Court File and Parties

Court File No.: CR-22-90000393-0000 Date: 2024-09-12 Ontario Superior Court of Justice

Between: His Majesty The King And: Abdulkadir Mohamud, Defendant

Counsel: James Damaskinos, for the Crown Ben Elzinga Cheng, for the Defendant

Heard: November 24 and 25, 2022

Before: Schabas J.

Reasons for Sentence

Overview

[1] At the outset of the trial in this matter in November, 2022, based on an Agreed Statement of Facts I found the defendant Abulkadir Mohamud guilty of trafficking in a Schedule I substance (fentanyl), contrary to s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). I also found Mr. Mohamud guilty of possessing Percocet (also a Schedule I substance) for the purpose of trafficking contrary to s. 5(2) of the CDSA, and guilty of one count of possession of property obtained by crime under $5,000 contrary to s. 354 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] In short, following the receipt of information from a confidential informant, the police engaged in text messaging with Mr. Mohamud who offered to sell the police some Fentanyl. He subsequently sold 2.03 grams of fentanyl to an undercover officer for $300. On a second occasion, after arranging to meet Mr. Mohamud to purchase more Fentanyl, the police arrested Mr. Mohamud and two companions who were in the same car. A search of the vehicle found Mr. Mohamud to in possession of an unknown, but presumably small, amount of fentanyl, and 21.61 grams of Percocet (Oxycodon/Paracetamol) found in a pill bottle, which Mr. Mohamud admitted was possessed for the purpose of trafficking. He was also found in possession of money which is admitted is the proceeds of crime.

[3] Mr. Mohamud then brought an application seeking a stay of proceedings on the ground that he was entrapped into committing the offence when offered an opportunity by police to traffic in fentanyl without the police having a reasonable suspicion that he was already engaged in that activity. In Reasons released on December 13, 2022, I found that Mr. Mohamud was not entrapped and dismissed the application: R. v. Mohamud, 2022 ONSC 7012.

[4] The matter was then adjourned for sentencing. As Mr. Mohamud is a young Black man, he was approved to obtain an Enhanced Pre-Sentence Report (“EPSR”), resulting in further adjournments while that report was prepared. This took some time due to the backlog in requests for such reports. Eventually, the EPSR was completed and I received submissions on an appropriate sentence on June 14, 2024.

[5] Mr. Mohamud received a very favourable EPSR. As a result, although the offences would ordinarily attract a penitentiary term, the Crown seeks a reformatory term of two years less a day. Taking into account pre-sentence custody and other factors, including a lengthy period on strict terms of release, the Crown submits that Mr. Mohanumd should serve nine months in prison. The defence agrees that an appropriate sentence is two years less a day but seeks a conditional sentence permitting Mr. Mohamud to serve his sentence in the community.

[6] For the reasons that follow, I have concluded that Mr. Mohamud should receive a sentence of two years less a day and that it should be served, subject to conditions, in the community.

Applicable sentencing principles

[7] Section 718 of the Criminal Code states:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

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

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

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

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

[8] Section 10(1) of the CDSA also provides guidance, stating:

Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

[9] The fact that Mr. Mohamud trafficked in fentanyl is significant. In R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389, at paras. 87–92, Moldaver J. discussed in detail the harmful effects of hard drugs such as heroin and cocaine which are “far less deadly than fentanyl.” Moldaver J. listed effects such as the serious harm to health and, not infrequently, death, for users. Violence and other criminal activity go hand in hand with trafficking such drugs. Families, and particularly children, suffer harm from the effects of addiction in homes, and families can be torn apart by such drug use. Trafficking in these drugs, Moldaver J. observed, “tears at the very fabric of society” (at para. 92, quoting from Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 98), with huge costs to the community and the public, in health care, social supports and law enforcement. The emergence of fentanyl, he stated, “has altered the landscape of the substance abuse crisis in Canada, revealing itself as public enemy number one”: Parranto, at para. 93.

[10] In light of these effects, in fentanyl trafficking cases the Court must give much weight to the need for denunciation and deterrence of such crimes. In most cases, therefore, a significant penitentiary term is appropriate for trafficking in fentanyl.

[11] However, sentencing is highly case-specific and must be tailored to the individual circumstances of the accused and the offences. The sentence imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”, as set out in s.718.1 of the Criminal Code. It must also take into account aggravating and mitigating circumstances, including those set out in s. 718.2 of the Criminal Code. Section 718.2 also directs that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” Judges must exercise restraint in imposing imprisonment to ensure that sentences are not “unduly long or harsh.”

[12] An additional important factor affecting the sentencing considerations in this case is that Mr. Mohamud is a young black man. In R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, the Court of Appeal recognized the existence and impact of anti-Black racism in our society, and that sentencing courts can take this into account as part of the social context. As the Court stated at para. 79:

The social context evidence can, however, provide a basis upon which a trial judge concludes that the fundamental purpose of sentencing, as outlined in s. 718, is better served by a sentence which, while recognizing the seriousness of the offence, gives less weight to the specific deterrence of the offender and greater weight to the rehabilitation of the offender through a sentence that addresses the societal disadvantages caused to the offender by factors such as systemic racism.

[13] In this case Crown counsel has agreed that a penitentiary term would not be appropriate. He submits that a term of two years less a day is appropriate but would reduce the term Mr. Mohamud would serve to nine months. Crown counsel would give Mr. Mohamud credit of 90 days for the 44 days he spent in pre-sentence custody when first arrested, which was during the height of the COVID-19 pandemic. The Crown also notes that Mr. Mohamud has been on bail conditions for 3 years and 3 months, which included five months of strict house arrest followed by a curfew. The issue between the parties, then, is whether Mr. Mohamud should be given a custodial term of nine months, or whether he should receive a conditional sentence of two years less a day, permitting him to serve his sentence, subject to terms, while remaining in the community.

[14] Under s. 742.1 of the Criminal Code a conditional sentence may be imposed for certain offences where: i) the sentence is less than two years and, ii) the court is “satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.”

[15] The conditional sentence regime was introduced in 1996, in large part due to the problem of overincarceration of Indigenous people in Canada, and the concern that prison sentences can be unduly harsh and ineffective in promoting rehabilitation. As Lamer C.J.C. commented in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 at para. 16, “[p]rison has been characterized by some as a finishing school for criminals and as ill-preparing them for reintegration into society.” As an alternative to incarceration, the conditional sentence alternative was established, described by Chief Justice Lamer at paras. 21 and 22 of Proulx:

21…The offenders who meet the criteria of s. 742.1 [the conditional sentencing provisions of the Criminal Code] will serve a sentence under strict surveillance in the community instead of going to prison. These offenders’ liberty will be constrained by conditions to be attached to the sentence, as set out in s. 742.3 of the Code. In case of breach of conditions, the offender will be brought back before a judge, pursuant to s. 742.6. If an offender cannot provide a reasonable excuse for breaching the conditions of his or her sentence, the judge may order him or her to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.

22 The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. It is this punitive aspect that distinguishes the conditional sentence from probation…

[16] At para. 102 of Proulx, Lamer C.J.C. recognized that although a jail term provides greater denunciation than a conditional sentence, the punitive aspect of a conditional sentence can still “provide a significant amount of denunciation. This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances.” Accordingly, even in cases, such as this one, where deterrence and denunciation are the paramount sentencing objectives, a conditional sentence may be appropriate, depending on “the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served”: Proulx, at para. 114.

Imprisonment for less than two years

[17] It is common ground that the appropriate length of sentence in this case is two years less a day. I agree, and therefore the first requirement for imposing a conditional sentence is met.

Will a conditional sentence endanger the safety of the community?

[18] The second branch of the test for a conditional sentence in s. 742.1 of the Criminal Code requires the court to be satisfied, first, that a conditional sentence “would not endanger the safety of the community.” Again, there is common ground that permitting Mr. Mohamud to serve his sentence in the community will not be a risk to the safety of the public. As the EPSR sets out, Mr. Mohamud has shown remorse for his previous actions and has shown insight into the harm caused by trafficking. He has also been in compliance with strict bail conditions for three and a half years and has strong support from family and friends. All of this satisfies me that a conditional sentence will not endanger the safety of the community.

Is a conditional sentence consistent with the fundamental purpose and principles of sentencing?

[19] To determine whether a conditional sentence is appropriate for Mr. Mohamud, I must address the fundamental purpose and principles of sentencing and their application to Mr. Mohamud.

Mr. Mohamud’s background and circumstances

[20] The EPSR provides a very helpful source of information about Mr. Mohamud, who I will refer to as Abdul in this part of my Reasons as that is how he is referred to in the EPSR.

[21] Abdul was born in Toronto in 1996 and is now 28 years old. He is Black, of Somali heritage and a Muslim. Abdul has an older brother and sister, with whom he lives, and is actively involved in the lives of his four nieces and nephews. He was largely raised by his mother. Abdul’s parents divorced when he was 10 due to his father’s infidelity. This led to financial struggles for the family, especially after Abdul’s father stopped paying support and the family was supported solely by his mother’s income from operating an at-home daycare.

[22] Despite showing early promise in elementary school, after moving to the Albion neighbourhood after his parents split up and developing negative peer groups, Abdul dropped out of high school in Grade 11. He attended school sporadically after that to gain additional credits. Abdul eventually obtained his high school diploma in 2021 or 2022 after being taken off house arrest.

[23] Abdul was close to his mother. He described her as his “best friend” and as the “backbone” of the family. Sadly, Abdul’s mother died unexpectedly in November 2023, not long after returning from three years in Somalia where she had been caring for a family member during the COVID-19 pandemic.

[24] Abdul grew up experiencing poverty in a neighbourhood that had a high crime rate that was “gang oriented”. There was drug dealing and violence. Abdul reported that he has lost over 10 friends to gun violence. He reported being shot at himself. His neighbourhood was predominantly Black, and Abdul had frequent interactions with the police, who it was reported regularly stopped and intimidated young Black men. This is a common theme in EPSRs. Abdul, like many young Black men in such circumstances, developed a distrust and fear of the police who he believes engage in anti-Black racism.

[25] As often happens in such situations, Abdul was drawn into the criminal world due to peer pressure, lack of good role models, lack of alternatives and lack of opportunities.

[26] Abdul has interacted with the police since he was 14 years old. He described police frequently stopping him and his friends, being subjected to “carding”, searches and intimidation, because he is Black. He said his mother’s home was raided by police looking, unsuccessfully, for firearms.

[27] Abdul’s employment has been sporadic. He has done general labour work and helped a family friend in a restaurant. For a little over a year until he was arrested on these offences, Abdul worked at a Mr Lube doing oil and transmissions changes and rotating tires – skills he learned on the job. More recently, since March 2023, Abdul has been working for a film production company and has received a very positive letter of recommendation. He has also volunteered at an international high school. Abdul has expressed interest in training in occupational health and safety or in building railway systems in the Toronto region.

[28] Abdul has a criminal record. In 2015, when he was 19, he was convicted of uttering threats, fraudulently obtaining transportation, possession of counterfeit money and dangerous driving. In 2022 he was convicted of possession of cocaine and impaired driving.

[29] As with the 2015 offences, the current offences before me were committed to obtain financial gain. As he said, he did it because of the “financial struggle in the home”, saying he “did bad things with good intentions” to make “quick money.” Abdul’s brother and sister were not surprised by his involvement in drug dealing giving the family’s financial circumstances and Abdul’s limited employment options. Friends also confirmed that Abdul was motivated to commit the offences because of the family’s financial circumstances.

[30] Over the past three years, while on bail, Abdul has become more aware of the dangers of fentanyl and its destructive nature and has shown remorse for having sold it. He has become focussed on staying away from negative influences and wishes to find legitimate employment to help support his family.

[31] Abdul’s possession of oxycodone/Percocet was, he said, for his own use as he had developed a dependency, if not an addiction, to it. However he has admitted guilt to possession of it for the purpose of trafficking. Nevertheless, I must take into account his dependency on it which developed when he was a teenager and was prescribed Percocet for pain relief for an injury. He continued to use it “off the street” afterwards as it relieved his stress and gave him a feeling of euphoria. He consumed up to 10 pills per day when on a curfew bail in 2020, but stopped in March 2023 after he was diagnosed with Diabetes. He experienced depression when he stopped using it.

[32] In January 2023, Abdul and his siblings moved to Brampton in order to be in a safe neighbourhood. This has disconnected Abdul from his friends and negative influences in his old neighbourhood in Toronto. He has strong connections with and support from his siblings, who describe Abdul as caring, kind, reliable and selfless. They and Abdul’s close friends have also been impressed with his behaviour over the past three years, while on strict bail conditions. Abdul’s siblings emphasize the supportive role Abdul plays in the family unit and their reliance on Abdul in helping to care for their children and providing financial support to the family.

[33] The absence of Abdul’s mother during the pandemic, which is when the offences were committed, may have played a role in Abdul’s anti-social behaviour. His mother’s unexpected death in 2023 is described as having been “traumatizing” for the whole family, which has brought them closer together.

[34] According to the well-qualified author of the EPSR, Abdul was open and thoughtful in his meetings with her and “demonstrated a level of insight and consideration he has given to his actions.” He has expressed remorse and is committed to a life that does not include crime. As the author put it in the EPSR:

Abdul grew up happy in a stable environment due to his close-knit family dynamic. However, the conclusion of his parents’ relationship fractured the connectedness of his family and impacted his life from that point on. Abdul lost the presence of his father in addition to the financial support and security he brought to the home. From the age of 10, Abdul grew up in a single parent home and began to experience the hardships of his mother who struggled to provide for him and his siblings. As the youngest child in the family, Abdul became attuned to the financial situation of his mother and how it ultimately impacted him and his outlook on life. The resulting impacts of poverty, family disruption and other systemic influences have contributed to Abdul's trajectory into the criminal justice system…

[35] The EPSR then discusses the studies and findings that suggest Abdul’s circumstances are very much the product of poverty and anti-Black racism. As the EPSR notes:

Growing up in poor circumstances did not promote a sense of hope for Abdul. His job seeking efforts were noted as well as his employment history in this report. Abdul developed a criminal record as an adult and found it hard to receive legitimate employment opportunities because his past convictions created a barrier. The inherent racial bias that is present in hiring processes makes the task of securing gainful employment especially difficult for Black people with criminal records (Babchishin, Keown and Mularczyk, 2021, p. 5). By encountering this challenge in addition to low-wage employment, Abdul believed that adopting a life that involved crime was the best route for finding a way of out challenging financial circumstances.

[36] The EPSR notes, in conclusion:

Abdul has many noted strengths that have been highlighted in this report. One of those is the immense support he has within his family and pro-social peer group to live a successful life. Abdul has demonstrated a period of stability and compliance while on bail, and the steps he has taken thus far gives some insight into his rehabilitative efforts. Abdul envisions a life where he can refocus on what is truly important and living comfortably with a legitimate income that can continue to help his family. He acknowledged his desire to seek some form of counselling support to address his life experiences that have been related to trauma and grief and loss.

Application of sentencing principles

[37] The first and paramount principle of sentencing in a case of this sort is that the sentence must denounce the offences in order to recognize the very serious harm that fentanyl causes in the community. This principle, and objective, is what the Crown relies on to support a custodial sentence, albeit now a relatively short one.

[38] A second objective of sentencing is deterrence. Much has been written about the impact of deterrence. Here, in considering Mr. Mohamud’s circumstances, the emphasis must be on whether a jail term is necessary to deter him from re-offending. As the Court of Appeal stated in Morris at para. 79:

The social context evidence can, however, provide a basis upon which a trial judge concludes that the fundamental purpose of sentencing, as outlined in s. 718, is better served by a sentence which, while recognizing the seriousness of the offence, gives less weight to the specific deterrence of the offender and greater weight to the rehabilitation of the offender through a sentence that addresses the societal disadvantages caused to the offender by factors such as systemic racism.

[39] On the evidence before me, deterrence does not favour a term of imprisonment.

[40] I also conclude that it is not necessary to separate Mr. Mohamud from society to ensure public safety.

[41] The next consideration is Mr. Mohamud’s rehabilitation. Mr. Mohamud had the experience of being in prison before his release on bail. He does not wish to go back and his family and friends fear the impact of jail and the company he will keep there will have on his rehabilitation. As Shreck J. stated in R. v. Beharry, 2022 ONSC 4370 at para 43, “[a]rguably, the objective of rehabilitation, where rehabilitative prospects exist, will go further towards achieving the fundamental purpose of sentencing than sentences designed to give effect to the objective of general deterrence, which empirical evidence suggests has uncertain effect. [citations omitted]”

[42] Here, Mr. Mohamud’s rehabilitation has begun. He has been compliant with strict bail conditions for over three years. He and his family have relocated to Brampton which has separated Mr. Mohamud from his negative influences. He has stopped taking oxycodone He has demonstrated insight into his crimes and shown remorse. Mr. Mohamud is committed to helping his family, which relies on him and is very supportive of him. He wants to upgrade his job skills. He has completed high school and has a job. While it is arguable that a jail term will “promote a sense of responsibility” in Mr. Mohamud and acknowledge the harm he has caused, a jail term – even the limited one sought here - will not assist in Mr. Mohamud’s rehabilitation, but will harm it and will harm his family.

[43] There are, of course, aggravating and mitigating factors. Mr. Mohamud has trafficked in fentanyl, a very dangerous drug which would, in most cases, result in a lengthy jail term. He did so for financial gain. Mr. Mohamud also has a criminal record. Some of it is dated and I give it little weight, but he also was found in possession of cocaine and convicted of impaired driving in 2021 for offences committed in 2019. Nevertheless, while not a first offender for which the principle of restraint would weigh heavily, the Crown does not place much weight on his prior convictions, noting Mr. Mohamud’s circumstances. In any event, restraint is always a consideration and weighs in Mr. Mohamud’s favour.

[44] On the other hand, there are many mitigating factors. Mr. Mohamud did not dispute the offences, raising only a Charter motion which is his right. He has shown remorse and insight into his behaviour and has strong support from his family. Mr. Mohamud has been on bail conditions without incident for several years which is to be treated as a mitigating factor as well: R. v. Downes, at para. 33. He has been lonely and depressed, but yet has weaned himself from using oxycodone, finished high school and obtained employment. Mr. Mohamud is also relatively youthful. All of this speaks favourably to his prospects for rehabilitation.

[45] Mr. Mohamud’s experience as a young Black man growing up in poverty and in a society in which he has been subject to systemic anti-Black racism is also a strong mitigating factor in assessing his moral culpability, and informs my consideration of the principles of sentencing. The social context of anti-Black racism is a factor “which allows for a more informed and accurate assessment of the offender’s background, character and potential when choosing from among available sanctions ….”: Morris, at para. 106. As Nakatsuru J. recently stated in R. v Stewart, 2024 ONSC 281 at para. 21:

In R. v. Morris [citation omitted], the Court of Appeal considered how a Black accused’s life experiences may diminish moral blameworthiness in a particular case. In a nutshell, the court held that special considerations apply when sentencing a Black offender. The fact that the offence is committed by a Black person does not minimize the gravity of the offence, or the need to consider a denunciatory sentence, but it may impact the assessment of what constitutes a proportionate and fit sentence and the weight attributed to the prospects of rehabilitation and the emphasis, if any, required in considering specific deterrence.

[46] A final consideration is parity, or consistency with other sentences for similar offences. While, as I have said, in most cases a conviction for trafficking in fentanyl will result in a significant jail term, that is off the table here – the Crown does not seek it and recognizes that there are cases in which conditional sentences have been imposed. Most, but not all, of those cases cited to me involve street-level addicts: see cases cited in Stewart, para. 61, footnote 16.

[47] In Stewart, Justice Nakatsuru imposed a conditional sentence on a young Black man who also had a very favourable EPSR. In that case the offender was only convicted of possession of fentanyl but, on the other hand, he was also convicted of possession of a loaded, prohibited handgun – a crime which would also ordinarily attract a lengthy jail term. As noted in Stewart at para. 62, there are several post-Morris cases in which a conditional sentence has been imposed in such circumstances.

Conclusion

[48] In my view, the case for a conditional sentence has been met here. A sentence of two years less a day is a fit and just sentence. I am satisfied that by serving his sentence in the community Mr. Mohamud will not endanger the safety of the community. Further, this outcome is consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

[49] This is, of course an exceptional result, but I am persuaded by Mr. Mohamud’s very positive EPSR and his conduct since his release on bail which should be recognized and encouraged. Returning him to jail, even for the short time urged by the Crown, will be counterproductive and is not necessary to express the court’s denunciation of Mr. Mohamud’s offences. A conditional sentence will “be more effective than incarceration at achieving the restorative objectives of rehabilitation” and “the promotion of a sense of responsibility” in Mr. Mohamud, and can achieve the goals of denunciation and deterrence: Proulx, at para. 22.

[50] Mr. Mohamud will be subject to strict conditions for the next two years less a day, as follows:

• Report in person to a conditional sentence order supervisor or probation officer (CSO) forthwith and within 2 working days of this sentence being imposed, and thereafter at all times and places as directed by the CSO to assist in your supervision.
• Keep the peace and be of good behaviour.
• Appear before the court if and when required to do so.
• Notify your CSO of any change of name or address (subject to the approval of place of residence while serving the conditional sentence).
• Attend counselling as recommended by your CSO supervisor and sign all releases so that such counselling can be monitored and supervised.
• Reside with your brother and/or sister, or at an address approved by your CSO.
• Observe a curfew and be in your residence between 12AM and 6AM daily.
• Make all reasonable efforts to seek and maintain employment or be enrolled in employment training, and to provide proof of such efforts and activities to your CSO.
• Perform 100 hours of community service as directed by your CSO.
• Not possess any substance prohibited or regulated by the CDSA unless it is prescribed by a medical practitioner.

[51] Mr. Mohamud shall be prohibited from being in possession of a weapon, ammunition or other items as described therein for a period of ten years. He shall also provide a sample of his bodily substances as may be required for forensic analysis pursuant to s. 487.05(1) of the Criminal Code. And Mr. Mohamud shall pay, within 18 months, any victim fine surcharge arising from this sentencing order.

Paul B. Schabas J. Released: September 12, 2024