Tina DeSousa imported "khat" (Catha edulis Forsk) into Canada. She had a suitcase full of it - 34 kilos worth about $17,000 on the street. She was charged and pleaded guilty to importing it contrary to section 6 of the CDSA. There was a joint position of a conditional jail sentence. The judge imposed an absolute discharge. The Crown appealed. The Ontario Court of Appeal dismissed the appeal: 2012 ONCA 254.

Interesting - although not really the subject of this post - the judge became fixated on two things. First, the judge offered his "wisdom" on the legislation commenting that he found it "very difficult to understand why this stuff's against the law" [para 6].

Second, the judge criticized Air Canada's security measures [para 7].

Turning to the other issues commented on by the Court of Appeal, the court discussed the issue of joint submissions on sentence. In doing so the court cited comments in the Martin Committee Report. The court noted that a judge is not bound by a joint submission, however, considerable weight should be given to it: R v Cerasulo, 2001 CanLii 24172 (ONCA). While the judge noted Cerasuolo, the judge held that it only applied where the court proposed to "jump" a joint position. The Court of Appeal held that Cerasuolo should apply in either context.

The Court of Appeal, after reviewing the Martin Report [para 20] held that certainty is important and justifies the defence owed to joint submissions. However, certainty must yield where "the proposed sentence would bring the administration of justice into disrepute or would otherwise not be in the public interest [para 22].

The court ultimately found that the judge erred in principle. The court, however, left the sentence unchanged.