COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ezechukwu, 2020 ONCA 8

DATE: 20200107

DOCKET: C66208

Hoy A.C.J.O., van Rensburg and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Francis Ezechukwu

Appellant

Ravin Pillay, for the appellant

David Quayat, for the respondent

Heard: December 19, 2019

On appeal from the conviction entered on November 6, 2017, with reasons reported at 2017 ONSC 5441, and the sentence imposed on April 17, 2018 by Justice Joseph M. Fragomeni of the Superior Court of Justice.

REASONS FOR DECISION

A. Introduction

[1] Francis Ezechukwu was convicted of importing cocaine, possession of cocaine for the purpose of trafficking, and conspiracy to import cocaine. He was sentenced to nine years imprisonment.

[2] On appeal, he submits that the trial judge: (1) misapprehended the evidence on matters that went to the core of the findings of guilt, (2) erred in his application of the law on importing and post-offence conduct, and (3) rendered an unreasonable verdict. The appellant has abandoned his sentence appeal.

[3] For the following reasons, we dismiss the appeal.

B. Facts

[4] On September 8, 2014, a package arrived at Toronto Pearson International Airport from Lima, Peru. The declared contents of the package were alpaca rugs and wool bags. It was shipped via FedEx and addressed to David Galino – Peruvian Arts, 1650 Dundas St. East, Mississauga, Ontario, telephone number (647) 924-2887. The commercial invoice for the package was dated September 5, 2014 and the FedEx receipt shows a direct shipment date of September 5.

[5] An officer of the Canadian Border Services Agency (the "CBSA") examined the package and discovered plastic pouches that contained a white powdery substance that he believed to be cocaine. At that point, custody of the package was transferred from the CBSA to the Royal Canadian Mounted Police (the "RCMP").

[6] The RCMP confirmed through Health Canada that the substance in the plastic pouches was cocaine, totaling 3,535 grams. In 2014, the value of the seized cocaine in the Greater Toronto Area, if sold at the kilogram level, was between $175,000 and $227,000. If sold at the gram level, the value was roughly $282,800.

[7] An RCMP constable prepared the package for a controlled delivery. He removed the cocaine, save for the 1.5-gram sample that had been tested by Health Canada. The RCMP unsuccessfully attempted a controlled delivery on two occasions on September 11, 2014. The same day, however, a male who identified himself as "Dave" called FedEx and inquired about the package. He confirmed the address and specified that it should be delivered to unit 265.

[8] On September 12, 2014, the RCMP attempted to deliver the package again. At 11:43 a.m., it was received by a man named David Gani, who took the package inside the foyer of 1650 Dundas and gave it to Randy Boddis. Gani then exited the premises without the package and went into a variety store where he was arrested.

[9] Boddis put a black garbage bag over the package and got into a taxi. The taxi travelled to an apartment building in Rexdale. A short time later, the appellant came out of the side door of the building. He approached the taxi and paid the fare. As the appellant and Boddis walked toward the door of the building, Boddis was carrying the package.

[10] When Boddis and the appellant neared the building, an RCMP officer, Corporal Randhawa, ran to the door, yelled "Wait, hold on!", and stopped the door from closing. Once he had control of the door, Corporal Randhawa yelled loudly, "Police — stop", several times and arrested Boddis. The appellant turned, looked Corporal Randhawa in the eyes, and ran. Another officer, Corporal Belfour, chased the appellant and called out "Police — stop" multiple times during the chase. At that point, Constable MacDougall, got out of his vehicle and yelled "Police — stop". The appellant heard this and changed directions, running into another building's courtyard. Another RCMP team member was there and tackled him.

[11] The appellant was arrested and searched incident to arrest. That search revealed, among other items, a piece of paper containing the following information: tracking number 804952423148, David Galino – 1650 Dundas Street East, Mississauga, Unit 265, M4X 2Z3, (647) 924-2887, 1 (800) 463-3339, and Payment Confirmation 91620927. The cash in the appellant's wallet totalled $820 CAD and $52 USD. A search of unit 206 of the apartment building resulted in the seizure of various documents with the appellant's name and/or address and a small bag of marijuana in the freezer.

[12] Cell phone records seized as part of the police investigation revealed several calls between a cell phone seized from the appellant and one of two phones seized from Boddis. Boddis's phone was in contact with the appellant's phone since at least August 27, 2014.

[13] Boddis's phone was also frequently in contact with the phone seized from Gani from July 2014 until September 11, 2014. During this same time period, Gani's phone and Boddis's phone were in contact with seven common contact numbers. On September 12, 2014, Gani's phone and the second phone seized from Boddis were, collectively, in contact with a common number nine times.

C. Analysis

(1) Did the trial judge misapprehend the evidence?

[14] The appellant submits that the trial judge misapprehended the evidence. Specifically, in his analysis of conspiracy charge, the trial judge stated at para. 113 that he was relying on "[t]he number of telephone exchanges during the relevant time period up to and including the day of the controlled delivery, namely September 12, 2014. These exchanges included contact with Gani and Boddis, who received the package containing the cocaine from the cover."

[15] The appellant submits that this finding was contrary to the evidence. Indeed, the parties explicitly stated in the Agreed Statement of Facts that there was no contact between the appellant's phone and the cell phone linked to Gani. The appellant submits that this erroneous finding "significantly advanced the case for the Crown" because it connected the appellant to the prime mover in the scheme.

[16] The appellant also takes issue with the trial judge's conclusion at para. 123 of his reasons that "[t]he false address of 1650 Dundas St. East with the name Peruvian Arts was designed and calculated by the [appellant] to avoid detection by not using his own name and address." The appellant submits that there was no evidence capable of supporting the finding that he designed the false address. Notably, the document in the appellant's possession did not name "Peruvian Arts". According to the appellant, this erroneous finding elevated him to the prime mover of the alleged conspiracy.

[17] Finally, the appellant submits that the trial judge erred in finding that his flight from the police was evidence of his state of mind. At trial, the defence took the position that the flight was equally consistent with a violation of his parole for possession of marijuana and therefore had no probative value. The trial judge rejected that argument, finding that there was no evidence that his actions breached his parole terms. The appellant submits that the trial judge erred in this regard because possessing marijuana was a breach of his condition to obey the law and keep the peace.

[18] In R. v. Gill, 2019 ONCA 902, at para. 10, this court considered the standard to be applied to an alleged misapprehension of evidence:

The standard applied when misapprehension of evidence is said to warrant reversal of a conviction is a stringent one. The misapprehension of the evidence must relate to the substance of the evidence, not simply a matter of detail. It must be material, rather than peripheral to the reasoning of the judge. But that is not all. The errors alleged must also play an essential part, not just in the narrative of the judgment, but in the reasoning process resulting in the conviction. Misapprehensions of evidence amount to a miscarriage of justice only if striking the misapprehension from the judgment would leave the judge's reasoning on unsteady ground. [Citations omitted.]

[19] Regarding the post-offence conduct, we agree with the Crown's submission that it strains credibility that a small quantity of marijuana located in an apartment some distance away would be capable of explaining the appellant's flight when he was proximate to a large amount of cocaine. Accordingly, we are not satisfied that the trial judge made a factual error in rejecting the argument that the appellant's post-offence flight was equally consistent with a violation of his parole.

[20] It is not entirely clear that the trial judge meant to convey that there had been contact between the cell phone seized from the appellant and the one seized from Gani. Earlier in his reasons, at para. 96, he noted that the parties agreed that there had been no such contact between these phones. For the purposes of this analysis, we are prepared to accept that the trial judge erred on this point. We are also prepared to accept that the trial judge erred in finding that the appellant designed the false address.

[21] These errors must be placed in context of a very strong Crown case. The compelling evidence of the appellant's guilt included his possession of the paper with the shipping details, the numerous telephone calls between the appellant and Boddis, and the fact that he met and paid for the taxi and was leading Boddis into the apartment. While direct evidence of communication between Gani and the appellant would have strengthened the Crown's case, it was not essential to the convictions. Similarly, whether the appellant "designed and calculated" the false address and business name was of marginal relevance.

(2) Did the trial judge err in his application of the law on importing and post-offence conduct?

[22] The appellant submits that the trial judge made two errors of law in his analysis. First, relying on R. v. Bell, 1983 CanLII 166 (SCC), [1983] 2 S.C.R. 471, he argues that the trial judge failed to consider whether the importing had been complete when Gani received the package. According to the appellant, a proper application of importing in Bell would have precluded a conviction.

[23] The appellant's reliance on Bell is misplaced. At para. 128 of his reasons, the trial judge made clear that he was convicting the appellant based on his being a principal to the importation. The trial judge found that the appellant knew that the cocaine was being imported into Canada. That finding was open to him based on the record. In particular, the appellant's possession of the shipping details of the package — including a unit number at 1650 Dundas that was not included in any of the shipping documents — and the telephone contact with Boddis's phone that predated the shipment of the package, provided a compelling evidentiary basis for this finding. Given the appellant's involvement as a principal on this count, it is not dispositive that Gani received the package and the appellant never touched it.

[24] Second, the appellant submits, relying on R. v. Chambers, 2016 ONCA 684, 342 C.C.C. (3d) 285, that because there were multiple offences charged, the trial judge erred in failing to consider whether the post-offence conduct was probative of one, two, or all three of the offences. He argues that the flight from police was only potentially relevant to the possession for the purpose of trafficking count.

[25] We disagree. The appellant's guilt of the offences charged turned largely on the same underlying factual matrix. It was thus unnecessary for the trial judge to tie his analysis of the post-offence conduct to a particular count. Nor are we of the view that the post-offence conduct could only potentially be relevant to the possession for the purpose of trafficking count. It was circumstantial evidence that the appellant was engaged in criminal conduct, regardless of the precise charge.

[26] In any event, given the strong circumstantial evidence of guilt, even if the appellant's flight was excluded from the evidence, we are not satisfied that it would have impacted the trial judge's findings of guilt.

(3) Did the trial judge render an unreasonable verdict?

[27] The appellant submits that the trial judge erred in failing to find that a reasonable doubt arose from gaps in the evidence and in failing to find that inferences inconsistent with the appellant's guilt could be drawn from the evidence.

[28] The appellant's argument on this ground of appeal amounts to nothing more than an invitation to reweigh various pieces of circumstantial evidence in isolation. We decline to do so. Assessing the reasonableness of a verdict requires an appellate court to ask whether a trier of fact, properly instructed, could have returned a guilty verdict. It is not a re-trial and the appellate court must look at the evidence in its totality: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36.

[29] We note that the appellant elected not to testify. In considering the reasonableness of the verdict, we treat the appellant's silence as indicating that he could not provide an innocent explanation for his conduct. His failure to provide an innocent explanation at trial undermines the alternative inferences he says were available on the evidence: R. v. Dell (2005), 2005 CanLII 5667 (ON CA), 194 C.C.C. (3d) 321 (Ont. C.A.), at para. 35; R. v. An, 2015 ONCA 799, at paras. 15-16; R. v. Wu, 2017 ONCA 620, at para. 16.

[30] In our view, the evidence against the appellant was overwhelming and no inference short of guilt on all three charges was available. Accordingly, we reject this ground of appeal.

D. Disposition

[31] For the foregoing reasons, the conviction appeal is dismissed. The sentence appeal is dismissed as abandoned.

"Alexandra Hoy A.C.J.O."

"K. van Rensburg J.A."

"C.W. Hourigan J.A."