For what could be the first time in the NWT, a proposed federal law allowing house arrest for those convicted of trafficking hard drugs was cited by the prosecution in a sentencing hearing.
A “significant backlog” of cases caused by the Covid-19 pandemic was also mentioned as the Crown invited a judge to accept a plea agreement for a man found dealing crack cocaine in a Yellowknife apartment block in February 2021.
“It is time for some measure of change in our approach to drug-related activities,” said prosecutor Matthew Scott in NWT Territorial Court on Wednesday. On the same day, MPs passed Bill C-5, which widens the range of sentencing options available to judges for more serious drug offences. The bill now heads to the Senate.
Daniel Ashenaf Birru, of Edmonton, was arrested in February 2021 after selling “spitballs” of crack cocaine to an undercover RCMP officer in a hallway of the Bison Hill apartment building in central Yellowknife. He was found with $660 in cash.
Originally charged with possession for the purpose of trafficking, the unemployed former oilsands worker was sentenced on a different charge, possession of the proceeds of trafficking, in a plea bargain that will see him spend his jail time at home.
Scott said the Crown’s “willingness to take the plea to this related offence, to possessing the proceeds of trafficking, is part of our revisited approach to the trafficking of drugs.”
If eventually convicted of trafficking, Birru would have faced a significant sentence. By pleading guilty to a lesser charge, he will be able to serve his time at home with his young family while earning an income in his new job.
The guilty plea also clears one more case from a backlog of charges, attributed to a court shutdown during the pandemic, that is straining the justice system and could soon prompt Charter challenges for unreasonable delay.
Birru’s original charge would have been eligible for a preliminary hearing and full jury trial had he pleaded not guilty.
Scott noted Birru is employed, has no criminal record and is remorseful for his actions.
The court heard he came to Yellowknife after the pandemic dried up job opportunities in the oilsands but found no work here either. He fell in with people who introduced him to hard drugs and showed him how he could make money by being what the Crown characterized as a “low-level runner” delivering drugs to customers.
“Perhaps one of the best things that happened to him is that he got caught,” said defence lawyer Jay Bran, noting his client obeyed all bail orders while in Edmonton. “His only goal is to take care of, and provide for, his family.”
Once enacted, Bill C-5 promises to repeal some mandatory minimum penalties, allow greater use of conditional sentences, and establish diversion measures for simple drug possession offences.
The bill defines substance use as primarily a health and social issue that also contributes to the “disproportionate” incarceration of Indigenous peoples, Black Canadians and members of marginalized communities.
The cocaine trade – specifically crack cocaine – has long been considered a major societal scourge in the NWT. Non-residents are frequently convicted of trafficking, possessing or profiting from cocaine.
“Our market in Yellowknife is a very appealing one,” said former territorial court chief judge Christine Gagnon in 2019, noting criminals come north to prey on vulnerable addicts.
“The courts must send a message that drug trafficking is strongly denounced up here. People come up here to make a fast turnaround – they sell drugs and they leave.”
In Birru’s case, possession for the purpose of trafficking – his original charge – currently carries a mandatory minimum sentence. Bill C-5 would remove that mandatory minimum. Possession of the proceeds of trafficking carries no mandatory minimum.
Birru, 36, apologized for “making a big mistake” and said he wants to return to his wife, who is expecting a child.
“In this case, a conditional sentence order can be imposed,” stated Judge Jeannie Scott in delivering her decision for an eight-month term, to be followed by one year of supervised probation.
“You’re not convicted here for trafficking, but for possession of property obtained by proceeds of trafficking. And in this case, the property is of limited value in terms of cash seized.”
Birru will be under house arrest for four months, followed by four months’ nightly curfew, among other restrictions. He will be able to travel to work, including shifts at remote sites in the oilsands.
That will be followed by supervised probation for one year.
Birru had a ticket for a flight home to Edmonton on Wednesday evening.