Court of Appeal decision addresses whether drugs must cross border to be smuggled
Thursday, October 26, 2023 @ 10:24 AM | By John L. Hill
|John L. Hill|
Dhatt was convicted of importing cocaine and possession of the controlled substance for purposes of trafficking. A 10-year sentence was imposed for importation and a seven-year concurrent sentence for possession for the purpose.
The facts were not disputed; Dhatt, a long-haul truck driver, pulled his refrigerator transport trailer into customs at the Detroit/Windsor Ambassador Bridge area on Dec. 27, 2016. He met first with a border services officer, presented the required papers and proclaimed nothing illegal was being brought into the country. He mentioned he had been pressured into becoming a mule but had resisted and promised to give authorities a heads-up to be ready the next time. At secondary inspection, he again reported he had nothing to declare. However, when his cargo was searched, 30 bricks of cocaine were found.
The Appeal Court agreed with the trial judge that Dhatt’s peculiar behaviour in suggesting another person had pressured him did not amount to duress. The trial judge had correctly found his remarks were indicative of Dhatt’s simply having “cold feet” and trying to cast the blame elsewhere.
The more difficult question was whether there could be importation if the bricks of the illegal substance never made it into Canada after being discovered in the no man’s land of a border crossing.
The defence argued that the importation conviction was unreasonable because the cocaine never cleared customs. The offence was not complete until the goods actually entered the country. The case of R. v. Okojie 2021 ONCA 773 was cited in support of that proposition.
Justice Benjamin Zarnett, writing for a three-judge panel, listed several cases where an accused had been properly arrested at a border crossing while carrying contraband (R. v. Valenti , 43 O.R. (3d) 178, R. v. Foster 2018 ONCA 53 and R. v. Giscombe 2023 ONCA 637). Moreover, Valenti and Foster were referred to in Okojie without suggesting that those decisions were incorrect. Giscombe was decided after Okojie.
This simple statement that implies consistency in the court’s approach does not explain paragraph 79 in the Okogie judgment that reads as follows: “The Foster court expressed a preference for the reasoning of Dickson J. in his minority opinion concurring in the result in Bell. But, mindful of its obligation, despite this preference, the court followed the reasons of the majority to conclude that in Foster, the importing offence was not complete until the cocaine and its carrier had cleared customs at the conclusion of the secondary inspection. This conclusion is consistent with the prior decisions of this court in Tan  O.J. No. 2043, at para. 8, and Regina v. Valentini (1999) 43 O.R. (3d) 178, at para. 54.”
Okojie also referred to R. v. Bell  2 S.C.R. 471. That case contained a judgment by Justice Brian Dickson (as he then was), who wrote separate reasons in which he reached the same result as the majority. He began his analysis by ascribing to “import” its ordinary and natural meaning: “to bring in (goods or merchandise) from a foreign country.” This means bringing goods from anywhere outside Canada to anywhere inside Canada. But must the illicit substance clear customs?
The Dhatt decision makes no mention of other cases where a decision was based on goods clearing customs. In R. v. Onyedinefu 2018 ONCA 795 and R. v. Buttazzoni 2019 ONCA 645, the trial judge concluded that the importation was completed when the appellant took delivery.
Section 6(1) of the Controlled Drugs and Substances Act (CDSA), which creates the offence of importing, does not define or set out the essential elements of the offence. The term “import,” in any of its forms, is undefined in the Interpretation Act, R.S.C. 1985, c. I-21. The CDSA does not incorporate by reference the definition of “import” as it may appear in any other federal enactment. It was recognized in Okojie that since Bell does not define “enters the country,” or at least its endpoint or outer limit, it has fallen to appellate courts to determine whether the evidence of an accused’s involvement satisfies the physical element of the offence.
With the decision in Dhatt, Ontario has now judicially recognized that one need not exit customs before an importation offence may be committed.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at email@example.com.
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