COURT FILE NO.: 19-4529
DATE: 2021/03/31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Hanad Aden
Accused
COUNSEL:
Kathryn Spurr, for the Federal Crown
Michael Spratt, for the Accused
HEARD: Trial December 7-9, 2020, judgment February 9, 2021, sentencing submissions March 12, 2021
Reasons for sentence
Anne London-Weinstein J.
[1] Hanad Aden was convicted after trial of possession of fentanyl for the purpose of trafficking (113.9g), possession of the proceeds of crime $3,500 and possession of crack cocaine for the purpose of trafficking (6.2g), possession of crack cocaine for the purpose of trafficking (3.1g).
[2] The trial was short. A Charter motion where the defence called no evidence was determinative of the issue of whether police had reasonable and probable grounds to arrest Mr. Aden.
Agreed Statements of Fact:
[3] It was an agreed statement of fact that Mr. Aden began serving a federal penitentiary sentence on November 2, 2016. On April 16, 2018 Mr. Aden was granted day parole. Mr. Aden was granted full parole on January 21, 2019. After his arrest on February 27, 2019, Mr. Aden’s parole was suspended and ultimately revoked. Mr. Aden would have been eligible for parole on October 31, 2019. The custodial sentence which began on November 2, 2016 expired on March 1, 2020.
Aggravating Factors:
[4] The nature of the substance itself is aggravating. Fentanyl is highly addictive, destructive and not infrequently deadly drug which is a scourge on the community. Once an addict becomes ensnared by the drug, an acute physical and psychological dependency ensues. In addition to the usual suffering, indignity and damage to humanity associated with addiction, Fentanyl addicts are also vulnerable to an ongoing risk of accidental death through overdose..
[5] Mr. Aden’s criminal record is an aggravating factor on sentence. He has an entry in 2011 as a youth for trafficking in a Schedule 1 substance and possession of property obtained by crime under $5,000. He received 12 months probation on each charge. In 2012, he was convicted of fail to comply with recognizance and received a suspended sentence and probation of three months after spending 15 days in custody. In 2012, he was convicted of possession of a Schedule 1 substance for the purpose of trafficking and received a sentence of five months in addition to 24 days of pre-sentence custody and a mandatory weapons prohibition under s. 109 of the Criminal Code. He was also charged with fail to comply with recognizance and obstruct peace officer. For these charges he received five months jail concurrent. In 2013 he was convicted of assault and escape lawful custody. He received a sentence of 95 days jail and probation of 24 months.
[6] In 2016, he was convicted of possession of a Schedule 1 substance for the purpose of trafficking contrary to s 5(2) of the CDSA. He was also convicted of possession of proceeds of property obtained by crime. He received a sentence of one year and four months consecutive after serving one year and eight months of pre-sentence custody. He received a sentence of six months concurrent on the proceeds charge.
[7] In 2016, he was also convicted of two counts of conspiracy to commit an indictable offence. He received a one year sentence after serving 2 years of pre-sentence custody. He also received a sentence of one year consecutive on the second charge of conspiracy to commit an indictable offence.
[8] The primary sentencing objectives for possession for the purpose of fentanyl are general deterrence and denunciation. The fact that Mr. Aden has prior similar drug offences is an aggravating factor on sentence.[1] It is also highly aggravating that he was on parole for drug trafficking at the time of this offence.
[9] Mr. Aden is 28 years old. While he is not a youth, I consider Mr. Aden’s age to favour him in terms of rehabilitative potential. He is a young man in my eyes, and is capable, with the support of his family, of rehabilitation. He was studying culinary arts at Algonquin this year prior to his arrest. I regard this factor as mitigation which demonstrates a willingness to move towards self -sufficiency outside of dealing illicit drugs. It is consistent with a potentially optimistic rehabilitative outcome. He has a supportive partner, who attended court with him and wrote a letter in support of him. The relationship is stable. This relationship is also mitigating as it will provide Mr. Aden with additional support in order to avoid recidivism. Mr. Aden has exceptionally strong family support. A number of letters were provided by family members and friends. His aunt attended court as his mother was working and resides in Toronto. These are mitigating factors. Some of these letters deserve individual consideration. His mother flew to Ottawa to attend his sentencing and his partner and aunt were also present in court.
[10] His mother is a private school bus driver in Toronto. She resides there with her daughter. She has spoken to Mr. Aden nearly every day since he was incarcerated. Ms. Ibrahim’s words reflect a mother’s love and her despair at his incarceration. She writes:
[11] “While I love my son unconditionally and would do anything for him, his past legal and moral transgressions have devastated both me and the family. I have forgiven Hanad and as a mother I will always strive to lead my son in the right direction.”
[12] Ms. Ibrahim noted that her son has expressed remorse and insight into the consequences of his actions. His mother notes that recidivism is high with ex-convicts for good reason, as it is difficult to transition from incarcerated life to freedom. His family is willing to support him in his reintegration into the community when he is released.
[13] I also reviewed a letter from Suada Buholtz and her husband Franklin. These extended family members are American but visited with Mr. Aden when he was residing at a half-way house. They have known him since birth and he has grown with their children Torin and Travis, age 29 and 25. They attended summer camp together. Mr. Aden travelled with them to Florida and the Everglades. They hiked in the Adirondacks. They wrote of Mr. Aden, “Outsiders may define Hanad by the mistakes he has made but we know him, and we have found Hanad to have a good heart, to be helpful, kind and loyal. Hanad has always had a special aura that would make everyone smile and laugh.”
[14] The Buholtz family are not unaware of Mr. Aden’s mistakes, or naïve as to the consequences of those mistakes. They have kept in touch with his mother.
[15] I reviewed a letter from Mr. Aden’s cousin, Iman Mohamed, of Ottawa. Ms. Mohamed has had a number of conversations with Mr. Aden over the last year. She notes that a few months prior to his incarceration in February 2019, he began dating a “kind and lovely young woman.” He has maintained this relationship despite his incarceration.
[16] Ms. Mohamed is the Director, Health Policy for the national industry association representing biotechnology companies in Canada. She is Vice Chair of the Board of Directors at Somerset West Community Health Centre in Ottawa. Her partner, Corbett Givogue is a financial analyst for a private equity firm. He is a former lawyer with Bell Baker LLP in Ottawa.
[17] Her mother, Soraya Ibrahim, is a federal public servant and a mentor to youth in the community. Her daughter lives two blocks away. The family is willing to offer full support to Mr. Aden, including help locating employment.
[18] Cousins, Sarnia Ibrahim, Yahya Ibrahim, Shadia Ibrahim and Amina Hassan also wrote to the court on Mr. Aden’s behalf offering support.
[19] It is mitigating that Mr. Aden has a loving and strong immediate and extended family to support him upon release. I also accept his word that he has “hung up his jersey” and will not be returning to drug trafficking. Mr. Aden has completed high school and had made a good start at his culinary program at Algonquin College. It is mitigating that he has finished high school and has begun post-secondary education.
[20] I also treated the COVID-19 pandemic as a mitigating factor on sentence for several reasons. First, I take judicial notice of the fact that those in custody are at a higher risk of contracting the virus. Social distancing and frequent hand washing, which help prevent the spread of the virus, are not possible. On the very day I was to sentence Mr. Aden he was unable to attend court due to being put on a droplet protocol, demonstrating in concrete terms, the very real threat that the pandemic poses to those in custody, and the extraordinary efforts which are required to keep prisoners and jail staff safe in this pandemic. This leads me to my second point. The pandemic has made conditions of imprisonment in remand facilities especially harsh. Mr. Aden told me that he was unable to see his loved ones for weeks at a time. I accepted his evidence. After a time, he gave up the hope of seeing his family as the repeated deferred hope of seeing them left him despondent. Eventually his deferred hope gave way to resignation that COVID-19 protocols made regular family access impossible at times. I do not regard visits with family while in a remand centre to be a luxury, but rather a necessity which makes incarceration in a pandemic with no other programming somewhat bearable. Yard time was also cancelled due to the pandemic. There were days and days when Mr. Aden never felt the sun on his face or breathed fresh air. I am not being critical of the jails in which Mr. Aden was housed, which were all coping with the demands of the pandemic. In crafting a proportional sentence, I must consider these grim conditions which the pandemic has imposed on prisoners in remand facilities during this unique time in history. Further, I accepted what Mr. Aden said to me regarding the fact that it may be months before he is shipped from the local remand centre to a federal institution where he will serve his time. I have treated the threat and impact of the pandemic as a mitigating factor on sentence generally, although I accept that in Mr. Aden’s case it has manifested in concrete ways like not being able to go outside and not being able to have family visits. I understand that the pandemic has taken a toll on all of us in terms of isolation from our families and the restriction of our liberty to some degree. However, the prisoner on remand, in my view, has been particularly hard hit by the extreme conditions which had to be imposed to protect public health. In treating the pandemic as general mitigation on sentence I am relying on the approach described in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at para 43.
[21] Mr. Aden advised me that he took every job which was referred to him by his parole officer but felt demoralized as he was primarily engaged in physical labor. He felt like a “slave” moving rocks. Mr. Aden was not making these observations as an excuse for selling drugs. He expressed remorse for selling Fentanyl, now cognizant of the costs which this drug extracts on addicts. However, he was discouraged by the fact that his criminal record was a barrier to meaningful employment. It is unfortunate that he was not able to obtain the chef’s food truck. He now also has a loan for the truck which will have to be repaid.
[22] The Crown’s position is 10 years less the time Mr. Aden has spent in jail awaiting trial. The Crown reduced its position due to considerations relating to COVID-19, and the fact that Mr. Aden has such a strong and remarkable family who will offer support to him upon his release. The Crown’s modification of its position in recognition of the impact of COVID-19 in jail is in keeping with the role of the Crown. The Crown is not an ordinary litigant in the criminal courtroom or on appeal; its undivided loyalty being to the proper administration of justice. R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66. The defence asks for seven years less dead time.
[23] Despite the gravity of the offence, and the primacy of general deterrence and denunciation as a sentencing principle in cases of trafficking fentanyl, I am of the view that the Crown’s position does not appropriately reflect the mitigation which I feel is warranted by the conditions in jail during the pandemic. I recognize that general deterrence and denunciation are the sentencing principles which govern in this case, but proportionality is the guiding overall principle. I have given paramountcy to general deterrence in the sentence I have crafted. The more serious the crime and its consequences, the greater the offender’s degree of moral responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. Sentences which are too lenient, and sentences which are too harsh can both undermine public confidence in the administration of justice. R v. Lacasse, [2015] SCC 64, para 12.
[24] I have considered the decision of Justice Pomerance in R. v. Hearns, 2020 ONSC 2365, [2020] O.J. No. 1648 (Ont. S.C.J.) where the court suggested that during the public health crisis some further mitigation on sentence is warranted. One year into the pandemic, we are in a slightly better position than last year with the development of new vaccines, but when those vaccines will be rolled out to prisoners is still in some doubt.
[25] The Crown argues that the commercial nature of this enterprise is aggravating. I do not see it that way. Mr. Aden is not an addict. He does not benefit from the mitigation which being an addict would present in this case. However, all drug trafficking which is not done to support a drug habit is commercial in nature. I do not find it aggravating that this trafficking was done for profit. Rather, I find there is no mitigation as Mr. Aden is not an addict. However, I also note that Mr. Aden will not be vulnerable to falling back into the trade by relapse, as he is not an addict. This is not mitigation, but merely a statement of Mr. Aden’s reality. I also did not agree that he was an upper level, or sophisticated trafficker, or that I could find that he had a busy clientele. He was only observed for a few days. Only a few transactions were observed. I do not agree that a trafficker who sells hand-to-hand as Mr. Aden did, is anything other than a street level trafficker. I had no evidence that Mr. Aden was involved in a sophisticated commercial enterprise as suggested by the crown. Although Mr. Aden had a car, he was directly involved in hand-to-hand sales to his customers. In my view, he is merely a street level dealer.
[26] Each case must be decided on its own facts, but offenders should be sentenced in the same manner as other offenders convicted for similar offences. Both the crown and the defence provided a number of authorities. I have reviewed them all, but refer to the most salient to Mr. Aden’s situation.
[27] In R. v. Sidhu, 2019 ONCA 880, [2019] O.J. No. 5630, the accused was convicted of five counts of trafficking contrary to s. 5(1) of the CDSA, three counts of possession for the purpose contrary to s. 5(2) and possession of a weapon contrary to an order, and breach of a probation officer. A sentence of 9.5 years was imposed less 15 months of pretrial custody. The net sentence was eight years and two months.
[28] In R. v. Disher, 2020 ONCA 710 the accused was convicted of drug offences, including possession of the proceeds of crime, possession of a prohibited weapon, breach of probation and breach of recognizance. Police executed a search warrant and seized packets containing 42.6 grams of mixed powder substances from a safe in the room. The substances included heroin, fentanyl and derivatives of fentanyl and carfentanyl was found in one of the packets. Police also seized 47.5 grams of marijuana, two spring-loaded knives and packaging material consistent with trafficking. Police also observed Mr. Disher to be throwing baggies out of the car window. The baggies weighed a total of 1.1 grams and contained a combination of fentanyl and other substances. Mr. Disher had in his possession a pair of brass knuckles, a cell phone and currency ($250). He was subject to a weapons prohibition at the time. His friend, Ms. Weaver was found to have $190 in her purse, along with a baggie containing methamphetamine and another baggie containing residue of heroin and cocaine. At the time of his arrest, Mr. Disher was on release on recognizance for only two weeks on other drug charges. He plead guilty to all charges against him on the first day of trial. The Crown asked for a sentence of 12 years. The defence sought a sentence in the range of five to seven years. The accused had a serious record for drug trafficking. The trial judge imposed a 12 year sentence. The Court of Appeal found the trial judge failed to consider the accused’s rehabilitative prospects.
[29] Section 718 of the Criminal Code states that, “The fundamental purpose of sentencing is to protect society and 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 six specified objectives. Deterring the offender and assisting in rehabilitating offenders are two of these objectives—and both must be addressed when crafting a “just sanction” that meets the fundamental purpose enunciated in s.718. Failing to advert to the rehabilitative objects of sentencing is an error.
[30] I must not impose a sentence which would crush Mr. Aden. I must not impose a sentence which would “deprive the offender of any hope of release or rehabilitation.” R. v. Johnson, 2012 ONCA 339. Johnson, dealt with consecutive sentences, but the principle remains applicable to the case before me.
[31] While general deterrence and denunciation are the primary factors of sentence, I have also given weight to Mr. Aden’s rehabilitative prospects, particularly in light of his educational efforts and the strength of his extended family.
[32] In Disher, the court imposed a sentence of 8 years less 7.5 months for pre-trial custody. The court also reviewed a number of cases where 8 years was imposed. See, for example, R. v. Baldwin, [2018] O.J. No. 2447 (C.J.) (eight years; quantity of fentanyl was 115.09 grams); R. v. Shevalier, [2017] O.J. No. 7247 (C.J.) (eight years; quantity of fentanyl was 28.13 grams). In R. v. Vezina, 2017 ONCJ 775, [2017] O.J. No. 6027, the offender was sentenced to 12 years less pre-trial custody. However, as noted in Disher, the offender in Vezina had 204.49 grams of a blend of heroin and fentanyl for the purposes of trafficking. This is an amount which is close to double the amount of fentanyl possessed by Mr. Aden.
[33] Sentencing is a notoriously subjective exercise. The determination of a fit sentence is an individualized process which requires the judge to weigh the objectives of sentencing in a manner which best reflects the circumstances of the case. Nasogaluak, para 43. A sentence outside of the range can be ordered as long as in accordance with the principles and objectives of sentencing. Regard must be had to all the circumstances of the offence, the offender, and to the needs of the community in which the offence occurred. Nasogaluak, para 44.
[34] Having considered all of the relevant mitigating and aggravating factors, I am of the view that a sentence of 7 years less credit for pre-sentence custody is a fit sentence in this case. The mitigating factors are Mr. Aden’s prospects for rehabilitation, including his strong family, the existence of COVID-19 in the prison system, including the hazards Mr. Aden may face in the federal penitentiary, and the hardships he has faced, as discussed above, while waiting for sentence to be imposed. The aggravating factors are his criminal record, notably his prior convictions for drug trafficking, the nature and quantity of the fentanyl involved, and the fact he was on parole for trafficking at the time of his arrest.
[35] I agree with the observations of Justice Nakatsaru in R. v. Morris, 2018 ONSC 5186 that while the principles of general deterrence and denunciation continue to be recognized as the primary sentencing principles for serious offences, there is also an understanding that the principles of restraint, rehabilitation, and individual deterrence cannot be ignored exclusively in favour of general deterrence and denunciation. In addition, the objectives of denunciation and deterrence are not only met through the imposition of an extended period of incarceration, but can take other forms. I have given general deterrence and denunciation the paramount weight which is due them in this case, while also crafting a sentence which is reflective of the uniquely harsh circumstances endured by Mr. Aden while on remand during this pandemic. I note as an aside that the effectiveness of incarceration as a deterrent itself has been questioned by the Supreme Court of Canada in cases such as R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773 (S.C.C.) and R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 (S.C.C.) Morris, para 62. Despite the comments in Proulx and Nur, I recognize that I am required to give effect to the sentencing principle of general deterrence and I did so in this case.
[36] Given the quantity of fentanyl involved, Mr. Aden’s record, and the fact he was on parole for drug trafficking, the sentence I have imposed falls well below the range for this offence and for offenders who committed similar offences. However, those similarly situated offenders were not serving time during COVID-19 jail conditions. In my view, the mitigation of jail conditions during COVID 19, along with Mr. Aden’s prospects for rehabilitation justify this sentence. The time he has served in prison is 777 days which shall be deducted from his sentence.
[37] He will serve seven years minus the time he has already served. The time is to be reflected as 7 years on the count involving the fentanyl, less 777 days of served time. The count involving possession of proceeds will be 18 months concurrent to all, and the counts involving crack cocaine will be 30 months on the first count, and 18 months on the second count, both counts concurrent to all other counts.
Anne London-Weinstein J.
Released: March 31, 2021
COURT FILE NO.: 19-4529
DATE: 2021/03/31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen
– and –
Hanad Aden
Accused
Reasons for sentence
Anne London-Weinstein J.
Released: March 31, 2021

