ONTARIO COURT OF JUSTICE
DATE: 2025-06-27
COURT FILE No.: Windsor 23-81100123
BETWEEN:
His Majesty the King
— AND —
Abdalaazim Malik Harun
Before Justice S. G. Pratt
Heard on 9, 30 October, 7 November 2024, 6 January, 14 March, 23 April, 5 June 2025
Reasons for Judgment released on 27 June 2025
Mitchell Witteveen — Counsel for the Crown
Adetayo Akinyemi — Counsel for the Defendant
Reasons for Judgment
Pratt J.:
[1] On 9 October 2024, the trial of this matter began. On 23 April 2025, the Offender Abdalaazim Malik Harun changed his pleas on counts 2 and 3. These counts alleged the possession of methamphetamine and fentanyl for the purpose of trafficking. I ordered a Pre-Sentence Report and heard sentencing submissions on 5 June 2025. These are my reasons for sentence.
Facts
[2] The facts of this case are as disclosed in the trial and in the statement read into the record by the Crown. This is a brief summary of the allegations against the Offender.
[3] In December 2022, the Ontario Provincial Police began investigating the Offender as a potential drug trafficker in the town of Kingsville. Police were concerned he was selling cocaine, fentanyl, and methamphetamine.
[4] In January 2023, a search warrant was executed at 1038 Maple Avenue. In a bedroom of the residence, police found a bag. Inside the bag was:
(1) 40.27g of fentanyl;
(2) 21.46g of powdered cocaine;
(3) 12.7g of crack cocaine; and
(4) 345.27g of crystal methamphetamine.
[5] Police also seized $915 in Canadian currency, two digital scales, and a quantity of Ziploc plastic bags. One of the scales tested positive for cocaine, crystal methamphetamine, and fentanyl.
[6] It is acknowledged through his plea that the Offender had the requisite knowledge and control of the drugs found in the residence, and that he possessed them for the purpose of trafficking.
Positions of the Parties
[7] For the Crown, counsel seeks a sentence of 7 years on count 3 and 5 years concurrent on count 2. Counsel also seeks a DNA order on each count and a mandatory s. 109 weapons prohibition.
[8] For the Offender, counsel seeks a sentence of 5 years concurrent on each count. The ancillary orders were not disputed.
[9] Both counsel agree the Offender should receive credit for his pre-sentence custody. I was advised this custody totalled 498 actual days as of the date of sentencing submissions. As of today’s date, that is now 520 days. Applying the standard 1.5:1 credit for pre-sentence custody results in an enhanced total of 780 days. This will be deducted from the sentence I impose.
The Pre-Sentence Report
[10] The Pre-Sentence Report (PSR) prepared for the Offender was filed as an exhibit. It describes the Offender’s upbringing and family history. It is very helpful to me in determining an appropriate sentence.
[11] The Offender was born in Sudan. His family moved to Kenya when he was an infant to escape a war. They remained in Kenya for ten years, at which point the entire family, except for the Offender, moved to Canada. The Offender remained in Kenya for five more years, residing with his uncle. He then joined his family in Saskatchewan, where they remained for four years. They then moved to Leamington.
[12] The Offender completed high school with no difficulties. He was involved in extracurricular activities in Saskatchewan but not in Leamington. He told the PSR author he always had a close relationship with his family, though that relationship has become strained given his criminal activity.
[13] He has held jobs in the fast-food industry and in food processing. He also drove a taxi. He is currently unemployed but will seek employment on his release from custody.
[14] Regarding substance use, the Offender told the author he does not drink alcohol. While he began smoking marijuana at 16 years old, and continued to do so until his incarceration, he said he does not use any other substances. He is not, therefore, engaging in drug trafficking to support his own addiction. He says he fell in with the wrong group, and was attracted to illegal activity for the financial potential it offered.
[15] His mother told the author her son is a nice person who helps out family members. She said the charges did not reflect who he really is. She said he would be welcome to live with the family on his release so long as he followed the household rules.
[16] Overall, the PSR is generally positive. The Offender and his family fled war in their native Sudan, living for several years in Kenya and then in Canada afterwards. The Offender’s childhood was largely positive. He completed high school and has been in the work force. He has no ongoing physical or mental health challenges. All of this bodes well for his future. He is before the Court having chosen to pursue the allegedly easy money to be found in drug trafficking.
Principles of Sentencing
[17] The trafficking of Schedule I substances is a gravely serious offence. So too is possessing those substances for the purpose of trafficking. It is difficult to turn on the news or open a newspaper without seeing the crushing societal effects of addiction. Thousands of Canadians are killed every year by the very substances the Offender possessed. The currency, the scales, and the Ziploc bags show he was clearly intending to sell them. I must emphasize denunciation of his conduct, and deterrence of future similar conduct in fashioning a fit sentence. I cannot ignore the Offender’s rehabilitative prospects, but they must be subordinate to these objectives.
[18] I note that s. 718 of the Criminal Code begins by stating the fundamental purpose of sentencing. That purpose is to protect society and contribute to respect for the law. Sentences must be imposed that help maintain a just, peaceful, and safe society. When a person chooses to sell poison for financial gain, the sentence imposed must keep these fundamental purposes top of mind.
Caselaw
[19] The Crown filed several cases in support of its position. I have considered all of them, even if I do not mention them specifically in these reasons.
[20] Several cases relate to the inherent danger of fentanyl and to the approach courts should take when sentencing offenders in relation to it.
[21] The case of R. v. Loor, 2017 ONCA 696 stands for the proposition that traffickers of significant amounts of fentanyl, even with no prior criminal records, should expect penitentiary sentences. I would find the same assertion applies to convictions for possession for the purpose of trafficking. Without question, the trafficking of fentanyl is exceptionally serious criminal behaviour. So too is possessing it in advance of sale. On this point, the parties agree a penitentiary sentence is required.
[22] In the case of R. v. Cinelli, 2018 ONSC 4983, Justice Bawden reviewed the grim statistics that show the deadly effect opioids have on society. I accept His Honour’s analysis on this point but note that the case is from several years ago. I have no reason to believe the situation has gotten anything but worse in the seven years since.
[23] His Honour also noted the special danger that powdered fentanyl poses, not only to users but to first responders who must be vigilant in handling the substance or any items potentially contaminated by it.
[24] The case of R. v. Lynch, 2022 ONCA 109 was a decision by Justice Nordheimer that required the analysis of fit sentencing ranges for fentanyl trafficking. At paragraph 15, His Honour stated:
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 a much more dangerous drug than almost any other. That reality directs that a sentence imposed for trafficking in fentanyl should be as long or longer than a corresponding sentence for trafficking in cocaine: R. v. Olvedi, 2021 ONCA 518, para 56, leave to appeal to S.C.C. requested, 39854.
[25] The application for leave in Olvedi, noted above, was dismissed.
[26] In Cinelli, the offender pleaded guilty to possessing 63g of heroin and 20g of fentanyl for the purpose of trafficking. He received a sentence of 7 years on each, to be served concurrently. That offender had just under half the amount of fentanyl that the Offender before me possessed.
[27] In R. v. Gagnon, 2017 ONSC 7470, the offender was convicted of possessing 43.76g of methamphetamine and 12.34g of fentanyl for the purpose of trafficking. Justice Conlan noted that Gagnon possessed “not one but two very dangerous substances, each not in an insignificant quantity”. In the result, Gagnon was sentenced to four years on the fentanyl count and 581 days (approximately 19 months) on the methamphetamine count. In the present case, the Offender possessed approximately eight times more methamphetamine than Gagnon did, and more than three times the amount of fentanyl.
[28] Returning to the Lynch decision, there the offender pleaded guilty and took responsibility for 965.01g of cocaine, 149.28g of MDMA, and 41.37g of fentanyl. At the trial level he was sentenced to four years in jail. On appeal the sentence was increased to six years.
[29] Finally, in R. v. Davison, 2021 O.J. No. 4930 (C.J.), another more recent case, Justice Wendl sentenced an offender who possessed 20.41g of fentanyl for the purpose of trafficking. His Honour imposed a 6-year sentence.
[30] In addition to the fentanyl in his possession, the Offender has also taken responsibility for 345.27g of methamphetamine. The significance of that possession should not be lost in the Court’s concern over fentanyl. That is a substantial amount of another very dangerous and addictive drug.
[31] The case of R. v. Griffith, 2020 ONSC 1387 is relied on by the Crown not for its direct applicability but by analogy. In that case, a mid-level cocaine trafficker, in possession of 424g of powdered cocaine and 28g of crack cocaine, received a sentence after trial of 3 ½ years jail. The Crown argues that methamphetamine is effectively equal to cocaine in its seriousness and that therefore a mid-level methamphetamine sentence should be in the same 2-5 year range.
[32] I have been provided with no cases that equate methamphetamine and cocaine in terms of their seriousness, but I accept the general principle. To the extent that there is a hierarchy among Schedule I substances, I agree that methamphetamine is at least as serious as cocaine. It is an addictive, damaging drug that can destroy users’ lives. Its possession and intended sale must be denounced harshly.
[33] In the case of R. v. Hillier, 2021 O.J. No. 6681 (C.J.), Justice Javed sentenced an offender to 12 months jail for the possession of 19.7g of methamphetamine for the purpose of trafficking. This was concurrent to a sentence for the same offence regarding fentanyl.
[34] R. v. Vicare, 2023 N.B.J. No. 166 (P.C.) saw an Indigenous offender sentenced to two years jail for possessing 24.91g of methamphetamine for the purpose of trafficking.
[35] The caselaw certainly includes many other examples of lengthy sentences for s. 5(2) offences involving much smaller quantities of methamphetamine than was possessed by the Offender. I remind myself that counsel are essentially joint on the submission of a five-year sentence in the present case. I agree such a sentence would reflect the seriousness of the drug as well as the alarming amount of it the Offender possessed.
Mitigating and Aggravating Factors
[36] In my view, the chief mitigating factor in the Offender’s favour is his stable family support. This will be invaluable to him on his release from custody and will go a long way in ensuring he does not come back before the courts. My hope is that he recognizes what an asset their support is.
[37] I also acknowledge the Offender’s guilty plea. While any guilty plea is a mitigating factor and a sign of remorse, I find it is less compelling in this case than it might have been under different circumstances. The Offender only changed his pleas to guilty after an unsuccessful Charter application where he sought the exclusion of the drugs that form the basis of the charges. If there is a spectrum of mitigation for guilty pleas, where at one end are pleas entered in the face of a weak Crown case and a strong chance of acquittal, and at the other end are pleas entered in acceptance of the inevitable, I find the pleas in this case land closer to the latter end. There is, however, still some mitigation to be found.
[38] Counsel for the Offender has argued for additional credit on the Offender’s pre-sentence custody. This credit has become known as Duncan credit, after the Court of Appeal for Ontario’s endorsement in R. v. Duncan, 2016 ONCA 754, para 6. Inmates are already given enhanced credit for pre-sentence custody, but Duncan credit allows a sentencing court to go beyond that and award additional credit when pre-sentence conditions are “particularly harsh”.
[39] The issue to be determined in this case is to what extent I can take judicial notice of particularly harsh conditions at the Southwest Detention Centre, as Counsel has provided no evidence in support of this claim. I do not have lockdown records or cell assignments, or any documents setting out time spent by the Offender in segregation. I am asked simply to accept as notorious that conditions at the SWDC merit Duncan credit.
[40] Crown counsel disagrees with this submission. Without evidence on how the conditions might have impacted this offender directly, he argues I cannot make the requested leap and grant additional mitigation.
[41] There have been instances where courts have indeed taken judicial notice of particularly harsh pre-sentence conditions. Justice Schreck did so in R. v. Donison, 2022 ONSC 741 with regard to the Toronto South Detention Centre (but see R. v. Grieg, 2024 O.J. No. 5723 (C.J.), where Justice Felix refused to take judicial notice of conditions at Toronto South). The bulk of such cases relate to conditions experienced during the Covid-19 pandemic (see: R. v. Morgan, 2020 ONCA 279; R. v. Batchelor, 2022 ONSC 2392). Without question, conditions were known to be extraordinarily difficult in custodial facilities at that time in history. Since then, however, courts have been reluctant to extend judicial notice as counsel requests here.
[42] I have no evidence on the Offender’s experience of pre-sentence custody. To grant him additional mitigation without any such evidence but instead based solely on conditions that are allegedly well-known, would create a new baseline of enhanced mitigation available to all inmates at SWDC, above and beyond the usual credit. I am not prepared to do that.
[43] Counsel also seeks mitigation for time spent on strict bail conditions. This is referred to as Downes credit, after the Court of Appeal decision in R. v. Downes, 2006 ONCA 3957, para 33-34. At paragraph 33 of that decision, Justice Rosenberg said:
Accordingly, I conclude that time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. However, like any potential mitigating circumstance, there will be variations in its potential impact on the sentence and the circumstances may dictate that little or no credit should be given for pre-sentence house arrest.
And at paragraph 34:
I also agree with Ms. Paine, and to a large extent with Mr. Doucette, that it is inappropriate to adopt a rigid formula because there can be such a wide variation in bail conditions and even house arrest conditions. In some cases, the terms of the house arrest may impinge very little on the offender's liberty. Some accused may be allowed to work as usual, take care of their family obligations as usual and in general, see little serious impact on their pre-bail way of life. For others, house arrest may be very difficult. The accused may find themselves essentially confined to a very small space, cut off from family and friends and unable to obtain employment.
[45] I have reviewed the release order made by Justice Howard of the Superior Court of Justice. Among other conditions, it includes 24-hour house arrest with very limited exceptions. He could be outside his residence between 8am – 8pm but only if in the immediate company of one of his two sureties. There was also a narrow exception related to medical emergencies. Notably, the order required the Offender to “[b]e in the company of at least one of the applicant’s two sureties at all times, 24 hours a day, 7 days a week.” I take this to mean that even when in his residence, the Offender needed to be in the company of a surety.
[46] He was also not permitted to leave Essex County and was ordered to report to the Essex County OPP once a week.
[47] I agree this was a very restrictive bail order. House arrest was nearly absolute, and even when in the residence the Offender had to be in the company of a surety. There was no real opportunity for him to attend school or seek employment. His movements were significantly restricted.
[48] I do note, however, that this order related not only to the information before me, but also to two other informations as well. In addition to the present charges, the Offender was facing allegations of sexual assault and interference, mischief, and failing to stop. Surely these other charges played a role in the determination of appropriate release conditions.
[49] Further, I was told the Offender breached this bail order in September 2024. He therefore spent approximately 13 months bound by the order before returning to custody.
[50] I find there is some mitigation to be assessed for Downes credit. The Offender lived for 13 months under very strict conditions. That fact will be included in my analysis and will mitigate the sentence I ultimately impose.
[51] Finally, counsel asks me to consider the immigration consequences the Offender will face as a result of this matter. As a permanent resident in Canada, he will be subject to a possible removal order. As it is agreed the sentence will be more than six months custody, he will not have the ability to appeal that order if it is made (though he will still have the ability to seek judicial review of it). Counsel asks that I include this consequence in determining a fit sentence, but candidly, I don’t really see how it should or even could impact the sentence I impose. The consequences will be the same whether I accede to counsel’s request for a five-year sentence or to the Crown’s request for a seven-year sentence. In these circumstances, I do not see how immigration consequences play a role in sentencing.
[52] Finally, I will address the Offender’s motivation for the offences. In the PSR, the Offender said he had no addictions of his own. He was not, therefore, an “addict trafficker”, but was engaged in the sale of drugs for profit. In Drug Offences in Canada (4th edition, Macfarlane, Frater, Michaelson) the authors state in chapter 35:
As a general rule, the courts have drawn a distinction between those persons who engage in the business of trafficking purely for financial gain and those who traffic in drugs primarily for the purpose of securing sufficient funds to satisfy their own drug dependence; greed is a much less sympathetic characteristic than the throes of addiction. See in this regard:
R. v. Draper (2010 MBCA 35, para 24);
R. v. McCulloch (2011 ABCA 124).
(Emphasis added)
[53] The sale of drugs purely for profit may not be an aggravating factor, but it certainly removes any mitigation the Offender may have received had he been selling only to support his own addiction.
[54] In aggravation, I note the significant quantities of the drugs involved. Over 40g of fentanyl is enough, to be blunt, to kill thousands of people. It is hard to understate the lethality of fentanyl, and the Offender had a large amount ready for sale.
[55] Likewise, the amount of methamphetamine is considerable and far in excess of what would have been needed to show possession for the purpose of trafficking. I remind myself not to use an element of the offence as an aggravating factor, but in this case, the amounts seized go beyond satisfying an element of the offence and show the scope of the Offender’s business. The presence of currency, plastic bags, and a scale that itself had fentanyl, methamphetamine, and cocaine on it show the Offender was actively involved in the drug trade. There is no other reasonable inference available on these accepted facts.
[56] I also return again to the Lynch decision, supra. At paragraphs 16 and 17, Justice Nordheimer considered the moral blameworthiness of offenders who sell especially deadly drugs like fentanyl. His Honour disagreed with the trial judge, who equated fentanyl traffickers with sellers of other drugs, and said:
Even if true, the fact that fentanyl traffickers may be the same people that traffic in other drugs has no bearing on their moral blameworthiness for choosing to traffic in fentanyl, a particularly dangerous drug. As the majority recognized in Parranto, at para. 70, moral culpability rises with the risk of serious harm the trafficker is prepared to expose others to.
There is good reason for this. The problems that dangerous drugs pose for our society are well known. They involve drug addiction, adverse health consequences and, unfortunately all too often, death. Further, drugs are often sold to already vulnerable people thereby exacerbating their difficult circumstances. Still further, there are the indirect costs to society through increased health care expense, increased demands on the health care system, increases in robberies or other forms of criminal activity, and increases in violence. Simply put, the greater those risks are when a particular drug is being trafficked, the greater the offender’s culpability or moral blameworthiness for choosing to traffic in that drug.
[57] Those who would possess potentially deadly drugs for the purpose of sale to others must bear the responsibility of their decision. Their moral blameworthiness is great. Rehabilitative prospects and plans for the future do not take away from the gravity of their actions. The seriousness of the offences and their impact on society are why denunciation and deterrence must be given paramount importance.
Analysis
[58] As I said, Crown counsel seeks a sentence of seven years jail on the fentanyl count and five years concurrent on the methamphetamine count. The Offender’s counsel seeks a five-year sentence on each, to be served concurrently.
[59] The Offender’s counsel concedes the range for the fentanyl count starts at 6 years. His argument for a sentence below that level essentially comes down to the suggestion that if six years would be a fit sentence, five years would not be demonstrably unfit. He submits, effectively, that if six years is reasonable, five years is close enough.
[60] I cannot accept that argument. It would require me to disregard binding and persuasive caselaw and would neuter any notion of a sentence starting point, which remains an available tool for sentencing judges after R. v. Parranto, 2021 SCC 46, [2021] S.C.J. No. 46. That is not to say there will never be a case where a sentence below the accepted sentencing range will be appropriate. Sentencing courts must retain the freedom and discretion to sentence based on the offence and the offender before them, and not be constrained by ranges that are tantamount to straitjackets (see: Parranto at para. 37). To preserve the important principles of parity and predictability, however, there must be some valid reason for the departure. “Close enough” is not such a reason.
[61] In the present case, the Offender possessed large quantities of fentanyl and methamphetamine, together with paraphernalia that showed he was intending to sell it. He also possessed smaller quantities of powder and crack cocaine. He has admitted to entering the drug trade purely for profit. For the sake of easy money, he possessed deadly drugs he intended to sell to vulnerable users. His moral blameworthiness is extremely high.
[62] He is a young man with a future as bright as he wants it to be. I must keep in mind that he is not beyond the scope of redemption. I cannot impose a sentence that is crushing or out of line with other similar cases.
[63] That said, I must emphasize the protection of society, denunciation, and deterrence. Like-minded individuals must know that crimes like these will involve long jail sentences, even for first-offenders. The Offender will be sentenced as follows:
On count 3, 6 ½ years or 2,372 days jail, minus credit for 520 actual days of pre-sentence custody enhanced to 780 days. This results in a further 1,592 days to be served.
On count 2, five years or 1,825 days jail, concurrent to count 3, minus 780 days of enhanced pre-sentence credit. This results in a further 1,045 days to be served concurrent to count 3.
There will be an order that the Offender provide a sample of his DNA to the Ontario Provincial Police for inclusion in the national DNA databank, forthwith, on both counts.
There will be weapons prohibitions pursuant to s. 109 of the Criminal Code for ten years, on both counts.
The items seized by police will be subject to forfeiture to His Majesty the King in right of Canada.
[64] Given the custodial sentences, I will waive the victim surcharges.
[65] The Offender is a young man with a future. My hope for him is that he takes advantage of the support his family is giving him, and that we never see him back in these courts again.
Released: 27 June 2025
Signed: Justice S. G. Pratt