COURT FILE NO.: CR-12-2681
DATE: 2021-09-27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SATWINDER JEET SINGH KHERA
Defendant
Zuzana Szasz, counsel for the Crown
Paul Dhaliwal, counsel for Satwinder Jeet Singh Khera
HEARD: March 25, 2021
thomas, rsj.:
[1] Satwinder Jeet Singh Khera, (Mr. Khera / the defendant) entered a guilty plea to the offence of importing Opium Poppy Heads (morphine) a Schedule 1 substance, on July 31, 2010. The crown seeks a sentence of six years. The defence position is that a conditional sentence of two years less a day with 300 hours of community service, electronic monitoring and three years probation is the fit sentence.
Background
[2] On July 30, 2010 the Ontario Provincial Police (O.P.P.) received information from the Border Enforcement Security Task Force in Michigan. A commercial transport vehicle bound for the border was seen at a Detroit location being loaded with poppy husks.
[3] On the same day, Mr. Khera entered Canada with his large tractor-trailer vehicle by crossing the Ambassador Bridge which connects Detroit and Windsor. Mr. Khera utilized a FAST Pass issued to commercial truck drivers at the time he entered Canada. He was pulling a 53-foot commercial trailer.
[4] Mr. Khera declared a legitimate commercial shipment of automotive cleaning materials he said he picked up in Westland Michigan. The contents were bound for Mississauga, Ontario.
[5] The defendant was referred to secondary inspection. A scan of the trailer revealed an anomaly. Inside the trailer Customs agents found 32 boxes containing 179.2 kilos of opium poppy heads, pods and stalks. Mr. Khera was arrested. He claimed to have no knowledge of the poppy pods seized and denied a stop at the Detroit warehouse where U.S. law enforcement had observed the loading. He was released on an appearance notice.
[6] These charges proceeded in the normal course and a trial date was set in this Court for January 12, 2015. A warrant was issued for his arrest in November, 2014 when it was clear he had left the country for India.
[7] Mr. Khera was arrested on the warrant on October 4, 2019 when he returned to Canada.
[8] It is the defence position that Mr. Khera was initially injured in a motorcycle accident and had to remain in India to heal, and then his father died in 2016 and he had to help his mother tend to the family farm. It appears when he returned, the federal prosecutor was notified by the defence. A short time after his arrest he was released on a recognizance with conditions. He entered his guilty plea on April 29, 2020. His sentencing has been delayed by concerns related to the COVID-19 pandemic.
The Substance
[9] The poppy pods found in the defendant’s vehicle were destined to be converted into a substance known as doda or dode. The opium poppy is a Schedule 1 drug under the Controlled Drugs and Substances Act, as are its preparations and derivatives including opium, codeine, heroin and oxycodone. Schedule 1 drugs are the most serious controlled by that Act.
[10] Expert evidence was provided at the sentencing hearing from Constable Mark Haywood, an investigator with Peel Regional Police in the Major Drugs Unit.
[11] Doda is made by crushing poppy seeds and husks or pods into a powder. The dried pods look like rattles. Grinders are used to crush the pods, after which the seeds are removed leaving the powder. Doda can be consumed in three ways; mixed with water, boiled in tea or put in the mouth and swallowed with tea or another liquid. The powder contains both morphine and codeine.
[12] Opium is the least potent of the opiates and consists of about one-tenth morphine. The resulting effects on the body are a sense of euphoria, focus and relaxation. The long-term consequences include insomnia, nausea, cramping, vomiting and lethargy.
[13] The following details are derived from the Agreed Statement of Facts:
In 2010, illicit shipments of doda entering Ontario were primarily destined for delivery, crushing, distribution and use in the Greater Toronto Area (GTA).
In 2010, dried poppy seed pods were primarily obtained from Arizona. They had both licit and illicit intended uses: for legitimate domestic use as ornaments in floral arrangements and for illicit consumption in areas where sellers had a ready supply of buyer/users. Because of its abuse the Canada Border Service took steps to stop some of the shipments from entering Canada.
A poppy pod’s average weight is 11 grams. An average crushed pod weighs approximately 9 grams after the seeds have been removed.
The average heavy user of doda consumes 56 grams per day.
The sale of doda was highly profitable. In 2010, the GTA street value for doda was $1.50-$2.00/gram. The street value for 28 grams was $40.00-$50.00. A kilo of doda sold for $750.00-$1500.00.
179.2 kilos of Opium Poppy Pods would yield at 152.28 kilos of product after the removal of seeds. Detective Haywood opined that the street value of this amount of doda in 2010 would be approximately $304,578.
Analysis
[14] There are few sentencing cases in Canada for doda offences. Defence counsel provided some details regarding an unreported 2013 sentencing decision from British Columbia. Two accused were convicted of possession for the purpose of trafficking in a controlled substance and production. They had cultivated a field of approximately 200,000 poppy plants which were to be ground to doda. Judge Dickey, in sentencing the accused to a conditional sentence of two years less one day, apparently suggested the sentence should be similar to those for marijuana convictions. I disagree with that comparator.
[15] I am indebted to Durno J. for his decision in R. v. Bhangal, 2010 ONSC 4950, which was the first doda sentencing judgment in Canada. It is important to recognize that Mr. Bhangal was sentenced in 2010, the same time Mr. Khera was arrested in Windsor. Bhangal entered guilty pleas to trafficking in opium and possession for the purpose of trafficking of 3,460 grams of doda.
[16] Justice Durno heard evidence from medical experts in the Punjabi community in Peel Region and from Constable Haywood. He accepted that, at the time, doda use in the Punjabi community had reached record proportions and that it was highly addictive.
[17] Durno J., at para. 32 of Bhangal, wrote about the social effects of doda use:
[32] Summarizing the evidence noted earlier, while its opiate percentage if relatively low compared to other controlled substances, doda is a highly addictive ‘hard’ drug that can have a significant impact on the user, their families and the community. It is reasonably easy to produce and the profits significant. Where utilized methadone treatment can be costly and lengthy. Unlike heroin and cocaine users, those who use doda are primarily young males who are employed and without criminal records. Unlike heroin, cocaine and other hard drugs, there is no history of it leading to criminal conduct.
[18] The decision in Bhangal provides a review of opium and morphine sentencing cases in an attempt to discern an appropriate range of sentence for doda convictions. Justice Durno noted that the range is in large measure a reflection of the seriousness of the crime and noted that the aggravating and mitigating factors would dictate where in the range the sentence would fall. (Bhangal, para. 30; R. v. Hamilton, (2004) 2004 CanLII 5549 (ON CA), 186 C.C.C. (3d) 129 (C.A.) para 111).
[19] At para. 35 of Bhangal, Justice Durno concludes:
[35] In terms of comparing the harmful qualities of doda to the other controlled substances, I agree with Mr. Aujla that the literature and evidence on this sentencing, supports the position that doda is not as harmful a substance as opium. Neither is it in the same category as cocaine, the controlled substance which is the subject of many prosecutions in this region. However, it is more harmful than marijuana or other ‘soft’ drugs including being highly addictive. For those reasons alone, the sentences should generally be harsher than those imposed for soft drugs and closer to those imposed for cocaine than for marijuana offences.
[20] The ranges suggested in Bhangal for trafficking and possession for the purpose of trafficking offences are described in paras. 46-49:
[46] Having regard to the authorities above as well as those for cocaine noted in paragraph 29 and the other factors canvassed, those who traffic or possess doda for the purpose of trafficking should expect to serve jail sentences. In most cases, any other sentence would be inconsistent with the purposes and principles of sentencing. While fines could be a component of a sentence, to impose only a fine would amount to little more than a licensing fee, the cost of doing the illegal business.
[47] Where the sales are what might be termed “street level” or smaller amounts such as the 2 ounce bags for a low number of sales, the range would be in the low reformatory depending on the presence of aggravating factors noted earlier. Where the sales are more frequent, for larger amounts or one or more of the statutory aggravating factors exist, mid to upper reformatory sentences would be appropriate. Where the sales are frequent and occur over a long period of time with other aggravating factors, high reformatory terms or penitentiary terms could be imposed.
[48] Mr. Aujla submitted that sentences from 6 months to 2 years should be imposed where the offender possesses 3 to 5 kilograms of doda for the purpose of trafficking and penitentiary terms imposed for larger amounts. I am in general agreement with the range he submitted. For amounts below those specified, a low reformatory sentence would be appropriate. Where the offender possessed significant amounts of doda, certainly in the multi-kilogram range specified, sentences from mid-reformatory to the maximum reformatory range would be appropriate in the absence of aggravating factors. However, where there were aggravating factors or where the offender possessed larger amounts, penitentiary terms would be appropriate with lengthier terms as the quantity increased.
[49] For both trafficking and possession for the purpose offences, whether a conditional sentence was appropriate would depend on the mitigating and aggravating factors if the trial judge determined a fit sentence was under 2 years. However, on this record community based sentences would be far from the norm.
[21] In the circumstances of the case before him, including the fact that it was a joint position, Justice Durno sentenced Bhangal to 74 days intermittent and a 20 month conditional sentence.
[22] Only a few months before the arrest of Mr. Khera, Canadian Border Services arrested Anoop Kuman Ubbu. Ubbu was operating a tractor-trailer, and consistent with the Khera scenario U.S. authorities watched the loading of boxes onto the trailer in Taylor, Michigan. Ubbu had 96 boxes of poppy heads marked “Arizona grown” just as Khera’s were. The evidence was that the poppy heads would be converted to 432 kgs of doda worth $864,000.
[23] Mr. Ubbu provided a full statement to police implicating those responsible on both sides of the border and he testified against his co-accused. I accepted a guilty plea from Ubbu and in 2015 sentenced him to 20 months in custody. He had amassed a huge gambling debt and owed money to those who set up the importation. He had a wife and children and no criminal record. He had no ownership interest in the truck or the contents and there was no evidence he would profit from the sale. All his circumstances were consistent with the facts in Mr. Khera’s case, but for the larger quantity and his level of cooperation with authorities.
[24] As with any sentence, the purposes and principles of sentencing at ss. 718 – 718.2 of the Criminal Code require consideration. With regard to s. 718, the purposes of denunciation and deterrence are my primary concern followed then by the rehabilitation of Mr. Khera. Justice Durno, at para. 36 of Bhangal, comments on the issue of deterrence regarding doda offences:
[36] In drug offences, the most important considerations are general deterrence and denunciation. There are additional components to general deterrence for doda offences in Peel. First, the Court of Appeal and this court have held that where there is an identifiable peer group who are acutely aware of both the offence and the court proceedings, there is a heightened need for and potential for general deterrence as part of the sentencing rationale: R. v. Kennedy (1999), 1999 CanLII 3808 (ON CA), 140 C.C.C. (3d) 378 (C.A.); R. v. Mackham, [2005] O.J. No. 5959 (S.C.J.). Second, it is clear that there has been publicity within the Punjabi community and beyond about the arrests and prosecutions for doda offences.
Where an identifiable portion of a larger community or a smaller community are aware of a prosecution that is another factor to consider in terms of general deterrence because of the message that is conveyed to that community. It is also relevant to specific deterrence in that the publicity impacts on the offender: R. v. Schiegel, [1984] O.J. No. 971; R. v. Gorman, [1971] O.J. No. 1640. The evidence establishes that the Punjabi community is aware of the arrests and prosecutions.
[25] Importantly, the evidence before me is that the enforcement efforts in both Arizona and at the international border have almost eliminated the growing of poppies in the United States for the production of doda. This has driven up the price and required sellers and users to look for other sources. This speaks to the power of deterrence and denunciation particularly where it can be focussed on an identifiable group.
[26] Defence counsel suggests that the declining use of doda in the South Asian community and the dwindling importation should be taken into account when I consider the seriousness of the offence, making a conditional sentence an option. I would suggest a better way of approaching this consideration is to acknowledge that there was a very real deterrent and denunciatory effect to the enforcement activity taking place around the time of the arrest of Mr. Khera.
[27] There cannot be a benefit accruing to this defendant because we are now 11 years from the time of his arrest, with 4 of those years spent in India.
[28] The seriousness of the offence leads us directly into considerations of the fundamental principle of sentencing which is proportionality. Section 718.1 directs the sentence to be “proportionate to the gravity of the offence and the degree of responsibility of the offender.”
[29] In Hamilton Doherty J.A. stated that:
The importation of dangerous drugs like cocaine and others found in Schedule I of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 has always been considered among the most serious crimes known to Canadian law …
Both before and after the amendments to the sentencing provisions in Part XXIII of the Criminal Code and the introduction of the sentencing provision (s. 10) into the Controlled Drugs and Substances Act, S.C. 1996, c. 19, this court has emphasized the gravity of the crime and, therefore, the need to stress denunciation and deterrence in sentencing all drug importers, even vulnerable first offenders. In Cunningham, supra, at pp. 790-91 O.R., pp. 546-47 C.C.C., the court, in fixing a range of six to eight years for couriers who smuggle large amounts of cocaine into Canada, said:
We recognize as well that the suggested range will often require the imposition of a severe penalty for first offenders. We are not insensitive to this concern, mindful as we must be that in many instances, couriers tend to be weak and vulnerable, thereby becoming easy prey for those who engage in drug trafficking on a commercial basis.
Sympathetic though we are to the plight of many couriers, such concerns must give way to the need to protect society from the untold grief and misery occasioned by the illicit use of hard drugs.
(Hamilton, paras. 104 and 105)
[30] Section 718.2 requires that I increase or reduce a sentence to take into account relevant aggravating or mitigating circumstances. Section 718.2(b) requires that I consider the concept of parity in that similar sentences should be imposed on similar offenders for similar offences.
Mitigating Circumstances
[31] Mr. Khera is 40 years of age. He has no criminal record. He is married with two children and resides in an apartment in the Greater Toronto Area. He has been steadily employed until two months ago when he left his employment due to the need for treatment for anxiety and depression related to these proceedings.
[32] He was only employed by those who owned this tractor-trailer for a short period of time. He maintains that while he knew this importation was illegal, he had been told that it was not a serious offence. He says he wanted to make money to give a better life to his children.
[33] I have no evidence that Mr. Khera was anything more than a courier, being then on the low end of the importation scheme. I have been provided with a number of letters of support from the community, clearly from friends who see Mr. Khera as a simple, hardworking man, who was prepared to help his friends whenever needed.
[34] Mr. Khera has expressed his remorse, not only in his comments at sentencing, but by his guilty plea. His plea was entered in the midst of the COVID-19 pandemic, saving the Court weeks of trial time when that time was at a premium.
[35] Finally, he has received six sessions of counselling from the South Asian Canadians Health & Social Services agency in Brampton for his depression and anxiety, and to learn about the harmful effects of doda on individuals and the community. I do not have any evidence that Mr. Khera was using any substance himself.
Aggravating Circumstances
[36] Aggravating of course is the nature of the offence itself. The importation of 179.2 kilos of opium poppy pods capable of being refined into 152.8 kilos of doda worth $304,578. The drug imported is a highly addictive Schedule 1 substance as regulated by the Controlled Drugs and Substances Act.
[37] The attempted importation came at a time when there was rampant doda use in the South Asian community, particularly in the Regional Municipality of Peel.
[38] It is highly aggravating that Mr. Khera committed this offence as a commercial truck driver possessing a special pass to assist him in crossing the international border. The Ambassador Bridge is well known as the busiest international border crossing for commercial goods in North America. Long lines of tractor-trailers approach both sides of this border every day. They cannot all be searched or scanned unless we are willing to condone major delays and disruption of supply chains. When a licensed commercial truck driver like Mr. Khera imports drugs, I suggest he breaches a trust relationship between himself and federal border services.
[39] I see it as aggravating as well that for whatever reason, Mr. Khera failed to attend for his trial in 2015 and remained in India until 2019. I do recognize and find it to his credit that he alerted officials of his return. But as a result, his guilty plea came 10 years after his arrest and his sentencing over a year later.
[40] Defence counsel reminds me that as a result of the decision in R. v. Sharma, 2020 ONCA 478, a conditional sentence is now available for the importation of a large quantity of a Schedule 1 substance. He points me to para. 100 in R. v. Proulx (2000) 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.):
100 Thus, a conditional sentence can achieve both punitive and restorative objectives. To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in s. 718.2(d) and (e), which militates in favour of alternatives to incarceration where appropriate in the circumstances.
[41] Counsel suggests that deterrence and denunciation can be achieved here with the longest conditional sentence available with restrictions on the defendant’s liberty, including the wearing of an electronic monitoring bracelet. He suggests that Mr. Khera could perform 300 hours of community service assisting with drug counselling and rehabilitation.
[42] In Hamilton, Justice Doherty was considering the proper sentence for the importation of the Schedule 1 substance cocaine. Despite that, his comments have application here:
[112] If the appropriate range includes potential imprisonment, and if the trial judge, in determining where within that range the offender should be placed, excludes the need for a sentence of two years or more, the trial judge must then consider whether to impose a conditional sentence: R. v. Proulx, supra, at pp. 97-99 S.C.R., p. 479 C.C.C. If the prerequisites of s. 742.1 of the Criminal Code are met (as they were in these cases), the trial judge must decide whether a conditional sentence is consistent with the statutory scheme of sentencing described in ss. 718 to 718.2: R. v. Proulx, supra, at pp. 97-99 S.C.R., p. 479 C.C.C. Where the offender has been convicted of importing cocaine, the assessment of whether a conditional sentence is appropriate often comes down to the question of whether a conditional sentence can adequately reflect the gravity of the offence and thereby provide sufficient denunciation and general deterrence. No doubt, conditional sentences with appropriate punitive terms can provide denunciation and general deterrence. Imprisonment, however, remains the most forceful and effective expression of those objectives: R. v. Proulx, supra, at pp. 115-19 S.C.R., pp. 492-94 C.C.C.
[113] If a sentence of less than two years is appropriate, there is no presumption that conditional sentences are unavailable for those convicted of importing cocaine. However, the reality is that the crime of importing cocaine is so serious and harmful to the community that conditional sentences will, in the vast majority of cases, not adequately reflect the gravity of the offence or send the requisite denunciatory and deterrent message: R. v. Ly (1997), 1997 CanLII 2983 (ON CA), 32 O.R. (3d) 392, 114 C.C.C. (3d) 279 (C.A.); R. v. Berbeck, [1997] O.J. No. 2434 (C.A.); R. v. Holder, 1998 CanLII 14962 (ON SC), [1998] O.J. No. 5102 (C.J.) at paras. 46-50. Conditional sentences for those who import dangerous drugs like cocaine into Canada will usually be a viable sentencing option only where, in addition to the usual mitigating factors, there are one or more extraordinary mitigating factors such as cooperation with the authorities in their attempts to identify and arrest those behind the drug trade.
[43] Doherty J.A.’s comments about cooperation with authorities leads me to consider my decision in Ubbu and the need to achieve parity. Mr Ubbu’s substantial cooperation with authorities, despite the significant quantity of opium poppy pods, lead me not to prescribe a conditional sentence but to reduce his incarceration to something less than a penitentiary sentence, that being 20 months.
[44] In Bhangal, Justice Durno was not considering the more serious offence of importation, but rather possession for the purpose of trafficking in a far smaller quantity. As set out above, he found mid-reformatory to maximum reformatory as a range of sentence for multi-kilogram quantities, but with aggravating factors like possession of larger amounts, penitentiary terms were appropriate, increasing in length as the quantity increased. (Bhangal, para. 48).
[45] I endorse the ranges expressed in Bhangal, a decision coming at the time of the arrest of Mr. Khera.
[46] In my view, a conditional sentence is not available for this offence for a number of reasons. First, a sentence of less than two years is insufficient for the gravity of the offence. Secondly, a conditional sentence for this offence does not provide adequately for the demands of deterrence and denunciation. Conditional sentences in drug importation cases only “reinforce in the minds of drug overseers the wisdom of their recruitment philosophy” (Hamilton, para. 147) and feed the urge in the courier to take that one chance that may satisfy their financial concerns.
Conclusion
[47] For the reasons above, I find that the fit and proper sentence is two years imprisonment. Mr. Khera was officially released from Customs on an appearance notice. Upon his arrest when he returned from India in October, 2019, he was released on a recognizance of bail with conditions that included a residency requirement and regular reporting to police. He has been bound by that release document for two years to the time of sentencing without any breaches. Much of that time out of custody was to his benefit so that he would not be incarcerated while correctional facilities were enduring the pandemic. That said, the defendant should have some mitigation of his sentence for the time he spent on those bail conditions (R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (C.A.)). I am limiting the credit to two months since the conditions were not overly stringent and the impact on his liberty minimal.
[48] The net sentence is then 22 months. There will be an order for the collection of a forensic DNA sample for the Databank. I am content that as a secondary designated offence the test has been met.
[49] There will be a s. 109 weapons prohibition order for 10 years. The victim fine surcharge is waived. Mr. Khera has no means to pay the surcharge.
Regional Senior Justice B. G. Thomas
Released: September 27, 2021.
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
SATWINDER JEET SINGH KHERA
REASONS FOR JUDGMENT
THOMAS, RSJ.
Released: September 27, 2021.