R. v. Pinkney, 2026 ONSC 319

COURT FILE NO.: CR-22-91107533-0000

DATE: 20260119

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

MATTHEW PINKNEY

Defendant

COUNSEL:

Ivana Denisov, for the Crown

Rick Frank, for the Defendant

HEARD: December 12, 2025

REASONS FOR SENTENCE

REGIONAL SENIOR JUSTICE EDWARDS

Overview

1On September 10, 2022, Mr. Pinkney was arrested as a result of a Highway Traffic Act (HTA) stop that ultimately led to firearms related charges as well as charges for possession for the purposes of trafficking in fentanyl and cocaine. Mr. Pinkney challenged the search of his vehicle. Mr. Pinkney’s pretrial motion to exclude the evidence resulting from the search was dismissed. On October 27, 2025, Mr. Pinkney pleaded guilty to possession of a loaded firearm as well as possession of the fentanyl and cocaine found in his vehicle. The trafficking charges were withdrawn by the Crown. An Agreed Statement of Facts, details of which are set forth below, was filed as part of the plea agreement.

The Facts

2Mr. Pinkney is 38 years of age. He has two children but is estranged from the mother of the children. Mr. Pinkney nonetheless maintains a friendship with the mother and sees the children on a regular basis. On all accounts Mr. Pinkney is a good father to the children.

3The amount of fentanyl found in Mr. Pinkney’s vehicle was 11.14 grams. He also had in his possession 51.15 grams of cocaine and 207.26 grams of cannabis. Located in his vehicle was a Colt semi-automatic handgun with a magazine containing seven rounds of 45 caliber ammunition. The firearm was operational.

4As it relates to the narcotics and handgun, it is acknowledged that Mr. Pinkney had knowledge and control of both the drugs and the handgun. Significantly, however, as part of the Agreed Statement of Facts, it is agreed that:

Mr. Pinkney had loaned his vehicle to another individual in the days leading up to the traffic stop. He knew that that individual was using his vehicle for the purpose of carrying out drug trafficking activities. While Mr. Pinkney did not know exactly which type of drugs he had in his car (specifically the cocaine and fentanyl), he knew that some types of illegal drugs were involved. He also knew that the firearm was used by this other individual in the process of carrying out the drug trafficking activities. On this basis, Mr. Pinkney had knowledge and control of the firearm, drug paraphernalia, fentanyl and cocaine.

Position of the Crown

5Crown counsel acknowledges that while Mr. Pinkney was neither the owner of the handgun nor the drugs and thus was not a trafficker of drugs, he lent out his car knowing that trafficking was going to happen and as such he was reckless and facilitated the person who ultimately was going to traffic the drugs. The real owner of the gun and the drugs was never arrested.

6Crown counsel acknowledges that the facts of this case are somewhat “unique” but is vehemently against the conditional sentence that is advocated for on behalf of Mr. Pinkney. Crown counsel argues that the appropriate sentence is one of seven years. In her submissions, Crown counsel acknowledges that there are mitigating factors this court must consider, including the fact that Mr. Pinkney has no criminal record as well as his plea of guilty. Crown counsel also acknowledges that it is appropriate in sentencing Mr. Pinkney to look at him as being a person of colour.

7Crown counsel provided the court with an extensive list of cases filed in support of her submission that the quantity of fentanyl found in Mr. Pinkney’s car combined with the handgun fully supports a sentence of seven years.

8The cases filed by Crown counsel in support of her submission that Mr. Pinkney should face a significant penitentiary sentence involve cases that stand for the general proposition that persons convicted of trafficking in fentanyl will face a significant penitentiary sentence. Persons convicted of trafficking fentanyl and found in possession of an illegal firearm will face an even more significant penitentiary sentence. These principles apply even to first-time offenders. These principles reflect the fact that fentanyl is now well-known as an incredibly deadly drug that has resulted in what some have described as a pandemic of tragic but totally avoidable deaths.

9In R. v. Eggleton, 2023 ONSC 5724, a decision of Harper J., the accused was convicted after a trial of several trafficking offences including trafficking in fentanyl. He was also convicted of a firearms offence. The accused had a prior criminal record and received a total sentence of 10 years.

10In R. v. Owusu, 2024 ONSC 671, Code J. sentenced an accused who was found guilty after trial of various charges including trafficking in four and a half ounces of fentanyl as well as gun related charges. The accused had a prior record and received a total sentence of 13 years and two months’ imprisonment. As it relates specifically to the fentanyl conviction, Code J. sentenced the accused to nine years imprisonment which was reduced to seven years in light of the totality principal.

11In R. v. Ribble, 2019 ONCJ 640, Agro J. sentenced the accused to nine years in relation to charges of trafficking in fentanyl and cocaine, as well as an illegal firearm. The accused in Ribble had a prior record relating to drugs and guns.

12In R. v. Ryn, 2023 ONSC 2919, Howard J. sentenced the accused to four years in relation to a conviction for importing fentanyl.

13In R. v. Salvati, 2021 ONSC 1284, Monahan J., as he then was, sentenced the accused to five years in relation to a conviction for trafficking in cocaine and fentanyl. The accused had not pled guilty and had an extensive criminal record. He had not been employed for five years prior to his arrest and there few mitigating factors.

Position of the Defence

14Defence counsel argues that, while Mr. Pinkney had knowledge and control of the drugs as well as the handgun, he has demonstrated throughout his life and while out on house arrest bail that he is someone who has lived a very pro-social life and has a very high probability of rehabilitation. As such it is argued that a conditional sentence is not only available, but it is also an appropriate sentence.

15In support of his submissions, Mr. Frank filed with the court numerous letters from family members as well as present and former employers who reflect the very strong support system that Mr. Pinkney has in place and continues to have in place. Amongst the letters filed with the court was a lengthy letter prepared by Mr. Pinkney addressed to the court that reflects considerable insight on his part into what happened on September 22, 2022, as well as what this court considers Mr. Pinkney’s genuine remorse.

16In essence, it is argued on behalf of Mr. Pinkney that the evidence does not establish that he is a drug dealer nor that he is a drug user, but rather that he made a really bad mistake. The evidence reflected in the letters of support filed with the court demonstrate that Mr. Pinkney has over the years been a person who has financially supported his family and has been a good father; a good son and a good friend and employee to everyone.

Mitigating and Aggravating Factors

17The obvious aggravating factors in this case are the facts that Mr. Pinkney was found in possession of fentanyl, cocaine, and a loaded firearm. While neither the drugs nor the firearm belonged to Mr. Pinkney, he nonetheless was facilitating the trafficking of a highly dangerous drug in a situation where a firearm could also have been involved.

18The mitigating factors in this case are also obvious. Mr. Pinkney has led on all accounts a good life up until the time when he was arrested in connection with the charges before this court. He has no prior criminal record, and he entered a plea of guilty albeit a plea that occurred after his unsuccessful Charter motion.

19The evidence also establishes that while Mr. Pinkney has been under strict house arrest bail, he has taken steps to continue his employment as well as to improve his training, demonstrating that he has excellent prospects for his ongoing and continued employment in the future.

The Principles of Sentencing and Analysis

20The principles of sentencing are well known. They are set out in sections 718.1 and 718.2 of the Criminal Code of Canada (the Code). It is well established that the principles of sentencing are intended for the protection of society and the maintenance of a just, peaceful, and safe society which is achieved by the denunciation of unlawful conduct; deterrence both general and specific; and the separate of an offender from society where necessary. Another important principle of sentencing is 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 acknowledgment of the harm done.

21Another fundamental principle of sentencing is set forth in section 718.1 of the Code which requires that the sentence must be proportionate to the gravity of the offence as well as the degree of responsibility of the offender. A sentence that is to be imposed must be a sentence similar to those that are imposed on similar-like offenders in similar circumstances.

22What makes this case not just unique but also difficult to differentiate from other similar cases where a penitentiary sentence has been imposed, is the fact that Mr. Pinkney was found in possession of not just a loaded prohibited firearm but also a not insignificant quantity of fentanyl. In R. v. Nur, 2013 ONCA 677, the Ontario Court of Appeal reflected on the toxic combination of trafficking in drugs together with possession of an unauthorized loaded weapon. At para 206 of the Court’s reasons, it is noted that:

[206] ... Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation. ...

23What also differentiates Mr. Pinkney from Nur is that Mr. Pinkney did not plead guilty to, nor was he found guilty of trafficking in fentanyl. What also differentiates Mr. Pinkney from Nur is that the firearm in question did not belong to him nor is there any suggestion that Mr. Pinkney intended to use the firearm let alone used the firearm in connection with the drugs found in his car.

24The jurisprudence as it relates to the interaction of firearms and trafficking in fentanyl was reviewed by Code J. in R. v. Graham, 2018 ONSC 6817, at para 41 aff’d 2020 ONCA 692. A review of the jurisprudence by Code J in Graham confirms that general deterrence and denunciation are at the forefront of a range of sentence in the range of 3 to 5 years for offences involving an illegal firearm and trafficking in fentanyl.

25It is well established that persons convicted of trafficking in fentanyl will face significant penitentiary sentences. While Mr. Pinkney was not convicted of trafficking in fentanyl, the warnings from the Supreme Court of Canada in R. v. Parranto, 2021 SCC 46 and the Court of Appeal in R. v. Lynch, 2022 ONCA 109, are worth repeating as it relates to the clear warnings to anyone involved in trafficking fentanyl. General deterrence and denunciation are clearly at the forefront of any sentence that involves trafficking in fentanyl.

26While significant penitentiary terms may be the norm as it relates to someone convicted of trafficking in fentanyl, para 36 of the reasons of Brown and Martin JJ. in Parranto make clear that ranges of sentence are guidelines and not hard and fast rules. It is also worth reflecting on the reasons at para 36 in Parrranto where judges are reminded that in imposing a sentence they should, “individualize sentencing both in method and outcome”, and “[d]ifferent methods may even be required to account properly for relevant systemic and background factors”.

27In R. v. Morris 2021 ONCA 680 the Court of Appeal, in a decision that is often cited in relation to how trial judges should consider anti-Black racism on sentencing, commented at para 151 that persons convicted of an offence under s. 95 of the Code involving a loaded restricted/prohibited firearm will in most cases receive a penitentiary sentence. However, the court went on to acknowledge that “in some situations, where there are strong mitigating factors, sentences at or near the maximum reformatory sentence (two years less a day) may be imposed (citations omitted)”.

28As it relates to the possibility of a conditional sentence the Court of Appeal in Morris at para 180 notes that,

When the appropriate sentencing range includes sentences at or below the two-year mark, a sentencing judge must give careful consideration to the imposition of a conditional sentence. As outlined earlier, conditional sentences, properly used, can ameliorate the longstanding problem of over incarceration of young Black men.

29The real issue presented by the significant gap in the sentencing submissions of Crown and defence counsel is whether a conditional sentence is available to Mr. Pinkney.

30A conditional sentence contemplated by section 742.1 of the Code sets forth a test that has several elements. These are as follows:

(a) The term of imprisonment must be less than two years.

(b) Service of the sentence in the community must not endanger the safety of the community; and

(c) It must be consistent with the fundamental purpose and principles of sentencing set out in section 718.2.

31The Supreme Court of Canada in R. v. Proulx, 2000 SCC 5 [2000] 1 SCR 61, requires a sentencing judge who is considering a conditional sentence to proceed in two stages. The court as part of the first stage must determine if a conditional sentence is available. In that regard, the court need not impose a term of imprisonment of a fixed duration; but rather, the court need only exclude two possibilities: probationary measures and a penitentiary term. If it is determined that a conditional sentence is available, the sentencing judge must at the second stage then determine if a conditional sentence is appropriate.

32It is important to note that a conditional sentence while it does not involve an offender being incarcerated in a penitentiary, is nonetheless a “punitive sanction”. The Supreme Court in Proulx and the Court of Appeal in R v Ali,2022 ONCA 736 at para 30 have both observed that a conditional sentence is a punitive sanction that can achieve denunciation and deterrence and may be more effective in achieving goals of rehabilitation.

33In R. v. Stewart, 2024 ONSC 281, Nakatsuru J. dealt with an accused who had pled guilty to possessing fentanyl and a loaded prohibited handgun. His analysis as to why a term of imprisonment under two years was available on these facts is worth reproducing in its entirety:

[47] In the first stage, a preliminary determination of the appropriate range of available sentences must be conducted. In doing so, I only need to consider the fundamental purpose and principles of sentencing to the extent necessary to narrow the range of sentence for the offender.

[48] In this case, given the nature and gravity of the offences, denunciation and deterrence are primary sentencing principles. Accordingly, a suspended sentence and probation are easily excluded.

[49] The core question is whether a penitentiary sentence is required to meet those objectives given all the circumstances of this case.

[50] After careful reflection, I find that a sentence of less than two years falls within the range of sentences for you and these offences having regard to the fundamental purpose and principles of sentencing.

[51] First, as I discussed under parity, these offences do not inevitably attract a penitentiary sentence. Other cases have led to sentences in the reformatory range.

[52] Second, there are numerous and strong mitigating factors. Importantly, you were young and a first offender. Even more important, is what you have demonstrated these long years while on bail. You are not just a young first offender who committed serious crimes. You have proven yourself to be an excellent candidate for rehabilitation.

[53] Third, you have demonstrated this despite the many obstacles that your life and the systemic inequality in society have thrown into your path. These challenges illustrated by the EPSR has significantly diminished your moral blameworthiness.

[54] Fourth, given all this, the principle of restraint leads me to conclude that while I must impose a sentence that achieves the goals of denunciation and general deterrence, I must be careful to impose the shortest sentence that accomplishes that.15

[55] Fifth, there is the significant mitigating factor of you being on bail. I will observe that the Crown’s position on sentence agreeing that mitigation for the bail conditions could be as high as a year, once applied to the three-year end of the proposed range the Crown seeks, would bring the sentence into the reformatory range.

[56] In sum, while regardless of the mitigating factors the ultimate sentence must remain proportionate, on the specific facts of your case, I find that a penitentiary sentence can be excluded.

34Having determined that a penitentiary sentence could be excluded in Stewart, Nakatsuru J. then went on to determine whether a conditional sentence would endanger the community. He determined that serving his sentence in the community posed little if any risk. Ms. Denisov for the Crown at no time suggested that Mr. Pinkney would pose any risk to the public if he served his sentence in the community. Rather, Ms. Denisov’s position was that a conditional sentence order was simply untenable given the fact that Mr. Pinkney was found in possession of a restricted handgun and fentanyl.

35As part of his analysis in determining that a conditional sentence was appropriate on the facts before him in Stewart, Nakatsuru J. then went on to deal with the question of whether a conditional sentence was consistent with the fundamental purpose and principles of sentencing. As part of his analysis in that regard, Nakatsuru J. at paras 59-61 stated:

[59] At the second stage of the test for a conditional sentence, I must do a comprehensive evaluation of the appropriateness of a conditional sentence for the particular offender, considering the fundamental purpose and principles of sentencing as provided in sections 718 to 718.2 of the Criminal Code.

[60] For these offences, as stated time and again, the need for a sentence that deters and denounces is primary. The question is whether a jail sentence to be served in the community will achieve this on the facts of this case.

[61] Consistency with other cases is an important consideration. When I assess this, I find that a conditional sentence can meet deterrence and denunciation needs. Even for possession of fentanyl for the purpose of trafficking, depending on the circumstances, a conditional sentence has been imposed in other cases.16 While I am fully aware of the context of your possession of fentanyl, I must remind myself again that you are only being punished for simple possession.

36In imposing a conditional sentence, Nakatsuru J. also considered what are often referred to as Morris factors and noted that the courts musts “do better, when the facts call for it, when it comes to the overincarceration of Black offenders. A conditional sentence, in the right case, is an ideal way to tackle this difficult problem.” (Stewart, at para 67; R. v. Morris, 2021 ONCA 680)

37In imposing a conditional sentence, Nakatsuru J. stated at para 69:

[69] I find that there are exceptional circumstances in your case whereby the fundamental principles can be met by a sentence that will be served in the community. This includes deterrence and denunciation. It has been recognized that a conditional sentence is not an anathema to the implementation of these important goals of sentencing. Moreover, I agree with your lawyer that in your case, deterrence and denunciation can further be met by the tightest of house arrest conditions for the whole length of the sentence. Thus, this will be a significant punishment.

38Ms. Denisov respectfully suggested that the decision of Nakatsuru J. in Stewart is an “outlier” in the jurisprudence and to follow it would set a dangerous precedent to allow someone to serve their sentence in the community where the underlying charges involve fentanyl and guns. I note that Stewart does not appear to have been the subject matter of a Crown appeal. With respect, for the reasons that follow, I disagree with the suggestion made by Ms. Denisov that Stewart is an outlier.

39In support of her argument that the court should impose a seven-year penitentiary sentence Ms. Denisov relied in part on the jurisprudence summarized in paras 9-13 above. It is fair to suggest, however, that all the aforesaid cases referenced by Crown counsel are distinguishable from the facts involving Mr. Pinkney. Many of these cases involved an accused who had a prior criminal record. Many of these cases involved trafficking in fentanyl which distinguishes Mr. Pinkney’s situation where he entered a plea to possession as opposed to trafficking fentanyl.

40While sentencing ranges and a review of the caselaw in similar cases is undoubtedly helpful to ensure the parity principle is adhered to, the court can never loose sight of the principle that the sentencing of an individual is by necessity an individualized process. This is made clear by the Supreme Court in the often-cited decision of R. v. Lacasse, 2015 SCC 64.

41As it relates to s. 95 offences sentencing courts have acknowledged that while the possession of a loaded prohibited firearm is a very serious offence there are nonetheless different degrees of criminal conduct associated with this offence. Guidance in that regard is found in the decision of Doherty JA in Nur where at para 51 he observed:

[51] The scope of s. 95 is best understood by considering the range of potential offenders caught by that section. At one end of the spectrum stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. By any reasonable measure, this person is engaged in truly criminal conduct and poses a real and immediate danger to the public. At the other end of the spectrum stands the otherwise law-abiding responsible gun owner who has possession of an unloaded restricted or prohibited firearm, but with readily accessible ammunition stored nearby. That person has a licence and registration certificate for the firearm, but knowingly possesses the firearm at a place that falls outside of the terms of that licence. That person's conduct may well pose little, if any, risk to others. I would characterize that misconduct as more in the nature of a regulatory offence.

42Mr. Pinkney clearly doesn’t fit into the category of an offender who has committed a regulatory offence. He also doesn’t fit into that category of an offender who so often comes before this court found guilty of a firearm offence where the firearm is part and parcel of a larger criminal activity-often trafficking in illegal drugs.

43There are other decisions not dissimilar to Stewart where a conditional sentence was imposed for a firearms related offence combined with a drug offence. In R. v. David Webster, 2024 ONSC 989, the accused was convicted of possession of a loaded restricted firearm contrary to s 95(1) of the Code and possession of fentanyl and crack cocaine. Like Mr. Pinkney the accused in Webster pursued an unsuccessful Garafoli application and then conceded the Crown case.

44In imposing a conditional sentence, Maxwell J. in Webster balanced the aggravating factors (loaded firearm, careless storage of ammunition and the presence of controlled substances) against the mitigating factors (first time offender, relatively young age, a supporting family, compliance with strict bail conditions, remorse, and strong rehabilitation potential). In imposing a conditional sentence Maxwell J. at para 41 was guided by the caselaw which references a 3–5-year range for s. 95 offences but noted that lower sentences have been imposed in the reformatory range where the firearm is not possessed in connection with other criminal activity. Maxwell J. also considered the restrictive bail conditions that Mr. Webster had been under as an appropriate mitigating factor to bring the sentence into the range of a conditional sentence.

45In R. v. Desmond-Robinson, 2022 ONCA 369, the accused was convicted of a firearms-related offence (a sawed-off rifle with ammunition in an adjacent jacket hanging in a closet where the firearm was located) as well as possession of cocaine and marijuana. The trial judge imposed a sentence of 18 months on the firearms charge and a sentence of time served on the drug charges. In her reasons for sentence, the trial judge concluded that a conditional sentence was outside of the range affirmed by the Court of Appeal. While it was acknowledged on appeal that a significant term of imprisonment was appropriate, it was equally important to consider the very positive rehabilitative steps while on bail that the appellant had undertaken and as such a conditional sentence of two years less a day plus 24 months of probation was an appropriate sentence. The Court of Appeal agreed with the submissions made on behalf of the appellant. In that regard, at para 16, the Court of Appeal stated:

[16] ... The material before the trial judge paints a very positive picture of the appellant. He is a young first offender with considerable potential. Circumstances beyond his control, some of which no doubt reflect systemic racism, diminish his moral culpability. On the record before the trial judge, he was a candidate for a conditional sentence.

46The Court of Appeal also considered the significant progress that the appellant had achieved pending the appeal, including employment as well as the fact that he had become a father and taken on significant childcare and household responsibilities. He had stayed out of trouble and had not been charged with any further offences and, as such, the Court of Appeal concluded that a conditional sentence on the firearms charge of two years less a day was in fact a fit sentence and that the sentence on the drug offences remained a sentence of time served.

47What distinguishes Desmond-Robinson from Mr. Pinkney is that Mr. Desmond-Robinson was found guilty of possessing cocaine. Fentanyl, the drug found in Mr. Pinkney’s car and for which he entered his plea of guilty, remains a much more deadly drug than cocaine.

48A case which bears some resemblance to Mr. Pinkney’s is found in a recent decision of Goldstein J., in R. v. Ramos, 2023 ONSC 1094. Ms. Ramos pleaded guilty to possession of a loaded prohibited firearm contrary to s. 95(1) of the Code. She also pled guilty to possession of cocaine for the purposes of trafficking.

49In imposing sentence Goldstein J. concluded that absent exceptional circumstances the appropriate range of sentence for the firearm and drug charges was three to five years. However, the particular facts of Ms. Ramos were such that Goldstein J. determined there were exceptional circumstances that required consideration of whether a conditional sentence was appropriate. In that regard, Goldstein J. at para 52 of his reasons noted:

[52] Ms. Ramos was not the principal owner of the gun and the drugs. As I noted, I specifically disbelieved her when she asserted that Mr. Williams knew nothing of the gun and the drugs. Indeed, it is my view that Mr. Williams was the true owner of the gun and that he was the principal drug dealer. Ms. Ramos pleaded to knowing of the gun. She was clearly involved in drug dealing. I find that her control over the gun and the bulk of the cocaine was limited. Her story of how she came to be in possession of the gun and the drugs was implausible. Again, as I noted, I find that it is likely that she was covering for Mr. Williams. While the lie to cover for him is certainly not mitigating, it is understandable. The obvious inference to be drawn is that Ms. Ramos was either afraid of Mr. Williams or did not want to be seen as a “rat”. More importantly, there is no evidence that it was Ms. Ramos who possessed the gun in connection with drug trafficking. Given the placement of the gun in the trunk of Mr. Williams’s car, and the drugs found on him, I find that it is much more likely that it was Mr. Williams who owned the gun in connection with drug trafficking although Ms. Ramos was aware of it. The low level of Ms. Ramos’s moral blameworthiness alone takes this case out of the range of a penitentiary sentence.

50If one was to substitute Mr. Pinkney’s name for that of Ms. Ramos the analysis of Goldstein J. is instructive to this court in its conclusion that a conditional sentence can be considered as an appropriate disposition. It is also noteworthy that in Ramos the offender had never been convicted of a crime of violence and that in her almost five years on bail she had “largely stayed out of trouble”. While Goldstein J. ultimately imposed a conditional sentence, he made it crystal clear that absent exceptional circumstances the range of sentence for a firearms related charge coupled with a drug charge was three to five years.

51The decision of Goldstein J. in Ramos can be distinguished in part because the drugs involved were cocaine and not fentanyl. It is well recognized in the jurisprudence that fentanyl is a much more deadly drug sometimes described as “yesterday’s heroin”. It is also, however, worth observing that in Ramos the offender was found guilty of possession of cocaine for the purposes of trafficking which distinguishes Mr. Pinkney’s circumstances in that he pled guilty to possession of fentanyl and not possession for the purposes of trafficking.

52Another instructive case in which a conditional sentence was imposed can be found in R. v. Collins, 2023 ONSC 5768, where the accused pled guilty to offences related to trafficking in cocaine, possession of a loaded handgun and breach of a s. 109 weapons prohibition order. While the ultimate sentence imposed was a conditional sentence Code J. made clear that absent exceptional circumstances the range of sentence would normally have been three to five years. The accused in Collins was not a first offender. Nonetheless, at para 90 of his reasons Code J. summarized the case law justifying a conditional sentence as follows:

[90] In my view, the principle that emerges from cases like Whittaker, Sellars, and Hassan is that exceptionally strong mitigating circumstances, relating to both diminished moral culpability and the complete reformation of the accused while on bail, can justify a departure from the normal need for substantial jail sentences in firearms possession and drug trafficking cases.

53What makes Collins both an instructive case on when the court may impose a conditional sentence for offences involving drugs and guns is that in imposing a conditional sentence Code J. made the following observation about Mr. Collins:

[95] …If Collins can help to reform and change any number of disadvantaged youths who would otherwise join gangs, acquire illegal handguns, and traffic in hard addictive drugs, then he will be directly participating in the denunciation and deterrence of these activities which is so desperately needed in this city. …

54As part of the sentencing process Code J. completed his reasons in Collins as follows:

[98] One final important aspect of the proposed conditional sentence is that I intend to remain engaged with its supervision by receiving intermittent reports in writing, from both Collins and the conditional sentence supervisor. I want to be directly involved in ensuring that the terms of the sentence are being carried out.

55As with everything in life nothing is guaranteed. Putting one’s trust in an accused person that they will comply with the terms of a conditional sentence is an integral part of a judge’s ultimate determination that a conditional sentence is appropriate. In Collins, Code J. determined that Mr. Collins had a complete transformation since committing the offences that brought him before the court. That transformation turned out to be an illusion as within a week of imposing the conditional sentence Collins participated in an armed robbery and ultimately was sentenced by Code J. to serve the remainder of his sentence in custody - see R. v. Collins, 2024 ONSC 4054.

56There may be some who would argue that a conditional sentence is not a jail sentence. Some may argue that a conditional sentence cannot advance the goals of deterrence and denunciation where a firearm and fentanyl are the underlying charges. However, the Supreme Court in Proulx at paras 40-41 makes clear that a conditional sentence is not a lenient punishment and that it can provide for significant denunciation and deterrence particularly where the offender is required to take responsibility for his actions and to make reparations to the community.

57On the particular facts presented by Mr. Pinkney’s case he will have been under one form or another of strict house arrest for approximately 39 months. If he is subject to a conditional sentence and a three-year probation order, Mr. Pinkney will have been under a form of judicial supervision for more than eight years. By contrast, while acknowledging that a penitentiary sentence is quite different from a conditional sentence, if the court was to accept the Crown submission of a seven-year sentence, Mr. Pinkney likely would be released on parole well before the expiry of that sentence. It is also important to recall that a conditional sentence is not subject to parole as s. 112(1) of the Corrections and Conditional Release Act, SC 1992 c.20 gives the provincial parole board jurisdiction over the parole of offenders serving sentences of imprisonment in provincial correctional facilities. Furthermore, as the Court of Appeal noted in R. v. Wismayer, 1997 3294 (ON CA), [1997] O.J. No. 1380, parole does not apply to an offender who is serving his sentence in the community which potentially can render a conditional sentence harsher than that of a term of imprisonment.

58In imposing a sentence where an accused person will be serving his or her first significant penitentiary sentence, the impact on the accused is obvious. The impact of the sentence on the family of the accused person is also a relevant consideration. A review of the various letters filed by family members, especially that of the mother of Mr. Pinkney’s two children, reveals the impact that a prison sentence might have on Mr. Pinkney; but perhaps of greater significance is the impact a prison sentence would have on the children. In her letter Ms. Wright states: “…They are still so young, with so many milestones ahead. They deserve the chance to continue having both parents cheering them on, even in a limited way (referencing house arrest). I care about what is best for our children and want to see their father have the opportunity to keep being a part of their world, so they do not suffer more than they already have.”

59The Court of Appeal in R. v. Habib, 2024 ONCA 830 has made it clear that in sentencing an accused the impact of a sentence on the accused’s family is a relevant consideration that may warrant a reduction in the sentence imposed, even a substantial reduction - see Habib, para 45. That said, at para 43 Tulloch CJ noted that the jurisprudence has equally made clear that the consequences of a sentence on an accused’s family should not be allowed to “overwhelm the other principles of sentencing”. The consequences to the accused’s family should not be “an excuse to overlook the harm that the defendant’s criminal conduct caused victims of crime, or the importance of protecting those victims and society, or the need for denunciation and deterrence.”

60In R. v. Hussey-Rodrigues, 2024 ONSC 2671, the accused was convicted of possession of an illegal loaded handgun. When he was confronted by the police he fled, and in the ensuing chase and struggle the loaded handgun fell to the ground. The risk to the police and the public is obvious from these facts. Nonetheless, Presser J. in her comprehensive reasons imposed a conditional sentence. Amongst her various reasons for doing so was the impact the penitentiary sentence sought by the Crown would have on the child of Mr. Hussey. In that regard at paras 65 and 66 Presser J. stated:

[65] ……In addition, I consider that the collateral consequence of separation of this father and son has broader impact as well. In my view, it is in society’s interest for Mr. Hussey-Rodrigues to be able to continue to parent and support his child.

[66] I have taken the collateral consequences in this case into account to ensure respect for proportionality, individualization of sentence, and the parity principle. Like Healy J. [as he then was] held in Stanberry, at para. 26, “[m]y justification for doing so is to ensure that the collateral consequences do not disproportionately magnify the severity of the sentence.” However, I have also considered the primary sentencing objectives of denunciation and deterrence, the gravity of the offence and the moral blameworthiness of the offender, and all the relevant aggravating and mitigating factors, to determine a fit and fair sentence.

61In the case of Mr. Pinkney I have concluded that a conditional sentence is a sentence that falls within the range of sentences for him, having regard to the fundamental principles of sentencing. From my review of the jurisprudence reviewed above the offences for which Mr. Pinkney entered a plea of guilty do not inevitably attract a penitentiary sentence. There are other cases where reformatory sentences have been imposed.

62A reformatory sentence is one this court may entertain as there are very strong mitigating factors. Mr. Pinkney is not a youthful first offender. He is however a relatively young adult who has no prior criminal record. He has complied with the strict terms of his house arrest bail since he was arrested approximately 40 months ago. He has maintained employment during his house arrest. His employers speak highly of him. He has provided for his family and on all accounts, despite being estranged from the children’s mother, maintains a close fatherly relationship with his children.

63In imposing a reformatory sentence, I have also considered that Mr. Pinkney is a black man, and I have taken the words of Tulloch CJ to heart reflected in Morris at paras 151 and 180 that where there are strong mitigating factors a reformatory sentence may be appropriate in addressing what is well recognized as a serious problem of the over incarceration of young black men.

64In imposing a conditional sentence, I have also considered the nearly 40 months that Mr. Pinkney has been on a form of strict house bail. This is often referred to as giving an offender a Downes credit for time subject to restrictive term of bail - see R. v. Downes (2006), 79 O.R. (3d) (C.A) at p 331. While Mr. Pinkney, to his credit, has maintained employment as part of the terms of his house arrest, his bail conditions were nonetheless restrictive of his liberty and have impacted on the amount of time he could spend with his children and family.

65This court is not required to quantify how much credit is being given in mitigation for the time spent subject to restrictive bail conditions. As noted in R. v. Beharry, 2022 ONSC 4370, Schreck J. at para 34 noted that to quantify the amount of credit may “skew” the calculation of sentence. Similar comments were made by Doherty JA in R. v. Marshall, 2021 ONCA 344 at para 53, albeit in the context of the calculation of a “Duncan” credit. I have chosen not to quantify the Downes credit, but I have taken it into account as a mitigating factor.

66The sentence to be imposed on Mr. Pinkney must be one that focuses on denunciation and deterrence. Drugs and guns – especially fentanyl and illegal loaded handguns – occupy a disproportionate amount of the caseload of this court. The repercussions of what happens when fentanyl gets into the hands of unsuspecting drug users have dominated the news now for years. The repercussions of what happens when loaded handguns are combined with drugs have also dominated the media. It is rare that a day goes by that there is not news of yet another tragedy involving a guns and drugs. It is for this reason the jurisprudence at all levels of court has emphasized the importance of denunciation and deterrence.

67The sentence to be imposed on Mr. Pinkney must have a punitive impact and must be significant enough that it will have a meaningfully denunciatory and deterrent effect. But it is equally clear that the rehabilitation of Mr. Pinkney is a relevant consideration. Mr. Pinkney has demonstrated by his actions over the last 40 months he has been on bail that he is someone where rehabilitation is not just a possibility, it is in fact a reality. The court should consider that to impose a penitentiary sentence would not only be crushing but it could also destroy not only what Mr. Pinkney has achieved over the last 40 months, but it could also destroy his future rehabilitation.

68In imposing the sentence that this court is imposing, I have also considered the impact that a lengthy custodial sentence could have on Mr. Pinkney’s family and especially on his children. While he has been on house arrest, he has done his best to maintain a strong fatherly relationship with his children, but it is clear from the evidence of the children’s mother that the terms of his house arrest has seriously impacted on the ability of Mr. Pinkney to have the kind of relationship that children need and should expect from their father. A custodial sentence would deprive the children of their father at a formative time in their lives. Children should not have to suffer because of a terrible mistake by their father.

69Having considered whether a conditional sentence is available the next step in the courts analysis must be whether a conditional sentence would endanger the community. There is no evidence that in the 40 months Mr. Pinkney has been on bail that he has been in violation of his bail conditions let alone been involved in any criminal activity. I have no evidence that a conditional sentence would endanger the community, nor does Crown counsel suggest otherwise.

70I must also consider whether a conditional sentence is consistent with the fundamental principles of sentencing. As I have endeavored to demonstrate, a conditional sentence is not as some might describe a “walk in the park”. With the terms that will be imposed Mr. Pinkney will be under the court’s supervision for the next two years. He will then be supervised while he is on probation for three more years. The Supreme Court in Proulx has acknowledged that a conditional sentence is a punitive sanction that is capable of achieving denunciation and deterrence. I am satisfied the sentence in this case will address all the principles of sentencing that will result in a fit and fair sentence for Mr. Pinkney.

71The sentence to be imposed is as follows:

(a) Mr. Pinkney is sentenced to a conditional sentence order of two years less 6 days (Duncan credit) on the following terms:

You must keep the peace and be of good behaviour.
You must appear before the court when required to do so by the court.
You must report to a supervisor within four working days after the making of this conditional sentence order and thereafter when required by the supervisor and in the manner directed by the supervisor.
You must remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor.
You must notify the court or the supervisor in advance of any change of name or address and promptly notify the court or the supervisor of any change of employment or occupation.
For the first 12 months of your conditional sentence, you must always remain within the four walls of your home under conditions of house arrest with the following exceptions: i. For attendance at court as required. ii. For employment. iii. For meetings with your supervisor. iv. For meetings with your children’s teachers or school administration. v. To take your children directly to and from school. vi. To take your children directly to and from educational or co-curricular programming. vii. To go directly to and from medical, dental, or counselling appointments for you or your children. viii. For one four-hour period once a week to attend to personal needs and errands; and
For the second 12 months less 8 days of your conditional sentence order, you must respect a curfew of being in your home between 10:00 p.m. and 6:00 a.m. every day, except for medical emergencies involving you, or your children or other immediate family members.
You may pursue further education in consultation with your conditional sentence supervisor.
After the expiry of the period of house arrest, you must seek and maintain employment.
You must always have a copy of your conditional sentence order in your physical possession when you are not inside your place of residence.

72For three years from the date of expiry of your conditional sentence, you will be subject to a probation order with the following conditions:

You must keep the peace and be of good behaviour.
You must appear before the court when required to do so by the court.
You must report to the probation service in Toronto within 72 hours of the completion of your conditional sentence.
You must notify the court or the probation officer in advance of any change of name or address and promptly inform the court or the probation officer of any change of employment or occupation.
You must notify your probation officer of your address and any proposed change of address before changing your address.
You may pursue further education, as directed by your probation officer.
You must seek and maintain employment.
You must complete 120 hours of community service during the three years of your probation order, at a rate of not less than 30 hours per year and report the same with proof to your probation officer.
You must always have a copy of your probation order in your physical possession when you are not inside your place of residence.

73Last, but not least, Mr. Pinkney, as part of your conditional sentence you are to appear before me four months from today on a date convenient to you to be arranged though my judicial assistant. I leave it to the Crown and defence counsel as to whether they will be in attendance. I will expect when I meet with you at that time and thereafter at further six-month intervals to hear what progress you are making with the conditional sentence and to address any concerns that your supervisor and/or the Crown might have.

74I have every expectation Mr. Pinkney that you will fulfill all the terms of your conditional sentence and terms of probation. I believe you are a person who has become, and will continue to be, a law-abiding member of the community. I wish you good luck and ask that you prove the Court has been correct in its sentence.

EDWARDS, R.S.J.

Released: January 19, 2026

NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If there are any discrepancies between the oral and written versions it is the official written Ruling that is to be relied upon.

CITATION: R. v. Pinkney, 2026 ONSC 319