Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
A. DiSimoni, for the Public Prosecution Service of Canada
- and -
TRACEY LEE And LARRY MUSHING
A. Manek, on behalf of Ms. Lee
K. Edward, for Mr. Mushing
HEARD: June 12, 2026
REASONS FOR SENTENCE
1Just when one would think that fentanyl and carfentanyl are considered to be the most sinister, illicit drugs on the illegal market, with disastrous impact on users and the community at large, along comes a new, more lethal and insidious drug: Benzimidazole.
2On February 24, 2026, after a trial with a jury, Tracey Lee (“Lee”) and Larry Mushing (“Mushing)” were convicted of two offences; namely, possession of Benzimidazole for the purpose of trafficking, and Possession of Property Obtained by Crime, contrary to the provisions of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”) and the Criminal Code, R.S.C. 1985, c. C-.46 respectively.
3The offences occurred on December 12, 2023 in the City of Hamilton.
4Ms. DiSimoni for the Federal Prosecution Service seeks a jail sentence of 10 years for the Benzimidazole count, with a concurrent sentence for the Criminal Code offence, along with various ancillary orders. The Federal Crown submits that the large amount of Benzimidazole implicated in this case, which is two to three times more dangerous than fentanyl, warrants a substantial penitentiary sentence to reflect the principles of denunciation and deterrence.
5Mr. Manek, on behalf of Ms. Lee, originally requested a conditional sentence. In the alternative, he submits that a sentence in the low penitentiary range would suffice, given his client’s age and her many health-related issues. The defence submits that the range of sentence suggested by the Crown is excessive in the circumstances.
6Ms. Edward, on behalf of Mr. Mushing, submits that a sentence between four to five years is appropriate. Her client was not the owner of the residence, merely a visitor to the home, albeit on a frequent basis. While it may be suggested that he was wilfully blind to the fact of drugs in the residence, the evidence at trial suggest that he was not actively involved with the Benzimidazole, either by specific knowledge of the drug, or consuming or trafficking in it. He was merely in the residence at the time of the search.
7There is essentially no issue with respect to the ancillary orders requested by the Crown.
Circumstances of the offence:
8Briefly, the salient facts include
On Tuesday, December 12, 2023, at approximately 8:41am, Hamilton Police executed a search warrant at the residence of 144 Beach Road in Hamilton, Ontario (the “Residence”). Inside the residence, Hamilton Police located two individuals: Tracey Lee and Larry Mushing. Lee resided at the residence full time, while Mushing was a frequent visitor.
The following drugs were seized from the residence and were confirmed by Health Canada Certificates of Analysis: 1034 pills of Benzimidazole, (this equals 371.26g of Benzimidazole), four pills of Lorazepam; two pills of Oxycodone, 99 pills of 4-Fluoromethylphenidate, and 206 pills of Tadalafil or its salts, and a digital scale with Cocaine residue. Cash was seized from the residence in the amount of $3,299.05.
Circumstances of the offenders:
9Ms. Lee: A pre-sentence report was prepared. The subject was interviewed at the Hamilton East Probation and Parole office. Lee was noted as polite and provided information for the preparation of this report, including inter alia:
The subject reported that she was raised by her single father, who never remarried, and she did not have any stepmothers. She grew up in Burlington and later moved to Stoney Creek/Hamilton, where she resided with her maternal grandparents. She reported no history of sexual abuse during her upbringing but indicated that she may have experienced physical abuse by her father. On a positive note, she recalled spending time with her family at playgrounds during the summer and spending significant time with her grandparents. She reported moving out of her residence at approximately 16 or 17 years of age due to conflict with her father. She moved next door to live with family friends. She noted that her boyfriend at the time supported her, and they resided together with his parents.
She stated that she has been in an on-and-off relationship with one of the co-accused for over twenty years, whom she originally met through her children’s father. She described the relationship as “not that bad”. She indicated that during high school her grades were “not bad” and that she “never failed”.
The subject stated that her work experience includes employment with a company that printed balloons. She explained that her role involved printing on balloons and that she worked there for approximately eight months before leaving due to lack of childcare.
The subject reported that she first used alcohol at 16 years of age at a friend’s house. She indicated that she did not enjoy drinking and did not continue using alcohol. She noted that there is no family history of alcoholism. The subject reported that she has never used or experimented with illicit drugs and denied any issues related to substance use. Collateral sources indicated that the subject does not substances and has not experienced any related concerns.
With respect to the offence, the subject commented that it was “not a bright decision”. She noted that it was “dumb thing to do”. She noted that she will not be associating with negative influences and wants to move forward from all of this.
The subject reported several significant health issues and provided a list of her medical conditions including pulmonary arterial hypertension, chronic obstructive pulmonary disease (COPD), degenerative disc disease, degenerative neck disease, obstructive sleep apnea, and undifferentiated connective tissue disease (UCTD). She stated that she uses a Continuous Positive Airway Pressure (CPAP) machine to manage her obstructive sleep apnea.
The probation report writer offered an assessment. With respect to the current offence the subject reported it was “not a bright decision” and noted that it was a “dumb thing to do”.
The subject reported that she has been in an on-and-off relationship for over 20 years with the co-accused, who was previously a friend of her children’s father. She described the relationship as unhealthy and stated that they are no longer together as a result of the current offence before the court. She indicated that she has no interest in resuming the relationship in the future.
The subject stated that she has been receiving financial support through a disability allowance for the past 10 years due to physical health concerns.
10Lee also provided a letter from Doctor P. Dorasamy. He writes: “The patient has been under my care for the treatment of chronic obstructive pulmonary disorder, obstructive sleep apnea and idiopathic pulmonary arterial hypertension. She is presently on treatment with c-Pap at home for approximately 4-7 hours per night as well as the following medication: (1) Ventolin 6 hourly as necessary, (2) Flovent inhaler 1 puff twice a day, (3) Sildenafil (Revatio) 20mg orally three times a day, and (4) Macitentan 10mg orally once a day. These drugs mentioned above are all essential for her well-being and should be used on a regular basis as prescribed, as any discontinuation in her treatment may lead to severe medical consequences including hospitalization. Presently she is clinically stable and will be reviewed by me in 3 to 4 months.”
11Mr. Mushing: A pre-sentence report was prepared.: The offender was interviewed at the Hamilton Centre Probation Office. He was noted to be punctual, polite and cooperative with the interview process. The report author writes, inter alia:
The offender was raised by his parents. He explained he did not witness any domestic violence, however, indicated his father was an alcoholic and was verbally abusive. He stated his basic needs were met and noted no history of physical or sexual abuse. The offender report he has never married and has one child, a son, age thirty-three who lives in Edmonton with his girlfriend and their children.
The offender reported he was in a relationship with his son’s mother for approximately eight years, and she died from a drug overdose when their son was twelve years old. He indicated he went to Family Court and in 2001 when he his was eight years old, he was granted full custody of his son. He further reported his son was in his care of age eight until age sixteen. The offender reported he has been estranged from his son for the past six years. The offender reported he has his Ontario Secondary School Diploma. He denied any identified learning disabilities and was never placed in a special education class. He reported, he was suspended on three occasions for fighting. The offender reported he has been a recipient of Ontario Disability Support Program for the past seven years. His work history has consisted of employment as a welder fitter in Burlington, Ontario for sixteen years.
The offender indicated he started using illicit drug use, namely cocaine, twenty years ago. He described his cocaine use occurring daily. He stated over the past six years he has been using crack cocaine approximately twice per week. He reported never experimenting with any other illicit drugs or prescriptions. He does not feel his drug use is problematic and is not willing to attend counselling unless if it is court ordered whereby, he would be amenable.
The offender reported his companions and acquaintances consist of individuals who are involved in the criminal justice system. He explained his closest companion was his girlfriend of fifteen years and his co-accused.
The offender’s brother described the offender as “always be there for his friends” and helped raise his girlfriends’ sons. He indicated “you can always “rely on him” and is dependable”.
The offender has been diagnosed with Epilepsy and Depression. Dr. Khan, the offender’s family physician, reported the offender has been under his medical care since May 2022 when he took over the medical practice. He remains under the care of his family physician and is prescribed the following medications: Lamotrigine 100mg (seizures); Olanzapine 10mg (antipsychotic); Duloxetine 60mg (antidepressant) and Amitriptyline 25mg for sleep and antidepressant and is prescribed three tablets at bedtime.
In summary, the Probation report writer opines: The offender has a history of alcohol and illicit drug use. He has been struggling with crack cocaine consumption for the past six years; however, has been refraining from alcohol use for the past twenty years. The offender’s brother indicated he is unsure as to the extent of any illicit drug use as he has “never seen or heard of him” using any illicit drugs.
Presently, the offender appears to have a positive and supportive relationship with his biological brother, and this appears to be a protective strength. Information gathered from the purpose of this report indicates that the offender has a strong connection to the drug subculture, makes poor use of leisure time and appears to have pro-criminal values.
In relation to the offence, the probation report author opines that the offender accepts responsibility for his actions and is remorseful for his behaviour.
12In his comments to the Court, Mushing apologized for his actions, accepted a degree of responsibility for his involvement, but also firmly reiterated that he did not fully know the extent of the particular illicit drug located in the residence.
Legal Authorities:
13I have been provided with cases from both Crown and defence counsel on the issue of the appropriate sentence to be imposed. However, there is minimal jurisprudence in relation to this recent, emerging illicit drug.
14Although the law is clear that each case turns on its own specific facts, a careful review of these cases, to the extent I can find similarities to the case before me, does assist me in determining what an appropriate range is for the sentence to be imposed. As some of the cases relied upon by counsel are distinguishable on the facts or the circumstances of the particular offender, my intention is to briefly set out those cases that are somewhat similar to the issues in the case at bar.
15In reference to general principles under the CDSA, it is not controversial that the Supreme Court of Canada addressed the appropriate sentencing considerations for drug trafficking, albeit related to fentanyl, in the seminal case of R. v. Parranto, 2021 SCC 46, 411 C.C.C. (3d) 1.
16In Parranto, the court affirmed that proportionality is the organizing principle in sentencing, and parity and individualization, while important, are secondary principles which inform the proportionality assessment: at paras. 9-12. Thus, the majority held, “[a]ll sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: Parranto, at para. 10, citing R. v. Friesen, 2020 SCC 9, at para. 30.
17In arriving at sentence, judges are required to balance a multiplicity of factors having regard to the objectives and principles defined in Part XXIII of the Criminal Code. The exercise is discretionary and is “[m]ore of an art than a science”: Parranto, at para. 9.
18At para. 68, the majority in Parranto determined the national range of sentences for trafficking large quantities of fentanyl to be eight to 15 years of custody:
A more accurate range based on a review of reported case law nationally would be in the region of 8 to 15 years. For example, eight-year sentences were imposed in Smith (2019) (1834 pills, as part of an 11-year sentence), as well as R. v. Leach, 2019 BCCA 451 (11,727 pills, as part of a 16-year sentence); R. v. Sinclair, 2016 ONCA 683; R. v. Solano-Santana, 2018 ONSC 3345 (5000 pills); R. v. White, 2020 NSCA 33, 387 C.C.C. (3d) 106 (2086 pills); and R. v. Borris, 2017 NBQB 253 (4200 pills). Other sentences imposed include: an 8-year and two-month sentence in R. v. Sidhu, C.J. Ontario, No. 17-821, June 16, 2017, aff’d 2019 ONCA 880, in which the offender trafficked 89 g of fentanyl and other drugs soon after being released on parole; a 10-year sentence in R. v. Petrowski, 2020 MBCA 78, 393 C.C.C. (3d) 102, for trafficking 51 g [of] fentanyl where the offender used a co-accused to insulate himself from detection; 11 years for trafficking 204.5 g of a fentanyl blend in R. v. Vezina, 2017 ONCJ 775; 13 years for trafficking 232 g [of] fentanyl and large quantities of other drugs as part of a sophisticated drug trafficking operation in R. v. Mai, [2017] O.J. No. 7248 (Ont. S.C.J.); and 15 years for a profit-motivated offender who was the directing mind of a “large-scale drug trafficking operation involving an enormous amount of fentanyl” in R. v. Fuller, 2019 ONCJ 643 (the offender possessed about 3 kg of fentanyl in the course of the conspiracy).
9While this is not a fentanyl case, Moldaver J.’s authoritative concurring judgment in Parranto, is instructive. He recognized that fentanyl “has altered the landscape of the substance abuse crisis in Canada” such that the gravity of harm caused by fentanyl trafficking now far exceeds that of trafficking heroin and cocaine: at paras. 86-87, 93, 96. As such, sentencing for fentanyl trafficking should reflect this increased understanding, as Moldaver J. explained at para. 101:
Ultimately, largescale trafficking in fentanyl is a crime that preys disproportionally on the misery of others — the marginalized and those whose lives are marked by hopelessness and despair. It is a crime motivated by greed and by a callous disregard for the untold grief and suffering it leaves in its wake. Above all, it is a crime that kills — often and indiscriminately. It follows, in my view, that what matters most is that those individuals who choose to prey on the vulnerable and profit from the misery of the Canadian public for personal gain are sentenced in accordance with the severity of the harms they have caused. 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.
20R. v. England, 2024 ONCA 360, was a case where there was 95.5 grams of fentanyl, 909.1 grams of crystal meth, 151.3 grams of cocaine and firearm offences. The offender was sentenced to 10 years for the drugs and seven and a half years for the firearm offences. The 17.5 years was reduced to 15.5 years on the principle of totality. There was a further 21 months for custodial conditions.
21In R. v. Lynch, 2022 ONCA 109, the court heard an appeal of a case involving 965 grams of cocaine with 149 grams of MDMA. The offender had plead guilty and was a first time offender for trafficking. He had a very limited criminal record and was 29 years old at the time of offence. The Court of Appeal confirmed that the appropriate range for mid-level traffickers in fentanyl is six to eight years.
22In the case of R. v. Séguin 2023 ONCA 514, the offender was convicted of 466 grams of fentanyl along with a quantity of Methamphetamine. The Court of Appeal upheld a 12 year sentence.
23The impact of illicit and dangerous drugs in the Hamilton region was noted in R. v. Ribble, 2019 ONCJ 640, aff’d 2021 ONCA 897, a decision from the Ontario Court of Justice in this jurisdiction. At paras. 52-53, Agro J. stated:
More recently, fentanyl powder has flooded the illicit drug market and the number of fentanyl powder cases is rapidly increasing across the province and notably in this jurisdiction.
In Hamilton, I see fentanyl abuse regularly identified as underlying many of the offences committed in this jurisdiction; possession of fentanyl charges have increased in plea court and fentanyl users are the new norm in drug treatment court. Sadly, our detention centre is notorious for drug overdoses, including fentanyl.
24The offender in Ribble had 15.9 grams of fentanyl and was sentenced to nine years’ imprisonment, inclusive of a 1 year consecutive term for prohibition breaches.
25Cases including Ribble that have imposed sentences in the upper single digits tend to involve lesser amounts of fentanyl. The offender in R v. Sidhu, 2019 ONCA 880, who had a prior related record, trafficked 89 grams of fentanyl and was sentenced to eight years. In R v. Disher, 2020 ONCA 710, the case involved 42.6 grams of fentanyl and carfentanyl, with the offender having an extensive criminal record spanning 15 years including prior offences for trafficking. On appeal, the original 12 year sentence was reduced to eight years.
26In R. v. Fuller, 2019 ONCJ 643, Latimer J. (as he then was) discussed the “overwhelming” harm caused by fentanyl and the need for courts to bring denunciation and deterrence to the forefront in response: at paras. 30, 53. The offender in Fuller was the “directing mind” of a fentanyl, cocaine, and methamphetamine trafficking ring, and had three kilograms of fentanyl in his possession (one of which was returned to his supplier due to poor quality).
27Considering the general direction in R. v. Loor, 2017 ONCA 696 (that “offenders – even first offenders – who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences”), Latimer J. imposed a 15-year sentence for the fentanyl-related count. While the offender was remorseful and pleaded guilty at an early opportunity, the amount of fentanyl and other schedule narcotics was “enormous,” and he was a repeat drug offender who acted “solely for personal profit”: at paras. 51-52. The co-accused, on the other hand, received a 13-year sentence following a joint submission. The admitted facts in her case included her co-conspirator possessing three kilograms of poor quality fentanyl. Relative to her co-accused, her lesser sentence was reflective of her “subordinate role” in the trafficking ring and her extra early guilty plea which was entered before a preliminary inquiry was set.
Benzimidazole:
28As mentioned, there is very limited case law in regards to Benzimidazole. As will be referenced, there is only one previous reported case in Ontario from the Superior Court, In fact, the Federal Prosecutor and defence counsel had not experienced this type of drug in any criminal proceedings. Frankly, nor had I.
29In R. v. Singh, a 2023 case from the Ontario Court of Justice (unreported), Singh was charged with 246.1g Cocaine, 597.2g Benzimidazole, and spring-loaded knife. The aggravating factors were the nature and dangerousness of Benzimidazole. The mitigating factors were a guilty plea, a youthful offender, 23 years old, no criminal record, a strong support system, and employed. The offender was sentenced to eight years.
30The judge in Singh was unfamiliar with Benzimidazole and references were made to a DEA article and Government of Canada article. The judge held: “[t]he penalties need to be stiff. It is not straightforward, and that is because benzimidazole – we are not dealing with fentanyl here – kills” (p.7). “Even low-level participants are and must be subject to a serious penalty” (p.5).
31In Jacob & Moore, 2025 NBKB 83, both offenders were charged with s. 5(2) CDSA, including 4.25g Benzimidazole, 4764 pills of Fentanyl, 600 pills of Para-fluorofentanyl, and 4.5 kilos of meth. The aggravating factors for both were the nature and quantity of drugs, and criminal records. The mitigating factors for both were: addiction issues and Gladue factors. For both accused, the global sentence was 12 years, including 8 years for Benzimidazole, despite the low weight (only 4.25g). The court accepted the Crown’s submission regarding the dangerousness of Benzimidazole, noting expert testimony that it is typically two or three times more potent than Fentanyl and is resistant to Narcan, increasing the risk of overdose and death” at para. 75.
32In R. v. Mulrooney, 2023 NLSC 131, the offender was charged with 11 counts including Fentanyl (184 pills), Benzimidazole (402 pills), and Cocaine (63g). He plead guilty. The aggravating factors were the nature and volume of the substances; Benzimidazole was cited as aggravating factor. The offender has a prior conviction where he received a seven year sentence. The mitigating factors were a guilty plea and strong work history. The offender was sentenced to 10 years effective global sentence, with five years attributed to the Benzimidazole and Fentanyl (concurrent).
33As mentioned, in the only reported Superior Court decision from Ontario addressing Benzimidazole, namely, the case of R. v. Spiro-Rusha, 2025 ONSC 717, the offender was charged with s. 5(2), Fentanyl (21.37g), Benzimidazole (5.7g), and Cocaine (53.94g). He was convicted after trial. The aggravating factors were the nature and quantity of the substances, he was a mid-level trafficker, and a criminal record including a prior penitentiary sentence. The mitigating factors were youthful (25 years old), addiction, supportive family, and he had engaged in drug and mental health counselling and volunteering since the offence date. Spiro-Rusha was sentenced to five years.
34It must be recognized that in Spiro-Rusha, the quantity of Benzimidazole was only 5.7 grams, a significant distinguishing feature from the case at bar.
General Principles:
35The court is guided by the principles of sentencing as set out in the CDSA and ss. 718 to 718.2 of the Criminal Code. As directed by s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing sanctions that reflect enumerated objectives. Those objectives include denunciation of the unlawful conduct, deterrence and rehabilitation. It is also important to impose a sentence that promotes a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community.
36Section 718.2 of the Criminal Code addresses the principles of totality, parity and the principle of restraint among other factors. Section 718.2 also addresses specific aggravating and mitigating factors that shall be taken into consideration based on certain enumerated principles.
37The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The circumstances of the offence and of the offender must be analyzed to identify the aggravating and the mitigating factors. I must also consider the principles of totality and parity.
38The primary objectives in cases of this nature are general deterrence and denunciation: see e.g. Fuller, at para. 53; R. v. Olvedi, 2021 ONCA 518, 157 O.R. (3d) 583, at para. 57. General deterrence is an established sentencing objective based on the premise that the sentence imposed on an offender will discourage people who may otherwise consider committing a similar offence: see R. v. Bissonnette, 2022 SCC 23, 469 D.L.R. (4th) 387, at para. 47; R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R. 941, at paras. 2-3; R. v. Foster, 2020 QCCA 1172, at para. 26; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 107; R. v. Biancofiore (1997), 1997 CanLII 3420 (ON CA), 119 C.C.C. (3d) 344 (Ont. C.A.), at para. 23. Denunciation requires that a sentence communicate society’s condemnation of the offender’s conduct.
Aggravating factors:
39Clearly, the aggravating factors in this case include the nature of the drugs and their quantity. The sheer magnitude of the Benzimidazole is undisputed.
40It is not an aggravating factor that both offenders pleaded not guilty. That is their right. However, they cannot benefit from the mitigation that flows from a plea of guilty with the expressed or implied acceptance of remorse and responsibility for the charged crime.
Mitigating factors:
41Lee has no criminal record. She has significant health issues and has presented medical reports related to her various ailments.
42Mushing has a dated criminal record.
43Through the materials filed, Mushing had expressed some degree of regret and remorse.
Analysis:
44As mentioned, in Parranto, Moldaver J. emphasized fentanyl’s devastating harm in the context of sentencing fentanyl traffickers, at para. 98:
The time has thus come for our perception of the gravity of largescale trafficking in fentanyl to accord with the gravity of the crisis it has caused. Largescale trafficking in fentanyl is not a crime marked merely by the distribution and sale of an illicit substance; rather, it is a crime marked by greed and the pursuit of profit at the expense of violence, death, and the perpetuation of a public health crisis previously unseen in Canadian society….
45While Moldaver J. is referencing largescale commercial trafficking operations in fentanyl rather than “street-level” trafficking, I observe that at para. 96 of Parranto, he refers to the fact that “[b]eyond its mere potential to cause harm, however, fentanyl has had – and continues to have – a real and deadly impact on the lives of Canadians.” There is no doubt that similar comments can apply to Benzimidazole.
46According to the information tendered by the Crown at this hearing, which was admitted into evidence without objection:
Benzimidazole-Opioids - Article from the Drug Enforcement Administration
Recently, a number of synthetic substances of benzimidazole structural class are being trafficked and abused for their opioid-like effects. In the late 1950s, the pharmaceutical research laboratories of the Swiss chemical company CIBA Aktiengesellschaft synthesized numerous substances in this structural class. Since 2019, the abuse of benzimidazole-opioids as evidenced by their identification in toxicology cases, similar to other synthetic opioids, has resulted in adverse health effects including deaths. As the United States continues to experience an unprecedented epidemic of opioid misuse and abuse, the continued evolution and increased trafficking and popularity of new and deadly synthetic opioids from a variety of structural classes, including benzimidazoles, with no approved medical use are of public health concern.
The population likely to abuse benzimidazole-opioids appears to be the same as those abusing prescription opioid analgesics, heroin, and other synthetic opioid substances. This is evidenced by the types of other drugs co-identified in some of the identified benzimidazole-opioids seizures and in fatal overdose cases. Toxicology analyses co-identified some of these benzimidazoles-opioids with other opioids, stimulants, and benzodiazepines. Because abusers of these benzimidazole-opioids are likely to obtain them through unregulated sources, the identity, purity, and quantity are uncertain and inconsistent, thus posing significant adverse health risks to the users. Similar to other mu-opioid receptor agonists, the potential health and safety risks for users of these benzimidazole-opioids are high. Recent increase in positive identification of isotonitazene, metonitazene, and other penzimidazole-opioids in toxicology and post-modern cases is a serious concern to the public safety.
Article from the Government of Canada - About Benzimidazoles
A benzimidazole is a simple chemical structure found in a great variety of substances. A subset of benzimidazole-containing substances are opioids, some of which can be very potent – more than morphine and sometimes more than fentanyl. Non-opioid benzimidazoles are not captured under the CDSA. From this point forward “benzimidazoles” refers to benzimidazole opioids.
Benzimidazoles were originally developed to reduce pain but were never approved for medical use in Canada. Benzimidazoles also induce euphoria (feeling high), which gives them the potential to be used improperly and to be addictive. Overdoses can be fatal. Consumption of benzimidazoles is especially dangerous when used at the same time with alcohol and other drugs that slow down brain activity (such as, other opioids, sedatives, anxiety medications, muscle relaxants).
3 benzimidazoles are explicitly listed in the act: clonitazene, etonitazene, bezitramide. Many other structurally similar substances also have potential to induce psychoactive and toxic effects similar to the benzimidazoles listed under the CDSA. For instance, isotonitazene, metonitazene, protonitazene, etodesnitazene, and brorphine have been found on the Canadian illegal drug market. These substances are controlled under item 13 even through they are not explicitly listed.
Tracey Lee:
47While recognizing that this case involves significant quantities of Benzimidazole, it cannot be termed as a commercial or largescale enterprise. However, I accept that Lee was on the scale of a high-end mid-level trafficker (supplier to street-level supplier), in the oft-referred-to five step hierarchy.1
48There is no doubt that the general principles arising from the Parranto case include the statement that fentanyl has changed the landscape of substance abuse in Canada. Now, we have a more insidious and lethal drug.
49Of course, the principles of proportionality and totality ought not be lost in the analysis of this offence and circumstances of the offender.
50That being said, there is no doubt that the courts will begin to recognize the insidious and detrimental impacts of Benzimidazole on the community and society at large. General and specific deterrence and denunciation are paramount considerations, as there is a continued need for a firm response by the courts for increased sentences for fentanyl-related crimes.
51In my assessment of the evidence and the facts found by the jury in this case, Lee was the principal offender behind the Benzimidazole and associated drug trafficking items found in her residence. She had rented the Beach Road home for a number of years, and had full access and egress. Lee kept log books with some details of supplies and related transactions.
52Through police surveillance, Lee met with a known drug distributor in the front of her house. She admitted that she was the person in the video who interacted with the driver of the vehicle (identified as Lazar). No hand-to-hand transaction was observed by the surveillance officers. However, there was a bulge from underneath her clothing when she approached Lazar. It was quite obvious, but she testified and denied that she had a bulge in her pocket. “It was my stomach”. Such an assertion was rejected by the jury.
53Lee admitted that she wrote in a notebook, and acknowledged but did not author the “pink notebook” which referenced drugs or debt list information. Yet, Lee was shown various photographs and admitted that the pencil case was hers, but not the pills.
54Lee admitted knowing about the cash in her clothing drawer in the bedroom, explaining that “Larry told me to hang on to it, and I put it in my drawer”. She was also questioned about her income and expenses in relation to the cash located in the dresser drawer.
55The jury rejected her evidence.
56As Ms. Edward pointed out in sentencing submissions, Lee’s son, Christopher Karns, was also apprehended and recently convicted of related Benzimidazole and other drug offences.
57A transcript of the proceedings of the guilty plea was filed: R. v. Christopher Karns, unreported (April 17, 2026 - in Hamilton) before Rosenberg. J. The salient facts include:
Pursuant to the search that was conducted, the police located evidence of drug trafficking which included multiple kilos of cannabis; 288.39 grams of benzimidazole, which was 759 pills; 413, approximately, hydromorphone pills; 2 kilos of mushrooms; 1,036 mushroom pills; 132 clonazepam pills; 184 methylphenidate pills; lorazepam;oxazepam; a small amount of amphetamines; LSD tablets; four cell phones; $2,350 in cash; and another small quantity of cash. In entering his plea, Mr. Karns admitted that he possessed the drugs for the purpose of trafficking (p.2)
58Her Honour stated at p. 3:
The drug in question, which I’m not sure if I’m pronouncing it correctly, but Benzimidazole is a fairly new, what we call “immerging drug” on the scene, and it is considered a very, very dangerous drug, highly addictive, can be more potent than fentanyl. We’ve heard many times the - the dangerous nature of fentanyl, but now we’ve added this new drug to the mix, and it can be even more potent and equally as fatal as fentanyl. The harm Mr. Karns posed in trafficking these drugs was extremely high.
59There does not seem to be much dispute between the parties that Parranto sets a floor at eight years for sentences for high-level distribution of fentanyl.
60Here, is a matter of an even more insidious drug. Benzimidazole is an opioid and is highly addictive. It is more lethal than fentanyl. Unlike many other illicit harmful drugs, Benzimidazole is also resistant to Narcan.
61In this case, with the aggravating features of the considerable quantum of the illicit and dangerous Benzimidazole seized, 1034 pills of Benzimidazole, (371.26g of Benzimidazole), with respect, I must decline Mr. Manek’s submissions as it does not fall close to the appropriate range for this offence and offender.
62In my opinion, possessing benzimidazole for the purposes of trafficking in the amounts found in this case can justify a sentence in the range of nine to 12 years, even for a first-time offender.
63I accept the Crown’s position. There is little to be found in mitigation for Lee. This offender’s significant health issues were known to her when she committed the offences for her drug enterprise, clearly for financial gain. It bears repeating that denunciation and general deterrence are paramount considerations and a significant penitentiary sentence must be imposed.
Larry Mushing:
64In this case, I am persuaded that the principle of parity is not wholly applicable. In my opinion, I interpret the jury’s findings that Mushing’s moral culpability was established beyond a reasonable doubt, albeit diminished. I can classify his involvement in this case as a ‘found-in” party to the offence.
65Mushing did not live at Beach Road but he came over to Lee’s house two to three times a week, most often travelling by bicycle.
66Mushing denied introducing Lazar to Lee; quite the contrary. He had no idea who she was, never met her and only heard the first name. He was never observed at the 144 Beach Road residence during the periods of police surveillance and prior to the search warrant being executed. There is no evidence that he ever conducted transactions with the high-level drug distributor. Moreover, he never wrote anything in any of Lee’s notebooks related to drugs, debt lists, or other drug-related information.
67Given his stated choice of drug habit, I accept Mushing’s claim that he did not sell drugs, (reference to the Benzimidazole), and if he knew there was money available, he would have spent it.
68While there were partially exposed pills and vessel located at the edge of the “dog” blanket in the living room, Mushing testified that he watched TV in the living room and he knew that there were “things” under the blanket. He admitted that he knew there were drugs, but not what type of pills located under the blanket. “They belonged to Tracey.” Mushing was candid in that he admitted that he could have moved or sold the drugs if he wanted to.
69Mushing conceded being a life-long drug addict. He denied ever selling any of the illicit pills to support his drug habit. “I have no time for pills.” He did not have a vehicle or even a cell phone. He denied knowing about the cash in the drawer and did not know the people coming and going in the house.
70I accept Ms. Edward submissions as it relates to her client’s moral culpability in relation to the Benzimidazole. While not condoning his conduct, Mushing was either wilfully blind or, more probable, can be considered as a “found-in” during the search of the residence on the relevant date. His ultimate sentence ought to reflect these circumstances and considerations.
Conclusion:
71For both offenders, I impose a s. 109 weapons prohibition order for life. Both Lee and Mushing will provide a DNA sample, pursuant to s. 487.051 of the Criminal Code.
72A forfeiture order is granted.
73In addressing Ms. Lee, with respect to the count related to the Possession for the purpose of Trafficking in Benzimidazole, (s. 5(2) CDSA) the sentence is nine (9) years to be served in a federal penitentiary. The Possession of Property Obtained by Crime shall incur a one year sentence, concurrent.
74For Mr. Mushing, with respect to the count related to the Possession for the purpose of Trafficking in Benzimidazole, (s. 5(2) CDSA) the sentence is four (4) years to be served in a federal penitentiary. The Possession of Property Obtained by Crime shall incur a one year sentence, concurrent.
75The victim surcharge is waived.
A.J. Goodman J.
Date: July 31, 2026
Footnotes
- See e.g. R. v. Barkow, 2008 ONCJ 84; R. v. Haye, [2013] O.J. No. 6493 (S.C.), at para. 11, aff’d [2014] O.J. No. 6575 (C.A.) citing R. v. Okash, 2010 ONCJ 93.