REASONS FOR SENTENCE

A. BACKGROUND

[1] After an extensive undercover police operation, Taha Shaikh and Umer Tanoli were arrested and charged with multiple offences involving trafficking and possession of firearms and drugs.

[2] Following a judicial pretrial before me with all counsel, Mr. Shaikh and Mr. Tanoli decided to re-elect and plead guilty to certain of these offences.[^1] I was advised there would be an agreed statement of facts and a joint submission on the appropriate sentence, with the only issue in dispute being the credit to be given for harsh circumstances of pre-trial custody.

[3] On December 11, 2023, Mr. Shaikh and Mr. Tanoli each pleaded guilty to two counts of trafficking two separate firearms. Mr. Shaikh also pleaded guilty to being in possession of a firearm while prohibited from doing so by an order made under s. 109 of the Criminal Code. In addition, Mr. Shaikh pleaded guilty to trafficking cocaine to an undercover police officer on two occasions and Mr. Tanoli pleaded guilty to possession of fentanyl for the purposes of trafficking.

[4] I did a plea inquiry pursuant to s. 606 of the Criminal Code with both accused and they indicated they understood their rights and were pleading guilty voluntarily. They understood that I was not bound to impose the sentence suggested by either of the parties. The Crown read into the record a set of facts, which both accused agreed were substantially correct. I found both accused guilty of the counts to which they had entered pleas. We then turned to the joint submission on sentence.

[5] The Crown took the position that an appropriate sentence for Mr. Shaikh was 5 years for the guns and 3 years consecutive for the drugs, which she submitted should be reduced to 6 years to take into account the principle of totality.

[6] For Mr. Tanoli, the Crown’s position was that a fit sentence would be 4 years for the firearms, there being no s. 109 breach, and 7 years consecutive for the fentanyl possession. To reflect the totality principle, the Crown proposed that the total sentence should be reduced to 7 years.

[7] The Crown further submitted that both accused would be entitled to a “Summers” credit at the rate of 1.5 to 1 for the time served in custody. The Crown did not allocate anything specific for the “Duncan” credit for harsh pre-trial conditions in custody, pointing out that this was more correctly considered a mitigating factor and had already been taken into account in determining the fit sentences. The Crown relied in this regard on the Court of Appeal for Ontario’s decision in R. v. Marshall.[^2]

[8] Defence counsel took the position, on behalf of each accused, that the sentence proposed by the Crown was appropriate, but that there should be an additional Duncan credit at the rate of 0.5 to 1, on top of the rate 1.5 to 1 provided for in Summers. In other words, the combined Summers/Duncan credit would be 2 to 1.

[9] The ancillary orders sought by the Crown were not opposed (DNA, forfeiture and s. 109 orders).

B. ISSUES TO BE DETERMINED

[10] The immediate difficulty confronting me is how to deal with what all counsel described as a joint submission on sentence, but which in my view is not actually a joint submission. The Crown declined to assign a number to the amount by which the recommended sentence was reduced in order to reflect the harsh conditions at the Toronto South Detention Centre (“the Toronto South”). The defence position is that additional credit is required to reflect those conditions. It is difficult to determine if the Crown’s position adequately compensates for those conditions, when I do not know the extent to which they were a factor in reaching the recommended sentence.

[11] Had the Crown taken the position that no additional credit was appropriate, this would have been an easy exercise. There would still have been an agreement on the appropriate sentence, prior to applying the decision in Duncan. I could either have agreed with the Crown’s position that no deduction was appropriate, or alternatively imposed a different sentence to reflect my own view as to the impact of the harsh pre-trial conditions. However, in this case, the Crown agrees that some deduction is appropriate for Duncan factors, but has not quantified the extent of it. I therefore cannot determine what the Crown’s position is, but for the Duncan reduction.

[12] It seems to me that I must treat this as a situation in which there is no joint position on sentence, but rather one where the Crown and defence cannot reach an agreement because of their differing views on the extent of the mitigating factors in the case. If this cannot be treated as a joint position, with the deference typically accorded such submissions, then I must first determine what would be a fit sentence in this case, taking into account the submissions of counsel. It was therefore necessary for me to adjourn the matter so that I could reflect on these principles before reaching a decision. I fixed March 6, 2024 as the return date for a decision.

[13] The Crown’s position is that the appropriate sentence for Mr. Shaikh is 6 years and the appropriate sentence for Mr. Tanoli is 7 years, both of which would be subject to a 1.5:1 Summers credit. In reaching that recommendation for Mr. Shaikh, the Crown submitted that the appropriate sentence for Mr. Shaikh for the firearm trafficking was 5 years (including 1 year for the prohibition order breach) and the appropriate sentence for the trafficking in cocaine was 3 years, but that a global sentence of 6 years was appropriate in light of the totality principle. For Mr. Tanoli, the Crown submitted that the appropriate sentence for the firearm trafficking was 4 years and the appropriate sentence for the fentanyl was 7 years, which should be reduced to a global sentence of 7 years when the totality principle is taken into account.

[14] The time served for both accused from April 5, 2022 to March 6, 2024 is 702 days, which would be a Summers credit of 1053 days. The defence position is that a total credit of 2 to 1 for both Summers and Duncan ought to be given, which would be 1404 days (a difference of 351 days, or approximately 1 year). Accordingly, I am treating this as a submission by the Crown for sentences of 6 years and 7 years for Mr. Shaikh and Mr. Tanoli respectively, and a submission by the defence for approximately 1 year less than either of those two sentences.

[15] It is clear there must be some reduction for the Duncan factor. I must consider the extent to which additional credit is required to address the deplorable conditions at the Toronto South. The issue is not whether some credit should be given, but rather the extent of it. The Crown has acknowledged that the proposed sentence already takes into account a reduction for the conditions of pre-trial custody. I must also determine whether to: (a) calculate that sentence by first determining a fit sentence and then reducing it to reflect the conditions under which pre-trial custody was spent (as suggested by the Court of Appeal for Ontario in Duncan[^3]); or, (b) determine the sentence without assigning a numerical value to the Duncan credit, by blending that factor in with the other mitigating factors (as subsequently suggested by the Court of Appeal for Ontario in Marshall).

C. HARSH PRE-TRIAL CUSTODY CONDITIONS: MITIGATING FACTOR OR QUANTIFIED CREDIT

[16] The Supreme Court of Canada noted in Summers[^4] that courts in Canada had long recognized the unfairness of crediting time served in pre-trial custody on a strict one-day credit for every day in custody. Because pre-trial custody is not taken into account in determining dates for eligibility for earned remission or parole, a failure to give enhanced credit for that time served would result in persons who did not get bail serving more time in custody than those who got bail. Karakatsanis J. observed that the practice had developed of routinely awarding double credit for time served, and that some judges were giving three times credit if there were particularly harsh conditions. I note that such orders were sometimes made in Toronto to reflect the terrible conditions at the Don Jail before it was finally shut down.[^5]

[17] In 2009, the Truth in Sentencing Act[^6] was passed. In Summers, the Supreme Court of Canada held that notwithstanding s. 719(3.1) of that Act capping the credit for time served at 1.5 to 1, it could not have been the intent of Parliament to alter the requirement of an enhanced credit to reflect the lack of eligibility for earned remission and parole, as this would be inconsistent with the principle of parity in sentencing and the overall scheme of the Criminal Code sentencing provisions. Thus, the Court held that the 1.5 to 1 credit, although seemingly referred to as a maximum credit, could be applied routinely to reflect the loss of early release. Karakatsanis J. held:

The loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5 to 1, even if the conditions of detention are not particularly harsh, and parole is unlikely. Of course, a lower rate may be appropriate when detention was a result of the offender’s bad conduct, or the offender is likely to obtain neither early release nor parole.[^7]

[18] Since the decision in Summers, it has become standard practice to award credit for time served in pre-trial custody at a rate of 1.5 to 1 in almost all circumstances. This has become known as the Summers credit.

[19] The so-called Duncan credit takes its name from a brief 11-paragraph endorsement by the Court of Appeal for Ontario recognizing that enhanced credit was still available for exceptionally harsh terms of pre-trial custody, which would be separate and apart from the Summers credit. Although trial judges began calculating and awarding a Duncan credit based on some ratio to the time spent in harsh conditions, this is not actually required by the Duncan decision which refers to this as both a “mitigating factor” and an “enhanced credit.” The decision of the Court (Doherty, Hourigan, and Roberts JJ.A.) states:

The trial judge effectively held that any credit or consideration in relation to presentence incarceration was capped at the 1.5 limit. We agree with counsel that in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused. In this case, there was evidence that the appellant served a considerable part of his presentence incarceration in “lockdown” conditions due to staffing issues in the correctional institution. There was, however, no evidence of any adverse effect on the appellant flowing from the locked down conditions. Indeed, some of the material filed on sentencing indicates that the appellant made positive rehabilitative steps during his presentence incarceration. [Emphasis added.][^8]

[20] Subsequently, in Marshall, the Court of Appeal for Ontario clarified the distinction between the Summers credit and the Duncan credit. The Summers credit is an actual, quantified credit – a deduction from the sentence to reflect time served, with some enhancement to reflect the loss of parole and early release entitlements and the usual difficulties of pre-trial custody (such as lack of programming). However, what has come to be referred to as a Duncan credit is not actually a credit, but rather a mitigating factor in sentencing. It has the effect of reducing the sentence, but not in the same way as the Summers credit does. The Court made the following observation concerning Duncan credit:

The “Duncan” credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “Summers” credit will be deducted. Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.[^9]

[21] The Court of Appeal for Ontario decision in Marshall permits the sentencing judge to lump the Duncan credit with the other mitigating factors, without specifying the extent to which this factor reduced the sentence. This is the aspect of Marshall relied upon by the Crown in this case. However, the Court specifically ruled in Marshall that it is also permissible to quantify the reduction for the Duncan credit, provided that it does not result in an unfit sentence. Doherty J.A. held:

Often times, a specific number of days or months are given as “Duncan” credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the “Duncan” credit, only one of presumably several relevant factors, there is a risk the “Duncan” credit will be improperly treated as a deduction from the appropriate sentence in the same way as the “Summers” credit. If treated in that way, the “Duncan” credit can take on an unwarranted significance in fixing the ultimate sentence imposed: R. v. J.B. (2004), 2004 ONCA 39056, 187 O.A.C. 307 (C.A.). Arguably, that is what happened in this case, where on the trial judge’s calculations, the “Duncan” credit devoured three-quarters of what the trial judge had deemed to be the appropriate sentence but for pretrial custody.[^10]

[22] With the greatest of respect for the guidance provided by the Court of Appeal for Ontario in Marshall, I consider it preferable, not merely acceptable, to quantify the period of time by which a sentence is reduced to reflect the harsh and punitive conditions of pre-trial custody provided for in Duncan. I take no issue with this being properly characterized as a mitigating factor, nor that it should not be used so liberally as to make a sentence unfit. However, in my opinion, the Duncan credit by its nature, lends itself to being expressed numerically, which is not the case for other kinds of mitigating factors, such as remorse, youth, and the like.

[23] Transparency and consistency are two important underlying principles of sentencing that are best served by specifying the amount of the Duncan credit. If a sentencing judge merely states that the punitive pre-trial custody conditions have been factored in, without specifying how, neither the accused, the public, the government, nor correctional officials will know the extent to which this has been done. In the result, there will be no public knowledge of the impact deplorable conditions in the prisons are having on the sentences served by offenders, providing little incentive to those in authority to fix the problem. While the amount of credit to be given is a matter of discretion to which deference would typically be afforded, sentencing judges being transparent about the amount of the sentence reduction given will also provide a better opportunity for appellate oversight and error correction.

[24] Consistency in sentencing is enhanced in two ways by specifying the amount of the Duncan credit. First, individual sentencing judges will have a better sense of the extent to which other judges are taking the Duncan credit into account. This would reduce the risk of some judges awarding substantial credit for harsh conditions, while other judges may be making only a minimal adjustment to the sentence. This facilitates sentencing judges in complying with the requirement of the Criminal Code that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”[^11]

[25] Second, if the sentence that would have been imposed without the Duncan credit is clearly stated, this will assist in determining consistency in sentencing for any given offence. Otherwise, sentences for particular offences may seem completely out of proportion to other sentences, a difference which might be fully explainable by the difference in the circumstances of pre-trial incarceration. In that manner, the Duncan credit will not have the effect of distorting what the “real” sentence would have been, but for the mistreatment of the offender in the correctional institution.

[26] Other judges of this court have taken a similar position. For example, in R. v. Ahmed, Schrek J. held:

Prior to Marshall, courts usually specified a specific amount of time when giving a “Duncan” credit. More recently, some courts have read Marshall to mean that this practice should be discontinued: R. v. Lee, 2021 ONSC 7672, at para. 36; R. v. Suppiah, 2021 ONSC 3871, at para. 26. However, in Marshall, at para. 53, Doherty J.A. explained that quantifying the amount of “Duncan” credit is “not necessarily inappropriate” provided that doing so does not “skew the calculation of the ultimate sentence” and provided that the “Duncan” credit is treated as but one of several factors. Unlike with most mitigating factors such as youth or remorse, the mitigating effect of harsh presentence conditions can be easily quantified as it is directly related to the amount of time the offender has spent subject to such conditions. Quantifying the amount of “Duncan” credit promotes transparency in the sentencing process and also allows the state to know what effect its failure to maintain appropriate custodial conditions has on a sentence. However, in light of Marshall, there is no need for a court to adopt any specific formula.[^12]

[27] In R. v. Bernard, Forestell J. took a similar approach. She referred to the Marshall decision and treated the harsh conditions of Mr. Bernard’s pre-trial custody as a mitigating factor. However, she quantified the amount of the reduction she awarded pursuant to the principles in Duncan, reducing the sentence from 7 years to 5 years for that factor, noting that reducing the sentence to below 5 years would render it unfit. After making that reduction, Forestell J. applied the usual 1.5 to 1 Summers credit on the full time served, and deducted that from the 5-year sentence, leaving 98 days to be served. In dealing with the Duncan credit, she held:

As I have already indicated, the mitigation for hardship is discretionary and there is no mathematical formula. I must balance the need for a fit sentence that meets the relevant sentencing objectives and a recognition of the impact of conditions on Mr. Bernard. I therefore have concluded that the total reduction in sentence pursuant to the principles in R. v. Duncan for the hardships of lockdowns and COVID restrictions should be two years. The reduction of two years recognizes the excessive hardships and their impact on Mr. Bernard. It also serves the communicative purpose set out by Justice Schreck in R. v. Persad. [Emphasis added.][^13]

[28] Similarly, in R. v. Hassan, Himel J. referred to Marshall but went on to find that the quantification of the Duncan credit was important to express the court’s condemnation of the deplorable conditions at the Toronto South, where Mr. Hassan had served 1 year in pre-trial custody. Himel J. first determined that an appropriate sentence was 2 years less 1 day. She applied the Summers credit of 1.5 to 1, (resulting in 18 months credit) and then applied a further 0.5 to 1 for the Duncan principles, with the result that Mr. Hassan was effectively in a time-served position. With respect to the Duncan credit, Himel J. held:

Harsh pre-sentence incarceration conditions can provide mitigation and enhanced credit in appropriate cases. In deciding whether enhanced credit is appropriate, I consider the conditions of the pre-sentence incarceration and the impact of those conditions on the accused: see Duncan, at para. 6. In Marshall, the Court of Appeal for Ontario cautioned against quantifying the amount of credit for such harsh conditions but rather to consider them in mitigation of the overall sentence.

While incarcerated, Mr. Hassan experienced extensive lockdowns owing to staff shortages and faced harsh conditions because of the COVID-19 pandemic. Evidence was also submitted outlining his injuries and medical conditions since these events. Accordingly, it is warranted that credit be quantified to demonstrate the court’s condemnation of these conditions. [Emphasis added.][^14]

[29] To the same effect is the decision of Allen J. in R. v. Kongolo. In that case, she determined a fit sentences to be 2 years. Mr. Kongolo had already served 433 days in pre-trial custody at the Toronto South. Allen J. deducted the usual 1.5 to 1 Summers credit, for a total of 650 days (more than 2 years). Notwithstanding that, she then went on to apply a reduction to reflect the principles in Duncan, holding that a 2 to 1 credit on top of the Summers would have been appropriate. In coming to that conclusion, she stated:

The defence takes the position that, in addition to the Summers credits, Mr. Kongolo’s Duncan credits should be calculated at a ratio of 2:1 for each day spent in lockdown. In all of the circumstances I have considered, I do not have a problem with a 2:1 Duncan ratio. I do not find that calculation skews the sentence away from an appropriate sentence. In the result, taking the Summers deductions and the Duncan deductions into account, Mr. Kongolo will serve no further time in custody.

Through our sentence reduction decisions, the courts have for years been attempting to communicate to correctional institutions their disapproval of the inhumane treatment of inmates. The cases have in graphic terms described the abysmal conditions that no human should endure, even more so inmates who are supposed to enjoy the constitutional presumption of innocence. There has been no finding of guilt for these inmates and yet they face unnecessary and unremitting punishment on a daily basis.

I add my voice to the disapproval. [Emphasis added.][^15]

[30] I agree with these principled positions taken by my colleagues on this point. I too, both before and after Marshall, have quantified the extent of any credit to be given for extremely harsh circumstances of pre-trial custody. Perhaps it is naïve to believe that judges consistently and continuously speaking out about the unacceptability of treating human beings in this manner will have any impact at all. However, I consider it important to at least speak out. Judges can only do that through our decisions, and we should be clear about what we are doing and why. Simply taking these kinds of conditions into account with a myriad of other mitigating factors, without specifying the reduction in sentence attributed to the harsh conditions in the institution, only serves to hide the impact of these conditions on the amount of actual time offenders are being required to serve for their crimes. There are already many decisions by judges of this court decrying these conditions. Maybe, someday, someone will notice. And maybe, someday, the someone who notices will be in a position to do something about it. In the meantime, I will continue to quantify the amount by which I reduce any sentence to reflect the principles in Duncan. It is both the least, and all, I can do.

[31] Accordingly, I will first determine what I consider to be a fit sentence for each accused. I will then determine the appropriate reduction reflecting the Duncan principles. The Summers credit is a multiple of the full time served, but will then be deducted from the overall sentence, after the Duncan reduction.

D. FACTORS INFLUENCING SENTENCING

[32] Although this is very close to an agreement by counsel on what constitutes a fit sentence, I have nevertheless considered all of the relevant principles of sentencing to ensure that the sentence imposed is one that remains fit in all of the circumstances.

[33] These are serious offences which threaten the security and safety of our community. Courts at all levels have repeatedly emphasized the importance of denunciation and deterrence for crimes involving firearms and trafficking in dangerous drugs such as cocaine, and particularly fentanyl. These were offences at the “true crime” end of the spectrum, warranting penitentiary terms. It is aggravating that these were not isolated incidents, but rather a repeated course of conduct over a period of five months involving trafficking in both guns and drugs, often referred to as a “lethal combination.” The quantity of drugs involved is also aggravating. This was not street level trafficking, but rather trafficking at the mid-level, involving drugs valued in the thousands of dollars.

[34] In addition to the seriousness of the offences, it is important to consider the individual circumstances of each offender, and in particular any mitigating factors that might operate in their favour.

[35] Mr. Tanoli is a youthful first-time offender. He was 20 years old at the time of these offences, and lived with his parents. He has very strong ties to his family and his community. It would appear he had been living a “double life” when he was involved in these crimes. According to the testimonials of his family and members of his community, he was dedicated to his family members and did substantial charitable work in his community. He dropped out of school at Grade 11, but has worked steadily at various jobs throughout his young life, including construction, window installations, and working in restaurants. With a business partner, he opened a nutrition store in 2020, a fledgling business which was then met with the devastating impact of the height of the COVID pandemic. While in custody, despite the lack of consistent programming, he managed to complete all of his high school credits and has applied to go to college. This is very much to his credit. When given the opportunity to speak to me at the time of his sentencing, he expressed what I consider to be genuine remorse, pledging to make up for the harm he has done by helping people in his community when he is released.

[36] Notwithstanding the serious nature of his offences, the opportunity for rehabilitation is an extremely strong factor influencing sentencing in this case. It is important that any sentence imposed should not be so severe as to be crushing to his genuine desire to turn his life around.

[37] Mr. Shaikh is not a first-time offender. He has a criminal record which includes three separate sets of entries for offences that include assault, assault with a weapon, and threatening. The first such set of convictions was in 2018 and the other two towards the end of January 2020. It is worth noting that for two of these offences he received a suspended sentence and probation and for the other he was sentenced to 1 day in addition to time served (credited at 753 days). These offences were therefore not at the serious end of the spectrum, but they do mean that Mr. Shaikh does not have the mitigating factor of being a first-time offender. He is however quite young, having been born in 1999, which would make him 22 at the time of these offences.

[38] Mr. Shaikh filed an affidavit on sentencing in which he described experiencing anxiety, depression, and trauma in January 2020 upon his release from custody, which he attributed to his time in jail. He also believed that he was suffering from PTSD after being robbed at gun point a few months prior to his arrest in April 2022. Mr. Shaikh stated that his mental health worsened during the pandemic and he increasingly turned to drugs such as cocaine, oxycodone, and Percocet to “dull the pain.” As a result, he was heavily addicted to drugs by the time of his arrest on these charges, and had a difficult period of withdrawal while in custody. During his time in custody, he has availed himself of whatever programs were available to deal with his anger issues and drug addiction. Certificates of Completion for these programs were filed on the sentencing hearing. Through the Amadeusz program, Mr. Shaikh has also been able to work on his high school credits, earning grades in the high 80s. He is currently enrolled in classes that when completed will result in him obtaining his Ontario Secondary School Diploma. He has a very supportive family, who have noticed a positive change in his attitude since he has been in custody on these charges. When speaking to me at the time of sentencing, Mr. Shaikh apologized for his prior conduct and for the pain and suffering he has caused. I believe his remorse to be genuine. He hopes to continue on to college and to become a paralegal. I believe he has considerable prospects for rehabilitation upon his release.

E. PARITY IN SENTENCING: FIREARM TRAFFICKING

[39] Consistency in sentencing is an important objective. As much as possible, similar offenders should receive similar sentences for similar offences committed in similar circumstances. This is a principle that is easier to state than it is to apply. No two offenders are ever alike and there is endless variation in the circumstances in which the same offence can be committed. Nevertheless, it is important for sentences to reflect as closely as possible what other offenders have received in similar circumstances. To this end, it is useful to consider sentences for trafficking in firearms imposed in other cases, and to compare them to the case before me.

[40] The Crown referred to the following cases as generally supporting her position that a 4-year sentence for the firearms trafficking was appropriate, with Mr. Shaikh receiving an additional 1-year consecutive for breach of a prohibition order: R. v. Hanse; R. v. Farah; R. v. Marakah; R. v. Datta; and R. v. Hersi.[^16]

[41] In Hanse, I sentenced the offender to 4 years for trafficking in ammunition. He was convicted of that offence after a trial before a jury. He was 44 years old and had a criminal record that included a conviction for possession of cocaine for the purposes of trafficking and a conviction for manslaughter (which involved him shooting and killing a man). Both accused before me are considerably younger and have the mitigating factors of a guilty plea and remorse. Mr. Tanoli has no criminal record and Mr. Shaikh’s record is considerably less serious.

[42] The 33-year-old accused in Farah was sentenced by K. Campbell J. to 8 years for weapons trafficking for the benefit of a criminal organization. The fact that the trafficking was for the benefit of a criminal organization was an extremely aggravating factor that is not present in this case. This was also after a trial and the accused had a lengthy criminal record. That case is not comparable to the case before me.

[43] In Marakah, A. O’Marra J. found that the range of sentence for firearm trafficking was from 4 to 9 years. The accused was 24 years old and had strong family and community support. However, he was involved in the trafficking of a total of 13 firearms. On the overall charge of conspiracy to traffic in firearms, he was sentenced to 9 years. However, subsumed within that global sentence were two individual sentences for trafficking in a particular firearm, each of which was sentenced at 4 years concurrent to the global 9-year sentence. Mr. Marakah did plead guilty, which was a mitigating factor. Unlike Mr. Shaikh, Mr. Marakah was not found to be genuinely remorseful. Also, the larger conspiracy in which he was involved was far more serious than the level of firearm trafficking in this case.

[44] The Crown also relied on the decision of Forestell J. in Datta, which involved a 44-year-old accused with a criminal record that included two prior convictions for drug trafficking. He was convicted at trial of multiple offences involving firearms, cocaine, and fentanyl. Of particular relevance to this case are the convictions for trafficking two firearms to an undercover police officer. Forestell J. held that the range for this offence was 3 to 5 years and she sentenced Mr. Datta to 5 years for each offence, which were ultimately made concurrent to other offences due to the principle of totality, so that the total sentence would not be oppressive. That range is borne out by the case law. There was no guilty plea, and Mr. Datta was a far cry from a youthful first offender. He was sentenced at the top of the range, which was appropriate to his circumstances. Those are not the same circumstances as the two accused before me.

[45] Hersi is a decision of Clark J. involving a 22-year-old offender who was immersed in the street gang culture. He was convicted by a jury of trafficking in firearms for the benefit of a criminal organization and trafficking in cocaine. Clark J. found as fact that Mr. Hersi offered to transfer several firearms. He had a substantial youth record and three convictions as an adult for: possession of a firearm; possession of drugs; and assault causing bodily harm. Clark J. stated that “beyond his relative youth and his dubious family support, I see little else by way of mitigating factors.”[^17] He sentenced Mr. Hersi to 5 years on the firearm trafficking charge, and an additional 3 years on trafficking firearms for the benefit of a criminal organization. On appeal, the Court of Appeal for Ontario upheld that sentence.

[46] It is worth noting that none of the cases cited by the Crown involved any kind of enhanced credit or reduction in sentence for the harsh conditions of pre-trial custody, over and above the usual Summers credit.

[47] I take from these cases that the range for these offences is 3 to 5 years in the circumstances of this case and these offenders, and that the mitigating factors in this case, leaving aside the Duncan credit, warrant sentences near the bottom of that range. In coming to that conclusion, I am also mindful of the range for possession of a loaded firearm in a “true crime” situation, which is also 3 to 5 years. The firearm trafficking involved possession of the firearm in question, and transferring that firearm to someone else for money. In my view, this is a “true crime” situation and is more blameworthy than simple possession.

[48] Taking all of these factors into account, I find that the appropriate sentence for Mr. Tanoli and Mr. Shaikh, without any regard to the enhanced credit for harsh conditions of pre-trial custody, is 4 years. I agree with the Crown’s submission that there should be an additional 1-year sentence for Mr. Shaikh for breaching a prior prohibition order, and that this should be consecutive to the 4-year sentence for firearm trafficking.

F. PARITY IN SENTENCING: DRUG OFFENCES

Mr. Shaikh: Trafficking in Cocaine

[49] Mr. Shaikh entered a guilty plea to trafficking cocaine to an undercover officer on February 1, 2022 and again on February 22, 2022. As part of the agreed facts, it was admitted that these two transactions were part of a course of conduct that went on for 5 months during an undercover investigation, during which the undercover officer made five separate drug purchases. On February 1, 2022 the officer purchased 2 oz. of cocaine for $3200 and on February 22, he purchased 9 oz. for $13,500.

[50] Although the Supreme Court of Canada’s decision in R. v. Parranto is primarily focused on wholesale trafficking of fentanyl, the offenders in that case had also trafficked in cocaine. In this regard, the Supreme Court upheld the Alberta Court of Appeal decision that 3 years was a starting point for commercial trafficking of cocaine and 4 ½ years was a starting point for wholesale trafficking.[^18] The Alberta Court of Appeal distinguished commercial and wholesale levels of dealing in cocaine mainly by reference to the volume of the drug trafficked, with wholesale trafficking being at the multi-ounce level and commercial trafficking being up to about 2 ounces.

[51] I agree with the Crown’s characterization of Mr. Shaikh as being a mid-level dealer. He was further up the chain than a street-level dealer, but not at the level of a wholesale dealer.

[52] The Crown relies on the Court of Appeal for Ontario’s decision in R. v. Scharf[^19] as support for the position taken on the suggested sentence of 3 years for Mr. Shaikh for trafficking in cocaine. In Scharf, the trial judge sentenced the offender to 5 years for possession of 236 grams of cocaine. The Court of Appeal for Ontario upheld that sentence, but made it clear that this was due to the constraints in appellate oversight in not reversing a sentencing decision in the absence of an error of law or principle. In that case, the Court did not purport to fix a range. However, the court referred to its prior decision in R. v. Bryan, in which it held that the range was 5 to 8 years for an offender with no criminal record in possession of slightly more than a pound of cocaine for the purpose of trafficking.[^20] A pound of cocaine is approximately 454 grams. The amount of cocaine in Scharf was 236 grams, so approximately half a pound. In Scharf, the sentence was also imposed after trial, without the mitigating impact of a guilty plea and remorse. In R. v. Lynch, the Court of Appeal for Ontario again noted that the range of sentence for a mid-level trafficker in cocaine was 5 to 8 years.[^21]

[53] The Crown also relied on R. v. Reid, in which the Court of Appeal for Ontario upheld a sentence of 5 years for possession of 123.34 grams of powder cocaine and 151.98 grams of crack cocaine for the purpose of trafficking.[^22] The Court referred to the offender as being a mid-level dealer. Again, this was a reflection of appellate deference, without any analysis of the range of sentence and it was a sentence imposed after trial, without the benefit of a guilty plea and remorse as mitigating factors.

[54] It is difficult to draw much from the Court of Appeal for Ontario decisions cited as there is no analysis of the range and few details of the circumstances of the offender. The 5 to 8 year range referred to in Bryan is for a larger amount than is the case here, and it is unclear what other mitigating factors were involved, other than the absence of a criminal record.

[55] Another significant mitigating factor in this case is the extent to which the guilty plea has resulted in saving scarce judicial and courtroom resources. I conducted the pretrial in this matter on October 24, 2023. At that time, there were three accused. I determined that the Charter applications should be done in advance of trial and would take 3 to 4 weeks to complete. This would take a full month of a judge’s time, and would likely result in a reserved decision and lengthy reasons which would take considerable time to complete. I estimated the length of the trial itself at an additional 4 weeks with a jury. After guilty pleas by Mr. Shaikh and Mr. Tanoli, the Charter application for the remaining accused was estimated at 3 days, with the jury trial taking an additional 6 days. If that accused re-elected judge alone, the motions and trial could be done by the same judge and would take 4 days. Therefore, these guilty pleas have resulted in freeing up approximately 6 weeks of sitting time for a trial judge.

[56] This is a difficult time for the criminal trial list in Toronto. There is an unacceptable backlog and a significant lack of judicial resources. We are frequently failing to reach cases scheduled for trial because there is no available judge. This often results in serious cases being dismissed for delay, as well as less serious cases simply being withdrawn due to the inability of our judicial system to cope with the volume of criminal trials in our jurisdiction. The COVID pandemic exacerbated this problem, and our backlog grew even larger. There were already not enough judges to adequately cope with the criminal list in Toronto. However, the failure of the government to appoint new judges when there have been a significant number of vacancies, has made the problem even worse. Forestell J. recently reviewed these issues in some detail in R. v. Alli,[^23] in which she dismissed a case for unacceptable delay caused by the lack of judges. She noted in that case that this problem persists in spite of many judges giving up non-sitting time and even vacation time to sit on cases, knowing that if they did not do so, even more cases would be dismissed for delay. I would add to this that many supernumerary judges are sitting full-time for that same reason. It is an environment in which guilty pleas that save time for over-burdened trial judges are to be commended. This, in my view, is a legitimate factor in being more lenient in sentencing after a guilty plea, provided the resulting sentence remains fit. The guilty plea in this case was at a relatively early stage. While the Crown may have had a strong case on the substantive charges, there were legitimate Charter issues raised and these two accused were not simply bowing to the inevitable.

[57] Accordingly, in my view, the 3-year suggested sentence for Mr. Shaikh trafficking in cocaine is an appropriate sentence in light of all the mitigating factors, without taking into account the Duncan factor.

[58] I also agree with the Crown’s submission that in accordance with the totality principle, it is appropriate to reduce the global sentence to 6 years. Against this sentence, there should be a further reduction pursuant to Duncan to reflect the intolerable conditions at the Toronto South, as well as the usual Summers credit. I will deal with those credits later in these reasons.

Mr. Tanoli: Possession of Fentanyl for the Purposes of Trafficking

[59] At the time of Mr. Tanoli’s arrest, his car was searched and the police found 114 grams of fentanyl. The dangerous nature of this drug cannot be over-stated. It is a plague on our society and has resulted in an unconscionable number of needless deaths. This has now been well recognized in the case law and I will not repeat it here. As a result, trafficking in fentanyl will result in higher sentences than for any other drug, and deservedly so.

[60] In Parranto, the Supreme Court of Canada upheld the decision of the Alberta Court of Appeal that 9 years should be the starting point for sentences for trafficking in fentanyl. The Supreme Court recognized, however, that in individual cases, depending on mitigating factors, sentences could go below prescribed starting points.[^24]

[61] There is no prescribed starting point for fentanyl offences in Ontario. However, the Supreme Court stated in Parranto that in the circumstances of that case (which was wholesale trafficking in very large amounts into the highly vulnerable population in Nunavut) the “range based on a review of reported case law nationally would be in the region of 8 to 15 years.”[^25] The Court also noted that “cases from Alberta show a range of five to seven years for offenders who are engaged in ‘commercial trafficking [of fentanyl] on more than a minimal scale’.”[^26]

[62] When considering ranges for sentencing, the Supreme Court referred to an Ontario Superior Court decision, R. v. Solano-Santana, in which Newton J. includes a very helpful chart of sentences imposed in fentanyl cases.[^27] The range is quite broad, including some cases of 9 and 10 years and more, and others of 3 years and less.

[63] In Lynch, the trial judge ruled that the range for mid-level trafficking in fentanyl was from 5 to 8 years, and sentenced the offender to 4 years.[^28] This was reversed by the Court of Appeal for Ontario. Nordheimer J.A. held that the trial judge was incorrect in stating the range (which was more in line with the range for cocaine cases) and also erred in giving too much weight to the guilty plea in that case. The offender was 29 years old, had pleaded guilty, and had a criminal record with only one entry for an unrelated offence. The Court of Appeal for Ontario set aside the 4-year sentence imposed by the trial judge, and substituted a sentence of 6 years. The amount of fentanyl trafficked in that case was 41.37 grams (whereas Mr. Tanoli had 114 grams). However, Mr. Tanoli is younger, has no criminal record, and has more mitigating factors operating in his favour than was the case in Lynch.

[64] In R. v. Loor, Laskin J.A. held that it was too early in the jurisprudence for the Court of Appeal for Ontario to set a range for sentencing in fentanyl cases, but that “generally, offenders – even first offenders – who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.”[^29] The accused in that case was 39 years old and described as a “low-level member of a small drug trafficking ring dealing in fentanyl.”[^30] He had obtained and then trafficked 45 patches of fentanyl from pharmacies by using forged prescriptions. There is no information in the decision about his criminal history and no reference to any mitigating factors. The sentence was imposed after trial, so the benefits of a guilty plea and remorse were not factors. The Court of Appeal for Ontario upheld the 6-year sentence imposed by the trial judge.

[65] Interestingly, the kingpin of the organization (Raymond Goudreau) and two higher-ups (Grenville Sinclair and his then girlfriend Julie Baks) were also charged. Ms. Baks was a nurse in a doctor’s office. At the behest of her boyfriend (Mr. Sinclair), she created fake patient charts and issued forged prescriptions to those people, then confirmed with pharmacies that checked that the prescriptions were legitimate. Initially, both Mr. Sinclair and Ms. Baks pleaded guilty and were sentenced to 9 years on a joint submission. However, Ms. Baks subsequently appealed her sentence and the Court of Appeal for Ontario reduced it to 6 years based on what the Court referred to as “several powerful mitigating factors”:

The appellant is a young person who has no prior criminal record and no history of criminal involvement;

The appellant’s rehabilitative prospects are, by any measure, excellent;

She acted at the instigation and under some pressure from one of the “higher ups” in the scheme with whom she had a romantic relationship; and

The appellant provided early and full cooperation to the police. She gave a statement and testified against the two “higher ups.” One of those two has since pled guilty. The timely and valuable assistance provided by the appellant had to be given significant weight on sentence.[^31]

[66] Mr. Tanoli also has the benefit of the first two factors listed. Arguably, his crime is less serious as it did not involve a breach of trust and forging the name of her employer doctor on fraudulent prescriptions.

[67] When Mr. Sinclair also sought to appeal his 9-year sentence, the Court of Appeal for Ontario rolled it back to 8 years based on the principle of parity.[^32] Mr. Sinclair did not have the same degree of mitigating factors although he was credited with having testified against the kingpin Goudreau and having some prospects of rehabilitation. The fact that he recruited Ms. Baks into her role in the scheme counted against him. Mr. Loor also argued that his sentence was excessive given the parity principle and compared to the adjusted sentences for Ms. Baks and Mr. Sinclair both of whom were higher up in the organization. Mr. Loor was unsuccessful largely due to the mitigating factors present for the other offenders.

[68] The Crown referred to R. v. Aden[^33] as supporting the 7-year sentence recommended for Mr. Tanoli. The accused in that case was described as being a “street-level” trafficker of fentanyl, although he was found in possession of 113.9 grams of fentanyl. He was 28 years old, had a long criminal record including convictions for drug trafficking and had committed this offence while still on parole. However, the trial judge found that he had good prospects for rehabilitation and had a supportive family and spouse. The trial judge found that the time Mr. Aden served in custody prior to trial during the COVID pandemic was a mitigating factor in sentencing, but did not quantify the reduction she awarded for that factor. He had spent approximately 2 years in custody, but only about 11 months of that was during COVID. The amount of fentanyl he had in his possession was almost the exact amount Mr. Tanoli had. Mr. Aden did not plead guilty, but did not testify after the trial judge dismissed his three-day Charter application (which was based on the argument that the police did not have reasonable and probable grounds to arrest him). Mr. Tanoli did plead guilty (abandoning his Charter applications), was younger, and had no criminal record. The mitigating factors in his favour are substantially greater. It is hard to see how 7 years for Mr. Aden (with credit for 11 months of COVID conditions) can be seen as equivalent to 7 years for Mr. Tanoli (with credit for 702 days in excessively harsh conditions at the Toronto South). It seems to me that, if anything, 7 years is on the high end without taking any Duncan credit into account.

[69] I have also taken into account the Court of Appeal for Ontario’s decision in R. v. Disher.[^34] In that case, Mr. Disher pleaded guilty to charges that included possession of drugs for the purpose of trafficking. He had heroin, fentanyl, heroin mixed with fentanyl, and heroin mixed with carfentanil. He was 34 years old and had a serious criminal record spanning 15 years without significant or recent gaps. The trial judge sentenced him to 12 years. His girlfriend, Ms. Weaver, was also involved in the trafficking but was not the principal actor. She was 22 years old and her only interaction with the criminal justice system was one year earlier when she received a conditional discharge and probation for drug-related offences. She was sentenced to 7 years. The Court of Appeal for Ontario found these sentences to be unfit and held that the sentencing judge failed to give sufficient weight to the prospects of rehabilitation, as well as Ms. Weaver’s youth and Indigenous ancestry. The sentences were reduced to 8 years for Mr. Disher and 4 years for Ms. Weaver.

[70] In R. v. Ansah, Baltman J. referred to the Disher decision and a number of other fentanyl related cases and concluded that, although the sentencing ranges for fentanyl have not been fully developed, “the range for a first offender trafficking in a significant amount of fentanyl begins at four years, subject to other key mitigating factors such as a guilty plea.”[^35] Mr. Ansah was charged with possession of 85 grams of fentanyl for the purpose of trafficking and a loaded firearm. He was just over 18 years old at the time of the offence, with good prospects for rehabilitation and had faced anti-black racism and socio-economic challenges growing up. Baltman J. would have imposed a sentence of 3 years for the firearm and 5 years for the fentanyl, which included (without quantifying) a Duncan credit. However, she then reduced the overall sentence to 6 years after taking totality into account.

[71] After considering these cases and comparing them to Mr. Tanoli’s circumstances, I agree with the defence position that the appropriate sentence, before taking the Duncan factor into account, is 7 years.

G. CREDITS AND REDUCTIONS IN SENTENCE

Summers Credit

[72] There is no dispute about the Summers credit. Both accused have been in custody since April 5, 2022. As of the date of sentencing on March 6, 2024, that is a total of 702 days. Applying the Summers ratio of 1.5 to 1, each accused is entitled to a credit of 1053 days.

Duncan Reduction

[73] The biggest problem at the Toronto South is that there have been frequent lockdowns, both partial and full. During those lockdowns, inmates have restricted access to everything: rehabilitation programs; religious observance; fresh air; showers; cleaning products; laundry; visits and telephone calls with loved ones; and meetings and telephone calls with their lawyers. Inmates are locked up in small spaces for hours, sometimes days on end. Prison is already an anxiety producing environment. The lockdowns have the impact of exacerbating these problems and tensions frequently spill over into actual conflicts. I have been hearing these stories, and many varieties of them, for years. Conditions got worse during COVID (which is not wholly unexpected), but they have not improved much since. The most disturbing feature is that the reason for the lockdowns, almost exclusively, is staff shortages. Based on what I have been seeing in numerous cases over that year or two, the lockdowns at the Toronto South are typically between 50 to 60% of the total days in custody. This is shameful.

[74] The Toronto East has similar problems, although the lockdowns there are somewhat less frequent. The Toronto East, however, frequently has too many inmates in a cell. This happened to Mr. Shaikh. He was at the Toronto East from November 16, 2023 to December 6, 2023, a total of 20 nights. For every one of those nights, he was sharing his approximately 8 feet by 9 feet cell with two other men. For 20 nights, he slept on a mattress on the floor. During lockdown, nobody could move at all. However, at least there was a small window, and therefore some natural light during the day.

[75] The Toronto South cells are solid concrete. There are no windows. There is no yard. There is merely a small area off the cell block which is bounded by concrete, and uncovered at the very top, so there is some air that can come in that way. During lockdowns, even that “privilege” is lost.

[76] Medical care for inmates housed in these institutions is also inadequate, particularly during periods of lockdown.

[77] These conditions are not humane. If the Canadian public heard that one of our citizens was being held in similar conditions in a foreign prison, especially while presumed innocent of any charges against them, they would be outraged, as they should be. And yet, these dehumanizing conditions have continued unchecked and unimproved for years, despite many judges raising the issue vociferously.

[78] I agree with the following statements by my colleagues:

Forestell J. in R. v. Inniss, 2017 ONSC 2779, at para. 38

I note that the United Nations Standard Minimum Rules for the Treatment of Prisoners provides that every prisoner should have at least one hour of suitable exercise in the open air daily. Mr. Inniss was denied access to fresh air for over one-third of the time he was in custody (159 days at the Toronto East Detention Centre and 214 days at the Toronto South Detention Centre based on the number of full day lockdowns.) It is shocking that detention centres in Toronto in 2017 are consistently failing to meet minimum standards established by the United Nations in the 1950’s.

Dunphy J. in R. v. Hussain-Marca, 2017 ONSC 4033, at para. 43

Mr. Hussain-Marca has provided me with an affidavit outlining the impact upon him of the conditions at Toronto South Detention Centre. His evidence is depressingly similar to accounts that I (and my fellow judges) have been required to review in other cases recently. I write “depressingly” because the situation is both well-known and highly preventable. In almost every case, the reason for the lock-down is shortage of staff. This is not a question of a snowstorm or train delay causing some staff unexpectedly to have problems in getting to work. The problem is persistent and quite inexcusable.

Goldstein J. in R. v. Jama, 2018 ONSC 1252, at para. 20

We should have real concerns about conditions at the Toronto South. We should also have real concerns on behalf of a very young man incarcerated for a lengthy period of time who chooses to remain in Toronto to be closer to his family. Furthermore, we should not simply normalize unacceptable conditions in a jail. It must be remembered that people like Mr. Jama enjoy the presumption of innocence – or at least he did until he pleaded guilty. But even after pleading guilty he remains a human being who retains every single right that other human beings in our society retain, except the right to be at liberty outside the institution. Lockdowns arising from staff shortages, and even those arising from security reasons, should not be seen as just the price to be paid by those in custody.

Davies J. in R. v. Oskem, 2019 ONSC 6283, at para. 28

The reasons given for the lockdowns is also very troubling. All but 10 of the 133 lockdowns experienced by Mr. Oskem were caused by staff shortages at the institution. Mr. Oskem also spent the 16 of his last 18 days in the Special Handling Unit because of staff shortage. This is completely unacceptable. The persistent problem of staff shortages at the TSDC reflects an astounding level of indifference on the part of the institution, or the government, to the rights of individuals detained in pre-trial custody. If we are going to continue to keep people in pre-trial detention, adequate resources must be allocated to ensure that inmates are not routinely locked-down. Occasional lockdowns are to be expected in large correctional facilities. However, the government and the institution must address the staffing issues that are causing a shocking number of lockdowns at the TSDC.

Schreck J. in R. v. Persad, 2020 ONSC 188, at para. 31

I adopt the various descriptions my colleagues have used to describe the situation at the TSDC. It is, to use their words, unacceptable, shocking, deplorable, harsh, oppressive, degrading, disheartening, appalling, Dickensian, regressive and inexcusable.

Schreck J. in R. v. Ahmed. 2021 ONSC 8157, at para. 40.

The conditions at the TSDC have been the subject of frequent judicial criticism. I reviewed a number of decisions on this issue in R. v. Persad, 2020 ONSC 188, at paras. 28-34. Since then, courts have continued to condemn the deplorable conditions at the TSDC. And yet, nothing seems to change. In my view, the Ministry of the Solicitor General's refusal to ameliorate the conditions at the TSDC in the face of a mountain of judicial criticism and the findings of the OHRC is an affront to the administration of justice. [Citations omitted.]

Quigley J. in R. v. H-O, 2022 ONSC 4900, at paras. 88 and 90.

The harsh conditions at the TSDC have been widely recognized and condemned by this Court on numerous prior occasions. The conditions have been described as "unacceptable, shocking, deplorable, harsh, oppressive, degrading, disheartening, appalling, Dickensian, regressive and inexcusable." This language was recently adopted by Schreck J. in R. v. Persad, 2020 ONSC 188 at para. 31. He continues at paragraph 32 with the inevitably sad and disgraceful conclusion that improving the environment, and carceral conditions in Ontario penal institutions is just not presently a priority of any kind for this provincial government.

The harsh conditions and number of lockdowns in H-O's case are shocking, unconscionable, and inhumane. The critical issues highlighted in Persad and many other decisions of this Court are not being addressed. I find this to be profoundly disconcerting because, as Schreck J. observes in Persad, it not only undermines the principles of individualization and parity, but also the communicative function that sentencing is meant to achieve, and its overarching goal of contributing to respect for the law: R. v. Persad, 2020 ONSC 188, at paras. 27-35.

K. Campbell J. in R. v. Cormier, 2023 ONSC 4640, at para. 40.

I do not have an affidavit or other evidence from Mr. Cormier outlining the impact of the lockdowns, triple bunking and COVID-19 outbreak on him. That makes it more difficult to assess the amount of Duncan credit. This is a factor I consider. However, the information provided from the two institutions leads me to the rather obvious conclusion that anyone detained in circumstances where almost half their time was spent in some form of lockdown, where significant amounts of time involved three inmates confined in a cell designed to hold only two, and where significant periods were served under a full COVID-19 outbreak, will suffer some negative impact above and beyond that included in the 1.5 to 1 credit already given pursuant to Summers. Despite the limited nature of the evidence I have, I am satisfied that significant Duncan credit should be given.

[79] In 2020 the Ontario Human Rights Commission conducted an investigation into the conditions at the Toronto South and issued a report as to its findings.[^36] I will not comment here on the Commission’s findings with respect to human rights concerns and the use of segregation and restrictive confinement. However, the Commission commented on many problems that judges of this court are now finding to be routine, including: prisoners not being able to make contact with friends and family; public health concerns related to infrequent changes of bedding and clothing and outbreaks of skin conditions such as scabies; and stressful conditions caused by frequent lockdowns. The Commission noted that the Toronto South was not operating at full capacity at that time due to staff shortages and that the frequent lockdowns were also attributable to staff shortages, including staff making extensive use of “sick days” due to occupational stress-related injuries and long-term leaves due to disability. I am not aware of any follow-up taken by the Ministry of the Solicitor General in response to this report. However, I can certainly attest that my experience and that of many of my colleagues is that the conditions at the Toronto South have not improved.

[80] I can appreciate that there must be enormous pressure on the correctional staff at the Toronto South, and that this may account for the constant lockdowns, staff on sick leave, and staff turnover. However, these problems are circular. The more lockdowns, the more anxiety is caused to the inmates, and the more these tensions can boil over into hostile confrontations. On the other hand, the more tensions and hostilities exist amongst the inmates, the more stress is caused to the correctional staff. I do note, however, that it is very rare to see a lockdown classified as a security concern. Almost all of them are caused by staff shortages.

[81] Unfortunately, there is nothing I can do to change these conditions, apart from providing some measure of relief by way of sentence reduction to those who have had to endure them, which includes the two offenders in this case. Their evidence as to the impact on them has not been challenged. I accept it as true, and indeed I have been hearing similar things from others for many years.

[82] I have already referred to the over-crowding at the Toronto East and the conditions experienced there by Mr. Shaikh. While at the Toronto South from April 5, 2022 to November 9, 2023 (584 days), the Toronto South’s records show lockdowns for 251 days. Mr. Shaikh kept his own records, which are significantly more, a situation which I have seen before. He felt isolated and lonely due to family visits being cancelled and even phone calls being severely restricted. He had difficulty being able to speak to his lawyer. The ability to shower and obtain clean clothing were also restricted. He had a chronic skin condition as a teenager that had been under control, but which flared up during custody causing a painful, red rash. He also developed gastrointestinal problems, for which he sought treatment in November 2022, with very little having been done about it. He has acid reflux, lack of appetite, nausea, vomiting and weight loss. He was told that he should have an ultrasound, but has not had one despite repeated requests.

[83] Mr. Tanoli reported that he contracted COVID while at the Toronto South. He also reported the infrequency of being able to shower, and the lack of clean clothing, as well as severely limited contact with his family, which caused considerable anxiety. He was also hindered in the ability to pray with his community and noted that inmates who were Christian had far more regular access to a chaplain, which was not the case for followers of Islam.

[84] Defence counsel submitted that each of the accused should receive a credit of the equivalent of 0.5 days for every day spent in custody, in addition to the Summers credit. I agree that is appropriate. There is no precise formula for the Duncan reduction. The accused have been in custody for 702 days, as of the date of sentencing. I will allow a reduction of 1 year for each accused to reflect the excessively harsh conditions of their pretrial custody.

H. CONCLUSION

[85] I have determined that the appropriate global sentence for Mr. Shaikh is 6 years. That total reflected 4 years for the firearms, plus 1 year consecutive for the prohibition order breach, plus 3 years for the trafficking in cocaine, which I then reduced to 6 years to reflect the principle of totality. I will further reduce the global sentence to 5 years to reflect the reduction pursuant to Duncan. I will allocate the sentences as follows to achieve that total: 4 years for the firearms offences; 1 year for the prohibition order consecutive; and 3 years concurrent for the drug offences. He is entitled to a Summers credit of 1053 days. The 5-year period from March 6, 2024 to March 6, 2029 is 1,827 days. After the Summers credit that leaves 774 days left to serve (which is approximately 25.4 months).

[86] For Mr. Tanoli, I found the appropriate sentence to be 7 years for the fentanyl possession and 4 years for the firearms. I will make those sentences concurrent to reflect the totality principle. From that 7-year sentence, I will deduct 1 year to reflect the principles in Duncan, bringing the total sentence to 6 years. Mr. Tanoli is entitled to a Summers credit of 1,053 days. The 6-year period from March 6, 2024 to March 6, 2030 is 2,192 days. After the Summers credit that leaves 1,139 days left to serve (approximately 3 years and 1 ½ months).

[87] In addition, there will be a DNA order, a forfeiture order, and a s. 109 order for life with respect to both accused.

MOLLOY J.

Released: March 6, 2024

[^1]: A third accused elected to proceed to trial on other charges. [^2]: R. v. Marshall, 2021 ONCA 344 [Marshall]. [^3]: R. v. Duncan, 2016 ONCA 754 [Duncan]. [^4]: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575 [Summers]. [^5]: R. v. Fermah, 2019 ONSC 3597, 56 C.R. (7th) 154 [Fermah]; R. v. Smith, [2003] O.J. No. 1782 [Smith]; R. v. Permesar, [2003] O.J. No. 5420 [Permesar]; R. v. Lowe, [2003] O.J. No. 2980 [Lowe]; R. v. Poirier, [2001] O.J. No. 2320 [Poirier]; R. v. Miller, [2003] O.J. No. 4464 [Miller]. [^6]: S.C. 2009, c. 29. [^7]: Summers, supra note 4 at para. 71. [^8]: Duncan, supra note 3 at para. 6. [^9]: Marshall, supra note 2 at para. 52. [^10]: Duncan, supra note 3 at para 53. [^11]: Criminal Code of Canada, R.S.C. 1985, c. C-46, s. 718.2(b). [^12]: R. v. Ahmed, 2021 ONSC 8157, at para. 42. [^13]: R. v. Bernard, 2021 ONSC 5817, at para. 32. [^14]: R. v. Hassan, 2023 ONSC 5040, at paras. 45-46. [^15]: R. v. Kongolo, 2022 ONSC 3891, at paras. 82-84. [^16]: R. v. Hanse, 2019 ONSC 1640 [Hanse]; R. v. Farah, 2016 ONSC 5000 [Farah]; R. v. Marakah, 2015 ONSC 1576 [Marakah]; R. v. Datta, 2021 ONSC 2136 [Datta]; R. v. Hersi, 2015 ONSC 5378, aff’d 2018 ONCA 1082 [Hersi]. [^17]: Hersi, supra note 16 at para. 63. [^18]: R. v. Parranto, 2021 SCC 46, 31 Alta. L.R. (7th) 213, aff’d (sub nom R. v. Felix) 2019 ABCA 458, 98 Alta. L.R. (6th) 136, at paras. 42 and 74 [Parranto]. [^19]: R. v. Scharf, 2017 ONCA 794. [^20]: R. v. Bryan, 2011 ONCA 273, at para. 1. [^21]: R. v. Lynch, 2022 ONCA 109, 160 O.R. (3d) 241, at para. 18 [Lynch]. [^22]: R. v. Reid, 2017 ONCA 430, at para. 34. [^23]: R. v. Alli, 2023 ONSC 5829. [^24]: Parranto, supra note 18, at paras 17, 18, 36, 38. [^25]: Ibid, at para. 68. [^26]: Ibid, at para. 69. [^27]: R. v. Solano-Soltana, 2018 ONSC 3345. [^28]: Lynch, supra note 21. [^29]: R. v. Loor, 2017 ONCA 696, at para. 50. [^30]: Ibid, at para. 1. [^31]: R. v. Baks, 2015 ONCA 560, at para.4. [^32]: R. v. Sinclair, 2016 ONCA 683. [^33]: R. v. Aden, 2021 ONSC 2370, 396 C.C.C. (3d) 419. [^34]: R. v. Disher, 2020 ONCA 710. [^35]: R. v. Ansah, 2021 ONSC 6339, at para. 30. [^36]: Ontario Human Rights Commission, Report on conditions of confinement at Toronto South Detention Centre (Ontario: Ontario Human Rights Commission, 2020).

R. v. Shaikh and Tanoli, 2024 ONSC 774

Case Summary

REASONS FOR SENTENCE

A. BACKGROUND

B. ISSUES TO BE DETERMINED

C. HARSH PRE-TRIAL CUSTODY CONDITIONS: MITIGATING FACTOR OR QUANTIFIED CREDIT

D. FACTORS INFLUENCING SENTENCING

E. PARITY IN SENTENCING: FIREARM TRAFFICKING

F. PARITY IN SENTENCING: DRUG OFFENCES

Mr. Shaikh: Trafficking in Cocaine

Mr. Tanoli: Possession of Fentanyl for the Purposes of Trafficking

G. CREDITS AND REDUCTIONS IN SENTENCE

Summers Credit

Duncan Reduction

H. CONCLUSION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 2

Legislation 3