



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. DeSousa, 2012 ONCA 254

DATE:  20120420

DOCKET:  C53843

Doherty, MacPherson and Sharpe JJ.A.

BETWEEN

Her Majesty the Queen

Applicant (Appellant)

and

Tina Maria DeSousa

Respondent

Kevin Wilson, for the applicant (appellant)

M. Halfyard, for the respondent

Heard:  April 10, 2012

On appeal from the order dated April 7, 2011 made by
    Justice J.E. Allen of the Ontario Court of Justice directing that the
    respondent be discharged absolutely.

Doherty J.A.:


I



INTRODUCTION

[1]

The respondent pleaded guilty to a charge of importing Catha edulis
    Forsk (khat), a Schedule IV drug, into Canada contrary to s. 6(1) of the
Controlled
    Drugs and Substances Act
, S.C. 1996,
    c. 19
.  Counsel for the Crown and counsel for the respondent
    presented a joint submission whereby the respondent would serve a 60-day
    conditional sentence on the statutory terms and with a term requiring that she
    abide by a curfew.

[2]

The trial judge rejected the joint submission and granted the respondent
    an absolute discharge.

[3]

The Crown appealed. At the conclusion of oral argument, we advised
    counsel that the appeal would be dismissed with reasons to follow.  These are
    those reasons.


II



PROCEEDINGS BELOW

[4]

On the guilty plea, the Crown read in the following facts:

On Monday, December 28, 2009, at 3:55 p.m., Tina Maria DeSousa
    arrived in Toronto. She is a Canadian citizen. She arrived from Amsterdam and
    she was referred to secondary examination for further inspection.  The Border
    Service officer at the inspection booth inspected her luggage and pressed down
    on the suitcase and noted a strong odour. He opened the suitcase and discovered
    that it contained fresh bundles of khat, and she was placed under arrest for
    smuggling khat contrary to section 159 of the
Customs Act
and
    subsequently she was interviewed by the RCMP and she was charged for importing
    khat contrary to section 6(1) of the
CDSA
.  She had apparently
    travelled from Montreal to Minneapolis, then to London, England, and then to
    Amsterdam, and then she returned back to Toronto. The total amount: 34
    kilograms. Estimated street value: $17,000.

[5]

Counsel provided a brief biographical sketch of the respondent.  She was
    28 years of age, single, had no criminal record, was attending a college
    program, and was financially supported by her mother.  Counsel advised the
    trial judge that the respondent was remorseful and noted that the guilty plea
    had been entered at a relatively early stage in the proceeding.

[6]

The trial judge then made the following observations:

Well, in the first place, its very difficult to understand why
    this stuffs against the law.  Its not in England.  I read everything I can
    get my hands on about it and I find it difficult to be persuaded of anything
    other than what I was told by a federal Crown attorney when I had my first case
    which was we think this is almost as dangerous as coffee.

[7]

After offering his opinion on the wisdom of the legislation, the trial
    judge moved on to criticize Air Canadas security measures.  Neither his
    opinion of the legislation, nor his views of the adequacy of Air Canadas
    security measures had any relevance to the proceedings or the trial judges
    function at those proceedings.  Unfortunately, these and other irrelevancies came
    to dominate the hearing.

[8]

In the face of the joint submission and without any request from the
    defence, the trial judge chose to adjourn the sentencing to allow the
    respondent to perform some community service.

[9]

The respondent returned to court for sentencing approximately two months
    later.  She had performed about 25 hours of community service.  During a dialogue
    with Crown counsel, it became apparent that the trial judge had misapprehended
    the joint submission, thinking that it was for a conditional discharge and not
    a conditional sentence.  The latter, a term of imprisonment, is of course a
    much more serious disposition than the former which does not result in a
    criminal record.

[10]

After
    Crown counsel reminded the trial judge that the agreement between counsel was
    for a conditional sentence and not a conditional discharge, the trial judge
    immediately said Okay, well thats fine, alright.  So it appears that Im not
    accepting your  your joint submission.

[11]

Despite
    the trial judges quick and clear indication that he would not follow the joint
    submission, Crown counsel argued that the trial judge was obliged to follow the
    joint submission unless he was satisfied that the proposed sentence was contrary
    to the public interest or would bring the administration of justice into
    disrepute.  The trial judge rejected this argument, indicating that his
    discretion to depart from a joint submission was only limited in the way asserted
    by Crown counsel if he was inclined to impose a harsher sentence than the
    sentence agreed upon in the joint submission.

[12]

Crown
    counsel made further submissions as to the appropriateness of the sentence
    agreed upon.  Defence counsel, who no doubt felt constrained by the joint
    submission, said very little once it became apparent that the trial judge would
    not impose the recommended sentence.

[13]

In
    granting the absolute discharge, the trial judge emphasized the absence of any
    evidence that khat posed any danger or caused any harm.  The trial judge also
    opined that the sentence contemplated by the joint submission would provide no general
    deterrence but would have potentially serious negative ramifications for the
    respondent in that it would result in her having a criminal record.


III



ANALYSIS

[14]

There
    are two issues raised on this appeal:

·

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?

·

What is the appropriate disposition?

A. When Should a Judge Undercut a
    Joint Submission?

[15]

Resolution
    discussions between informed and competent counsel and guilty pleas based on
    joint submissions as to the disposition are a proper and necessary part of the
    administration of criminal justice in Ontario:  The Honourable G. Arthur
    Martin, O.C., O. Ont., Q.C., LL.D., Chair,
Report of the Attorney Generals
    Advisory Committee on Charge Screening, Disclosure and Resolution Discussions
(Martin Report) (Toronto: Ontario Ministry of the Attorney General, Queens
    Printer for Ontario, 1993), at p. 290; see further pp. 281-290.  A joint
    submission should provide the trial judge not only with the proposed sentence,
    but with a full description of the facts relevant to the offender and the
    offence.  Advanced in this way, the joint submission gives the trial judge a
    proper basis upon which to determine whether it should be accepted.

[16]

A
    trial judge is not bound by a joint submission.  The imposition of a fit
    sentence is ultimately the trial judges responsibility:  see
R. v. Cerasuolo
(2001), 151 C.C.C. (3d) 445, at para. 7 (Ont. C.A.).  Trial judges must,
    however, give considerable weight to joint submissions.  A trial judge should
    depart from a sentence proposed in a joint submission only in limited
    circumstances.  Finlayson J.A. put it this way in
Cerasuolo
, at para.
    8:

This court has repeatedly held that trial judges should not
    reject joint submissions unless the joint submission is contrary to the public
    interest and the sentence would bring the administration of justice into
    disrepute... This is a high threshold and is intended to foster confidence in
    an accused, who has given up his right to a trial, that the joint submission he
    obtained in return for a plea of guilty will be respected by the sentencing
    judge.

[17]

The
    trial judge referred to
Cerasuolo
.  He viewed it as applicable only
    where a trial judge proposed to jump a joint submission.

[18]

Cerasuolo
was a case in which a trial judge imposed a three
-year
    sentence in the face of a joint submission for one year.  Unsurprisingly,
    Finlayson J.A. emphasized the negative impact on the accuseds legitimate interests
    flowing from the trial judges rejection of the joint submission.
Cerasuolo
did
not, however, indicate that a trial
    judge should not be guided by the same principles before deciding to depart
    from a joint submission by imposing a more lenient sentence than that proposed. 
    That question was not before the court in
Cerasuolo
.

[19]

The
    Martin Report, the most important examination of the criminal process in
    Ontario in the last 40 years, made several recommendations relating to plea
    discussions and joint submissions.  Following established authority and using
    language that would appear later in
Cerasuolo
, the Martin Report
    recommended that a sentencing 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:  see p. 327,
    Recommendation 58.  The Martin Report did not distinguish between jumping and
    undercutting a joint submission.

[20]

It
    is helpful to quote at some length the explanation offered in the Martin Report,
    at pp. 328-30, for this particular recommendation:

The Committee recognizes that an
    important, sometimes the most important, factor in counsels ability to
    conclude a resolution agreement, thereby deriving the benefits that such
    agreements bring, is that of certainty.
Accused persons are, in the Committees
    experience, prepared to waive their right to a trial far more readily if the
    outcome of such a waiver is certain, than they are for the purely speculative
    possibility that the outcome will bear some resemblance to what counsel has
    agreed to.  And likewise,
from the perspective of Crown
    counsel, agreed upon resolutions that have a stronger, rather than weaker sense
    of certainty to them, are more desirable because there is less risk that what
    Crown counsel concludes is an appropriate resolution of the case in the public
    interest will be undercut.



While the presiding judge cannot have his or her sentencing
    discretion removed by the fact of there being a joint submission,
it is
nonetheless appropriate, in the Committees view, for the
    sentencing judge to have regard to the interest of certainty in resolution
    discussions when faced with a joint submission.  Accordingly, where there is no
    reason in the public interest or in the need to preserve the repute of the
    administration of justice to depart from a joint submission, a sentencing judge
    should, in the Committees opinion, give effect to the need for certainty in
    agreed upon resolutions
by accepting the joint submission of
    counsel.

...

...proceeding in this manner also continues to ensure that the
    sentencing judge remains the ultimate arbiter of the propriety of the sentence,
    and that the sentence is demonstrated to be fit in the circumstances.  The sentencing
    judge will not, in the Committees view, have committed any error in principle
    in accepting a joint submission, as recommended above, provided he or she
    arrives at the independent conclusion, based upon an adequate record, that the
    sentence proposed does not bring the administration of justice into disrepute
    and is otherwise not contrary to the public interest.  [Emphasis added.]

[21]

The
    Martin Report recognizes that certainty of result plays a valuable role in the
    criminal justice system.  The report also recognizes that certainty serves not
    only the interests of the accused, but those of the Crown as representative of
    the public interest.  To the extent that judges reject joint submissions,
    certainty suffers.  This is true whether the judge jumps or undercuts the joint
    submission.

[22]

Certainty
    of result is, of course, not the ultimate goal of the sentencing process.  Certainty
    must yield where the harm caused by accepting the joint submission is beyond
    the value gained by promoting certainty of result.  The standard described in both
Cerasuolo
and the Martin Report  that is, whether the proposed
    sentence would bring the administration of justice into disrepute or would
    otherwise not be in the public interest  draws the line where certainty of
    result must give way to other criminal justice interests.  I think the standard
    is applicable regardless of whether a trial judge is inclined to go above or
    below the sentence proposed in the joint submission.

[23]

In
    holding that a trial judge should apply the same test when deciding whether to
    depart from a joint submission, upward or downward, I do not suggest that the
    factors relevant to the application of that standard will be identical in both
    situations.  If a trial judge is considering imposing a higher sentence than
    the sentence agreed upon, concerns about the fairness to an accused who has
    given up a right to a trial in anticipation of a certain sentence will figure
    largely in the trial judges determination of whether the agreed upon sentence
    in the joint submission is so low as to bring the administration of justice
    into disrepute or is otherwise not in the public interest.  Obviously, concerns
    about the accuseds fair trial rights are not in play if the trial judge is
    considering imposing a sentence that is lower than the agreed upon sentence.

[24]

As
    alluded to in the extract
from
the Martin Report set out above, where a judge is considering undercutting a
    joint submission, he or she must have regard to the communitys reasonable
    expectations that the court will impose a sentence in accordance with that
    agreed upon in the joint submission.  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.  In
    deciding whether to reject the joint submission, trial judges must be alive to
    that potential negative impact on the administration of justice.  The
    consideration of that potential impact finds expression in the standard
    articulated in
Cerasuolo
and the Martin Report.

[25]

For
    these reasons, the trial judge erred in principle.  He should not have departed
    from the joint submission unless he was satisfied that the standard set down in
Cerasuolo
required that departure.

B. What is the Appropriate
    Sentence?

[26]

It
    is unnecessary to address the trial judges reasons.  For the reasons set out
    above, he erred in principle in his treatment of the joint submission.  Counsel
    on appeal agree that the trial judge made further errors, particularly in
    taking into consideration various irrelevant matters, including his personal opinion
    of the wisdom of the legislation.  The trial judges approach to sentencing
    repeats the errors identified in
R. v. Song
(2009), 100 O.R. (3d) 23,
    at paras. 6-13 (Ont. C.A.).  Furthermore, counsel agree that the interests of
    justice are best served by considering the appropriate sentence as of the date
    of the appeal, some 12 months after the original sentencing.

[27]

In
    our view, the material put before the trial judge and this court by the Crown did
    not justify the imposition of a term of imprisonment, even one to be served in
    the community.  We say that having regard to the following:

·

The Crown chose to lead no evidence about any specific harm referable
    to the importation of khat.

·

There was no evidence that the respondent knew that the
    importation of khat was illegal.  It is apparently legal in some countries,
    including the United Kingdom, where the respondent obtained the drug.  The manner
    in which the respondent brought the drug into Canada in her suitcase would also
    lend some credence to the assertion that she was unaware that it was illegal to
    bring the drug into Canada.

·

There was no evidence that the respondent was involved in any
    kind of a commercial enterprise or stood to make any profit from her actions.

[28]

It
    was incumbent on the Crown, even on a joint submission, to put before the trial
    judge facts relevant to the nature of the offence that justified the imposition
    of a term of imprisonment.  In putting forward the joint submission, the Crown
    seem to have relied exclusively on a sentencing guideline developed by
    prosecutors that called for incarceration of a length to be determined by
    reference to the amount of the drug imported.  While guidelines for prosecutors
    making sentencing submissions are helpful, they are not themselves a
    justification for the imposition of a sentence which is consistent with those
    guidelines.

[29]

There is nothing in the circumstances particular to the respondent that
    could justify a jail term.  She is a young first offender with a promising
    future.

[30]

Having regard to the entirety of the circumstances as they relate both to
    the offence and the offender, a jail term is unwarranted.  A joint submission
    requiring a jail term, even one to be served in the community, was not in the public
    interest.  A number of sentencing options not involving incarceration may have
    been appropriate at the time of trial.  We concluded, however, that as matters
    stood at the time of the appeal, a discharge was in the best interest of the
    accused and not contrary to the public interest, and therefore accorded with
    the standards set out in s. 730(1) of the
Criminal Code
.

[31]

Crown
    counsel suggested that the court consider offering some sentencing guidelines for
    offences involving the importation of khat.  It would appear that charges
    involving the drug are not common and there are only a few trial judgments in
    which courts have considered the appropriate sentence for the importation of
    that drug.  This slim record provides no basis upon which this court could safely
    offer any helpful sentencing guidelines.


IV



CONCLUSION

[32]

As indicated at the end of oral argument, the appeal is dismissed.

RELEASED:  DD  APR 20
    2012

Doherty
    J.A.

I
    agree J.C. MacPherson J.A.
I agree Robert J. Sharpe J.A.


