Her Majesty the Queen v. DeSousa

[Indexed as: R. v. DeSousa]

109 O.R. (3d) 792

2012 ONCA 254

Court of Appeal for Ontario,

Doherty, MacPherson and Sharpe JJ.A.

April 20, 2012

Criminal law -- Sentencing -- Joint submission -- Young first offender pleading guilty to importing 34 kilograms of khat -- Trial judge rejecting joint submission for 60-day conditional sentence and granting absolute discharge -- Judge questioning wisdom of offence and making other irrelevant comments during sentencing -- Crown's appeal dismissed -- Joint submission should be rejected only where it would bring administration of justice into disrepute or would otherwise not be in the public interest -- That standard applying equally where trial judge intends to impose more lenient sentence -- Sentencing judge failing to apply that standard and taking irrelevant matters into consideration -- Absolute discharge nevertheless appropriate. [page793]

The accused, a 28-year-old first offender, pleaded guilty to importing 34 kilograms of khat, a Schedule IV drug, contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. The sentencing judge rejected a joint submission for a 60-day conditional sentence, noting that there was no evidence that khat posed any danger or caused any harm, and questioned why it was illegal in Canada as it was legal in other countries. He also made adverse comments about the airline's security measures. The judge granted an absolute discharge. The Crown appealed.

Held, the appeal should be dismissed.

The judge should not have interjected his opinion about the wisdom of the offence provision nor about airline security, neither of which were relevant to a judge's function at sentencing. The erroneous approach to sentencing repeats errors previously identified in Regina v. Song.

A sentencing judge should reject a joint submission only where the proposed sentence would bring the administration of justice into disrepute or would otherwise not be in the public interest. That standard applies regardless of whether the sentencing judge is inclined to jump or undercut the proposed sentence. Where a judge is considering undercutting a joint submission, he or she must have regard to the community's reasonable expectations that the court will impose a sentence in accordance with that agreed upon in the joint submission. If an accused receives the benefits of a plea bargain, which may include the withdrawal of some charges or pleading to lesser included offences, the public may have less confidence in the administration of justice if the accused does not also receive the sentence bargained for. While the sentencing judge erred in principle by departing from the joint submission without applying the applicable standard, the absolute discharge was nevertheless fit. Although the Crown had noticed that the judge was inclined to depart from the joint submission, in part due to the lack of evidence about the harm caused by the importation of khat, the Crown led no evidence to address that issue. There was no evidence that the accused knew that the importation of khat was illegal. It is legal in some countries, including the United Kingdom, where the accused obtained the drug. There was no evidence that the accused was involved in a commercial enterprise or stood to make any profit from her actions. She was a first offender and a student. A joint submission requiring a jail term, even one to be served in the community, was not in the public interest.

APPEAL by the Crown from the sentence imposed by J.E. Allen J. of the Ontario Court of Justice dated April 7, 2011. [page794]

Cases referred to R. v. Cerasuolo, 2001 CanLII 24172 (ON CA), [2001] O.J. No. 359, 140 O.A.C. 114, 151 C.C.C. (3d) 445, 48 W.C.B. (2d) 530 (C.A.); R. v. Song (2009), 100 O.R. (3d) 23, [2009] O.J. No. 5319, 2009 ONCA 896, 249 C.C.C. (3d) 289, 257 O.A.C. 221, apld

Statutes referred to Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 6(1) Criminal Code, R.S.C. 1985, c. C-46, s. 730(1) [as am.]

Authorities referred to Martin, G. Arthur, Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (Toronto: Ontario Ministry of the Attorney General, Queen's Printer for Ontario, 1993)

Kevin Wilson, for applicant (appellant). M. Halfyard, for respondent.

The judgment of the court was delivered by

DOHERTY J.A.: --

I Introduction

[1] The respondent pleaded guilty to a charge of importing Catha edulis Forsk ("khat"), a Schedule IV drug, into Canada contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Counsel for the Crown and counsel for the respondent presented a joint submission whereby the respondent would serve a 60-day conditional sentence on the statutory terms and with a term requiring that she abide by a curfew.

[2] The trial judge rejected the joint submission and granted the respondent an absolute discharge.

[3] The Crown appealed. At the conclusion of oral argument, we advised counsel that the appeal would be dismissed with reasons to follow. These are those reasons.

II Proceedings Below

[4] On the guilty plea, the Crown read in the following facts:

On Monday, December 28, 2009, at 3:55 p.m., Tina Maria DeSousa arrived in Toronto. She is a Canadian citizen. She arrived from Amsterdam and she was referred to secondary examination for further inspection. The Border Service officer at the inspection booth inspected her luggage and pressed down on the suitcase and noted a strong odour. He opened the suitcase and discovered that it contained fresh bundles of khat, and she was placed under arrest for smuggling khat contrary to section 159 of the Customs Act and subsequently she was interviewed by the RCMP and she was charged for importing khat contrary to section 6(1) of the CDSA. She had apparently travelled from Montreal to Minneapolis, then to London, England, and then to Amsterdam, and then she returned back to Toronto. The total amount: 34 kilograms. Estimated street value: $17,000.

[5] Counsel provided a brief biographical sketch of the respondent. She was 28 years of age, single, had no criminal record, was attending a college program and was financially supported by her mother. Counsel advised the trial judge that the respondent was remorseful and noted that the guilty plea had been entered at a relatively early stage in the proceeding. [page795]

[6] The trial judge then made the following observations:

Well, in the first place, it's very difficult to understand why this stuff's against the law. It's not in England. I read everything I can get my hands on about it and I find it difficult to be persuaded of anything other than what I was told by a federal Crown attorney when I had my first case which was "we think this is almost as dangerous as coffee."

[7] After offering his opinion on the wisdom of the legislation, the trial judge moved on to criticize Air Canada's security measures. Neither his opinion of the legislation, nor his views of the adequacy of Air Canada's security measures, had any relevance to the proceedings or the trial judge's function at those proceedings. Unfortunately, these and other irrelevancies came to dominate the hearing.

[8] In the face of the joint submission and without any request from the defence, the trial judge chose to adjourn the sentencing to allow the respondent to perform some community service.

[9] The respondent returned to court for sentencing approximately two months later. She had performed about 25 hours of community service. During a dialogue with Crown counsel, it became apparent that the trial judge had misapprehended the joint submission, thinking that it was for a conditional discharge and not a conditional sentence. The latter, a term of imprisonment, is of course a much more serious disposition than the former, which does not result in a criminal record.

[10] After Crown counsel reminded the trial judge that the agreement between counsel was for a conditional sentence and not a conditional discharge, the trial judge immediately said "Okay, well that's fine, alright. So it appears that I'm not accepting your -- your joint submission."

[11] Despite the trial judge's quick and clear indication that he would not follow the joint submission, Crown counsel argued that the trial judge was obliged to follow the joint submission unless he was satisfied that the proposed sentence was contrary to the public interest or would bring the administration of justice into disrepute. The trial judge rejected this argument, indicating that his discretion to depart from a joint submission was only limited in the way asserted by Crown counsel if he was inclined to impose a harsher sentence than the sentence agreed upon in the joint submission.

[12] Crown counsel made further submissions as to the appropriateness of the sentence agreed upon. Defence counsel, who no doubt felt constrained by the joint submission, said very little once it became apparent that the trial judge would not impose the recommended sentence. [page796]

[13] In granting the absolute discharge, the trial judge emphasized the absence of any evidence that khat posed any danger or caused any harm. The trial judge also opined that the sentence contemplated by the joint submission would provide no general deterrence but would have potentially serious negative ramifications for the respondent in that it would result in her having a criminal record.

III Analysis

[14] There are two issues raised on this appeal:

-- What standard should a trial judge apply in determining whether it is appropriate to impose a sentence that is more lenient than a sentence proposed by way of joint submission?

-- What is the appropriate disposition?

A. When should a judge "undercut" a joint submission?

[15] Resolution discussions between informed and competent counsel and guilty pleas based on joint submissions as to the disposition are a "proper and necessary part of the administration of criminal justice in Ontario": The Honourable G. Arthur Martin, O.C., O. Ont., Q.C., LL.D., Chair, Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (Toronto: Ontario Ministry of the Attorney General, Queen's Printer for Ontario, 1993) (the "Martin Report"), at p. 290; see, further, pp. 281-90. A joint submission should provide the trial judge not only with the proposed sentence, but with a full description of the facts relevant to the offender and the offence. Advanced in this way, the joint submission gives the trial judge a proper basis upon which to determine whether it should be accepted.

[16] A trial judge is not bound by a joint submission. The imposition of a fit sentence is ultimately the trial judge's responsibility: see R. v. Cerasuolo, 2001 CanLII 24172 (ON CA), [2001] O.J. No. 359, 151 C.C.C. (3d) 445 (C.A.), at para. 7. Trial judges must, however, give considerable weight to joint submissions. A trial judge should depart from a sentence proposed in a joint submission only in limited circumstances. Finlayson J.A. put it this way in Cerasuolo, at para. 8:

This court has repeatedly held that trial judges should not reject joint submissions unless the joint submission is contrary to the public interest and the sentence would bring the administration of justice into disrepute . . . This is a high threshold and is intended to foster confidence in an accused, [page797] who has given up his right to a trial, that the joint submission he obtained in return for a plea of guilty will be respected by the sentencing judge.

[17] The trial judge referred to Cerasuolo. He viewed it as applicable only where a trial judge proposed to "jump" a joint submission.

[18] Cerasuolo was a case in which a trial judge imposed a three-year sentence in the face of a joint submission for one year. Unsurprisingly, Finlayson J.A. emphasized the negative impact on the accused's legitimate interests flowing from the trial judge's rejection of the joint submission. Cerasuolo did not, however, indicate that a trial judge should not be guided by the same principles before deciding to depart from a joint submission by imposing a more lenient sentence than that proposed. That question was not before the court in Cerasuolo.

[19] The Martin Report, the most important examination of the criminal process in Ontario in the last 40 years, made several recommendations relating to plea discussions and joint submissions. Following established authority and using language that would appear later in Cerasuolo, the Martin Report recommended that a sentencing judge should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute or was otherwise not in the public interest: see p. 327, Recommendation 58. The Martin Report did not distinguish between "jumping" and "undercutting" a joint submission.

[20] It is helpful to quote at some length the explanation offered in the Martin Report, at pp. 328-30, for this particular recommendation:

The Committee recognizes that an important, sometimes the most important, factor in counsel's ability to conclude a resolution agreement, thereby deriving the benefits that such agreements bring, is that of certainty. Accused persons are, in the Committee's experience, prepared to waive their right to a trial far more readily if the outcome of such a waiver is certain, than they are for the purely speculative possibility that the outcome will bear some resemblance to what counsel has agreed to. And likewise, from the perspective of Crown counsel, agreed upon resolutions that have a stronger, rather than weaker sense of certainty to them, are more desirable because there is less risk that what Crown counsel concludes is an appropriate resolution of the case in the public interest will be undercut. . . . . .

While the presiding judge cannot have his or her sentencing discretion removed by the fact of there being a joint submission, it is nonetheless appropriate, in the Committee's view, for the sentencing judge to have regard to the interest of certainty in resolution discussions when faced with a joint submission. Accordingly, where there is no reason in the public interest or in the need to preserve the repute of the administration of justice to depart from a joint submission, a sentencing judge should, in the Committee's opinion, [page798] give effect to the need for certainty in agreed upon resolutions by accepting the joint submission of counsel. . . . . .

. . . proceeding in this manner also continues to ensure that the sentencing judge remains the ultimate arbiter of the propriety of the sentence, and that the sentence is demonstrated to be fit in the circumstances. The sentencing judge will not, in the Committee's view, have committed any error in principle in accepting a joint submission, as recommended above, provided he or she arrives at the independent conclusion, based upon an adequate record, that the sentence proposed does not bring the administration of justice into disrepute and is otherwise not contrary to the public interest. (Emphasis added)

[21] The Martin Report recognizes that certainty of result plays a valuable role in the criminal justice system. The report also recognizes that certainty serves not only the interests of the accused, but those of the Crown as representative of the public interest. To the extent that judges reject joint submissions, certainty suffers. This is true whether the judge "jumps" or "undercuts" the joint submission.

[22] Certainty of result is, of course, not the ultimate goal of the sentencing process. Certainty must yield where the harm caused by accepting the joint submission is beyond the value gained by promoting certainty of result. The standard described in both Cerasuolo and the Martin Report -- that is, whether the proposed sentence would bring the administration of justice into disrepute or would otherwise not be in the public interest -- draws the line where certainty of result must give way to other criminal justice interests. I think the standard is applicable regardless of whether a trial judge is inclined to go above or below the sentence proposed in the joint submission.

[23] In holding that a trial judge should apply the same test when deciding whether to depart from a joint submission, upward or downward, I do not suggest that the factors relevant to the application of that standard will be identical in both situations. If a trial judge is considering imposing a higher sentence than the sentence agreed upon, concerns about the fairness to an accused who has given up a right to a trial in anticipation of a certain sentence will figure largely in the trial judge's determination of whether the agreed-upon sentence in the joint submission is so low as to bring the administration of justice into disrepute or is otherwise not in the public interest. Obviously, concerns about the accused's fair trial rights are not in play if the trial judge is considering imposing a sentence that is lower than the agreed- upon sentence. [page799]

[24] As alluded to in the extract from the Martin Report set out above, where a judge is considering "undercutting" a joint submission, he or she must have regard to the community's reasonable expectations that the court will impose a sentence in accordance with that agreed upon in the joint submission. Confidence in the operation of the justice system may suffer where an accused enjoys the benefits of a plea bargain, perhaps, for example, escaping prosecution on other more serious charges, but is not required to serve the sentence agreed upon as part of that bargain. In deciding whether to reject the joint submission, trial judges must be alive to that potential negative impact on the administration of justice. The consideration of that potential impact finds expression in the standard articulated in Cerasuolo and the Martin Report.

[25] For these reasons, the trial judge erred in principle. He should not have departed from the joint submission unless he was satisfied that the standard set down in Cerasuolo required that departure.

B. What is the appropriate sentence?

[26] It is unnecessary to address the trial judge's reasons. For the reasons set out above, he erred in principle in his treatment of the joint submission. Counsel on appeal agree that the trial judge made further errors, particularly in taking into consideration various irrelevant matters, including his personal opinion of the wisdom of the legislation. The trial judge's approach to sentencing repeats the errors identified in R. v. Song (2009), 2009 ONCA 896, 100 O.R. (3d) 23, [2009] O.J. No. 5319 (C.A.), at paras. 6-13. Furthermore, counsel agree that the interests of justice are best served by considering the appropriate sentence as of the date of the appeal, some 12 months after the original sentencing.

[27] In our view, the material put before the trial judge and this court by the Crown did not justify the imposition of a term of imprisonment, even one to be served in the community. We say that having regard to the following:

-- The Crown chose to lead no evidence about any specific harm referable to the importation of khat.

-- There was no evidence that the respondent knew that the importation of khat was illegal. It is apparently legal in some countries, including the United Kingdom, where the respondent obtained the drug. The manner in which the respondent brought the drug into Canada in her suitcase would also lend [page800] some credence to the assertion that she was unaware that it was illegal to bring the drug into Canada.

-- There was no evidence that the respondent was involved in any kind of a commercial enterprise or stood to make any profit from her actions.

[28] It was incumbent on the Crown, even on a joint submission, to put before the trial judge facts relevant to the nature of the offence that justified the imposition of a term of imprisonment. In putting forward the joint submission, the Crown seem to have relied exclusively on a sentencing guideline developed by prosecutors that called for incarceration of a length to be determined by reference to the amount of the drug imported. While guidelines for prosecutors making sentencing submissions are helpful, they are not themselves a justification for the imposition of a sentence which is consistent with those guidelines.

[29] There is nothing in the circumstances particular to the respondent that could justify a jail term. She is a young first offender with a promising future.

[30] Having regard to the entirety of the circumstances as they relate both to the offence and the offender, a jail term is unwarranted. A joint submission requiring a jail term, even one to be served in the community, was not in the public interest. A number of sentencing options not involving incarceration may have been appropriate at the time of trial. We concluded, however, that as matters stood at the time of the appeal, a discharge was in the best interest of the accused and not contrary to the public interest, and therefore accorded with the standards set out in s. 730(1) of the Criminal Code, R.S.C. 1985, c. C-46.

[31] Crown counsel suggested that the court consider offering some sentencing guidelines for offences involving the importation of khat. It would appear that charges involving the drug are not common and there are only a few trial judgments in which courts have considered the appropriate sentence for the importation of that drug. This slim record provides no basis upon which this court could safely offer any helpful sentencing guidelines.

IV Conclusion

[32] As indicated at the end of oral argument, the appeal is dismissed.

Appeal dismissed.