Pubdate: Fri, 20 Apr 2012
Source: Toronto Star (CN ON)
Copyright: 2012 The Toronto Star
Author: Betsy Powell


The Ontario Court of Appeal has upheld the absolute discharge of a
young woman who brought 34 kilograms of khat into Canada, a leafy
substance used as a popular social drug, the way alcohol is, that is
legal in many countries.

"This is an important ruling because it recognizes that while khat is
illegal in Canada there is no empirical evidence that this drug is
harmful to the individual or the community at large," said Toronto
defence lawyer Mark Halfyard, who argued the appeal.

"There is a body of scientific literature that suggests khat is
significantly less harmful on an individual level and in terms of the
social costs than alcohol, tobacco or marijuana."

On Dec. 28, 2009, Tina Maria DeSousa was arrested at Pearson
International Airport after Canada Border Service officers searched
her suitcase and found fresh bundles of Catha edulis Forsk, known as

The RCMP charged her with importing khat contrary to the Controlled
Drugs and Substances Act. Police estimated the street value at $17,000.

Last year, DeSousa pleaded guilty in front of Ontario Court Justice
Elliot Allen, who granted her an absolute discharge, rejecting a joint
submission that she serve a 60-day conditional sentence.

The Crown appealed, and last week, after hearing oral arguments, a
three-judge panel of the province's highest court dismissed the
appeal, with reasons to follow. Those reasons were released Friday.

"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," reads the 14-page ruling
written by Justice David Doherty.

"The Crown chose to lead no evidence about any specific harm referable
to the importation of khat," and "there was no evidence the accused
knew the importation of khat was illegal.

"It is apparently legal in some countries, including the United
Kingdom, where the respondent (DeSousa) obtained the drug."

The court added that there was no evidence DeSousa "was involved in
any kind of commercial enterprise or stood to profit from her
actions." At the time of her arrest she was in her 20s, had no
criminal record and was attending college.

Halfyard said khat is included on Schedule IV of the CDSA along with
regulated medications, such as diet pills and sleeping aids.

"The rationale behind criminalizing people for possession or use of
khat in Canada is puzzling and it is ultimately counterproductive, as
this case demonstrates."

At the trial last spring, Justice Allen also openly questioned why
khat is illegal.

"It's very difficult to understand why this stuff's against the law,"
he said. "It's 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.'"

In 2008, Allen challenged a prosecutor's argument that a jail term was
necessary to discourage people from getting involved in the drug trade.

"People have been going to jail for drug offences for - for a couple
of generations now, and the drug - the drug plague is worse than it
ever was." Isn't that "a form of insanity?" he asked.

A year later, the Court of Appeal censured him for fashioning a
sentence "based on his personal views of national drug policy."
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