2015 QCCQ 3727, 2015 QCCQ 3727

Unofficial English Translation R. c. Ifezue 2015 QCCQ 3727 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL "Criminal and Penal Division" No.: 500-73-004114-142 DATE: May 7, 2015 ______________________________________________________________________ PRESIDING: THE HONOURABLE LINDA DESPOTS ______________________________________________________________________ The Queen Prosecutrix v.

Charles Alexander IFEZUE, John NWOKO Accused ______________________________________________________________________ SENTENCING JUDGMENT ______________________________________________________________________ [ 1 ] What is the fit sentence for the accused, who imported cocaine into Canada using naive and vulnerable persons to transport it? [ 2 ] In light of the specific circumstances of the scheme orchestrated by the accused, would the Court be justified in ordering a sentence outside the range of sentences usually imposed for the importing of cocaine? The answer is yes. Here is why.

Context [ 3 ] The accused are Canadian citizens of Nigerian origin. They set up an operation where they contacted people by mail or by telephone and swindled large sums of money from them by convincing them that they were entitled to an inheritance or an amount of money that could be as high as several million dollars. [ 4 ] The scheme had different variations depending on the characteristics of the person involved, but the basic scenario was as follows: [ 5 ] To obtain his or her money, the person had to meet an individual from Nigeria in a hotel room in Montreal.

This individual often introduced himself as a diplomat. He showed the person a suitcase that seemed to be full of US $100 bills. [ 6 ] According to the diplomat, each of the bills was marked with the words "security fund", which had to be removed to be able to give the person the money. To remove the marking, a special cleaning product, which could be bought in South American countries, had to be used. Since the diplomat had a busy schedule, he could not travel.

He therefore persuaded the person to travel, all expenses paid, to Ecuador, Peru, Bolivia or Haiti to take delivery of the cleaning product. [ 7 ] The person who agreed would then be taken in hand by the diplomat and his sidekick. They organized the trip and took care of the reservations and the costs. They arranged for the person to be met by accomplices in the foreign country.

The person spent a week there having a good time, and when the time came to return, different ploys were used to enable the accomplices in the foreign country to put packages in the person's suitcase. [ 8 ] Depending on the circumstances of the return trip, the person could be arrested with cocaine in his or her suitcase and detained in the place of the arrest.

[ 9 ] The accused entered their guilty plea following the decision to commit them to trial on the information as worded and after the Court dismissed the accused Ifezue's application to vacate the detention order. [1] [ 10 ] The two accused admitted conspiring to import cocaine into Canada between January 1, 2012 and January 31, 2014. In addition, they pleaded guilty to three counts of importing cocaine and two counts of possession of cocaine for the purpose of trafficking. [ 11 ] The Court had the opportunity to hear the testimony of eight persons duped by the accused.

Six of them had been arrested and detained in Canada or the United States, for periods ranging from 30 days to 14 months. Apart from the substantial financial loss incurred as a result of the fraudulent scheme, the victims lost the esteem of their loved ones and experienced the trauma of being detained for an offence that they did not commit. They also felt the shame of falling for such a scheme.

Their lives were simply ruined. [ 12 ] The evidence also shows that the accused conspired to involve at least three other persons: an individual arrested in Peru in February 2013 and still detained as of March 2014, an officer of the Royal Canadian Mounted Police who was part of an infiltration operation and who had numerous contacts with the accused Nwoko, and lastly, a woman who met the accused in Montreal when they were under police surveillance. [ 13 ] At the sentencing hearing, Constable Turcot said that three other persons had also been arrested and detained in Peru or Ecuador for possession of cocaine.

They were apparently victims of the same scheme. [ 14 ] The accused Ifezue was born in Canada and at the age of two years returned to live in Nigeria until 1998, when he came back to Canada. He studied for one year at Concordia University and held various jobs. He has not worked since 2010. He has a spouse and three children who are often in his care. He expresses regret for the victims. [ 15 ] He has previous convictions: 15.1. December 2008, assault. Suspended sentence with 2 years' probation. 15.2. November 2009, failure to comply with the condition of an undertaking. He was fined $100. 15.3.

May 2011, uttering threats and breach of probation. He received a $300 fine and one year's probation. 15.4. In August 2013, he received a $300 fine for fraud. 15.5. On January 10, 2014, for a theft offence committed on April 7, 2011, he received a suspended sentence with one year's probation. 15.6. For the offences of possession of narcotics, fraud, possession of counterfeit money, and breach of probation, committed on October 30, 2011, he received, on March 20, 2014, a sentence of 10 days' imprisonment and 18 months' probation. 15.7.

On May 9, 2014, he was sentenced to 70 days' imprisonment for offences related to possessing and uttering counterfeit money committed on October 26, 2011. [ 16 ] The accused Nwoko lived in Nigeria until 2000. He comes from an affluent Nigerian family that is involved in its church and its community. He studied sociology and decided to immigrate to Canada to continue his education, which he did not complete. Before his arrest, he worked for his uncle and his father in importing. [ 17 ] He has a spouse and three children. His twin sister lives in Montreal and his other sister resides in Toronto.

He has the support of his family. He expresses regret for what he has done and says he has begun to think seriously about the consequences of the crime. He is sorry for the harm caused to the victims. [ 18 ] For the offences committed in October 2011 related to possessing and uttering counterfeit money, the accused was sentenced on August 12, 2014, to three months' imprisonment. [ 19 ] The prosecution argues that, taking into account all the victims heard and those detained in Peru or Ecuador, the accused conspired to import 34 kg of cocaine.

The defence maintains that the Court should consider only the quantity imported by the persons referred to in the information and for which evidence was presented at the preliminary inquiry, i.e. approximately 20 kg. [ 20 ] Because of the many aggravating factors, the prosecution believes that the total sentence of 14 years' imprisonment for each of the accused meets the principles of sentencing. [ 21 ] The accused seeks leniency from the Court , believing that a sentence of six and a half years is appropriate.

They have been detained since their arrest on February 27, 2014, and are applying for an enhanced credit at a rate of 1.5 days for every day of detention. Applicable principles [ 22 ]

Section 718 of the Criminal Code states that the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: 22.1. To denounce unlawful conduct; 22.2. To deter the offender and other persons from committing offences;

22.3. To separate offenders from society, where necessary; 22.4. To assist in rehabilitating offenders; 22.5.

To provide reparations for harm done to victims or to the community, or to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 23 ] To arrive at a just sanction, the Court must seek a balance between the gravity of the offence and the degree of responsibility of the offender. [2] [ 24 ] To do so, the Court must assess the aggravating or mitigating circumstances relating to the offence or the offender. [3] It must also seek to impose a sentence that is similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [4] [ 25 ] If less restrictive sanctions may be appropriate in the circumstances, the Court should not impose a sentence that deprives the offender of liberty. [5] It should consider all available sanctions other than imprisonment that are reasonable in the circumstances . [6] [ 26 ] In Flores , [7] the Quebec Court of Appeal stated that in cases of conspiracy and importing of cocaine, the range of sentences established in the jurisprudence is from three to twelve years' imprisonment.

Analysis [ 27 ] The objective gravity of the offences for which the accused admit their guilt is serious, since they are punishable by imprisonment for life. [ 28 ] In Fortin , the Quebec Court of Appeal established that in cases of importing cocaine, the principles of denunciation and deterrence should be given precedence. [8] [ 29 ] In 1987, Lamer J., in a decision of the Supreme Court of Canada concerning the minimum sentence then in force for importing drugs, made the following observations that are still relevant today: Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts.

The direct cause of the hardship cast upon their victims and their families, these importers must also be made to bear their fair share of the guilt for the innumerable serious crimes of all sorts committed by addicts in order to feed their demand for drugs.

Such persons, with few exceptions (as an example, the guilt of addicts who import not only to meet but also to finance their needs is not necessarily the same in degree as that of cold - blooded non - users), should, upon conviction, in my respectful view, be sentenced to and actually serve long periods of penal servitude. [9] [ 30 ] Because of the fraudulent nature of the scheme devised by the accused to draw in their victims and then use them to transport drugs without their knowledge, the Court believes that the set of factors set out by the Quebec Court of Appeal in Lévesque [10] to assess the intrinsic liability of an accused in a fraud case can certainly be used here. [ 31 ] The Court notes that the conspiracy extended over a period of at least two years.

The harm, both financial and personal, caused to the persons who were arrested is undeniable. Added to this is the harm caused by this type of crime, which encourages the use of hard drugs and has an impact on society as a whole. [ 32 ] The Court finds that the conspiracy involved approximately 20 kg of cocaine, as shown by the evidence presented at the preliminary inquiry. [ 33 ] It is clear that the accused meticulously planned the importing of cocaine. They organized a system to identify persons likely to meet their needs.

They put a lot of effort into setting up their plan to have some credibility in the eyes of the persons they sent abroad. The accused's plan required many contacts in different countries. They also had to be able to sell the drug after it arrived in Montreal. Both accused were the instigators of this scheme. There is no evidence to support a finding that one of the accused is less liable than the other. [ 34 ] The guilty pleas of the accused were entered at the end of the preliminary inquiry, after the accused Ifezue was refused bail. It is difficult to find that the pleas came early in the judicial process.

This is a factor that enables the Court to reduce the credit normally given when a guilty plea is entered. Both accused also expressed regret during the sentencing hearing. The Court finds that this regret was expressed quite late in the process and that it cannot justify any particular leniency. [ 35 ] The two accused served a prison term in spring 2014 for offences relating to counterfeit money. These convictions are close in time – in terms of the date on which the offences were committed, i.e. October 26, 2011 – to the charges in this case.

In addition, the nature of the counterfeit money charges dovetails with the scheme organized by the accused to persuade the victims to go abroad. [ 36 ] The accused used their personal qualities to create a climate of trust with their victim, and they abused this trust. They caused their victims to unknowingly assume the risk inherent in the transportation of cocaine.

The accused were motivated solely by gain, and they completely disregarded the consequences suffered by their victims, whose only fault was to be naïve. [ 37 ] The accused believe that the Court should find that the victims' wilful blindness a mitigating factor. The Court does not accept this argument because, as the Supreme Court established in Briscoe , [11] wilful blindness applies to demonstrate criminal liability. It would be indecent for the Court to consider the credulousness and naïveté of the various persons who were duped to be mitigating factors benefiting the accused.

[ 38 ] The Court does not know how much money the accused were able to make from their criminal activities. [ 39 ] In view of all these factors, the Court finds that the inherent liability of the accused is high, and there is nothing that can diminish it for either of the accused. [ 40 ] Apart from the guilty pleas, the Court does not see any mitigating factor. The fact that the accused have children is not a factor that would allow the Court to reduce the sentence, since they were both fathers at the time of the offences. [ 41 ] There are many aggravating factors, however: 41.1.

The gravity of the offences over a two-year period; 41.2. The nature and quantity of the drugs; 41.3. The high inherent liability of the accused; 41.4. The sophisticated organization of the conspiracy to import; 41.5. The cavalier attitude of the accused regarding the consequences for the duped persons; 41.6. The number of duped persons and the impact on their lives; [ 42 ] Concerning the discretion of the sentencing judge, in Nasogaluak , the Supreme Court of Canada states: [44] The wide discretion granted to sentencing judges has limits.

It is fettered in part by the case law that has set down, in some circumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code. But it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing.

Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit.

Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. [12] [ 43 ] In light of these aggravating factors, particularly the abuse of trust of naïve and vulnerable persons by persuading them to transport cocaine without their knowledge and without concern for the consequences, the Court concludes that the sentence should fall outside the range of sentences normally imposed for conspiracy and importing of cocaine. [ 44 ] In light of all these factors, the Court holds that a total sentence of 14 years' imprisonment for each of the accused meets the principles of sentencing and, more particularly, the need for denunciation and deterrence. [ 45 ] In accordance with section 719(3.1) of the Criminal Code and the case law, the Court grants the enhanced credit of one and a half days for each day of pre-trial detention served by the accused. [ 46 ] The accused have been in custody for 14 months, since their arrest on February 27, 2014.

Although neither the prosecution nor the defence drew the Court's attention to this point, an examination of their previous convictions reveals that since the beginning of their pre-trial detention, both were sentenced to prison terms upon conviction for separate offences. These periods of detention do not constitute pre-trial detention within the meaning of section 719(3) of the Criminal Code . [13] [ 47 ] On March 20, 2014, the accused Ifezue received a sentence of 10 days in custody, and on May 9, 2014, a sentence of 70 days, for a total of 80 days.

The Court is of the view that 11 months and 1 week should be subject to the enhanced credit of one and a half days, which means that 17 months should be deducted from the total sentence of 14 years. [ 48 ] On August 12, 2014, the accused Nwoko was sentenced to 90 days in detention.

The Court believes that 11 months should be subject to the enhanced credit of one and a half days, which means that 16 months and 2 weeks should be deducted from the total sentence of 14 years. [ 49 ] Consequently, the Court: SENTENCES the accused IFEZUE, on count 1 of conspiracy to import, to a term of imprisonment of 12 years and 7 months, and on each of counts 2 to 6, to a term of imprisonment of 8 years, to be served concurrently.

SENTENCES the accused NWOKO, on count 1 of conspiracy to import, to a term of imprisonment of 12 years, 7 months and 2 weeks, and on each of counts 2 to 6, to a term of imprisonment of 8 years, to be served concurrently. PROHIBITS the accused IFEZUE and NWOKO, under

section 109 of the Criminal Code , from possessing:

a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years.

b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

__________________________________ LINDA DESPOTS, J.C.Q. Mtre Ninette Singoye and Marie-Ève Trudel, articling student Public Prosecution Service of Canada Mtre Robert Bellefeuille For the accused Hearing date: March 6, 2015 (sentencing hearing)