No jail time for man convicted of possessing cocaine for trafficking in Yellowknife

A man convicted of possessing cocaine for the purposes of trafficking in Yellowknife, stemming from charges laid six years ago, has received an 18-month conditional sentence, meaning he will not serve jail time.

Noel Tesfazion, 37, was searched and arrested in the Walmart parking lot in Yellowknife in May 2019. He was found with 30 small bags of cocaine, each of which amounted to less than a gram. Tesfazion admitted that the drugs were meant to be sold.

At Tesfazion's sentencing this week, the Northwest Territories Supreme Court heard about the seriousness of drug crimes, as well as how, in the years since Tesfazion's arrest, he had turned his life around. 

The Crown and defence had agreed in seeking an 18-month sentence, but differed on how that sentence should be served: the Crown asked for jail time, while the defence wanted it served in the community, with conditions.

Crown prosecutor Brendan Green acknowledged that anti-Black racism, and Tesfazion's status as a racialized offender, can reduce moral blameworthiness, but said that in this case, Tesfazion's moral blameworthiness was "quite high" as he got into cocaine trafficking "purely for profit," and not because he was dealing with trauma or addiction.

Defence lawyer Nathan Gorham argued that Tesfazion was "not the organizer or mastermind" of the drug operation, but a ground-level trafficker who got involved out of financial need. 

Gorham also noted how Tesfazion's family escaped war-torn regions of Eritrea and Ethiopia when he was a toddler, and that he was raised by a single mother. 

Gorham said that while out on bail, Tesfazion worked and built a life with his wife and young daughter, and that he poses no risk to the public.

'It tears me apart'

Speaking before the court on Thursday, Tesfazion said he has committed to living an honest life, but that even in his happiest moments, his charges haunt him.

"The fear of being separated from my daughter… leaving my wife… it tears me apart," he said.

He described his experience as humbling and deeply embarrassing.

In her sentencing, Justice Shannon Smallwood said cocaine is a significant problem in the Northwest Territories, contributing to social problems.

She also said that anti-Black racism can impact offenders in ways that affect their moral culpability.

Smallwood spoke about how Tesfazion has changed his life: he earned a university degree, found a good job, mentored at-risk youth, married and had a child.

She said this evolution is significant, and that Tesfazion is not a danger to the community.

Smallwood decided that he can serve his 18-month sentence from home in Ontario, with restrictions on his movement, and requirements to report to a conditional sentence supervisor. He must also complete 100 hours of community service.

"I hope you continue and you keep up with what you've been doing because it's obviously been successful," she told him. "Good luck."

Charter challenges

At the time of Tesfazion's arrest, police linked him to an apartment from which they seized 2,900 small bags of crack cocaine, 157 grams of cocaine and $1,600 in cash. 

The Crown said this week that Tesfazion wasn't in control of that stash house. He wasn't convicted in relation to that seizure.

Though Tesfazion maintained his not-guilty plea, he did sign an agreed statement of facts, which allowed a guilty verdict even though he wasn't tried.

The courts had previously ruled on two Charter challenges that arose from this case. 

In the first, Tesfazion alleged the RCMP breached his Charter rights in several ways by how they arrested, searched and detained him. 

Among those allegations, he argued that his right to be protected against unreasonable search or seizure was violated by the manner in which he was detained in RCMP cells after his arrest.

Tesfazion was held for about six days, and his whole cell was under 24-hour video surveillance, including the toilet area. 

Smallwood ruled in that challenge that Tesfazion had the right to a degree of privacy while using the toilet and that his rights had been violated. She didn't find evidence of other Charter breaches.

On Thursday, Smallwood said that she had taken the Charter breach into account in deciding his sentence.

In a second charter challenge, Tesfazion argued that because more than 72 months had passed since his arrest, his right to be tried within a reasonable period of time had been violated. He asked for a stay of proceedings.

A delay in a case going to N.W.T. Supreme Court is typically considered unreasonable if it exceeds 30 months. 

Smallwood ruled in June that the excessive delays were attributable to, among other things, court shutdowns during the COVID-19 pandemic, Tesfazion changing lawyers three times, and other defence delays.

Accounting for all of that, Smallwood decided that the "net delay" fell under the 30-month ceiling.