Supreme Court of Canada
Bell v. The Queen, 1983 CanLII 166 (SCC), [1983] 2 SCR 471
Harris Bell Appellant;
and
Her Majesty The Queen Respondent.
1983: February 2; 1983: November 24.
Present: Dickson, Beetz, Estey, McIntyre and Chouinard JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Criminal law—Narcotics—Importation—Meaning of “import”—Places of offence—Whether importing a narcotic a continuing offence—Whether the act of importing a narcotic terminates upon the narcotic crossing the border into Canada—Narcotic Control Act, R.S.C. 1970, c. N‑1, s. 5—Customs Act, R.S.C. 1970, c. C-40, s. 101(a) [am. 1974-75-76 (Can.), c. 5, s. 3].
Criminal law—Trial—Directed verdict at close of Crown’s case—Defence not yet concluded at that stage—Whether trial judge erred in directing verdict of acquittal before evidence completed.
Appellant was charged with importing narcotics contrary to s. 5 of the Narcotic Control Act. The drug, hidden in footstools shipped from Jamaica to appellant’s home address in St‑Hubert, P.Q., was found at Toronto International Airport by customs officers who notified the R.C.M.P. The footstools were then shipped to Mirabel Airport and taken by R.C.M.P. officers to their headquarters where most of the drug was removed from the footstools. A few days later, they returned them to Mirabel where they were picked up by the appellant. At trial, at the close of the Crown’s case, appellant’s counsel made a motion for a directed verdict of acquittal. The trial judge did not accept appellant’s argument that the act of importation had been completed in Toronto on entry of the marijuana into the country, but he nevertheless granted the motion on the basis that the R.C.M.P.’s intervention broke the chain of possession of the goods and completed the act of importation before the goods were received by the appellant. On appeal by the Crown, the Court of Appeal set aside the acquittal and ordered a new trial. The Court held that the offence of importing a narcotic was a continuing offence which was not completed until the appellant received the goods.
Held: The appeal should be dismissed.
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Per Beetz, Estey, McIntyre and Chouinard JJ.: The trial judge erred in directing a verdict of acquittal. While moving for a directed verdict, appellant’s counsel announced that a defence would be presented. The evidence therefore had not been completed at that stage of the trial and it was not for the trial judge to weigh the evidence and to himself reach a conclusion as to the guilt or innocence of the accused. It was incumbent upon him to consider the evidence then before him and decide whether or not there was evidence upon which a properly-instructed jury could convict the appellant of importing. He did not address that question as he wrongly decided that the temporary seizure of the imported narcotics by the R.C.M.P. precluded the finding of importation by the appellant. The R.C.M.P.’s intervention in the circumstances of this case was irrelevant. The offence of importing a narcotic is not of a continuing nature. The ordinary meaning of the word “import” in s. 5 of the Narcotic Control Act makes the offence of importing complete upon the entry of the goods in the country.
Per Dickson J.: On an offence of importing, there is no reason to restrict the relevant location within Canada to the actual point of border crossing. The word “import” should not be stultified by narrow interpretation. The elements of the offence are present as soon as the goods cross the border but the offence is not over and done with until the goods have reached their intended final destination within Canada. Accordingly, a charge could be laid relating to the point of entry or of destination or anywhere in between. Here, it was open to the Crown to charge importing at Toronto, Mirabel or at St-Hubert. Consequently, the trial judge erred in directing a verdict of acquittal as there was evidence to go to the jury. The R.C.M.P.’s temporary and lawful diversion of the narcotics did not terminate the ongoing act of importing and was irrelevant in the circumstances of this case.
R. v. Morabito, 1949 CanLII 1 (SCC), [1949] S.C.R. 172, applied; R. v. W.McKenzie Securities Ltd., 1966 CanLII 485 (MB CA), [1966] 4 C.C.C. 29, approved; Re Bennett and Schuette v. The Queen (1974), 1974 CanLII 1555 (BC SC), 19 C.C.C. (2d) 61, considered; R. v. Hijazi (1974), 1974 CanLII 1533 (ON CA), 20 C.C.C. (2d) 183; R. v. Whynott (1975), 1975 CanLII 1513 (NS CA), 27 C.C.C. (2d) 321 affirming (1974), 1974 CanLII 1568 (NS SC), 22 C.C.C. (2d) 433; R. v. Salvador (1981), 1981 CanLII 3357 (NS CA), 21 C.R. (3d) 1, not followed; R. v. Geesman (1970), 13 C.R.N.S. 240; R. v. Martin (1973), 1973 CanLII 1528 (ON SC), 21 C.R.N.S. 149; R. v. Tanney (1976), 1976 CanLII 1319 (ON CA), 31 C.C.C. (2d) 445; Kienapple v. The Queen, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, referred to.
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APPEAL from a judgment of the Quebec Court of Appeal (1982), 1982 CanLII 3753 (QC CA), 66 C.C.C. (2d) 317, setting aside appellant’s acquittal on a charge of importing narcotics contrary to s. 5 of the Narcotic Control Act. Appeal dismissed.
Richard Perras, for the appellant.
Gérald La Haye, for the respondent.
The following are the reasons delivered by
Reasons of Dickson J.
DICKSON J.—Section 5 of the Narcotic Control Act, R.S.C. 1970, c. N-1, makes it a crime, punishable by imprisonment for not less than seven years, to “import into Canada” any narcotic, except as authorized by the Act or the regulations. The main question in this appeal is whether the act of importing a narcotic terminates upon the narcotic crossing the border into Canada or whether the act of importing carries on until the narcotic reaches the intended final destination within Canada.
I The Facts and Judicial History
The Facts and Judicial History
Harris Bell was charged with importing a narcotic, and two related charges. Only the importing charge is relevant to this appeal. That count reads:
- On or about April 18, 1979 at Mirabel, District of Terrebonne, Harris BELL did unlawfully import into Canada a narcotic to wit: 6.7 lbs. of Cannabis (marijuana), committing thereby an indictable offence contrary to sections 5(1) and 5(2) of the Narcotic Control Act. R.S.C. 1970.
The trial on the three counts was held, with a jury, before Mr. Justice Bergeron of the Quebec Superior Court. At the end of the Crown’s case defence counsel, while reserving his right to call evidence, made a number of motions among which was a motion for a directed verdict of acquittal on the importing charge.
For the purpose of dealing with the defence motions, the trial judge gave the following summary of the Crown’s evidence:
On April 11 or 12, just a disparity of an hour or two there, a shipment of four foot stools gift wrapped with birthday paper originating from Jamaica and addressed
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to the accused’s name bearing a St-Hubert P.Q. address first arrived in Toronto. A brief examination by customs disclosed that the foot stools contained cannabis. The R.C.M.P. of a St-Jérôme detatchment [sic], Québec near the point of arrival for international flight of Mirabel, duly advised of the fact, obtained the goods from customs, gave receipt and took them to their St-Jérôme headquarters. An examination revealed the presence of six point seven pounds of marijuana in the four stools.
Most of the substance was removed from them, a small quantity being left in them before repacking the stools as well as could be done and then taking them back on/or about April 18 to the customs warehouse where instructions to advise …with instructions to advise the R.C.M.P. as to anyone calling for their release. On the afternoon of April 18, the accused presented himself to Air Canada’s counter to pay a terminal fee of seven dollars and fifty cents ($7.50) owed on the waybill relating to the shipment and to a custom’s counter to sign an entry form and obtain a release.
He later proceeded to the Air Cargo building to take possession of the four stools by taxi and drove to his house at St-Hubert P.Q. under the constant surveillance of the R.C.M.P. He then took the stools inside and came out of the house to join two other people who had seen [sic] in a car following him from the issue of the Mirabel boulevard where it joins the Laurentian Autoroute. Two more people also arrived, a man in a Cadillac and a young girl, all these people black. The police rounded up the whole group and immediately proceeded into the house using a writ of assistance and found the four stools unwrapped and piled on a single bed in the back room.
Their wrapping paper was found partly on the kitchen table, partly in the waste basket or garbage container and partly on the floor. On the table was also present what appeared to be the structure of a dismantled foot stool, it’s covering material removed. Another similar structure was found outside the house, in the back of it, off a small gallery and near a garbage bag or can. A scraping of the stool structure between the post and the walls showed the presence of zero point six grams of marijuana. Much more was filed as evidence regarded the procedure used in exporting from Jamaica, waybills, releases et cetera, and procedure at counters and so on.
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The evidence revealed that the four footstools had been shipped from Jamaica to Toronto and then to Mirabel bearing Air Canada waybill no. 014-42419624, addressed to Mr. & Mrs. Harris Bell, 5615 Perlini Street, St-Hubert, Montreal.
The accused argued before Bergeron J. that, since the goods came into Canada at Toronto, the importation was terminated in Toronto, so that there was no evidence to go to the jury of importing at Mirabel as charged. The trial judge did not accept the argument, holding that importing may extend beyond the time and place of entry into Canada. Bergeron J. nonetheless granted the motion for a directed verdict on the basis that the police possession of the marijuana interrupted the necessary continuity of possession of the accused. Upon the granting of the directed verdict on the importing charge, the Crown elected not to proceed on the two other charges.
The Crown appealed the acquittal on the importing charge. The Quebec Court of Appeal, speaking through Mr. Justice Montgomery, Bernier and Monet JJ.A concurring, allowed the appeal and ordered a new trial. Montgomery J.A. concluded the police possession was irrelevant to the charge of importing and that importing was a continuing offence which was not completed until the accused took delivery of the goods consigned to him.
Harris Bell appeals to this Court as of right under s. 618(2)(a) of the Criminal Code.
II When Is Importing Terminated?
When Is Importing Terminated?
The Narcotic Control Act contains no definition of importing. The appellant argues, as he did before Bergeron J., that importing is terminated as soon as the goods cross the border into Canada. In the present case it is contended that any importing was finished on April 11 or 12 in Toronto. In support of this submission, reliance is placed in
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part on s. 101(a) of the Customs Act, R.S.C. 1970, c. C-40 (am. 1974-75-76 (Can.), c. 5, s. 3).
- For the purpose of the levying of any duty, or for any other purpose of this Act or any other law relating to the customs,
(a) the importation of any goods, if made by sea, coastwise or by inland navigation, in any vessel, shall be deemed to have been completed from the time such goods were brought within Canadian waters, and if made by land, then from the time such goods were brought within the limits of Canada;
It is contended that this provision is incorporated into the Narcotic Control Act by virtue of s. 14 of the Interpretation Act, R.S.C. 1970, c. I-23:
- (1) Definitions or rules of interpretation contained in an enactment apply to the construction of the provisions of the enactment that contain those definitions or rules of interpretation, as well as the other provisions of the enactment.
(2) Where an enactment contains an interpretation section or provision, it shall be read and construed
(a) as being applicable only if the contrary intention does not appear, and
(b) as being applicable to all other enactments relating to the same subject-matter unless the contrary intention appears.
(Emphasis added.)
In my view s. 101(a) of the Customs Act has no application. It is concerned with the levying of duty, or for any other purpose of the Customs Act or any other law relating to customs. The Narcotic Control Act is concerned with the health and welfare of mankind and the serious social and economic evil of non-medical use of narcotics. The two Acts are unrelated and the Interpretation Act does not provide a nexus. Even if s. 101(a) of the Customs Act were considered to apply, it would not, in my view, settle the point. Section 101(a) would establish an importing into Toronto, but it would not preclude a finding that there was also importing into Mirabel, as charged. Section 101(a) does not purport to be an exhaustive definition. The true meaning of the phrase “import into Canada”, as used in the Narcotic Control Act,
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cannot be found by recourse to the Customs Act. It is manifestly necessary to look at the natural and ordinary meaning of the phrase.
Bruce A. MacFarlane, the author of Drug Offences in Canada (1979) observes, at p. 231 of his work, that Courts have generally held there is no ambiguity or equivocation in the phrase “import into Canada” as used in the Narcotic Control Act and that it should be given its ordinary and natural meaning.
The ordinary meaning of the word “import”, according to the Shorter Oxford English Dictionary, is “to bring in (goods or merchandise) from a foreign country”. Le Petit Robert, Dictionnaire alphabétique et analogique de la langue française, 1976, defines thus the word importer:
Importer 1° Introduire sur le territoire national (des produits en provenance de pays étrangers). La France importe du café, du coton. 2° Importer de la main-d’œuvre, un brevet de fabrication… Ant. Exporter.
To import into Canada means to bring in goods from anywhere outside Canada to anywhere inside Canada. I see no reason in principle or precedent to restrict the relevant location within Canada to the actual point of border crossing. The word “import” should not be stultified by narrow interpretation. Importing is a process which, although it necessarily includes the act of crossing the border, extends to the point of intended final destination. In my view the test is whether there is a direct link between the place of origin outside Canada and the destination inside Canada. Where goods are mailed from Jamaica to St-Hubert, the nexus between Jamaica and St-Hubert is obvious. If goods come from Jamaica via Toronto and Mirabel to St‑Hubert they have come from Jamaica outside Canada to Mirabel inside Canada. They have been imported to Mirabel. It is true that they have also come from Jamaica outside Canada to Toronto inside Canada, and from Jamaica outside Canada to St-Hubert inside Canada, so that there is also importing to Toronto and to St-Hubert. This multiplicity does not, however, raise any
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problem for an accused because this Court’s decision in Kienapple v. The Queen, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729 would ensure against multiple convictions.
The above analysis is consistent with the authorities. The appellant has not referred the Court to any decision in which it was held that importing did not extend beyond the time and place of actual border crossing. The cases which discuss this point all go the other way. It is sufficient to refer to three of them.
In R. v. Hijazi (1974), 1974 CanLII 1533 (ON CA), 20 C.C.C. (2d) 183 (Ont. C.A.) (leave to appeal to Supreme Court of Canada dismissed November 12, 1974, [1974] S.C.R. ix) the accused picked up some narcotics from customs. It was argued by the accused that the actus reus was subsequent to importing because his call at the customs warehouse was after the landing of the goods in Canada. The Ontario Court of Appeal disagreed, saying at p. 184:
In our opinion, the importation process is not to be so narrowly construed. It extends to the point where delivery is taken from the bonded warehouse by or on behalf of the person claiming the goods.
With respect, I agree. Hijazi was found guilty on the basis that he was at least an aider or abettor to the offence of importing and therefore criminally liable under s. 21(1) of the Criminal Code. In my view this was a proper analysis. Section 21(1) reads:
- (1) Every one is a party to an offence who
(a) actually commits it,
(b) does or omits to do anything for the purpose of aiding any person to commit it, or
(c) abets any person in committing it.
To “actually commit” importing, an accused must bring in, or cause to be brought in, to Canada, goods from a foreign country; this, by definition, necessitates crossing the Canadian border. Some-
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one who becomes involved only after the border crossing, however, may be aiding and abetting a person bringing the goods from outside Canada to a given destination inside Canada. In Hijazi the final destination within Canada intended by the importer was clearly not the customs warehouse. The importing was unfinished until after the narcotics had cleared customs.
Re Whynott and The Queen (1974), 1974 CanLII 1568 (NS SC), 22 C.C.C. (2d) 433 (N.S.S.C.,T.D.), is not unlike the case at bar. Hashish was concealed in a guitar case which went from Amsterdam through Toronto to Halifax. The accused was charged with unlawfully importing a narcotic at or near Enfield in the County of Halifax, Nova Scotia. The basis of the application before the court was that there was no evidence that any offence took place in the Province of Nova Scotia. The facts are given the judgment of Chief Justice Cowan of the Nova Scotia Supreme Court, Trial Division, at p. 440:
The evidence in the case before me indicates that the applicant, Whynott, had arranged with the shipper, Thompson, for the sending of the guitar and of the narcotic contained in it, from Amsterdam to Kentville, Nova Scotia. The goods were destined for Kentville, Nova Scotia, and the mere fact that the aircraft carrying them entered Canada at some place unknown, or that it actually landed at Montreal or at Toronto, in a Province other than Nova Scotia, is not conclusive on the question of the place of importation. In accordance with the instructions of the sender of the goods and the intention of the intended recipient, the goods were not held and did not come to rest in the customs warehouse at Toronto. The goods were transferred by KLM to Air Canada, and were brought to Nova Scotia. They then rested briefly in the International Airport at Halifax, in the custody of Air Canada, and were then taken to the sufferance warehouse at New Minas, near Kentville, Nova Scotia. It is true that the actual transportation from Halifax International Airport to the sufferance warehouse at New Minas was by police officers, but the goods in question were still under the control of customs officials who had delivered possession to the police for a
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certain restricted purpose.
The Chief Justice concluded:
In my opinion, there was evidence before the committing Judge that an offence of importing into Canada a narcotic had been committed and that this offence had been committed in the Province of Nova Scotia.
He refused the motion in the nature of certiorari to quash the committal. Whynott was later tried and convicted.
The Appeal Division of the Nova Scotia Supreme Court ((1975), 1975 CanLII 1513 (NS CA), 27 C.C.C. (2d) 321) upheld the accused’s conviction for importing into Enfield. The hashish was imported into Enfield since Enfield was the home of the accused and the ultimate destination within Canada. Coffin J.A., delivering the judgment of the Court quoted with approval from the reasons of O’Meara J.S.P. in R. v. Geesman (1970), 13 C.R.N.S. 240, at p. 254:
There may be other cases where, beneath the scrutiny of other laws, a more technical or special sense may be given to the word “import”; however, in the case at bar, the ordinary, grammatical and plain meaning of the words far better comports with the object to be attained. The unique object of the enactment in question, in respect of the evil against which it is directed, is the suppression of illicit importation into and exportation from Canada of narcotics.
In my considered opinion, to ascribe to the words “import into Canada” that narrow and uniquely specialized meaning for which defence counsel contended, would be utterly to emasculate the enactment, to defeat its object, to promote the evil against which it is aimed and thoroughly to misapprehend the intent of Parliament.
In R. v. Tanney (1976), 1976 CanLII 1319 (ON CA), 31 C.C.C. (2d) 445 (Ont. C.A.) the accused became involved in a scheme after the hashish was already in Canada, in bond in Toronto, pending arrangements to ship it to the United States. Tanney was enlisted to accomplish this end. On appeal, an acquittal was
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entered on the charge of importing. Evans J.A., speaking for the court, said this, at p. 450:
After reviewing the evidence, I am satisfied that the Crown has not conclusively established with that degree of certitude necessary in a criminal case that the involvement of the appellant constituted acts in furtherance of a scheme to import the drugs into Canada. The drugs were already in bond in Canada when the appellant became involved and what he did was to order their transhipment to New York. While his conduct might be culpable it does not constitute the offence charged against him.
In the circumstances of that case, the final destination within Canada intended by the importer was the customs warehouse in Toronto. The importing was finished before Tanney did anything and in my view Tanney was properly acquitted.
The elements of an offence of importing are present as soon as the goods cross the border, but the offence is not over and done with until the goods have reached their intended final destination within Canada. Accordingly, a charge could be laid relating to the point of entry or of destination or anywhere in between. In this case there was evidence that the intended and actual destination within Canada was St-Hubert, but there were stops along the way at Toronto and Mirabel. In my view it was open to the Crown to charge importing at Toronto or at Mirabel or at St-Hubert.
A number of judgments have referred to the crime of importing narcotics as a “continuing offence”, defined in Black’s Law Dictionary, 5th ed., as a “type of crime which is committed over a span of time as, for example, a conspiracy” and as a “transaction or a series of acts set on foot by a single impulse, and operated by an unintermittent force, no matter how long a time it may occupy”. Words and Phrases (Permanent Edition, vol. 9) defines a continuing offence as, inter alia, a “breach of criminal law, not terminated by single act or fact, but subsisting for definite period and intended to cover or apply to successive similar
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obligations or occurrences”. Whether the importation of narcotics falls within the ambit of these definitions, or any of them, may be open to debate. In my opinion, however, nothing turns on the definitional niceties. So far as the outcome of this appeal is concerned, it is of no consequence whether the importation of narcotics is or is not regarded as a continuing offence.
III The Effect of Police Possession
The Effect of Police Possession
As I have mentioned, the trial judge directed a verdict of acquittal on the ground that continuity of possession had been interrupted by removal by the police of the footstools to St‑Jérôme. I agree with the Court of Appeal that the police possession was irrelevant. The temporary and lawful diversion of the narcotics to the R.C.M.P. detachment at St-Jérôme, for the purpose of testing, could not be said to have terminated the ongoing act of importing. I agree with what was said by Cowan C.J.T.D. in Whynott that the goods in question were “still under the control of customs officials who had delivered possession to the police for a certain restricted purpose”. I find no merit in the appellant’s argument on the interruption of possession which found favour at trial.
IV Conclusion
Conclusion
I conclude there was evidence to go to the jury that Harris Bell had imported marijuana into Mirabel on April 18, 1979 and that the trial judge erred in directing a verdict of acquittal. The appeal should be dismissed. I would confirm the order of the Court of Appeal of Quebec ordering a new trial.
The judgment of Beetz, Estey, McIntyre and Chouinard JJ. was delivered by
Reasons of McIntyre J.
MCINTYRE J.—This appeal is taken against the finding by the Quebec Court of Appeal that the acquittal of the accused upon a charge of importing a narcotic into Canada should be set aside and that a new trial should be ordered. The appellant
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was charged in an indictment, dated October 9, 1979, with three counts. The first count was in these terms:
- On or about April 18, 1979 at Mirabel, District of Terrebonne, Harris BELL did unlawfully import into Canada a narcotic to wit: 6.7 lbs. of Cannabis (marijuana), committing thereby an indictable offence contrary to sections 5(1) and 5(2) of the Narcotic Control Act, R.S.C. 1970.
The second and third counts charged, respectively, possession of a narcotic for the purpose of trafficking at Mirabel, and, simple possession at St-Hubert.
On April 9, 1979 four parcels, each containing a footstool, were shipped by Air Canada from Jamaica to Canada. The parcels were consigned to the appellant at his home address in St‑Hubert, Quebec. On April 10 or 11, 1979 the parcels arrived at Toronto International Airport. Upon inspection by customs officers it was found that some 6.7 lbs. of cannabis (marijuana) were secreted in the footstools. The R.C.M.P. were notified and upon their instructions the parcels were shipped on to their designated destination at Mirabel Airport in Quebec. On April 12, 1979 the R.C.M.P. took the footstools from Mirabel to their headquarters at St-Jérôme, Quebec. On April 17 they took apart the footstools and removed most of the marijuana, leaving only five grams in one of the footstools. They then reassembled and re-packaged the footstools. On April 18, having been informed that inquiries had been made at Mirabel regarding the parcels, the R.C.M.P. returned them to the airport. There the appellant received the parcels, paid the freight charges, and took the parcels to his home at St-Hubert, Quebec. He was followed by the R.C.M.P. and was arrested there. A search of his house revealed a piece of paper near the telephone on which was written a number which corresponded to the number of the Air Canada way-bill covering the shipment to Canada and an address in Jamaica. The way-bill, in addition to showing the address of the appellant as the recipient and giving the address of a sender in Jamaica, described the footstools as a gift.
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The appellant was tried before a judge of the Superior Court of Quebec for the District of Terrebonne sitting with a jury. At the close of the Crown’s case, counsel for the defence announced that a defence would be presented but asked that the jury be excused. In the absence of the jury, defence counsel made a motion for a directed verdict of acquittal. This motion was granted and the jury acquitted the appellant in response to the judge’s direction. The trial judge in his reasons for the directed verdict rejected the defence submission that the act of importation had been completed in Toronto on entry of the marijuana into the country. He seems to have accepted the view expressed in several cases, which will be referred to later, that the offence of importing a narcotic is of a continuing nature and could have extended in this case up to the receipt of the goods at Mirabel after they had been released from Customs. He considered, however, that the act of the R.C.M.P. in taking the marijuana out of Customs and returning the parcels after removing most of the marijuana broke the chain of possession of the goods and completed the act of importation before the goods were received by the appellant. He said in his reasons:
The last opinion as to the interpretation of the word “import” is one which this Tribunal shares. What troubles the Court however is the juridical consequence of the intervention of the R.C.M.P. by their removal from customs of the goods from bond, against simple receipt to customs. By this intervention they deprive the customs who have the final say on import goods in their eventual release to consignee of the element of control necessary to establish the continuity of possession until they are released to the accused, breaking the necessary link which is needed to tie him, to the commission of the infraction of importing as per the definition retained by this Court.
However necessary it may have been to secure evidence or even to avoid the risk of the narcotics finding their way on the streets, a main quantity could have been extracted from the stools without the goods leaving the customs warehouse and the customs control. This was not done, with the consequence that the importation was completed as to the time of removal by the R.C.M.P. from the customs warehouse and by their own possession of the goods after their entry into Canada.
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From the evidence adduced on this very point it cannot be offered to the jury that there is evidence for the jury to weigh as regards the first count of importing. A verdict shall therefore be directed as to the first count.
The Crown elected not to proceed with the other two counts.
The Crown’s appeal was allowed. Montgomery J.A., speaking for the court, adopted the view that importation is a continuing offence and that in this case it would have extended up to the time the goods were released from custody at Mirabel into the possession of the appellant. In allowing the Crown’s appeal and ordering a new trial, he accepted as decisive the reasoning in R. v. Hijazi (1974), 1974 CanLII 1533 (ON CA), 20 C.C.C. (2d) 183 (Ont. C.A.) and R. v. Whynott (1975), 1975 CanLII 1513 (NS CA), 27 C.C.C. (2d) 321 (N.S.C.A.), in holding that the offence of importing a narcotic is a continuing offence which is not completed until the appellant receives the goods. He said:
The trial judge appears to have distinguished the Hijazi and Whynott cases on the ground that the R.C.M.P had removed the footstools containing the narcotics from the control of the customs authorities, thereby completing the importation. With the utmost respect, I cannot see the significance of this. In my opinion, the importation was a continuing offence, which was not completed until respondent took delivery of the goods consigned to him. What happened between their first arrival in Canada and this delivery I regard as irrelevant, and I cannot agree that the R.C.M.P. should have examined the footstools without removing them from the customs warehouse.
The court considered the fact that for a time the R.C.M.P. had removed the parcels from the custody of the customs authorities to be irrelevant. This appeal is as of right, pursuant to s. 618(2)(a) of the Criminal Code.
In this Court the appellant argued that the act of importation was complete upon the entry of the parcels into Canada on April 10 or 11, 1979, dates which in my opinion fall within the words in the indictment, “on or about April 18, 1979”. There was, therefore, no involvement with the appellant
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at the place where the importation occurred or on the date specified. It was also argued that the offence, if one was committed, occurred in Toronto and not within the jurisdiction of the Quebec Superior Court and, as no timely motion to amend the indictment had been made by the Crown, that the appellant was entitled to an acquittal. The respondent argued that the Court of Appeal had not found, nor did the evidence reveal, that the whole offence was committed into Ontario and that any interruption in possession occasioned by the intervention of the R.C.M.P. was irrelevant. In this the respondent was supporting the idea that importation is a continuing offence.
The characterization of importing a narcotic as a continuing offence has appeared in several cases. In R. v. Whynott, supra, hashish concealed in a guitar case entered Canada at Toronto on an aircraft from Holland. It was then shipped to Nova Scotia where it was picked up by the accused from Canadian customs officers and taken to his home. He was arrested by the R.C.M.P. at his home with the narcotic in his possession after having removed it from the guitar. He was convicted of importing and his appeal to the Nova Scotia Court of Appeal was dismissed. The court had to decide whether or not the courts of Nova Scotia had jurisdiction to try the offence in light of s. 434(1) of the Criminal Code, which reads in part:
…nothing in this Act authorizes a court in a province to try an offence committed entirely in another province.
After a review of several cases, Coffin J.A., speaking for the court (Coffin, Cooper and Macdonald JJ.A.) held, at p. 340, that the offence was a continuing offence that actually occurred when the appellant took the material out of the guitar at his home in Nova Scotia. It was said that when he did this he provided clear evidence that he had knowledge of the contents and hence a mens rea. It will be observed that effect was given to the description of the offence as a ‘continuing’ one by determining that it occurred when the goods were removed from the guitar several days after their entry into
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Canada. The Nova Scotia Court of Appeal dealt with this question again in R. v. Salvador (1981), 1981 CanLII 3357 (NS CA), 21 C.R. (3d) 1. In that case a yacht entered port in Nova Scotia with a cargo of some eight tons of marijuana. On a charge of importing, the accused argued that the ship had been forced by bad weather to enter Canadian waters and seek refuge, its real destination being the United States. The entry was therefore not voluntary and therefore not criminal. The court rejected this defence and upheld the conviction. In dealing with this defence, the court considered that the entry of the yacht into Canada was voluntary and that the voluntary bringing into the country of narcotics constituted the crime of importation. MacKeigan C.J.N.S. held that the trial judge had correctly instructed the jury that importation was the act of knowingly bringing a forbidden narcotic into the country and quoted from the trial judge’s charge to the jury, at pp. 5-6: “As well, the moving of it within Canada after having brought it in may be the continuing offence of importing. You may import not only merely as you enter but if you continue with it after your entry.” Macdonald J.A. reached the same conclusion. He was of the view that the authorities supported the proposition that importing is a continuing offence and he referred with approval to R. v. Hijazi, supra, and the words of Schroeder J.A., where he said, at pp. 184-85, after holding that the acts of importation could extend to the point where the goods were released from customs:
Taking a view of the evidence most highly favourable to the accused it may be said that it was established on the evidence that the goods were in Canada before any overt act or acts on his part became evident; and his culpability must be founded upon his conduct in securing the release and delivery of the goods from the bonded warehouse. In our view, that conduct was sufficient to make him a participant in the commission of the offence charged through the operation of the provisions of s. 21(1)of the Code.
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Other cases concerning this question which were considered in Salvador include R. v. Geesman (1970), 13 C.R.N.S. 240 (Que. S.P.); R. v. Martin (1973), 1973 CanLII 1528 (ON SC), 21 C.R.N.S. 149 (Ont. S.C.).
It can be seen that there is judicial support for the Crown’s contention in the case at bar that the ‘continuing offence’ principle could be used to justify the conviction of the appellant. It therefore becomes necessary to consider what a continuing offence is and whether importing can be classed as one.
A continuing offence is not simply an offence which takes or may take a long time to commit. It may be described as an offence where the conjunction of the actus reus and the mens rea, which makes the offence complete, does not, as well, terminate the offence. The conjunction of the two essential elements for the commission of the offence continues and the accused remains in what might be described as a state of criminality while the offence continues. Murder is not a continuing offence. When the requisite intent to kill is present the crime is complete when the killing is effected. Conspiracy to commit murder could be a continuing offence. The actus reus and mens rea are present when the unlawful agreement is made and continue until the killing occurs or the conspiracy is abandoned. Whatever the length of time involved, the conspirators remain in the act of commission of a truly continuing offence. Theft is not a continuing offence. It is terminated when the wrongful taking has occurred with the requisite intention. On the other hand, possession of goods knowing them to have been obtained by the commission of theft is a continuing offence. The offence of kidnapping would not be a continuing offence, but that of wrongful detention of the victim following the kidnapping would be.
It is apparent, in my view, that importing a narcotic cannot be a continuing offence. I do not find it necessary to make extensive reference to dictionaries in order to define the word “import”. In my view, since the Narcotic Control Act does not give a special definition of the word, its ordi-
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nary meaning should apply and that ordinary meaning is simply to bring into the country or to cause to be brought into the country. With the utmost respect for judges who have taken a different view, I am of the opinion that the characterization of importing a narcotic as a continuing offence is misconceived. The offence is complete when the goods enter the country. Thereafter the possessor or owner may be guilty of other offences, such as possession, possession for the purpose of trafficking, or even trafficking itself, but the offence of importing has been completed and the importer in keeping or disposing of the drug has embarked on a new criminal venture.
In some of the cases which have been referred to above, it has been said that to limit the act of importing to simple entry of the goods into the country is to adopt too strict an approach. The concept of a continuing offence, it seems to me, has been adopted in these cases to extend the reach of s. 5 of the Narcotic Control Act, to encompass conduct which cannot really be classed as importing. It has been considered that this approach is justified in order to give full effect to the purpose of the Act which in this respect is to control and suppress the social evils resulting from the importation of narcotics into the country and the adoption of a narrow construction of the word “import” would be to defeat that purpose. In my view, the construction I have placed on the word is not a narrow one. It is merely the normal or ordinary one, and one which has been adopted in some of the earlier cases: see Pennell J. in R. v. Martin and O’Meara J.S.P. in Geesman.
I do not consider that there is merit in the suggestion that the application of this view makes a conviction on an importing charge a virtual impossibility and thereby frustrates the clearly expressed intention of Parliament. To convict of importing, it is not necessary to show that the accused actually carried the goods into the country. Neither is it necessary to show that the accused was present at the point of entry. It is quite possible for ‘A’ while at town ‘X’ to make all the arrangements and perform all the acts required
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to import illicit goods at town ‘Y’. Indeed in ordinary commerce, merchants in, say, Vancouver import goods through eastern Canadian ports on a regular basis without ever visiting the port of entry. The same principle can be applied in criminal cases and criminal acts performed in one province can render the actor liable to prosecution in another province and subject to the jurisdiction of that other province. In R. v. W. McKenzie Securities Ltd., 1966 CanLII 485 (MB CA), [1966] 4 C.C.C. 29, stock promoters in Ontario, who were not licensed under The Securities Act of Manitoba, solicited by mail and telephone the purchase of shares in Manitoba without ever being in Manitoba. They were convicted in Manitoba of an infraction of the Manitoba Securities Act. Their appeal to the Manitoba Court of Appeal was dismissed. Freedman J.A. (as he then was), in giving judgment for the court, said at p. 37:
The issue as to whether the activities of the accused constituted a violation of the Securities Act of Manitoba falls to be decided solely on what occurred within this Province. That they were registered to trade in securities in Ontario would only be relevant if they were faced with a charge of violating the corresponding statute of that Province. It is an irrelevant circumstance in the present prosecution. The sole point to be determined is whether the accused Dubros and the accused West, both of whom were unlicenced here, traded in securities in Manitoba. That they did not physically enter the borders of the Province is not conclusive of the matter. A person may, from outside the borders of a Province, do certain acts within the Province so as to make himself liable to the provisions of this statute. Williamson, Securities Regulation in Canada (University of Toronto Press, 1960), at p. 204 says:
“There seems to be no reason why a person cannot become subject to a licensing statute of a province without ever entering the province, constitutional questions aside.”
Although offences are local, the nature of some offences is such that they can properly be described as occurring in more than one place. This is peculiarly the case where a transaction is carried on by mail from one
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territorial jurisdiction to another, or indeed by telephone from one such jurisdiction to another. This has been recognized by the common law for centuries. Thus, where a threatening letter was written and posted in London, and delivered in Middlesex, it was held by the Court that the writer could properly be tried in Middlesex: R. v. Girdwood (1776), 1 Leach 142, 168 E.R. 173 (C.A.). Vide also R. v. Esser (1767), 2 East P.C. 1125.
To similar effect is Re Bennett and Schuette v. The Queen (1974), 1974 CanLII 1555 (BC SC), 19 C.C.C. (2d) 61. In that case, involving charges under s. 340 of the Criminal Code, the placing of an order with a Vancouver broker which was passed on to a Calgary broker for entry in the Calgary stock exchange (which entry constituted the offence) was held to be sufficient to constitute the commission of the offence in British Columbia and give jurisdiction to the British Columbia courts.
The principle expressed in McKenzie Securities and Re Bennett and Schuette is peculiarly applicable to the case at bar. The Narcotic Control Act forbids the importation of narcotics into Canada. The offence of importation may be committed anywhere in Canada and one offence may occur in whole or in part at more than one location in Canada. As in the case of the honest merchant, the drug importer may from one part of Canada make all the arrangements and do all the acts necessary to bring about the importation of narcotics at another point. In so doing, it may be said he has committed an offence which has occurred at two places, or commenced in one jurisdiction and completed in another. Either the courts of the jurisdiction where the goods entered the country or those of the province where the acts or arrangement leading to the importation occurred will have jurisdiction to deal with the case: see s. 432(b) of the Criminal Code. The intervention of the R.C.M.P. in the circumstances of the present case is, I agree, irrelevant.
It will be recalled that at the close of the Crown’s case the appellant, while moving for a directed verdict, announced that a defence would be presented. The evidence therefore had not been completed at that stage of the trial and it was not
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for the trial judge to weigh the evidence and to himself reach a conclusion as to the guilt or innocence of the accused. It was the task of the trial judge to consider the evidence then before him and to decide whether there was evidence upon which a properly-instructed jury could convict the appellant of importing marijuana as alleged in the indictment: see R. v. Morabito, 1949 CanLII 1 (SCC), [1949] S.C.R. 172. Because of an error in law, that is, a finding that the temporary seizure of the imported narcotics by the R.C.M.P. precluded the finding of importation by the appellant, the trial judge did not address that question. He was therefore in error in directing a verdict of acquittal.
For the above reasons it is my opinion that the appeal must fail and the order of the Court of Appeal for a new trial must be affirmed.
Appeal dismissed.
Solicitors for the appellant: Chalifoux et Perras, Montreal.
Solicitor for the respondent: Gérald La Haye, Montreal.
