COURT FILE NO.: CR-22-90000428 DATE: 20241210 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N :

HIS MAJESTY THE KING - and - HANAD ABDIRIZAK AHMED

Counsel: Brandt Chu, for the Crown Fiona McNestry, for Mr. Ahmed

Heard: July 12, 2023; November 22, 2024

J.M. BARRETT J.

REASONS FOR SENTENCE

INTRODUCTION

[1] On July 12, 2023, Mr. Ahmed pleaded guilty to three counts of trafficking in fentanyl - a Schedule I controlled substance - contrary to s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[2] An Enhanced Presentence Report (“EPSR”) was ordered to provide information about the impact anti-Black racism may have had on Mr. Ahmed and how it may be connected to the circumstances in which he now finds himself (the “Morris” report). Since the time of his guilty plea, there have been numerous adjournments while awaiting the Morris report. The report was completed on August 27, 2024, at which time a hearing date was scheduled.

Circumstances of the Offence

[3] In pleading guilty, Mr. Ahmed admitted that on three separate dates, he sold fentanyl to an undercover officer. Specifically:

i. On February 19, 2021, Mr Ahmed sold 1.8 grams of fentanyl to an undercover officer in exchange for $200.00.

ii. On March 3, 2021, Mr. Ahmed sold 1.99 grams of fentanyl to the undercover officer in exchange for $300.00.

iii. On March 12, 2021, Mr. Ahmed sold 6.98 grams of fentanyl to the undercover officer in exchange for $750.00. While counting the payment received, Mr. Ahmed was arrested.

[4] On all three occasions, the fentanyl was mixed with etizolam and caffeine. Etizolam is a Schedule IV substance. At the time of his arrest, the police searched Mr. Ahmed’s vehicle and found a further 2.24 grams of fentanyl. It too was mixed with etizolam and caffeine. The police also seized $205.00 cash, a digital scale, and an iPhone. While executing a search warrant at Mr. Ahmed’s residence, the police seized $410.00.

[5] In total, 10.77 grams of fentanyl was trafficked. A further 2.24 grams was available for trafficking. Each of the transactions was arranged by an undercover officer calling a number supplied by a confidential informant and arranging to purchase fentanyl. On each occasion, Mr. Ahmed arrived alone at the scheduled meeting place and completed the sale.

Circumstances of the Offender

[6] Mr. Ahmed was born on August 17, 1990, in Washington. At the time of the offence, he was 30 years old. He is now 34 years old. He has no prior criminal record. He moved to Canada as a child and is a Canadian citizen. He grew up in Toronto.

[7] Mr. Ahmed has been on bail since his arrest without incident. His mother is his named surety. For the first 5 months, Mr. Ahmed was subject to a curfew of 8:00 p.m. to 6:00 a.m. except when in the presence of his surety. After he obtained employment as a truck driver, his bail terms were varied to allow for travel for work purposes. The curfew was in effect until July 24, 2023, when it was removed due to Mr. Ahmed’s demonstrated compliance.

[8] In deciding the appropriate sentence for Mr. Ahmed, I have been assisted greatly by the thorough and insightful Morris report prepared by social worker Michelle Richards.

[9] The EPSR indicates the following:

i. Family circumstances: Mr. Ahmed is the eldest of three sons. His parents divorced when he was eleven years old. His father was a physically and verbally abusive alcoholic who restricted his abuse to Mr. Ahmed, not his younger brothers. At twenty-two years of age, Mr. Ahmed married. His marriage ended after five years. From the marriage, he has a nine-year-old daughter. His daughter and former spouse now live in England. Despite the distance, Mr. Ahmed is involved in his daughter’s life and provides support. His younger brothers have had no involvement in the criminal justice system. One of his younger brothers – Sharmarke Mohamed – holds a degree in the field of civil engineering. His mother remains supportive and has acted as Mr. Ahmed’s surety.

ii. Education: Mr Ahmed had one suspension in elementary school. He received others while in high school. After five years at Martingrove Collegiate Institute, he left without completing the required credits to graduate. As an adult, he took courses to complete secondary school and ultimately graduated from Burnhamthorpe Adult Learning Centre. Mr. Ahmed started, but did not finish, several post-secondary programs at Humber College, York University, and George Brown College. Mr. Ahmed reported difficulties at school due to anti-Black racism.

iii. Employment: After he married, Mr. Ahmed worked in Alberta. He earned a good living before and after his divorce. During COVID, he acquired his Class A driving license and secured work as a truck driver. His employment as a truck driver ended after his conviction because he experienced difficulties crossing the border. He is currently unemployed.

iv. Substance Use: Mr. Ahmed has a serious alcohol addiction. He began drinking when he was 19 years old. When his marriage ended in 2016, he consumed alcohol daily. In 2021, he briefly experimented with cocaine. On one occasion, it was laced with fentanyl. Mr. Ahmed liked the effects of fentanyl and continued to use it twice daily for about one month around the time of his arrest. He only learned of the dangers of fentanyl use after his arrest. His drinking has increased since his arrest. Mr. Ahmed is not opposed to therapy but cannot afford it.

v. Socio-Economic Status: Mr. Ahmed grew up in poverty. His mother was in receipt of social assistance and his alcoholic father was unemployed. Before his parents’ divorce, they lived in a high-crime area where Mr. Ahmed reported that he and his friends experienced antiracism by the police. Further, one of his younger brothers was shot while on his way to work by men who were fighting.

[10] In preparation of the EPSR, Ms. Richards met with Mr. Ahmed on three dates and also conducted collateral interviews of Mr. Ahmed’s brother – Kamil Mohamed – and mother, Ubah Farah. In terms of her assessment, Ms. Richards wrote that Mr. Ahmed enjoys the support of his family, including his ex-wife who describes Mr. Ahmed as an excellent father. The offences are said to have occurred during a brief three-week period about one year into the COVID pandemic when Mr. Ahmed was unemployed, on limited income, and at a low point in his life. Otherwise, aside from his alcohol abuse, he has a “consistent work history” and strong work ethic as reflected by his decision to pursue work in Alberta. Ms. Richards noted that Mr. Ahmed “was subjected to involuntary interactions with police when he was a child and youth, and experienced use of force on various occasions”. Ms. Richards found Mr. Ahmed’s description of these events to be “consistent with racial profiling”.

[11] Mr. Ahmed has also filed numerous letters of support from his mother, father, younger brother, former spouse, and friends who have known him for many years. He also filed letters from two representatives of community organizations, namely: (i) Abdi Dayr – a case worker with Midaynta Community Services; and (ii) Ainan Salim Dahmis, a mental health case worker with the Somali Immigrant Aid Organization. A common theme in all letters is that the offences before the court are out of character for Mr. Ahmed. Mr. Ahmed is regarded as a valuable mentor, family member, a loving and supportive father, and someone who has a strong work ethic and is committed to the broader community. The letters all describe Mr. Ahmed as having much greater potential than the poor choices he made that resulted in his arrest. Aside from the letters, the support of Mr. Ahmed’s family was evidenced by their attendance in court for the sentencing proceedings.

[12] The letters from the two community members demonstrate that after his arrest, Mr. Ahmed has taken positive steps. He participated in counselling services offered through the “Project Turn Around” initiative at Midaynta Community Services. More recently, he has volunteered at the Somali Immigrant Aid Organization, participating in mental health workshops.

POSITIONS OF THE PARTIES

[13] Counsel for the Crown seeks a three year sentence of imprisonment concurrent on each charge. The Crown also seeks an order pursuant to s. 109 of the Criminal Code, R.S.C. 1985, c. C-46 for 10 years, a DNA order, and a forfeiture order.

[14] In support of this position, the Crown relied on the following cases: R. v. Broderick, 2020 ONSC 7434; R. v. Campbell, 2022 ONCA 666; R. v. DiPasquale, 2023 ONSC 758; R. v. Doxtator, 2019 ONCJ 26; R. v. Jackson, 2024 ONSC 2402; R. v. Lawal, 2024 ONSC 3621; R. v. McMahon, 2022 ONCA 459; R. v. Mohamud, 2024 ONSC 5009; R v. Mirza, (Unreported – judgment released May 30, 2024 – by Justice Applegate of the Ontario Court of Justice); R. v Ryn, 2023 ONSC 2919; R. v. Willis, 2019 ONSC 7324; and, R. v. Young, 2020 ONSC 1394.

[15] Mr. Ahmed takes no issue with the ancillary orders sought by the Crown. However, Mr. Ahmed urges the court to impose a two-year conditional sentence and relies on the following cases in support of this position: R. v. Stewart, 2024 ONSC 281; R. v. Hugh, 2023 ONSC 6135; R. v. Collins, 2023 ONSC 5768; R. v. Williams, 2023 ONCJ 259; R. v. Gordon, 2023 ONCJ 157; R. v. Russell, 2023 ONCJ 133; R. v. Anishnambie, 2022 ONCJ 319; and, R. v. Grant, 2021 ONCJ 507. Defence counsel recognizes that the sentence sought by the Crown is within the range, but argues that given the mitigating factors in this case, a conditional sentence can sufficiently address all of the applicable principles.

MITIGATING AND AGGRAVATING FACTORS

[16] A consideration of the mitigating and aggravating factors is mandated by s. 718.2 of the Criminal Code.

[17] There are many mitigating factors in this case:

i. Mr. Ahmed pleaded guilty and thereby accepted responsibility and expressed remorse. In doing so, he has saved significant court time when court resources are scarce.

ii. Mr. Ahmed has no prior criminal record.

iii. Mr. Ahmed has struggled with his own addiction issues.

iv. Mr. Ahmed has the support of his family and community.

v. Mr. Ahmed has taken positive rehabilitative steps since his arrest.

vi. Mr Ahmed has experienced the impact of anti-Black racism.

[18] The aggravating factors in this case are the gravity of the offence, the quantity of fentanyl trafficked (10.77 grams), and the repeated nature of Mr. Ahmed’s conduct. The Agreed Facts speak to a “dial-a-dope” operation. It was not a one-off incident. It was profit motivated. On arrest, Mr. Ahmed possessed the tools of his trade, including a digital scale. Like millions of other Canadians during the COVID pandemic, Mr. Ahmed struggled financially and psychologically. As Mr. Ahmed acknowledges, this is no excuse.

[19] The parties also agree that Mr. Ahmed should be given some credit in accordance with the principles set out in R. v. Downes, 79 O.R. (3d) 321, 2006 ONCA 3957. This is in recognition of the fact that Mr. Ahmed was subject to strict bail conditions, including a curfew, for a lengthy period of time without incident. Further, the parties agree that Mr. Ahmed is entitled to three days of credit for the time spent in custody, as set out in s. 719(3.1) of the Criminal Code and the principles in R. v. Summers, 2013 ONCA 147, 114 O.R. (3d) 641, aff’d 2014 SCC 26, [2014] 1 S.C.R. 575.

ANALYSIS

[20] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society. This purpose is furthered by imposing sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in the rehabilitation of offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.

[21] The fundamental principle of proportionality requires that all sentences be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 of the Criminal Code; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53.

[22] Section s. 718.2 of the Criminal Code further directs sentencing courts to consider a number of other statutory principles, including: the need to increase or reduce the sentence to account for any mitigating or aggravating circumstances relating to the offence or the offender; the need for parity; and the need for restraint when imposing imprisonment. A sentencing court must consider all available sanctions other than imprisonment that are reasonable in the circumstances.

[23] The gravity of the offence and Mr. Ahmed’s degree of responsibility are significant. The offence of trafficking in a Schedule I substance is punishable by a maximum of life imprisonment: s. 5(3), Controlled Drugs and Substances Act. While Mr. Ahmed’s offences have no specific identified complainant, it would be wrong to view them as victimless. Trafficking in a deadly drug such as fentanyl causes immeasurable harm to the community. As noted by the Court of Appeal for Ontario in R. v. Loor, 2017 ONCA 696, at para. 33, “every day in our communities, fentanyl abuse claims the lives of Canadians.” Indeed, given its deadly and addictive properties, fentanyl has been described as “public enemy number one”: R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at para. 93; R. v. Mengesha, 2022 ONCA 654, 516 C.R.R. (2d) 31, at para. 16; R. v. Campbell, 2022 ONCA 666, 163 O.R. (3d) 355, at para. 83.

[24] In the recent decision of R. v. Campbell, 2024 SCC 42, the Supreme Court of Canada highlighted the grave risk that fentanyl poses to public safety. As stated by Jamal J., for a majority of the Court, at para. 132:

Fentanyl is a highly addictive and extremely powerful opioid pain reliever and sedative intended to be administered in medical settings. It is estimated to be up to 100 times more potent than morphine and about 25 to 50 times more potent than heroin. A lethal dose can be less than two milligrams, or about the size of a single grain of salt. Fentanyl is also much cheaper than other drugs, and so drug dealers will often mix small amounts of it with other drugs to create a cheaper product with similar effects, thus significantly increasing their profits. Because fentanyl is visually indistinguishable from other hard drugs, it exposes vulnerable drug users to the risk of serious harm, including brain damage, organ damage, coma, and death.

[25] The fact that less than two milligrams can be fatal puts in context the gravity of Mr. Ahmed’s trafficking of 10.77 grams. Mr. Ahmed’s claimed lack of knowledge of the dangers of fentanyl does not diminish the gravity of the offence or the degree of his responsibility. At best, he was wilfully blind to the nature of the illicit drugs he was trafficking: Campbell (ONCA), at paras. 96-100.

[26] Given the gravity of the offence, even first offenders can expect a penitentiary sentence: Loor, at para. 50. In this case, Mr. Ahmed engaged in repeated sales of increasing amounts; the last transaction involving more than three times the quantity trafficked in the first. His conduct was driven by greed, not addiction. Evidence of systemic anti-Black racism and its impact on the particular offender does not mitigate the seriousness of an offence. However, it may reduce an offender’s moral culpability for the offence: Morris, at paras. 75-81, 87-101. It may also inform how a sentencing judge balances the various sentencing principles in the particular case.

[27] In this case, while Mr. Ahmed has experienced anti-Black racism, his offending conduct was motivated by greed. However, the social context evidence, as detailed in the EPSR, establishes a number of risk factors for offending in Mr. Ahmed’s life linked to systemic discrimination. He grew up in poverty. He witnessed and experienced systemic anti-Black racism. Further, I am mindful that, as noted by the author of the EPSR (p. 9), a jail sentence may have a disproportionate impact on Mr. Ahmed. See: Morris, at paras. 76-101; R. v. Hills, 2023 SCC 2, 85 C.R. (7th) 221, at para. 135. This does not excuse his conduct. It does, however, provide a lens through which his offending conduct is viewed.

[28] In fashioning an appropriate sentence, I have also considered the principle of parity. Parity requires that similar offenders who commit similar offences in similar circumstances should receive similar sentences: s. 718.2 (b), Criminal Code; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 31.

[29] While assessing proportionality and parity, I have considered all of the cases filed by the parties. The range of sentence reflected in these cases demonstrate the highly individualized process of sentencing. One that takes into account the purposes and principles of sentencing, as well as the aggravating and mitigating factors in each case.

[30] In the circumstances of this case, I agree with the Crown that three years is at the lower end of the appropriate range. As observed by Nakatsuru J., in R. v. Lawal, 2024 ONSC 3621, at para. 27, a penitentiary sentence is required even with mitigating factors. While counsel for Mr. Ahmed has cited cases in which a conditional sentence was imposed, I find that all are distinguishable. None involved trafficking in fentanyl, only possession, or possession for the purpose of trafficking. Nor did any involve three separate incidents.

[31] Mr. Ahmed, I accept that you have strong rehabilitative prospects. Your letters of support and the insightful letter you read to the court on the last occasion show that you have much to offer to your family and community. I accept your statement as a genuine expression of remorse. I commend you on all of the efforts you have made. You are a first offender. By pleading guilty you have accepted responsibility. I have considered these, along with the many other mitigating factors.

[32] I am also mindful of the collateral consequences of these convictions. You lost your employment as a truck driver due to the challenges in crossing the border. Further, I am mindful that the Court of Appeal for Ontario in the recent decision of R. v. Habib, 2024 ONCA 830, at paras. 41-47, provided guidance on assessing the relevance of family separation consequences. While these consequences cannot justify imposing a disproportionate sentence, sentencing judges must strive to “preserve the family as much as possible”. In other words, family separation consequences must be considered when: (i) determining the length of the prison term; and (ii) determining whether incarceration is required at all: Habib, para. 44. As noted by Tulloch, C.J., in Habib at para. 45, “family separation consequences may justify a sentence adjustment – even a significant one – or a departure from the range” even for “grave offences that require deterrence and denunciation”.

[33] While Mr. Ahmed is responsible for the harm he has caused his family, and the consequences they may suffer as a result of the court’s sentence, his family members are “innocent” and I am required to prevent and mitigate the adverse consequences on them “as much as possible”: Habib, at para. 46.

[34] As you acknowledge in your letter, “ignorance is no excuse”. It is purely good fortune that no one was killed by the actions that bring you before the court. Minimal amounts of fentanyl can, and do cause death. Because of these dire risks and the prevalence of fentanyl in our society, the sentences meted out by courts are lengthy, even for simple possession. The sentences communicate a strong message of denunciation and general deterrence in an attempt to rid our society of this insidious drug. I find that the fact that you trafficked this deadly drug, not just once, but on three occasions, makes a sentence of less than two years unfit. A reformatory sentence is simply not appropriate given all of the circumstances of this offence. In fact, were it not for the many mitigating factors in this case, a sentence of five years would be entirely appropriate.

[35] Since this is your first penitentiary sentence, restraint is required. The principle of restraint requires the imposition of the least intrusive sentence and the shortest duration necessary to achieve a just, fit and proportionate sentence: see R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), 2004 ONCA 5549, at paras. 95-96; R. v. Borde (2003), 63 O.R. (3d) 417 (C.A.), 2003 ONCA 4187, at para. 36. In my view, the shortest duration necessary to achieve a just, fit and proportionate sentence is 30 months of imprisonment. This sentence reflects consideration for the credit required in accordance with the principles set out in Duncan and Summers.

[36] I know that you, your family, and your supporters will not agree with this sentence and will regard it as unduly harsh. While it may offer little comfort, I do hope that this sentence will not end your commitment to turn your life around.

DISPOSITION

[37] Mr. Ahmed will be sentenced to 30 months in jail concurrent on each charge.

[38] The items seized by the police will be the subject of a forfeiture order.

[39] Pursuant to s. 487.051(3) of the Criminal Code, you are required to provide samples of bodily substances as reasonably required for purposes of forensic DNA analysis.

[40] Finally, pursuant to s. 109(1)(a) of the Criminal Code, you will be prohibited from possessing any weapons for ten years.

J. M. Barrett J.

Released: December 10, 2024