Court File and Parties

Court File No.: CR-16-10000437 Date: 2017-03-29 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Ganno Abdella

Counsel: Glenn Brotherston, for the Crown Ryan Handlarski, for Ganno Abdella

Heard: February 7, 2017

Reasons for Sentence

A.J. O’Marra J.

[1] Ganno Abdella was found guilty after trial of trafficking heroin contrary to s. 5(1) of the Controlled Drugs and Substances Act, and possession of proceeds of crime contrary to s. 354(b) of the Criminal Code. Ms. Abdella was found to have sold heroin on May 26, 2014 to Hanad Aden and received $700 Canadian in payment.

[2] Ms. Abdella is before the court today to be sentenced.

[3] The factual circumstances that led to her arrest are set out in the trial judgment released as 2016 ONSC 6548. However, in summary, Hanad Aden had been the target of a police service investigation in which a Part VI wiretap authorization was obtained to intercept his private communications. The police learned as a result of a number of intercepts that Hanad Aden had arranged a drug transaction to take place on May 26, 2014 where he was to purchase a large quantity of drugs from an unidentified female in the area of Sherbourne Avenue, north of Bloor Street in the City of Toronto.

[4] A surveillance team followed Mr. Aden to the location of the anticipated drug transaction. He was seen to drive his car westbound on Bloor Street from Sherbourne where after a short distance he pulled to the north side curb and an unknown female, later identified as Ganno Abdella, walked directly to the rear passenger door and entered into the vehicle. Mr. Aden pulled the vehicle from the curb driving westbound on Bloor Street. Then he made a quick U-turn to drive eastbound on Bloor Street. After a short distance he pulled the vehicle again to the curb at the intersection of Ted Rogers Way and Bloor Street. Ms. Abdella exited the vehicle and proceeded to walk eastbound. She had been in Mr. Aden’s motor vehicle less than 30 seconds. Mr. Aden drove southbound on Ted Rogers Way followed by other surveillance officers. Other officers who had been observing Mr. Aden’s movements remained on Bloor Street and arrested Ms. Abdella. She was found to be carrying a cell phone and $700 Canadian currency. Mr. Aden was stopped on Bay Street subsequently where he and a female passenger in the front seat were arrested. On searching Mr. Aden the police found a clear plastic bag containing 6.32 grams of heroin in his sock.

[5] On October 20, 2016 Mr. Aden pled guilty to possession of heroin for the purpose of trafficking, in addition to three other offences unrelated to the matter involving Ms. Abdella, conspiracy to transfer a firearm, conspiracy to commit the offence of trafficking in cocaine and possession of proceeds of crime under $5,000. He received a global sentence of seven years’ incarceration, three years of which was imposed for the offence of possession of heroin for the purpose of trafficking that involved the transaction with Ms. Abdella.

Background of the Offender

[6] Ganno Abdella is 23 years old. She was born in Badessa, Ethiopia, May 5, 1993. She has no criminal record or been charged with a criminal offence prior to the matter before this court. Currently she is a resident of Alberta where she works in a Fort McMurray oil camp, employed as a housekeeper. She works 21 days followed by seven days off.

[7] In preparation for the sentencing hearing, counsel for Ms. Abdella arranged for her to be seen by Dr. Julie Goldenson, a cognitive and forensic psychologist to conduct a cognitive/IQ assessment of Ms. Abdella.

[8] Ms. Abdella reported to Dr. Goldenson that her father had been a coffee farmer in Ethiopia where he lived with Ms. Abdella’s mother, brother and sister. In 1999, her father was arrested and his whereabouts were unknown for approximately eight years. In 2000, Ms. Abdella, her mother, brother and sister came to Canada as a result of the difficulties in Ethiopia and having been rendered homeless and landless due to Government expropriation of their land. Several years later, her father made contact with them to advise that he was living as a refugee in Kenya with his ex-wife and 14 children from a previous marriage. While Ms. Abdella’s mother ended all communication with her father, Ms. Abdella continued to maintain contact with him. It resulted in her mother disowning her and forcing her to leave home at the age of 14.

[9] She moved into a Children’s Aid semi-independent living house during which she attended Monsignor Fraser College for Grade 9 and part of Grade 10. While a student she worked at a fast food restaurant and began to send money to her father in Kenya for him to be able to clothe, feed and shelter himself and his family. At the age of 16 she dropped out of high school and began living on her own in the downtown Toronto area. In 2013, Ms. Abdella moved to Alberta to work in the camp environment in the oil industry. She has continued in that employ since 2013 to support herself and she has continued to send money to her father in Kenya. Ms. Abdella is a Canadian citizen.

[10] In the summary and conclusion to her report, Dr. Goldenson stated as to her cognitive/IQ assessment of Ms. Abdella:

Ms. Abdella is a 23 year old female of Ethiopian descent who currently resides in Alberta, where she is employed as a housekeeper at the Fort McMurray oil sands. She was seen for a psychological and cognitive assessment at the request of her lawyer. A significant limitation of this assessment was a lack of available collateral to corroborate Ms. Abdella’s self-report; i.e., there were no family members available to be interviewed, nor was there substantial file information to review. That said, Ms. Abdella impressed as frank and responded in a valid fashion on psychological testing.

With respect to Ms. Abdella’s intellectual abilities, cognitive testing placed her in the extremely low range; i.e., within the bottom first – second percentile of the normative sample. It is critical to note that testing may be an underestimate of Ms. Abdella’s true intellectual potential as a result of the cultural bias of the test and her fatigue and anxiety at the time of testing.

[11] Dr. Goldenson also noted that while she likely falls into the extreme low range to border line intelligence range, she does not meet the DSM 5 criteria for an intellectual disability in view of her long-standing capacity to function in the community.

[12] In addition to the psychologist’s report, counsel submits five letters in support from Ms. Abdella’s father, sister, cousin and three family friends all of whom describe Ms. Abdella as a hard-working, trustworthy, loving, dependable, honest, respectful and reliable person.

Position of the Parties

[13] It is the Crown’s position that for the offence of trafficking heroin that absent exceptional circumstances a period of incarceration in the penitentiary should be imposed. The Crown recommends a period of incarceration of three years, similar to that as received by Mr. Aden. In addition, the Crown seeks a s. 109 firearms prohibition order, an order to provide a DNA sample, and forfeiture of the money seized. In this instance there are no exceptional circumstances.

[14] Counsel submits that a person of Ms. Abdella’s intellectual functioning is less morally blameworthy than another offender convicted of the same offence and accordingly her sentence reduced to what would be imposed for someone who is more morally blameworthy.

[15] Further, because Ms. Abdella is a first time offender, of apparently limited intellect and an otherwise hard-working contributing member of the community she should be sentenced to one year in the reformatory. However, in the alternative, if the court “decides that it must follow appellate authority that a penitentiary sentence is necessary”, a sentence of two years plus four days, less three days of pre-sentence custody (with enhanced credit) should be imposed. Specifically she does not seek a sentence in the reformatory range of two years less a day because he submits a penitentiary sentence would provide a greater opportunity to pursue her high school qualifications.

Sentencing Principles and Applicable Law

[16] I consider the sentencing objectives and principles as set out in ss. 718, 718.1 and 718.2 of the Criminal Code. The Court of Appeal has repeatedly indicated that in dealing with offences, such as the trafficking of heroin, even in small amounts, a penitentiary term should be imposed unless there are exceptional circumstances (see Regina v. Farizeh, [1994] O.J. No. 2624 (O.C.A.) and Regina v. Bahari, [1994] O.J. No. 2625 (O.C.A.)).

[17] Heroin is a pernicious and highly addictive narcotic that causes devastating consequences to the lives of those who succumb to its use and to society as a whole. In dealing with such matters, the primary sentencing objectives are the protection of the public, denunciation of the offender’s conduct and general deterrence.

[18] In Regina v. Farizeh, a case which dealt with an offender who sold .08 grams, 1.51 grams and .06 grams of heroin on three separate occasions to an undercover officer with no previous criminal record and heroin addict the court stated:

We stress the fact that the sale of heroin even in small amounts by first offenders who are addicts will call for penitentiary sentence unless exceptional circumstances exist and the present case does not fall within the exception.

[19] The Ontario Court of Appeal in Regina v. Sidhu, 2009 ONCA 81, [2009] 242 CCC (3rd) 273 stated:

Time and again, this Court and the Supreme Court of Canada had made it clear that heroin is the most pernicious of the hard drugs – it is the most addictive, the most destructive and the most dangerous. Heroin trafficking has been described as a “despicable” crime and one that “tears at the very fabric of our society”.

[20] In Regina v. Marcello (1973), 11 CCC (2nd) 302, Evans J.A. in the Ontario Court of Appeal stated that: “heroin peddlers are a menace to society and that society requires protection from those who engage in this nefarious business” and their illicit drug business “produces catastrophic results”.

[21] Factors which have been considered in mitigation to reduce the sentence within the penitentiary range have included those in which the offender was an addict user, the substance held out as heroin was not in fact heroin and where the offender, while knowledgeable that the illicit drug was possessed, did not know the drug was heroin. None of these factors are applicable here.

[22] In sentencing co-accused Hanad Aden, Kelly J. observed that a sentence of three years for possession of 6.32 grams of heroin for the purpose of trafficking may be considered low however, appropriate in his case because he pleaded guilty and in consideration of the totality principle in relation the overall sentence of seven years imposed because of the other offences.

[23] Ms. Adbella does not benefit from the mitigation consideration of a guilty plea.

[24] Counsel for Ms. Abdella contends that Ms. Abdella should be given some credit in reduction of the sentence imposed because of the 29 months it took for her trial to proceed. I find no merit in this suggestion given that Ms. Abdella was a co-accused with Mr. Aden and she was subject to the same procedures they elected to pursue leading to the trial date.

[25] Counsel further argued that the sentence should reflect that the Crown had only proven Ms. Abdella’s participation in one transaction for profit and that it has not been established that she had any kind of ongoing role in drug trafficking. In effect, counsel submits that Ms. Abdella’s involvement in the trafficking of heroin was a “one off”.

[26] I am satisfied however that the female caller involved in the earlier intercepts was Ms. Abdella, as a result of the contents of those intercepts and Ms. Abdella’s attendance at the meet to provide heroin to Mr. Aden.

• In the intercepted Aden communication on May 15, 2014 he was heard to order “seven”, a coded reference to the quantity of the drug he sought from the female seller. The content of the intercept indicated that the female had talked with Mr. Aden previously.
• On May 21, 2014 in another call made to the same female again Mr. Aden ordered “seven”, which the female confirmed as being the “usual”. They made arrangements to meet at a beer store at Church and Wellesley Streets in Toronto.
• On May 25, 2014, Mr. Aden placed another order with the same female seller for “the same thing”, and to meet the next day.
• In the call at 11:40 a.m. May 26, 2014, Aden was told by the same female the “stuff” was kept at a house and she had to get the key from another person to get it. At 1:15 p.m. she called Aden to tell him she was meeting the other person to get the key for the house where she would pick it up and “then I’ll call you”. At 2:58 p.m. the female again called Aden and told him that she had “it” for him. However, she had to go to do “my last thing”, “a chop” referring to another deal and then they could meet. Mr. Aden suggested they meet on Bloor St. north of Sherbourne to which the female replied “ I’ll call you when I get there then, when I’m on my way there”.

[27] In the area of the arranged meeting it was Ms. Abdella, who entered Mr. Aden’s vehicle. She was driven from one side of Bloor Street to the other, and exited the vehicle within 30 seconds of entering it.

[28] The female caller’s reference in the intercepted communications; “ I have it for you”, and “ I’ll call you when I get there, then, when I’m on my way there” together with Ms. Abdella meeting Aden in the area of the arranged meeting, satisfies me beyond a reasonable doubt that the female voice, unknown at the time of the intercepts was Ms. Abdella.

[29] Contrary to counsel’s submission that it has only been proven that Ms. Abdella was involved the one time, the content of the calls indicates that she had an ongoing role of supplying heroin on earlier occasions and was part of the distribution chain for commercial gain. Ms. Abdella is being sentenced for the offence she has been found guilty of before the court, but I do not accept that this was a “one off” as submitted by counsel. Her role in trafficking heroin placed her at least at a mid-level, selling heroin to another dealer.

[30] There is little by way of mitigation considerations, however, I accept that Ms. Abdella has raised herself up from difficult origins and has displayed a willingness to work hard to assist herself and other family members. She has obvious rehabilitative potential which I take into account. On the other hand, her involvement in trafficking heroin was motivated for monetary gain, and as such constitutes an aggravating factor.

[31] I remind myself of the direction provided by Rosenberg J.A. in Regina v. Borde (2003), 63 O.R. (3rd) 417 that a “first penitentiary sentence should be as short as possible”. There are no exceptional circumstances which would reduce the imposition of a sentence under the penitentiary range. In the result, I sentence Ms. Abdella to two years and two months in the penitentiary for trafficking heroin. In addition, the sentence for possession of the proceeds of crime will be six months concurrent to the sentence for trafficking in heroin. The total sentence will be 26 months less three days credit for pre-sentence custody.

[32] There will be ancillary orders under s. 109 prohibiting the possession of firearms and other weapons as cited therein for 10 years, to provide a DNA sample under s. 487.051 and forfeiture of the money seized at the time of her arrest.

A.J. O’Marra J. Released: March 29, 2017