DATE: November 20, 2023
ONTARIO COURT OF JUSTICE Toronto
BETWEEN: HIS MAJESTY THE KING — AND — ALI LALJI
For the Crown: F. Alibhai For the Defendant: R. Pillay Submissions heard: September 28, 2023
REASONS for SENTENCE
RUSSELL SILVERSTEIN, J.:
A. Introduction
[1] On November 13, 2020, after a trial, I found the offender, Ali Lalji, guilty of conspiring with Yaroslav Pastukhov, and others, to import cocaine into Australia.
[2] On December 3, 2019, after pleading guilty to the same conspiracy before Pringle J., Mr. Pastukhov was sentenced to nine (9) years’ imprisonment, less some credit for pre-sentence custody.
B. The Circumstances of the Offence
[3] What follows is a summary of the details of this offence. My trial judgment, R. v. Lalji, 2023 ONCJ 45, sets out the circumstances of the offence in detail.
[4] On December 22, 2015, Robert Wang, Porscha Wade, Kutiba Senusi, Jordan Gardner and Nathaniel Carty arrived in Australia with approximately 40 kilograms of cocaine secreted in suitcases they were given by unknown third parties in Las Vegas. The cocaine had a street value of approximately $22 million.
[5] The five were arrested by Australian authorities and the cellular telephones of all five individuals were seized by the Australian Border Force and ultimately provided to Canadian authorities.
[6] These devices were examined by the RCMP, revealing evidence demonstrating that Mr. Lalji and Mr. Pastukhov, conspiring with unidentified people in Las Vegas, were responsible for recruiting Robert Wang and Porscha Wade to import cocaine into Australia on December 22, 2015.
[7] In particular, the data on the phones demonstrated that:
- Mr. Lalji attempted on December 2, 2015, to convince Robert Wang to proceed with the trip to Australia by offering to “sweeten” the deal for him.
- Mr. Lalji paid for Robert Wang and Porscha Wade's airline tickets departing on December 17, 2017.
- Mr. Lalji was an active participant in the Whatsapp chat group that oversaw the trip and ensured that Robert Wang and Porscha Wade reached their destination safely. He kept abreast of their trip to Pearson International Airport and directed Wang to let Mr. Pastukhov and himself know when they had checked in.
- Mr. Lalji was privy to the steps taken to securely receive the cocaine laden luggage in Las Vegas including the use of a serial number for a $1 bill.
- Mr. Lalji admonished Porscha Wade and Robert Wang to “clean their phones”.
[8] Mr. Lalji was, in effect, Mr. Pastukhov's deputy in Canada. Their job was to recruit friends willing to fly to Las Vegas, meet other co-conspirators there, swap their suitcases for suitcases filled with cocaine and then travel on to Australia. These recruits were paid $10,000 each, over and above the all-expenses-paid trip to Australia.
[9] Mr. Lalji and Mr. Pastukhov had made the trip themselves on a prior occasion.
[10] Mr. Lalji was entrusted by Mr. Pastukhov with important oversight responsibilities in the conspiracy. Mr. Lalji was in a high enough position in the conspiracy to convince the Las Vegas members to increase Mr. Wang's remuneration. He had a close enough relationship with the Las Vegas crew such that he felt comfortable spending his own money on Mr. Wang and Ms. Wade's airline tickets, knowing he would be re-imbursed.
C. The Circumstances of the Offender
[11] Mr. Lalji is now 35 years old. He was 27 when he committed the offence. He has no prior convictions and is a Canadian citizen.
[12] The court has received over 30 letters of support and commendation as well as a comprehensive presentence report from Sarah Isaacs, a private forensic counsellor.
[13] Mr. Lalji is well educated and well loved by his family and friends. He has travelled the world and is an accomplished musician. He speaks several languages. He has a strong record of employment. He is described by his many friends and family members as kind, humble and generous. He has an enviable record of volunteer activity.
[14] He was drawn to the world of hard drug and alcohol use with former colleagues when he lost a significant relationship. This contributed to loss of a job and loss of income. These factors led to him succumbing to the temptation of the quick money of drug smuggling.
[15] He is now in a stable relationship with Jennifer Sherman who is aware of his predicament and remains supportive.
D. The Positions of the Parties
[16] Mr. Pillay argues for a sentence of six years less credit for presentence custody and further credit for over four years of strict bail conditions.
[17] Mr. Alibhai seeks a sentence of 11 years less credit for presentence custody and over four years of strict bail conditions.
E. The Principles of Sentencing
[18] The principles of sentencing are set out in Part XXIII of the Criminal Code.
[19] According to s. 718 of the Criminal Code, the "fundamental purpose" of sentencing is to contribute 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, namely: (a) to denounce unlawful conduct; (b) to deter the offender and others 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 the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.
[20] Further, according to s. 718.1 of the Code, the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."
[21] Section 718.2 of the Code also dictates that, in imposing sentence, the court must also apply a number of principles including the following:
- A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
- A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
- Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
- An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,
- All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
[22] When it comes to the importation of cocaine, the primary aim in sentencing is denunciation and general deterrence. This type of offence is more likely to be influenced by a general deterrent effect as it ordinarily requires some degree of planning. R v. Maric, [2019] O.J. No. 2757 (S.C.J.); R v. Duncan, 2016 ONSC 1319, [2016] O.J. No. 1013 (SCJ); R v. Pastukhov, [2019] O.J. No. 6273 (O.C.J.); R v. Tello, 2018 ONSC 2259, [2018] O.J. No. 2201 (S.C.J.) aff’d [2023] O.J. No. 2274 (C.A.).
F. The Aggravating Circumstances
[23] The amount of cocaine smuggled into Australia is extremely aggravating. Cocaine is an extraordinarily dangerous drug. 40 kilograms of cocaine, had it successfully entered the Australian drug market would have had significant consequences. R v. Duncan, 2016 ONSC 1319, [2016] O.J. No. 1013, para. 26.
[24] Mr. Lalji was involved in facilitating the importation of the entire quantity, even though there was no evidence that he had direct involvement with Kutiba Senusi, Jordan Gardner or Nathaniel Carty.
[25] While Mr. Lalji was not the leader of the conspiracy he was nonetheless in a trusted position. He had the confidence of the leaders. He had personally (with Mr. Pastukhov) participated on an earlier occasion as a courier, before graduating to a position of greater authority as Mr. Pastukhov’s deputy of the Canadian operation.
G. The Mitigating Circumstances
[26] Given the tremendous support of his friends and family as well as his fundamentally good character I do not believe that Mr. Lalji is at risk of committing further criminal offences. I believe he has great prospects for rehabilitation.
[27] He clearly regrets the poor decisions he made several years ago. Notwithstanding his choice not to plead guilty, I sense that he is nonetheless somewhat remorseful.
H. The Most Relevant Precedents
[28] It is a well settled principle of criminal law that similar sentences should be imposed on similar offenders for similar offences in similar circumstances. Criminal Code, s. 718.2 (b); R. v. Lacasse, 2015 SCC 64 at para 2.
[29] That parity principle notwithstanding, sentencing is fundamentally an individualized process.
(a) R. v. Maric, supra
[30] Mr. Maric was convicted of conspiracy to traffic cocaine after a brief trial based on an agreed statement of facts. He played a significant role in a long-term trafficking scheme involving an amount of cocaine similar to the amount imported into Australia in Mr. Lalji’s case.
[31] Mr. Maric had an old, unrelated criminal record which played little role in his sentencing. He had a difficult youth, raised in war-torn Croatia, but he had done well in education and employment after coming to Canada. He enjoyed significant support from family and friends. He was sentenced to the equivalent of nine years’ incarceration.
(b) R. v. Pastukhov, supra
[32] As concerns the notion of parity, Mr. Pastukhov’s case is extremely significant. Even though his role in the conspiracy was somewhat greater than that of Mr. Lalji, they committed the very same crime.
[33] Like Mr. Lalji, Mr. Pastukhov had no prior criminal record.
[34] Mr. Pastukhov came from a disadvantaged upbringing, yet after coming to Canada he did well. He was 23 years old when he committed his crime. He entered an early guilty plea. After finding that Mr. Pasthukov was a “middleman” in the grand scheme, Pringle J. sentenced him to the equivalent of nine years.
I. Analysis
[35] The principle of parity dictates that Mr. Lalji’s sentence should be roughly equivalent to that of Mr. Pastukhov, but somewhat lighter than Mr. Pastukhov’s sentence given the former’s less senior role in the conspiracy. On the other hand, Mr. Lalji’s sentence should not be mitigated in the fashion that Mr. Pastukhov’s was because of the latter’s guilty plea.
[36] Both men were youthful first offenders who do not pose a threat to commit further offences.
[37] Mr. Maric’s case is also sufficiently like Mr. Lalji’s case such as to offer strong guidance when arriving at a sentence for Mr. Lalji.
[38] I reject Mr. Pillay’s argument that in the absence of evidence as to the danger posed to Australia by the importation of 40 pounds of cocaine, Canadian sentencing authorities must be approached with caution. The Supreme Court has recognized the international ramifications of the drug trade. See R. v. Pearson, , [1992] 3 S.C.R. 665 at para. 60. Conspiring to import cocaine into Australia is no less serious than importing the drug into Canada.
[39] I also reject Mr. Pillay’s argument that the decision by Australian authorities not to seek Mr. Lalji’s extradition should play a role in the determination of a just sentence.
J. Conclusion
[40] Considering the principles of sentencing outlined above, the circumstances of the offence, Mr. Lalji’s personal circumstances, and the relevant jurisprudence, I sentence Mr. Lalji to the equivalent of 9 years (3,285 days) in the penitentiary.
[41] Mr. Lalji will receive 14 days credit for presentence custody and 500 days credit for his 39.5 months of house arrest and 16 months of curfew.
[42] Mr. Lalji’s effective sentence from today’s date is 2,771 days.
[43] There will be a s.109 order for 10 years and a DNA order.
Released on November 20, 2023 Justice Russell Silverstein