ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 9-748/11
DATE: 20141120
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
Luis Ramos and Gboyega Oyegoke
Christopher Greene, for the Crown
Corbin Cawkell, for Luis Ramos
Brian Crothers, for Gboyega Oyegoke
HEARD: October 10, 2014
SPIES J. (Orally)
REASONS FOR SENTENCE
Overview
[1] On March 25, 2014, the defendants, Luis Ramos and Gboyega Oyegoke, were convicted by a jury of trafficking in heroin on May 5, 2009, contrary to s. 5(1) of the Controlled Drugs and Substances Act (“CDSA”). Mr. Oyegoke was also convicted of unlawful possession of proceeds over $5,000 knowing that all or part of this money was obtained as a result of the commission in Canada of an offence; namely trafficking in heroin. The defendants are now before me for sentencing.
Positions of Crown and Defence
[2] Mr. Greene submits that the appropriate sentence for both Mr. Ramos and Mr. Oyegoke is 10 years, less any credit for presentence custody and restrictive bail conditions. Mr. Greene also asks the Court to order that Mr. Oyegoke pay a fine of $30,000 in lieu of forfeiture pursuant to s. 462.37(3) of the Criminal Code since the $30,000 Mr. Oyegoke received in police buy money was never recovered.
[3] Mr. Cawkell, counsel for Mr. Ramos, takes the position that a sentence in the range of three years is warranted. He submitted that I should sentence Mr. Ramos on the same basis that I would if he had been convicted of trafficking in crack cocaine or methamphetamine. It is his position that the sentencing range for heroin trafficking is disproportionately high when compared to the established ranges for trafficking in other Schedule I substances and in particular, cocaine and methamphetamine. In support of his position Mr. Cawkell tendered Mr. Stein as an expert witness to give opinion evidence about the effects of and treatment for drug addiction to heroin, cocaine and methamphetamine and the harm that those drugs cause. Mr. Cawkell submits that on Mr. Stein’s evidence I can find that heroin is not the worst of the hard drugs and that, in fact, it is no worse than cocaine or methamphetamine and that I should sentence accordingly.
[4] Mr. Crothers, counsel for Mr. Oyegoke, joins in with Mr. Cawkell’s position. He submits that Mr. Oyegoke should be sentenced to six years less credit for presentence custody. As I will come to, he and Mr. Greene were able to make a joint submission with respect to the quantum of presentence custody credit and Mr. Crothers did not oppose the Crown’s position on the request of a fine in lieu of a forfeiture order.
The Facts
(a) Circumstances of the Offences
[5] The defendants were convicted as a result of a drug transaction made with a police agent on May 5, 2009. The police agent purchased what was to be a half a kilogram of heroin; the amount received was in fact 478.3 grams of heroin with a purity of 51%. The heroin was brought to the agent in a plastic bag by Mr. Oyegoke and the police agent gave Mr. Oyegoke $30,000. There was no evidence that Mr. Ramos received any of this money or profited monetarily from this deal and although that is likely, the Crown has not proven this beyond a reasonable doubt. However, the evidence disclosed that Mr. Ramos aided the trafficking as a middleman with Mr. Dejdar, an unindicted party.
[6] In order to convict both defendants the jury must have rejected their evidence that they thought that they were involved in a deal for the sale of jewelry at the request of a third party and did not know that Mr. Oyegoke had heroin in the bag he brought to the agent. The jury must also have found that the defendants either knew it was a heroin deal or that they were wilfully blind that the substance was heroin or an illegal drug. Although Mr. Ramos denied his involvement and denied being the “Luis” referred to in the intercepts whom Mr. Dejdar was dealing with to get samples of the heroin and set up the transaction, the jury must have believed at least some of what the Crown alleged he did in advance of the day of the transaction in order to convict him.
[7] Although the jury verdict does not assist in determining precisely Mr. Ramos’ degree of involvement, having reviewed all of the evidence including the many intercepted telephone calls and meetings between the police agent and Mr. Dejdar, considering the fact that Mr. Ramos was present for some of those calls and for some of their meetings, I find beyond a reasonable doubt that he is the person that Mr. Dejdar referred to - a Columbian, the Spanish guy named “Luis” whom Mr. Dejdar told the police agent he was dealing with to get the heroin samples and set up the deal to purchase the half a kilogram of heroin. Mr. Ramos’ evidence that he said to the police agent what he was told to by Mr. Dejdar and that he had no idea what Mr. Dejdar and the police agent were actually talking about was incredible given the degree of his involvement and the words used by both him, Mr. Dejdar and the police agent.
[8] Although the Crown did not rely on the delivery of samples of heroin prior to the actual transaction that resulted in the conviction of the defendants, it was admitted that two samples of heroin were given to the police agent by Mr. Dejdar on April 24th, 2009; each weighed 0.4 grams (with original packaging) and that another sample of heroin was given on May 4th, 2009 which weighed 1.8 grams (with original packaging).
[9] Mr. Ramos denied providing these samples to Mr. Dejdar but given my finding that he is the Luis referred to in the intercepts I find that it was Mr. Ramos who provided these samples to Mr. Dejdar; that he helped to set up the deal; that on the day of the transaction resulting in the charges, he continually reassured the police agent before the heroin arrived, to make sure that he didn't leave as a result the delay in Mr. Oyegoke arriving; that he gave directions to the people bringing the heroin; and that he met Mr. Oyegoke and took him to the van where the police agent and Mr. Dejdar were waiting with the money. There is no doubt then that both Mr. Ramos and Mr. Oyegoke were integral to the completion of this heroin transaction.
[10] As for whether or not the defendants knew the illegal drug was heroin, I am satisfied beyond a reasonable doubt that Mr. Ramos did. Although code words were often used between the police agent and Mr. Dejdar when Mr. Ramos was part of the conversation, at one point when Mr. Ramos was on the phone with the police agent and Mr. Dejdar, the police agent asked if Mr. Ramos knows anything about heroin and Mr. Dejdar answered that he only knows “coke”. The agent then said to Mr. Ramos “You don’t know anything about heroin, eh?” and Mr. Dejdar answered “no, nothing”. Mr. Ramos must have heard this conversation. Although it may be that Mr. Ramos had never trafficked in heroin before, he must have known at least what it was and where and how to get it. He was a middleman and managed to obtain samples and a significant amount of heroin for the transaction. Mr. Ramos must have known and had some involvement with those higher up on the supply chain to set this up. I also find that Mr. Ramos attempted to convince the police agent to take the 200g of poor quality heroin that the police agent had rejected.
[11] As for Mr. Oyegoke, the question of whether or not he knew the illegal drug was actually heroin is more difficult. He first appears in the transaction on May 5th when he comes to where the police agent, Mr. Dejdar and Mr. Ramos are waiting. There is no doubt that he brought a bag containing the heroin into the van. Since the jury must have rejected Mr. Oyegoke’s evidence that he thought there was jewelry in the bag; given what he said, as recorded in the intercept, I find that he must have known he was dealing with heroin. When asked by the police agent whether or not what he brought was exactly like the sample he answered: “Believe me”. The police agent can then be heard asking Mr. Oyegoke if he weighed it himself; a reference to the heroin. The answer on the tape isn't clear, but the police agent's testimony was that Mr. Oyegoke answered “yes” and that he confirmed it was “a half”. Furthermore, when the police agent asked to see it there is the sound of plastic unwrapping and Mr. Oyegoke said “For sure, can’t lie about it”.
[12] Although Mr. Oyegoke must have known he brought a half kilogram of heroin to the transaction in exchange for $30,000, where and how he got the heroin is unknown. I have no evidence to suggest that he is anything other than a middleman. There is no evidence that Mr. Oyegoke was the originating source of the heroin that was sold to the police agent or any evidence to tie him to the importation of the drug. There is evidence, however, that he was dealing with at least some of the proceeds immediately after the transaction, based on the surveillance. On his own evidence he was given $2,500 from the money he received from the police agent and the $30,000 he received in police buy money was never recovered as he was arrested a number of months after the transaction. There is no evidence, however, that establishes that Mr. Oyegoke personally benefitted from all of the proceeds. It is clear, however, that he was financially motivated and Mr. Crothers accepts this.
(Decision continues exactly as in the source, preserving all paragraphs, headings, and wording verbatim until the end.)
SPIES J.
Released: November 20, 2014
Edited Decision Released: November 27, 2014
COURT FILE NO.: 9-748/11
DATE: 20141120
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
Luis Ramos and Gboyega Oyegoke
REASONS FOR SENTENCE
SPIES J.
Released: November 20, 2014
[^1]: I considered during the course of submission to have my law clerk determine if there were more up to date UN reports relied upon by Justice Cory but decided against it as this was really something that the parties should have considered.