Court File and Parties

Date: 2016-10-13

Court File No.: Brampton 15-153955, 16-9918

Ontario Court of Justice

Between:

Her Majesty the Queen

- and –

Abdy Soufi and Abdinasir Mohamed

Before: Justice P.A. Schreck

Heard on: September 16, 2016

Reasons for Sentence

Counsel:

• M. Dykstra, for the Crown
• A. Absiye, for Abdy Soufi
• A. Kenawy, for Abdinasir Mohamed

SCHRECK J.:

[1] Introduction

Abdy Soufi and Abdinasir Mohamed are both separately charged with importing cathinone, contrary to s. 6(1) of the Controlled Drugs and Substances Act ("CDSA"). Cathinone is the active ingredient in the Catha edulis Forsk plant, also known as "khat". Both have pleaded guilty. While the Crown initially sought a sentence of imprisonment for both, it later revised its position and now seeks a fine. Both accused seek absolute discharges. During submissions, the parties disagreed as to the appropriate sentencing range for this offence. Determining the appropriate sentences in this case requires that that range be identified.

I. THE FACTS

A. Abdy Soufi

[2] On October 10, 2015, Mr. Soufi, a Canadian citizen, arrived at Pearson International Airport on a flight from Dubai. An examination of his luggage by Canadian Border Services Agency ("CBSA") officers revealed that he was carrying 28.7 kg of khat. This is said to have a street value of $3000 to $4000.

[3] Mr. Soufi is 52 years old and has no criminal record. He currently supports himself through the Ontario Disability Support Program ("ODSP"). He has stated that he was unaware that importing khat was illegal. The Crown does not appear to take any issue with this assertion.

[4] Mr. Soufi completed 55 hours of community service in anticipation of his guilty plea.

B. Abdinasir Mohamed

[5] On March 15, 2016, Mr. Mohamed, a Canadian citizen, arrived at Pearson International Airport on a flight from Nairobi. When questioned by CBSA officers, he claimed to have no luggage with him. Further investigation revealed that he had in fact checked luggage on his flight. The luggage was located and searched. It was found to contain 38.2 kg of khat. This is said to have a street value of $3000 to $4000.

[6] Mr. Mohamed has no prior criminal record and lives on ODSP. The Court was advised that he had travelled to Kenya to visit his mother, who was very ill. While he was there, he was approached by people who offered to pay him if he brought the khat to Canada. He agreed because his mother's hospital bills were very high and she needed the money.

[7] Mr. Mohamed completed 40 hours of community service in anticipation of his guilty plea.

C. The Nature of the Substance

[8] Khat is native to the Horn of Africa and the Arabian peninsula. For thousands of years, chewing the plant has been a social custom among communities living in those regions. It first became a proscribed substance in Canada in 1997.

[9] The nature and effects of khat were the subject of expert testimony in R. v. Mohamed, [2013] O.J. No. 2782 (C.J.), aff'd 2013 ONCA 704. After considering the evidence, the trial judge, André J., drew the following conclusions (at paras. 26-28):

How harmful is the imported substance? Dr. Mayers gave expert opinion that cathinone is an amphetamine that can be addictive. The addictiveness of the drug and its potential psychiatric effects is based on when it is chewed, after it is harvested, and the amount of the plant that is chewed by the user. Despite Dr. Mayers' testimony, there is a body of literature that suggests that khat is neither harmful nor addictive. It is less harmful than alcohol. Its potency degenerates significantly within four days of its harvest. The drowsiness that is attendant on its use dissipates within a day. Additionally, it is widely regarded to be culture-specific, in that its use is largely confined to the Somalian community.

Furthermore, no tests were performed on the imported khat to determine the strength of the cathinone it possessed. It tested as a Schedule III substance and therefore, possessed some cathinone. Nothing more is known about the potency of the drug. Based on the above, I cannot conclude that khat is a particularly harmful or addictive drug. Undoubtedly, its use over time may well have certain deleterious psychiatric effects. However, a significant amount of the drug has to be chewed in order for these effects to become manifested over a period of time.

The Court of Appeal did not interfere with these factual findings.

[10] In this case, Crown counsel conceded that there was little evidence that the drug is harmful.

II. POSITIONS OF THE PARTIES

[11] Crown counsel advised the Court that in cases of importing cathinone, the Public Prosecution Service of Canada's ("PPSC") policy was to seek one day of imprisonment for each kilogram that was imported and sought to have sentences of imprisonment imposed on Mr. Soufi and Mr. Mohamed in accordance with that policy. He later revised his position and sought a fine for each accused, stressing the importance of protecting Canada's borders.

[12] Counsel for both accused seek discharges.

III. ANALYSIS

A. Sentencing Caselaw

(i) The Ontario Court of Appeal Jurisprudence

[13] Counsel for both Mr. Soufi and Mr. Mohamed rely on R. v. DeSousa, 2012 ONCA 254, 109 O.R. (3d) 792, a Crown appeal from an absolute discharge granted to an individual who had imported 34 kg of khat. The Court dismissed the appeal for the following reasons (at paras. 27-30):

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 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.

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.

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.

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.

[14] The Court of Appeal's emphasis on the lack of evidence of harm is consistent with its general approach to sentencing in importing cases. It is well established that the range of sentence is directly related to the harmfulness of the substance being imported: R. v. Sidhu, 2009 ONCA 81, 94 O.R. (3d) 609 at paras. 11-14.

[15] It was after the decision in DeSousa that the Crown adduced the expert evidence in Mohamed described above, which failed to convince the Court in that case that khat was either harmful or addictive. In that case, the accused had imported 100 kg of khat. He was employed at the airport and had used his position to facilitate the importation, which had involved a significant degree of planning and involved several people. He had no record, pleaded guilty, spent four days in pre-trial custody and was subject to restrictive bail conditions. A 16-month conditional sentence was imposed. A co-accused who had also abused a position of trust had received a 12-month conditional sentence. Two other co-accused received a suspended sentence and a conditional discharge, respectively.

[16] The accused in Mohamed appealed his sentence on the ground that the trial judge had erred in concluding that he had breached a position of trust. In a brief endorsement (2013 ONCA 704), the Court of Appeal rejected that argument (at paras. 3-4):

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.

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.

[17] At first glance, the Court of Appeal's endorsement in Mohamed appears to support the Crown's position that a discharge is inappropriate because of the need to protect Canada's borders. However, I have concluded that it does not for the following reasons. First, the Court of Appeal's comments about the security of the airport were directly related to the issue before the Court, that is, whether Mr. Mohamed was breaching a position of trust by using his employment to obtain access to secure areas. Second, all importing cases involve the crossing of international borders, a fact which obviously did not escape the panel which decided DeSousa (Doherty, McPherson and Sharpe JJ.A.). The Court in that case nonetheless affirmed the discharge and declined to establish a range, other than hold that a custodial sentence would have been inappropriate. The panel in Mohamed (Feldman, Gillese and Tulloch JJ.A.) made no mention of DeSousa, but would have been aware of the decision as it was referred to in the judgment under appeal. Finally, Mohamed is an appeal book endorsement. The effect of an endorsement was explained in R. v. Timminco Ltd., 54 O.R. (3d) 21 (at para. 36):

Reasons of this Court given by "endorsement" are mainly directed to the immediate parties. Endorsements, like all judgments of this Court, have precedential value but they should not be construed to support broad overarching principles which are not specifically addressed in them.

See also R. v. Singh, 2014 ONCA 293, 120 O.R. (3d) 76 at para. 12.

(ii) Other Sentencing Cases

[18] The only other sentencing case I am aware of that post-dates DeSousa is R. v. Ali, [2014] Q.J. No. 793 (C.Q.), where an absolute discharge was imposed for importing 6.3 kg of khat. In earlier cases, sentences ranged from an absolute discharge (R. v. Ahmed, 2007 CarswellOnt 7357 (C.J.), R. v. Nuh) to a fine (R. v. Ismail, [1998] O.J. No. 2150 (C.J.), R. v. Nur, [2004] A.J. No. 960 (P.C.)) to a conditional sentence (R. v. Lee, [2006] Q.J. No. 2814 (C.Q.), Zakaria c. R., [2008] J.Q. No. 1817 (C.A.)). The only case I am aware of where actual imprisonment was imposed is R. v. Philpot, [1998] O.J. No. 5084 (Prov. Div.), where a sentence of 30 days was imposed for importing an unspecified amount of khat. In that case, the sentencing judge seemed to assume that khat was a dangerous substance simply because it had been added to the CDSA schedule. Other than reliance on the principles of specific and general deterrence, he gave no reasons as to why a sentence of imprisonment was appropriate.

B. The Range

[19] Based on the foregoing authorities, absent clear direction from the Court of Appeal it is my view that while a custodial sentence will of course always be an option, unless there are significant aggravating factors such as the breach of trust in Mohamed, it will rarely be appropriate for importing khat. In most cases, a discharge or a fine will be the appropriate disposition. A fine may be appropriate where an accused imports the substance for commercial gain.

[20] It should be noted that both accused are charged with importing cathinone, a substance listed in Schedule III of the CDSA. Catha edulis Forsk, of which cathinone is the active ingredient, is listed in Schedule IV. Importation of Schedule III substances is punishable by a maximum of 10 years imprisonment where the Crown proceeds by indictment and 18 months where it proceeds summarily (s. 6(3)(b)) while importation of a Schedule IV substance is punishable by a maximum of three years where the Crown proceeds by indictment and one year where it proceeds summarily (s. 6(3)(c)). There is no suggestion that what was imported in this case was anything other than khat and the weight of the amounts seized in each case presumably refer to the weight of the khat, not the cathinone.

[21] In my view, with one exception the sentencing range for importing khat remains the same regardless of whether the accused is charged with importing cathinone or Catha edulis Forsk. To conclude otherwise would allow the police to arbitrarily influence the sentence simply by choosing to charge the accused with importing the active ingredient of the substance rather than the substance itself.

[22] The one exception relates to the availability of a conditional sentence. Section 742.1(e)(ii) provides that a conditional sentence is unavailable for importing drug offences where the offence is prosecuted by indictment and the maximum penalty is 10 years imprisonment. Thus, a conditional sentence is available for importing Catha edulis Forsk, a schedule IV substance where the maximum penalty on indictment is three years, but not for importing cathinone, a schedule III substance where the indictable maximum is 10 years.

C. The Appropriate Sentences in This Case

(i) Mr. Soufi

[23] In Mr. Soufi's case, the Crown elected to proceed summarily, so he faces a maximum sentence of 18 months imprisonment. There is little that distinguishes Mr. Soufi's situation from that in DeSousa. The amount imported was roughly the same (28.7 kg in this case and 34 kg in DeSousa), the accused is a first offender, he was not aware that importation of the substance was illegal, and there is no evidence that he stood to obtain any profit. I am therefore of the view that the same disposition is appropriate and Mr. Soufi will receive an absolute discharge.

(ii) Mr. Mohamed

[24] In Mr. Mohamed's case, the Crown elected to proceed by indictment. Except for the availability of a conditional sentence as discussed earlier, this does not affect the range of appropriate sentence, as was made clear in R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309 (at para. 15):

A fit sentence for a hybrid offence is neither a function nor a fraction of the sentence that might have been imposed had the Crown elected to proceed otherwise than it did. More particularly, the sentence for a hybrid offence prosecuted summarily should not be "scaled down" from the maximum on summary conviction simply because the defendant would likely have received less than the maximum had he or she been prosecuted by indictment. Likewise, upon indictment, the sentence should not be "scaled up" from the sentence that the accused might well have received if prosecuted by summary conviction.

[25] That said, Mr. Mohamed's situation is different from that of Mr. Soufi. He was clearly aware that what he was doing was illegal, which is why he disavowed ownership of his luggage. As well, he admits that he was paid to import the substance.

[26] Ordinarily, in a case such as this a fine would be appropriate. However, s. 734(2) of the Criminal Code provides that a fine may only be imposed if the Court is satisfied that the offender is able to pay it: R. v. Topp, 2011 SCC 43, [2011] 3 S.C.R. 119 at paras. 18-21. Mr. Mohamed is on ODSP and I am not satisfied that he has the means to pay a fine. I also take into account the fact that Mr. Mohamed will be required by virtue of s. 737(2) of the Criminal Code to pay a mandatory Victim Fine Surcharge in the amount of $200.00: R. v. Cloud, 2016 QCCA 567, 28 C.R. (7th) 310 at paras. 72-75.

[27] I note as well that while Mr. Mohamed committed the offence for financial gain, he was not motivated by greed but did so to pay his mother's hospital bills. He has attempted to make amends to society by performing 40 hours of community service. In the circumstances of this case, I conclude that a discharge would not be contrary to the public interest and would clearly be in Mr. Mohamed's interest.

IV. DISPOSITION

[28] For the foregoing reasons, Mr. Soufi and Mr. Mohamed are granted absolute discharges.

[29] Sections 109(1)(c) and (2) of the Criminal Code require that I make an order prohibiting both Mr. Soufi and Mr. Mohamed from possessing any firearm, other than a prohibited or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

Justice P.A. Schreck

Released: October 13, 2016