COURT FILE NO.: 14-50000313
DATE: 2014/08/15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MOHAMED GENAF
L. Pasquino & E. Marrocco, for the Crown
M. Mattis, for the Accused
HEARD: May 12-15, 2014
GARTON J.:
[1] The accused, Mohamed Genaf, age 21, is charged with conspiracy to traffic in cocaine, (Count 1). He is also charged with trafficking and possession of cocaine for the purpose of trafficking (Counts 2 and 3). The offences are alleged to have occurred between October 27 and November 25, 2011.
[2] The Crown’s case consisted of an agreed statement of fact, 38 intercepted telephone conversations and text messages, and the expert opinion evidence of Det. Sgt. John Babiar. Officer Babiar testified with respect to the trafficking of cocaine and the modus operandi of drug traffickers, including the chain of distribution and use of couriers, pricing, packaging, purity, paraphernalia, the production of crack cocaine, and the terminology, slang and coded or guarded language used in drug transactions.
[3] The defence did not call any evidence.
[4] There is no question that during the relevant time period, Irshad Ahmed (“Ahmed”), and Andrew Brown (“Brown”), who were in Toronto, and Tariq Stanley (“Stanley”), who was in Ottawa, were engaged in a conspiracy to traffic in cocaine. It is also clear that Mr. Genaf transported cocaine from Toronto to Ottawa on November 17 and 25, 2011. On each of these occasions, Brown gave the package containing the cocaine to Mr. Genaf, who then took it by bus to Ottawa for delivery to Stanley.
[5] On November 25, 2011, Mr. Genaf was arrested after getting off the bus in Ottawa. Police located in his backpack 491.6 grams or almost half a kilogram of compressed powder cocaine stamped with the letters “IF.” The cocaine was in a freezer bag that had been wrapped in a white tank top and a pair of jogging pants, which in turn were in a plastic shopping bag with the name “George Richards Big and Tall Menswear.” This was the same bag that Brown gave to Mr. Genaf at the Toronto bus terminal just before Mr. Genaf boarded the bus for Ottawa.
[6] The police observed Stanley in a van in the area of the Ottawa bus terminal as he awaited Mr. Genaf’s arrival.
[7] The main issue in this case is whether the Crown has established beyond a reasonable doubt that Mr. Genaf knew or was wilfully blind to the fact that he was transporting a controlled substance. There is no direct evidence in this regard; the Crown relies entirely on circumstantial evidence to establish the mens rea requirement.
THE EVIDENCE
Intercepted Conversations
[8] The intercepted conversations indicate that Stanley and Brown never told Mr. Genaf, and Mr. Genaf never asked what he was delivering to Stanley in Ottawa. On both occasions, all three parties referred to the subject matter of the delivery as “it.” Stanley’s motivation in not telling Mr. Genaf that he was transporting drugs was to prevent Stanley’s younger brother, Yusuf, from finding out that he was a drug dealer. The agreed statement of fact indicates that Yusuf and Mr. Genaf were close friends.
[9] The following is a summary of the intercepted telephone conversations.
October 27, 2011
[10] During a conversation between Stanley and Ahmed on October 27, 2011, in which they discussed various drug-related matters, Stanley gave Mr. Genaf’s telephone number to Ahmed. When Ahmed asked, “Who is it?” Stanley explained that Mr. Genaf was a friend of his younger brother, Yusuf. :
It’s my little bro’s little friend, you know. He doesn’t even know. Don’t even tell … tell thing don’t even tell him that he’s working there, you know. He doesn’t know nothing, like … you know. He didn’t (unintelligible) … make the trip, so tell him just to fucking … like, just to like (unintelligible) it wrap nicely, like you know, in a bag or whatever.
Ahmed: … Backpack. I’ll tell him to give him a backpack or something.
November 16, 2011
[11] About three weeks later, on November 16, 2011, at 10:06 p.m., Ahmed and Stanley discussed getting “the work”, referring to cocaine, from Toronto to Ottawa. Ahmed suggested that Stanley “just send your boy” and “rally that down with him.” He also told him, “I’m saying where is your little nigger that’ll come up with the work and you just send the … you just rally that down with him.” Stanley told Ahmed that he would “call him [referring to Mr. Genaf] right now.”
[12] At 10:08 p.m., Stanley called Mr. Genaf and asked him if he wanted to “come down” and if he was working “tonight.” Mr. Genaf anticipated what Stanley required of him: he confirmed that he was working and asked Stanley, “You want me to drop something off in the morning?” Stanley replied, “Yeah” and asked if he could leave work early. Mr. Genaf, who was working until 8:00 a.m., did not think that was possible “because it’s like last minute.” He agreed to ask his boss if he could leave early. He also told Stanley, “If you want I can bring it in the morning.”
[13] Stanley and Mr. Genaf discussed the possibility of Mr. Genaf taking the 6:30 a.m. bus to Ottawa, which Mr. Genaf stated would be “a little hard to catch.” Stanley asked whether the 6:30 a.m. bus would arrive in Ottawa by 10:00 a.m. Mr. Genaf stated “no”, that it did not arrive until noon because it “stops everywhere.” The 9:00 a.m. bus was “direct” and arrived at 2:00 p.m.
[14] Mr. Genaf told Stanley, “Get the people to drop it off, like the … my work is next to your high school.” Stanley indicated that “they could drop it off right now you know, it’s not even a problem. … That’s not even a problem, that’s a for sure thing right now, you know.” Mr. Genaf replied, “Oh, that’s okay. If you got it ready then I can drop it off in the morning if you don’t mind. I’ll be there like around two.”
[15] It is clear that Stanley wanted Mr. Genaf to deliver “it” as soon as possible. He told Mr. Genaf, “Two just kind of late, that’s the only thing you know.” He again asked Mr. Genaf if he could leave that night – “Tonight is for sure no, eh … cause I even have a ride back for you if you came today.” When Mr. Genaf indicated “no”, Stanley asked if he could possibly catch the 6:30 a.m. bus. Mr. Genaf replied that if his boss let him leave an hour early, he could take a cab to the bus terminal. Stanley told him to find out “real quickly” and to call him back.
[16] At 10:14 p.m., Stanley called Ahmed, told him that he had talked to “him” (meaning Mr. Genaf), and that Mr. Genaf had said that he could do it. Stanley also told Ahmed: “To be honest, I don’t … don’t even … don’t even show him what it is. Just … If you can, just put it in a bag with like a … two clothes or something you know.” Ahmed asked Stanley to text Mr. Genaf’s telephone number to him.
[17] At 10:20 p.m., Mr. Genaf called Stanley and confirmed that he could catch the 6:30 a.m. bus. Stanley stated that “he” could bring “it” to Mr. Genaf’s workplace within the next hour or so. Mr. Genaf did not ask who “he” was. He told Stanley that he worked at the Shopper’s Drug Mart at St. Clair and Bathurst.
[18] At 10:28 p.m., Ahmed called Stanley and told him he had not received any text messages from him. Part of their conversation was as follows:
Ahmed: What did you say, put it … put it in a bag or something you said?
Stanley: Yeah. Just if you can, like try to put it in a … either like a basketball bag or something you know, with just maybe like two T-shirts or something, just so it look like you know, you’re sending me clothes or something. He’s not gonna look at it you know. Like I’m not really (unintelligible) I just don’t want my … ‘cause it’s my younger bro’s brethren you know. I don’t want my younger brother knowing about certain things you know, so I don’t … I don’t really want his friend to know.
[19] Stanley told Ahmed that Mr. Genaf was working the night shift at the Shopper’s Drug Mart at St. Clair and Bathurst.
[20] At 10:29 p.m., Ahmed called an unidentified female and asked her to find a bag “like a backpack” that could hold some clothes.
[21] At 10:31 p.m., Ahmed called Stanley and asked him for Mr. Genaf’s telephone number, which Stanley provided.
[22] At 10:33 p.m., the unknown female called Ahmed back and told him to “come get it”, presumably referring to the backpack.
[23] At 11:10 p.m., Brown called Mr. Genaf, who gave him directions to the Shopper’s Drug Mart where he worked. Mr. Genaf told Brown to call him when he arrived and “I’ll just come out.” Mr. Genaf stated that he finished work at 6:00 a.m.
[24] At 11:21 p.m., Brown called Ahmed and told him that he was having difficulty retrieving the cocaine from where it was secreted. It appears from the conversation that some of the cocaine was in “chunk” or solid form, and some was in the form of powder. Brown told Ahmed that the drug was “falling deeper and deeper down and I can’t get it out.” He was concerned that if he kept tugging on it, it would fall and he would lose it. Ahmed then asked him if “the youth”, referring to Mr. Genaf, was there with him. Brown replied:
Brown: No. I thought the youth was not supposed to know that this … getting this.
Ahmed: Yeah, yeah.
Brown: That’s why I’m hiding this.
[25] At 11:27 p.m., Brown called Mr. Genaf, told him that he was at the Shopper’s Drug Mart, and instructed him to come outside “right now.”
[26] At 11:29 p.m., Brown called Ahmed and told him that he had delivered the cocaine to the “light-skinned boy with little dreads.” Brown and Ahmed also discussed the state of the cocaine, which consisted of one solid piece as well as some powder or “pow.” Brown had put the bag of powder cocaine into the bag containing the solid piece, wrapped it up, “shoved it in the pocket” and then “pushed the pocket in the bag” so that nothing else would fall out.
[27] At 11:33 p.m., Ahmed sent a text message to Stanley indicating that Mr. Genaf now had the drugs.
[28] At 11:35 p.m., Ahmed texted Stanley as follows: “Try to see if u can’t send the wip up as early as u can g ples.” Det. Sgt. Babiar testified that “wip” refers to a car.
November 17, 2011
[29] On November 17, 2011, at 2:46 p.m., Stanley called Ahmed and advised him that he got “the thing” just two hours ago. Stanley also related to Ahmed what Mr. Genaf had told him regarding the delivery of the backpack by Brown outside the Shopper’s Drug Mart. Mr. Genaf’s boss had witnessed the delivery and had queried him as to whether Brown was a drug dealer:
Stanley: My boy goes yow … he goes you, yesterday my boss was like yow, who is that guy in the CTS [referring to Brown’s Cadillac] with the dreadlocks. What does he do, you know. The boss gave him the real detective work.
Ahmed: That’s what he was asking? (Laughs)
Stanley: Yeah, who is that guy in the CTS with the dreads? What does he do, sell drugs? Like you know, that is some hot shit.
Ahmed: No way. (Laughs)
Stanley: Yeah. He [referring to Mr. Genaf] said he was stressed. Must have been like, holy fuck, you know, but my boy just covered. He’s like no, no just a … you know.
Ahmed: (Laughs)
Stanley: Fuck, he must (unintelligible).
Ahmed: That’s hilarious. (Unintelligible)
[30] At 3:26 p.m., Stanley called Ahmed to complain about the quality of the cocaine: “You know you give me a bag full of cocoa shakes.” The ensuing discussion concerned what the cocaine should look like while converting it to crack cocaine. Stanley told Ahmed, “I just put it on right now, but it’s not looking too nicely.” Ahmed told him that the “powder one is better than the other ones (referring to the solid pieces), and asked Stanley to “holler at me when you are done doing it.”
November 18, 2011
[31] In a telephone conversation on November 18, 2011, at 4:43 p.m., Stanley and Ahmed again discussed the quality of the cocaine. Stanley indicated that he was prepared to sell it in smaller quantities or “chip it” so that he could “move it faster.”
[32] At 5:42 p.m., Mr. Genaf called Stanley and told him he was catching the 7:00 p.m. bus back to Toronto. Mr. Genaf was at Yusuf’s place. Stanley said that he would “come by there” in about 10 or 15 minutes.
November 24, 2011
[33] The agreed statement of fact indicates that Ahmed obtained one kilogram of powder cocaine on November 24, 2011. During a conversation at 1:52 p.m. that day, Stanley told Ahmed that he had “talked to my boy” and that he was “ready to come up.” Ahmed replied that he would “holler” at Stanley “when I have that ready for you.”
[34] At 8:51 p.m., Ahmed called Brown and asked him about the quality of the cocaine that he had “taken a look at.” Brown described the drug as “shiny but dry.” Ahmed instructed him to take a “cuban” or quarter of an ounce out of “the half.” The conversation continued:
Brown: That’s the big one, yeah.
Ahmed: Yeah, that’s the big one. Fucking … that same youth that you dropped it to. Remember that youth? Yikes’ people.
Brown: Okay.
Ahmed: Yeah. Fucking go by the Shopper’s there.
Brown: You want me to go down there?
Ahmed: Uh … if you want to go down there or I have to (unintelligible) pay for his cab. You tell me. … (interruption) I was saying either I have to pay for his cab or whatever. Or you could (unintelligible) drop it off.
Brown told Ahmed that he would call him back.
[35] At 8:57 p.m., Stanley called Ahmed. They discussed, in coded and guarded language, completing the drug deal the next day. Ahmed told Stanley, “I give you half.” Stanley spoke of getting the deal done and then “forwarding down” with all the money “tomorrow.”
[36] At 9:01 p.m. Ahmed called Brown and told him that Mr. Genaf was going to take a cab. He continued:
I just told him you’re … you told me you gonna … you’re good to go there. So, I just tell them … you gonna go see him. Whenever.
Brown: Why? You would have to pay the cab fare for him?
Ahmed: Yeah for sure.
Brown: Why?
Ahmed: (Laughs) I don’t know bro’. ‘Cause the kid’s like a youth, you know.
Brown: All right, all right.
Brown asked Ahmed to text Mr. Genaf’s number to him.
During this call, Ahmed told Brown to take a “cutie” out of the larger quantity so that he could “at least look at it, you know, switch it.” According to Det. Sgt. Babiar, a “cutie” refers to seven grams. It appears that Ahmed intended to remove that quantity from a larger amount of cocaine and replace it with a cutting agent.
[37] A 9:07 p.m., Brown called Ahmed and asked him, “What you want me to do? Just give it to him like that or you want me to put it away?” Ahmed replied, “Same way again. So he has something to put it in.” Ahmed told Brown that he would have Yikes, referring to Stanley, text him the number.
[38] At 9:11 p.m., Brown called Ahmed, who again told him to “take a cuban out of the half” and replace it with “buff”, referring to a cutting agent. Brown told Ahmed that the only cutting agent he had was “soda.” According to Det. Sgt. Babiar, baking soda is not regarded as a good quality cutting agent. Ahmed then told Brown to just “short them” – in other words, rip off or cheat the buyer out of seven grams of cocaine and not replace it with a cutting agent.
[39] At 11:15 p.m., Brown called Stanley, who told him that Mr. Genaf was at work at the Shopper’s Drug Mart. Brown asked if Mr. Genaf was going to “take a cab up to me?” and expressed some reluctance about driving to the drug store: “I don’t really want to drive up there like these times …” The conversation continued:
Stanley: Oh fuck, he could take a cab you know. The only thing that me and T talked about is just like … you know he’s younger so he doesn’t really have that type of change.
November 25, 2011
[40] On November 25, at 12:12 a.m., Stanley called Brown. The following exchange took place:
Stanley: I gave my boy your number. Just explain to him what’s going on but yow don’t show him what’s … what you’re giving to him, you know?
Brown: Yeah, I’m just gonna … I’m just gonna wrap it up and then put it in something and send it.
Stanley: Yeah, just wrap it and send it to him. But he’s gonna call you right now just so that … Just explain to him how … how exactly he’s gonna meet up with you, you know?
Brown: Okay, he gotta call me fast ‘cause I’m like running out of minutes, you know?
Stanley: Okay, I’m gonna make him call you right now.
[41] At 12:13 a.m., Mr. Genaf called Brown, who asked him what was going on. Mr. Genaf replied that “Yikes told me to phone.” Brown replied, “I’m gonna call you as soon as I get back in the city.” He explained that he had to go out of the city “for a second” and instructed Mr. Genaf to “just take a cab to me.” Brown said he would give him some money to pay for the cab and would call him when he got back. Mr. Genaf replied, “All right, just call me. I have my phone on.”
[42] At 5:20 a.m., Mr. Genaf called Brown, who did not answer. Mr. Genaf did not leave a message.
[43] At 12:41 p.m., Stanley called Brown and suggested that he could meet “him” – presumably Mr. Genaf – at the Scarborough Town Centre. He stated that he would call Mr. Genaf and ask him “if the Greyhound goes there just so that he knows what’s happening.” Brown told Stanley to call him back right away so that he would know when to leave.
[44] In a conversation between Stanley and Brown commencing at 1:17 p.m., Brown agreed to meet Mr. Genaf at the downtown bus terminal.
[45] At 1:35 p.m., Mr. Genaf called Brown and stated that “he told me ca … you’re gonna meet me downtown.” Brown said he was leaving “right now to meet you.” Mr. Genaf was going to try to catch a cab to the terminal.
[46] At 1:55 p.m., Mr. Genaf called Brown, told him he was at Jarvis and Gerrard, and that the bus was leaving at 2:30 p.m. Brown stated that he would be there “way before 2:30” and that he wanted to make sure that Mr. Genaf did not miss the bus. Mr. Genaf indicated that he was going to buy the ticket “right now.”
[47] At 2:15 p.m., Mr. Genaf called Brown and told him he was in front of a “whole bunch of buses.” Brown told him he was driving a grey Cadillac. Police video surveillance shows Mr. Genaf leaning into the passenger side of a vehicle and then carrying a shopping bag as he walked away. This was the same shopping bag that contained the half-kilo of cocaine later seized by police from Mr. Genaf’s backpack at the Ottawa bus terminal.
[48] In a telephone conversation at 2:26 p.m., Brown confirmed to Stanley that he had given Mr. Genaf the cocaine. Mr. Genaf was about to board the bus.
[49] At 8:12 p.m., Mr. Genaf called Stanley and told him that he would be arriving at the Ottawa bus terminal in five minutes. Stanley told him he would be there shortly.
[50] At 9:25 p.m., Stanley called Brown to tell him that the police had arrested Mr. Genaf as he got off the bus. Stanley was not sure whether Mr. Genaf would talk to the police and stated that “the youth never even knew what was there, bro.” Brown told Stanley that he had wrapped the drugs in a “wife beater” and jogging pants and put everything in the George Richards shopping bag. Brown was nervous about the fact that Mr. Genaf might give the police his telephone number. The conversation ended as follows:
Stanley: … (Unintelligible) fucked up this guy’s life, bro.
Brown: Fuck, man. Didn’t even know nothing. (Unintelligible). He’s gonna be nervous as hell. Fuck. He’s close, close, close to you? Close enough.
Stanley: Not really he’s at my bro’s (unintelligible).
[51] The police seized Mr. Genaf’s cell phone following his arrest. The phone rang at 9:30 p.m., 9:38 p.m. and 10:10 p.m. On each occasion, the phone displayed the name Yusuf Stanley.
[52] Police located in Mr. Genaf’s backpack the plastic bag containing the cocaine, tank top and jogging pants, and Mr. Genaf’s wallet, which held his Ontario health card, social insurance card, a temporary Ontario driver’s licence, and a passenger receipt from Greyhound.
Testimony of Det. Sgt. Babiar
Value of half a kilogram of cocaine
[53] Det. Sgt. Babiar testified that half a kilogram of cocaine in brick or compressed form has a wholesale value of about $20,000. The next step in terms of the chain of distribution would involve selling two nine-ounce units, each of which would be worth approximately $9000 to $12,000. It is likely, however, that an ounce of cutting agent would have been added at this stage, thereby increasing the volume and profits.
[54] At the ounce level, cocaine sells for anywhere from $1,100 to $1,600 per ounce. Again, the addition of a cutting agent would result in a larger volume and a greater profit. The same principle applies at the gram level. A gram of cocaine typically sells for about $100. Assuming the original half kilogram had remained pure, it would be worth $50,000. Injecting cutting agents, however, would result in a value of about $100,000 at the gram level.
Use of drug couriers
[55] Det. Sgt. Babiar testified that drug dealers generally use a trusted individual, such as a friend of a friend, to courier drugs from point “A” to point “B”:
There may be different methodologies, but it’s quite common to use a trusted individual, either a friend of a friend or somebody that is referred. So you may have somebody within the group or organization who finds a trusted acquaintance or a friend to transport the drugs.
[56] Trust is an important factor because the dealer may be handing over drugs that are worth a lot of money; for example, in this case, cocaine that is worth $20,000 at the wholesale level.
[57] Det. Sgt. Babiar testified that the initial discussion between a courier and a drug dealer who is recruiting that individual may include a general reference to the subject matter being transported:
It would be a difference between, “Here’s this brown paper bag. Can you take it somewhere?” and if I said, “There’s this brown paper bag and I have $25,000 worth of commodity in here.” I would believe that the person would impart in a general sense the value and the risk of losing that property. So there has to be – I think there is generally a sense that there has to be a component of that discussion about the risk, the value, and at the same time the courier is taking some degree of risk so there has to be a reward or compensation.
Q. And would you expect that discussion about reward and compensation to be a part of that discussion?
A. For the first time I think there would be some sort of discussion, at least in a very general sense. If I’m going to fly to Jamaica and pick up something and bring it back, what would I be getting out of it hypothetically? There would be some, at least a minimal amount of discussion of what am I getting for my trouble here, for my time, my risk.
[58] Such discussions need not be repeated with respect to later trips as the system may already have been worked out or tested and thus become routine.
[59] Det. Sgt. Babiar testified that couriers are generally given minimal information about the overall scheme, as their function is strictly to take the drugs from point “A” to point “B.”
[60] When asked whether he would expect compensation to be part of an ongoing courier/drug dealer type of relationship, Det. Sgt. Babiar testified that it depends on the relationship of the courier within the group:
If the individual is just subcontracted out, a friend of a friend, there may be some discussion about monetary compensation. In other groups, it may be one of those low level entry jobs that an individual will perform to hopefully rise within the ranks of the group.
Guarded, coded and slang language
[61] Det. Sgt. Babiar explained that guarded language involves the avoidance of incriminating terms in a conversation on the assumption that the authorities may be listening. An example of guarded language may be the use of the word “it’, rather than referring to a specific item.
[62] Coded language involves substituting incriminating terms with innocuous terms; for example, a drug dealer may speak of three “tickets” instead of three kilos of cocaine where the individuals within the organization all understand that the word “ticket” denotes cocaine.
[63] Det. Sgt. Babiar also gave examples of slang language or street terms such as “weed” for marijuana and “eight-ball”, “B”, “beezie”, or “bizzle” when referring to an eighth of an ounce of cocaine. During his testimony, Det. Sgt. Babiar interpreted portions of the intercepted conversations where Stanley, Ahmed and Brown used street slang and/or coded language.
ANALYSIS
General Principles
[64] As stated earlier, the main issue in this case is whether the Crown has established beyond a reasonable doubt that Mr. Genaf knew or was wilfully blind to the fact that he was transporting a controlled substance.
[65] The Crown need not prove that Mr. Genaf knew that the substance was specifically cocaine but only that it was a controlled drug: R. v. Blondin (1970), 2 C.C.C. (2d) 118 (B.C.C.A.); aff’d (1971), 4 C.C.C. (2d) 566 (S.C.C.).
[66] It is not necessary that the Crown prove the requisite knowledge by direct evidence; knowledge may be inferred from the surrounding circumstances: R. v. Aiello (1978), 38 C.C.C. (2d) 485 (Ont. C.A.) at 488; (aff’d 1979 31 (SCC), [1979] 2 S.C.R. 15).
[67] When the Crown relies on circumstantial evidence, as it does in this case, the evidence must be evaluated as a whole rather than as individual pieces to determine whether the Crown has met its burden. Some facts will have more probative value than others: R. v. Turner, 2012 ONCA 570, 292 C.C.C. (3d) 69 at para. 27.
[68] The trier of fact must be satisfied that the only rational inference that can be drawn from the proven facts is that the accused is guilty. The mere existence of any rational, non-guilty inference is sufficient to raise a reasonable doubt: R. v. Griffin; R. v. Harris 2009 SCC 28, 244 C.C.C. (3d) 289 at paras. 33-34.
The doctrine of wilful blindness
[69] The doctrine of wilful blindness was described in R. v. Duong (1998), 39 O.R. (3d) 161 at pp. 168-9. Doherty J.A., in speaking for the court, stated as follows:
Wilful blindness is explained in Sansregret v. R., [1985] 1 S.C.R. 570 at p. 584, 18 C.C.C. (3d) 223 at p. 235:
… wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry. [Emphasis added.]
More recently, in R. v. Hawkins, [1995] 4 S.C.R. 55 at pp. 110-11, 102 C.C.C. (3d) 97 at 135 (S.C.C.), Sopinka J. described wilful blindness in these terms in reference to a charge of selling obscene material:
It is well established in criminal law that wilful blindness will also fulfil a mens rea requirement. If the retailer becomes aware of the need to make further inquiries about the nature of the videos he was selling yet deliberately chooses to ignore these indications and does not make any further inquiries, then the retailer can be nonetheless charged under s. 163(2)(a) for “knowingly” selling obscene materials. Deliberately choosing not to know something when given reason to believe further inquiry is necessary can satisfy the mental element of the offence. …
A finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge? [Emphasis added.]
These authorities make it clear that where the Crown proves the existence of a fact in issue and knowledge of that fact is a component of the fault requirement of the crime charged, wilful blindness as to the existence of that fact is sufficient to establish a culpable state of mind.
[70] Doherty J.A. went on to explain that liability based on wilful blindness is subjective:
Wilful blindness refers to a state of mind which is aptly described as “deliberate ignorance”: Don Stuart, Canadian Criminal Law, 3rd ed. (1995) at p. 209. Actual suspicion, combined with a conscious decision not to make inquiries which could confirm that suspicion, is equated in the eyes of the criminal law with actual knowledge. Both are subjective and both are sufficiently blameworthy to justify the imposition of criminal liability.
[71] In Sansregret, McIntyre J., at p. 586, in referring to Glanville Williams, Criminal Law: The General Part, 2nd ed. (1961), at pp. 157-160, observed that wilful blindness has a “very limited scope” and that it should only be found “where it can almost be said that the defendant actually knew.”
Conspiracy and the co-conspirator’s exception to the hearsay rule
[72] Count 1 charges Mr. Genaf with conspiracy to traffic in a controlled substance. In R. v. Carter, [1982] 1 S.C.R. 938, the court outlined the steps to be followed by the trier of fact in a conspiracy case in determining whether the co-conspirator’s exception to the rule against hearsay should apply. The three-step Carter test was more recently articulated in R. v. Chang (2003), 173 C.C.C. (3d) 397 (Ont. C.A.) at para. 53:
The trier of fact must first be satisfied beyond a reasonable doubt that the alleged conspiracy in fact existed.
If the alleged conspiracy is found to exist then the trier of fact must review all the evidence that is directly admissible against the accused and decide on a balance of probabilities whether or not [the accused] is a member of the conspiracy.
If the trier of fact concludes on a balance of probabilities that the accused is a member of the conspiracy then [the trier] must go on and decide whether the Crown has established such membership beyond reasonable doubt. In this last step only, the trier of fact can apply the hearsay exception and consider evidence of acts and declarations of co-conspirators done in furtherance of the object of the conspiracy as evidence against the accused on the issue of his guilt.
[73] Defence counsel, Mr. Mattis, acknowledged that the first and second steps have been satisfied in this case; that is, i) the Crown has established beyond a reasonable doubt that the conspiracy to traffic in a controlled drug as alleged in the indictment existed; and ii) based on the evidence that is directly admissible against Mr. Genaf, the Crown has established that Mr. Genaf was probably a member of that conspiracy.
[74] Mr. Mattis agreed that in these circumstances, the court could consider the acts done and declarations made by Stanley, Ahmed and Brown in furtherance of the conspiracy in determining whether the Crown has established the accused’s membership in the conspiracy beyond a reasonable doubt. However, Mr. Mattis submits that the Crown has not met its burden in this regard.
[75] The defence relies on the intercepted conversations between Stanley, Ahmed and Brown that indicate Mr. Genaf was never told what he was taking to Ottawa for delivery to Stanley. Neither Stanley nor Brown, in their conversations with the accused, mentioned drugs. There is no direct evidence that Mr. Genaf was paid any money, other than cab fare, for making the deliveries. Mr. Mattis further submits that the evidence fails to establish that Mr. Genaf was wilfully blind as to what he was asked to deliver, bearing in mind the limited scope of that doctrine and the fact that it is a subjective test. Mr. Mattis submits that a consideration of all of the evidence leads to the conclusion that Mr. Genaf was truly a “blind” courier.
[76] Crown counsel, Ms. Pasquino, submits that the very fact that Stanley and Brown avoided telling Mr. Genaf what he was transporting was suspicious in and of itself. The fact that they may have kept him in the dark with respect to the deliveries, both of which appeared to involve some urgency, actually strengthens the Crown’s case in terms of establishing that the accused was wilfully blind. Ms. Pasquino submits that when all of the circumstances are taken into account, the only rational conclusion is that Mr. Genaf either knew that he was transporting a controlled drug or chose to remain deliberately ignorant in that regard.
Findings
[77] It is important to bear in mind that although Stanley, Ahmed and Brown may have intended that Mr. Genaf remain ignorant as to what he was taking to Ottawa, the issue in this case is the accused’s state of mind; that is, did Mr. Genaf know or was he wilfully blind to the fact that he was transporting a controlled substance?
[78] The first intercepted call in which Stanley indicated to Ahmed that Mr. Genaf “knew nothing” was on October 27, 2011, when he told Ahmed to “tell him (presumably Brown) to wrap it nicely in a bag or whatever.”
[79] Stanley made a similar request of Ahmed on November 16, at 10:14 p.m., when he told him not to show Mr. Genaf “what it is” and to “just … put it in a bag with … two clothes or something.” In a conversation a few minutes later, at 10:28 p.m., Stanley, in response to a question from Ahmed, repeated this request, telling him to put it in a bag with “two T-shirts or something” so that it would look like Ahmed was sending him clothes. Stanley referred again to Mr. Genaf’s friendship with Yusuf and stated that he did not want his younger brother “knowing about certain things.” Ahmed obtained a backpack from a female acquaintance for the purpose of transporting the cocaine.
[80] On November 16, at 11:21 p.m., as Brown was struggling to retrieve the cocaine from where it was secreted, Ahmed asked him if “the youth” was with him. Brown replied that he thought the youth was “not supposed to know” what he was getting.
[81] On November 25, at 12:12 a.m., Stanley told Brown, “Just explain to [Mr. Genaf] what’s going on but … don’t show him … what you’re giving to him.” Brown replied that he would just “wrap it up and then put it in something and send it.” Following Mr. Genaf’s arrest, Stanley told Brown that “the youth never even knew what was there.”
[82] Although Stanley indicated that he did not want Mr. Genaf to know he was transporting cocaine, the precautions taken by Stanley, Brown and Ahmed in that regard were minimal. As a result, Mr. Genaf had ample opportunity to satisfy any suspicions he had regarding the two deliveries. On November 16, the method of concealing the cocaine consisted of wrapping it in some clothes and placing it in a backpack, which Mr. Genaf could have easily opened during the trip to Ottawa. On November 25, the cocaine was wrapped in a T-shirt and jogging pants and placed in an open plastic shopping bag. Mr. Genaf could have accessed the drugs by simply reaching into the bag. He clearly handled the bag as he placed it into his backpack. The cocaine, which weighed half a kilogram and was in a hard or compressed form, would have felt distinctly different in texture from that of the clothing in which it was wrapped.
[83] As stated earlier, in determining whether the Crown has established the requisite mens rea, all of the circumstances must be considered.
[84] One relevant factor in this case is that this was not a “one off” situation: Mr. Genaf made two deliveries to Stanley within the course of eight days.
[85] The Crown asks the court to infer that Mr. Genaf actually transported drugs to Ottawa on three occasions, with the first delivery having taken place sometime between October 27 and November 16. Crown counsel noted that it appears Stanley first told Ahmed about Mr. Genaf’s role as the courier on October 27, when he gave Ahmed the accused’s phone number and told him to “wrap it [the cocaine] up nicely … in a bag.” By the time of the next intercepted call, which was three weeks later, on November 16 at 10:06 p.m., Ahmed appears to have become familiar with or well aware of Mr. Genaf’s availability to courier drugs to Ottawa: he asked Stanley, “Why don’t you just send your boy?” and told him “I’m saying where is your little nigger that’ll come up with the work and you just rally that down with him.”
[86] Crown counsel also noted that when Stanley called Mr. Genaf two minutes later, at 10:08 p.m., Mr. Genaf anticipated what Stanley wanted him to do, which strongly suggests that Mr. Genaf had done it before: when Stanley inquired if he was working “tonight”, Mr. Genaf replied “Yeah. You want me to drop something off in the morning?”
[87] Defence counsel submits that had there been a delivery of drugs between October 27 and November 16, it would have been “caught on the wires” as the phones of Stanley, Ahmed and Brown were the subject of a wiretap authorization at the time. Although, as observed by the Crown, it is possible that the parties used other phones to arrange the delivery, I am not prepared in the circumstances to infer that Mr. Genaf delivered drugs during that time period. The circumstances are certainly suspicious but do not sufficiently support that finding.
[88] In any event, whether or not Mr. Genaf had delivered drugs to Stanley prior to November 16, he clearly anticipated and understood on that date what was required of him before he was even asked – that is, that Stanley wanted him to “drop something off” the next morning. Mr Genaf did not ask Stanley what that “something” was, but did offer to bring “it” in the morning. He consistently referred to the item as “it.”
[89] Mr. Genaf was aware that Stanley knew “people” (although he did not use any names) who were available to drop “it” off at the Shopper’s Drug Mart. He told Stanley, “Get the people to drop it off, like the … my work is next to your high school.”
[90] Mr. Genaf was aware that the item needed to be prepared or “readied” in some way before it was delivered to him. When Stanley told him it could be dropped off “right now”, Mr. Genaf responded, “Oh, that’s okay. If you got it ready, then I can drop it off in the morning if you don’t mind. I’ll be there like around two.” [I note that Ahmed, when referring to preparing the cocaine for delivery, used the same terminology, telling Stanley that he would call him “when I have that ready for you.”]
[91] Mr. Genaf was aware that there was some urgency in getting the item to Stanley, who told him that 2:00 p.m. was “just kind of late.” Stanley pressed him to take an earlier bus and asked again, “Tonight is for sure no, eh?” When Mr. Genaf told him he could not leave work that early, Stanley then urged him to take the 6:30 a.m. bus, as opposed to the 9:00 a.m. bus, which arrived at 2:00 p.m. It was clear that these few hours were significant to Stanley and that he wanted the item delivered as soon as possible. Mr. Genaf had to have realized that such urgency would not have been called for or make any sense if he were simply delivering a few articles of clothing that would fit in a backpack. The subject matter of the delivery was obviously of significant value and importance to Stanley. The fact that Stanley never identified it or referred to it by name was, in itself, suspicious – and particularly so when the same thing happened again eight days later.
[92] Mr. Genaf’s willingness to participate in a plan that would facilitate an earlier delivery, at some inconvenience to himself, suggests that he was performing more than a simple favour. He was willing to change his work schedule on short notice and take a five-hour bus trip to Ottawa after having worked all night at the drug store.
[93] Mr. Genaf suggested to Stanley that “maybe I can ask [my boss] to allow me to leave an hour early and take a cab.” Stanley urged him to find out “real quickly … and call me back.” Mr. Genaf complied with that request.
[94] Mr. Genaf called Stanley at 10:20 p.m. and told him that he could, in fact, catch the 6:30 a.m. bus. The use of guarded language continued during this call in the sense that the item that was the subject of the delivery was never identified. Stanley told Mr. Genaf that “he’s gonna bring it to your work.” Mr. Genaf did not ask Stanley who “he” was but suggested that “he” should call him upon arriving at Shopper’s Drug Mart and that he, Mr. Genaf, would “come right out and grab it.” Mr. Genaf did not suggest that Brown come into the store or leave the item with another employee. When Brown arrived, he immediately ordered Mr. Genaf to come outside “right now.” Mr. Genaf complied. Brown, no doubt, did not want to linger in the area with a substantial amount of cocaine on his person.
[95] The quick hand off of the backpack from Brown to Mr. Genaf outside the Shopper’s Drug Mart at 11:27 p.m. on November 16, aroused the suspicions of Mr. Genaf’s boss. During his conversation with Ahmed on November 17, at 2:46 p.m., Stanley related what Mr. Genaf had told him about the delivery – that his boss “gave him the real detective work”, asking him about the guy with the dreadlocks who was driving the Cadillac and whether he sold drugs. Mr. Genaf told Stanley that he was “stressed.” Stanley told Ahmed, “Must have been like, holy fuck, you know, but my boy just covered. He’s like no, no just a … you know.”
[96] Assuming that Mr. Genaf did not already know that the “something” he was delivering was drugs, the fact that his boss queried him regarding her suspicion that Brown was a drug dealer clearly brought that possibility to Mr. Genaf’s attention. The boss’s questioning, which caused him some stress, had to have driven home to Mr. Genaf the need to make some inquiry or to look in the backpack, particularly given the time, effort and apparent urgency surrounding the delivery.
[97] Counsel for Mr. Genaf submits that Stanley’s statements to Ahmed regarding the delivery should be given little weight as they are triple hearsay. In my view, however, the reliability of Stanley’s report to Ahmed is bolstered by the fact that much of what he said is known to be true. For example, it is clear that Mr. Genaf’s boss was at the store the night of the delivery because Mr. Genaf asked for and received her permission to leave early, Brown was driving a Cadillac and wore dreadlocks, Brown delivered the backpack containing the cocaine to Mr. Genaf outside the store, and Stanley confirmed to Ahmed that he had received the cocaine.
[98] I also note that there was no apparent motive for Stanley to lie to Ahmed about what Mr. Genaf told him. Stanley was simply reporting to Ahmed that their courier’s boss suspected Brown was a drug dealer and had questioned Mr. Genaf about it.
[99] The second delivery took place only eight days after the first one. Stanley told Ahmed on November 24, that Mr. Genaf was “ready to come up.” Mr. Genaf called Brown shortly after midnight on November 25, stating that “Yikes told me to phone.” It is apparent that Brown intended to deliver the cocaine to Mr. Genaf fairly expeditiously that night. He told Mr. Genaf that he had to go out of the city “for a second” but would call him as soon as he got back. He did not say and Mr. Genaf did not ask him where he was going. Brown also told Mr. Genaf to “take a cab to me” but did not say where that might be. Again, Mr. Genaf did not ask. Brown assured him that he would pay for the cab.
[100] Mr. Genaf, who was at work, waited about five hours to receive further instructions from Brown. At 5:20 a.m., he called Brown, who did not answer the phone. Mr. Genaf did not leave a message.
[101] As it turned out, Brown did not end up giving Mr. Genaf the shopping bag containing the cocaine until they met at the Toronto bus terminal. Mr. Genaf took a cab there. He kept Brown informed of his whereabouts along the way. Brown told him that he would be at the bus terminal “way before 2:30” as he did not want Mr. Genaf to miss the bus. Again, as in the case of the November 17 delivery, it would have been apparent to Mr. Genaf that it was important he deliver whatever was in the bag without delay. Yet the bag, which was open at the top, appeared to contain only a pair of jogging pants. Assuming that Mr. Genaf did not already know or strongly suspect that he was delivering drugs to Stanley, he must surely have regarded these circumstances as extremely suspicious. The delivery of jogging pants would hardly justify all the running around, the taking of cabs, and the urgency or concern on Brown’s part that he not miss the bus. I also bear in mind that this was the second delivery and that it took place after Mr. Genaf’s boss had queried him regarding her suspicions that Brown was a drug dealer.
[102] Mr. Genaf arrived at the Toronto bus terminal with a backpack and no other luggage. It is reasonable to infer from the evidence that this was the same backpack that Brown had earlier given to him to transport the cocaine on November 17. It appears that Mr. Genaf anticipated that whatever Brown was going to give him at the Toronto bus terminal would fit into the backpack, which suggests some foreknowledge of the subject matter of the delivery.
[103] There is no direct evidence that Mr. Genaf was paid for the deliveries, other than his cab fare. However, as noted by Crown counsel, Stanley and Mr. Genaf’s face to face conversations and interactions in Ottawa would not have been captured on the wiretaps. Stanley certainly had the opportunity to pay Mr. Genaf while he was in Ottawa. For example, it is clear that they saw each other on November 18 prior to Mr. Genaf catching the bus back to Toronto. At 5:42 p.m., when Mr. Genaf called Stanley from Yusuf’s place, Stanley told him he would come by in 10 or 15 minutes.
[104] According to Det. Sgt. Babiar, the question of whether compensation is paid to a courier or discussed prior to a delivery depends very much on the drug dealer/courier relationship. Drug dealers generally use a trusted individual, such as a friend of a friend, to courier their drugs. As a close friend of Stanley’s brother, Mr. Genaf fit that profile. The fact that Stanley trusted Mr. Genaf is apparent from his confidence that Mr. Genaf would not look in the backpack.
[105] The fact that the relationship between Stanley and Mr. Genaf was based on a certain level of friendship and trust meant that the deliveries carried out by Mr. Genaf were not strictly a commercial venture, where payment would be expected. Given the nature of their relationship, the payment would most likely have been modest, involving reimbursement of his cab and bus fare. In addition, by making the deliveries, Mr. Genaf enjoyed the side benefit of being able to visit his friend Yusuf in Ottawa.
[106] When the Crown relies on circumstantial evidence, the evidence must be evaluated as a whole rather than as individual pieces. It is the cumulative effect of the relevant circumstances that must be assessed in determining whether the Crown has met its burden. After considering and weighing all the relevant circumstances in this case, I am satisfied that the Crown has established beyond a reasonable doubt that Mr. Genaf either knew or was wilfully blind to the fact that he was delivering a controlled drug to Stanley on November 17 and 25. Those circumstances, as discussed above, may be summarized as follows:
- The frequency of the trips
Mr. Genaf made two deliveries to Stanley. On each occasion, Stanley and Brown refrained from telling him what he was transporting to Ottawa, which was suspicious behaviour in itself. They consistently referred to the subject matter of the delivery as “it.” Mr. Genaf never asked any questions about what he was delivering, although he had many opportunities to do so.
- The short time frame between deliveries, combined with Mr. Genaf’s boss’s suspicions that Brown was a drug dealer
The deliveries were made within the course of eight days. This, no doubt, would have raised the question in Mr. Genaf’s mind as to what Stanley needed to be resupplied with in such a short time frame. The second delivery took place after Mr. Genaf’s boss had questioned him as to whether Brown was a drug dealer. His boss’s queries, in the context of the circumstances surrounding the first delivery and then, later on, the second delivery, had to have driven home to Mr. Genaf the need to inquire or to look in the backpack or shopping bag.
- The urgency surrounding the deliveries and the accused’s response to that urgency
As previously discussed, there was some urgency surrounding each delivery. Stanley initially tried to convince Mr. Genaf to leave on the night of November 16. When that was not possible, he pressed him to take the 6:30 a.m. as opposed to the 9:00 a.m. bus on November 17. When arranging the second delivery, Brown told Mr. Genaf to “just take a cab to me.” He also told him that he did not want him to miss the bus.
It would have been abundantly clear to Mr. Genaf that the time, effort and urgency associated with the two deliveries were inconsistent with his delivering something as inconsequential as jogging pants. Whatever he was delivering was obviously of some significant value and importance to Stanley.
Mr. Genaf responded to the urgency and was willing to inconvenience himself to a considerable degree, such as changing his work schedule and taking a long bus trip after being up all night. He was also willing to wait for and take instructions from Stanley and Brown. This behaviour was inconsistent with performing a casual favour for the brother of his friend.
In terms of Mr. Genaf’s level of participation, I note that he initiated 8 of the 11 intercepted telephone calls to which he was a party.
- The accused correctly anticipated Stanley’s request that he “drop something off in the morning” and used guarded language
On November 16, Mr. Genaf anticipated and understood that Stanley wanted him to deliver “something” to Ottawa before Stanley even asked him. Mr. Genaf appeared to have some knowledge about the subject matter of the delivery in that it had to be “readied” before Stanley’s “people” delivered it to him at Shopper’s Drug Mart. No names were used during this conversation. Mr. Genaf never asked Stanley what he was delivering and consistently referred to the item as “it.” In a conversation a few minutes later, when told by Stanley that “he” would bring “it” to his workplace, Mr. Genaf never inquired as to who “he” was. Similarly, when Brown told him to “take a cab to me”, Mr. Genaf never asked Brown where he was. The guarded language and Mr. Genaf’s failure to ask any questions suggest that he either knew that he was transporting an illegal substance or strongly suspected as much and made the conscious decision not to ask.
Defence counsel pointed out that Mr. Genaf never used coded language. There was, however, no need for Mr. Genaf to resort to coded language. As a courier, his role was limited to discussing where and when he was to receive “it”, that is, the drugs from Brown, and what bus he was taking to Ottawa. Mr. Genaf was not required or called on to discuss the quality, quantity and price of the cocaine, or the process of converting it to crack cocaine. Stanley, Ahmed and Brown all used coded language when discussing these matters amongst themselves.
Mr. Genaf anticipated that whatever Brown was delivering to him at the bus terminal would fit into the backpack. This was the same backpack used during the November 16 delivery.
Mr. Genaf manually handled the shopping bag containing the half-kilogram of hard or compressed cocaine in order to place it into the backpack.
The intercepted conversations indicate that Mr. Genaf was compensated for at least his cab fare. It is also reasonable to infer that he was reimbursed for his bus fare. Stanley had the opportunity to pay Mr. Genaf when he arranged to meet him at Yusuf’s before Mr. Genaf returned to Toronto on November 18.
[107] When all of these circumstances are considered as a whole, the only rational inference is that Mr. Genaf knew or was wilfully blind to the fact that he was delivering a controlled drug to Stanley on November 17 and 25. As Crown counsel put it, the circumstances virtually screamed out for Mr. Genaf to make an inquiry or to look in the packages he was transporting. Mr. Genaf either did look, which would have seized him with knowledge of the drugs, or he chose the path of deliberate ignorance – in other words, he declined to look or make an inquiry because he knew or strongly suspected that such action would fix him with knowledge.
[108] The Crown has established the mens rea requirement beyond a reasonable doubt. That being the case, I am satisfied beyond a reasonable doubt that Mr. Genaf was a member of the conspiracy as alleged in Count 1: he intended to agree and did agree with Stanley and Brown to traffick in a controlled substance. The Crown has also established that Mr. Genaf trafficked and was in possession of a controlled drug for the purpose of trafficking, as alleged in Counts 2 and 3 in the indictment.
CONCLUSION
[109] For the reasons stated, Mr. Genaf is found guilty on Counts 1, 2 and 3 in the indictment.
GARTON J.
Released: August 15, 2014
COURT FILE NO.: 14-150000313
DATE: 2014/08/15
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MOHAMED GENAF
REASONS FOR JUDGMENT
GARTON J.
Released: August 15, 2014