2007 CarswellOnt 7357
Her Majesty the Queen v. Abdirahim Ahmed
Ontario Court of Justice
E. Allen J.
Heard: September 25, 2007
Judgment: September 25, 2007
Docket: None given.
Counsel: T. Carey, for Federal Crown
A. Diniz (Agent), for Mr. Sabsay, for Abdirahim Ahmed
Subject: Criminal
Criminal law --- Narcotic and drug control -- Offences -- Possession -- Sentencing.
Statutes considered:
Controlled Drugs and Substances Act, S.C. 1996, c. 19
Generally -- referred to
E. Allen J., (Orally):
1 In this case Mr. Ahmed was arrested at the Pearson Airport on the 16th of November in 2005 attempting to bring roughly 60 kilograms of khat into Canada; that would be minus the weight of the luggage.
2 He spent nine days in pretrial custody. He has been on a fairly rigorous bail since then, although not house arrest.
3 He purchased the khat in England where it cost him $800.00; it is legal in England. I am told it would have cost $10,000.00 to buy it here. I am also told it was for his upcoming wedding; the tradition in his culture apparently being to provide each guest with a bundle of leaves.
4 But for this Mr. Ahmed is an unremarkable person. This is not a profit motivated scheme nor is it part of a criminal organization. There is no reason to think he needs any personal deterrence beyond the nine days of pretrial custody he served. He has no record, he pleaded guilty.
5 The debate in this case is whether Mr. Ahmed should get an absolute discharge or a suspended sentence and probation.
6 Khat is a fairly recent addition to The Controlled Drugs and Substances Act, having been added by order in council. The criminalization of it affects only a visible minority, the north-eastern African immigrants for whom it is to some extent a cultural tradition.
7 The Supreme Court of Canada has told us in the context of a Constitutional attack on the criminalization of the possession of marijuana that the harm principle is not a prerequisite in criminal law. The difficulty with this in practical terms for those of us who are in the trial courts every day, is that harm to others as generally a prerequisite to punishment and it is hard to know what the basis for punishment is if there is no identifiable harm to other people.
8 Mr. Sabsay produced a volume of materials which set out some of the cultural context of khat use and some of the concerns, and they appear to rise to no more than the level of concerns, about negative aspects of its use on health and behaviour. I had no clear evidence of harm and thus I invited the Crown to call any evidence which might be available on that issue. The Crown filed a report as a result which was done about ten years ago in Toronto, and tendered R.C.M.P. Constable Arlene Flynn as an expert witness. The report really added nothing to what I had already seen in Mr. Sabsay's materials. Officer Flynn is an expert on drug trafficking practices including those relating to khat but the basis of her opinion on the health and behavioural effects of khat would have been largely based on partially recorded and unorganized impressions from years of interviewing arrestees as well as from reading the same sort of materials already before the Court. I did not find this provided a basis for an expert opinion.
9 The materials I do have suggest that heavy use of khat and sudden withdrawal may have some negative effects on some users. Some of these effects may be physical and some of them may be behavioural. The report filed by Mr. Puddington concludes that there is a basis for further investigation. The materials filed contain drug enforcement administration concerns that this is a "gateway drug" and that some of the proceeds may go back to terrorists in the Middle East. There is no apparent evidence in support of either of these contentions.
10 The former is a discredited canard associated with marijuana. The latter at least as it relates to Mr. Ahmed is nonsense. As for the sanctity of our borders, other acts of smuggling are dealt with as virtual regulatory offences. It is the nature of the substance imported which at issue.
11 What I have not heard about in this proceeding or elsewhere is any specific incident of hospitalization for side effects of khat, of car accidents involving people under the influence of khat, of someone chewing khat and then assaulting his spouse or of someone robbing a cab driver to get money for khat, nor have I heard of any studies to attempt to determine the prevalence of this type of criminality resulting from the use of khat.
12 Now what is most compelling in this analysis is the proposition of the Crown generally in these offences that the tariff should be one day in jail for each kilogram of khat imported. In this case the Crown feels nine days of pretrial custody is adequate given this was not a commercial venture. It is interesting to reflect that the tariff for a kilogram of cocaine is three years in the penitentiary. The Crown's position on sentencing is a tacit admission that there is no articulable basis for the criminalization of this substance, at least at this point.
13 Mr. Ahmed is a person of good character who will not re-offend. There is no evidence of harm before me either to the north eastern African immigrant community or to wider Canadian society.
14 The interest of Mr. Ahmed in having an absolute discharge in terms of employment prospects or travel is obvious. The public interest to which this would be contrary has not been established by the Crown. Really what I'm left with is somebody who has committed a summary conviction offence, who has no record, no criminal antecedents of any kind, is otherwise of good character and has pleaded guilty and has suffered other consequences already and it is almost a - well it is a strange situation where we debate about the availability of a discharge to someone in those circumstances but in the end result that's what it will be, an absolute discharge, no victim fine surcharge.
MR. DINIZ: Much obliged Your Honour.
THE COURT: Thank you.
MR. CAREY: Thank you, Your Honour.
END OF DOCUMENT
