R. v. Chukwu (M.D.), (2015) 472 Sask.R. 241 (CA)

JudgeOttenbreit, Caldwell and Ryan-Froslie, JJ.A.
CourtCourt of Appeal (Saskatchewan)
Case DateDecember 10, 2015
JurisdictionSaskatchewan
Citations(2015), 472 Sask.R. 241 (CA);2016 SKCA 6

R. v. Chukwu (M.D.) (2015), 472 Sask.R. 241 (CA);

    658 W.A.C. 241

MLB headnote and full text

Temp. Cite: [2016] Sask.R. TBEd. JA.006

Michael Dozie Chukwu (appellant) v. Her Majesty the Queen (respondent)

(CACR2597; 2016 SKCA 6)

Indexed As: R. v. Chukwu (M.D.)

Saskatchewan Court of Appeal

Ottenbreit, Caldwell and Ryan-Froslie, JJ.A.

December 10, 2015.

Summary:

The accused, through his legal counsel, pleaded guilty to (i) possession of heroin for the purpose of trafficking; (ii) unlawful possession of Canadian citizenship cards (Immigration and Refugee Protection Act (IRPA), s. 122(1)(a)); and (iii) unlawful possession of Canadian social insurance cards (IRPA, s. 122(1)(a)). The accused's application to expunge his guilty pleas was dismissed.

The Saskatchewan Provincial Court sentenced the accused to 10 years' imprisonment for possession of heroin for the purpose of trafficking with ancillary orders, and 18 months concurrent for the two convictions under the IRPA. The accused sought leave to appeal and appealed both the sentence and the dismissal of his expungement application.

The Saskatchewan Court of Appeal granted the accused leave to appeal the decisions, but dismissed the appeals.

Aliens - Topic 5205

Offences - Sentences - Use or possession of a false identification document - The 39 year old accused pleaded guilty to (i) possession of heroin for the purpose of trafficking; (ii) unlawful possession of Canadian citizenship cards (Immigration and Refugee Protection Act (IRPA), s. 122(1)(a)); and (iii) unlawful possession of Canadian social insurance cards (IRPA, s. 122(1)(a)) - The trafficking offence involved 591.5 grams of 46% pure heroin, with a retail value between $485,000 and $1.632 million - This was a sophisticated trafficking scheme, whereby heroin was brought into Saskatchewan from overseas and then distributed to other parts of Canada for sale - It involved highly developed methods of concealment and the use of false identification documents - The accused role was that of a courier - He was a "trusted cog in the wheel of dissemination" - He was born and raised in Nigeria - He became a permanent resident of Canada in 2006 - In 2009, he was convicted of several offences, including fraud, impersonation and an offence relating to a counterfeit stamp - His appeal of the deportation order resulting from those convictions was working it way through the appeal process when he was charged and convicted of the current offences - He had one child from a prior relationship - Was unemployed at the time of the offences, but had a history of gainful employment - Attended church regularly when in the community and participated in Bible studies while incarcerated - A medium risk to reoffend - The trial judge sentenced the accused to 10 years' imprisonment and ancillary orders for trafficking, and 18 months concurrent for the IRPA convictions - The accused appealed, asserting that the sentence was not commensurate with similar offenders who committed similar offences - The Saskatchewan Court of Appeal dismissed the appeal - The trial judge did incorrectly identify the range of sentences applicable to the trafficking offence as being 12 to 17 years' imprisonment - That was the range of sentence in Ontario for first-time offenders convicted of importing significant quantities of heroin - Importing was a more serious offence than possession for the purposes of trafficking and generally attracted a higher sentence - However, that did not render the sentence imposed demonstrably unfit for a number of reasons - First, no range of sentences had been developed in Saskatchewan respecting possession of large quantities of heroin for trafficking purposes - Second, the failure to follow a range was not an error in principle - Ranges were guidelines only - Third, the accused's role in receiving the drugs into Canada could not be ignored - Giving the type of drug being trafficked and the quantity of drugs involved, his role in the drug scheme and his motive (profit) for committing the offences, the sentence was not demonstrably unfit - The seriousness of the trafficking offence and the accused's moral culpability supported a lengthy term of imprisonment - See paragraphs 18 to 29.

Criminal Law - Topic 4220.1

Procedure - Pleas - Whether voluntary - The accused, through his legal counsel, pleaded guilty to (i) possession of heroin for the purpose of trafficking; (ii) unlawful possession of Canadian citizenship cards; and (iii) unlawful possession of Canadian social insurance cards - His application to expunge his guilty pleas was dismissed - He appealed, asserting that he did not understand what was happening when the pleas were entered and that his lawyer did not follow his instructions - Before the expungement judge, he also argued that he did not have an opportunity to see the Crown's disclosure and thus was not properly informed about the Crown's case when the pleas were entered - The Saskatchewan Court of Appeal dismissed the appeal - The expungement judge made a number of fact findings that were determinative of the appeal: (i) while the accused's counsel did not physically give him the Crown's disclosure, he went over that disclosure with him and indicated to him that the Crown had a "fairly strong case"; (ii) the accused was knowledgeable and intelligent; (iii) his counsel did not put any pressure on him to plead guilty; (iv) there were discussions between the accused and his counsel on getting the importing charge stayed; (v) there was a "meeting of minds" between the Crown and the accused that a guilty plea would be entered on the charge of possession for the purpose of trafficking and the importing charge would be stayed; (vi) there was no misunderstanding; (vii) the accused knew he was "going to do jail time"; what was important to him was the length of that jail time; (viii) the accused had an immigration lawyer who had been dealing with his ability to remain in Canada; (ix) the accused's counsel did not tell him that he would receive an 18 month sentence if he pleaded guilty to the charge of possession for the purposes of trafficking; and (x) the length of the sentence was not agreed to and was clearly in issue - The judge was satisfied, based on the facts as found by him, that the accused's guilty pleas were voluntary, unequivocal and informed - The court found no error in law respecting his analysis - See paragraphs 8 to 12.

Criminal Law - Topic 4233

Procedure - Pleases - Guilty plea - Expungement or setting aside - [See Criminal Law - Topic 4220.1 ].

Criminal Law - Topic 5806.1

Sentencing - General - Sentence parity - General - [See Aliens - Topic 5205 ].

Criminal Law - Topic 5830.8

Sentencing - Considerations on imposing sentence - Drug and narcotic offences - [See Aliens - Topic 5205 ].

Criminal Law - Topic 5830.8

Sentencing - Considerations on imposing sentence - Drug and narcotic offences - The accused pleaded guilty to (i) possession of heroin for the purpose of trafficking; (ii) unlawful possession of Canadian citizenship cards (Immigration and Refugee Protection Act (IRPA), s. 122(1)(a)); and (iii) unlawful possession of Canadian social insurance cards (IRPA, s. 122(1)(a)) - He was sentenced to 10 years' imprisonment and ancillary orders for possession the purpose of trafficking, and 18 months concurrent for the two IRPA convictions - The accused appealed, asserting that the sentence was demonstrably unfit as there were only 3.6 grams of heroin in the package that was delivered to him - The Saskatchewan Court of Appeal held that his ground of appeal was without merit - But for the controlled delivery of the package, the accused would have taken possession of 591.5 grams of heroin, being the amount concealed in the package sent from Uganda - The accused was in constructive possession of the full amount of the heroin sent - In any event, the quantity of heroin that he would have received but for the controlled delivery, was a sentencing consideration - See paragraph 16.

Criminal Law - Topic 5842

Sentencing - Considerations on imposing sentence - Previous criminal offences - The accused pleaded guilty to (i) possession of heroin for the purpose of trafficking; (ii) unlawful possession of Canadian citizenship cards (Immigration and Refugee Protection Act (IRPA), s. 122(1)(a)); and (iii) unlawful possession of Canadian social insurance cards (IRPA, s. 122(1)(a)) - He was sentenced to 10 years' imprisonment and ancillary orders for possession the purpose of trafficking, and 18 months concurrent for the two IRPA convictions -The accused appealed, asserting that the sentence was demonstrably unfit as his criminal record was not extensive and did not contain any prior drug offences - The Saskatchewan Court of Appeal stated that the accused's record was not a mitigating factor - His record was not lengthy - His prior convictions related to five charges of fraud under $5,000, two charges of impersonating with intent, and one charge respecting a counterfeit stamp - He had no prior drug-related offences, but his record was relevant to the offences in issue here - That was so because all of the offences, including the trafficking charge, involved the possession and/or use of false identification - See paragraph 17.

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents - Sentencing ranges - [See Aliens - Topic 5205 ].

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic or a controlled drug or substance - Possession for the purpose of trafficking - [See Aliens - Topic 5205 and second Criminal Law - Topic 5830.8 ].

Narcotic Control - Topic 577

Offences - Possession - General - Constructive possession - [See second Criminal Law - Topic 5830.8 ].

Cases Noticed:

R. v. Short (K.J.) (2012), 399 Sask.R. 192; 552 W.A.C. 192; 2012 SKCA 85, refd to. [para. 8].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 12].

R. v. Lacasse (T.) (2015), 478 N.R. 319; 2015 SCC 64, refd to. [para. 14].

R. v. Chan (K.Y.) (2003), 175 O.A.C. 91; 178 C.C.C.(3d) 269; 18 C.R.(6th) 322 (C.A.), refd to. [para. 16].

R. v. Pankewich (K.J.) et al. (2002), 217 Sask.R. 111; 265 W.A.C. 111; 2002 SKCA 7, refd to. [para. 19].

R. v. Sidhu (P.S.) (2009), 245 O.A.C. 136; 242 C.C.C.(3d) 273; 2009 ONCA 81, refd to. [para. 21].

R. v. Bains (L.) (2015), 339 O.A.C. 306; 2015 ONCA 677, refd to. [para. 24].

R. v. Seman (R.B.) (1996), 110 Man.R.(2d) 72; 118 W.A.C. 72 (C.A.), refd to. [para. 34].

R. v. Shahnawaz (A.M.) (2000), 137 O.A.C. 363; 149 C.C.C.(3d) 97 (C.A.), refd to. [para. 27].

Counsel:

Michael Chukwu on his own behalf;

Wade McBride and Carleen Ready, for the respondent.

This appeal was heard and decided orally on December 10, 2015, by Ottenbreit, Caldwell and Ryan-Froslie, JJ.A., of the Saskatchewan Court of Appeal. Ryan-Froslie, J.A., subsequently delivered the following written decision for the court.

To continue reading

Request your trial
11 practice notes
  • R. v. Parranto,
    • Canada
    • Supreme Court (Canada)
    • 12 Noviembre 2021
    ...R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545; R. v. Athwal, 2017 ONCA 222; R. v. Chukwu, 2016 SKCA 6, 472 Sask. R. 241; R. v. Dritsas, 2015 MBCA 19, 315 Man. R. (2d) 205; R. v. Smith, 2016 BCSC 2148, 363 C.R.R. (2d) 365; R. v. Joumaa, 2018 ONS......
  • R v Loiacono,
    • Canada
    • Provincial Court of Alberta (Canada)
    • 30 Marzo 2022
    ...ONCA 222 (12 years for conspiracy to possess heroin for the purpose of trafficking); R. v. Chukwu, 2016 SKCA 6, 472 Sask. R. 241 (10 years for the possession of 0.59 kilograms of heroin for the purpose of trafficking); R. v. Dritsas, 2015 MBCA 19, 315 Man.......
  • 2023 BCSC 158,
    • Canada
    • 1 Enero 2023
    ...of trafficking); R. v. Athwal, 2017 ONCA 222 (12 years for conspiracy to possess heroin for the purpose of trafficking); R. v. Chukwu, 2016 SKCA 6, 472 Sask. R. 241 (10 years for the possession of 0.59 kilograms of heroin for the purpose of trafficking); R. v. Dritsas, 2015 MBCA 19, 315 Man......
  • R v Cade, Ceal, and Whaling,
    • Canada
    • Supreme Court of British Columbia (Canada)
    • 1 Febrero 2023
    ...of trafficking); R. v. Athwal, 2017 ONCA 222 (12 years for conspiracy to possess heroin for the purpose of trafficking); R. v. Chukwu, 2016 SKCA 6, 472 Sask. R. 241 (10 years for the possession of 0.59 kilograms of heroin for the purpose of trafficking); R. v. Dritsas, 2015 MBCA 19, 315 Man......
  • Request a trial to view additional results
11 cases
  • R. v. Parranto,
    • Canada
    • Supreme Court (Canada)
    • 12 Noviembre 2021
    ...R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545; R. v. Athwal, 2017 ONCA 222; R. v. Chukwu, 2016 SKCA 6, 472 Sask. R. 241; R. v. Dritsas, 2015 MBCA 19, 315 Man. R. (2d) 205; R. v. Smith, 2016 BCSC 2148, 363 C.R.R. (2d) 365; R. v. Joumaa, 2018 ONS......
  • R v Loiacono,
    • Canada
    • Provincial Court of Alberta (Canada)
    • 30 Marzo 2022
    ...ONCA 222 (12 years for conspiracy to possess heroin for the purpose of trafficking); R. v. Chukwu, 2016 SKCA 6, 472 Sask. R. 241 (10 years for the possession of 0.59 kilograms of heroin for the purpose of trafficking); R. v. Dritsas, 2015 MBCA 19, 315 Man.......
  • 2023 BCSC 158,
    • Canada
    • 1 Enero 2023
    ...of trafficking); R. v. Athwal, 2017 ONCA 222 (12 years for conspiracy to possess heroin for the purpose of trafficking); R. v. Chukwu, 2016 SKCA 6, 472 Sask. R. 241 (10 years for the possession of 0.59 kilograms of heroin for the purpose of trafficking); R. v. Dritsas, 2015 MBCA 19, 315 Man......
  • R v Cade, Ceal, and Whaling,
    • Canada
    • Supreme Court of British Columbia (Canada)
    • 1 Febrero 2023
    ...of trafficking); R. v. Athwal, 2017 ONCA 222 (12 years for conspiracy to possess heroin for the purpose of trafficking); R. v. Chukwu, 2016 SKCA 6, 472 Sask. R. 241 (10 years for the possession of 0.59 kilograms of heroin for the purpose of trafficking); R. v. Dritsas, 2015 MBCA 19, 315 Man......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT