Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Jacob Mensah

Before: Justice J. Ritchie

Heard on: May 18, 19, 20 and July 14, 2016

Released on: July 27, 2016

Counsel:

• C. Walsh, counsel for the Crown
• J. Carolin, counsel for Jacob Mensah

Decision on Preliminary Inquiry

RITCHIE J.:

Introduction

[1] This is the preliminary inquiry of Jacob Mensah. Mr. Mensah is accused of importing heroin into Canada and of possessing heroin for the purpose of trafficking. The Crown, with the consent of the Court, withdrew two conspiracy counts after all of the evidence was heard.

[2] Briefly, the facts in the present case are that officers with the American Homeland Security discovered drugs in a package coming from Pakistan and destined for Mr. Mensah's address in Toronto. The package was forwarded to the Canadian authorities, who seized most of the heroin and replaced it with an inert substance. An undercover RCMP officer, posing as a DHL courier, delivered the package to Mr. Mensah's address on September 10, 2014. Mr. Mensah signed for the package and took possession of it. A short time later, Mr. Mensah left his apartment, and RCMP officers arrested him.

[3] At the outset, I wish to thank Counsel for their professional approach to this preliminary inquiry, including their comprehensive submissions and the instructive case law that they provided. I have carefully considered the evidence, the submissions and the law.

The Legal Test

[4] There is only one issue on this inquiry, namely whether the evidence on the issue of Mr. Mensah's knowledge of the drugs is sufficient to meet the Sheppard test.

[5] The test for an order to stand trial is set out in the decision of the Supreme Court of Canada in United States of America v. Sheppard, [1977] 2 S.C.R. 1067. The test is "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty". The Court went on to say that an accused person must be committed for trial "in any case in which there is admissible evidence which could, if it were believed, result in a conviction."

[6] There is a corollary to the rule, and that was dealt with by the Supreme Court of Canada in the decision of R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, 157 C.C.C. (3d) 21. The Court dealt with the situation where the evidence respecting one or more essential elements of an offence is circumstantial, as opposed to direct.

[7] The Court stated as follows: "The judge's task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence … in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited … The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt."

[8] Additional guidance can be obtained from the decision of the Ontario Court of Appeal in R. v. Kamermans, 2016 ONCA 117, [2016] O.J. No. 685. At paragraph 16, the Court stated: "Jurisdictional error may also be demonstrated where the preliminary inquiry judge has failed to consider 'the whole of the evidence' adduced at the inquiry in reaching his or her conclusion about committal or discharge."

[9] Further guidance is contained in paragraphs 15 and 20 of the Kamermans decision: "Jurisdictional error may also be established if it can be shown that a preliminary inquiry judge preferred an inference favourable to an accused to an inference, also available on the evidence, favourable to the Crown. The limited weighing of circumstantial evidence in which a preliminary inquiry judge may engage does not involve drawing inferences, assessing credibility or considering the inherent reliability of evidence … Provided the inferences advanced by the Crown are within the field of available inferences and provide evidence of each essential element of the offence, committal follows."

Analysis of the Evidence

[10] As I have indicated, the only issue is whether a jury could reasonably conclude that Mr. Mensah had knowledge of the drugs in the package, based on the evidence I heard. In my opinion, a jury clearly could reasonably reach that conclusion. A jury could draw that inference in light of the following evidence.

1) Package Contents and Destination

A package containing a large amount of heroin (957 grams) was sent by DHL Courier Service to Mr. Mensah's address (298 Queens Drive, Apartment 616, Toronto).

2) Residence and Occupancy

In Mr. Mensah's statement to the police, he said that he was living there alone at the time. He said that he had been renting his apartment since 1993. The jury could accept that evidence. Mr. Mensah also said that other persons had stayed with him in the past, including friends who stayed over.

3) False Name on Package

The package was addressed to "John Henshaw" at Mr. Mensah's address (in fact, there were two labels on the package). The courier (an undercover police officer) testified that he told Mr. Mensah the package was for "John Henshaw". Nevertheless, Mr. Mensah signed for the package and received it. That evidence alone is very powerful evidence on the issue of whether knowledge of the drugs can be inferred from the circumstances.

4) Signature on Receipt

Mr. Mensah wrote "Jacob" on the receipt and signed with a squiggle (not his usual signature). The jury could infer that Mr. Mensah was not enthusiastic about identifying himself, but the point is a small one.

5) Explanation Regarding Son

Mr. Mensah told the undercover police courier that the package was for his son. Mr. Mensah's son, John Mensah, testified that he had been and still is serving a long prison sentence and that he had no knowledge of any packages or any drugs. The jury could accept that evidence.

6) Earlier Package from Pakistan

Another package, also coming from Sialkot, Pakistan, had been delivered to Mr. Mensah's address approximately a month earlier. According to DHL records, the package was addressed to "Johan Henshaw". There was no evidence as to whether it was Mr. Mensah who received that package (someone at 298 Queens Drive, Apartment 616, Toronto signed for the package with a small pen stroke). There was also no evidence as to whether there were drugs in the package. However, this was the first of two packages that were sent from Sialkot, Pakistan to Mr. Mensah's home over a one-month period, and the second package contained heroin. As the Crown pointed out, the weight to be given to that evidence should be determined by the jury, in the context of all of the evidence at trial. The jury may be of the view that the earlier package supports the inference of knowledge of the drugs on Mr. Mensah's part.

7) Implausibility of Alternative Explanation

It does not make sense that an unknown person or persons would send a package containing a significant amount of high-value drugs to the home of a complete stranger, who may well look at them and call the police. The package from a month earlier makes it all the more unbelievable. A jury might consider this to be a significant factor.

[11] As Justice Hill stated in R. v. Pinnock, [2007] O.J. No. 1599, at paragraph 42 (point 8), "The justice is obliged to consider the cumulative effect of the evidence said to point toward guilt on the part of the accused". In my opinion, the Crown has a strong prima facie case on the issue of knowledge (subject of course to possible defences that may be presented at trial).

Response to Defence Submissions

[12] I will now deal with the principal defence submissions. The foregoing background provides a better context for the reader to understand and assess them.

[13] The defence submitted that this is simply a case of a father signing for a package on behalf of his son and that no-one should have to face criminal charges for such a common and innocent occurrence. In the words of Counsel, "the essence of this case [is that] an innocent man received a package that he believed was for his son". That submission flies in the face of the leading authorities, which are referred to above. The defence also cited some case law that appears to run afoul of those authorities, but in any event the cited cases are distinguishable on their facts.

[14] The defence is asking me to go far beyond the "limited weighing of the evidence" that is envisioned by the case law. The defence is asking me to make findings of credibility, most notably to accept that Mr. Mensah was being truthful when he maintained his innocence in the statement that he gave to the police. The defence is asking me to weigh competing inferences. The Crown put forward the inference of knowledge of the drugs, which is described above. The defence put forward an inference of lack of knowledge of the drugs, based upon the defendant's professions of innocence to the police and allegedly supported by some of the circumstances. The defence is also asking me to enter the realm of speculation, for example, by concluding that Mr. Mensah's failure to open the package is an indicator of his innocence. However, there are other possible conclusions that would be equally consistent with the circumstances. For example, Mr. Mensah's role in the drug importing venture may have been restricted to receiving the package and passing it on to someone else without opening it. Again for example, Mr. Mensah may have been in a hurry to attend to some other matter and may have been confident that the package had arrived safely and intact. Speculation is both fruitless and inappropriate. In fact, it is not possible to embark upon any of the quests that the defence is urging upon me at this preliminary inquiry stage. The short answer is that I am being asked to deal with trial issues (most notably potential defences) at the preliminary inquiry, which I cannot do.

[15] In R. v. Pinnock, Justice Hill made reference to the 2004 decision of the Supreme Court of Canada in R. v. Sazant and summarized the law at paragraph 42 (point 5) as follows: "Where more than one inference can be drawn from the evidence, 'only the inferences that favour the Crown are to be considered'. Because of the limited focus of a preliminary inquiry, the provincial court must commit for trial even if the defence proffers exculpatory evidence."

[16] The defence submissions, to my mind, focused on potential defences. For example, there may be defences based on 1) the alleged similarity of the names "Henshaw" and "Mensah" 2) the possible involvement of John Mensah in the drug shipment 3) the possibility that a visitor in Mr. Mensah's home received the first package 4) the fact that Mr. Mensah left his unit before opening the package 5) an alleged telephone conversation that Mr. Mensah had with his sister regarding the delivery of a package for his son, John Mensa, or 6) the death certificate that was delivered to Mr. Mensah's home by the DHL Courier Service on September 11, 2014. And there may be other possible defences. However, those defences are properly left to trial, where their evidentiary value will be determined by the jury.

[17] The defence also submitted that even if I conclude there was "knowledge" with respect to the possession count, the Crown has not adduced sufficient evidence of knowledge for the purpose of the importing count. I do not agree. The September package was clearly labelled as having come from Pakistan (as was the August package, also addressed to "Henshaw" at Mr. Mensah's address). Mr. Mensah signed for and received the September package.

Conclusion

[18] In my opinion, the Crown has met the Sheppard test with respect to both counts. Mr. Mensah is ordered to stand trial on both counts.

Released: July 27, 2016

Signed: "Justice J. Ritchie"