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Criminal - Drugs - Importation. R. v. Dhatt
In R. v. Dhatt (Ont CA, 2023) the Court of Appeal considered when a defendant 'imports' drugs, here when they are seized at a border crossing:[12] The appellant also argues that the conviction for importing was unreasonable because the cocaine did not clear customs and was never released from the control of the authorities. He submits that the decision of a five-judge panel of this court in R. v. Okojie, 2021 ONCA 773, 158 O.R. (3d) 450, leave to appeal refused, [2022] S.C.C.A. No. 113 stands for the proposition that the offence of importing is not complete, and therefore has not been committed, until these events occur.
[13] I do not interpret Okojie as compelling the far-reaching conclusion that a person, like the appellant, who intends to import cocaine and physically brings it with them into Canada does not commit the offence of importing if the person is caught by customs authorities having cocaine at the point of entry into Canada, and is thereupon arrested, and the drugs are seized.
[14] First, such a conclusion is inconsistent with prior decisions in which this court has affirmed convictions for importing where drugs were detected by customs authorities at the accused’s point of entry into Canada in a suitcase the accused was travelling with, or on their person, the drugs were seized and the accused was thereupon arrested: see for example R. v. Valentini, 1999 CanLII 1885 (ON CA), [1999], 43 O.R. (3d) 178, at para. 18; R. v. Foster, 2018 ONCA 53, 360 C.C.C. (3d) 213, leave to appeal refused, [2018] S.C.C.A. No. 127, at paras. 27 to 29; R. v. Giscombe, 2023 ONCA 637, at paras. 1, 3. Valentini and Foster were referred to in Okojie without any suggestion that the results they reached were incorrect. Giscombe was decided after Okojie.
[15] Second, in my view the appellant’s argument takes statements from Okojie outside of the context in which they were intended to apply. In Okojie, at paras. 98-99, this court noted that the decision of the Supreme Court of Canada in R. v. Bell, 1983 CanLII 166 (SCC), [1983] 2 S.C.R. 471 had held that importing means “bringing, or causing a controlled substance to be brought into the country”, but had not decided for all situations when that necessarily occurs. It also noted, at para. 100, that the endpoint or outer limit of when something enters the country can be important in “cases in which [a] controversy exists about whether the evidence of an accused’s involvement satisfies the physical element of the offence”. Such a controversy may exist, for example, when the question is whether the accused’s involvement with the goods took place only after the endpoint or outer limit of importing had occurred.
[16] Okojie was a case in which there was such a controversy. The controlled substance was contained in a FedEx package sent from Kenya and directed to an address in North York. U.S. Custom officials detected drugs in the package while it transited through the United States, prompting them to turn over the package to their Canadian counterparts. No person involved in the importation physically carried the drugs over the border or possessed them in Canada before they came into the possession of Canadian law enforcement officials who then arranged a controlled delivery to the North York address: at paras. 8-10. When the accused paid for the delivery of the package which he knew contained drugs, to obtain their release from customs, he committed the offence of importing, as the importation was complete at that point: at para. 103.
[17] But as Okojie says, at para. 101, there are a myriad of other ways in which goods may be brought into Canada, and what constitutes importing in the sense of bringing something into the country must take that into account. One example given in Okojie was “personal carriage”.
[18] Unlike Okojie, this was a case of personal carriage. The appellant knowingly drove the cocaine over the border. There is no sense in which he did not bring, or cause the cocaine to be brought, into Canada. This was not a case where there can be any controversy over whether the appellant was involved in the physical element of the offence.
[19] Foster was also a case of personal carriage. In Foster, cocaine was discovered in the bra worn by the accused when she was searched at secondary inspection at Pearson International Airport in Toronto following her arrival on a flight from Jamaica. The drugs were never given back to her by customs. Rather they were discovered and seized, and she was arrested. She was convicted of importing, and her conviction was upheld by this court.
[20] In Foster, at para. 108, this court recognized the importing offence was “complete in law” when the contraband was seized on the appellant’s arrest at secondary inspection, even though, as a factual matter, the importation offence was not complete as its goal of getting the drugs into the hands of a Canadian recipient was not achieved. Adopting a distinction between offences that are complete in law and complete in fact, the court noted that since the importation was not in fact complete, border services officers remained a safe avenue of escape for the accused that she had not taken, which was relevant to the consideration, and rejection, of her defence of duress: at para. 109.
[21] But, importantly for the purpose of this discussion, the drugs discovered at secondary inspection in Foster were never released to the accused by customs. Instead, upon discovery, they were seized at customs and the accused was arrested. She was convicted of importing and her conviction was upheld. Although in Okojie, the court rejected the “complete in law/complete in fact reasoning in Foster … [it did] not overrule or otherwise qualify the [decision]”: at para. 120. In other words, it did not suggest that the accused in Foster should not have been convicted of importing.
[22] This provides important context for the statement at para. 106 of Okojie:The decision in Foster applies and is consistent with the majority decision in Bell. Left unanswered by Bell, by the appellant’s own admission, is the meaning to be assigned to the phrase “enters the country”. This, Foster concludes, in a case of personal carriage of the contraband, of bringing it into Canada, occurs when the contraband (and its carrier) clear Customs. This concludes the physical element of the offence. This endpoint does not mean that importing is a continuing offence. Nor is it inconsistent with what the majority in Bell decided. It reflects the law in this province as expressed in post-Bell authorities, the integrity of which is not challenged here. [23] It is evident, from the affirmation of the result and central holding in Foster that the phrase “clear Customs” in the above quote refers to the endpoint or outer limit of when importing occurs, but does not mean that the person carrying the drugs into Canada and intending to have them pass through customs does not commit the offence of importing because custom officials at secondary inspection detect the goods and seize them, instead of releasing them back to the person carrying them.
[24] I therefore reject the submission that the verdict was unreasonable.
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