COVID prompts adjournment in major drug smuggling case

By Delon Shurtz - Lethbridge Herald on January 7, 2022.

LETHBRIDGE HERALDdshurtz@lethbridgeherald.com

A sentencing hearing for a husband and wife who tried to smuggle 84 kilograms of cocaine into Alberta four years ago has been adjourned for a month.
Gurminder and Kirandeep Toor were scheduled to have their sentencing hearing Thursday in Lethbridge Court of Queen’s Bench, but after learning Kirandeep and her husband’s lawyer, Greg Dunn, had contracted COVID, Madam Justice Johnna Kubik agreed to adjourn the matter until February.
The adjournment will also allow Kirandeep’s lawyer, Patrick Fagan of Calgary, to file a constitutional challenge of a section of the Criminal Code that does not allow anyone convicted of an offence punishable by a maximum prison sentence of 14 years or life, to receive a conditional sentence order.
A CSO is a sentence of incarceration which can be served in the community under strict conditions, typically including house arrest or curfew, for up to two years less a day.
The Crown is opposed to the constitutional challenge, and argued Fagan should have filed his notice of intention to raise the challenge several weeks or months ago. Instead, Fagan only announced his intention informally Monday, and Crown Prosecutor Kent Brown said defence should not be granted an adjournment to file the notice formally.
“What is supposed to happen is not an adjournment,” Brown said. “What is supposed to happen is that the opportunity to make the argument is lost, it is forgone, as a result of failing to give proper notice.”
Fagan admitted he should have provided earlier notice, but he didn’t intend to raise a constitutional challenge until recently, particularly after his client announced late last year that she is pregnant. However, Fagan added even if she wasn’t pregnant, he would still proceed with the challenge because he believes she is a good candidate for a CSO.
Although Fagan admitted he should have given earlier notice, Justice Kubik pointed out he hadn’t given a reason for not giving notice earlier.
“I changed my mind. That’s it,” Fagan responded. “And no one suffers from that change in defence’s posture.”
Although Brown argued the late notice goes against accepted procedure, he acknowledged it doesn’t prejudice the Crown and he would still be able to prepare arguments for a later hearing.
Fagan also pointed out that Ontario judges have already ruled on similar challenges in their province.
“The Ontario Supreme Court justices struck down the relevant provisions of the Criminal Code, and the Ontario Court of appeal has struck down the offending CSO sentencing provisions of the Criminal Code. I expect this court to strike down those provisions, as well.”
Kubik ruled that Kirandeep will be allowed to proceed with her notice of constitutional question, but added there will be deadlines set so as not to delay the case any longer than necessary.
The matter is scheduled to return to court Feb. 4 to hear sentencing arguments from Crown and defence, as well as arguments relating to the constitutional challenge. Justice Kubik is set to give her decision on both on April 13.
The U.S couple was found guilty of drug smuggling following a week-long trial last April. Gurminder was also found guilty of drug possession for the purpose of trafficking, while Kirandeep was found not guilty of drug possession for the purpose, but guilty of the lesser and included offence of simple drug possession.
The Toors were transporting produce from California to Airdrie, Alta., and testified they were surprised when border officers found 84 bricks of cocaine hidden inside their commercial truck after they arrived at the Coutts border Dec. 2, 2017.
The drugs were worth more about $5 million if sold by the kilogram, and even more if broken down for sale on the street.
Border officers discovered the cocaine in the truck’s sleeper, where the drugs were stashed in and behind a microwave oven, in a drawer, under a blanket on the bottom bunk bed, and under a mattress on the upper bunk. Yet the accused said they had no idea there were drugs in the truck.
Fagan argued the Crown failed to prove Kirandeep knew there was cocaine in the tractor-trailer, and never should have been charged. And Dunn argued it’s not unreasonable to believe Gurminder didn’t notice the drugs in the sleeper of the truck.
The couple was to be sentenced Oct. 29 but the hearing was adjourned to allow more time for lawyers to review a pre-sentence report that arrived late. Then in November the sentencing hearing was adjourned again after the judge was told Kirandeep was pregnant and can’t travel.
After her doctor testified in court in December, sentencing was adjourned again until Thursday.

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