COURT FILE NO.: CR-17-3990
DELIVERED ORALLY DATE: 20180620
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Manpreet Singh Dhatt
Stephane Marinier, for the Federal Crown
Frank Miller, for the Offender
HEARD: June 1, 2018
RULING ON MOTION
HEBNER J.
[1] Mr. Manpreet Singh Dhatt (“Mr. Dhatt”) has been charged on a two-count indictment with the following:
Importing cocaine into Canada, contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c.19 (“CDSA”).
Possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the CDSA.
[2] Both alleged offences are alleged to have occurred on December 27, 2016. At the commencement of the trial, Mr. Dhatt admitted that he had cocaine in his vehicle when he tried to cross the border from the United States into Canada. Mr. Dhatt admitted that he knew the cocaine was in his vehicle and that it was to be trafficked by someone in Canada. Counsel for Mr. Dhatt advised that his defence was duress.
[3] At the close of the Crown’s case, Mr. Dhatt brought a motion for a directed verdict. He argued that the Crown had not proven all of the essential elements of the offence as the Crown did not prove that Mr. Dhatt had cleared customs with the contraband. This is my ruling on that motion.
Background Facts
[4] For the purpose of dealing with the defence motion for a directed verdict, I will briefly summarize the Crown’s evidence on those facts relevant to the issue raised by the defence.
[5] Mr. Dhatt became employed at a long-haul trucking company, State Express, in November 2016. State Express is based in Brampton, Ontario. Mr. Dhatt was employed as an owner-operator. He made two trips to California for State Express. On his first trip, Mr. Dhatt used his own truck. He drove to California with a load of goods in a refrigerated unit. He returned with a load of fresh produce. On his second trip, Mr. Dhatt used a truck owned by State Express. He was to take a load of peat moss to California and return with a load of oranges. It is Mr. Dhatt’s return to Canada on his second trip that resulted in the charges before the court.
[6] According to his driver’s daily log, Mr. Dhatt left Ontario on December 15-16, 2016. He crossed the border into the United States at Detroit, Michigan. He drove to California and dropped off his load of peat moss. Mr. Dhatt was to pick up the load of oranges on December 21, 2016. It appears that he did so, according to his daily log. He drove to Detroit, Michigan with the load of oranges.
[7] Mr. Dhatt tried to cross the Ambassador Bridge into Canada at approximately 3:30 a.m. on December 27, 2016. He entered a commercial lane manned by Canada Border Services Agency (“CBSA”) Officer Cunningham. Officer Cunningham found Mr. Dhatt to be agitated. After the preliminaries, Mr. Dhatt asked Officer Cunningham, “Can I tell you something?” He said, “I want to tell you about a guy I know. He brings stuff through the border and he’s pressuring me to do it too. He knows some bad people and I don’t want to be part of it.” Mr. Dhatt gave Officer Cunningham the man’s name and contact information. He said he wanted to be followed on his next trip so that everyone involved could be arrested.
[8] Mr. Dhatt was initially directed to the on-site secondary inspection station. He was then escorted to the off-site inspection station approximately 5 – 7 kilometres away, where he was to speak with an investigator. He arrived there at approximately 4:15 a.m. When the investigator, Officer Butler, arrived she asked that the trailer be searched. Mr. Dhatt was asked to back the trailer up to a loading dock and cut the seal so border services officers could enter the trailer and examine the interior. Officer Cunningham asked Mr. Dhatt if the officers would find anything. Mr. Dhatt said “No. Nothing. No problems. I will back it up.”
[9] Mr. Dhatt broke the seal on the trailer and CBSA officers entered the trailer to search it. They found 30 bricks of cocaine weighing a total of 30.199 kilograms.
The Issue
[10] Mr. Miller, on behalf of Mr. Dhatt, takes the position that there is insufficient evidence that Mr. Dhatt and the cocaine had cleared customs. Accordingly, the offence of importation was not complete and the charge must be dismissed. Mr. Miller relies upon the decision of Watt J.A. in R. v. Foster, 2018 ONCA 53.
[11] The Crown takes the position that the Court of Appeal decision in Foster does not stand for the proposition that an accused and his contraband must clear customs before they can be found guilty of importation. The Crown takes the position that the Foster decision was written in the context of the defence of duress and, specifically, whether the accused in that case had a safe avenue of escape, and must be read in that context. The Crown submits that the motion for a directed verdict ought to be dismissed.
Analysis
[12] In my view, in order to better understand and appreciate the decision of Watt J.A. in Foster, one must first review two decisions of the Supreme Court of Canada, namely R. v. Bell and R. v. Vu.
R. v. Bell
[13] The analysis must begin with the decision of the Supreme Court of Canada in R. v. Bell, 1983 CanLII 166 (SCC), [1983] 2 S.C.R. 471. The facts of the case are important. Mr. Bell was charged with importing narcotics, contrary to s. 5 of the then Narcotics Control Act. The drugs were hidden in footstools shipped from Jamaica to the accused’s home address in St-Hubert, Québec. They were found at Toronto International Airport by customs officers, who notified the RCMP. The footstools were then shipped to Mirabel Airport in Québec where the RCMP took the parcels to their headquarters, removed most of the drugs, and returned the parcels to the airport. The accused attended at the airport to claim the parcels and took them home.
[14] The accused argued before the trial judge that, since the goods came into Canada at Toronto, the importation was terminated in Toronto, and there was no evidence to go to the jury of importing at Mirabel as charged. Although the trial judge did not accept the argument, and held that importing may extend beyond the time and place of entry into Canada, the trial judge granted the motion for a directed verdict on the basis that the police possession of the drugs interrupted the necessary continuity of possession by the accused. The Crown appealed the acquittal on the importing charge. The Québec Court of Appeal allowed the appeal and ordered a new trial. Mr. Bell appealed to the Supreme Court of Canada. The appeal was dismissed.
[15] One of the issues before the Supreme Court of Canada was the determination of when the offence of importing is terminated. Justice Dickson, in his concurring reasons, first dealt with the meaning of the word “import”. He said, at p. 477-78 [cited to S.C.R.]:
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 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. [Emphasis in original.]
[16] At p. 481 of the Canada Supreme Court Reports, Dickson J. said:
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 my view it was open to the Crown to charge importing at Toronto or at Mirabel or at St-Hubert.
R. v. Vu
[17] The case of R. v. Vu, 2012 SCC 40, [2012] 2 S.C.R. 411, is a kidnapping case. The accused was charged with kidnapping and forcible confinement. When the victim was originally kidnapped by multiple assailants, not including the accused, the accused was unaware of the kidnapping. The victim was subsequently detained for several days at three locations. There was evidence that the accused had been present at each of those locations. The accused was convicted of forcible confinement. The trial judge acquitted the accused of kidnapping as he had not been present when the victim was originally kidnapped and was unaware that the kidnapping would occur. The Crown appealed. The appeal was allowed and the accused was convicted of kidnapping. The accused appealed to the Supreme Court of Canada. The Supreme Court of Canada dismissed the appeal.
[18] The Supreme Court found that the offence of kidnapping is a continuing offence such that a kidnapping lasts until the victim of the offence is released from unlawful detention. The Supreme Court introduced the concepts of “legally complete” and “factually complete”. The Court found that the offence of kidnapping is “legally complete” such that a participant may be convicted of the offence as soon as the victim is first unlawfully detained. The Court then said that the offence is not “factually complete” until the victim is released. Accordingly, even though the accused participated in the kidnapping after the victim was taken, but before the offence was factually complete, he was still guilty of the offence of kidnapping. Justice Moldaver, speaking for the Court, said at para. 67:
But, as I have mentioned before, just because the offence was complete in law at the moment of the taking does not mean that it was also complete in fact. Mr. McMynn’s unlawful confinement following the taking continued for the next eight days. The kidnapping came to an end when he was set free by the police. Put differently, Mr. McMynn’s status as a victim of a kidnapping did not change during his eight days of captivity.
R. v. Foster
[19] The case of Foster is an important case. Ms. Simone Foster travelled to Jamaica to visit some relatives. She returned by airplane to Pearson International Airport. Upon her return, she was interviewed at a primary inspection site. She was instructed to proceed to baggage claim. Between primary inspection and baggage claim, a CBSA officer approached her and struck up a conversation. Ms. Foster’s answers prompted the officer to direct Ms. Foster to a secondary inspection site. At secondary inspection, a pat-down search led to her arrest, and her arrest led to a strip search. The strip search revealed that the bra Ms. Foster was wearing contained 1.2 kilograms of cocaine.
[20] Ms. Foster admitted that she imported cocaine into Canada in her bra. Her defence was that of duress. She said she had been threatened in Jamaica by a man who said his name was D.J. She said D.J. threatened her family in Jamaica if she refused to bring the cocaine to Canada. The jury rejected her testimony and she was convicted. She appealed her conviction to the Court of Appeal. Ms. Foster’s submission was that the trial judge had committed an error in her instructions to the jury on the issue of whether she had a safe avenue of escape from D.J., other than by committing the offence.
[21] Central to the argument of the appellant was the issue of “the relationship between the time at which the crime of importing is complete and the disentitling effect of a safe avenue of escape on the availability of the excuse of duress”: see para. 43. The appellant’s argument was that importing is not a continuing offence and the offence of importing was complete once the cocaine hidden in her bra entered Canada. The appellant argued that once she entered Canada with the cocaine, the offence of importation was complete. “She had no means of escape at the airport because, to be availing, the legal means of escape must precede the crystallization of the offence”: see para. 45. She submitted that the trial judge’s instruction that she could have sought help from CBSA officers at the airport as a safe avenue of escape was wrong in law and deprived her of a proper adjudication of the issue of duress.
[22] Justice Watt considered the decision in Bell and said the following about the question of when the offence of importing was complete:
The term “import” means to bring something into Canada from elsewhere, or cause something to be brought into Canada from elsewhere: see para. 56.
The offence of importing is complete when the contraband “enters the country”: see para. 100.
Importing contraband is a process. It begins elsewhere with procurement of the contraband, followed by its transport, by some means or other to a point of entry, and ultimately to a domestic destination or intended recipient: see para. 102.
While importing may be legally complete on entry into Canada, it is not factually complete until the contraband and its carrier have cleared customs and thereby become available to their ultimate recipient: see para. 106.
[23] Justice Watt found that the importing offence in Foster was “complete in law but not in fact” when the accused was arrested and the contraband was seized at the secondary inspection site. He said that “since the appellant did not clear customs undetected, the object of the importation – to bring cocaine from Jamaica to a Canadian recipient – had not concluded. The importing was not factually complete”: see para. 108.
[24] Justice Watt then found that, since the offence was not complete until Ms. Foster and the cocaine in her bra cleared customs, a safe avenue of escape remained open with the CBSA or other law enforcement officers at the airport. He dismissed the appeal from conviction: see paras. 109-110.
Application To This Case
[25] Mr. Miller, on behalf of the accused, submits that Foster stands for the proposition that an accused cannot be charged with importation until after he or she has cleared customs. Accordingly, as Mr. Dhatt had not cleared the secondary inspection at the Ambassador Bridge with the cocaine in his truck, he cannot be convicted of importing cocaine and the charge ought to be summarily dismissed.
[26] In my view, Foster does not stand for the proposition that Mr. Miller suggests. Firstly, in his analysis in Foster, Watt J.A. referenced the concurring decision of Dickson J. in Bell. Justice Dickson said that the elements of the offence of importation are present as soon as an accused crosses the border into Canada with contraband. Accordingly, as soon as Mr. Dhatt stepped onto Canadian soil with cocaine in his truck, the elements of the offence of importation were present.
[27] Secondly, in his analysis in Foster, Watt J.A. said that the importing offence was “complete in law but not in fact” when the contraband was seized on the appellant’s arrest at secondary inspection. The offence was not factually complete as Ms. Foster did not clear customs undetected with the cocaine in her bra. The Supreme Court in Vu told us that an accused may be charged with an offence as soon as it is legally complete, even if it is not factually complete.
[28] As I read the decision of the Court of Appeal in Foster, in the context of both Bell and Vu, the importing offence was legally complete as soon as Mr. Dhatt crossed the border with the cocaine. The offence was not factually complete at the time he was arrested and the contraband was seized. Indeed, based on the comments of Dickson J. in Bell, the offence would not be factually complete until the contraband was delivered to its intended recipient. This does not mean that police are required to wait until the contraband is delivered to its intended recipient, or until the accused has cleared customs, to effect the arrest. The arrest can be made at any time after the offence is complete in law, namely after an accused crosses an international border into Canada with contraband. In my view, that is the logical interpretation of Watt J.A.’s statement that “the importing offence in this case was complete in law but not in fact when the contraband was seized on the appellant’s arrest at secondary inspection”: see para 108
[29] My interpretation of Foster is supported by its own result. Ms. Foster’s conviction for importing cocaine was upheld, even though she had not cleared customs with the cocaine at the time of her arrest.
Disposition
[30] For the foregoing reasons, the accused’s motion for a directed verdict is dismissed.
“original signed and released as Exhibit by Hebner J.”
Pamela L. Hebner
Justice
Released Orally: June 20, 2018
COURT FILE NO.: CR-17-3990
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Manpreet Singh Dhatt
RULING ON MOTION
Hebner J.
Released Orally: June 20, 2018