Court File and Parties

COURT FILE NO.: CR-16-90000581-0000 DATE: 2019-03-29 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – SABRULLAH KHAN Accused

Counsel: Bari Crackower and Faiyaz Alibhai, for the Crown Gregory Lafontaine and Ricardo Golec, for the Accused

HEARD: March 18, 19, 20 & 21, 2019

BEFORE: B. Davies J.

Reasons for Decision

A. Background

[1] On September 23, 2013, an undercover officer arranged to buy two kilograms of heroin from Hassan Hatemi. The deal was to take place the next day. The police set up surveillance on Mr. Hatemi in anticipation of the deal. They also set up surveillance on Brandon Rilling, who was working for Mr. Hatemi at the time. Mr. Khan came to the attention of the police for the first time during their surveillance of Mr. Rilling on September 24, 2013.

[2] Mr. Rilling testified that he started working for Mr. Hatemi as a driver in January 2013. In August 2013, Mr. Hatemi started to involve Mr. Rilling in his drug business as well.

[3] Mr. Rilling testified that the first time Mr. Hatemi asked him to pick up a package, he did not know he was taking part in a drug deal. He learned about Mr. Hatemi’s drug business the second time picked up a package for him. On that occasion, Mr. Rilling saw drugs in Mr. Hatemi’s apartment when he returned from picking up the package and witnessed a drug deal between Mr. Hatemi and the undercover officer. September 24, 2013 was the third time Mr. Hatemi asked Mr. Rilling to take part in a drug deal.

[4] Mr. Rilling was arrested on September 24, 2013 and charged in relation to the three transactions in which he participated. He was acquitted in relation to the first transaction. He was convicted in relation to the second and third transactions.

B. Events of September 24, 2013

[5] The police saw Mr. Rilling in the area of Mr. Hatemi’s apartment in North York on the morning of September 24, 2013. Mr. Rilling testified that he went to Mr. Hatemi apartment that day. Mr. Hatemi asked him to go to a nearby Canadian Tire and pick up a package. Mr. Hatemi did not explicitly tell Mr. Rilling the package would contain drugs but Mr. Rilling understood he was picking up drugs based on his knowledge of Mr. Hatemi’s drug business.

[6] Mr. Rilling testified that he drove to the Canadian Tire. Once he arrived, Mr. Hatemi sent a text message directing Mr. Rilling to wait near the front doors of the store. Mr. Rilling also received information from Mr. Hatemi about the vehicle the person would be driving. Mr. Hatemi sent another message to Mr. Rilling saying that the person he was meeting was running late.

[7] Mr. Rilling testified that a van drove up to the front of the Canadian Tire. The driver somehow acknowledged him and he got into the front seat.

[8] Mr. Khan was driving the van. Mr. Rilling testified that he had never seen Mr. Khan before.

[9] Mr. Rilling testified that Mr. Khan explained why he was late and they engaged in casual conversation. Mr. Khan did not say anything to him that made him think Mr. Khan knew what was in the package. Mr. Rilling did not say anything to Mr. Khan about the contents of the bag either.

[10] After Mr. Rilling got into the van, Mr. Khan drove into the underground parking lot of the Canadian Tire. A minute or two later, Mr. Rilling got out of the van carrying a black reusable shopping bag.

[11] Mr. Rilling was arrested as he walked back to his car carrying the shopping bag. When the police searched the bag, they found a brick-shaped package of heroin, weighing 991.36 grams, wrapped in duct tape and inside a clear Ziploc bag.

[12] Mr. Khan was arrested a short distance away from the Canadian Tire while he was still driving the van.

C. Law and Analysis

[13] To find Mr. Khan guilty, the Crown must prove beyond a reasonable doubt that he trafficked heroin to Mr. Rilling, that he did so intentionally and that he knew what he was trafficking was heroin.

[14] There is no doubt that Mr. Khan transferred the black shopping bag to Mr. Rilling while they were together in the van on September 24, 2013. Mr. Rilling had nothing in his hands when he got into the vehicle. When he got out of the van a minute or two later, he was carrying the black shopping bag that was later found to contained heroin. The only reasonable inference is that Mr. Khan gave or transferred the package to Mr. Rilling.

[15] It is admitted that the black shopping bag Mr. Rilling was carrying at the time of his arrested contained heroin.

[16] The issue to be decided is whether the Crown has proven beyond a reasonable doubt that Mr. Khan knew the package contained heroin. The Crown can prove knowledge in two ways. They can prove that Mr. Khan actually knew there was heroin in the black shopping bag. Alternatively, they can prove that Mr. Khan was wilfully blind as to the contents of the shopping bag. To prove Mr. Khan was wilfully blind, the Crown would have to prove that Mr. Khan was aware of the need to inquire about the contents of the package but deliberately decided not to do so because he did not want to know the truth about it.

[17] There is no direct evidence that Mr. Khan knew or was wilfully blind about the contents of the package. The Crown’s case on this issue is entirely circumstantial. It is not enough for me to find that knowledge or wilful blindness is a reasonable inference available on the circumstantial evidence. I can only convict Mr. Khan if the inference the Crown is asking me to draw is the only reasonable inference available in this case.

[18] The question for me is whether the circumstantial evidence or the absence of evidence in this case, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that Mr. Khan knew the package contained heroin or was wilfully blind as to its contents. If the evidence is reasonably capable of supporting another inference, I must find Mr. Khan not guilty. When considering whether another plausible theory is supported by the evidence, or lack of evidence, I must not to engage in speculation (R. v. Villaroman, 2016 SCC 33 at paras. 35 – 38).

[19] In determining what reasonable, non-speculative inferences are available in this case, the pieces of circumstantial evidence must not be assessed in isolation. The cogency of any particular inference can only be properly assessed by considering the circumstantial evidence as a whole.

[20] The Crown argues that the only reasonable inference from the following facts is that Mr. Khan knew he was delivering heroin to Mr. Rilling:

• Mr. Khan had control of the package;
• The package contained 991.36 grams of heroin which was worth approximately $84,000;
• Mr. Khan gave the package to someone he did not know;
• The transfer of the package took place in the van rather than at the front door of the Canadian Tire;
• Mr. Khan drove the van into the underground parking lot; and
• There was no discussion between Mr. Khan and Mr. Rilling about the contents of the package.

[21] The Crown argues that, in the absence of evidence from Mr. Khan, it would be speculation to conclude that he was a blind courier. The issue is not whether I am convinced that Mr. Khan was a blind courier. The issue for me to decide is whether, considering the circumstantial evidence as a whole and the absence of evidence, it would be reasonable to infer that Mr. Khan did not know he was transferring heroin to Mr. Rilling and he was not wilfully blind about the contents of the bag.

[22] The circumstances of the meeting between Mr. Khan and Mr. Rilling are very suspicious. It would certainly be reasonable to infer that Mr. Khan knew the package he transferred to Mr. Rilling contained heroin. That, however, is not the only reasonable inference available based on the evidence, and lack of evidence, in this case. Another reasonable inference is that Mr. Khan was asked to deliver a package to Mr. Rilling without being told the contents in circumstances that did not give rise to a suspicion that would require him to inquire further.

[23] There is no evidence of who asked Mr. Khan to meet Mr. Rilling. There is no evidence about what instructions, if any, Mr. Khan received about the delivery. There is no evidence about any communications involving Mr. Khan or others about Mr. Khan’s involvement in the delivery before he arrived at the Canadian Tire. There is no evidence that Mr. Khan was involved in any other transactions involving Mr. Rilling or Mr. Hatemi. There is no evidence that Mr. Khan was even known to the police before September 24, 2013.

[24] I heard evidence from Mr. Rilling about how Mr. Hatemi conducted his business. The Crown argues that this evidence is irrelevant to the issue of Mr. Khan’s knowledge and cannot support a reasonable inference that Mr. Khan did not know (and was not wilfully blind) that he was delivering heroin to Mr. Rilling. I disagree.

[25] Mr. Rilling testified that he did not give Mr. Khan any money in exchange for the package of heroin. It is, therefore, reasonable to infer that Mr. Hatemi owned or controlled the drugs that Mr. Khan transferred to Mr. Rilling on September 24, 2013. I also heard evidence that Mr. Hatemi was in contact with Mr. Rilling while he was at the Canadian Tire about where and when Mr. Khan would meet him. From all this evidence, it is reasonable to infer that Mr. Khan was somehow part of Mr. Hatemi’s drug network.

[26] If Mr. Khan was part of Mr. Hatemi’s network, Mr. Rilling’s evidence about how Mr. Hatemi conducted his business is relevant to the issue of Mr. Khan’s knowledge on September 24, 2013. Mr. Rilling testified that he was twice asked to pick up packages for Mr. Hatemi without knowing what he was picking up. Mr. Rilling now knows that those packages contained drugs but he did not know that at the time. Mr. Rilling also testified that each time he picked up a package for Mr. Hatemi, he met with someone different. He never met the same person twice. Mr. Rilling was not challenged on this evidence and I accept that Mr. Hatemi asked him to pick up drugs and did not tell him what he was picking up.

[27] From this evidence, it is reasonable to infer that Mr. Hatemi employed people to move drugs who did not know they were participating in a drug transaction. I recognize that the Court of Appeal for Ontario has said it may be open to a trier of fact to infer knowledge of the nature of the substance from the fact that an accused is in possession of a controlled substance of significant value. In R. v. Bains, 2015 ONCA 677 at para. 157, the Court explained the logical basis for such an inference:

It is a reasonable inference that such a valuable quantity of drugs would not be entrusted to anyone who did not know the nature of the contents of the bag or other container.

[28] Knowledge is not, however, an inescapable inference from the possession of drugs of significant value. In fact, individuals dealing in large quantities of drugs have a clear incentive to take steps to protect their identity, which might include relying on couriers and drivers who do not the nature of the operation or who else is involved. I must, therefore, look at the totality of the evidence in this case to determine whether knowledge or wilful blindness is the only reasonable inference.

[29] In light of the absence of evidence about Mr. Khan’s prior involvement in any drug related activities, coupled with the evidence that Mr. Hatemi employed people for single transactions and that he employed Mr. Rilling initially as a blind driver, it is a reasonably available inference that Mr. Khan did not know and was not wilfully blind that the package contained heroin. As a result, the Crown has not proven this essential element beyond a reasonable doubt and I find Mr. Khan not guilty of trafficking heroin.

B. DAVIES J. Released: March 29, 2019