ONTARIO COURT OF JUSTICE St. Catharines
DATE: 2023.04.24
BETWEEN:
HIS MAJESTY THE KING
— AND —
DOLAL JAMA
Before: Justice Fergus ODonnell
Reasons for sentence imposed on 24 April, 2023
Counsel: Mr. Darren Anger, for the Crown Mr. J. Randall Barrs, for the defendant, Dolal Jama
Reasons for Sentence
Overview
[1] Dolal Jama appears before me today for sentencing on a charge of possession of fentanyl for the purpose of trafficking. The Crown seeks a six-year penitentiary sentence. Mr. Jama seeks a conditional sentence.
The Facts
[2] Around mid-day on 28 September, 2020 a passerby saw Mr. Jama in a car stopped on a sideroad in Niagara on the Lake. He was kicking the air and making seemingly involuntary movements. When the police arrived, they found Mr. Jama on a nearby property behaving in a similar way. His eyes were red rimmed, blood-shot and watery with pin-sized pupils. He was slurring his words and was drooling with foam forming around his mouth, going in and out of consciousness. Police found his car still running, with the transmission in the drive position. They had Mr. Jama taken to the hospital because it appeared that he was overdosing.
[3] The police found three small bags in Mr. Jama's car, which totaled fifty-three grams of fentanyl. There was also cutting agent in the car.
[4] Mr. Jama was on probation at the time of the offence.
Mr. Jama's Background
[5] Mr. Jama will be 36 years old in a few weeks; he was 33 at the time of the offence.
[6] Mr. Jama has a substantial criminal record, amounting to thirty convictions over a fourteen-year period, most for relatively minor matters. He has only one conviction for violence, now sixteen years old. The record includes ten convictions for failing to comply, two convictions for failing to attend court, two convictions for obstruct police, five convictions for theft or possession of stolen property and two break-and-enter convictions. He also has five convictions for simple possession of a controlled substance.
[7] Of particular relevance to today’s proceedings, before this offence he had convictions in 2017 for possession of a controlled substance for the purpose and possession of proceeds of crime and then, in January, 2020, eight months before this offence, a conviction for trafficking in a controlled substance. He was on probation from the January, 2020 trafficking conviction at the time of this offence.
[8] Even without the pre-sentence reports, anyone who had spent more than a fortnight in provincial court would recognize that this was the record of a person dealing with an addiction.
[9] Mr. Jama came to Canada from Somalia with his mother when he was three years old. His father did not come with them and they have no relationship now. He also has a half-sister who was born in Canada, with whom he is close, although his life path has been disturbing to his sister and his mother. He has a teenage son, who was put in foster care at the age of eight, but for whom Mr. Jama and the child's mother now share custody, as of 2017. His mother and sister describe him as an engaged and attentive father.
[10] Mr. Jama dropped out of school in grade ten, seemingly for lack of interest and because of his use of marihuana. He has had a limited work history but has obtained his AZ licence with the goal of becoming a truck driver.
[11] Mr. Jama first tried alcohol when he was twelve, but it has never been a problem. He had already begun with marihuana at eleven years old and thereafter experimented with ecstasy, oxycodone, Percocet and heroin. In 2015 he attended a twenty-one-day residential treatment programme which he said resulted in him maintaining abstinence for four or five years, although I note that his most serious convictions before this one (separate instances of possession for the purpose and trafficking), occurred during that period of abstinence. Mr. Jama said he relapsed in 2019 by using cocaine and fentanyl for six months. He then attended another residential treatment programme in January 2020, after which he abstained until relapsing again with cocaine and fentanyl in September, 2020, after associating with a person involved in the drug world. The present offence and overdose occurred during that latest relapse. Mr. Jama recognizes that but for the intervention of the witness and emergency responders he would have died that day. He also recognizes that his substance abuse has damaged all aspects of his life.
[12] After this arrest, Mr. Jama engaged with Community Addiction Services of Niagara (CASON) starting in April, 2021 and into the summer. He then attended a local residential treatment centre and completed its two-and-a-half-week programme in August/September, 2021. He then completed a two-and-a-half-month residential programme in Ottawa from December, 2021 to February, 2022. He says that programme taught him how to deal with daily stress and he has continued with virtual follow-up after that. He told the author of the pre-sentence report that after completing the programme in Ottawa, "he felt well equipped to deal with everyday life and regulate his behaviour." The programme leader gives Mr. Jama a favourable review. Mr. Jama's sister said that while Mr. Jama was quick to snap in the past, he now controls his anger and emotions better and has learned the tools of disengagement and communication.
[13] Upon his return to Niagara, Mr. Jama promptly applied for admission to a four-week day programme with Community Addiction Services of Niagara and completed that programme at the end of April, 2022. He was described as a, "receptive, positive and engaged participant."
[14] Mr. Jama addressed me at the end of sentencing submissions. He spoke of how he speaks with his Narcotics Anonymous sponsor every day. He said that he struggles with his addiction every day, sometimes every hour, and that he simply takes life one day at a time. He said that he never intended to hurt anyone but that could have happened.
[15] I am satisfied that Mr. Jama spoke with absolute sincerity about the journey he has had and about the road that lies ahead of him.
The Positions of the Crown and Defence
The Position of the Crown and Specific Responses to Two of the Crown's Arguments
[16] Mr. Anger, for the Crown, argues that a six-year sentence is appropriate for Mr. Jama. He says that if it were not for the absence of more robust indicia of trafficking (for example cash, surveillance of transactions) and Mr. Jama's work on addressing his addiction, the appropriate sentence (even on a guilty plea) would be around eight years, as discussed by the Supreme Court of Canada in R. v. Parranto, 2021 SCC 46. He fairly compiles a constellation of elements in support of that argument, such as the truly awful nature of fentanyl, the substantial amount involved here, the circumstances of Mr. Jama's discovery and arrest, and his long criminal record including two convictions under s. 5 of the Controlled Drugs and Substances Act that were proximate in time to this offence. As is Mr. Anger's custom, he very fairly notes in his own submissions not only the relevance of Mr. Jama’s guilty plea, but that Mr. Jama made his intention to plead guilty clear from the outset. Mr. Anger also speaks supportively of Mr. Jama presenting for sentencing with, "the type of PSR we hope to see for CDSA offenders." Indeed, Mr. Anger touched on this latter issue twice in his characteristically economical submissions. He noted the relatively infrequent concurrent evidence of an offender’s usage and possession of a significant trafficable amount of drugs. He noted that Mr. Jama's counsellor in Ottawa described him as an outlier, in a positive sense, something one does not usually see in a pre-sentence report. He notes that Mr. Jama has a future career in truck driving. He also fairly recognized that, while the amount here was obviously beyond personal use, there was no specific evidence of profit-based commerciality in Mr. Jama's circumstances. Ultimately, Mr. Anger closed his submissions with the observation that by any measure this was a lot of fentanyl, but that there is no case in the comprehensive and helpful table of cases he provided that matches the level of rehabilitation demonstrated by Mr. Jama.
[17] I agree entirely with Mr. Anger's submissions about the awfulness of fentanyl and its horrific effect on communities. Niagara Region is awash in the stuff. We tend to be very close to the top of the standings for opioid mortality, for which fentanyl is mostly responsible. Tragically, the pole position and the next few ranks in the standings of opioid mortality belong to several public health regions in northern Ontario, but Niagara has a bigger problem than its neighbours in the golden horseshoe, ranks a bit worse than Hamilton, and ranks twice as high as Toronto and four to six times worse than places like Peel or York regions. In Niagara in 2021, one-hundred-and-sixty-three people died from total opioid overdoses largely driven by fentanyl, or almost one person every two days in a region that has less than five-hundred-thousand inhabitants. The immediate victims come from all walks of life and the sources of their addiction are incredibly varied. The consequences of their deaths reach out far and wide--to families, friends, workplaces and communities like many, many malevolent ripples from a rock thrown into a pond.
[18] As I have said in other cases, it seems to me that there are two jurisprudential errors the Crown makes in its submissions, although Mr. Anger is free to disregard my opinions. In the first place, the Crown downplays the relevance of addiction in sentencing for drug offences by reliance on the Court of Appeal's decision in R. v. Ribble, 2021 ONCA 897.
[19] It is always perilous for counsel to place substantial weight on a Court of Appeal "endorsement" or, as they are now called "reasons for decision", especially if those reasons do not actually purport to establish any broad statement of principle. The Crown, repeatedly, relies on Ribble as a case that stands for a broad proposition about sentencing addict offenders, but Ribble does no such thing. To the contrary, Ribble is a fact-specific sentence appeal in which all that the Court of Appeal panel says on the issue is that the sentencing judge was entitled to do as she did. The issue of addiction was one of two main sentencing issues in the Ribble appeal.
[20] After setting out the appellant's argument, the panel disposes of it in fifteen words, (whereafter they dismiss both grounds of the sentence appeal): "We disagree that this is a basis to interfere with the trial judge’s sentencing discretion." That is the sum and substance of the Court of Appeal's consideration of the issue. That is not a criticism of the Court of Appeal; to the contrary it is entirely apt for a sentencing appeal in a legal environment where deference is the foundation of the Court of Appeal's review. My point is simply that those fifteen words are far too tender a reed for the Crown to establish a legal principle, because Ribble does not ever get into the meat of the principle. Now and in the future, the Ribble decision is of no assistance to a trial court in establishing what the Crown seeks to establish.
[21] The Crown also relies, as it has in the past, on the decision of the Court of Appeal in R. v. DiBenedetto, 2016 ONCA 116, in this case to establish the role of sentence ranges as established by appellate courts. The Crown's contention is that the DiBenedetto decision stands for the principle that in the absence of "exceptional circumstances" mitigating factors at most entitle a defendant to a sentence at the lower end of the established sentencing range. Here again, the Crown seeks to rely on very short "reasons for decision", amounting in their entirety to eleven short paragraphs. While I agree, with no small measure of envy, that great and broad wisdom can, with great skill, be conveyed with remarkable brevity, here, as in Ribble, the Court of Appeal is not making any broad pronouncements about sentencing ranges. All they were doing is engaging in that court's "error correction" role, rectifying what, on its facts struck the panel as a demonstrably unfit sentence that failed to address the governing principles of sentence for a non-addict with a criminal record, in possession of 410 grams of heroin and $7,600 in proceeds of crime. The panel doubled Mr. DiBenedetto's sentence. The panel does not use the phrase "exceptional circumstances" and does not purport to proclaim any broad principles of sentencing vis a vis the Supreme Court's decision in R. v. Lacasse, 2015 SCC 64.
[22] The Crown's reliance on DiBenedetto as a restraint on a sentencing court's discretion is also clearly contradicted by the Supreme Court of Canada in R. v. Parranto, 2021 SCC 46, including at paragraphs 16-17, 32 and 61:
[16] As this Court has recognized, however, “there is no such thing as a uniform sentence for a particular crime” (M. (C.A.), at para. 92). Neither tool relieves the sentencing judge from conducting an individualized analysis taking into account all relevant factors and sentencing principles.
[17] Sentencing ranges generally represent a summary of the case law that reflects the minimum and maximum sentences imposed by trial judges in the past (Lacasse, at para. 57; Friesen, at para. 36). They “provide structure and guidance and can prevent disparity”, while leaving judges space to “weigh mitigating and aggravating factors and arrive at proportional sentences” (R. v. Smith, 2019 SKCA 100, 382 C.C.C. (3d) 455, at para. 126). The range, therefore, “reflects individual cases, but does not govern them” (C. C. Ruby, Sentencing (10th ed. 2020), at § 23.7, citing R. v. Brennan and Jensen (1975), 11 N.S.R. (2d) 84 (C.A.)).
[32] The relationship between quantitative appellate guidance and the standard of review on appeal had led to exchanges between the various levels of court. But Lacasse and Friesen have brought finality to the matter, and they leave no room for doubt, interpretation or equivocation. In Friesen, this Court made it clear that “[r]anges of sentence and starting points cannot be binding in either theory or practice, and appellate courts cannot interpret or apply the standard of review to enforce them, contrary to Arcand, 2010 ABCA 363, at paras. 116‑18 and 273” (para. 37 (emphasis added)).
[61] ... Sentencing judges are free to depart from the starting point and move up or down from this marker based on the specific characteristics of the offender in order to meet the primary sentencing principle of proportionality. [^1]
[23] According to section 718.1 of the Criminal Code and the Supreme Court's decision in Lacasse, it is my duty as a sentencing judge to impose a sentence that is, "proportionate to the gravity of the offence and the degree of responsibility of the offender." In Lacasse, the Supreme Court defined proportionality as the cardinal principle of sentencing. The combination of a definite article with a word such as "cardinal" is no small matter. The individualization of sentence is thus no small matter. The value of sentencing ranges is not to be diminished, but as the Supreme Court said in paragraph 57 of Lacasse, sentencing ranges, "should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case." The danger inherent in the use of terms such as "exceptional circumstances" is that the term serves as a sort of psychological straitjacket on the individualization and discretion that lies at the core of sentencing. I do not believe it is a helpful phrase and I do believe that it has the potential to undermine the very clear message that the Supreme Court in Lacasse sends to both trial courts and appellate courts about their respective roles in sentencing.
[24] None of that, of course, diminishes the enormous impact of fentanyl on our communities. I must balance that with Mr. Jama's moral responsibility.
The Position of the Defence
[25] Mr. Barrs argues that a conditional sentence would be a fit outcome for Mr. Jama. He says that six years would be excessive.
[26] In his submissions, Mr. Barrs suggests that Mr. Jama may have been nothing more than a delivery boy and characterizes him as an "addict transporter" as opposed to the idea of him being some sort of principal in trafficking on his own account. The evidence does not establish one way or the other.
Principles of Sentencing
[27] The purpose of sentencing is to protect society and to promote respect for the law. As noted above, although it can hardly be said too often, a sentence must be customized to the offender and the offence. A legitimate sanction will aim to achieve that purpose through various objectives, such as denunciation and deterrence and to aim at rehabilitation, the making of reparations to society and the development of a sense of responsibility on the offender's part. The use of jail is a legitimate option, although the Code twice stresses that jail should be used with restraint, only when necessary and to the extent necessary.
[28] How a sentencing judge weights those various objectives in coming to a just sanction will vary with all the circumstances. For example, depending on the offence and offender, specific deterrence, or general deterrence or rehabilitation may have pride of place, but always subject to the principle of proportionality, proportionality being the cardinal principle of sentencing. Statutory or judicially created presumptions, while relevant, are by necessary implication subordinate principles of sentencing. It must also be kept in mind that, when imposing a sentence that aims to send a message to the broader society, judges must assuming that the people interpreting that message are fully informed of all the circumstances leading to the sentence. We cannot sentence an individual human being for an offence because we fear that by the time the sentence comes to public knowledge as an incomplete sound bite a poorly informed audience might get the wrong message.
[29] Any sentence for fentanyl trafficking must express the court's denunciation of an offence that has made an enormous impact on society and make it clear that serious consequences will ensue for traffickers.
[30] Any sentence must recognize any aggravating and mitigating circumstances.
[31] It bears noting that, to the extent that an addicted person commits crimes because of the addiction (or a person suffering from trauma commits crimes originating in that trauma, which often underlies addictions), encouraging offenders to deal with and learn to manage their underlying challenges and recognizing those relative few who make significant progress, must be a key part of a sentencing strategy, from both a practical and a moral perspective. On one level, that is just common sense because almost all offenders who are sent to prison will be released someday; the offender who has his addiction, trauma, etc. under control will pose less of a lifelong threat than the offender who does not. The philosophy is also codified in s. 10 of the Controlled Drugs and Substances Act, which begins by mimicking the statement of purpose in s. 718 of the Criminal Code, but adds the words, "while encouraging rehabilitation and treatment in appropriate circumstances..."
Fentanyl Sentencing Cases and Addict Traffickers
[32] Mr. Anger provided a very helpful and comprehensive chart of fentanyl sentencing cases. I and my colleagues are sadly familiar with the chart and the cases therein. The chart reflects the relevance of individualization of sentence insofar as it shows experienced judges imposing dramatically different sentences for similar amounts of fentanyl based on the background of the offender and any particular aggravating or mitigating factors in the case.
[33] I would say that the nooks and crannies of fentanyl sentencing remain to be defined, something that the Court of Appeal itself has said, but the Supreme Court of Canada decision in R. v. Parranto, 2021 SCC 46 has started to provide meaningful definition. Even with Parranto, however, we are closer to the start of the definition of appropriate fentanyl trafficking sentences than we are to the end of that task. It bears noting that when the Supreme Court in Parranto defined the range as eight to fifteen years, it did so while setting out a series of examples at paragraph 68 of Parranto, which seem to delineate very large quantities and/or severe aggravating factors (such as trafficking soon after being paroled, sophistication, etc.). That does not undermine Parranto's value, it simply places it in context.
[34] There are, if I may suggest, two serious concerns about how we approach fentanyl trafficking sentences.
[35] The first is this. We rightly say, "fentanyl is much worse than heroin," and the mortality statistics justify that. Our natural instinct, perhaps understandable, but risky, is therefore to say that we must dramatically raise the sentence range. The danger that lies therein is that we risk diluting the weight given to some offenders' individual responsibility, which is one of the key parts of proportionality, which is the cardinal principle of sentencing. In a proportionality-centred sentencing regime, there is potential harm to individual defendants if the courts’ automatic and all-encompassing response is to seek to suppress fentanyl trafficking by putting heroin sentencing ranges on steroids.
[36] To be clear, the imposition of harsh incarceral sentences on non-addict traffickers in fentanyl is entirely appropriate as an expression of society's denuncation, indeed disgust, at the level of greed and depravity that would lead a person to seek to profit by marketing a product that has created an epidemic of death across many, many communities. The fact that fentanyl has commonly insinuated its way into other controlled substances such as cocaine or methamphetamine or even heroin, that buyers do not know contains fentanyl makes this even worse: an end-user and even a low-end trafficker may not even know precisely what they are buying or selling, with potentially fatal consequences for the buyer and a potentially aggravated sentence for the seller.
[37] It is in the area of the addict trafficker that we must proceed with caution. The courts have traditionally given the addict-trafficker short shrift in sentencing. If one looks back to the cases over the past few decades, into the 1980s and 1990s, the concept of the addict-trafficker as a mitigating factor has typically been limited to offenders being "pieced-off" by a higher-level trafficker (perhaps not very high-level himself), by receiving a very small amount for the addict’s personal use in exchange for absorbing the high risk of detection that is inherent in being the front-end of the deal. We have traditionally not given much of a discount at all. [^2] If we continue not to recognize the different moral responsibility of the addict trafficker, while at the same time raising the sentencing tariff from the heroin tariff, there is a very real danger of us imposing sentences that will be fundamentally unjust and fundamentally in violation of the proportionality principle, which requires courts to balance both the objective seriousness of the offence (which is unquestioned) and the moral responsibility of the offender (which will vary dramatically from one case to the next).
[38] That is not to say that an addict trafficker is absolved from moral responsibility for his offence. It is only to say that our traditional failure to approach addict traffickers with a genuine sense of proportionality and to modify some of their sentences meaningfully is a historical shortcoming in our sentencing history and one that needs to be modified. A variety of factors will need to be measured in that calculation including the demonstrable existence of an addiction, efforts made by the offender to deal with his addiction, the potential co-existence of a significant profit motive in addition to sustaining one's habit and so on. As with sentencing generally, there will undoubtedly be many shades of grey.
[39] Another danger in increasing the sentencing range for addict traffickers without meaningfully assessing their role and moral responsibility in the overall scheme of things is that it ignores the fact that a criminal law approach to suppressing controlled substance use is at best only a small part of the solution. The world's controlled substance problems are not news. Societies have been struggling with those problems for generation upon generation. Given the massive and immeasurable amount of effort put into eradicating the problem through criminalization and courts for at least the past fifty years, one might have expected a better result by now. Indeed, if World War II had been fought by the Allies with the same level of success as the "war on drugs" has been fought over many decades longer, the first languages of England and France today would be neither English nor French.
[40] It is not my place as a simple country magistrate to conduct a royal commission on the benefits of various models of drug control. That is both inherently obvious and has been made specifically clear by the Court of Appeal in R. v. Hamilton and Mason, 2004 ONCA 5549. However, the courts must avoid being drawn into a false narrative, i.e. that we are the only means of control that will save society from the perils of controlled substance abuse and that all traffickers, including addict traffickers bear the moral and legal responsibility for the damage done. It is also patently obvious that there are other causes of substance abuse than traffickers; in a certain sense, traffickers are in a way more of a symptom than they are the disease. Again, I stress that I hold no candle for the profit-motivated, non-addict trafficker at all.
[41] It is said that success has many fathers, but failure is an orphan. When one looks at the opioid and fentanyl problem specifically, the reality is that it has many fathers. Most people do not resort to alcohol or drugs because they want to ruin their lives. They resort to them because, in their circumstances, any temporary escape from their reality makes sense. Drugs and alcohol provide that fleeting escape and where there is a demand, a provider will show up to fill it. The underlying reality that plays out daily in the provincial court includes childhood poverty, family dysfunction, emotional, physical and sexual abuse and on and on and on and on. That reality is nourished by a lack of societal resources to support vulnerable people and families and an ever-increasing gap in wealth across society leading to the expansion of the ultra-wealthy, the hollowing out of the middle class and the growth and perpetuation of a class of our fellow citizens for whom there are hopeless todays and no hope for a better tomorrow.
[42] In the specific circumstances of opioids, of which fentanyl is one, the addiction problem is largely rooted in corporate greed and dishonesty, the presentation of a drug as non-addictive without an appropriate basis for that claim, lax oversight and regulation by government, overprescribing by practitioners and imperfect withdrawal management. If this sounds like a royal commission, it is not. It is nothing but a synthesis of known facts. Those facts must be the foundation of humility on the part of the criminal courts, i.e. that we are not the solution to society’s drug addiction problems, indeed we are not even a very large part of what is needed. We are at best a rearguard action dealing with the low-hanging fruit of drug dependence in society. It is not our place to dictate government allocation of resources or to dictate government’s adoption of other known methods of addiction control, but it is most definitely not our place to give cover to government’s shortcomings by pretending that ever more serious sentences imposed on addicts will solve anything.
[43] The important take-away is that decades of addiction and misery and an absence of meaningful government intervention in what is ultimately a health-care issue are an awful lot of responsibility for the average addicted offender to bear on his or her shoulders and the courts should not place an undue share of the overall responsibility for society's challenges on people who have been as much victimized by them as they have victimized others.
Credit for Pre-Sentence Custody and Time on Bail
[44] Mr. Jama has been on a release order that imposed a modified house arrest unless he was in a rehabilitation programme. He has been on bail since his release in October, 2020, a period of about thirty months. He was also in custody for about a month before that release.
[45] There is no absolute requirement that a sentencing court grant credit for restrictive bail conditions, but it would be an error in principle for a court not to at least consider the issue. There was no evidence called on how the house arrest specifically impacted Mr. Jama's life, but even after it was loosened a bit in July, 2021 it was quite restrictive and, even without the formal calling of evidence, one can take judicial notice that a house arrest condition would have some impact (evidence of specific consequences of house arrest might allow for more credit). The law is clear that a sentencing judge can either allocate a specific amount of time for restrictive bail conditions or can simply factor it into the sentence he or she imposes. In the present case, I factor the house arrest and pre-sentence custody into my final determination of sentence.
Conclusion
[46] At one point in his submissions, Mr. Anger said that this sentencing decision comes down to how much credit Mr. Jama should get for his early guilty plea and his significant rehabilitative work. Ultimately, where Mr. Anger and I diverge is on that quantification. I have concluded that it is deserving of more credit than Mr. Anger submits.
[47] In the present case, Mr. Jama's crime is clearly very serious. There is simply no gainsaying that reality. Denunciation and general deterrence are very real objectives. In light of the progress Mr. Jama has made over the past couple of years, however, I do not think that specific deterrence remains a concern.
[48] I have struggled with whether or not a conditional sentence would suffice here and have concluded that it would be a bridge too far. Obviously, this case fits most of the present criteria to qualify for a conditional sentence. The question is whether or not he meets the requirements of s. 742.1 of the Criminal Code, which require that a conditional sentence not endanger the safety of the community and must satisfy the purposes of sentencing set out in the Criminal Code.
[49] With respect to the safety of the community concern, I do believe that it is unlikely that Mr. Jama will reoffend, which is the first branch of that test. However, if he were to reoffend, his history suggests that his most serious offences are drug trafficking, which is a danger to society.
[50] I also have struggled with precisely how far Mr. Jama's diminished moral responsibility can go to dilute the appropriate sentence. I do not doubt that there will be addict-traffickers in fentanyl who will qualify for a conditional sentence. The decision of my colleague, De Filippis, J. in R. v. Han, 2022 ONCJ 343 is one such example, one with which I take no quarrel. It involved about a quarter as much fentanyl and a youthful first offender who was the classic "pieced-off" delivery person. Despite Mr. Jama's significant progress, of which he should be very proud, his background and his offence are of a different measure than Ms. Han's.
[51] I have before me an offender with a long record, mostly for relatively minor offences but most proximate to this offence a record for separate offences contrary to s. 5 of the Controlled Drugs and Substances Act. On this, his third conviction for a trafficking-type offence he was in possession of fifty-three grams of fentanyl, an amount of significant value and with a potential to cause significant harm in the community, including death to its consumers. For a non-addict trafficker, an offence of this nature, with this record would justify the sentence sought by the Crown.
[52] However, Mr. Jama is clearly an addict trafficker. While there may be cases in which an offender’s addiction is disputed, the record of his drug dependence here is incontrovertible and Mr. Anger takes no issue with it. Although the precise provenance of Mr. Jama’s addiction is unclear, his long-term addiction screams out from the nature of his criminal record, as confirmed by his family in the pre-sentence report. To his very real credit, Mr. Jama has tried, repeatedly over many years, to deal with his addiction. The fact that he has tried persistently counts more in this calculation than the fact that he has relapsed. The relentlessness of addiction in refusing to give up its hold on people should never be underestimated.
[53] Every case must be determined on its own merits. The obvious concerns in this case are the substantial amount of fentanyl involved and Mr. Jama’s related convictions proximate to this offence date (although the amounts and type of drug involved must have been different given the sentences) and the fact he was on probation at the time of his offence. Set against that are Mr. Jama’s plea, which was anticipated from a very early point, his long-standing addiction, his persistent effort over the years at addressing his addiction, his willingness to try, try and try again in that struggle and the very positive reviews arising out of his efforts at treatment both locally and in Ottawa, both residential and day treatment. These are not trivial factors. As Mr. Anger recognizes, this is what society asks addicted offenders to do, but what so few are able to accomplish. It is the path to Mr. Jama no longer being a danger to society because of his commitment to managing his addiction and Mr. Jama no longer being a threat to society is the ultimate objective.
[54] Taking into account the foregoing and credit for Mr. Jama’s time in pre-sentence custody and on house arrest bail over most of the past two-and-a-half years, I am of the view that a sentence of two years or two-years-less-a-day would reflect the optimal balancing of the objectives set out in the Criminal Code and the Controlled Drugs and Substances Act. I have absolutely no concern that this sentence will undermine the courts’ general message of denunciation in fentanyl cases. Sentences like this, which still contains a significant punitive component, are but a drop relative to the sea of other fentanyl sentencings relating to offenders who are not Mr. Jama’s peers in terms of their challenges or their accomplishments. Denunciation and deterrence are key concerns, but for them to be given a veto over other sentencing principles in relation to particular categories of offence would be the death of proportionality in sentencing.
[55] Whichever option Mr. Jama chooses, [^3] it will be followed by two years’ probation with counselling.
[56] There will be a DNA order for the secondary designated offence of possession for the purpose of trafficking. Even if this were Mr. Jama's first offence, the seriousness of the offence would mandate that outcome.
[57] There will be a weapons prohibition order under s. 109 of the Criminal Code. That order will be for life insofar as this is not Mr. Jama's first conviction for an offence under s. 5 of the Controlled Drugs and Substances Act.
Released: 24 April, 2023 Justice Fergus ODonnell
[^1]: While we are on the topic of the DiBenedetto case, I note that he was a non-addict trafficker for profit in possession of eight times as much heroin as Mr. Jama had fentanyl, obviously a more dangerous drug, but the quantity difference is still highly relevant. Six years is the sentence the Court of Appeal imposed on Mr. DiBenedetto and six-to-eight years was the sentence sought on the plea. Mr. DiBenedetto and Mr. Jama are not similarly situate. A wholesale, profit-motivated non-addict trafficker in heroin can fairly be characterized as evil, a word one should be loth to apply to someone in Mr. Jama's situation. [^2]: See, for example, R. v. Bahari, 1994 ONCA 1425 and R. v. Farizeh, 1994 ONCA 1145. [^3]: Mr. Jama chose the two-year sentence.