovian does not have a criminal record and has remained in the community since committing her offence more than nine years ago without incident, permitting her to serve her sentence under a conditional sentence order would not endanger the safety of the community: see Criminal Code, s. 742.1(a). Second, Ms. Moskovian's offence is no longer punishable by a minimum term of imprisonment, which would otherwise preclude a conditional sentence: see Criminal Code, s. 742.1(b); CDSA, s. 6(3)(a), (a.1). Third, Ms. Moskovian's offence is not among those for which a conditional sentence is unavailable: see Criminal Code, s. 742.1(c) and (d).
95The final precondition to imposing a conditional sentence is that the court be satisfied that such a sentence "would be consistent with the fundamental purpose and principles of sentencing": Criminal Code, s. 742.1(a).
96To be sure, for the offence of importing large amounts of cocaine, a conditional sentence would ordinarily be inappropriate. In most such cases, a sentence of less than two years' imprisonment would inadequately address the objectives of denunciation and deterrence. This, however, is not an ordinary case. I am satisfied that a conditional sentence of two years less one day, with house arrest throughout, would adequately address those objectives in the unique circumstances of this case.
97In that regard, I note that in Proulx, the Supreme Court acknowledged that conditional sentences are "a punitive sanction capable of achieving the objectives of denunciation and deterrence": R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 22. That is because conditional sentences carry a significant stigma when they include punitive conditions, such as house arrest: see Proulx, at paras. 36 and 105. Accordingly, when fashioned appropriately, a conditional sentence can provide "a significant amount of denunciation" and "significant deterrence": Proulx, at paras. 102 and 107. Even where aggravating circumstances are present, conditional sentences remain available in appropriate cases: see Proulx, at para. 115.
98Ultimately, I am satisfied that this is one of those exceptionally rare cases in which a conditional sentence is appropriate where it otherwise would not be, because a carceral sentence would impose a medical hardship by creating an undue risk that Ms. Moskovian will lose what remains of her limited vision.
Conclusion
99For all these reasons, Ms. Moskovian is sentenced to two years less one day, to be served in the community under the strict terms of a conditional sentence order.
100The court will issue a DNA order. Additionally, a s. 109 weapons prohibition order will issue for 10 years in respect of the weapons and items listed in s. 109(2)(a), and for life in respect of the weapons and items listed in s. 109(2)(b).
101Ms. Moskovian's offence predates the current iteration of the victim surcharge scheme and, therefore, no surcharge is payable.
Signed: "J. Stribopoulos J."
Released: June 2, 2026
CITATION: R. v. Moskovian, 2026 ONSC 3182
COURT FILE NO.: CRIM J(F) 817/17
DATE: 20260602
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
VERJINE MOSKOVIAN
REASONS FOR SENTENCE
Stribopoulos J.
Released: June 2, 2026