



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hudson, 2021 ONCA 76

DATE: 20210122

DOCKET: M52132 (C65962) & M52143 (C68428)

Fairburn A.C.J.O.

BETWEEN

Her Majesty the Queen

Respondent

and

Jacinda Hudson

Appellant

AND BETWEEN

Her Majesty
    the Queen

Respondent

and

Justice
    Okojie

Appellant

Maija Martin, Iman Amin and David Reeve,
    for the appellant, Jacinda Hudson

Chris Sewrattan, Ashley Sewrattan, and
    Raj Vijan, for the appellant, Justice Okojie

Sarah Shaikh, Christopher Walsh, and
    Jonathan Geiger, for the respondent

Owen Goddard and Rick Frank, for the proposed
    intervener, the Criminal Lawyers Association of Ontario

Emily Marrocco, for the proposed
    intervener, the Attorney General of Ontario

Heard: January 22, 2021 via
    videoconference

REASONS FOR DECISION

[1]

The appeals in
R. v. Hudson
(C65962)
    and
R. v. Okojie
(C68428) are scheduled to be heard before a five-judge
    panel on February 23, 2021. The respondents factum is due on February 5, 2021.

[2]

The appellants will argue that the decision in
Bell
    v. The Queen
,
[1983] 2 S.C.R. 471 made clear that the crime of
    importing is complete at the time that contraband enters Canada. They say that
    pronouncements to the contrary have wrongly interpreted
Bell

and
    expanded the reach of the importing offence beyond its intended limit.

[3]

The Attorney General for Ontario (Ontario) and
    the Criminal Lawyers Association of Ontario (CLA) seek leave to intervene in
    the appeals.

The Attorney General for Ontarios Application

[4]

Ontario argues that the scope of the
actus
    reus
of importing will inevitably impact upon offences under the
Criminal
    Code
, those over which the provincial Crown has prosecutorial
    jurisdiction. In specific, Ontario points to crimes involving the importation
    of firearms and importation of child pornography: ss. 103 and 163.1 of the
Criminal
    Code
. Accordingly, Ontario argues it has a clear interest in the appeals
    because any determination about when the
actus reus
of importing ends
    will necessarily touch on crimes prosecuted by the Province.

[5]

If granted leave to intervene, Ontario will
    argue that the
actus reus
of importing should extend to domestic
    distributors of firearms, failing which it will not capture those offenders at
    the heart of the crime. Ontario will also argue that child pornography enters
    Canada in different ways. Narrowing the
actus reus
of importing to the
    immediate entry point into Canada could have the effect of excluding from
    liability some modes of entry for child pornography, such as when child
    pornography comes into Canada through a virtual means.

[6]

The parties consent to Ontarios intervention. I
    see no risk of prejudice or unfairness arising from Ontarios intervention.
    Leave to intervene will be granted on the terms set out at the end of these
    reasons.

The Criminal Lawyers Associations
    Application

[7]

The CLA wishes to advance three arguments: (a)
    that by looking to the plain meaning of the statute, combined with legislative
    intent, it is clear that the term import ends when contraband enters Canada;
    (b) that the extension of the
actus reus
of importing beyond the
    immediate entry point into Canada results in convictions for importing in
    circumstances where accused have nothing to do with the actual bringing of the
    contraband into the country; and (c) affording the term import a definition that
    is susceptible to capturing lower-level drug operators, those who may transport
    or possess drugs after they are already in the country, will have a
    disproportionate impact on racialized communities, specifically Black and
    Indigenous communities. The CLA argues that any such approach will result in
    higher sentences for racialized communities, those communities that are already
    overrepresented in the custodial setting.

[8]

In support of this latter argument, the CLA
    relies upon five reports and studies. Three of them can be loosely described as
    prison population statistics, released in the form of annual reports from the
    federal government. There are also two reports that relate to systemic racism: Ontario,
Report of the Commission on Systemic Racism in the Ontario Criminal Justice
    System
, Co-Chairs: M. Gittens and D. Cole

(Queens Printer for
    Ontario, 1995); Ontario Human Rights Commission,
Racial Disparity in
    Arrests and Charges: An analysis of arrest and charge data from the Toronto
    Police Service
, S. Wortley and M. Jung (Toronto: 2020)
.

[9]

The appellants consent to the CLA intervening on
    the terms set out in the CLAs application.

[10]

While the respondent consents to the CLA
    intervening, that consent is only extended in relation to the first two issues
    raised by the CLA.

[11]

As for the third issue, the respondent argues
    that the CLA is inappropriately modifying the nature of the appeals. Rather
    than making the appeal about the definition to be afforded to the term
    import, the CLA is said to be attempting to make the appeal about the issue
    of the discriminatory effect of Canadas drug laws. The respondent points out
    that this particular argument has not formed any part of the prior cases from
    which decisions have emerged on the issue that the five-judge panel will be
    considering.

[12]

I am not persuaded by this argument. Whether
    other cases have considered the issue or not, contrary to the respondents
    position, I do not take the CLA to be injecting a new issue into the appeal.
    Rather, the CLA is wanting to contribute to the appeal by highlighting the
    context within which drug offences are committed, investigated, prosecuted,
    tried and sentenced. This is not, as the respondent suggests, an attempt to
    introduce a quasi-s. 15
Charter

argument into the appeal. The
    CLAs position is not unlike other cases where social context evidence, as advanced
    by interveners, has been considered: see for example,
R. v. Golden
,
2001 SCC 83, [2001] 3 S.C.R. 679, at para. 81.

[13]

The respondent
    also argues that the CLA is attempting to improperly augment the record before
    the court on this appeal. The respondent points to
Canada (Citizenship and Immigration) v. Ishaq
, 2015 FCA 151, [2016] 1 F.C.R. 686,

at
    para. 22, where the court addressed the inappropriate attempts by interveners
    to prove matters of social science under the guise of authorities. While I
    accept that the line between a proper placement of materials before the court
    and an inappropriate augmentation of the record is not always easy to draw, in
    my view, the materials advanced by the CLA do not cross that line.

[14]

It seems to me
    that the contextual position that the CLA wishes to advance is not particularly
    controversial. At its core, that position is rooted in the overrepresentation of
    Black and Indigenous persons in the prison system in this country, including
    the overrepresentation of these individuals in relation to drug-related matters.
    All of the reports and statistical materials that the CLA wishes to rely upon
    are publicly available, many of which are produced by those in the employ of
    the federal government. The statistics arise from federal government data, made
    available on federal government websites. It is precisely the kind of data that
    this court recently relied upon in
R. v. Sharma
, 2020 ONCA 478, 152 O.R. (3d) 209 at
    para. 95, leave to appeal to SCC granted, 39346 (January 14, 2021) 

data
    which was placed before the court by interveners
.


[15]

As for the
    reports, at least one has been judicially cited in the past:
R. v. Hamilton

(2003),
    172 C.C.C. (3d) 114 (Ont. S.C.J.), at para. 106, appeal dismissed (2004), 186
    C.C.C. (3d) 129 (Ont. C.A.). The other report, commissioned by the Ontario
    Human Rights Commission, is fairly recent.

[16]

While there are
    circumstances where an intervener will be precluded from augmenting the record,
    in my view, the materials proposed to be filed by the CLA are largely non-controversial.
    In any event, in my view, it is better to leave this matter with the panel
    hearing the appeal. As the CLA acknowledges, it may be that the panel will not
    be persuaded by their position that the contextual backdrop against which
    drug-related offences take place informs the limits that should be placed on
    the
actus reus

of importing. I would leave that
    determination to the panel hearing the appeal.

[17]

The respondent
    maintains that if the CLA is granted intervener status, and is permitted to
    advance all arguments, the respondent may have to file further materials. No
    one objects to that request.

[18]

I order as
    follows:

(a) The Attorney General for Ontario is
    granted leave to intervene on the basis of the argument set out in the application
    materials;

(b) The CLA is granted leave to intervene
    on the basis of the argument set out in the application materials;

(c) The interveners will file factums no
    more than 15 pages in length, to be filed no later than February 2, 2021;

(d) The interveners will be granted 15
    minutes each to make oral argument at the hearing of the appeals;

(e) In response to the interveners
    written arguments, the parties may each file a factum of no more than 10 pages
    in length, to be served and filed no later than February 10, 2021.

Fairburn
    A.C.J.O.


