COURT OF APPEAL FOR ONTARIO
DATE: 20211102 DOCKET: C68428
Doherty, Watt, van Rensburg, Benotto and Nordheimer JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Justice Okojie Appellant
Counsel: Chris Sewrattan, Ashley Sewrattan and Raj Vijan, for the appellant Sarah Shaikh, Christopher Walsh and Jonathan Geiger, for the respondent Emily Marrocco, for the intervener, Attorney General for Ontario Owen Goddard and Rick Frank, for the intervener, Criminal Lawyers Association
Heard: February 23, 2021 by video conference
On appeal from the conviction entered by Justice Jennifer Woollcombe of the Superior Court of Justice on December 2, 2019, with reasons reported at 2019 ONSC 6898, and the sentence imposed on January 31, 2020.
Watt J.A.:
[1] The label on the FedEx package said “Beauty products”. The sender was Lucy Shighara of Malindi, Kenya. The package was addressed to “Abel Morrison” of 10 Haynes Ave., North York.
[2] The package was delivered to the appellant. At 10 Haynes Avenue in North York. From a person wearing a FedEx uniform and driving a FedEx truck.
[3] The appellant paid the duty owing to the delivery operator. He paid in cash, signed for the package, got a receipt, and drove away.
[4] About an hour later, in another town several miles away from where he got the package, the appellant was arrested on four charges having to do with the contents of the package. Heroin. Importing and having possession of heroin for the purpose of trafficking. And conspiracy to commit both offences.
[5] After a trial before a judge of the Superior Court of Justice sitting without a jury, the appellant was convicted of the counts charging importing and possession for the purpose of trafficking but acquitted of both conspiracy counts. He appeals those convictions and the sentence imposed.
[6] The reasons that follow explain why I would dismiss both appeals.
The Background
[7] The underlying circumstances are largely uncontroversial.
The Package
[8] The package with which we are concerned was sent by FedEx. Affixed to it was a document that designated the consignor as Lucy Shighara in Malindi, Kenya. The consignee was Abel Morrison of 10 Haynes Avenue in North York. The contents were described as “Beauty products”.
The Interception
[9] The package arrived at the FedEx consignment hub in Memphis, Tennessee on February 18, 2018. There, it was intercepted by officials at U.S. Customs and inspected. The contents of the package were contained in four smaller boxes: 96 tubes of mascara. Each tube contained heroin.
The Transfer
[10] Three days later, the package was turned over to the Canadian Border Services Agency (CBSA) in Mississauga, and thereafter to the RCMP who removed all but one gram of the heroin from the tubes and substituted it with regular mascara.
The Value of the Heroin
[11] The true value of the heroin contained in the package varied according to how it was sold. When sold at the kilogram level, the street value varied from $30,200 to $41,525. At the gram level, the value increased to between $67,950 and $83,050.
The Controlled Delivery
[12] Arrangements were made for a controlled delivery to the consignee, or anyone accepting delivery on the consignee’s behalf.
[13] Around mid-day on February 23, 2018 an undercover police officer wearing the uniform of a FedEx delivery operator drove a FedEx delivery truck to 10 Haynes Avenue in North York. After parking the vehicle, the officer approached the home and rang the doorbell. No one answered. She rang the doorbell again. And waited. No one answered the door.
The Appellant Arrives
[14] The undercover officer noticed a vehicle travelling towards the FedEx truck. The vehicle stopped and parked behind the FedEx truck. The appellant was in the front passenger seat of this vehicle.
[15] The undercover officer asked the appellant whether he lived at that address. The appellant said “Yes”, got out of the vehicle, and approached the officer. He had crumpled currency in his hand. The undercover officer said “A-bell”, deliberately mispronouncing the name of the consignee. The appellant corrected the mispronunciation, confirmed his identity as “Abel Morrison”, and repeated his name.
[16] The officer did not ask the appellant for any identification.
The Exchange
[17] The undercover officer explained that $38.87 was owing for duty and taxes on the package. She required either exact change or a credit card in payment. The appellant said that he did not have a credit card. He retrieved $40 in cash from his vehicle, gave the money to the officer, and told her to keep the change.
[18] The officer gave the appellant a receipt for the package. She explained that her scanner was not working. She gave the appellant a delivery tag and asked him to sign it to confirm receipt of the package. The appellant wrote four illegible letters on the tag.
[19] The officer gave the appellant the package. He took it to the vehicle in which he had arrived as a passenger and put it on his lap.
The Surveillance and Arrest
[20] Surveillance officers followed the vehicle in which the appellant was a passenger. They arrested him and his then girlfriend, who was driving the vehicle, in a parking lot in Newmarket.
The Investigation
[21] Advised of his right to counsel on arrest, the appellant told investigators that his girlfriend had “nothing to do with this”. In a satchel in the vehicle, police found three chequebooks and a banking client card in different names. They also found a credit card and health card in the appellant’s own name. When processed at the police station, the appellant told the police that he lived at 329 Cook Road in North York.
[22] The appellant showed police his cellphone which contained a text message exchange with “Chucks 3”. An incoming text read “Abel Morrison, 10 Haynes Ave”. The appellant had replied “ok”. No evidence was given about the date of this exchange.
The Grounds of Appeal
[23] The appellant urges two grounds of appeal against conviction. He contends that:
i. the offence of importing was complete before his involvement in picking up the package at the North York address; and
ii. the convictions of importing and possession for the purpose of trafficking are unreasonable because it was not the only reasonable inference from all the evidence that the appellant knew the package contained a controlled substance.
Ground #1: When Importing is Complete
[24] This, the principal ground of appeal, is also raised in the appeal in R. v. Jacinda Hudson (C65962). The appeals were heard together by a five-judge panel because the appellants allege that some prior decisions of this court are in conflict with the decision of the Supreme Court of Canada in Bell v. R., [1983] 2 S.C.R. 471. The reasons in both appeals are being released concurrently.
[25] The circumstances of the offences of which the appellant was convicted have already been described. Repetition is unnecessary. Brief reference to the reasons of the trial judge will provide a suitable footing for the discussion that follows.
The Reasons of the Trial Judge
[26] The first issue the trial judge considered on the importing count was whether the Crown had proven beyond a reasonable doubt that the appellant had any involvement in the act of importing the heroin. She described the positions of the parties in these terms:
The Crown says that the importation of the package with the heroin continued until Mr. Okojie took delivery of the package.
It is the defence position that in order to establish that the accused imported, the Crown must prove the accused’s involvement in either bringing the controlled substance into Canada or causing it to be brought into Canada. Counsel relies on the Supreme Court of Canada’s decision in R. v. Bell, [1983] 2 S.C.R. 471, 1983, SCJ No. 83. It is the defence position that the Crown has adduced no evidence that the accused had any personal involvement in bringing the package with the heroin into Canada. The defence says that the actus reus, or act of importing, was complete before he had any connection to the package and thus he must be acquitted.
[27] The trial judge considered that the importing offence did “not require the accused to have been involved with actually bringing the package into Canada”. This was because that, although the importing offence is complete in law when the contraband enters Canada, the offence is not complete in fact until the contraband reached its intended recipient. Relying on the decisions in R. v. Onyedinefu, 2018 ONCA 795 and R. v. Buttazzoni, 2019 ONCA 645, the trial judge concluded that the importation was completed in fact when the appellant took delivery of the package.
The Arguments on Appeal
[28] In addition to the parties, we also heard submissions from two interveners, the Attorney General of Ontario (“AGO”) and the Criminal Lawyers’ Association (“CLA”). Neither intervener advanced argument on the disposition of this or the grouped appeal. Each offered assistance on the scope of the importing offence and the precedential value of the decision in R. v. Foster, 2018 ONCA 53, 360 C.C.C. (3d) 213, leave to appeal refused [2018] S.C.C.A. No. 127, and its progeny.
The Position of the Appellant
[29] The appellant says that he could not have been found guilty of importing because the offence was complete before he became involved with the package containing the heroin. The decision in Bell governs when the importing offence is complete. Importing is not a continuing offence. The offence is complete at the time the contraband enters Canada. Bell left open the question of when contraband enters Canada. In this province, binding precedent holds that contraband enters Canada when it clears customs. Thus, the appellant should be acquitted of importing.
[30] The failure of the court in Bell to explain when contraband enters the country has produced disparate conclusions in appellate courts in Canada. In this court, the decisions in R. v. Tan (1990), 44 O.A.C. 324 (C.A.) and Foster interpret the “enters the country” mandate of Bell as “clears customs”. But the later decisions in Onyedinefu and Buttazzoni have erroneously extended “enters the country” to “transport to the domestic destination or recipient”. This has created confusion and yielded inconsistent results.
[31] The appellant assigns the blame for this ball of confusion to Foster which got the result right, but the reasoning wrong. The result is correct because it is consistent with Tan in its statement that contraband enters the country when it clears customs. But the reasoning in Foster is incorrect, premised on three errors:
i. the disposition in Bell – ordering a new trial – does not indicate that the importation was completed in the trial venue, Mirabel, Québec;
ii. a non-continuing offence, such as importing, is not distinguishable as complete in law and fact; and
iii. this court cannot anticipatorily overrule Bell.
[32] The disposition in Bell, the appellant urges, was controlled by the evidence found in Bell’s Québec home. This evidence was capable of supporting an inference that Bell was involved in causing the contraband to be brought into Canada, thus making him a party to the importing. The error in Foster was in concluding that the disposition in Bell meant that the Supreme Court majority concluded that the importing occurred or ended at Mirabel. Extending the actus reus of importing beyond customs clearance violates the binding precedent of Tan and invites courts to extend the endpoint in cases involving controlled delivery.
[33] The second flaw in this court’s reasoning in Foster is that it distinguishes completion of the offence in law, on the one hand, and completion of the offence in fact, on the other. This is a valid distinction in continuing offences. But, as Bell teaches, importing is not a continuing offence. Foster, the appellant argues, was at once overambitious and wrong to apply this distinction between completion in law and in fact – unique to continuing offences – to the non-continuing offence of importing. The same result could have been achieved without error simply by following the binding precedent of Tan.
[34] In addition, the appellant continues, Foster was wrong because it appears to have anticipatorily overruled Bell. Vertical precedent demanded adherence to Bell. Even the Supreme Court would be unable to overrule the horizontal precedent of Bell. We should reconsider Foster and its progeny because the reasoning in Foster is “unlawful, running contrary to Bell’s vertical precedent; illogical, because importing is not a continuing offence; and undemocratic, because Parliament should correct any perceived error arising from the Supreme Court’s interpretation of its criminal legislation”.
The Intervener CLA
[35] The CLA adopts the appellant’s argument that Bell must be followed. The decisions in Foster, Onyedinefu, and Buttazzoni effectively render the concurring judgment of Dickson J. in Bell the law in Ontario. This will result in convictions of importing for those whom the evidence fails to establish played any role in bringing controlled substances into Canada or causing those substances to enter Canada from abroad.
[36] The CLA says that the plain meaning of “import” and the legislative intention underlying the creation of the offence support a narrow definition of the term. Other jurisdictions have expanded the definition to include dealing with controlled substances in connection with their importation. But Parliament has not done so, and it is not open to this court to do so indirectly. Further, this unprecedented extension stigmatizes conduct that is properly the subject of discrete offences as “importing”. Such an expansion disproportionately harms marginalized groups and perpetuates discrimination in the justice system.
The Respondent
[37] The respondent sees no need to reconsider the recent authorities in this court impugned by the appellant. Adherence to precedent enhances the legitimacy and acceptability of judge-made law and by so doing enhances the appearance of justice. The first consideration for the court in deciding whether it should overrule a prior precedent is whether the earlier decision is wrong. Absent error, no basis exists to overturn prior precedent. Foster correctly applied Bell. Likewise, the authorities that apply Foster. No case for departure has been established.
[38] The functional approach that characterizes this court’s approach in Foster is not only faithful to the reasons of the majority in Bell, but also makes sense. It takes into account the myriad ways in which controlled substances may be imported and that crossing the border into Canada is a process, not something that happens in an instant or by crossing over an imaginary line.
[39] The Bell majority adopts the ordinary meaning of “import” – to bring or cause a controlled substance to be brought into Canada. The offence is complete when the substance enters the country. The physical and fault elements coalesce. But the Bell majority created no bright-line rule that defines when contraband enters Canada. This was left for the trial and intermediate appellate courts to determine in individual cases. This court did so in a manner consistent with, and in no way misapprehended the effect of, the disposition in Bell.
[40] The respondent contends that the analysis in R. v. Vu, [2012] 2 S.C.R. 411 – which distinguishes between offences “complete in law” and those “complete in fact” – is not confined to any particular type of offence. The court did not restrict this analysis to continuing offences, nor is such a submission sound in principle. A non-continuing offence may take time to commit. It may be committed at different points in time by different people. When an offence is completed should be determined on the facts of each case.
[41] The reasoning in Foster, the respondent contends, is a sensible approach to complex border-crossings. But the Foster approach is not limited to airports. All border-crossings can be a complex matrix of checkpoints and regulations. The Foster approach – that importing is not factually complete until the contraband clears customs and thus becomes available to the importer – effectively manages these complexities. It permits an assessment of what it means to truly “enter the country” on a case-specific basis. Both Onyedinefu and Buttazzoni represent a logical application of Foster in the controlled delivery framework because the object of the importation had not concluded when the importation was alleged to have occurred.
[42] The respondent says that the appellant has failed to establish any justifiable reasons for this court to overrule the precedents challenged on appeal. We do not lightly depart from prior precedent. We only overrule prior erroneous decisions if there are sufficient reasons to do so. When invited to do so, we weigh the advantages and disadvantages of correcting the error. We focus on several factors. The nature of the error. The effect on the parties and future litigants. And the administration of justice.
[43] In this case, as the respondent puts it, the analysis in Foster does not expand the scope of liability for importing beyond what the majority in Bell authorizes. The Crown must prove not only that an accused intentionally brought a controlled substance into Canada, or caused such a substance to be brought into the country, but also intended to do so with knowledge of the nature of the substance and its origins. These elements were established on the evidence adduced at trial. The legal principles in cases of importing are not in any state of uncertainty, nor are they inconsistent with the intention of Parliament to prevent devastating drugs from landing on Canadian streets.
The Intervener AGO
[44] The AGO submits that the common law of the offence of importing requires no revision or reconsideration in this province. The elements of the offence are being articulated and applied consistently with governing jurisprudence of the Supreme Court of Canada and with the plain meaning of the verb “import”. The applicable definition stigmatizes as importers only those persons who knowingly bring contraband into Canada from outside Canada, or who knowingly cause contraband to be brought into Canada as principals or parties to the offence of others. This is as it should be.
[45] The meaning to be assigned to the term “import” is important for the purpose of prosecutions conducted by the Attorney General of a province. These include importing firearms and related accessories under s. 103 of the Criminal Code, R.S.C. 1985, c. C-46. And importing child pornography, contrary to s. 163.1(3). The correct definition of “import” must consider its meaning through the broad lens of evolving and changing methods of bringing contraband into Canada. The meaning assigned should not focus on a discrete moment when a border is crossed, customs cleared, or contraband is received.
[46] Section 84(1) of the Criminal Code provides an exhaustive definition of “import” for the purposes of Part III of the Criminal Code (Firearms and Other Weapons). For those purposes, the term means “import into Canada and, …, includes the importation of goods into Canada that are shipped in transit through Canada and exported from Canada”. Sophisticated firearms importing schemes succeed because of the different roles played by various participants in the scheme. A definition of importing that would exclude some because their actions are not sufficiently linked to the event of border-crossing would fail to address the practical heart of the offence. Those who have the mens rea for the offence and whose actions are part of the process of moving the contraband to the intended recipient are properly convicted of importing. This is so regardless of the time of their involvement or the role they played concerning border-crossing arrangements.
[47] The AGO submits that when the offence of importing “ends” will be a question of fact to be determined on the evidence in each case. That point will be when the trier of fact determines that the contraband has arrived in the hands of the intended recipient. This will be the point at which importing becomes possession, or possession for the purpose of trafficking in the contraband.
[48] Nor does the correct definition of importing ensnare too many unsophisticated offenders. This argument overlooks the fact that to convict, the Crown must prove all the essential elements of the offence beyond a reasonable doubt. This includes the fault element. An intention to import. Knowledge of the nature of the contraband. And knowledge that it has come from outside Canada. The simple reality is that importing is a process. The current scope of the offence ensures that those essential to the success of importing schemes, including key domestic distributors and those who take receipt of internationally shipped packages of contraband, are properly convicted of what they do – importing.
The Governing Principles
[49] Some basic principles inform our decision in connection with this ground of appeal. Although the focus of the argument has been on the correctness of a series of decisions in this court and their compatibility with the decision of the Supreme Court of Canada in Bell, other principles – none of which are unique to the offence of importing – are of service in the analysis that follows. Some have to do with what is required to establish criminal liability. Others with the manner in which the essential elements of an offence may be proven. And the remainder with trial jurisdiction.
The Coincidence/Concurrence Principle
[50] Crimes consist of a physical element and a fault element. A variety of terms are used to describe these elements. Among them are actus reus and mens rea. Not only must each of these elements be proven beyond a reasonable doubt, the prosecution must establish that, at some time, these elements were concurrent. In other words, the physical element must be contemporaneous or coincident with the fault element: Glanville Williams, Criminal Law: The General Part, 2nd ed., (London, UK: Stevens, 1961), at para. 1, p. 2 (“CLGP”); Glanville Williams, Textbook of Criminal Law, 4th ed., (London, UK: Sweet & Maxwell, 2015), at para. 10-037, p. 276 (“TCL”). It follows that it is not enough that a mentally innocent act is followed later by mens rea. Nor does a later intent amount to a crime without another act in which it becomes manifest: CLGP, at para. 1, p. 2.
[51] On the other hand, it is not always essential that the physical and fault elements be completely concurrent. The determination of whether the fault element or mens rea coincides with the physical element or actus reus will depend to a large extent on the nature of the physical element. A series of acts may form part of the same transaction and so comprise the physical element of an offence. This is so irrespective of whether the offence involved is a continuing offence: R. v. Cooper, [1993] 1 S.C.R. 146, at p. 157-8. See also, Meli v. The Queen, [1954] 1 W.L.R. 228 (P.C.); TCL, at paras. 10-037-10-039, pp. 276-78.
The Modes of Participation
[52] Our criminal law does not distinguish among the modes of participation in an offence in determining criminal liability. Section 21(1) of the Criminal Code makes principals, aiders and abettors equally liable. A person becomes a party to an offence when that person, knowing of a principal’s intention to commit the crime, and with the intention of assisting the principal in its commission, does something that helps or encourages the principal in the commission of the offence: Vu, at para. 58, citing R. v. Briscoe, [2010] 1 S.C.R. 411, at paras. 14-18.
[53] Section 21(2) is a form of parasitic criminal liability capturing participants in a common unlawful purpose in specified circumstances. The accused is party to an offence that is committed by another participant in carrying out the common unlawful purpose provided the accused has the required degree of foresight that the incidental crime would be committed: R. v. Simon, 2010 ONCA 754, 263 C.C.C. (3d) 59, at para. 43.
Establishing Criminal Liability
[54] To establish the essential elements of an offence, thus the criminal liability of an accused for its commission, the Crown introduces evidence that is relevant, material and admissible. This evidence may be direct or circumstantial in nature. Or it may consist of a combination of both types of evidence.
[55] Circumstantial evidence gives rise to inferences, deductions of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings at trial.
[56] As a means of establishing a fact, thus an essential element of an offence and ultimately guilt, circumstantial evidence may invoke one or more chains of reasoning:
- prospectant, such as evidence of motive;
- concomitant, such as evidence of opportunity, means, or skill; and
- retrospectant, such as evidence of after-the-fact conduct.
[57] Evidence of after-the-fact conduct is circumstantial evidence that invokes a retrospectant chain of reasoning. The process of reasoning is that the subsequent occurrence of an act, state of mind, or state of affairs justifies the inference that an act was done, or state of affairs or of mind existed at a material time in the past, when the charged offence is alleged to have been committed: R. v. Adamson, 2018 ONCA 678, 364 C.C.C. (3d) 41, at para. 56.
[58] The reasoning process involved in the retrospectant use of circumstantial evidence is not offence-specific or limited to certain offences. As with any item of circumstantial evidence, evidence of after-the-fact conduct is receivable if it is relevant, material, and compliant with any applicable rules of admissibility: R. v. Calnen, [2019] 1 S.C.R. 301, at para. 107.
Trial Jurisdiction
[59] As a general rule, the courts of one province have no jurisdiction to try an offence committed entirely within another province: Criminal Code, s. 478(1). However, the Criminal Code recognizes that, in some circumstances, offences may be committed in more than one territorial division. As a result, the Criminal Code makes provision for the jurisdiction of courts to try offences extending over more than one “territorial division” as defined in s. 2 of the Criminal Code.
[60] Offences commenced in one territorial division and concluded in another are deemed to have been committed in each: Criminal Code, s. 476(b). In the result, the courts of either jurisdiction have the authority to try these cases.
[61] The offence of importing controlled substances may be committed anywhere in Canada. And one offence may occur in whole or in part at more than one place in Canada. For example, an importer from one territorial division may make all the arrangements and do all the acts necessary to bring about the importation of the controlled substance at another. In these cases, we can say that the importer has committed an offence which has occurred at two places, or an offence which has begun in one territorial division and has been completed in another. These offences may be tried where the contraband entered the country or where the acts or arrangements leading to the importation occurred: Bell, at p. 491.
The Importing Offence
[62] Importing a scheduled controlled substance is an offence under s. 6(1) of the Controlled Drugs and Substances Act (CDSA), S.C. 1996, c. 19. The punishment and mode of procedure depends on the Schedule in which the controlled substance is included.
The Statutory Definition
[63] The offence-creating provision, s. 6(1) of the CDSA, does not define or set out the essential elements of the offence of importing. Nor is “import”, in any of its forms, defined in the Interpretation Act, R.S.C. 1985, c. I-21. The CDSA does not incorporate by reference the definition of “import” as it may appear in any other federal enactment, as for example in s. 84(1) of the Criminal Code where “import” is defined for the purpose of Part III of the Criminal Code.
The Ordinary Meaning of “Import”
[64] The term “imports” in s. 6(1) of the CDSA is used as a transitive verb, its object, a scheduled controlled substance. In ordinary speech, “import” means to bring or introduce something from an external source to another place or destination. More specifically, “imports” means to bring in goods from another country. Importing posits a relationship between a source and a destination, a nexus more causal than temporal. The ordinary meaning of the term says nothing about when importing begins or when it ends.
The Authorities
[65] The principal source of assistance in assigning meaning to the term “imports” in s. 6(1) of the CDSA, more specifically to its temporal limits, is the jurisprudence commencing with the decision of the Supreme Court of Canada in Bell.
The Decision in Bell
[66] Bell was charged with importing cannabis and two related counts of possession of cannabis for the purpose of trafficking and simple possession of the same drug. The offence was alleged to have been committed at Mirabel, Québec, on or about April 18, 1979. The contraband was hidden in four gift-wrapped footstools shipped by air from Jamaica on Air Canada. Bell was the consignee of the shipment at his home address in St-Hubert, Québec.
[67] The shipment containing the footstools arrived in Toronto on April 10 or 11, 1979. On inspection, Customs officials found 6.7 pounds of cannabis secreted in the footstools. The RCMP were notified and, on their instructions, the footstools were shipped to their designated destination at Mirabel Airport. The RCMP removed all but 5 grams of the cannabis, re-assembled the footstools, and – after someone inquired about the parcels at the airport – repackaged and returned them to the airport. On April 18, 1979, the appellant picked up the parcels, paid the freight charges, signed an entry form at customs, obtained a customs release and took the parcels to his home.
[68] Bell was arrested at his home amid discarded wrapping paper and a dismantled footstool with its covering material removed. Police also found a piece of paper near the telephone on which was written a number corresponding to that of the Air Canada way-bill for the shipment and an address in Jamaica on the way-bill. The way-bill described the footstools as a gift.
[69] The trial judge directed a verdict of acquittal, not because the act of importation was complete when the contraband entered at Toronto, but because the conduct of the RCMP in extracting the cannabis broke the chain of possession and completed the act of importation before Bell obtained the goods.
[70] The Québec Court of Appeal set aside the acquittal entered at trial and directed a new trial on the count of importing. The court concluded that importing was a continuing offence that extended to the time the consignment was released from custody at Mirabel to Bell’s possession. The court also held that the intervention of the RCMP was irrelevant.
[71] Bell appealed to the Supreme Court of Canada as of right. There, he argued that the act of importation was complete when the shipment entered Canada on April 10 or 11, 1979. He had no involvement there. Bell also submitted that if any offence had been committed, it had occurred in Toronto, not within the jurisdiction of the Québec superior court.
[72] The majority judgment of four justices was given by McIntyre J. He concluded:
i. that importing a (then) narcotic is not a continuing offence;
ii. that importing bears its ordinary meaning of “to bring into the country or to cause to be brought into the country”;
iii. that the offence of importing is complete when the goods (narcotics) enter the country;
iv. that once the importing offence is complete, the possessor or owner of the contraband may be guilty of other offences, but the offence of importing has been completed and the importer, in keeping or disposing of the drug, has embarked on a new criminal venture;
v. that conviction of importing does not require that an accused carried the contraband into the country or was present at the point of entry; and
vi. that importing may be committed anywhere in Canada and the offence may occur in whole or in part at more than one place in Canada. The importer, from one part of Canada, may make all the arrangements and do all the acts necessary to bring about the importation at another place. Thus, the importer could be said to have committed an offence which has occurred at two places, or an offence committed in one jurisdiction and completed in another. The courts in either jurisdiction have authority to try the case.
See, Bell, at pp. 488-91.
[73] Dickson J. (as he then was) wrote separate reasons in which he reached the same result as the majority. He began his analysis by ascribing to “import” its ordinary and natural meaning: “to bring in (goods or merchandise) from a foreign country”. This means to bring in goods from anywhere outside Canada to anywhere inside Canada: Bell, at p. 477.
[74] For his part, Dickson J. saw no reason in principle or precedent to restrict the relevant location of importing to the actual point of border-crossing. Importing is a process. Although importing necessarily includes the act of crossing the border, importing extends to the point of intended final destination. The test is whether a direct link exists between the place of origin outside Canada and the destination inside Canada: Bell, at p. 477.
[75] As a principal in importing, an accused must bring in or cause to be brought into Canada goods from a foreign country. By definition, this requires crossing the Canadian border. A person who becomes involved only after the border-crossing may be an aider or abettor of the principal who brings the goods from outside Canada to a destination inside Canada: Bell, at p. 478.
[76] The essence of the reasons of Dickson J. appears in this passage:
The elements of an offence of importing are present as soon as the goods cross the border, but the offence is not over and done with until the goods have reached their intended final destination within Canada. Accordingly, a charge could be laid relating to the point of entry or of destination or anywhere in between. In this case there was evidence that the intended and actual destination within Canada was St-Hubert, but there were stops along the way at Toronto and Mirabel. In my view it was open to the Crown to charge importing at Toronto or at Mirabel or at St-Hubert.
See, Bell, at p. 481.
[77] Of some significance to the arguments advanced here is Dickson J.’s conclusion that it was of no consequence to his analysis whether importing is or is not regarded as a continuing offence: Bell, at p. 481. Dickson J. did not conclude that importing was a continuing offence. Rather he expressly found it unnecessary to do so. Nor did he say that his distinction between completion of an offence in law and completion of an offence in fact applies only to continuing offences.
The Decision in Foster
[78] Unlike Bell, Foster was not a case of controlled delivery. Foster brought 1.2 kilograms of cocaine into Canada hidden in her bra. CBSA officers located it after she was referred for secondary inspection following disembarkation from a flight from Jamaica at Pearson International Airport. At trial, she advanced the excuse of duress. The Crown resisted duress on the basis that Foster had a safe avenue of escape by reporting her predicament to law enforcement officials before the offence of importing was complete when she cleared customs. The jury rejected the excuse of duress and found Foster guilty of importing. This court dismissed her appeal from conviction.
[79] The Foster court expressed a preference for the reasoning of Dickson J. in his minority opinion concurring in the result in Bell. But, mindful of its obligation, despite this preference, the court followed the reasons of the majority to conclude that in Foster, the importing offence was not complete until the cocaine and its carrier had cleared customs at the conclusion of the secondary inspection. This conclusion is consistent with the prior decisions of this court in Tan, at para. 8, and R. v. Valentini (1999), 43 O.R. (3d) 178 (C.A.), at para. 54.
[80] In Foster, this court, faithful to the majority decision in Bell, did not conclude that importing was a continuing offence. In reaching our conclusion in Foster about when the importing ended, a point not determined by the Bell majority, we relied on not only what the Bell majority wrote, but also its conclusion, as the Québec Court of Appeal had decided, that a new trial should be ordered. This could only have occurred if there were evidence that the offence was committed in Mirabel. And there was evidence that supported an inference that Bell, in Mirabel, had caused, or been involved in causing, the cannabis to be brought into Canada. That evidence included items, found on a search of Bell’s residence, capable of supporting an inference that Bell was involved in causing delivery of the packages to Canada.
[81] The Foster court also found support for its conclusion in the distinction drawn by Dickson J. in Bell between an offence complete in law and an offence complete in fact. This distinction was adopted by Moldaver J. in Vu, a case involving the continuing offence of kidnapping. The analogy was not intended and should not be taken as a conclusion that importing is a continuing offence, or that the Foster court was following the minority, rather than the majority, in Bell.
The Decision in Onyedinefu
[82] In Onyedinefu, the appellant admitted he obtained a box delivered by FedEx. The box, which was sealed, contained 146 grams of heroin. It originated in India and came to Canada from the United States. At trial, the appellant testified that he was involved in several schemes to import goods from various countries. He posed as a realtor to gain access to empty houses where drop-offs of the imported goods could be made. He believed the package containing the heroin actually contained electronics for which he was to receive a fee of $800. The trial judge rejected the appellant’s version of events and convicted him of importing heroin and possession of heroin for the purpose of trafficking.
[83] In this court, the appellant argued that the offence of importing was complete before he took possession of the package, thus he could not be found guilty of that offence. This court disagreed, and observed that importing is a process that begins with the procurement of the contraband, its transport to a port of entry, and ultimately to a domestic destination or recipient. The offence was not factually complete until the appellant took possession of the package. He was an aider of the principals of the scheme: Onyedinefu, at paras. 7-8.
The Decision in Buttazzoni
[84] At trial, the appellant Buttazzoni was acquitted of importing, but convicted of conspiracy to import and possession of cocaine for the purpose of trafficking. The principal issue on appeal was whether the conviction of conspiracy to import was well grounded in law and in fact.
[85] A container was shipped from Guyana, its destination, “Moe’s Island Grocery” in Mississauga. When the container arrived by ship in Saint John, New Brunswick, CBSA staff inspected the container. It contained a quantity of canned and prepared food products, together with 20 empty skid pallets which served as space fillers. In the wood of 19 of these pallets were 112 kilograms of cocaine valued at between $3,920,000 and $8,960,000. Police removed the cocaine except for 1 gram and arranged for a controlled delivery.
[86] Police delivered the container to a railyard in Brampton. A man had leased a storage facility several days earlier. The only other person authorized to access the unit was the appellant. The other man arranged for a truck to deliver the container from the railyard to the storage facility. The appellant drove the other man to the storage facility to meet the truck. The appellant punched in the code to open the gate. Both men re-attended later that day and took delivery of the container. There was evidence of the appellant’s involvement with the shipment before it entered the railyard, as well as of his conduct at the storage facility when the container was delivered.
[87] The appellant argued that the importation ended when the drugs entered Canada and cleared customs at Saint John on May 28, 2012 – about two weeks before delivery of the container to the railyard in Brampton and its subsequent transport to the storage facility. The Crown was required but failed to prove that the appellant joined the conspiracy before it ended by the completion of its object, the importation of the cocaine.
[88] The Buttazzoni court rejected the argument. The court held that, following Onyedinefu, the importation was not factually complete until its Canadian recipient took possession of it on June 13, 2012, after it became available at the railyard.
The Decision in Anderson; Cumberbatch
[89] In R. v. Anderson; Cumberbatch, 2020 ONCA 780; leave to appeal refused 2021 CarswellOnt. 7082, CBSA officers intercepted a package addressed to Harley Eckert at an address in St. Catharines. The package, apparently sent from Jamaica, was labelled with a customs declaration listing various non-perishable food items as its contents. On inspection, cocaine was discovered. Police became involved. They removed all but one ball of cocaine and reassembled the package after installing a tracking device that would also trigger and alert the police when the package was opened. Police then obtained a general warrant to authorize a controlled delivery.
[90] The controlled delivery took place. The consignee signed for the package and put it in the trunk of his vehicle. A few hours later, the package was transferred to the rear seat of the Anderson’s vehicle by Cumberbatch, who had received the package from the consignee. The two appellants remained together for about an hour at the place of transfer before Anderson drove home and took the package with her into the house. About an hour later, the tracking device alerted police that the package had been opened. They entered Anderson’s home and found her standing by the opened package. The bags in which the cocaine had been found had been removed. They were being examined by another man in a backyard shed.
[91] The appellants and Eckert were convicted of importing and possession of cocaine for the purpose of trafficking. On appeal, Anderson and Cumberbatch contended that the conviction of importing was unreasonable because the offence was complete when the package was delivered to the consignee. Since their involvement occurred after the offence was complete, they could not be convicted of importing. At best, possession for the purpose of trafficking, provided the required elements of knowledge and control could be proven beyond a reasonable doubt.
[92] This court rejected the argument, which was different than the argument that the appellants had advanced at trial. There, the appellant had urged that the importation was complete when the drugs entered the country, even before the consignee took delivery. On appeal the appellants contended that the importation was complete when the consignee, as the first domestic recipient, received the package: Anderson; Cumberbatch, at paras. 14, 16.
[93] In Anderson; Cumberbatch, the court held that Buttazzoni did not stand for the principle that it is always the first domestic recipient who is the importer. It is the identity of the “ultimate” domestic recipient that is important. The offence of importing was not factually complete until the package was received by the ultimate recipient. In Anderson; Cumberbatch, the ultimate recipient was the man in Anderson’s backyard shed who was apparently searching for the cocaine in the packaging in which police had found it secreted: Anderson; Cumberbatch, at paras. 20-22.
The Current State of the Law
[94] This survey of Bell and subsequent decisions of this court in the ensuing decades leads me to several conclusions about the principles that govern the essential elements of importing and their proof.
[95] As with all true crimes, importing a controlled substance consists of a physical and a fault element. Each element must be established by relevant material and admissible evidence beyond a reasonable doubt. At some point, the two elements must coincide.
[96] The physical element in importing requires that an accused import a substance. That substance must be a controlled substance included in a Schedule under the CDSA.
[97] The fault element in importing requires that the accused intended to import a substance and knew that the substance was a controlled substance, though not necessarily the precise substance alleged.
[98] The majority decision in Bell teaches that the term “import”, in its various forms undefined in the CDSA, has no special or restricted meaning. It bears its ordinary meaning of bringing, or causing a controlled substance to be brought into the country. We also learn from the Bell majority that the offence is complete when the controlled substance “enters the country” and that importing is not a continuing offence, as for example, is possession, or as later determined in Vu, kidnapping.
[99] What we do not know from Bell, is what “enters the country” means – or more accurately put, when the “enters the country” requirement is completed or ends. We do know that the offence may be committed anywhere in Canada and, in all or in part, at more than one location. And that the courts in each place where it occurs have jurisdiction to try those charged there.
[100] Since Bell does not define “enters the country”, or at least its endpoint or outer limit, it has fallen to this and other intermediate appellate courts to do so – at a minimum in cases in which controversy exists about whether the evidence of an accused’s involvement satisfies the physical element of the offence.
[101] Any meaning assigned to “enters the country”, thus the endpoint or temporal limit of the physical element in importing, must be consistent with the decision of the majority in Bell. But it must also keep a weather eye on the purpose of the legislation – to prohibit dangerous drugs becoming available to the population of Canada – and the myriad ways, bounded only by the limits of human ingenuity, in which controlled substances may be brought in from abroad. Personal carriage. Mail or courier service. By air. By water.
[102] When the physical element in importing has been completed, its endpoint is important in the demonstration of an accused’s criminal liability. But, as we know, evidence of things said and done by an accused after an offence has been committed may assist in proof of that accused’s participation in the antecedent offence and demonstrate the fault element that accompanied it. Completion of the physical element is not the final curtain on proof of criminal liability.
[103] The appellant acknowledges that binding precedent in this province requires that we hold that contraband, such as controlled substances, enters the country when it clears customs. In this case, he says, that means the appellant should be acquitted. But if the appellant paid the duties owed to the impersonated FedEx employee, as the evidence shows, is he not hoisted on his own petard? The package cleared customs when he paid the duties owing, otherwise it would have remained under Customs control.
[104] Not every importation involves clearance through Customs. Consider an act of smuggling to an isolated location. Guns and drugs across the St. Lawrence River from New York State into Ontario. Or Quebec. The precise purpose – to avoid customs and its rigours. What clearance through Customs does is to result in the cessation of control over the contraband by the appropriate authorities, with the consequence that the contraband becomes available to the carrier, consignee, addressee, or their delegate and remains in Canada. Perhaps a more felicitous expression of the endpoint of importation is that it occurs when contraband from abroad enters Canada and is no longer under the control of the appropriate authorities.
[105] The appellant does not challenge the correctness of the decision in Foster. It is consistent with binding precedent. But, he says, its reasoning is flawed. The descriptives the appellant applies vary. Unlawful. Undemocratic. Anticipatorily over-ruling the binding precedent of Bell. Stripped of hyperbole and pejorative characterization, I take this to mean that the reasoning is legally wrong.
[106] The decision in Foster applies and is consistent with the majority decision in Bell. Left unanswered by Bell, by the appellant’s own admission, is the meaning to be assigned to the phrase “enters the country”. This, Foster concludes, in a case of personal carriage of the contraband, of bringing it into Canada, occurs when the contraband (and its carrier) clear Customs. This concludes the physical element of the offence. This endpoint does not mean that importing is a continuing offence. Nor is it inconsistent with what the majority in Bell decided. It reflects the law in this province as expressed in post-Bell authorities, the integrity of which is not challenged here.
[107] The decision in Foster involved a courier who brought the drugs into Canada from Jamaica. Although the drugs were physically in Canada when she arrived at Pearson International Airport, they and she remained in the control of the relevant authorities until she cleared Customs. It was only when she and the drugs cleared Customs that the drugs were no longer in the control of the relevant authorities and the offence of importing was complete.
[108] The circumstances here differ from Foster. The drugs were sent from Kenya by FedEx. When the package arrived in the United States, heroin was detected on customs inspection. The package and its contents were forwarded to Canada where authorities removed most of the drugs but retained control over the package and the drugs remaining in it. A warrant authorizing a controlled delivery was obtained. The authorities did not give up control over the package and its contents until the appellant, posing as the consignee, Abel Morrison, took delivery. It was at that time that the offence of importing was complete. The drugs were physically in Canada and apparently out of the control of the authorities. The circumstantial evidence, taken as a whole, established the appellant’s liability for importing.
[109] In some cases, as the example given in para. 104 illustrates, the drugs may be physically in Canada but never in the control of the authorities because of the manner in which the drugs have been brought into the country. In these cases, the offence of importing is complete when the drugs are physically in Canada. It will be for the Crown to establish that any person charged brought the drugs into Canada from abroad, or caused them to be brought into this country from abroad. The evidence relied upon to establish liability may be direct, or circumstantial, or a combination of both.
[110] A final point about the decision in Foster: the reference to the distinction between an offence being complete in law, on the one hand, and in fact, on the other.
[111] This distinction was referred to with apparent approval by Moldaver J. on behalf of the court in Vu in deciding that kidnapping was a continuing offence. Neither Moldaver J. in Vu, nor Dickson J. in his minority reasons in Bell, confined the distinction to continuing offences. In Foster, the reference to Vu and the distinction between completion of an offence in law and in fact was not essential to the decision that the importing was not complete until Foster and her contraband cleared Customs. Whether the distinction extends beyond continuing offences is best left to another day and should not form part of the analysis in importing cases until that decision has been made.
[112] The other authorities whose continued vitality and precedential value are challenged here – Onyedinefu and Buttazzoni – may be considered together. Each applied the principles of Foster to controlled deliveries. In each case, the argument was the appellant’s involvement occurred only after the importation was complete. It followed, the submission continued, that the appellant could not have been convicted of an offence that was complete before he became involved.
[113] To the extent that each applied the complete in law – complete in fact distinction from Foster, as I have already explained, that reasoning may be flawed, applicable only to continuing offences of which importing is not one. It should not be followed in determining whether liability for importing has been established. The standard that should be applied in connection with the physical element of the offence is whether the contraband has cleared Customs. Or, more generally, whether the contraband, having entered Canada from abroad, is no longer within or under the control of the Customs authorities.
[114] Without more, the mere fact that the principal evidence against an accused consists of things done or said after the physical element of the offence of importing has been completed does not mean that an acquittal will inevitably follow. Each case falls to be decided on its own facts. As is well known, evidence of after-the-fact conduct, including things done and said, may support an inference of prior participation and its accompanying fault element.
[115] Foster applied the standard I have described to a case in which the appellant brought the cocaine physically into Canada. She did so by secreting it on her person. She and the cocaine were and remained in the control of the authorities. Her conviction was consistent with Bell, Tan and Valentini. The importing offence was not complete until she and her cargo cleared Customs since only then was the contraband beyond the control of the authorities.
[116] The decisions in Onyedinefu and Buttazzoni both involved controlled deliveries where drugs had been detected prior to their arrival in Ontario. The conviction under appeal and in Onyedinefu was importing and in Buttazzoni conspiracy to import. Each applied the complete in law/complete in fact distinction from Foster. As I have already explained, that reasoning should not be followed unless it is approved by the Supreme Court of Canada.
[117] In Onyedinefu, the drugs were present in a package that the appellant admittedly brought into Canada but which he claimed he thought contained electronics. The package remained under the control of the authorities until the appellant picked it up. It was only at that point that the authorities gave up control. It was at that point that the importation ended. Despite the trial judge’s use of the complete in law/complete in fact analysis, the result would have been no different had the analysis followed the proper standard.
[118] In Buttazzoni, another case of controlled delivery, the appellant was acquitted of importing, but convicted of conspiracy to import. The court considered when the importation was complete because the Crown had to prove and the trial judge had to find that the appellant had joined the conspiracy before its object – importation of cocaine – was complete. The court concluded that the importation did not end until the co-accused picked up the container on behalf of the consignee, a grocery store. In reaching this conclusion, the court applied the complete in law/complete in fact reasoning.
[119] The conclusion reached by the Buttazzoni court would not have been different had the analysis applied the proper standard. There was ample evidence of Buttazzoni’s involvement with the shipment from Guyana before it arrived at the railyard to support an inference that his agreement with his co-accused included an agreement to import drugs into Canada. The court also concluded that the importation ended on the date the cargo was picked up at the railyard. The same result would fall on the correct analysis since the drugs remained in the control of the authorities until the consignee picked them up in the railyard.
[120] It follows from what I have said that, apart from rejecting the complete in law/complete in fact reasoning in Foster, Onyedinefu, and Buttazzoni, I would not overrule or otherwise qualify the decisions rendered in those cases. In each case it is for the trier of fact to determine on the whole of the evidence whether the Crown has proven beyond a reasonable doubt that the accused was responsible for the importation alleged, that is to say, that the accused brought the controlled substance into Canada or had it brought here from outside the country.
[121] Neither appellant invited us to overrule or otherwise qualify our previous decision in Anderson; Cumberbatch. In particular, we were not asked to reject its reference to the “ultimate recipient” as extending the offence of importing beyond what Bell and the other authorities would permit. In these circumstances, we consider it best to leave to another day whether that decision requires reconsideration.
The Principles Applied
[122] As I will briefly explain, I would not give effect to this ground of appeal.
[123] The first issue the trial judge considered was whether the appellant had been involved in the physical element of the offence – the act of importing the heroin. This was a contested issue at trial. The position of the appellant was that the physical element of the offence was complete before he had any connection to the package.
[124] The trial judge held that the offence of importing was not complete in fact until the contraband reached its intended recipient. She relied on the decisions in Foster, Onyedinefu, and Buttazzoni to support her conclusion.
[125] To the extent that the reasoning of the trial judge invoked the complete in law – complete in fact distinction, it is in error. But her conclusion, that the importation was completed when the appellant obtained the package from the impersonated FedEx delivery operator, was correct. It was only then that the packages were “in play” in Canada. It was only then that the controlled substance in the package – heroin – was no longer under the control of the appropriate authorities, thus became available to the consignee or addressee or their delegate and reached the point that would result in them remaining in Canada.
[126] The trial judge’s findings of fact were at once faithful to the evidence adduced at trial and supportive of the appellant’s participation in causing the heroin to be brought into Canada.
[127] When asked by the impersonated FedEx delivery operator whether he lived at 10 Haynes Avenue, the appellant responded affirmatively. He got out of the vehicle in which he had arrived there. He had crumpled currency in his hand. He asked how much he owed. He corrected the officer’s deliberate mispronunciation of the first name of the consignee. He repeated the full name of the consignee, “Abel Morrison”, twice without even having been advised of it by the officer. The appellant did not in fact live at 10 Haynes Avenue. He misled the officer into thinking that he did live there and that his name was “Abel Morrison”. He had received a text from “Chucks 3” that read: “Abel Morrison, 10 Haynes Ave.” The heroin in the package had substantial value. On arrest and after Charter advice, the appellant told investigators that his girlfriend, who was with him when he took delivery of the package, “had nothing to do with this”.
[128] This ground of appeal fails.
Ground #2: Unreasonable Verdict
[129] The core of this complaint is that the appellant’s belief that the package imported from Kenya contained a controlled substance was not the only reasonable inference from the whole of the evidence admitted at trial.
[130] The appellant acknowledged that the evidence, taken as a whole, was sufficient to support an inference that the appellant believed the package contained a controlled substance. However, that was not the only reasonable inference available, as is required by the authorities to sustain the finding.
[131] A brief reference to the trial judge’s reasons provides sufficient background to evaluate the merits of this claim.
The Reasons of the Trial Judge
[132] The trial judge explained why she was satisfied that the only reasonable inference from the totality of the circumstantial evidence received at trial was that the appellant knew that the package contained a controlled substance. She wrote:
First, I rely on the fact that the accused received a text message that provided him with the name Abel Morrison and the address of 10 Haynes Avenue. He responded “ok”. I view this as an indication that he knew that there was a delivery for Abel Morrison that he was to take receipt of at that address using a false name. This is some indication that he knew that there was something illicit about what he was doing.
Second, I consider the value of the package. As Hill J. explained in R. v. Ukwuaba, 2015 ONSC 2349, at para. 112, heroin trafficking is a commercial business for profit. Common sense dictates that those who own this sort of valuable illegal item seek to protect it against the risk of detection or loss. It makes sense, therefore that they would protect their investment by insuring that they have trusted insiders handling the drugs where possible. This necessitates that those who receive packages into Canada with valuable narcotics appreciate what it is they are receiving. Common sense powerfully suggests that Mr. Okojie knew what he was receiving.
Third, I consider the level of sophistication of the importing operation. Both parties agree that concealing the small heroin packages in the top of the mascara was sophisticated. This packaging would have been time consuming. The package with the mascara was shipped from Kenya. Given the amount of effort spent concealing the drugs and then getting them from Kenya into Canada, it just makes sense that the person receiving the package would know what is in it.
Fourth, I consider the words and actions of Mr. Okojie at the time that he took possession of the package, knowing that it was not addressed to him. I view his conduct as demonstrative of the fact that he was aware that there was a controlled substance in the package and that he was determined to ensure that he took possession of it, even if doing so required misleading the officer as to who he was. More specifically:
a. Mr. Okojie knew that there was a FedEx package being delivered to 10 Haynes Avenue. When Sgt. Gorgichuk first asked him if he lived there, he said he did. Given that he provided a different home address to Cst. Rimanelli at the police detachment after his arrest, it appears that he lied to Sgt Gorgichuk so that she would deliver the package to him.
b. Mr. Okojie also intentionally misled the officer into believing that he was Abel Morrison, the person to whom he knew the package was sent. When she mis-pronounced the first name of the person to whom the package was sent, he immediately corrected her and provided the last name Morrison. I find that he did this with the intention of making her believe that was who he was, even if he did not say so directly. I have no doubt that the accused was trying to appear to be the intended recipient of the package.
c. Mr. Okojie signed the door delivery tag to acknowledge taking possession of the package. What he wrote on the document is not really clear. I cannot conclude, as the Crown suggests, that he used a signature different from what he later used at the detachment. But, I do find that the act of signing for the package was a further step taken in his effort to hold himself out as the proper recipient of the package, Abel Morrison.
Fifth, I find that Mr. Okojie’s statement after his arrest that his girlfriend had nothing to do with this is some evidence that he knew that there was a controlled substance in the package when he took it. While the package was not addressed to his girlfriend, his utterance suggests that he knew that there were a small number of people who would be aware of its contents, that he was within that circle, and that he knew that his girlfriend was not in that circle. While I accept that Mr. Okojie could have been trying to mislead the police, I view his statement as a further piece of circumstantial evidence that he knew that there was a controlled substance in the package.
The Arguments on Appeal
[133] As I have said, the appellant accepts that the requisite belief that the package contained a controlled substance was a reasonable inference from the whole of the evidence received at trial. But that is not enough to prove this essential element beyond a reasonable doubt, much less to establish the appellant’s guilt. The required belief was not the only reasonable inference available on this evidence. Other reasonably possible beliefs were available. Explosives. Counterfeit money. Fraudulent banking instruments. Poison.
[134] The respondent accepts the standard of proof required when a finding of fact about an essential element of an offence, as well as the ultimate issue of guilt, rests solely on circumstantial evidence. Further, the respondent acknowledges that inferences consistent with innocence may be grounded on the absence of evidence, as well as unproven facts. However, the respondent reminds us, the other reasonable inferences consistent with innocence must find their footing in logic and experience applied to the evidence or lack of evidence, not speculation.
[135] In this case, the respondent continues, the proposed alternative inferences inconsistent with guilt – explosives, poisons, counterfeit money, and the like – are speculative, far-fetched theories, unmoored from logic and human experience. What is more, a relevant factor in evaluating the merit of this ground of appeal is that the appellant did not testify nor adduce any evidence in support of any alternative reasonable inference consistent with innocence.
The Governing Principles
[136] The governing principles are beyond debate.
[137] In a case in which proof of one or more essential elements of an offence depends exclusively or largely on circumstantial evidence, the inference of guilt or of an essential element of the offence must be the only reasonable inference to be drawn from the evidence as a whole: R. v. Villaroman, [2016] 1 S.C.R. 1000, at paras. 30, 34.
[138] Inferences consistent with innocence may, but need not, arise from proven facts. This is because these inferences may also arise from a lack of evidence: Villaroman, at paras. 35-36. To establish guilt, the Crown is required to negative these reasonable possibilities consistent with innocence, but need not negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of an accused: Villaroman, at para. 37. These other plausible theories or reasonable possibilities must be based on logic and experience applied to the evidence, or absence of evidence, not on speculation: Villaroman, at para. 37.
[139] To support a finding of guilt based entirely or substantially on circumstantial evidence, the circumstantial evidence, taken as a whole, and assessed in the light of human experience, must exclude any other reasonable alternatives: Villaroman, at para. 41; R. v. Ali, 2021 ONCA 362, at paras. 97, 98.
[140] A verdict is reasonable if it is one that a properly instructed jury, acting judicially, could reasonably have rendered. Where the verdict of the trial court challenged as unreasonable on appeal is based entirely or substantially on circumstantial evidence, the issue for the appellate court to determine is whether the trier of fact, acting judicially, could reasonably be satisfied that the appellant’s guilt was the only reasonable conclusion available on the evidence taken as a whole: Villaroman, at para. 55. It is fundamentally for the trier of fact to decide whether any proposed way of looking at the case is sufficiently reasonable to raise a doubt about the accused’s guilt: Villaroman, at para. 56.
[141] When a conviction based wholly or substantially on circumstantial evidence is challenged as unreasonable on appeal, the appellate court may consider the appellant’s failure to testify as indicative of the absence of any inference alternative to guilt: R. v. Corbett, [1975] 2 S.C.R. 275, at pp. 280-81; R. v. George-Nurse, 2018 ONCA 515, 432 D.L.R. (4th) 88, aff’d, 2019 SCC 12, [2019] 1 S.C.R. 570.
[142] A final point concerns the manner in which circumstantial evidence is to be assessed. Neither triers of fact at first instance, nor appellate courts on review for unreasonableness, examine individual items of circumstantial evidence separately and in isolation, adjudging them against the criminal standard and rejecting them should they fail to measure up to that standard. No individual item of circumstantial evidence is ever likely to do so. They are bricks with which to construct a wall, not the wall itself. In circumstantial cases, it is commonplace that individual items of evidence adduced by the Crown, examined separately and in isolation, have not a very strong probative force. But all the pieces of evidence have to be considered, each one in relation to the whole, and it is the whole of them taken together whose cumulative force must be considered and may constitute a basis for conviction: Coté v. The King (1941), 77 C.C.C. 75 (S.C.C.), at p. 76; R. v. Morin, [1988] 2 S.C.R. 345, at pp. 361-62.
The Principles Applied
[143] I would not accede to this ground of appeal.
[144] The appellant acknowledges that the cumulative force of the items of evidence relied upon by the trial judge can support the inference of knowledge of a controlled substance drawn by the trial judge. As Villaroman teaches, fundamentally, it was for the trier of fact to decide whether the proposed alternative inference was reasonable enough to raise a reasonable doubt about the appellant’s guilt.
[145] The trier of fact was not entitled to speculate about other plausible theories or possibilities. She was constrained by logic and experience that she was required to apply to the evidence or lack of evidence. The appellant did not testify. He did not otherwise provide any basis for an inference inconsistent with guilt. Nothing about explosives. Or poison. Or counterfeit money. Or fraudulent banking instruments, as are now said to have been reasonably possible inferences.
[146] This ground of appeal fails and with it the appeal from conviction.
The Sentence Appeal
[147] The appellant indicated that he also challenged the fitness of the sentence imposed upon him in the event that we set aside his conviction of importing, but not his conviction of possession of heroin for the purpose of trafficking. Since I would dismiss the appeal from both convictions, I do not reach the prospective sentence appeal.
Disposition
[148] For these reasons, I would dismiss the appeal in its entirety.
Released: November 2, 2021 “D.D.”
“David Watt J.A.”
“I agree. Doherty J.A.”
“I agree. K. van Rensburg J.A.”
“I agree, M.L. Benotto J.A.”
“I agree. I.V.B. Nordheimer J.A.”
