COURT FILE NO.: CR-19-90000075-0000/CR-19-90000265-0000 DATE: 20190523 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Jason Mitschele & Kiran Gill, for the Crown

-and-

CHUKWUEMEKA MADUMELU Lisa Jorgensen, for the Accused Accused

HEARD: April 26 & 29, 2019

B. DAVIES J.

REASONS FOR SENTENCE

A. Introduction

[1] On February 2, 2019, Mr. Madumelu was found guilty by a jury of three counts of importing heroin into Canada and one count of possessing heroin for the purpose of trafficking. The jury acquitted Mr. Madumelu of one count of importing heroin into Canada. I will refer to these as the Toronto charges.

[2] While on bail for the Toronto charges, Mr. Madumelu was charged in Brampton with a number of other offences, including importing heroin into Canada, conspiracy to import heroin into Canada and failing to comply with his recognizance of bail. On April 26, 2019, Mr. Madumelu pled guilty before me to one further count of importing heroin into Canada, which I will refer to as the Brampton charge. The other charges on that indictment have been withdrawn by the Crown.

[3] The Crown argued that a global sentence of 19 years is appropriate in the circumstances of this case. The Crown also seeks a DNA data bank order and a 10-year weapons prohibition order pursuant to s. 109 of the Code.

[4] The defence argued that a global sentence of 12 years is appropriate. The defence also argues that Mr. Madumelu should be granted a total of 18 months credit for pre-trial custody, for strict house arrest bail and for the hardship he experienced as a result of the delay in the proceedings.

[5] For the reasons that follow, I find that a global sentence of 15 years is appropriate having regard to principles of denunciation and deterrence as well as the totality principle. In terms of credit, Mr. Madumelu will be granted 65 days credit for the time he spent in pre-trial detention and 400 days for the time he spent on bail with restrictive conditions, which takes into account the length of the delay and the impact the bail conditions had on him. No additional credit is appropriate in the circumstances of this case.

B. Facts in relation to the Toronto charges

[6] Mr. Madumelu was found guilty of importing three packages into Canada between January 18 and February 10, 2015. The packages were intercepted by the RCMP and found to contain a total of 4.992 kilograms of heroin.

[7] The first two packages were shipped from Pakistan to Stanley Dyson at 412 Roncesvalles Ave., mailbox 152 in Toronto. Both packages contained heroin hidden inside the hollow handles of small metal surgical instruments. In total, RCMP removed 4.634 kilograms of heroin from these packages. They placed a control sample of 1 gram of heroin in each package and an undercover officer delivered the packages to Mr. Madumelu on January 22, 2015.

[8] The heroin contained in the first two packages that were intercepted by the police would have been worth between $370,000 and $508,000 if it was sold by the kilogram in Canada If it was sold by the "point" it would have been worth between $924,000 and $2.31 million in Canada.

[9] Mr. Madumelu was arrested on January 26, 2015 and released on bail.

[10] During a search of Mr. Madumelu's residence following his arrest, the police located a fake driver's license in the name of Stanley Dyson but with Mr. Madumelu's photograph.

[11] Mr. Madumelu testified and acknowledged that he rented mailbox 152 at 412 Roncesvalles Ave. on January 8, 2015 using that fake driver's license.

[12] The police never located the two packages that was delivered to Mr. Madumelu on January 22, 2015.

[13] A third package was intercepted by the police after Mr. Madumelu's arrest. It was shipped from Kenya to Edward Williams at 915 - 68 Bramalea Road, Brampton. The police found 358 grams of heroin wrapped in plastic and glued between the layers of cardboard in the bottom flaps of the shipping box.

[14] The heroin contained in this package would have been worth between $42,000 and $56,800 if it was sold by the ounce in Canada. It would have been worth between $71,000 and $179,000 if it was sold by the point in Canada.

[15] The police found a fake driver's license in the name of Edward Williams but with Mr. Madumelu's picture in the jacket he was wearing at the time of his arrest.

[16] The police searched one of Mr. Madumelu's cell phones incident to his arrest. They found a text message that Mr. Madumelu received the morning of his arrest from someone listed in his contacts as NewMmmmmmm that contained the address and phone number on the shipping label for the third intercepted package. They found a second text message that Mr. Madumelu received from the same contact with the tracking number for the third intercepted package.

[17] Mr. Madumelu testified at trial. He said that in late 2014 and early 2015, he was running two businesses. First, he was importing sex toys from China, repackaging them and sending them to his cousin in Nigeria for resale. Second, he was running a delivery business. He would pick up goods and packages and deliver them to his customers. Mr. Madumelu testified that he rented mailboxes across the Greater Toronto Area using fake identification. He testified that he used the mailboxes for his own importing business and he would give his customers the information for various mailboxes to use for their own purposes. He would then pick up packages that were shipped to his mailboxes for his customers and deliver them for a fee.

[18] Mr. Madumelu testified that he did not arrange for any of the intercepted packages to be shipped to Canada. He acknowledged that he picked up the two packages addressed to Stanley Dyson. He testified that he picked up those packages for an individual named Newman (in his phone contacts as NewMmmmmmm) but did not know the packages contained heroin.

[19] Mr. Madumelu acknowledged that NewMmmmmmm sent him information about the third intercepted package by text on January 26, 2015. He also acknowledged that he used the tracking number he received to track the delivery of that package on the Canada Post website. Mr. Madumelu was intending to pick up the package but his plans were interrupted by his arrest. Again, Mr. Madumelu testified that he did not know this third package contained heroin.

[20] Given the jury's verdict, they must have rejected Mr. Madumelu's testimony that he did not know the packages contained heroin. The jury must also have rejected Mr. Madumelu's testimony that he had no involvement in arranging for the packages containing heroin to be shipped to Canada. In other words, the jury must have found that Mr. Madumelu contributed at some level to a joint effort to import the packages into Canada and knew or was wilfully blind that the packages contained heroin. However, it is not obvious from the jury's verdict what findings, if any, they made about Mr. Madumelu's level of involvement beyond that he contributed to a joint effort to bring heroin into Canada.

[21] For the purpose of sentencing, the Crown urges me to find that Mr. Madumelu was more than a courier; that he rented the mailboxes to facilitate the shipments of heroin and knew the packages contained heroin. The Crown argues that Mr. Madumelu is somewhere in the middle of the organizational structure of the importation scheme.

[22] Counsel for Mr. Madumelu argued that he was a courier who transported the heroin from the delivery point to those who would be involved in distributing the heroin in Canada but did not play any other role in the importation scheme.

[23] For the purpose of sentencing, it does not matter whether Mr. Madumelu knew or was wilfully blind about the content of the packages he helped import. As the Court of Appeal for Ontario held in R. v. Sidhu, 2009 ONCA 81 at para. 17, "as a matter of principle and policy, we ought not to be sending a message to would-be couriers that if they wear blinders, they will receive a lower sentence than if they actually learned the nature and quality of the substances they are importing. In assessing the degree of moral blameworthiness, we see no meaningful distinction."

[24] Nevertheless, Mr. Madumelu's actual level of involvement in the importing scheme that gave rise to the Toronto charges could amount to an aggravating fact on sentencing. As a result, to the extent I find that he is more than a courier, I must be satisfied of that fact beyond a reasonable doubt; Criminal Code, s. 724(3)(e). I am not required to resolve factual disputes, such as this, in a manner that is most favourable to the accused: R. v. Roncaioli, 2011 ONCA 378. I can make factual findings based on the evidence presented at trial so long as they are not inconsistent with the jury's verdict.

[25] For the purpose of sentencing, I am satisfied beyond a reasonable doubt that Mr. Madumelu was more than a courier, but was somewhere near the bottom of the hierarchy in relation to the Toronto charges. There is no evidence that Mr. Madumelu communicated with anyone in Pakistan or Kenya to actually arrange the shipments. Nonetheless, I am satisfied that Mr. Madumelu obtained a number of fake identifications and set up a number of mailboxes using those fake identifications, including but not limited to the mailbox used for the first two intercepted packages, in order to facilitate the importation scheme.

[26] I do not accept his evidence that he set up the mailboxes to facilitate his own import/export business. While it is plausible that Mr. Madumelu might use a mailbox rather than his home address, or his mother's address, to receive shipments of sex toys, that does not explain why he set up multiple mailboxes or why he set them up using fake identification.

[27] Similarly, his testimony that he used various mailboxes for his delivery business is not convincing. If he was running a legitimate business collecting and delivering packages for clients, there is no reason for him to have mailboxes in multiple locations. That would decrease the efficiency of his business. There would also be no reason for him to set up the mailboxes using fake identification if his delivery business was legitimate. The only reasonable inference available from the evidence is that Mr. Madumelu set up the mailboxes to facilitate the importation of illegal items into Canada.

[28] There is also evidence that Mr. Madumelu sent text messages to two of his contacts (NewMmmmmmm and P6) with information about the mailboxes as well as instructions on which mailboxes to use for various deliveries. This demonstrates a level of involvement beyond simply picking up packages and delivering them to others involved in the operation.

[29] I am, therefore, satisfied beyond a reasonable doubt that Mr. Madumelu is not merely a courier for others involved in the importation of heroin into Canada. I am satisfied that he set up mailboxes to be used as part of the importation scheme and instructed others in the operation where shipments should be sent. He was also responsible for picking up the packages and delivering them to others who would sell or distribute the heroin in Canada. This makes him more than a mere courier. However, there is no evidence that he played any role in communicating with the suppliers overseas or in distributing the heroin in Canada. This suggests he was at the lower end of the organizational structure.

[30] In terms of the value of the imported drugs, the defence urges me to rely on the amount it would have been worth if it was sold by the kilogram or ounce in Canada. At trial, I heard expert evidence from Corporal Corcoran about the value of the drugs in Canada. Corporal Corcoran testified that it is unlikely that people who import drugs into Canada will sell those drugs at the gram or point level. He testified that the people who import the drugs are more likely to sell them in larger quantities to dealers who will cut the heroin with other substances to increase the volume for sale on the street.

[31] Regardless of which valuations are considered, there is no doubt that Mr. Madumelu was participating in a large-scale commercial operation. Whether the drugs were worth close to $2.5 million based on the price at the point level or closer to $500,000 based on the price at the kilogram or ounce level, this is a very significant amount of heroin being brought into Canada.

C. Facts in relation to the Brampton charge

[32] As set out above, Mr. Madumelu pled guilty to one additional count of importing heroin into Canada on March 1, 2018. Mr. Madumelu was on bail in relation to the Toronto charges at the time of this offence. As a condition of his bail, he was required to be in his house at all times except in the presence of his surety, unless going directly to or from school or for purposes of employment.

[33] On February 21, 2018, the CBSA intercepted and inspected a package from Pakistan that contained 30 laptop bags. The package was shipped to Richard Domond in Gloucester, Ontario.

[34] The CBSA officer cut open one of the laptop bags and found a white powdery substance. The shipment was turned over to the RCMP for further inspection. The RCMP found a total of 1.347 kilograms of heroin concealed in hidden panels of some of the laptop bags.

[35] If the 1.347 kilograms of heroin found by the RCMP was sold by the kilogram in Canada in March 2018, it would have been worth between $107,750 and $148,170. If it was sold at the point level, it would have been worth between $269,400 and $673,500.

[36] An international customs brokerage firm had been hired to facilitate the delivery of the package to an address in Toronto. An undercover RCMP officer posing as a representative of the brokerage firm called the number on file and arranged for the package to be picked up at the Air Cargo International warehouse in Mississauga.

[37] Two people picked up the package from the Air Cargo International warehouse on March 1, 2018. The RCMP conducted surveillance on the two people as they left the warehouse. About an hour later, the two people met Mr. Madumelu at a restaurant in Toronto. A short time later, the three of them drove to a self-storage facility. Mr. Madumelu and one of the other individuals carried the package into the self-storage facility where they were both arrested.

[38] The police searched Mr. Madumelu following his arrest. He was found in possession of a handwritten note, which contained the tracking number for the parcel, the address of the Air Cargo International warehouse, the email address of their contact at the customs brokerage firm and the phone number for one of the people who picked up the package.

[39] Mr. Madumelu was also in possession of a cell phone when he was arrested. The police seized the phone and obtained a warrant to search its contents. They found two photographs of two separate pieces of paper. Each photograph contained the name Richard Domond and the address in Gloucester, Ontario to which the package was addressed as well as the CBSA business number associated with the package.

[40] Mr. Madumelu admitted that he knew the package contained heroin.

D. Relevant legal principles

[41] Pursuant to s. 718.1 of the Criminal Code, the sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The determination of a just and appropriate sentence is a highly individualized exercise. It involves a consideration of the unique mitigating and aggravating factors as well as the applicable legal principles: R. v. Lacasse, 2015 SCC 64 at para 58.

[42] Both sets of charges are incredibly serious. Heroin is addictive and highly destructive. A number of older cases suggest that heroin is the most addictive and most dangerous of the hard drugs, which, in part, justifies the very long sentences imposed in heroin importing cases. This is no longer true in light of the proliferation of drugs like fentanyl and carfentanil. Nonetheless, there can be no doubt that the importation and trafficking of heroin has devastating effects on individuals and communities. Any sentence imposed must denounce this conduct in the clearest possible terms.

[43] It is also an important principle of sentencing that people who commit similar crimes in similar circumstances should be given similar sentences. Appellate courts have established sentencing ranges to help trial judges determine what sorts of sentences have been imposed in similar circumstances.

[44] In Sidhu (at para 14), the Court of Appeal for Ontario established a range for those convicted of importing heroin into Canada. In that case, the accused imported 9.56 kilograms of heroin into Canada from India and received an eight-year sentence. His sentence was increased to 14 years and nine months on appeal. In doing so, the Court set the following range to be applied on similar cases:

While we recognize that sentencing is not an exact science and that trial judges must retain the necessary flexibility to do justice in individual cases, 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.

[45] Of course, sentencing ranges are guidelines; they are not straitjackets nor hard and fast rules: Lacasse at paras. 57 and 60: R. v. Nasagaluak, 2010 SCC 6 at para. 44. There will be cases where the circumstances of the offence or the offender will justify imposing a sentence that is outside the established range.

[46] Given that the Toronto and Brampton charges are not factually or temporally connected, consecutive sentences are appropriate. I cannot, however, simply add together whatever sentence would be appropriate for each offence, no matter the result. Courts have recognized that adding together sentences that are themselves just and within the range can produce a sentences that is unduly long and, therefore, disproportionate. After determining the just sentence for each offence or set of offences, I must consider the total sentence and ensure that it is not harsh or disproportionate: Criminal Code, s. 718.2(c).

i. Positions of the Parties

[47] As set out above, the Crown takes the position that the appropriate sentence for the Toronto charges is 17 years: 12 years for the first two intercepted packages to be served concurrently; 8 years for the possession for the purpose of trafficking charges also to be served concurrently; and 5 years for the third package to be served consecutively. The Crown argues that the appropriate sentence on the Brampton charge is 8 to 9 years to be served consecutively to the sentence imposed in relation to the Toronto charges. This would bring the total to 25 or 26 years, which the Crown acknowledges would be excessive in the circumstances. Applying the totality principle, however, the Crown argues the appropriate sentence in this case is 19 years.

[48] The defence takes the position that the appropriate sentence for the Toronto charges is 12 years. The defence argues that the sentences for all the Toronto charges should be served concurrently because they are part of a single plan or scheme. In relation to the Brampton charge, the defence argues the appropriate sentence is 7 years. The defence acknowledges that the sentence for the Brampton charge should be served consecutively but suggests a 19-year sentence is disproportionate. Applying the totality principle, the defence argues the total sentence should be 12 years.

[49] The defence also argues that Mr. Madumelu is entitled to credit for the 43 days he spent in pre-trial custody at a rate of one and a half days credit for each day in custody as well as the approximately 1500 days he spent on strict house arrest bail. Finally, the defence argues that Mr. Madumelu is entitled to some credit for the hardship he suffered as a result of the delay in the proceedings. In total, the defence argues that Mr. Madumelu should be given 18 months of credit which would bring the balance of his sentence to 10 and a half years.

[50] Very different considerations apply in relation to the Toronto and Brampton charges. Each set of charges has different mitigating and aggravating factors. They also engage different legal principles. I will, therefore, consider the appropriate sentence for each separately having regard to the applicable mitigating and aggravating factors. At the end, I will consider the application of the principle of totality and the amount of credit Mr. Madumelu is entitled to receive in this case.

ii. Toronto Charges

[51] There are a number of aggravating factors in relation to the Toronto charges.

[52] First and foremost, the Toronto charges involved a large scale importation scheme. Mr. Madumelu has been found guilty of importing almost 5 kilograms of high quality heroin, ranging from 62% to 68% purity.

[53] Second, the Toronto scheme had some level of sophistication, involving mailboxes rented using fake identifications to distance Mr. Madumelu (and others) from the packages. As set out above, I find that Mr. Madumelu was more than a mere courier and was actively involved in the logistical arrangements required to bring the packages into Canada.

[54] Third, this was clearly a profit-driven commercial operation. Mr. Madumelu was not motivated to participate in the scheme by addiction issues of his own, for example.

[55] There are also a number of important mitigating factors.

[56] First, Mr. Madumelu, although more than a mere courier, was not that architect of this scheme. Mr. Madumelu would be entitled to an even shorter sentence if he was just a courier. Nonetheless, his position closer to the bottom than the top of the hierarchy of this organization supports a sentence closer to the bottom of the established range. Similarly, although he clearly stood to profit from his involvement, his financial gain would have been commensurate with his position near the bottom of the organizational structure.

[57] Second, Mr. Madumelu has tremendous support in the community. I received 17 letters of support from Mr. Madumelu's friends and family. They all know about Mr. Madumelu's offences and continue to support him. A summary of the letters will not do them justice. Each letter speaks of Mr. Madumelu in very positive terms. They describe Mr. Madumelu as compassionate, caring, generous, supportive, helpful, humble and dependable. Many talk about how Mr. Madumelu has supported them in their times of need. They describe his devotion to his aging parents and his young daughter. Some talk about his struggles with depression and anxiety while on house arrest. Many of them talk about the regret Mr. Madumelu has expressed to them about his involvement in the offences for which he has been found guilty.

[58] Perhaps the most powerful letter was written by Mr. Madumelu's domestic partner. She writes about the struggles Mr. Madumelu had finding work after he was convicted of fraud many years ago. She describes Mr. Madumelu as having a strong belief that a man must provide for his family. This has been a constant struggle for him as he looked for employment opportunities. She explained that after the birth of their daughter, she went back to work early to financially support the family. She writes that this broke Mr. Madumelu's heart because he wanted to be the one providing for her and their child. Nonetheless, he devoted himself to raising their daughter and supporting her as she returned to work.

[59] There is no doubt that Mr. Madumelu has made a significant contribution to his community, notwithstanding his involvement in importing drugs into Canada. Each of these letters is a powerful reminder that we are all much more than the worst things we have done. They also are clear evidence that Mr. Madumelu will have tremendous support when he is released from prison, which bodes well for his reintegration and rehabilitation.

[60] Finally, although Mr. Madumelu has a criminal record, it is from nine years ago and is unrelated to the current charges. This will be the first time that Mr. Madumelu has received a custodial sentence of any sort.

[61] Having regard to the amount of heroin imported, Mr. Madumelu's role in the importation scheme as well as the mitigating factors, I am of the view that a global sentence of 12 years is appropriate for the Toronto charges. This is within the range set by the Court of Appeal in Sidhu and comparable to sentences imposed in relation to other large importation cases that went to trial. For example, in R. v. Boateng, [2013] O.J. No. 3179 (S.C.J.), Durno J. imposed a 12 year sentence following a trial in which the accused imported 2.38 kilograms of heroin into Canada. In R. v. Zahor, [2016] O.J. No. 6367 (S.C.J.), Woollcombe J. imposed a 14-and-a-half-year sentence following a jury trial in which the accused imported 11.95 kilograms of heroin into Canada. In R. v. Igbinoba, [2015] O.J. No 6331 (S.C.J.), Ricchetti J. imposed an 11-year sentence following a jury trial in relation to an accused who imported approximately one kilogram of heroin into Canada. The circumstances of each of these cases, and the others that counsel referred to during their submissions, are at the same time similar to and distinguishable from Mr. Madumelu's case. I refer to these cases simply to show that a 12-year sentence for importing multiple kilograms of heroin is not outside the range of an appropriate sentence having regard to the need to denounce and deter such conduct.

[62] I am of the view that the sentences imposed for all the Toronto charges should be served concurrently. The packages were all scheduled to arrive in Canada within a very short period of time. I am satisfied that Mr. Madumelu was involved in importing all three packages with the same people - NewMmmmmmm and P6. They all seem to be part of a single scheme to import heroin into Canada.

[63] I have considered whether, as the defence suggested, a sentence below the range would be appropriate. There are no exceptional or extenuating circumstances here that would justify departing from the range set in Sidhu for the Toronto charges.

iii. Brampton Charge

[64] As with the Toronto case, there are a number of relevant mitigating and aggravating factors.

[65] Dealing first with the aggravating factors, this charge also involves a significant amount of heroin - 1.347 kilograms - and a more sophisticated scheme than was employed in relation to the Toronto charges. The name on the packages did not match the names of the people who picked up the shipment. Mr. Madumelu used an international customs broker to coordinate the delivery and had someone else collect the package and deliver it to him. A self-storage facility was going to be used to store the heroin. These steps all appear designed to distance Mr. Madumelu from the shipment and suggest that Mr. Madumelu was more involved in this operation than the Toronto charges.

[66] The most significant aggravating factor, of course, is that Mr. Madumelu committed this offence while on bail for the Toronto charges and in breach of his bail conditions.

[67] In terms of the mitigating factors, the most significant is that Mr. Madumelu pled guilty to this offence at an early stage of the proceedings. Mr. Madumelu waived his preliminary inquiry in order to have this charge resolved before me in Toronto. In doing so, Mr. Madumelu took full responsibility for his conduct and saved the court significant resources.

[68] Mr. Madumelu also expressed his genuine remorse for his role in this importation scheme. In his statement to the Court, he apologized for his conduct. His shame and regret is also reflected in a number of the letters filed on his behalf. His father wrote that Mr. Madumelu apologized to his family and asked them to forgive him for his criminal behavior. I accept that Mr. Madumelu is sincere in his expression of remorse.

[69] Of course, the tremendous support that Mr. Madumelu has in his community previously described is a mitigating factor in relation to this charge as well.

[70] Having regard to the mitigating and aggravating factors that apply in this case and bearing in mind Mr. Madumelu's early guilty plea, I am of the view that the appropriate sentence for the Brampton charge is 7 years in custody. As there is no relationship between the two sets of charges, the sentence imposed for Brampton charge will be served consecutively to the sentence I impose in relation to the Toronto charges; R. v. Chisholm, [1965] 4 C.C.C. 289 (ONCA).

iv. Totality Principles

[71] As set out above, when imposing consecutive sentences, I must consider whether, having regard to the overall seriousness of the conduct and Mr. Madumelu's moral blameworthiness, a cumulative sentence of 19 years (12 years in relation to the Toronto charges plus 7 years in relation to the Brampton charge) is disproportionate or crushing. In my view, it is.

[72] I am very troubled by the fact that Mr. Madumelu committed the Brampton charge while on bail awaiting trial on the Toronto charges. This fact alone requires a sentence above the bottom of the range for a single importation charge.

[73] I am also mindful of the fact that Mr. Madumelu has only a dated, unrelated criminal record. This will be the first custodial sentence for Mr. Madumelu. And Mr. Madumelu has fully accepted responsibility for his participation in the Brampton charges.

[74] Given his positive prospects for eventual reintegration and rehabilitation, I do not want to impose a sentence that is so long that he loses hope for the future. I want him to be able to envision of a life after incarceration which will motivate him to engage in rehabilitative programs while in custody and commit himself to a pro-social life when released.

[75] For someone receiving their first term of imprisonment, a 19-years sentence would be crushing. In my view, a global sentence of 15 years is proportionate to the gravity of the offences and Mr. Madumelu's moral culpability. It is long enough to satisfy the principles of denunciation and deterrence, and to reflect the fact that Mr. Madumelu chose to re-offend while on bail, but is not so long as to be crushing.

v. Credit

[76] As set out above, Mr. Madumelu argues that he should be given credit for his pre-trial detention, for the time he spent on house arrest bail and to account for the hardship he experienced as a result of the delay in his case.

[77] Mr. Madumelu spent 43 days in pre-trial custody. I am prepared to grant Mr. Madumelu enhanced credit of one and a half days for each day he spent in pre-trial custody for a total of 65 days. This will compensate Mr. Madumelu for the loss of eligibility for parole or early release during pre-trial detention: R. v. Summers, 2014 SCC 26 at paras. 68-69.

[78] Mr. Madumelu also spent approximately 1500 days on strict house arrest bail conditions. He seeks credit for this time at a rate of 1 day for every 4 days he spent on bail. The Crown argues that Mr. Madumelu should be given little or no credit for this time because his bail was varied from time to time to relax the conditions.

[79] In R. v. Downes, [2006] O.J. No. 555 at para. 29 (C.A.), Rosenberg J.A. held that "time spent on stringent pre-sentence bail condition, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence." As a result, trial judges must consider the time spent on bail under house arrest in determining the length of the sentence. There is no formula for calculating the appropriate credit to be given for time spent on house arrest bail. Rather, the amount of credit will depend on the length of time spent on house arrest bail, the stringency of the conditions, the impact of those conditions on the offender's liberty and the ability of the offender to carry on normal relationships, employment and activities; Downes, para. 37.

[80] I accept that Mr. Madumelu has been on stringent bail conditions since his arrest. The conditions were relaxed from time to time. For example, he was permitted to travel to Nigeria for a short period of time for a family wedding. He was also permitted to leave the house to work or attend school. However, given Mr. Madumelu's criminal record, he was unable to find work. And he was not able to afford to attend school. As a result, the bail has functioned as strict house arrest despite the variations. A number of the letters of support filed confirm that the bail conditions have had a significant emotional toll on Mr. Madumelu. I will, therefore, grant Mr. Madumelu 400 days credit for the time spent on house arrest bail. This amounts to 1-day credit for every 3.75 days Mr. Madumelu spent on bail, which is intended to account for the stringency of the conditions and the impact those conditions had on his liberty and security of the person interests.

[81] Mr. Madumelu will, therefore, receive a total of 465 days credit for his pre-trial detention and house arrest bail.

[82] Mr. Madumelu argues he should be given additional credit for the hardship he suffered as a result of the delay in the proceedings. I accept that Mr. Madumelu experienced significant stress, depression and anxiety as a result of having the charges pending for more than four years.

[83] Mr. Madumelu did not bring an application for a stay of proceedings on the basis that his rights under s. 11(b) of the Charter were violated. This is likely because much of the delay in this case was caused by the fact that Mr. Madumelu was refused assistance through Legal Aid Ontario and was unrepresented for two and a half years. At that point in time, a successful Rowbotham application was brought to secure Legal Aid funding for his defence. Nonetheless, Defence counsel argued that the legal aid process was confusing and Mr. Madumelu tried his best to provide the documentation required and, as a result, he should not be faulted for the delay. A full copy of the Legal Aid file relating to Mr. Madumelu's application was filed as an exhibit on sentencing, which documents ongoing communications between Mr. Madumelu and Legal Aid Ontario. However, in the context of the Rowbotham application, Dambrot J. found that Mr. Madumelu had not acted diligently in providing Legal Aid Ontario with information they needed to determine his financial eligibility: R. v. Madumelu, 2017 ONSC 7006 at para. 7.

[84] I do not have to resolve the issue of whether the delay with Legal Aid was the result of a lack of diligence, as Dambrot J. held, or an honest misunderstanding on Mr. Madumelu's part, as counsel now argues. Regardless of the cause of the delay with Legal Aid, it is clearly not the result of any state misconduct. There is no evidence here of any Charter breach or state misconduct that would justify additional credit, as was done in R. v. Nasagaluok and R. v. Boateng.

[85] As set out above, I have already awarded Mr. Madumelu credit for his prolonged time on house arrest bail. The concerns raised about the hardship occasioned by the delay have already been reflected and accounted for in the credit given for his house arrest bail and no additional credit is justified in this case.

E. Sentence Imposed

[86] I, therefore, impose the following sentence:

Indictment CR-19-9-75 (Toronto charges)

Count 1: 10 years Count 2: 10 years to be served concurrently Count 3: 7 years to be served concurrently Count 5: 7 years to be served concurrently

Indictment CR-19-9-265 (Brampton charge)

Count 1: 5 years to be served consecutively to all other sentences

[87] A total of 465 days will be subtracted from his overall sentence.

[88] There will also be a 10-year weapons prohibition order pursuant to s. 109 of the Code, which is mandatory in this case.

[89] Finally, I am not satisfied that it is in the interests of justice to order Mr. Madumelu to provide a sample of his DNA. In declining to exercise my discretion under s. 487.051(3), I have considered the fact that Mr. Madumelu has only a minimal and dated criminal record. I have also taken into consideration the nature and circumstances surrounding the commission of these offences.

B. DAVIES J. Released: May 23, 2019