COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hudson, 2021 ONCA 76

DATE: 20210122

DOCKET: M52132 (C65962) & M52143 (C68428)

Fairburn A.C.J.O.

BETWEEN

Her Majesty the Queen

Respondent

and

Jacinda Hudson

Appellant

AND BETWEEN

Her Majesty the Queen

Respondent

and

Justice Okojie

Appellant

Maija Martin, Iman Amin and David Reeve, for the appellant, Jacinda Hudson

Chris Sewrattan, Ashley Sewrattan, and Raj Vijan, for the appellant, Justice Okojie

Sarah Shaikh, Christopher Walsh, and Jonathan Geiger, for the respondent

Owen Goddard and Rick Frank, for the proposed intervener, the Criminal Lawyers’ Association of Ontario

Emily Marrocco, for the proposed intervener, the Attorney General of Ontario

Heard: January 22, 2021 via videoconference

REASONS FOR DECISION

[1] The appeals in R. v. Hudson (C65962) and R. v. Okojie (C68428) are scheduled to be heard before a five-judge panel on February 23, 2021. The respondent’s factum is due on February 5, 2021.

[2] The appellants will argue that the decision in Bell v. The Queen, 1983 CanLII 166 (SCC), [1983] 2 S.C.R. 471 made clear that the crime of importing is complete at the time that contraband enters Canada. They say that pronouncements to the contrary have wrongly interpreted Bell and expanded the reach of the importing offence beyond its intended limit.

[3] The Attorney General for Ontario (“Ontario”) and the Criminal Lawyers’ Association of Ontario (“CLA”) seek leave to intervene in the appeals.

The Attorney General for Ontario’s Application

[4] Ontario argues that the scope of the actus reus of importing will inevitably impact upon offences under the Criminal Code, those over which the provincial Crown has prosecutorial jurisdiction. In specific, Ontario points to crimes involving the importation of firearms and importation of child pornography: ss. 103 and 163.1 of the Criminal Code. Accordingly, Ontario argues it has a clear interest in the appeals because any determination about when the actus reus of importing ends will necessarily touch on crimes prosecuted by the Province.

[5] If granted leave to intervene, Ontario will argue that the actus reus of importing should extend to domestic distributors of firearms, failing which it will not capture those offenders at the heart of the crime. Ontario will also argue that child pornography enters Canada in different ways. Narrowing the actus reus of importing to the immediate entry point into Canada could have the effect of excluding from liability some modes of entry for child pornography, such as when child pornography comes into Canada through a virtual means.

[6] The parties consent to Ontario’s intervention. I see no risk of prejudice or unfairness arising from Ontario’s intervention. Leave to intervene will be granted on the terms set out at the end of these reasons.

The Criminal Lawyers’ Association’s Application

[7] The CLA wishes to advance three arguments: (a) that by looking to the plain meaning of the statute, combined with legislative intent, it is clear that the term “import” ends when contraband enters Canada; (b) that the extension of the actus reus of importing beyond the immediate entry point into Canada results in convictions for importing in circumstances where accused have nothing to do with the actual bringing of the contraband into the country; and (c) affording the term “import” a definition that is susceptible to capturing lower-level drug operators, those who may transport or possess drugs after they are already in the country, will have a disproportionate impact on racialized communities, specifically Black and Indigenous communities. The CLA argues that any such approach will result in higher sentences for racialized communities, those communities that are already overrepresented in the custodial setting.

[8] In support of this latter argument, the CLA relies upon five reports and studies. Three of them can be loosely described as prison population statistics, released in the form of annual reports from the federal government. There are also two reports that relate to systemic racism: Ontario, Report of the Commission on Systemic Racism in the Ontario Criminal Justice System, Co-Chairs: M. Gittens and D. Cole (Queen’s Printer for Ontario, 1995); Ontario Human Rights Commission, Racial Disparity in Arrests and Charges: An analysis of arrest and charge data from the Toronto Police Service, S. Wortley and M. Jung (Toronto: 2020).

[9] The appellants consent to the CLA intervening on the terms set out in the CLA’s application.

[10] While the respondent consents to the CLA intervening, that consent is only extended in relation to the first two issues raised by the CLA.

[11] As for the third issue, the respondent argues that the CLA is inappropriately modifying the nature of the appeals. Rather than making the appeal about the definition to be afforded to the term “import”, the CLA is said to be attempting to make the appeal about the issue of the discriminatory effect of Canada’s drug laws. The respondent points out that this particular argument has not formed any part of the prior cases from which decisions have emerged on the issue that the five-judge panel will be considering.

[12] I am not persuaded by this argument. Whether other cases have considered the issue or not, contrary to the respondent’s position, I do not take the CLA to be injecting a new issue into the appeal. Rather, the CLA is wanting to contribute to the appeal by highlighting the context within which drug offences are committed, investigated, prosecuted, tried and sentenced. This is not, as the respondent suggests, an attempt to introduce a quasi-s. 15 Charter argument into the appeal. The CLA’s position is not unlike other cases where social context evidence, as advanced by interveners, has been considered: see for example, R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 81.

[13] The respondent also argues that the CLA is attempting to improperly augment the record before the court on this appeal. The respondent points to Canada (Citizenship and Immigration) v. Ishaq, 2015 FCA 151, [2016] 1 F.C.R. 686, at para. 22, where the court addressed the inappropriate attempts by interveners to prove matters of “social science” under the “guise of authorities”. While I accept that the line between a proper placement of materials before the court and an inappropriate augmentation of the record is not always easy to draw, in my view, the materials advanced by the CLA do not cross that line.

[14] It seems to me that the contextual position that the CLA wishes to advance is not particularly controversial. At its core, that position is rooted in the overrepresentation of Black and Indigenous persons in the prison system in this country, including the overrepresentation of these individuals in relation to drug-related matters. All of the reports and statistical materials that the CLA wishes to rely upon are publicly available, many of which are produced by those in the employ of the federal government. The statistics arise from federal government data, made available on federal government websites. It is precisely the kind of data that this court recently relied upon in R. v. Sharma, 2020 ONCA 478, 152 O.R. (3d) 209 at para. 95, leave to appeal to SCC granted, 39346 (January 14, 2021) – data which was placed before the court by interveners.

[15] As for the reports, at least one has been judicially cited in the past: R. v. Hamilton (2003), 2003 CanLII 2862 (ON SC), 172 C.C.C. (3d) 114 (Ont. S.C.J.), at para. 106, appeal dismissed (2004), 2004 CanLII 5549 (ON CA), 186 C.C.C. (3d) 129 (Ont. C.A.). The other report, commissioned by the Ontario Human Rights Commission, is fairly recent.

[16] While there are circumstances where an intervener will be precluded from augmenting the record, in my view, the materials proposed to be filed by the CLA are largely non-controversial. In any event, in my view, it is better to leave this matter with the panel hearing the appeal. As the CLA acknowledges, it may be that the panel will not be persuaded by their position that the contextual backdrop against which drug-related offences take place informs the limits that should be placed on the actus reus of importing. I would leave that determination to the panel hearing the appeal.

[17] The respondent maintains that if the CLA is granted intervener status, and is permitted to advance all arguments, the respondent may have to file further materials. No one objects to that request.

[18] I order as follows:

(a) The Attorney General for Ontario is granted leave to intervene on the basis of the argument set out in the application materials;

(b) The CLA is granted leave to intervene on the basis of the argument set out in the application materials;

(c) The interveners will file factums no more than 15 pages in length, to be filed no later than February 2, 2021;

(d) The interveners will be granted 15 minutes each to make oral argument at the hearing of the appeals;

(e) In response to the interveners’ written arguments, the parties may each file a factum of no more than 10 pages in length, to be served and filed no later than February 10, 2021.

“Fairburn A.C.J.O.”