Importing Khat Absolute Discharge

The Queen v. Y.G
Ontario Court of Justice, Brampton
Judge I.B. Cowan
(absolute discharge: 16 November 2016)

Crown: M. Geiger, Federal Crown Attorney, Brampton
Defence: Craig Penney, Criminal Defence Lawyer, Toronto

¶ 1 CLERK: Y.G, you are charged that between the 19th day of November, 2015, and the 3rd day of December, 2015, both dates inclusive, at the City of Mississauga in the said region and elsewhere in the Province of Ontario, Canada, did unlawfully conspire and agree with a person or persons unknown to commit the indictable offence of importing into Canada a controlled substance included in Schedule III, to wit: cathinone (khat), contrary to section 6(1) of the Controlled Drugs and Substances Act, thereby committing an offence contrary to section 465(1)(c) of the Criminal Code of Canada. How does the Crown elect to proceed?

¶ 2 CROWN: Summarily, please.

¶ 3 CLERK: How do you plead to this charge, guilty or not guilty?

¶ 4 Y.G: Guilty.

¶ 5 CLERK: Thank you. You may have a seat.

¶ 6 CROWN: Your Honour, the facts the Crown will be relying upon are as follows. On December 3rd, 2015, C.B.S.A. border services officers attended the Swissport Cargo Services warehouse, which is a bonded warehouse in Mississauga associated with the Toronto Pearson International Airport, and inspected a shipment of four plastic barrels. Officer Kosev opened one of these barrels and located what appeared to be some clothing, under which he found dried khat, that's K-H-A-T, or catha edulis forsk. The officer noted that the shipment was declared as containing sunflower seeds. It also possessed a unique identifier number. Officer Kosev moved the shipment to C.B.S.A. infield cargo, where he conducted x-rays on the remaining barrels, and the x-rays showed consistency amongst the barrels and indicated that all four barrels contained the same substance.

¶ 7 Officers from the R.C.M.P. were called and responded, attended at the infield cargo warehouse in Mississauga with respect to the shipment of the four barrels of dried khat. The four barrels were seized by the R.C.M.P. and were returned to R.C.M.P. Toronto Airport detachment. In the interim, at 6:37 p.m., or rather, sorry, at 4:45 p.m., Y.G arrived at infield cargo and claimed ownership, or claimed that the barrels were intended for him. He presented documentation indicating that he was the consignee and documentation which possessed the same unique identifier code that corresponded to the four barrels which were seized. Again, the documentation which was presented by Y.G indicated that the shipment contained sunflower seeds. Y.G was, accordingly, arrested for importation of a controlled substance to Canada. He was also arrested subsequently for conspiracy to import into Canada under 465(1). Seized from Y.G was a Samsung cell phone. He was provided the opportunity to make a statement to counsel - or to police. He refused to do so. The four barrels were processed and found to contain 13 separate bags of dried khat. Those bags were individually weighed and found to come to approximately 105 kilograms. A sample of the suspected khat was sent to Health Canada for analysis. That sample returned positive for cathinone, which the active ingredient in khat, as well as catha edulis forsk, which is the plant itself. Those are substantially the facts, Your Honour.

¶ 8 THE COURT: Are those facts substantially correct?

¶ 9 MR PENNEY: Y.G, are those facts correct?

¶ 10 Y.G: Yes.

¶ 11 THE COURT: On the plea and accepted facts, there's a finding of guilt. Any record being tendered by the Crown?

¶ 12 CROWN: No, Your Honour.

[Submissions are made at this time.]

¶ 13 THE COURT: This case started out yesterday, marked for four days for trial. There were three interpreters here. There were two counts before the Court. What happened yesterday was that there was disclosure provided by some of the officers in the case to the Crown yesterday. The Crown, of course, was under the obligation to provide that to counsel. It became evident during the day that the trial would not proceed and that new dates would need to be set somewhere down the way as soon as the disclosure had been vetted and provided to defence.

¶ 14 Counsel and I entered into a judicial pre-trial process, because I would not be doing the trial, and we felt it was worthwhile to discuss many of the issues, including the possibility of resolution. Thanks to counsel and thanks to Y.G's instructions, this has now resolved into a guilty plea to one of the counts, being the conspiracy. So considerable trial time has been saved by that plea. Considerable officer time has been saved; considerable interpreter time. And overall, considerable credit has to be given to Y.G for indicating his remorse by way of a plea, even though it is late in the process, it is certainly before the trial, and it plays a large factor in my decision in this case.

¶ 15 Counsel come to the issue of sentence close but not by way of a joint submission. The Crown, quite rightly, indicates that a very important feature of the case, as illustrated by the decision of the Ontario Court of Appeal in R. v. Jones. A very important issue is that the border sovereignty of the country has been violated by the importation of the substance by Y.G, especially mis-declaring what it is, by having to employ officers to investigate this substance coming into the country, and in an era when border sovereignty is so important, this, as well, plays a large role in sentencing. The borders have to be respected.

¶ 16 I am sure, Y.G, you appreciate that in sentencing you I have to balance a number of factors. The Crown has gone on to describe how, while this drug is certainly near the bottom of the scale in terms of its dangerous nature, and the Crown, quite rightly, says it is not anywhere near any of the other drugs that one sees coming in, such as cocaine, heroin, hash, hash oil, or even marijuana, that it is still prohibited and still has to be dealt with as a restricted drug.

¶ 17 The Crown emphasizes in their submissions deterring other people from committing this sort of offence. I think the Crown has basically conceded that it is apparent that you are remorseful for what you did and that others feel as though you have learned your lesson and are unlikely to do this in the future.

¶ 18 Your counsel has emphasized that you are otherwise a young man who has really been a success story since arriving in Canada as an immigrant, that you have never accepted welfare. From the letters and from what he has told me, you have worked and achieved success. I see from the letters that you are a hardworking person that is respected by your employer. You are an honest person who cares for others. You care for your mother both financially and in a familial way. So in all respects, you are the sort of person that makes a good citizen. One can maybe see because of the economic demands, why you might get involved with attempting to do this, but I can only infer that, as being the reason that you got involved in the first place.

¶ 19 The Crown is seeking a fine and a conviction. Your counsel is seeking an absolute discharge, arguing that the imposition of a conviction would harm your personal chances of advancement, especially employment. You hold a taxi licence, which has expired, and I assume that a renewal requires the absence of convictions on your record. You wish to open a car wash, and I don't know what the licensing requirements are for that but you counsel tells me, as well, that that could be affected by having a conviction on your record, and I take it at face value that a conviction is something that weighs heavily, when people are as industrious as you look for jobs and look for future advancement.

¶ 20 I have to consider section 730 of the Criminal Code which provides for discharges. The considerations that I have to look at are whether it is in your best interest to grant you a discharge. There is no doubt about it being in your best interest, given the factors that I have just described. Perhaps of more importance is whether it is contrary or not contrary to public interest to grant you a discharge. I think members of the public who are informed about your background, your industry, your otherwise good character, the nature of the plea, the time saved in court by the plea, and especially the fact that you show remorse and you are unlikely to commit further offences, that this has been a lesson; that is, the fact of arrest, processing and appearance in court has been a lesson that the public would agree that it is not contrary to their interest, either, to grant you a discharge.

¶ 21 You have done two days in jail. I can give you enhanced credit, because you would have been detained at Maplehurst where, even on a short basis, you would be under difficult cell conditions. So I would give you the credit in sentencing of two days real time, times 1.5, or the equivalent of three days, which would be reflected on your record. That in itself is a denunciatory sentence. I can impose an enhanced victim fine surcharge, which I intend to do, by way of a $2,000 victim fine surcharge. But in other respects, I think, looking at the prerequisites in section 730, that I am going to grant you an absolute discharge in the case.

Import Khat — Toronto Criminal Defence Lawyer