R v Seyoume, 2018 NWTSC 14
S-1-CR2017000070
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- vs. -
YOHANNES SEYOUME
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Transcript of the Reasons for Sentence by The Honourable
Justice S. H. Smallwood, at Yellowknife in the Northwest
Territories, on February 8th A.D., 2018.
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APPEARANCES:
Mr. D. Praught: Counsel for the Crown
Mr. P. Harte: Counsel for the Accused
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Charge under s. 5(1) Controlled Drugs and Substances Act
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1 THE COURT: Yohannes Seyoume has pleaded
2 guilty to trafficking in cocaine, contrary to
3 section 5(1) of the Controlled Drugs and
4 Substances Act. A guilty plea was entered on
5 November 6th, 2017, and the matter was
6 adjourned for sentencing to February 5th,
7 2018. It is now my task to sentence Mr.
8 Seyoume for this offence.
9 The facts of the offence were included in
10 an Agreed Statement of Facts. Briefly, they
11 are:
12 The charge arises from a major
13 investigation conducted by the RCMP into drug
14 trafficking activities in Yellowknife and in
15 the Northwest Territories. The objective of
16 the project (named Project Green Manalishi)
17 was to disrupt and dismantle networks
18 responsible for high-level trafficking in the
19 Northwest Territories. As part of the
20 investigation, the RCMP were granted a
21 judicial authorization to monitor the private
22 communications of multiple individuals. A
23 number of telephone calls and text messages
24 were intercepted suggesting that Mr. Seyoume
25 was trafficking cocaine in Yellowknife as part
26 of the drug trafficking network associated
27 with Todd Dube.
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1 Between February 25th and April 4th, 2016,
2 Mr. Seyoume sold crack cocaine under the
3 direction of Mr. Dube in conjunction with
4 three other individuals. Mr. Seyoume and
5 three others worked a dial-a-dope phone. The
6 dial-a-dope phone was operated 24 hours a day,
7 every day. Mr. Seyoume and three others took
8 turns working 12-hour shifts with the phone.
9 Mr. Dube supplied them with crack cocaine
10 which they then sold. The arrangement was
11 that Mr. Dube would front them an ounce of
12 crack cocaine for approximately $2300. That
13 ounce would typically be divided into 50 to 55
14 street grams weighing approximately .5 grams
15 each. A street gram would then be sold for 80
16 to $100. The money in excess of the cost of
17 the ounce of cocaine would be profit kept by
18 the dial-a-dope phone operators. Upwards of
19 two ounces of crack cocaine a day were sold
20 through the dial-a-dope phone.
21 On April 4th, 2016, the RCMP executed a
22 number of search warrants and made several
23 arrests. A search warrant was executed at the
24 residence of Mr. Dube and Mr. Seyoume. Drugs,
25 drug paraphernalia, cell phones, and cash were
26 seized at the residence.
27 Mr. Seyoume was arrested with Mr. Dube
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1 outside of a restaurant in Yellowknife. At
2 the time of his arrest, he had $325 in cash on
3 him and three cellular phones.
4 The Crown is seeking a sentence of 30 to
5 36 months incarceration less credit for remand
6 time. The defence is seeking a sentence of
7 two years less a day imprisonment.
8 Both counsel in their submissions referred
9 to the sentencing principles applicable to
10 trafficking in cocaine. The Crown referred to
11 the case of R v. Lau, 2004 ABCA 408, and R. v.
12 Maskell, 1981 ABCA 50, decisions of the
13 Alberta Court of Appeal which set the
14 starting-point for trafficking in cocaine at
15 the commercial level at three years
16 imprisonment and for trafficking at the
17 wholesale level at four and a half years
18 imprisonment.
19 Defence counsel challenged the reasoning
20 in Maskell as no longer being appropriate and
21 being flawed in its analysis, arguing that it
22 is inappropriate to send a message to others
23 on the back of other offenders; it is contrary
24 to the applicable sentencing principles.
25 In Maskell, the Court of Appeal stated, at
26 paragraph 16:
27 Cocaine is a very powerful drug.
It is a narcotic drug. Its
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1 non-medical use can lead to many
undesirable results. The
2 trafficking in it is highly
undesirable. Trafficking in the
3 drug must be deterred. It is a
very expensive drug so that huge
4 profits can be made from its
illegal sale. It is our duty to
5 deter people from using it and
from trafficking in it.
6 Deterrence is and remains the most
important element in the
7 sentencing process. It calls for
imprisonment and not for a short
8 nominal term.
9 Maskell is a decision that is some 36
10 years old now. It was decided before the
11 amendments to the sentencing regime in 1996.
12 However, it continues to be applied in Alberta
13 and in this jurisdiction. Despite the passage
14 of time, the Alberta Court of Appeal has
15 continue to endorse Maskell in cases like
16 Rahime 2001 ABCA 203, where, at paragraphs to
17 18 to 19, the Court stated:
18 For over twenty years, beginning
with the decision in R. v. Maskell
19 supra, this Court has offered
guidance to sentencing judges in
20 cocaine trafficking cases by
establishing a starting-point of
21 three years incarceration in cases
of a commercial operation on
22 something more than a minimal
scale.
23
24 It is worth repeating that the
guidance given is simply a
25 starting-point. It is implicit in
that concept that the sentencing
26 Judge may depart from the
starting-point by increasing or
27 decreasing the severity of the
sentence depending on the
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1 sentencing Judge's assessment of
the aggravating and mitigating
2 circumstances presented by the
offender and the offence.
3
4 The Alberta Court of Appeal also expressly
5 refused to reconsider Maskell in R. v. Melnyk,
6 2014 ABCA 313. This tells me that the Alberta
7 Court of Appeal continues to consider
8 deterrence and denunciation appropriate
9 sentencing principles in cases of trafficking
10 in cocaine and that the starting-point
11 established in Maskell continues to be
12 applicable.
13 In R. v. Arcand, 2010 ABCA 363, the
14 Alberta Court of Appeal specifically endorsed
15 the use of starting-points, stating at
16 paragraph 108:
17 In summary, starting-point
sentencing accords with the
18 proportionality principle. It is
hostile to rigidity and actively
19 embraces the aim of a proportional
sentence fit for the offence and
20 the offender. The argument that
it unreasonably confines "judicial
21 discretion" is misplaced. Every
process of reasoning must start
22 somewhere and it needs acceptable
standard reference points along
23 the way. Starting-point
sentencing is not only loyal to
24 Parliament's will - and the
governing proportionality
25 principle it has mandated - but
antithetical to randomness and
26 arbitrariness, the polar opposite
of judicial decision-making.
27
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1 The starting-point established in Maskell
2 has been adopted and followed here in the
3 Northwest Territories for many years. For
4 example, in the case of R. v. Mohammed, 2015
5 NWTSC 38, at page 5, Justice Charbonneau
6 stated:
7 It is interesting to reread the
Maskell decision because back in
8 1981, cocaine was not as well
known a drug as it is today. If
9 anything, the passage of time has
confirmed that the Alberta Court
10 of Appeal was very right to treat
it as a highly addictive, highly
11 dangerous, and highly destructive
drug.
12
13 It has been said many times that the drug
14 trade (trafficking in cocaine and crack
15 cocaine) has had a devastating effect on the
16 people in Yellowknife and elsewhere in the
17 Northwest Territories. Cocaine has destroyed
18 lives. People become addicted to this drug.
19 They commit crimes to get money to purchase
20 cocaine. They will traffic in cocaine to
21 support their addiction. While under the
22 influence of cocaine other offences are
23 committed often. And cocaine is often sold to
24 those that are the most vulnerable, those who
25 are most in need of help, and those that
26 traffic in cocaine contribute directly to
27 plague of cocaine addiction. They prey on the
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1 most vulnerable members of the community for
2 profit.
3 Cocaine is an illegal drug. There can be
4 debates about whether cocaine or alcohol or
5 some other drugs have had a more devastating
6 impact in the Northwest Territories, and on
7 the morality of the government's choice in
8 what is legal and what is not legal. But it
9 is not the role of the Courts to decide what
10 should be legal and what should be illegal and
11 what should be regulated. That is the job of
12 our elected officials.
13 It is my responsibility to sentence Mr.
14 Seyoume for trafficking in cocaine, which
15 Parliament has decided is illegal and
16 punishable by up to a maximum of life
17 imprisonment. So it is considered a serious
18 offence by lawmakers and has been considered a
19 serious offence by the Courts.
20 The sentences that the Courts have imposed
21 have been harsh, designed to emphasize the
22 sentencing principles of denunciation and
23 deterrence - denunciation being to express
24 society's condemnation of this conduct and
25 deterrence to deter Mr. Seyoume and others
26 from engaging in this activity.
27 As the Court stated in R. v. Hodges, 2015
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1 NWTSC 59, at pages 9 and 10:
2 The Courts have a duty to impose
sentences that will reflect the
3 strong condemnation of these
activities, that will reflect the
4 terrible harm that these
activities cause, and that will
5 deter others, if that is possible,
from engaging in this when they
6 are here or from coming here to
engage in this activity because it
7 is so lucrative and the north
offers an attractive market for
8 it.
9
Courts in the Northwest
10 Territories have not been known
for having a particularly soft
11 approach in sentencing drug
traffickers over the last few
12 decades. It would appear the
message is not getting through.
13 Maybe there is still too much
money to be made and too much
14 greed out there. Maybe Courts
will have to revise their
15 sentencing practices and make it
even less attractive for
16 traffickers to do business here
because evidently many people
17 still think it is worth taking the
risk to make lots of money out of
18 it.
19 In sentencing for trafficking in cocaine,
20 and in consideration of Maskell and the other
21 cases that have imposed similar sentences, I
22 do not view this as sending a message to other
23 offenders on the back of Mr. Seyoume or any
24 other person who comes before the Court for
25 sentencing on this offence. If anything, the
26 message is on the back of those whose lives
27 have been devastated by their addiction to
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1 crack cocaine.
2 In considering the mitigating and
3 aggravating factors, it is mitigating that Mr.
4 Seyoume entered a guilty plea. It was not at
5 the earliest opportunity but he did waive his
6 preliminary inquiry and this matter was a
7 complicated matter involving a lot of
8 disclosure and the matter was never set for
9 trial. If this matter had proceeded to trial,
10 it would have consumed a significant amount of
11 time and resources so it is to Mr. Seyoume's
12 credit that he did waive the preliminary
13 inquiry and enter a guilty plea. So he
14 deserves full credit for his guilty plea.
15 As well, Mr. Seyoume is 21 years old and
16 he has no prior criminal record. He is
17 youthful and this is his first conviction.
18 It is aggravating, the circumstances of
19 the offence. Mr. Seyoume was one of four
20 individuals who operated a dial-a-dope drug
21 phone which used to sell approximately two
22 ounces of crack cocaine per day in
23 Yellowknife. The amount of cocaine sold was
24 significant, clearly putting it within the
25 commercial level of trafficking.
26 Based on the Crown's calculations, this
27 was a lucrative endeavor for Mr. Seyoume,
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1 earning anywhere between $5100 to $8100 per
2 week for him alone. And it is attractive
3 money that can be earned by young people, the
4 lure of easy money.
5 As well, it is statutorily aggravating
6 that this offence was committed in conjunction
7 with a criminal organization, and I am
8 satisfied, as was found in the sentencing of
9 Todd Dube, that this was a criminal
10 organization.
11 The trafficking of drugs, like cocaine,
12 has been and continues to be a serious problem
13 in Yellowknife and unfortunately has spread to
14 some of the other communities. It does not
15 seem like this problem will go away any time
16 soon and with the lure of easy money, it is
17 not hard to see why.
18 Defence counsel advised of Mr. Seyoume's
19 personal circumstances. He is Somalian who
20 was born in a refugee camp in Kenya. He came
21 to Canada when he was seven, along with his
22 family. He has lived in several places in
23 Canada. Many members of his family have been
24 successful in Canada.
25 Mr. Seyoume came to Yellowknife for a job
26 but ended up involved with Todd Dube and his
27 drug trafficking network.
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1 I am advised as a result of the sentence
2 that there is a risk that Mr. Seyoume may be
3 deported to Kenya as sentences which involve
4 six months of imprisonment involve the risk of
5 deportation. That is unfortunate and it seems
6 that that was a huge risk for Mr. Seyoume to
7 take with his future but he has to bear the
8 consequences of his actions. Ultimately what
9 occurs will be up to the Immigration
10 authorities.
11 In determining a fit sentence for Mr.
12 Seyoume, it is also important to consider the
13 principle of parity and what sentences were
14 imposed on others who were involved in the
15 criminal organization.
16 Ajanthan Mahalingam was another operator
17 of the dial-a-dope phone and sold crack
18 cocaine. I am told that the facts of his
19 involvement were identical to Mr. Seyoume's.
20 His circumstances were that he was 23 years
21 old, from Toronto, and had one prior
22 conviction for possession of a controlled
23 substance. He entered a guilty plea to
24 trafficking in cocaine and received a sentence
25 of 30 months.
26 Byron Bibby was another individual who
27 operated the dial-a-dope phone and the facts
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1 of his involvement, I am told, were also
2 similar to Mr. Seyoume. He was 24 years old
3 and had a criminal record with three prior
4 convictions, including two previous
5 convictions for trafficking, one of those as a
6 youth. At the time of the offence he was on
7 bail for an offence alleged to have been
8 committed in Alberta. He pleaded guilty to
9 trafficking in cocaine and received a sentence
10 of 36 months.
11 The other person who operated the
12 dial-a-dope phone has not been dealt with as
13 there is an outstanding warrant for their
14 arrest.
15 First, I will deal with the ancillary
16 orders requested by the Crown. Defence
17 counsel has not taken any issue with them.
18 Section 5(1) of the Controlled Drugs and
19 Substances Act is a secondary designated
20 offence pursuant to section 487.04 and there
21 will be an order pursuant to the 487.051 for
22 the taking of Mr. Seyoume's DNA for the
23 databank.
24 Pursuant is section 109, a firearms
25 prohibition order is mandatory, and Mr.
26 Seyoume will be prohibited from possessing
27 firearms for a period of ten years following
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1 his release from imprisonment.
2 There will also be a victim of crime
3 surcharge of $200 payable in accordance with
4 the regulations.
5 Mr. Seyoume was in custody on this matter
6 for a period of time before his release on a
7 recognizance. He was arrested on April 4th,
8 2016 and was in custody until August 26th,
9 2016 when he was released on a recognize.
10 This amounts to 145 days which, at one and a
11 half to one credit, amounts to 217 days or
12 just over seven months of remand credit which
13 will be deducted from Mr. Seyoume's sentence.
14 I have considered what an appropriate
15 sentence is, given the circumstances of the
16 offence, Mr. Seyoume's personal circumstances,
17 and the applicable sentencing principles.
18 Please stand up, Mr. Seyoume.
19 For the offence of trafficking in cocaine,
20 I sentence you to a period of imprisonment of
21 30 months. You will be given credit for seven
22 months pre-trial custody leaving a sentence of
23 23 months to be served.
24 You may sit down.
25 Is there anything else on this matter,
26 counsel?
27 MR. PRAUGHT: No, Your Honour.
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1 MR. HARTE: Your Honour, I am not
2 certain where Correctional authorities will
3 end up leaving him. I expect that he will
4 remain in the territorial system but his only
5 relative within any proximity of a
6 correctional institution is his father, who is
7 resident in Yellowknife which was why he ended
8 up here in the first place, and I ask the
9 Court to endorse, just so that there is no
10 uncertainty as to where he ends up, that he be
11 permitted to serve his sentence in
12 Yellowknife.
13 THE COURT: I will endorse that on the
14 warrant of committal, that there be a judicial
15 recommendation that the authorities consider
16 allowing him to serve his sentence here.
17 MR. HARTE: Thank you, Your Honour.
18 THE COURT: Thank you, counsel.
19 ------------------------------
20 Certified to be a true and
accurate transcript pursuant
21 to Rules 723 and 724 of the
Supreme Court Rules,
22
23
24
25
26 ____________________________
27 Lois Hewitt,
Court Reporter
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