CITATION: R. v. Bailey, 2026 ONSC 4450
COURT FILE NO.: CR-24-6410
DATE: 20260730
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
BRANDON BAILEY
Offender
R. Pollock, for the Federal Crown
A. Jervis, for the Offender
HEARD: June 22, 2026
REASONS FOR DECISION ON SENTENCING
[1] Brandon Bailey was charged on a two-count indictment with (i) possession of fentanyl for the purpose of trafficking under s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”) and (ii) possession of hydromorphone contrary to s. 4(1) of the CDSA. A trial was scheduled to commence on March 30, 2026, for four days.
[2] On March 30, 2026, Mr. Bailey entered a plea of not guilty to count 1 and a plea of guilty to the lesser and included offence of possession of over 45 grams of fentanyl contrary to s. 4(1) of the Controlled Drugs and Substances Act (CDSA).
[3] A Pre-Sentence Report (“PSR”) was filed and written, and oral submissions were made by counsel at the sentencing hearing held on June 22, 2026.
CIRCUMSTANCES OF THE OFFENCE
[4] An agreed statement of fact was read into the record following Mr. Bailey’s guilty plea.
[5] On April 26, 2023, at about 8:50 p.m., Windsor Police uniformed officers were dispatched to a Tim Hortons located in Windsor, Ontario. An employee called the police to report a drive while impaired. The employee described Mr. Bailey as walking side to side inside the Tim Hortons, and that he originally came through the drive-thru area. Mr. Bailey was confused about his order and sat inside his vehicle for about 15 minutes. The employee approached Mr. Bailey and observed that Mr. Bailey was slurring his words. The employee advised the police of the make of Mr. Bailey’s vehicle and licence plate.
[6] When officers arrived at the Tim Hortons, Mr. Bailey was at the front counter with his wallet open on the counter, an arm’s length away from him. The officer told Mr. Bailey that he was there to check on his well-being. Mr. Bailey told the officer that he was going through a tough time as his father had passed away on April 20, 2023.
[7] The officer observed Mr. Bailey to be drowsy and unsteady on his feet but did not detect an odour of alcohol. Mr. Bailey told the officer that he had identification in his vehicle. The officer followed Mr. Bailey to his vehicle for the purpose of locating his identification and documents. When Mr. Bailey opened the front driver door, the officer saw in plain view, a Ziploc bag that contained foil, a lighter and three packages within a Ziploc bag.
[8] At 8:57 p.m., Mr. Bailey was arrested for impaired operation of a conveyance. A search was conducted incident to the arrest, and a lighter, some tinfoil consistent with drug use and a wallet with the identification of Mr. Bailey’s father were located.
[9] The Ziploc bag in the vehicle contained packages with the following amounts of fentanyl: 0.4 grams, 19.4 grams and 4.9 grams. Another container contained 21.1 grams of fentanyl. In addition, the following items were seized: $305 in Canadian currency, an Infinity model scale and a battery charger.
CIRCUMSTANCES OF THE OFFENDER
[10] Mr. Bailey is 40 years old and single. He has a 16-year-old son who he co-parents. He suffers from substance use disorder, depression and anxiety.
[11] Mr. Bailey grew up in Windsor with his mother and father. He reported no alcohol or drug use in the family home. Mr. Bailey described his mother as verbally, emotionally and mentally abusive who would often scream and yell at both him and his father. Growing up, Mr. Bailey was alone with his mother most of the time given his father’s career as a truck driver. Mr. Bailey’s mother passed away in 2014, and his father passed away from cancer in 2023. Mr. Bailey acted as his father’s caretaker until his passing.
[12] In 2015, Mr. Bailey was diagnosed with attention deficit disorder. Mr. Bailey attended a local public alternative secondary school and completed his secondary diploma. Before the pandemic, he attended a local university majoring in social work. When classes transitioned to online, he had difficulty navigating the online platforms and did not complete his final exams.
[13] Mr. Bailey has a varying employment history. From 2017 to 2022, he owned a landscaping business. He was employed with a local non-profit organization since September 2025 but was off work for mental health reasons when the PSR was prepared in April 2026. At the sentencing hearing, Mr. Bailey reported that he is now employed full-time as a landscape program lead.
[14] Mr. Bailey began using marijuana when he was 13 years old. Throughout his teenage years, he experimented with ecstasy, mushrooms and cocaine. At age 19, Mr. Bailey began using crack cocaine which quickly led to daily use. He attended an addiction recovery home and completed a 90-day in-patient program. Mr. Bailey maintained sobriety for less than a year and fell back into substance use. He also began using hydromorphone regularly which quickly progressed into an addiction. Due to cost and potency, Mr. Bailey expanded his use to fentanyl.
[15] In 2018, Mr. Bailey was involved in establishing an overdose prevention support group. He stated this group was funded by donations and grants. The focus of the group was to provide harm reduction supplies to the community and wound care. After two years, Mr. Bailey stepped away from the support group due to his own struggle with addiction and the emotional impact the work had on him.
[16] At the time of the offence, Mr. Bailey’s father had just passed away, and he turned to substances to cope. The drugs in his possession were for his personal use. Since the loss of his father, Mr. Bailey attended and completed a grief and bereavement program at Canadian Mental Health Association (“CMHA”).
[17] Since August 2024, Mr. Bailey has maintained his sobriety. Mr. Bailey uses marijuana daily as it assists with his anxiety. While he has attended and completed several addiction treatment programs, Mr. Bailey is currently not involved with addiction support.
[18] Mr. Bailey is currently on medication for anxiety and advised he is connected to the CMHA. Margo McIntyre, Justice Case Manager at CMHA, advised that Mr. Bailey is working towards specific goals including money management, food security, resuming employment and managing his diagnosis. She confirmed that Mr. Bailey’s diagnosis includes anxiety, depression and post-traumatic stress disorder.
[19] At his sentencing hearing, Mr. Bailey addressed the court. He explained how important it is to his recovery that he remains connected to and be around people. He expressed concern about being confined to his home all day. Mr. Bailey also expressed how difficult it has been for him to find counselling and other resources to assist with his mental health and substance use recovery. He explained that he has been trying to obtain trauma counselling for two years with no success.
POSITIONS OF THE CROWN AND DEFENCE
[20] The Crown seeks a six-month custodial sentence of imprisonment to be served in the community (“CSO”). The Crown also asks for 12 months of probation.
[21] Ms. Jervis, on behalf of Mr. Bailey, did not take the position that the sentence sought by the Crown is unfair or inappropriate. Ms. Jervis argued that a conditional discharge and a term of probation of three years is more appropriate in the circumstances of this case, while acknowledging that such a sentence would be a unique one given the amount of fentanyl in his possession.
LAW AND ANALYSIS
[22] Imposing a fit and proper sentence requires the court to balance several factors and apply the relevant legal principals. The exercise is one of art, and not science: R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at paras. 9 and 205.
[23] Section 718 of the Code directs a sentencing judge to consider the purpose and principles of sentencing, including the need to denounce unlawful conduct, to deter the offender and others, the need to separate certain offenders from society, and rehabilitation. The sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 of the Code; Parranto, at para. 10.
[24] Section 718.2 mandates the sentencing judge to consider the principles set out in that section in imposing sentence, including that any sentence imposed should be increased or reduced to account for any relevant aggravating or mitigating circumstances, and that the court should exercise restraint in imposing imprisonment.
[25] Sentencing judges have wide discretion to craft a sentence tailored to the nature of the offence and the circumstances of the offender. Guidance must be taken from the case law to encourage consistency between decisions in accordance with the principle of parity. Sentences beyond a range are permitted if they are in accordance with the principles and objectives of sentencing. The circumstances of the offence and the offender, and the needs of the community must always be considered: R. v. Nasogaluak, 2010 SCC 6 at paras. 43-44; Parranto at paras. 40-41.
[26] Fentanyl related offences require clear denunciation. The consequences associated with fentanyl can be and often are devastating. Further, given the ongoing opioid epidemic, general deterrence is an important factor: Parranto at para. 96.
[27] Ms. Jervis argued that a conditional discharge is appropriate in this case. She says that Mr. Bailey had this significant amount of fentanyl in his possession because he planned to use it until he was no longer with us. In other words, it was an intended suicidal possession of fentanyl. Ms. Jervis argued that a conditional discharge is appropriate for Mr. Bailey in the circumstances of his case because he is a very particular offender and that this would not be a precedent for an average person possessing this amount of fentanyl.
[28] Under s. 730 of the Code, a conditional discharge is available in this case if I am satisfied that it is in the best interests of the accused and not contrary to the public interest. While there is no dispute that a conditional discharge would be in Mr. Bailey’s best interest, I am unable to conclude that it is in the public interest.
[29] There can be no dispute that fentanyl is one of the most dangerous drugs in Canada and that it may be the most serious societal issue facing Canada today. The courts have repeatedly recognized the devastating social impact of fentanyl. I am unable to conclude that a conditional discharge in this case, where Mr. Bailey was in possession of over 45 grams of fentanyl, is in the public interest. A non-custodial sentence, even on the facts of this case, would not adequately address denunciation, deterrence or protection of the public. A custodial sentence is both necessary and proportionate in the circumstances of this case.
[30] Under s. 4(1) of the CDSA, a maximum sentence of seven years is available for simple possession. The Crown submits that a custodial sentence of six months is required in this case to reflect the seriousness of the offence, including the nature and significant amount of fentanyl. In considering the length of the appropriate sentence, I must consider both the mitigating and aggravating factors present.
[31] Beginning with the mitigating factors in this case, Mr. Bailey has no previous record. He pleaded guilty and accepted responsibility. The offence occurred just days following his father’s death which had a significant emotional impact on him. There is no doubt that Mr. Bailey has made meaningful efforts to positively contribute to the community and to improve himself. He has a genuine commitment to his rehabilitation and sobriety. I am satisfied that but for his substance use issue, Mr. Bailey would not have been in possession of the fentanyl.
[32] I have no concern about Mr. Bailey lacking insight into this offence, the devastating impacts of fentanyl, his own substance abuse issues or the challenge in remaining sober. Mr. Bailey understands that he is in a daily fight with his sobriety that will last his entire life, and he has taken steps to assist himself in that fight. He also offers his insight and support to others who are struggling with addiction. Mr. Bailey provided the court with an article published in the Windsor Star in September 2023, where he shares his struggles with relapse and the insight he gained. By sharing his personal story with the public and educating them, Mr. Bailey is aiding the community in understanding the devastating impacts of fentanyl. And I thank him for all his efforts and encourage him to continue his efforts as an advocate and his work in and with the community.
[33] Turning to the aggravating factors present, the amount of fentanyl that was in Mr. Bailey’s possession and that he possessed it in a public place cannot be ignored. Given the amount of fentanyl in Mr. Bailey’s possession and the nature of the drug, this is a significant aggravating factor.
[34] The Crown acknowledges that rehabilitation is the guiding principle with respect to simple possession cases and that most cases, like the current one, involve substance use issues. Permitting Mr. Bailey to serve his sentence in the community under conditions, as the Crown proposes, would provide a balanced sentence when considering the mitigating factors and the principal of rehabilitation.
[35] Section 742.1 of the Code provides that a court may impose a conditional sentence of imprisonment on an offender which permits them to serve their sentence in the community under conditions, if the sentence to be imposed is less than two years long, the court is satisfied that allowing the offender to serve his sentence in the community would not endanger the safety of the community and the offence is not punishable by a minimum term of imprisonment, and is not one of the offences enumerated in that section.
[36] I am satisfied that in the specific circumstances of this case, imposing a conditional sentence addresses the principles of sentencing, and is proportionate to the gravity of the offence. The message to the public, and to persons who might consider trying this drug, should be a serious one from the Court. A custodial sentence is required to denounce and deter. In the circumstances of this case, however, a custodial sentence served in the community is appropriate.
[37] Given the steps Mr. Bailey has taken towards rehabilitation and educating the public, his lack of a record, and his personal situation at the time of the offence, I have no hesitation in ordering that Mr. Bailey may serve his sentence in the community. In these circumstances specific deterrence is of less significance, and general deterrence can be addressed through the imposition of conditions. Having Mr. Bailey serve his sentence in the community would not offend the principles of fundamental justice and would not endanger the safety of the community. Such a sentence is consistent with the fundamental purpose and principles of sentencing as set out both in the Code and the CDSA, including denunciation and deterrence.
[38] I am concerned that Mr. Bailey does not appear to have a strong support network around him. While he has his son, he reported in the PSR that he has no hobbies and does not have many friends or family who he is close to. His expressed concerns at his sentencing hearing that he fears losing contact with and being around people, and being confined to his home resonated with me. He explained that these connections are important to his recovery. I agree that keeping Mr. Bailey confined to his home and unable to be around people would be counterproductive to his recovery and in conflict with the goal of rehabilitation, and that is why certain exceptions will apply that will permit Mr. Bailey to continue his work, both employment and community, and participate in counselling and support groups as a participant, leader or organizer.
A FIT AND APPROPRIATE SENTENCE
[39] Having considered the unique factual circumstances of this case, including the aggravating and mitigating factors, I find that a fit and appropriate sentence for the offence of possession of fentanyl, contrary to s. 4(1) of the CDSA is 90 days in custody.
[40] Mr. Bailey will be permitted to serve his sentence in the community pursuant to a conditional sentence order. In addition to the statutory terms and conditions, I impose the following terms:
(a) Report in person to a conditional sentence supervisor within two business days, and after that, at all times and places as directed by the Supervisor or any person authorized by a Supervisor to assist in supervision;
(b) Co-operate with the Supervisor, including signing any releases necessary to permit the supervisor to monitor compliance and providing proof of compliance with any condition of this Order to the Supervisor on request;
(c) Live at a place approved of by the Supervisor and not change that address without obtaining the consent of the Supervisor in advance;
(d) For 90 days, Mr. Bailey must remain in his residence or on the property of his residence at all times EXCEPT:
(i) For pre-scheduled meetings with his Supervisor;
(ii) Between 12:00 noon and 4:00 p.m. each Saturday in order to acquire the necessities of life, or between other hours once per week as approved by his Supervisor in writing;
(iii) For any medical emergencies involving Mr. Bailey or any member of his immediate family (spouse, child, parent, sibling);
(iv) For going directly to and from or being at school, employment, court attendances, religious services and legal or medical or dental appointments as pre-approved by his Supervisor;
(v) For going directly to or from being at assessment, treatment or counselling sessions; or
(vi) With the prior written approval of the Supervisor. The written approval is to be carried with Mr. Bailey during these times.
(e) Mr. Bailey will confirm his schedule in advance with his Supervisor setting out the times for these activities, with the exception of (d)(ii);
(f) Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the Supervisor and complete them to the satisfaction of the Supervisor including, but not limited to: substance abuse, and trauma counselling;
(g) Mr. Bailey shall continue his participation with Canadian Mental Health Association; and
(h) Not possess or consume alcohol or other intoxicating substances (refer to the Controlled Drugs and Substances Act, S.C. 1996, c.19) except with a valid prescription in Mr. Bailey’s name or those available over the counter, with the exception of marijuana.
[41] I also impose a period of probation. When the Conditional Sentence Order concludes, Mr. Bailey will be bound by a Probation Order for a period of two years or 24 months. The conditions of the Probation Order are very similar to the conditions of the Conditional Sentence Order. They are as follows:
(a) In addition to the statutory conditions of the order:
(i) Report in person to a probation officer within two days of the commencement of the probation order and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in Mr. Bailey’s supervision;
(ii) Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer including but not limited to: substance abuse and trauma counselling;
(iii) Mr. Bailey shall continue his participation with Canadian Mental Health Association;
(iv) Mr. Bailey shall sign any release of information forms as will enable his probation officer to monitor his attendance and completion of any assessments, counselling or rehabilitative programs as directed;
(v) Mr. Bailey shall provide proof of his attendance and completion of any assessments, counselling or rehabilitative programs as directed; and
(vi) Not possess or consume alcohol or other intoxicating substances (refer to the Controlled Drugs and Substances Act, S.C. 1996, c. 19) except with a valid prescription in Mr. Bailey’s name or those available over the counter, with the exception of marijuana.
[42] The victim fine surcharge is waived given the unique circumstances of this case and Mr. Bailey’s recovery.
__________________________
Jacqueline Horvat
Justice
Released: July 30, 2026
CITATION: R. v. Bailey, 2026 ONSC 4450
COURT FILE NO.: CR-24-6410
DATE: 20260730
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
BRANDON BAILEY
REASONS FOR DECISION on sentencing
Horvat J.
Released: July 30, 2026