R. v. Thomas, 2026 ONSC 3249
CITATION: R. v. Thomas, 2026 ONSC 3249
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
ADEYEMI THOMAS
Christie Black, for the Crown
Emily Lam, for the accused, Adeyemi Thomas
HEARD: April 23, 2026
reasons for sentence
VERMETTE J.
1On July 30, 2025, I found Adeyemi Thomas guilty of the offence of possession of cocaine for the purpose of trafficking, contrary to subsection 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). My Reasons for Judgment are reported at 2025 ONSC 4429 (“Reasons for Judgment”).
2On April 23, 2026, I heard sentencing submissions and reserved judgment. These are my reasons for sentence.
I. FACTUAL BACKGROUND
1. Circumstances of the offences
3The relevant facts are set out in my Reasons for Judgment. The following is a summary.
4Early in the morning on February 1, 2019, Mr. Thomas was taken to the Scarborough Health Network – Centenary Hospital (“Hospital”) by ambulance. After his admission, Mr. Thomas undertook a number of tests at the Hospital. An abdomen X-ray revealed “multiple mildly dense structures” measuring 3.7 x 1.8 cm in Mr. Thomas’ abdomen, and Mr. Thomas’ urine tested positive for cocaine, cocaine metabolite (BEG) and Levamisole, among other things.
5Mr. Thomas subsequently underwent surgery. Before his surgery, Mr. Thomas experienced seizures and respiratory distress. At some point, he had a cardiac arrest.
6The surgeon’s Operative Report dated February 1, 2019 describes what was removed from Mr. Thomas as follows:
Ultimately, I removed 87 foreign bodies, each one measuring about 4 cm in length and approximately 2 cm in diameter. There is all this stringy plastic like material also intertwined with feces and with these pellets.
7Sometime after the surgery, the Hospital’s manager for parking and security called the police. The police ultimately seized and processed the materials that were removed from Mr. Thomas during the surgery. Using a laser device that scans items to determine what substance they can be, a police officer scanned two different pellets. The device indicated that the substance in one pellet was cocaine. The result for the other pellet came back as inconclusive.
8There were 87 pellets in total. Four of the pellets were in liquid form, and the other 83 pellets were hard bundles. One liquid pellet and four hard pellets (including the pellet that was scanned and for which there was an inconclusive result) were randomly selected to do a submission to Health Canada. The Certificates of Analyst from Health Canada in relation to the five submissions state that the five samples contain cocaine. They also state that the substance Levamisole from the Prescription Drug List of the Food and Drug Regulations was “detected but not certified”.
9Mr. Thomas was arrested at the Hospital on February 2, 2019, while he was in the intensive care unit and still unconscious. He was released on bail to a surety on February 6, 2019, but he remained in the Hospital for some time for medical reasons.
10The exact net weight of the cocaine seized by the police is not known in this case because the cocaine was contained in some packaging and the weight of the packaging is unknown. However, I found in my Reasons for Judgment (at para. 205) that, at the very least, 75% of the weight of the pellets was cocaine, i.e., more than 548 grams. I also found that the value of the cocaine was at least between $27,436.72 and $35,282.24.
11In my Reasons for Judgment, I found that Mr. Thomas’ rights under sections 8 and 9 of the Canadian Charter of Rights and Freedoms (“Charter”) had not been violated, but that his right to be informed of his right to retain and instruct counsel without delay under section 10(b) of the Charter had been infringed. However, under section 24(2) of the Charter, I concluded that the admission of the evidence that Mr. Thomas sought to exclude would not bring the administration of justice into disrepute. As a result, Mr. Thomas’ application for an order excluding evidence or, in the alternative, a stay of proceedings was dismissed.
12The Reasons for Judgment also include the following footnote (footnote 5):
I note that Mr. Thomas did not formally bring an application under section 10(a) of the Charter regarding his right, on arrest or detention, to be informed promptly of the reasons therefor. I have nevertheless turned my mind to the section 10(a) issue because it is inextricably linked to the section 10(b) issue in the circumstances of this case. My conclusion under section 10(a) would be the same as my conclusion under sections 10(b) and 24(2) of the Charter given that the relevant facts are the same.
2. Criminal record
13Mr. Thomas has a criminal record. On October 27, 2014, he was found guilty of forcible confinement, robbery with a firearm, and possession of property obtained by crime not exceeding $5,000. He was sentenced to five years of imprisonment, but was given credit for three years and five months of pre-sentence custody.
3. Pre-sentence report dated September 18, 2025 and enhanced pre-sentence report dated March 4, 2026
14Both a pre-sentence report (“PSR”) and an enhanced pre-sentence report (“EPSR”) were prepared in this case.1 The PSR was completed in September 2025 and the EPSR was completed in March 2026. The following information is set out in the PSR and/or the EPSR.
15Mr. Thomas is a 42-year-old Black man. He is a Canadian citizen. He was born in Sierra Leone. When he was born, his mother was 14 years old and his father was 17 years old. After his birth, Mr. Thomas and his mother stayed with his grandmother’s friend. Mr. Thomas’ father was not present. When he was four years old, Mr. Thomas was sent to live with a woman who agreed to take him in because Mr. Thomas’ mother did not have the financial and emotional capacity to take care of him.
16Mr. Thomas met his father in 1990, when he was seven years old. His father brought him to Canada. In Canada, Mr. Thomas initially lived with his father and stepmother. There was no loving relationship between Mr. Thomas and his father.
17One year after his arrival, Mr. Thomas’ father and stepmother divorced. Two years after his arrival, Mr. Thomas was apprehended by a child welfare agency and placed into foster care. His father had called the police to report that Mr. Thomas was missing. When the police located Mr. Thomas at a friend’s house, Mr. Thomas started crying and disclosed to the police that he did not want to return to his father because he would be spanked. After he showed some marks on his back to the police which were the result of a recent spanking, Mr. Thomas was taken into foster care that same night.
18Mr. Thomas lived in foster care from 1992 to 1994. He recalls staying in a few homes before being placed with German foster parents where he remained for a lengthy period of time. His father eventually regained custody of him and allowed him more freedom than usual. Within a few months of his return, Mr. Thomas and his father travelled to Sierra Leone during the summer holiday. Mr. Thomas was 11 years old at that time.
19Upon his return to Sierra Leone, Mr. Thomas was left in the care of another woman known to his family. Mr. Thomas expected to return to Toronto at the end of the summer, but he learned that he was to stay in Sierra Leone on the day of his father’s departure. Mr. Thomas remained in the care of the family friend after his father’s departure from Sierra Leone. Mr. Thomas occasionally saw his mother when she dropped off money for his care.
20Mr. Thomas’ mother and others blamed him for messing up his chance for prosperity in Canada. As a result, Mr. Thomas internalized feelings of failure. These feelings got worse as he got older. He started to rebel, often staying out late and frequently running away. Mr. Thomas experienced food insecurity as there were many children in the home and limited food.
21In 1996, when he was 13 years old, Mr. Thomas and one of his cousins were captured by the rebels in the civil war in Sierra Leone between the Government forces and the Revolutionary United Front. They were forced to join the war as child soldiers. Mr. Thomas and his cousin were sent to a training camp where refusal to comply meant death. Their training involved two youth fighting each other so that the commanders could decide who to choose for their respective teams based on who survived.
22Mr. Thomas spent two years as a child soldier. Some of his experiences were too painful for him to recollect and discuss. He said that he has flashbacks of his experiences.
23Mr. Thomas’ time as a child soldier ended when he was shot in the leg by a bullet that was meant for someone else. He was left at the house of a “medicine lady” who took care of him for two months before he returned to his community.
24Mr. Thomas and the other child soldiers were treated like pariahs in the neighbourhood. Mr. Thomas was beaten by mobs of people on a regular basis.
25In 1999, Mr. Thomas reconnected with his former commander and resumed his role as a child soldier. According to Mr. Thomas, being a soldier was easier than remaining at home where he was not welcome.
26Mr. Thomas stated that, during the war, he was forced to smoke a mixture of cocaine and gun powder – which was intended to increase aggressiveness amongst soldiers – as well as marijuana. He recalls experiencing withdrawal symptoms following the war. Mr. Thomas now abstains from all substances.
27In 2001, there was a process which allowed child soldiers to leave safely without facing repercussions, such as death. Mr. Thomas returned to Freetown, the capital of Sierra Leone. His cousin did not survive the war.
28Mr. Thomas found a place to live in a home that was built by some of the youth in the community on a small plot of land. The community did not forgive his participation in the war and continued to exclude him and to assault him regularly. Mr. Thomas briefly returned to secondary school. He was kicked out of the school after a conflict with the head youth in charge. He was then able to attend a Muslim school where he remained for two years, but his grades were not good enough for him to attend university. Mr. Thomas resolved to seek employment to earn a living.
29Mr. Thomas decided that he wanted to return to Canada because the economic opportunities were limited in Sierra Leone. His mother pled with his father to give him another chance. Mr. Thomas left Sierra Leone again in 2003, when he was 20 years old. He arrived in Toronto in June 2003 and he settled with his father and new stepmother, Margeory Anderson. They lived in an apartment in North York. The family later relocated to Ajax. Mr. Thomas attended an alternative school – where he learnt how to use a computer for the first time – and was seeking employment. Six months after Mr. Thomas’ return to Canada, a few days before Christmas, his father asked him to leave. He was disgruntled by Mr. Thomas’ lack of progress.
30Mr. Thomas had nowhere to go. He went knocking from door to door asking strangers if he could stay with them until he found a job. As he arrived at the home of a Black Jamaican woman, the police pulled up in response to calls from others about a Black man wandering the streets asking people for a place to live. The Black woman identified Mr. Thomas as a relative in order to protect him from police, and she agreed to let him stay with her for a few months. She had other tenants on the premises.
31Mr. Thomas eventually found a job at a warehouse and saved enough money to move out in the summer of 2004. He later worked at a call centre. In 2006, Mr. Thomas was accepted into George Brown College of Science and Technology (“GBC”), and he moved into his own apartment in downtown Toronto. His area of study was business administration and human resources. While at GBC, Mr. Thomas worked in retail and found other positions within the college. In 2008, he became the vice-president of the student union, which was a paid position. He later became president of the union.
32After graduating from GBC, Mr. Thomas had a difficult time securing employment. He eventually found employment with Abrigo Centre, a non-profit organization servicing the Portuguese community. Mr. Thomas was hired for job development and employment counselling and was the only Black person on staff. His colleagues did not interact with him unless it was necessary, and some of the white clientele bypassed him to speak to his manager, a white woman, only to be redirected back to him. Mr. Thomas still enjoyed the job and liked his manager.
33Mr. Thomas worked at Abrigo Centre for 1.5 years until he was fired following an incident arising from a white client calling him the n-word and expressing the view that Black people should not be working there. When the client exited the centre, Mr. Thomas followed him to confront him about his actions, but someone deliberately tripped him while he was in pursuit. When an anonymous person called Abrigo Centre to complain about Mr. Thomas chasing a white man, he was fired by the executive director without being asked for his version of events.
34Mr. Thomas subsequently found a job running a youth program. He developed close relationships with the youth and when one of them got into conflict with the law, he supported him by becoming his surety and providing him with shelter. The youth did not adhere to his bail conditions and Mr. Thomas became involved in a criminal offence that was committed by the youth. Mr. Thomas was convicted and incarcerated for over two years.
35Mr. Thomas experienced overt anti-Black racism while incarcerated at the Central East Correctional Centre. He said that the correctional officers were all white men and they used racial slurs on a daily basis. There were times where he was the only Black man on the range, and the white men and correctional officers stereotyped him as gang-involved. He was “jumped” about six times and assumed to be an easy target because he was outnumbered and unlikely to retaliate. He defended himself as much as possible.
36When Mr. Thomas was released in 2015, he was without income or shelter. A former girlfriend allowed him to stay with her. Mr. Thomas had difficulty finding employment due to his criminal record. In 2016, he was hired by his current employer, Funnel Cloud, a new company making software for car manufacturers. Mr. Thomas disclosed his criminal record and his boss took a chance on him when no one else would.
37Mr. Thomas is the father of twin boys who are six years old. They were born in the months following his arrest in February 2019. Both of his sons have been formally diagnosed with autism.2 Hellen Dumbaya, the mother of Mr. Thomas’ sons, told the author of the EPSR that Mr. Thomas has been consistently present since the birth of their sons and that he is more of the primary caregiver than herself. She said that Mr. Thomas does research to meet their sons’ needs and is intentional about spending time teaching and playing with them. The PSR states that Mr. Thomas is extremely involved in his children’s lives, he takes them to sports and medical appointments and studies with them.
38Mr. Thomas has experienced financial instability for most of his life in Canada and he described himself as mostly “poor”. While he is currently employed, he has a number of expenses in addition to his daily living expenses, including monthly occupational therapy sessions for his two autistic sons and his mother’s living expenses in Sierra Leone. He also has debts, which now include legal fees. The EPSR notes that poverty is one of the risk factors that influence crime, and the poverty rate for African Canadians is 24%, in comparison to 14% for Ontario’s overall population.
39Mr. Thomas told the author of the EPSR that incurred debt in the amount of $60,000 motivated his commission of the offence. The sources of the debt were a gambling addiction and fertility treatments. Mr. Thomas said that he developed a gambling addiction while incarcerated at the Central East Correctional Centre in 2014, where gambling became a pastime for the men because programs were limited. When Mr. Thomas was released from incarceration in 2015, he continued to gamble and found underground poker games where he developed a tab of money that he owed.
40Mr. Thomas also told the author of the PSR that from 2016 to 2018, he did fertility treatments after learning that he was deficient in sperm. The treatments were costly and Mr. Thomas amassed credit card debt that went to collections.
41Ms. Dumbaya became pregnant with their twins in late 2018. Mr. Thomas told the author of the EPSR that he was concerned about the prospect of becoming a parent while mired in debt. Given this, he agreed to travel to St. Lucia and to collect money when the people holding his gambling debt asked him to do so and promised to pay him. Mr. Thomas said that a few days after he arrived in St. Lucia, six men showed up with cocaine. There was a heated discussion because Mr. Thomas had only agreed to pick up some money, not to transport drugs, but Mr. Thomas ultimately acceded to the demand because he was outnumbered and the men appeared to be armed. Mr. Thomas ingested the packets of cocaine the night before his departure. He stated that he began experiencing symptoms of cocaine overdose overnight and he has no recollection of the events between his departure from St. Lucia and waking up in the hospital in Toronto. Mr. Thomas did not identify the other parties for fear of harm to himself and his family.
42The PSR does not refer to the allegation that Mr. Thomas believed that he was going to St. Lucia to collect money. Rather, the PSR states that Mr. Thomas advised that “he was holding the drugs for someone as he was forced to pay off gambling debts owed to them.”
43On the issue of debts, the PSR states that Mr. Thomas claims to have significant debt in the form of credit cards and personal loans as services were accessed for his sons. Mr. Thomas also reported having spent $50,000 on two different lawyers, and that is why he was self-represented.
44Mr. Thomas continues to live with the side effects of the cocaine ingestion, including digestive issues, narcolepsy and seizures.
45Mr. Thomas reported having been racially profiled by police on several occasions. Like many others in the Black community, Mr. Thomas does not trust police as he believes that he is more likely to be criminalized than supported.
46The PSR states that Mr. Thomas has a diagnosis of post-traumatic stress disorder. Mr. Thomas advised that he has dreams of being captured by the rebel forces that replay on a loop.
47Ms. Dumbaya told the author of the EPSR that in addition to being a wonderful father, Mr. Thomas is the “uncle” of the community as he cares for other children and he frequently organizes community outings for connection. Others who spoke to the author of the EPSR described Mr. Thomas as a good and kind person, a smart man, a hard worker with excellent work ethics, a loyal and committed employee, a mentor, and someone who is thoughtful, selfless, reliable, understanding and trustworthy. Mr. Thomas has a large social network and a tight-knit peer group.
48Mr. Thomas regrets his actions and wishes he had made different choices.
4. Letters filed by the defence
49The defence filed a number of letters. One of the letters is from Dr. Kayla Hamel, a clinical and forensic psychologist. Dr. Hamel advises that Mr. Thomas has been engaged in therapy with her since March 2026, he has attended a total of five hours of individual psychotherapy sessions, and he intends to continue in psychotherapy with her for a subsequent five sessions. Dr. Hamel states that Mr. Thomas has been highly engaged and forthright throughout their meetings. She writes in her letter that Mr. Thomas has experienced considerable complex trauma throughout his upbringing and adolescent years, including exposure to extreme violence and combat, abuse, instability, separation and abandonment by parental figures, poverty, and stigmatization/exclusion from community. Mr. Thomas told Dr. Hamel that he participated in the offence to earn money for his family after learning that his partner was pregnant. He also said that he was approached “with an offer to transport money internationally”, but was later told to transport illegal substances. According to Dr. Hamel, Mr. Thomas “expressed a sense of responsibility for his actions, acknowledged that this was a very poor decision and was perceived to feel deep remorse and guilt for his actions.”
50I note that Dr. Hamel’s letter contains some information that is not consistent with the information in the EPSR, e.g., that Mr. Thomas went to St. Vincent instead of St. Lucia. It also contains some information that is not included in the EPSR, e.g., that after he resumed his role as a child soldier, Mr. Thomas fled to Libya in an attempt to ultimately travel to Europe, but he was arrested due to not having status in Libya.
51The defence also filed a letter from Memuna Stevens, a registered social worker and registered psychotherapist who has been working with Mr. Thomas, Ms. Dumbuya and their two sons for approximately three years. Ms. Stevens states that both children present with neurodevelopmental differences consistent with autism spectrum disorder (“ASD”). She notes that Mr. Thomas has demonstrated a high level of therapeutic engagement that exceeds what is typically observed. She expresses the view that many of the developmental gains the children have made are closely tied to the consistency of support offered by Mr. Thomas, and that these gains remain fragile and require ongoing reinforcement in order to be maintained.
52Ms. Stevens writes the following in her letter:
From a clinical perspective, the potential impact of a prolonged separation from a parent would generally be significant but for Mr. Thomas in particular it [sic] the impact to the children will be immediately transformative and life altering in the long run[.] Such an absence would likely result in:
○ Developmental regression, particularly in communication and self-regulation skills that depend on consistent reinforcement
○ Disruption of attachment relationships, which are foundational to emotional security, behavioural stability, and long-term social development
○ Increased anxiety and dysregulation, as children with ASD are particularly sensitive to changes in routine and caregiving structure
○ Loss of developmental momentum during a critical early intervention window, where progress is most responsive to consistent input
○ Secondary impacts on overall functioning, including difficulties in educational settings and peer interaction
Attachment disruption is a serious clinical concern. Children with neurodevelopmental differences often rely on a small number of highly attuned caregivers to help them interpret and respond to the world around them. The sudden and prolonged absence of such a caregiver can lead to confusion, distress, and setbacks that are not easily or quickly reversed.
In my professional opinion, Mr. Thomas is a central and stabilizing figure in his children’s developmental environment. His involvement is not only beneficial but plays a critical role in maintaining and advancing their developmental progress.
The removal of this support would not simply be a temporary hardship; it carries a meaningful risk of lasting developmental and emotional consequences for both children. I provide this letter to assist the Court in understanding the clinical and developmental context of this family.
53Ms. Dumbaya also wrote a letter in which she describes Mr. Thomas’ dedication to his sons. In addition, she states that Mr. Thomas provides most of their household’s total income, and that without his support, they “face near certain disaster, including the prospect of losing our home.” Ms. Dumbaya also expresses the view that without Mr. Thomas’ support in managing their household, she would struggle immensely to manage a number of responsibilities on her own.
54There are several letters from Mr. Thomas’ employer and co-workers. They state that Mr. Thomas is “an essential and deeply embedded member” of their team and has been steadfast in his responsibilities with the company. At work, Mr. Thomas is an individual who is trusted, valued and has the full support of his employer and co-workers.
55The Chair of the Board of the Afro Caribbean Culture and Arts Community Center wrote a letter of support. She states that Mr. Thomas has been a reliable, consistent and committed volunteer. He has been actively involved in supporting the Center’s programs, contributing his time, mentoring at-risk youth, and showing up for the community in meaningful ways.
56There are also letters from Mr. Thomas’ friends. They state that Mr. Thomas is a dependable friend who is always willing to help and who has a positive influence on others. They also describe Mr. Thomas as a person who is kind, thoughtful, deeply caring, generous, compassionate, honest, responsible and protective of others. All the letters mention Mr. Thomas’ devotion to his sons and his transformation following their birth.
57Finally, the defence has filed a letter dated June 1, 2021 from Dr. George Pallikaras, who has been Mr. Thomas’ doctor since January 2016. The letter sets out the following list of medical conditions with which Mr. Thomas has been diagnosed:
a. benign neutropenia (August 2017);
b. alpha thalassemia minor (August 2017);
c. central hypersomnia – query idiopathic hypersomnia/narcolepsy (March 2017);
d. right-sided open abdominal colectomy (February 2019);
e. anxiety and depression (July 2019);
f. bilateral shoulder impingement (July 2019); and
g. chronic low back pain – L4-S1 disc bulge with canal stenosis and L5 nerve root impingement.
II. POSITIONS OF THE PARTIES
1. Position of the Crown
58The Crown’s position is that an appropriate sentence would be a five-year penitentiary sentence. The Crown also requests the following ancillary orders:
a. a weapons prohibition for life pursuant to section 109 of the Criminal Code; and
b. a DNA order pursuant to subsection 487.051(3) of the Criminal Code.
59The Crown states that in cases of commercial trafficking of illicit drugs, the paramount principles of sentencing are denunciation and general deterrence. The Crown argues that these objectives can only be satisfied by a significant penitentiary sentence. The Crown points out that the serious impact of commercial trafficking in cocaine has been recognized in the case law.
60The Crown submits that the sentencing range that applies to this case based on the quantity of cocaine involved is five to eight years of imprisonment. The Crown refers to a number of cases where this range was applied. The Crown is seeking a sentence at the lowest end of the range given the mitigating factors and the collateral consequences in this case.
61In response to the defence’s submission that the sentencing range for the offence of importing should be used in this case, the Crown points out that importation and possession for the purpose of trafficking are two different offences, and that Mr. Thomas was not charged with importation of cocaine. The Crown reiterates that the sentencing range for the offence of which Mr. Thomas was convicted is well-established.
62The Crown notes that the offence of possession of cocaine for the purpose of trafficking carries the maximum penalty of life imprisonment, which reflects Parliament’s view of the gravity of this offence. According to the Crown, the recognition of the harms caused by this offence in the case law supports the gravity of this offence.
63The Crown argues that the following are aggravating factors in this case:
a. The quantity and nature of the substance. There was a large quantity (at least 548 grams) of a destructive Schedule I substance which would have done significant damage to many vulnerable and marginalized members of our community.
b. The value of the cocaine, which was upwards of $30,000.
c. The planned and premeditated nature of the crime.
d. The commercial and financial motivation for the crime. The Crown points out that the amount of cocaine is far in excess of an amount for personal use, and the explanation provided by Mr. Thomas for committing the offence was that he wanted to pay off debts of $60,000. The Crown states that Mr. Thomas chose to gamble and to pursue fertility treatments – which are expensive – and he had to live with that choice. The Crown notes that this is not a situation where Mr. Thomas was living in poverty and this led him to the offence. Rather, his choices led him to rack up some debts and that is what led him to the offence.
e. Mr. Thomas’s criminal record.
64The Crown points out that the suggestion that Mr. Thomas thought that he was going to St. Lucia to carry money instead of drugs – which suggestion is found in the EPSR and the letter from Dr. Hamel – was raised for the first time in March 2026. The Crown submits that this suggestion is not reasonable. The Crown notes that no details have been provided, there is no evidence of Mr. Thomas on this point, and the information provided cannot be tested. The Crown argues that the only reasonable inference is that Mr. Thomas was well aware of what he signed up for when he agreed to travel to St. Lucia, and that his attempt to minimize his involvement should be given no weight. The Crown states that Mr. Thomas assumed the risks and knew the people involved. The Crown acknowledges that a lower evidentiary standard applies at sentencing hearings, but asserts that the evidence must be credible and trustworthy and it is not possible to ascertain whether this information is credible and trustworthy.
65With respect to Mr. Thomas’ comments in the EPSR regarding the offences in his criminal record, the Crown submits that Mr. Thomas appears to try to shift his moral blameworthiness for these crimes onto the youth he was supervising. The Crown points out that there is no evidence before the Court supporting Mr. Thomas’ version of events.
66The Crown notes that Mr. Thomas was released in 2015 and that there were at most four years between the time that he was released and the time that he was charged in this case. The Crown argues that this is not a significant gap and that Mr. Thomas is a repeat offender. The Crown points out that the crimes committed by Mr. Thomas in 2014 were also committed for financial gain. The Crown states that Mr. Thomas served a substantial sentence as a first offender and was not deterred from future criminality.
67The Crown identifies the following mitigating circumstances:
a. Mr. Thomas faced many challenges growing up, both in Sierra Leone and in Canada. However, the Crown argues that it is difficult to assess the impact of all of this on Mr. Thomas given the limited information available.
b. Mr. Thomas followed through on his education and was successful in obtaining a degree from GBC. The Crown also notes that Mr. Thomas had a leadership role at GBC as an academic representative, and that he must have been respected by his peers to achieve this position and be successful at it.
c. Mr. Thomas has had stable and consistent employment and is a valued employee by his employer.
d. Mr. Thomas has family and community support, as demonstrated by the letters filed by the defence. His pro-social behaviour is not disputed. Mr. Thomas is a devoted father and has the respect of people in his communities. However, the Crown notes that with one exception, none of the letters refer to Mr. Thomas’ prior criminal conduct from 2014.
e. Mr. Thomas has been on bail for a very long time. The Crown notes, however, that Mr. Thomas was not on a strict bail until he was convicted. The letters of support reflect that he had an active life. The Crown also notes that there was significant defence delay, and that Mr. Thomas discharged two lawyers, including one on the first day of trial. According to the Crown, this factor should not be overly weighted. The Crown also points out that it was Mr. Thomas’ choice to be self-represented.
68The Crown submits that without any clarification as to Mr. Thomas’ insight into his conduct and without addressing what led him to commit the offence, it is difficult to assess his prospects of rehabilitation, and such prospects are not as strong. The Crown points out that Mr. Thomas has had stable full-time employment since 2016 and that, at the time of the offence, he had a stable income and was successful. Mr. Thomas had a pro-social life before and after the commission of the offence. Given this, the Crown argues that it is difficult to assess what rehabilitative steps Mr. Thomas needed or needs to take. The Crown also states that Mr. Thomas seems to minimize his involvement in his criminality.
69The Crown notes that the statement in the EPSR that Mr. Thomas has a “gambling addiction” is not substantiated by any records. The Crown argues that being a gambler is different from having an addiction. According to the Crown, the use of the word “addiction” in the EPSR is inappropriate and should not be given any weight.
70The Crown discussed the collateral consequences of any period of incarceration on Mr. Thomas, his sons and Ms. Dumbuya. The Crown states that such consequences are often the case and have to be considered alongside the harm done to society’s children. The Crown points out that trafficking in cocaine has consequences for other children and that many other children are at risk. The Crown submits that family considerations cannot be given undue weight and result in a disproportionate sentence, and they cannot justify a sentence below the accepted range or a conditional sentence in this case. The Crown notes that Mr. Thomas has the good fortune of having a close-knit group of supporters.
71With respect to any medical conditions suffered by Mr. Thomas as a result of the offence (e.g., cocaine toxicity), the Crown points out that Mr. Thomas made the decision to ingest the cocaine and he assumed that risk. The Crown submits that the impact of this collateral consequence is attenuated in the circumstances. Further, the Crown states that the impact of cocaine toxicity on Mr. Thomas is difficult to assess based on the records before the Court and in the absence of updated medical records.
72The Crown acknowledges that social context evidence can reduce an offender’s moral blameworthiness and that there is some evidence from Mr. Thomas relating to the impact of anti-Black racism on him. However, the Crown argues that the connection between anti-Black racism and the circumstances of the offence is not that clear or obvious. The Crown states that Mr. Thomas had full-time employment and was living a pro-social life at the time of the offence, and that the connection between the offence and his disadvantaged upbringing is not clear.
73The Crown points out that the author of the EPSR only considered the indictment and the Reasons for Judgment, and there was no other primary source documents reviewed or considered. The Crown notes that everything in the report is based on Mr. Thomas’ perceptions along with the perceptions of the people interviewed.
74The Crown states that there is no evidence that Mr. Thomas was a mere courier, but, in any event, it has been recognized in the case law that couriers have a high degree of moral blameworthiness. The Crown argues that Mr. Thomas has diminished the seriousness of the crime and he does not appreciate the severity of being in possession of such a large amount of cocaine. The Crown submits that even if Mr. Thomas may not have been involved in the selling of the cocaine, he played a key role in facilitating the cocaine coming into Canadian society.
75With respect to the breaches of sections 10(a) and 10(b) of the Charter previously found by the Court, the Crown states that the breaches were minor and the impact on Mr. Thomas’ Charter protected interests was minimal. The Crown argues that a reduction of the sentence is not warranted in the circumstances of this case.
76With respect to the privacy breach alleged by Mr. Thomas regarding medical records inadvertently provided by the Hospital to the police, the Crown submits that the breach was not discovered until the records were in the possession of the Crown and the Crown then had to disclose the records to Mr. Thomas himself. The Crown states that the breach was inadvertent and the impact on Mr. Thomas was limited.
77The Crown submits that the conditional sentence cases referred to by the defence are all distinguishable on the facts and generally involved lower quantities of drugs.
2. Position of the defence
78The defence’s position is that an appropriate sentence in this case is a conditional sentence of two years less a day, followed by a one-year probation. The defence does not take issue with the ancillary orders requested by the Crown (weapons prohibition and DNA order).
79The defence states that a lower evidentiary threshold applies at sentencing. The defence points out that the evidence before the Court is uncontested and can be relied upon. The defence submits that Mr. Thomas should not be held to the standard used at trial. The defence highlights the coherence and the consistency of the evidence across the various sources.
80The defence argues that the following mitigating factors are present in this case:
a. breaches of Mr. Thomas’ Charter rights under sections 10(a) and 10(b);
b. privacy breach related to the disclosure and retention of Mr. Thomas’ medical records;
c. collateral consequence of family separation and impact on the well-being of Mr. Thomas’ family;
d. Mr. Thomas has engaged in stable and consistent employment, and he is incredibly valued by his employer;
e. Mr. Thomas has taken steps to engage in counselling to address underlying sources of trauma or any other factors that contributed to his participation in the offence;
f. the length of time for which Mr. Thomas has been on bail;
g. the social and economic disadvantages in Mr. Thomas’ life;
h. Mr. Thomas has not been raised by any parents in a safe and loving environment;
i. Mr. Thomas was exposed to unspeakable violence and atrocities;
j. Mr. Thomas has a wide and supportive network of family and friends;
k. Mr. Thomas is a pillar of his community involving Black people and at-risk youth;
l. Mr. Thomas has suffered collateral effects from the delay in his trial, some of which resulted from the pandemic;
m. Mr. Thomas has been impacted by having to self-represent and having to go through the process without the benefit of a lawyer;
n. Mr. Thomas has worked diligently towards his own rehabilitation and has made real rehabilitative gains; and
o. Mr. Thomas has expressed genuine remorse, as shared with his family and friends.
81The defence refers to the letters of support that were written by Mr. Thomas’ employer and friends. The defence notes the important role played by Mr. Thomas in his employer’s business and his sense of community. The defence submits that the letters speak to who Mr. Thomas is, and to the strength and depth of his relationships. The defence argues that Mr. Thomas is a pillar in his family and in our society and that he made a mistake, but, despite this, he continues to be an example.
82The defence states that Mr. Thomas developed a problem with gambling when he was previously incarcerated due to the lack of programming. Costly fertility treatments later added to his outstanding gambling debts. According to the defence, Mr. Thomas could not imagine having children without any financial security.
83The defence notes that both the PSR and the EPSR contain references to Mr. Thomas being an unwilling participant in bringing cocaine to Canada. The defence argues that Mr. Thomas’ version of events is consistent across the sources, including the PSR, the EPSR and Dr. Hamel’s letter. The defence submits that despite the findings contained in the Reasons for Judgment on the issue of duress, Mr. Thomas’ uncontested explanation of how he came to commit the offence can be considered in sentencing as circumstances of the offence without absolving him of responsibility.
84The defence argues that the offence was a one-time transaction done in order to pay down a debt so that Mr. Thomas would be better able to provide financially for his family and children. The defence submits that this makes Mr. Thomas’ conduct less morally culpable than a drug dealer who has trafficked to various people during a period of time in order to make quick money.
85The defence states that the impact of cocaine toxicity on Mr. Thomas needs to be considered. The defence further states that Mr. Thomas has no memory of the events between his departure from St. Lucia and waking up in the hospital in Toronto. The defence points out that Mr. Thomas continues to have health issues.
86The defence agrees that in drug trafficking cases, the primary sentencing principles are the principles of general deterrence and denunciation. However, the defence states that these principles should not be elevated above the cardinal principle of proportionality, and that the door to rehabilitation must remain open. The defence also submits that the principle of restraint should be used appropriately.
87The defence argues that the appropriate sentencing range in this case is two to three years. The defence states that this case has features that distinguish it from the usual trafficking cases. The defence points out that aside from the amount of cocaine in issue, there were no other indicia that Mr. Thomas was engaged in the widespread distribution of drugs. Based on the weight of the pellets (7 to 8 grams), the defence submits that this case falls within the mid-level category of traffickers, and that the case law supports a range of two to four years for this level.
88The defence states that the evidence in this case is more akin to importation in which Mr. Thomas transported a little more than half of kilo of cocaine in a one-transaction deal. The defence argues that there are no other cases that exist between the completion of importation and what is properly regarded as drug trafficking. The defence expresses the view that the applicable range of sentences should be more similar to importation. Based on the case law, the defence submits that the range for the importation of half a kilogram of cocaine is two to five years, and that the appropriate range in this case is two to three years.
89The defence argues that the gap principle applies in this case and should be considered because, among other things, a gap is relevant to future risk and rehabilitative potential. The defence points out that Mr. Thomas has strong prospects for individual deterrence and rehabilitation. The defence states that he is far from a professional criminal, and the public is in less need of protection from him. According to the defence, Mr. Thomas should be treated if not as a first offender, then almost as a first offender.
90The defence notes that collateral consequences include 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. Such collateral consequences are relevant since they increase the impact of the sentence on the offender because of his circumstances. The defence submits that sentencing judges must give serious and sufficient consideration to family separation consequences in determining whether to incarcerate an offender. The defence argues that family separation consequences weigh towards the imposition of a conditional sentence in this case.
91The defence states that this Court should consider the impact on Mr. Thomas of the breaches of his rights under sections 10(a) and 10(b) of the Charter. The defence argues that these breaches were serious and that the impact on Mr. Thomas was significant. The defence notes that Mr. Thomas was in a very vulnerable position at the Hospital after his arrest. The defence submits that the breaches should be considered as mitigation on sentence.
92The defence also submits that the breach of Mr. Thomas’ privacy rights should be considered as having a mitigating effect. The defence refers to the medical records that were erroneously provided to the police by the Hospital and that were outside the scope of the production order obtained by the police. The defence argues that the police should have recognized that they were unlawfully in possession of the records, and should have returned them to the Hospital. The defence points out that the police did not take any meaningful step to remedy the breach of privacy. The defence states that the casual approach taken by the police impacted Mr. Thomas’ privacy.
93The defence refers to case law on the issue of anti-Black racism. The defence argues that Mr. Thomas’ motivation in committing the offence was not greed, but a genuine concern and fear of bringing two young children into the world without any financial stability. The defence notes that poverty is one of the risk factors that influence crime, and that the poverty rate for African Canadians is significantly higher than the poverty rate for Ontario’s overall population. The defence submits that Mr. Thomas’ concern for the well-being of his children was a valid one that was informed by his experiences. He did not want his children to have the same hardships and challenges that he had.
94The defence notes the presence of anti-Black racism in the jail system and states that the manner in which Mr. Thomas would serve a jail sentence would be harder and more onerous than a non-Black person.
95The defence submits that the delay in this proceeding does not fall entirely at the feet of Mr. Thomas. The defence points out that Mr. Thomas has been out in the community for over seven years since he was arrested, and he has complied with his bail conditions for the entire period of time. The defence argues that Mr. Thomas is not only not a danger to the community, but he helps keeping the community safe.
96The defence’s position is that a conditional sentence is consistent with the fundamental purposes and principles of sentencing. The defence submits that a decade of being subject to conditions, monitoring and supervision (i.e., seven years on bail, two-year conditional sentence and one-year probation) addresses the principles of denunciation and general deterrence, but also reflects restraint, specific deterrence and rehabilitation, in addition to addressing the concerns regarding the overincarceration of Black people.
III. DISCUSSION
1. Relevant legal principles
a. General principles
97The fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society: see section 718 of the Criminal Code. The main principles of sentencing are set out in sections 718, 718.1 and 718.2 of the Criminal Code. Section 718 recognizes that “just sanctions” will have one or more of the objectives identified in subsections (a) to (f), including denunciation, general and specific deterrence and rehabilitation. However, those objectives will not necessarily point toward the same sentencing disposition. The individualization of the sentencing process requires the sentencing judge to prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender. The search for a just sanction that reflects a proper blending of the objectives of sentencing is guided by the principle of proportionality. See R. v. Morris, 2021 ONCA 680 at paras. 58-59 (“Morris”).
98The goal in every case is a fair, fit and principled sanction, and proportionality is the organizing principle in reaching this goal. All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Individualization is central to the proportionality assessment. The question is always whether the sentence reflects the gravity of the offence, the offender’s degree of responsibility and the unique circumstances of each case. See R. v. Parranto, 2021 SCC 46 at paras. 10, 12 (“Parranto”) and R. v. Ipeelee, 2012 SCC 13 at para. 37.
99On sentencing, the rules of evidence are relaxed to facilitate the production of any information that could help the sentencing judge arrive at a fit sentence. Information that sheds light on the offender’s background, character, and circumstances, or helps explain why the offender committed the offence, is relevant on sentencing and potentially admissible. The sentencing judge can rely on hearsay information if the judge concludes that it is credible and trustworthy. See Morris at paras. 133-135 and sections 723 and 726.1 of the Criminal Code.
100The principle of restraint, which is reflected in subsections 718.2(d) and (e) of the Criminal Code, provides that: (a) an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances, and (b) all available sanctions – other than imprisonment – that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders. See R. v. Desir, 2021 ONCA 486 at para. 38 (Desir”). The principle of restraint also requires the sentencing judge to consider rehabilitation in determining the appropriate length of a sentence. See Desir at para. 41 and R. v. Batisse, 2009 ONCA 114 at para. 33.
101The “gap principle” was raised in this case. According to the gap principle, if a substantial period of time passes during which the offender has had no conviction, this is a relevant factor to consider. The four rationales behind the gap principle are the following (see R. v. Milani. 2021 ONCA 567 at paras. 68-69 and R. v. Singh, 2012 ONSC 30 at para. 182):
a. a gap in an offender’s criminal record is relevant to future risk and to rehabilitative potential;
b. a person who has rectified past behaviour for a substantial period of time should be considered as having better prospects for individual deterrence and rehabilitation;
c. if someone with a criminal record has not had any convictions for several years, they are to be treated if not as a first offender, then almost as a first offender; and
d. ordinarily, the gap should reflect a sufficient passage of time to be relevant.
b. Possession of cocaine for the purpose of trafficking
102The fundamental purpose of sentences for offences under the CDSA is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society, while encouraging rehabilitation – and treatment in appropriate circumstances – of offenders and acknowledging the harm done to victims and to the community. See subsection 10(1) of the CDSA.
103Subsection 10(2) of the CDSA states that if a person is convicted of a designated substance offence, the court imposing sentence on the person must consider any relevant aggravating factors, including the aggravating factors set out in that subsection. None of the listed aggravating factors are present in this case.
104The dangers posed by trafficking in hard drugs, such as cocaine, have been discussed and recognized by the courts, including the Supreme Court of Canada. See, e.g., R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045 at 1053 and Parranto at paras. 87-92. Trafficking in such substances causes both direct and indirect costs and harms to society. The distribution of hard drugs directly leads to addiction, debilitating adverse health effects and, too frequently, death by overdose. Further, families and children suffer immense harm from the effects of addiction in their home. Commercial trafficking “also leads indirectly to a host of other ills, including an increase in all manner of crime, committed by those seeking to finance their addiction, as well as by organized crime syndicates”: see Parranto at para. 89. Given this, trafficking in hard drugs has been said to cause havoc in communities and to be a “crime with such grievous consequences that it tears at the very fabric of society”: see Parranto at paras. 87, 92.
105Because of the significant harms and violence associated with cocaine trafficking, and because it is a planned and premeditated commercial crime, the courts have repeatedly stressed that denunciation and general deterrence are the most important sentencing principles in trafficking cases. See R. v. Graham, 2018 ONSC 6817 at para. 46 (“Graham”).
106The sentencing ranges for cocaine trafficking offences depend on the quantities of drugs involved. See Graham at para. 47. The Court of Appeal has held in a number of cases that sentences in the five-to-eight-year range are appropriate for first offenders convicted of possession for the purpose of trafficking in slightly more than a pound of cocaine.3 See R. v. Bryan, 2011 ONCA 273 at para. 1; R. v. Wawrykiewicz, 2019 ONCA 21 at para. 15; R. v. Brown, 2021 ONCA 35 at para. 9; and R. v. Lynch, 2022 ONCA 109 at para. 14.
107While sentencing ranges reflect the principles and objectives of sentencing and are used to ensure the parity of sentences, they are primarily guidelines, not straightjackets. Sentencing judges must still exercise their discretion in each case. See R. v. Lacasse, 2015 SCC 64 at paras. 57-60, and Parranto at paras. 36-37.
c. Collateral consequences, including family separation
108Tailoring sentences to the circumstances of the offence and the offender may require the sentencing judge to examine collateral consequences in order to craft a proportionate sentence that takes into account all the relevant circumstances related to the offence and the offender. 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. Although collateral consequences are not necessarily aggravating or mitigating factors under section 718.2 of the Criminal Code, they speak to the personal circumstances of the offender, and they are relevant to the application of the sentencing principles of individualization and parity. The question is not whether collateral consequences diminish the offender’s moral blameworthiness or render the offence itself less serious, but whether 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. However, the fundamental principle of proportionality must prevail in every case, and collateral consequences cannot be used to reduce a sentence to a point where it becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender. See R. v. Suter, 2018 SCC 34 at paras. 46-48, 56 (“Suter”).
109Collateral consequences do not need to be foreseeable or to flow naturally from the conviction, sentence, or commission of the offence. However, the fact that a consequence was foreseeable is relevant. Thus, where the consequence is so directly linked to the nature of an offence as to be almost inevitable, its role as a mitigating factor is greatly diminished. For instance, if an offender suffers injury as a result of an offence, the attenuating effect of the injury on the sentence imposed will likely be lessened where the injury was a foreseeable consequence of the commission of the offence. See Suter at paras. 49-50.
110It is open to a sentencing judge to consider collateral family consequences of family separation on the offender and on the children themselves. However, the sentence imposed must always remain proportionate to the gravity of the offence and the responsibility of the offender, and this factor cannot be allowed to overwhelm all other considerations. See R. v. L.C., 2022 ONCA 863 at para. 24 and R. v. Dent, 2023 ONCA 460 at paras. 124-126.
111A relevant example of a case where family considerations were discussed is the decision of the Court of Appeal in R. v. Spencer, 2004 5550 (Ont. C.A.) (“Spencer”). In that case, the accused, Ms. Spencer, was found guilty of importing 733.4 grams of cocaine into Canada from Jamaica. Ms. Spencer was a single Black mother. The trial judge imposed a conditional sentence of two years less a day. The Court of Appeal allowed the appeal and held that a sentence of 40 months should have been imposed at trial. The Court of Appeal stated the following at paragraphs 46-47:
It is a grim reality that the young children of parents who choose to commit serious crimes necessitating imprisonment suffer for the crimes committed by their parents. It is an equally grim reality that the children of parents who choose to bring cocaine into Canada are not the only children who are the casualties of that criminal conduct. Children, both through their use of cocaine and through the use of cocaine by their parents, are heavily represented among the victims of the cocaine importer’s crime. Any concern about the best interests of children must have regard to all children affected by this criminal conduct.
The fact that Ms. Spencer has three children and plays a very positive and essential role in their lives cannot diminish the seriousness of her crime or detract from the need to impose a sentence that adequately denounces her conduct and hopefully deters others from committing the same crime. Nor does it reduce her personal culpability. It must, however, be acknowledged that in the long-term, the safety and security of the community is best served by preserving the family unit to the furthest extent possible. In my view, in these circumstances, those concerns demonstrate the wisdom of the restraint principle in determining the length of a prison term and the need to tailor that term to preserve the family as much as possible. Unfortunately, given the gravity of the crime committed by Ms. Spencer, the needs of her children cannot justify a sentence below the accepted range, much less a conditional sentence.
See also R. v. Habib, 2024 ONCA 830 at paras, 42-45 (“Habib”).
112As stated in Spencer, sentencing judges must preserve the family as much as possible while being careful not to let family separation consequences overwhelm the other principles of sentencing. Thus, if incarceration is necessary, sentencing judges must give serious and sufficient consideration to family separation consequences in determining the length of the prison term. The same careful consideration is also needed when determining whether to incarcerate the accused. Depending on the facts, family separation consequences may justify a sentence adjustment – even a significant one – or a departure from the range. A proportionate sentence cannot be determined without considering family separation consequences. See Habib at paras. 44, 45 and 47.
d. Conditional sentence
113A conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders: see R. v. Proulx, 2000 SCC 5 at para. 21 (“Proulx”). Conditional sentences should generally include punitive conditions that are restrictive of the offender’s liberty. Thus, conditions like house arrest should be the norm, not the exception. The offender should be confined to their home except when working, attending school, fulfilling other conditions of their sentence or pursuant to other exceptions such as medical emergencies. See Proulx at paras. 36, 103.
114There are four criteria that a court must consider before deciding to impose a conditional sentence (see Proulx at para. 46 and section 742.1 of the Criminal Code):
a. The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment and that is not listed in subsections 742.1(c) or (d).
b. The court must impose a term of imprisonment of less than two years.
c. The safety of the community would not be endangered by the offender serving the sentence in the community.
d. A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.
115No offences are excluded from the conditional sentencing regime, except those with a minimum term of imprisonment and the offences that are listed in section 742.1 of the Criminal Code: see Proulx at para. 127(3). Serious consideration should be given to the imposition of a conditional sentence in all cases where the first three prerequisites listed above are satisfied: see Proulx at paras. 90 and 127(7).
116The prerequisite that the court impose a term of imprisonment of less than two years only requires the sentencing judge to make a preliminary determination rejecting a penitentiary term and probationary measures as inappropriate. Having determined that the appropriate range of sentence is a term of imprisonment of less than two years and being satisfied that the offender would not endanger the community, the judge should then consider whether it is appropriate for the offender to serve their sentence in the community. A conditional sentence need not be of equivalent duration to the sentence of incarceration that would have otherwise been imposed. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence. See Proulx at paras. 127(4) and (5).
e. Bail conditions
117Time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. This factor must be considered along with all the other mitigating and aggravating circumstances that may impact on the sentence in a given case. The criteria to be considered in assessing the weight of the mitigation include the amount of time spent on bail conditions, the stringency of the conditions, the impact on the offender’s liberty, and the ability of the offender to carry on normal relationships, employment and activities. See R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321 at paras. 33, 36, 37 (“Downes”), R. v. Joseph, 2020 ONCA 733 at para. 108 (“Joseph”) and R. v. C.C., 2021 ONCA 600 at para. 4.
118The mitigating effect that bail considerations have on the sentence to be imposed falls within the discretion of the trial judge. There is no prescribed formula for taking this mitigating factor into account. See Downes at para. 37 and R. v. Campbell, 2023 ONCA 483 at para. 25. However, a trial judge should not place unreasonable emphasis on any mitigating factor, including bail conditions under which the offender was. The calculation of the ultimate sentence should not be skewed by giving this factor unwarranted significance. See Joseph at para. 108 and R. v. Lowe, 2025 ONCA 475 at para. 17.
119Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities. See Downes at para. 37.
120The relevant inquiry is whether bail conditions were punitive enough to be akin to punishment, thereby warranting mitigation. Focus should be on the effect of the conditions, not whether the Crown acted reasonably in promoting or perpetuating those conditions. The appropriateness of the bail conditions is not relevant. See Joseph at para. 114.
f. [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) violations
121Incidents alleged to constitute a Charter violation can be considered in sentencing if they bear the necessary connection to the sentencing exercise. This is because the sentencing process includes consideration of society’s collective interest in ensuring that law enforcement agents respect the rule of law and the shared values of our society. Where the state misconduct in question relates to the circumstances of the offence or the offender, the sentencing judge may properly take the relevant facts into account in crafting a fit sentence, without having resort to section 24(1) of the Charter. Thus, the circumstances of an alleged Charter breach may be relevant mitigating factors warranting a reduced sentence. A sentence can be reduced in light of state misconduct even when the incidents complained of do not rise to the level of a Charter breach. See R. v. Nasogaluak, 2010 SCC 6 at paras. 3, 47-49, 53, 55 (“Nasogaluak”).
g. Anti-Black racism
122It has been recognized that an offender’s background and personal circumstances are relevant to their individual moral responsibility, and that systemic factors are important in sentencing offenders. See R. v. I.M., 2025 SCC 23 at paras. 164-165 (“I.M.”).
123Evidence of anti-Black racism and its impact on the specific offender can be an important consideration when determining the appropriate sentence: see Morris at para. 87. Social context evidence relating to the offender’s life experiences may be used where relevant to mitigate the offender’s degree of responsibility for the offence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing set out in section 718 of the Criminal Code. Courts may acquire relevant social context evidence through the proper application of judicial notice or as social context evidence describing the existence, causes and impact of anti-Black racism in Canadian society, and the specific effect of anti-Black racism on the offender. However, an offender’s experience with anti-Black racism does not impact on the seriousness or gravity of the offence. See Morris at para. 13.
124Thus, evidence that an offender’s choices were limited or influenced by his disadvantaged circumstances can speak to the offender’s moral responsibility for his acts, but not to the seriousness of the crimes. See Morris at para. 76.
125While an offender does not have to show a causal connection between anti-Black racism and the offence before anti-Black racism can be treated as a mitigating factor, some connection must be demonstrated. The Court of Appeal stated the following in Morris at para. 97:
There must, however, be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue. Racism may have impacted on the offender in a way that bears on the offender’s moral culpability for the crime, or it may be relevant in some other way to a determination of the appropriate sentence. Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender’s colour. Everyone agrees there can be no such discount […].
126Even if there is no connection between anti-Black racism and the commission of the offence that explains or mitigates the criminal conduct in issue, evidence of anti-Black racism can still be relevant. The Court of Appeal stated the following in Morris at para. 102:
Social context evidence can also be relevant on sentencing even if it does not tend to mitigate the offender’s moral culpability. As indicated earlier, social context evidence can provide valuable insight, both with respect to the need to deter the offender from future conduct, and the rehabilitative prospects of the offender. Evidence about an offender’s background and circumstances allows the sentencing judge to more accurately assess how sometimes competing objectives of sentencing, such as rehabilitation and denunciation, can best be blended to produce a sentence that accords with the proportionality principle and serves the fundamental purpose of sentencing articulated in s. 718.
127In considering the restraint principle, courts should bear in mind well-established over-incarceration of Black offenders, particularly young male offenders. See Morris at para. 123.
128Persons authoring EPSRs – or social context reports – are required to present an objective and balanced picture of the offender for the court. A social context report must distinguish between facts and an offender’s perceptions and beliefs as stated to the author. A properly prepared social context report must also carefully consider the information available in the primary source documents collected. Any claim that a particular event or incident is explained by institutional bias can only be objectively assessed by reference to the actual events as revealed in reliable primary source documents such as medical records. See Morris at paras. 144-146 and R. v. Young, 2025 ONSC 2883 at para. 101.
129In this case, as pointed out by the Crown, the author of the EPSR did not refer to or consider any “primary source documents”, except for the indictment and the Reasons for Judgment. This affects the weight to be given to some of the statements in the EPSR.
2. Aggravating factors
130There are some aggravating circumstances in this case. I agree that the following aggravating factors, which were identified by the Crown, are present in this case:
a. The nature of the substance, i.e., cocaine. As stated by the Supreme Court of Canada in Parranto, the dangers posed by trafficking in hard drugs, such as cocaine, have long been recognized in Canada. However, over the past few decades, “society’s awareness of the true gravity of trafficking in such drugs has grown to the point that we are reminded, on a daily basis, of the death, destruction, and havoc it causes in communities across Canada.” See Parranto at para. 87.
b. The quantity of cocaine – more than 548 grams – and its value, i.e., at least between $27,436.72 and $35,282.24.
c. The planned nature of the crime.
d. The commercial and financial motivation for the crime. The cocaine was not for Mr. Thomas’ personal use. Further, Mr. Thomas’ financial motivation is clear based on the explanations that he provided, i.e., he was to be paid to travel to St. Lucia, he wanted to earn money for his growing family, and he was concerned about the prospect of becoming a parent while mired in debt.
e. Mr. Thomas’ criminal record.
131In relation to Mr. Thomas’ criminal record, I conclude that the gap principle does not apply in this case. Mr. Thomas was convicted of serious offences on October 27, 2014. He was sentenced to a term of imprisonment of five years and was given credit for pre-sentence custody of three years and five months. Mr. Thomas was released at some point in 2015, on a date that is not specified in the materials before me. The offence before this Court was committed on February 1, 2019, less than four years later. In my view, this is an insufficient period of time to treat Mr. Thomas as an “almost first offender”. Further, I agree with the Crown that it is concerning that the crimes committed by Mr. Thomas in 2014 were also committed for financial gain, and that he was not deterred from future criminality despite the fact that he served a substantial sentence as a first offender.
132However, while I conclude that the gap principle does not apply, the pro-social life that Mr. Thomas has been leading since his release in 2015 – including both before and after the commission of the offence in issue in this case – constitutes a mitigating factor, as discussed further below.
3. Mitigating factors and collateral consequences
133I now turn to the mitigating circumstances and the collateral consequences relevant to sentence.
134As discussed below, there are many mitigating circumstances in this case. However, I do not accept that Mr. Thomas’ moral culpability is reduced because of his alleged understanding that he was to transport money from St. Lucia to Canada instead of cocaine. While the rules of evidence are relaxed on sentencing and a sentencing judge can rely on hearsay information, the information must be credible and trustworthy. In my view, the information before the Court on this point is not credible and trustworthy. Among other things:
a. The allegation of an agreement to transport money – which is not contraband – raises more questions than answers.
b. Mr. Thomas has not provided any direct evidence on this point, and the information that was provided to the Court on this point in the PSR, the EPSR and the letter from Dr. Hamel contains a number of discrepancies.
c. The information provided is vague, convenient and devoid of important details. Among other things, no information has been provided as to how much Mr. Thomas was to be paid to transport money, the occupation and role of the people who were involved, and why they wanted money to be transported. Without more details, it is difficult to accept that Mr. Thomas would have truly believed that he was to transport money.
d. The allegation that Mr. Thomas has no recollection of the events between his departure from St. Lucia and waking up in the Hospital in Toronto is, again, very convenient. It is also inconsistent with the impression that Mr. Thomas gave while cross-examining witnesses at trial about the events. I note, as well, that the medical records that were in evidence at trial show that Mr. Thomas was alert and answering questions appropriately in the ambulance and when he arrived at the Hospital.
135I also note that although it was not expressly raised by Mr. Thomas at trial, I considered the defence of duress in the Reasons for Judgment and found that it was not supported by any evidence: see paras. 225-232 of the Reasons for Judgment.
136Conversely, I accept that there are many other mitigating circumstances in this case. Mr. Thomas’ moral culpability is reduced by the extraordinary challenges that he encountered when growing up, which had a significant impact on him. Exposure to traumatic events may fundamentally change a person’s worldview and, therefore, their vulnerability, maturity and capacity for moral judgment. See I.M. at para. 156. Among other things, I accept that the lack of family and financial stability that Mr. Thomas experienced as a child and until he was a young adult would have affected his capacity for moral judgment when he was offered to transport drugs for money at a time where he had debts and he was looking to earn money for his family after learning that his partner was pregnant.
137Mr. Thomas is a Black man, and there is evidence before the Court that he has experienced anti-Black racism in Canada. However, the evidence does not show a clear connection between anti-Black racism and Mr. Thomas’ criminal conduct in this case. Notably, at the time of the offence, Mr. Thomas had stable employment and was leading a pro-social life. Nevertheless, I accept the defence’s submission that there is some connection between anti-Black racism and the offence in this case. More specifically, I accept the defence’s submission that at least part of Mr. Thomas’ motivation in committing the offence – that is, Mr. Thomas’ concerns about poverty, financial instability and the well-being of his children – was informed by his personal experiences, including his experiences as a Black man in Canada. As pointed out in the EPSR, the poverty rate for African Canadians is 24%, while the poverty rate for Ontario’s overall population is much lower – 14%.
138Despite all the challenges that he faced growing up, Mr. Thomas was successful in obtaining a post-secondary diploma. He has also been continually and successfully employed since 2016. The letters of support show that Mr. Thomas is a hard-working and valued employee who has played a central and important role in his workplace and with his co-workers.
139Mr. Thomas has the strong support of his partner, his employer, his friends and others in his community. The EPSR and the letters of support show that Mr. Thomas has pro-social values. He contributes to his community in meaningful ways, and he has been active in mentoring at-risk youth.
140Mr. Thomas is a devoted father who dedicates significant time and energy to the care, growth, and well-being of his children. He provides most of his household’s income. He also financially supports his mother in Sierra Leone. Caring and providing for family members is a mitigating factor that shows good character and can increase rehabilitative prospects. See Habib at para. 47.
141While Mr. Thomas’ decision to engage in therapy and to attend psychotherapy sessions to deal with the trauma that he has experienced is a positive development, I only give limited weight to this factor. This is because Mr. Thomas only started attending these sessions approximately one month before the sentencing hearing, and more than seven years after the offence.
142Remorse can offer meaningful mitigation when accompanied by an acceptance of responsibility for one’s crimes. See Morris at para. 157. It is also important to remember that remorse and regret are not the same thing. See R. v. Alexander, 2014 ONCA 22 at paras. 22-24. It is clear that Mr. Thomas regrets doing what he did because of the consequences of his actions and the impact they have had on his life and his family’s life. However, it is unclear to what extent Mr. Thomas feels true remorse, understands the seriousness of his crime, and accepts full responsibility for the offence. As stated above, I do not accept the explanation that was indirectly provided by Mr. Thomas regarding what he expected to be transporting. I also agree with the Crown that Mr. Thomas seems to minimize his involvement in his criminality, both with respect to the offence before the Court and the offences for which he was found guilty in 2014 and for which he appears to blame a youth he was supposed to supervise. Thus, the extent to which Mr. Thomas has insight into his actions and the harm caused by drug offences is uncertain. This affects the weight to be given to this factor. However, based on the information before the Court (including the letter from Dr. Hamel), I am satisfied that Mr. Thomas does have some remorse and some insight into his actions. I am also satisfied that Mr. Thomas’ overall attitude is conducive to a successful rehabilitation and does not stand in the way of such rehabilitation.
143Mr. Thomas has been on bail for a long time, i.e., approximately seven years. However, I find that this factor does not have a significant impact on the determination of an appropriate sentence in this case. Mr. Thomas’ bail conditions were not stringent, and they do not appear to have had an impact on his ability to carry on normal relationships, employment and activities. The evidence before the Court shows that Mr. Thomas continued working for his employer after his arrest, and he has been active with his children since their birth. There is no evidence before this Court regarding the concrete impact of Mr. Thomas’ specific bail conditions on him. Further, I accept the Crown’s submission that there was significant defence delay in this case, and that it was Mr. Thomas’ decision to be self-represented.
144Similarly, the breaches of Mr. Thomas’ rights under sections 10(a) and 10(b) of the Charter do not have a significant impact on the determination of an appropriate sentence in this case. In the Reasons for Judgment, I concluded that, in the unique circumstances of this case, the breach was minor and the impact on Mr. Thomas was minimal. I see no reason to revisit these findings.
145I also see no reason to revisit my finding that there was no state misconduct with respect to the medical records that were outside the scope of the production order that the Hospital erroneously provided to the police: see para. 121 of the Reasons for Judgment. Since there was no state misconduct, the principles set out in Nasogaluak do not apply to this issue: see Nasogaluak at paras. 53 and 55.
146The medical consequences suffered by Mr. Thomas as a result of the offence also do not have a significant impact on the determination of an appropriate sentence in this case. This is because the medical consequences suffered by Mr. Thomas were foreseeable consequences of the ingestion of 87 pellets of cocaine. See Suter at paras. 49-50. Further, there is no up-to-date evidence before the Court regarding Mr. Thomas’ health issues. The letter from Mr. Thomas’ doctor that was filed by the defence was written five years ago. Further, the information in the EPSR on this point is not reliable because the author of the EPSR states that Mr. Thomas’ narcolepsy is a side effect of the cocaine ingestion, but Mr. Thomas’ doctor states in his letter that Mr. Thomas was diagnosed with narcolepsy in March 2017, i.e., approximately two years before the offence.
147In contrast, family separation consequences are an important consideration in this case. The pain of being unable to care and provide for family members while incarcerated is a collateral consequence that increases the severity of incarceration and can jeopardize rehabilitation. See Habib at para. 47. In addition to providing financial support to his sons, his partner and his mother, Mr. Thomas plays a critical role in the lives and care of his sons, who have special needs. He also provides important and consistent therapeutic support. Mr. Thomas’ sons are at the centre of his life and had a transformative effect on him. Family separation in this case would have very serious consequences for Mr. Thomas, his partner and his sons, not only emotionally and financially, but also developmental consequences for his sons.
148In light of the information before me, Mr. Thomas appears to have very good rehabilitative potential. In my view, the risk of Mr. Thomas engaging in similar conduct in the future is practically nil. I also note that, based on my experience at trial with Mr. Thomas, who was self-represented at that time, Mr. Thomas is a smart man. He performed the difficult role of self-represented litigant very capably and with skill. I was very impressed by his work, his level of comprehension, and his demeanour. I am sure that he has learnt from his mistake and that he will not want to squander his skills and relationships in the future.
4. The appropriate sentence
149In my view, a conditional sentence is not appropriate in this case because a term of imprisonment of less than two years would be inappropriate and inconsistent with the principles of sentencing applicable in this case. Given the seriousness of the offence and the aggravating factors in this case, a term of imprisonment of less than two years would not sufficiently meet the overarching objectives of denunciation and deterrence.
150While the collateral consequences of family separation are significant in this case, I agree with the Crown that imposing a term of imprisonment of less than two years based on this consideration would be to place unreasonable emphasis on this one factor and allow it to overwhelm all other considerations. Although there is no victim before this Court and, as a result, the only concrete information available to this Court relates to Mr. Thomas and his family, it must be remembered that drug trafficking is not a victimless crime. It leaves countless faceless victims in its wake, and the families of these victims also experience serious consequences.
151I agree with the Crown that the cases relied upon by the defence in support of the position that a conditional sentence would be appropriate in this case can be distinguished. For example:
a. In R. v. Kelly, 2022 ONSC 5500 (“Kelly”), Ms. Kelly was found guilty of attempting to import into Canada one kilogram of cocaine and of attempting to possess the cocaine for the purpose of trafficking. The Court’s analysis focused on deciding a fit sentence for the attempting to import count as it was deemed to be the more serious charge. Ms. Kelly was a relatively young first offender and her role in the offence was found to be secondary and relatively minor. There was no evidence that she had any involvement in the importation of cocaine into Canada and her role was limited to picking up a package at the airport and delivering it to someone else. See Kelly at paras. 1, 4, 46, 47.
b. In R. v. Collins, 2023 ONSC 5768 (“Collins”), the accused was a gram level or street level trafficker and the total amount of cocaine that was seized was less than 70 grams. See Collins at paras. 11, 13 and 67. Further, Mr. Collins pleaded guilty, which had a substantial mitigating effect. See Collins para. 68.
c. In R. v. Freeman, 2025 ONSC 2875 (“Freeman”), the accused pleaded guilty and there was a joint submission as to the appropriate sentence. The total amount of cocaine that was seized and attributed to Mr. Freeman was less than 50 grams. See Freeman at paras. 19-20, 52.
152While it is my view that a term of imprisonment of less than two years would be inappropriate in this case, it is also my view that a term of imprisonment below the sentencing range of five to eight years that has been identified for the offence of possession for the purpose of trafficking in cases involving slightly more than a pound of cocaine is justified in this case.
153First, when considered together, the mitigating factors in this case are highly mitigating and the collateral consequences are very significant. Among other things:
a. Mr. Thomas has encountered extraordinary challenges when growing up.
b. Despite all these challenges, Mr. Thomas has led a pro-social life and been continually and successfully employed since 2016. The letters written by Mr. Thomas’ employer and co-workers are glowing and show their full support of, and confidence in, Mr. Thomas.
c. In addition, Mr. Thomas has the strong support of his partner, his friends, and members of his community.
d. Mr. Thomas contributes to his community in meaningful ways, and he has been active in mentoring at-risk youth.
e. Mr. Thomas became a father after the offence. Fatherhood has had a transformative effect on him. Mr. Thomas is a devoted father who dedicates significant time and energy to the care, growth, and well-being of his two sons, who both present with neurodevelopmental differences consistent with ASD.
f. Mr. Thomas provides most of his household’s income. He also financially supports his mother in Sierra Leone.
g. A term of imprisonment will have a more significant impact on Mr. Thomas because of his family circumstances. I am satisfied that the pain of being unable to care and provide for family members while incarcerated will significantly increase the severity of incarceration for Mr. Thomas. Further, his incarceration will have serious emotional and financial consequences for his partner and his two young sons. In addition, as set out in Ms. Stevens’ letter, Mr. Thomas’ separation from his sons will likely have important developmental impacts for his sons and could be life-altering in the long run. As stated in Habib (at para. 44), sentencing judges must preserve the family as much as possible and, if incarceration is necessary, must give serious and careful consideration to family separation consequences in determining the length of the prison term.
h. Mr. Thomas regrets his conduct and has some insight into his actions. He recently started engaging in therapy and attending psychotherapy sessions to deal with the trauma that he has experienced and how it may have served to influence his later behaviour and general understanding of the world.
i. The risk of Mr. Thomas engaging in similar conduct in the future is practically nil.
154Second, I find that, as submittted by the defence, the sentencing range applicable to importation cases is a relevant consideration in this case. Based on the information available at this stage of the proceeding, the crux of Mr. Thomas’ illegal conduct was the importation of cocaine from St. Lucia to Canada. Aside from this one transaction, there is no evidence or indicia that Mr. Thomas was at any time involved in the distribution or sale of cocaine. This is an important distinguishing feature from the usual cases of possession of cocaine for the purpose of trafficking involving the more typical drug dealers.
155In R. v. Hamilton, 2004 5549 at para. 108 (Ont. C.A.), the Court of Appeal stated that the sentencing range for the importation of more or less one kilogram of cocaine was three to five years for a first offender. The Court of Appeal further stated that the bottom end of the appropriate range of sentences was at or near two years where the amount of cocaine imported fell below one kilogram. This range is still being applied in the case law: see, e.g., R. v. Foster, 2018 ONCA 53 at para. 118 and R. v. Osei-Tutu, 2024 ONSC 1369 at para. 59. However, I note that there appears to be an upward trend in sentencing with respect to offences involving hard drugs given society’s increased awareness of the true gravity of trafficking in such drugs and the great harms that they cause in communities across Canada. See Parranto at paras. 86-92.
156I am unclear as to the reasons for the significant difference between the bottom end of the sentencing ranges for first offenders for, on the one hand, importing (two to five years for less than a kilogram of cocaine), and, on the other hand, possession for the purpose of trafficking (five to eight years for slightly more than a pound of cocaine). The difference is particularly puzzling when one considers the fact that the definition of “traffic” in the CDSA is very broad and includes, among other things, the transport of a substance: see section 2 of the CDSA. When considering the sentencing range in this case, the fact that Mr. Thomas has been convicted of possession of cocaine for the purpose of trafficking must obviously be taken into account, as well as the fact that he is not a first offender. However, the factual circumstances of this case are relevant to this Court’s exercise of discretion, and they appear to be closer to the factual circumstances in importation/courier cases than to the factual circumstances in the typical cases of possession for the purpose of trafficking.
157In light of: (a) the unique circumstances of this case, (b) the mitigating factors, aggravating factors and collateral consequences discussed above, (c) the similarities between the facts of this case and the facts of importing cases, and (d) the various objectives and principles of sentencing discussed above, I conclude that a sentence of three years’ imprisonment is a fit sentence that is proportionate to the gravity of the offence and the degree of responsibility of Mr. Thomas.
158While the collateral consequences of family separation have played an important role in my decision to depart from the sentencing range applicable to cases of possession for the purpose of trafficking, I have been mindful that this factor could not overwhelm all other considerations and that the sentence imposed had to remain proportionate to the gravity of the offence and the responsibility of Mr. Thomas. In my view, a number of other important mitigating factors militated in favour of a departure from the sentencing range applicable to cases of possession for the purpose of trafficking, especially when considered together with the similarities between this case and the importation cases and the lower sentencing range applicable to the latter. Ultimately, I am satisfied that a sentence of three years of incarceration in the penitentiary is a fair, fit and principled sanction that reflects the gravity of the offence, Mr. Thomas’ degree of responsibility and the unique circumstances of this case.
IV. DISPOSITION
159For the reasons set out above, Mr. Thomas is sentenced to a period of imprisonment of three years. In addition, I make the following ancillary orders:
a. Pursuant to subsection 487.051(3) of the Criminal Code, I make an order in Form 5.04 authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis from Mr. Thomas. I am satisfied that it is in the best interests of the administration of justice to make this order in light of Mr. Thomas’ criminal record, the serious nature of the offence, the circumstances surrounding the commission of the offence and the fact that the defence does not object to this order.
b. Pursuant to section 109 of the Criminal Code, I make an order prohibiting Mr. Thomas from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, firearm part, ammunition, prohibited ammunition and explosive substance for life.
c. Pursuant to subsections 737(1) and 737(2)(b)(ii) of the Criminal Code, I order Mr. Thomas to pay a victim surcharge in the amount of $200.00 within 12 months after his release.
Vermette J.
Released: June 3, 2026
Footnotes
- On August 18, 2025, I received a letter from the Sentencing and Parole Project (“SPP”) advising me that Mr. Thomas had completed an intake with the SPP for an EPSR. The letter stated that Mr. Thomas had been placed on the waitlist, and that it was expected that his EPSR would be assigned to an assessor in early to mid-October 2025, with a target completion date of early January 2026. Unfortunately, the EPSR was only completed in early March 2026, i.e., two months later than the target completion date that had been communicated to the Court.
- I note that there is contradictory information on this point in the EPSR and the PSR. While the EPSR states that both of Mr. Thomas’ son were formally diagnosed with autism when they were 4 years old, the PSR states that one of Mr. Thomas’ son has been diagnosed with attention deficit hyperactivity disorder and autism spectrum disorder, while his other son has a diagnosis of social and general anxiety disorders and was set to undergo testing to confirm his diagnosis of autism.
- One pound equals 0.434 kilogram.