Reasons for Sentence

Court File No.: CR-23-000160-0000
Date: 2025-06-26
Ontario Superior Court of Justice

Between:
His Majesty the King
Greg Corriveau, for the Crown
- and -
Shadrack Oppong-Kyereme
John W. McCulligh, for Mr. Oppong-Kyereme

Heard: May 20, 2025

Released: June 26, 2025

Fowler Byrne

A. Overview and History of Proceedings

[1] Mr. Oppong-Kyereme was charged with one count of importing a Schedule I controlled substance, namely heroin, contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[2] He was tried before a judge and jury. On February 21, 2024, he was found guilty. The matter was adjourned pending the receipt of an enhanced pre-sentencing report. Due to the backlog of demands for such enhanced reports, sentencing submissions were not heard until May 20, 2025.

B. Circumstances of the Offence

[3] Given that this was a trial before a jury, I am required to accept all proven facts, express or implied, that are essential to the jury’s verdict: Criminal Code, s. 724(2). In this case, the verdict rendered by the jury provides me with a clear picture of what they found to be the facts of this case.

[4] On February 26, 2022, Mr. Oppong-Kyereme arrived at the Toronto Pearson International Airport on a flight from Addis Ababa, Ethiopia. He had just returned from a trip to Ghana, where he attended the funeral of an uncle, and Malawi, where he operated a juice and fruit store. He was directed to the secondary inspection area, where his two pieces of luggage were x-rayed. Having detected something odd on the x-ray, the Border Services Officer took apart one piece of luggage by opening a false side and found a package that contained suspected illegal substances. Using a Narcotics Identification Kit, she tested the substance. It tested positive for narcotics. She arrested Mr. Oppong-Kyereme for smuggling. While the second suitcase also contained a similar suspicious looking package, she did not take apart the second piece of luggage.

[5] Mr. Oppong-Kyereme was then handed over to the RCMP, where the suitcases were inspected again. Mr. Oppong-Kyereme was then arrested for importing a Schedule I controlled substance. It is agreed that all the packages of heroin were hidden in false sides of his checked suitcases.

[6] It is also agreed that the substance seized was heroin. The heroin was found inside eight separate packages, four in each of the two suitcases. The total weight of the heroin found in both suitcases was 12,226.8 g or 12.2 kilograms.

[7] Given the finding of guilt, the jury was satisfied beyond a reasonable doubt that Mr. Oppong-Kyereme knew that there was an illegal substance in his suitcases and that he intentionally imported it into Canada.

C. Circumstances of the Offender

[8] The court had the benefit of receiving an Enhanced Pre-Sentencing Report, completed on February 19, 2025, by Jacquie Pemberton, a registered social worker.

[9] Mr. Oppong-Kyereme is currently 39 years old, and was 35 years old on the date of the offence. He has been married for two years, but his wife is unaware of his present circumstances. He has three children from a prior relationship who are 8, 12 and 14 years old. He has parenting time on alternate weekends and during the week and is a constant figure in his children’s lives. When Mr. Oppong-Kyereme addressed the court at his sentencing hearing, his main concern was about his ongoing ability to financially support his children.

[10] Mr. Oppong-Kyereme was born in Ghana. He is the only child of his parents, but he has two half-siblings through his mother and two half-siblings through his father. His father is unaware of his charges. He has asked that his mother not be contacted for the pre-sentencing report because it causes her to become overwhelmed.

[11] While raised by a single mother on a farm, Mr. Oppong-Kyereme described a good childhood where he had the support of his mother and her extended family. Initially, his father was not aware that he was born and Mr. Oppong-Kyereme did not have a chance to speak to him until he was 10 years old. Eventually it was his father who invited him to come to Canada where he was living. Mr. Oppong-Kyereme immigrated to Canada when he was 17 years old and lived with his father, step-mother and their two children. He became a Canadian citizen in 2003. Unfortunately, he did not get along with his step-mother and moved out when he was 18 years old. He maintains a close relationship with his paternal half-siblings.

[12] When he started to work in Canada, he sent money to his mother and uncle to help support them. Since he was 18 years old, he has always worked, except during the pandemic. In 2015 he ran his own business with a friend for approximately 5 years. From 2022 onwards he has been working for the same employer. His employer is aware of his current charges but chose to employ him anyway. Unfortunately, he had to stop working in 2023 as a result of a car accident. He is currently receiving insurance benefits as a result of the accident and draws on student loans that he has received.

[13] Mr. Oppong-Kyereme completed most of his education in Ghana but graduated from high school in Canada. He had both positive and negative experiences with teachers at his school. He has recently completed an online course on cyber security and hopes to work in this area.

[14] Mr. Oppong-Kyereme is also a musician. He writes and performs Afrobeats, reggae and high life (a genre specific to Ghana). He made his first professional recording in Ghana in 2010. At times he receives compensation for his music, depending on what platform his music is streamed on.

[15] While Mr. Oppong-Kyereme has lived in some high crime areas in Toronto, he did not report any negative experiences, other than having less than satisfactory living conditions. He had plans to move to a nicer place with his wife. He has had several unfortunate experiences with the local police which he believes were racially motivated. He has been searched without cause and pulled over while driving, again without cause. He believes the police stereotype Black men as being involved in drugs or weapons. He believes the police abuse their power.

[16] Mr. Oppong-Kyereme has a few good friends who describe him as quiet, humble and supportive as a friend. His friends agree he was taken advantage of by his trusting nature. His sister was very surprised by the charges as he was never involved in anything like that before. Mr. Oppong-Kyereme blames his easy-going personality for being “stupid” as he stated, and trusting his friend in Malawi who asked him to take his suitcases to Canada.

[17] Mr. Oppong-Kyereme has one prior offence – driving while impaired, which occurred approximately 10 years ago. The Crown submits this older offence should have no impact on the sentence given.

[18] Mr. Oppong-Kyereme regrets his decision greatly. He is very worried about the impact of his sentence on his family, and especially his children. Mr. Oppong-Kyereme has assumed responsibility for his actions. He wants no involvement with the drug trade, nor does he want to impact someone else’s life in a negative way. He is very worried about the impact this stupid decision will have on his future goals and his ability to support his family.

D. Position of the Parties

[19] The Crown is seeking a sentence of 16 years. It also seeks a DNA order, a weapons prohibition and a forfeiture order.

[20] Mr. Oppong-Kyereme suggests that a sentence of 10 years would be more appropriate.

E. Analysis

a. Principles in Sentencing

[21] Imposing a fit sentence is a highly individualized and fact specific exercise.

[22] The principles of sentencing are set out in sections 718, 718.1 and 718.2 of the Criminal Code. I am to consider the objectives of denunciation, deterrence, and rehabilitation. I must consider aggravating and mitigating circumstances, the sentence must be similar to sentences imposed on similar offenders for similar offences, and an offender should not be deprived of their liberty if less restrictive sanctions may be appropriate.

[23] That being said, it is a fundamental principle of sentencing that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is measured by reference to both the offence and the offender: Criminal Code, s. 718.1; R. v. Morris, 2021 ONCA 680, paras 61-62.

[24] When considering the second part of this analysis, the degree of responsibility of an offender, one may consider evidence that the offender’s choices are limited or influenced by his disadvantaged circumstances, such as systemic anti-Black racism. Mr. Oppong-Kyereme’s experience with anti-Black racism, which may explain why he found himself in this situation, speaks not to the gravity of the offence, but rather to his moral responsibility for the crime he committed: Morris, at para. 76.

[25] With the appropriate social context evidence, which I have in this case, I can give added weight to the objective of rehabilitation and less weight to the objective of specific deterrence. This does not diminish the seriousness of the crime but recognizes that the ultimate sentence imposed must be tailored to the specific offender and the potential rehabilitation of that offender. As long as the sentence ultimately imposed remains proportionate to the offence and the offender, the actual sentence imposed is a fit sentence: Morris, at paras. 79-81.

[26] With respect to the offence itself, s. 10(1) of the Controlled Drugs and Substances Act states the following:

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.

[27] The court has found on numerous occasions that heroin is the most pernicious of the hard drugs, it is the most addictive, the most destructive and the most dangerous. Heroin trafficking has been described as a “despicable” crime and one that tears at the very fabric of our society: R. v. Sidhu, 2009 ONCA 81, para. 12. While I concede that since Sidhu was released, we now have another despicable drug in fentanyl, this doesn’t decrease the harmful nature of heroin.

[28] Also, even if an illegal drug courier is found to be wilfully blind or naive, it is not a mitigating circumstance. As stated in Sidhu, at para. 17, “[a]s 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 learn the nature and quantity of the substance they are importing. In assessing degrees of moral blameworthiness, we see no meaningful distinction between the two.”

b. Aggravating and Mitigating Factors

[29] The biggest aggravating factor to this sentence is the amount of the heroin seized – 12.2 kilograms. It is an agreed fact that this amount of heroin is worth between $736,000 to $2,453,360. Also, heroin is an extremely harmful and addictive drug.

[30] With respect to mitigating factors, Mr. Oppong-Kyereme has shown great remorse and has taken full responsibility for his actions. While he has one earlier offence on his criminal record, it is dated and not related or indicative of a life of crime or an involvement in the drug trade. Mr. Oppong-Kyereme remained employed until his accident and supports his family. He has been on bail for over three years, without any violations. He has upgraded his education. All in all, this offence appears to be an aberration of an otherwise “simple life”, as characterized by Ms. Pemberton. I find that Mr. Oppong-Kyereme has good rehabilitation prospects.

c. Parity in Sentencing

[31] Sentencing ranges, while they are used mainly to ensure parity, reflect the principles and objectives of sentencing. They are summaries of the minimum and maximum sentences imposed in the past, which serve as guides for the application of all the relevant principles and objectives. That being said, they are not to be considered averages, let alone straightjackets, but rather a historical portrait to be used by sentencing judges, who must still exercise their discretion in each case. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation: R. v. Lacasse, 2015 SCC 64, paras. 57-58.

[32] The Crown provided a number of cases showing the range of sentences imposed in this type of situation.

[33] In Sidhu, Mr. Sidhu pleaded guilty to importing 9.56 kilograms of high-grade heroin into Canada. He was a first-time offender and 21 years old at the time. He was otherwise gainfully employed, and living with his family. The trial judge found that he was wilfully blind to what he was importing. He was sentenced to 7 years and 9 months, in addition to a credit of three months for pre-trial custody. The Crown appealed the sentence and sought a sentence of 12 to 17 years. The Court of Appeal allowed the appeal and sentenced him to 15 years but reduced by three months for pre-trial custody. He was described as vulnerable, and as someone who lacked sophistication.

[34] When increasing the sentence, the court stated, at para. 14:

…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 12-to-17-year range suggested by the Crown.

[35] In arriving at this sentence, the court reviewed a number of similar cases. It found that Mr. Sidhu’s case was most similar to the case of R. v. Thambiah (1987), 23 O.A.C. 394 (Ont. C.A.). In that case, Mr. Thambiah and others were convicted for importing over 13 kilograms of heroin. Like Mr. Oppong-Kyereme, he was quiet and soft-spoken and had insight into the offence. He went to school and had a good work record. He was doing well serving his sentence to date and had not caused any problems. He did not appear at risk for any future offences. Mr. Thambiah was sentenced to 15 years.

[36] In R. v. Deol, 2017 ONCA 221, following a trial before a judge and jury, the offender was found guilty of importing and conspiracy to import heroin, possession, and conspiracy to import for the purposes of trafficking. The amount imported was 11.9 kilograms. Mr. Deol was in his late 20’s, with no criminal record. He was engaged but had no children. He graduated high school and had a college diploma. He accepted his responsibility. He had many letters of support that describe him as a man of great character and that this crime was out of character for him. He was sentenced to 16 years for the importing and all other sentences were served concurrently. He appealed both the verdict and the sentence of 16 years. Both appeals were dismissed. With respect to the sentence, the Court of Appeal for Ontario stated that it was not outside the range or manifestly unfit.

[37] In R. v. Zahor, 2016 ONSC 7586, after a trial before a judge and jury, the offender was found guilty of importing 11.95 kilograms of heroin, valued at $960,000 to $3,586,500. In that case, Mr. Zahor immigrated from Tanzania as a teenager in 2001, and became a citizen in 2008. He is described as being a relatively productive member of Canadian society. He had four children, although was separated from his wife. He had two prior offences of driving while impaired in 2009 and July 2013. He was sentenced to 14.5 years, less time served while in pre-trial custody.

[38] Mr. Oppong-Kyereme provided me with the case of R. v. Gardener, 2010 ONSC 3418. In that case, Ms. Gardener was charged with importing 1.387 kilograms of cocaine and 307.5 g of heroin. She was 32 years old and had one prior conviction for theft more than 10 years prior. She was applying for permanent residency. She had a difficult childhood in Trinidad, where she was raised by a single mother and had to help raise her 14 siblings. She also had to earn money early on to support her family. She left school at grade 5. She was sentenced for 10 years, less pre-trial custody.

[39] After reviewing the cases, the sentences for the importation of 12 kilograms of heroin range from 14.5 years to 16 years. Unfortunately, R. v. Gardener is not of assistance given the small amount of drugs that were imported.

F. The Appropriate Sentence in this Case

[40] As indicated earlier, the fundamental principle of sentencing is that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is measured by reference to both the offence and the offender.

[41] Clearly, the importation of such a large quantity of heroin is a serious offence. No one has suggested otherwise.

[42] With respect to Mr. Oppong-Kyereme’s moral culpability, I am mindful of the passage in Sidhu above that states that whether or not Mr. Oppong-Kyereme was vulnerable or gullible when he took those suitcases, it does not decrease his moral blameworthiness. Mr. Oppong-Kyereme, to his credit, takes full responsibility for his actions. He understands the gravity of the crime, but also recognizes the impact it can have on others whom he will never meet.

[43] I must also consider how Mr. Oppong-Kyereme’s background, and in particular his experience with systemic anti-Black racism has impacted his degree of moral responsibility. While there does not need to be a direct causal link between Mr. Oppong-Kyereme’s experience with anti-Black racism and his offences, there must 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 Mr. Oppong-Kyereme’s criminal conduct. Racism may have impacted Mr. Oppong-Kyereme in a way that bears on his moral culpability for his offences, or it may be relevant in some other way to a determination of the appropriate sentence. Absent some connection, though, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender’s colour. There should be no such discount: Morris at paras. 96-97.

[44] In the case before me, the connection between the anti-Black racism may have some connection to the offences, but not to a great degree. While Mr. Oppong-Kyereme believes his employability may have been impacted, he has shown that he can continue to work, even after disclosing these charges to his employer. Accordingly, his moral culpability has been decreased somewhat, but not to any great extent. It may assist, along with the other mitigating factors, in keeping him away from the higher end of the acceptable range for these offences, which I have done.

[45] Accordingly, in the circumstances of this case, I find that a sentence of 15 years is appropriate.

G. Deductions for Time Served and While on Bail

[46] Mr. Oppong-Kyereme did not serve any pre-trial custody. There has been no request for any credits towards Mr. Oppong-Kyereme’s sentence.

H. Conclusion

[47] After considering and weighing the sentencing principles set out in ss. 718 to 718.2 of the Criminal Code, and taking into account the aggravating and mitigating factors, the various credits, as well as the submissions of counsel, I find that the interests of justice would be served by a sentence of 15 years. In addition, the following ancillary orders will be made:

a) As this offence is a secondary offence under s. 487.051, there shall be an order authorizing the taking of DNA samples;

b) Pursuant to s. 109 of the Criminal Code, I am making an Order:

1. prohibiting you from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of 10 years; and
2. prohibiting you from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

c) A forfeiture order with respect to all seized CDSA controlled substance and packaging, his boarding pass, his CBSA PIK receipt, 2 seized suitcases including any lining, false sides and packaging, all seized clothing, the luggage tags and the Canadian Passport in the name OPPONG-KYEREME is to be returned to issuing authority.

Fowler Byrne
Released: June 26, 2025