Court of Appeal for Ontario

Date: October 1, 2018 Docket: C63862

Justices: LaForme, Watt and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Daniel Onyedinefu Appellant

Counsel

Paul Calarco, for the appellant

Sarah Shaikh, for the respondent

Heard

September 24, 2018

Appeal Information

On appeal from the convictions entered on July 25, 2016 and the sentence imposed on November 9, 2016 by Justice Joseph M. Fragomeni of the Superior Court of Justice.

Reasons for Decision

Introduction

[1] The appellant does not dispute that he had physical possession of a sealed box containing 146 grams of heroin, which was delivered by FedEx. This originated in India and came to Canada by way of the United States.

[2] The appellant's main argument at trial – as he testified - was that he was involved in several schemes to import goods from various countries and knowingly posed as a realtor to gain access to empty homes where drop off could be made. However, he claimed he believed the goods he would be receiving were electronics for which he would receive a fee of $800.

[3] The trial judge found the appellant's version neither credible nor plausible. He convicted him of importing heroin, and possession of heroin for the purpose of trafficking. He was sentenced to: (i) six years' imprisonment for importing; and (ii) a concurrent term of six years' imprisonment for possession for the purpose of trafficking. He was credited with seven months for pre-sentence custody.

[4] The appellant appeals his conviction and seeks leave to appeal his sentence. As we explain, none of the grounds of appeal against his conviction are persuasive and the appeal is dismissed. Further, we find no reason to interfere with the sentence imposed.

The Conviction Appeal

[5] On his conviction appeal, the appellant advances several grounds.

[6] First, the appellant argues that the trial judge failed to properly apply both the mens rea and actus reus of importing. More specifically, the appellant's complaint is that the offence of importing was complete before he accepted the package and there is no evidence that he was responsible for importing the drugs.

[7] We disagree. 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 of the scheme.

[8] 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.

[9] Second, the appellant argues it was an error for the trial judge to find that the appellant knew heroin was in the package and that he was willfully blind as to the contents. We see no error in the trial judge's analysis.

[10] The trial judge's reasons, when read as a whole, reveal that he found the evidence supported a finding of knowledge, or at the very least, wilful blindness. This court has made it clear that the entirety of the evidence can support a trial judge's conclusion that a person knew the package contained narcotics, or was wilfully blind as to its contents: R. v. Ifejika, 2013 ONCA 531, at paras. 4 and 8. Thus, even if it can be said that the trial judge's reasons are equivocal on this issue, it is clearly one or the other, which is sufficient in law.

[11] Third, the appellant submits the trial judge ignored, or failed to understand or apply relevant evidence and, instead of drawing inferences based his findings on speculation. The appellant complains that the trial judge essentially foreclosed consideration of other inferences that may be drawn from the evidence. Specifically, he argues that the evidence points to his involvement in a criminal activity - importing electronics - but not the criminal activity of importing heroin and possession of heroin for the purpose of trafficking. We disagree.

[12] It is well established that a trial judge is not required to "negate every possible conjecture" which might be consistent with the innocence of the accused: see R. v. Villaroman, 2016 SCC 33, at para. 33. Here the trial judge specifically turned his mind to the fact that this was a circumstantial case and that he could only find the appellant guilty if he was satisfied beyond a reasonable doubt that guilt was the only rational conclusion: Reasons for Judgment, at para. 88.

[13] The trial judge considered the appellant's explanation and found his version of events to be irrational. Having rejected the appellant's evidence that he believed the package contained electronic equipment, there was only one reasonable inference available on the totality of the evidence: he had knowledge of the presence of a controlled substance and the intention to import it. The trial judge's reasons for decision make it clear as to why he did so and reveal no error. He made a finding open to him, and one that is reasonable in all the circumstances.

[14] Fourth, the appellant's assertion that the trial judge's reference to the appellant not having opened the package amounted to a reversal of the burden of proof is not persuasive. That is, he says the trial judge improperly required the appellant to disprove the Crown's case when he found that, when the appellant became aware that he was under surveillance, he did not open the package to ensure it only contained the electronics he was expecting. We agree with the Crown; the trial judge was simply referencing that, for wilful blindness to be made out, the Crown had to prove that the appellant was aware of the need to make an inquiry but failed to do so. This did not amount to a reversal of the Crown's onus of proof.

[15] Fifth, the appellant argues that the cross-examination of him by the Crown was demeaning, sarcastic, and injected the Crown's personal views into the trial. During cross-examination, the Crown suggested that he was not caught every time that he had committed a fraud and called the appellant a liar several times. There are several other examples the appellant provides that are not necessary for us to repeat in order to decide this issue.

[16] In considering whether cross-examination resulted in a miscarriage of justice, this court must draw the line between conduct that is merely improper and conduct that compromises trial fairness. Only the latter will justify ordering a new trial: R. v. A.G., 2015 ONCA 159, at para. 22. In determining whether the cross-examination resulted in a miscarriage of justice, the overall effect of the improper questions in the context of the full cross-examination and the entire trial must be considered: A.G., at para. 25.

[17] The Crown's cross-examination arguably did cross the line at times. However, when viewed in the context of the entire trial, we are not satisfied that the instances complained of were prejudicial. At no time during the trial did the appellant object, or seek a mistrial. Moreover, he did not refer to any allegation of improper Crown conduct in his submissions to the trial judge. Finally, on other occasions, such as when Crown counsel called the appellant a liar, the trial judge intervened and properly exercised his gatekeeping function.

[18] Looking at the entirety of the trial, the Crown's cross-examination did not render the trial unfair or result in a miscarriage of justice.

[19] For these reasons, the appeal against conviction is dismissed.

The Sentence Appeal

[20] The appellant also appeals against the sentence imposed on the possession for the purpose of trafficking count. He does not challenge the six year sentence imposed for importing heroin. His position is that if his appeal on the importing conviction is successful, the sentence imposed for possession for the purpose of trafficking should be reduced.

[21] Given the result on the conviction appeal, the harmful nature and amount of heroin involved, the financial motive for the heroin offences, and the appellant's prior criminal record, the sentence imposed by the trial judge is fit. We would, therefore, grant the appellant leave to appeal sentence but dismiss the appeal from sentence.

H.S. LaForme J.A.

David Watt J.A.

Gary T. Trotter J.A.