Court File and Parties

Court File No.: CR-19-029 Date: 2020-03-04 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Bryan Chukwunweike Okonta, Defendant

Counsel: Michael Mandelcorn, for the Crown Matthew Hodgson, for the defendant

Heard at Kingston: 3 January 2020

Before: Mew J. (Orally)

Reasons for Sentence

[1] On 7 October 2019, Bryan Chukwunweike Okonta pleaded guilty to one charge of trafficking cocaine, one charge of trafficking methamphetamine and one charge of possessing proceeds of crime of a value exceeding $5,000.

Circumstances of the Offence

[2] Mr. Okonta was arrested on 1 June 2018, shortly after he had handed over a package containing controlled drugs to another individual outside a restaurant in Colborne, Ontario. Mr. Okonta was found to have a large quantity of cash – approximately $10,000. A search of the vehicle of the individual who Mr. Okonta had handed the package to resulted in the seizure of a package containing 876 grams of crystal methamphetamine and 129 grams of cocaine in powder form. Mr. Okonta’s fingerprints were on the clear plastic wrapping containing the crystal methamphetamine.

Circumstances of the Defendant

[3] Mr. Okonta is a 28 year old first time offender. He was born and raised in Toronto to immigrant parents from Nigeria. His parents separated when he was sixteen years old and for a period of approximately eight years after that, he had no contact with his father, who had moved back to Nigeria. His father died in November 2019. Mr. Okonta has been living his mother and has two younger sisters and younger brother. He enjoys good relationships with all of them, particularly, his mother who has been a single parent for many years.

[4] Mr. Okonta was also close to his maternal grandmother who died last year.

[5] Family members, including his mother and an uncle, were present in court during his sentencing hearing.

[6] Mr. Okonta completed his high school diploma and pursued post-secondary education towards a diploma in business and marketing. However, after completing a year and a half of the programme, he dropped out for financial reasons, including the need to support his family. He then worked full-time as a machine operator for two years. After that, he worked as a carpenter, but there were not too many opportunities to earn. He then worked as a machine operator at another company for ten months until he suffered a back injury following a car accident. He tried unsuccessfully to return to work but hopes, following the disposition of these charges, to be able to do so.

[7] A pre-sentence report discloses that Mr. Okonta has never experimented with any form of illicit drugs, does not smoke marijuana, and drinks only occasionally.

[8] Mr. Okonta is remorseful about the circumstances which bring him before the court. He told the probation and parole officer who prepared the pre-sentence report that he felt like he was coerced by negative influences in his life and that he usually surrounded himself with pro-social friends, as he grew up in the church environment. He said that he committed the offences as he needed “money” and further explained that “when you’re desperate people take advantage of you”. But he added that he does not want to “play the blame game” and that he is a [then] 28 year old man “who made one bad mistake, which doesn’t make me a career criminal”.

[9] Mr. Okonta’s sister, Ifeoma Okonta, explained how, after their father had left, Mr. Okonta became the “man of the house”. She intimates, without saying so directly, that Mr. Okonta’s motivation may have been to enable his mother to pay for and attend an “expensive” funeral ceremony that, following their cultural traditions, had to take place in their grandmother’s village in Nigeria. She explains that there was a lot of pressure on Mr. Okonta, and due to his injury, he was unable to work and earn the necessary money to assist. She feels this may have clouded his judgment.

[10] In terms of Mr. Okonta’s upbringing, his sister says that their mother tried her best to raise her children in a loving environment which was “focused on not becoming another black statistic”.

[11] Mr. Okonta’s uncle, Nathan Okonta, told the parole and probation officer that his nephew may have been in a stressful situation as he really wanted to help his mother financially and felt that he had to take on the role as the man of the house. The uncle, too, expresses the opinion that the subject offences are completely out of character. Nathan Okonta adds that “Bryan acknowledges his mistakes and he understands that he failed himself and failed society as a whole”.

[12] The pre-sentence report makes reference to counselling which Mr. Okonta has been undergoing to help him find a job and get towards “the right path”. A letter from the Executive Director of GlobalNet Community Foundation confirms both Mr. Okonta’s motivation to amend his ways and become a better person, and the Foundation’s support for him. To similar effect, the Chair of the National African Integration and Families Association, who has known Mr. Okonta since birth, speaks positively of him, saying that he has taken responsibility for his actions and is eager to make amends and to reroute himself. He promises to ensure that the Association will be working to get Mr. Okonta back to school and training as well as to provide him with culturally appropriate counselling that will help him deal with the many losses that he has suffered in recent times.

[13] Mr. Okonta addressed the court and apologised to the court and to his family. Acknowledging that he is facing a penitentiary sentence, he said that he knows in his heart that he will be a better person for what has happened. He knows that he has to atone for what he has done and he understands and acknowledges the effects of the drug trade he was involved in.

Impact on the Community

[14] The Ontario Court of Appeal has described cocaine as an “extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society”: R. v. Woolcock, [2002] O.J. No. 4927 (C.A.). In R. v. Hamilton, (2004), 72 O.R. (3d) 1 (C.A.), Doherty J.A. wrote, at para. 104:

The immense direct and indirect social and economic harm done throughout the Canadian community by cocaine is well known [references omitted]. The use and sale of cocaine kills and harms both directly and indirectly. The direct adverse health effects on those who use the drug are enormous and disastrous. Cocaine sale and use is closely and strongly associated with violent crime.

[15] Similar concerns apply to methamphetamine (crystal meth). In R. v. Copeland, [2007] O.J. No. 3390, Spies J., referring to a Community Impact Statement for Methamphetamine Offences, dated 9 June 2006, prepared by Health Canada, observed as follows at paras. 19-20:

19 Significant adverse effects come with methamphetamine use including minor physical effects and more severe effects including seizures, convulsions, extreme anxiety, repetitive compulsive behaviours, hallucinations, paranoia, violence, psychoses, cognitive impairment and changes to brain chemistry and structure. In extreme cases methamphetamine can cause death. Recurring methamphetamine use has been associated with cognitive impairment and brain injuries. Most chronic abusers eventually develop long-term psychotic behaviour characterized by intense paranoia and visual and auditory hallucinations, which can be coupled with extremely violent behaviour.

20 According to the Impact Statement, methamphetamine is a highly addictive drug. Studies have shown it to produce rates of addiction similar to those of heroin and cocaine. The treatment of methamphetamine addicts is more difficult than those addicted to other substances of abuse. In addition methamphetamine abusers have unusually high rates of relapse. Withdrawal from methamphetamine results in mood disturbances and violence is easily provoked.

[16] By trafficking in cocaine and methamphetamine, Mr. Okonta became an integral part of a system that delivers these dangerous and insidious drugs to its end users. As the quoted passages well illustrate, many of those end users are or become addicts. They are vulnerable people whose lives have been blighted and, in some cases, all but destroyed, or worse, by cocaine or crystal meth, supplied as a result of the activities of people like Mr. Okonta.

Applicable Principles

[17] Section 10 of the Controlled Drugs and Substances Act provides as follows:

Purpose of Sentencing

(1) 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 the community.

[18] The general principles of sentencing are set out in s. 718 of the Criminal Code. Judges passing sentence are required by law to impose a just sanction that has one or more of the following six objectives:

1. To denounce unlawful conduct;
2. To deter the offender and others from committing offences;
3. To separate offenders from society where necessary;
4. To assist in the rehabilitation of offenders;
5. To provide reparations for harm done to victims or to the community; and
6. To promote a sense of responsibility in offenders, and acknowledge harm done to victims and to the community.

[19] As well, the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It must also be similar to those imposed on similar offenders, for similar offences committed in similar circumstances.

[20] Trafficking a Schedule I substance carries a maximum sentence of life imprisonment. Possession of proceeds of $5,000 obtained by crime, when tried by indictment, carries a maximum sentence of 10 years’ imprisonment.

Position of the Crown

[21] The Crown seeks a term of imprisonment of four to five years as well as a lifetime weapons prohibition order (s. 109 of the Criminal Code), a DNA order (s. 487.04 of the Criminal Code) and a forfeiture order for the approximately $10,000 in Canadian currency. The quantity of drugs involved is substantial: 876 grams of methamphetamine and 129 grams of cocaine in powder form.

[22] Although there is no evidence as to where Mr. Okonta stood in the hierarchy of the supply chain that he was a part of, he was clearly trusted by someone to convey a substantial amount of drugs.

[23] Comments made by Mr. Okonta and others about the “negative influences” exerted on Mr. Okonta by other people have the appearance of being a deflection of responsibility. This is so even though in the months following his guilty plea, Mr. Okonta has had an opportunity for reflection. Despite his contrition before the court, there still seems to be a lack of appreciation on his part and on the part of the family members supporting him of the damage that his activity would have caused to the community at large.

[24] The pre-sentence report does not really assist in determining factors that may have led to Mr. Okonta’s offending.

Position of the Defence

[25] Mr. Okonta enjoys positive family support. The pre-sentence report was also positive.

[26] The defence submits that Mr. Okonta’s cultural and family circumstances are important. He was sixteen when his parents separated and took on the “man of the house” role. He was really close to his maternal grandmother and it was very difficult for Mr. Okonta when she passed away. He dropped out of college because of finances and a family responsibility. He has worked for most of his adult life except when unable to do so because of injury.

[27] Particular attention should be paid to Ifeoma Okonta’s comment that the accused and his siblings were raised by their mother “in a loving environment which was focused on not becoming another black statistic”.

[28] As the letters filed at the sentencing hearing demonstrate, Mr. Okonta has strong community support. He will still have that support when he gets out of custody.

[29] In that regard, the defence acknowledges that Mr. Okonta will – and should – receive a penitentiary sentence. However, it should be in the range of two to two and a half years.

[30] The defence argues that Mr. Okonta has excellent prospects for rehabilitation and is unlikely to offend in this manner again.

Analysis and Discussion

[31] The aggravating factors in this case include:

a. The amount of cocaine and crystal methamphetamine trafficked; and b. The objective of financial gain.

[32] Mitigating factors include:

a. The absence of a criminal record; b. Mr. Okonta’s history of employment; c. Mr. Okonta’s guilty plea; d. The accused’s pro-social history including mentoring and community service work as well as helping his mother to raise her family; e. The existence of community and family support; and f. Good prospects for rehabilitation.

[33] Mr. Okonta is a man of previously good character. He has played an important role in his family, particularly after the departure of his father, when Mr. Okonta was sixteen. I accept that Mr. Okonta likely felt that he had a responsibility to provide financial support to his family. This sense of responsibility would have increased when his mother made known the financial pressures that had arisen as a result of his grandmother’s death. The suggestion, by implication, that these family financial pressures provided the motivation for Mr. Okonta to get involved in criminal activity, is a plausible one. The record does not really point to any other motivation.

[34] As counsel for the Crown observed, there is not a great deal in the record to assist with an understanding of what sort of bad company Mr. Okonta kept, or where he stood in the drug hierarchy. Clearly, he was regarded as sufficiently reliable to be entrusted with a substantial quantity of illicit drugs which he drove to a pick-up point where they were collected by an individual who the Kingston Police had under surveillance (it was the Kingston Police who subsequently seized the drugs that give rise to the charges against Mr. Okonta).

[35] Many of the authorities I was referred to by counsel involved possession for the purposes of trafficking. As observed by Clayton C. Ruby, Gerald Chan, Nader R. Hasan and Annamaria Enenajor, Sentencing, 9th ed (Toronto: LexisNexis, 2017) at § 23.908:

In the Controlled Drugs and Substances Act, sections 5(1) and 5(2) list trafficking and possession for the purpose of trafficking as separate offences. Further, infusing the analysis of one offence with the other is conceptually confusing and might not reflect the blameworthiness of offenders. Arguably, those who actually traffic as opposed to only possess for the purpose of trafficking should be considered to be relatively more blameworthy for taking the extra step of trafficking.

[36] The Crown made reference to R. v. McIntyre, 2016 ONCA 843, where, following a jury trial, the appellant was convicted of trafficking one kilogram of cocaine and sentenced to eight years imprisonment. He had no previous convictions. The sentence was reduced on appeal to five years, one of three errors which the trial judge was said to have made being imposing a sentence of imprisonment at the upper end of the range of sentence without taking into account that the appellant was a first offender (the Court of Appeal also considered a Gladue report which had not been available at the sentencing hearing).

[37] In R. v. Villanueva (2007) ONCJ 87, there were transactions between the accused and an undercover officer involving 168 grams of crystal methamphetamine and two and a half kilograms of what was represented as crystal methamphetamine but was, in fact, water softener. After the exchange was completed, a further 1,006 grams of crystal methamphetamine and $8,940 in cash were seized from the accused’s locker at a recreational centre and his residence. The accused was 22 years of age at the time of the offences and had had some other brushes with the law as a young offender. A sentence of five years, four months was imposed.

[38] And in R. v. Bajada (2003), 173 C.C.C. (3d) 255 (Ont. C.A.), Weiler J.A., having reviewed the authorities, observed, at para. 13:

It would appear that sentences of five to five and one half years are not uncommon for possession of a substantial amount of cocaine for the purposes of trafficking following an accused's plea of guilty or where the accused has no prior record.

[39] The defence points to cases where lesser sentences were imposed. In R. v. Rage, 2018 ONCA 211, the appellant had been convicted of three counts of trafficking cocaine and one count of possession of cocaine for the purpose of trafficking as well as a single count for simple possession of marijuana. He had no prior record. The transactions involved approximately 136 grams of crack cocaine (see the sentencing decision at 2016 ONSC 4605) and a further 277 grams (approximately) of powder cocaine which was seized from the accused’s apartment or vehicle. 17.43 grams of marijuana, $3,850 in Canadian currency, $129 in U.S. currency, two sets of digital scales, what was presumed to a metal cocaine press box, two MDMA pills weighing 0.56 grams and 45 rounds of ammunition and 10-bullet magazine were also seized. At the time of the accused’s arrest, a further $1,760 (Canadian) and $229 (U.S.) was seized. The accused received a two year penitentiary sentence and three years of probation. This sentence took into account seven days of pre-trial custody and eighteen months under strict house arrest followed by a year of curfew.

[40] After discussing the comments of Rosenberg J.A. in R. v. Borde (2003), 30 O.R. (3d) 417 (C.A.) to the effect that the principles of sentencing are generally applicable to all offenders, including African Canadians, and are sufficiently broad and flexible to enable a sentencing court in appropriate cases to consider both the systemic and background factors that may have played a role in the offending and the values of the community from which the offender comes, the Court of Appeal went on to observe, at para. 14 of Rage:

We accept the Crown submission that the flexible approach to sentencing described by Rosenberg J.A. is precisely what happened in this case. The trial judge noted that the sentencing range for possession of a substantial amount of cocaine for the purpose of trafficking was from five to eight years’ imprisonment. He then went on to craft a sentence that was below the range he identified and in so doing, adequately took into account the appellant’s particular circumstances.

[41] In R. v. Ceballos, 2015 ONSC 720, a 36 year old accused with no criminal record was convicted of possession of cocaine for the purpose of trafficking. 326 grams of cocaine was involved. The sentencing judge held that the accused’s actions had been out of character. He was married, with children and there was, according to the judge, no reason to fear that he would become involved in drug trafficking again. He had not, however, initially pleaded guilty. That only occurred once he lost an application to exclude the evidence surrounding the finding of the cocaine. An application which was, according to the sentence, effectively a full trial on the merits. Nevertheless, the sentencing judge held that while the sentence of three and a half years sought by the Crown was not outside the range for the offence, it did not give sufficient weight to the accused’s prior good character and his rehabilitative prospects. A sentence of two and a half years was imposed.

[42] It is trite to say that no two cases are alike. Furthermore, as Akhtar J. observed in R. v. Stevenson, 2017 ONSC 4434, at para. 39:

Sentencing is not a comparative exercise where an offender's sentence is determined simply by reference to other cases. Whilst a sentencing judge must be cognisant of the ranges set by appellate courts, the sentencing process is designed to be an individualised procedure where the punitive measure is crafted to ensure the sentencing goals in the Criminal Code are met.

[43] Furthermore, sentencing ranges are neither immovable or immutable. Each case must be decided on its individual facts and circumstances: R. v. Jacko, 2010 ONCA 452 at para. 90.

[44] Trafficking in hard drugs, even if the offence was an event that was completely out of character for the accused, requires both deterrence and denunciation. Mr. Okonta’s purpose appears to have been financial gain, with scant regard for the likely impact of his actions, had the drugs he trafficked ended up in the hands of end users.

[45] On the other hand, Mr. Okonta’s prospects for rehabilitation are, in my view, good. He has strong community support. He comes from a good family who have stood by him. He made a terrible mistake, possibly motivated by his desire to support his mother in a difficult situation.

[46] Taking into account all of the individual circumstances and, endeavouring to strike an appropriate balance between the need for denunciation and deterrence on the one hand, and recognition of Mr. Okonta’s family and, on the other hand, community support and his good prospects for rehabilitation, I have concluded that Mr. Okonta should be sentenced to a three year term of imprisonment.

Sentence

[47] Mr. Okonta, please stand.

[48] On counts 3 and 4 (the trafficking counts), I sentence you to a term of imprisonment of three years.

[49] On count 5 (possession of proceeds of crime exceeding $5,000), I sentence you to a term of imprisonment of one year.

[50] These terms of imprisonment will be served concurrently.

[51] There will be a firearms prohibition order under s. 109 of the Criminal Code for ten years and a DNA order pursuant to s. 487.04 of the Criminal Code.

[52] The Canadian currency seized from you in the amount of approximately $10,000 shall be forfeited.

Graeme Mew J.

Handed down: 4 March 2020 (orally)