ONTARIO COURT OF JUSTICE
COURT FILE No.: Toronto 4810-998-24-31106262 4810-998-24-31106263
BETWEEN:
HIS MAJESTY THE KING
— AND —
RASHID AL-HASAN
Before Justice Paul F. Monahan
Heard on May 8, 2025 and February 11, 2026
Reasons for Judgment released on March 10, 2026
S. Burdo counsel for the PPSC
K. Schofield and A. Singh counsel for the accused Rashid Al-Hasan
MONAHAN J.:
Introduction
1On May 8, 2025, Mr. Rashid Al-Hasan pled guilty before me to one count of possession of a restricted firearm contrary to section 95 of the Criminal Code (the “Code”) and possession of cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act (”CDSA”). The alleged offence date for both offences is May 31, 2024.
2The sentencing submissions were to have taken place on June 25, 2025 but were adjourned at the request of the defence so that the defence could consider seeking to put further evidence before the Court.
Facts
3An agreed statement of facts was marked as Exhibit 1. A further agreed statement of facts was marked as Exhibit 3. Mr. Al-Hasan also put an affidavit in on the sentencing and it was part of Exhibit 4. I will summarize the facts but the entirety of both agreed statement of facts and the affidavit of the defendant have been considered by me.
4On May 31, 2024 there was an interaction between people in two vehicles in a high school parking lot in Mississauga. One vehicle was a Nissan Rogue and the other vehicle was a dark coloured sedan. A man known as “Abooki” was the driver of the dark coloured sedan and he spoke to three persons in the Nissan Rogue and alleged that one of them had “called my boy’s sister a bitch”. The people in the Nissan Rogue then drove to 3427 Fieldgate drive where they parked in front of a grocery store. The dark coloured sedan followed them and Abooki said “you call my boy’s sister a bitch, watch what’s going to happen”.
The Handgun Threat
5Abooki made a phone call and about 3 to 5 minutes later a man later identified as Mr. Al-Hasan showed up in a Honda Civic. He exited the vehicle wearing a black ski mask and carrying a black satchel. He approached one of the people in the Nissan Rogue and said “I’ll put one in you right now, this is my block”. He had his hand on a firearm in the satchel when he made the threat.
6The Nissan Rogue then fled the parking lot and the Honda Civic followed the Nissan Rogue and drove to a parking lot at 3375 Ponytrail Drive. The parties in the Nissan Rogue identified the licence plate of the Honda Civic and called 911. The driver of the Honda Civic then approached one of the people from the Nissan Rogue and said “what did you expect, you called my sister a bitch”. Police soon located the Honda Civic and followed it to a parking lot at 5555 Eglinton Ave. E. in Mississauga. The defendant was the lone occupant of the vehicle.
Gun and Drugs in the Car
7The defendant was arrested for possession of a weapon for a dangerous purpose. A search incident arrest to led to the discovery of a glock semiautomatic handgun with nine rounds of ammunition in it. The firearm was in working order when test fired after seizure. It was located in a satchel on the front passenger seat. A black ski mask was also located as well as two cell phones in the backseat of the vehicle. Police located a reusable shopping bag with 10 kg of cocaine in the back seat.
Drugs in the Apartment
8A search warrant was obtained and executed for the registered address of Mr. Al-Hasan where he resides with his mother and sister.
9There were two bedrooms in the residence. In bedroom number one the police located Home Depot cardboard boxes containing 107 individually wrapped bricks containing a total of approximately 107 kg of cocaine. The packaging was the same as the packaging for the cocaine located in the Honda Civic. Police also located in bedroom number one a reusable grocery bag containing 3,865.4 grams of methamphetamine.
10In bedroom number two police located Mr. Al-Hasan’s passport as well as $1725 Canadian and three cell phones. On the floor of bedroom number two was a money counter.
Further Agreed Statement of facts
11As mentioned above, there was a second agreed statement of facts and it provided as follows:
12On May 4, 2024, Rana Saleh, the mother of the accused and Shahid, the sister of the accused, departed Canada on a flight to Jordan.
13On May 29, 2024, Mr. Al-Hasan was observed wheeling Home Depot boxes into the residence. Home Depot boxes located inside the residence were later determined to contain 107 kg of cocaine.
14On May 31, 2024, Mr. Al Hasan was arrested.
15On June 1, 24, a search warrant was executed at the residence.
16On June 9, 2024 Rana Saleh returned to Canada from Jordan.
17On June 22, 2024, Shahid returned to Canada from Jordan.
Value of the Drugs
18It was acknowledged on the plea that Mr. Al-Hasan was in possession of the 117 kg of cocaine for the purpose of trafficking and was also in possession of the 3,865.4 grams of methamphetamine for the purpose of trafficking.
19Expert evidence was filed and the facts admitted in the agreed statement of facts were that the cocaine ranged in value from $2,632,500 if sold at the kilogram level and $12,285,000 if sold at the gram level. It was further agreed that the methamphetamine if sold at the kilogram level was valued at $21,257.50 and if sold at the gram level was valued at $251,251.
Circumstances of the Offender
20Mr. Al-Hasan filed an affidavit on the sentencing upon which there was no cross-examination. I have considered the entirety of the affidavit but I will only briefly summarize it here.
21The defendant is currently 22 years old. He has no criminal record. At the time of the offences he was 20 years old. He is a Canadian citizen having been born in Ajax Ontario. He moved to Dubai where he resided from about age 2 until age 14. He says that his father extremely violent and abusive towards his mother and this was traumatizing for him and his sister. He felt helpless.
22The defendant returned to Canada when he was about 14 years old and by this point in time his father had cut off financial support for his mother. The defendant continued to love his father and visited him on occasion in Dubai.
23When his mother and sister returned to Canada they lived in Coldwater, Alberta where the demographic was almost entirely white. The defendant is a visible minority as a Middle Eastern male. His family ancestry is of Palestinian heritage. He felt isolated in Coldwater Alberta due to his cultural and linguistic differences. He grew depressed and anxious. In 2018 he moved with his mother to Mississauga Ontario where they currently reside and he said the neighbourhood is one of low income and high crime. He said he and his sister were raised by their single mother and they lived well below the poverty threshold. His mother worked long shifts including at Tim Horton’s. His mother refused to accept social support as it was religiously, culturally and morally inappropriate in the eyes of his mother.
24As his father was not around, he was thrust into the role of being a man of the house at a very young age. He wanted to protect and provide for his family.
25He completed high school was impacted by the pandemic causing all his schooling to be done remotely.
26He had aspired to go to college but given his financial situation it was possible. After the pandemic he obtained a job at an auto dealership where he worked as a parking lot attendant for a year. He also worked as a baggage handler at Pearson airport. He did his best to help his mother make ends meet.
27At some point he was involved in serious motor vehicle accident which resulted in chronic neck and back pain is no longer able to work at the airport as a result.
28He lacked positive role models and began to spend the majority of his time with older friends and negative peer associations which led him down “a short-lived path. My actions were spontaneous and I failed to comprehend the consequences behind my actions nor the harm such substances because the community. I was blinded by the allure of fast money, power and respect. I became a product of my environment and lost myself in the process.”
29He explains that his time in Canada was impacted by is islamophobia and anti-Palestinian discrimination. He says that systemic failures “forced … [him] to forego my hopes of a college education to earn an income and assess my struggling family”. He says that he has experienced racism and police harassment.
30He indicates that during the time he has been on bail, he has pursued educational opportunities remotely and has completed credits towards his accounting and payroll administrator diploma. I understand from his counsel that he has two more courses to successfully complete.
31Finally, he indicates in his affidavit that he spent 43 days in custody at Maplehurst subject to overcrowding, lockdowns leading to emotional psychological and physical challenges. He also explains that since the time of his release on bail he has been subject to a very restrictive failed. His bail has failed to permit him to visit his severely ill father and terminally ill grandfather in Dubai prior to his incarceration.
Report of Dr. Carolyn Abramowitz
32Dr. Abramowitz holds a PhD in psychology. She met with Mr. Al Hasan for nine hours of clinical interviewing. She also spoke by telephone with his mother and his sister. In addition, she reviewed the documents before the Court contained in the Exhibit 4 electronic zip file which included letters of support and other materials.
33I have had regard to the whole of Dr. Abramowitz’s report but I will mention only parts of it.
34Dr. Abramowitz found Mr. Al Hasan’s testing results for verbal and visual intellectual abilities to be in the 1st to the 3rd percentile which were notably lower-than-expected given his academic attainment.
35She found that it was possible that is low performance on these tests reflected the fact that they were not in his native language.
36His verbal memory was average to above average. He had signs of inattention but did not meet the criteria for attention deficit hyperactivity disorder (ADHD).
37She expressed the view that his cognitive results may be the result of prior recreational drug use. He apparently only gave up such drug use in September 2025. Improvements may occur in the future Dr. Abramowitz said.
38Mr. Al Hasan also does not meet the test for post traumatic stress disorder (PTSD) but he does show some aspects of it.
39Mr. Al Hasan does appear to meet the criteria for a major depressive disorder diagnosis although he is currently in remission. He has considerable anxiety but does not meet the test for a general anxiety disorder.
40Dr. Abramowitz says that “the combination of suboptimal problem-solving, inflexibility and impulsivity could have contributed to Mr. Al Hasan’s poor decision-making in that he may not be adept at coming up with a large number of options and considering the consequences before acting. His intellectual functioning, learning profile, impulsivity and difficulties with flexible problem-solving during the current assessment raise the possibility of limitations in cognitive maturity, particularly in situations requiring abstract reasoning, perspective taking and adaptation to changing demands.”
Positions of the Parties
41The Crown seeks a 13 year sentence on the possession for the purpose of trafficking in the cocaine of 117 kg and a consecutive two-year sentence on the possession of the firearm. The Crown submits that the total 15 year sentence it proposes takes into account the principles of totality as well as the Downes credit. The Crown also seeks a section 109 no weapons order and a DNA order as well as forfeiture of certain items. The Crown would deduct the 43 real days of presentence custody credited at 1.5 days for each day in custody for a total credit of 64 days.
42The defence seeks a six year sentence less credit for one year for Duncan/Marshall credit for harsh conditions during the 43 days the defendant spent at Maplehurst as well as for restrictive bail conditions (Downes credit) for his 581 days on bail.
Principles of Sentencing
General
43The fundamental principle of sentencing is set out in 718.1 and provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
44In R v Casselman 2014 ONCJ 198 at para. 3 Justice Paciocco, then a trial judge in the Ontario Court of Justice, had this to say about the sentencing process:
The fundamental principle of sentencing requires that to be fit any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s.718.1). This is achieved by examining the aggravating and mitigating circumstances that pertain both to the offence and the offender, bearing in mind established principles of sentencing, including those enumerated in the Criminal Code of Canada (s.718.2). The sentencing objectives suggested by this inquiry, selected from the sentencing goals listed in section 718, are then identified. Based on the selected objectives and always mindful of the principles of restraint contained in sections 718.2(c) – (e) of the Criminal Code of Canada the trial judge then selects a fit sentence that will best achieve those objectives and is similar to sentences imposed in similar cases.
Sentencing in Drugs and Gun Cases
45Generally speaking, when a court is called upon to sentence persons guilty of crimes involving both drugs and guns together, deterrence and denunciation “assume centre stage”: see R. v. Walters 2023 ONCA 4 at para 37 and R. v. DiBenedetto 2019 ONCA 496 at para 23. That is not to say that rehabilitation should be ignored. The point here is that drugs and guns together are a “toxic combination”: see R. v. Victoria 2018 ONCA 129.
46As concerns handguns, they are manufactured for the purpose of killing or maiming human beings. The “evils of handguns” are well known: see R. v. Dubajic 2023 ONSC 516 at para 16. This case is currently under appeal.
47The range of sentence for possession of a handgun for “true crime” purposes is 3 to 5 years: see Dubajic, supra at para 32 citing R. v. Crevier 2015 ONCA 619 at paras 128-129.
Sentencing Youthful Offenders
48The discussion and observations above regarding the approach to sentencing in drug and gun cases is subject to the law on sentencing youthful offenders. In R. v. Habib 2024 ONCA 430, the Ontario Court of Appeal reiterated the principles of sentencing for youthful first-time adult offenders. The Courts need to “hold young adults accountable for serious crimes that, like the ones the appellant committed, involve significant personal violence”. Significant prison terms may be necessary and “it is not always possible to avoid incarceration, impose only a very short prison term, or select the sentence at the low end of the range” (Habib para 30). The Court needs to recognize that older more sophisticated perpetrators might pray on young people and involve them in crime on the theory that they will not be imprisoned if caught. (Habib para 30).
49Nevertheless, Courts sentencing youthful first offenders must practice restraint and avoid imprisoning young adults where possible. When imprisonment is necessary “it also requires them to make the sentence as short as possible to achieve the principles and objectives of sentencing” (Habib para 31). They must also prioritize rehabilitation as the paramount sentencing objective. Courts should not “focus exclusively on denunciation and general deterrence or elevate those objectives above rehabilitation and specific deterrence” (Habib para 31). The Court stated further that “rehabilitation and individual deterrence remain the primary paramount objectives for violent first criminal offences”: see Habib para 38 and R. v. Brown 2015 ONCA 361 at paras 4-5, 7 and 10.
50In addition, the Court of Appeal in Habib observed further that “crushing sentences can endanger society by “hardening” young defendants into an antisocial path”. The Court also expressed concern that prisons sometimes struggle to rehabilitate young adults and prison can become a “finishing school” crime: see Habib para 35.
51In Habib the 19 year old defendant was carrying a handgun as a tool of his low level drug trade. The defendant plead guilty to three related gun offences. He was 19 years old and impulsively brandished the handgun in an altercation with a pizza store employee. His actions caused the employee to flee the store in fear and also left three bystanders fearing for their safety. The trial judge, in arriving at a sentence of four years, allowed denunciation and general deterrence to “eclipse” and “render secondary” the other governing principles including that rehabilitation and individual deterrence remain the primary and paramount objectives for violent first offenders (para 38 and 39). The trial judge also overlooked the settled principles governing sentencing youthful first time adult offenders. He failed to address the need to incarcerate the defendant for as little time as possible to achieve the governing sentencing principles and objectives. The trial judge also failed to consider the need to “preserve the [offender’s] family as much as possible” (para 48). The Court of Appeal in Habib reduced the sentence to 3 years.
52I will return to the question of how to apply the youthful offender sentencing principles in my discussion and analysis section below.
Specific Sentencing decisions in Drug cases
53I will review some of the sentencing decisions in drug cases.
54The Courts have recognized that cocaine and methamphetamine are “extremely dangerous” and are “highly addictive” and destroy lives: see Dubajic, supra at para 16.
55In the recent case of R. v. Macias and Popovich 2025 ONSC 5456, Justice Boucher of the Superior Court of Justice reviewed the law on sentencing in drug cases and derived certain principles from the case law. He noted that the sentencing range for cases involving more than a pound of cocaine (more than half a kilogram) was 5 to 8 years.
56For larger amounts of cocaine in the multi-kilogram category, Justice Boucher said that there is no set range or “tariff” but that sentences can be higher than the 5 to 8 year range including up to life imprisonment. Justice Boucher observed that importing cases “may reflect a higher sentencing range because of “national and international security interests”. Nevertheless, Justice Boucher stated that the importing cases can be useful comparators. For example, he noted that In R. v. Buffone 2021 ONCA 825 the Court of Appeal increased the sentence to life imprisonment from 20 and 22 years for the two defendants who had imported two tons of cocaine over a three year period. See also R. v. Malanca 2007 ONCA 859.
57The Court in Popovich also noted at para 11 that even in cases where there was no importing, where there are very large amounts of cocaine, most offenders receive very significant sentences in the double-digit range. The Court referred to, among other cases, R. v. D’Onofrio 2012 ONSC 195 affirmed 2013 ONCA 145, R. v. Buttazzoni 2019 ONCA 645, Dubajic, supra, and R. v. Jageshur 2014 ONSC 5822 affirmed 2017 ONCA 15 all of which are discussed further below.
58I note that Mr. Popovich, was 49 years old and without a criminal record. He pled guilty to possession for the purpose of trafficking of 494 kg of methamphetamine and 151 kg of cocaine. The Court found that Mr. Popovich was “somewhere on the continuum of control above couriers, trusted enough to be in possession of very valuable items”. He was sentenced to 13 years concurrent on all charges (i.e. for possession for the purpose of trafficking for both the cocaine and the methamphetamine).
59In Dubajic, supra, Justice Schreck made similar observations to those made by Justice Boucher in Macias and Popovich. In particular, Justice Schreck observed at para 34 of Dubajic that possession of multiple kilograms of cocaine often results in high single digit or double-digit penitentiary sentences. In this regard, Justice Schreck referred to R. v. Maone 2020 ONCA 461; R. v. Nero 2008 ONCA 622; R. v. Brissett 2019 ONCA 11; R. v. Sandhu 2016 ONSC 7946 affirmed 2020 ONCA 479 (sentence appeal abandoned); and R. v. D’Onofrio 2012 ONSC 195 affirmed 2013 ONCA 145.
60In Dubajic, supra, Justice Schreck was called upon to sentence someone found guilty after trial of possession of 106 kg of cocaine, 5 kg of fentanyl, 30 kg of crystal methamphetamine and 4 kg of MDMA, all for the purpose of trafficking. In addition, he had 57 handguns, eight long guns and 15 rounds of ammunition. There was a 73 count indictment. The accused was a 47 year old painter with no criminal record. He received a global sentence of 18 years less “Summers” and “Duncan” credit. I will review some of the underlying cases cited by Justice Schreck in Dubajic
61In Maone the case involved four transactions totaling 3.5 kg of cocaine. There was a plea of guilt and a dated criminal record. A global sentence of seven years was imposed.
62In Nero, the trial judge imposed a sentence of three years on a theft of $2.7 million involving an armoured car and four years on drug charges which the defendant was found guilty of and which involved two incidents of trafficking in 1 kg of cocaine as well as possession for the purpose of trafficking as concerns a further kilogram of cocaine. The Court of Appeal held stated that the appropriate sentence on the drugs should have been eight years. The sentence on the theft was appropriate. Taking into account the principle of totality, the overall sentence for the drugs that should have been imposed was nine years. In this regard I note that the defendant was 31 years old at the time of sentencing and had an unrelated record for domestic violence.
63In Nero, the Court of Appeal indicated that the trial judge’s reliance on the case of R. v. Bajada was an error. In Bajada at para 13, the Court of Appeal said that “sentences of 5 to 5 and half years are not uncommon for possession of a substantial amount of cocaine for the purpose of trafficking” following a plea of guilt or where the accused is no criminal record. The Court of Appeal in Nero noted that Bajada case involved only one possession for the purpose of trafficking charge involving half a kilogram of cocaine whereas the Nero case involved trafficking and possession charges over a three month period and involved 3 kilograms of cocaine.
64In R. v. Brissett, the Ontario Court of Appeal upheld a 10 year sentence for a possession for the purpose of trafficking in cocaine involving 15.6 kg. The defendant had a previous conviction, albeit dated, for possession for the purpose of trafficking in cocaine. The Court of Appeal in Brissett at para 22 described 15.6 kg of cocaine as “huge”. It must follow that the 110 kg of cocaine involved in the case before me can fairly be described as enormous. Superlatives or adjectives do not fully capture the point.
65In R. v. Sandhu 2016 ONSC 7946 affirmed 2020 ONCA 479 (sentence appeal abandoned), there were four accused persons who were sentenced. Mr. Iqbal and Mr. Sandhu were both convicted of trafficking in 43 g of cocaine on two separate days. Neither had any criminal record. Mr. Iqbal was 43 years old and was said to be the mastermind and he received a sentence of 12 years. Mr. Sandhu was 40 years old at the time of sentencing and was said to be an active participant. He received 11 years. Mr. Alexiou was 40 years old. He was convicted of possession of 33 kg of cocaine for the purpose of trafficking. He was a courier or “just above”. He had picked up the cocaine at the airport. He was sentenced to 10 years. Mr. Sharma was found guilty of possession of cocaine the amount of 10 kg for the purpose of trafficking. He played a lesser role. He was sentenced to six years.
66In R. v. D’Onofrio 2012 ONSC 195 affirmed 2013 ONCA 145, the trial judge imposed a 15 year sentence after trial for possession of cocaine in the amount of 112 kg for the purpose of trafficking. The accused was 46 years old at the time of sentencing with a spouse and two children. The defendant’s role was that of a courier. He had a criminal record for a conviction in 1994 for possession of 10 kg of cocaine for the purpose of trafficking for which he received a sentence of 6 years.
67In D’Onofrio, Justice Ratushny observed that possession of cocaine for the purpose of trafficking has given rise to sentences in the range of 4 to 10 years but she observed that none of the cases she had reviewed involved cases of such a large magnitude of cocaine as in the case before her (111.85 kg). Justice Ratushny recognized that the quantity of cocaine could not be the “singular driving force behind the sentence imposed” but nevertheless she stated that it was a “significant aggravating” factor. Justice Ratushny imposed a 15 year sentence.
68The 15 year sentence imposed by Justice Ratushny in D’Onofrio was upheld by the Court of Appeal. The Court of Appeal called the quantity of 112 kilograms of cocaine was “unprecedented” and referred to the fact that the appellant had a record for precisely the same offence.
Other Cases referred to by the Crown
69The Crown referred to other cases which included the following: in R. v. Malanca 2007 ONCA 859, the accused was found guilty at trial of conspiracy to import cocaine and importing in the amount of 270 kg of cocaine. The accused was a first-time offender, age 26. The Court of Appeal set aside a life sentence and imposed a sentence of 19 years.
70In R. v. Buttazzoni 2019 ONCA 645 a 17 year sentence imposed by the trial judge was reduced to 15 years. The offence involved conspiracy to import cocaine and possession of cocaine for the purpose of trafficking. There was 112 kg of cocaine. The accused had a record for conspiracy to possess to distribute marijuana the United States in 2008. The accused did not have any involvement with the cocaine until it was delivered Ontario. He also did not have involvement in making arrangements for the importation. This was the role of the co-accused who pled guilty and the co-accused received a 17 year sentence. The Court of Appeal reduced Buttazzoni’s sentence to from 17 to 15 years taking into consideration the lesser role played by Buttazzoni.
71In R. v. Jageshur, supra, the defendant was found guilty of possession for the purpose of trafficking in cocaine. He received a sentence of 13 years. He was in possession of 18 kg of cocaine but was treated as having 30 kg as that was the amount he intended to possess. He had a loaded handgun with him when he committed the offence of possession of 30 kg of cocaine for the purpose of trafficking. He had a serious criminal record including a conviction for trafficking in cocaine in the year 2000 and the finding of guilt against him in 2014 came after a trial.
Defence cases
72The defence referred to a number of cases including the cases reviewed below. The case of R v Epp 2006 BCCA 570 involved a 35-year-old who was married with two young children. He had no prior criminal record. He pled guilty to importing approximately 100 kilograms of cocaine into Canada. The trial judge sentenced him to 14 years. The B.C. Court of Appeal rejected the conclusion of the trial judge that the range for offenders such as Mr. Epp was 12 to 16 years and reduced the sentence to 10 years on appeal. The Court of Appeal considered Mr. Epp’s role less egregious than high-level traffickers, noting mitigating factors such as his lack of criminal history, guilty plea, and family responsibilities, despite aggravating factors like cross-border smuggling and evading arrest. The Court of Appeal found it important that the defendant was a transporter of the drugs, not an owner of them. The Court of Appeal also stated at para 18 that although the quantity of the drugs was a “factor in sentencing, [it] should not be over emphasized”.
73In R v Couture [2009] O.J. No. 5822, the defendant was a 29-year-old truck driver with no criminal record. He pled guilty to importing 120.7 kg of cocaine into Canada. The Court accepted that he was paid $28,000 to transport the drugs which had a street value of $12 million dollars. He was sentenced to 12 years. The mitigating factors were that the defendant was still a “young man” (but not a youthful offender), he had no record and had pled guilty. The court emphasized the seriousness of cross-border smuggling and the concealment method used.
74In R v Bacon 2013 BCCA 396, the defendant was found guilty after a trial of conspiracy to traffic 100 kilograms of cocaine. The defendant’s role was central in negotiating and financing the drug acquisition and distribution of the cocaine. The defendant had a significant criminal record and showed no remorse. He was involved in an ongoing criminal operation while on bail.
75The trial judge sentenced him to 12 years. The British Columbia Court of Appeal found this sentence to be unfit and raised it to 14 years. The Court of Appeal stated that the trial judge was in error when he failed to consider importing cases. The case before the court while involving conspiracy to traffic in cocaine was similar to some of the importing cases.
76In R v Kang 2009 BCSC 1827, [2009] B.C.J. No. 2666, after a trial the defendant was found guilty of possession for the purpose of trafficking and importing into Canada 100 kilograms of cocaine hidden among produce. He was 31 years old with a spouse and a six year old child. He had no prior record and had acted solely as a transporter of the cocaine. The sentence would fall more harshly on his spouse and child. He was sentenced to eight years on each of the two charges with them being concurrent to one another.
77In R v Swanson [2012] S.J. No. 767, the offender was a paid as a courier to transport 450 kilograms of cocaine into Canada. He made six trips. On the last trip, he was found with 150 kg of cocaine. He pled guilty to the importing charge (450Kg) and the possession for the purpose of trafficking charge (150 kg). Swanson, was a 26-year-old with no criminal record. He was only 23 years old time of the offences. He had a girlfriend and a child. Was involved in multiple trips and motivated by profit. Although he was a courier and had mitigating factors such as a guilty plea and good rehabilitation prospects, the court stressed the scale and sophistication of the operation and the need for deterrence. The defendant was sentenced to 11 years on the importing charge and 11 years concurrent on the possession of the purpose of trafficking charge.
78In R v Mok [2017] O.J. No. 3758 Justice McMahon handed down what amounted to a five year sentence for possession of 10 kg of cocaine for the purpose of trafficking. The defendant pled guilty and a joint submission was put forward. The defendant received credit of 12 months for pretrial custody and another 14 months for a restrictive bail. The total credit was therefore 26 months. He was sentenced to a further 34 months which amounted to an effective sentence of five years. He had a record for cultivation of marijuana for which he had received a conditional sentence.
79The defence also referred to R v Nasogaluak 2010 SCC 6 and R v Lacasse (2015 SCC 64, [2015] 3 S.C.R. 1089), for the proposition that sentencing ranges are guidelines rather than strict rules. Judges may impose sentences outside established ranges including where justified by the offender’s circumstances and the principles of sentencing. Sentencing remains an individualized process that considers, among other things, the gravity of the offence and the offender’s responsibility.
Discussion and Analysis
80Let me say at the outset of this discussion and analysis section that, generally speaking, importing cocaine is considered to be more serious than possession for the purpose of trafficking: see R. v. Bajada at para 10. See also R. v. Popovich supra at para 10. In addition, it would appear as well that actual trafficking is worse than possession for the purpose of trafficking.
The Offender’s Degree of Responsibility
81In seeking to arrive at an appropriate sentence, the court considers the offender’s degree of responsibility. In this case, the Court needs to consider where Mr. Al-Hasan fits in the drug hierarchy. He was only 20 years old at the time of the offences, barely out of high school. The evidence simply does not establish that he was a directing mind behind a $12 million dollar trafficking operation. His behaviour in carrying a loaded handgun in connection with the alleged disparagement of his sister and while driving a motor vehicle with an easily visible licence plate shows a total lack of sophistication, a lack of maturity and judgment and a high degree of carelessness. These are not the actions of a man directing a major drug operation.
82However, like the defendant in the Dubajic case, supra, Mr. Al-Hasan has to accept a significant “degree of responsibility” because, at a minimum, he agreed to store items which he must have known, or was wilfully blind to the fact, of the great harm that would be done to those who would purchase and use the cocaine. Similarly, like the defendant Popovich in the Macias and Popovich case discussed above, I consider that Mr. Al Hasan was somewhere on the continuum of control above a courier as he was trusted to be in possession of very valuable property. I accept that he was following the allure of fast money and he likely did not give great thought to the harm he was causing. There is also no doubt that he did what he did for money. He prioritized his own greed above the welfare of others who would be harmed by the huge quantity of drugs he possessed for trafficking.
83The defence argues that he was only in possession of the drugs from May 29 when he is seen moving the Home Depot boxes into the apartment until May 31 when he was arrested. It is not clear to me how long he was in possession of the cocaine but from the Crown’s perspective they can only establish that he was in possession of it for two days.
Other Aggravating factors
84In addition to his degree of responsibility, the aggravating factors are the enormous amounts of cocaine involved (117 kg) and the purity of the cocaine which was more than 93%. In addition, the defendant was moving 10 kg of cocaine when he was arrested. Further, he was in possession of a loaded handgun which was used to threaten people and as a tool of the drug trade. The “toxic combination” of drugs and guns is present here. I infer as well that it would take more than a little bit of planning to get 117 kg of cocaine and then move the drugs into the apartment where he was living. It would also take planning to obtain a loaded handgun.
Mitigating factors
85There are significant mitigating factors in this case. Mr. Al Hasan was youthful at the time he committed the offence and he is still youthful. He is currently 22 years old and he was 20 years old at the time of the offences
86Mr. Al-Hasan has no criminal record. It is further mitigating that he has stepped up and pled guilty and has taken responsibility for his actions. I do recognize that the Crown had a strong case but nevertheless the plea of guilt will free up court time and I accept it as a significant sign of remorse. It will save the Crown and the Court significant resources.
Points Derived from the Case Law
87If one looks at the case law in similar cases, putting aside that Mr. Al Hasan was a youthful offender and putting aside the possession of the handgun, the offence of possession for the purpose of trafficking of more than 100 kg of cocaine alone would attract a sentence of at least 10 years. See for example D’Onofrio, supra, (15 years for 112 kg of cocaine and a prior record of possession of 10 kg for the purpose of trafficking); Popovich, supra, (13 years for possession for the purpose of trafficking in the amount of 151 kg of cocaine and 494 kg of methamphetamine); Brissett, supra, (10 years for possession for the purpose of trafficking involving 15.6 kg of cocaine and a record for having done it before); Sandhu, supra, (where Alexiou was convicted of possession for the purpose of trafficking in the amount of 33 kg of cocaine and he received a sentence of 10 years. He was said to be just above a courier); Buttazzoni, supra, (he had a criminal record for intent to distribute marijuana and he was sentenced to 15 years for conspiracy to import and possession of cocaine in the amount of 112 kg for the purpose of trafficking); Jageshur (who received a sentence of 13 years for the possession of 30 kg of cocaine for the purpose of trafficking. He had a serious criminal record including a conviction for trafficking in cocaine in the year 2000): and Bacon, supra, received 14 years for conspiracy to traffic 100 kg of cocaine and he had a significant criminal record and showed no remorse.
The Application of Principles of Sentencing Applicable to Youthful Offenders
88One of the significant points that must be taken into account here is the fact that Mr. Al Hasan was a youthful offender of only 20 years old at the time he committed these offences. I have set out the youthful offender principles above. It is useful and instructive to examine how our Court of Appeal has applied these youthful offender principles.
89In R. v. Brown, supra, the defendant was convicted of offences committed during a home invasion including beating a person with a gun. He was sentenced for robbery, robbery with a firearm and aggravated assault. The defendant was 18 years old at the time and was a first offender. The Court of Appeal said that while individual deterrence and rehabilitation are primary objectives in sentencing a youthful offender, “the importance and weight of other factors increase with the seriousness of the crime”. The trial judge sentenced the defendant to 7 years on the robbery charges and 2 years consecutive on the unlawful possession of the firearm. The Court of Appeal said that the 7 year sentence was “entirely fit” as home invasion sentences ranged from 4 to 5 years at the low end up to 11 to 13 years at the high end. The Court of Appeal held that the 2 year sentence for the gun possession was also reasonable but said that it should have been concurrent. The sentence was therefore varied from 9 years to 7 years to reflect that specific deterrence and rehabilitation remained paramount.
90In Habib, the defendant pled guilty to three gun charges. He brandished a gun in an altercation with a pizza store employee. He pled guilty and had no record. The defendant was 19 years old at the time of the offence. The trial judge sentenced him to 4 years on the gun charges. The Court of Appeal reduced the sentence to 3 years because the trial judge had failed to consider and apply the principles of sentencing for youthful offenders. The Court noted that in R. v. Samaniego, 2020 ONCA 439, a 25-year-old man had received a four-year sentence for a very similar offence. The reduced level of maturity of Habib and his age of only 19 led the Court of Appeal to conclude that a three year sentence was the appropriate one for him.
91In R. v. Desir 2021 ONCA 486 the defendant pled guilty to three counts of robbery with a restricted firearm as well as other offences. The Court of Appeal reduced the overall sentence from 7 years to 6 years by reason of the failure of the trial judge to exercise restraint in the sentencing of a youthful offender. The defendant was only 16 years old at the time of the offences but he was sentenced as an adult.
92In Brown, Habib and Desir, the Court of Appeal makes it clear that when sentencing youthful offenders the primary objectives are rehabilitation and individual deterrence. Nevertheless, these cases also make it clear that general deterrence and denunciation become more significant for more serious offences. The triaI judge in each of Brown, Habib and Desir failed to properly and fully consider the sentencing principles for youthful offenders. Each case must of course be determined on its own facts but I note that the Court of Appeal reduced the sentence in each of Brown, Habib and Desir to reflect the fact that the defendant was a youthful offender but the sentences were only modestly reduced in this regard. The Court of Appeal still imposed significant sentences based on the serious nature of the crimes committed. Brown received a reduction from 9 to 7 years; Habib’s sentence was reduced from 4 to 3 years and Desir’s sentence was reduced from 7 to 6 years.
The Appropriate Sentence in the Case at Bar
93The Crown seeks a total 15 year sentence (13 years on the drug charge and 2 years consecutive on the gun charge). In my view such a sentence does not take into account the case law in this area, and the fact that Mr. Al Hasan is a youthful offender who pled guilty and had no criminal record. Nor does it consider totality. This Court must impose a sentence which is as short as possible and necessary to achieve the principles and objectives of sentencing. This Court must prioritize rehabilitation as the paramount sentencing objective while not ignoring the need for denunciation and deterrence given the gravity of the offences before the court.
94On the other hand, the global six year sentence proposed by the defence for the drugs and gun offences is much too low.
95As my review of the case law above indicates, a non-youthful offender without a firearm would receive at least 10 years for the drug offence committed by Mr. Al-Hasan. A 6 year global sentence for a youthful offender would fail to properly consider the seriousness of the crimes in the case at bar including that they involve the presence of a handgun and drugs together and this is aggravating. A 6 year sentence would fail to balance the need to prioritize rehabilitation and individual deterrence while not ignoring the need for denunciation and general and specific deterrence because of the seriousness of the offences.
96I recognize that the quantity of cocaine in this case was enormous as I have already said. However, I think it is important not to become mesmerized by the amount of cocaine involved when the court is seeking to balance the sentencing objectives of rehabilitation, specific deterrence, general deterrence and denunciation. As Justice Ratushny observed in D’Onofrio, the amount of the cocaine should not be the “singular driving force behind the sentence imposed” but it should be a significant aggravating factor nonetheless.
97The Supreme Court has urged trial judges to (i) determine the appropriate sentence for each offence; (ii) determine whether the sentences should be concurrent or consecutive; and (iii) then turn to consider the principle of totality: see R v Bertrand Marchand 2023 SCC 26 at para 91. The Supreme Court of Canada in Bertrand Marchand noted that the principle of totality is captured under section 718.2(a) of the Code, which provides that “the cumulative sentence rendered does not exceed the overall culpability of the offender”.
98In my view, before considering the question of totality and considering all of the circumstances including the aggravating and mitigating factors including the youthfulness of Mr. Al Hasan but also recognizing the toxic combination of drugs and guns, the appropriate sentence for Mr. Hasan on the drug charge only (possession for the purpose of cocaine trafficking charge) would be a 9 year sentence and a 3 year sentence for the section 95 gun offence, to be served consecutively.
99I have concluded that the sentences for the drug offence and the gun offence should be served consecutively as these are entirely separate offences (see R. v. Graham 2018 ONSC 6817 at para 43 appeal dismissed 2020 ONCA 692). I do recognize that the presence of a gun is aggravating on the drug offence and the presence of the drugs is aggravating on the gun offence. This will be taken into account by applying the totality principle.
100Considering the question of totality, I would reduce the 9 years for the possession for the purpose of trafficking charge to 8 years. I would reduce the 3 years on the gun offence to 2 years to reflect totality and to recognize that the Crown sought only 2 years on the gun charge after taking into account totality. Therefore, the total sentence will be 8 years for the drug offence and 2 years consecutive for the gun offence. The total sentence therefore is 10 years.
101I recognize that the Duncan/Marshall and Downes credit are mitigating factors which do not necessarily have to be separately calculated but that it is not wrong to do so. As concerns the Duncan/Marshall credit, given the difficult conditions at Maplehurst I would give credit of two days for each day served. He was in custody for 43 days and therefore will receive 86 days presentence custody. In addition, he was on a strict bail for 581 days. I would give credit of 150 days for the strict bail conditions.
102The total sentence is 10 years. I calculate that as 3,650 days. This is 2920 days on the drug charge and 730 days consecutive on the gun charge. I would deduct from that 236 days. The net sentence left to serve is 3,414 days.
103There will also be a section 109 order for life and a DNA order. I will also consider the Crown’s request for a forfeiture order.
March 10, 2026
Signed: Justice Paul F. Monahan