Ontario Court of Appeal Upholds Absolute Discharge For Importing Khat

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In the recent decision of R v. Tina Maria DeSousa , the Ontario Court of Appeal upheld a trial judge’s decision in granting an absolute discharge to a young woman who pleaded guilty to importing 34 kilograms of “khat” into Canada.  The estimated street value was $17,000.  There was a joint submission before the trial judge by lawyers from both sides recommending a conditional sentence (or house arrest).  The trial judge decided to undercut this position and, instead, granted Ms DeSousa an absolute discharge.  In its review of the case, the Ontario Court of Appeal examined the idea of joint sentences and when they should be upheld and when they should be rejected.  The question before the Court was, “What standard should a trial judge apply in determining whether it is appropriate to impose a sentence that is more lenient than a sentence proposed by way of joint submission?”

The Court stated that a trial judge is not bound by a joint submission but rather must concern itself with the imposition of a fit sentence.  It went on to state that trial judges, however, must give considerable weight to a joint submission.  A trial judge should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute, or was otherwise not in the public interest.  A sentencing judge should give effect to the need for certainty in agreed upon resolutions but the need for certainty must give way where “the harm caused by accepting the joint submission is beyond the value gained” by promoting the concept of certainty.

Where a judge is considering imposing a higher sentence than the joint submission being put forth, concerns about fairness to the accused arise in that the accused has forgone his right to a trial, expecting a certain outcome.  This is the main factor that must be considered when a judge is determining whether a joint submission is so low as to bring the administration of justice into disrepute.

Where a judge is contemplating imposing a lower sentence than the joint submission being put forth, concerns about the “community’s reasonable expectations that the court will impose a sentence in accordance with that agreed upon in the joint submission” must be factored into the analysis.  As an example, the Court states, “Confidence in the operation of the justice system may suffer where an accused enjoys the benefits of a plea bargain, perhaps for example escaping prosecution on other more serious charges, but is not required to serve the sentence agreed upon as part of that bargain.”

Ultimately, the Court of Appeal found that the trial judge had committed an error in principle in the way he jumped the joint submission but it upheld the sentence, nonetheless.  Among the factors it considered in deciding to uphold the sentence were:

  • The Crown did not lead any evidence about any specific harm caused by the importation of khat
  • There was no evidence that the accused knew that importation of khat was illegal
  • There was no evidence that the respondent was involved in any kind of a commercial enterprise
  • The accused was a young first time offender with a promising future



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