CITATION: R. v. Zahor, 2016 ONSC 7586

COURT FILE NO.: CRIMJ(F) 391/14

DATE: 2016 12 09

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

M. Hourigan, for the Crown

• and -

IBRAHAM ZAHOR

L. Rados, for the Defence

HEARD: November 1, 2016

REASONS FOR SENTENCE

Woollcombe J.

Overview

1On August 3, 2016, Mr Zahor was found guilty by a jury of importing heroin. Sentencing submissions were heard on November 1, 2016.

2For the reasons that follow, Mr. Zahor is sentenced to a total of fourteen and a half years in custody less credit for pre-sentence custody.

Facts of the Offence

3The facts are quite straight-forward.

4Mr. Zahor was arrested at Pearson International Airport on April 19, 2013 after arriving on a flight from Johannesburg, South Africa that transited through Dubai. He had two suitcases. Concealed in each was a package of heroin. Each package weighed just under 6000 grams. The total amount of heroin was 11.95 kilograms. The heroin was 29 percent pure and was valued between $960,000.00 and $3,586,500.00 Canadian depending on how it was sold.

5There was no issue at Mr. Zahor’s trial that he had imported heroin into Canada. The only issue for the jury was whether he knew that he was importing heroin. By its verdict, the jury rejected Mr. Zahor’s evidence that he had no idea that there was heroin concealed in his suitcases.

Circumstances of the Offender

6No witnesses testified at the sentencing hearing.

7A Pre-sentence report was filed as exhibit 1 on sentencing. It sets out some of Mr. Zahor’s personal history. He is now forty-four years old.

8He was born in Tanzania and was raised by his aunt and uncle because his parents could not afford to raise him and his sister. He saw his parents about once a month. His sister died when she was six years old and his parents are also deceased. As a teenager, he moved to Zanzibar with his aunt and uncle and completed high school. As a result of political challengess, his aunt and uncle bought him a ticket to leave the country. He arrived in Canada in 2001 and became a citizen in 2008.

9Mr. Zahor has been a relatively productive member of Canadian society. He worked as a machine operator for two years starting in 2002. He was laid off and then worked as a truck driver and as a forklift operator.

10In Canada, Mr. Zahor married. He has four children. He and his wife separated in 2009. The children have remained with their mother. He has been required to pay child support since 2011 and is in arrears on those payments, having paid nothing since his arrest in 2013. He did not secure employment while on bail pending his trial. However, he has maintained an active role in the lives of his children.

11Mr. Zahor was convicted of care and control of a motor vehicle while impaired in 2009 and again in July 2013. In 2009, he received a fine and one year driving prohibition. He completed the “Back on Track” program. In 2013, he received a 30 day intermittent sentence and one year driving prohibition. He completed the “Missing You” program and reported as required. The driving restriction made obtaining work difficult for him. The author of the Pre-sentence Report says both Mr. Zahor and those contacted have indicated that he does not have issues with drugs or alcohol.

12Those with whom the author of the Pre-sentence report spoke indicated that Mr. Zahor is a hard-working person, a good father, caring and friendly.

13Mr. Zahor continues to deny responsibility for importing heroin and reports that he was “set up”. When given his opportunity to speak at his sentencing hearing, Ms. Zahor told me that he does not participate in criminal activity.

14The defence filed two letters of support. One is from Halima Mohamed, the mother of his four children. She describes Mr. Zahor as a loving father who is dedicated to his children. She says he is resourceful, a hard worker, kind and dependable.

15The second letter of support is from Halima Mohamed’s sister, Yasmin Mohamed. She writes of Mr. Zahor’s strong work ethic and of the care and compassion he has shown for his family, particularly for his children. She believes Mr. Zahor to be responsible and trustworthy.

Positions of the Crown and Defence

16Both parties made submissions as to the appropriate range of sentence.

17For the Crown, Ms. Hourigan submits that the appropriate sentence is twenty years less pre-sentence custory. She says that in R. v. Sidhu, 2009 ONCA 81, the Court of Appeal set out that the range of sentence for a first time courier who imports a large amount of high grade heroin is twelve to seventeen years. This range was recently affirmed by the Court of Appeal in R. v. Kusi, 2015 ONCA 638 at para. 14.

18It is the Crown’s position that a number of factors present in this case warrant a sentence higher than the Sidhu range. In particular, Ms. Hourigan points to the large amount of heroin imported and the absence of any real mitigating factors other than the fact that Mr. Zahor is involved with his children.

19Ms. Hourigan also seeks a s. 109 prohibition order, a DNA order and a forfeiture order.

20Mr. Rados submits that Mr. Zahor is a first time federal offender who was a drug courier at the bottom of the importing hierarchy. He says that Mr. Zahor was convicted of one count of importing heroin that was of a uniquely low level of purity. He has spent his life free from offences other than the two drinking and driving convictions and his life in Canada has been generally positive. He describes Mr. Zahor as having excellent rehabilitative prospects and as being at low risk for re-offending. It is his submission that the appropriate sentence is twelve years less pre-sentence custody.

Analysis

a) The Statutory Principles

21Section 718 of the Criminal Code sets out the following in terms of the purpose of sentencing:

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.

22Further, s. 718.1 of the Criminal Code provides that:

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

23Section 10 of the Controlled Drug and Substances Act S.C. 1996, c. 19 provides the following with respect to the purpose of sentencing:

10 (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 to the community.

b) Sentencing Principles and the Appropriate Range of Sentence

24Canadian courts have repeatedly observed that heroin is the “most pernicious of the hard drugs” in that it is the most addictive, most destructive and most dangerous (Sidhu at para. 12). There is a pressing need to protect society from the grief and misery occasioned by the importation and subsequent use of hard drugs such as heroin. Denunciation, general and specific deterrence are the primary and overriding principles of sentence for the importation of heroin.

25While counsel have provided me with a significant number of cases that I have reviewed carefully and will summarize, it is useful to begin by reviewing exactly what the Court of Appeal said in Sidhu.

26Mr. Sidhu was 21 year old first offender who agreed to act as a courier for his two brothers. He travelled to India and returned with concealed heroin in his suitcase. There was 9.56 kilograms of heroin that had purity of between 61 and 77 percent. Its street value was between $4.78 and $6.69 million Canadian. The trial judge imposed an effective sentence of eight years. The Crown appealed.

27The Court of Appeal increased the sentence to an effective sentence of fifteen years holding that:

…as a general rule, absent exceptional or extenuating circumstances, first offender couriers who import large amounts of high grade heroin into Canada for personal gain should expect to receive sentences consistent with the twelve to seventeen year range suggested by the Crown. To be clear, when we refer to “large amounts” of high grade heroin, we are not referring solely to multiple kilograms; as authorities from this court and other courts show, lesser amounts will often attract similar, if slightly lower, penalties…

28I will now review the Ontario cases that have been put before me for my consideration. They are reviewed in order of ascending sentence.

29In R. v. Ifejeka, 2013 ONCA 53, the Court of Appeal upheld a seven year sentence for an appellant convicted of importing 500 grams of heroin into Canada. She took delivery of a package containing heroin from a police officer posing as a courier. On appeal, she argued that the seven year sentence she received was too high. The Court of Appeal upheld the sentence.

30In R. v. Mediratta, [1988] O.J. No. 1383 (C.A.), the Court of Appeal affirmed a seven year sentence for an offender who imported 3.64 pounds of heroin concealed in his suitcase. Half of it was only 4 percent pure, but the remainder was between 35 and 41 percent pure. It was worth between $1 and $3 million Canadian. The Court declined to reduce the sentence below seven years.

31In R. v. Osei, [2002] O.J. No. 5601 (S.C.J.) Hill J. considered the appropriate sentence for a 31 year old first offender who pleaded guilty to importing 911 grams of heroin into Canada through Pearson International Airport. The heroin tested at a purity of 73 percent. Justice Hill imposed a sentence of six years in addition to crediting the offender for two years pre-sentence custody for an effective sentence of eight years.

32In R. v. Mensah (2003) 2003 CanLII 57419 (ON CA), 170 O.A.C. 244, leave refused, [2003] S.C.C.A. No. 207 the Court of Appeal considered the sentence of a first offender who imported 1.038 kg of heroin into Canada through Pearson International Airport. The Court held that an appropriate effective sentence would have been nine years.

33In R. v. Katz, [2005] O.J. No. 3876 Durno J. sentenced an offender to an effective sentence of nine years following her guilty plea to one count of importing heroin. She imported two kilograms of heroin that tested at 91 to 93 percent purity into Canada.

34In R. v. Volk 2003 CarswellOnt 6883, Van Melle J. imposed a sentence of nine years on a 72 year old first offender who was found guilty by a jury of importing 3.4 kilograms of heroin into Canada. The sentencing judge noted that the value of the heroin was significant, being well over a million dollars, and that the heroin was 96 to 97 percent pure. The Court of Appeal upheld the sentence [2005] O.J. No. 4731 (C.A.).

35In R. v. Chan, 2003 CanLII 52165 (ON CA), [2003] O.J. 3233, the Court of Appeal upheld a ten year sentence for an attempted importation of 6 kilograms of heroin.

36In Kusi, the Court of Appeal upheld a ten and a half year sentence for the importation or 1.37 kg of heroin. The offender imported the heroin to Canada from Ghana and was found by the trial judge to have been part of a sophisticated operation. He was a first offender and pleaded guilty.

37In R. v. Carrero, [2010] O.J. No. 6285, Justice Mossip imposed an effective sentence of eleven years on a courier convicted after trial of importing 1.56 kilograms of heroin. He was a 23 year old first offender who was found by the trial judge to have been a courier.

38R. v. Igbinoba 2015 ONSC 7492 Justice Ricchetti sentenced co-accused. Mr. Igbinoba was found guilty by a jury of conspiracy to import heroin, importing heroin and possession for the purpose of trafficking heroin. His co-accused, Mr. Godwin, was found guilty of conspiracy to import heroin and possession for the purpose of trafficking. There was about one kilogram of heroin with a purity of 42 percent at issue in the case. For Mr. Igbinoba, Justice Ricchetti noted that he had no prior drug related offences and was supported by the community. Ricchetti J. found that there was no evidence that the purity of the heroin was of such a low grade as to have any material impact on what constituted a proper sentence. He concluded that the appropriate sentence for importing one kilogram of heroin was eleven years.

39In R. v. Murororunkwere, [2016] O.J. 881, I imposed a sentence of twelve years for a first offender found guilty by a jury of one count of importing 2.5 kilograms of heroin. She was involved in a sophisticated international scheme to import heroin and had a role with a much higher level of culpability than a courier. At the same time, she was a first offender, actively involved in her community, had significant health issues and had come to Canada as a refugee after she had been mis-treated and family members had been killed.

40In R. v. Boateng, [2013] O.J. No. 3179 (S.C.J.), Justice Durno acceded to a joint submission of twelve years less pre-trial custody for a first offender convicted of importing 2.380 kilograms of heroin into Canada. He had what the court characterized as “significant health issues” in that his blood pressure was high and not under control.

41In R. v. Soufi, [1999] O.J. No. 2568, (S.C.J.), Caswell J. imposed an effective sentence of thirteen years on a first offender found guilty by a jury of importing almost 5 kilograms of heroin into Canada. It had around 70 percent purity and was worth between $400,000.00 and slightly less than $5.0 million. The offender was found to be an “overseer” and more than a mere courier.

42In Sidhu, the Court of Appeal increased the sentence to fourteen years and nine months imprisonment for an offender who imported 9.56 kg of heroin into Canada. The heroin had a purity of 61-77 percent, and a street value between $4.78 and $6.69 million. Mr. Sidhu was a youthful first offender and was described by the court as lacking in sophistication.

43In R. v. Kwok, 1986 CanLII 4726 (ON CA), [1986] O.J. No.1194 (C.A.), the Court of Appeal considered an appeal against an eighteen year sentence for importing heroin. The offender was an overseer who supervised a courier. The courier had 7.7 pounds (3 ½ kg) of heroin in his suitcase and was sentenced to thirteen years. Finding the differentiation between the two sentences too great, the Court reduced the overseeing offender’s sentence to fifteen years.

44In R. v. Thambiah, [1987] O.J. No. 1025 (C.A.), the Court of Appeal upheld a fifteen year sentence for a 32 year old first offender courier who pleaded guilty to conspiracy to import. He was the courier who imported about 30 pounds (13.6 kg) of 95 percent pure heroin into Canada.

45In R. v. Huang, [2006] O.J. No. 5714, Schneider J. imposed an effective sentence of fifteen years on an offender who pleaded guilty to conspiracy to import heroin into Canada. His offence involved shipping a sea container containing 57 kilograms of heroin into Canada.

46In R. v. Deane, 2013 ONSC 406, Mossip J. considered the appropriate sentence for an offender convicted of importing heroin, conspiracy to import heroin, possession of a controlled substance for the purpose of trafficking and conspiracy to possess heroin for the purpose of trafficking and a second offender convicted of conspiracy to possess heroin for the purpose of trafficking. The first offender had imported 11.9 kilograms of heroin of a very high level of purity in what the court described as a sophisticated importation plan. For the importing count, he received an effective sentence of sixteen years.

c) The Significance of Purity

47Given the argument made by the defence about the significance of the fact that the heroin Mr. Zahor imported had a purity of 29 percent, it is important to review what the Court of Appeal has said about the significance of purity.

48In R. v. Hamilton, 2004 CanLII 5549 (ON CA), [2004] O.J. No. 3252, the Court of Appeal considered the issue of purity adjusted weight of cocaine to identify the starting range for sentencing. In clear language, the Court of Appeal rejected purity adjusted weight as the preferred approach in determining the appropriate range of sentence holding, at paras. 150-153:

150 The trial judge adjusted the weight of the cocaine imported by the respondents downward to reflect the purity of that cocaine. He also referred to the purity-adjusted weight in interpreting the applicability of the ranges of sentences described in Madden and Cunningham. In the end, however, the trial judge found that those ranges were not applicable without regard to any downward adjustment of the weight to take into account the purity of the cocaine imported by the respondents. I agree with that conclusion, but will briefly address his observations on the use of the purity-adjusted weight.

151 I agree with the trial judge that the purity of the cocaine imported, while usually not known to the courier and therefore irrelevant to personal culpability, can have some effect on the seriousness of the specific offence (para. 174). The purer the cocaine, the wider its potential distribution and therefore the greater the harm it may cause in the community. However, I do not think that the purity of the cocaine imported will be a particularly significant factor in assessing the seriousness of the offence. Certainly, there should be no mathematical-like reduction in the seriousness of the offence based on the exact purity of the cocaine. I see little difference, for the purposes of assessing the seriousness of the crime, between cocaine that is eighty per cent pure and cocaine that is ninety per cent pure.

152 I also do not agree with the trial judge's tentative view (para. 176) that the range of sentencing referred to in Madden should be read as referring to the importation of nearly pure cocaine. The ranges set in Madden and Cunningham were based on weight. Purity was not a factor. In deciding whether a particular case fits within the Madden range or the Cunningham range, the relevant comparison is between the weights referred to in those cases and the weight of the cocaine imported in a particular case.

153 In so holding, I do not suggest that the purity of the drug is irrelevant. If the weight of the cocaine imported brings it within the Madden range, its purity will have some relevance to the determination of where in the range the sentence should fall. In cases where the purity is low and the weight near the bottom end of the "a kilogram more or less" amount referred to in Madden, the offence may fall outside of the Madden range entirely [emphasis added].

49Recently, in R. v. McCrea, 2015 ONSC 4711, Justice Hill observed at para. 67 that the Court of Appeal had rejected purity adjusted weight as the preferred approach to sentencing. He then reviewed the ways in which the purity level of a narcotic may be relevant on sentence. By way of summary, he held that:

• Higher levels of purity may signal a high-level transaction and proximity to a supplier, thus aggravating an offence because an offender has a more important or prominent role;

• Higher levels of purity may signal objective seriousness of the crime in terms of wider possible distribution to more users;

• Higher levels of purity increases the potential potency for users and a greater risk of overdoses;

• Higher purity impacts on the value of the drugs and potential for profit.

d) Mitigating and Aggravating Factors

50The mitigating circumstances in this case are the followings:

• Mr. Zahor does not appear to have been the mastermind behind this importation;

• Mr. Zahor has a relatively minor unrelated criminal record consisting of two convictions for care and control while impaired;

• Mr. Zahor is a supportive and loving father of his four children;

• The heroin was of a lower degree of purity.

51I find that the following factors are aggravating:

• There was 11.95 kilograms of heroin imported in April 2013;

• The value of the heroin imported in April 2013 was between $960,000.00 and $3,586,500.00;

• Mr. Zahor’s importation was solely for personal gain.

d) The Sentence to be Imposed

52I do not accept the defence position that the purity of the heroin in this case is so uniquely low as to warrant the imposition of a sentence at the very bottom end of the range discussed by the Court of Appeal in Sidhu.

53The evidence before me is that high grade heroin exists at levels of 90 to 96 percent purity. The heroin in this case had 29 percent purity. It had already been cut and was “street ready” to sell as is without being cut further. The agreed upon expert evidence was that 11,955 grams (11.95 kg) of heroin represents 119,550 doses of heroin.

54While the purity was lower than the highest levels described in some of the cases, I do not accept that this factor, alone, justifies a sentence at the bottom end of the Sidhu range. Judges have been cautioned not to engage in a mathematical adjustment of the quantity of heroin based on its purity and I decline to do so. In my view, the purity of the heroin imported, a factor that would have likely been unknown to Mr. Zahor, is just one of several factors to consider in determining where in the Sidhu range the sentence should fall.

55In addition, I consider the quantity and value of the heroin to be very important.

56As I have indicated, this case involves the importation of what I view as a significant amount of heroin. Almost twelve kilograms of drugs is a very large amount for a courier to bring into Canada in luggage. This large amount of heroin had the potential to effect literally thousands of people in a huge variety of ways – from users to potential users to their families, friends, neighbours, and the broader community.

57The potential value of the heroin, of up to $3,586,500.00, is also very significant. There was a huge profit to be made by selling the heroin. While Mr. Zahor may have been a relatively unsophisticated participant in the drug importing and distribution scheme, he was part of a business that is motivated by profit and depends on people like him to take the risk that he did. He played an integral role in a significant commercial enterprise.

58In my view, the sentence that should be imposed in this case is one that falls within the Sidhu range. The offence is extremely serious. The quantity and value of the heroin warrant a sentence higher within that range, despite the lower purity. The circumstances of the offender are only somewhat mitigating in that he has never been convicted of this sort of offence before, is a committed father and was a mere courier.

59Despite the serious nature of this offence, however, I cannot see how the Crown’s position of twenty years is fit in the circumstances of this case. I was pointed to no similar case in which a twenty year sentence was imposed on a first offender courier who imported this amount of heroin. I view twenty years as much too high in all of the circumstnaces and well outside the appropriate range.

60Having considered the caselaw reviewed above and all of the circumstances of this offence and this offender, I conclude that a fit sentence is fourteen and a half years less time served by way of pre-trial custody. In my view, such a sentence gives effect to the principles set out in Sidhu. It appropriately situates this offence and offender in the range of sentences imposed or upheld by other courts, including by the Court of Appeal in Sidhu, Kwok and Thambiah.

61As of the sentencing hearing on November 1, 2016, Mr. Zahor had served 118 days. As of today, he has served 156 days. He should be credited at a rate of 1.5:1 for this time, resulting in a credit of 234 days. This is to be reduced from the sentence of fourteen and a half years.

e) Ancillary Orders

62The Crown seeks a s. 109 order. Mr. Rados takes no issue with such an order. Under s. 109(1)(c), a s. 109 order is mandatory following a conviction under s. 6(1) of the Controlled Drugs and Substances Act. In accordance with s. 109(2) it shall be for ten years.

63The Crown also seeks a DNA order under s. 487.051(3)(b). Mr. Rados takes no issue with such an order. I conclude that it is in the best interests of the administration of justice to make the DNA order requested.

64Finally, a forfeiture order is appropriate and will be made.

Conclusion

65The sentence imposed is fourteen and a half years less credit of 234 days.

66There will be a s.109(2) order, a DNA order and a forfeiture order.

Woollcombe J.