R. v. Oduro, 2022 ONSC 530

COURT FILE NO.: CR-18-00001298-0000

DATE: 2022 01 24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

R. Ward and E. Taggart, for the Federal Crown

• and -

SAMUEL ODURO

S. Safieh, for Samuel Oduro

Sentencing: January 24, 2022

REASONS FOR SENTENCE

MCSWEENEY J.

Overview

1On July 6, 2017, Mr Oduro was arrested by police, who found 95.6g of cocaine in his car. He was tried by jury on one count of possession of cocaine for the purpose of trafficking. He acknowledged when he testified at trial that the drugs found in his car were his, and that he had purchased them for his personal use. On September 23, 2021 the jury found Mr Oduro not guilty of trafficking, but guilty of the included offence of possession of cocaine.

2Sentencing was originally scheduled for November 25, 2021, but was adjourned to January 17, 2022 due to unavailability of Crown counsel. On January 17, 2022, due to Court staff unavailability during winter storm conditions, the sentencing was adjourned to today January 24, 2022.

3I have now heard submissions and reviewed the materials filed. Mr. Oduro addressed the Court briefly at the conclusion of submissions before me today.

Circumstances of the Offender and the offence

4No PSR was requested or ordered in this case, however Mr. Oduro’s testimony regarding his background, as well as the testimony from his fiancée, Ms. Vanessa Asuamah, was not disputed with respect to his background.

5Samuel Oduro was born in October 1989. Mr Oduro is one of four children, and the only son, of hard-working parents who immigrated to Canada from Ghana in West Africa. He has two younger sisters and one older sister. After finishing high school in Brampton Mr. Oduro moved to the Peterborough area to attend a community college program. He did not finish the program, dropped out, worked for a while, but felt he did not fit in with what he referred to as the “mostly white” demographic in the Peterborough area.

6He then moved back in with his parents Brampton and his two younger sisters. Over the next few years he worked in what he described as “dead end jobs”, including agency work, and factory jobs. By late 2013 he started using marijuana and began to “dabble” in cocaine. His use was first social and recreational, then escalated over the following years to a heavy use of cocaine.

7At the time of his arrest in July 2017, Mr Oduro was working as a line cook at Moxie’s restaurant and using cocaine heavily, almost every day of the week.

8Filed by the defence on sentencing were three letters, which I have reviewed: from Jeanette Oduro, Mr Oduro’s sister; from Nick Campanaro, General Manager at Moxies restaurant where Mr. Oduro works, and Alex Gibbs, Operations Partner also at Moxies.

Impact on Victim and/or Community

9Cocaine is a dangerous drug, which causes harm to society in direct and indirect ways. When he was purchasing and using cocaine, Mr. Oduro participated in that illegal economy, and contributed to those harms by doing so.

10As Crown counsel pointed out in her submissions, other harms relating to cocaine use include the additional burden on community resources such as hospitals and the police; and the risks posed to others when someone is operating under the influence of cocaine, such as while driving.

11In this case, potential harms include the fact that, as Mr. Oduro testified, he kept a significant amount of cocaine in the family home, where he lived with his parents and two younger sisters. The danger posed by concealment of dangerous drugs in a family home became real for Mr. Oduro’s family, as described by his sister, when she lived through the terrifying experience of having a search warrant suddenly executed by the police on the family property.

Legal Parameters

12Pursuant to the Controlled Drugs and Substances Act, the offence of possession of a controlled substance carries a maximum sentence of 7 years imprisonment.

Position of the parties and case law

13Both Crown and Defence submit that a custodial sentence is not required in this case in order to achieve the primary objectives of sentencing, which in this case are denunciation and general deterrence.

14The Crown’s position is that the appropriate sentence in this case is an 18-month conditional sentence order. The Crown points to the following factors:

a. The cocaine which was seized is an addictive, dangerous and insidious drug, and the amount in Mr. Oduro’s possession was extremely high;

b. If Mr. Oduro had an addiction, the defence did not file evidence of treatment or specific steps to address it;

c. Mr Oduro has positive, supportive, ongoing relationships with his family and his girlfriend.

d. Mr. Oduro has no criminal record.

15The Defence proposes a suspended sentence followed by one year probation. The defence highlights the following factors as mitigation:

a) Mr. Oduro was arrested without incident. He was compliant throughout.

b) He is a first time offender

c) He has spent more than 4 years on bail under his mother’s supervision, which required him to live at home with his parents; he has been compliant with his bail conditions.

d) The amount of delay between arrest and sentence, not including the COVID pandemic period, is approximately 32 months, which is longer than the “ceiling” set in the SCC Jordan decision.

e) Mr Oduro has maintained steady full-time employment at Moxie’s since his arrest, and he has been promoted to increasingly responsible positions. His employers are very satisfied with his progress.

f) Mr Oduro was prepared to plead to simple possession

g) Mr. Oduro was suffering addiction issues upon his arrest. He has since been able to beat his dependencies through church, and his very closely knit family, as well as his fiancee, Vanessa Asuamah.

h) Mr. Oduro has strong community support from his family, his partner, his employer and his community.

16I have reviewed the case law provided by the parties and listened carefully to their submissions in support of their positions. The case law gives a broad range of sentences for possession of cocaine, summarized and referenced by Boswell J at paragraph 32 of R v Long, 2021 ONSC 4747 as falling “between a discharge on the low end and six months in custody on the high end”, depending on the circumstances of the offender and the specifics of the offence.

17I agree that in this case, a non-custodial sentence served in the community, with sufficiently strict conditions, will achieve the denunciation and deterrence objectives.

18The Crown submitted, and I agree, that a suspended sentence not appropriate in view of the significant quantity of cocaine involved.

Principles of Sentencing

19I have considered the principles of sentencing set out at s. 718, s. 718.1 and s. 718.2 (iii.1) of the Criminal Code. I have also considered s. 718.2(b) which provides that a sentence should be similar o sentences imposed on similar offenders for similar offences committed in similar circumstances, and ss. 718.2 (d) and (e) requiring the court to consider alternative sanctions to imprisonment.

20In arriving at a fit sentence I must consider mitigating factors in the circumstances. I must also consider the impact of the offence on the community, as well as other aggravating factors.

Analysis

21I have considered the submissions of both counsel as to the mitigating and aggravating circumstances and the appropriate range of sentencing.

22With respect to the aggravating factors, the most significant aggravating factor is the amount of cocaine, which is a dangerous and addictive drug. 95.6 g, over 3.5 ounces, with a value of between $4,000 and over $11,000 if sold at street level. In the sentencing case law, this is a volume of cocaine usually found in sentencing decisions for possession for the purpose of trafficking. Although this is a case of simple possession, the magnitude of the amount of cocaine seized requires consideration as a significant aggravating factor.

23The mitigating factors in this case are several. They include the fact that Mr. Oduro is a first-time offender.

24I also consider that he cooperated with the police at the time of his arrest in July 2017. He has also adhered to his bail conditions during the four and a half years since that time.

25Although I do not agree with the defence submission that the length of time between arrest and trial creates a Jordan-based entitlement to reduction of sentence, I do find that Mr. Oduro has demonstrated his rehabilitative commitment consistently for four and a half years since his arrest, and that this given that this is a very long time, it is itself an additional mitigating factor.

26I also consider that, well before the start of trial, Mr. Oduro was prepared to plead guilty to the lesser and included offence of possession of cocaine, which is the only offence of which the jury found him guilty.

27I note also he has strong support of family and friends. As stated, he has no prior criminal record.

28The letters from his sister and his employers at Moxie’s describe how Mr Oduro has matured significantly since his arrest in 2017. They describe him as an exemplary employee and manager of staff. His sister describes the importance of family in his life, and their tight bond as siblings. Since his arrest, Mr. Oduro has returned to being an active member in his church and faith community.

29Also note that in addition to support of his parents and siblings, Mr Oduro is in a long-term relationship with Ms Vanessa Asuamah, who testified at trial. He has recently moved in with Ms. Asuamah, they now share their own apartment in Mississauga.

30The defence submits that Mr. Oduro was suffering from a cocaine addiction at the time of his arrest, and therefore that sentencing decisions dealing with addicted offenders are directly applicable. I have considered this submission carefully. I accept, of course, that the jury had a reasonable doubt whether Mr. Oduro intended to sell the cocaine found in his car.

31With respect to whether he was addicted to cocaine, however, the jury was not required to make that finding. I am not able to speculate whether they had a reasonable doubt because they believed Mr. Oduro’s testimony, or because they rejected his testimony but found a doubt based on the rest of the evidence which they did accept.

32I am therefore left to assess whether, on the evidence at trial, and the additional evidence filed on the sentencing, I can find on a balance of probabilities that Mr Oduro was addicted to cocaine at the time of his arrest.

33In support of a finding of addiction is Mr. Oduro’s own evidence. Mr Oduro testified that by the time of his arrest, his cocaine use had escalated to the point of addiction. His girlfriend testified that he had showed her cocaine and talked to her about using it prior to his arrest, and that she believed he was addicted.

34Notably missing from the materials on sentencing, however, are materials to assist me in understanding the steps taken by Mr. Oduro, over the last four and a half years, to overcome his drug use habits and “get clean”. Although Mr. Oduro testified at trial to recovering from cocaine addiction with the help of his faith and his family, the defence has filed no particulars to assist the court in making a finding as to extent of his cocaine addiction and the steps he took to overcome it, nor how his current wellness regimen has enabled him to stay clean since then.

35The evidence of Mr. Oduro’s cocaine use does not enable me to find on a balance of probabilities that he was an addict who could not help himself at the time of his arrest.

36On this issue I do find that at the time of his arrest, Mr Oduro was using cocaine heavily, was concealing that use from his family, and was managing to meet the demands of work and home life, albeit with some stressors. In other words, I accept that he was a high-functioning, heavy user of cocaine when he was arrested.

37I also accept and agree with Mr. Oduro’s statement to the court today that if he had not been arrested, his heavy use could have killed him.

38I can also find on the basis of the letters submitted on his behalf on sentencing, that in the years since his arrest, Mr Oduro has stopped using drugs, attends church with his family, works hard at Moxie’s, enjoys that work very much and motivates others to do so, and has become an increasingly relied-upon member of the restaurant’s management team.

39Mr Oduro is a Black man. R v Morris 2021 ONCA 680, a decision of a five-member unanimous panel of the Court of Appeal, sets out the guiding principles which may be considered by trial judges in sentencing when the individual before the court is a Black person.

40At paragraph 13 of the Morris decision, the Court of Appeal summarized its conclusions as follows:

• The trial judge’s task in sentencing is to impose a just sentence tailored to the individual offender and the specific offence in accordance with the principles and objectives laid out in Part XXIII of the Criminal Code;

• Social context evidence relating to the offender’s life experiences may be used where relevant to mitigate the offender’s degree of responsibility for the offence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing as described in s. 718;

• The gravity or seriousness of an offence is determined by its normative wrongfulness and the harm posed or caused by that conduct in the circumstances in which the conduct occurred. Accordingly, unlike when assessing the offender’s degree of personal responsibility, an offender’s experience with anti-Black racism does not impact on the seriousness or gravity of the offence;

• Courts may acquire relevant social context evidence through the proper application of judicial notice or as social context evidence describing the existence, causes and impact of anti-Black racism in Canadian society, and the specific effect of anti-Black racism on the offender;

• Consistent with the rules of admissibility, a generous gateway for the admission of objective and balanced social context evidence should be provided;

• The Gladue methodology does not apply to Black offenders. However, that jurisprudence can, in some respects, inform the approach to be taken when assessing the impact of anti-Black racism on sentencing.

41I conclude that Mr. Oduro’s status as a Black offender and the inherent racism in society, as described in the Morris decision, are circumstances I may take into account in applying the principles of sentencing in order to fashion a sentence that is appropriate for Mr. Oduro.

42In particular, I accept Mr. Oduro’s testimony, and that of his girlfriend Ms. Asuamah, that as a young Black man, growing up in a hard-working immigrant family, Mr Oduro struggled with lack of self-confidence and self-worth. Jeanette Oduro also described seeing her brother face these challenges.

43I am able to take judicial notice that Black individuals, in general, face manifestations of racism which can impede or inhibit equal access to community opportunities for economic and personal growth. The evidence establishes that Mr. Oduro experienced such challenges in the years leading to his cocaine use and arrest.

CONCLUSION

44Having considered all the materials that were filed on sentencing, case law and arguments of Crown and defence counsel, and the aggravating and mitigating factors described earlier, I conclude that in the circumstances of this offence and this offender, a conditional sentence of 6 months is appropriate, to be followed by 24 months’ probation.

Conditions of the Conditional Sentence

45A conditional sentence is a custodial sentence served in the community.

46Without strict conditions, which substantially restrict Mr. Oduro’s activities of daily life compared to his current routine, the principles of denunciation and deterrence are not properly addressed by a conditional sentence served in the community.

47Accordingly, Mr Oduro shall serve the first 30 days of his conditional sentence under house arrest.

48The following 90 days he may leave his apartment to attend church once a week. He may also leave the apartment to attend work at Moxie’s, but may work no more than 40 hours per week. He will observe a curfew each day starting at 11pm and until 6 am.

49For the final two months of his conditional sentence, he shall continue to observe that curfew and be in his apartment from 11 pm overnight to 6 am each following day.

50This means for the first 30 days, Mr. Oduro is not permitted to attend his place of work, although he may work virtually from home if such work is available.

51Most of the conditions of a conditional sentence which I am ordering were proposed jointly by both Crown and Defence.

52However I declined to order the proposed exception to permit Mr. Oduro to leave his apartment for a weekly excursion to purchase “necessities of life”. I note Mr. Oduro lives with his fiancée, who can assist him to purchase what he needs. I further note that during the last 22 months of the COVID-19 pandemic, services have become available by which any groceries, medication or other necessities may be obtained by delivery. It is therefore not necessary for Mr Oduro to leave his apartment other than for the exceptions already specified.

53I also consider that Mr. Oduro possessed a very large amount of cocaine when he was arrested, sufficient to harm or kill a large number of people if it had fallen into the wrong hands. It is therefore appropriate that he take some time during his sentence to give back to his community, in which many people continue to struggle with drug addictions. A period of 100 hours of community service will therefore also form part of the sentence.

54I have considered this matter carefully and conclude that the length of sentence, and the strict conditions imposed, strike the appropriate and proportionate balance in all the circumstances.

55I THEREFORE ORDER:

1. Samuel Oduro will serve a 6-month conditional sentence, during which he will be required to report within three working days to a conditional sentence supervisor and thereafter as directed by the Supervisor or designate.

2. In addition to the statutory conditions, conditions of his sentence will include:

a. For the first 30 (thirty) days, not to leave his residence in apartment #504, 5025 Four Springs Avenue, Mississauga, Ontario, except on the following conditions: to report to his Conditional Sentence Supervisor; to attend a scheduled medical or dental appointment for which he must have with him, written permission from his supervisor setting out the precise location and anticipated duration of the appointment; or, for medical emergencies involving himself or his immediate family members; or for any exceptional reason with the prior written approval of the supervisor.

b. For the second, third, and fourth months (from the 31^st to the 120th day of the conditional sentence period), the further exceptions to the above shall apply: Mr Oduro may leave his apartment between the hours of 6 am and 11pm, in order to travel to his place of work, to work a scheduled shift; and to attend in-person church services with his family, once each week. Mr Oduro shall obtain written permission from his Conditional Sentence Supervisor with respect to the specific hours he is permitted to be out of the apartment for the above purposes, and shall carry that with him when out of the apartment.

c. For the final two months of his conditional sentence, Mr Oduro shall remain subject to a daily curfew. He is to be in his apartment each evening by 11pm, and remain there until 6 am the following morning.

3. During his sentence Mr Oduro shall attend such counselling and addiction recovery, and or such other programs as may be required by his Conditional Sentence Supervisor; such attendance must be virtual during the first 30 days of his sentence, and thereafter may be in-person with approval of Mr. Oduro’s Conditional Sentence Supervisor.

4. Mr Oduro shall sign any releases necessary to allow his Conditional Sentence Supervisor to confirm his participation and progress in such counselling or programs. He shall provide proof of completion of any counselling or program attended.

5. Upon completion of his conditional sentence, Mr. Oduro shall be placed on probation for 24 months. He must report as directed to a probation officer and thereafter as directed by the probation officer or designate.

6. As part of his sentence, Mr Oduro shall perform 100 hours of community service, to be completed at least six months before the end of his probation period. He may commence performance of community service during or after the fifth month of his conditional sentence.

7. The community service shall require Mr. Oduro to work, whether directly or indirectly, to assist members of the community adversely affected by drug addiction.

8. Mr Oduro shall provide proof of completion of this community service to his probation officer within one week of completion of his 100 hours.

Ancillary Orders

9. The only ancillary order sought by the Crown is a forfeiture order, which is not opposed. Forfeiture order granted and to issue in form filed in court today.