ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
‑and‑
MOHAMED GABAIRE
E. Barefoot for the Crown
K. Alam for Mr. Gabaire
Sentencing hearing held: March 30 and May 12, 2026
REASONS FOR Sentence
Justice. R. Chown
1A jury found Mohamed Gabaire guilty of:
Count
Section
Offence
Description
1
CDSA 5(2)
Possess for purpose of trafficking
247.5 g fentanyl
2
CDSA 5(2)
Possess for purpose of trafficking
93.4 g methamphetamine
2The Crown suggests that the appropriate sentence is nine to ten years for count 1 and three to four years concurrent for count 2. The defence suggest the appropriate sentence is five and half to six and half years for count 1 and three and a half years concurrent on count 2.
3The Crown proposed and the defence does not oppose ancillary orders as follows: DNA collection, s. 109(2) weapons prohibition, and forfeiture of all items seized other than the cash that was seized.
Circumstances of the Offence
4OPP officers arrested Mr. Gabaire on September 28, 2022 in Port Elgin. Mr. Gabaire had driven to Port Elgin from the GTA that morning. Police found the drugs in the car he drove. The car belonged to his mother. Police seized and later searched his phone. It contained text messages regarding trafficking going back at least as far as late July 2022.
Principles of Sentencing
The Purpose, Objectives, and Principles of Sentencing
5Under the Criminal Code, s. 718,
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.
6In addition, under s. 718.1 of the Criminal Code, it is a fundamental principle that "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender."
Sentencing in CDSA Cases
7The language of s. 10(1) of the Controlled Drugs and Substances Act complements s. 718 of the Criminal Code. It states:
Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.
8Subsection 10(2) of the CDSA identifies aggravating factors I am required to consider, none of which are applicable here.
9Denunciation and general deterrence are primary factors in the assessment of an appropriate sentence for possession for purposes of trafficking.
Circumstances of the Offender
Biographical Information
10Mr. Gabaire was age 22 at the time of the offences and is currently age 25. He has no prior record. He is of Somalian descent. He was born in Toronto. He is the second oldest of six siblings. While in grade 2, his family moved to Africa, returning for his grade 7. He completed his grade 12 diploma in Brampton. He attended a college in Toronto, first for electrical engineering and then for accounting, but he did not complete either program.
11Mr. Gabaire's mother stayed home to parent children when her children were young. His father was a long-distance truck driver. Both before and after completing his schooling, Mr. Gabaire had employment from several employers. He was not employed at the time of the offence.
Character Reference Letters
12I have considered the character reference letters about Mr. Gabaire. The Imam at Towfiq Islamic Centre wrote saying that he has known Mr. Gabaire for three years through his involvement in the mosque. I infer that he means three years prior to Mr. Gabaire going into custody. He said that Mr. Gabaire is the kind of person who volunteers to assist with community events, with helping to clean and maintain the building, and with assisting with food drives during Ramadan. He described him as someone who did the right thing without being told.
13Nada Hashi wrote a letter describing Mr. Gabaire as caring, respectful, compassionate, and religious. Ms. Hashi has known Mr. Gabaire for 15 years. She says "the situation before the Court is very out of character" for Mr. Gabaire and she believes "that this situation has had a significant impact on him and that he has reflected deeply on it and learned from the experience."
14Hassan Shiddo indicates he has known Mr. Gabaire since grade 9. He describes him as "respectful, kind, hardworking, and good hearted" and he says he trusts Mr. Gabaire deeply.
15Mr. Gabaire's mother wrote to indicate that Mr. Gabaire "has always been a kind, respectful, and caring person" who was "polite and respectful." She indicates that Mr. Gabaire "struggled with substance addiction before he was arrested." She says he was "experiencing withdrawal symptoms and physical and emotional difficulties related to his addiction" before his arrest. She is concerned about his mental health and well-bring since he has been in custody.
16Mr. Gabaire's sister Najaah described Mr. Gabaire as a kind, caring, and helpful person. She said "Before his arrest, Mohamed was going through some mental health struggles, and I believe this affected his judgment at the time." She also said"I truly believe he is capable of learning from this experience and moving forward in a better direction. Our family loves him deeply and continues to support him."
17There is reason to be careful about accepting some of the content in the character reference letters. For instance, in the fitness assessment dated March 13, 2024, the assessor reported that Mr. Gabaire smoked cigarettes and cannabis but said he had not previously used other illicit substances. Mr. Gabaire said much the same thing to the probation and parole officer who wrote the PSR. Mr. Gabaire's mother did clarify to the probation and parole officer that she was only personally aware of cannabis use by Mr. Gabaire, but she believed based on information from an extended family member that he was using a harder drug. I do not accept that addiction played a significant role in Mr. Gabaire's involvement in his crimes.
18In addition, it can be inferred from the text messages in evidence (which begin a few months before the date of the offence) that Mr. Gabaire was a confident and practiced drug dealer, dealing in several substances and travelling considerable distances to sell to various users. The amounts and values of fentanyl and methamphetamine contrast sharply with the picture painted in the reference letters.
19With these concerns in mind, I am nevertheless prepared to accept that Mr. Gabaire's conduct is out of character for his younger self, and that he has a loving family with good family support.
20I have also considered Mr. Gabaire's letter in which he apologized and accepted full responsibility for his actions. He stated that he should have pleaded guilty and he will not repeat his mistake. I did not find the letter to be persuasive evidence of remorse. I do not see remorse as a mitigating factor in this case.
No IRCA or Enhanced PSR is Available
21In R. v. Morris, 2021 ONCA 680, at para. 91, the Court of Appeal held that "describing the existence and effect of anti-Black racism in the offender's community and the impact of that racism... is part of the offender's background and circumstances." The court said that evidence to this effect "is not only admissible, it is, in many cases, essential to the obtaining of an accurate picture of the offender as a person and a part of society." Since then, courts have recognized the importance of considering the impact of anti-Black racism in sentencing decisions.
22The court in Morris went on to say, at para. 97:
There must, however, be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue. Racism may have impacted on the offender in a way that bears on the offender's moral culpability for the crime, or it may be relevant in some other way to a determination of the appropriate sentence. Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender's colour. Everyone agrees there can be no such discount.
23In this case, no Enhanced Pre-Sentence Report or Impact of Race and Culture Assessment (IRCA) has been prepared. The issue was canvassed with counsel on March 30, 2026 and I was advised that waiting times are many months, such that the delay involved would be inappropriate. It was observed by counsel that there are other ways to get this kind of evidence, such as through a typical PSR and through evidence from relatives and other members of the community.
24The PSR that has been prepared in this case does not address anti-Black racism in any meaningful way. The character reference letters also do not address this issue. In R. v. Martin, 2021 ONSC 4711, at para. 18, Barnes J. drew on the principles in R. v. Gladue, [1999] 1 S.C.R. 688 and held that"Unless there is a waiver from the offender, the sentencing judge has a duty to receive and consider evidence on systemic and background factors that have brought the offender before the court." The parties did not provide Barnes J. with an enhanced PSR or IRCA so he concluded his decision by saying that in the absence of this type of evidence, he could not conclude that in all the circumstances of this offence and the offender, the sentence he had imposed was a fit sentence. On appeal, the Court of Appeal upheld the sentence Barnes J. had imposed without commenting on this issue or on anti-Black racism: R. v. Martin, 2022 ONCA 157. I infer from the lack of comment by the Court of Appeal that there does not need to be a formal waiver of an Enhanced PSR for the sentencing judge to properly complete his or her duties in sentencing.
25In this case there is no specific evidence and, beyond general statements, there have been no submissions to the effect that racism may have impacted on Mr. Gabaire in a way that bears on his moral culpability for the crime.
Mitigating and Aggravating Factors
26Under s. 718.1(a) of the Criminal Code, a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances.
Factors that are Neither Mitigating nor Aggravating
27While it is not normally necessary to list the factors that have not been considered in sentencing, in the circumstances of this case I think I should specifically address several factors, simply as confirmation that I have not considered them, and for transparency. I have not considered the following to be aggravating or mitigating factors.
1. Silence
28Mr. Gabaire exercised his right to silence generously and selectively. I understand that throughout the first 18 months of these proceedings, he did not say a word to the court or to Amicus. While the proceedings were in the Ontario Court of Justice, the court ordered a fitness assessment. After several appearances in the Superior Court of Justice, Sproat J. ordered a second fitness assessment. Both assessments found Mr. Gabaire fit to stand trial and Mr. Gabaire engaged in the assessments at least to some degree
29During his trial, Mr. Gabaire was generally, although not universally, responsive, and he participated in his trial, although there were times when he chose to say nothing. He even conducted some questioning.
30Mr. Gabaire had an absolute right to remain silent. His decision to exercise that right is not to be held against him and I do not consider it a factor in determining the appropriate sentence.
2. Not guilty plea
31Despite the overwhelming Crown case against him, Mr. Gabaire pled not guilty, as was his right. His not guilty plea is not an aggravating factor or a factor that is to be held against him in determining a fit sentence. Of course, a guilty plea, especially an early guilty plea, can be a mitigating factor giving rise to a significantly reduced sentence, but pleading not guilty is not a factor that increases a sentence. I have been mindful of this when reading other sentencing cases and comparing them to this case, and when determining Mr. Gabaire's sentence.
3. The cash
32The police found $2,950 in cash in the vehicle Mr. Gabaire was driving, and they charged Mr. Gabaire with being in possession of the proceeds of crime. The jury did not convict Mr. Gabaire on this count. I have not considered the cash as an aggravating factor.
4. Irritable and uncooperative
33One of the fitness assessors found Mr. Gabaire to be irritable and uncooperative. The other found him to be "somewhat oppositional" and observed that he maintains poor eye contact, looks away, and there are long silences when conversing with him. These descriptions have matched my own observations. Mr. Gabaire also had an irritating habit of not speaking in a loud enough voice for other participants in the trial, including me, to hear him. This was despite repeated requests. I understand that he refused to get out of his cell to come to court on several occasions during these proceedings. These factors, however, are not aggravating factors for sentencing. We do not punish people simply because they are disagreeable or uncooperative. Mr. Gabaire was not, to my knowledge, uncooperative with the court security officials and he was generally compliant. I will not increase or decrease his sentence based on these considerations.
5. Remorse
34I have indicated that remorse is not a mitigating factor. The corollary does not apply. That is, a lack of remorse is not an aggravating factor. Remorse or lack of remorse is not something I have considered as a factor in determining Mr. Gabaire's sentence.
Aggravating Factors
35The quantities of drugs involved in this case, being approximately 247 g of fentanyl and 93 g of methamphetamine, is a serious aggravating factor. The Crown submits that these quantities and values imply that Mr. Gabaire was a mid-level dealer with the ability to deal at the ounce level. Counsel have agreed that the value of the drugs is between $50,000 and $130,000. It can be readily inferred that anyone in possession of the quantities and values of drugs involved here is engaged in trafficking as a commercial operation, with a profit motive.
36Based on R. v. Sutherland, 2026 ONCA 12, at para. 23, the Crown submits that it is an aggravating factor that the offender travelled from Toronto, bringing drugs to a small community. I accept this as an aggravating factor but do not give a tremendous of weight to it in this case.
Mitigating Circumstances
37Mr. Gabaire's youth and the absence of a criminal record are significant mitigating factors. These are factors that point favourably towards the prospects of rehabilitation. The family support that Mr. Gabaire enjoys is also a mitigating factor in his sentence. Family support is a factor that also tends to increase the rehabilitative prospects of an offender.
38Another mitigating factor is the harsh conditions that Mr. Gabaire has experienced while in custody awaiting trial. Courts frequently grant Duncan credit (referring to R. v. Duncan, 2016 ONCA 754) where the offender has had to endure harsh conditions while on remand. This factor "addresses exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody": R. v. Marshall, 2021 ONCA 344, at para. 50. 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": Marshall, at para. 52.
39Mr. Gabaire spent two days in jail upon his arrest. He was released but his bail was later revoked. He has been in custody since March 24, 2023, or 1147 days in total. He has been held at Toronto South Detention Centre, Central North Correction Centre, and the Algoma Treatment and Remand Centre.
40Mr. Gabaire has spent most of his time in custody at CNCC. He has been housed in almost exclusively in the behavioral Stabilization Unit and the Transitional Mental Health Unit. Prisoners in these units receive only two hours per day out of their cells. What this means is that, essentially for most of the last three years, Mr. Gabaire has been locked in a cell for 22 hours a day. The reasons for why he has been in those units are not in evidence, but regardless of the reason, Mr. Gabaire has experienced extreme conditions of custody.
41In addition, for 239 of his 780 days at CNCC, the facility has been on partial or full lockdown. This means that about 30% of the time, he likely received even less than two hours a day out of his cell. Overall, he has been on partial or full lockdown for 344 days of his 1147 days in custody in all three institutions. Lockdown days are days when prisoners are not allowed out of their cells, even for exercise, although efforts are made to rotate the prisoners out of their cells for showers. Most of the time, the reason for the lockdown has been staffing shortages. I understand that what this means is that there is not enough staff at the jail to properly supervise prisoners who are out of their cells. This problem of under-staffed jails has been going on for years. There can be no excuse for this ongoing systemic problem. There is no question that these circumstances are a significant mitigating factor that I am required to take into account, and under our law a significant reduction in sentence is appropriate to reflect this.
42The Court of Appeal in Marshall, at para. 52, said that indicating a specific number of days or months for Duncan credit can skew the calculation of the ultimate sentence, and it can take on an unwarranted significance. That is not a significant concern here because of the length of the sentence that both sides consider appropriate relative to the six-months of Duncan credit the defence proposes, and the Crown does not oppose. I also consider six-months credit appropriate and stating this in my reasons has the advantage of transparency.
Impact of Fentanyl
43I now want to briefly review the evidence about the impact of fentanyl in Grey and Bruce Counties and in Canada. The Crown filed a letter dated Feb 13, 2025 from the Medical Officer of Health for Grey and Bruce, Dr. Ian Arra. The letter indicates:
From 2018 to 2021, Grey-Bruce saw a more than four-fold increase in the annual number of opioid-related overdose deaths. That number remained fairly steady in 2022 and 2023. The annual number of emergency department visits in Grey-Bruce attributed to opioid-related poisonings increased steadily from 2014 to 2021, increasing by 300% over that time period.
The opioid crisis continues to result in a significant number of drug overdoses, with 174 reported in Grey-Bruce in 2023 and 216 reported in 2024.
Opioid addiction can lead to severe physical and mental health challenges, result in isolation, and cause long-term health issues, such as liver damage and heart problems.
44Counsel both referred to R. v. Parranto, 2021 SCC 46 in some detail. That case provided definitive guidance from the Supreme Court of Canada and, to a considerable extent, changed the landscape in sentencing for significant fentanyl cases. Moldaver J. addressed the impact of fentanyl in Canada. He said (Parranto, at para. 97 to 98):
The scale of fentanyl's devastating impact becomes even more apparent when one considers that, between 2016 and 2020, there were approximately 3,400 homicides across Canada, a number far below the number of fentanyl‑related deaths. This disparity makes clear that, in a very real way, those individuals responsible for the largescale distribution of fentanyl within our communities are a source of far greater harm than even those responsible for the most violent of crimes.
The time has thus come for our perception of the gravity of largescale trafficking in fentanyl to accord with the gravity of the crisis it has caused. Largescale trafficking in fentanyl is not a crime marked merely by the distribution and sale of an illicit substance; rather, it is a crime marked by greed and the pursuit of profit at the expense of violence, death, and the perpetuation of a public health crisis previously unseen in Canadian society. In many ways"[t]rafficking in fentanyl is almost the equivalent of putting multiple bullets in the chambers of a revolver and playing Russian roulette. It is the most efficient killer of drug users on the market today." [Citations omitted.]
45There is no question that when a large amount of fentanyl is trafficked into the community, it is to be expected that there will be a percentage of users that overdose, and because the fentanyl that is on the streets is so potent and so unpredictable, there will be a percentage of those who overdose that will die. Sentencing decisions in drug cases reflect that offences involving fentanyl attract longer sentences than for other drugs. As Nordheimer J.A. observed in R. v. Lynch, 2022 ONCA 109, at para. 15"the more dangerous the drug being trafficked, the higher the penalty that will be imposed." He also said that fentanyl "is now known to be a much more dangerous drug than almost any other." This followed the Supreme Court of Canada's decision in Parranto, where the court observed, at paras. 70-71, that trafficking in fentanyl carries a high moral culpability because fentanyl particularly harms vulnerable groups and because trafficking it involves a reckless disregard for human life.
Similar Cases
46Under s. 718.2(b) of the Criminal Code"a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances." A major difference in the parties' positions on sentence is their characterization of a fit sentence based on their selection and characterization of comparator cases. I will not refer to all the cases the defence has cited, but I have reviewed them all.
Scale of Operation
47It is important in cases of this nature to situate the offender in the hierarchy of drug traffickers. The cases refer to "large-scale" operations at one end – which attract very high sentences – to addict or subsistence traffickers at the other end – which attract much lower sentences.
48Mr. Alam referred me to the five-level hierarchy described in R. v. Haye, [2013] O.J. No. 6493, at para. 11, and submitted that Mr. Gabaire was at a level 2 trafficker or, at most, a level 3 trafficker. There is some evidence in the text messages that Mr. Gabaire was selling directly to users and in some cases may have been selling to others who would sell to someone else. There is no evidence to suggest he used subordinates or runners or that he operated a network of traffickers. The amounts he possessed suggest he was a mid-level trafficker. On his own information to the probation and parole officer who prepared the PSR, Mr. Gabaire did not use the drugs he possessed. He was not an addict trafficker. This was clearly a profit-motived activity.
Defence Cases
49Mr. Alam referred me to R. v. Burke, 2025 ONSC 4317 where the accused pled guilty to being in possession of 756 g of fentanyl for the purposes of trafficking. He operated a commercial supply chain. The court classified him as a mid-to high level trafficker in a profit-motivated operation. Mitigating factors included that he pled guilty and had strong community and family support. He received a sentence of eleven years, and Mr. Alam points out that Mr. Burke had more than three times the amount of fentanyl compared to Mr. Gabaire.
50In R. v. Hudson, 2019 ONSC 290 the offender was convicted after a jury trial. She was a lower-level participant in an importation scheme. She imported 323 g of powder fentanyl and received a sentence of eight years.
51In R v. Lu, 2022 ONSC 1918, the offender had no criminal record. He was convicted after a trial. He was not the directing mind of the trafficking operation. He possessed over 1 kg of fentanyl. He received a nine-and-a-half-year global sentence.
52In R. v. Belanger, 2025 ONSC 3938, the offender was in possession of 409 g of fentanyl for the purposes of trafficking and he received a sentence of seven and a half years for that offence. An aggravating factor was that Mr. Belanger was on a conditional sentence at the time of the offence. The mitigating factors included a guilty plea and the fact that "Mr. Belanger had been suffering as a drug addict for years and became involved in drug trafficking of fentanyl in order to feed his habit": Belanger, at para. 76.
53The defence submits that the Crown's position would not be not an appropriate sentence when compared to this jurisprudence. Mr. Alam submits that, adjusting for the amounts involved and other factors, the Crown's sentencing position in this case exceeds the sentence given in any of these relatively recent and persuasive if not authoritative cases.
Crown Cases
54The Crown relies on Lynch, where the Court of Appeal allowed an appeal and imposed a sentence of six years for a first-time offender who was relatively young – 29 years of age at the time of the offences. The Court of Appeal said the correct range in the case was between six and eight years: Lynch, at para. 15. The amount of fentanyl involved in that case was 41 g, which the Crown suggests is far lower than the 247 g in this case. This is also the case I cited earlier, in which Nordheimer J.A. described fentanyl as "a much more dangerous drug than almost any other." However, it must be remembered that six years was the global sentence in that case, and the offender also possessed 965 g of cocaine and 149 g of MDMA. Given the large quantities of other drugs, I do not think it is right to say that 41 g of fentanyl translated to a six-year sentence. It is fair to say, however, that Lynch established a range of six to eight years for mid-level traffickers, because that is exactly what the Court of Appeal said in R. v. Sutherland, 2026 ONCA 12, at para. 23.
55Sutherland involved a youthful first-time offender who was found in possession of 93 g of cocaine and 42 g of fentanyl and received a six-year sentence. The sentence was upheld by the Court of Appeal. The Crown submits that the quantity of fentanyl in that case was much lower and therefore the sentence that Mr. Gabaire receives should he substantially higher than six years.
56The Crown then points to Parranto and submits that in that case, the Supreme Court of Canada set a national range of eight to fifteen years for large-scale fentanyl trafficking operations. The Crown pointed to the list of cases the Supreme Court cited in coming up with this range: Parranto, at para. 68. The Crown focussing especially on:
89 g of fentanyl and other drugs
8 yrs 2 mo
51 g fentanyl
10 yrs
204.5 g fentanyl blend
11 yrs
R. v. Mai, [2017] O.J. No. 7248 (S.C.J.)
232 g fentanyl and large quantities of other drugs
13 years
57In Sidhu, the Court of Appeal upheld a net sentence of eight years and two months for a 25-year-old offender who trafficked in fentanyl, had a prior, related record, and returned to trafficking shortly after being released from custody. As indicated in the table above, the quantity of fentanyl in Sidhu was 89 grams.
58In Petrowski, the offender had a record and the offence was importing.
59In Vezina, the offender had pled guilty, he suffered from a longstanding addiction, and he was amenable to rehabilitation. However, he was also found to be in possession of a loaded firearm despite being on weapons prohibitions. He also had a significant prior related record.
60The Crown also relies on R. v. Ali, 2025 ONSC 1613 where the offender was sentenced for a number of offences but received a sentence of 10 years for possession of 78.8 g of fentanyl for the purposes of trafficking.
Conclusion on Sentence
61Based on my review of the cases cited to me by counsel and giving due weight to the appellate decisions over the trial level decisions, and weighing all the foregoing considerations, I find that a fit and appropriate sentence for count 1 is eight years or 2920 days, less six months or 183 days for Duncan credit resulting in a sentence of 2737 days or about seven and a half years, before consideration of pre-sentence custody. A fit sentence for count 2 is four years concurrent.
62The parties agree that the appropriate credit for pre-sentence custody is 1721 days based on 1.5:1 credit for 1147 days. There is more to it than this, but in simple terms, this credit reflects the fact that offenders are often eligible for parole after serving a portion of their sentence. Giving 1:1 credit for time served would mean an offender who has had a longer period of pre-sentence custody would spend more time in jail than an offender who received the same sentence but did not have as much pre-sentence custody.
63After credit for pre-sentence custody, this leaves a remaining time to be served of 1016 days or about two years, nine months and three weeks.
64Eight years is a heavy sentence for a youthful first-time offender, but it is a sentence that reflects the gravity of the offence and the significant quantity of fentanyl involved.
Collateral Orders
65There will be a mandatory weapons prohibition order pursuant to section 109(3) of the Criminal Code, and a mandatory DNA order pursuant to section 487.051(1). I will also sign the forfeiture order for all the seized items other than the cash.
Delivered orally: 2026-05-12
Written version released: 2026-05-19