WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:
539. Order restricting publication of evidence taken at preliminary inquiry.— (1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry
(a) may, if application therefor is made by the prosecutor, and
(b) shall, if application therefor is made by any of the accused,
make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,
(c) he or she is discharged, or
(d) if he or she is ordered to stand trial, the trial is ended.
(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Date: 2015-11-03
Court File No.: Brampton 14-7715; 14-8458
Parties
Between:
Her Majesty the Queen
— AND —
Saidi Sanni Olufeko, Peter Ajiri, Akeem Onaola and Tajudeen Fanikayode
Before the Court
Before: Justice Copeland
Heard on: September 28, 29, 30, October 1, 2, 19, 21, 22, 26, and 27, 2015
Reasons for Judgment released on: November 3, 2015
Counsel
- Ms. C. Afonso — counsel for the PPSC
- Mr. D. Rechtshaffen — counsel for Saidi Sanni Olufeko
- Mr. J. Kirichenko — counsel for Peter Ajiri
- Mr. D. Sarikaya — counsel for Akeem Onaola
- Ms. L. Thomas — counsel for Tajudeen Fanikayode
COPELAND J.:
Introduction
[1] Saidi Sanni Olufeko, Peter Ajiri and Akeem Onaola are each charged with importing heroin, conspiracy to import heroin, possession of heroin for the purpose of trafficking, and conspiracy to possess heroin for the purpose of trafficking. Tajudeen Fanikayode is charged along with the other three defendants on three of the four counts, but not charged with the substantive offence of possession of heroin for the purpose of trafficking. These counts relate to approximately 10 kg of heroin allegedly hidden in long straws woven into carpets. The carpets were imported into Canada from Pakistan. The evidence on the preliminary inquiry consisted primarily of evidence in relation to the seizure of the carpets on arrival in Canada in June 2014, and a controlled delivery and surveillance on June 19 and 20, 2014. In addition, evidence was led in relation to the fruits of searches of the residences of the four defendants, and searches of three of the defendants and the vehicles they were in at the time of their arrests.
[2] Mr. Onaola is also charged on a separate Information with possession of heroin for the purpose of trafficking, 6 counts of possession of a counterfeit mark in relation to 5 allegedly fake Ontario driver's licences and one allegedly fake citizenship card, and 5 counts of possession of a forged document with intent in relation to 5 allegedly forged Visa cards with the same names as the 5 driver's licences.
[3] On consent of the parties, the evidence for the preliminary inquiries on both Informations was heard together.
[4] The prosecution filed an application to adduce credible or trustworthy evidence pursuant to s. 540(7) of the Criminal Code. Ultimately, the defendants all consented to that application, with two caveats, which the prosecution agreed to. First, for the witnesses called in the first week of evidence (officers Cowan, Oliveros, D. Smith, Nguyen, I. Singh, and McCutcheon), the court should only rely on their viva voce evidence, and should not consider their notes which had been included in the s. 540(7) application. Second, the statements made at the time of arrest by any of the defendants and summaries of them which had been included in the s. 540(7) application should not be considered by the court because the Crown had not sought to prove voluntariness of the statements for purposes of the preliminary inquiry. Subject to these caveats, I consider the remainder of the evidence in the s. 540(7) application to be credible and reliable for purposes of assessing whether the Crown has met the test for committal.
1. Counts on Which Committal is Not Contested
[5] Mr. Olufeko and Mr. Onaola each consent to committal pursuant to s. 549 of the Criminal Code of Canada on all four counts in the Information charging importing heroin and conspiracy to import heroin, possession of heroin for the purpose of trafficking and conspiracy to possess heroin for the purpose of trafficking. Based on the consent, I commit Mr. Olufeko and Mr. Onaola to trial on those counts.
[6] In addition, Mr. Onaola consents to committal pursuant to s. 549 on all but three counts on the separate Information which contains only charges against him. Based on that consent, I commit Mr. Onaola to trial on counts 1-7, 11 and 12 of that Information. The counts which are contested in relation to Mr. Onaola are counts 8-10 of that Information, which involve charges contrary to s. 368(1)(d) of the Criminal Code of Canada in relation to 3 Visa cards alleged to be forged in the names of Paul Koly, Chris Thys, and Kevin Mark. I will address those counts in due course.
[7] With respect to Mr. Ajiri, Counsel for the Public Prosecution Service does not seek committal on the counts of importing heroin and conspiracy to import heroin. Mr. Ajiri is discharged on those counts (counts 1 and 3). Mr. Ajiri consents to committal for trial on the counts of possession of heroin for the purpose of trafficking and conspiracy to possess heroin for the purpose of trafficking. Mr. Ajiri is committed to trial on those counts (counts 2 and 4).
[8] Mr. Fanikayode contests committal on all three counts with which he is charged (counts 1, 3 and 4). I will outline my reasons in relation to those counts in due course.
2. Law in Relation to the Test for Committal
[9] Section 548 of the Criminal Code mandates a committal if there is "sufficient evidence" to put the accused on trial. The test for sufficiency is the Shephard test: any evidence upon which a reasonable jury, properly instructed, could return a guilty verdict: United States v. Shephard, [1977] 2 S.C.R. 1067.
[10] Assessing the quality and the reliability of the evidence is not permitted at this stage of the proceedings; rather, the Crown's case is to be taken at its highest in those respects.
[11] The test for committal is the same whether the evidence is direct or circumstantial. However, the nature of the preliminary inquiry justice's task varies, depending on whether the Crown's case is based entirely on direct evidence or whether the Crown's case relies on circumstantial evidence. Where there is direct evidence of all of the essential elements of the offence, the task of the preliminary hearing justice is straightforward: there must be a committal for trial. The task is more complicated when the Crown relies on circumstantial evidence: R. v. Arcuri, [2001] 2 S.C.R. 848 at paras. 22-23.
[12] Where the Crown's case includes circumstantial evidence, the justice must engage in a limited weighing of the whole of the evidence, including any defence evidence, in order to determine whether a reasonable jury properly instructed could return a verdict of guilt of the charge alleged or of any lesser offence. While this weighing does not require consideration of the inherent reliability of the evidence itself, the preliminary inquiry justice must assess the reasonableness of the inferences that may be drawn from the circumstantial evidence. Where the Crown relies on circumstantial evidence, the question is whether the elements of the offence which the Crown has not proven by direct evidence may reasonably be inferred from the circumstantial evidence.
[13] To answer this question, the justice is required to engage in a limited weighing of the evidence, because with circumstantial evidence, there is, by definition, an inferential gap between the evidence adduced and the fact sought to be established. The issue is whether the evidence is rationally capable of supporting the inferences the Crown seeks to have drawn from it. It is for the jury to determine if the inferences should actually be drawn, but it is for the preliminary inquiry justice to determine whether the inferences alleged may reasonably be drawn.
[14] When determining if inferences may reasonably be drawn, the preliminary inquiry justice must weigh the evidence in a limited way. If the evidence is not rationally capable of supporting the inferences the Crown seeks to have drawn, it is not sufficient evidence to warrant committal.
[15] As noted by Ducharme J. in R. v. Munoz, [2006] O.J. No 446 (ONSC) at para. 29, courts have repeatedly cautioned against confusing a reasonable inference with mere speculation. Where an inferential gap exists, it can only be properly overcome by evidence. At para. 31 he explains that "...the requirement of reasonable or logical probability is meant to underscore that the drawing of inferences is not a process of subjective imagination, but rather is one of rational explication. Supposition or conjecture is no substitute for evidence and cannot be relied upon as a basis for a reasonably drawn inference."
[16] In R. v. Charemski, [1998] 1 S.C.R. 679, McLachlin J., as she then was, stressed the relationship of the sufficiency test to the principle of reasonable doubt. She explained at paragraph 30:
First, "sufficient evidence" must mean sufficient evidence to sustain a verdict of guilt beyond a reasonable doubt; merely to refer to "sufficient evidence" is incomplete since "sufficient" always relates to the goal or threshold of proof beyond a reasonable doubt. This must constantly be borne in mind when evaluating whether the evidence is capable of supporting the inferences necessary to establish the essential elements of the case.
[17] The courts have also made clear that for an inference to be reasonable, the inference does not need to be "compelling" or "easily drawn": see R. v. G. W., [1996] O.J. No. 3075 (ONCA) at para. 62; R. v. Katwaru, [2001] O.J. 204 (ONCA) at paras. 39-41; Munoz, supra at para. 21.
[18] Moreover, any competing inferences are for the jury to resolve; it is jurisdictional error for a preliminary hearing judge to weigh competing inferences or choose among them: R. v. Campbell, [1999] O.J. 4041 (ONCA) at 165; R. v. Montour, [2002] O.J. No. 141 (ONCA) at paras. 3-5. Where more than one inference can be drawn from the evidence, "only the inferences that favour the Crown are to be considered": R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635 at para. 18.
[19] In effect, in this case where committal is contested on some counts on issues relating to circumstantial evidence, I must decide whether the inferences the Crown seeks to rely on are speculative, in which case they are not open to a jury and I must discharge, or if the inferences are ones that a reasonable jury, properly instructed could draw, even if they may be viewed as perhaps weak inferences.
3. Contested Counts Relating to Mr. Onaola
[20] The counts which are contested in relation to Mr. Onaola are counts 8-10 of the separate Information. These counts involve charges contrary to s. 368(1)(d) of the Criminal Code of Canada in relation to 3 Visa cards alleged to be forged in the names of Paul Koly, Chris Thys, and Kevin Mark.
[21] Counsel for Mr. Onaola does not contest for purposes of the preliminary inquiry that these documents were found in a storage locker associated with an apartment unit that a reasonable jury could infer was occupied by Mr. Onaola. Thus, he does not contest that a reasonable jury, properly instructed could find that Mr. Onaola possessed these items (knowledge and control). Rather, he argues that the test for committal is not met on these counts because the Visa cards at issue have expiry dates that pre-date the date of the alleged offence. In essence, counsel argues that because the Visa cards are expired, the Crown cannot meet the committal test.
[22] Section 368(1)(d) creates a possession offence. The offence is proven if a person: 1) possesses a forged document; 2) knowing or believing it to be forged; and 3) has an intent to use, deal with or act on it as if it were genuine, or an intent to cause or attempt to cause any person to use, deal with or act on it as if it were genuine (I will not address the intent in s. 368(1)(c), as I accept that there is no evidence of an intent on the part of Mr. Onaola to sell or transfer the Visa cards).
[23] I understand counsel for Mr. Onaola to contest committal only on the ground that he argues there is not sufficient evidence that a reasonable jury, properly instructed, could find one of the intended prohibited uses in s. 368(1)(a) to (c). In any event, I have no difficulty in concluding that test for committal is met for the possession and knowledge elements of the offence. I base this conclusion on the cards being found in a storage locker which there is evidence was associated with Mr. Onaola's apartment, the evidence that the Visa cards are in names other than Mr. Onaola's, and the evidence that the associated driver's licences found in the same location all bear the same names and Mr. Onaola's photograph.
[24] This leaves the issue of whether there is sufficient evidence for committal on the element of intent to use, deal with or act on it as if it were genuine, or an intent to cause or attempt to cause any person to use, deal with or act on it as if it were genuine.
[25] It is important to underline that offence created by s. 368(1)(d) is based on proof of possession with knowledge of the nature of the document, and intent to use the document in one of the prohibited manners. Section 368(1)(d) does not require proof of actual use of the document in the prohibited manner; it only requires an intent to use the document in the prohibited manner. Actual use (or sale or transfer) is only required to be proven if the charge is under s. 368(1)(a), (b) or (c). Nor does s. 368(1) require proof of any particular manner of use or intended use (for example to make a purchase), as long as the use or intended use is "as if [the document] were genuine". Nor do any of the subsections of s. 368(1) require that there be prejudice or loss to a third party as a result of the use or intended use.
[26] The offence date for the contested counts is "on or about the 24th day of June, 2014", which is the date the cards were found in the search of the storage locker associated with Mr. Onaola's apartment. The expiry dates on the three cards for which committal is contested are: "04/14", "09/13" and "04/14".
[27] Counsel for Mr. Onaola argues that there is no evidence that Mr. Onaola intended to use the credit cards for one of the purposes set out in s. 368(1)(a) to (c). He argues that because they are expired as of the date of the offence, the cards could not be used, for example, at a store to make a purchase. And he argues it is speculative to conclude that Mr. Onaola intended to use them as if they were genuine. He contests the argument made by counsel for the Public Prosecution Service that an expired credit card retains value as a piece of identification, and that a jury could infer an intent to use it for a purpose such as a secondary piece of identification, or to obtain another piece of identification in a fake name, or another credit card.
[28] In the context of all the evidence before the court, I reject the defence argument. The evidence before the court includes the following:
That in the storage locker associated with the apartment that there is evidence was occupied by Mr. Onaola's, were found 5 driver's licences with names, dates of birth and addresses different from Mr. Onaola's, but with his photograph.
In the same storage locker, 5 Visa cards were found with the same 5 names as the 5 driver's licenses with Mr. Onaola's picture. The counts for which committal is contested relate to three of these Visa cards.
There is evidence from which a jury could find that at least one other alias was used by Mr. Onaola, Dave Brewer. There is also evidence from which the jury could find that the alias Dave Brewer was used to rent the storage locker at issue in the importing counts, and a mailbox at an address on Bay Street in Toronto. Dave Brewer is a different alias and not one of the names on the credit cards where committal is at issue.
There is documentary evidence that the name Paul Koly, which is the name used on the card in count number 8 on which committal is contested (and on the driver's licence in count number 5 for which committal is not contested), was used to rent a storage locker on two occasions at the public storage facility in 2013. One of these documents was found in the search of Mr. Onaola's apartment, and one in the search of Mr. Fanikayode's apartment. I acknowledge the point made by defence counsel that these documents show that these transactions were paid in cash and a credit card was not used. But I find that this is evidence from which a jury could find that Mr. Onaola used at least some of his aliases, including one that is on one of the Visa cards for which committal is contested, in transactions with third parties.
[29] In the context of this evidence, I find that a reasonable jury, properly instructed, could find that a person who possesses 3 Visa cards with false names, and has 3 driver's licences with matching false names, possesses those cards with intent to use, deal or act on them, or cause any person to use deal or act on them as if they were genuine (the possible intended uses under s. 368(1)(a) and (b)). I find that this inference is supported by the evidence that Mr. Onaola has carried out transactions in the past with third parties using a false name, including the false name on one of those cards (Paul Koly).
[30] While evidence of actual use one of the cards at issue would be necessary if the committal was sought under s. 368(1)(a)-(c), which speak to actual use of a forged document, such evidence is not necessary for committal under s. 368(1)(d) on a charge of possession of a forged document with one of the prohibited intents. I find that a reasonable jury properly instructed could infer the prohibited purpose from the fact of having a credit card in a fake name, and a matching fake driver's license, and from the past history of using a fake name for transactions. Section 368(1) does not require proof of any particular manner of use or intended use (for example to make a purchase). All the section requires in the context of the possession offence in 368(1)(d) is that the possessor intend to use, deal or act on or cause someone to use, deal or act on the forged document "as if it were genuine".
[31] In the circumstances of this case, where the Visa cards were found in the storage locker with matching driver's licences with the same fake names, and with Mr. Onaola's picture on each of the driver's licences, would be an entirely reasonable inference for a jury to draw that Mr. Onaola possessed the credit cards for purpose of using, dealing or acting on them or causing someone to use deal or act on them "as if they were genuine", despite the fact that they were expired. Indeed, it is difficult to think of any other purpose for possessing the credit cards.
[32] For these reasons, I commit Mr. Onaola to trial on counts 8-10 of the separate Information.
4. Contested Counts in Relation to Mr. Fanikayode
[33] Mr. Fanikayode contests committal on all three counts against him (importing heroin, conspiracy to import heroin, and conspiracy to possess heroin for the purpose of trafficking). The analysis of the issues in relation to committal for Mr. Fanikayode requires consideration of the relationship between the legal requirements for conspiracy, and the test for committal at a preliminary inquiry.
[34] In very summary form, Mr. Fanikayode argues that, while there may be evidence from which a reasonable jury, properly instructed could find that there is a conspiracy to import heroin, and a conspiracy to possess for the purpose of trafficking, as well as a common intention to commit the substantive offence of possession for the purpose, a reasonable jury, properly instructed could not find, either on a balance of probabilities or beyond a reasonable doubt, that he is a member of the conspiracy or common intention.
a. Law in Relation to Conspiracy
[35] The essence of the offence of conspiracy is proof of an agreement between the alleged parties to the conspiracy. It is not necessary that the object of the conspiracy be carried out, but only that the parties made an agreement to do it. To convict a defendant of conspiracy, a trier of fact must be satisfied beyond a reasonable doubt that: 1) the alleged conspiracy existed; and 2) that the defendant was a member of it: R. v. Carter, [1982] 1 S.C.R. 938; R. v. Rojas, [1997] O.J. No. 3756 at paras. 4-5 (ON Gen. Div.).
[36] A charge of conspiracy may be proven by evidence directly admissible against a particular defendant, or it may be proven by a combination of directly admissible evidence, and the acts and declarations by of other alleged participants in the conspiracy, made in furtherance of the unlawful purpose. The use of the co-conspirators exception to the hearsay rule is based on the principle of agency. In order for it to be engaged, the trier of fact must first find that the particular defendant is a probable member of the conspiracy, based evidence directly admissible against him: Carter, supra; Rojas, supra at paras. 6-8.
[37] The manner in which a trier of fact should approach the possible use of the acts or declarations of co-conspirators is well-established in Carter:
(i) Is the trier of fact satisfied beyond a reasonable doubt of the existence of the conspiracy?
(ii) If so, is the trier of fact satisfied based on the evidence directly admissible against the particular defendant that he is a probable member of the conspiracy? The test at this stage is on a balance of probabilities.
(iii) If so, the trier of fact can then consider the acts and declarations of other alleged participants in the conspiracy in deciding if they are satisfied beyond a reasonable doubt that the particular defendant is a member of the conspiracy (see also R. v. Chang (2003), 173 C.C.C. (3d) 397 at para. 53 (ONCA)).
[38] Although a trier of fact is not entitled to use the acts of other participants against a defendant at the second stage of the Carter analysis, the trier of fact is entitled to look at the evidence directly admissible against the defendant in the context of the actions of other participants. That is, the evidence directly admissible against the defendant is not to be looked at in isolation at the second stage of the Carter analysis: R. v. Filiault and Kane (1981), 63 C.C.C. (2d) 321 (ONCA), affirmed, [1984] 1 S.C.R. 387; R. v. Munoz, supra at para. 43. As I will outline below, this principle has some importance in this case, because the evidence of the alleged acts by Mr. Fanikayode must be assessed in the context of what the other alleged members of the conspiracy were doing at the times Mr. Fanikayode is alleged to have taken certain actions himself.
[39] The Carter analysis also applies to substantive offences where they are alleged to have been the product of a common design between the alleged perpetrators: R. v. Koufis, [1941] S.C.R. 481; R. v. Baron and Wertman, (1976), 31 C.C.C. (2d) 525 (ONCA). Thus, for purposes of considering the one substantive offence with which Mr. Fanikayode is charged, possession of heroin for the purpose of trafficking, the approach is the same as for the conspiracy offences, because the offence is alleged to have been committed by way of a common design.
[40] The substantive offence of importing a controlled drug requires that the defendant know that the substance at issue is a controlled drug, and that the defendant bring the substance into the country or cause it to be brought into the country: R. v. Bell, [1983] 2 S.C.R. 471. Conspiracy would require an agreement to do this.
[41] The substantive offence of possession of a controlled substance for the purpose of trafficking requires that the defendant know that the substance at issue is a controlled drug, and that the defendant possess the substance for the purpose of trafficking, as defined in s. 2(1) of the Controlled Drugs and Substances Act. Conspiracy would require an agreement to do this.
[42] The substantive offences of importing and possession for the purpose of trafficking both require knowledge that the substance at issue is a controlled drug; although it is not necessary that the defendant know what specific controlled drug it is: R. v. Ukwuaba, 2015 ONSC 2953, [2015] O.J. No. 2349 at para. 101 (SC). As a result, it is also required for conspiracy to commit those offences that the defendant know that the substance at issue is a controlled drug.
[43] In this case, the prosecution alleges that Mr. Fanikayode was a party to the offences with which he is charged. In order to be a party to either the conspiracy offences, or the substantive offence of possession for the purpose, a jury would have to find that Mr. Fanikayode aided in carrying out the substantive offence or the conspiracy, and that he had knowledge of the object of the conspiracy (to import a controlled drug, to possess a controlled drug for the purpose of trafficking), and intended his assistance to aid in achieving that object: Ukwuaba, supra at para. 104.
b. Relationship Between Conspiracy Law and Committal Test
[44] Counsel for the Public Prosecution Service and for Mr. Fanikayode are in agreement that the correct approach to committal on charges involving allegations of conspiracy involves modifying the Carter analysis to take into account how the test for committal at a preliminary inquiry differs from the task of a judge or jury at the end of a trial. They are also in agreement that this involves effectively only considering the first two branches of the Carter analysis. That is, first considering if there is sufficient evidence that a reasonable jury, properly instructed could find that the alleged conspiracy exists; and second, considering based on the evidence directly admissible against Mr. Fanikayode, is there sufficient evidence that a reasonable jury, properly instructed could conclude that he is probably a member of the conspiracy.
[45] This approach is supported by the decision of Justice Watt in Rojas, supra, at paras. 9-17, and subsequently followed in USA v. Mahoney, [2002] O.J. No. 1457 (SC) at paras 45-53; and USA v. Drysdale, [2000] O.J. No. 214 (SC) at paras. 105-108. In Rojas Justice Watt held that the test a preliminary inquiry judge should apply in deciding if the committal test is met on a count of conspiracy is to consider: "whether there is any evidence upon which a reasonable jury, properly instructed, could find: (i) that the conspiracy alleged existed, and (ii) that the accused was a member of it." He further explained that where there is some evidence of the defendant's membership in the conspiracy, the prosecutor's burden has been met, and that as a result, it is unnecessary to consider the third branch of the Carter analysis at the committal stage: Rojas at paras. 13-17.
[46] In light of the decision of the Supreme Court of Canada in Arcuri, I read Justice Watt's language of "any evidence upon which a reasonable jury, properly instructed, could find" as meaning "sufficient evidence" as that term is explained in Arcuri. On the first branch of the Carter analysis that would refer to sufficient evidence for a jury to make the finding on the reasonable doubt standard. On the second branch of the Carter analysis, it would refer to sufficient evidence directly admissible against the defendant that a reasonable jury, properly instructed, could find on a balance of probabilities that he was a member of the conspiracy.
[47] In light of the fact that Rojas is binding authority on me, I will follow its approach in determining committal for Mr. Fanikayode. However, I must confess that I have some misgivings about whether, in light of the subsequent Supreme Court of Canada decision in Arcuri, supra, a preliminary inquiry judge may also be required to consider the sufficiency of the evidence to prove membership beyond a reasonable doubt on the third branch of Carter. That is, should a preliminary inquiry judge also ask herself whether a reasonable jury, properly instructed could find membership in the conspiracy beyond a reasonable doubt when considering all of the evidence, including the acts or declarations of other participants? That is the approach which was taken in R. v. Petraitis and Rinella, 2005 ONCJ 449 at paras. 42-46; R. v. Atkins et al, 2010 ONCJ 262 at paras. 21-23; USA v. Trotter, 2013 BCSC 1985 at para. 31, affirmed on other grounds, 2015 BCCA 413; R. v. Buckingham (1998), 124 C.C.C. (3d) 348 (Nfld. CA) (none of these cases explicitly consider the analysis in Rojas).
[48] It seems to me that given the different burdens at the second stage and third stage of the Carter analysis, there could be a case where a preliminary inquiry judge might find that reasonable jury, properly instructed could find probable membership in the conspiracy under the second branch of the Carter analysis using only the evidence directly admissible against a particular defendant, but depending on the nature of the evidence, could also find that a reasonable jury, properly instructed, could not make that finding beyond a reasonable doubt even including the acts and/or declarations of the co-conspirators. Such an approach seems more consistent with Arcuri in light of its focus on the requirement of sufficient evidence, and not merely some evidence. It also seems more consistent with the recognition in Carter, supra at pp. 947-48 that a jury must be instructed in a conspiracy case that even if they find probable membership on the second branch of Carter, they must go on to consider if membership is proven beyond a reasonable doubt on the third branch, and that if they are not satisfied beyond a reasonable doubt on the third branch, they must acquit (compare to paragraphs 11 and 15 of Rojas).
[49] However, on the evidence before me as the preliminary inquiry judge in relation to Mr. Fanikayode, since the only real contentious issue for purposes of committal is whether there is sufficient evidence that Mr. Fanikayode was probably a member of the conspiracy (the second step of Carter, viewed through the lens of the preliminary inquiry judge's task), I find that whichever approach is taken to how the Carter analysis should be applied at a preliminary inquiry, I would come to the same conclusion regarding whether the test for committal is met. In this respect, this case fits in the paradigm Justice Watt posited in Rojas: if there is sufficient evidence that Mr. Fanikayode was probably a member of the conspiracy, then there must be a committal to trial; if there is not sufficient evidence that a reasonable jury properly instructed could draw the conclusion that he was probably a member of the conspiracy, then he must be discharged: Rojas, supra at para 16.
c. Application to Counts Against Mr. Fanikayode
[50] With respect to the first branch of the Carter analysis, counsel for Mr. Fanikayode conceded that there was sufficient evidence that it would be open to a reasonable jury, properly instructed, to find beyond a reasonable doubt that a conspiracy to import heroin existed, and to find the substantive offence of importing heroin committed by a common design. With respect to the offence of possession of heroin for the purpose of trafficking committed by a common design, counsel did not concede that a reasonable jury could find the first branch of Carter was met, but she did not make any submissions to the contrary.
[51] I have no difficulty in concluding that it would be open to a reasonable jury, properly instructed, to find the existence of a conspiracy to import heroin, the substantive offence of importing heroin committed by way of a common design, and the substantive offence of possession of heroin for the purpose of trafficking committed by way of a common design. I will not summarize all of the evidence that leads me to this conclusion, but the primary points are the following:
Approximately 10 kg of heroin was imported into Canada from Pakistan secreted in straws woven into carpets. A reasonable jury could infer in the context of all of the evidence that a significant level of planning was required to do this. The package was shipped to a company called CBV Collections, with a business address in Hamilton.
From the surveillance evidence, a reasonable jury could infer that on June 19, 2014, Mr. Onaola was involved in the release of the package from Customs and ensuring its safe transport to the public storage facility, including physically unloading the carpets from the delivery truck and securing them in the storage locker rented in the name Dave Brewer. There is evidence from which a reasonable jury could find that Dave Brewer is an alias used by Mr. Onaola.
From the surveillance evidence, a reasonable jury could also infer that Mr. Olufeko and Mr. Fanikayode were doing counter-surveillance on June 19 at the Costco parking lot across from the public storage facility around the time that the carpets were being delivered. I address the evidence of this in relation to Mr. Fanikayode below in considering the second branch of the Carter analysis. Mr. Olufeko was observed walking around the Costco lot, looking around and looking in parked cars.
From the surveillance evidence and records from the public storage facility, a reasonable jury could find that on the afternoon of June 20, 2014, Mr. Olufeko was present in the Costco lot across from the public storage facility doing counter-surveillance (manner of driving), and that at approximately 4:47 p.m. he briefly entered the unit in the storage facility where the carpets were stored.
From the surveillance evidence, a reasonable jury could find that on June 20, 2014, between approximately 5:15 and 5:30 p.m., Mr. Onaola and Mr. Ajiri attended at the public storage facility, and looked at the carpets, and then removed some carpets from one of the rolls that had contained carpets with heroin in them, and placed them in the Honda Accord driven by Mr. Onaola. They then removed the carpets from the car, after Mr. Onaola had been on the telephone, and placed them back in the storage locker.
The takedown was called immediately after this, at 5:30 on June 20, 2014. At the time of his arrest, Mr. Ajiri had on his person a pair of scissors, and a card with the access code to the storage locker with the carpets. The cell phone seized from Mr. Onaola at the time of his arrest was for the phone number that the custom's broker provided to CBSA as associated with the shipment. Also found in Mr. Onaola's car was the receipt for the storage locker the carpets were put in, in the name of Dave Brewer (an alias of Mr. Onaola).
At the time of his arrest, documents found in the front console of Mr. Olufeko's car included a copy of the air waybill for the shipment of carpets at issue, a copy of a Yahoo Mail printout of the itinerary of that shipment, and a piece of paper with handwriting on it of the air waybill number of the carpet shipment, and the numbers "4, 5, 6", which were the rolls of carpet which had carpets in them which contained heroin (of the 13 rolls of carpet in the shipment, 3 rolls contained carpets with heroin in them).
Searches conducted after the arrests included documents linking Mr. Onaola to the company CBV Collections to which the shipment of carpets had been sent, and a copy of the waybill for the shipment that contained the carpets with the heroin in Mr. Onaola's apartment.
There were also various documents found in some of the defendant's apartments linking the various defendants to each other (for example documents in one defendant's apartment with the name of another defendant).
The amount of the heroin, 10 kg, is sufficient standing alone for a reasonable jury, properly instructed, to infer that the purpose of the possession was for trafficking. This is such a large amount that expert evidence is not required. In addition, that inference is supported by the bowls, rubber gloves, respirator masks and baggies found in Mr. Onaola's apartment that police testified in their experience are items used for cutting heroin.
[52] The evidence summarized above is sufficient for it to be open to a reasonable jury, properly instructed, to find that the first branch of the Carter analysis is satisfied beyond a reasonable doubt. I note that in coming to this conclusion, I have considered the well-established case law holding that knowledge of the nature of the substance at issue in an importing or possession offence can be inferred from the combination of the value of the substance, and evidence that the defendant has been entrusted with possession of the substance. The theory being that, depending on all of the circumstances, the other members of a conspiracy would not entrust the defendant with something of such value unless he was a partner in the conspiracy: Ukwuaba, supra at para. 101. The evidence of Mr. Onaola's, Mr. Olufeko's and Mr. Ajiri's access to the locker where the carpets were stored, and the evidence of Mr. Onaola's and Mr. Olufeko's possession of documentation in relation to the international shipment of the carpets is sufficient in the context of the rest of the evidence for a reasonable jury to infer knowledge that the shipment contained controlled drugs. I will deal with the issue of what a jury could infer with respect to Mr. Fanikayode's knowledge under the second branch of the Carter analysis.
[53] I turn then to the second branch of the Carter analysis. As outlined above, under the second branch of the Carter analysis, a preliminary inquiry judge must consider whether a reasonable jury, properly instructed, could find that Mr. Fanikayode is a probable member of the conspiracy.
[54] I will summarize the key points of the evidence directly admissible against Mr. Fanikayode:
On June 19, 2014, at 11:30 a.m. a Chrysler 300 and a silver Dodge minivan were seen by police and border services officers at the Vista Cargo terminal at the Toronto Airport. There were three black males observed with the minivan, and one black male with the Chrysler 300. One male from the minivan was observed standing in the bushes, and one up in a stairwell in one of the buildings. Both vehicles then left the cargo terminal area, and were observed to appear to slow down briefly on Airport Road as if they were meeting up. Then both vehicles left the area. At this time license plates for the vehicles were not obtained.
On June 19, 2014, at 1:30 p.m. police and border services officers observed a black Chrysler 300 driving around the Vista Cargo terminal parking lot lanes slowly. The Chrysler 300 then circled around to the employee parking lot and went into that lot. Then the Chrysler 300 came back and parked with its rear facing the Swissport building. After a few minutes, the Chrysler 300 moved to another parking space and parked facing Swissport. The Chrysler 300 left the area at 1:47 p.m. Counsel for Mr. Fanikayode conceded for the purposes of the preliminary inquiry that the driver of the Chrysler 300 at this time was Mr. Fanikayode, and that the car was registered to him.
Although the acts of the other participants in the alleged conspiracy are not admissible against Mr. Fanikayode at this stage of the analysis, they may be considered as the context in which Mr. Fanikayode's actions took place. In particular, it is important context that the observations of Mr. Fanikayode driving around the Vista Cargo parking lot and changing parking spaces occurred immediately before and at the same location as the truck arrived to pick up the carpet shipment and deliver it to the public storage location. The truck arrived at the cargo terminal for the pick-up at 1:54 p.m., and left to drive to the public storage 2:39 p.m. Shortly thereafter, Mr. Onaola's vehicle was observed driving near the truck en route to the public storage facility.
On June 19, 2014, at 2:15 p.m., the black Chrysler 300 was observed by police arriving at the Southeast corner of the Costco parking lot, across the street from the public storage facility at 32-36 Queen Elizabeth Blvd. At 2:20 p.m., the Chrysler 300 was observed driving around the Coscto parking lot. The driver was observed to be a black male. At 2:55 p.m., the driver of the Chrysler, who was wearing purple shorts and a black hat, was observed out of his car and walking Northbound in the Costco lot. At approximately 3:17 p.m., the Chrysler was observed driving around the Costco lot, and then parked next to the Honda Accord associated with Mr. Onaola. At approximately 3:39 p.m. and 3:41 p.m., the Chrysler driver was observed walking around the Costco parking lot, with a cell phone in his hands, typing on the cell phone, and looking into other vehicles, apparently to see if anyone was in the vehicles, and also continually looking East towards the public storage facility. Shortly after this the Chrysler left the area. In court, at least one officer identified Mr. Fanikayode as the driver of the Chrysler that day. At 4:30 p.m., the Chrysler was observed driving Southbound on the street between the Costco and the public storage facility. The driver stopped the car, with his windows down, and looked at the public storage facility, and then drove on. 6 minutes later, he pulled into the exterior parking lot of the public storage facility, and reversed and went Northbound up the street. He then pulled into the Costco parking lot and continued to drive around. Counsel for Mr. Fanikayode conceded for the purposes of the preliminary inquiry that the driver of the Chrysler 300 at this time was Mr. Fanikayode, and the car was registered to him, and that he was the male in the purple shorts.
Again, although the acts of the other participants in the alleged conspiracy are not admissible against Mr. Fanikayode at this stage of the analysis, they may be considered as the context in which Mr. Fanikayode's actions took place. In particular, it is important context that the observations of Mr. Fanikayode occurred immediately before, during, and immediately after the arrival of the carpets at the public storage facility and the unloading of the carpets into a locker into the public storage facility. The truck arrived with the carpets at 3:23 p.m. The carpets were unloaded between approximately 3:27 and shortly after 4:00 p.m. into a locker in the public storage facility. Again, Mr. Fanikayode was in proximity at the same time and same place as a significant movement of the carpets.
One June 20, 2015, if the evidence of Cst. Oliveros is accepted as credible, which I must find is open to a jury for purpose of the preliminary inquiry, the Chrysler 300 registered to Mr. Fanikayode was observed in the Costco parking lot from 8:50 a.m. to shortly after 9:00 a.m. in the Southwest corner of the Costco parking lot across from the public storage facility, then driving to the northern part of the Costco lot, and then parking facing towards Costco and the public storage facility. The Chrysler was again observed at 10:42 a.m., slowly driving through the Costco lot. Although the police were not able to specifically identify the driver at this time, Cst. Oliveros' evidence was that she saw the license plate of the vehicle (registered to Mr. Fanikayode), and that the driver was a black male. I note that counsel for Mr. Fanikayode did not concede that the driver of the Chrysler on June 20 was Mr. Fanikayode.
There was evidence found in the various searches of the defendants from which a jury could infer that Mr. Fanikayode was friends with Mr. Olufeko and Mr. Onaola. In the search of Mr. Fanikayode's apartment, a copy of a permanent resident application by Mr. Fanikayode from 2012 was found, which listed Mr. Olufeko as a reference, and described him as a friend for 18 months. In Mr. Olufeko's vehicle at the time of his arrest on June 20 was found a visitor's parking pass for the address where Mr. Fanikayode lives, which had expired the previous day. In Mr. Olufeko's residence was found a receipt in the name of both Mr, Olufeko and Mr. Fanikayode (Republic of Benin document), and an Ontario motor vehicle registration document in the name of Mr. Fanikayode. With respect to his relationship with Mr. Onaola, there were pay slips from an earlier time period in the name of Mr. Fanikayode from Onus Ventures, a company apparently run by Mr. Onaola, and a letter from Mr. Onaola for Mr. Fanikayode stating that Mr. Fanikayode was an employee of Onus Ventures. In Mr. Fanikayode's apartment a receipt for the same public storage facility from August 2013 was found in the name of Paul Koly, which other evidence supports was an alias used by Mr. Onaola.
When Mr. Fanikayode's apartment was searched, police found, purple shorts and a black hat which matched the description of the clothes worn by the Chrysler 300 driver on June 19, and two Burger King receipts dated June 19, 2014 and timed 4:22 p.m. from the Burger King at the North end of the Costco lot.
[55] Before going further in my analysis of the evidence, I note that I accept the submission of counsel for Mr. Fanikayode that the evidence about a Chrysler 300 seen at the cargo terminal at the Toronto Airport in July 2012 at the time that a previous shipment to CBV Collections cleared customs is not evidence on which a reasonable jury could draw a conclusion that it was Mr. Fanikayode in that car in 2012. I based this conclusion on the lack of any identification of the driver of the Chrysler in 2012, and on the evidence in the s. 540(7) application that the Chrysler 300 Mr. Fanikayode was driving in June 2014 was a 2013 model, and it seems unlikely that a 2013 model would have been available as early as July 2012. Thus, it would be speculative to draw the inference that it was Mr. Fanikayode who was observed in July 2012 at the cargo terminal. As a result, I do not rely on the evidence of the involvement of a Chrysler 300 at the time of the clearance of the 2012 shipment through customs in reaching my conclusions in relation to committal for trial of Mr. Fanikayode.
[56] Several of the police witnesses testified that they believed the manner of Mr. Fanikayode's driving at the cargo terminal and at the Costco parking lot on June 19, 2014, and his actions in walking around the Costco parking lot in the manner observed on June 19 constituted counter-surveillance – checking to make sure that the actions of the parties were not observed by police. I find that a reasonable jury, properly instructed, could draw this inference. I note that in coming to this conclusion I rely not on the conclusory assertions by the police witnesses that it looked like counter-surveillance behaviour, but rather on the manner of driving and walking and the particular actions described in the evidence. With respect to the driving, this includes the driving around slowly, the moving in and out of parking spaces, the locating of the vehicle so as to be able to view the movements of the carpets. With respect to Mr. Fanikayode's movements on foot at Costco, this includes the walking around the parking lot and looking at the public storage facility, and the walking around looking at other vehicles to see if they were occupied.
[57] As noted above, although the second stage of the Carter analysis requires that only the evidence directly admissible against Mr. Fanikayode be considered in assessing whether a jury could find he was a probable member of the conspiracy, as with any evidence, the evidence directly admissible against Mr. Fanikayode must be considered in context (see para. 38 above). In this case, the context is where and when the observations of Mr. Fanikayode on June 19, 2014 occurred, and what the other alleged participants in the conspiracy were doing at the same time.
[58] Based on the evidence from which the jury could infer that Mr. Fanikayode was conducting counter-surveillance on June 19, 2014, at the cargo terminal just prior to the time of the release of the carpets from customs, and then also later that day prior to, during and after the time that the carpets were delivered to an unloaded at the public storage facility, I find that a reasonable jury, properly instructed, could infer that he was working in concert with the other alleged co-conspirators to ensure that it was safe to receive the package when it was released from customs, and to transfer it for safe storage at the public storage facility. That is, a reasonable jury could find that if Mr. Fanikayode was doing countersurveillance before and around the time that the other participants were dealing with the customs clearance of the carpets, and again when the carpets were delivered to the public storage facility, the reason he was doing it was to assist the others.
[59] I also find that a jury could also reasonably infer that Mr. Fanikayode had knowledge of where the package was being picked up (the cargo terminal) and where it was being taken to (the public storage facility), because of his presence in both locations before and around the time that the other participants were taking significant actions in relation to the package (customs clearance and delivery to and unloading at the public storage facility). Given that he was present in both places, and that the first place was a pick-up facility for international cargo, a jury could infer that Mr. Fanikayode had knowledge that the package was being imported into Canada from elsewhere.
[60] As noted above, I find that that given the nature of the driving both at the cargo terminal, and at the Costco parking lot, and Mr. Fanikayode's manner of walking about the Coscto parking lot, a reasonable jury could infer that his actions were intended as counter-surveillance to assist the other participants in making sure that police were not present. In the context of all of the evidence, I find that from this, a reasonable jury could infer that Mr. Fanikayode knew at least that the contents of the package were of significant value, and that they were illegal. These inferences arise logically from the counter-surveillance behaviour. It is difficult to see why counter-surveillance would be required for an item that was not of high value, and not illegal (there are other ways to protect legal items of high value, including hiring security, and purchasing insurance). The nature of the driving, combined with its time and location in relation to the acts of the other alleged co-conspirators, allows the inference that Mr. Fanikayode was not just coincidentally present at the cargo terminal or at the Costco parking lot across from the public storage facility on June 19, 2014, but that he was acting in concert with the other participants: Ukwuaba, supra at para. 116.
[61] Thus, I find that a reasonable jury, properly instructed, could find that Mr. Fanikayode was a probable member in the conspiracy, and at least had knowledge that the shipment contained something illegal and of high value.
[62] The issue then becomes whether a reasonable jury, properly instructed could draw the further inference that Mr. Fanikayode knew not only that the common design involved importing and possessing something illegal, but also that the something illegal was a large amount of a controlled drug. Counsel for Mr. Fanikayode argues that this further inference is speculative, and that for this reason he should be discharged on all counts. Counsel argues that one could make an educated guess that Mr. Fanikayode would know that a large amount of controlled drugs would be a possible, or even likely, object of the conspiracy, such an inference would be speculative and not based on the evidence. I disagree that the inference that Mr. Fanikayode knew the object of the conspiracy was a large amount of a controlled drug is speculative.
[63] I come to this conclusion primarily based on two aspects of the evidence. First, as referred to above at paragraph 52, the courts have accepted that knowledge of the nature of the substance at issue in an importing or possession offence can be inferred from the combination of the value of the substance, and evidence that the defendant has been entrusted with possession of the substance. The theory being that, depending on all of the circumstances, the other members of a conspiracy would not entrust the defendant with something of such value unless he was a partner in the conspiracy: Ukwuaba, supra at para. 101.
[64] In this case, I find that it is open to a reasonable jury to find on the evidence before led at the preliminary inquiry that Mr. Fanikayode was trusted with knowledge of the location and movements of a package that there is evidence contained a very large amount of heroin. From this, a jury could also infer that he would not have been trusted with information about the location and movements of a package of this value unless he was a party to the conspiracy: Ukwuaba, supra at para. 101.
[65] I acknowledge that the evidence of the level of trust placed in Mr. Fanikayode is not of the same strength as is the evidence on this issue in relation to the other three defendants. There is evidence that each of the other three defendants either was in actual possession of the carpets, or was able to access the individual storage locker with the carpets. However, in light of Mr. Fanikayode's presence both at the cargo terminal and at the Costco across from the public storage facility on June 19, 2014, for significant movements of the carpets, and evidence from which a jury could infer he was aiding the participants by conducting counter-surveillance, I find that a jury could infer he had knowledge of the contents of the package.
[66] The second aspect of the evidence that leads me to find that a reasonable jury could find that Mr. Fanikayode knew that the shipment contained controlled drugs is the evidence of his relationships with Mr. Olufeko and Mr. Onaola. I want to stress that I do not rely on this evidence for an impermissible inference of guilt by association. Rather, I find that the prior relationships between Mr. Fanikayode and both Mr. Olufeko and Mr. Onaola is evidence from which a jury could infer that Mr. Fanikayode was not an unwitting dupe of Mr. Olufeko and Mr. Onaola, but rather was a participant with knowledge of the plan. That is, that a person is less likely to treat a friend as an unwitting dupe than they are to treat a stranger that way. In this respect, a useful contrast can be drawn between Mr. Fanikayode and the truck driver, who all parties appear to accept was an unwitting dupe. There is no evidence of any prior relationship between the truck driver and any of the defendants. The evidence at the preliminary inquiry is that the truck that drove the carpets from the cargo terminal to the public storage facility on June 19 was booked by the customs broker, and not by any of the defendants. And there is no evidence that the truck driver engaged in conduct such as counter-surveillance, or was aware that such conduct was going on at the time of the delivery of the carpets.
[67] In coming to the conclusion that there is sufficient evidence that a jury could infer that Mr. Onaola knew that the shipment contained a controlled drug, I have considered the case law drawing a distinction between permissible inferences and speculative inferences. A speculative inference cannot ground committal to trial. It is also clear from the case law that inferences around the issue of a defendant's knowledge of a particular fact or set of facts can be particularly difficult to analyze, and run the risk of drawing a jurist into speculative inferences: USA v. Huynh, [2005] O.J. No. 4074 (CA); Munoz, supra at paras. 22-31; USA v. Viscomi, 2015 ONCA 484 (leave sought to the Supreme Court of Canada, not yet decided). These cases make clear that the process of inference-drawing is one of rational explication. To be within the realm of proper inferences, an inference must be reasonably and logically drawn. If reason and logic do not permit an inference to be drawn, that gap must be bridged with evidence, and not with speculation.
[68] I find that the inference that Mr. Fanikayode knew that the shipment contained a controlled drug is not speculative. This case is quite different from Huynh, supra. In Huynh, there was no evidence at all of the source of the funds at issue. It was in that context that the Court of Appeal found it was speculative to infer that the source of the funds was drug trafficking, as opposed to some other illicit enterprise. In this case, there is no issue that the importing of controlled drugs is involved, and the quantity clearly permits the inference of a purpose of trafficking. The issue is whether a reasonable jury, properly instructed, could infer knowledge of the nature of the substance on the part of Mr. Fanikayode, or whether such an inference would be speculative. For the reasons given above I find that the inference of knowledge is open to a jury, and would not be speculative.
[69] Finally, if the analysis in Rojas of how the Carter analysis is to be applied at a preliminary inquiry has been superseded by Arcuri, and if I am required to consider whether considering all of the evidence, including the acts of the other participants in furtherance of the conspiracy, and assess whether a reasonable jury, properly instructed could find beyond a reasonable doubt that Mr. Fanikayode was a member of the conspiracy, I find that combining the analyses above at paragraphs 51-52 and 53-68, such a finding would be open to a reasonable jury.
[70] For these reasons I commit Mr. Fanikayode to trial on all three counts against him (counts 1, 3 and 4).
5. Conclusion
[71] For these reasons, Mr. Olufeko, Mr. Onaola and Mr. Fanikayode are committed to trial on all counts. Mr. Ajiri is committed to trial on the counts of possession of heroin for the purpose of trafficking, and conspiracy to possess heroin for the purpose of trafficking (counts 2 and 4). Mr. Ajiri is discharged on the counts of importing heroin and conspiracy to import heroin (counts 1 and 3).
Released: November 3, 2015
Justice J. Copeland