COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Rahmani, 2013 ONCA 130
DATE: 20130304
DOCKET: C54614
MacPherson, MacFarland and Pepall JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Nejmeddin Rahmani
Appellant
Timothy E. Breen, for the appellant
Amber Pashuk, for the respondent
Heard: February 28, 2013
On appeal from the conviction entered by Justice Margaret F. Woolcott of the Superior Court of Justice, dated August 30, 2011.
By the Court:
[1] The appellant appeals his conviction on the charges of importing opium and possession of opium.
[2] The facts are as follows.
[3] On July 25, 2010, a package addressed to “H. Rahman” was intercepted at the Hamilton International Airport. Canada Border Services Agency (“CBSA”) personnel found the package to be suspicious and investigated it further. It contained an unlocked briefcase which in turn was wrapped in a black plastic bag. The briefcase contained children’s clothes and shoes. CBSA agents discovered approximately one kilogram of opium concealed in the hard shell of the briefcase. The waybill listed the importer as H. Rahman and listed the appellant’s home address.
[4] An unsuccessful attempt at delivery resulted in a courier slip being left at the appellant’s front door. On the Friday before the long weekend in August, the appellant called the number on the delivery slip. This put him in contact with an undercover officer. He spelt his name for the officer, gave him his address and made arrangements for the package to be delivered that afternoon. The appellant told the officer that delivery of the package on Tuesday would be too late because he was going to America on Monday. When asked whether the package was for him, the appellant responded that he thought it was either for his wife or his son.
[5] Later that day, the appellant came down from his apartment to meet another undercover officer in the lobby of the apartment building. The officer requested identification and the appellant provided his driver’s license. The officer asked the appellant about the discrepancy between the name on the license, namely N. Rahmani, and the name on the package, namely H. Rahman. The appellant did not have an answer. They subsequently discussed the spelling of the name and the appellant stated that it should have been Rahmani and not Rahman. The appellant told the officer that the package had to be delivered that day because he and his family were travelling to the U.S. The officer gave a lookalike briefcase containing a small amount of opium to the appellant.
[6] The two parted company and the building was placed under surveillance. More than six hours elapsed and officers observed the appellant outside the building on two occasions. When the officers executed a search warrant later that evening, two individuals were found inside: the appellant’s 17 year old son, Omid, and a 27 year old family friend. One of the officers testified that Omid told him that his mother and brother were in Iran. The officers discovered the briefcase in the walk-in pantry concealed behind a tall white shelving unit filled with food staples and surrounded by a variety of pots and pans. It was covered with a box of demolition tools. The briefcase continued to be sealed and unopened and was in the same condition as it was when first delivered to the appellant. Concealed nearby, the officers found $8000 in cash bundles principally in $20 and $10 denominations. The officers also found $4500 in cash in the backpack of the family friend, the appellant’s business card identifying him as the owner of an import/export business, and the birth certificate of his son, Hewa.
[7] The only evidence before the court was that of the Crown’s witnesses.
[8] The appellant advances two grounds of appeal.
[9] First, he submits that the trial judge erred in relying on the out-of-court statement that the appellant’s wife and son were in Iran.
[10] The Crown concedes this error but argues that it was not determinative.
[11] In reaching her verdict, the trial judge enumerated 12 circumstances that she had considered, a few of which related to the out-of-court statement.
[12] That said, she indicated that she would have come to the same conclusion in the absence of that statement. We agree with her conclusion. The verdict would have been the same absent the error.
[13] We would not give effect to this ground of appeal.
[14] Second, the appellant submits that the finding of guilt was unreasonable.
[15] To establish possession, the Crown was required to prove both control and knowledge.
[16] Control of the package through acceptance of delivery having been conceded, the trial judge correctly noted that the only live issue was whether the appellant had knowledge of the contents of the package.
[17] The trial judge gave thorough reasons for her decision.
[18] There was no direct evidence of knowledge, however, the circumstantial evidence supported a finding of knowledge. This included the manner of acceptance and the concealment of the package. Based on the evidence before her, it was open to the trial judge to infer that the appellant had concealed the package and had the requisite knowledge. The verdict was not unreasonable.
[19] The appeal is dismissed.
Released: March 4, 2013 “JCM”
“J. C. MacPherson J.A.”
“J. MacFarland J.A.”
“S. E. Pepall J.A.”