Court of Appeal for Ontario

Date: 2019-02-25 Docket: C63958

Judges: Rouleau, Trotter and Zarnett JJ.A.

Between

Her Majesty the Queen Respondent

and

Faith Chinwendu Uzondu Appellant

Counsel

For the Appellant: Jessica Zita

For the Respondent: Lisa Mathews and Jonathan Geiger

Heard and Released Orally: February 21, 2019

Appeal Information

On appeal from the conviction entered on July 27, 2016 by Justice Thomas A. Bielby of the Superior Court of Justice, sitting without a jury, with reasons reported at 2016 ONSC 4808, and on appeal from the sentence imposed on November 23, 2016 by Justice Thomas A. Bielby, with reasons reported at 2016 ONSC 7423.

Reasons for Decision

Conviction Appeal

[1] The appellant argues that the trial judge erred in finding that she had the requisite mens rea for possession of 486 grams of heroin for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act. We disagree.

[2] The trial judge found that the appellant was "at the very least" wilfully blind to the contents of the package she received. Instead of acting on her suspicion, the appellant chose to remain ignorant of the precise contents of the package. The trial judge applied the correct legal test for wilful blindness. His ultimate finding on this issue was supported by the evidence. This included the appellant's text messages and the evidence as to the manner in which the appellant dealt with the package, especially when considered against the backdrop of her own evidence about how she typically conducted herself when dealing with stolen credit cards and fraudulent cheques.

[3] Moreover, there was an evidentiary basis for the trial judge's conclusion that the appellant had actual knowledge that the package contained heroin. It was open to the trial judge to conclude that, when the appellant was at the police station, nobody had mentioned the word "heroin" before the appellant said, "I don't even know what heroin looks like." This was cogent evidence that the appellant actually knew that the package contained heroin.

[4] The appeal from conviction is dismissed.

Sentence Appeal

[5] The appellant seeks leave to appeal from her four-year sentence. In our view, although the trial judge mentioned a number of factors that favoured the appellant, he failed to properly take into account the fact that the appellant had suffered a very difficult life, which included serious violence. Moreover, the trial judge failed to fully consider the appellant's rehabilitative potential, which was partly demonstrated by her community involvement while in pre-sentence custody.

[6] We also note that, in his sentencing reasons, the trial judge erroneously relied upon the appellant's participation in other criminal behaviour (i.e., dealing in fraudulent cheques and fake passports) as an aggravating factor. Although the appellant admitted to these activities in her evidence at trial, they could not be used as an aggravating factor on the offence for which she was convicted.

[7] With the consent of the Crown, we received fresh evidence concerning the appellant's activities since being sentenced, while on bail pending appeal. The appellant has continued to contribute to the community in a positive way. She recently gave birth to her third child. Lastly, a medical report reveals that, while further testing is required, the appellant may suffer from a serious medical condition.

[8] In our view, when all of these factors are taken into consideration, the goals of general deterrence and denunciation would still be achieved in this case by imposing a shorter sentence. Moreover, there would be little value in re-incarcerating the appellant when she is just a few months away from her statutory release date.

[9] Accordingly, leave to appeal sentence is granted and the appeal against sentence is allowed by reducing the custodial portion of the appellant's sentence to one of time served. The DNA order that was imposed at the time of sentencing is left undisturbed.

Paul Rouleau J.A. Gary Trotter J.A. B. Zarnett J.A.