Ontario Court of Justice

Date: 2023 10 13 Court File No.: 22-47101573 Hamilton

Between:

HIS MAJESTY THE KING

— AND —

ALADIN ABDELGADIR

Before: Justice Amanda J. Camara

Heard on: August 29, 2023 Reasons for Judgment released on: October 13, 2023

Counsel: J. Razaqpur, counsel for the PPSC J. Stephenson, counsel for the accused Abdelgadir

Camara J.:

[1] Mr. Abdelgadir plead guilty to possession of fentanyl for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act (CDSA), possession of MDA for the purpose of trafficking contrary to section 5(2) of the CDSA and Possession of proceeds of Property contrary to section 355 (b) of the Criminal Code (C.C.). The guilty plea followed my ruling dismissing the Mr. Abdelgadir’s Garofoli application.

Circumstances of the Offence

[2] On June 29, 2022 members of the Hamilton Police Service executed valid search warrants at Mr. Abdelgadir’s residence at 10 Coral Drive in the City of Hamilton and his motor vehicle. During the execution of the search warrant of the residence police located 2,039.22 grams of fentanyl, 159 fentanyl pills and 41.6 grams of MDA. Mr. Abdelgadir acknowledges possession of the drugs. The value of the drugs that were seized was an issue that has been litigated before me and I will address that later in these reasons. Police also seized $1560.00 in Canadian funds.

[3] At the time of the search warrant execution, Mr. Abdelgadir was a federal parolee, required to wear an electronic ankle monitor and was being monitored by the CSC National Monitoring Center.

Circumstances of the Offender

[4] Mr. Abdelgadir is 28 years old. He has a recent and related criminal record which includes entry from 2017 for possession of a schedule I substance, 2019 for possession for the purpose of trafficking and an entry from 2019 for possession for the purpose of trafficking for which he received a federal sentence. He was on parole from that sentence when the offences before me were committed.

[5] Mr. Abdelgadir completed high school while he was on parole in 2022. He was in the process of completing a work program where he was learning basic trades. He has worked in the past for Maple Leaf Foods. He lives with his mother who is on government assistance and suffers from physical health issues. Mr. Abdelgadir’s father is not currently involved in Mr. Abdelgadir’s life. His father was abusive to Mr. Abdelgadir. Mr. Abdelgadir fought back against his father when he was 15 years old. That event resulted in Mr. Abdelgadir being placed in foster care for 3 months. Ultimately his father decided to return to Sudan and Mr. Abdelgadir was permitted to return to his mother’s care.

[6] With the father leaving the country, Mr. Abdelgadir’s mother was left to support three children, and eventually a grandchild, on her own. His mother worked full time at a steel factory and Mr. Abdelgadir was left unsupervised for significant periods of time. He left high school, began working in the work force. Ultimately it is during this period of time that Mr. Abdelgadir committed the offences for which he received a federal sentence.

[7] Mr. Abdelgadir does not suffer from any addictions. When he was younger he was diagnosed with ADD and ADHD. He does not take medications to control the symptoms of either condition. Mr. Abdelgadir is a young black man who has experienced systematic racism growing up in Hamilton.

[8] Mr. Abdelgadir testified before me during the course of this sentencing hearing. He is incredibly articulate and intelligent. These talents make this sentencing all the more tragic. Had Mr. Abdelgadir made different choices – I have no doubt that he could have been a successful businessman in a lawful profession. He certainly has the capacity to be a productive member of the community. He has completed 10 courses while incarcerated exemplifying his capacity to be a pro social member of our community.

Value of the Drugs

[9] How much was the 2039.22 grams of fentanyl, the 159 fentanyl pills and 41.6 grams of MDA worth in Canadian dollars? The answer to that question depends on who you ask. Det. Cst. Blake, an expert in the value of drugs sold between the point level and the Kilogram level, testified that if sold at the point level, 2039.22 grams of fentanyl is worth $407,844. If that same amount of fentanyl was sold at the kilogram level it would be worth, according to Det. Cst. Blake $96,863.

[10] Mr. Abdelgadir testified candidly about this issue as well. His testified that 1 kilogram of fentanyl was worth $20,000. So 2 kilograms was worth $40,000. It was clear that Mr. Abdelgadir was not selling the fentanyl at the point level. He was higher up the trafficking pyramid than that. He purchased fentanyl 4 kilograms at a time. He had sold 4 kilos the month prior to the execution of the search warrant. He then bought another 4 kilograms and was about halfway through that quantity when the search warrant was executed. Mr. Abdelgadir conceded he sold about 1 kilogram per week.

[11] I do not need to resolve this issue other than to conclude, the value of the drugs was significant. More important in my mind, is the number doses that entered into our community with the sale of this amount of fentanyl. In this case, 2039.22 grams of fentanyl represents over 20,000 doses of fentanyl at the point level.

Position of the Parties

[12] On behalf of the Public Prosecution Service of Canada (PPSC), Mr. Razaqpur’s position is for a global sentence of 15 years less pretrial custody and ancillary orders.

[13] Ms. Stephenson argues that the appropriate sentence for Mr. Abdelgadir is 8 years less pretrial custody. The ancillary orders sought by the PPSC is conceded as appropriate in the circumstances.

Legal Principles and Analysis

[14] The fundamental purpose of any sentence for an offence under the CDSA and the C.C. is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation of offenders and acknowledging the harm done to victims and to the community.

[15] Canadian Courts have only recently begun to grapple with understanding the profound harm fentanyl is having in our communities. In 2021 the SCC held in R. v. Parrento, 2021 SCC 46 that Fentanyl poses a grave threat to our communities. The Supreme Court of Canada described fentanyl as

“[A]n extremely dangerous and powerful painkiller and sedative…. Fentanyl 's potential for harm however is significantly greater than other opioids. It is for example estimated to be 80 to 100 times more potent than morphine and 25 to 50 times more potent than pharmaceutical grade heroin. Given its strength a lethal dose will often be less than two milligrams, an amount as small as a single grain of salt. The risk of overdose and death from fentanyl is thus extremely high, particularly for naive users or where it is taken in combination with other substances such as alcohol or other opioids….”

The Supreme Court continued:

“[B]eyond its mere potential to cause harm, however, fentanyl has had and continues to have a real and deadly impact on the lives of Canadians. Indeed trafficking in fentanyl is so deadly that various courts have described it as a national crisis, reflective of an increased understanding of the gravity of harm it causes…[….] The scale of fentanyl 's devastating impact becomes even more apparent when one considers that between 2016 in 2020 there were approximately 3400 homicides across Canada and number far below the number of fentanyl related death. This disparity makes clear that, in a very real way those individuals responsible for the large-scale distribution of fentanyl within our communities are a source of far greater harm than even those responsible for the most violent crimes.”

At paragraph 98, the court said:

“In many ways, ‘trafficking in fentanyl is almost the equivalent of putting multiple bullets in the Chamber of a revolver and playing Russian roulette. It is the most efficient killer of drug users on the market today’. put simply it is a crime that can be expected to not only destroy lives, but to undermine the very foundations as our society”.

The Court of Appeal in R v. Lynch, 2022 ONCA 109 echoed the Supreme Court of Canada’s condemnation of the perils of fentanyl:

It is a well-established principle that drugs vary in the degree of danger that they represent to those who consume them. Consequently, the more dangerous the drug being trafficked, the higher the penalty that will be imposed. Fentanyl is now known to be much more dangerous drug than almost any other. That reality directs that a sentence imposed for trafficking in fentanyl should be as long as or longer than a corresponding sentence for trafficking in cocaine.

[16] As the SCC noted in Parrento it is important for sentencing judges to take into account the “needs and current conditions of and in the community” because “local conditions may enter into the assessment of the gravity of the offence and militate in favor of prioritizing certain sentencing goals”. The City of Hamilton has been flooded by fentanyl; the effects on our community are apparent the moment you step outside the courthouse. As noted by Justice Agro in R v. Ribble, 2019 ONCJ 640:

In Hamilton, fentanyl powder has flooded the illicit drug market and the number of fentanyl powder cases is rapidly increasing across the province and notably in this jurisdiction; possession of fentanyl charges has increased in plea court and fentanyl users are the new norm in the drug treatment court. Sadly, our detention center is notorious for drug overdoses, including fentanyl.

I have made the same observations.

[17] Mr. Abdelgadir himself commented on the opioid crisis in our community in the following exchange with Mr. Razaqpur about the street value for fentanyl:

Q. And as somebody who’s selling drugs to other dealers and people in the Hamilton are, you know that this city is overwhelmed with drug addicts and the opioid crisis, right? A. Correct. Q. And I’m going to suggest that demand is actually, even since June 2022, or even since you got out of jail in January, demand has simply continued to go up, Would you agree with that? A. I would say it’s been in demand for probably the past five years. I wouldn’t say the opioid crisis is anything new. It may have increased, but [indiscernible] anything, you know, [indiscernible] people start doing drugs. Q. Right. A. I agree with you, though. Yeah. The demand has definitely increased, but I think the supply has increased at a much faster rate. Q. Well, I guess that’s my question. I’m suggesting that, in fact, supply hasn’t increased as much as you’re suggesting because, in fact, a lot of dealers are nervous about selling fentanyl because they know that they could be looking at a stiff sentence if they are convicted, much worse than cocaine, for example. A. Yes, but money talks. You’re, you’re going to make more money off fentanyl than you are off cocaine. Q. Okay. A. And the demand for fentanyl is higher than it is for cocaine. Q. Okay. So I guess that goes back to my other question then why do you say you’re going to make more money off of fentanyl than cocaine if, according to you, they’re priced the same, roughly. A. Because as Officer Blake noted earlier that fentanyl is not done recreationally, cocaine is done recreationally. People will do cocaine on the weekends when they go party. People don’t do fentanyl to party. People who are doing fentanyl are doing it every day. People who are doing cocaine are not doing it every day. Q. So essentially, you have a loyal customer base. A. Correct.

This exchange confirms Mr. Abdelgadir’s awareness of the opioid crisis in Hamilton. Moreover, it is because of that crisis that he was able to profit and run a successful business selling fentanyl.

[18] The observations I have made of the opioid crisis in Hamilton and of Mr. Abdelgadir’s knowledge of the crisis highlight the need to prioritize the goal of both general and specific deterrence. The sentence I impose must send a clear message to the community, and to Mr. Abdelgadir, that people who possess fentanyl for the purpose of trafficking will receive a significant sentence. The punishment must outweigh the profit.

[19] Important in a determination of the appropriate sentencing range is assessing the level of moral blameworthiness of an offender. In this case, Mr. Abdelgadir acknowledged that he sold drugs, including fentanyl, for profit. Drug trafficking was his employment; his source of income. Mr. Abdelgadir is not addicted to drugs or alcohol. Moreover, Mr. Abdelgadir was candid in his testimony about how much fentanyl he was selling. He purchased the fentanyl already prepared. He testified that he purchased 4 kilograms at a time. He sold the fentanyl at the “ball” level (3.5 grams) and higher. Mr. Abdelgadir is not at the top of the drug trafficking hierarchy but he is near the top. I find that Mr. Abdelgadir is on the upper end of a mid-level trafficker.

[20] Justice Code in R v. Haye, [2013] O.J. No. 6493, set out the generally recognized 5 level hierarchy of drug traffickers starting at the bottom end of the hierarchy:

1. Street level seller – small hand-to-hand transactions, often an addict-trafficker;
2. Street level supplier – transactions up to an “eight-ball” or one ounce;
3. Supplier to Street level supplier – multi-ounce transactions
4. Distributor to Supplier – one half kilo to multi kilo transactions;
5. Importer to Distributor

I find that Mr. Abdelgadir is situated in either the fourth category described as distributor to supplier or third category – supplier to street level supplier.

[21] Not only did Mr. Abdelgadir understand the dynamics of the business he was aware of the harm being caused in the community. The following exchange exemplifies that understanding:

Q. Okay. All right. And so you’re very familiar with the idea, obviously, that – the way that you’ve testified, you’re very familiar with the concept that this is about making it work financially, right? A. Correct. Like any business. Q. Right. You have to be able to make the profit margins for it to be – to make sense to do it, right? A. Correct. Q. Okay. And I’m going to suggest, though, that you’re also aware, obviously, because you’ve described what happens to people who are coming down and they’re sick and those kinds of things. You know that this is dangerous stuff, right? A. Correct. Q. And you know that it is very addictive, right? A. Okay Q. And you know that there’s a risk of the end user overdosing and they can die, right? A. Yes. Q. Okay. However, nevertheless, you still engaged in this business to make some money, right? A. Yes.

This candid testimony was very troubling to the court. It is apparent that Mr. Abdelgadir went into this business with his eyes wide open. He knows how addictive fentanyl is, how harmful it is to individuals in the community, that users can overdose and die. Despite that knowledge, he sold fentanyl in Hamilton for profit.

[22] The determination of the appropriate sentence in this case requires consideration of relevant aggravating or mitigating circumstances. Listing the applicable aggravating and mitigating features assists me in evaluating this case properly and imposing a sentence that is just and appropriate.

[23] I view the following as aggravating factors the court is to consider:

1. Fentanyl is a deadly, highly addictive drug.
2. Large quantity of fentanyl was located - over 2 kilograms.
3. Mr. Abdelgadir also in possession of 41.6 grams of MDA and 159 fentanyl pills. With respect to the pills, Mr. Abdelgadir testified that he thought the pills were Percocet’s. He received the pills as a form of payment for fentanyl. His intention was to sell the pills as Percocet’s. Those pills contained fentanyl which makes his possession and expressed intention of selling them all the more dangerous. Had Mr. Abdelgadir sold those pills, the user may very well have overdosed since they were being marketed as something other than fentanyl.
4. Mr. Abdelgadir was a high mid-level dealer.
5. Mr. Abdelgadir was motived purely by greed and money.
6. Mr. Abdelgadir was aware of the opioid crisis, the addictive nature of fentanyl, and the danger it poses to people who use it but nonetheless continued to operate his enterprise.
7. Mr. Abdelgadir has a recent and related criminal record. In October 2019 he was found guilty of a CDSA 5(2) offence and was sentenced to the equivalent of a 4-year sentence. At the time of this offence he was on parole for that finding. Wearing an ankle monitor while on parole for the very same offence did nothing to deter Mr. Abdelgadir.

[24] I view the following a mitigating factor the court is to consider:

1. This was a guilty plea entered into following the conclusion of a Garofoli application.
2. Mr. Abdelgadir is an intelligent, articulate 29-year-old man. He is capable of rehabilitation.
3. I take into account the social context evidence relating to Mr. Abdelgadir’s life experience which mitigates to some degree the responsibility Mr. Abdelgadir’s responsibility for the offence. Specifically, I note that Mr. Abdelgadir is a young black man. He was raised in Hamilton. He attended school in Hamilton. The Hamilton School board has been contending with systemic racism within the school systems and has been called upon to provide better support for black youth in high school. Mr. Abdelgadir did not complete high school on the traditional path. He is one of many black students who left high school. The events that led him to leave school related to his troubled relationship with his father and being removed from his home by CAS. He suffered abuse at the hands of his father. Although Mr. Abdelgadir does not suggest that he was the victim of direct racism, counsel submits, and I accept that the community, because of systemic racism, failed to support Mr. Abdelgadir during his formative years.

Sentencing Range

[25] Justice Moldaver noted in Parrento that the appropriate range for a large-scale trafficker of fentanyl should be mid level double digit penitentiary sentence to life imprisonment.

[26] The Ontario Court of Appeal in R v. Campbell, 2022 ONCA 666, upheld a sentence of 6 years for a person who had trafficked 14.33 grams of heroin laced with fentanyl for profit by a mid-level trafficker with a lengthy but dated record. Mr. Abdelgadir possessed a much greater quantity of fentanyl for trafficking, and fentanyl pills and MDA. He has a recent and related criminal record and was on parole at the time of this offence. The sentence he receives ought to be substantially higher than 6 years.

[27] In R v. Sidhu, 2019 ONCA 880 the Court of Appeal upheld the trial judge’s sentence of 8 years and 2 months for a mid-level trafficker who possessed 42.8 grams of fentanyl, 214.3 grams of crystal meth and 42.8 grams of heroin. The sentence Mr. Abdelgadir receives ought to be substantially higher than that because he possessed over 2 kg of fentanyl.

[28] The Ontario Court of Appeal upheld Justice Agro’s sentencing decision in R v. Ribble, 2021 ONCA 897. The 9-year global sentence. The amount of fentanyl in Mr. Ribble’s possession was significantly lower than that held by Mr. Abdelgadir. Further, Mr. Ribble’s criminal record was dated, and he had never served a federal sentence. The sentence Mr. Abdelgadir receives should be higher than the sentence imposed on Mr. Ribble.

[29] Justice Latimer imposed a 13-year sentence for an offender in possession of 3 kilograms of fentanyl in R v. Fuller, [2019] O.J. No. 4702. Mr. Fuller was found to be acting purely for profit and engineered a large-scale drug trafficking operation. In imposing this sentence, Justice Latimer noted that Mr. Fuller was remorseful and had entered a guilty plea which factored heavily in Mr. Fuller’s favour. Although Mr. Fuller had more fentanyl than Mr. Abdelgadir possessed, Mr. Fuller had the additional mitigating factors that are absent from Mr. Abdelgadir – namely that Mr. Fuller plead guilty at a very early opportunity and demonstrated remorse and a commitment to ridding himself of the drug trade. The sentence Mr. Abdelgadir receives should be similar to that imposed on Mr. Fuller.

[30] In R v. Dalia, 2023 ONSC 2114, Justice Goodman imposed a 13-year sentence following a trial were Mr. Dalia was found in possession of 1.7 kilograms of fentanyl, 614 grams of cocaine and a BB gun. He had a related criminal record and had previously served a federal sentence. The facts of Mr. Abdelgadir’s case are similar to Mr. Dalia. The sentence Mr. Abdelgadir receives ought to be similar to the sentence imposed on Mr. Dalia.

Conclusion

[31] Having considered the circumstances of this offence, the circumstances of the offender, the case law and submissions provided by counsel and having regard to the aggravating and mitigating circumstances in the present case, I am of the view that the position taken by the defence of 8 years minimizes the aggravating factors and does not adequately address the principle of denunciation and general deterrence.

[32] I am also of the view that position taken by the PPSC does not give adequate weight to the mitigating factors nor the rehabilitative potential of Mr. Abdelgadir.

[33] Balancing the need to denounce this conduct in our community and contribute to the law and respect for the law and the maintenance of a just peaceful and safe society while still encouraging rehabilitation in my view does require the imposition of a significant penitentiary sentence of 13 years.

[34] We will note the total sentence before pretrial custody on count 1 to be 13 years. Mr. Abdelgadir has been in custody since arrest but will be credited with pretrial custody commencing on December 4, 2022 which is 314 days. That will be enhanced at the Summers credit to 471 days or 15.5 months. The remnant sentence to serve is 140.5 months.

[35] On count 2 the sentence will be 4 years concurrent.

[36] On count 4 the sentence will be 2.5 years concurrent.

[37] I also make order for DNA and section 109 order for life.

Released: October 13, 2023 Signed: Justice Amanda J. Camara

Footnotes:

[7] Transcript of the Proceedings, August 29, 2023, at pages 59-60. [9] Transcript of the Proceedings, August 29. 2023, pages 56-57.