COURT OF APPEAL FOR ONTARIO DATE: 20210719 DOCKET: C66329
Doherty, Trotter and Thorburn JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Barna Olvedi Appellant
Counsel: Andrew Furgiuele, for the appellant David Quayat and Nicholas Cooper, for the respondent
Heard: May 31, 2021 by video conference
On appeal from the convictions entered by Justice Cynthia Petersen of the Superior Court of Justice on February 23, 2018, with reasons reported at 2018 ONSC 1166, and from the sentence imposed on November 27, 2018, with reasons reported at 2018 ONSC 6330.
A. Introduction
1The appellant was convicted of importing fentanyl and possession of fentanyl for the purpose of trafficking, contrary to ss. 6(1) and 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. He received a global sentence of 15 years’ imprisonment. He appeals his convictions and sentence.
2On the conviction appeal, the appellant contends that the trial judge erred in her application of the wilful blindness doctrine to fulfil the fault requirements for both offences. He further submits that the sentence was unduly harsh and the trial judge erred by relying on this court’s sentencing jurisprudence relating to the importation of heroin.
3At the conclusion of the hearing, the court dismissed the conviction appeal with reasons to follow, but reserved its decision on the sentence appeal. These reasons explain why I would dismiss both appeals.
B. Background
4The appellant accepted delivery of a package that contained 499.5 grams of 100% fentanyl citrate, worth upwards of $19 million. The package came from China and was addressed to the appellant at his residence in Brampton, Ontario. It was intercepted by U.S. Customs and Border Protection in Memphis, Tennessee, who alerted Canadian officials.
5When the package arrived in Canada, the RCMP replaced all but one gram of the fentanyl with an inert powder for the purposes of a controlled delivery. Posing as a FedEx delivery person, an undercover RCMP officer delivered the package to the appellant’s family home, where he lived in a basement apartment. The appellant accepted and signed for the package.
6Shortly after accepting delivery, the appellant and his girlfriend left the residence in a car. They were stopped by the RCMP and arrested. When he was arrested, the appellant spontaneously stated, “She [his girlfriend] doesn’t know anything … If there is weed on her, it’s mine”. He repeatedly asked the police to “let her go”. When the charges were read to him, he said, “Are you talking about the package? I don’t know how it came.” He also said, “I’ll give it to you” and, “I just wanted to make some money.” After he was placed in a police cruiser, the appellant asked what was in the package. When he was told it was fentanyl, he professed to not know what that was.
7The appellant gave a more detailed account when he was formally interviewed at the police station. He said that he was doing a lot of cocaine at the time. He “agreed to be a courier” for his cocaine dealer, named “Bruno”, who offered to pay him $3,000 if he agreed to accept a package at his home. He agreed to the proposal because he needed the money to buy more cocaine.
8During his interview with the police, the appellant made two statements that are critical to the issues raised on the conviction appeal. They relate to his knowledge of what would be in the package and where it was coming from. The appellant described making the arrangement with Bruno in the following way:
Bruno said, “Do you want to make some money?”
I said, “Fuck yeah, what I got to do?”
He said, “I’ll give you three grand, all you have to do is get a package delivered to your house. Just give me your info and I’ll give you three thousand cash.”
And I said, I said, “Okay”. I meant, “What’s in the package?” I said, “You know what, I don’t even want to know.” So I don’t know what was in the package . [Emphasis added.]
9In terms of the origin of the package, the appellant told the RCMP, “I didn’t really fucking care where it came from.”
10The appellant said that he soon became reluctant to follow through with the arrangement. He met with Bruno at a Tim Horton’s restaurant and told him, “I can’t do this”. One of Bruno’s “goons”, who was also present at the meeting, punched him in the face. Bruno threatened to kill the appellant if he did not accept delivery of the package. In order to protect himself, the appellant bought body armour, machetes, and throwing knives, all of which the police seized from his residence.
11The appellant told the police that, when the package arrived, he was hesitant. The undercover officer posing as the FedEx delivery person agreed that the appellant seemed hesitant or surprised. Nonetheless, the appellant signed for the package because he felt threatened and did not want to die.
12The appellant told a different story at trial. He said the Bruno story was false. He made it up at the time because he thought that the police would feel sorry for his girlfriend and let her go if they knew that she was involved with a cocaine addict. He professed to have never used cocaine. However, when the police searched his apartment, they found a baggie containing cocaine residue in the pocket of a pair of pants lying on the floor. The appellant testified that he had never seen the pants before, which the trial judge found to be “absurd.” He also testified that he sometimes sold marijuana. The police seized roughly $60,000 in cash from his residence, which he appellant said that this was from the sale of marijuana.
13As for the package, the appellant testified that he was involved in selling refurbished iPhones with a marijuana customer named “Toor”. He had previously accepted such a shipment in exchange for $500. The appellant testified that he was confused when he saw the FedEx delivery person that day because the package did not look like the one he received before. Whereas the previous shipment was delivered in a box, this package was malleable, and appeared to have some kind of powder in it. He said, “I thought it was cocaine right when I felt it … it was a powder,… I wasn’t expecting a powder.” However, he was relieved to see that the package did not appear to originate from South America, where cocaine is manufactured. He thought that the package might contain acrylic paint, as the shipping label indicated.
14The trial judge rejected the appellant’s trial testimony as “simply implausible”, characterizing some of his evidence as “absurd”, and commenting that it made “no sense”: at paras. 50, 54 and 56. She accepted the appellant’s statement to the police – and the Bruno scenario – as truthful. She found that it was corroborated by the armour and weapons found in the appellant’s basement apartment, and the knife that he had put in his girlfriend’s purse before they left the residence.
15In her detailed reasons, the trial judge observed that, when he told his Bruno story to the police, the appellant appeared to be relying on what he thought was a defence of compulsion or duress. This defence was not advanced at trial, likely because the appellant had a safe avenue of escape, in that he could have sought police protection: see R. v. Ryan, 2013 SCC 3, [2013] 1 S.C.R. 14, at para. 47. However, the trial judge considered it as a mitigating factor on sentence, finding that it reduced the appellant’s moral blameworthiness.
C. The Conviction Appeal
(1) Importing Fentanyl
16The appellant submits that the trial judge erred in relying on wilful blindness to supply the fault requirements for importing a controlled substance. Specifically, he contends that although wilful blindness may serve as a substitute for an accused’s knowledge as to the nature of the substance, it must be proved that the person subjectively intended to import this substance. Consequently, wilful blindness has no application to the second element ( i.e. , from where the substance originates) . I disagree: wilful blindness is available with respect to both elements.
17The offence of importing a controlled substance is prescribed by s. 6(1) of the CDSA: “Except as authorized under the regulations, no person shall import into Canada or export from Canada a substance included in Schedule I, II, III, IV, V or VI.” The CDSA does not define “importing”. However, it has been explained in the case law.
18In R. v. Foster, 2018 ONCA 53, 360 C.C.C. (3d) 213, at para. 99, leave to appeal refused, [2018] S.C.C.A. No. 127, Watt J.A. held that “the term ‘import’ means to bring into Canada from elsewhere, or cause to be brought into Canada from elsewhere, a controlled substance.” See also Bell v. The Queen, [1983] 2 S.C.R. 471. The mens rea for importing takes its form from this definition of the actus reus . It requires both intent and knowledge.
19As a principal, it must be proved that the accused intended to bring a controlled substance into Canada. But the appellant’s situation is one of party liability under s. 21(1)(b) of the Criminal Code. In these circumstances, the Crown is required to prove that the appellant intended to assist Bruno in committing the offence: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 16.
20As Charron J. explained in Briscoe, at para. 17, “That sufficient knowledge is a prerequisite for intention is simply a matter of common sense.” In the case of importing, whether as a principal or as a party, the Crown must prove knowledge of two things: (a) the substance is a controlled substance (even if the exact substance is not known); and (b) the substance originates from outside Canada. As the Court of Appeal of Alberta put it in R. v. Atuh, 2013 ABCA 350, the Crown must prove that the accused knew they were receiving a controlled substance and that they “knew that the drugs [they] knowingly expected and accepted were from out of the country“: at para. 7.
21In Canadian criminal law, wilful blindness is recognized as a proxy or substitute for actual knowledge. It involves the presence of a subjective suspicion about a fact, circumstance, or situation, and a decision not to make inquiries, preferring to remain ignorant of the true state of affairs: see Briscoe, at para. 21; R. v. Pilgrim, 2017 ONCA 309, 347 C.C.C. (3d) 141, at para. 66. There is no principled basis that would permit wilful blindness to apply to supply the knowledge component for one essential element (the nature of the substance) but not the other (the origin of the substance).
22In his statement to the police, the appellant said that he agreed to accept delivery of a package for Bruno in exchange for $3,000. This was capable of proving that the appellant intended to assist Bruno. But more was required. The Crown was required to prove that the appellant knew or was wilfully blind to the fact that he would be taking delivery of a controlled substance, and that it originated from outside Canada.
23The trial judge concluded that each of these elements was proved, at paras. 65 and 68:
Although I am left with reasonable doubt as to whether Mr. Olvedi actually knew that the package contained a controlled substance, I am persuaded beyond a reasonable doubt that he was wilfully blind to that fact and to the fact that it was originating from outside Canada . I make this determination based, in part, on the cumulative effect of the circumstantial evidence set out above, and also based on compelling evidence of his deliberate suppression of suspicions about the package’s contents or origins.
For all of the foregoing reasons, I am persuaded beyond a reasonable doubt that Mr. Olvedi was wilfully blind to the fact that the package he agreed to receive for Bruno contained a controlled substance. I am also persuaded that he was wilfully blind to the fact that the package would be originating from outside Canada at the time that he agreed to accept delivery for Bruno . The Crown has therefore established the accused’s intent to bring a controlled substance into the country, which preceded the substance’s entry into Canada. [Emphasis added.]
24I see no error in the trial judge’s approach.
25In the alternative, the appellant submits that there was an insufficient evidentiary foundation for the trial judge to conclude that the appellant was wilfully blind to the origin of the substance he agreed to receive on behalf of Bruno.
26I disagree. The trial judge’s findings were supported by the evidence she accepted, particularly those parts of the appellant’s statement referred to in paras. 8-9, above. Both parts must be considered.
27In conjunction with the appellant’s belief that Bruno was high up in the hierarchy of cocaine distribution, the appellant’s statement – “I don’t even want to know” – provided a foundation for the trial judge’s finding that the appellant was wilfully blind to the fact that he would be taking possession of a controlled substance. As the appellant’s counsel conceded at the hearing, this statement could serve as the avatar of wilful blindness.
28The second statement – “I didn’t really fucking care where it came from” – sustained the trial judge’s conclusion that the appellant was wilfully blind to the package’s origin, especially since he was aware that cocaine originated from outside Canada.
29The appellant submits that, for wilful blindness purposes, the trial judge erred by equating the two statements. They are qualitatively different. He submits that, while the second statement may prove recklessness about the origin of the package, it falls short of establishing that the appellant was wilfully blind. I disagree. It is clear from the trial judge’s reasons that she considered the two assertions to be qualitatively similar and complementary. Having had his suspicions aroused about what he was being asked to do, the appellant did not want to know what was to be delivered, or where it was coming from. He preferred to remain ignorant of both circumstances. These findings were open to trial judge to make.
30I would dismiss this ground of appeal.
(2) Possession for the Purpose of Trafficking
31The appellant submits that there was no evidence to support the trial judge’s finding that he was wilfully blind to the contents of the package on the charge of possession for the purpose of trafficking. Although he may have been wilfully blind to the contents of the package when he agreed to receive it on Bruno’s behalf, he did not have the same understanding when the package was actually delivered. At that point, his knowledge base had changed. The labelling on the package indicated that it originated in China and contained “acrylic paint”. The appellant testified that when he saw this, he was relieved because he thought the package might actually contain paint. He submits that, on the facts known to him at that time , he was, at worst, reckless as to the contents of the package, and this was insufficient to found a conviction. I disagree.
32Although the trial judge’s reasons were brief in relation to this charge, they must be viewed in the context of her reasons as a whole. The trial judge found that, when he received the package, the appellant remained wilfully blind to its contents and that “[h]e intended to flip the package to Bruno, knowing (or wilfully blind to the fact) that Bruno would then sell its contents to illicit drug-users like himself, through an established chain of distribution”: at para. 70. [1]
33The trial judge’s conclusion that the appellant was wilfully blind to the contents of package was not unseated by the manner in which the package was labelled. In any event, the trial judge rejected the appellant’s testimony and relied on his police statement. Moreover, it is implausible that, when the package was delivered, the appellant truly believed that he was to receive $3,000 for accepting delivery of a small package of acrylic paint, instead of drugs.
34I would dismiss this ground of appeal.
D. The Sentence Appeal
35The trial judge sentenced the appellant to imprisonment for 15 years on the importing charge and 12 years, concurrent, on the charge of possession for the purpose of trafficking. The appellant submits that the sentence was too harsh and that the trial judge erred by finding that importing fentanyl was comparable to importing heroin. I disagree. The comparison is apt, and the sentence was fit.
36At the sentencing hearing, the Crown sought a sentence of 17 years’ imprisonment (based on its assertion of a 16- to 20-year range). Counsel for the appellant at trial submitted that 8 to 12 years would be appropriate.
37The trial judge took into account the personal circumstances that were favourable to the appellant. He was 33 years old at the time of sentencing. Although he had a conviction for failing to comply with a recognizance, the appellant was entitled to be treated as a first offender. The trial judge acknowledged that the appellant was cooperative with the police, was genuinely remorseful, and had excellent rehabilitative potential. The trial judge also considered the appellant’s moral blameworthiness to be diminished by virtue of the threats from Bruno.
38The length of the sentence the trial judge imposed was driven by the principles of denunciation and general deterrence, based on her assessment of the harmful nature of fentanyl. Her conclusions were supported by evidence at the sentencing hearing.
39The Crown adduced the evidence of three witnesses who spoke to the hazards of fentanyl for drug users, and others who may come into contact with it, such as law enforcement and EMS personnel, scientists and technicians who are required to analyze controlled substances, and commercial couriers.
40Dr. Karen Woodall (a forensic toxicologist) testified about the potency and dangers of fentanyl. Fentanyl is 100 times stronger than morphine and 20 times stronger than heroin. It is also highly addictive. Based on this evidence, the trial judge spoke of the impact of the drug on our communities, at para. 27:
Deaths from fentanyl overdoses started to occur in the mid 2000’s. The problem intensified over time. In the past five years, there has been a dramatic increase in fentanyl-related fatalities. The problem has reached crisis proportions. Dr. Woodall testified that fentanyl has become the number one opioid identified in death investigations of drug-related fatalities. In many cases, multiple drugs are detected in the deceased’s system. Some case histories have shown that the deceased believed they were taking cocaine or heroin but ended up unknowingly ingesting a deadly drug mixture that contained fentanyl.
41The evidence also established that, because fentanyl can be inhaled and absorbed through the skin, it presents serious risks to anyone who handles it or is near to it. For this reason, the Centre of Forensic Sciences has implemented strict safety guidelines for handling fentanyl.
42Dr. Woodall and Sergeant Ian Young, an officer with the Waterloo Regional Police Service, testified that they had never previously encountered 100% pure fentanyl nitrate. At this level, fentanyl is not consumable on the street. One gram of fentanyl would need to be blended with 100 grams of a “cutting” agent, such as caffeine. The usual method of cutting fentanyl is with a kitchen blender. This is an imprecise process that may result in the uneven distribution of the drug with the cutting agent, creating undetectable and dangerous “hot spots” of higher fentanyl concentration. This creates a serious risk of accidental overdose.
43The Crown also adduced evidence of the prevalence of fentanyl activity in Peel Region, where the appellant was arrested, and which is home to the Toronto Pearson International Airport. Police Constable Matthew Boycott, with the Peel Regional Police, testified to a substantial upswing in fentanyl seizures, both in powder and pill forms. Fatal overdoses increased dramatically between 2014 (n = 10) and the first quarter of 2018 (n = 38). [2] At the time of sentencing, Peel Regional Police was building a centralized drug facility to safely store the fentanyl that is seized. P.C. Boycott also testified that, in that part of the province, fentanyl has grown in popularity, due to his high potency and because it is fairly inexpensive for dealers to get set up, needing little more than a blender.
44P.C. Boycott gave evidence of the danger of fentanyl to law enforcement officers. In Peel, officers carry nasal naloxone kits, which can be used to reverse the effects of fentanyl. He testified that, although naloxone is administered to drug users, officers carry it for their own protection in the event of exposure to fentanyl.
45The trial judge also heard evidence that fentanyl is typically sold in doses of 0.1 grams. The amount of fentanyl imported by the appellant, 499.5 grams, could have been cut into as many as 499,500 points of sale. Sold at $30 to $40 per dose, the street value was between $14,985,000 and $19,980,000.
46Based on this evidentiary foundation, the trial judge accepted the Crown’s submission that sentencing for the importation of fentanyl should be approached in the same way as importing heroin.
47The trial judge considered R. v. Sidhu, 2009 ONCA 81, 94 O.R. (3d) 609, in which this court considered an appeal by the Crown from a sentence imposed on a 24-year-old first offender who imported a large quantity of heroin into Canada. The trial judge in that case imposed a sentence of almost eight years’ imprisonment, noting that “heroin is a marginally more dangerous drug than cocaine”.
48In allowing the Crown’s appeal, this court rejected the trial judge’s assessment of the dangerousness of the drug, at para. 12:
Time and again, this court and the Supreme Court of Canada have made it clear that heroin is the most pernicious of the hard drugs – it is the most addictive, the most destructive and the most dangerous. Heroin trafficking has been described as a “despicable” crime and one that “tears at the very fabric of our society”.
The court held that, “as a general rule, absent exceptional or extenuating circumstances, first offender couriers who import large amounts of high grade heroin into Canada for personal gain should expect to receive sentences consistent with the twelve to seventeen year range“: at para. 14. The court increased the sentence to 14 years and 9 months.
49After discussing this court’s holding in Sidhu, the trial judge concluded, at para. 103:
Importing fentanyl must be treated at least as seriously as importing heroin because fentanyl is known to be twenty times stronger than heroin. As Sopinka J. stated in Vezina [R. v. Vezina, 2017 ONCJ 775] (at para. 56), “[t]he dangers of fentanyl have become well known, which puts traffickers [and importers] [3] on notice that their conduct will attract significant custodial penalties.” I therefore conclude that the range of sentence proposed by Defence counsel in this case, namely 8 to 12 years’ imprisonment, is too low for a first time courier who imports a large volume of high purity fentanyl for personal gain.
50I agree with this approach. The record supported the trial judge’s findings that fentanyl is at least as serious as heroin and that it has a devastating impact on our communities. The appellant does not dispute the validity of the heroin analogue, but submits that his sentence should have been shorter.
51In its written submissions, the Crown observes that appellate guidance on the appropriate sentencing range for importing fentanyl is “underdeveloped.” It urges this court to use Sidhu as a starting point and to signal that sentences for importing fentanyl should go beyond the range identified in that case. Although I would endorse the trial judge’s reliance on Sidhu, I would decline the Crown’s invitation to go further and essentially establish a firm range for importing fentanyl.
52In my view, the Crown’s request is premature. As the trial judge recognized, at para. 98, “Due to fentanyl’s relatively recent introduction into Canada’s illicit drug subculture, not many cases involving fentanyl trafficking and no fentanyl importation (or conspiracy to import) cases have been decided by appellate courts.” This is a significant obstacle to establishing a range, for as Wagner J. (as he then was) said in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 57: “Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives.” See also R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 36.
53In R. v. Loor, 2017 ONCA 696, Laskin J.A. observed, at para. 50, “Few fentanyl trafficking cases have reached this court. It is thus perhaps too early in our jurisprudence to establish a range.” In R. v. Disher, 2020 ONCA 710, 153 O.R. (3d) 88, Gillese J.A. said, at para. 30, “The caselaw on sentences for trafficking in fentanyl is still developing.”
54The same may be said about importation cases. Ranges of sentence for importing fentanyl will develop naturally over time, as the courts gain more experience with this deadly drug. Nonetheless, the dangerous nature of fentanyl has already been recognized by this court. In Loor, Laskin J.A. said, at para. 33:
Unless used for therapeutic purposes, under proper medical supervision, fentanyl is a highly dangerous drug. Its widespread abuse, though recent, has quickly become entrenched in our country. Every day in our communities, fentanyl abuse claims the lives of Canadians.
Further recognition of this dark truth is reflected in other decisions of this court: see , for example, R. v. Baks, 2015 ONCA 560, at para. 3; R. v. Lu, 2016 ONCA 479, at para. 9; and R. v. Sidhu, 2019 ONCA 880, at para. 4.
55I also agree with Laskin J.A.’s observation that, although it may be too early in the development of our jurisprudence to establish a range of sentence, it is “fair to say that generally, offenders – even first offenders – who traffic in significant amounts of fentanyl should expect to receive significant penitentiary sentences”: at para. 50.
56Other appellate courts have taken the same, cautious approach, by declining to establish sentencing ranges in fentanyl cases, but upholding significant penitentiary sentences: see R. v. Smith, 2019 SKCA 100, 382 C.C.C. (3d) 455, at paras. 126-27 (eight years for possession for the purpose of trafficking); R. v. White, 2020 NSCA 33, 387 C.C.C. (3d) 106, at paras. 116-18 (eight years for possession for the purpose of trafficking); R. v. Petrowski, 2020 MBCA 78, 393 C.C.C. (3d) 102, at para. 35 (10 years for possession for the purpose of trafficking); R. v. Slotta, 2020 MBCA 79, 393 C.C.C. (3d) 122, at para. 3 (eight years for importing) . The courts in Smith, Petrowski, and Slotta recognized that, due to the dangerous nature of fentanyl, sentences should be longer than those involving cocaine or heroin.
57Returning to this case, the trial judge considered all relevant factors, including the need for restraint, especially given the personal circumstances of the appellant. She gave effect to the appellant’s lower moral blameworthiness in view of the coercion from Bruno. However, deterrence and denunciation had to be given prominence in this case, especially given the amount, purity, and value of the fentanyl imported. The trial judge’s assessment of the seriousness of the offence, in conjunction with her balancing of the relevant aggravating and mitigating circumstances, is entitled to deference on appeal: Lacasse, at para. 41; R. v. Fabbro, 2021 ONCA 494, at para. 19.
58Not only did the evidence establish the seriousness of the appellant’s offending owing to the danger associated with the fentanyl, it also spoke to fentanyl’s prevalence in and impact on the community in which it took place. As the trial judge said, at para. 58:
The enormity of the fentanyl crisis and its impact in Peel Region cannot be ignored in this case. It underscores the need for a sentence of sufficient length to denounce Mr. Olvedi’s conduct in the strongest terms and to act as a general deterrent to those who would contemplate similar actions.
This is an important consideration: see Lacasse, at para. 48.
59Although the sentence imposed was substantial, it was not unfit, even for a first offender. The appellant played a significant role in importing half a million doses of what has become the most lethal of drugs. The toll on human life could have been devastating had this staggering amount of fentanyl found its way onto the streets of Peel Region, and beyond.
60Given that I would dismiss the sentence appeal on the importing charge, it is not strictly necessary to address the appeal from the concurrent 12-year sentence for possession for the purpose of trafficking. However, the same aggravating factors are also very much in play in this context, and justify the substantial penitentiary term that was imposed.
61Lastly, the victim surcharge should be set aside, in accordance with R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599.
E. Disposition
62I would dismiss the conviction appeal, grant leave to appeal sentence, set aside the victim surcharge, but dismiss all other aspects of the sentence appeal.
Released: July 19, 2021 “DD” “Gary Trotter J.A.” “I agree. Doherty J.A.” “I agree. Thorburn J.A.”
1The trial judge did not need to go this far. Whatever Bruno intended to do with the drugs was immaterial; taking possession of the package with the intention of giving it to Bruno itself amounted to trafficking. In s. 2(1) of the CDSA, the definition of “traffic” includes “to sell, administer, give, transfer, transport, send or deliver the substance”.
2At the time P.C. Boycott testified, the first quarter data for 2018 had yet to be finalized.
3Inserted by the trial judge.
