Case Summary

Abdullahi Abti Rage was convicted of three counts of trafficking cocaine, one count of possession of cocaine for the purpose of trafficking, and one count of possession of marijuana. This sentencing decision considered aggravating factors such as the quantity of drugs (over 391 grams of cocaine), commercial gain, sophistication of the operation, and the presence of ammunition. Mitigating factors included no prior criminal record, employment history, community involvement, and strong family commitment, as well as stringent bail conditions and pre-trial custody. The court rejected a conditional sentence, emphasizing the need for denunciation and deterrence, and imposed a concurrent two-year federal penitentiary term for the cocaine-related offences and 30 days for marijuana possession, followed by three years of probation with community service, a lifetime firearms prohibition, and a DNA order. interesting_citations_summary: > The decision provides a detailed application of sentencing principles under the Controlled Drugs and Substances Act and the Criminal Code, balancing denunciation, deterrence, and rehabilitation. It highlights the high threshold for conditional sentences in serious drug trafficking cases, particularly when large quantities of drugs are involved, even in the presence of significant mitigating factors such as a clean record, community involvement, and family support. The court explicitly discusses the consideration of stringent bail terms as a mitigating factor, referencing R. v. Downes, and clarifies that such conditions, while infringing on liberty, do not count towards parole eligibility. final_judgement: > Abdullahi Abti Rage was sentenced to a concurrent two-year term of imprisonment in a federal penitentiary for three counts of trafficking cocaine and one count of possession of cocaine for the purpose of trafficking, and 30 days for possession of marijuana. This is to be followed by three years of probation, including 240 hours of community service. Ancillary orders include a lifetime firearms prohibition under s. 109 of the Criminal Code, a DNA order under s. 487.04 of the Criminal Code, and forfeiture of seized items including currency, drug paraphernalia, and ammunition. winning_degree_applicant: 3 winning_degree_respondent: 5 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2016 decision_number: 4605 file_number: "CR-13-90000090-0000" source: "https://www.canlii.org/en/on/onsc/doc/2016/2016onsc4605/2016onsc4605.html" cited_cases: legislation: - title: "Controlled Drugs and Substances Act" url: "https://laws-lois.justice.gc.ca/eng/acts/c-38.8/" - title: "Criminal Code, R.S.C. 1985, c. C-46" url: "https://laws-lois.justice.gc.ca/eng/acts/c-46/" case_law: - title: "R. v. Rage, 2016 ONSC 2973" url: "https://www.canlii.org/en/on/onsc/doc/2016/2016onsc2973/2016onsc2973.html" - title: "R. v. Woolcock, [2002] O.J. No. 4927" - title: "R. v. Bajada, 2003 ONCA 15687, 173 C.C.C. (3d) 255" url: "https://www.canlii.org/en/on/onca/doc/2003/2003canlii15687/2003canlii15687.html" - title: "R. v. Bryan, 2011 ONCA 273" url: "https://www.canlii.org/en/on/onca/doc/2011/2011onca273/2011onca273.html" - title: "R. v. Murray, 2007 ONSC 32911" url: "https://www.canlii.org/en/on/onsc/doc/2007/2007onsc32911/2007onsc32911.html" - title: "R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61" url: "https://www.canlii.org/en/ca/scc/doc/2000/2000scc5/2000scc5.html" - title: "R. v. Downes, 2006 ONCA 3957, 79 O.R. (3d) 321" url: "https://www.canlii.org/en/on/onca/doc/2006/2006canlii3957/2006canlii3957.html" - title: "R. v. Daley, 2016 ONSC 3513" url: "https://www.canlii.org/en/on/onsc/doc/2016/2016onsc3513/2016onsc3513.html" keywords: - Sentencing - Drug trafficking - Cocaine - Marijuana - Criminal Code - Controlled Drugs and Substances Act - Conditional sentence - Denunciation - Deterrence - Rehabilitation - Mitigating factors - Aggravating factors - Pre-trial custody - House arrest - Firearms prohibition - DNA order areas_of_law: - Criminal Law - Sentencing --- # Court File and Parties **Court File No.:** CR-13-90000090-0000 **Date:** 2016-11-03 **Ontario Superior Court of Justice** **Between:** Her Majesty the Queen – and – Abdullahi Abti Rage, Respondent **Counsel:** Chris De Sa, for the Crown William Jaksa, for the Defendants **Heard at Toronto:** 21 October 2016 --- # Reasons for Sentencing **Graeme Mew J.** [1] On 29 April 2016, Abdullahi Abti Rage was convicted on three counts of trafficking cocaine, one count of possession of cocaine for the purpose of trafficking and one count of possession of marijuana: [2016 ONSC 2973](/on/scj/2016/2973). ## Circumstances of the Offence [2] The arrest and subsequent conviction of Mr. Rage arises from an undercover operation by members of the Toronto Police Service Drug Squad code named “Half Chicken”. [3] An undercover officer developed a relationship with Ali Mohamed Ahmed, from whom the officer purchased drugs on a number of occasions. [4] The investigation broadened out to determine, if possible, the identity of Mr. Ahmed’s supplier. That investigation led to Mr. Rage. [5] Three transactions occurred in which cocaine was purchased from Mr. Ahmed by the undercover officer shortly after Mr. Ahmed had met with, and been supplied by, Mr. Rage. The dates and amounts involved are as follows: (a) 5 October 2011 – 2 round balls of crack cocaine weighing 22 grams purchased for $1,400 (b) 27 October 2011 – 29.06 grams of crack cocaine purchased for $1,750 (c) 10 November 2011 – 85 grams (approximately 7 ounces) of crack cocaine. [6] A search warrant executed on 10 November 2011 at the residence of Mr. Rage and a Toyota vehicle located in the underground parking lot of the building in which Mr. Rage’s apartment was located resulted in seizure of the following: (a) $3,850 in Canadian currency (b) $129 in U.S. currency (c) 2.44 grams of powder cocaine in the apartment (d) 17.43 grams of marijuana in the apartment (e) 252.38 grams of powder cocaine in the vehicle [7] Also seized at the apartment were two sets of digital scales, what was presumed to be a metal cocaine press box and two MDMA pills weighing 0.56 grams. In the vehicle, police also located 45 rounds of ammunition and a 10 bullet magazine. [8] While under observation, Mr. Rage used rental vehicles for the journeys to and from his meetings with Mr. Ahmed. [9] When he was arrested, a further $1760 (Canadian) and $229 (U.S.) was seized from him. [10] Mr. Ahmed is described in the pre-sentence report as a “distant cousin” of Mr. Rage’s. It was Mr. Ahmed who had allegedly asked Mr. Rage to store the Toyota. ## Circumstances of the Defendant [11] Mr. Rage is a 37 year old first-time offender. He was born in Somalia and arrived in Canada between 1989 and 1990 when he was approximately 10 years old. His father died in 1991. His mother resides in Toronto. He has two half siblings with whom he reports positive relationships. [12] It was in 1988 that Mr. Rage’s father determined that it was too dangerous for Mr. Rage and his grandparents to remain in Somalia. While in the process of trying to leave that country, the vehicle that Mr. Rage was in was stopped at a check point. His uncle was removed from the car. Although he did not see what was happening, Mr. Rage heard a gunshot and blood curdling screams as his uncle was killed. [13] After making it to Kenya, Mr. Rage was put on a plane to Canada where his birth mother was already living. This resulted in a sudden and permanent separation from his grandparents who, to that point, were the only family he had really ever known. [14] A report provided to the court by Trish L. Scott, a counsellor, suggests that the escape from Somalia left Mr. Rage with symptoms consistent with post-traumatic stress disorder, although he has never been formally diagnosed. [15] Mr. Rage’s father never made it to Canada. Mr. Rage was 13 when his father died. [16] After initially living with his mother in the Jane/Finch neighbourhood, Mr. Rage then moved to live with an aunt in Scarborough. [17] Mr. Rage got married three years ago. He and his wife have two children: a 2 year old daughter and an 11 month old son. Mr. Rage also has a 12 year old step-daughter from a previous union of his wife. [18] Mr. Rage is currently unemployed, having resigned from his last job to care for his children. He received a secondary school diploma and reports that he is a graduate of Centennial College having received a college diploma in Business Administration and Operation Management in 2007. His varied employment history includes working at an airport, fast food restaurants and community centres. At trial, he gave evidence that his work background included employment with a number of car rental agencies. From March 2011 until the time of his arrest, he was working at a used car dealership. [19] The pre-sentence report discloses that Mr. Rage acknowledges that, prior to his arrest in 2011, he was a sporadic user of both marijuana and cocaine. He began using marijuana at 22 years of age, using it when he was stressed in order to help him sleep. There are no other reports of illicit drugs and/or alcohol abuse issues. [20] According to what Ms. Scott was told by Mr. Rage, he no longer uses drugs of any kind. The last time was the day of his arrest. Ms. Scott suggests that his drug use may have been the result of an attempt to deal with unresolved issues relating to the traumatic experiences Mr. Rage had leaving Somalia and coming to Canada. [21] According to Mr. Rage’s brother, he is an active volunteer in the Somali community. He is said to have performed more than 500 hours of volunteer work which has included driving elderly clients of a community service organization to medical appointments and translating for them, assisting with volunteer activities at a community centre (including working with newcomers to Canada, most recently refugees from Syria) and counselling young people in the Somali community about the dangers of drug use and involvement in crime. [22] Mr. Rage has strong support from his family and his community. A number of letters of commendation were provided on his behalf. [23] He is fully involved in his children’s activities and took primary responsibility for looking after the household while his wife completed a degree in health policy at York University. In the five years since he was charged, his focus has been on raising the children, supporting his wife and working with the community. He has struggled to find steady employment due, in part, to the outstanding charges and bail conditions. His wife says she is confident that her husband has learned from what has occurred. He has taken counselling to, in his wife’s words, “deal with the issues that contributed to him being before the court”. [24] His wife fears the dramatic impact which it would have not only on her but on the children if Mr. Rage was incarcerated. His wife presently works shifts and worries that she may not be able to do so and also fulfill her parenting responsibilities if Mr. Rage is sent to prison. [25] Despite the many positives, his wife acknowledges that one of his weaknesses is that he can "be there" for the wrong people and, it is submitted, that this is what led Mr. Rage into the sphere of influence of his co-accused, Ali Mohamed Ahmed. [26] Mr. Rage has said that he should have had his "eyes opened" in his dealings with Mr. Ahmed and asked more questions. His wife says that Mr. Rage put his trust in the "wrong person" (i.e. Mr. Ahmed). [27] According to Ms. Scott, Mr. Rage presents with what she considers to be "authentic shame". He struggles with the grief and the stress and the fear of the process, something which he has already had to live with for the unusually long period of 5 years since he was charged. ## Pre-sentence Custody and Bail Conditions [28] Mr. Rage was arrested on 10 November 2011 and spent seven days in pre-trial custody. He was then on a strict house arrest for a period of 18 months, followed by a year of curfew. The terms of his house arrest included requirements that he: a. Reside at home with one of his sureties b. Be in his residence at all times, seven days a week, except travelling to and from school, employment, his lawyer's office or while in the direct company of one of his sureties c. Not possess any cellular telephones or pagers. [29] For the past 2 ½ years, most of his bail conditions were relaxed. [30] There have been no non-compliance issues. [31] Mr. Rage is currently participating in individual counselling in order to address personal issues related to the stress and anxiety of his current legal issues. ## Impact on the Community [32] The Ontario Court of Appeal has described cocaine as an “extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society”: R. v. Woolcock, [2002] O.J. No. 4927. [33] By trafficking in cocaine, Mr. Rage became an integral part of a system that delivers this dangerous and insidious drug to its end users. Many of those users are addicts. Vulnerable people whose lives have been blighted and in some cases all but destroyed by cocaine, supplied by people like Mr. Rage. ## Position of the Crown [34] The Crown seeks a term of imprisonment of four to six years less any pre-trial custody as well as a lifetime weapons prohibition order (s. 109 of the [Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/c-46/)), a DNA order (s. 487.04 of the [Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/c-46/)) and a forfeiture order for items seized from the residence and the vehicle, including the metal press, digital scales, mobile phones, an iPhone, a 9 millimetre capacity magazine, 43 x 45 calibre ammunition, $3,850 Canadian currency and $129 U.S. currency. [35] The Crown notes that in total just over 8 ounces of crack cocaine and 8 ounces of powder cocaine (391.02 grams in total) were seized or transacted. [36] The operation which Mr. Rage was part of was a sophisticated one, utilising rental vehicles. Mr. Rage was part of an operation which supplied and sold drugs at the “multi-ounce” level. [37] Mr. Rage was the supplier to a front end trafficker. So, in that context, he was one step above the person who was doing the direct transactions with the undercover officer, and, accordingly, should be seen as having a higher level of culpability. [38] The presence in the vehicle of ammunition is said to be indicative of the level of sophistication of the operation and Mr. Rage’s involvement in it. [39] There is nothing to indicate that Mr. Rage’s involvement was motivated by anything other than profit. He is not a drug addict. [40] Even if the mitigating factors are found by the court warrant a sentence of less than four to five years, the amount of drugs involved should rule out a conditional sentence. A penitentiary sentence should be imposed. ## Position of the Defence [41] The defence position emphasises Mr. Rage’s lack of a criminal record, his complete compliance with the terms of his bail and his strong commitment to family and to community. [42] Until he was charged, he had not experienced extended bouts of unemployment and he remains interested in pursuing employment opportunities that would allow him additional adequate time to be with his children. [43] The defence argues that there is no realistic risk of Mr. Rage reoffending. He poses no danger to the community. [44] Despite the quantity of drugs involved which, the defence acknowledges, would usually result in a penitentiary sentence, the circumstances warrant consideration of a conditional sentence with a period of 12 months of house arrest initially, followed by 6 months’ curfew and 6 months of statutory terms. At the end of that 2 year period, there would then follow a 3 year probation order, which would include 240 hours of community service. [45] The ancillary orders requested by the Crown are conceded. ## Applicable Principles [46] Section 10 of the [Controlled Drugs and Substances Act](https://laws-lois.justice.gc.ca/eng/acts/c-38.8/) provides as follows: **Purpose of Sentencing** (1) Without restricting the generality of the [Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/c-46/), the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and the community. [47] The general principles of sentencing are set out in s. 718 of the [Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/c-46/). Judges passing sentence are required by law to impose a just sanction that has one or more of the following six objectives: 1. To denounce unlawful conduct; 2. To deter the offender and others from committing offences; 3. To separate offenders from society where necessary; 4. To assist in the rehabilitation of the offenders; 5. To provide reparations for harm done to victims or to the community; and 6. To promote a sense of responsibility in offenders, and acknowledge harm done to victims and to the community. [48] As well, the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [49] The sentence must also be similar to those imposed on similar offenders, for similar offences committed in similar circumstances. [50] Other cases involving the possession of a substantial amount of cocaine for the purposes of trafficking suggest a range of five to eight years of imprisonment: [R. v. Bajada (2003), 2003 ONCA 15687, 173 C.C.C. (3d) 255 (ON CA)](https://www.canlii.org/en/on/onca/doc/2003/2003canlii15687/2003canlii15687.html); [R. v. Bryan, 2011 ONCA 273](https://www.canlii.org/en/on/onca/doc/2011/2011onca273/2011onca273.html); [R. v. Murray, 2007 ONSC 32911](https://www.canlii.org/en/on/onsc/doc/2007/2007onsc32911/2007onsc32911.html). [51] At the time of Mr. Rage’s offences, it was open to the court to impose a conditional sentence. Section 742.1 of the [Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/c-46/) lists four criteria that a court must consider before deciding to impose a conditional sentence: 1. The offender must be convicted of an offence that is not punishable by minimum term of imprisonment. 2. The court must impose a term of imprisonment of less than 2 years. 3. The safety of the community would not be endangered by the offender serving the sentence in the community. 4. A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in s. 718 and s. 718.2 of the [Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/c-46/). [52] As the Supreme Court of Canada noted in [R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61](https://www.canlii.org/en/ca/scc/doc/2000/2000scc5/2000scc5.html), a conditional sentence includes both punitive and rehabilitative aspects. Conditional sentences generally include punitive conditions that are restrictive of the offender’s liberty. Conditions such as house arrest are the norm, not the exception. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. [53] However, there may be circumstances where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct or to deter similar conduct in the future. ## Mitigating and Aggravating Factors [54] The aggravating factors in this case include: * the amount of cocaine trafficked and seized * the objective of commercial gain * the sophistication of the operation including the utilisation of rental vehicles * the presence of ammunition suggesting a level of involvement in the drug culture [55] Mitigating factors include: * Mr. Rage has no criminal record * Mr. Rage has a history of employment * Mr. Rage is a contributing member of his community * Mr. Rage is an involved parent and spouse * After being charged, he was subject to house arrest on stringent terms for a period of eighteen months ## Discussion [56] Mr. Rage is a man of previously good character. He is well educated. He has provided for his family. He is by all accounts a caring and involved parent and spouse. [57] There can be no doubt, given this background, that Mr. Rage would understand the seriousness of the criminal enterprise that he decided to participate in. He has personally used cocaine and marijuana for recreational purposes. Although he is not an addict, he must surely know how destructive these drugs, particularly cocaine, can be. [58] When he addressed the court directly at the end of the sentence hearing, Mr. Rage expressed remorse for the effect his charges and conviction have had on his wife, his children, his family and his community. His comments did not, however, address a recognition of the insidious nature of the drugs he was associated with. [59] Although Mr. Rage has said that he trusted the wrong person, the fact is that he allowed his sense of trust, or family loyalty or whatever other sentiment motivated him to get involved in the criminal enterprise of becoming an intermediary in the chain of supplying drugs, to override his good judgment and common sense. By doing so, he has permanently stained his previously law abiding reputation. He has brought disgrace to himself and his family. And most important of all, he has become an active participant in an illegal trade that destroys the lives of tens of thousands of people in this country every year. [60] The amount of cocaine which forms the subject matter of the charges that Mr. Rage has been convicted of is orders of magnitude greater than the amounts involved in the cases cited by defence counsel as supporting consideration of a conditional sentence. [61] The need for deterrence and denunciation will almost always outweigh the prospects for rehabilitation in the sentencing equation in such circumstances. [62] Despite strong mitigating factors, I have concluded that a penitentiary sentence is appropriate and, consequently, a conditional sentence is not an option. I would not, in any event, have imposed a conditional sentence even if I could, because to do so would not, in my view, be consistent with the purpose and principles of sentencing set out in the [Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/c-46/). In particular, a conditional sentence would not give sufficient weight to the objectives of general and specific deterrence nor would it adequately denounce Mr. Rage's criminal behaviour. [63] I am, however, firmly of the view that Mr. Rage’s prospects for rehabilitation are good. Since he was charged, he has lived a very different life. He is now a married man and a father of two young children to whom he is, by all accounts, a devoted father. He has lived, for the lengthy period of five years, under the dark clouds of the criminal charges faced by him. He has submitted to, at least initially, onerous bail conditions with which he has been fully compliant. [64] Indeed, it does seem that the offences Mr. Rage has committed are out of character. At the age of 37, he has a hitherto clean record. [65] I am also required to consider, as a mitigating factor, time spent under stringent bail terms: [R. v. Downes (2006), 2006 ONCA 3957, 79 O.R. (3d) 321 (C.A.)](https://www.canlii.org/en/on/onca/doc/2006/2006canlii3957/2006canlii3957.html); [R. v. Daley, 2016 ONSC 3513](/on/scj/2016/3513). [66] Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence: [Downes, at para. 29](https://www.canlii.org/en/on/onca/doc/2006/2006canlii3957/2006canlii3957.html#par29). House arrest is a form of punishment, albeit of a different character than actual incarceration, yet the defendant receives no credit towards parole eligibility for time spent on house arrest: [Downes, at para. 29](https://www.canlii.org/en/on/onca/doc/2006/2006canlii3957/2006canlii3957.html#par29). [67] I have also taken into account the seven days of pre-trial custody that Mr. Rage served. [68] In determining what a just term of imprisonment should be, I have sought to take into account all of the sentencing objectives which the [Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/c-46/) and the [Controlled Drugs and Substances Act](https://laws-lois.justice.gc.ca/eng/acts/c-38.8/) require me to. I have, in particular, endeavoured to strike an appropriate balance between, on the one hand, the need for denunciation and deterrence, and on the other hand, recognition of Mr. Rage's good prospects for rehabilitation. [69] I have concluded that Mr. Rage should be sentenced to a two year term of imprisonment in a federal penitentiary, to be followed by three years of probation. ## Sentence [70] Mr. Rage, please stand. [71] On counts 5, 7 and 9 (the trafficking counts), I sentence you to a term of imprisonment of 2 years. [72] On count 11 (possession of cocaine for the purpose of trafficking), I sentence you to a term of imprisonment of 2 years. [73] On count 12 (possession of marijuana), I sentence you to a term of imprisonment of 30 days. [74] These terms of imprisonment will be served concurrently. [75] There will also be a probation order for three years. In addition to complying with the statutory terms, you must perform 240 hours of community service at a rate of not less than 5 hours per month during the term of the probation order. Further, there will be a firearms prohibition order under s. 109 of the [Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/c-46/) for life and a DNA order pursuant to s. 487.04 of the [Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/c-46/). [76] The items seized from your residence, vehicle and person including the metal press, digital scales, cell phones, iPhone, magazine, ammunition, $3,850 Canadian currency: $1,760 Canadian currency and $129 U.S. currency and $229 US currency shall be forfeited. --- **Graeme Mew J.** **Released:** 3 November 2016