Court File and Parties

CITATION: R. v. Rashidi-Alavije, 2007 ONCA 712

DATE: 20071019

DOCKET: C45470

COURT OF APPEAL FOR ONTARIO

ROSENBERG, GILLESE and MacFARLAND JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

And

MOHSEN RASHIDI-ALAVIJE

Appellant

Counsel: Russell Silverstein for the appellant. Nick Devlin and Tanit Gilliam for the respondent.

Heard: September 20, 2007

On appeal from the conviction registered by Justice John C. Murray on October 31, 2005, and sentence dated March 3, 2006, with reasons reported at [2006] O.J. No. 4015.

Reasons for Decision

GILLESE J.A.:

[1] Mr. Rashidi-Alavije brought 5.9 kilograms of opium into Canada. After a trial by jury, he was convicted of importing a controlled substance and sentenced to five-and-a-half years incarceration.

[2] On appeal, he submits that the conviction should be set aside because the trial judge:

(1) erred in admitting opinion evidence of two RCMP officers;

(2) erroneously charged the jury on wilful blindness; and

(3) failed to adequately explain to the jury the knowledge requirement of the offence.

He also seeks leave to appeal sentence.

[3] The Crown was called on to respond to only the first two grounds of appeal.

[4] Before addressing the issues raised on this appeal, I will summarize the facts because, in my view, they demonstrate that the case against the appellant was overwhelming.

FACTS

[5] The appellant, a Canadian citizen, travelled from Toronto to Munich, Germany on March 4, 2003, and from Munich to Sophia, Bulgaria on March 5th. He flew back to Toronto from Sophia on March 11. On his E-311 card[^1], he declared that he had neither purchased nor acquired anything of value abroad that he was bringing into Canada.

[6] Sharon Murphy, a 13-year employee of the Canada Border Service Agency, approached the appellant as he was walking to the baggage carousel to retrieve his luggage. She asked the appellant where he was coming from. On learning that the appellant had visited Bulgaria, Inspector Murphy referred him to the secondary inspection area as she had never intercepted or talked to anyone who had vacationed in Bulgaria.

[7] At the secondary examination area, the appellant appeared extremely nervous. His hands were visibly shaking and he was perspiring so much the sweat was dripping off his forehead. Inspector Murphy testified that she had never seen anyone perspire as much as the appellant.

[8] The appellant, who was now in possession of his luggage, told the inspector that the suitcase was his, that he had packed it and that he was aware of its contents. The suitcase had no name-tag on it. It was wrapped in blue plastic and appeared to be brand new – it did not have a scratch on it. The appellant unwrapped and unlocked the suitcase.[^2] Inside the suitcase there were six coats and two pairs of shoes (sizes 39 and 43), all of which appeared to be brand-new. The appellant said the clothes were gifts for his girlfriend and then pointed to one of the sheepskin jackets. When asked where his clothing was, the appellant said he’d left all of it with his brother in Germany.

[9] The smell of glue was evident as soon as Inspector Murphy began to remove the clothing from the suitcase. The suitcase was very heavy; it weighed 13.7 kilograms when empty. An x-ray of the suitcase revealed that something was in its walls. Opium, which weighed 5.9 kilograms, was found inside the lining of the walls of the suitcase. The estimated value of the opium was $118,000.

[10] The appellant was arrested and turned over to R.C.M.P. officers Wellings and Morrissey. He gave a lengthy interview. Although he did not testify at trial, the jury, with the consent of counsel, was provided with a videotape of the interview and a transcript of the interview.

[11] In the interview, the appellant said that he had been in Bulgaria with a friend of his named Yousef. While speaking with Yousef at the airport in Sophia, he was approached by an unnamed man who noticed that he was speaking Farsi and going to Toronto. This unnamed man asked the appellant to take one of his suitcases as he had too many.

The appellant agreed to help but only after asking what was in the suitcase and then opening it and examining the contents. The man gave the appellant the combination to the suitcase and enough money to buy cellophane in which to wrap the suitcase. He took the appellant’s cell phone number and said that a friend of his would call the appellant after the appellant was in Toronto and the friend would then retrieve the bag. The appellant refused to give the police Yousef’s last name as he did want to get Yousef involved. He said he did not know where Yousef was because Yousef had remained in Germany.

The Opinion Evidence of the RCMP Officers

[12] The first ground of appeal relates to testimony given by Officers Wellings and Morrissey, the R.C.M.P. officers who interviewed the appellant. The appellant argues that Officers Wellings and Morrissey expressed opinions for which they were not qualified and that the opinion evidence was highly prejudicial. Consequently, the appellant maintains, the evidence ought not to have been admitted.

[13] The impugned evidence is as follows.

(1) In cross-examination, Officer Wellings indicated that the appellant’s fingerprints did not appear on the packaging holding the drugs. The Crown re-examined Officer Wellings who stated that, based on her experience, “most of the time a courier doesn’t touch the drugs”. This view was reiterated by Officer Morrissey in his testimony.

(2) In response to the absence of evidence that the appellant was a drug user, Officers Wellings and Morrissey both indicated that, in their experience, large quantities of drugs are not entrusted to couriers who are drug users.

(3) Officer Wellings testified that people commonly put name tags on their suitcases and that one indicator that a bag contains drugs is the absence of a name tag as “[m]ost couriers do not want their bags properly identified back to them or anybody”.

(4) Officer Morrissey described the appellant’s statement as a “story” that was “rehearsed”.

[14] As the fourth statement is of a different character than the others, I will deal with it separately.

[15] In relation to the first three impugned statements, I begin by noting that, at trial, the defence did not object to their admission. Instead, defence counsel attempted to elicit similar information from the officers during cross examination, asking the officers questions about the role of couriers and the types of indicators that are used to predict if someone is a courier. He also asked the officers to explain the concept of a blind courier or an unwitting dupe to the jury. Furthermore, ultimately, he relied on this type of evidence in support of his contention that the appellant had been nothing more than a dupe.

[16] The fourth statement to which objection is taken – that the appellant’s story appeared “rehearsed” – is of a different character. As the Crown properly concedes, it would have been preferable had Officer Morrissey not expressed the opinion that the appellant’s statement appeared “rehearsed”. However, it is important to consider the comment in context. It arose as a result of the officer’s misunderstanding of a question relating to the appellant’s physical demeanour during the interview. Crown counsel immediately asked the officer to confine his testimony to physical observations and the officer did so. As the statement formed no part of the case against the appellant as argued by the Crown and the trial judge properly instructed the jury that they alone had to assess the evidence and decide guilt or innocence, I do not see the appellant as having been prejudiced by the admission of this statement.

[17] Moreover, even if the impugned testimony was improperly admitted, its admission did not prejudice the appellant. At the end of the day, there is no dispute that the appellant was a drug courier. It was never suggested that he was an addict or that he had handled the drugs. The evidence was clear that the appellant brought the opium into Canada. The question with which the jury had to grapple was whether he knowingly brought the drugs into Canada or was an unwitting dupe. The evidence to which the appellant now objects has little relevance to that issue and cannot reasonably be said to have undermined the fairness of the trial.

[18] Accordingly, I would not give effect to this ground of appeal.

The Charge on Wilful Blindness

[19] The trial judge charged the jury on the concepts of actual knowledge and willful blindness in the following terms:

Knowledge

This, of course, is the crucial issue. The Crown must prove to you beyond a reasonable doubt that Mr. Rashidi intended to import the controlled substance knowing that the substance he was carrying was a controlled substance.

Intention to import requires knowledge that what was imported was a controlled substance. In other words, the Crown must prove beyond a reasonable doubt that Mr. Rashidi knew that the suitcase contained an illegal substance.

So, if an accused is unaware that there is an illegal drug contained in something which is in his or her possession and which is being carried into the country, or if you have a doubt about this issue, then knowledge, an essential and necessary element of intention is not proven.

There are two ways the Crown may prove knowledge. Knowledge may be proved that there was either actual knowledge of the illegal substance or what is called “wilful blindness” concerning the existence of the substance.

What is “wilful blindness” in this context? Where a person has become aware of the need for some inquiry about whether there was a prohibited drug in the suitcase or the item, in this case a suitcase, but declines to make the inquiry because he does not wish to know the truth, or would prefer to remain ignorant, in other words, is “wilfully blind” to the facts, the law still holds that person criminally responsible, as if he had actually knowledge. Wilful blindness is the state of mind of someone who is aware of the need to make an inquiry and deliberately fails to do so. It is imputed knowledge.

However, mere negligence or recklessness is not enough. Wilful blindness is a higher standard than either negligence or recklessness. The person must be aware of the need to make an inquiry about whether prohibited drugs were concealed in the suitcase, but decided not to because they did not wish to know the truth and preferred to remain ignorant. You may ask: “Did the accused shut his eyes because he knew or strongly suspected that asking would fix him with knowledge?” Wilful blindness is the state of mind of someone who is well aware of the need to make an inquiry and then deliberately fails to do so because they do not want to know the truth. They prefer to remain ignorant. As I stated a minute ago, wilful blindness is equivalent to actual knowledge; it is imputed knowledge.

In summary, the real issue to be decided on all of the evidence is whether Mr. Rashidi actually knew or was wilfully blind to the fact that he was carrying an illegal drug. You and I have no way of opening up a person’s head and looking into their mind and reading what is going on. As a result, you determine a person’s knowledge on the basis of an inference you draw from the conduct, statements and activities of the accused viewed in the context of all of the surrounding circumstances.

[20] The appellant submits that these instructions were deficient in three ways. First, it is argued that they failed to make clear to the jury the extent to which wilful blindness differs from actual knowledge and from recklessness. Second, it is contended that it was insufficient for the trial judge to instruct the jury that they “may” ask if the appellant knew or strongly suspected that further inquiry would fix him with knowledge. On this point, the appellant maintains that the trial judge ought to have made it clear that unless the Crown proved beyond a reasonable doubt that either the appellant knew there were drugs in the suitcase or “strongly suspected that looking would fix him knowledge”, the appellant was to be acquitted. Third, the appellant argues that it was a fatal error for the trial judge to fail to relate the evidence to the test for wilful blindness.

[21] I reject this submission. In my view, the charge clearly explained the concept of wilful blindness. There can be no question but that the jury fully understood the significance of considering the evidence relating to what the appellant knew and the steps he claimed to have taken in the Sophia airport to satisfy himself about the contents of the suitcase. Equally, there can be no question that the jury knew it had to be satisfied beyond a reasonable doubt on the issue of knowledge. The charge was replete with references to the Crown’s burden to prove the case beyond a reasonable doubt including, as the extract above demonstrates, on the issue of knowledge.

[22] The appellant also argued that the trial judge erred by stating that the jury may ask: “Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?” While R. v. Jorgensen, [1995] 4 S.C.R. 55 states that the answer to the question must be answered affirmatively, the trial judge’s statement that the jury may ask this question is not problematic. A person is wilfully blind if he or she deliberately chooses not to know something when given reason to believe further inquiry is necessary (Jorgensen at 135). If the jury concludes that an accused is wilfully blind, the question will necessarily be answered in the affirmative. In the present case, the jury must have answered the question affirmatively.

[23] The suggestion that the trial judge failed to contextualise the test for wilful blindness with the specific facts of this case is untenable. The trial judge fully canvassed the accused’s explanation, as given in his interview with the R.C.M.P., and related it to the issue of knowledge and wilful blindness. Immediately thereafter, he gave the defence’s theory of the case. He did so based on the written statement provided to him by counsel. The trial judge read the statement, after ensuring that the jury was aware that they were arguments rather than evidence. It contained the following:

He made the requisite inquiries that a reasonable person would be expected to make. He asked what was in the bag and the bag was then opened and in a relaxed fashion the man showed him the jackets and shoes. There was nothing visible to the accused, nor would have been apparent even to the trained R.C.M.P. officer that there was anything illegal in that bag on first inspection. There was no reason to suspect that the bag contained narcotics and there is no evidence that the accused failed to inquire as to the contents of the bag in an attempt to avoid having actual knowledge.

[24] I do not see R. v. Lagace (2003), 181 C.C.C. (3d) 12 (Ont. C.A.), as assisting the appellant. In Lagace, Doherty J.A. held that where some inquiry is made, it must be determined whether the accused still harbours a suspicion despite the inquiries. While the appellant made some inquiries, it was open to the jury to find that he still harboured suspicions. For example, there is no explanation for why the appellant failed to inquire about the smell of glue in the suitcase which must have been evident to him when he examined its contents nor why he failed to inquire about the suitcase’s abnormal weight. Given these facts, and the warning from his friend that the appellant admits he received, there was ample evidence on which the jury could find that the appellant still harboured suspicions even if a basic inquiry had been conducted.

[25] Accordingly, I would dismiss this ground of appeal.

THE KNOWLEDGE REQUIREMENTS OF THE OFFENCE

[26] As I mention above, the court did not call on the Crown to respond to the third ground of appeal, namely, whether the jury was properly instructed on the knowledge requirement of the offence. The core of the appellant’s argument on this ground is that the trial judge failed to instruct the jury that the Crown had to prove that the appellant knew that he was importing a controlled drug. He submits that while the trial judge did specify once that the illegal substance was illegal drugs, it was insufficient as it left it open for the jury to conclude that the appellant had knowledge that the suitcase contained some type of illegal substance, whether drugs or otherwise.

[27] The trial judge began the charge by instructing the jury that the appellant was charged with importing opium into Canada contrary to the Controlled Drugs and Substance Act, S.C. 1996, c. 19, s. 6(1). He explained that the jury could only convict if the Crown proved beyond a reasonable doubt that he intended to import a controlled substance and that opium is a controlled substance. The jury would have understood later references in the charge to an “illegal substance” as referring to the opium. There is nothing in this ground of appeal.

SENTENCE

[28] The appellant submits that, in the circumstances, the sentence was harsh and excessive. In making this submission, he notes that the scant jurisprudence on sentences for opium importers is dated and argues that in any event, as a first offender, a more lenient sentence ought to have been imposed. He points also to the fresh evidence from his employer which attests to his continuing hard work while on bail.

[29] The sentencing judge carefully considered the relevant authorities and concluded that R. v. Abolmolouk (1997), 32 O.R. 3(d) 653 (C.A.) most closely resembled the case before him. As in the present case, the accused was a middle-aged first offender and a non-user. In Abolmolouk, this court reduced the sentence from seven years to four years, in addition to six months of pre-trial custody.

[30] As the sentencing judge noted, the quantity of drugs involved in Abolmolouk was significantly smaller than in the present case. In Abolmolouk, only 805 grams of opium had been imported whereas in the case at bar, the quantity of opium was almost 6 kilograms.

[31] The sentencing judge also carefully considered the nature of the offence and the circumstances of the offender. In terms of mitigating factors, the sentencing judge noted that at age thirty-six, the appellant had no criminal record, was a hard-working person who had maintained steady employment since arriving in Canada in 1996 and who had complied with his bail conditions. He noted also that there is a restricted market for opium in Canada.

[32] In terms of aggravating factors, the sentencing judge identified the substantial quantity of opium, the fact that the appellant was a nonuser and that the opium had been imported for the clear purpose of trafficking.

[33] I see no error in the sentencing judge’s references to Justice Cory’s comments (in dissent) in Pushpanthan v.Canada, [1998] 1 S.C.R. 982 as to the serious threat posed by the importation of dangerous drugs, and to the statements of Feldman J.A. in R. v. Wellington (1999), 132 C.C.C. (3d) 470 (Ont. C.A.), to the effect that when sentencing drug couriers, the principle of general deterrence remains significant.

[34] As the sentencing judge made no error in principle and imposed a fit sentence, I see no basis on which to interfere with the sentence.

DISPOSITION

[35] Accordingly, I would dismiss the appeal. I would grant leave to appeal sentence and dismiss the sentence appeal.

RELEASED: October 19, 2007 (“M.R.”)

“E.E. Gillese J.A.”

“I agree M. Rosenberg J.A.”

“I agree J. MacFarland J.A.”

[^1]: An E-311 card is more commonly known as a Customs Declaration Form. This form requires Canadian citizens who are re-entering Canada to declare the value of goods they purchased abroad and are bringing into Canada, as well as any tobacco, alcohol, firearms, and other restricted items.

[^2]: The suitcase had a combination style lock on it. The combination, which the appellant provided to the inspector, was 007.