Court File and Parties

Court File No.: CR-22-00015916

Date: 2026-02-13

Ontario

Superior Court of Justice

Between:

HIS MAJESTY THE KING – and – WAYNE LEWIS Defendant

Robert Greenway, for the Crown

Bronagh Ryan, Counsel for the Defendant

Heard: October 6, 7, 8, and November 13, 2025. January 12 and February 13, 2026.

Reasons for Judgment on Sentence

HenSCHEL J.

A. Overview and Summary of the Facts

[ 1 ] On November 13, 2025, I found Mr. Lewis guilty of one count of possession of cocaine for the purposes of trafficking and one count of possession of fentanyl for the purposes of trafficking.

[ 2 ] The offences took place on December 11, 2020. Mr. Lewis was stopped operating a Ford Escape rental vehicle. The vehicle was searched incident to arrest. 28.7 grams of cocaine was located in the sunglass's holder. I found Mr. Lewis was in possession of the cocaine. The street value of the 28.7 grams of cocaine was approximately $1400 to $1700.

[ 3 ] A search warrant was executed in his apartment at Unit 216, 2770 Jane Street, where police located two bundles of fentanyl wrapped in black plastic in a kitchen drawer. The smaller bag weighed 56.9 grams. The larger bag weighed 126.7 grams. In total, this equalled 183.6 grams of fentanyl. The street value of the fentanyl is $18,000 to $20,700.

[ 4 ] During the execution of the warrant and search of the Ford Escape, police also found drug paraphernalia, including:

• A clear white bag containing 30.1 grams of phenacetin, a cutting agent for cocaine on top of the shelves in the kitchen;
• Three drug scales;
• Three cell phones in the apartment and one in the Ford Escape; and
• $1995 in Mr. Lewis's possession of at the time of his arrest.

B. Personal Circumstances of Mr. Lewis

[ 5 ] Mr. Lewis is 60 years old. He was born in Jamaica and has five brothers and three sisters. His mother immigrated to Canada when he was nine years old, and his eldest sister cared for him after his mother moved. He maintained a positive relationship with his mother who worked as a personal support worker. She continued to provide support for her family.

[ 6 ] Mr. Lewis did not attend school frequently while growing up in Jamaica and last completed grade eight. He left school to work on the family farm.

[ 7 ] Mr. Lewis immigrated to Canada when he was 25 years old. He has five children. Two are now adults and he has three children between the ages of six and fourteen years of age. He maintains a positive relationship with the mothers of his children. He is involved in the lives of the children and provides them financial support. Ms. Justus, his former partner of 17 years and the mother of two of his children, spoke positively of Mr. Lewis and his involvement in the lives of his children. She described him as easy going, jovial, positive, lovable, helpful, and honest. She was surprised by his recent convictions.

[ 8 ] Mr. Lewis has been with his current partner for four years.

[ 9 ] Mr. Lewis has a strong work history in Canada. Initially, after coming to Canada, he worked as a dishwasher and cook at a restaurant for a year and a half, and subsequently with a carpet cleaning company for three years. He worked in landscaping for 2.5 years before joining the labourer's union. He has worked for 22 years doing tiling. He has done piecework for DRM tile and Marble Limited for the past four years. The pre-sentence report ("PSR") author received confirmation of this employment and Mr. Lewis was described as an integral part of the team and "punctual, courteous, and polite." He was not working full-time at the time of his arrest due to minimal work being available because of the pandemic.

[ 10 ] Mr. Lewis has no history of illicit drug use.

[ 11 ] Mr. Lewis's youngest daughter is six years old. She lives with a friend of Mr. Lewis, not with her mother. Mr. Lewis provides for his daughter. He is her primary support system. She sees her mother once a week. It is unclear what will happen to her if Mr. Lewis is incarcerated.

[ 12 ] Mr. Lewis's PSR author recommended that he be supervised in the community and that he would be a good candidate for counselling. Mr. Lewis was assessed as presenting a low risk to reoffend using the Level of Service/ Case Management Inventory assessment tool.

C. The Prior Record

[ 13 ] Mr. Lewis's prior criminal record consists of the following:

• April 1994: Possession of heroin for the purposes of trafficking – sentenced to 2 years in custody
• May 1996: Possession of heroin for the purposes of trafficking – sentenced to 5 years in custody; and trafficking heroin – sentenced to 5 years in custody (concurrent)

[ 14 ] Following his last conviction in 1996, Mr. Lewis was offence-free for over 24 years before the commission of the index offences in December 2020. During this time, he worked steadily and supported his family.

D. The Positions of the Parties

[ 15 ] The Crown seeks a sentence in the range of 7 to 8 years.

[ 16 ] The defence seeks a conditional sentence of two years less one day, with conditions including house arrest.

[ 17 ] The Crown argues that a conditional sentence is not available or appropriate in this case.

E. Comparable Cases

[ 18 ] The parties provided a number of comparable cases.

[ 19 ] In R. v. Parranto, 2021 SCC 46, the Supreme Court of Canada confirmed that "protection of the public" is a central objective of sentencing in drug trafficking cases, and that fentanyl trafficking is among the most serious of drug offences.

[ 20 ] In R. v. Lynch, 2022 ONCA 109, at para. 10, the Court of Appeal upheld a sentence of 10 years for trafficking in a large quantity of fentanyl and found that the sentencing judge had not erred in their approach to the applicable range of sentence.

[ 21 ] In R. v. Truong, 2023 ONSC 7518, the Court concluded that for possession for the purpose of trafficking of a similar amount of fentanyl (94.2 grams), the range of sentence was 6 to 9 years.

[ 22 ] In applying the principles of sentencing, I have been guided by several comparable cases.

[ 23 ] Section 718 provides that the fundamental purpose of sentencing is to protect society and foster respect for the law and the maintenance of a just, peaceful, and safe society. The court is to achieve this purpose by imposing just penalties that have one or more of the following objectives:

(a) To denounce unlawful conduct and harm done to victims or the community that is caused by unlawful conduct;

(b) To deter the offender and others from committing offences;

(c) To separate offenders from society where necessary;

(d) To assist in rehabilitating offenders;

(e) To provide reparation for harm done to victims or to the community; and

(f) To promote a sense of responsibility in offenders and acknowledgement of the harm done to victims or to the community.

[ 24 ] Section 718.1 of the Code provides that the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

[ 25 ] Section 718.2 of the Code dictates that, in imposing sentence, the court must also take into account a number of principles, including the following:

(a) A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; [^1]

(b) A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) All available sanctions other than imprisonment that are reasonable in the circumstances…should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[ 26 ] The Crown has provided the following cases, which I summarize below.

[ 27 ] In R. v. Parranto, 2021 SCC 46, the Supreme Court of Canada concluded that the national range of sentence for commercial trafficking of fentanyl is 8 to 15 years. Mr. Parranto and Mr. Felix were engaged in trafficking at a higher level and in larger amounts. Mr. Felix was a first-time offender. His sentence was increased from 7 to 10 years by the Court of Appeal and upheld by the Supreme Court. Mr. Parranto had a lengthy related criminal record. His 14-year sentence was upheld by the Supreme Court.

[ 28 ] In R. v. Lynch, 2022 ONCA 109, at para. 16, the Ontario Court of Appeal held that "a commercial trafficker who possesses a large amount of fentanyl is a significant moral agent in the tragic consequences visited upon fentanyl users and their families." The Court emphasized that the moral culpability of an offender rises "with the risk of serious harm the trafficker is prepared to expose others to."

[ 29 ] In R. v. Truong, 2023 ONSC 7518, for possession for the purpose of trafficking of 94.2 grams of fentanyl, the court determined the range of sentence was 6 to 9 years. The accused was a 27-year-old first offender and not an addict trafficker. He pleaded guilty and was found to have strong rehabilitative prospects.

[ 30 ] In R. v. Truong, the Crown sought a sentence of 8 years and the defence sought a conditional sentence. The Court rejected a conditional sentence and imposed a sentence of 7 years, less credit for time spent on bail under stringent conditions, resulting in a net sentence of 5.5 years.

[ 31 ] In terms of the amount of fentanyl involved and the presence of cocaine, this case is somewhat comparable to Truong. Mr. Lewis is not a first offender and did not plead guilty, but is substantially older and has been offence-free for 24 years.

[ 32 ] In R. v. Truong, the Court reviewed the following cases which the Crown has also provided:

[ 33 ] In R. v. Kaysie, 2021 ONSC 3855 (upheld by the Court of Appeal), the 26-year-old first offender was found guilty after trial of possession of 59.84 grams of fentanyl and 32.44 grams of cocaine for the purposes of trafficking. The Court of Appeal upheld a sentence of 5 years less credit for pre-trial custody, resulting in a net sentence of approximately 4 years.

[ 34 ] In R. v. Kaysie, the accused had a positive youth background, had been a diligent student, and was a volunteer football coach. The Court found him to be a mid-level trafficking motivated by the profit he could make.

[ 35 ] In R. v. Okafor, 2023 ONCA 667, the accused was sentenced for possession of 78 grams of fentanyl and 2.8 grams of cocaine after a guilty plea and cooperation with police. He was a 33-year-old first offender and not an addict-trafficker. The sentence at first instance was 5.5 years, less credit for pre-trial detention, resulting in approximately 2.5 years in custody. The Court of Appeal declined to interfere with the trial judge's sentence.

[ 36 ] In R. v. Okafor, the Court recognized that the accused's culpability was on the lower end because of his cooperation with police, guilty plea, and first-offender status.

[ 37 ] R. v. D.S., 2022 ONSC 6878 (Weekes J.) involved an accused who pled guilty to possession of 100 grams of fentanyl for the purposes of trafficking. He was a 29-year-old first offender. He had been cooperative with police. He had difficult social circumstances, including exposure to violence in his community, a traumatic event which led to PTSD, and chronic physical ailments. He had strong rehabilitative prospects. A sentence of 8 years was imposed, with credit given for stringent bail conditions resulting in a net sentence of about 5 years.

[ 38 ] In R. v. Primus-Ellis, 2023 ONCA 490, the 26-year-old first offender pleaded guilty to possession of 204 grams of fentanyl and 179 grams of cocaine for the purposes of trafficking. He had a difficult upbringing and grew up in a low-income household in a high-crime neighbourhood. He was not an addict-trafficker. He was compliant with bail conditions for almost two years. A sentence of 8 years was imposed by the trial judge. The Court of Appeal reduced the sentence to 7 years (net 6.5 years after giving credit for pre-trial custody). The Court of Appeal concluded, inter alia, that the trial judge had failed to give sufficient weight to the guilty plea.

[ 39 ] The amounts of fentanyl and cocaine in Primus-Ellis are more comparable to the amounts in this case and it is a useful comparator.

[ 40 ] In R. v. Primus-Ellis, at para. 23, the Court of Appeal stated: "A sentence within the range of 8 to 12 years is generally appropriate for trafficking over 200 grams of fentanyl where the offender is a mid-level commercial trafficker." Although the amounts in this case are less than in Primus-Ellis, the Court of Appeal's statement regarding the applicable range is instructive.

[ 41 ] In R. v. Simpson, 2019 ONCA 225, the 48-year-old accused pled guilty to one count of possession of cocaine for the purposes of trafficking and two counts of trafficking in cocaine. He had a related criminal record from approximately 20 years prior involving drug offences. He was found to have led a law-abiding life in the interim. A sentence of 30 months was upheld by the Court of Appeal.

[ 42 ] In R. v. Simmons, 2022 ONCA 73, the accused was a 37-year-old first offender who pled guilty to possession of 183.3 grams of fentanyl for the purposes of trafficking. The accused was addicted to fentanyl and was not a commercial trafficker. He was 28 years old at the time of the offence. He had a strong support network. A sentence of 6 years was imposed by the trial judge. The Court of Appeal reduced the sentence to 4 years because, in part, the trial judge had failed to give proper weight to the mitigating factor of the accused's drug addiction.

[ 43 ] Simmons is a useful comparator because the amount of fentanyl involved is similar to this case. However, Simmons was an addict-trafficker and entered a guilty plea. Mr. Lewis was not an addict-trafficker and did not enter a guilty plea.

[ 44 ] In R. v. Chalmers, 2023 ONCA 775, the 34-year-old first offender was sentenced for possession of 14.4 grams of methamphetamine, 182 grams of fentanyl, and 21 grams of cocaine for the purposes of trafficking. The accused entered a guilty plea and cooperated with the police. He was found to have strong rehabilitative prospects and was motivated to become a counsellor helping people battling addictions. He was sentenced to a term of imprisonment of 7 years less credit for time spent on bail conditions and pre-trial custody, which reduced his sentence to 5 years.

[ 45 ] Chalmers is comparable to this case in terms of the amount of fentanyl and cocaine involved. However, the accused in Chalmers pleaded guilty, cooperated with the police, was a first offender, and was found to have strong rehabilitative prospects.

[ 46 ] In R. v. Jibril, 2023 ONCA 777, the accused was a 30-year-old first offender who pled guilty to possession of 148 grams of fentanyl and 50 grams of cocaine for the purposes of trafficking. He was not an addict-trafficker. He was found to have strong rehabilitative prospects. He was cooperative with police. He was sentenced to a 6.5-year term.

[ 47 ] In R. v. Jibril, the Court of Appeal reduced the sentence to 5 years, after giving credit for time spent on bail under stringent conditions, resulting in a net sentence of 3 years.

[ 48 ] In R. v. Korsah, 2024 ONCA 375, the accused was sentenced for possession of 173 grams of fentanyl and 34.35 grams of cocaine for the purposes of trafficking. The accused was a 28-year-old first offender with no prior criminal record. He entered a guilty plea. The trial judge imposed a sentence of 8 years less credit for time served. The Court of Appeal reduced the sentence to 7 years, with credit for time spent on bail and pre-trial detention resulting in a net sentence of 5.5 years.

[ 49 ] The Court of Appeal in Korsah stated at para. 31: "Trial judges should be careful to guard against over-reliance on the national range of 8-15 years established in Parranto for large-scale fentanyl trafficking operations, which was meant to replace what was viewed as an insufficiently severe range, not as the universal range for all fentanyl trafficking offences."

[ 50 ] In R. v. Pham, 2022 ONCA 118, the accused, who was between 36 and 38 years old at the time of the offences, was convicted after trial of possession of 117.7 grams of fentanyl and 36.6 grams of cocaine for the purposes of trafficking. He had two prior related convictions from 2017 and 2018. The Crown sought a sentence of 10 to 12 years. He was found to be a mid-level trafficker. He was sentenced to a 10-year term. The Court of Appeal upheld the sentence.

[ 51 ] In R. v. Pham (2022), the accused had two recent related prior convictions, and was before the court for a third related offence committed while on bail for the prior offences. The prior sentences included a penitentiary sentence. This is a significant aggravating factor that distinguishes it from this case.

[ 52 ] In R. v. Dunn, 2021 ONCA 495, the accused pled guilty to possession of 1.25 kilograms of fentanyl for the purposes of trafficking. He was a 22-year-old first offender. He had difficult social circumstances, growing up in an impoverished and violent environment. He suffered from a learning disability. He had strong community support. He received a sentence of 8 years less credit for time spent on restrictive bail conditions and pre-trial custody, resulting in a net sentence of approximately 6 years. The Court of Appeal upheld the sentence.

[ 53 ] In R. v. Campbell, 2020 ONSC 6765, the 59-year-old accused was found guilty after trial of possession of 1.4 kilograms of cocaine for the purposes of trafficking. He had a dated prior related criminal record from 20 years prior. He was described as a commercial trafficker. He had a positive work history and family support. He was sentenced to 8 years, less credit for time spent on bail under harsh conditions, resulting in a net sentence of 7 years.

[ 54 ] Campbell is a useful comparator as Mr. Lewis was also found guilty after trial and has a dated related criminal record. In Campbell, the accused was in possession of 1.4 kilograms of cocaine, whereas Mr. Lewis was in possession of much smaller amounts of cocaine but also possessed 183 grams of fentanyl.

[ 55 ] In R. v. Dobson, 2020 ONCA 363, the accused was sentenced to a total of 8 years following convictions for a number of offences, including trafficking cocaine and trafficking fentanyl, as well as related possession offences. The accused had an extensive prior criminal record. He was a commercial trafficker who trafficked drugs on the street. A sentence of 8 years was upheld on appeal.

[ 56 ] In R. v. Dobson, the accused had a significantly more extensive prior criminal record than Mr. Lewis and had much shorter gap in offending.

[ 57 ] In R. v. Sidhu, 2019 ONCA 880, the Court of Appeal upheld a net sentence of 8 years and two months for a 25-year-old offender who trafficked 89 grams of fentanyl. The accused was characterized as a commercial trafficker. He had a prior related record and returned to trafficking shortly after being released on parole.

[ 58 ] In R. v. Baldwin, 2023 ONCJ 160, a search of the accused's vehicle incident to arrest resulted in the seizure of 675.75 grams of methamphetamine, 115.09 grams of fentanyl, and 140.4 grams of cocaine. Approximately $4500 in currency was seized. The total value of the drugs was $61,000 to $85,000. Ms. Baldwin entered a guilty plea and took full responsibility for the offences. She was cooperative with the police. She had a history of addiction and expressed a desire to participate in counselling to overcome her addiction. Ms. Baldwin had a related criminal record and had previously served a penitentiary sentence for drug related offences. She offended while on parole.

[ 59 ] Justice Katsch imposed a sentence of 8 years, a sentence jointly recommended by Crown and defence. In imposing the 8-year sentence, Justice Katsch indicated that, in her view, the sentence was at the bottom of the range of appropriate sentences having regard to the quantity of drugs and Ms. Baldwin's history of offending.

[ 60 ] In R. v. Hamilton, 2024 ONSC 2167, the 31-year-old accused was found guilty after trial of possession for the purposes of trafficking in relation to 78 grams of fentanyl and 115 grams of cocaine. The parties agreed he was a mid-level trafficker motivated by greed and financial gain. The accused had a substantial prior criminal record, including two prior related convictions, and, at the time of the offences, was on several releases for similar offences. An enhanced pre-sentence report indicated that Mr. Hamilton had grown up in a community with gang violence and he had experienced racial profiling. However, the Court was not satisfied that there was a close nexus between the social context evidence and the offences. The Court agreed with the findings of the Court in R. v. Truong, 2023 ONSC 7518, that for possession for the purpose of trafficking of a similar amount of fentanyl (94.2 grams), the range of sentence was 6 to 9 years. The Court ultimately imposed a sentence of 8 years less credit for pre-trial detention and harsh conditions.

[ 61 ] In R v. Jolly, 2022 ONCJ 3, a decision of Justice Ghosh of the Ontario Court of Justice, the accused pleaded guilty to trafficking approximately 6 ounces, 170 grams of fentanyl, an amount similar to that in this case. In Jolly, the offender was involved in the trafficking of fentanyl that resulted in an overdose. He acknowledged to an undercover officer that his trafficking activities resulted in the overdose, and he continued to traffic fentanyl following the death, culminating in his brokering a deal for sale of 5 ounces of fentanyl to an undercover officer.

[ 62 ] Mr. Jolly was 29 years old and had a limited prior criminal record, although it included a prior conviction for possession for the purposes of trafficking. His longest prior adult sentence was 1 day with 6 months credit for pre-trial custody. Social context evidence formed an important part of the sentencing proceedings. Justice Ghosh found that Mr. Jolly had encountered personal and systemic discrimination in a variety of ways and that it informed his trajectory and involvement with crime. He had been the victim of a shooting and suffered from post-traumatic stress disorder (PTSD). The social context evidence was found to mitigate his moral blameworthiness. Other mitigating factors included harsh pre-sentence custody during the pandemic, and time spent on restrictive bail conditions. There was a reasonable prospect of rehabilitation.

[ 63 ] Justice Ghosh, after conducting a comprehensive review of comparable cases, concluded that the applicable range of sentence was 8 to 12 years.

[ 64 ] Justice Ghosh ultimately concluded that despite the mitigating factors, the offences were so grave and demonstrated such a high degree of moral responsibility that a proportionate sentence warranted a 9-year sentence, less credit for time spent on restrictive bail conditions and presentence custody. He indicated that but for six months credit agreed to by the parties for the prospective impact of the COVID-19 pandemic, a sentence of 9.5 years would have been imposed.

[ 65 ] In R. v. Vezina, 2017 ONCJ 775, the offender was sentenced to 12 years less pre-trial custody, resulting in a 9-year and 9-month sentence for possessing 204.49 grams of a blend of heroin and fentanyl for the purposes of trafficking, a loaded handgun, and other substances. The offender pleaded guilty. He had a long history of substance abuse and positive prospects for rehabilitation. He was also cooperative with police.

[ 66 ] Ms. Ryan submits that there are aggravating features present in many of the above cases that are not present in this case:

• Unlike in Vezina, Mr. Lewis was not in possession of any weapons or firearms.
• Unlike in the Jolly case, there is no evidence directly connecting Mr. Lewis to the victim of an overdose.
• There was no direct evidence of Mr. Lewis trafficking the substances he possessed to an undercover officer or any other person.
• Unlike several of the above cases, Mr. Lewis did not have any recent related convictions, he was not on bail, parole, or probation at the time of commission of the offences.

[ 67 ] The defence provided several authorities where, in exceptional circumstances, courts imposed conditional sentences. Ms. Ryan submits that a conditional sentence is appropriate in this case because Mr. Lewis has been offence-free for five years while on bail and has been working and supporting his family. She submits that the impact of a lengthy custodial sentence would undermine Mr. Lewis's successful rehabilitation, and the collateral consequences would be profound to his children whom he supports.

[ 68 ] In R. v. Russell, 2023 ONCJ 122, Mr. Russell, a 37-year-old offender pleaded guilty to one count of possession of fentanyl for the purposes of trafficking and one count of possession of proceeds of crime. Police executed a search warrant on Mr. Russell's home and seized 33 grams of cocaine and 7 grams of fentanyl. Mr. Russell's plea was particularly mitigating because he abandoned potentially fruitful Charter challenges.

[ 69 ] Mr. Russell had a criminal record for trafficking controlled substances and weapons trafficking from 2010 for which he received a penitentiary sentence. He had a fraud conviction from 2019. Although Mr. Russell had an unstable upbringing, he completed high school and a civil engineering diploma. He was a single father with four children, two of whom lived with him. He financially supported all four children. He had strong family and community support. While his charges were outstanding, he completed hundreds of hours of volunteer work for the Salvation Army and obtained employment with them. He also volunteered with another community services association. He was also working as a part-time personal trainer. He expressed remorse for his offences.

[ 70 ] Notably, in Russell, the Crown sought a period of custody of 3.5 years. The defence characterized the case as extraordinary and sought a conditional sentence of 2 years less one day on the strictest of terms.

[ 71 ] Justice Silverstein concluded that given the wealth of mitigating circumstances, a conditional sentence was appropriate. Justice Silverstein was satisfied that a conditional sentence of 2 years less one day (involving house arrest for the entirety of the sentence with exceptions for employment) could meet the needs of denunciation and deterrence. He was impressed by the way in which Mr. Russel had turned his life around since the offences and was concerned about the consequences of incarcerating him on his mother, his children, and the community he was serving.

[ 72 ] In my view, while Mr. Russell's personal circumstances are similar to those of Mr. Lewis, the gravity of the offence is very different. Mr. Russel was in possession of 7 grams of fentanyl. Mr. Lewis was in possession of more than 25 times that amount. Furthermore, Mr. Russell had the benefit of the mitigating impact of a guilty plea.

[ 73 ] In R. v. Williams, 2023 ONCJ 259, the accused was a 25-year-old first offender who pleaded guilty to possession of 14.27 grams of fentanyl (which included a cutting agent) for the purposes of trafficking. He also admitted being in possession of 3.1 grams of cocaine (in various baggies) and 180 grams of cannabis. Mr. Williams was a black male, and an enhanced PSR indicated that he was raised in poverty-stricken circumstances and had experienced racism as a child. Mr. Williams provided financial support to his sisters' two children and learned he would be a new father shortly before the offence. He advised that he committed the offence as a one-time event to meet the pending financial needs of his family. He was deeply remorseful and since the offence had taken training to become a welder, which the sentencing judge found was an important step to ensuring he did not reoffend. The sentencing judge concluded that there was a significant connection between anti-Black racism and the commission of the offence. The sentencing judge also noted that the social context evidence provided a basis upon which added weight could be given to the objective of rehabilitation and less weight to the objective of specific deterrence.

[ 74 ] The Crown sought a three-year penitentiary sentence. The defence sought a conditional sentence of two years less one day. The sentencing judge concluded that despite deterrence and denunciation being the primary sentencing objectives in cases of fentanyl trafficking, that in exceptional cases where mitigating factors are particularly compelling, a conditional sentence may be appropriate. The sentencing judge observed that in most cases in which conditional sentences have been imposed for possession for the purpose of trafficking fentanyl, the accused is an addict trafficker who, since their arrest, has made significant strides to address their addiction. The Court noted that in cases where the defendant was not an addict trafficker, the defendant had turned their life around since the time of their arrest.

[ 75 ] Ultimately, the sentencing judge in Williams imposed a 2 year less a day conditional sentence with two years probation. The offender was subject to house arrest with GPS monitoring, with exceptions for employment. The sentencing judge concluded that placing the offender in a federal penitentiary for three years, as requested by the Crown, would take him off the positive path he was on and put his rehabilitation at significant risk.

[ 76 ] Williams is factually distinguishable from this case because Mr. Williams entered a guilty plea, it involved a significantly smaller quantity of fentanyl (14.27 grams versus 183 grams), and the accused was a youthful first offender.

[ 77 ] Finally, in R. v. Stulec, 2022 BCPC 301, the 43-year-old first-time offender pleaded guilty to trafficking fentanyl, and to two counts of possession for the purposes of trafficking involving cocaine, heroin, and fentanyl. Ms. Stulec was a participant in a dial-a-dope scheme involving street level sales to undercover operators. Ms. Stulec was working with her boyfriend, Mr. Lee, who was charged for multi-ounce sales of a heroin/fentanyl substance blend. He was preparing to complete a sale of 2 kilograms of cocaine and 1 kilogram of mixed heroin and fentanyl. Police seized $51,000 in cash, 703 grams of cocaine, 59.3 grams of a fentanyl/caffeine blend, 120.8 grams of a blend of substances including heroin, fentanyl, caffeine and phenacetin, and 21.26 grams of methamphetamine from Ms. Stulec and Mr. Lee's apartment. Mr. Lee, a mid-level trafficker who pleaded guilty was sentenced to 7 years.

[ 78 ] The Crown sought a three-year sentence for Ms. Stulec and the defence sought a conditional sentence. Ms. Stulec came from a difficult background and had a longstanding addiction to opioids. She was in a vulnerable relationship with Mr. Lee and sold drugs to support her addiction. She had recently successfully completed a three-month drug treatment program and had obtained work as a peer support worker.

[ 79 ] The sentencing judge imposed a 22-month conditional sentence order to be followed by 12 months of probation. In sentencing, the judge considered Ms. Stulec's personal vulnerabilities and that her primary role was engaging in street-level sales. The trial judge found she did not participate in the sale of large quantities of drugs to the undercover operator.

[ 80 ] Factors in Stulecs that distinguish it from this case include that Ms. Stulec had no criminal record, entered a guilty plea, and was found to be vulnerable to exploitation due to her addiction and difficult background. She was found to be a lesser actor in the drug trafficking scheme.

F. Aggravating and Mitigating Factors

Mitigating Factors

[ 81 ] Section 718.2 of the Criminal Code provides that in determining the appropriate sentence, a sentencing judge must consider any relevant aggravating or mitigating factors relating to the offence or the offender. The relevant mitigating factors include the following:

• Mr. Lewis has led a prosocial life for the last 20 years. He has strong familial support and has been described as a supportive and involved father.
• A custodial sentence will result in significant collateral consequences to Mr. Lewis and his young children. It will separate him from his children, and eliminate an import source of support for them.
• He was compliant with stringent bail conditions which he was subject to for 5 years.
• While he does not enjoy the mitigating effect of a guilty plea and acceptance of responsibility, the trial was brief and focused.

Aggravating Factors

[ 82 ] The relevant aggravating factors include the following:

• Mr. Lewis has a prior related criminal record. This is a statutorily aggravating factor pursuant to s. 10(2)(b) of the CDSA. However, his record is dated, and during the more than 20 years that Mr. Lewis remained offence-free (after being sentenced to 5 years in custody in 1996) he had stable employment and supported his family. This significant break in his criminal record mitigates the impact of his serious and related prior criminal record.
• The nature and quantity of the drugs involved. Mr. Lewis was in possession of two different types of hard drugs for the purpose of trafficking.
• In Lynch, at para. 16, the Ontario Court of Appeal emphasized that the moral culpability of an offender rises "with the risk of serious harm the trafficker is prepared to expose others to." Fentanyl is one of the most dangerous illicit drugs. It causes great harm, death, and destruction to individuals and to the community. Cocaine is also a potent drug that causes serious harm to individuals and the community. Mr. Lewis's moral culpability is very high having regard to the nature of the drugs he was in possession of for the purposes of trafficking.
• Mr. Lewis was involved in fentanyl trafficking activities at the multi-ounce level. The amount of fentanyl was 183 grams or approximately 6 ounces. Mr. Lewis was in possession of approximately 1 ounce of cocaine. The extent of potential harm that this amount of fentanyl could cause is a significant aggravating factor.
• Mr. Lewis was a mid-level trafficker motivated by the profit he could make. His conduct displays a lack of regard for other vulnerable individuals' addiction and suffering.
• Mr. Lewis demonstrated some level of sophistication, including using different rental vehicles in connection with the offence.

G. A Conditional Sentence is Not Appropriate

[ 83 ] Pursuant to s. 742.1 of the Criminal Code, there are five requirements which must be met before a conditional sentence can be imposed:

a) The offence must not be a specifically excluded offence;

b) There must be no minimum term of imprisonment;

c) The Court must impose of sentence of less than two years;

d) The safety of the community must not be endangered by the offender serving his sentence in the community; and

e) The conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Code.

[ 84 ] A conditional sentence is not available because a sentence of more than two years is required. A conditional sentence would not be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Code. A sentence of less than two years would fail to address the primary sentencing objective of denunciation and deterrence. A lengthy penitentiary sentence is required to reflect the gravity of the offence and the degree of responsibility of the offender.

[ 85 ] I agree with Justice Ghosh's conclusion in Jolly that the range of sentence having regard to the quantity of fentanyl in this case, 183 grams of fentanyl and 28.7 grams of cocaine, is generally between 8 to 12 years. [^2]

[ 86 ] In Lacasse, the Supreme Court emphasized that sentencing is a highly unique and individualized process that is informed by the principles and objectives of sentencing that are set out in sections 718, 718.1, and 718.2 of the Code. It is a subjective exercise that requires a judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43.

[ 87 ] Sentencing ranges assist sentencing judges to reach a proportionate sentence. However, a sentence outside of the ordinary range can be ordered if the sentence is fit and in accordance with the principles and objectives of sentencing: Parranto, at paras. 37-38. Individualization is central to the proportionality assessment. Each offence is committed in unique circumstances by an offender with a unique profile. The question is always whether the sentence reflects the gravity of the offence, the offender's degree of responsibility, and the unique circumstances of the offence. A court must also consider the needs of the community in which the offence occurred: Nasogaluak, at para. 44.

[ 88 ] As set out above, appellate courts have repeatedly held that possession for the purposes of trafficking such a large amount of fentanyl is a grave offence for which there is a high degree of moral blameworthiness. Generally such offences require a significant penitentiary sentence because of the severe harm caused by fentanyl trafficking related offences.

[ 89 ] Although I accept that rehabilitation remains a relevant and important consideration for Mr. Lewis who has remained offence-free for 24 years, to impose a conditional sentence would improperly emphasize rehabilitation. It would fail to reflect the primary sentencing objectives of denunciation and deterrence, or to clearly communicate the wrongfulness of poisoning people and communities: Parranto, at para. 60. It would be inconsistent with the principle of parity, which requires that similar offenders who commit similar offences in similar circumstances receive similar sentences. Such a sentence would constitute a substantial and marked departure from sentences customarily imposed for similar offenders committing similar crimes.

[ 90 ] While there are cases where courts have concluded that exceptional circumstances exist that justify a conditional sentence, this is not such a case. Despite the tragic impact to Mr. Lewis's family flowing from the consequences of his offending conduct, exceptional circumstances do not exist in this case that can justify a conditional sentence. Mr. Lewis is not a youthful first-time offender trafficking in small amounts of fentanyl. He was not vulnerable due to addiction or life circumstances. There is no evidence that he was manipulated or exploited. Mr. Lewis was a mid-level trafficker motivated by greed, and his conduct endangered the lives and safety of many.

H. Conclusion: A Proportionate and Fit Sentence

[ 91 ] I am required to impose a sentence that prioritizes denunciation and deterrence because of the terrible harms including loss of life caused by fentanyl and cocaine. Mr. Lewis chose to possess large amounts of these drugs for the purposes of trafficking for personal gain, indifferent to the harm they would bring to others. Only a penitentiary sentence can reflect the gravity of the offence and adequately denounce and deter his conduct.

[ 92 ] However, there are severe collateral consequences to Mr. Lewis and his young children that flow from the imposition of a penitentiary sentence. He will lose his employment, and his children will lose his care, companionship, and financial support. This is particularly troubling in respect of his young daughter who does not live with her mother and is in the care of a friend of Mr. Lewis.

[ 93 ] Recently, in R. v. D.B., 2025 ONCA 577, at paras. 12 and 13, the Ontario Court of Appeal reminded sentencing courts that collateral consequences "humanize and individualize sentencing by accounting for its effects other than the criminal sanction itself." In D.B. the Court cited R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, wherein the Supreme Court of Canada observed that "people lose jobs; families are disrupted; sources of assistance disappear", which "make[s] the rehabilitative path harder to travel", hinders "future re-integration," and can reduce the need for denunciation and deterrence.". In R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, the Supreme Court underscored that "a particular sentence [can] have a more significant impact on the offender because of his or her circumstances." Crafting a proportional and individualized sentence requires consideration of collateral consequences.

[ 94 ] Collateral consequences need not be unique or exceptional. They can be "foreseeable" or flow naturally from the conviction, sentence, or commission of the offence." The normal effects of a sentence can be mitigating even if not uniquely harsh. D.B., at para. 14.

[ 95 ] In determining a proportionate sentence I have taken into account both the aggravating factors, including the grave harms caused by fentanyl, and the mitigating factors, including that Mr. Lewis has complied with stringent bail conditions for 5 years and has lived a pro-social life supporting his family. In my view, a sentence of eight years would be an appropriate sentence less credit for time spent on restrictive bail and pre-trial custody, absent consideration of the severe collateral consequences to Mr. Lewis and his children.

[ 96 ] In my view, the significant hardship to Mr. Lewis's family warrants moderating the sentence length. Considering the significant collateral consequences to Mr. Lewis and his children, a sentence of seven years, less credit for time spent on restrictive bail and pre-trial custody is an appropriate and fit sentence.

[ 97 ] Time spent under stringent bail conditions, especially under house arrest, is a relevant mitigating factor that must be considered when determining the length of sentence. The amount of credit to be given is "within the discretion of the trial judge and there is no formula that the judge is required to apply." While many cases speak of providing "credit" for stringent bail conditions, pre-trial bail is conceptually a mitigating factor in assessing a fit sentence. However, it is not an error for a judge to achieve this mitigation by granting a Downes credit which is set off against the sentence that would otherwise have been imposed: R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.), at para. 37; R. v. C.C., 2021 ONCA 600, at para. 4.

[ 98 ] Mr. Lewis was subject to house arrest, except in the company of his surety and for medical emergencies or while in a treatment facility, between his release on December 12, 2020 until his bail was varied on August 24, 2022. Thereafter, the additional exceptions allowed him to be out of his residence without his surety only for employment, or to travel to and from employment. The Crown submitted that it would be appropriate to give Mr. Lewis one year credit for the five years he spent on these stringent bail conditions. I agree that this is an appropriate credit for the lengthy time Mr. Lewis was subject to the stringent bail conditions.

[ 99 ] Having regard to the mitigating impact of the very lengthy period that Mr. Lewis was on stringent bail conditions, and the three days of pre-trial custody, I am reducing Mr. Lewis's sentence by a credit for the stringent bail conditions and pre-trial custody of 365 days. As a result, I am imposing a 6-year sentence, which is the equivalent of 2190 days in custody. The sentence is concurrent on both counts.

[ 100 ] Such a sentence considers the gravity of the offences and the need for denunciation and deterrence, but also takes into account the significant gap in Mr. Lewis's record, his rehabilitative prospects, and the significant collateral consequences to his young children of the imposition of a lengthy penitentiary sentence.

Ancillary Orders

[ 101 ] In addition, there will be an order pursuant to s. 109(3) of the Criminal Code prohibiting Mr. Lewis from possession of any firearm, crossbow, restricted weapon, firearm part, ammunition, and explosive substance for life. A lifetime prohibition is mandatory due to Mr. Lewis's prior convictions for trafficking and possession for the purposes of trafficking.

[ 102 ] There will also be a DNA databank order on both counts. Possession for the purposes of trafficking is a secondary designated offence. In accordance with s. 487.051(3), I am satisfied that it is in the best interests of the administration of justice to require Mr. Lewis to provide a sample of his DNA having regard to his dated but related criminal record, the serious nature of the offences, the circumstances surrounding the commission of the offences, including the nature and quantity of the substances, and the limited impact such an order would have on Mr. Lewis's privacy and security of the person. As a result, Mr. Lewis is required to provide a sample of his DNA in accordance with the terms and conditions of the order.

[ 103 ] I am ordering that the fentanyl, cocaine, and phenacetin seized are forfeited for destruction. All cell phones seized from the apartment and the vehicle, the 3 digital weigh scales and drug packaging materials seized from the apartment, and the $1995 seized from Mr. Lewis are forfeited to his Majesty the King.

Justice M. Henschel

Released: February 13, 2026

[^1]: Section 718.2(a) sets out a number of statutorily aggravating factors, none of which are directly applicable in this case.

[^2]: Notably, in Parranto, the Supreme Court of Canada concluded that the national range of sentence for commercial trafficking of fentanyl is 8 to 15 years. Mr. Parranto and Mr. Felix were engaged in trafficking at a higher level and in larger amounts than the amounts involving Mr. Lewis. They were the directing minds of largescale fentanyl trafficking operations. Mr. Felix was a first-time offender. His sentence was increased from 7 to 10 years by the Court of Appeal and upheld by the Supreme Court. Mr. Parranto had a lengthy related criminal record. He was in possession of large amounts of fentanyl in addition to large quantities of other drugs, guns, and body armor. Following release from custody for the index offences, he reoffended by resuming his commercial trafficking activities. Mr. Parranto was of Métis background. Gladue principles were considered in determining the appropriate sentence. His 11-year global sentence imposed at first instance was found to be demonstrably unfit and the 14-year sentence imposed by the Court of Appeal was upheld by the Supreme Court (at para. 81).