



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Uzondu, 2019 ONCA 146

DATE: 20190225

DOCKET: C63958

Rouleau, Trotter and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Faith Chinwendu Uzondu

Appellant

Jessica Zita, for the appellant

Lisa Mathews and Jonathan Geiger, for the respondent

Heard and released orally: February 21, 2019

On appeal from the conviction entered on July 27, 2016 by
    Justice Thomas A. Bielby of the Superior Court of Justice, sitting without a
    jury, with reasons reported at 2016 ONSC 4808, and on appeal from the sentence
    imposed on November 23, 2016 by Justice Thomas A. Bielby, with reasons reported
    at 2016 ONSC 7423.

REASONS FOR DECISION

[1]

The appellant argues that the trial judge erred in finding that she had
    the requisite
mens

rea
for possession of 486 grams of
    heroin for the purpose of trafficking, contrary to s. 5(2) of the
Controlled
    Drugs and Substances Act
. We disagree.

[2]

The trial judge found that the appellant was at the very least
    wilfully blind to the contents of the package she received. Instead of acting
    on her suspicion, the appellant chose to remain ignorant of the precise
    contents of the package. The trial judge applied the correct legal test for
    wilful blindness. His ultimate finding on this issue was supported by the
    evidence. This included the appellants text messages and the evidence as to
    the manner in which the appellant dealt with the package, especially when
    considered against the backdrop of her own evidence about how she typically
    conducted herself when dealing with stolen credit cards and fraudulent cheques.

[3]

Moreover, there was an evidentiary basis for the trial judges
    conclusion that the appellant had actual knowledge that the package contained
    heroin. It was open to the trial judge to conclude that, when the appellant was
    at the police station, nobody had mentioned the word heroin before the
    appellant said, I dont even know what heroin looks like. This was cogent
    evidence that the appellant actually knew that the package contained heroin.

[4]

The appeal from conviction is dismissed.

[5]

The appellant seeks leave to appeal from her four-year sentence. In our
    view, although the trial judge mentioned a number of factors that favoured the
    appellant, he failed to properly take into account the fact that the appellant
    had suffered a very difficult life, which included serious violence. Moreover,
    the trial judge failed to fully consider the appellants rehabilitative potential,
    which was partly demonstrated by her community involvement while in
    pre-sentence custody.

[6]

We also note that, in his sentencing reasons, the trial judge
    erroneously relied upon the appellants participation in other criminal
    behaviour (i.e., dealing in fraudulent cheques and fake passports) as an
    aggravating factor. Although the appellant admitted to these activities in her
    evidence at trial, they could not be used as an aggravating factor on the
    offence for which she was convicted.

[7]

With the consent of the Crown, we received fresh evidence concerning the
    appellants activities since being sentenced, while on bail pending appeal. The
    appellant has continued to contribute to the community in a positive way. She
    recently gave birth to her third child. Lastly, a medical report reveals that,
    while further testing is required, the appellant may suffer from a serious
    medical condition.

[8]

In our view, when all of these factors are taken into consideration, the
    goals of general deterrence and denunciation would still be achieved in this
    case by imposing a shorter sentence. Moreover, there would be little value in
    re-incarcerating the appellant when she is just a few months away from her
    statutory release date.

[9]

Accordingly, leave to appeal sentence is granted and the appeal against
    sentence is allowed by reducing the custodial portion of the appellants
    sentence to one of time served. The DNA order that was imposed at the time of
    sentencing is left undisturbed.

Paul Rouleau J.A.

Gary Trotter J.A.

B. Zarnett J.A.


