COURT FILE NO.: CR-21-0891 DATE: 2024 03 06

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING S. Burdo and G. Corriveau for the Crown

- and -

Samuel Osei-Tutu C. Rudnicki and T. Donkor, for the Defendant

HEARD: January 25, 2024

REASONS FOR SENTENCE

L. SHAW J.

[1] Mr. Osei-Tutu was convicted by a jury on November 22, 2022, with one count of importing cocaine, contrary to section 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). He is before me for sentencing.

The Circumstances of the Offence

[2] Mr. Osei-Tutu was arrested at the Toronto Pearson International Airport on October 7, 2017, upon his return from the Bahamas. He was sent to secondary inspection and 2.8899 kg of cocaine was found in a false compartment in his luggage. It was agreed that the value of that amount of cocaine in Canada in 2017 ranged from $96,000 to $346,000 depending on how it was sold.

[3] The only issue for the jury was whether Mr. Osei-Tutu knew that there was cocaine concealed in a false compartment in his luggage.

[4] Mr. Osei-Tutu testified that he travelled to Trinidad on his own for a two-week trip leaving on September 25, 2017 from Toronto. He purchased his ticket from an acquaintance, Eppi, just days before his flight. Eppi gave him the name of a friend in Trinidad, Frenchie, and told him that Frenchie could get him anything he needed and would take care of him while in Trinidad.

[5] Mr. Osei-Tutu testified that while in Trinidad, he spent time sightseeing. He also spent time with Frenchie and another person he met. While in Trinidad, Mr. Osei-Tutu bought a new suitcase as his was broken.

[6] Mr. Osei-Tutu testified that he decided to travel to the Bahamas while in Trinidad; there was also evidence that this trip was booked before he left Canada. He flew to the Bahamas on October 6, 2017 and left to return to Canada the following day.

[7] Before and during his trip, Mr. Osei-Tutu was in contact with both Frenchie and Eppi. Various messages exchanged between them were filed as exhibits. These messages attached flight itineraries and flight tickets, monitored and directed Mr. Osei-Tutu’s movements, and ordered him to do things such as “clean your phone”.

[8] The jury rejected Mr. Osei-Tutu’s evidence that he did not know that his suitcase had a false compartment and that there was cocaine in it. The jury found that he knowingly imported cocaine into Canada, beyond a reasonable doubt.

[9] There was no evidence connecting Mr. Osei-Tutu to a criminal or drug distribution organization.

Position of the Parties

[10] The Crown submits that given the quantity of cocaine found in Mr. Osei-Tutu’s luggage, the appropriate sentence is seven years. The Crown argues that this is in keeping with the range of six to eight years for first time offenders where the amount of cocaine imported is more than 2 kg: R v. Cunningham (1996), 27 O.R. (3d) 786 (C.A.).

[11] The Crown seeks ancillary orders including a DNA order under s. 487.051, a mandatory firearms prohibition order under s. 109(2)(a)(ii) for 10 years and a forfeiture order. The ancillary orders are not contested by the defence.

[12] The defence’s position is that as there are several mitigating factors, a sentence of 4.5 years less 6 months credit for pre-trial detention for a net sentence of 4 years is the fit and proportionate sentence.

The Circumstances of the Offender

[13] The delay in sentencing was the direct result of the delay in securing an Enhanced Pre-Sentence Report (“EPSR”) or Morris Report. The report filed with the court was prepared by Michelle Richards who is a Registered Social Worker. She has extensive experience in preparing social context pre-sentence reports.

[14] Ms. Richards spoke with several collateral sources to prepare her report including Mr. Osei-Tutu’s partner, family, and friends. She also attached as Appendix A the report entitled, “Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Canada” that was prepared in 2018 for the court in R v. Morris, 2018 ONSC 5186.

[15] In addition to the EPSR, 15 letters of support from friends and family members were filed with the court.

[16] Mr. Osei-Tutu is a Black male who immigrated to Canada from Ghana when he was 10 years of age. He is now 36 years of age. He was 29 at the time of his arrest. He does not have a criminal record.

[17] Mr. Osei-Tutu is in a common-law relationship with Mabel Osei. They are the parents to a five-year old son. They moved from Brampton to London, Ontario in 2018. They purchased a house in 2021. Ms. Osei works full-time for the City of London as a registered nurse. Mr. Osei-Tutu works as a site manager for a contractor who builds Amazon stores. He enjoys his work and has been offered promotions which he has not accepted due to the uncertainty surrounding his sentencing. He has also worked as a forklift driver, and a programming technician. His interests include working as a disc jockey and photography.

[18] Mr. Osei-Tutu is the eldest of five siblings. His parents separated when he was two years of age; his father had by then migrated to Canada. Mr. Osei-Tutu told Ms. Richards that his mother was not an active parent, and he was left in the care of family members until he was eight years of age when his mother became his primary caregiver. This was a period of instability for Mr. Osei-Tutu.

[19] When Mr. Osei-Tutu moved to Canada, he lived with his father and his father’s new spouse, with whom he developed a close relationship and referred to as his mother. Mr. Osei-Tutu also had new stepsiblings with whom he bonded and cared for while his father and stepmother worked.

[20] Mr. Osei-Tutu’s stepmother passed away in 2008. In 2010, his biological mother came to Canada and remarried his father. They are still together and have had other children. He does not have a close relationship with his biological mother. She was not one of the collateral sources interviewed for the EPSR.

[21] Mr. Osei-Tutu had a positive experience in school; he was popular amongst his peers. His father, Joseph Osei-Tutu, reported that his son had no issues at school. He was a good athlete and played football. When Mr. Osei-Tutu commenced high school, his marks were in the 90s. Most of his classmates in high school were white although he had some Black peers.

[22] After graduating from high school, Mr. Osei-Tutu attended Humber College. When his stepmother passed away in 2008, he discontinued his studies to help care for his siblings.

[23] None of Mr. Osei-Tutu’s friends are involved in a criminal lifestyle. His brother, Aaron, said that his friends are good people. His father confirmed that his son’s friends have never been a source of concern for him.

[24] According to Mr. Osei-Tutu, his first and only experience of anti-Black racism occurred while he was in high school; it involved an incident with a white student. When he was 16, this student initiated a fight with one of his friends, who was a Black student. Mr. Osei-Tutu interrupted the fight and pulled his friend aside. The following week, the white student and two of his friends accosted him while he was walking alone. Mr. Osei-Tutu fought back in self-defence. When the principal, a white man, learned of the fight, he asked Mr. Osei-Tutu for a written statement. He then suspended Mr. Osei-Tutu for 21 days as he believed the other student who alleged that Mr. Osei-Tutu lied and accused him of instigating the fight.

[25] When his suspension was to end, Mr. Osei-Tutu was told by the principal that he was going to be expelled as the other student said he was fearful of him. He was also charged with assault; the charges were eventually dropped.

[26] Mr. Osei-Tutu recalls being hurt by the principal’s response as he had been previously celebrated for his football skills. This experience led him to realize that as a Black youth, he was only valuable when he was performing.

[27] There were two common themes in the letters of support from family and friends. First, several people described the support they received from Mr. Osei-Tutu during difficult periods in their lives. Second, they all describe Mr. Osei-Tutu as being a good and committed father and spouse who is devoted to his son.

[28] Ms. Osei described her spouse as family-oriented, thoughtful, transparent, and dependable. She said he is a loving and affectionate parent. He is not motivated by money. She says he is a person who is always willing to help his friends and family.

[29] Ms. Osei is concerned for her son and the impact his father’s absence will have on him.

[30] Aaron Osei-Tutu is Mr. Osei-Tutu’s brother. He said his brother is a good parent who is protective of his son.

[31] Derek Opoku has been friends with Mr. Osei-Tutu for 19 years. He described Mr. Osei-Tutu as a great father who is devoted to his son and committed to his family. He said that Mr Osei-Tutu is a man of faith who was baptized in 2016 and is involved with his church. He said he is honest, direct, and generous. He does not consume alcohol and drugs. He also described going through a difficult time in his life and the support he received from Mr. Osei-Tutu.

[32] Friends, Tanniqua Higgins, who has known Mr Osei-Tutu for 17 years, Barbara Fordjour, who has known him for 24 years, and Sean Thompson with whom he has been friends since high school, describe him as a loving father. Mr. Thompson said he prioritizes fatherhood over socializing.

[33] Ms. Higgins describes Mr. Osei-Tutu as a caring person. While he is assertive and direct, she said he is also a “softie” who trusts people around him.

[34] Ms. Fordjour, who works as a PSW, describes Mr. Osei-Tutu as her best friend; she is his son’s godmother. She describes him as loving, caring, kind, honest, respectful, selfless, and dependable. There have been various times when he has helped her and her family.

[35] Ahmed Ankamah works as a senior business consultant. He has known Mr. Osei-Tutu for over ten years. He said he is one of the closest people in his life. He describes him as someone who help others and has helped Mr. Ankamah with his support and advice.

[36] Toni Murray has known Mr. Osei-Tutu for about 15 years. She describes him as a great friend. She said he is loved and appreciated by family and friends. He goes out of his way to help others.

[37] Desiree Binger is a customer support worker. She has known Mr. Osei-Tutu for 11-12 years. She considers him a dear friend. She said he is a kind and loving soul. She has never seen him angry. She said she can count on him to be supportive.

[38] Nathan Osei-Tutu is his younger brother. He is currently enrolled at Sheridan College. He describes being close to his brother who helped raise him. He looked up to Mr. Osei-Tutu who taught him the importance of treating people with respect. He said that Mr. Osei-Tutu has always there for him.

[39] Akashpreet Singh has known Mr. Osei-Tutu for 2 years; Mr. Osei-Tutu was his manager at Amazon warehouse. He describes Mr. Osei-Tutu as honest, dedicated, hardworking and friendly. He was respected at work.

[40] Keghesi Dessouza is a business development coordinator at a car dealership. She considers Mr. Osei-Tutu to be family; he is a godfather to her twins. She describes him as a caring and understanding person who has been there for her when she needed support.

[41] Shaneakque Mensah has known Mr. Osei-Tutu for 11 years. She describes him as outgoing and hard working.

[42] Sean Thomas owns a security installation company and has known Mr. Osei-Tutu since high school. He considers him to be family. Mr. Osei-Tutu is a godfather to his child. He describes Mr. Osei-Tutu as dependable and a positive person.

[43] Nicole Campbell works as a claims adjuster and has known Mr. Osei-Tutu for 12 years. She said he is a kind and compassionate person who goes out of his way to support others and helped her through a difficult time.

[44] Emilie Estrada who works as a graphic designer has known Mr. Osei-Tutu for 18 years. She describes him as kind, reliable, dependable, generous, selfless, compassionate, and always willing to help others. He is committed to his family and friends.

[45] Barbara Agyei works as a record clerk at Maplehurst and has known Mr. Osei-Tutu for over five years. She describes him as being supportive, particularly when she went through a difficult time. She has seen him help friends and family in need. She said he is generous, caring, selfless, and is loyal to family and friends.

[46] Mr. Osei-Tutu filed an affidavit for this sentencing hearing. His evidence is that he was released on bail on October 10, 2017 with his father as his surety. In 2018 he was charged with failing to attend court. On September 26, 2020, he was arrested for failure to comply with his release order. He has pled not guilty to both offences.

[47] He was detained at Maplehurst between September 26, 2020 and December 9, 2020. During that time, he experienced 23 full lockdowns and 10 partial lockdowns. A lockdown summary from Maplehurst was also filed as evidence. The restrictions at Maplehurst included no access to the dayroom, phone, television, or visitations. He was confined to his cell for much of the day.

[48] He was released on bail on December 9, 2020 under strict terms including house arrest and an ankle monitor. He has complied with his bail conditions since his release in December 2020. He described how difficult house arrest has been given his spouse’s work schedule, his role as a parent and the cost incurred for the ankle monitor.

[49] Mr. Osei-Tutu says the birth of his son changed everything and his son is his main priority. He is committed to being a loving, devoted, and present father.

Impact on the Community

[50] The importation of cocaine, as with any controlled substance under the CDSA, has a significant impact on the community as it is an addictive substance that can cause significant harm. The direct and indirect social and economic harm that is caused by the importation of dangerous drugs like cocaine and its association with violence is recognized by the courts: R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), at paras. 104-105; R v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 26.

[51] Cocaine is not indigenous to Canada. It can only enter the country through couriers who import the drug. Importation is not a victimless crime. Its victims include not only those who become addicted to the drug but also their friends and family. Other victims are those who are subjected or exposed to the violence that is associated with the use, sale and distribution of the drug.

The Sentencing Principles

[52] The principles of sentencing are set out in sections ss. 718, 718.1 and 718.2 of the Criminal Code of Canada, R.S.C., 1985, c. C-46 (the “Code”). The objectives of sentencing are deterrence, denunciation, separation of offenders from society, rehabilitation, reparation to victims and promotion of a sense of responsibility for the harm to victims. In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, the court found that proportionality is a guiding principle in sentencing. The sentence must reflect the gravity of the offence and the degree of responsibility of the offender. Also of importance is the principle of parity, meaning that a sentence should be like sentences imposed on similar offenders for similar offences committed in similar circumstances.

[53] The principle of restraint is also an important consideration. This principle means that the sentencing judge should seek to impose the least intrusive sentence that will achieve the overall purpose of being an appropriate and just sanction, particularly for a first offender: R v. Sousa, 2023 ONCA 100, 165 O.R. (3d) 641, at para. 37.

[54] Section 10 of the CDSA provides the following regarding sentencing:

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.

[55] Section 6 of the CDSA provides that the maximum penalty for importing a Schedule I substance is life. The main sentencing principle to consider in the imposition of a sentence for importing are general deterrence and denunciation. The maximum penalty is an indication of the seriousness of the offence.

[56] Sentencing is a highly individualized process, taking into account the unique circumstances of the offender, the nature of the offence and the impact on the community. It also involves balancing several principles with the goal to achieve a fit and appropriate sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender.

[57] Given the individualized nature of sentencing, the court must also consider aggravating and mitigating factors relating to the offence and the offender.

Caselaw

[58] Both the Crown and defence filed cases in support of their respective positions regarding a fit and appropriate sentence.

[59] While sentencing is an individualized process, one of the factors considered in determining an appropriate sentence in importing matters is the quantity and nature of drugs imported. For example, in Hamilton, at para. 108 the Court of Appeal found that in cases involving the importation of approximately one kilogram of cocaine for commercial purposes, the range of sentence is three to five years. In Cunningham, the court found that the range of a sentence for a first offender acting as a courier importing multiple kilograms of cocaine is six to eight years.

Crown Cases

[60] The Crown's position is that given the quantity of cocaine imported by Mr. Osei-Tutu, a sentence within the Cunningham range is appropriate and argues there are no mitigating factors to deviate from that range.

[61] The Crown relies on R v. Downes, 2011 ONSC 4855, aff’d 2015 ONCA 674, in support of its position that a sentence of seven years is a fit sentence. In Downes, the offender was found guilty of importing 2.1 kg of cocaine. The offender did not have a criminal record. The offender had immigrated to Canada from Grenada. He was married and had two young children. He worked steadily as an auto mechanic. Seven reference letters were filed which all spoke to his good character and to his good qualities as a father and member of his community. The sentence of six years in custody was upheld by the Court of Appeal.

[62] As in Downes, Mr. Osei-Tutu’s friends and family describe his many good qualities including being supportive, dependable, and kind. There is a consensus that he is not only a good father but also a good spouse and member of the community. The quantity of cocaine he imported was approximately 800 kg more than imported in Downes.

[63] In R v. Peters, 2016 ONSC 4906, aff’d 2018 ONCA 493, the offender was convicted of importing 2.827 kg of cocaine, an amount similar to what Mr. Osei-Tutu imported. Mr. Peters was 42 years old at the time of the offence. He had no criminal record. He immigrated to Canada from Jamaica at the age of 12. He had seven children. The PSR was favourable. The letters of reference filed indicated that he was well regarded in his community. He had several health issues. He operated his own scrap business.

[64] The court found that Mr. Peters acted as a courier and imposed a sentence of 6.5 years. This sentence was upheld by the Court of Appeal.

[65] In R v. Waldron, 2018 ONSC 3972, the offender was convicted of importing 2.743 kg of cocaine, similar to the amount imported by Mr. Osei-Tutu. The offender was 22 years old at the time of the offence. She was the victim of sexual abuse when she was 12 leaving her vulnerable to being manipulated. She was a single mother who had worked as an exotic dancer but had pursued her education and was working as a dental assistant. She had a criminal conviction for identity fraud.

[66] The sentencing judge found the offender’s age and responsibility as a parent were mitigating factors. The court found that there were strong prospects for rehabilitation. A custodial sentence of 6.5 years was found to be the fit sentence.

[67] The Crown also relies on R v. Cox, 2021 ONSC 6636, in which the offender was sentenced in absentia. The offender was convicted of importing 1.8 kg of cocaine. The court found that her lack of a criminal record and role as courier were mitigating factors and imposed a sentence of 6 years.

Defence Cases

[68] The defence relies on several cases where the court sentenced the offender below the Cunningham range.

[69] In R v. Zeisig, 2014 ONSC 3529, aff’d 2016 ONCA 845, the offender was convicted of importing 1.966 kg of cocaine. The offender, who was 20 at the time of the offence, was a good high school student and attended one year of university. She did not have a criminal record. She was sentenced to 4.5 years which took into account 9.90 months of pre-trial custody.

[70] In R v. Chukwu, 2011 ONSC 2216, the offender was convicted of importing 1.4 kg of cocaine and was sentenced to 4 years. The offender was a refugee whose father was murdered when he was young. He had a gambling addiction and was having financial difficulties at the time he committed the offence.

[71] In R v. Gordon-Cummings, 2013 ONSC 5901, the offender pled guilty to importing 2.2 kg of cocaine. She was 20 years of age at the time of the offence and had strong family and community support. She was sentenced to 5 years.

Analysis

Range of Sentence

[72] There is jurisprudence that exceptional circumstances are required to depart from established sentencing ranges. The defence argues that is no longer the case: Lacasse, at para. 57; R v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 111-112; R v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389, at para. 36; and R v. Mills, 2022 ONCA 404, at para. 12.

[73] In R v. Kelly, 2022 ONSC 5500, the sentencing judge, relying on Friesen, found that there is no requirement for a finding of exceptional circumstances for a sentence to be imposed outside the usual range.

[74] In Kelly, the offender was convicted of importing 1 kg of cocaine. The Crown’s position was that a sentence of three years was the fit and appropriate sentence. The defence sought a conditional sentence of two years less a day followed by three years of probation. The sentencing judge imposed a conditional sentence finding that there were many mitigating factors including the good prospects for the offender’s future, her diminished moral culpability, and the systemic racism that she experienced as a Black Canadian. Those mitigating factors were the basis to impose a sentence less than the established range.

[75] The Crown agrees that a finding of exceptional circumstances is not required to impose a sentence outside the “usual range” but argues that unlike in Kelly, there are no factors that support a sentence below the Cunningham range.

[76] Thus, while guided by jurisprudence establishing the range of sentences for importing, I must still exercise my discretion to determine the fit and proportionate sentence considering Mr. Osei-Tutu’s own circumstances which includes all mitigating and aggravating factors and the impact of anti-Black racism on Mr. Osei-Tutu.

Anti-Black Racism

[77] The defence relies on R v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, where the Court of Appeal found that the impact of racism on an offender can be an important factor in sentencing. The Court of Appeal also found that when considering the restraint principle, the court should be mindful of the over-incarceration of Black offenders. In R v. Marfo, 2020 ONSC 5663, the court found at para. 52 that a sentence should be shortened if a sentence is more onerous for a Black man because of systemic anti-Black racism in the correctional system.

[78] In Morris, the Court of Appeal also found that there must still be “some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue”: para. 97.

[79] In the EPSR, Ms. Richards described Mr. Osei-Tutu as polite, candid, engaged and personable. She said he is surrounded by a strong system of family and friends who have been in his life for many years. She noted that he was described by everyone as a present and engaged father with a deep sense of responsibility.

[80] There was only one incident of anti-Black racism experienced by Mr. Osei-Tutu that was described in the EPSR. According to Ms. Richards, Mr. Osei-Tutu’s experience of being criminalized in high school, while his white peers were protected is reflected in research which indicates that Black students disproportionately experience punishment and mistreatment in comparison to white counterparts.

[81] Ms. Richards also discussed concerns about the impact that a criminal record will have on Mr. Osei-Tutu, as Black jobseekers face greater discrimination in comparison to their white counterparts.

[82] She also discussed the overrepresentation of Black people who are incarcerated and the failure of correctional programing to meet the needs of Black and racialized offenders, which impacts their reintegration post-sentence.

Mitigating and Aggravating Factors

[83] The quantity, value and nature of the drugs imported are aggravating factors in this case. Mr. Osei-Tutu imported almost 3 kg of cocaine which is an addictive and destructive drug and results in serious negative social and economic consequences and violence in the community. The large quantity of cocaine Mr. Osei-Tutu imported and its value, are aggravating factors as it suggests this was a commercial trafficking operation and not just for personal use. A degree of planning and deliberation was also required which is an aggravating factor. Furthermore, this was a crime motivated by profit as there was no evidence that Mr. Osei-Tutu had a drug addiction that he was trying to support. Rather, his motive was greed, which is an aggravating factor.

[84] There are also mitigating factors. Mr. Osei-Tutu was a relatively young first offender when he committed this offence. Based on the letters of support filed and the EPSR, he has strong support from his friends and family. He is a caring spouse and father. He has a record of employment and has been working full-time while on strict release terms since December 2020. While there are outstanding charges associated with alleged breaches of his release terms, he has now been in compliance with his release for over three years.

[85] After several years of instability while living in Ghana, Mr. Osei-Tutu moved to Canada and formed bonds with his new family. He was a good student and had embarked on post-secondary education before assuming more responsibility for his siblings. His generosity with his friends and family, his bond with his spouse and child, and his focus on being a devoted and loving father shows that he has the capacity to be a pro-social and contributing member to society. In my view, Mr. Osei-Tutu has strong prospects for rehabilitation.

What is a Fit Sentence in all the Circumstances?

[86] I commend Mr. Osei-Tutu for his commitment to his friends and family, for pursuing his education and his employment history. He is held in high regard. There is no evidence of any negative influence in his life such as being associated with or exposed to people engaged in criminal activity or having any negative interactions with the police. In fact, Mr. Osei-Tutu has had the benefit of strong support systems since moving to Canada when he was 10 years of age. There is also no evidence of any financial struggles since he moved to Canada.

[87] While Mr. Osei-Tutu is a racialized person who is a member of a group that has been subjected to systemic racial bias, there is little evidence in the EPSR of a connection between that systemic racism and the circumstances that explain his role in the offence he committed. I have considered, however, the findings in the EPSR of the systemic overincarceration of Black persons and the more onerous impact of custodial sentences on Black males. I have considered this when dealing with the principle of restraint in arriving at a fit and proportionate sentence.

[88] It is troubling that a person with so much love and support in his life was nonetheless involved in such a serious offence with devasting consequences. Those consequences are not only the victims who seek out and use cocaine but also for himself, his spouse, son, family, and friends. I have also considered the impact his custodial sentence will have on his young son.

[89] Deterrence and denunciation are important principles in sentencing for this serious offence as cocaine poses a serious threat to society. I also consider the principles of rehabilitation and restraint to be important as I am satisfied that Mr. Osei-Tutu’s prospects of being a contributing member to society are high.

[90] In imposing this sentence, I have considered the principles of sentencing, the jurisprudence for similar offences, all mitigating and aggravating factors, and the social context evidence in the EPSR. While there is always some tension in the principles of sentencing, they must be balanced, and consideration must be given to the unique circumstances of each offender to arrive at a fit and proportionate sentence. Given the circumstances of this case, I conclude that a sentence of 5.5 years is fit and proportionate. That is a significant sentence for a first offender but reflects the need to denounce Mr. Osei-Tutu’s conduct and serve as a general deterrent to others.

[91] Mr. Osei-Tutu shall also receive a credit of six months for his pre-trial detention. This was proposed by the defence. The Crown made no submissions in that regard. Mr. Osei-Tutu spent 33 days at Maplehurst in either full or partial lockdown during the height of the COVID-19 pandemic. At that time, there was significant concern with congregate living arrangements when the vaccine was not yet available. Given these circumstances, in my view, a six-month credit is appropriate. This results in a net custodial sentence of 5 years.

[92] Mr. Osei-Tutu is to provide a sample of his DNA pursuant to s. 487.051 of the Criminal Code. There will also be a weapons and firearm prohibition order pursuant to s. 109(2)(a)(ii) of the Criminal Code for 10 years and a forfeiture order pursuant to s. 462.37 of the Criminal Code.

L. Shaw J. Released: March 6, 2024