minicounsel

COURT OF APPEAL FOR ONTARIO

DATE: 20210526 DOCKET: C68052 & C68065

Hoy, Hourigan and Zarnett JJ.A.

BETWEEN

C68052 Her Majesty the Queen Respondent

and

Sebastian Zamora Appellant

AND BETWEEN

C68065 Her Majesty the Queen Respondent

and

Nicholas Poku Appellant

Counsel: Chantelle M. LaFitte and Jacob D. Roth, for the appellant, Sebastian Zamora Nicholas Poku, acting in person Amanda Webb, for the respondent

Heard: May 4, 2021 by video conference

On appeal from the order of Justice Gisele M. Miller of the Superior Court of Justice, dated January 28, 2020, granting the application for certiorari and mandamus to set aside the order of Justice Hafeez S. Amarshi of the Ontario Court of Justice, dated August 7, 2019, discharging the appellants.

Hoy J.A.:

Overview

1The appellants, Mr. Poku and Mr. Zamora, were charged with possession of heroin for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”). Mr. Zamora was also charged with importing heroin, contrary to s. 6(1) of the CDSA.

2The preliminary inquiry judge discharged the appellants at their preliminary inquiry. The Crown applied for, and the reviewing judge granted, an order in certiorari quashing the preliminary inquiry judge’s decision and mandamus ordering that both appellants be committed for trial on the charges against them.

3The appellants argue that the reviewing judge erred in doing so. Mr. Zamora also argues that the preliminary inquiry judge and the reviewing judge erred in concluding that the actus reus of the offence of importing was not complete before Mr. Zamora took possession of the package containing the heroin. Mr. Zamora urges this court to clarify the law as to when the actus reus of the offence of importing is complete.

4For the following reasons, I would affirm the order of the reviewing judge.

5Below, I briefly outline the relevant principles as to roles of a preliminary inquiry judge and a judge faced with an application to quash the decision of a preliminary inquiry judge and the evidence at the preliminary inquiry. Then I review the reasons of the preliminary inquiry judge and the reviewing judge and explain why I conclude that the reviewing judge did not err in quashing the preliminary inquiry judge’s decision. Finally, I explain why I decline to address the issue of when the actus reus of the offence of importing is complete on this appeal.

The roles of the preliminary inquiry judge and a reviewing judge

6The law as to the jurisdiction of a preliminary inquiry judge and the role of a reviewing judge is not at issue. Both the preliminary inquiry judge and the reviewing judge adverted to the key legal authorities as to the jurisdiction of a preliminary inquiry judge and the reviewing judge directed herself as to the limited role of a reviewing judge. The appellants take no issue with their articulation of the relevant principles. This appeal concerns the application of those principles. However, a brief outline of the relevant principles, drawing heavily on the reasons of the reviewing judge, provides context for the issues on appeal.

7As the reviewing judge noted, a preliminary inquiry judge’s jurisdiction is derived from s. 548(1) of the Criminal Code, R.S.C., 1985, c. C-46. When a preliminary inquiry judge acts outside of s. 548(1), he or she commits jurisdictional error.

8Section 548(1) provides as follows:

548 (1) When all the evidence has been taken by the justice, he shall

(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or

(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.

9In R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, McLachlin C.J., writing for the court, reaffirmed what s. 548(1) requires a preliminary inquiry judge to do and when a preliminary judge acts outside of s. 548(1). A preliminary inquiry judge must determine whether there is sufficient evidence to permit a properly instructed jury, acting reasonably, to convict. This does not require the judge to assess credibility or draw inferences from the facts. That is the role of the jury. Where, as in this case, the evidence is circumstantial, the preliminary inquiry judge must engage in a limited weighing of the whole of the evidence to determine whether the evidence, if believed, could reasonably support an inference of guilt: Arcuri, at paras. 23, 29. In doing so, the preliminary inquiry judge does not draw inferences from facts: Arcuri, at para. 30. If the evidence could result in a conviction, the accused must be committed: Arcuri, at para. 33.

10If a preliminary inquiry judge weighs the evidence beyond the limits established in Arcuri, he or she commits jurisdictional error: M.M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973, at para. 47; R. v. Kamermans, 2016 ONCA 117, 346 O.A.C. 31, at para. 15.

11At paras. 13-15 of her reasons, the reviewing judge summarized other relevant principles:

A preliminary inquiry judge may not weigh the evidence for competing inferences in determining whether there is sufficient evidence for committal. That role is reserved for the trier of fact. R. v. Deschamplain, 2004 SCC 76, [2004] 3 SCR 601 at paragraph 15.

If more than one inference may be drawn from the evidence, then only the inference(s) that favour committal are to be considered. Sazant at paragraph 18.

Where there are competing inferences, and one of those inferences supports committal, then that inference must be favoured at a preliminary inquiry. R. v. Magno, 2006 ONCA 470, [2006] O.J. No. 2590 (C.A.), at paragraphs 21-23.

12In reviewing the decision of a preliminary inquiry judge, the reviewing judge’s role is limited to whether the preliminary inquiry judge exceeded or declined to exercise his or her jurisdiction in arriving at that decision. The reviewing judge does not simply redo the limited weighing of the evidence in which the preliminary inquiry judge was permitted to engage, nor attempt to determine the correctness of the preliminary inquiry judge’s decision. R. v. Manasseri, 2010 ONCA 396, 276 C.C.C. (3d) 406, at para. 28.

The evidence at the preliminary inquiry

13The preliminary inquiry judge noted that for the most part the facts were not contentious.

14On February 21, 2018, a Canadian Border Services Agent discovered 1.347 kg of heroin concealed in the lining of computer bags shipped from Pakistan. The RCMP removed the heroin and replaced it with a controlled sample. The shipment was then returned to the Air Cargo International (“ACI”) warehouse on airport property in Mississauga.

15Through the customs broker who called to inquire about the status of the bags, the RCMP determined that the account with the customs broker associated with the bags was in fact that of Chukwuemeka Madumelu, who had been using a pseudonym in his dealings with the customs broker. Mr. Madumelu was known to the RCMP because he had previously been charged with importing a Schedule I substance.

16When he called, the customs broker advised Mr. Madumelu that all funds needed to be paid before the shipment would be released. That day – February 27, 2018 – the required fee was paid.

17On February 28, 2018, a controlled delivery of the package was unsuccessful: the person who answered the door at the residential address that Mr. Madumelu had provided to the customs agent refused delivery.

18On March 1, 2018, Mr. Madumelu advised the broker that he or Sebastian, whom he told the customs broker was his cousin, would pick up the package at ACI. Later that day, Mr. Zamora attended at ACI to collect the package. He identified himself as Sebastian. Mr. Poku, who came with him, waited in Mr. Zamora’s car. Mr. Zamora asked if the package was heavy. When asked if he needed assistance carrying the package, Mr. Zamora declined, stating that there was “nothing fragile inside”. In the process of the delivery, a waybill was handed to Mr. Zamora. The waybill indicated that the package contained “empty bags”.

19Mr. Zamora carried the package to his car and placed it in the backseat. Then he and Mr. Poku drove directly to a restaurant. They left the package in open view in the backseat of the car and entered the restaurant. They exited the restaurant approximately 20 minutes later with Mr. Madumelu. Mr. Zamora and Mr. Poku left in their car, and Mr. Madumelu left in his. The cars left the restaurant in opposite directions. They reconvened at a nearby apartment building.

20Mr. Madumelu and Mr. Poku removed the package from the backseat of the car driven by Mr. Zamora and entered the apartment building, where they were arrested. Mr. Zamora was arrested while waiting in the car.

21Upon his arrest, Mr. Madumelu was found with a slip of paper upon which were written, among other things, the waybill number and Mr. Zamora’s phone number with the name “Seb” – a short form for Mr. Zamora’s first name, Sebastian – noted beside it.

The preliminary inquiry judge’s reasons

22The preliminary inquiry judge rejected Mr. Zamora’s argument that the offence of importing heroin had been completed before he took possession of the package at the ACI warehouse on March 1, 2018. However, he was not persuaded that the evidence supported a reasonable inference that Mr. Zamora or Mr. Poku had the requisite knowledge of the drugs in their possession.

23The preliminary inquiry judge concluded that the “trusted agent argument” advanced by the Crown – namely that such a valuable quantity of drugs would not be entrusted to anyone who did not know the nature of the contents of the package – did not support a reasonable inference of knowledge. The fact that Mr. Madumelu, who had clearly organized the retrieval of the package, had to scribble down Mr. Zamora’s name and number on a slip suggested “a superficial relationship between the parties as opposed to fellow drug conspirators”. Also, the fact that the appellants left the package unattended for 20 minutes in the restaurant parking lot undermines the Crown argument that the package would only be left with trusted insiders.

24The preliminary inquiry judge found that Mr. Zamora’s utterance that the contents were not fragile did not support a reasonable inference that he was aware of the contents. Standing alone, it did little. And the value of the inference was diminished by the fact that the waybill handed to Mr. Zamora during his pickup indicates empty bags as the contents. A cursory review of the waybill would have grounded his belief that the shipment was not fragile. Also, Mr. Zamora’s first question to the undercover officer who was acting as an ACI agent was whether the package was heavy, undermining the Crown’s suggestion that Mr. Zamora knew what the contents were.

25Further, while the fact that all three met at the restaurant before proceeding to the apartment building is somewhat suspicious, absent additional evidence, it does not rise past the level of speculation that they are connected to a drug conspiracy.

The reviewing judge’s reasons

26The reviewing judge reviewed the evidence and the parties’ positions on the application before her. The Crown argued that the preliminary inquiry judge engaged in a prohibited weighing of competing inferences, making two arguments.

27First, the Crown submitted that Mr. Zamora’s utterance that there was nothing fragile in the package clearly gave rise to an inference that he had knowledge of the package’s contents. The Crown argued the preliminary inquiry judge balanced this inference with another, namely that Mr. Zamora could have learned from the waybill that the contents of the packages were empty bags, and did so in the absence of any evidence from the defence that Mr. Zamora had looked at the waybill.

28Second, in rejecting the Crown’s trusted agent argument, the preliminary inquiry judge failed to consider that Mr. Zamora and Mr. Poku left the package in the car to meet Mr. Madumelu, the undisputed organizer of the importation scheme; that the meeting was brief; and that during this meeting period, Mr. Madumelu also left the package unattended.

29In response, the appellants argued that the inferences that the Crown asked the preliminary inquiry judge to draw were no more than speculative.

30The reviewing judge concluded that the preliminary inquiry judge went beyond the limited weighing of the evidence permitted by Arcuri and instead engaged in a weighing of competing inferences prohibited by it.

Analysis

31On appeal, the appellants argue that the reviewing judge exceeded the proper role of a reviewing judge and impermissibly substituted her own assessment of the evidence and decision with respect to the reasonableness of the Crown-sought inferences for that of the preliminary inquiry judge.

32They renew the argument they made to the reviewing judge, namely that the preliminary inquiry judge did not weigh competing inferences. Rather, they argue, the inferences favourable to the appellants were the only inferences available to the preliminary inquiry judge after he rejected the Crown’s inferences as unreasonable and nothing more than speculation.

33I reject this argument. I agree with the reviewing judge that the preliminary inquiry judge committed jurisdictional error: he drew inferences from facts, effectively chose from among competing inferences, and failed to give effect to inferences that favoured the Crown. The reviewing judge did not exceed her role.

34Turning first to Mr. Zamora’s utterance that there was “nothing fragile” in the package, it is reasonable to infer that a person who volunteers information about the contents of a package knows what is contained in the package. Contrary to the appellants’ assertion, the preliminary inquiry judge did not reject this inference as unreasonable. Rather, the preliminary inquiry judge effectively acknowledged that the inference was available but concluded that, on its own, “it did little”. He then diminished the significance of this inference favouring the Crown by weighing it against the inference he impermissibly drew from the fact that the waybill had been given to Mr. Zamora, namely that Mr. Zamora would have learned the contents of the package from a cursory review of the waybill. There was no evidence that Mr. Zamora reviewed the waybill.

35As to the preliminary inquiry judge’s rejection of the Crown’s trusted agent argument, this court has held that where an accused is alleged to be in possession of a controlled substance of significant value, it may be open to a jury to infer that such a valuable quantity of drugs would not be entrusted to anyone who did not know the nature of the contents of the package: R. v. Pannu, 2015 ONCA 677, 127 O.R. (3d) 545, leave to appeal refused, [2015] S.C.C.A. No. 498, at paras. 157, 173.

36Apart from the significant value of the drugs, a constellation of facts supported the availability of an inference that Mr. Madumelu entrusted the collection of the package to persons who were part of the scheme and knew that they were collecting drugs, including that: directly after the appellants collected the drugs, they went to meet with Mr. Madumelu, the undisputed organizer of the importation; and after meeting Mr. Madumelu, the appellants continued in possession of the valuable drugs until they again met up with Mr. Madumelu at the apartment complex, having taken different routes to get there.

37The preliminary inquiry judge impermissibly drew a competing inference, namely that the appellants were not drug conspirators, from the fact that Mr. Madumelu had written Mr. Zamora’s phone number on a slip of paper and weighed that inference against the available competing inference favouring the Crown. The drawing of inferences is the role of the jury. It might draw a different inference from the fact that Mr. Madumelu had a slip of paper with Mr. Zamora’s phone number on it. A person need not be a long-standing conspirator to be a conspirator. And Mr. Zamora might simply have been using a newly acquired phone number.

38Similarly, the preliminary inquiry judge effectively impermissibly inferred that the appellants did not know the package contained drugs because they left the package in the car for approximately 20 minutes, while they met Mr. Madumelu at the restaurant. But, as the Crown argued before the reviewing judge, Mr. Madumelu knew the package contained valuable drugs and presumably knew that the appellants had left it in Mr. Zamora’s car. Leaving the drugs in the car does not necessarily mean the appellants did not have knowledge of the contents of the package. Again, the inference to be drawn from this evidence is a matter for the jury.

39I agree with the reviewing judge that there is sufficient evidence to permit a properly instructed jury, acting reasonably, to convict the appellants of the offences with which they are charged. I would affirm the order of the reviewing judge.

The completion of the actus reus of the offence of importing

40Relying on R. v. Bell, 1983 SCC 66, [1983] 2 S.C.R. 471, and R. v. Okojie, 2019 ONSC 1526, Mr. Zamora argued before the preliminary inquiry judge and the reviewing judge that the actus reus of the offence of importing was complete on February 27, 2018. At that point, the requisite fees had been paid and the shipment of heroin had cleared customs. And, since on the evidence before the preliminary inquiry judge Mr. Zamora was not involved until March 1, 2018, Mr. Zamora argues that there was no evidence that he committed the offence of importing.

41The Crown, relying on R. v. Onyedinefu, 2018 ONCA 795 and R. v. Foster, 2018 ONCA 53, 360 C.C.C. (3d) 213, leave to appeal refused, [2018] S.C.C.A. No. 127, (and also on R. v. Buttazzoni, 2019 ONCA 645, when before the reviewing judge), argued that the offence of importing was only completed on March 1, 2018, when Mr. Zamora took possession at the ACI warehouse of the package containing the heroin.

42The preliminary inquiry judge was persuaded by this court’s decisions that the offence of importing heroin was complete in law when it entered Canada, but only factually completed when Mr. Zamora took possession of the package at the ACI warehouse on March 1, 2018. The reviewing judge came to the same conclusion.

43Mr. Zamora argues that this court’s decisions as to when the offence of importation is completed are inconsistent with Bell, and, moreover, that recent decisions of this court broaden the definition of the actus reus of importation established in earlier decisions of this court. He urges this panel to provide guidance on when the actus reus of the offence of importing is complete, and to conclude that, in this case, the importing offence was complete before he became involved and there was therefore no evidence to support his committal on the importing charge. Further, he says that Sazant is authority that this court can do so on appeal from an order for certiorari.

44I decline to do so.

45This case is different from Sazant, where Major J., writing for a majority of the Supreme Court, found that one of the three ways the preliminary inquiry judge exceeded his jurisdiction was that “the exercise of weighing the evidence proceeded on an entirely erroneous basis in law”: Sazant, at para. 25 (emphasis added). In contrast, decisions of this court support the conclusions of the preliminary inquiry judge and the reviewing judge that the importation of the heroin had not been completed before Mr. Zamora took possession of it. An appeal from certiorari heard by a three-judge panel is not the forum to reconcile what Mr. Zamora characterizes as the inconsistency between this court’s jurisprudence and Bell and the broadening of the definition of the actus reus of importation by recent decisions of this court. An error of law, possibly short of the type of jurisdictional error identified in Sazant at para. 25, is not reviewable on certiorari: R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 17; R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at paras. 19-20. As the Supreme Court stated in R. v. Awashish, 2018 SCC 45, [2018] 3 S.C.R. 87, at para. 10, certiorari is “tightly limited by the Criminal Code and the common law so as to ensure that it is not used to do an “end-run” around the rule against interlocutory appeals.” Moreover, a five-judge panel of this court currently has decisions under reserve on two appeals which raise the issue of when the actus reus of the offence of importing is complete.

Disposition

46For these reasons, I would dismiss the appeal.

Released: May 26, 2021 “A. H.” “Alexandra Hoy J.A.” “I agree. C.W. Hourigan J.A.” “I agree. B. Zarnett J.A.”

Overview

The roles of the preliminary inquiry judge and a reviewing judge