Court File and Parties

COURT FILE NO.: CR-20-77-00 DATE: 20230406 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – SEBASTIAN ZAMORA Defendant NICHOLAS POKU Defendant

Counsel: Sam Weinstock, for the Public Prosecution Service of Canada Sean Robichaud and Jacob Roth, for the Defendant Zamora Self-Represented, for the Defendant Poku

HEARD: February 22, 23 (by Zoom), 24, 27, 28 (by Zoom); March 1, 3, 2023

MANDHANE J.

Introduction

[1] On March 1, 2018, Sebastian Zamora, Nicholas Poku, and Chukwuemka Madumelu (together, the “suspects”) were arrested by the Royal Canadian Mounted Police (“RCMP”) in relation to an alleged conspiracy to import and traffic heroin.

[2] While under RCMP video surveillance and in the presence of undercover officers, Zamora picked up a parcel containing heroin from an airport warehouse. Afterwards, the three suspects met at a restaurant and transported the parcel to an apartment building where they were arrested.

[3] Zamora is charged with importing heroin contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). Both Zamora and Poku are charged with possession of heroin for the purposes of trafficking contrary to s. 5(2) of the CDSA. Madumelu pleaded guilty to importing heroin on April 26, 2019.

[4] Zamora and Poku appeared before me for their trial. Zamora was represented by counsel while Poku represented himself. The central issue is whether either or both accused knew that the parcel contained a controlled substance. The Crown called Canada Border Services Agency (“CBSA”) and RCMP officers who attested to the seizure and testing of the heroin, the continuity of exhibits, the controlled delivery and pickup operation, the surveillance, the arrest and search, and the extraction of records from the suspect’s cell phones. The Crown also called a lay witness employed by the freight brokerage firm.

[5] Neither accused took the stand nor called any evidence. However, after conducting a voir dire, I allowed Zamora to tender certain electronic documents through an RCMP witness: R v. Zamora, 2023 ONSC 1420.

[6] At the close of the evidence, the Crown brought an application to admit the cell phone extraction report for the truth of its contents, relying on the co-conspirator’s exception to the hearsay rule. The co-accused opposed the application.

Issue

[7] Are Zamora and/or Poku guilty of the offences charged?

Investigation and Arrests

[8] The 1.347 kg of heroin was concealed in a parcel that arrived on a Pakistan International Airlines flight on February 21, 2018 with a waybill addressed to “Richard Domond.” The parties agree that “Domond” was an alias created and used by Madumelu for the purposes of importing heroin into Canada. The parcel was a large white burlap bag with over twenty low-quality, plastic-wrapped laptop bags inside. Two of the laptop bags had a substance concealed behind their nylon lining.

[9] The parcel was intercepted and searched by CBSA officers who believed that the concealed substance was heroin. The CBSA eventually turned the parcel over to the RCMP, who confirmed that it contained heroin with a wholesale and retail value between about $108,000 and $539,000, respectively.

[10] The RCMP wanted to attempt a controlled delivery of the parcel to the intended recipient, “Domond.” They seized most of the heroin, reassembled the parcel to appear as though no one had opened it, but left a small amount of heroin concealed inside. On February 28, 2018, an RCMP officer posing as a delivery driver unsuccessfully attempted to deliver the parcel to “Domond” at the address listed by the sender on the parcel and waybill.

[11] The RCMP then learned that “Domond” had created a one-time account with Livingston International, Inc., a freight brokerage firm, and retained them to facilitate customs clearance and delivery of the parcel. Eventually, an RCMP officer posing as a Livingston employee called the telephone number on the waybill and spoke with Madumelu, who claimed to be “Domond.” Madumelu asked the officer if his cousin could pick the parcel up at the warehouse in Mississauga where it was being stored, and what identification and paperwork his cousin would need. The officer told Madumelu that he would first need to pay the customs and brokerage fees owing to Livingston before the parcel would be released back to the warehouse for pickup. “Domond” paid the required fees on February 27, 2018.

[12] On March 1, 2018, a Livingston employee emailed “Domond” a letter authorizing a “Sebastian/Richard Domond” to retrieve the parcel from the warehouse. Livingston transferred the parcel to the warehouse and the RCMP laid in wait for whoever was going to show up to claim it. The RCMP set up surveillance cameras and undercover officers posed as warehouse employees.

[13] On March 1, 2018, just before 5:00 p.m., Zamora and Poku drove into the warehouse parking lot in Zamora’s Chrysler. Zamora got out of the car and entered the warehouse reception area. While he was inside, Poku exited the Chrysler, smoked a cigarette, and then re-entered the vehicle. Inside the warehouse, Zamora spoke to an attendant, presented paperwork, waited for about 15 minutes, entered a loading dock, and bought food from a vending machine. He watched as the parcel was wheeled out on a dolly by an RCMP officer posing as a warehouse employee. Zamora spoke briefly with the RCMP officer, rocked the parcel back and forth, lifted the parcel off the dolly, and carried it through the reception area and out the front doors. He loaded the parcel into the backseat of the Chrysler while Poku remained in the car.

[14] While still under RCMP surveillance, Zamora and Poku left the warehouse parking lot and drove to a nearby restaurant where they met Madumelu. Zamora and Poku left the parcel in the backseat of the car while they dined. The three suspects exited the restaurant about 20 minutes later and returned to their respective vehicles.

[15] Zamora and Poku then drove to an apartment complex and parked in front of the entrance. Madumelu drove to the same location via a different route and also parked. Poku and Madumelu took the parcel out of the Chrysler’s backseat and carried it into the building while Zamora waited in the car. Poku and Madumelu rode the elevator to the 19th floor with an undercover RCMP officer. Poku and Madumelu, and the undercover officer all exited the elevator and started to walk down the hall. Madumelu and Poku were arrested and handcuffed by the same officer. Zamora was arrested while waiting in the Chrysler in the parking lot.

Burden of Proof

[16] The co-accused are presumed innocent of the charges against them. The first rule that flows from the presumption of innocence is that the Crown bears the burden of proving the accused’s guilt. The burden on the Crown never shifts. The co-accused are not required to prove their innocence. They need not prove anything at all.

[17] The second rule that flows from the presumption of innocence is that the Crown must prove guilt beyond a reasonable doubt. A reasonable doubt is not a far-fetched, imaginary, or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on common sense, reason, and good judgment. It is a doubt that logically arises from the evidence or the absence of evidence. It is not enough for me to believe that the accused are probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. While the Crown is not required to prove their case to a standard of certainty, proof beyond a reasonable doubt falls much closer to absolute certainty than it does to proof on a balance of probabilities. The latter applies in civil cases; it simply means more likely than not. That is a far lesser standard of proof than proof beyond a reasonable doubt. In a criminal case (like this), a finding of guilt requires proof beyond a reasonable doubt.

[18] If, at the end of the case, after considering all the evidence, I am sure that the accused committed the offences charged, I must find him guilty, since this would mean that I am satisfied that he is guilty beyond a reasonable doubt. However, if at the end of the case, based on all the evidence (or absence of evidence), I am not sure whether the accused committed the offence charged, I should find him not guilty, since being unsure whether he committed the offence means I have a reasonable doubt.

[19] In this case, the central issue is whether the Crown has proven beyond a reasonable doubt the mens rea, or mental element of the offence(s), for each accused. That is because both Zamora and Poku concede the actus reus for possession insofar as they had physical control of the parcel containing heroin. While Zamora does not concede that his actions satisfy the actus reus for importing, his counsel agrees that the most contentious issue relates to the mental element of the offence.

[20] The offences of importing heroin and possessing heroin for the purpose of trafficking share a common mental element. For each, the Crown must prove beyond a reasonable doubt that the accused either knew or was wilfully blind to the fact that the parcel contained heroin or a controlled substance of some kind: see R. v. Rai, 2011 BCCA 341, paras. 1, 17-20; R. v. Sandhu (1989), 50 C.C.C. (3d) 492 (Ont. C.A.), pp. 498-499; R. v. Duffy (1973), 11 C.C.C. (2d) 519 (Ont. C.A.), p. 520; R. v. Blondin (1970), 2 C.C.C. (2d) 118 (B.C.C.A.), pp. 131-132, affirmed in R. v. Blondin, [1971] S.C.J. No. 42 (QL).

[21] The Crown may prove the mens rea of knowledge by establishing either actual knowledge or wilful blindness: R. v. Briscoe, 2010 SCC 13, para. 21. Wilful blindness is the mindset of an accused who subjectively suspects the existence of the prohibited consequences or circumstances, for example, in this case, suspecting that the parcel contained heroin or some other controlled substance, but who nevertheless decides not to inquire because they would prefer not to know the truth: see Sansregret v. The Queen, [1985] 1 S.C.R. 570, pp. 584-586; Briscoe, paras. 21-24; R. v. Pilgrim, 2017 ONCA 309, para. 66; R. v. Farmer, 2014 ONCA 823, para. 26. Wilful blindness is often described as “equivalent to knowledge” and only available in situations when “it can almost be said that the defendant actually knew”: see Sansregret, at para. 22; R. v. Morrison, 2019 SCC 15, para. 98.

Weighing the Evidence

[22] The Crown relies on circumstantial evidence to satisfy its burden of proving that Zamora and Poku knew that that the parcel contained heroin. Where proof of the offence depends exclusively or mainly on circumstantial evidence, I may only find an accused guilty if an inference of guilt is the only reasonable inference available to me on the totality of the evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, para. 30.

[23] For me to find the accused guilty, the Crown’s case must negate other plausible theories and reasonable possibilities inconsistent with guilt that arise from the evidence or lack of evidence: Villaroman, paras. 30, 35-37. That said, the Crown is not required to negate “every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, [1972] S.C.R. 2, at p. 8; Villaroman, para. 37. Other plausible theories or reasonable possibilities “must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation”: Villaroman, para. 37. The Supreme Court cautioned that the trier of fact “should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible”: Villaroman, para. 42.

[24] The distinction between what constitutes a “plausible theory” and what amounts to impermissible “speculation” is not always clear: Villaroman, para. 38. Nevertheless, the "basic question" I must answer "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": Villaroman, para. 38. Stated differently, "to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative": Villaroman, para. 41. Ultimately, it is for the trier of fact to draw the line to separate reasonable doubt from speculation: Villaroman, para. 71.

[25] Below, I identify the different pieces of evidence that were put before me. That said, when assessing circumstantial evidence and deciding whether it furnishes a reasonable inference of guilt, I must guard against considering individual items of evidence separately and in isolation. Instead, such evidence must be viewed as a whole and weighed cumulatively to decide whether it only supports a reasonable inference of guilt and excludes other alternative and plausible explanations: see R v. Hudson, 2021 ONCA 772, 158 O.R. (3d) 589, para. 70; R. v. Gibson, 2021 ONCA 530, 157 O.R. (3d) 597, paras. 78-79. I engage in a more wholistic analysis in the sections that follow.

Surveillance Evidence

[26] The RCMP witnesses were credible and most of their evidence was not seriously challenged at trial. In relation to the issue of knowledge, the surveillance officers said that the suspects acted normally and were not engaged in any active efforts to disguise their identities or conceal their movements. The RCMP surveillance footage confirms the officer’s evidence that all three suspects appeared calm while under surveillance.

[27] While posing as a warehouse employee and delivering the parcel on a dolly to Zamora in the loading dock, an undercover RCMP officer asked Zamora if he needed help carrying the parcel, to which he replied that he did not, because there was “nothing fragile” inside. The officers admitted under cross-examination that there was nothing on the waybill or parcel itself indicating that it was either fragile or heavy, as would usually be the case.

Kijiji Messages

[28] Zamora provided the RCMP with printouts of messages that he exchanged with “Richard Domont” the morning of the pickup. The messages were exchanged through the private messaging function on Kijiji.com (“Kijiji messages”). The RCMP authenticated and timestamped the Kijiji messages: see Zamora.

[29] The Kijiji messages show that, as of at least February 28, 2018 at 11:02 p.m., Zamora had an active advertisement stating, “Delivery Driver Available.” On the day of the pickup, March 1, 2018 at 9:33 a.m., a Kijiji user asked Zamora if he was available to do a pick up for him “today or tomorrow.” The following exchange took place between Zamora and “Richard D.” on the day between 10:03 a.m. and 12:45 p.m.:

Zamora: Hey I got your email and I can do a pickup today, at some point this afternoon. Im going to need a pickup and drop off location for the delivery and if you have any questions call me at 905-392-6340.

“Richard D”: ok thanks, the pickup will be at 6500 silverdart dr. and the dropoff will be in toronto. i would also need your name. the warehouse will need it for ID. here is my number if you need to call me 4379225277 Richard D

Zamora: Ok Richard thanks. My name is Sebastian and will be there this afternoon

“Richard D.”: Hi Sebastian, i will attach to you some documents you may need and also a letter to authorize you for the pick up. i will also talk to Marie about a release paper, i think she mentioned something like that.

Zamora: Ok I’ll make sure i have it ready when i go for the pickup. Ill need details for the drop off location, just to let you know i charge per km, and based off where the pickup is you’re look at about $1.50 per km travelled

“Richard D.”: hello, i will need you email address to send you the release letter. i will also want to know your charge. Thanks! Richard

Zamora: My email address is sebzamora95@outlook.com and depending on the drop off location, a trip to toronto should cost about $25-$30 for the trip

“Domond: ok thanks, i will be sending you the release letter to your email that you provided to me.and also the address.

The Email Attachments

[30] Zamora also showed the RCMP three email attachments that he received from “DOMONDRICHARD@yahoo.com” following the exchange on Kijiji. One email attachment is a freight document that lists the consignee as “Richard Domond” and the contents as “Empty Bags.” The second email attachment is a “Release Notification Report” that lists the importer as “Richard Domond” and states that one 45-kilogram bag was released on February 27, 2018, to the warehouse.

[31] The third email attachment was a letter dated March 1, 2018 from “Julius Dela Cruz” of Livingston International, Inc. to the warehouse. The letter stated that Livingston was acting as agent for the consignee, “Richard Domond,” and directed the warehouse to: “Please release freight to their appointed carrier: Hold for pickup: Sebastian / Richard Domond.” Mr. Dela Cruz testified that “Domond” asked him to prepare this letter and gave him the name “Sebastian.”

Cell Phone Extraction Report

[32] The police conducted an authorized search of Madumelu’s Samsung cell phone, Poku’s LG cell phone, and Zamora’s Apple iPhone. The information found on the cell phones was contained in cell phone extraction reports prepared by the RCMP. The Crown says that all three cell phones contain evidence that is relevant to both Poku’s and Zamora’s knowledge of the contents of the parcel.

[33] Both accused concede that the cell phone extraction reports meet the threshold requirements for electronic documents imposed by the Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 31.1-31.3. An RCMP officer testified to the integrity of the computer software used to create the extraction report and the process undertaken to verify the excerpts replied upon by the Crown.

[34] The cell phone extract report shows the following:

February 5, 2018

• Madumelu made a note on his phone with the details for the consignee “Richard domond.” He also took a photograph of a piece of paper with extensive personal information for “Richard Domond.”

February 19, 2018

• Poku sent two text messages to Zamora that said: Poku: Yo chuks wants to know if you are good for tomorrow or Wednesday Poku: It could be tomorrow it could be Wednesday.
• Zamora did not reply to the February 19th messages.

February 21, 2018

• Poko and Madumelu exchanged the following text messages: Poku: Did you call or text sebs yesterday Madumelu: Ya but he never replied Madumelu: Did his number change? Poku: Ok he wasn’t sure if it was you Poku: In will tell him now Madumelu: Ok Poku: He will reply soon. Madumelu: Ok

February 28, 2018

• Poku sent Zamora the following text message: Poku: Yo if send me the link for your delivery when u are done I couldn’t find and he want to start on it so it could be done tomorrow.
• About 90 minutes after receiving this message, Zamora visited the Kijiji website, and clicked on “My Ads”, “Post Your Ad,” and “Delivery Driver Available / Moving and Storage / Markham / York Region.”
• Zamora then sent a text message to Poku with a link to a Kijiji ad titled, “Delivery Driver Available.”
• A few minutes after receiving the link, Poku called Madumelu and sent him a link to Zamora’s Kijiji ad. Madumelu promptly texted Poku back and said, “Yo tell him I Will email him tonight.”

March 1, 2018

• Mandumelu called Poku at 9:05 a.m. and was on the phone for 22 seconds. Poku then called Mandumelu at 9:30 a.m. and they spoke for about one minute.
• Between 9:31 and 10:00 a.m., both Zamora and Madumelu visited the Kijiji website.
• At 9:45 a.m., Poku and Madumelu spoke on the phone for about 6 minutes.
• Between 10:17 and 10:20 a.m., Poku and Madumelu exchanged the following text messages: Madumelu: “Make him reply now now.” Poku: “We dey for work sha he go reply soon lol”
• Zamora went on his phone at 10:25 a.m. and began using the Kijiji messaging application.
• Between 10:28 a.m. and 12:39 p.m., Madumelu and Poku exchanged the following texts: Madumelu: “Make him go washroom do am” Poku: “He reply back he said” Madumelu: “When?” Madumelu: “I don’t see anything” Poku: “He said he sent it.” Madumelu: “Do you know his last name?” Poku: “Zamora” Madumelu: “Ok” Poku: “U got it” Madumelu: “I didn’t get the email” Madumelu: “He should make sure it’s to me, or even do it again. I need it asap.” Poku: “He did it you he showed me” Madumelu: “Ok let me check” Madumelu: “Ok, I see it, it went to spam” Poku: “Kk” Madumelu: “Ya” Madumelu: “sent” Poku: “K”
• At 12:28 p.m., Zamora visited the messaging application on the Kijiji website.
• Between 12:47 and 5:52 p.m., Poku and Madumelu had eight short telephone conversations.

[35] The co-accused concede that the cell phone extractions are admissible as circumstantial evidence connecting the suspects to one another at specific points in time: R. v. Bridgman, 2017 ONCA 940, paras. 72-77. They also admit that their outgoing text messages and their activities while online are admissible against them as statements against interest: Bridgman, para. 10-11. Finally, incoming text messages are admissible for the truth of their contents if the recipient effectively adopted the statement by way of acknowledgement or reply: Bridgman, para. 69-70, 79-88.

[36] The only outstanding issue is whether the Crown can rely on the communications between Madumelu and Poku for the truth of their contents in its case against Zamora. The parties agree that the Crown must satisfy the co-conspirators’ exception to the hearsay rule if it wishes to do so. I consider the exception below.

The Co-Conspirators’ Exception to the Hearsay Rule

[37] I must apply the three-stage Carter test to determine whether the cell phone extraction report entries engage the co-conspirators’ exception to the hearsay rule: R v. Carter, [1982] 1 SCR 938 at pp. 943-44. Carter governs the admissibility of co-conspirators’ acts or statements as evidence against the accused who is alleged to be a member of the conspiracy: R v. Chang, para. 59; R v. Dawkins, 2021 ONCA 113, paras. 35-42. If the Carter test is satisfied, absent exceptional circumstances, the Crown does not have to go on to establish the necessity or reliability of the evidence: R. v. Young, 2021 ONCA 535, para. 36.

[38] In Chang, the Court of Appeal for Ontario set out the three steps as follows at para. 53:

1. The trier of fact must first be satisfied beyond reasonable doubt that the alleged conspiracy in fact existed.
2. If the alleged conspiracy is found to exist then the trier of fact must review all the evidence that is directly admissible against the accused and decide on a balance of probabilities whether or not [the accused] is a member of the conspiracy.
3. If the trier of fact concludes on a balance of probabilities that the accused is a member of the conspiracy then [the trier] must go on and decide whether the Crown has established such membership beyond reasonable doubt. In this last step only, the trier of fact can apply the hearsay exception and consider evidence of acts and declarations of co-conspirators done in furtherance of the object of the conspiracy as evidence against the accused on the issue of his guilt.

[39] On the first stage of the Carter analysis, the Crown has proven beyond a reasonable doubt that there was a conspiracy to import heroin in a concealed shipment from Pakistan, to ensure the parcel’s release from customs, and to transport it from the warehouse to the apartment to facilitate trafficking. The conspiracy was formed when the parcel was shipped from Pakistan on February 18, 2018, and ended on March 1, 2018, when the suspects were arrested. It is impossible to believe that one person was involved in assembling and packaging the parcel in Pakistan, arranging for its transport to Canada, ensuring it cleared customs, and arranging for its safe delivery to a Canadian address: R v. Montgomery, 2014 BCSC 1483, para. 135; see also R v. Buttazzoni, et al, 2015 ONSC 6411, paras. 88–89.

[40] On the second stage of the Carter analysis, the Crown says that it has proven, on a balance of probabilities, that Madumelu, Poku, and Zamora were members in the conspiracy. I agree. The circumstantial evidence convincingly establishes that Madumelu was the mastermind: presumably liaising with higher-ups in the scheme, creating a fake consignee to receive the parcel from Pakistan, paying the customs and brokerage fees, arranging for the parcel to be released from the warehouse to “Sebastian,” and transporting the parcel to its ultimate destination on the 19th floor of the apartment building.

[41] I also find, on a balance of probabilities, that Poku was a part of the conspiracy. His role was to facilitate communication between Madumelu and Zamora, to accompany Zamora to the warehouse, to supervise the parcel’s safe delivery to Madumelu, and to transport the parcel to its final destination. Indeed, the evidence supports a strong inference that Poku was Madumelu’s trusted insider and a middleman in the scheme. As will be discussed in more detail below, only Poku was involved in all aspects of the conspiracy. Poku knew both Madumelu and Poku’s real identities, communicated with both of them about the pickup, and facilitated their communication via Kijiji. Poku accompanied Zamora to the warehouse and acted as a lookout. Poku helped Madumelu to bring the parcel to the 19th floor of the apartment building. The text messages on Poku’s phone that are admissions and adoptive admissions show that he was communicating with Madumelu about the parcel ahead of its arrival in Canada after the failed delivery attempt, the day before the pickup, and throughout the day on March 1, 2018. On a balance of probabilities, I have no trouble concluding that Poku was a member of the conspiracy.

[42] The Crown admits that Zamora’s role in the conspiracy was more limited but says that it has proven, on a balance of probabilities, that his role was to pick up the parcel from the warehouse without arousing suspicion. The uncontroverted evidence is that Madumelu authorized Zamora alone to pick up the parcel from the warehouse. Moreover, the cell phone extracts from Zamora’s phone that constitute admissions and adoptive admissions clearly demonstrate that Poku and Zamora were communicating about the delivery of the parcel in the days prior to March 1, 2018. While the cell phone extraction report does not show any direct communication between Zamora and Madumelu, I find that there are still sufficient direct links between them to find that Zamora was a member of the very same conspiracy on a balance of probabilities. First, there is Madumelu’s handwritten note with the name “Seb” and an associated phone number on it. Second, there is the reference to “Chuks” in Poku’s text message to Zamora on February 19th. Third, Poku, Zamora, and Madumelu met at the restaurant after the pickup. On a balance of probabilities, given his actions, and his direct links to both Poku and Madumelu, I find that it is more likely than not that Zamora was a member of the conspiracy.

[43] The third step of the Carter test requires me to consider whether Zamora was a member of the conspiracy beyond a reasonable doubt based on all the evidence, including the entirety of the cell phone extraction reports. If he was, the hearsay evidence is admissible to prove the offences charged. If he was not, I must go on to consider whether the Crown had discharged its burden absent the hearsay evidence.

[44] As will be discussed in detail below, on the totality of the evidence, including the hearsay evidence, I find that the Crown has not established beyond a reasonable doubt that Zamora was a member of the conspiracy to import, possess, and traffic in heroin. While he was likely a member of the conspiracy, I have a lingering doubt about whether Zamora knew that there was a controlled substance in the parcel.

[45] Because the Crown’s theory of liability rests on Zamora being a “trusted insider” in relation to the suspects’ conspiracy to import, possess, and traffic heroin, my analysis under the third step of Carter resolves the ultimate issue as it relates to Zamora. Stated differently, if the Crown cannot prove that Zamora was a member of the conspiracy to import heroin based on all the evidence—including the hearsay evidence—it follows that the Crown will not be able to prove that Zamora’s had the requisite intention to import, possess, and traffic in a controlled substance. Therefore, to avoid duplication, I consider below whether the Crown has proven reasonable doubt that Zamora was a member of the conspiracy to import and traffic in heroin, and whether he is guilty of the offence charged.

Has the Crown Proven the Charges Against Zamora?

[46] The Crown says that the only reasonable inference available to me based on the totality of the evidence is that Zamora was a trusted insider who conspired with Madumelu and Poku to import and traffic in heroin, namely, by creating exculpatory electronic evidence through Kijiji, by picking up the parcel from the warehouse, and by transporting the parcel to the apartment building.

[47] Given the amount and value of the heroin seized, the Crown says I can infer that Zamora was a trusted insider who would have known about the parcel’s contents. The Crown reasons that, without such knowledge, Madumelu would not have trusted Zamora to retrieve and transport such a valuable amount of heroin. Indeed, the Court of Appeal for Ontario has confirmed that these inferences “may be available from the objective improbability that such a valuable quantity of drugs would be entrusted to anyone who did not know the nature of the contents or the means of transport”: R. v. Burnett, 2018 ONCA 790, para. 64; R. v. Bains, 2015 ONCA 677, para. 157.

[48] The Crown says that the totality of the evidence unequivocally points to Zamora being a “trusted insider.” I agree that the circumstantial evidence supports reasonable inferences that, when taken together, establish a compelling case that Zamora knew what was inside the parcel. In particular, the evidence supports reasonable inferences that:

• Zamora knew Madumelu’s true identity and involvement in the scheme as early as February 19, 2018, when Poku texted him saying, “Yo chuks wants to know if you are good for tomorrow or Wednesday.”
• Zamora was directed by Madumelu—via Poku—to create a Kijiji ad that would facilitate private web-based communications, with Madumelu using the alias “Richard Domond.”.
• Zamora was directed by Madumelu—via Poku—to communicate with “Domond” in a tone and manner that would support their ruse of Zamora being an innocent delivery person.
• Zamora revealed his precise knowledge about the contents of the parcel when he told the undercover officer at the warehouse that there was “nothing fragile” inside.
• Zamora would have overheard Poku speaking with Madumelu immediately after they left the warehouse and while they were in the car together, and the conversation likely referred to the true contents of the parcel.
• Zamora would only have met with Madumelu at the restaurant after the delivery if he was a trusted insider who knew Madumelu’s true identity and whose role extended beyond that of an innocent delivery driver.

[49] Zamora admits that the “trusted insider” inference is available to me but argues that it is not the only reasonable inference arising on the totality of the evidence or absence of evidence. Zamora’s counsel says that the Crown’s theory is weak insofar as it invites me to speculate about what the suspects may have spoken about in the car and in the restaurant.

[50] Counsel says that another reasonable inference available to me on the evidence is that Zamora was an innocent delivery driver who was duped by Poku and Madumelu into picking up the parcel. Mr. Roth says that it was in Poku and Madumelu’s interests to keep Zamora in the dark about the contents of the parcel so that Zamora would agree to do the pickup, would not rouse suspicions while doing so, and would not be able to supply information to the authorities if he was apprehended at the warehouse: see R v. Allen, 2022 ONSC 5539, paras. 81-84.

[51] Zamora relies on the following evidence to support the alternative inference that he was an “innocent dupe”:

• Zamora never concealed his true identity from Poku or Madumelu.
• Zamora used his personal cell phone and email address to communicate with both Madumelu and Poku.
• Zamora only ever communicated directly with “Domond,” who responded to his Kijiji advertisement for delivery services, and with whom he engaged in a professional conversation about particulars and rates.
• Zamora was largely unknown to Madumelu, who only learned Zamora’s last name from Poku a few hours before the pickup and did not have Zamora’s contact information in his phone.
• The only freight documents in Zamora’s possession listed the consignee as “Domond” and the contents of the parcel as “empty bags” weighing 45 kilograms.

[52] The Crown says that the “innocent dupe” theory is speculative and ungrounded in the evidence. I disagree. The defence theory is grounded in the Kijiji messages and email attachments that Zamora provided to police, coupled with the absence of evidence directly linking Zamora and Madumelu. On their face, the Kijiji messages provide some evidence to support the “innocent dupe” theory. However, I agree with the Crown that the statements cannot be afforded much weight given their self-serving nature. They were provided by Zamora to police and proffered by him at trial. When read against the contemporaneous text messages between Poku and Zamora, I strongly suspect that Zamora used Kijiji as a means to communicate privately with Madumelu and to create exculpatory evidence as insurance in case he was apprehended.

[53] However, the Kijiji messages point to a larger issue with the Crown’s case. The Crown’s theory rests almost entirely on the “trusted agent” inference without establishing that Zamora was indeed directly connected to or trusted by the admitted mastermind, Madumelu. While there is some evidence linking Zamora and Madumelu, none of it is particularly strong. While Poku referred to “Chuks” in a text message to Zamora on February 19th, Zamora did not acknowledge or reply to the message. The Crown says that I should infer that Zamora saw the message. I refuse to do so. Poku’s text message referencing “Chuks” did not include a last name or phone number, is temporally disconnected from the pickup on March 1st, and was neither acknowledged nor adopted by Zamora.

[54] Indeed, the Crown has offered no circumstantial evidence supporting an inference that Zamora knew Madumelu’s true identity at any point during the conspiracy. Zamora never used Madumelu’s name in his outgoing text messages. He never called Madumelu. Zamora did not have Madumelu’s contact information in his phone. Zamora corresponded on Kijiji only with a user who identified himself as “Domond.” Zamora received emails from “Domond” containing freight documents that also referred to “Domond.” While Zamora met with Madumelu at the restaurant, we do not know what identity Madumelu may have assumed during the meeting. In this context, the fact that Madumelu knew Zamora’s true identity tells us little about the extent of Zamora’s knowledge about Madumelu or what was in the parcel.

[55] Moreover, Poku’s involvement in attending at the warehouse and apartment makes more sense if Zamora were an innocent dupe than if he were a trusted insider. Poku never went inside the warehouse and did not help Zamora carry the parcel to the car. If Zamora were a trusted insider, why would Poku attend at the warehouse at all? What was his role? Why couldn’t Zamora be trusted to retrieve the parcel on his own? And, most importantly, why expose himself to risk of arrest? Poku’s actions and near constant communication with Madumelu make the most sense if his role had been to supervise the parcel’s safe delivery to its ultimate destination on the 19th floor of the apartment building precisely because Zamora did not know about its contents.

[56] Still, even if Madumelu and Poku kept Zamora in the dark, I must go on to consider whether the Crown has proven wilful blindness. Would a reasonable person have necessarily assumed that the parcel contained drugs? If that thought did cross Zamora’s mind, did he choose not to ask because he did not want to know the truth? Or did some other possibility cross his mind–for example, that the parcel contained some other kind of contraband? Or perhaps Zamora is a trusting person who didn’t ask many questions after being approached by a paying customer, who happened to be a friend-of-a-friend, and who provided freight documentation authorizing him to pickup a parcel containing “empty bags.”

[57] In short, the circumstantial evidence against Zamora can reasonably support several alternative inferences about his potential state of mind. Zamora may well have been entirely oblivious to the scheme or an “innocent dupe.” Or he could have even suspected that the parcel contained contraband but not necessarily drugs. On either of these alternative inferences, Zamora lacks the mens rea required to be found guilty of importing a controlled substance or possessing a controlled substance for the purpose of trafficking. Although it is likely that Zamora was a fully informed participant in the drug importing scheme, without additional evidence, I find myself less than sure that he was. Based on the totality of the evidence, the Crown has not satisfied its burden of proof in relation to Zamora.

Has the Crown Proven the Charges Against Poku?

[58] I agree with the Crown that the only reasonable inference available on the totality of the evidence is that Poku was a trusted insider who would have known the true contents of the parcel. I have no trouble concluding beyond a reasonable doubt that Poku’s role in the conspiracy was to facilitate communication between Madumelu and Zamora, and to supervise and assist with the safe delivery of the parcel to the apartment.

[59] Poku was in direct communication with Madumelu about the parcel from at least February 19th onwards. Poku knew Madumelu’s true identity throughout. Poku had Madumelu’s contact information saved in his phone, and he referred to Madumelu as “Chuks” in his outgoing message to Zamora on February 19th. The cell phone extraction report shows that Madumelu was directing Poku to communicate with Zamora about the Kijiji ad. Poku’s presence at the warehouse only makes sense if he had been acting as Madumelu’s eyes and ears, was on the lookout for detection, and was liaising with Madumelu about next steps. The extent of Poku’s knowledge is most tellingly revealed by the fact that he accompanied Madumelu to deliver the parcel to its final destination on the 19th floor of the apartment building. Unlike Zamora, Poku knew too much and was too involved in each aspect of the importing and trafficking scheme to support a reasonable inference that he was a dupe. The trusted insider inference is the only reasonable inference on the totality of the evidence. The Crown had met its burden of proving that Poku is guilty as charged.

Conclusion

[60] For these reasons, the court shall register the following verdicts on the charges faced by each accused in the indictment:

Count 1: The accused, Zamora, is found not guilty. Count 2: The accused, Zamora, is found not guilty. The accused Poku is found guilty as charged.

Mandhane J.

Released: April 6, 2023

COURT FILE NO.: CR-20-77-00 DATE: 20230406 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – SEBASTIAN ZAMORA and NICHOLAS POKU REASONS FOR JUDGMENT Mandhane J. Released: April 6, 2023