COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mohamed, 2013 ONCA 704

DATE: 20131115

DOCKET: C56802

Feldman, Gillese and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kamal Mohamed

Appellant

Lorne Sabsay, for the appellant

Surinder S. Aujla, for the respondent

Heard: November 13, 2013

On appeal from the sentence imposed on February 28, 2013 by Justice I.W. Andre of the Ontario Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1] The appellant pled guilty to importing approximately 100 kilos of khat, an illegal drug, into Canada from England. He appeals his sentence of a 16 month conditional sentence, half of which to be served as house arrest.

[2] The basis for the appeal is that the sentencing judge is alleged to have erred in finding that the appellant was in breach of trust. The argument is that he was not the person who actually switched the luggage tags to Winnipeg tags, so that the bags were put on the domestic belt, rather than go through customs on the international belt. He was only the facilitator of the transaction. We reject this argument.

[3] The trial judge was correct in holding that the appellant was in breach of trust. He was employed at the time by an airport baggage handling company and in that capacity had an RAIC card giving him access to all the secure areas of the airport. By participating in the offence of importing drugs through the airport by manipulating the luggage in the secure area, the appellant was in gross breach of trust to his obligations to his employer and the government authority.

[4] In our view, the sentences given in this case and others involving the drug khat are inordinately inadequate to reflect the gravity of the offence of importing by breaching the security in the secure area of the airport. The fact that khat may not be as addictive a drug as others is not the main factor to be considered in such cases.

[5] Leave to appeal sentence is granted, but the appeal is dismissed.