Court File and Parties

Date: May 15, 2018

Court File No.: 2811-998-17-33306-02

Ontario Court of Justice

Her Majesty the Queen

v.

Nigel Lewis

Reasons for Judgment

Before the Honourable Justice M. S. Felix

On Tuesday, May 15, 2018, at 150 Bond Street East, Oshawa, Ontario

Appearances

G. Raven – Counsel for the Crown

B. Plant – Counsel for the Defence

Proceedings

Tuesday, May 15, 2018:

MR. PLANT: Good afternoon, Your Honour.

MR. RAVEN: Afternoon, Your Honour.

THE COURT: Counsel. Good afternoon. Thank you for attending fifteen minutes early. I'm going to give my judgment at this time. This is the matter of Nigel Lewis. I'm going to provide an oral judgment today. If the judgment is ordered, I reserve the right to make minor editorial changes that do not affect the content. And also where I fail to provide a full citation to a case I reserve the right to add that in editorially.

Reasons for Judgment

FELIX, J. (Orally):

Introduction

The defendant is charged with possession of a Schedule 1 substance, cocaine, for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act and importing into Canada less than one kilogram of a Schedule 1 substance, cocaine, contrary to section 6(3)(a) of the Controlled Drugs and Substances Act arising out of a police investigation in January 2017.

Facts

A. Background

Experienced counsel provided an agreed statement of facts and agreed to other admissions designed to focus the court on the core issue, possession.

On January 18, 2017, a United Kingdom customs official examined a parcel that arrived by air in England from Trinidad and Tobago. The parcel was addressed to Maxine Alexander, Unit Number 9, 424 Malaga Road, Oshawa, Ontario with an indicated phone number of 1-905-404-8313. The parcel was from Andy Thomas, 19 College Road, El Dorado, Trinidad, West Indies, with an indicated phone number of 1-868-375-0842. The declared contents were a T-shirt and eleven packages of preserved fruit. The official opened the parcel and found it to contain eleven packs of preserved fruit and one black T-shirt. The official opened two packs of preserved fruit and found a white powder which tested positive for cocaine. The official replaced the items and resealed the parcel. Steps were taken to preserve continuity and then the parcel was allowed to continue arriving in Toronto on January 25, 2017 at 2:30 p.m. where it was picked up by Durham Regional Police detectives. The Durham Regional Police Service decided to enlist the services of an undercover officer to deliver the packages to the intended address.

B. Delivery

The Durham Regional Police officers came up with a plan for the undercover officer to deliver the parcel while posing as a Canada Post employee. The undercover officer obtained a Canada Post delivery truck and uniform for the purpose of posing as a delivery person. He received some basic training from Canada Post personnel about the delivery of packages and how to use the electronic instrument used by Canada Post employees to track and process deliveries. The undercover officer was given instructions concerning the investigative plan at a briefing on January 26, 2017 at 10:30 a.m. The plan was to deliver the package to Unit Number 9, 424 Malaga. If the delivery was not successful then another attempt would be made a few hours later. If that attempt was not successful then the parcel would be delivered to a local retail outlet. The undercover officer was to try to maintain observations of the parcel at all times.

At 11:50 a.m. he approached the delivery address driving the Canada Post delivery van dressed in a full Canada Post uniform. The undercover officer stopped the Canada Post vehicle parallel to Unit Number 10, 424 Malaga, where Unit Number 9 and Unit Number 10 shared a common driveway. He was approximately 25 to 30 feet from the front door of Unit Number 9. He observed two or three males going back and forth from Unit Number 10 with black garbage bags. One of these males came out of Unit Number 10 and engaged him in a conversation. This person was later identified as the defendant before the court.

The defendant asked, "Is that for Maxine?" The undercover officer replied "Uh, let me look at the package." Paused and said, "Yeah." The officer explained that he was trying to impersonate a delivery person and felt that a delivery person would need to check the package and pause before answering. The defendant stated, "I can take it. She is at work." The undercover officer asked, "Do you live here?" The defendant replied, "Yeah. I will go get my licence."

The defendant went back into Unit Number 10 and left the undercover officer standing in the doorway where he was able to make general observations about the interior of Unit Number 10. The defendant returned and asked, "It's from Andrew Thomas, right?" The undercover officer replied, "Yeah." The defendant provided a valid driver's licence that matched his physical appearance showing an address on a street other than at Malaga Road.

As the officer prepared the electronic instrument for signing and the package for delivery to the defendant he engaged him in conversation. The officer requested the defendant sign for the package and he did. The officer asked if the defendant lived at the address on his driver's licence or at Unit Number 10 and the defendant told the officer he lived at Unit Number 10. The officer asked the defendant if Maxine was his girlfriend and the defendant acknowledged that she was his girlfriend. All during this conversation other males were removing garbage bags from Unit Number 10 but no one else engaged the officer in conversation.

The officer provided the package directly to the defendant after he signed for it on the Canada Post electronic instrument. The officer observed the defendant bring the package inside of Unit Number 10 rather than Unit Number 9. The officer then left the area to brief the other officers at approximately 11:57 a.m.

The police had inserted a device in the parcel that would trigger an alarm if the parcel was opened. At approximately 12:20 p.m. the alarm was triggered. At approximately 12:22 p.m. the police having obtained prior judicial authorization executed the search warrant using a dynamic entry. The police found the delivered parcel on the kitchen table of the residence; the parcel had been opened; there was a pair of scissors on the table; some of the contents of the package were on the table. Many exhibits filed at trial show the positioning of the items on the table at the time of entry.

At the time of entry there were two persons within the residence, the defendant and a person named Emryis Lewis. The defendant and Emryis Lewis both fled the residence through a rear door upon police execution of the search warrant. Both were captured shortly thereafter. The defendant threw a cell phone onto a nearby roof just before capture.

C. Positions

The core issue at trial concerned the legal issue of possession. The parties professionally focused the court on this issue as possession was integral to both counts on the information. The parties did not litigate the other required elements of either count. The prosecution relied upon the fact that the defendant intervened to accept delivery, that he demonstrated peculiar knowledge of the parcel and within moments of the parcel being opened the defendant fled. Counsel for the defendant submitted that there was insufficient evidence to support a finding of possession. Counsel pointed to a multitude of other circumstances to suggest that others may have been in possession of the parcel. Finally, counsel cited deficiencies in the police investigation, problems with the reliability of some of the police witnesses and problems with the credibility and reliability of the undercover police officer.

Analysis of Possession

A. Finding with Respect to Possession

I am satisfied beyond a reasonable doubt that the defendant personally received the delivered parcel. The prosecution must prove that the defendant had knowledge of the illegal drugs found within the parcel. There is no direct evidence that the defendant had such knowledge. On all of the evidence at trial particularly the circumstances surrounding the controlled delivery, I draw the reasonable circumstantial inference that the defendant had specific knowledge that there were illegal drugs in the parcel. I am also satisfied that the defendant was in the midst of opening the delivered parcel when the police executed the search warrant and I thereby impute specific knowledge of the illegal drugs to him.

The parcel was received by the defendant at 11:57 a.m. An alarm indicating the package was being opened signaled at 12:20 p.m. At 12:22 p.m. the police executed the search warrant using a dynamic entry. On all of the evidence at trial I draw the reasonable inference that the defendant was opening the package when the police executed the search warrant because he knew there were valuable illegal drugs inside. Either finding is sufficient to fix the defendant with knowledge, possession and control of the illegal drugs. The combination of the two findings robustly supports the imputation of specific knowledge of the illegal drugs to the defendant.

B. Judgment

I find that the prosecution has proven both counts beyond a reasonable doubt. I am satisfied beyond a reasonable doubt that the defendant personally possessed a Schedule 1 substance that was imported into Canada. I am also satisfied that he possessed that Schedule 1 substance for the purpose of trafficking. The expert opinion evidence that possession of 32 grams of cocaine was consistent with trafficking was admitted without challenge. I have assessed the evidence given my gatekeeper function (See R. v. Sekhon, 2014 SCC 15). I am satisfied beyond a reasonable doubt that the defendant possessed the Schedule 1 substance for the purpose of trafficking. I have a duty to provide a judgment explaining why I have come to these conclusions. I will explain my findings by addressing the following subjects:

1. The defendant personally possessed the parcel;
2. The defendant demonstrated peculiar knowledge about the parcel;
3. The defendant had possession and control over Unit Number 10;
4. The defendant lied;
5. The co-accused Emryis Lewis;
6. Forensic investigation of the parcel and contents;
7. The car repair man; and
8. The defendant fled from Unit Number 10 upon police entry.

Then I will address numerous defence submissions and theories in a summary manner to explain why they do not detract from my findings.

1. The Defendant Personally Possessed the Parcel

Without invitation or prompting I find that the defendant approached the undercover officer and intercepted the intended delivery of the parcel to Unit 9. The defendant thereafter took physical possession and control of the parcel and returned within Unit 10. While there were other male parties at Unit 10, no other person approached or even spoke to the undercover officer. I specifically reject the defendant's speculative submission that the undercover officer approached the defendant and asked him to accept delivery of the package. First, there is no evidence that this, in fact, occurred. Second, I accept the undercover officer's testimony that this did not occur. The defendant approached him. Third, there were three males at Unit 10 and there would have been no way for the undercover officer to select one of the males to accept the parcel. The defendant, I must remember, was completely unknown to the police at the time of this investigation. Unit Number 10 was not a targeted residence in this investigation. The police had no specific target other than the intended recipient, a female named Maxine Alexander.

The parcel was taken inside of Unit 10 by the defendant at 11:57 a.m. Approximately 23 minutes later the parcel registered an alarm with the police. The defendant was inside Unit Number 10 when the parcel was opened. He fled. The delivered parcel recently possessed by the defendant was opened on the kitchen table with some of its contents out on the table. The packets of cocaine had not been opened. I reasonably infer that during the 23 minutes the defendant began to open the parcel with the scissors found with the parcel plainly visible in the exhibits at trial. I also reasonably infer that he was interrupted by the battering ram used by the police when knocking down the front door.

2. The Defendant Demonstrated Peculiar Knowledge About the Parcel

The defendant asked the undercover officer if the parcel was from Andrew Thomas. The purported sender of the parcel was Andy Thomas. I'm satisfied that Andy is a common short form for Andrew. Thus, I conclude that the defendant had peculiar knowledge of the named exporter of this parcel from Trinidad without having been shown the package by the undercover officer. The defendant asked the undercover officer if the intended recipient of the parcel was Maxine. I conclude that the defendant had peculiar knowledge of the named recipient of the parcel from Trinidad. The defendant asserts that given the partial names provided, this evidence is not important. I disagree. When I combine these findings with all of the evidence at trial the defendant's peculiar knowledge of partial names is highly probative on the issue of possession. I do not agree that the partial names possessed by the defendant could simply be a coincidence or explained innocently.

3. The Defendant Had Possession and Control Over Unit Number 10

There is direct evidence from the undercover officer that the defendant was in possession and control of Unit Number 10 at the time of delivery. The parcel was physically delivered to the defendant in the doorway of Unit 10. The defendant went into Unit 10 to obtain his identification. The defendant took the package inside the residence after he signed and accepted delivery. This evidence alone provided a basis to find that the defendant had possession and control over Unit 10 at the time of delivery. There was further evidence on this point however from the sole defence witness, the legal occupier of Unit Number 10.

This witness provided a number of important pieces of information. This witness testified that at the time she and Emryis Lewis were dating and that he spent the night at her residence at times. The defendant was a friend of hers who had never spent the night at the residence. She testified that a few days prior to the police search warrant, she had to go to another city because of a family emergency. She left with her family in a bit of a rush given the nature of the circumstances. Prior to leaving, she left both Emryis Lewis and the defendant in charge of her residence. She asked them to look after her residence, feed her dog and clean up given the remnants of a big party.

This witness provided substantive evidence leading to a number of findings in this case. First of all, it was clear that the defendant was one of two persons fixed with possession of Unit 10 in the few days leading up to the delivery of the parcel. Second, the defendant did not live at Unit 10, contrary to the statement I find he made to the undercover police officer. Third, the owner of Unit 10 was not aware of anyone else permitted entry to her residence. I will deal with Edwin, the car mechanic in a moment. Fourth, this witness provided the names of the persons who resided at Unit Number 9. Fifth, this witness did not testify that a Maxine Alexander lived in Unit Number 9. Sixth, this witness did not testify that a Maxine Alexander was the defendant's girlfriend. Seventh, this witness provided evidence linking Emryis Lewis to Nigel Lewis.

4. The Defendant Lied

The defendant did not testify in this trial as is his right. Notwithstanding the efforts, admirable efforts of defence counsel, the evidence of the undercover police officer did not substantively shift during cross-examination. I accept the evidence of the undercover police officer. I found the officer to be clear and credible. He was not part of an overarching extensive investigation targeting the defendant. I note there was no overarching investigation targeting the defendant as is the case sometimes in cases like this. The police had no idea that persons associated with Unit Number 10 were relevant to the investigation until the triggering event, the intervention of the defendant.

It's clear that the defendant lied to the undercover officer. I base this conclusion on the combination of the evidence provided by the defence witness and the evidence of the undercover officer. First of all, the defendant falsely acknowledged that a Maxine was a resident of Unit 9. Second, he volunteered that Maxine was at work. Third, he volunteered that Maxine was his girlfriend. Fourth, he told the undercover officer he lived at Unit Number 10. Given the evidence of the defence witness and the undercover officer I'm satisfied that all four statements were falsely uttered to facilitate the delivery of the parcel from a perceived Canada Post delivery person.

The defence witness who ordinarily resided at Unit 10 provided the court with the names of the two residents of Unit Number 9. While she described the residence as a party house with many people coming and going, there was no evidence elicited from this witness that there was in existence a Maxine Alexander associated with Unit 9 or that the defendant, a friend of this witness, was dating such a person. Finally, this witness testified that the defendant never lived at Unit 10. Not only did the defendant have peculiar knowledge about the purported shipper and the purported intended recipient of the parcel, but I find that he lied to a person who he believed was a Canada Post delivery person in order to facilitate the delivery of that parcel to him. During submissions in this case defence counsel, responsibly in my view, did not attempt to assert that the court should find that a Maxine Alexander associated to Unit Number 9 existed. However, I need not find that Maxine Alexander is a phantom to conclude that the defendant lied.

5. The Co-Accused, Emryis Lewis

There was a second person in the residence at the time of the execution of the search warrant -- Emryis Lewis. He was charged as a co-accused. His charges were withdrawn. The defence witness testified that she was dating Emryis Lewis, that Emryis Lewis and Nigel Lewis were associated to each other and that Nigel Lewis was a friend of hers. The evidence from this witness also established that both Emryis Lewis and Nigel Lewis were left in control of the premises while she attended to important family circumstances. The evidence at trial demonstrates that both Emryis Lewis and Nigel Lewis ran from the residence upon execution of the search warrant.

Counsel for the defendant did not directly attribute liability for possession to Emryis Lewis specifically by name during the trial or submissions. But I will proceed as if he had because cross-examination focused on Emryis Lewis's attachment to Unit Number 10, his comings and goings from the premises and the fact he had a vehicle at the address with ID inside. There is no ownership in a witness. Neither the prosecutor nor the defendant called Emryis Lewis as a witness at this trial. There are no doubt sound tactical reasons for this approach by experienced counsel. It is not for the court to look behind decisions made by counsel. The court must limit itself to the record provided by counsel. Counsel know the entire breadth of the case and make decisions based on their respective role and instructions.

In the end, I must analyse possession without any direct evidence from Emryis Lewis. There is no direct evidence from the defendant to impact my assessment of the circumstances surrounding his presence with Emryis Lewis at Unit 10. I acknowledge that it might be plausible that Emryis Lewis was a participant in the offences with the defendant given all of the evidence. For all I know he was in joint possession with the defendant. They could have been involved as co-principals in law. But this is not the focus of this trial. The prosecution does not have to prove the nature of any relationship between the defendant and Emryis Lewis. The prosecution is not obliged to prove that the two associates were involved in a joint venture.

Later on in this judgment I will deal with the defence assertion concerning other suspects. My core concern is to analyse the evidence in this case with the criminal burden and the instruction from R. v. Villaroman, 2016 SCC 33 in mind. The prosecution is only required to prove that the defendant was in possession. In the final analysis, on this factual record I cannot reasonably fix Emryis Lewis with sole possession of the illegal drugs or even joint possession simply and solely because of his presence at the time of the search and his connection to Unit Number 10.

6. Forensic Investigation of the Parcel and Contents

There were two fingerprints on the parcel, neither of which matched Emryis Lewis nor the defendant. The contents of the parcel, the shipping labels and the scissors were submitted for forensic analysis and there was insufficient ridge detail to analyse. Thus no forensic evidence links the defendant to the parcel or its contents. The fingerprints on the parcel could be from any number of individuals including the person who shipped the parcel and all other persons who handled the parcel in transit from Trinidad through England to Canada, including even the undercover officer. That there was insufficient ridge detail on the contents of the parcel simply drives me to the conclusion that there is no forensic link between the defendant and the contents of the parcel.

7. The Car Repair Man

The undercover officer delivered the parcel at 11:57 a.m. At 12:09 p.m., a person later known as Edwin left the residence in a vehicle. He was not investigated further by the police. The police determined to maintain observations on Unit Number 10 and the delivered package as the parcel alarm had not yet triggered. The defendant suggested in submissions that Edwin was a person who possibly possessed the illegal drugs. Counsel suggested it was a plausible scenario. Once again, I note that there is no property in a witness. Neither side called Edwin as a witness in this trial.

The defence witness testified that Edwin had a key to her residence as he was repairing a car in her garage. She explained that she had asked Nigel Lewis and Emryis Lewis to retrieve the key from Edwin having returned the key as she no longer wished him to have access to her residence. Although the witness described Edwin as a friend of hers she could not remember his last name. I accept the defence witness's evidence about Edwin. I note that his connection to Unit 10 is corroborated to a degree by police evidence in the prosecution case. But the acceptance of this evidence does not provide a reasonable foundation for me to conclude that Edwin had possession and control over Unit Number 10. In fact, the defence witness's perspective was that her agents, Emryis Lewis and the defendant were to remove his access to the residence. Further, there is no plausibility to the suggestion that Edwin was the true drug importer. There is nothing in the evidence or the absence of evidence that provides a reasonable foundation to conclude that Edwin was implicated in knowledge, possession or control over the illegal drugs within the parcel that was accepted by the defendant.

8. The Defendant Fled From Unit Number 10 Upon Police Entry

Both the defendant and Emryis Lewis fled out the rear door of the residence immediately upon dynamic entry by the police. Emryis Lewis was pursued and captured with the assistance of a police dog. The defendant ran from clearly identifiable police officers and discarded a cell phone on the roof of a residence just prior to his capture. The central issue in this trial was possession. The prosecution submitted that this post-offence conduct was admissible as further probative evidence of the defendant's connection to the parcel and illegal drugs on the kitchen table. In other words, the prosecution relied upon this evidence in support of the issue of possession (See R. v. White).

I recognize that the defendant might have run for any number of reasons. For example, he could have run because he was afraid. He could have run because an associate told him to run. He could have run because he had a warrant. He could have run because of parking tickets. He could have run because he's innately fearful of police officers. But I do not have any understanding based on the record before me of the reason why he ran. There is no evidence of other circumstances relevant to the defendant's decision to flee. For example, an outstanding arrest warrant. The record is silent on this issue.

Weighing all of the considerations, all of the evidence in this trial, the factual record supports a good reason to flee the police. He recently possessed a parcel containing a large amount of illegal drugs. I find that I may consider this evidence as simply one piece of evidence amongst many in this case. I agree with the wise submissions of defence counsel that it's important not to give that sort of evidence undue weight but I need not ignore the circumstance either: White, at para. 27.

Analysis of Defence Arguments

Defence counsel in this case mounted a professional, strategic and skilled defence. I have a duty to explain to the defendant why the defence arguments did not cause me to doubt his guilt. There are a number of factors I will briefly analyse to explain my findings:

1. The police did not investigate persons associated to Unit Number 9;
2. The police did not investigate persons associated to Unit Number 10;
3. The police exhibited inattention to important detail;
4. The police investigation of Unit Number 10 was deficient;
5. The undercover officer did not follow the police investigative plan;
6. The undercover officer was incredible and tailored his evidence to incriminate the defendant;
7. The idea that the defendant orchestrated the delivery would have required fortuitous timing;
8. Drug dealers don't volunteer identification;
9. The defendant was doing a favour;
10. There were plausible other suspects.

1. The Police Did Not Investigate Persons Associated to Unit Number 9

Defence counsel argued that the police should have investigated the inhabitants of Unit Number 9 more thoroughly. For example, by obtaining statements or investigating vehicles and persons coming and going from Unit 9. I find that within the evidentiary record there was evidence of some surveillance of Unit 9 prior to the controlled delivery and it was an attempt by the police to identify vehicles associated with the address. But once the defendant intervened there was no longer any need to investigate Unit Number 9 or the persons who came and went. The defendant's intervention changed the course of the police investigation. Furthermore, there was evidence at trial that the police were aware that at times innocent addresses were used for the delivery of illegal drugs.

2. The Police Did Not Investigate Persons Associated to Unit Number 10

The police investigation did not focus on Unit Number 10 until the defendant intervened. Prior to the defendant's involvement the police took note generally of things associated with Unit 10 but did not pursue vehicles and did not pursue persons coming and going from Unit 10. Prior to the defendant's involvement at the time of delivery there would have been no need to take these investigative steps. On the facts in this case, the failure to investigate in this fashion had no impact on my findings as to possession.

3. The Police Exhibited Inattention to Important Detail

There was evidence at trial that the police officers at times did not pay careful attention to detail. For example, during the argument concerning continuity of the drug exhibits it was clear that an officer mistakenly documented one letter on the exhibit envelope many times. On the continuity argument I agreed with defence counsel that this was poor attention to detail but I ruled that it did not call into question continuity overall. There were other minor examples during the trial such as the wrong date noted for the warrant and several police notes sourced partially from central notetaking. Again this was not important, in my respectful view, with respect to the reliability of the undercover officer nor was it probative on the issue of possession.

4. The Police Investigation of Unit Number 10 Was Deficient

Defence counsel argued that even once the investigation was focused on Unit 10 the police were deficient in that they did not place officers to the rear of the residence after delivery of the drugs and before the dynamic entry. I agree with defence counsel's criticism and acknowledge that this would have been more helpful to the police but it is not my role as the trial judge to armchair quarterback the investigation with the benefit of hindsight and twenty-twenty vision. My role is to assess whether or not this has an impact, whether or not this is probative on the issue of possession. I find, respectfully, that the submission that some person or persons might have left via the rear of the residence is speculative. The implication that the real possessor of the illegal drugs accessed the parcel and fled, or left before police arrival is also in the realm of speculation.

5. The Undercover Officer Did Not Follow the Police Investigative Plan

The police investigative plan contemplated delivery of the parcel to Unit Number 9. If the delivery was unsuccessful the police planned to try again a few hours later. If that delivery was unsuccessful, on the second attempt the police planned to deliver the parcel to a local retail outlet. If I understand the defence's position, the suggestion is that because the undercover officer did not follow this plan the court should draw an adverse inference against the undercover officer or otherwise doubt the credibility and reliability of the officer. Defence counsel mounted a solid challenge to the undercover officer's sequence of events. Specifically, the defence's position put to the undercover officer was that the undercover officer had in fact approached Unit Number 9 and had in fact knocked on the door or rung the doorbell. The supposition being that, contrary to the police evidence, there was in fact an attempt to deliver the parcel to Unit 9.

Defence counsel challenged the undercover officer's evidence that he never approached the door of Unit 9 and made no attempt to deliver the package to number 9. As incredible the argument being, a novice would not go rogue and deviate from the original police investigative plan. Finally, I note that the officer was specifically pressed on this point in a Browne v. Dunn type cross in an effort to get him to change his testimony. He did not change his testimony. I accept the undercover officer's evidence on this issue for several reasons.

While this was the first time that this undercover officer had performed a controlled delivery, he had extensive specialized police experience. That he flowed with the defendant's interception is not surprising nor problematic in my mind. It was also not inconsistent with the police prime investigative concern that the parcel should be followed to its ultimate destination. The undercover officer testified as much. There was no evidence adduced at trial concerning the "proper" methods of Canada Post delivery. Nonetheless, the defence position was that the undercover officer failed to strictly abide by Canada Post procedure and thereby risked detection at a minimum. I agree with this general proposition. But the simple fact is the undercover officer's true identity as a police officer was evidently not disclosed to the defendant. As a result this argument is not important. The undercover officer was not in fact a Canada Post employee charged with specific mail delivery duties.

It is key to remember context that the undercover officer was intercepted by the defendant before he could deliver to Unit 9. The undercover officer's evidence in this regard was corroborated by another police witness who observed the sequence of events. There was ultimately no evidence led in support of the Browne v. Dunn cross-examination suggesting the undercover officer had in fact knocked or rung the doorbell to Unit 9. What is important is my finding that the defendant specifically engaged the officer, demonstrated peculiar knowledge about the parcel and accepted the parcel.

6. Drug Dealers Don't Volunteer Identification

The undercover officer testified that the defendant voluntarily went within Unit 10 to obtain photo ID for the purpose of facilitating the delivery of the parcel to him personally rather than the occupants of Unit 9. The defence position was that the undercover officer tailored his evidence to incriminate the defendant. Defence counsel argued that a person who's aware of illegal contraband within a delivered parcel would never voluntarily provide identification, much less accurate identification. Defence counsel argued that the undercover officer's evidence that the defendant voluntarily identified himself was incredible and untrue.

I must admit that I gave careful and thoughtful consideration to this argument presented by Mr. Plant. But I considered as well that defence counsel then argued the opposite, that the fact the defendant voluntarily provided accurate identification lent support to the argument that he did not have knowledge of the illegal drugs within the parcel. I do not find that the undercover officer tailored his testimony to incriminate the defendant. I accept that the defendant voluntarily identified himself. I find that the hypothetical person contemplated in these submissions might very well provide identification to facilitate the delivery of a valuable shipment of illegal drugs worth between ten and fifteen thousand if sold by gram or five and seven thousand sold by the ounce, particularly if that person believe the undercover officer to be a mere postal employee. Once again, it's key to remember that the undercover officer was dressed as a postal employee driving a postal van. There is no evidence that the defendant knew or suspected that this postal employee was actually a police officer. In such circumstances it is entirely rational for someone in the drug trade to take steps to ensure the safe delivery of valuable illegal drugs.

7. The Defendant Was Doing a Favour for the True Recipient

The defence's position is that it is at least plausible that the defendant was simply doing a favour by accepting the parcel for the true intended recipient. I accept defence counsel's general proposition that persons in society may accept deliveries on behalf of other persons in certain circumstances. But as it pertains to this proceeding, as it pertains to this factual record, I reject this speculative submission. First of all, there's nothing in the evidence at trial or in the absence of evidence at trial that supports this proposition. Second, it does not explain the lies told by the defendant to the undercover officer. Third, there is no ascertainable person for whom the defendant was performing this supposed favour.

8. Fortuitous Timing

Defence counsel argued that the defendant would have had to have had fortuitous timing to be in place at Unit 10 at the time of delivery. I do not agree. Once again, I recall the evidence at trial that it is not uncommon for traffickers to use innocent unassociated addresses, at least from the perspective of the police. The defendant was in fact positioned such that he had control of Unit Number 10 at the end of the prosecution's case alone. The defence evidence took it further and fixed the defendant and Emryis Lewis with possession and control of Unit Number 10 for a few days prior to the police delivery. I heard evidence at trial and I'm generally aware that persons are able to electronically track the delivery of parcels. It would not require a complex arrangement for the defendant to be present at the time of delivery. Finally, I heard evidence that if the parcel was unsuccessfully delivered in the ordinary course it would go to a local retail location to be picked up. No fortuitous timing was required.

9. Other Suspects

During submissions defence counsel either explicitly or implicitly pointed the finger at other ascertained and unascertained parties responsible for possession. At times these submissions were commingled with assertions that the police investigation was deficient. The defence position was that several individuals could be involved including:

1. Unascertained parties associated with Unit Number 9;
2. Unascertained parties associated with Unit Number 10;
3. Edwin, the car mechanic; and
4. A neighbour who asked the defendant to accept the parcel.

Finally, it was generally submitted that between the delivery of the parcel and the execution of the warrant any number of unknown persons could plausibly have possibly been within Unit 10 and left through the back door prior to the execution of the warrant.

There are four ways that I grappled with these submissions. First of all, throughout this judgment I have endeavoured to address these arguments directly. In a sense many of the component arguments were reassembled by defence counsel in driving towards the issue of other suspects.

The second way I approached the defence position involved considering guidance from the Supreme Court of Canada in R. v. Pickton, 2010 SCC 32 at paragraph 23:

Accordingly, the trial judge did not confine his instructions to the Crown's sole perpetrator theory, but explained to the jury what effect any finding that others may have participated in the commission of the offences would have on the question of Mr. Pickton's criminal liability. I will refer to these instructions compendiously as the "other suspects instructions". Low J.A. reviewed the relevant parts of the jury charge at some length at paras. 140-144 and 156. This analysis need not be repeated here. Suffice it to note that the other suspects instructions in question went along the same lines as the following instruction given to the jury immediately following the trial judge's explanation of the elements of the offence of first degree murder:

A person commits an offence if he, alone or along with somebody else or others, personally does everything necessary to constitute the offence. Accordingly, it is not necessary for you to find that Mr. Pickton acted alone in order to find him guilty of the offence. You may find that Mr. Pickton acted in concert with other persons, although you may not know who they are. It is sufficient if you are satisfied beyond a reasonable doubt, having considered all of the evidence, that he actively participated in the killing of the victim. It is not sufficient that he was merely present or took a minor role. The issue for you to decide is whether you are satisfied that it has been proven that he was involved to the extent that the law requires to establish his criminal liability.

In Pickton, the trial judge instructed the jury concerning investigational deficiencies, the concept of other suspects and parties to a criminal offence (See R. v. Pickton, 2009 BCCA 299 at paras. 119-183).

I recognize that it might very well be the case that the defendant did not act alone -- that he acted in a joint enterprise with others both ascertained and unascertained. These considerations are properly registered in assessing whether or not the prosecution has proven the case beyond a reasonable doubt. If the alleged involvement of others cause me to doubt the involvement of the defendant I would be required to acquit. But I must also recognize that the prosecution has not alleged the involvement of other parties and is not required to prove the involvement of other parties to establish the guilt of the defendant.

The third way I approached the defence position involved instructing myself that, notwithstanding the defendant did not testify, defence evidence was called for the purpose of contradicting the prosecution's case and implicitly the credibility of police witnesses and as such I am required to examine this evidence in light of the criminal burden of proof (See R. v. McCracken, 2016 ONCA 228, at para. 91; and R. v. B.D., 2011 ONCA 51, at paras. 103-113). Frankly, however, the evidence from the defence witness amplified the prosecution evidence in the manner that I have explained in this judgment.

The fourth way I approached the defence position involved instructing myself in accordance with the Supreme Court of Canada's guidance in Villaroman, at paragraphs 35 to 41:

At one time, it was said that in circumstantial cases, "conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts."

I'm going to give this quote without citations.

However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts...Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.

Paragraph 36:

I agree with the respondent's position that a reasonable doubt, or theory alternative to guilt, is not rendered "speculative" by the mere fact that it arises from [the] lack of evidence. As stated by this Court in Lifchus, a reasonable doubt "is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence "...A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

Paragraph 37:

When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt...I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused"..."Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

Paragraph 38:

Of course, the line between..."plausible theory" and "speculation" is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than...the accused is guilty. I have found two particularly useful statements of this principle. The first is from an old Australian case, Martin v. Osborne ..."In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. [That] means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed."

Paragraph 41:

While this language is not appropriate for a jury instruction, I find the idea expressed in this passage — that to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative — a helpful way of describing the line between plausible theories and speculation.

In this judgment I have demonstrated my analysis of several defence arguments. None of these arguments individually or in combination detract from the strength of the prosecution's case. The most striking and common feature of these arguments is that they are speculative. As a trial judge I am not required to abandon logic, experience, common sense and plausibility in coming to an honest view of these arguments. This case is based on a combination of direct evidence and circumstantial evidence. To the degree the case relies on circumstantial evidence I am satisfied that the evidence points to the clear guilt of the defendant and no other reasonable possibility. I do not find any support either within the four corners of the record or without for the submission that other suspects were responsible for possession of the illegal drugs. I am satisfied to use the language in Pickton that the defendant personally did everything to commit the offences before the court whether or not there were other involved parties.

The Offences

Neither defence counsel nor federal prosecutor provided submissions on the substantive elements of the offences before the court. I will conclude this judgment with a brief outline.

A. Importing

There were no submissions concerning the material elements of the offence of importing. I am satisfied that a parcel was shipped from Trinidad to Oshawa containing a Schedule 1 substance. In a separate ruling I addressed continuity.

1. Actus Reus

The actus reus of the offensive importation relies to a degree upon the reasonable inference source from the finding that the defendant intervened to acquire possession of the delivered parcel. It is reasonable to infer that the person who I find possessed the parcel and the Schedule 1 substance within was an important part of the acts associated with importation. It is not necessary that the defendant be the sole individual responsible for importation.

2. Mens Rea

The prosecution must prove that the defendant had the requisite mens rea. This means that the prosecution must establish beyond a reasonable doubt that the defendant had knowledge that the delivered parcel contained narcotics (See R. v. Blondin; R. v. Duffy). While it may not be necessary to specify whether the defendant was reckless, willfully blind or had actual knowledge, given the record in this proceeding I would favour the finding that he had actual knowledge: See R. v. Ifejka, 2013 ONCA 531. A foundation for recklessness, willful blindness or mistake would most probably emanate from the defendant's evidence on point or defence evidence called. Only he could describe his state of mind in the circumstances from his perspective. On the record presented in this proceeding I find that he had an actual knowledge: See R. v. Francois, 2014 ONCA 234.

Conclusion

The prosecution has established the offence of importing beyond a reasonable doubt.

B. The Offence of Possession for the Purpose of Trafficking

There were no submissions concerning the material elements of the offence. I am satisfied beyond a reasonable doubt that the defendant possessed the Schedule 1 substance found within the parcel. Notwithstanding that the expert opinion evidence was filed on consent, I have performed my gatekeeping role and assessed the evidence and the expertise of the proposed expert. I am prepared to accept this evidence: Sekhon. The expert opinion in this case was not challenged in submissions. The evidence supports the finding that possession of 132 grams of cocaine was for the purpose of trafficking.

Conclusion

The prosecution has established the offence of possession for the purpose of trafficking beyond a reasonable doubt. The defendant is found guilty of both counts before the court.

COURT ADJOURNED