COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chibani, 2016 ONCA 952

DATE: 20161215

DOCKET: C59781

Feldman, MacPherson and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Charbel Chibani

Appellant

Robert C. Sheppard, for the appellant

Marie Comiskey and Erin K. Carley, for the respondent

Heard: December 12, 2016

On appeal from the conviction entered by Justice Terrence L. J. Patterson of the Superior Court of Justice on October 8, 2014, and from the sentence imposed on November 28, 2014.

ENDORSEMENT

[1] The appellant, Charbel Chibani, was convicted of conspiracy to export ecstasy into the United States by Patterson J. of the Superior Court of Justice. He was sentenced to six years’ imprisonment for this offence.

[2] The appellant appeals the conviction and the sentence.

[3] Three people were charged with conspiracy to export a prohibited drug: the appellant, Mary Ann Habib (“Habib”), and a man named Ahmid or Hamid (“Ahmid”).

[4] On the afternoon of October 28, 2009, Habib drove a Nissan van from Windsor to Detroit. On the U.S. side, she was detained by Customs officers, the van was searched, and about 57,000 ecstasy pills were found in a hidden compartment in the cargo area.

[5] Habib was arrested for unlawfully importing the drug into the United States. Canadian police were brought into the investigation. Habib co-operated with the police, telling them that she had been enlisted by the appellant and Ahmid to drive the van across the border to Detroit, there to receive further instructions by cell phone about the next steps in the trip.

[6] On instruction from U.S. Homeland Security investigators, Habib made cell phone calls to the appellant. The calls were recorded (some partially, some fully) by the investigators. Habib followed the instruction to lead the appellant to believe that she was now in Detroit and was ready to carry on. On the appellant’s direction, Habib contacted and met with Mo Baghdadi, a Detroit resident. Baghdadi was arrested by U.S. Customs officers. They conscripted him into the cell phone conversations with the appellant.

[7] Habib pleaded guilty in Detroit to attempted importation of a prohibited drug. She received a sentence of 32 months’ imprisonment.

[8] At the appellant’s trial in Windsor, there were two principal categories of evidence against the appellant – Habib’s testimony and the recorded conversations involving the appellant, Habib and Baghdadi.

[9] The appellant appeals his conviction on four grounds.

[10] First, the appellant contends that since it is possible that the trial judge accepted Habib’s testimony that she did not know that there were drugs in the van (she said that her part in the enterprise was to drive the van to Detroit and then “do something involving drugs”), the consequence would be that there was insufficient evidence to prove that Habib was a party to the charged conspiracy.

[11] We do not accept this submission. Even without Habib, there was strong evidence that the appellant and Ahmid were joined in a common purpose to export ecstasy into the U.S. Habib met with the appellant and Ahmid in Windsor. Ahmid handed Habib the keys to the Nissan van. The appellant loaded her suitcase into the back where the drugs were found by U.S. authorities secreted within the back of the van. She was given both the appellant’s and Ahmid’s cell phone numbers to contact once she crossed the border. And in recorded calls between Habib and the appellant he uses the word “we” when indicating his concern when she did not call right away. Together with the fact that the ecstasy was secreted in the van that was given to Habib to drive across the border, all the circumstances were sufficient for the trial judge to conclude that the appellant and Ahmid formed an agreement to export the ecstasy to the U.S.

[12] Second, the appellant submits that the trial judge erred by concluding that the appellant’s anxiousness during his telephone conversations with Habib corroborated Habib’s testimony about the reasons for the trip to the U.S.

[13] We are not persuaded by this submission. In R. v. Lepage, 2008 BCCA 132, 232 C.C.C. (3d) 411, leave to appeal refused, [2008] S.C.C.A. No. 249, Hall J.A. said, at para. 42:

Telephone conversations between participants in a conspiracy furnish cogent and reliable evidence of the very essence of the conspiracy. It is undeniably the best evidence that exists concerning what is occurring between the conspirators.

[14] Referring to the appellant’s anxious, agitated phone conversation with Habib after Habib arrived in Detroit, the trial judge said:

In my opinion, this represents circumstantial evidence that Chibani was the person who set up the agreement to export ecstasy across the border. This call was not that of a friend commenting about a delay in getting a phone call after she had crossed the border. This was a person who was clearly worried and was aware there was something to worry about, namely, the border authorities and the illegal drugs being in the vehicle and her possible arrest.

[15] We see no error in this reasoning and the inference that the trial judge drew from it.

[16] Third, the appellant asserts that the trial judge needed to exercise greater caution in assessing Habib’s credibility, especially against the backdrop of a reduced sentence in the U.S. proceedings in return for her testimony in the Canadian trial.

[17] We disagree. It is not this court’s function to “recalibrate the weight assigned to evidence at one remove from the trial process”: R. v. M.K., 2016 ONCA 589, at para. 8. The trial judge who heard Habib’s testimony was entitled to conclude:

I’m satisfied that she testified not only because she was obligated to do so… because of her agreement with the U.S. authorities and her reduced sentence but that because she wanted to answer all the questions put to her honestly and to the best of her ability.

[18] Fourth, the appellant contends that non-disclosure, inadequate disclosure, and late disclosure led to a trial that proceeded in a piecemeal way. This meant that Habib testified on three occasions and, the appellant submits, required the trial judge to take this into account in considering Habib’s credibility because the interruptions gave her an opportunity to “tidy up” problems apparent in her earlier testimony.

[19] We reject this submission. The appellant offers no specifics with respect to this generalized claim.

[20] The appellant submits that a six year sentence was too harsh; a fit sentence would be in the three to four year range.

[21] At trial, the Crown asked for a sentence of 5-6 years. The trial judge imposed a sentence at the high end of the range. The trial judge acknowledged the progress the appellant has made in turning his life around while on bail. However, he concluded that the circumstances of the offence warranted the imposition of a six year sentence. We commend the appellant for the positive steps he has taken both in his work and family life. However, the trial judge made no error in imposing the sentence he did. The appellant had a previous record for drug offences. He was trying to export about 57,000 ecstasy pills to the U.S. The usual target of ecstasy is young people. Finally, the appellant did not drive the van himself; he recruited a woman, Habib, to take the front-line risk of trying to cross an international border with a huge stash of prohibited drugs.

[22] The conviction and sentence appeals are dismissed.

“K. Feldman J.A.”

“J.C. MacPherson J.A.”

“C.W. Hourigan J.A.”