COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Anderson, 2020 ONCA 780
DATE: 20201229
DOCKET: C65857 & C67034
Pepall, van Rensburg and Brown JJ.A.
DOCKET: C65857
BETWEEN
Her Majesty the Queen
Respondent
and
Belinda Anderson
Appellant
DOCKET: C67034
AND BETWEEN
Her Majesty the Queen
Respondent
and
Shane Cumberbatch-Agard
Appellant
Marianne Salih, for the appellant Belinda Anderson
Chris Sewrattan, for the appellant Shane Cumberbatch-Agard
Xenia Proestos and Anjie Tarek-Kaminker, for the respondent
Heard: October 20, 2020 by video conference
On appeal from the convictions entered by Justice Robert B. Reid of the Superior Court of Justice, sitting with a jury, on May 17, 2018.
By the Court:
[1] After a trial by judge and jury, the appellants were convicted of importing cocaine and possession of cocaine for the purpose of trafficking. The latter convictions were conditionally stayed under Kienapple. Shane Cumberbatch[^1] was sentenced to three and a half years in prison, less pre-trial custody and Downes credit (R. v. Downes (2006), 2006 3957 (ON CA), 205 C.C.C. (3d) 488 (Ont. C.A.)), while Belinda Anderson was sentenced to two years less a day, less pre-trial custody, followed by two years’ probation.
[2] The appellants appeal their convictions. They assert that the convictions were unreasonable, and that they are entitled to be acquitted of all charges. They also argue that knowledge based on wilful blindness should not have been left with the jury, and that if this ground of appeal is successful, there should be a new trial. If their convictions for importing are set aside, but the convictions for possession for the purpose of trafficking remain, the appellants request a reduction of their sentences.
[3] For the reasons that follow, we dismiss the appeals.
A. Relevant Facts
[4] On August 9, 2016, the Canada Border Services Agency (“CBSA”) intercepted a package that was addressed to Harley Eckert at an address in St. Catharines, Ontario. The package appeared to have been sent from Jamaica and was labelled with a customs declaration listing various non-perishable food items as the contents. When the package was inspected, balls of suspected cocaine were discovered hidden in wrapped chocolate balls and tamarind balls. The Niagara Regional Police Service (“NRPS”) was contacted and removed the suspected cocaine for weighing and testing. The substance was confirmed to be cocaine, weighing approximately 187 grams. The NRPS reassembled the package with the same food items, replaced the chocolate balls with substitutes, left one cocaine ball in the package, and installed a tracking device that would also trigger and alert the police upon the opening of the package. The NRPS obtained a general warrant authorizing a controlled delivery of the package and authorizing the police to enter and search the place where the package was opened.
[5] On August 17, 2016 an NRPS undercover officer, disguised as a Canada Post employee, attended at the address on the parcel to deliver the package to Mr. Eckert. The officer was redirected to an alternate address for Mr. Eckert on Abbot St., also in St. Catharines, where he attended on the same day. Mr. Eckert identified himself and signed for the package at around 3:30 p.m. He took the package to the open trunk of a vehicle that was occupied by a female. At 6:10 p.m. Mr. Cumberbatch arrived by car at the Abbot St. address. As he began to drive away three minutes later, the tracking device indicated that the package was now in his vehicle.
[6] At 7:23 p.m., Mr. Cumberbatch was seen in a parking lot in a park in Jordan Station, where he parked next to a vehicle driven by Ms. Anderson, which had arrived at the same time. He transferred the package from his vehicle to the rear passenger seat of Ms. Anderson’s vehicle. The two remained in the parking lot, first in Ms. Anderson’s vehicle and then in Mr. Cumberbatch’s vehicle, for nearly an hour before they departed. Mr. Cumberbatch drove east toward St. Catharines, while Ms. Anderson drove west toward Hamilton. The tracking device indicated that the package was in Ms. Anderson’s car and the police followed her.
[7] At 8:45 p.m., Ms. Anderson arrived at her residence in Hamilton, where she carried the package inside. Ten minutes later she left the house in her vehicle; the tracking device indicated that the package remained inside the house, unopened. Ms. Anderson returned at around 9:39 p.m. with two adult males, a teenaged female, and a baby, who all entered the home. At around 9:47 p.m., the device in the package indicated that it had been opened. The police entered the residence and executed a search at 10:00 p.m. Ms. Anderson was found in the kitchen, standing next to the opened package with most of the food contents spread out and a cell phone in her hand. The bags containing the chocolates had been removed from the package and the house. The police found Donovan Gordon in a shed in the backyard apparently examining the tampered chocolates on a makeshift table with his cell phone flashlight. Latex gloves and the controlled cocaine sample were also on the table. The police arrested Ms. Anderson and Mr. Gordon. Later that evening, at about 11:44 p.m. Mr. Cumberbatch arrived as a passenger in a car that parked down the street from the residence, and he was arrested. Mr. Eckert was arrested the next day at the Abbot St. address.
[8] The appellants and Mr. Eckert were charged with unlawfully importing into Canada not more than one kilogram of cocaine, and with possessing cocaine for the purpose of trafficking. Mr. Cumberbatch was also charged with possession of proceeds derived from an offence. This charge stemmed from $285 that the police found in his wallet when they arrested him.
[9] The appellants were jointly tried with Mr. Eckert. The Crown called several CBSA, RCMP and NRPS officers who had been involved in the investigation. They testified about intercepting the package, receiving the package from CBSA, opening and dismantling the contents of the package, locating the suspected cocaine, sending samples to Health Canada for confirmatory analysis, repackaging the package for a controlled delivery, delivering the package to Mr. Eckert, conducting surveillance to follow the movement of the package, observing Mr. Cumberbatch transfer the package to Ms. Anderson’s vehicle, being notified that the device had triggered and that the package had been opened, entering Ms. Anderson’s residence, finding Mr. Gordon in the backyard shed, and arresting the various accused parties. On consent an expert witness testified about the value of the intercepted drugs, the amount of cocaine consumed daily by a heavy user, and the non-indigenous nature of cocaine.
[10] At the conclusion of the Crown’s case, the appellants brought applications for directed verdicts of acquittal. The applications were unsuccessful except for the dismissal of the proceeds of crime charge against Mr. Cumberbatch. None of the defendants testified and no defence evidence was called. The appellants and Mr. Eckert were convicted on the remaining charges.
B. Issues on Appeal
(1) Issue One: Were the Verdicts Unreasonable?
[11] On an appeal asserting that a verdict was unreasonable, the court must determine, on the evidence as a whole, whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. The question is whether the jury’s verdict is supportable on any reasonable view of the evidence and whether proper judicial fact-finding, applied to the evidence as a whole, precludes the conclusion reached by the jury: see R. v. Pannu, 2015 ONCA 677, 127 O.R. (3d) 545, at paras. 162-63, leave to appeal refused, [2015] S.C.C.A. No. 478 and [2015] S.C.C.A. No. 498; R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at paras. 71-73.
[12] The appellants submit that the verdicts were unreasonable for two reasons: first, because the importation had already ended before they became involved with the package containing the cocaine, and second, because no reasonable jury could conclude from their brief handling of the package that their knowledge of the controlled substance, and therefore their guilt, was the only reasonable inference.
(a) When did the importation end?
[13] The appellants’ first unreasonable verdict argument applies to their convictions for importing cocaine. They submit that there was no evidence that they assisted in the importation of the drugs into Canada because the importation ended when the package was delivered to Mr. Eckert. They contend that, by the time they handled the package, the importation was complete, and that, at best, they could be guilty of possession for the purpose of trafficking (assuming that their knowledge and control of the drugs were made out).[^2]
[14] In their directed verdict applications, the appellants and Mr. Eckert argued, among other things, that the importing was complete by the time they handled the package, however, their argument on this point was different from the one made on appeal. Relying on Bell v. The Queen, 1983 166 (SCC), [1983] 2 S.C.R. 471 as authority that importing is not a continuing offence, the appellants and Mr. Eckert argued at first instance that the offence of importing was complete when the package containing cocaine entered the country, that is, even before the controlled delivery to Mr. Eckert. The trial judge rejected this argument. He noted that the case law contemplates that the offence of importing is complete when the goods are received by the importer, and that in this case, Mr. Gordon could reasonably be viewed to be the importer given his apparent knowledge of the presence and location of the cocaine in the package. As such, the appellants and Mr. Eckert could be found guilty of importing, as parties to the offence who aided Mr. Gordon.
[15] This was the Crown’s theory at trial, and the approach taken when the case was put to the jury. Mr. Cumberbatch’s trial counsel, for example, described Mr. Gordon as “the last man standing” in the presence of the ball of cocaine and chocolates, and asserted that he was the true intended recipient of the package containing the drugs and had some role in its importation. And in his charge, the trial judge stated that “[f]or knowledge, the Crown counsel must prove that Ms. Anderson, Mr. Cumberbatch, and Mr. Eckert knew that Donovan Gordon intended to commit the offence of importing cocaine, although Crown counsel need not prove that they knew precisely how Mr. Gordon would commit the offence.” The jury was instructed that if they concluded that Mr. Gordon was the importer, they could consider whether the actions of the three accused constituted “aiding”.
[16] On appeal, the appellants make a different argument about when the offence of importation is concluded. They accept that, although importing is legally complete when contraband passes the border, the importation continues until it is factually complete, with the goods becoming available to the domestic[^3] recipient of the importation: see e.g., R. v. Foster, 2018 ONCA 53, 360 C.C.C. (3d) 213, at paras. 106, 108, leave to appeal refused, [2018] S.C.C.A. No. 127; R. v. Onyedinefu, 2018 ONCA 795, at para. 8. The appellants point out that these cases involved a single alleged importer. They contend that, by contrast, when there are multiple recipients, the importer is always the first domestic recipient, who in this case was Mr. Eckert. Again, they argue that they could not be found guilty of the offence of importing based on their handling of the package after it was received by Mr. Eckert, because by then the importation was complete.
[17] In support of their argument that Mr. Eckert, as the first domestic recipient of the package, was the importer, the appellants rely on this court’s decision in R. v. Buttazzoni, 2019 ONCA 645.
[18] InButtazzoni, the appellant appealed his conviction for conspiracy to import cocaine, which arrived in a shipment from Guyana. He had been acquitted of importing, after the trial judge concluded that his involvement with the drugs commenced after the shipment reached Ontario, and there was no evidence that he was involved in directing or causing another person, including his co-accused, Lawrence Dalloo, who was the consignee of the shipment, to bring the cocaine into Canada. Buttazzoni argued that he could not be convicted of conspiracy to import absent a finding that he had joined the conspiracy before the importation ended, that is, when the drugs entered Canada. The trial judge had not determined when he had joined the conspiracy. Feldman J.A. accepted that the Crown had to prove that Buttazzoni had joined the conspiracy before the completion of its object, which was the importation of the cocaine. However, she noted that the trial judge did not have the benefit of this court’s decisions in Fosterand Onyedinefu, which distinguished between the completion of the offence of importing in law and in fact. She held that the importation was factually complete when the cocaine became available to Dalloo and he took possession of it. The evidence was clear that Buttazzoni joined the conspiracy after the drugs arrived in Canada, but before the importation was factually complete. As such, his conviction for conspiracy was upheld.
[19] The appellants assert that this case is authority for the principle that an importation completes when the package is received by the first domestic recipient. They argue that Mr. Eckert, rather than Mr. Gordon, was in the same position as Dalloo in Buttazzoni and was the domestic recipient as contemplated in Foster, Onyedinefu, and Buttazzoni. Given that cocaine is a trafficked commodity, treating Mr. Gordon as the domestic recipient, and hence the importer, would improperly stretch the offence of importation and imply that a potential purchaser could also be characterized as an importer.
[20] We disagree. In Buttazzonithere was no question that Dalloo, who had pleaded guilty to importing, was the importer of the cocaine; indeed, the identification of the importer was not a live issue in that case. Dalloo also happened to be the first domestic recipient of the shipment. At issue on appeal was whether Buttazzoni was guilty of conspiracy to import; his acquittal for importing, and in particular whether he was a party to the importing by having aided Dalloo, was not in question. Buttazzoni does not stand for the principle that it is always the first domestic recipient who is the importer. Rather, as Bell has been interpreted, it is the identity of the “ultimate” domestic recipient (Onyedinefu, at para. 8), who may not be the first point of contact in Canada, that is important. The determination of when an importation is factually complete will depend on the evidence, including in circumstances where, as here, there is a controlled delivery and multiple parties are involved.
[21] In this case it was reasonable to infer that Mr. Gordon was the ultimate domestic recipient of the package containing cocaine, and therefore the importer of the cocaine. Although Mr. Eckert was the addressee, he did not open the package, but instead passed it on to Mr. Cumberbatch before it ultimately was opened by Ms. Anderson and/or Mr. Gordon. The fact that Mr. Gordon was found in a shed with the chocolates from the package, apparently looking for the hidden cocaine, was compelling evidence that he knew where to look for the drugs and that he was the ultimate domestic recipient. And in this case, quite reasonably none of the parties at trial suggested that Mr. Eckert was the principal importer of the cocaine, whether because he was the first domestic recipient or at all, although the package was addressed to him.
[22] If Mr. Gordon was the ultimate recipient of the package, as the evidence suggests, then, consistent with the Foster line of cases, the offence of importing was not factually complete until the package was received by him. In these circumstances then, the actions of the appellants in transporting the package to Mr. Gordon could be considered acts of aiding.
[23] We therefore reject the appellants’ argument that the importing verdict was unreasonable because the importation had ended before they became involved with the package containing the cocaine.
(b) Was the appellants’ guilt the only reasonable inference based on the circumstantial evidence?
[24] As this was a case where the element of knowledge that the package contained a controlled substance was based entirely on circumstantial evidence, the jury could not convict the appellants of importing or possession for the purpose of trafficking, unless the only reasonable inference from all of the evidence was that they had such knowledge: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 30-42. Other plausible theories or other reasonable possibilities must be based on logic and experience, applied to the evidence or the absence of evidence, and not on speculation: seeVillaroman, at para. 37.
[25] The jury was properly charged in respect of the circumstantial evidence, and in a manner consistent with the approach required by Villaroman. The appellants do not challenge the content of the charge on circumstantial evidence; rather they say that the jury’s verdict was unreasonable because no reasonable jury, acting judicially, would have concluded that the only reasonable inference from the circumstantial evidence was that the appellants knew the package contained a controlled substance.
[26] The appellants contend that there was no evidence about the relationship between the parties or of their communications. There was no evidence of what they were told about the contents of the package or why they were doing what they were doing. The only evidence respecting Mr. Cumberbatch was that he collected a food package two hours after it was received by Mr. Eckert, that he gave it to Ms. Anderson, with whom he sat, apparently chatting, for about an hour before driving away, and that he arrived at Ms. Anderson’s home about two hours after the package was opened. In Ms. Anderson’s case, the only evidence was that she received the package from Mr. Cumberbatch, and took it home, where it was opened about nine minutes after she had left the house and brought back two men, a teenager and a baby, and that she was standing by the opened package when the police entered the house. Mr. Gordon was not in her presence but was outside in a dark shed looking for cocaine in the chocolates. The appellants say that there may have been any number of reasons for the appellants’ actions in transporting the package that was delivered to Mr. Eckert and ended up with Mr. Gordon’s handling of the drugs. The appellants say that it was an equally reasonable inference that the appellants had no knowledge of the illicit contents of the package.
[27] We disagree. While the individual pieces of evidence may well have been open to reasonable alternative inferences, the circumstantial evidence considered as a whole allowed the jury to infer knowledge and therefore guilt beyond a reasonable doubt. As noted earlier, the question in determining whether the verdict is reasonable is whether the jury’s verdict is supportable on any reasonable view of the evidence and whether proper judicial fact-finding applied to the evidence as a whole precludes the conclusion reached by the jury: see Pannu, at para. 163.
[28] The evidence and available reasonable inferences include the following:
• Mr. Cumberbatch picked up an unopened package that was labelled as containing food items from Mr. Eckert, to whom the package was addressed, and, without opening it, simply drove it to an apparently pre-planned meeting location where he gave it to Ms. Anderson.
• Ms. Anderson received an unopened package from Mr. Cumberbatch that was labelled as containing food items and was addressed to Mr. Eckert, but she took it to her home where it was opened, apparently by her or in her presence.
• If the appellants believed the package contained the non-perishable food items that were listed on the customs declaration, there would have been no apparent reason for their haste in transferring and transporting the package the same day it was received by Mr. Eckert.
• The appellants, in transporting the package, each had exclusive control over its valuable contents – the 187 grams of cocaine that it originally contained was valued at $8,000 to $20,000. It was open to the jury to infer from the quantity and value of the drugs that the package would not have been entrusted to someone who did not know the nature of the contents: see Pannu, at para. 173.
• If the objective was to deliver a package containing only food items to Mr. Gordon, there would have been no reason for the circuitous route that was taken – passing from Mr. Eckert to Mr. Cumberbatch and then to Ms. Anderson. If Mr. Cumberbatch was going to Ms. Anderson’s house that evening, he could have taken the package with him at that time.
• The evidence suggested that Ms. Anderson had picked up the ultimate recipient of the cocaine, Mr. Gordon, as the package was opened shortly after she returned to the house with two males, a teenaged female and a baby.
• Ms. Anderson was in the house, standing by the opened package, when the police entered. The opening of the package had not been concealed from her.
• Mr. Cumberbatch arrived at the house after the package had been opened and the small amount of cocaine that was left in the package had been retrieved.
[29] The court is entitled to assess the reasonableness of the jury’s verdict having regard to the absence of any innocent explanation for the appellants’ actions. The absence of defence evidence is a factor in assessing the reasonableness of the jury’s verdict. As Watt J.A. notes in Pannu, at para. 175, the failure to testify on its own does not justify an inference of guilt, however, “[w]hat follows from a failure to testify … is the absence of an innocent explanation of inculpatory facts and thus a basis to conclude otherwise than guilt.” See also R. v. George-Nurse, 2018 ONCA 515, 432 D.L.R. (4th) 88, at paras. 31-35, aff’d 2019 SCC 12, [2019] 1 S.C.R. 570; R. v. Ezechukwu, 2020 ONCA 8, at para. 29.
[30] It is not the role of the court on an unreasonable verdict appeal to retry the case or in effect to act as a 13th juror; rather the question is whether the jury was entitled to find that the circumstantial evidence in light of human experience, when considered as a whole, and the absence of evidence could exclude all reasonable inferences other than guilt: see Pannu, at paras. 162-63; Villaroman, at paras. 30, 36 and 69.
[31] For these reasons we are satisfied that the verdicts here were reasonable, and we do not give effect to this ground of appeal.
(2) Issue Two: Was There an Air of Reality to Knowledge Based on Wilful Blindness?
[32] The trial judge instructed the jury as follows with respect to the knowledge element of the offence of possession for the purpose of trafficking:
Knowledge for each of the accused is established if the Crown proves beyond a reasonable doubt that the person knew the substance was cocaine, or that she or he thought it was some other substance in which trafficking is in fact prohibited. Knowledge is also established if the Crown proves beyond a reasonable doubt that the person was aware of indications about the illegal nature of the substance but deliberately chose to ignore those indications because she or he did not want to know the truth. This is sometimes referred to as “willful blindness” or “deliberate ignorance”.
[33] A similar instruction was given with respect to the knowledge component for importing.
[34] The trial judge instructed the jury to consider “based on the evidence, assessed logically and in light of [their] experience and common sense whether it is a reasonable inference to conclude that any one or more of [the appellants and Mr. Eckert] was actually aware of the nature of the substance, or that any one or more of them deliberately chose to ignore indications about the illegal nature of the substance because she or he did not want to know the truth.”
[35] The appellants argue that knowledge based on wilful blindness had no air of reality in this case, and as such it was an error of law to leave wilful blindness with the jury. They contend that there was no evidence that their suspicions were aroused to the point where they knew they should make inquiries, but deliberately chose not to make inquiries and to remain ignorant.
[36] To meet the air of reality standard, the Crown must be able to point to some evidence in the record which, if believed, would allow the jury to make the findings necessary to engage the doctrine of wilful blindness: see R. v. Burnett, 2018 ONCA 790, 367 C.C.C. (3d) 65, at para. 141. It is not necessary to have direct evidence; circumstantial evidence will suffice. In Burnett this court noted that “[t]o determine whether there was an air of reality to permit the jury to consider wilful blindness in proof of knowledge requires a consideration of the cumulative effect of the evidence adduced at trial”: at para. 156. The evidentiary threshold may be met by an accused’s own evidence, or “by the cumulative effect of several strands of circumstantial evidence from different sources woven together in a mosaic”: see Burnett, at para. 143; R. v. Onasanya, 2018 ONCA 932, at para. 24.
[37] The Crown asserts that the circumstantial evidence in this case was capable of supporting the conclusion that the appellants knew that the package contained cocaine, and that the same evidence was capable of supporting the conclusion that the appellants were suspicious and knew that there was a need to inquire but deliberately chose not to inquire. The situation was inherently suspicious, and the trial judge was correct to instruct the jury to consider the evidence on knowledge in determining liability through wilful blindness. Ms. Salih, who argued the wilful blindness ground of appeal, fairly acknowledged that the air of reality test would have been met if the circumstances were so inherently suspicious that the appellants could be taken to have been aware of the potential that the package contained contraband and chose not to make those inquiries.
[38] We agree with the Crown that the events and the circumstances respecting the package and its transportation were inherently suspicious, and that a reasonable inference from these events and circumstances was that if the appellants did not know that the package contained a controlled substance, it was only because they chose to remain deliberately ignorant. The circumstantial evidence was capable of supporting the reasonable inference that, if they did not know what the package contained, the appellants would necessarily have been suspicious of its contents and did not make the necessary inquiries.
[39] The circumstances included the same suspicious circumstances from which knowledge was a reasonable inference. Both appellants would have been aware that they were involved in transporting a package that was labelled as containing non-perishable food items from its addressee to someone else. Mr. Cumberbatch took it from Mr. Eckert, who was the addressee, and gave it to Ms. Anderson, who had no apparent relationship to the package and did not open it in his presence. Mr. Cumberbatch and Ms. Anderson apparently pre-arranged a meeting for the transfer of this package. Ms. Anderson took a package from Mr. Cumberbatch that was not addressed to Mr. Cumberbatch or to herself, but was addressed to Mr. Eckert, and she did not take it to Mr. Eckert, rather she took it home. What was in the package and why they were entrusted with its seemingly urgent transportation cried out for an explanation. It made little sense that they would be transporting the package in the manner that they did without either knowing what the package contained or having their suspicions aroused and deciding to remain deliberately ignorant.
[40] In our view the cumulative effect of the circumstantial evidence in this case met the threshold for leaving wilful blindness with the jury as an alternative route to concluding that the appellants had knowledge that the package contained a controlled substance.
C. SENTENCE APPEALS
[41] The appellants argue that, if this court were to give effect to their appeals only on the first issue, vacating their convictions for importing cocaine and substituting guilty verdicts on the possession for the purpose of trafficking offences, their sentences should be reduced under s. 686(3)(b) of the Criminal Code, R.S.C. 1985, c. C-46. In such circumstances, Mr. Cumberbatch would propose a reduction in his sentence from 3.5 years to three years, while Ms. Anderson would request a conditional sentence of two years less a day. The Crown asserts that the sentences imposed by the trial judge were fit, even if the importing convictions were set aside, and that the sentences therefore should not be disturbed.
[42] When he sentenced the appellants the trial judge indicated that, if Kienapple had not applied, he would have sentenced Ms. Anderson to 18 months concurrent and Mr. Cumberbatch to three years concurrent on the possession for the purpose convictions.
[43] Because we are dismissing the appeals entirely it is unnecessary to address the appellants’ sentences. If the appeals had been allowed on the first ground and this court had vacated the importing convictions, leaving the convictions on the possession for the purpose offences, we would have substituted the sentences the trial judge indicated that he would have imposed on a concurrent basis for the possession for the purpose convictions had he not applied Kienapple, in each case less time served in pre-trial custody and to account for the strict terms of bail.
D. Disposition
[44] For these reasons the appeals are dismissed.
Released: December 29, 2020 (“S.E.P.”)
“S.E. Pepall J.A.”
“K. van Rensburg J.A.”
“David Brown J.A.”
[^1]: In these reasons Mr. Cumberbatch-Agard is referred to as “Mr. Cumberbatch”, as this is how he was referred to during the trial, and in submissions in this court.
[^2]: In February 2021, two pending appeals (R. v. Hudson (C65962) and R. v. Okojie (C68428)) will be heard by a five-judge panel of this court. An issue in the appeals is when importation is complete. The five-judge panel will allow this court to reconsider, should it decide to do so, its previous decisions in R. v. Foster, 2018 ONCA 53, 360 C.C.C. (3d) 213, leave to appeal refused, [2018] S.C.C.A. No. 127, R. v. Onyedinefu, 2018 ONCA 795, and R. v. Buttazzoni, 2019 ONCA 645, and whether they are consistent with the Supreme Court’s decision in Bell v. The Queen, 1983 166 (SCC), [1983] 2 S.C.R. 471. In July 2020, this court contacted counsel in these appeals and asked whether they wanted to apply to have these appeals heard together with Hudson and Okojie by the same five-judge panel. Mr. Sewrattan (who also represents the appellant in Okojie), responded that Mr. Cumberbatch would not be seeking to join the five-member panel appeals, stated that these appeals do not cover the issue that the five-member panel may choose to reconsider, and requested a speedy date for the hearing of these appeals. Ms. Anderson’s counsel and Crown counsel confirmed that they supported having the present appeals heard separately from the five-judge panel appeals. We note that, while the five-judge panel appeals challenge Foster, Onyedinefu, and Buttazzoni, the appellants in the present appeals accept their authority, and in fact rely on Buttazzoni in their argument that the importing ended when the package was received by Mr. Eckert.
[^3]: While their factum used the term “intended recipient” to describe the importer of contraband, in oral argument the appellants asserted that the test is simply to determine who is the first domestic recipient.