Court File and Parties
Court File No.: CR-20-90000117 Date: 20240625 Superior Court of Justice – Ontario
Re: R. v. Sodiq Lawal
Before: Justice S. Nakatsuru
Counsel: A. Pinnock, Counsel for the Crown D. Sederoff, Counsel for the Defendant
Heard: January 10, 2023, June 11, 2024
Endorsement
[1] Mr. Lawal, you pled guilty to three counts of trafficking in fentanyl on March 14, 15, and 18, 2019, and one count of possession of fentanyl for the purpose of trafficking. The offences were committed over five years ago. Much time has passed since then. The world has been through a lot. Including a global pandemic. Which we are now on the other side of. But what has not changed for the better is the fentanyl pandemic. We remain in the throes of all the damage and harm it is wreaking in our communities.
[2] I must now pass sentence on you for your crimes.
[3] The facts are straightforward. You sold fentanyl to an undercover officer three times. In various amounts: 0.29 grams for $60, 0.5 grams for $100, and 0.4 grams for $100. You were arrested. You had $180 and multiple cellphones on you. A search warrant executed on the unit that you lived in uncovered 30.96 grams of fentanyl in six separate baggies, scales, and plastic packaging. The expert report confirms that this amount was for the purpose of trafficking. The value of that amount of fentanyl was $5,571 to $6,809.
[4] The Crown is seeking four years. After credit for pretrial custody of seven days and considering the time spent under restrictive bail conditions, the Crown submits the sentence should be three years and two months. The defence is seeking a conditional sentence.
[5] In deciding the sentence, I must look to the sentencing law. At its very basic, the sentence must be a fit and proportionate sentence considering the seriousness of the offence and the degree of your responsibility in it. It must meet the objectives of sentencing. It must consider the appropriate sentencing principles. It must consider all the relevant factors including aggravating and mitigating circumstances.
[6] I will set out globally the aggravating and mitigating factors.
[7] Aggravating factors include the nature of the drugs. Fentanyl. These days, little more need be said. So many judges have spoken so much about how dangerous the drug is. I, myself, did so in a decision called R. v. Tonkin, 2023 ONSC 2139.
[8] But I will say this for your benefit, Mr. Lawal, as it seems from the materials on sentencing that you did not quite understand the seriousness of your crimes.
[9] People who buy and use fentanyl have lives beyond the few seconds or minutes that drug traffickers see, in their relatively brief transactions with them. Those lives can be burdened with suffering. From an addiction or a dependence to the drug. From whatever that has happened to them in their past and present lives that causes them to seek the opioid’s embrace. The dealer profits from that. It is in the drug dealer’s interest to feed addictions and addict more people. It is fair to describe it as a form of modern-day enslavement done for greed. Plus, each time a dealer sells to a victim…and they are indeed as much a victim as victims of violent crimes…the dealer gambles with their lives. Some victims are no longer with us because they have overdosed. And the victims are many. Far too many. The sale of fentanyl has become widespread. So, those who sell fentanyl are in a category of offenders who are treated severely by the law. Those who sell or are tempted to sell fentanyl must be deterred from doing that. Moreover, given the ravages of fentanyl use on people and neighborhoods, the public looks to the courts to denounce those who are directly involved in creating such misery.
[10] That all said, I recognize that perhaps fentanyl use is a health problem that ultimately needs a health solution. But the criminal law must do its part.
[11] Aggravating as well, I am sentencing you for several trafficking offences. Though, I am mindful that these were street-level deals to the undercover officer. The amount of fentanyl that you had in your home was not insignificant, but in the circumstances of this case, it still was not beyond the amount that would put you at a much higher level than the retail trafficker that the facts of the trafficking reveal: R. v. Haye, [2013] O.J. No. 6493 (S.C.J.), at para. 11, citing R. v. Okash, 2010 ONCJ 93, at para. 14. Nonetheless, the amount of fentanyl you possessed for the purpose of trafficking is a major aggravating factor. Given the totality of the evidence, I am satisfied beyond a reasonable doubt that this trafficking and possession for the purpose of trafficking was an ongoing and consistent venture done by you for profit. To your credit, you do not deny this.
[12] You have a criminal record, but the Crown fairly does not rely on it as an aggravating factor. I agree. It is minor and unrelated. In 2018, you were convicted for failing to attend court, using a forged document and obstructing police, for which you were fined, and sentence was suspended.
[13] There are many mitigating factors.
[14] One is your plea of guilty. Through it, you have shown your remorse. It is an important mitigating factor. Guilty pleas in this day and age, have impact. The courts have overburdened dockets. The public is concerned that the constitutional right to a trial within a reasonable time is respected. A guilty plea not only shows remorse, but it is also an acceptance of responsibility that has great benefits to the administration of justice.
[15] While you are not quite a first offender, your background is nearly unblemished. In addition, you were young at the time of the offence. Twenty-two years old. You are still only 26 years old.
[16] The Morris factors have a mitigating effect: see R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at paras. 75-81, 87-107. I will not go on at length about the nature of a Morris analysis. I will just say this. Being Black and subject to racism, both in your life and systemically, does not give you an automatic sentence reduction. There are no race discounts in the law. However, social context considerations can play a role in fashioning the right sentence. I must look at these factors, how they are tied into you and your offences, and what effect, if any, they may have in diminishing your moral blameworthiness for the crimes and how to balance the various sentencing objectives.
[17] In your case, I have no doubt you have suffered from systemic anti-Black racism. The Enhanced Presentence Report (EPSR) completed by the Sentencing and Parole Project was most helpful. In looking at the report, there are several things in your past that are connected to who you are as an offender and to the crimes that you did.
[18] Your family originated from Nigeria. Clearly, your father’s abandonment of his family when you were 12 years old led to poverty, a lasting psychological impact on you, and the absence of guidance and mentorship as you entered your formative years. While there was a single attempt by your father to reach out to you when you were in Grade 10, for probably very understandable reasons, that did not take. Your father then suddenly died of a heart attack in 2015. This had a traumatic effect on you. As well, as the eldest son, you felt you had to become the man of the family. I am sure you keenly felt the responsibility to help as much as you could.
[19] This and your mother’s own emotional difficulties in dealing with the break-up led to a situation where you had to move into subsidized housing, in a predominantly Black neighborhood, where your mother had to resort to social assistance to survive. The neighborhood had its share of social ills. Systemically, poverty has disproportionately affected Black communities in the City of Toronto for many years. As observed by the EPSR writer, your crimes seem to be “rooted” in your desire to help your mother escape her socio-economic situation.
[20] When you finished high school, you had a desire to become a plumber. However, you became demotivated at college and did not finish. While I lack sufficient detail to closely connect your lack of progress in your educational efforts to systemic discrimination, I know that such discrimination exists: R. v. Morris, 2018 ONSC 5186, Appendix A. I also know that it remains a relevant consideration on your sentencing.
[21] It is when you dropped out of college and were unable to get secure employment, that you were introduced by the “wrong people” to make fast money illegally. As the EPSR writer notes, a systemic bias that favours white over Black jobseekers, could not have helped your search for good paying work. Additionally, Black individuals face a rate of unemployment twice that of their white counterparts. All that said, you made a choice. You did not turn to dealing drugs to feed an addiction. Rather, you chose to make easy money by illegal means. This was a very wrong choice.
[22] This choice was very surprising to those who know you as the EPSR sets out. You have and continue to have strong family support. Your mother, sister, uncle, and cousin still believe in you and are there for you. They describe how your crimes are very much out of character for you. You say in the report that you know you cannot change your past, but you are very sorry and do not want to be involved in crime in the future. The EPSR writer concludes that redemption is feasible for you given that you do not have a lengthy criminal record, you have managed to comply with your bail conditions, and have a supportive family.
[23] I find all of this mitigates and lessens your moral blameworthiness.
[24] Additionally, your lawyer relies heavily on the time spent on bail. You have been on bail for a very long time. Over five years. Most of that was under house arrest with narrow exceptions while in the company of your surety or for emergencies. You did not provide an affidavit about the effects of that but from the circumstances (for example, it was for the whole duration of the pandemic) and what is revealed in the EPSR (for example, you really have not been able to get work), I find that the restrictions on your liberty and your life have been substantial. This surely is a significant mitigating factor. I will treat it that way.
[25] But there is a limit to how much I can take that into account in my sentence. Particularly punitive pretrial incarceration conditions or bail conditions are essentially mitigating factors; although they can be quantified in specific numbers, they are not really “credits” to be deducted from a fit sentence: R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at para. 108. Therefore, because it “is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors”: R. v. Marshall, 2021 ONCA 344, at para. 52.
[26] In your case, the pretrial bail conditions along with the other mitigating factors brings your sentence below the sentences given in other cases relied on by the Crown for this type of offence. Indeed, quite fairly, the Crown argues for a sentence that is at the low end because of the mitigating factors.
[27] Despite the mitigating factors, which are numerous and weighty, in my opinion, they still cannot bring the fit sentence into the reformatory range if I am to respect the objectives and principles of sentencing. Even the lengthy time on bail with significant restrictions cannot. The sentencing range, given the severity of this type of offence and despite the mitigating factors, remains in the penitentiary range. I have closely looked at the caselaw given to me by the Crown and your lawyer. Also see the recent case of R. v. Campbell, 2024 ONSC 2220, at paras. 37-51 where Justice Boswell canvasses a number of fentanyl sentencing cases and considers the ranges of sentence for various fentanyl amounts. While ranges can be departed from and conditional sentences can be exceptionally given for fentanyl trafficking, I am not persuaded that the circumstances in your case justify it. The multiple trafficking and the possession of an ounce of fentanyl for the purpose of trafficking charges, despite all the mitigating factors, requires a penitentiary sentence. The cases that guide me requires me to impose one. The cases your lawyer gave to me where conditional sentences were given generally are not factually the same as yours as they involve significantly less amounts of fentanyl, involve addict traffickers (people the law treats with more leniency), or have some unique exceptional circumstances (see for example, R. v. Sauvé, 2023 ONCA 310). The sentencing principles of general deterrence and denunciation are the ones I must consider to be the most important here. The severity of the offences and the degree of your moral blameworthiness, still requires a sentence beyond a reformatory one. Despite your lawyer’s able submissions, the longtime while on bail, punitive though it was, does not lower the sentencing needle to that degree.
[28] Therefore, a conditional sentence is not available as a sentence.
[29] Yet I find the sentencing principle of rehabilitation remains important in your case. You have kept out of trouble for over five years, taken great strides in rehabilitating yourself, and are really looking forward to a chance to show the world who you really are now. I find your moral blameworthiness is still significantly lessened given the mitigating factors. This will be a first penitentiary sentence for a youthful offender and restraint calls for the lowest sentence that fulfills the objectives and principles of sentencing. I find in your case that leniency is not just warranted, it is demanded based upon where you have come from, what led you to commit these crimes, and what you have done during these long five years. Therefore, considering all the relevant factors, I find that the fit and just sentence to be 29 months.
[30] The seven days of pretrial custody will be credited as 11 days and subtracted from your sentence. Therefore, your sentence will be 28 months and 19 days. This sentence will be imposed on the possession for the purpose of trafficking count. For the trafficking convictions, there will be a sentence of 18 months for each count, to run concurrently.
[31] There will be a DNA order and a s. 109 order for life.
[32] I know this may not give you much comfort. I wish I did not have to send you to prison. But the law says otherwise. And long ago, I gave my promise to uphold the law when I became a judge. Therefore, I am duty bound to do so.
[33] When you last had the chance to address me in open court, you told me that you were a changed man from back then, from the time you did the crimes.
[34] I believe you.
[35] And I know jail will not make a better person. What I do pray for is that jail will not change the man that you are now. That when released, you can rejoin the community, your friends and family…your mother… as the same man you are today.
Justice S. Nakatsuru Released: June 25, 2024.
