R v Chukwu, 2016 SKCA 6

Court of Appeal for Saskatchewan Docket: CACR2597 Citation: R v Chukwu , 2016 SKCA 6 Date: 2015-12-10 Between: Michael Dozie Chukwu Appellant And Her Majesty the Queen Respondent Before: Ottenbreit, Caldwell and Ryan-Froslie JJ.A. Disposition: Leave to appeal granted; appeal dismissed (orally) Written reasons by: The Honourable Madam Justice Ryan-Froslie In concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr.

Justice Caldwell On Appeal From: Provincial Court of Saskatoon Heard: 10 December 2015 Counsel: Michael Chukwu on his own behalf Wade McBride and Carleen Ready for the Respondent Ryan-Froslie J.A. I. Introduction [ 1 ] On November 13, 2013, Michael Chukwu, through his legal counsel, pled guilty to (

i) possession of heroin for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19; (ii) unlawful possession of Canadian citizenship cards; and (iii) unlawful possession of Canadian social insurance cards. The latter offences arose under s. 122(1) (

a) of the Immigration and Refugee Protection Act , SC 2001, c 27 [ IRPA ]. Prior to being sentenced, Mr. Chukwu applied to expunge his guilty pleas. The expungement judge denied his application. Mr. Chukwu was sentenced to ten years in prison with respect to his conviction for possessing heroin for the purposes of trafficking, together with the usual ancillary orders, and 18-months concurrent to that sentence for the two convictions pursuant to s. 122(1)(

a) of the IRPA . [ 2 ] Mr. Chukwu sought leave to appeal and appealed to this Court both the expungement order and his sentence. The appeal of his expungement order was based on his contention that he did not understand what was happening when the guilty pleas were entered, and that his lawyer did not follow his instructions. He argued his sentence with respect to his trafficking conviction is demonstrably unfit. [ 3 ] After hearing Mr. Chukwu’s appeal, this Court rendered an oral decision, in which we granted Mr.

Chukwu leave to appeal the expungement order and his sentence, but dismissed his appeals with written reasons to follow. These are those reasons. II. circumstances of the offence [ 4 ] On May 4, 2013, custom officers in Frankfurt, Germany, seized a package containing heroin, addressed to a UPS store in Saskatoon. The package originated from Kampala, Uganda, and was addressed to a James Aneke. German officials sent the package to the Integrated Organized Crime North Unit in Saskatoon (IOCN). The package consisted of African clothing and scarves.

Concealed within the walls of the cardboard box, which held the clothing and scarves, officials found 591.5 grams of 46 percent pure heroin with a value of between $485,000 and $1.632 million. [ 5 ] On June 6, 2013, pursuant to a general warrant and assistance order, IOCN officers conducted a controlled delivery of the package. All of the heroin, except 3.6 grams, had been removed from the package. An undercover officer, acting as an employee of the UPS store, called the telephone number on the package.

An automated voice message system answered, stating the number was not available or was not equipped for incoming calls. An hour later however, Mr. Chukwu arrived at the UPS store to retrieve the package. Mr. Chukwu stated James Aneke was his cousin and recited by memory the 13-digit tracking number associated with the package. Mr. Chukwu was asked for proof of identification and to sign for the package. He hesitated in providing identification, saying to the store manager “you know me”, to which the store manager said “this is Charles.” Mr.

Chukwu then printed the name “Charles” on the signature portion of the receipt. The store manager advised the undercover agent that Mr. Chukwu had a post office rental agreement in the name of “Charles Madula”. [ 6 ] IOCN officers followed Mr. Chukwu from the UPS store to his residence, where he and his girlfriend were arrested. A search warrant with respect to the residence was executed and a number of false identification cards including Canadian citizenship and social insurance cards, drivers’ licenses and credit and bank cards were found.

Among the documents, were social insurance cards and drivers’ licenses in the names of “James Aneke” and “Charles Madula”. [ 7 ] Mr. Chukwu was charged with a number of offences. In addition to the charges to which he pled guilty, he was also charged

with one count of possession of fake identity information for the purposes of committing an indictable offence, namely, the importationof heroin, and one count of unlawfully importing heroin. These two charges were stayed when Mr. Chukwu pled guilty to the chargesnow in issue. III. the expungement appeal [8] In R v Short, 2012 SKCA 85, 399 Sask R 192, Caldwell J.A. of this Court aptly summarized the principles relating to theexpungement of a guilty plea as follows: [3] A guilty plea is valid if it is voluntary, informed and unequivocal: (R. v. T.(R.) (1992), (ON CA), 10 O.R. (3d)514 (C.A.).

A guilty plea made in open court is presumed valid, and an appellate court is not empowered to set it aside, unless theaccused can prove it was not voluntary, informed or unequivocal. An accused who applies to expunge a plea for the first time on anappeal bears the onus of proving the plea is invalid but must obtain leave of this Court to do so (Criminal Code, s. 675(1)(a)(iii), and R.v. Kim, 2011 SKCA 74, 272 C.C.C. (3d) 15).

If leave is granted and the plea is proven invalid, the appellate court may properly set asidethe plea where the appellant establishes that there has been a miscarriage of justice (Criminal Code, s. 686(1)(a)(iii); R. v. G.D.B., 2000SCC 22, [2000] 1 S.C.R. 520; and R. v. Kim). [4] A miscarriage of justice will occur where a verdict is rendered unreliable due to incompetent representation by trial counsel ifthe appellant also demonstrates that, had trial counsel performed competently, there is a reasonable possibility that the verdict could havebeen different. (R. v. G.D.B.; R. v.

Archer (2005), (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.); R. v. Joanisse (2005), (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.); and R. v. Kim) We, therefore, grant Mr. Short’s application for leave toappeal pursuant to s. 675(1)(a)(iii). [9] In this case, Mr. Chukwu contends he did not understand what was happening when the guilty pleas were entered and thathis lawyer did not follow his instructions when entering those pleas.

Before the expungement judge, he also argued he did not have anopportunity to see the Crown’s disclosure and thus was not properly informed about the Crown’s case when the guilty pleas wereentered. [10] Mr. Chukwu was represented by experienced legal counsel at the expungement hearing. That legal counsel acknowledged thatthe Crown had a “cogent case” and a “reasonable likelihood of conviction” if a trial were held. Mr. Chukwu’s defence would depend onCharter arguments. [11] The presiding judge heard testimony from Mr. Chukwu and the lawyer who represented him at the time the guilty pleas wereentered.

In rendering his decision, the judge made a number of findings of fact that, in our view, are determinative of Mr. Chukwu’sexpungement appeal: (

i) while Mr. Chukwu’s legal counsel did not physically give him the Crown’s disclosure, he went over that disclosure withMr. Chukwu and indicated to him that the Crown had a “fairly strong case”; (ii) Mr. Chukwu is knowledgeable and intelligent; (iii) his legal counsel did not put any pressure on him to plead guilty; (iv) there were discussions between Mr. Chukwu and his lawyer with respect to getting the importing charge stayed; (

v) there was a “meeting of minds” between the Crown and Mr. Chukwu on November 13, namely, that a guilty plea would beentered with respect to the charge of possession for the purpose of trafficking heroin and that the importing charge would be stayed; (vi) there was no misunderstanding; (vii) Mr. Chukwu was aware he was “going to do jail time” – what was important to him was the length of that jail time; (viii) Mr. Chukwu had an immigration lawyer who had been dealing with his ability to remain in Canada; (ix) Mr. Chukwu’s lawyer did not tell Mr. Chukwu that he would receive a sentence of 18 months if he pled guilty to the charge ofpossession for the purposes of trafficking; and (

x) the length of sentence Mr. Chukwu would receive was not agreed to and was clearly in issue. [12] Findings of fact made by a trial judge are entitled to deference and can only be set aside on appeal if the judge made apalpable and overriding error (see Housen v Nikolaisen, 2002 SCC 33 at para 10, [2002] 2 SCR 235). We could find no such error in thiscase. The judge correctly identified that the real issue before him was whether Mr. Chukwu’s guilty pleas were voluntary, unequivocaland informed. The judge was satisfied, based on the facts as found by him, that they were.

We could find no error in law with respect tohis analysis and, accordingly, Mr. Chukwu’s expungement appeal was dismissed. IV. The sentence appeal [13] While we granted Mr. Chukwu leave to appeal his sentence, we also dismissed that appeal. [14] We begin by noting that sentencing decisions should be accorded great deference by appellate courts. An error in principle, afailure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor, will justify appellate

intervention, but only where it appears from the trial judge’s decision that such an error had an impact on the sentence imposed (see R vLacasse, 2015 SCC 64 at para 44 [Lacasse]). An appellate court will also be justified in intervening if the sentence is demonstrablyunfit. This is so, even if the judge made no error in imposing it (see Lacasse at para 52). [15] In this case, Mr. Chukwu argues his sentence is demonstrably unfit for following reasons: (

i) there were only 3.6 grams of heroin in the package he picked up; (ii) his criminal record is not extensive and does not contain any prior drug offences; and (iii) his sentence is not commensurate with similar offenders who committed similar offences – it is unduly harsh. [16] It is clear that, but for the controlled delivery, Mr. Chukwu would have taken possession of 591.5 grams of heroin, being theamount concealed in the package sent from Uganda. In our view, Mr. Chukwu was in constructive possession of the full amount of theheroin sent.

In any event, the quantity of heroin he would have received but for the controlled delivery, would be a factor forconsideration in sentencing him (see R v Chan (2003), (ON CA), 178 CCC (3d) 269 at para 74 [Chan]).Accordingly, this ground of appeal is without merit. [17] Mr. Chukwu does not have a lengthy criminal record. His prior convictions relate to five charges of fraud under $5000, twocharges of impersonating with intent, and one charge with respect to a counterfeit stamp. He has no prior drug-related offences, but hisrecord is relevant to the offences in issue here.

This is so because all of the offences, including the trafficking charge, involved thepossession and/or use of false identification. His criminal record is not a mitigating factor. [18] Mr. Chukwu’s argument that his sentence is demonstrably unfit is also without merit. As Wagner J. pointed out in Lacasse atpara 52, there is a “very high threshold” to be met before appellate courts will intervene on this basis.

A sentence will be demonstrablyunfit if it constitutes an unreasonable departure from the principle of proportionality, that is, that the sentence must be “proportionate tothe gravity of the offence and the degree of responsibility of the offender” (see Lacasse at para 53). [19] Jackson J.A. of this Court in R v Pankewich, 2002 SKCA 7 at para 49, 217 Sask R 111 [Pankewich], stated that the fitness ofa sentence in the trafficking of hard drugs will depend on a wide variety of factors, including: … 1. the sophistication and significance of the offence and the accused’s place in it; 2. the type and quantity of drug; 3. the motivation for the offence: those who traffic to support their own habit may be more likely to receive a restorative disposition thanthose who traffic for other reasons; 4. the need for and the utility of the deterrence which will be provided by the sentence imposed; 5. the factors relating to the community like the significance of the problem; and, 6. the age, lack of record and other personal circumstances of the accused. [20] Mr.

Chukwu was involved in a sophisticated trafficking scheme, whereby heroin was brought into Saskatchewan fromoverseas and then distributed to other parts of Canada for sale. The scheme involved highly-developed methods of concealment and theuse of false identification documents. While Mr. Chukwu’s role in the scheme was described as that of a courier, it was his job to receivethe drugs from overseas and distribute them. He was not a naïve young man duped by the kingpin of this operation.

He was a trusted cogin the wheel of dissemination. [21] Heroin was described by the Ontario Court of Appeal in R v Sidhu, 2009 ONCA 81 at para 12, 242 CCC (3d) 273 [Sidhu] as“the most pernicious of the hard drugs -- it is the most addictive, the most destructive and the most dangerous. Heroin trafficking hasbeen described as a ‘despicable’ crime and one that ‘tears at the very fabric of our society’ [authorities omitted].” [22] Mr. Chukwu’s offence involved 591.5 grams of 46 percent pure heroin, with a retail value between $485,000 and $1.632million.

This is a significant amount of heroin with the potential to adversely affect the lives of many people. Based on the testimony ofMr. Chukwu’s girlfriend at the sentencing hearing, this was not a one-time event for Mr. Chukwu, whose motivation was money. [23] Heroin is not a major problem in this province, but it is a significant problem in other parts of the country, such as Vancouver,Toronto and Montreal. The drugs in issue here were earmarked for distribution elsewhere. The fact that heroin is not a significantproblem in Saskatchewan is of no consequence in sentencing Mr. Chukwu.

This is so because of the nature and circumstances of hisoffence, which have interprovincial repercussions. [24] Denunciation and deterrence are the most important objectives when sentencing offenders for trafficking in hard drugs,especially heroin (see Pankewich at para 34; R v Bains, 2015 ONCA 677 at para 193 [Bains]; Chan at para 76; and R v Seman (1996), (MB CA), 110 Man R (2d) 72 (CA) at para 15). [25] Mr. Chukwu is 39 years of age. He was born and raised in Nigeria. There was nothing unusual about his upbringing. Hegraduated from high school and attended missionary school in Nigeria.

He came to Canada in 2001, using a false passport and, once here,claimed refugee status. His claim for refugee status was denied but, by that time, he had married a Canadian woman who applied tosponsor him. He was allowed to remain in Canada and became a permanent resident in 2006. In 2009, Mr. Chukwu was convicted ofseveral criminal offences, including fraud, impersonation and an offence relating to a counterfeit stamp. As a result of those convictions,an order for deportation was made. Mr. Chukwu appealed that order and the matter was working its way through the appeal process

when he was charged and convicted of the offences in issue here. While Mr. Chukwu is not currently in a relationship, he has at least onechild of his own from a prior relationship. He was unemployed at the time of the offence, but has a history of gainful employment andseveral of his former employers provided positive letters of support. Mr. Chukwu attended church regularly when in the community andis participating in Bible studies while incarcerated. He does not have any drug or alcohol issues and is at medium risk to reoffend.

Hisconviction and sentence will likely have a negative impact on his ability to remain in this country. [26] In arriving at his sentence, the trial judge incorrectly identified the range of sentences applicable to Mr. Chukwu’s traffickingoffence as being 12 to 17 years in prison. That is the range of sentences in Ontario for first-time offenders convicted of importingsignificant quantities of heroin (see Sidhu at para 14). Importing is a more serious offence than possession for the purposes of traffickingand generally attracts a higher sentence. In our view, however, this error does not render Mr.

Chukwu’s sentence demonstrably unfit for anumber of reasons. [27] First, heroin is not a common drug in this province and, as such, no range of sentences has been developed here with respect toconvictions relating to possession of large quantities of heroin for the purpose of trafficking. In Ontario, first-time offenders found guiltyof such offences receive sentences in the range of 9 to 12 years (see R v Shahnawaz (2000), (ON CA), 149 CCC (3d)97 (Ont CA) at para 6 and Bains at para 192). Mr.

Chukwu’s sentence falls at the lower end of that range. [28] Second, the failure to follow a range is not an error in principle. Ranges are guidelines, no more (see Lacasse at para 57). Thequestion is not whether the trial judge followed the guidelines but, rather, whether the sentence imposed was demonstrably unfit. In thiscase, the predominant sentencing objectives are denunciation and deterrence. The trial judge recognized this in determining a lengthysentence of imprisonment was appropriate. [29] Third, while Mr.

Chukwu was charged with trafficking, his role in receiving the drugs into Canada cannot be ignored insentencing him. Given the type of drug (heroin) being trafficked and the quantity of drugs involved, Mr. Chukwu’s role in the drugscheme and his motive for committing the offence in the circumstances in this case, a sentence of ten years is not demonstrably unfit.The seriousness of the offence and Mr. Chukwu’s moral culpability supports the imposition of a lengthy term of imprisonment. V. conclusion [30] Leave was granted to Mr. Chukwu to appeal both the expungement order and his sentence.

Both of those appeals weredismissed.