Court File and Parties

Court File No.: CR-17-1444 -00 Date: 2019-03-13 Ontario Superior Court of Justice

Between: Her Majesty the Queen And: Justice Uagbae Okojie, Defendant

Counsel: C. Shirtliff-Hines, for the Crown R. Vijan, for the Defendant

Heard: February 4, 5 and 6, 2019 Delivered Orally

Dawe J.

1Justice Uagbae Okojie stands charged with two offences: [1]

• Count 1: importing heroin into Canada (Controlled Drugs and Substances Act, s. 6(3))
• Count 3: using a forged document (Criminal Code, s. 368(1))

2The Crown presented its case primarily through an Agreed Statement of Facts, supplemented by testimony from two police witnesses. Mr. Okojie entered pleas of not guilty to both counts, but at the conclusion of the Crown’s case acknowledged through counsel that his admissions in the Agreed Statement of Facts supported a finding of guilt on the charge of using a forged document (Count 3).

3Mr. Okojie then testified in his own defence in relation to the heroin importing charge (Count 1). The sole live issue in this case is whether the Crown has proved Mr. Okojie’s guilt on this latter charge beyond a reasonable doubt.

The Evidence

The Crown’s evidence

4On or about February 8, 2017, someone using the name “Frank John” shipped a package from Nairobi, Kenya to Canada via a shipping company called Aramex. The package contained a hardcover children’s book titled “Big Cats” and was addressed for delivery to “Adam Nazio” at 30302 York Lanes, North York, Ontario. York Lanes is a shopping mall on the York University campus, and it is an agreed fact that the address and postal code related to “a post office box located inside the store ‘Ink Blotz’ inside York Lanes.” It is a further agreed fact that “[i]n February 2017 the P.O. Box at this address had recently been rented to “Adam Nazio”, but that the Ink Blotz store had not kept the renter’s identification on file.

5No evidence was presented about what happened to the package before February 16, 2017. However, the Crown adduced photographs of the package and its shipping label, which indicate that that after the package arrived at Aramex’s offices in Mississauga it was transshipped by Aramex to “Adam Nazio” via Purolator. It is an agreed fact that at some point before February 16, 2017 someone submitted an address correction to Purolator redirecting the package for delivery to a different address, 308 Cook Road, North York. However, no evidence was presented about whether the package was ever sent to the original York Lanes address before being redirected to the Cook Road address.

6It is an agreed fact that Mr. Okojie lived in a rented room at 308 Cook Road. In his testimony, he explained that he was a Seneca College student and that the building was a student rooming house.

7On the evening of February 16, 2017 Mr. Okojie went to a Purolator Shipping Centre in Vaughan and unsuccessfully tried to pick up the “Adam Nazio” package, telling the clerk it “was for his schooling at York University”. He gave the clerk the package’s tracking number and showed her an Ontario Photo ID card and a Social Insurance card, both in the name of Adam Nazio. The photo ID card had Mr. Okojie’s photograph and listed an address in Oshawa (“67 Cardillac [sic] Avenue South, Oshawa, ON L1H 5Z3”). It is an agreed fact that both documents were forged. [2] The clerk refused to give Mr. Okojie the package because she did not believe the ID documents were genuine and because she noticed that the address on the photo ID card did not match the package’s delivery address.

8The next day (February 17, 2017) a Purolator security manager named Clark Irving opened the package and inspected the contents. When he peeled back the paper on the front and back covers of the “Big Cats” book he found a beige substance concealed inside. He contacted the York Regional Police and later that day he gave the package to PC Iliada Leahy, along with security photographs showing Mr. Okojie attending the Purolator depot the previous evening. PC Leahy photographed the package and its contents before removing the beige substance from the book covers and replacing it with an inert material. She then resealed the package and made arrangements for a police officer posing as a Purolator delivery person to make a controlled delivery of the package to the Cook Road address. Since it was now the Friday before a long weekend the controlled delivery was arranged to occur on the following Tuesday (February 21, 2017).

9Also on February 17, 2017, Mr. Okojie approached a Purolator driver named Gordon Kellie who was in the vicinity of the Cook Road address to ask if he had a package on his truck for that address, which he did not. Mr. Okojie then gave Mr. Kellie a contact phone number (647-223-9619). Mr. Irving conveyed this information to PC Leahy and also advised her that someone identifying himself as Adam Nazio had called Purolator to complain about the late delivery of the package.

10On Tuesday, February 21, 2017, PC Jessica Hay posed as a Purolator delivery person and tried to deliver the package to 308 Cook Road, but no one answered the door. When informed of this, PC Leahy called the phone number Mr. Okojie had given to Gordon Kellie the previous Friday, which she had received from Clark Irving. She told the man who answered the call that she was calling from Purolator, and he identified himself as Adam Nazio. The man said he was on his way home from school and was 20 minutes away, and asked if the package could be left for him. PC Leahy told him it could not, but said that by chance the delivery truck had broken down on Cook Road and accordingly would still be there when the man arrived. She told the man to approach the truck and ask for the package.

11A short while later Mr. Okojie arrived at 308 Cook Road and after briefly going inside came back out and approached the Purolator truck. He showed PC Hay identification with his actual name and a letter bearing the typed signature “Adam Nazio” that asked Purolator to “release my Envelope to Justice Okojie my roommate as I wouldn’t be home today I’m off to school”. PC Hay gave Mr. Okojie the package. He was arrested before he went back inside the house. (Mr. Okojie’s evidence that he did not open the package before being arrested was uncontradicted).

12A cell phone was seized from Mr. Okojie incident to his arrest. No further evidence was adduced about this phone. Later that day the police obtained a warrant to search Mr. Okojie’s room in the 308 Cook Road house. PC Leahy did not participate in this search herself but testified about what she understood was seized by the police. The seized items included the “Adam Nazio” photo ID card; clothing resembling the clothes Mr. Okojie had worn during his February 16 trip to the Purolator depot; and three other cell phones and a MacBook computer. The police later obtained warrants to search the data on the various electronic devices. PC Leahy reviewed reports of these search results but the only items she noted as relevant were some Purolator searches made on the computer in the time frame “leading up to the arrest”. No further information about these searches was adduced at trial.

13Samples of the substance PC Leahy had removed from the front and back covers of the “Big Cats” book later tested positive for heroin and caffeine. The Crown called a police drug expert who testified that the amount of heroin found in the package – 149.6 grams – would have a street value of around $30,000. He also testified that Kenya was not a source country for heroin.

Mr. Okojie’s testimony

14Mr. Okojie testified and acknowledged doing the things recounted in the Agreed Statement of Facts. He explained that he is now 25 years old and came to Canada from Nigeria when he was 17. In 2016 he enrolled as a student at Seneca College’s York campus, and since the summer of 2016 had lived in a rented room at the 308 Cook Road rooming house.

15Mr. Okojie testified that in mid-2016 a mutual friend introduced him to a fellow Nigerian immigrant whom he knew only as “Chucks”, who was older than Mr. Okojie and who Mr. Okojie believed worked in construction. Chucks took Mr. Okojie under his wing and sometimes gave him money or bought him groceries. Mr. Okojie testified that he felt Chucks understood the struggles he was experiencing adapting to life in Canada and that he came to trust Chucks like a brother.

16In February 2017 Chucks offered to pay Mr. Okojie $500 to pick up a package that was going to be delivered to York Lanes on the York University campus. Chucks said the package contained books from the United States and explained that it would be inconvenient for him to have to come from his home in Brampton to pick it up himself, whereas Mr. Okojie lived near the York University campus. Mr. Okojie understood that Chucks was offering to pay him in order to compensate him for having to miss classes to pick up the package.

17Mr. Okojie testified that he “went to York Lanes to pick it up at first and they didn’t want to give it up”. When Chucks learned this he gave Mr. Okojie the fake “Adam Nazio” ID documents, using a passport photo that Mr. Okojie gave him. Mr. Okojie then tried to use these false documents to pick up the package from the Purolator depot in Vaughan on February 16, 2017. When Mr. Okojie advised Chucks that this attempt had also failed because the clerk had recognized the ID documents as fake, Chucks prepared the letter from “Adam Nazio” and gave it to Mr. Okojie to show to Purolator when they delivered the package to Mr. Okojie’s house. Mr. Okojie explained that he ran the Purolator searches that the police later found on his computer in order to check the anticipated delivery time against his class schedules. Mr. Okojie testified that he trusted Chucks and that it never occurred to him that the package might contain drugs.

18During cross-examination, Crown counsel took issue with various aspects of Mr. Okojie’s account. Among other things, Mr. Okojie had testified in chief that he had never used the name “Adam Nazio” until Chucks gave him the fake ID which he used to try to pick up the package from the Vaughan Purolator depot. Crown counsel challenged Mr. Okojie on this point by showing him a photograph of a Virgin Mobile document with the title “Important member info” that listed the “Member name” as Adam Nazio. Crown counsel put it to Mr. Okojie that this document had been photographed by the police when they searched Mr. Okojie’s room at 308 Cook Road, and suggested to him that “February 16, 2017 was not the first time [he] used the name Adam Nazio”. Mr. Okojie acknowledged that the document shown in the photo had been in his room and agreed further that it listed his email address and the phone number that he had given to the Purolator driver on February 17, 2017. However, he maintained that Chucks had given him the phone and this document at the same time he gave Mr. Okojie the Adam Nazio ID documents, explaining:

[H]e got me that number just for the purpose of having me pick up his package. … Chucks did everything. He got my email and he got this phone number and the whole Virgin Mobile document.

19Mr. Okojie denied ever using the name Adam Nazio before going to the Purolator depot on February 16, 2017. In re-examination, he denied any knowledge of or connection to the Oshawa address that was on both the Virgin Mobile document and the fake Adam Nazio photo ID card. [3]

20When testifying in chief, Mr. Okojie stated that after being arrested on February 21, 2017, he never saw Chucks again. However, in cross-examination Crown counsel put it to Mr. Okojie that Chucks’ real name was Chuckwuemaka Madumelu, and that he and Mr. Okojie were currently co-defendants on other criminal charges before the courts. Mr. Okojie eventually agreed that the man he knew as Chucks was indeed his co-defendant on these other charges, and acknowledged that his earlier evidence that he had not seen Chucks again after February 21, 2017 was untrue.

Analysis

The essential elements of the importing offence

21Count 1 of the Indictment charges Mr. Okojie with committing an offence under s. 6(3)(a) of the CDSA by “unlawfully import[ing] into Canada a substance included in Schedule 1”, particularized as heroin. It is undisputed that the package addressed to Adam Nazio did contain heroin at the time it entered Canada, although the drugs were removed by the police before the package was delivered to Mr. Okojie. The Crown’s burden is to prove beyond a reasonable doubt that Mr. Okojie either “imported” the package himself, or that he purposively aided or abetted the person who “imported” the package.

The actus reus of importing

22The leading authority on the meaning of “importing” in the drug offence context is the Supreme Court of Canada’s 1983 decision in Bell v. The Queen, [1983] 2 S.C.R. 471. [4] In that case a majority of the Court concluded that the offence of importing a controlled substance is not a continuing offence, but is instead completed at the time that the drug enters Canada. As McIntyre J. explained (at pp. 488-89):

It is apparent, in my view, that importing a narcotic cannot be a continuing offence. I do not find it necessary to make extensive reference to dictionaries in order to define the word “import”. In my view, since the Narcotic Control Act does not give a special definition of the word, its ordinary meaning should apply and that ordinary meaning is simply to bring into the country or to cause to be brought into the country. With the utmost respect for judges who have taken a different view, I am of the opinion that the characterization of importing a narcotic as a continuing offence is misconceived. The offence is complete when the goods enter the country. Thereafter the possessor or owner may be guilty of other offences, such as possession, possession for the purpose of trafficking, or even trafficking itself, 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.

23McIntyre J. explained further that “to convict of importing, it is not necessary to show that the accused actually carried the goods into the country”. Rather, it is sufficient for the Crown to establish that he or she made “all the arrangements and [did] all the acts necessary to bring about the importation of narcotics”. A person can also be convicted as a party to the offence of importing by applying the ordinary principles of party liability under s. 21 of the Criminal Code.

24Dickson J., as he then was, wrote his own separate reasons in Bell in which he dissented from the majority’s interpretation of the scope of the importing offence, although he concurred with the majority in the result. In his view (at pp. 477, 481):

Importing is a process which, although it necessarily includes the act of crossing the border, extends to the point of intended final destination.

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.

25Dickson J. explained (at pp. 478-79) that under his proposed approach:

To “actually commit” importing, an accused must bring in, or cause to be brought in, to Canada, goods from a foreign country; this, by definition, necessitates crossing the Canadian border. Someone who becomes involved only after the border crossing, however, may be aiding and abetting a person bringing the goods from outside Canada to a given destination inside Canada. [Emphasis added.]

26In contrast, under the Bell majority’s approach, someone who only becomes involved in aiding the importer “after the border crossing” cannot be held liable as a party to the offence of importing the contraband goods, even though he or she can still potentially be successfully prosecuted for other offences such as trafficking or possession or attempted possession of the contraband.

27More recently, in R. v. Foster, 2018 ONCA 53, Watt J.A. of the Ontario Court of Appeal undertook a detailed and scholarly re-examination of the law of importation. He explained (at paras. 99-102):

As the majority in Bell teaches, the enabling legislation, now s. 6(1) of the CDSA, does not define the offence of importing a controlled substance. What we learned from the Bell majority is that the term “import” means to bring into Canada from elsewhere, or cause to be brought into Canada from elsewhere, a controlled substance.

We also learned from the Bell majority that the offence of importing is complete when the contraband “enters the country”. The offence is complete when the actus reus and mens rea are conjoined. Thereafter, a person in possession of the contraband may commit another offence, such as possession or possession for the purpose of trafficking, but is not then guilty of importing. In other words, the coalescence of actus reus and mens rea terminates the importing offence. What occurs thereafter is no longer importing, but something else.

The final point that emerges from the majority’s reasons in Bell is that importing is not a continuing offence. The offence is complete with the conjunction of actus reus and mens rea. And this happens when the contraband “enters the country”, a phrase that says nothing definitive about when the offence begins or ends.

Were I free to do so, I would follow the reasoning of Dickson J. in his minority opinion in Bell. Importing contraband is a process. It begins elsewhere with procurement of the contraband, followed by its transport, by some means or other to a point of entry, and ultimately to a domestic destination or recipient. To posit its completion upon entry seems at odds with what importing is all about.

28Despite his own preference for Dickson J.’s approach, Watt J.A. recognized that he was bound by the Bell majority decision. However, he reasoned that while contraband may “enter the country” when it first physically arrives in Canada, it “remain[s] in limbo” until such time as it “clear[s] customs undetected”. [5] Accordingly, he held that the offence of importing continues until the contraband goods being imported have made it through customs, which on the facts of Foster was sufficient to determine the live issue in that case. [6] However, Foster does not suggest that the offence of importing continues until the contraband goods reach their final recipient in Canada, which was Dickson J.’s position in Bell but is directly contrary to the Bell majority holding.

29On the Bell majority approach, as interpreted by the Ontario Court of Appeal in Foster, the “importation” of the heroin hidden inside the covers of the “Big Cats” book was complete at the point that the package containing the book cleared customs. While there is no evidence before me as to exactly when this happened, it must have occurred at some point before Aramex transshipped the package to “Adam Nazio” via Purolator. Likewise, while no evidence was adduced as to exactly when Aramex gave the package to Purolator, this evidently happened some time before February 16, 2017. Accordingly, on the Bell/Foster approach, by February 16, 2017, the actus reus of the “importing” offence was already complete.

30As discussed above, the efforts Mr. Okojie made between February 16 and 21, 2017 to take delivery of the Purolator package are undisputed. However, under the Bell/Foster approach none of these acts can properly be seen as constituting the actus reus of aiding the offence of importing, which by that time was already complete. Accordingly, to establish Mr. Okojie’s guilt on the importing charge the Crown must prove that he did something at an earlier date, before the package arrived in Canada and cleared customs, to either (i) arrange the shipment of the package from Kenya; or (ii) aid or abet the person who arranged the shipment. Since there no direct evidence that he did either of these things, his guilt on the importing charge would depend on whether his prior active involvement in the importing scheme can be inferred circumstantially.

31However, the Crown disputes this interpretation of the elements of the importing offence, relying on another recent decision of the Ontario Court of Appeal, R. v. Onyedinefu, 2018 ONCA 795, which was released some eight months after Foster. In Onyedinefu, the Court stated (at paras. 7-8):

The offence of importing was not factually complete until the appellant took possession of the package. The appellant’s role in the importing was aiding the principals in the scheme.

After a careful review and consideration of Bell v. The Queen, [1983] 2 SCR 471 - which the appellant principally relies on – this court in R. v. Foster, 2018 ONCA 53, held at para. 106: while “importing may be legally complete on entry into Canada, it is not factually complete” until the drugs clear customs and become available to the ultimate recipient. Thus, importing is a process that begins with the procurement of the contraband, its transport to a point of entry, and ultimately to a domestic destination or recipient. Here the facts are that the importing of heroin was complete in law when it entered Canada and in fact when the appellant, who was the Canadian recipient, took possession of it. [Emphasis added.]

32On its face, this passage can be read as endorsing Dickson J.’s minority approach in Bell, which treats the offence of importing as “not over and done with until the goods have reached their intended final destination within Canada.” [7] On Dickson J.’s approach, a person who helps an importer obtain possession of drugs after their arrival in Canada could still be held liable as a party to the offence of importing. However, as discussed above, the Bell majority expressly rejected this approach.

33While I acknowledge that a literal reading of Onyedinefu supports the Crown’s position, I do not think the Ontario Court of Appeal can be understood as having meant to change the law in Ontario in this manner. I reach this conclusion for four main reasons:

(i) Onyedinefu cites and purports to follow both Bell and Foster

(ii) Under the principle of stare decisis, majority decisions by the Supreme Court of Canada are binding on all lower courts, including the courts of appeal, and can only be reversed or substantially altered by the Supreme Court of Canada itself;

(iii) In Foster, decided just a few months earlier, Watt J.A. exhaustively reviewed the law and expressly concluded, albeit reluctantly, that he was bound by the Bell majority decision and was accordingly precluded from adopting Dickson J.’s contrary view of the law of importation. The Onyendinefu panel cannot plausibly be understood as having intended to depart from this aspect of Foster, particularly since Watt J.A. was also a member of this panel;

(iv) The Court’s suggestion in Onyedinefu that the offence of importing is not “factually complete” until the intended Canadian recipient takes possession of the contraband goods is arguably obiter on the facts of the case. The accused in Onyedinefu had admitted that he was “involved in several schemes to import goods from various countries” [8] and had acknowledged that he had aided these schemes by arranging delivery addresses for the imported goods. He does not appear to have claimed that he only became involved in these schemes after the goods had arrived in Canada. Rather, his sole defence appears to have been that he had not known that the shipments he was intentionally facilitating would contain drugs.

34For all of these reasons, I do not believe Onyedinefu can properly be understood as intending to depart from the majority holding in Bell, or as adopting Dickson J.’s dissenting interpretation of the importing offence. In any event, the majority decision in Bell remains binding on me until such time as it is overturned or modified by the Supreme Court of Canada.

35It should also be noted that the distinction drawn by the Court of Appeal in Onyedinefu between an offence being “legally” but not “factually” complete can be traced back to the Supreme Court of Canada’s decision in R. v. Vu, 2012 SCC 40, where the Supreme Court held that kidnapping is a continuing offence, and that a person who aids in the subsequent confinement of a kidnapping victim can accordingly be properly convicted as a party to kidnapping rather than only as a party to the offence of forcible confinement. While Vu reverses McIntyre J.’s obiter comment in Bell that “the offence of kidnapping would not be a continuing offence”, Vu does not reverse the core holding in Bell “that importing a narcotic cannot be a continuing offence”. [9] Foster modifies Bell to the extent that it holds that the offence of importing is not complete until the point that contraband has cleared customs and thus becomes available for delivery to the intended recipient. However, Foster does not go so far as to characterize importing as a continuing offence that is not “factually complete” until the contraband goods are actually delivered. Such a holding would in my view be irreconcilable with the Bell majority judgment.

36In summary, I consider myself still bound by the majority decision in Bell. However, in the event that I am incorrect and that Onyedinefu does change the law in Ontario in the manner that the Crown contends, I will go on to consider the impact of any such change on my conclusions regarding Mr. Okojie’s culpability on Count 1.

The mens rea of importing

37It is well-settled that importing is a subjective mens rea offence that requires proof that the accused either knew about the presence of the drugs in question or was wilfully blind to their presence. The Crown must also prove that the accused subjectively intended to import the drugs. As Hill J. noted in R. v. Ukwuaba, 2015 ONSC 2953 at para. 102, “[k]nowledge of the illicit drug’s presence and the intent to import must precede the narcotic’s entry to Canada”. In R. v. Atuh, 2013 ABCA 350, the Alberta Court of Appeal explained (at para. 7):

To prove that a recipient is guilty of importing, something more than receipt and knowledge of receiving a controlled drug is required to prove that the recipient was either a principal in, or party to, importing. Here the trial judge did not turn his mind to whether Atuh knew where the drugs were coming from. … [T]he reasons relating to the conviction for importing do not address the issue of Atuh’s knowledge, not only of the fact that the books contained drugs, but also the origin of the drugs. In other words, the Crown must prove that Atuh knew that the drugs he knowingly expected and accepted were from out of the country. [Emphasis added.]

See also R. v. Gill, 2017 ONSC 3558 at paras. 73-79.

Assessment of the Evidence

38Mr. Okojie testified and denied knowing or suspecting that the package he ultimately took delivery of had at one time contained drugs. [10] If I believe Mr. Okojie’s evidence on this point, I must obviously acquit him of the importing charge, because on his account he did not have the requisite mens rea for that offence. Likewise, I must acquit him on this count if his evidence leaves me with a reasonable doubt, even if I do not affirmatively believe it. Finally, even if I were to entirely reject Mr. Okojie’s evidence, I would still have to consider whether, on the entirety of the evidence that I do not entirely reject, I am convinced of his guilt beyond a reasonable doubt. When considering this latter question I must bear in mind that a reasonable doubt can arise both from evidence and from the absence of evidence.

39I am also entitled to accept some, all or none of Mr. Okojie’s evidence. As I will explain in more detail below, there are some significant aspects of Mr. Okojie’s testimony that I do not accept. However, I do accept his evidence that it was his friend Chucks who enlisted him to pick up the Purolator package, even though I do not accept the entirety of Mr. Okojie’s account of his dealings with Chucks. Moreover, on my consideration of the evidence as a whole, and having regard to the absence of evidence, I find it more likely than not that it was Chucks or some other unknown confederate of Chucks, rather than Mr. Okojie himself, who arranged to have the package containing heroin shipped from Kenya. Some of the factors that support my conclusion on this point include:

• Crown counsel does not dispute that “Chucks” is a real person, namely, a man named Chuckwuemaka Madumelu, who is Mr. Okojie’s co-accused on other pending charges;
• Although it was established in evidence that the police searched Mr. Okojie’s room and his electronic devices, no evidence was presented that they found any documents in his room or electronic communications on his devices relating to the shipment of the package from Kenya or the rental of the York Lanes post office box;
• There is no evidence that these police searches revealed any indication that Mr. Okojie is himself a drug dealer who would have had reason to import heroin to resell himself;
• The Crown did not challenge Mr. Okojie’s description of himself as an impoverished college student who lived in a rooming house. This raises questions about whether he would have had the financial means to purchase a substantial quantity of heroin on his own;
• As a matter of common sense, it would be an obvious precaution for someone engaged in importing a large quantity of heroin to try to insulate themselves from the risk that the drugs might be detected in transit by employing a middleman to take delivery of the package.

40While it is certainly possible that it was Mr. Okojie who personally arranged the shipment from Kenya and then successfully covered his tracks, his later actions between February 16-21 do not reveal any similar display of tradecraft. It makes little sense to imagine that after carefully and skilfully ensuring that no trace of his communications with “Frank John” were left on his computer or other electronic devices, Mr. Okojie would then redirect the Purolator package to be delivered to his own home. In my view, it is more likely that Mr. Okojie was not the directing mind behind the importing scheme but was instead hired by the principals, who wanted to shield themselves from detection and arrest. To at least this extent I believe and accept Mr. Okojie’s evidence.

41The more difficult question is whether Mr. Okojie, while not himself the principal behind the importation of the heroin, nevertheless did something to actively aid or abet the principal before the drugs arrived in Canada and cleared customs. While there are any number of forms of assistance Mr. Okojie could conceivably have provided, the only one with any significant affirmative support in the evidence is the possibility that he agreed to play the role of “Adam Nazio” before the drugs were shipped and entered Canada.

42Since there is no direct evidence that Mr. Okojie did assist the principals in this or any other way before the drugs entered Canada, I must weigh the possibility that he did so against any “other plausible theor[ies]’ and ‘other reasonable possibilities’ which are inconsistent with guilt”: R. v. Villaroman, 2016 SCC 23 at para. 37. As Cromwell J. explained in Villaroman, “the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.” Moreover, while these other reasonable possibilities do not have to be affirmatively supported by evidence, in the case at bar Mr. Okojie testified that he only became involved in the scheme to take delivery of the Purolator package shortly before February 16, 2017, and that it was Chucks, and not him, who created the “Adam Nazio” persona and who supplied Mr. Okojie with the false identification documents and the cell phone in Adam Nazio’s name.

43In my view, the possibility that Mr. Okojie was being truthful on these points cannot be rejected beyond a reasonable doubt. Indeed, my doubts are substantially reinforced by the other evidence and by some significant gaps in the Crown’s case. For instance:

• As noted previously, there is no evidence directly linking Mr. Okojie to the shipment of the package from Kenya;
• There is no evidence as to whether it was Mr. Okojie or some other person who rented the York Lanes post office box that was the package’s original destination address;
• No evidence was adduced linking Mr. Okojie to the Oshawa address used to create the fake “Adam Nazio” ID card and linked to the cell phone account in Adam Nazio’s name;
• No admissible evidence was adduced establishing that Mr. Okojie ever used the Adam Nazio pseudonym prior to February 16, 2017.

44On this latter point, the Crown argued that because the Virgin Mobile document that was apparently photographed by the police during their search of Mr. Okojie’s room states: “Start date: December 21, 2016”, the photograph can be used to establish as fact that the cell phone account was set up on that date. The Crown had not given any previous indication that it was seeking to have the photograph admitted for a hearsay purpose – that is, to establish the truth of the contents of the document that appears in the photograph. Crown counsel nevertheless argued in closing submissions that the photograph was admissible for this purpose on two alternative bases: (i) because it had been entered into evidence “on consent”, by which Crown counsel apparently meant without active opposition by the defence, or (ii) under the “documents in possession” rule.

45In my view, neither argument is well-founded. Hearsay evidence – including documentary hearsay – is presumptively inadmissible for the truth of its contents. A party who seeks to have an out-of-court statement or document admitted for its truth must justify its substantive admissibility either under a traditional exception to the hearsay rule or under the principled approach. A party cannot sidestep this burden simply by putting the statement or document into evidence and hoping that the opposing party fails to object. Indeed, since hearsay statements and documents are often properly admissible for legitimate non-hearsay purposes, the opposing party may have no grounds to object to a statement or document becoming part of the evidential record, particularly when, as here, the other party has given no indication that it is seeking to rely on it for a hearsay purpose. Accordingly, the lack of any defence objection to the photograph being made an exhibit does not make the photo substantively admissible as proof of the truth of the contents of the document shown in the photo.

46The “documents in possession” rule also does not assist the Crown. As the authors of Phipson on Evidence [11] explain, in a passage adopted by the Ontario Court of Appeal in R. v. Bridgman, 2017 ONCA 940 at para. 70:

Documents which are, or have been, in the possession of a party will … generally be admissible against him as original (circumstantial) evidence to show his knowledge of their contents, his connection with or complicity in, the transactions to which they relate, or his state of mind with reference thereto. They will further be receivable against him as admissions (i.e. exceptions to the hearsay rule) to prove the truth of their contents if he has in any way recognised, adopted or acted upon them. [Italics in original.]

47In the case at bar, the Crown was entitled to show the photograph of the document to Mr. Okojie and question him about it both to establish a further circumstantial link between him and the Virgin Mobile cell phone account, and in order to question him about his state of mind in relation to the account and the associated phone number. However, in order to go further and have the photograph of the document admitted as hearsay, the Crown was required to establish that Mr. Okojie had “recognized, adopted or acted upon” the document. Mr. Okojie never “recognized or adopted” the specific aspect of the document the Crown now seeks to rely on for its truth – namely, the December 21, 2016 “start date”. Indeed, Crown counsel did not direct his attention to this date in cross-examination or ask him any questions about it, [12] but merely put it to Mr. Okojie in general terms that “February 16, 2017 was not the first time [he] used the name Adam Nazio”, which he denied. In these circumstances, Mr. Okojie cannot be said to have ever “recognized or adopted” as true that the account was created on December 21, 2016. Indeed, he expressly denied any knowledge of the creation of the account, which he attributed to Chucks. In these circumstances, I am not satisfied that Mr. Okojie necessarily knew that this date appeared on the document merely because the document was apparently found in his room. As Dawson J. noted in [R. v. Ahmad, 2009) at para. 17 (Ont. Sup. Ct.):

[O]nce possession of the item is established (which in the case of a document requires proof of knowledge of the item but not of its contents) the doctrine provides that knowledge of the contents of the item may be inferred by the trier of fact based on a consideration of all of the evidence. However, this is permissive not mandatory and the trier of fact is free to reject such an inference if they decide it is not warranted. [Emphasis added.]

48In the case at bar, I am not satisfied that the inference that Mr. Okojie knew about the date on the document is warranted. Indeed, it would in my view be plainly unfair to draw this inference when the date was never put to Mr. Okojie in cross-examination and he was never given an opportunity to explain what he knew about it.

49I also do not accept the Crown’s argument that by using the cell phone apparently associated with the Virgin Mobile account Mr. Okojie can properly be said to have “acted upon” the Virgin Mobile document itself. In my view, the inference that a party who “acts upon” a document implicitly acknowledges its truth can only be drawn when there is some logical chain of reasoning that makes this inference supportable in the particular circumstances. In the case at bar, Mr. Okojie’s admitted use of the cell phone between February 17 and 21, 2017 does not in my view logically support any conclusion either about when the associated cell phone account was first created or about Mr. Okojie’s knowledge of this date.

50In any event, I would not be prepared to place any substantive weight on the contents of the Virgin Mobile document shown in the photograph for an entirely different reason, namely, the Crown’s complete failure to comply with the “best evidence rule”. [13] As Charron J.A. (as she then was) explained in R. v. Shayesteh (1996), 111 C.C.C. (3d) 225 at p. 252 (Ont. C.A.):

The parties (usually the Crown) should endeavour to put forth the best evidence “that the nature of the case will allow” (17 Hals., 4th ed., pp. 8-9, para. 8) for consideration by the triers of fact. Such evidence can then be supplemented by secondary evidence to the extent that such secondary evidence remains relevant. What particular use will be made of the evidence during the course of the trial then becomes essentially a matter of discretion for the trial judge depending on the particular circumstances of any given case.

51In the case at bar, the Crown did not put into evidence the actual Virgin Mobile document that the police apparently found in Mr. Okojie’s room, but instead tendered a poor-quality photograph of only a single page of this document, [14] in which part of this page is obscured by a hand (presumably that of the police officer who took the photograph). The Crown made no attempt to explain or justify why it was necessary to rely on poor-quality secondary evidence of the document rather than on the document itself, which the police could easily have seized and may very well have seized. The Crown could also have easily established the date when the Virgin Mobile account was created by subpoenaing a representative of the telecom and adducing business records through such a witness. In these circumstances, even if I thought there was a proper legal basis for admitting the Virgin Mobile document found in Mr. Okojie’s apartment for the truth of its contents, I would not have been inclined to exercise my discretion to allow the Crown to rely on the photograph of the document as an evidentiary shortcut.

52Finally, I should note that even if the Crown had adduced properly admissible evidence that the “Adam Nazio” cell phone account was created on December 21, 2016, I would still have been left with a reasonable doubt about Mr. Okojie’s involvement in arranging the shipment of the package from Kenya. Although the package was apparently sent from Kenya on or about February 8, 2017, the Crown’s drug expert testified that Kenya is not itself a source country for heroin, so it is a reasonable possibility that it might have taken the shipper some time to obtain the drugs before shipping them to Canada. In these circumstances, it is entirely possible that a third party – Chucks or some other unknown person – arranged the shipment in December, 2016 and created the fictional “Adam Nazio” persona at that time with the intention of having Mr. Okojie play the role at a later date, but that Mr. Okojie was only brought into the scheme some time later after the package with the drugs had arrived in Canada. Even if the Virgin Mobile document had been substantively admissible, it would not have permitted me to conclude that Mr. Okojie’s evidence of when he was brought into the scheme was necessarily false. Moreover, as discussed further below, even if I were able to conclude that Mr. Okojie was brought into the scheme by the principals prior to the shipment of the drugs from Kenya, I would still have been left with a reasonable doubt about whether he knew that the drugs he was being hired to pick up were being imported from a foreign country.

53In view of my conclusion that the offence of importing was complete at the point that the package containing the drugs entered Canada and cleared customs, it follows that if I have a reasonable doubt about whether Mr. Okojie was actively involved in arranging the shipment or aiding those who made the arrangements, I must acquit him of the importing offence on the basis that it has not been proved on the criminal standard that he committed the actus reus either of the offence of importing or of aiding that offence. On this analysis, it is irrelevant whether Mr. Okojie later knew or subjectively suspected that the package he had been hired to pick up contained illegal drugs.

54However, if my view of the law of importing is incorrect and if Mr. Okojie’s acknowledged actions between February 16-21, 2017 do constitute the actus reus of aiding the importing of heroin, I must go on to consider the issue of whether the Crown has proved that he acted with the requisite mens rea.

55In this regard, I do not believe Mr. Okojie’s testimony that he neither knew nor suspected that the package he had been hired to pick up contained contraband drugs, nor does his evidence on this point leave me with a reasonable doubt. While I accept that it is at least reasonably possible that Chucks did not disclose the truth to Mr. Okojie, it defies credulity that Mr. Okojie’s suspicions would not have been aroused by the fact that Chucks: (i) was offering to pay him $500 for the simple task of picking up a package, and (ii) was providing Mr. Okojie with forged ID documents and asking him to falsely pose as someone named Adam Nazio. In my view, even if Mr. Okojie did not know for sure that the package would contain some kind of illegal drug, he was at the very least wilfully blind about this strong likelihood. In this regard, I do not accept Mr. Okojie’s evidence that Chucks told him that the package contained textbooks or that Mr. Okojie believed this explanation, nor would this aspect of his evidence leave me with a reasonable doubt about Mr. Okojie’s subjective state of mind concerning the contents of the package.

56However, that is not the end of the analysis. Establishing that Mr. Okojie knew about or was wilfully blind to the presence of the drugs in the package would be sufficient to support a finding of guilt on a charge of attempting to possess a controlled substance, [15] but this is not one of the offences with which he is charged. Rather, he is charged with the distinct offence of importing a controlled substance, which as discussed above has an additional mental element. To establish Mr. Okojie’s guilt on the importing charge, the Crown must not only prove subjective mens rea in relation to the contents of the package, but must prove subjective awareness “that the drugs he knowingly expected and accepted were from out of the country” (R. v. Atuh, supra at para. 7).

57In my view, the Crown has failed to prove beyond a reasonable doubt that Mr. Okojie knew that the Purolator package he had been hired to pick up originated from outside Canada. Indeed, the evidence before me indicates that as far as Purolator was concerned the package was simply an ordinary domestic shipment from a sender in Mississauga (Aramex) to a recipient in Toronto (“Adam Nazio”). While Mr. Okojie had the Purolator tracking number and acknowledges running some computer searches to check when the package would be delivered, I am not satisfied on the evidence before me that this information would have put Mr. Okojie on notice that the package was actually a transshipment that had originated from outside Canada. In this regard, there is no evidence before me that Aramex deals exclusively with international shipments, and even if this were so there is no evidence from which I could conclude that Mr. Okojie would necessarily have known this. In this regard, the situation here is similar to that in R. v. Gill, supra, where Fairburn J. (as she then was) found that the Crown had failed to establish that the accused knew that the shipment she was picking up came from outside Canada.

58Crown counsel urged me to rely on Mr. Okojie’s testimony that Chucks told him that the package contained books from the United States in order to conclude that Mr. Okojie knew that the package was coming from outside Canada. In my view, there are three problems with this argument. First, while I am entitled to accept some, all or none of a witness’s testimony, this does not give me licence to selectively edit this testimony to turn it into positive evidence of something entirely different from what the witness actually said. Mr. Okojie’s evidence was that Chucks told him the package was from the United States and that it contained textbooks, and that because he trusted Chucks he never suspected that Chucks might be lying to him. It would in my view go too far for me to edit out all of the exculpatory aspects of Mr. Okojie’s account and selectively accept only the parts that advance the Crown’s case. Second, if Chucks really did tell Mr. Okojie that the package was arriving from the United States, it is undisputed that this was a lie, since the package was actually from Kenya. If I were to find that Chucks actively lied to Mr. Okojie about the origins of the package, I would be unable to simultaneously reject beyond a reasonable doubt Mr. Okojie’s evidence that he subjectively believed what Chucks was telling him and accordingly never suspected that the package actually contained drugs. Third, while I have been unable to entirely reject all of Mr. Okojie’s testimony, I do not affirmatively believe anything he told me about his dealings with Chucks, beyond the bare fact that Chucks is a real person who was involved in Mr. Okojie’s efforts to take delivery of the package. In particular, I simply do not believe Mr. Okojie’s story that Chucks told him the package was from the US and contained textbooks. Even if it were open to me to accept the first part of this evidence and disbelieve the second part, the fact of the matter is that I do not believe any part of it. I cannot rely on testimony that I substantially disbelieve to establish an element of the offence beyond a reasonable doubt.

59I should also reiterate that even if the Crown had satisfied me that Mr. Okojie was actively posing as “Adam Nazio” as early as December 21, 2016 and that he assisted the principals while the importing offence was still incomplete under the Bell/Foster interpretation, contrary to my conclusions above, I would still not be satisfied that he necessarily knew that the scheme involved the importation of drugs. In other words, even if I had been satisfied that Mr. Okojie committed the actus reus of aiding the offence of importing under the Bell/Foster interpretation, I would still not have been satisfied that he had the requisite mens rea.

60For all of these reasons, I find Mr. Okojie not guilty on Count 1 of the indictment. The defence has properly conceded that the agreed facts support a finding of guilt on Count 3. I accept this concession and accordingly find Mr. Okojie guilty on this latter count.

Dawe J. Released: March 13, 2019

NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions it is the official written Ruling that is to be relied upon.

1At the start of trial the Crown withdrew a third charge (Count 2 on the indictment).

2These agreed facts support the defence’s concession that Mr. Okojie is guilty on Count 3, which requires proof that he used, dealt or acted on the forged photo ID card as if it were genuine, knowing or believing that it was forged. The inference that Mr. Okojie knew that the photo ID card bearing his photo and someone else’s name was forged would be overwhelming, and in any event he acknowledged in his testimony that he knew the card was a forgery.

3The street address on the photo ID card was misspelled “Cardillac” rather than “Cadillac”, as it appears on the Virgin Mobile document.

4Although the Court in Bell was interpreting the importing offence in the old Narcotic Control Act, the importing offence in the CDSA is substantially similar.

5Foster, supra at 108.

6In Foster, the accused admitted to physically importing drugs into Canada, but maintained that she had done so under duress. The issue before the Court of Appeal was whether the availability of a safe avenue of escape while she was in Customs, after the drugs had physically entered Canada, was a relevant factor for the jury to consider when assessing the elements of the defence of duress. In order to resolve this question the Court had to consider whether the offence of importing was already complete by the time of the accused’s first contact with customs officials.

7Bell, supra at p. 481, per Dickson J.

8Onyedinefu, supra at 2.

9Bell, supra at p. 488, per McIntyre J.

10As noted above, by the time Mr. Okojie actually took delivery of the package the heroin had been removed by the police and replaced with an inert substance.

11Hodge M. Malek & Sidney L. Phipson, Phipson on Evidence, 18th ed. (London: Sweet & Maxwell, 2013), at 37-10, pp. 1326-27.

12In re-examination defence counsel asked Mr. Okojie whether he had been with Virgin Mobile in December 2016, and he said he had not. However, defence counsel did not link this question specifically to the photograph of the Virgin Mobile document or direct Mr. Okojie’s attention to the date on the document.

13This rule is discussed at length by Code J. in R. v. Duncan et al., 2016 ONSC 1126 at 22-29.

14The photograph reveals that the document has more pages, at least one of which was folded back when the photo was taken.

15Mr. Okojie could only be found guilty of attempting to possess a controlled substance because by the time he actually obtained possession of the package the police had already removed the heroin. On PC Leahy’s evidence, she replaced all of the drugs with an inert substance rather than leaving a token quantity of heroin in order to support a possession charge following the controlled delivery.