Reasons for Sentence

Court File Nos.: CR-24-10000615-0000; CR-22-10000367-0000
Date: 2025-01-31
Ontario Superior Court of Justice
Between:
His Majesty the King
and
Tahir Ul-Haq

Appearances:
Anna Martin, for the Federal Crown
Hussein Aly, Counsel for Tahir Ul-Haq

Heard: December 12, 2024
Judge: Kelly

Introduction

[1] Mr. Tahir Ul-Haq was charged with trafficking a Schedule I substance, manslaughter, and criminal negligence causing bodily harm. He sold what he believed to be cocaine to Diana.[1] It was not cocaine. It was fentanyl.

[2] During a small New Year’s Eve gathering, Diana and her friend, Nicole, consumed the fentanyl Diana purchased from Mr. Ul-Haq, believing it was cocaine. Diana suffered bodily harm as a result. Nicole tragically died.

[3] The jury convicted Mr. Ul-Haq of trafficking fentanyl. He was acquitted of manslaughter and criminal negligence causing bodily harm. Mr. Ul-Haq appears before me now for sentencing.

[4] The Federal Crown seeks a custodial sentence of three to four years’ imprisonment. Counsel for Mr. Ul-Haq seeks a conditional sentence of two years less one day. Counsel agree that the following ancillary orders should be imposed: a s. 109 weapons prohibition for 10 years and a DNA order.

[5] I conclude that the appropriate sentence is the imposition of a conditional sentence order of two years less one day. Mr. Ul-Haq will be subject to a probation order for two years thereafter. He will also be subject to a s. 109 order for 10 years and provide a sample of his DNA.

[6] What follows are my reasons.

The Factual Overview

[7] The facts giving rise to the conviction for trafficking are not controversial but for two issues that I will address below. The uncontested facts may be summarized as follows:

a. Diana had known Mr. Ul-Haq for two years prior to December 2020. She had met him through friends. They had socialized with each other in the past. Both agreed that they had consumed cocaine during the year that preceded this incident.

b. Diana and Mr. Ul-Haq also agreed that they exchanged messages on December 30, 2020. The subject matter of that exchange was cocaine.

c. Diana agreed that she did not know Mr. Ul-Haq to be a cocaine dealer, but rather a cocaine user. The reason that she reached out to Mr. Ul-Haq to purchase cocaine in December 2020 was explained as follows: she had seen him doing it before and believed some of his friends may have access to a supply.

d. Between 6:07 p.m. on Wednesday, December 30, 2020 and Thursday, December 31, 2020, Diana exchanged messages with Mr. Ul-Haq regarding the purchase of $60 worth of cocaine. They agreed on the amount (a half gram), a price ($60), and a place to meet (Mississauga).

e. The text exchange also included the following about the quality of the cocaine being sold by Mr. Ul-Haq and purchased by Diana:

i. Diana inquired as to whether the cocaine was “good” and not “laced”. Mr. Ul-Haq suggested that he would do a line in front of her (presumably to show her that the cocaine was “good”). Mr. Ul-Haq “guaranteed best quality”.

ii. She also queried whether a half gram would be enough cocaine as she was entertaining two to four people. They agreed that a half gram would be enough for Diana’s purposes.

iii. Mr. Ul-Haq sent a photograph of a small Ziploc bag containing a white substance. Diana testified that she understood this to be a picture of cocaine. It is similar in appearance to the bag found in Diana’s unit after the incident.

iv. After receiving the picture, Diana asked Mr. Ul-Haq if he could make the substance powder. Mr. Ul-Haq responded saying, “this is what a half gram looks like” and “powder?”. Diana said, “ya powder”. He responded, “no don’t, do not”.

v. When asked by Diana why he did not have powder, Mr. Ul-Haq replied: “Because if I make it powder for you all of it will get in the bag. You crush it yourself w a card.”

vi. When Diana confirmed that she would have to break it up, Mr. Ul-Haq responded: “It’s the sign of it being pure idiot. You break it on your phone with a card. And sniff it”. Diana said “ok”.

vii. After they met and exchanged the money for the cocaine, Mr. Ul-Haq texted Diana and told her to “enjoy and be safe”.

viii. A text was sent by Mr. Ul-Haq at 10:15 p.m. the following day, December 31, 2020. His inquiry was the following, “how was it”. There was no response from Diana at that time.

f. After the purchase from Mr. Ul-Haq and on the following day, Diana hosted a New Year’s Eve celebration in her home. Diana and her friend, Nicole, consumed the fentanyl purchased from Mr. Ul-Haq, believing it to be cocaine. Both went into distress.

g. 911 was called. Emergency responders attended.

h. The paramedics took Diana to the emergency department at the Toronto General Hospital and she was admitted to the Intensive Care Unit. She remained intubated there until January 1, 2021, at 3:25 a.m. She was discharged later that day. Diana sustained bodily harm because of consuming the fentanyl.

i. Nicole was pronounced dead.

j. Fentanyl was found in the blood of Nicole. The substance seized by police from the unit was tested by Health Canada. It was fentanyl. No evidence of cocaine was found in the blood of Nicole nor in the substance seized from the unit by police.

k. Dr. Pickup, the forensic pathologist, testified that Nicole died of acute fentanyl toxicity.

[8] It is agreed that Mr. Ul-Haq did not know that he was trafficking in fentanyl. There is no evidence to suggest that he misled Diana when he represented that the product was cocaine.

Facts in Issue

[9] There are two issues of fact that are disputed. They may be summarized as follows:

i. The Federal Crown submits that Mr. Ul-Haq did not test the product before selling it to Diana. Counsel for Mr. Ul-Haq disagrees.

ii. The Federal Crown submits that Mr. Ul-Haq was a “social trafficker” of drugs, selling to his friends periodically. Counsel for Mr. Ul-Haq submits that this sale was a “one off” for a friend and for which Mr. Ul-Haq received no profit.

[10] I agree with Counsel for Mr. Ul-Haq. I am not satisfied, on a balance of probabilities[2] (or beyond a reasonable doubt),[3] that Mr. Ul-Haq did not test the product or that he did anything more than provide what he believed to be cocaine to Diana as a favour. I find that there is evidence to support that Mr. Ul-Haq consumed a portion of the product before selling the product to Diana. I also find that this sale was a “one off” for which Mr. Ul-Haq received no profit.

i. Testing the Product

[11] Mr. Ul-Haq testified that he purchased what he believed to be cocaine from his supplier, known to him as “Kegz”, after receiving a request from Diana for a half gram of cocaine. He observed Kegz divide a rock into two pieces, one for him and one for Diana. He testified that he then went to his home and consumed a portion of his piece. Thereafter, he went to a friend’s home where he met Diana. While they were both inside their cars, he gave her the portion that she had agreed to purchase. Mr. Ul-Haq testified that he consumed some of his half gram before giving it to Diana and consumed the rest of it afterwards. He did not fall ill because of his consumption.

[12] The Federal Crown suggests that it is not reasonable to find that Mr. Ul-Haq consumed some of the product before selling the drugs to Diana. She submits that his evidence makes no sense – that he went to purchase the product from Kegz, used some of it, drove to a friend’s home, got into his car at his friend’s home, and completed the transaction with Diana. I disagree.

[13] I find that the timeline provided during Mr. Ul-Haq’s evidence permitted the opportunity for him to consume a portion of the product obtained from Kegz before he provided the other half of the product to Diana. The texts commenced with Diana at approximately 6:07 p.m. The drug transaction with her occurred over three hours later.

[14] Further, Mr. Ul-Haq’s reaction to Diana being hospitalized and thereafter Nicole’s death supports the inference that Mr. Ul-Haq had consumed the product purchased from Kegz, half of which he provided to Diana:

a. After waking up in the hospital, Diana exchanged instant messages with Mr. Ul-Haq. That exchange included the allegation that the product provided by Mr. Ul-Haq was laced. When Diana suggested that she almost died, Mr. Ul-Haq replied, “That’s not possible. Because I had rest half gram. I did it. I’m still awake”. He said that it could not be laced. He also explained, “I’m sorry I can [guarantee] you it wasn’t. I bought it myself and I did it myself”; “I’m sorry your new year’s went like that. I really am but I can [guarantee] you it wasn’t laced”. He, again, explained that he did some of the product himself.

b. In a follow up conversation and when Mr. Ul-Haq was advised that Nicole had died, he responded, “No. Don’t tell me that” and “Please don’t say that. Whyyy. Is this a prank on me?”

[15] Mr. Ul-Haq’s reaction to Diana’s hospitalization and Nicole’s death was instant. It does not appear to be fabricated. He admitted to ingesting illegal drugs and advised that he did not suffer any of the consequences described by Diana.

[16] Further, Dr. Pickup (the forensic pathologist) explained why two people who consume the same fentanyl might have different reactions. First, everyone reacts differently to drugs. Second, the amount of fentanyl in the substance consumed is not necessarily known, so they may have been exposed to different concentrations of fentanyl. Third, the amount of fentanyl consumed may not have been equal.

[17] Based on the evidence presented at trial, I accept that Mr. Ul-Haq consumed a portion of the product before selling it to Diana.

ii. Where Mr. Ul-Haq fits into the drug hierarchy

[18] The Federal Crown submits that she cannot prove beyond a reasonable doubt that Mr. Ul-Haq is a commercial dealer. She submits, however, that Mr. Ul-Haq is a social trafficker who, periodically, sells to his friends.

[19] The Federal Crown submits that the evidence does not suggest that this is the first time that he has sold drugs, nor is he a shared trafficker. During the initial text exchange with Diana, Mr. Ul-Haq immediately negotiated pricing and quantities required. Mr. Ul-Haq explained how to turn the rock into powder and suggested that the quality was good.

[20] Mr. Ul-Haq testified, “I’ve never sold – I’m not a dealer.” Mr. Ul-Haq denied that he trafficked in either cocaine or marijuana in the past. He admitted, however, that he was a user of both. He had been using cocaine intermittently for a little over a year. His supplier was a person he knew as “Kegz”. He was not selling cocaine for Kegz and he was not in possession of the cocaine when Diana reached out to him. Mr. Ul-Haq testified that he only sold the half gram to Diana on this occasion as a favour. He bought some for himself at the same time.

[21] I accept that Mr. Ul-Haq sold the product to Diana as a favour for a friend and there is no evidence to suggest that he did so to other friends, even periodically. While he had knowledge of the product including pricing, how to turn it into a powder, etc., there is no evidence that one must be a dealer to have that knowledge. He is an admitted user of cocaine and could have acquired that knowledge through his own use.

[22] Further, the police searched Mr. Ul-Haq’s home after this incident. There were no indicia that he was a drug trafficker. For example, no drugs or large amounts of money were found there. He was in debt at the time of the offence.

[23] Based on the evidence, I am not satisfied beyond a reasonable doubt that Mr. Ul-Haq had sold drugs on other occasions, even to his friends. I find that Mr. Ul-Haq sold the product to Diana as a favour and not for profit.

Victim Impact Statements

[24] No victim impact statements were filed. However, I do not need one to understand the despair Nicole’s family must be feeling due to the loss of their family member. Nicole was a young woman enrolled in university. Her future was extinguished the night she consumed the fentanyl that resulted in her death. The incident was a tragedy for her family, our community, and the first responders.

[25] I am certain, as well, that Diana is suffering due to this incident. Like Nicole, she was a university student. I have no doubt that her life has been changed, irreparably, due to this incident and the loss of her good friend.

[26] During the incident, Diana said to Mr. Ul-Haq that she had been throwing up and that she felt like dying while she was hospitalized for approximately four hours before being released. The physical toll taken because of her consumption was readily apparent from the evidence.

[27] After the incident, there were suggestions by some that Diana should have been the one that died. She was hesitant to communicate with her family because of the incident and was isolated from them as they were in a different country. She also became isolated from friends. The emotional toll on Diana was also readily apparent from the evidence.

[28] The community also suffers from incidents such as the one before this Court. The first responders described the perils that they, themselves, are placed in when dealing with fentanyl overdoses. This incident happened during the COVID pandemic, when our health care resources were being fully tapped and exhausted.

The Background of Mr. Ul-Haq

Personal History

[29] Information about Mr. Ul-Haq’s character was provided to the Court by way of the submissions of counsel. Mr. Ul-Haq’s personal history may be described as follows:

a. Mr. Ul-Haq is currently 27 years of age. He was 23 years of age at the time of this offence.

b. Mr. Ul-Haq graduated from high school and then attended at Wilfred Laurier University for two years. He studied computer science. After having been charged with these offences, he discontinued his university education due to the uncertainty of his future.

c. Mr. Ul-Haq has been employed at various places during high school and thereafter. For example, he has been working at Sotto Sotto (a restaurant) since 2022. Prior to that, he worked at another restaurant, Harper’s Landing, for one year.

d. While he was at university, Mr. Ul-Haq worked at a Meltwich restaurant for one year and at a Roots store from December 2017 to December 2019. While in high school, Mr. Ul-Haq worked at a Popeyes restaurant for approximately a year and a half. He also worked at McDonald’s for about one year.

e. Mr. Ul-Haq is the youngest child of a family of five. Mr. Ul-Haq is very close to his mother. She attended at the trial and Mr. Ul-Haq expressed dismay at having caused both his mother and the rest of the family stress arising from these legal proceedings.

f. Mr. Ul-Haq’s siblings also attended the trial. They may be described as follows:

i. His eldest sister is a graduate of university in Pakistan. She currently works as a branch manager at the Royal Bank of Canada. Her husband is a mortgage specialist at the Toronto Dominion Bank. They have two children.

ii. His eldest brother owns and operates a taxi. He is married with one child. His wife was also educated in Pakistan, graduating with a university degree.

iii. His second sister is also a university graduate from Pakistan. She is a homemaker. Her husband owns and operates a plumbing business. They have two children.

iv. His third sister is currently enrolled at York University. She is also employed as an assistant manager at Walmart. She is not currently married.

g. Mr. Ul-Haq is involved in a committed relationship. His girlfriend, Nawal, is currently finishing the nursing program at Sheridan College. She also works in a daycare centre and runs her own business providing eyelash services to women. They plan to get married and start a family.

h. Mr. Ul-Haq’s father is deceased. Tragically, his father was shot. At the time, he was a reporter covering the story of the Ahmadiyya Mosques Massacre in Lahore, Pakistan. Grenades had been launched into the mosques of the minority Ahmadi Muslim community in two residential neighborhoods. Worshippers were shot. It was described as the deadliest attack on Ahmadi Muslims. Mr. Ul-Haq’s father was present in one of the mosques at the time. He was reporting live about the incidents when he was shot and killed. It was video and audio taped. The video of his death remains accessible on YouTube.

i. Mr. Ul-Haq’s family left Pakistan because of the persecution of Ahmadi Muslims. In Pakistan, they are discriminated against and considered to be second class citizens.

j. The trauma of Mr. Ul-Haq’s father’s death led him to experiment with drugs, including marijuana and cocaine. Since his arrest, he has avoided the consumption of hard drugs.

k. Mr. Ul-Haq is not a Canadian citizen. He is a permanent resident. As such, he is subject to deportation for serious criminality arising from his trafficking conviction.

l. Mr. Ul-Haq has no criminal record. He is a first offender.

Community Support

[30] Mr. Ul-Haq has the support of his community. Several letters were provided on his behalf. They may be summarized as follows:

• Fabio Vacca is Mr. Ul-Haq’s employer at Sotto Sotto. He states that Mr. Ul-Haq is an invaluable member of his staff “demonstrating an exceptional level of adaptability, dedication and skill”. He is an essential member of their operation. He describes Mr. Ul-Haq as “hardworking”, “responsible”, and “committed”. He works well under pressure and maintains a positive demeanour.

• Dennis Palma-Cedeno was a chef of the Landing Group Restaurant at the time that Mr. Ul-Haq worked as a line cook, a server, and in business support. He describes that Mr. Ul-Haq constantly demonstrated “exceptional dedication, strong work ethic, and unwavering enthusiasm”. He was reliable and delivered “high quality results”. He concluded, by saying that Mr. Ul-Haq’s “unique blend of hard work, honesty, helpfulness, and teamwork makes him an invaluable asset to any future employer”.

• Anees Haq is a cousin. He describes Mr. Ul-Haq as “deeply humble, compassionate, and community focused”. He contributes positively to those around him. He helps others in need, volunteering with local mosques, guiding and inspiring youth. He steps up when someone requires assistance. He shows empathy and is thoughtful. He is confident that Mr. Ul-Haq will use his experience to grow and focus on solutions to prevent others from making the mistakes he has made.

• Hayyan Qureshi was a student with Mr. Ul-Haq at university. He describes Mr. Ul-Haq as a hard worker and kind. He states that Mr. Ul-Haq’s current circumstances are not reflective of his character. He is confident that Mr. Ul-Haq regrets his actions and is dedicated to becoming a “better member of society”. He believes that Mr. Ul-Haq has a bright future and will use this experience to make positive contributions to his community.

• Tahir Haq is Mr. Ul-Haq’s other brother. He describes Mr. Ul-Haq as “dedicated” and “hardworking”. He has a “strong sense of duty” and is “respectful and considerate”. He has watched Mr. Ul-Haq try to make amends for his conduct and improve himself through “personal reflection, seeking guidance” and “planning how he can contribute positively to society”. This experience has been “life-changing”. He concludes by saying, “Despite this case, I still believe Tahir to be an honourable individual, a valuable member of our family as well as our community”.

• Inam Haq is Mr. Ul-Haq’s brother-in-law. He describes Mr. Ul-Haq as “kind-hearted” and “good-natured”. He cares deeply for his family and friends. Mr. Ul-Haq feels “profound regret” and is “turning his life around”. He has expressed “genuine remorse for his actions and a deep understanding of the consequences they have had, not only for himself but also for others”. Mr. Ul-Haq is committed to becoming a better person. Mr. Ul-Haq is a role model for his nephews. He hopes that Mr. Ul-Haq is not “defined by this moment in his life”. He has the potential to rebuild his future and continue to be a positive influence.

• Ahmad Hassan is a friend. They met at university. He describes Mr. Ul-Haq as “deeply kind, hardworking and reliable”. He is supportive of others. He has a “genuine interest in fostering a welcoming and inclusive environment for others”. He is committed to personal growth.

Remorse

[31] At the conclusion of his sentencing hearing, Mr. Ul-Haq expressed remorse. He apologized to the victims, his family, and the Court for the pain that his actions caused. He testified that he is carrying the weight of Nicole’s death and the distress caused to Diana. He added:

It does kill me that my actions had caused such a great – such an unforeseen mistake. I can never get over it. It doesn’t matter about the sentencing or anything else. I can never get over the fact that what happened was due to my actions, but I do sincerely apologize to everyone.…

[32] Mr. Ul-Haq assured the Court that he is committed to learning from “this tragedy”. He asks for the chance to improve himself, to grow from his mistake, to learn from it, and to help others.

Conditions of Bail

[33] Mr. Ul-Haq was released on bail following his arrest on January 31, 2021. He was subject to house arrest with an exception: he was permitted to be out of his home provided he had a note from his surety allowing it.

[34] While Mr. Ul-Haq was on bail for 47 months, there were two allegations that he breached the terms of his release because he was not able to produce a letter from his surety permitting him to be outside his home. His bail was then supplemented with the requirement of GPS monitoring. One of the charges of failing to comply with his recognizance has been withdrawn. The other is scheduled for trial in Milton in 2025.

The Legal Framework: Sentencing

a. General Principles

[35] The following is a summary of the legal principles applicable in sentencing for trafficking offences.

[36] In determining an appropriate sentence for Mr. Ul-Haq, regard must be had to the sentencing objectives set out in s. 718 of the Criminal Code, RSC 1985, c C-46 which provides as follows:

The fundamental purpose of sentencing 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 by imposing just 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 rehabilitating 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 acknowledgment of the harm done to victims or to the community.[4]

[37] The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listed in ss. 718.2(a)(i) to (vi); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)).[5]

[38] Section 742.1 of the Criminal Code authorizes a court to make an order for a conditional sentence. To do so, the court must impose a sentence that is less than two years. Further, the court must be satisfied that service of the sentence in the community would not endanger the safety of the community and that it is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

iii. The Range

[39] Counsel for Mr. Ul-Haq provided four cases in support of his position on sentencing (the imposition of a custodial sentence order) which may be summarized as follows:

• R. v. White, 2019 ONCJ 191: The accused pled guilty to trafficking in a Schedule 1 substance held out to be heroin. Mr. White sold heroin to the victim, Mr. Troy. Mr. Troy injected the heroin in Mr. White’s presence. The substance turned out to be fentanyl and Mr. Troy died of fentanyl toxicity. Mr. White was not a drug dealer motivated by profit or greed. Mr. Troy had contacted Mr. White, his friend, for help obtaining heroin because he was experiencing symptoms of withdrawal. Mr. White believed the substance to be heroin and was himself addicted to heroin. Mr. White was 25 years old at the time. He did not have a criminal record. He encountered significant difficulties with drug addiction from a very early age. He was previously charged with assault, for which he received a suspended sentence and 12 months of probation. Mr. White expressed sincere remorse and accepted responsibility. He respected the terms of his strict bail. Mr. White had made sincere efforts and had success in overcoming his addiction to opioids. He was highly motivated to live drug free. Mr. White cooperated with police. West J. sentenced Mr. White to an 18-month custodial sentence followed by 3 years’ probation with conditions.

• R. v. Hugh, 2024 ONSC 6135: The accused pled guilty to possession of fentanyl for the purpose of trafficking. Police observed Mr. Hugh hand an individual a quantity of drugs after receiving payment in the Moss Park area. Overall, 15.70 grams of fentanyl were located on Mr. Hugh with a street value of between $1,080 and $2,160. Mr. Hugh was 60 years old at the time of the offence. He was a first-time offender and expressed remorse. He took responsibility for his actions. He had strong family support from his wife. Mr. Hugh possessed fentanyl for the purpose of trafficking to earn a profit. Mr. Hugh had several medical conditions which would have made serving time in a jail setting very difficult for him. The Court considered Mr. Hugh’s background of personal hardship, including anti-Black racism and drug use. Mr. Hugh was involved in low level trafficking on this one occasion to satisfy his own drug use habit. Mr. Hugh had no permanent immigration status in Canada, and his conviction would result in a removal order becoming effective as soon as his sentence was completed. Himel J. imposed a conditional sentence of two years less a day and two years’ probation.

• R. v. Sangster, 2024 ONCJ 549: The accused pled guilty of possession of fentanyl for the purpose of trafficking and possession of cocaine for the purpose of trafficking. Mr. Sangster was 18 years old at the time of the offence and had no criminal record. Police executed a search warrant on an apartment in Pembroke, on the information that people were coming from Toronto to sell illegal drugs. Mr. Sangster was in the apartment at the time the search warrant was executed and had seven grams of powdered fentanyl as well as seven grams of powdered cocaine on his person. Mr. Sangster had strong support from his family. His criminal activity was planned, and profit driven. He incurred further charges while on bail. Mr. Sangster expressed remorse and some “seminal insight into the seriousness of his offending”. The Court recognized Mr. Sangster’s good prospects for prosocial reintegration into the community. The Court was cognizant of not perpetuating the “cycle of anti-Black racialization, poverty, desperation, poor life choices, and crime” experienced by Mr. Sangster. Mr. Sangster was sentenced to a conditional sentence of two years less a day plus three years of probation.

• R. v. Shearer, 2022 ONCJ 288: The accused pled guilty to trafficking in fentanyl, possession of fentanyl, and carrying a concealed weapon. An undercover police officer contacted the accused to purchase fentanyl. The accused sold 0.43 grams to the police officer and a further 2.84 grams were found in his bedroom. The accused was 22 years old at the time of the offence. Mr. Shearer was himself addicted to opioids and was a first offender. He trafficked a small amount of fentanyl on one instance for $100. While on pre-trial release, he pursued treatment for his addiction. He complied with strict house arrest bail conditions. He was successful in his rehabilitation programs. Porter J. imposed a 20-month conditional sentence.

[40] The Federal Crown provided several cases and articles in support of her position on sentencing. I have reviewed the cases and articles provided. I accept that fentanyl is stronger than morphine and heroin. It is highly addictive and currently is the narcotic responsible for the most deaths. I also accept the peril that many users believe they are ingesting cocaine or heroin but are unknowingly ingesting a deadly drug mixture that contains fentanyl.[10]

[41] I have also reviewed the cases provided dealing with sentencing in overdose opioid cases. Many of those provided deal with convictions for manslaughter and criminal negligence causing bodily harm. Others deal with those who trafficked for a commercial purpose and trafficked in carfentanil. Some pleaded guilty. Others were convicted after trial. The sentences imposed in some of those cases are in the range proposed by the Crown.[11] As she submitted in her oral submissions, the cases support a “range” or “baseline” of “two years and going up from there”.

[42] Despite the number of helpful articles and cases, I found the following two cases instructive in coming to my conclusion about the appropriate sentence:

• R. v. Woods, 2024 ONCA 664: The accused was convicted of trafficking fentanyl. The victim attended Mr. Woods’ home where the two used fentanyl together. Mr. Woods then sold a small quantity of personal use fentanyl to the victim. Mr. Woods cautioned the victim as to the strength of the fentanyl they consumed. The victim later consumed a quantity of the fentanyl he purchased from Mr. Woods and died as a result. The offender was a friend of the deceased and himself an addict, rather than a commercial dealer. The offender had a particularly difficult life and became addicted to opioids following an injury. He pled guilty and expressed remorse, had a positive employment history, had community and family support, and made extraordinary efforts toward rehabilitation. He was sentenced to a conditional sentence of two years less a day, under house arrest, and three years of probation. This sentence was upheld by the Court of Appeal.

• R. v. Rodgers, 2020 ONCJ 495: The accused attended the victim’s residence with what he believed to be cocaine. He shared the drug with the victim and a downstairs neighbour, the former of which died as a result. The substance turned out to be U-47700. Mr. Rodgers pled guilty to manslaughter. The accused and the victim were friends. Mr. Rodgers was genuinely remorseful. He was 28 years old at the time of the offence, had no criminal record, was in a long-term relationship, and was employed. While Mr. Rodgers used drugs, there was no evidence he was an addict, nor that he dealt drugs commercially. He would, however, share the drugs he obtained. He stopped using drugs and alcohol after the offence. He failed to assist the victim or contact 911 following the offence. Bliss J. sentenced Mr. Rodgers to imprisonment for 18 months followed by 3 years of probation.

iv. Immigration Consequences

[43] As I have stated above, Mr. Ul-Haq is a permanent resident and subject to deportation arising from his conviction for serious criminality (trafficking). Section 64(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 provides that Mr. Ul-Haq has no right to appeal his deportation if he receives a sentence of imprisonment six months or more. However, conditional sentences do not constitute terms of imprisonment for the purposes of the IRPA.[14]

[44] The court, in these circumstances, has discretion to consider the collateral immigration consequences faced by an offender who is a permanent resident. The Supreme Court of Canada in R. v. Pham, 2013 SCC 15 found that the sentencing court can adjust the sentence imposed because of immigration consequences.[15] However, the immigration consequences cannot justify sentences that do not comply with the fundamental purposes and principles of sentencing. Immigration consequences do not permit the court to impose a sentence that is outside the appropriate range.

v. Bail Considerations

[45] Stringent bail conditions are properly viewed as mitigating factors to be considered in determining the appropriate sentence as they may restrict the liberty of an accused person while they are presumed innocent.[16] The mitigating effect of bail conditions depends on the stringency of the conditions, their impact on the offender’s liberty, and the ability of the offender to carry on normal relationships, employment, and activity.[17]

[46] Mitigation for restrictive bail conditions is discretionary. There is no mathematical formula to apply. Rather than being treated as a deduction, restrictive bail conditions may be considered as a mitigating factor in determining the appropriate sentence.

[47] I will now turn to a consideration of the fit sentence.

Analysis

[48] In considering the fit sentence for Mr. Ul-Haq, I find the following to be the aggravating factors:

a. The gravity of the offence is significant. The consumption of the fentanyl sold by Mr. Ul-Haq to Diana caused her bodily harm. It caused the death of Nicole.

b. Although no Victim Impact Statements were provided, none were needed. This was a traumatic event for all involved, including the first responders.

c. The impact on the community is also significant. This incident occurred during the COVID-19 crisis, putting further strain on our medical resources.

d. Mr. Ul-Haq was aware there was a risk in selling drugs. While he believed that he was selling cocaine, he assured Diana that the product was “good” and “not laced”. He advised her to “stay safe” in one of the texts that he sent to her, acknowledging the perils of illegal drugs.

e. Mr. Ul-Haq was also aware that Diana might be sharing the product that she received.

f. There is an inherent risk in selling drugs. The users are vulnerable because fentanyl is being cut into other substances, such as cocaine. Fentanyl looks like cocaine, but it is not, resulting in devastating consequences for its users.

g. Even the smallest amount of fentanyl can kill a person who has no tolerance for it.

[49] In considering the fit sentence for Mr. Ul-Haq, I find the following to be the mitigating factors:

a. Mr. Ul-Haq is a young man. The offence occurred when he was 23 years of age. He is now 27 years of age.

b. Mr. Ul-Haq is a first-time offender.

c. Mr. Ul-Haq has the support of his community, particularly his family.

d. Mr. Ul-Haq is involved in a relationship. His partner is supportive. She and Mr. Ul-Haq plan to marry.

e. Mr. Ul-Haq started a university education which was derailed by the criminal charges he faced. He was 23 years of age at the time and enrolled in a computer science program.

f. Mr. Ul-Haq appears to have been employed during both high school and university. Since leaving university, Mr. Ul-Haq has maintained pro-social employment. He appears to be a valuable employee.

g. There is no evidence that Mr. Ul-Haq was a commercial trafficker at the time of this offence, or ever.

h. Mr. Ul-Haq has suffered incredible hardship due to the murder of his father in Pakistan. There was a video of the murder, and the footage is still available on the internet.

i. Mr. Ul-Haq’s family had to flee Pakistan and come to Canada because of their religious beliefs.

j. Mr. Ul-Haq’s father’s murder motivated Mr. Ul-Haq’s use of illegal drugs.

k. There is no evidence that he is an addict, but rather that he is engaged in recreational drug use. He has discontinued the use of hard drugs since this incident.

l. Mr. Ul-Haq was initially on house arrest. He was required to wear an ankle monitor. There has been some impact because of the bail conditions imposed, but such impact has not been significant as he was able to maintain employment, etc.

m. Mr. Ul-Haq now has a criminal record for trafficking. Such a criminal record is going to affect his employment prospects going forward.

n. As I have stated above, Mr. Ul-Haq is not a Canadian citizen. He is a permanent resident. As such, he is subject to deportation for serious criminality arising from his trafficking conviction.

o. Deporting Mr. Ul-Haq to Pakistan will put his safety at risk because of his religious beliefs. He has witnessed such devastation firsthand through the murder of his father.

[50] Despite having been on bail for four years, Mr. Ul-Haq has committed no criminal offences, although he is alleged to have breached his bail conditions on two occasions because he did not have a note from his surety when outside his home. One such count was withdrawn. He is awaiting trial on the second.

[51] A conditional sentence is available in the circumstances. The question is whether it is appropriate. As I have stated above, to impose a conditional sentence, it must be a sentence of less than two years; the court must be satisfied that the service of the sentence in the community would not endanger the safety of the community; and, it must be consistent with the fundamental purpose and principles of sentencing.

[52] When considering the appropriate sentence in this case, I must remember that Mr. Ul-Haq was convicted of trafficking a half gram of fentanyl. He was not convicted of criminal negligence causing bodily harm nor manslaughter.

[53] Mr. Ul-Haq was a recreational user of cocaine. He was asked by Diana, a friend, to sell her a half gram to celebrate the incoming new year. She did not ask him because she knew him to be a dealer. She asked him because she had seen him consume it before and believed he had access to it. He did, and obtained the requested amount from his supplier, Kegz.

[54] As I have stated above, I accept that Mr. Ul-Haq consumed part of the product provided by Kegz before he sold it to Diana. He did not suffer any negative consequences as a result. He consumed it after and again, he experienced no negative consequences.

[55] Tragically, the product consumed by Diana and Nicole was fentanyl. Mr. Ul-Haq did not knowingly supply Diana with fentanyl, as both Mr. Ul-Haq and Diana testified at trial.[18]

[56] The decision made by Mr. Ul-Haq on December 30, 2020, to supply what he believed to be cocaine to Diana, has had dire consequences for Mr. Ul-Haq as well. Prior to this incident, Mr. Ul-Haq was leading a pro-social life – working and attending university. Despite being arrested, he continued to live a pro-social life by being employed. He now has a criminal record affecting his employability. He faces deportation to Pakistan where he may be persecuted for his religious beliefs – a reality shown by the murder of his father. His immediate family is all in Canada.

[57] In this case, there is a difficult balancing of the goals of denunciation, deterrence, and rehabilitation. The appropriate sentence must be one from which our society feels protected and which deters others from committing similar crimes without crushing the hopes of Mr. Ul-Haq through rehabilitation. This is particularly so when dealing with youthful offenders such as Mr. Ul-Haq who have the support of a loving family.

[58] In reaching my conclusion about the fit sentence, I am cognizant of the principles set out in R. v. Priest, where the Court of Appeal held that a first sentence of imprisonment should be as short as possible and “tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence”.[19] This principle is also reflected by the direction of Rosenberg J.A. in R. v. Borde. Rosenberg J.A. held that where a youthful offender is to be sentenced to a first penitentiary sentence, it should not be determined solely on the basis of general deterrence and denunciation. Rather, the court should proceed on the basis that the shortest possible sentence will achieve the relevant objective.

[59] I accept that the sentence proposed by the Federal Crown is within the appropriate range of sentences to impose. However, I find that a reformatory sentence would sufficiently reflect the seriousness of the offence in the particular circumstances of this case, given the mitigating factors present. I find that a sentence of two years less one day is an appropriate sentence. As such, a conditional sentence is potentially available and I must consider it.[21]

[60] After having considered all relevant factors, I find that the imposition of a conditional sentence order would satisfy the principles of deterrence, denunciation, and rehabilitation. A lengthy conditional sentence with appropriate terms can carry with it significant denunciation and deterrence value. The order can provide substantial sanctions. Such a sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code.

[61] The circumstances of this case are rare and unique. Mr. Ul-Haq unknowingly supplied fentanyl to a friend who shared it with her friend. He did not do so for commercial gain, but rather as a favour. The consequences for all are permanent. Diana suffered harm and the death of a friend. Nicole lost her life. Mr. Ul-Haq is now a participant in the criminal justice system, having been convicted of trafficking, suffering a discontinuation of his university education and loss of employment possibilities.

[62] Mr. Ul-Haq faces deportation to a country where he might be persecuted. If deported, he would be isolated from his family who resides in Canada. I find that the imposition of a conditional sentence order considers Mr. Ul-Haq’s immigration consequences without “allowing them to dominate the sentencing exercise”.[22]

[63] Mr. Ul-Haq’s prospects for rehabilitation are strong. A penitentiary sentence at his age and with its consequences risks crushing and undermining Mr. Ul-Haq’s ability to continue being a contributing member of our society which would not be in the public interest. I find that Mr. Ul-Haq’s service of his sentence in the community would not be a danger to the safety of the community.

[64] I find that a fit and proportionate sentence is one of two years less a day to be served in the community. Mr. Ul-Haq is subject to a conditional sentence order of two years less one day on the terms set out in Appendix “A”.

[65] Mr. Ul-Haq will also be subject to the following ancillary orders: a probation order for two years on the terms set out in Appendix “B”; a s. 109 order for 10 years; and a requirement that he provide a sample of his DNA.

Appendix "A"

R. v. Ul-Haq
The following are the terms of the conditional sentence order:

Statutory Terms

• keep the peace and be of good behaviour;
• appear before the court when required to do so by the court;
• report to a supervisor
  • (i) within two working days, or such longer period as the court directs, after the making of the conditional sentence order, and
  • (ii) thereafter, when required by the supervisor and in the manner directed by the supervisor;
• remain within the Province of Ontario unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and
• notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.

Optional Conditions

• for the first 12 months of this order, remain in your residence or on the property of your residence at all times,
  • EXCEPT:
    • for any medical emergencies involving you or any member of your immediate family (spouse, child, parent, sibling)
    • For going directly to and from or being at your place of employment, while engaged in work for your employer, religious services, court attendances, legal, medical or dental appointments with a schedule to be provided to your supervisor in advance.
    • For four hours each week, on Mondays, between the hours of 12pm and 4pm for the necessities of life.
    • with the prior written approval of your supervisor. The written approval is to be carried with you during these times.
• For the remainder months of this order, remain in your residence daily between the hours of 12 am and 6 am,
  • EXCEPT:
    • For any medical emergencies involving your any member of your immediate family (spouse, child, parent, sibling)
    • For going directly to and from or being at your place of employment, with a schedule to be provided to your supervisor in advance.
    • with the prior written approval of your supervisor. The written approval is to be carried with you during these times.
• Do not contact or communicate with the family of Nicole [surname in order], or with Diana [surname in order], except with written revocable consent to be provided to your supervisor.
• Sign any releases necessary for your supervisor to monitor your compliance with the terms of this order.

Appendix "B"

R. v. Ul-Haq
The following are the terms of the probation order:

• (a) keep the peace and be of good behaviour;
• (b) appear before the court when required to do so by the court; and
• (c) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.
• Report to your probation officer as directed.
• Do not contact or communicate with the family of Nicole [surname in order], or with Diana [surname in order], except with written revocable consent to be provided to your supervisor.
• Make reasonable efforts to seek and maintain employment or attend educational programming.
• Sign any releases necessary for your supervisor to monitor your compliance with the terms of this order.

Endnotes

[1] At the request of the Federal Crown, and with the consent of Mr. Ul-Haq, the victims will be referred to by their first names.

[2] Criminal Code, s. 724(3)(d).

[3] Criminal Code, s. 724(3)(e).

[4] Criminal Code of Canada, R.S.C. 1985, c. C-46, s. 718.

[5] R. v. Nur, 2015 SCC 15.

[6] R. v. White, 2019 ONCJ 191.

[7] R. v. Hugh, 2024 ONSC 6135.

[8] R. v. Sangster, 2024 ONCJ 549.

[9] R. v. Shearer, 2022 ONCJ 288.

[10] R. v. Olvedi, 2021 ONCA 518, para 40.

[11] See: R. v. Norn, 2024 ONSC 6370; R. v. Skookum, 2024 YKTC 30; R. v. Brazier, 2023 ONSC 6315; R. v. Adams, 2023 ONCJ 63; R. v. Dang, 2022 ONSC 6210; R. v. Simpson, 2022 NSSC 301; R. v. Haj, 2022 ONSC 1457; R. v. Oake, 2020 NWTSC 32; R. v. Ebel-Savage, 2019 ONSC 5688; R. v. Walker, 2019 ONCJ 132; R. v. Allison, [2018] O.J. 7268 (C.J.); R. v. Knapp, 2018 ONSC 2923.

[12] R. v. Woods, 2024 ONCA 664.

[13] R. v. Rodgers, 2020 ONCJ 495.

[14] Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50.

[15] R. v. Pham, 2013 SCC 15.

[16] R. v. Downes, para 37; R. v. Joseph, 2020 ONCA 733, para 108.

[17] R. v. Place, 2020 ONCA 546, para 20.

[18] At trial, Diana testified, “… look, I’m going to be honest, I don’t think Jerry [Mr. Ul-Haq] was the one who put, I don’t know some weird substances that caused me and Nicole to OD ….”

[19] R. v. Priest.

[20] R. v. Borde, para 36.

[21] R. v. Morris, 2021 ONCA 680, para 180.

[22] R. v. Zheng, 2013 ONSC 4582, para 21.