CITATION: R. v. Musclow, 2026 ONSC 3767

COURT FILE NO.: CR-18-90000450-0000

DATE: 20260626

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

CHRISTOPHER MUSCLOW

Iatasha Bachelor, for the Crown

Liam Thompson, for Christopher Musclow

HEARD: March 27 and May 4, 2026

PINTO J.

sentencing decision

Introduction

1On January 26, 2026, I convicted Christoper Musclow of possession of just over two kilograms of fentanyl for the purpose of trafficking (“P4P fentanyl”) contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, (“CDSA”). My reasons for conviction can be found at R. v. Musclow, 2026 ONSC 221.

2The Crown seeks a sentence of 20 years before the application of credits, a delay in Mr. Musclow’s eligibility for parole under s. 743.6(1) of the Criminal Code, R.S.C., 1985, c. C-46, until he has served half of his sentence, and various ancillary orders.

3The Defence seeks a custodial sentence of 12 years, opposes the Crown’s request for delayed parole eligibility, and does not oppose any of the ancillary orders sought.

4For the reasons that follow, I sentence Mr. Musclow to 16 years in custody before the application of credits equivalent to 1,915 days. Mr. Musclow must serve a remaining sentence of approximately 10 years and 9 months. A delay in Mr. Musclow’s parole eligibility is not warranted. Certain ancillary orders shall issue.

Circumstances of the Offence

5After serving a sentence for robberies committed between December 2011 and January 2012, Mr. Musclow was released on parole on June 27, 2017. He moved into Unit #810 at 419 Markham Road in Toronto with Debra Kerr, his girlfriend at the time. Ms. Kerr had developed a romantic relationship with Mr. Musclow while he was in prison and had rented the apartment in expectation of Mr. Musclow’s release.

6On July 6, 2017, Ms. Kerr left for work in the morning, and Mr. Musclow was in the apartment. At around 1 p.m., Amanda Ferderbar, an acquaintance from Mr. Musclow’s past, came over to the apartment. Ms. Ferderbar came over because her boyfriend had beaten her up and she needed to go somewhere safe. Mr. Musclow testified that when Ms. Ferderbar arrived by taxi, she looked like she had been assaulted. Based on the evidence at trial, I found that Mr. Musclow had brought fentanyl into the apartment in the brief time that he was out of custody. On all parties’ versions of events, while Mr. Musclow and Ms. Ferderbar were seated in the living room, Mr. Musclow took a bump of fentanyl and passed out. After he regained consciousness, Ms. Ferderbar ingested a quantity of fentanyl and passed out, collapsing to the floor.

7At 2:06 p.m., Mr. Musclow called 911 and advised that a female had overdosed and needed Narcan. On the 911 call, he directed dispatchers to the lobby of the apartment building. Mr. Musclow dragged Ms. Ferderbar to an elevator and down to the lobby. Paramedics and uniformed police officers attended and found Mr. Musclow present with an unknown female who was lying unconscious in the lobby. Mr. Musclow confirmed that he was the 911 caller and that he was visiting his girlfriend in Unit #812. Paramedics administered medication to Ms. Ferderbar and took her to the hospital. She ultimately recovered from a fentanyl drug overdose.

8Two officers attended on the eighth floor. On their way to Unit #812 they noticed that the door to Unit #810 was ajar. An officer knocked on the door of Unit #812 and was greeted by a South Asian male and his family. The officers quickly determined that Unit #812 was not connected to the events in the lobby and proceeded to enter Unit #810 looking for potential other victims of the drug overdose. The officers learned over the police radio that an officer in the lobby was in foot pursuit of Mr. Musclow, who was later apprehended and placed under arrest. Among other items, the officers who entered Unit #810 found a paper bag in the middle of a bedroom that contained a white powdery substance. A subsequent warranted search of Unit #810 led to the discovery of 2,029.56 grams of fentanyl. The fentanyl possessed by Mr. Musclow was valued between $406,000 to $486,960 at the gram level, or $181,250 to $290,000 at the ounce level. Mr. Musclow was charged and ultimately convicted of the P4P fentanyl offence.

Circumstances of the Offender

9No pre-sentence report was requested.

10Mr. Musclow was born in Ottawa on April 27, 1984. He was 33 at the time of the P4P fentanyl offence in July 2017 and 42 at the time of sentencing. His mother was Canadian, and his father Venezuelan. His parents separated when he was six. When he was 11, his father was deported to Venezuela, and his mother remarried and then moved to North Carolina. Between the ages of 11 and 16, he moved between his father’s and mother’s homes in Venezuela and the United States, before eventually going back to live with his mother when he was 16.

11At age 16, he was involved in an ATV accident when he fell off the ATV while not wearing a helmet. He was left in a coma for three weeks. He suffered a traumatic brain injury as a result of this accident. No medical evidence concerning the impact of this injury was presented during sentencing submissions.

12Mr. Musclow moved back to Canada at 17 and settled in Toronto. He was briefly enrolled at George Brown College but dropped out. He became addicted to cocaine. At trial, he testified that, at one point, he had an opioid addiction. He testified that he had been clean for almost a year at the time of the 2017 offence, despite struggling with a lifelong addiction and coming off a methadone addiction a few months earlier.

Mr. Musclow’s Criminal Record

13Mr. Musclow has a significant criminal record. In 2003, he was convicted of trafficking in a Schedule II substance contrary to s. 5(1) of the CDSA, and for failure to attend court. He received a $100 fine and credit for four days of pre-sentence custody. In October 2004, he was convicted of several offences, including three counts of robbery and one count of forcible confinement. He received a sentence of two years less a day for each charge to be served concurrently, and probation for three years. In March 2006, he was convicted of failure to comply with his probation order. He received a one-day sentence and credit for 16 days of pre-sentence custody. In August 2006, he was convicted of robbery, possession of a Schedule I substance, and failure to comply. He received a 36-month concurrent sentence and a weapons prohibition order for life. In June 2007, he was convicted on two counts of possession of a scheduled substance. He received a 21-day concurrent sentence on the charges, but consecutive to the sentence he was serving at the time. He received a statutory release on September 5, 2008. On February 19, 2009, he was recommitted to custody for violation of the terms of his statutory release.

14In June 2009, he was convicted of assault and received a 90-day sentence consecutive to the sentence he was already serving. In September 2009, he was convicted of carrying a concealed weapon. He received a 45-day sentence consecutive to the sentence he was already serving. In May 2012, he was convicted of dangerous operation of a motor vehicle and failing to remain at the scene of an accident. He received a one-day sentence and 70 days credit for pre-sentence custody.

15In August 2013, he was convicted of multiple robberies in Ontario and using an imitation firearm. He received a global eight-year jail sentence prior to the application of credits: R. v. Musclow, 2013 ONCJ 447, at para. 94.

16Mr. Musclow’s statutory release date was June 27, 2017.

17On the same day as his statutory release, Mr. Musclow was convicted of robbery-related charges in Quebec. He received a sentence of three months and a day after receiving a credit of thirty-eight months and six days of pre-sentence custody. He also received a probation of three years.

18Mr. Musclow has post-2017 convictions that I have not considered for the purpose of this sentencing, as doing so would offend “Lord Coke’s principle”, which holds that subsequent convictions cannot be relied upon to aggravate the sentence imposed for a prior offence: see the comments of Paciocco J.A. in R. v. Wilson, 2020 ONCA 3, 384 C.C.C. (3d) 355, at paras. 60-61.

Victim Impact Statement

19Ms. Ferderbar submitted a victim impact statement in which she claimed that, since her overdose incident in July 2017, she has been diagnosed with hypoxic brain damage, PTSD, and constant nightmares. She needs intensive therapy and daily medication. She has depression and thoughts of suicide. Her anxiety has caused her to have constant panic attacks for which she takes medication. She wanted the court to understand that the harm caused by Mr. Musclow’s conduct continued after her overdose incident.

Sentencing Position of the Crown

20The Crown seeks a global sentence of 20 years for the P4P fentanyl offence, less any credits for pre-sentence custody.

21The Crown characterizes Mr. Musclow as a high mid-level drug dealer who was motivated solely by financial and commercial gain. He was not an addict at the time of his offence.

22The primary aggravating factors are the large quantity of fentanyl, just over two kilograms, possessed for the purpose of trafficking, and the fact that a known victim, Ms. Ferderbar, overdosed and nearly died after receiving fentanyl from Mr. Musclow.

23Ms. Ferderbar provided a Victim Impact Statement in which she claims to suffer long-term physical, emotional, and psychological trauma from the overdose and near-death experience.

24Mr. Musclow has an extensive criminal record that includes crimes of violence and drug offences.

25Mr. Musclow was a parolee at the time of the P4P offence, which was just nine days after his statutory release on June 27, 2017. He has a previous breach of parole on February 19, 2009.

26The Crown submits that there are no mitigating factors. While it is true that Mr. Musclow likely saved Ms. Ferderbar’s life by calling 911, he was the one who provided her with fentanyl in the first place.

27The Crown submits that fentanyl is among the deadliest of controlled substances. Our courts have repeatedly highlighted the notorious dangers of trafficking and its insidious impact on communities and society at large: R. v. Campbell, 2022 ONCA 666, 163 O.R. (3d) 355, at para. 83, aff’d 2024 SCC 42 at para. 132. In R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, the Supreme Court of Canada upheld a 14-year sentence for an offender who possessed 485.12 grams of fentanyl on one occasion, and 27.8 grams on a previous occasion. Here, Mr. Musclow possessed a much greater amount of fentanyl, and his sentence should be commensurate with the greater amount.

28The Crown also relies on R. v. Wisdom, 2024 ONSC 4047, where the offender received a global 18-year sentence for drug and firearm violations; and R. v. Martin, 2025 ONCJ 306, where the offender was found in possession of 1,526.9 grams of fentanyl, 442.1 grams of methamphetamine, and multiple firearms and prohibited devices. Mr. Martin was sentenced to 13 years for the P4P fentanyl offence, and 6 years concurrent for P4P methamphetamine.

29The Crown seeks an order that Mr. Musclow’s eligibility for parole be delayed under s. 743.6(1) of the Criminal Code until he has served half of his sentence.

30The Crown also seeks a mandatory prohibition for life on Mr. Musclow owning a firearm, under s. 109(1)(c) of the Criminal Code.

31Finally, the Crown seeks the imposition of a DNA order as a secondary designated offence pursuant to s. 487.04 of the Criminal Code, and a forfeiture order in respect of the digital scale found in the apartment.

Sentencing Position of the Defence

32The Defence acknowledges that Mr. Musclow has an unenviable criminal record dating back to 2003. However, the Defence argues that Mr. Musclow’s only actual drug trafficking conviction prior to July 2017 was in 2003 for trafficking in a Schedule II substance. All other drug convictions prior to 2017 involved simple possession.

33The Defence notes that Mr. Musclow’s offending followed his ATV accident in which he suffered a traumatic brain injury. While Mr. Musclow cannot be sentenced as an addict trafficker, he struggled with substance abuse for many years, which should be considered a mitigating factor.

34Finally, Mr. Musclow’s action in saving Ms. Ferderbar’s life is a significant mitigating factor. Once Mr. Musclow realized that Ms. Ferderbar was overdosing, he called 911.

35The Defence submits that the appropriate range of sentence is 12 to 15 years. The Defence cites R. v. Fuller, 2019 ONCJ 643, where an offender who possessed three kilograms of fentanyl pleaded guilty part way through a preliminary inquiry. He was sentenced to 15 years in custody before the application of credits. In R. v. Dalia, 2023 ONSC 2114, aff’d 2025 ONCA 772, 180 O.R. (3d) 161, an offender was sentenced to 13 years after being convicted of possessing 1.7 kilograms of fentanyl and 614 grams of cocaine, along with a BB gun. The Defence also cites R. v. Abdelgadir, 2023 ONCJ 446, where the offender was sentenced to 13 years after being found in possession of over 2 kilograms of fentanyl. The Defence submits that Mr. Musclow’s circumstances are somewhat more mitigating, hence he should receive a sentence of 12 years, prior to the application of credits.

36The Defence opposes the Crown’s request that Mr. Musclow’s eligibility for parole be delayed but does not object to any of the ancillary orders sought by the Crown.

Discussion

Caselaw on Large Quantity Possession of Fentanyl for the Purpose of Trafficking

37In Fuller, the 35-year-old offender was found to be the principal actor in a trafficking operation “at a high level”. He was found with 3 kilograms of fentanyl, 0.5 kilograms of methamphetamine, and 5.8 grams of cocaine. He had two prior related drug convictions and was clearly aware of the lethality of his conduct. He was sentenced to 15 years’ imprisonment.

38In R. v. Olvedi, 2021 ONCA 518, 157 O.R. (3d) 583, leave to appeal refused, [2021] S.C.C.A. No. 340, the Ontario Court of Appeal upheld the trial judge’s sentencing of a 33-year-old first-time offender to a term of 12 years for possession of 499.5 grams of 100% fentanyl citrate worth $19 million. The sentence for possession was to run concurrently with a 15-year sentence for importation. The trial judge found the offender genuinely remorseful with excellent rehabilitative potential.

39In R. v. Hoang, 2024 ONCA 361, 172 O.R. (3d) 97, leave to appeal refused, [2024] S.C.C.A. No. 221, the Court of Appeal reduced an 18-year sentence to 15 years for a 38-year-old first-time offender who was found guilty of possession of 2.2 kilograms of heroin and fentanyl mix, 5.1 kilograms of heroin, 994 grams of heroin, carfentanil, and fentanyl mix, 494 grams of carfentanil, and 7.5 kilograms of cocaine / crack cocaine. The drugs were located in the offender’s car along with a semi-automatic shotgun and loaded magazine. The appeal court found that, in imposing the 18-year sentence for a first-time offender, the trial judge failed to apply the principle of restraint.

40In Hoang, at para. 83, the appeal court cited with approval the following passage from Parranto, at para. 101, per Moldaver J. (concurring), which the appeal court described as the leading case on sentences involving trafficking fentanyl:

Fentanyl trafficking, and largescale trafficking in particular, are a source of unspeakable harm. Accordingly, while the range of sentences currently imposed for the directing minds of largescale fentanyl operations straddles the upper single digits and lower double digits, sentencing judges should feel justified, where circumstances warrant, in applying a higher range, consisting of mid-level double digit sentences and, in particularly aggravating circumstances, potential sentences of life imprisonment. [Emphasis added.]

41The offender in Parranto received a 14-year sentence from the Alberta Court of Appeal, which sentence was upheld on appeal by the Supreme Court of Canada. Mr. Parranto had pled guilty, had just over 500 grams of fentanyl, a gun, and a lengthy criminal record. He was of Indigenous background and, therefore, the Gladue factors applied.

42In Dalia, Goodman J. sentenced the offender to 13 years in circumstances where he was found guilty of possessing 1.7 kilograms of fentanyl for the purpose of trafficking contrary to the CDSA. The street value of the drugs was $510,657 based on a sale price of $30.00 per point (0.1 gram), or $174,121 if sold for $2,900 per ounce.

43In Dalia, at paras. 18-19, Goodman J. referenced and summarized the decision in R. v. Janisse, 2022 ONSC 4526:

[Janisse] was a decision released after Parranto. The offender had two kilograms of fentanyl in his possession and was found guilty of multiple counts of possession of cocaine, fentanyl, and crystal methamphetamine for the purpose of trafficking. He was sentenced to 16 years in prison for the fentanyl-related count.

Janisse involved a significant quantity of drugs (a total of 21 kilograms of cocaine and two kilograms of fentanyl, with an estimated street value of over one million dollars) and large sums of money (nearly $100,000 was seized). In addition to the “immeasurable harm” and “despair” the drugs are known to cause, the circumstances in Janisse were aggravated by the finding that it was a commercial enterprise: at para. 36. Further, the judge concluded that any prior convictions did not appear to have a deterrent effect.

44In Abdelgadir, the offender pleaded guilty before Camara J. and received a sentence of 13 years for possession of approximately two kilograms of fentanyl for the purpose of trafficking. The offender was 28 years old with a recent and related criminal record, including a previous federal sentence. He was on parole from that sentence when the offence for which he was being sentenced was committed.

45R. v. Taillefer, 2026 ONSC 2019, and R. v. Pasha, 2025 ONSC 3481, were companion sentencing decisions in which Mr. Taillefer rented a two-bedroom apartment in London, Ontario and sublet his second bedroom to Mr. Pasha. Police were investigating Mr. Pasha for drug trafficking and executed a search warrant at the apartment in January 2023. Inside the apartment, police found drugs in the living room, office area, dining room, Mr. Taillefer’s bedroom, and the second bedroom rented to Mr. Pasha. The second bedroom functioned as a stash and production room. It had no bed, but contained vast quantities of illegal drugs, drug production / packaging materials, and equipment. In the apartment, police found 15.038 kilograms of fentanyl, 3.432 kilograms of cocaine, 1.373 kilograms of MDMA, 2 grams of MDA, 16 grams of Eutylone, 37 grams of psilocybin, and thousands of other opioids in pill form. They also found drug packaging material, a drug press, blenders, plastic wrap, scales, and cutting agents. The street value of all of the drugs if sold at the “gram” level was estimated at $3.2 million.

46In Taillefer, Moore J. accepted a joint submission of 15 years sentence prior to the application of credits for the first-time offender who was 31 years old at the time of sentencing. While he did not plead guilty, he proceeded by way of a significantly shortened and tightly focused trial, which the sentencing judge considered a mitigating factor. Mr. Taillefer’s parents divorced when he was 12, but he grew up in a close and supportive home. He had no mental health diagnosis but struggled with grief and anxiety following the death of a roommate. But for the mitigating factors and joint proposal on sentence, the Crown would have sought a sentence of 18 to 20 years.

47In Pasha, Carnegie J. accepted a joint submission of 17 years sentence, prior to the application of credits, for the offender who had a related but not extensive criminal history. In July 2021, he was convicted of possession of a Schedule I substance and sentenced to 12 months’ probation. He was convicted in 2024 of resisting arrest, where he served 15 days of pre-sentence custody. The offender, who pleaded guilty, was 23 years old at the time of his offences and 25 at the time of sentencing.

Aggravating and Mitigating Factors

48In sentencing Mr. Musclow, I view the following factors as aggravating:

a) Mr. Musclow possessed a large quantity of fentanyl, 2.029 kilograms, for the purpose of trafficking.

b) Fentanyl is a deadly, highly addictive drug that is causing devastation to communities and that “has altered the landscape of the substance abuse crisis in Canada, revealing itself as public enemy number one”: Parranto, at para. 93, per Moldaver, J. (concurring).

c) Mr. Musclow was motivated purely by greed and money.

d) He provided the fentanyl that caused the almost fatal overdose of Ms. Ferderbar. The overdose has caused long-term physical, emotional, and psychological harm to Ms. Ferderbar.

e) He re-offended in July 2017, at a time when he had been released on parole only nine days earlier. He has a previous parole violation from June 2009.

f) He has a long and significant criminal record dating from 2003, including prior CDSA convictions (July 2003, August 2006, and June 2007), violent offences such as robbery (August 2006 and August 2013), and the use of an imitation firearm during an indictable offence, as well as administration of justice offences.

49While there are some mitigating circumstances in Mr. Musclow’s favour, they are limited.

50Mr. Musclow’s parents separated when he was a child. His father was deported to Venezuela and his mother moved to North Carolina. Much of his childhood was spent bouncing between those locations.

51For certain periods of his adult life Mr. Musclow was addicted to drugs, including cocaine and opioids. Mr. Musclow did not argue that he should be sentenced as an addict trafficker.

52I accept that Mr. Musclow’s ATV accident at the age of 16 was serious. He was placed in an induced coma for three weeks. However, in circumstances where no medical report was provided to me, I cannot simply accept the proposition that this accident and the traumatic brain injury that he experienced were a contributing factor to his subsequent criminal conduct. In fact, I note that the sentencing judge in 2013 concluded, on the basis of expert evidence, the “residual brain damage” that had been evident in testing Mr. Musclow in 2005, was no longer present as of June 2013: R. v. Musclow, 2013 ONCJ 447, at paras. 45-48, and 85.

53I accept that Mr. Musclow likely saved Ms. Ferderbar’s life by making the 911 call that brought emergency personnel to the apartment building. This was better than the alternative of leaving her to overdose and likely die. However, in the circumstances, where Mr. Musclow supplied the fentanyl to Ms. Ferderbar, and his actions appeared to stem in part from distancing himself from whatever happened to Ms. Ferderbar, I find his conduct of limited mitigating value.

Analysis

54I am guided by the principles of sentencing that are set out in ss. 718, 718.1, and 718.2 of the Criminal Code. The sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender. An appropriate sentence is one that reflects a realistic appraisal of the offender’s prospects for rehabilitation, his individual and family circumstances, and the principle of restraint.

55The fundamental purpose of sentencing in drug cases is set out in the CDSA. Section 10(1) provides that the fundamental purpose of sentencing in drug cases is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society while encouraging rehabilitation and treatment of offenders in appropriate circumstances, and acknowledging the harm done to victims and the community.

56Given the many factors, I find 16 years to be a fit sentence for Mr. Musclow for the P4P fentanyl offence. There are many aggravating factors and only a few mitigating factors. Appellate jurisprudence confirms the importance of heavy sentences that focus on general and specific deterrence and that denounce the pernicious conduct of fentanyl trafficking that is devastating lives and communities.

57Focusing on the quantity of fentanyl that Mr. Musclow possessed, a little over 2 kilograms, appellate courts have issued sentences in the 15-year range for this large amount of fentanyl. In Parranto, the Supreme Court affirmed a 14-year sentence for a long-time offender who pleaded guilty to possession of just over 500 grams of fentanyl, a far smaller amount than what Mr. Musclow possessed. Moreover, Mr. Parranto, unlike Mr. Musclow, pled guilty. In Hoang, the Court of Appeal reduced an 18-year sentence to a 15-year sentence for a first-time offender found in possession of 3 kilograms of fentanyl. While the amount of fentanyl was greater, the Court of Appeal’s reduction in sentence was due to the trial judge’s failure to consider the principle of restraint in respect of the 38-year-old first-time offender with family support and family obligations and who the court found was of previous good character. Notwithstanding the lower amount of fentanyl, Mr. Musclow should receive a greater sentence than the offender in Hoang because of Mr. Musclow’s significant criminal record, his parolee status at the time of offending, and the devastating immediate and long-term impact on Ms. Ferderbar.

58I find that a 16-year sentence is also warranted in respect of comparable decisions of the Superior Court.

59The 34-year-old offender in Janisse possessed a significant quantity of drugs for the purpose of trafficking, including 21 kilograms of cocaine and 2 kilograms of fentanyl with an estimated street value of over one million dollars. Police seized nearly $100,000 from hidden compartments in Mr. Janisse’s car and household furniture. He received a global sentence of 16 years for the index fentanyl offence. Whereas the scope of Mr. Musclow’s drug trafficking in 2017 does not appear to be on the scale of Mr. Janisse’s illegal commercial activity, Mr. Janisse had a dated criminal record from 2009 and was trafficking in drugs to support a $6,000-a-month opioid addiction. Moreover, Mr. Janisse did not commit his offences as a recent parolee and there was no readily identified victim such as Ms. Ferderbar.

60In Abdelgadir, where the offender received a 13-year sentence, the facts are very much on point with Mr. Musclow’s case, with one important difference being that Mr. Abdelgadir pled guilty. Mr. Abdelgadir was 28 at the time of his offence, Mr. Musclow was 33. Mr. Abdelgadir possessed 2.039 kilograms of fentanyl compared to Mr. Musclow’s 2.029 kilograms. Notably, both were federal parolees at the time of their trafficking who were motivated purely by greed and money. Mr. Abdelgadir had a recent and related criminal record which included entries from 2017 for possession of a schedule I substance, 2019 for possession for the purpose of trafficking, and an entry from 2019 for possession for the purpose of trafficking for which he received a federal sentence. Still, his criminal record was not as lengthy as Mr. Musclow’s and did not involve crimes of robbery and violence. Camara J., the sentencing judge, took into account the social context of Mr. Abdelgadir being a young Black man who had faced systemic racism. Mr. Abdelgadir had also suffered abuse at the hands of his father. I find, given the more serious aggravating factors and fewer mitigating factors in Mr. Musclow’s case, that he should receive a greater sentence than Mr. Abdelgadir.

61Similarly, the 13-year sentence in Dalia, in which the offender was found in possession of 1.7 kilograms of fentanyl and did not challenge the Crown’s case, suggests that Mr. Musclow should receive a higher sentence given the higher amount of fentanyl.

62The Taillefer and Pasha sentencing decisions are instructive. Mr. Taillefer received a 15-year sentence while Mr. Pasha received a 17-year sentence, both arising from joint sentencing proposals. While the quantity of fentanyl seized from the apartment, 15 kilograms, was far greater than the 2 kilograms seized in Mr. Musclow’s case, a number of factors reduced what might have been even longer sentences in the 18 to 20 year range: a) the joint submissions; b) Mr. Taillefer’s focused trial and Mr. Pasha’s guilty plea; and c) the offenders’ young ages – Mr. Taillefer was 28 and Mr. Pasha was 23 at the time of their offences. Mr. Musclow was 33 at the time of his P4P fentanyl offence in 2017 and is 42 at the time of sentencing. He has a far longer and more significant criminal record, and he was a recent parolee at the time of his 2017 offence. A 16-year sentence for Mr. Musclow is not inconsistent with the sentences in Taillefer and Pasha.

63To put it succinctly, Mr. Musclow seems unrepentant about his criminal conduct. Within a mere nine days of his release from prison in June 2017, after serving a long sentence for a string of robberies, he stored a huge quantity of fentanyl in the apartment that he had just moved into with his then girlfriend. When a former acquaintance, Ms. Ferderbar, came over, seeking escape from her abusive boyfriend, Mr. Musclow supplied the fentanyl to her that almost killed her. He called 911 and dragged her down to the lobby. Fortunately, with medical intervention, Ms. Ferderbar survived, but with long-term physical and psychological damage.

64Mr. Musclow’s prospects for rehabilitation are poor. I considered it mitigating that his childhood was likely difficult due to his parent’s separation. I have also considered that, being incarcerated for so long and having substance abuse problems, he has had a difficult life where positive guidance and examples of pro-social conduct were probably lacking.

65Finally, in sentencing Mr. Musclow to prison for 16 years, I have not forgotten the principle of restraint. I believe it is the lowest sentence that will achieve the overall purpose of an appropriate and just sanction: R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), at para. 96.

Discussion of Credits

66After Mr. Musclow was arrested on July 6, 2017, he returned to a federal penitentiary to serve out the rest of his sentence from his 2013 robbery conviction. His warrant expired on May 5, 2019. He is only entitled to pre-sentence custody from that point onwards.

67Between May 5, 2019, and the present, Mr. Musclow has been incarcerated for various periods at the Toronto South Detention Centre and the Toronto East Detention Centre.

68Initially, during sentencing submissions, the parties agreed on the Summers credit to which Mr. Musclow was entitled but disagreed with his entitlement to a Duncan credit: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575; R. v. Duncan, 2016 ONCA 754. During submissions, the parties came to an agreement and provided a joint position on both types of credit. They jointly submitted that Mr. Musclow should receive a Summers credit of 1,565 days (representing 1,043 real days enhanced by a ratio of 1 to 1.5); and a Duncan credit of 350 days. Together, these pre-sentence credits represent a credit of 1,915 days, equivalent to roughly 5 years and 3 months. I accept the parties’ joint position on Mr. Musclow’s entitlement to pre-sentence credits, and he shall be credited accordingly.

Crown Request for Delayed Parole Eligibility

69The Crown seeks an order that Mr. Musclow’s eligibility for parole be delayed pursuant to s. 743.6(1) of the Criminal Code until he has served half of his sentence. The Crown submits that Mr. Musclow breached his parole shortly after release into the community and that neither denunciation nor deterrence has curtailed his conduct.

70The Defence submits that the within sentence is likely to be the longest that Mr. Musclow has ever received, and that his profile and the circumstances of his offence are not so rare and exceptional as to warrant delaying his parole eligibility.

71In R. v. Husbands, 2024 ONCA 155, 170 O.R. (3d) 486, leave to appeal refused, [2024] S.C.C.A. No. 268, the Court of Appeal, at paras. 99-101, provided the following guidance on when parole eligibility should be delayed following the Supreme Court of Canada’s decision in Zinck:

Although it is uncommon and only to be done sparingly, in some situations, sentencing judges will delay parole, pursuant to s. 743.6 of the Criminal Code. When this is done, it can constitute a significant component of the sentence imposed: R. v. Zinck, 2003 SCC 6, [2003] 1 S.C.R. 41, at para. 24.

When considering whether to exercise their discretion under s. 743.6, judges must first determine a fit sentence, taking all relevant factors into account. Only after that determination does the analysis shift to the potential to delay parole eligibility: Zinck, at para. 30. The same sentencing factors apply to the determination of delayed parole, with a particular emphasis on specific and general deterrence and denunciation: Zinck, at para. 30; Criminal Code, s. 743.6(2).

Accordingly, the procedure for determining a sentence involving an increase in parole ineligibility has been referred to as a “double weighing exercise”. The following passage from Zinck, at para. 33 neatly summarizes that exercise:

First, they must evaluate the facts of the case, in light of the factors set out in s. 718 of the Code, in order to impose an appropriate sentence. Then, they must review the same facts primarily in the perspective of the requirements of deterrence and denunciation, which are given priority at this stage, under s. 743.6(2). The decision to delay parole remains out of the ordinary, but may and should be taken if, after the proper weighing of all factors, it appears to be required in order to impose a form of punishment which is completely appropriate in the circumstances of the case. This decision may be made, for example, if, after due consideration of all the relevant facts, principles and factors at the first stage, it appears at the second stage that the length of the jail term would not satisfy the imperatives of denunciation and deterrence. This two-stage process, however, does not require a special and distinct hearing. It should be viewed as one sentencing process, where issues of procedural fairness will have to be carefully considered.

72I do not find that Mr. Musclow’s case is so rare and exceptional so as to warrant delaying his parole eligibility. First, I note that he has now violated his parole on two occasions, once in 2009, and then in 2017. These two parole violations occurred over a period of 14 years of criminal conduct since 2003. I find it premature to describe Mr. Musclow, as the Crown does, as a “habitual parole violator.” Second, while the amount of the fentanyl that Mr. Musclow possessed was significant and the aggravating factors far exceeded the mitigating ones, I agree with the Defence that the within sentence of 16 years will be the longest that Mr. Musclow has received. Previously, in 2013, he received a global sentence of eight years for a series of robberies. Third and most importantly, I find that the present sentence would satisfy the imperatives of denunciation and deterrence. As serious as Mr. Musclow’s P4P fentanyl offence is, it is not comparable to the type of offence that has sometimes warranted delayed parole ineligibility: see, for example, the repeat sexual assault, first degree murder, and robbery cases identified by Akhtar J. in R. v. Cheveldayoff, 2018 ONSC 6154, at paras. 72-76.

73The Crown’s request for delayed parole eligibility is dismissed.

Sentence

74In conclusion, on Count 1, Mr. Musclow is sentenced to 16 years in custody in respect of his conviction of P4P fentanyl, contrary to s. 5(2) of the CDSA.

75He shall receive a combined Summers and Duncan credit of 1,915 days which, when applied to his sentence, means that he must serve a remaining sentence of approximately 10 years and 9 months.

76I further order that Mr. Musclow be subject to the following ancillary orders:

(a) A DNA order under s. 487.051(4) of the Criminal Code as a secondary designated offence;

(b) A weapons prohibition order for life under s. 109 of the Criminal Code; and

(c) A forfeiture order.

Pinto J.