COURT FILE NO.: CRIMJ(F)1174/18

DATE: 2020 02 27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

D. Quayat, Crown Counsel

• and -

MAC ANTHONY OJUKWU

P. Slansky, Counsel for the Accused

Accused

HEARD: January 31, 2020

REASONS FOR SENTENCE

LEMAY J

1After a five day jury trial, Mr. Mac Anthony Ojukwu was convicted of three offences under the Controlled Drugs and Substances Act. The offences were one count of importing heroin, a controlled substance, one count of conspiracy to import heroin and one count of possession for the purposes of trafficking in heroin.

2The offences flow from a delivery that Mr. Ojukwu received from FB Canada Express on July 17^th, 2017. The package that Mr. Ojukwu received contained 203.5 grams of heroin. For these offences, the Crown seeks a sentence of seven (7) years. The Defence argues that the accused should be sentenced to five (5) years.

3I am now required to impose sentence.

Facts

4A consideration of the facts starts in 2015. The offender testified that he was approached by a man named Oko and asked to pick up some packages for Oko. The offender testified that he thought these packages contained gold and diamonds, and that Oko wanted the offender to receive the packages so that Oko could avoid customs duties. The offender was to be paid $1,000.00 for receiving these packages.

5The offender accepted Oko’s proposition. The offender testified that he had some communications with Oko, and received a false driver’s licence with which to retrieve the packages. The first package came in 2015, and the offender received that package without incident. The Crown acknowledges that it cannot be shown beyond a reasonable doubt that there was heroin in this first package.

6The offender was told that a further package was on its way in July of 2017. On July 11^th, 2017, the Canada Border Services Agency (“CBSA”) intercepted this package, and discovered the heroin. The RCMP then decided to make a controlled delivery to the package’s ultimate destination. The package was addressed to the name on the false driver’s licence that the offender had received from Oko.

7The package was delivered on July 17^th, 2017, and the offender was arrested and charged with the three offences I have set out above under the Controlled Drugs and Substances Act. He was also charged with one count of knowingly using a forged document, contrary to section 368(1)(a) of the Criminal Code.

8At the commencement of trial, the offender pled guilty to the charge of knowingly using a forged document, and not guilty to the remaining charges. The jury found the offender guilty of all of the charges.

9The question of willful blindness was not left to the jury. Therefore, based on my instructions to the jury, and their verdict, it is clear that the jury found beyond a reasonable doubt that the offender knew that the packages contained a controlled substance.

10This summary of the facts leaves two questions that were argued by the parties and that I will address in the course of my reasons, as follows:

a) Whether the offender knew the substance was heroin rather than some other controlled substance.

b) Whether the offender was a courier or had a more significant role in the importation scheme.

The Offender

11A pre-sentence report was not requested or prepared in this matter. However, I have some information about the offender from both his testimony at trial and from the detailed letters that were filed from the offender’s community.

12The offender was born in Cameroon and is currently 42 years old. He is a citizen of Nigeria, and attended post-secondary education in Nigeria. He took a two year business management course, but dropped out of school.

13The offender has been in Canada for a number of years. In 2013, he started living with his current partner. As of trial, they had two children together, while his partner has two children from a previous relationship. One of those children also lives with the offender and his partner. The other child of his partner currently lives in Swaziland.

14In June of 2014, one of the offender’s children was born, after his partner had a difficult pregnancy. The child was born prematurely, and the family was required to spend significant time at Sunnybrook. As a result, the offender missed a significant amount of time from work and lost his employment.

15The offender did not have full time work between August of 2014 and December of 2017, although he may have had some on and off work during this time period. He became employed again in December of 2017, and was still employed at the same place at the time of the trial in November of 2019.

16At the sentencing hearing, seven letters of support were filed by the offender. These letters come from his partner, a number of members of his church community, a close friend of his partner’s and one of the pastors at his church.

17All of these letters paint a picture of a man who is devoted to his partner and his children, cares for other members of the community and participates fully in community life. It is clear from these letters that the offender is well regarded amongst his community and makes a significant contribution to that community.

Mitigating Factors

18The mitigating factors in this case are:

a) The offender is a mature first-time offender.

b) The offender was regularly employed on a full-time basis both before and after the offence, although he was not employed at the time of the offence.

c) The offender participates in a positive way in his community and has the support of his community.

d) The offender has a close and loving relationship with his partner and children, and they are supportive of him.

e) The offender, at the sentencing submissions spoke and indicated that he accepted the jury’s verdict and that he was apologizing to both the Court and to his family and friends. There is, therefore, some level of remorse.

19Counsel for the offender also argued that the commission of this crime was an aberration, driven by the offender’s need to support his family. Given the fact that the offender was unemployed between 2015 and 2017, his partner was on ODSP benefits, and they had small children, I accept that the offender committed this crime in order to obtain monies for the necessities for his family.

20Based on the reasoning in R. v. Hamilton et. al. (2004 CanLII 5549 (ONCA) at paragraphs 138 and following), financial motivations for committing a crime can sometimes be a mitigating factor, while other times they are an aggravating factor. In this case, I accept that the offender was committing this crime in order to obtain necessities for his family, and that some level of mitigation to the sentence on account of this fact is appropriate.

21Although rehabilitative potential is very much a secondary factor on a case such as this, I would note that the offender has demonstrated an ability to obtain and retain employment. That fact, combined with his strong family and community supports, suggest that his prospects for rehabilitation are strong.

Aggravating Factors

22The aggravating factors in this case are more complex. Crown counsel argued that the following factors were aggravating:

a) By his own admission, the offender knew that he was doing something wrong by at least engaging in conduct that would assist Oko in evading taxes.

b) Heroin is a very harmful drug, and the amount imported is not insignificant.

c) The offender was communicating information at the behest of members of the conspiracy to other members of the conspiracy. From this fact, the Crown asks me to conclude that the offender was more than a mere courier.

d) The offender picked up this package in the company of his wife and child, thereby exposing them to the violence that comes with the drug trade.

23I accept that the first two points raised by the Crown are aggravating factors. The other two factors are more complex, and I will discuss each of them in turn.

24In order to resolve these two issues, I must start by considering whether the offender knew he was importing heroin. As I have noted above, the jury did not believe the offender’s testimony that he was importing gold and jewels, and it did not leave them with a reasonable doubt. The jury was convinced beyond a reasonable doubt that the accused knew that he was importing a controlled substance. However, the jury instructions made it clear that the jury did not need to be persuaded beyond a reasonable doubt that the offender knew the technical name for the substance or that it was heroin. As a result, given the principles set out in R. v. Ferguson (2008 SCC 6), I must come to my own conclusions about whether the offender knew that there was heroin in the package. In this respect, I note that the offender is not entitled to the most favourable interpretation of the jury’s verdict (see R. v. Asl 2017 ONSC 2055).

25In my view, it is clear that the offender knew what was in the packages. His version of events was not believed, which means he knew that he was importing a controlled substance. At that point, there is simply no evidence from which I can conclude anything other than that the offender knew he was importing heroin. This is not a case where the offender claimed to be importing a different controlled substance, or thought he was importing a different controlled substance. This is a case where the offender denied importing a controlled substance, and was simply not believed. Indeed, there was no suggestion in argument of what other drug the offender could have been importing and no evidence on which to make that argument.

26In R. v. Sidhu (2009 ONCA 81), the Court of Appeal noted that, where an offender takes reasonable steps to determine the nature of the drug and is duped, this will serve as a mitigating factor. However, in this case, there is no evidence that the offender took reasonable steps to determine the nature of the drug.

27This brings me to the question of whether the accused was a mere courier or was something more than that. This issue was considered in detail by Hill J. in R. v. Holder (1998 CanLII 14962 (ON SC), [1998] O.J. No. 5102) where he stated (at paragraphs 34 and 35):

34It is not apparent from the verdict of the jury as to whether Ms. Holder was a courier or a principal acting on her own behalf. This is an issue which frequently arises in cases involving unlawful importation of a narcotic or a controlled drug or substance. If indeed the offender is a courier, it is seen uniformly as being a mitigating circumstance in sentencing. In these circumstances, the accused is viewed as a lesser player it the organization, an employee, a “runner”, or a “mule”. A principal on the other hand, is one who is a more active participant, more substantially involved, likely to receive more profit and certainly more intricately involved in domestic sub-distribution of the narcotic or controlled substance.

35As stated in R v. Bishop (April 24, 1998), Hill J. (Ont. Gen. Div) (unreported) at pages 4-5, the appropriate starting reference point is that a convicted importer is a principal. This is a presumption that can be rebutted by an accused individual. The facts relating to the circumstances of the importation are, of course, peculiarly within the knowledge of the accused. The presumption that the accused is acting on her own can be rebutted by proof on a balance of probabilities, pursuant to s.724(3)(d) of the Criminal Code.

28It is up to the offender to demonstrate that he is a mere courier rather than being a principal. He must demonstrate this fact on a balance of probabilities, as it is a mitigating factor if the offender can establish it.

29I am persuaded that the offender was a mere courier for the following reasons:

a) The amount of money that the offender received, $1,000.00, was a very small amount compared to the street value of the heroin, which was between $20,000.00 and $80,000.00, depending on how it is sold. Unlike the case in Asl, supra, this is not a case where the offender was receiving a significant portion of the profits.

b) Although the offender was sending e-mails back and forth with other members of the conspiracy, there was nothing in those e-mails that would suggest the offender had any more involvement in this conspiracy other than as a courier.

c) More generally, there was no other evidence to suggest that the accused was engaged in the drug trade beyond being a courier.

30As a result, I find that the accused is a courier and entitled to the mitigation that flows from the fact that he was at the very lowest end of the conspiracy’s hierarchy.

31The final issue to consider is whether the fact that the offender was with his partner and child when he picked this package up is an aggravating factor. Crown counsel argues that the drug trade is often accompanied by violence and that the offender took his wife and young child into a situation where they could have been exposed to violence.

32I reject this as an aggravating factor in this case. There are cases where a courier crossing a border with their children will be seen as an aggravating factor. See, for example, R. v. Grant (2015 ONCJ 751) and R v. Clarke (2019 ONSC 5868). However, in those cases, the courier was using the child to reduce the chance of detection. In this case, any risk of potential violence is far more speculative and cannot be sustained especially on the reasonable doubt standard. I do not view this as an aggravating factor.

Purposes and Principles of Sentencing

33The statutory principles and purposes of sentencing in a case like this are set out in section 718 of the Criminal Code and section 10 of the CDSA. Given that the accused knowingly imported these drugs into the country, the principles of general deterrence and denunciation are the key principles to be considered.

34Both the Crown and Defence provided me with cases on the appropriate sentencing range. The case-law is, unfortunately, replete with sentencing decisions for the importation of heroin. I will set out the relevant principles and sentencing ranges from those cases.

35First, in Sidhu, supra, the Court of Appeal noted that heroin is the most pernicious of hard drugs and will attract the longest sentences. In Sidhu, the courier brought in 21 pounds of heroin. The Court of Appeal stated that first time offenders who import large amounts of heroin can expect sentences in the 12 to 17-year range.

36Second, in R. v. Onyedinefu (2018 ONCA 795), the offender imported 146 grams of heroin. In that case, the offender had a previous criminal record and the financial motivations were an aggravating factor. The offender was sentenced to six years imprisonment.

37R. v. Ifejika (2013 ONCA 531) was a case where the offender imported 500 grams of heroin, which is more than double the amount in this case. The offender received a sentence of seven years and, on the reported decision it is not clear whether there were any significant mitigating factors.

38As I have noted, the range for sentencing for these offences is quite narrow and well-defined. In the course of argument, I suggested to the parties that the range was five to eight years. Crown counsel accepted this range, while Defence counsel suggested that it was more likely five to seven years. Either way, the range of sentences for this type of crime is very narrow.

39In this case, given the substantial mitigating factors and the lack of much, if anything, in the way of aggravating factors other than the nature of the substance, I am of the view that a sentence at or near the bottom end of the range is appropriate for this offender. Counsel for the offender quite properly conceded that there were no exceptional circumstances in this case that would justify a sentence below the usual range.

The Sentence to be Imposed

40Based on the foregoing reasons, the following sentences will be imposed on the offender:

a) Count 1- five years

b) Count 2- five years, concurrent to count 1

c) Count 3- five years, concurrent to count 1

d) Count 4- a conditional sentence.

41In addition, there will also be a weapons and firearms prohibition order pursuant to section 109 of the Criminal Code.

42The Crown asked for a DNA order. The defence took no position on whether such an Order was necessary. Given my view on the likely rehabilitative potential for the offender, I am not persuaded that a DNA order is necessary, and I decline to make one.

43The sentence is to be reduced by four (4) days to take into account the offender’s pre-sentence custody.