Court File and Parties

Court File No.: CR-20-77-00 Date: 2024-06-28 Ontario Superior Court of Justice

Between: His Majesty The King And: Nicholas Poku, Defendant

Counsel: Sam Weinstock, for the Public Prosecution Service of Canada Sharon Jeethan, for the Defendant

Heard: June 20, 2024

Reasons for Sentence

Mandhane J.

[1] On April 6, 2023, I convicted Nicholas Poku of possessing 1.347 kilograms of heroin for the purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act: R. v. Zamora, 2023 ONSC 2169. I accepted the Crown’s theory of the case, which was that Mr. Poku was the intermediary in a conspiracy to import heroin into Canada from Pakistan. His role was to liaise between Chukwuemka Madumelu (the mastermind) and Sebastien Zamora (the recipient of the package), to act as a lookout while Zamora picked up the package, and to deliver the package with Madumelu to its final destination.

[2] The only issue before me is the appropriate sentence in light of Mr. Poku’s personal circumstances and the gravity of the offence. Mr. Poku retained counsel for his sentencing hearing and appeared before me on June 20, 2024. When given his right of allocution, he declined to say anything and deferred to his counsel’s oral submissions.

[3] The Crown submits that a sentence of ten years in custody is appropriate given the large quantity of heroin at issue and the need to emphasize denunciation and deterrence. The Crown also asks for a mandatory weapons prohibition order pursuant to s. 109(1) of the Criminal Code, a forfeiture order pursuant to s. 16 of the Controlled Drugs and Substances Act, and a discretionary DNA order pursuant to 487.051(1)(3)(b) of the Criminal Code.

[4] The Defence asks for a conditional sentence of two years. The defence says that a conditional sentence is proportionate in all the circumstances because Mr. Poku is a first-time offender who has strong rehabilitation prospects. Mr. Poku has proven that he can be effectively supervised in the community because he has been out on bail for this offence for over six years without incident, and with increasingly lenient conditions. In terms of his role in the offence, the Defence says that Mr. Poku was neither the ringleader nor an intermediary but a mere “facilitator.” The defence notes that there is no evidence that Mr. Poku was a repeat player or that he was paid for his role in this crime. The defence does not oppose the ancillary orders.

The Delay Between Conviction and Sentencing

[5] The 14-month delay between Mr. Poku’s conviction and sentencing deserves some explanation. Because Mr. Poku was self-represented at trial, there was a two-month delay while he retained counsel for his sentencing. The remainder of the delay was associated with his counsel’s attempts to obtain an enhanced sentencing report focused on the impact of anti-Black racism on Mr. Poku: R. v. Morris, 2021 ONCA 680. The Sentencing and Parole Project is the only community organization in the GTA that prepares Morris reports and, more than a year after his conviction, Mr. Poku had still not had an intake meeting with them.

[6] Despite Mr. Poku asking for a further adjournment of his sentencing to await a Morris report (and the Crown taking no position), I scheduled the matter for a hearing. On the one hand, the current delay in obtaining Morris reports is a serious systemic issue that requires remediation so that the Court can benefit from these reports in crafting a proportionate sentence. On the other hand, sentencing cannot be delayed indefinitely due to the current backlog in preparing Morris reports; doing so risks bringing the administration of justice into disrepute: R v MacDougall, 1998 SCC 763, [1998] 3 SCR 45 at para. 30-37.

[7] In my view, while filing a Morris report is often of assistance where the offender is Black, it is not the only way to adduce evidence at a sentencing hearing about the connection between overt and systemic racism in the community and the circumstances mitigating the criminal conduct. In scheduling the matter for a hearing, I reminded defence counsel that I can take judicial notice of certain facts, that Mr. Poku could swear an affidavit for his sentencing hearing, or that he could call an expert. Defence counsel took none of these steps and ultimately conceded in her oral submissions that there was no connection between the anti-Black racism that Mr. Poku might have experienced in the community and his role in this crime: Morris, para. 97.

Sentencing Principles

[8] The fundamental purpose of sentencing is to protect society and to contribute “to respect for the law and the maintenance of a just, peaceful and safe society”: Criminal Code, s. 718. Judges must impose “just sanctions” that reflect one or more traditional sentencing objectives, including denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, reparation to victims, promoting a sense of responsibility in offenders, and acknowledging the harm done to victims and the community: s. 718(a)-(f).

[9] Sentencing is highly discretionary, and there is no set formula for fixing the correct sentence: R. v. Parranto, 2021 SCC 46, para. 13. The starting point is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is the organizing principle to reach the ultimate goal of imposing a fair, fit, and principled sentence; parity and individualization, while important, are secondary: para. 10. The Supreme Court says that: “individualization and parity of sentences must be reconciled for a sentence to be proportionate:” R. v. Lacasse, 2015 SCC 64, para. 53.

Mr. Poku’s Personal Circumstances

[10] Mr. Poku is a first-time offender who is currently 47 years old and lives in Newmarket. He was born in Ghana, raised by his paternal grandmother, graduated from high school, and immigrated to Canada to play professional soccer. For the past eight years, Mr. Poku has been employed as a lighting technician; he is hard-working and reliable. Mr. Poku has two adult children who live in Barrie; he is an involved father and has a good relationship with his ex-wife, the children’s mother. Mr. Poku does not have any issues with drugs or alcohol and tries to maintain a healthy and active lifestyle. His current partner, ex-wife, his employer, his co-workers, and his friends all filed letters of support with the court. He has abided by all his bail conditions after his arrest. He has been respectful throughout the judicial process including while representing himself.

[11] That all being said, Mr. Poku is neither youthful nor an addict. He was gainfully employed and yet decided to engage in an elaborate scheme to traffic heroin. I have considered Mr. Poku’s conditions on bail and find that they were not so onerous as to be mitigating. He continued to work outside the home, was not monitored, and was able to see his children regularly.

Gravity of the Offence

[12] Mr. Poku was found guilty of a serious offence involving an elaborate scheme to import a large quantity of heroin with a wholesale value of over $100,000. The fact that Mr. Poku’s victims did not file victim impact statements with the Court does not mean that his crime was victimless. Heroin has a devastating impact on people with addictions, along with their families, our health system, and the community more generally. The fatal impact of opioids cannot be understated. Commercial traffickers exploit the weaknesses of vulnerable and marginalized people for commercial gain: R. v. Brown, 2016 ONSC 2997, para. 9.

[13] The Crown says that despite any personal mitigating factors, sentencing for trafficking must focus on general deterrence and denunciation. The Crown relies on cases that point to a sentence of between six and 12 years being appropriate in the circumstances: R. v. DiBenedetto, 2016 ONCA 116, para. 9.

[14] In R. v. Shahnawaz, the Court of Appeal imposed a sentence of six years imprisonment for trafficking 650 grams of heroin. In that case, the offender’s involvement was low level, and there was defence evidence showing that the accused would suffer psychological harm if imprisoned due to his prior torture and detention in Afghanistan.

[15] In R. v. Godwin, 2015 ONSC 7492, the offender was convicted of possessing one kilogram of heroin for the purposes of trafficking. The heroin was found in a package that entered Canada by courier. The Court of Appeal for Ontario in R. v. Godwin, 2018 ONCA 419 upheld the trial judge’s sentence of 11 years and three months, holding that the sentence “reflected the appellant’s moral culpability in devising and carrying out a sophisticated importation scheme of a seriously harmful controlled substance.”

[16] In R. v. Bains and Pannu, 2015 ONCA 677, the Court of Appeal for Ontario upheld a sentence of nine years for a first-time offender convicted of possessing one kilogram of heroin for the purposes of trafficking. The offender had a solid work record and good family support, however, the court noted that heroin is a highly addictive drug and that the “price upon conviction must be steep.”

[17] In R. v Brown, the court imposed a sentence of nine years on similar facts. In that case, an undercover RCMP officer conducted a controlled delivery of 1.133 kg of heroin hidden in a shipment of leather sandals from Tanzania. However, unlike Mr. Poku, Mr. Brown had a criminal record and was not gainfully employed.

[18] In R. v. Allen, 2023 ONSC (unreported), the offender was convicted of possessing about 3.5 kg of heroin for the purposes of trafficking. The heroin was found in a box that entered Canada by mail. Justice Stribopolous noted that a sentence of nine years would have been appropriate in light of the seriousness of the offence, the offender’s criminal record, and the fact that he was involved at an organizational level and was not a mere courier. However, Stribopolous J. imposed a sentence of seven years after accounting for the offender’s five years of house arrest.

[19] In support of a conditional sentence being imposed, the defence relies on R. v. Chu, [1999] O.J. No. 5490. In that case, the offender was convicted of conspiring to import two and half kilograms of heroin into Canada for the purposes of trafficking, and sentenced to a conditional sentence of two years less a day. There was no evidence that the offender knew the quantity of drugs involved, that he was a key or essential part of the conspiracy, nor that he was paid or compensated for his participation. Instead, Justice Kiteley found that the offender “happened to be in the wrong place at the wrong time”: paras. 28-29.

[20] Justice Kiteley noted that a conditional sentence may be appropriate in a drug importation case depending on the nature and quantity of the drug, the degree of involvement in the scheme to import, and the offender’s previous involvement in drug offences: para 30, citing R. v. Wellington, 43 O.R. (3d) 534 (C.A.). After noting that the only aggravating factors before her were the nature and quantity of drugs involved, Kiteley J. noted many mitigating factors, including that the accused had arrived in Canada as a refugee, that he was hardworking, that he had no previous involvement with drug offences, and that his role in the offence was minor: paras. 20-25. Justice Kiteley imposed a conditional sentence of two years less a day.

The Appropriate Sentence

[21] In my view, this is not a case where a reformatory sentence of less than two years would be appropriate, let alone a conditional sentence. In its oral submissions, the defence could not point to another case beyond Chu where a conditional sentence has been imposed for a similar offence and upheld on appeal. Moreover, this case is easily distinguishable from Chu. Mr. Poku is a middle-aged man who has lived his entire adult life in Canada; he was an economic migrant who had strong community supports well-before the crime. He did not identify any significant experiences of racial discrimination. Mr. Poku was not merely in the wrong place at the wrong time; he was involved in every aspect of a sophisticated importing scheme, acting as a liaison, look out, and delivery person. A sentence of two years is not appropriate in lights of the ranges articulated by the Court of Appeal since Chu was decided a quarter century ago. Since a sentence of less than two years in not appropriate, it follows then that a conditional sentence is not appropriate: R. v. Proulx, 2000 SCC 5.

[22] I turn now to determining the appropriate penitentiary sentence. I agree with the defence that Mr. Poku’s personal circumstances are sufficiently unique to justify imposing a sentence at the lowest end of the range for similar offences. I agree with the defence that a penitentiary sentence of a decade would be overly punitive in light of Mr. Poku’s unblemished record, strong community connections, his relative freedom to date, and the importance of him continuing to be a positive Black male role model in the families of his partner, ex-wife, and children.

[23] That all being said, I am not prepared to depart from the range for similar offences because there was an absence of evidence before me about Mr. Poku’s motivation for committing this crime or his rehabilitation prospects. The letters of support filed with the Court focus on Mr. Poku’s kind and caring nature and positive contributions to the community; they are noticeably silent about his conviction or criminogenic factors. There are no letters of support from Mr. Poku’s siblings or his adult children because he has not told them about the offence. In the absence of cogent information about Mr. Poku’s motivations, I am prepared to draw a reasonable inference that his purpose was financial gain: Bains and Pannu, para. 193.

[24] A penitentiary sentence of six years is appropriate in all of the circumstances. Pre-trial credits are not in issue because Mr. Poku was arrested and released on a recognizance the next day. The Defence does not oppose the ancillary orders, which shall issue.

[25] I recommend that correctional authorities house Mr. Poku close to his family supports in Barrie and Newmarket which will be essential to his continued community support and eventual reintegration back into society. A copy of these reasons, the Pre-Sentence Report, and the Defence “Sentencing Materials” shall be forwarded to correctional authorities for their file.

Mandhane J.

Released: June 28, 2024