R. v. Ukwuaba, 2015 ONSC 2953

COURT FILE: CRIMNJ 2113/12

DATE: 2015 05 11

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

A. J. Leising, for the Crown

• and -

PETER IFEJUNA UKWUABA

D. McCabe-Lokos, for the Defence

HEARD: February 24-27, April 29, 2015

REASONS FOR JUDGMENT

Correction notice

DECEMBER 23, 2015: The following paragraph replaces the corresponding paragraph in the original judgment issued on May 11, 2015

[1] On July 25, 2011, shortly after exiting his vehicle, Peter Ukwuaba was arrested by R.C.M.P. officers. In the trunk of the car was a parcel replaced by the police for one mailed from India which had contained heroin with a value which may have exceeded a quarter of a million dollars. Minutes before his arrest, the accused accepted delivery of the substituted parcel on behalf of Amesh Gupta, the consignee recipient named on the wrapping which once surrounded the package until it was removed by the accused.

HILL J.

INTRODUCTION

[2] On July 25, 2011, shortly after exiting his vehicle, Peter Ukwuaba was arrested by R.C.M.P. officers. In the trunk of the car was a parcel replaced by the police for one mailed from India which had contained heroin with a value which may have exceeded a quarter of a million dollars. Minutes before his arrest, the accused accepted delivery of the substituted parcel on behalf of Amesh Gupta, the consignee recipient named on the wrapping which once surrounded the packed until it was removed by the accused.

[3] The prosecution alleges that the accused at all times knew that the package addressed to Gupta contained a prohibited substance and that he was an active participant with others in and out of Canada in conspiring to import the illicit drug, the actual importation of the heroin, and as well possession of the narcotic for the purpose of trafficking.

[4] Mr. Ukwuaba’s position is that he had no knowledge whatsoever that the package from India contained an illicit drug – he was simply safeguarding the package until such time as he could put it into the custody of Amesh Gupta.

FACTUAL BACKGROUND

Package Intercepted in the Mail

[5] In July of 2011, Michael Cree was employed by the Canada Border Services Agency (C.B.S.A.) in the Canada Post Mail Centre in Mississauga, Ontario.

[6] On July 18, he was responsible for monitoring an x-ray machine at an enforcement conveyor belt carrying mail from certain targeted countries.

[7] At about 9:45 p.m. on July 18, Mr. Cree observed on the x-ray screen what he believed was an “inconsistency” in imagery within a package from India. In the witness’ view, there appeared to be light and dark shading within an item in a parcel wrapped in white cloth or fabric addressed to:

TO:

NAME: AMESH GUPTA

ADD: KANGSWAY . TRANSPORT

43 HOLYOAK . CRESCENT

ETOBICOKE . ONTARIO

M9W – 6G9 . CANADA.

TELL: 6478182212.

The sender of the package also written in black marker in large printed text was:

FROM

LYLY

25 A.G.S. . T ROAD

AMBAL NAGAR

CHENNAI – 32

PH. 919582687484

[8] The Customs Declaration affixed to the parcel with the same sender’s and recipient’s information stated a weight of 18.1 kg. and “valve-62 Pecs”. On the package there was also a sticker with a bar code and a Canada Post tracking number (ET 138 626 565 IN).

[9] Mr. Cree removed the parcel from the belt to a secure area. Using an exacto knife, he cut the fabric along at least two edges to reveal a cardboard box in rough or shabby condition, which included wording on its surface ‘MULTIGRADE 20W40’.

[10] Mr. Cree opened the cardboard box and discovered 62 smaller cartons or boxes inside, each labelled as containing a Pneumatic Air Valve Joint sized 16 mm x 55 mm x 39 mm. The witness opened one of the boxes and unscrewed the valve into two pieces. Concealed inside, and invisible prior to the valve being dismantled, were 4 small plastic baggies containing a quantity of white powder. Mr. Cree opened one baggie and conducted a NIK (Narcotics Identification Kit) test with the powder testing positive for heroin.

[11] Mr. Cree informed the court that he then contacted his supervisor. To his recall, the exterior fabric was taped to the box before the items were placed in a secure customs vault.

Package Prepared for Controlled Delivery

[12] R.C.M.P. Sergeant George Johnson headed up the force’s Pearson International Airport Detachment’s controlled delivery team in July 2011. On July 19, the officer attended the Canada Post Mail Centre in Mississauga to take custody of the C.B.S.A. seizure from the prior evening.

[13] Sgt. Jackson took photographs of the relevant items at his detachment office. Concealed baggies were located in each of the valves. The total weight of the powdered substance, analyzed by Health Canada to be heroin, was 1168 g. with a 45% purity level.

[14] The R.C.M.P. decided to attempt a controlled delivery of the parcel which had been mailed from India. Into a cardboard box, in better condition and smaller than the original box, were placed 27 reassembled valves in their own individual cartons with one containing a gram of the heroin. The box was outfitted with a tracking device to allow a police team to maintain surveillance as well as a silent alarm to alert the police if someone opened the box. The white fabric which covered the original box was resewn to encase the new box to facilitate what would look like a normal mail delivery.

[15] Sgt. Johnson testified that in his experience access to the Canada Post tracking number would allow on-line monitoring of a mailed package’s in-transit progress, including when it arrived in Canada, when released by Customs, when being processed by Canada Post, and when “out for delivery”.

Pre-Delivery Investigation

[16] On July 20, 2011, R.C.M.P. Constable Christopher Dale conducted surveillance on the detached residence at 43 Holyoake Crescent in Toronto for 12 to 15 minutes. He made no observations of anyone at the home.

Background of the Accused

[17] In his July 25, 2011 videotaped statement to the police, Mr. Ukwuaba described himself as weighing 190 to 200 pounds with black hair and brown eyes. The accused is a black-skinned male born in Nigeria. By July 2011, he had been in Canada for eight to ten years. He was a landed immigrant.

[18] According to his statement to the police, the accused bought and sold cars and earned a commission. Many of the vehicles were shipped overseas. The accused had no business premises – he sometimes worked from home.

[19] Asked where he resided at the time of his arrest, the accused stated that he had been living with his girlfriend, Blessing, for the past six months in Toronto. They had an eight-month-old son.

July 25 – The Accused is Present at 43 Holyoake Crescent

[20] According to the accused’s police statement, he arranged to meet a tow truck driver early in the morning of July 25, 2011, perhaps 9:00 to 10:00 a.m., at the premises of his mechanic at Milvan Drive and Finch Avenue in Toronto. He walked to the bus stop at Kipling Avenue and Finch Avenue. Once with his mechanic, he gave him some money for transmission repairs to be made that day to a Volvo vehicle the accused had purchased for resale. The accused rode with the tow truck driver to Islington Avenue where the Volvo was located. The tow truck driver was given the Volvo key and asked to tow the Volvo to the mechanic’s shop.

[21] The accused provided various accounts of what he did next. He variously stated that he took a bus from his mechanic’s premises to a bus stop on Humberline Drive in Etobicoke, and, that he walked or took a bus down Islington Avenue to Humberline Drive from the location of the Volvo pick-up while the tow truck driver went on alone to see the mechanic. Holyoake Crescent runs north off Humberline Drive joining Humberline at two points because it is a crescent.

[22] In his videotaped statement, the accused stated that he resided in the house at 43 Holyoake Crescent for six to eight years moving out in November of 2010. He never had a key for the front door of the home.

[23] On the accused’s account, in July 2011, he still had some books in the garage of the Holyoake residence (“some of my text books and a lot of things are still there”; “you will see a lot of … my books in that garage”) and went to the house weekly, usually on Mondays, to pick up any mail or parcel which may have come for him. It appears that he did not change his mailing address once he moved in with Blessing Ojie. On occasion, he would go to the residence on a weekend or on some other day of the week if he was expecting a cheque. At the residence, the mail was delivered to a box on the outside of the home and then taken inside. The accused knew some of the tenants by first name, and in his words, “I know most of the Indians”.

[24] According to the accused, more than once he had signed to receive a parcel delivered for another tenant and they too had signed for parcels addressed to him.

[25] Harpreet Kang managed the 43 Holyoake property for his parents acting essentially as the landlord renting lodging rooms in the residence. The tenants were often Humber College students. To Mr. Kang’s recall, there were six to eight tenants in the house in July 2011 the majority of whom were international business students. To the witness’ recall, there were no persons of Nigerian descent residing in the house in July 2011.

[26] Mr. Kang recalled the accused as a tenant for the house for a period of some years. The witness was aware that after the accused moved out about six months before July 2011, he would return to check on his mail, although he could not say with what frequency the accused came by.

[27] Mr. Kang recalled that Amesh Gupta, as an international student from India, was a tenant of the house on and off for two to three years. He had moved out more than a year prior to July 2011. Mr. Kang was able to say that the accused and Amesh Gupta overlapped for a time as tenants at 43 Holyoake Crescent. According to Mr. Kang, within three months after July 25, 2011, when Gupta phoned about again renting a room, he told him that the police wanted to speak to him and that he should go to a police station.

Police Surveillance Prior to Controlled Delivery

[28] In preparation for the controlled delivery on July 25, 2011, the police flooded the area of 43 Holyoake Crescent with a number of unmarked surveillance vehicles including those operated by Corporal Prowse and Consts. Buchner, Dale, Hulan and Caron. From time-to-time, officers would radio to others their relevant observations.

[29] Const. Buchner arrived at Holyoake Crescent at about 9:30 a.m. on July 25, 2011. Parked on the street some distance from 43 Holyoake, he had a direct view of the subject house. A silver Nissan vehicle was in the driveway. At 9:51 a.m., an East Indian male appeared from between the houses at 41 and 43 Holyoake and went toward a walkway leading to Finch Avenue to the north. At 10:05 a.m., a black Lincoln Towncar parked in the driveway of 43 Holyoake Crescent and an East Indian male exited the vehicle and went to 41 Holyoake. He reappeared about a minute later going to his car before returning to 41 Holyoake.

[30] As he was parked on Holyoake Crescent to the west of 43 Holyoake, Const. Buchner heard a radio call at 10:22 a.m. regarding a vehicle with Ontario licence plate #BHZD 532. Shortly after the broadcast, he observed a mid-to-late 90’s dark-coloured Toyota with that licence plate number driving toward his position from the east. The vehicle slowed in front of 43 Holyoake before moving further along the street very slowly, at less than 20 K/hr, toward the officer’s location. Const. Buchner testified that the Toyota came right alongside his car almost stopping with the driver staring very intently at him. He got a good look at the driver who was a black male who was bald. The officer subsequently identified the driver as the accused. The Toyota then moved on to the south and drove out onto Humberline Drive heading east.

[31] Const. Buchner then heard a radio communication that the Toyota was back on the easterly arm of Holyoake Crescent parked behind a surveillance vehicle occupied by Const. S. Caron.

[32] When, prior to the controlled delivery, Cpl. Prowse drove north on the eastern arm of Holyoake Crescent he observed the Toyota Avalon parked on the east part of the street. There was a black male driver with a bald head slumped down in the driver’s seat.

[33] At 10:44 a.m., Const. Buchner saw the same Toyota drive east along Holyoake Crescent and pass #43. When the vehicle was still to the east of the officer’s position it reversed and went back to the east. From his location, the officer could not make out who was driving the Toyota.

[34] By 11:05 a.m., Const. Hulan replaced Const. Buchner, parking on Holyoake Crescent and taking up surveillance of the target residence. At about 11:06 a.m., the officer observed a black male, with nothing in his hands wearing a blue shirt, walking north on Holyoake and then entering the home at 43 Holyoake.

[35] At 11:06 a.m., Const. Buchner observed a black male carrying documents walking out from between 41 and 43 Holyoake Crescent. He did not get a look at this person and did not see where he eventually went.

[36] At approximately 11:13 a.m., Corporal G. Prowse took up direct observation of 43 Holyoake Crescent. At 11:16 a.m., a BMW vehicle pulled into the driveway. An East Indian male with a backpack exited the house and got into the BMW which then drove away.

The Controlled Delivery

[37] R.C.M.P. Constable Vladan Todosijevic was responsible for the undercover role of a Canada Post employee during the controlled delivery which took place on July 25.

[38] The officer parked a vehicle with Canada Post markings on the street in front of 43 Holyoake Crescent. On arrival, Const. Todosijevic observed the accused inside the glass front door of the residence. At about 11:21 a.m., the officer approached and knocked on the door at which point the accused exited the home onto the porch.

[39] In the police briefing earlier that morning, the constable was instructed to deliver the parcel to Amesh Gupta or anyone else prepared to sign for the package acknowledging Gupta as the recipient.

[40] Const. Todosijevic told the accused, whose identity he did not then know, that he had a parcel for Amesh Gupta. The accused stated that he would take the package for him and agreed to sign the delivery slip on the officer’s clipboard. The accused was instructed to sign his name and then to print his name. On both occasions, the accused signed his name. The officer testified in respect of the accused’s demeanour, that there was sweat on his forehead, and from his facial expressions the accused appeared nervous.

[41] From his vantage point on Holyoake Crescent, at 11:24 a.m. Const. Dale observed the controlled delivery with the package accepted by a black male at 43 Holyoake Crescent. He subsequently was able to identify this person as the accused. The accused went back into the residence taking the package with him.

The Accused Leaves the House on Foot

[42] At 11:24 a.m., Const. Hulan saw the black male, bald and wearing a blue shirt, the person he had seen earlier, walk south on the east arm of Holyoake Crescent with some papers in his hand.

[43] At 11:26 a.m., Const. Dale observed the male party who had accepted the controlled delivery package leave 43 Holyoake on foot with papers in hand but without the parcel. The accused was seen to walk south on the eastern arm of Holyoake.

[44] According to Const. Buchner, sometime after 11:20 a.m., when he was no longer positioned on Holyoake Crescent, but rather on Humberline Drive, he heard a radio transmission that a black male had exited 43 Holyoake Crescent and was walking south toward Humberline Drive. From his position to the south, the officer saw the driver of the Toyota walking along Humberline Drive to the east of Holyoake Crescent. He was not carrying the controlled delivery package.

The Accused Returns to Pick up the Package

[45] Constable Buchner next saw the accused in the visitors’ parking lot of an apartment building at 6 Humberline Drive. Shortly after, Const. Buchner observed the same Toyota Avalon he had earlier observed on Holyoake Crescent drive out of the driveway of that building.

[46] Const. Dale observed the accused return to 43 Holyoake driving a dark-coloured Toyota. The accused entered the residence.

[47] After noting some movement from the parcel’s tracking device, Const. Dale saw the accused exit 43 Holyoake Crescent and go to the Toyota where he opened the trunk “not all the way” being only “a few inches”. He then re-entered the house and returned a few moments later with the controlled delivery box without the fabric shipping wrapper around it. At 11:32 a.m., Const. Dale saw the accused place the controlled delivery package in the trunk of the Toyota Avalon. The accused then drove away down the west arm of Holyoake Crescent.

The Accused’s Account of Taking the Delivered Package

[48] In his videotaped statement, the accused provided this information relating to his attendance at the 43 Holyoake residence on Monday, July 25, 2011:

(1) after getting off the bus on Humberline Drive, he went to the house to pick up his mail

(2) he was only in the house for two to five minutes

(3) as he was leaving, the postman arrived to deliver a parcel – he signed his own name to acknowledge receipt of the parcel (“I sign it so and I take it”) – the accused also stated, “I printed my name, he said print it”

(4) the parcel was left in the house in “the closet” when the accused left with some of his mail to walk to the bus stop on Humberline Drive (“I walked to the bus stop”; “I was going to the bus stop”)

(5) as to how he planned to leave the area, the accused also gave this evidence:

A: I was, I was going to the bus stop.

Q: Yeah.

A: Do you understand?

Q: Yes.

A: I was calling someone to come and pick me up.

Q: You were going to call someone to come and pick you up?

A: Or I take the bus.

(6) in the end, he did not take the bus – “a lady called me the car is there so I went there and took the car” – his girlfriend’s car, a Toyota Avalon, was parked at an apartment building at 6 Humberline Drive, “[v]ery close” by, where either Blessing or “somebody” had “dropped it” that morning or the day before – he had a key on his person for the vehicle and was going to take the car to the mechanic

(7) as he now had a car, he decided to drive back to 43 Holyoake Crescent to pick up some of his books.

[49] In his videotaped statement, the accused stated that he only drove his vehicle onto Holyoake Crescent on one occasion on July 25, 2011 when he came from Humberline Drive to the residence before driving to Value Village. Challenged that he had in fact been driving around the street, the accused replied, “that is the wrong person”.

[50] The accused informed the police that he did not know what was in the delivered parcel or the intended recipient of the package – “I don’t know who the package was for”. To his knowledge, most of the guys at the house were students – “most of them I don’t even know by their faces”. In the videotaped interview, the accused was asked about the consignee of the package:

Q. …a package came there and you have no idea who it’s for?

A. No.

A. Um, I know Amesh.

A. I don’t know him but I know him you know.

Q. So you were living there at the same time as Amesh Gupta?

A. I think so.

Q. Were you two friendly?

A. I ah like what I told to be, to be frank with you.

Q. Ok do you know Amesh?

A. Hum?

Q. Do you know Amesh?

A. I don’t know who he is, I don’t know…..

A. …there’s one called Amesh and what comes to my mind when I was checking my mail I noticed a Amesh…there’s Amesh mailed on that box.

Q. Amesh Gupta lived there when you did right?

A. Like when I was, I don’t know, when I actually lived there when I lived or but when I dah mail package like this, there’s a little part Amesh………..there is ah a lot of……..

Q. Um.

A. Do you understand so I ……..that I saw Amesh, I know the people living there.

Q. Ok. So you took the package.

A. Um hum.

A. …and tell me who’s Amesh, I don’t know…

[51] On return to the house, according to his videotaped statement, the accused gathered up mail, books, flyers and magazines to take away (“I pick up a lot of things”). On more than ten occasions in his statement to the police, the accused maintained that no one was home when he was in the Holyoake Crescent home on July 25, 2011. Representative of what he told the police is the following:

A. …they had all gone out for a walk.

Q. …so now you, you went up to all the rooms and knocked?

A. Yeah.

Q. Okay.

A. …but I was…I knocked every door nobody was…

A. I went back into the house and was knocking on the doors and nobody was there, they’ve all gone out. So nobody was here.

A. I went upstairs knocked on the doors.

[52] The accused informed the police that because the front door of the 43 Holyoake Crescent home was never locked, and no one was home, he was concerned about the security of the package he had signed his own name to receive. If he left the parcel it could be taken by someone other than Amesh Gupta. In these circumstances, in his words, “I said okay, the best thing you can do is take the wrap off and leave the carton there”. In speaking to the police, he demonstrated how he removed the wrap adding at one point, “so I just destroyed it”. The accused added:

A. … yeah leave it there because even if people come in when the see the carton with no names on it nobody’s going to take it, it’s only if ………so I took the wrap off went to my car do you understand and dropped it there…

A. …that was my first intention take the wrapping leave the box.

A. I came out with the wrap first and put it in the trunk, and then I say why not pick up everything put in the trunk…

A. The best way to do it is to remove the name on it. I keep it, hide it.

Q. So you took the wrapper off and you came out of the house and you put the wrapper where?

A. In my trunk.

A. I left the box there. I took the wrap.

Q. Yeah.

A. I was with the wrap cleaning my hands (accused demonstrating hand wiping motion).

[53] The accused was questioned as to how separating the parcel wrapping from the package itself would advance any security objective:

A. …and I told you why I unwrapped the package.

Q. Yes but it didn’t make any sense.

A. It makes sense because if I left the carton there…

Q. Yeah.

A. Do you understand?

Q. You …….you left the package there…

A. If I left, if I left it with the wrap, do you understand at that place you don’t have key or something there’s a chance that it will miss.

Q. That would happen even with the wrapping.

A. No, no, no, no.

[54] Accordingly to the accused, he made two trips to his vehicle, once with the wrapping off the parcel and, after walking back into the house, a second with the parcel, mail and books. On no less than ten occasions in his statement to the police, the accused maintained that “everything” went into the trunk of his vehicle. On other occasions, the accused told the police he put material in the “front of the car” and “in the front of the car on the ground” including a letter from his credit card company, also described as “everything is there…right there on the floor you see everything”.

[55] The police questioned the accused further as to why he would not just leave the package in the house for Gupta:

Q: And then if there was nobody there and the package was there when they came back from school or they came back from work, they would have come home and seen a package for them on the floor and that would have made sense, that would have been normal, they would have come home seen the package for them and taken their own package. What doesn’t make sense?

A: It doesn’t make sense.

[56] On several occasions in his videotaped statement, the accused stated that he planned to return to 43 Holyoake Crescent later in the day to say to whomever was present words to the effect of, “Whose package is this?” or “Who is this?” or “who’s Amesh?” in an effort to put the package into the hands of Amesh Gupta. On more than one occasion in his police statement, the accused demonstrated that he would hold up the wrapper and ask this question of whoever was present.

Blessing Ojie’s Testimony

[57] Blessing Ojie informed the court that she was in a girlfriend relationship with the accused in July 2011. At the time, she owned a Toyota Avalon vehicle.

[58] On Ms. Ojie’s evidence, on July 25, 2011, she intended to go shopping with Mary, who resided in the apartment building at 6 Humberline Drive, in particular to purchase diapers. She had first met Mary at a recreation centre and had talked with her at various rec centres or libraries with events dealing with new-born babies.

[59] On about eight occasions in her evidence, prior to being pressed in cross-examination about this individual’s details, she described Mary as a “friend”. Then, in cross-examination, the witness stated that she never knew Mary’s last name. She had never been in her apartment and did not know her apartment number. She did not have her phone number any longer as they no longer socialized. Under this questioning, Ms. Ojie stated that “we’re not friends” – they would just talk when they saw one another.

[60] According to Ms. Ojie, after having breakfast, she set out on her drive to Mary’s building. She could not remember at what time of the morning she left home.

[61] The witness testified that, in the prior two or three days, noise had been coming from one of her tires. The accused was supposed to take her car in to a mechanic to have the tires rotated.

[62] Ms. Ojie testified that as she drove on Finch Avenue West, prior to the traffic light for Highway #27, she stopped at a traffic light with a red light. Because it was summer, her vehicle windows were down. There was a bus stop there as well. Three people were there with “grocery stuff” apparently waiting for a bus. They waved at her and said words to the effect of, “at the picnic, at the picnic, 43 Holyoake”.

[63] Initially in her evidence, Ms. Ojie stated that she recognized them from a picnic she had attended with the accused the prior Saturday. She subsequently stated that she recognized these individuals from her attendances at 43 Holyoake Crescent when the accused was residing there. She saw them there to say “hi” to. She could not say how often she had seen them at the house. Asked how frequently she visited the accused at the Holyoake residence, the witness was unable to provide even a rough estimate between one and a thousand. Shown a photo of 47 Holyoake Crescent (Exhibit #8), the witness misidentified it as the 43 Holyoake home.

[64] Ms. Ojie testified that she said to the three persons, whose names she did not know, “come in” offering them a ride. On her evidence, she assumed they were heading home and, because she was driving toward Humberline Drive, Holyoake was very close.

[65] Asked in cross-examination to describe these passengers further, Ms. Ojie stated that a female sat in the front passenger seat and two males in the rear seat. She could provide no estimate of those persons’ age. The only detail provided respecting the female was that she had curly hair, was not too tall and appeared to be from India. One of the males looked Indian as well but the witness could provide no other information about him. The second male wore a baseball cap and might have been black-skinned.

[66] According to Ms. Ojie, there was discussion about the picnic. The witness testified that she was informed by the group that they were not going straight home – they were going out for breakfast so she dropped them at an intersection. She cannot recall what intersection this was but it was variously described in the witness’ confusing testimony on this topic, as at an intersection on Holyoake, and as “a few blocks away” from Holyoake Crescent. According to the witness, in reference to Holyoake Crescent, she stated: “I drove around the crescent then to Humberline”.

[67] Ms. Ojie testified that when she next parked at 6 Humberline Drive, Mary was already outside waiting for her despite there having been no arrangement of a meeting time beyond the morning. The witness does not know when she arrived at the apartment building.

[68] On the witness’ evidence, she was unable to roll up all the Toyota windows. From outside the vehicle, she had to manually pull up at least one of the windows. In the course of this operation, she spotted a black cellphone on the floor of the car by the rear seat. The phone did not belong to her or the accused. With Mary waiting, and this all happening in seconds, she threw the phone into the front glovebox and locked the car. She went shopping and was driven home by Mary arriving between noon and 12:30 p.m.

The Route to Value Village

[69] Cpl. Prowse, who participated in the surveillance of the Toyota as it left the area, estimated that there were about seven or eight minutes of driving before the accused was arrested at 11:47 a.m.

[70] A number of police vehicles followed the accused with no one officer maintaining continuous surveillance as they alternated to some extent direct observations during the pursuit.

[71] The Toyota exited Holyoake Crescent and went west on Humberline Drive which then curved to the north crossing Finch Avenue West. The vehicle the proceeded east on Albion Road, south on Carrier Road, then south on Woodbine Downs Blvd. before turning east into a parking lot containing a Value Village. This round-about route, by no means the most direct route to Value Village, was marked by the Const. Hulan on Exhibit #19.

[72] The accused informed the police that his intention on leaving the Holyoake Crescent address was to drive to Value Village to purchase some used clothes. From there he would drive to his mechanic’s premises and perhaps return to the Holyoake house by about 2:00 p.m. when “four or five, one or two of them may be around then I can hand the parcel to them”. Challenged that he did not take the most direct route from the house to Value Village, the accused stated that to avoid holdups from construction he took the route that he did.

[73] As Cpl. Prowse followed the Toyota south on one of the last roadways before the attendance at Value Village, the accused turned left into a driveway or alley. The officer kept on going south. Looking in his rear view mirror, Cpl. Prowse noted that none of his surveillance team were behind him north of the driveway. After losing sight of the Toyota, the officer made a U-turn heading back north and then east through the same alley leading to the Value Village parking lot.

The Arrest and Searches Incidental to Arrest

[74] Once in the parking lot, Cpl. Prowse saw the accused walking in the direction of the Value Village less than a car-length from the parked Toyota. Fearing the loss of the suspect as a target, Cpl. Prowse decided to arrest the accused. To this end, he stopped his car, jumped out and arrested the accused at 11:47 a.m. In the accused’s hand was the white, cloth wrapping from the controlled delivery package.

[75] The accused told the police that when he exited his vehicle at the Value Village location he intended to go inside. Asked what he had in his hand at the time, the accused responded, “It’s my phone” and “the wrap of that thing”. Questioned as to why he had the parcel wrapping, the accused stated:

Q. What were you going to do with that?

A. What, what the same thing with my ……on my phone, I was using it to clean the grease on my hand, that’s all, there’s nothing I was going to do with it, I’m just, I just put it in the car, put it you know you are driving wheel …..something when I got I saw something in my I was holding, I was going into the Value Village to buy something to come back and go.

Q. So you’re taking, you had in the hand your wrapper?

A. I had the wrapper, my phone, my other letters.

[76] Const. Buchner took possession of a cellphone removed from the accused’s person by Cpl. Prowse during the personal search of the arrestee. Const. Buchner undertook a cursory search of the phone incident to the arrest. There were no sent text messages sent that day. There was a text message recorded as received at 11:28 a.m. The officer used the seized cellphone to call his own cellphone in order to identify the phone number assigned to the seized phone – the number appearing was (647) 885-9824 with the call display showing Peter Ukwuaba.

[77] Const. Buchner searched the Toyota Avalon incident to the arrest. The witness has no memory of seeing books in the vehicle. The controlled delivery package without the exterior wrapping was located, unopened, in the vehicle trunk. Also in the trunk was an unattached vehicle licence plate (#BBSC 029). The constable seized a black Motorola cellphone (Exhibit #11) from the passenger glovebox. In the driver’s door compartment, the officer located an RBC transaction record from a Woodbridge, Ontario bank branch relating to a June 17, 2011 $1,500 cash deposit. Const. Buchner removed certain documents from the vehicle glovebox. There was an RBC Cash Bank statement for the time period of June 14 to July 11, 2011 in the name of Peter Ukwuaba of 43 Holyoake Crescent, for payment due by August 5. There was also a BMO MasterCard account statement dated June 20, 2011 in the name of Peter Ukwuaba of 43 Holyoake Crescent relating to a payment due by July 11, 2011. Also in the glovebox was a June 27, 2011 receipt recording $3,900 received from Peter Ukwuaba relating to “For shipment “RoRo””. There were other cards and papers also located in the glovebox.

[78] With respect to the Motorola cellphone, Const. Buchner used the device to call his own cellphone with a phone number appearing in the call display window as (416) 508-3488 without any subscriber name appearing relating to the seized phone. As the officer examined the phone finding no text messages sent that day, the phone rang with the phone identifying the caller to be “Okey”.

[79] The accused was questioned by the police regarding his story of picking up books and placing them in the trunk of his car:

Q. Why weren’t there any books in your car?

A. Hum?

Q. Why weren’t there any books in your car?

A. Why?

Q. You said you were picking up books, why weren’t there any books, there were no books in the car?

A. Why the book in the car? Check in the front of the car on the ground you will see …is there okay you will see a letter from my credit card company.

Q. Yeah, there were a few letters there, yeah sure.

A. …them a lot of them…okay everything about this, everything is there…right there on the floor you see everything.

[80] Although Const. Dale initially joined the pursuit of the Toyota, he did not attend the scene of the arrest instead heading back to 43 Holyoake Crescent where he entered and investigated an occupant in the basement of the residence named Kelvin Newman.

Cellphone Evidence

[81] When arrested, the accused had a silver LG phone in his hand. The phone number for this phone is (647) 885-9824. A second cellphone, a black Motorola phone, was seized from the glovebox of the Toyota vehicle driven by the accused immediately prior to his arrest. The phone number associated to this phone is (416) 508-3488.

[82] The LG phone was registered to the accused and the Motorola phone to George Uche. No fingerprint evidence was introduced regarding testing of the Motorola phone.

[83] The R.C.M.P. Integrated Technical Crime Unit extracted data from each phone. On July 3, 2011, a text message was forwarded to the Motorola phone from 880 175 293 4111 reading: “Nwoke Canada how far? Obinna”. There was a text message sent from 91 875 0159453 to the Motorola phone on July 15, 2011 at 4:06 a.m. reading “ET138626565IN” which is the Canada Post tracking number for the package signed for by the accused on July 25, 2011. According to Exhibit #20, the menu of Bell International Country Codes, the Bell International Country Code for India is ‘91’. At 9:31 a.m. on July 25, 2011, there was a call to the Motorola phone from 91 875 0159453 lasting for one minute and twelve seconds and at 9:34:30 a.m. an outgoing call to 1 647 274 5790 lasting 1:23 to a number listed for Kevin in the phone’s contact list. At 10:15 a.m. on the same date, a text was forwarded to the phone stating: “Obinna”. Ms. Ojie testified that Obinna is a common name in Nigeria. At 11:28 an outgoing call was again made to Kevin from the Motorola phone.

[84] The analysis of the LG phone found on the accused’s person on arrest includes these calls on July 25, 2011:

(1) 00:22 a.m. - incoming call from 92(331) 675-0739

• duration 25 secs.

(2) 9:15 a.m. - outgoing call to 1(647) 887-0576

• this phone number assigned to ‘PRIS’ in contact list

• duration 36 secs.

(3) 9:22 a.m. - incoming call from 92(331) 675-0739

• missed call

(4) 9:35 a.m. - outgoing call to (416) 890-5176

• duration 49 secs.

(5) 11:06 a.m. - incoming call from 234 (706) 622-5854

• duration 23 secs.

(6) 11:53 a.m. - outgoing call to (416) 797-5431

• duration 11 secs.

(7) 12:22 p.m. - incoming call from 234 (703) 772-6597

• duration 0 secs.

[85] At 10:28 a.m. there was an incoming text message to the LG phone from 92 331 675 0739 reading: “Pls pls I have any other person to esplain my problem pakistan people dup me with 2 carton and my land lord quit me from the house am living first busines i want to do since i come out from school pls help me pay for anot4ger house plz”.

[86] Contact list information was extracted from each phone. The Motorola phone had only 17 non-duplicative contact names (not including 411-Assistance) far fewer than the LG phone. Of the 17 names, over half of them, some 9 in number, were similar or identical names to names in the contact list of the phone registered to the accused:

LG PHONE

MOTOROLA PHONE

(1) Bisho

Bish

(2) Emeka

Emeka

(3) Ogbons

Ogbo

(4) Enerst

Enerst

(5) Okey

Okey

(6) Steve

Steve

(7) Kevin

Kevin

(8) Dave

Dave

(9) George

George

Of these names, only #s (1), (3) and (5) had identical phone numbers recorded in the contact list of each phone.

The Heroin

[87] The seized heroin weighed 1168 g. or about 2 lb. 9 oz. On the evidence, and given this weight, there was no disputing that anyone possessing the heroin did so for the purpose of trafficking. R.C.M.P. Constable Ryan Corcoran submitted an expert opinion report filed as an exhibit with the parties agreeing to the accuracy and truth of the report’s contents. The report includes these facts:

(1) opium is the milky white resin collected from the poppy plant – the resin turns brown/black on exposure to the air – it contains about 20 alkaloids, the most prevalent of which is morphine at 10 to 16% content – morphine is highly addictive and acts as a depressant on entry to the central nervous system

(2) heroin is manufactured from opium to create a new and more potent substance – the process for making heroin, a drug providing a large load of morphine to the brain and a powerful high, is complex and requires a well-set-up lab to provide a quality product – it takes 10 kg. of raw opium to produce one kg. of heroin

(3) the heroin in the present case was shipped from Chennai, India – India is a transit, not source, country for heroin as it borders the source country of Pakistan and is in close proximity to other source countries including Afghanistan, Burma and Thailand

(4) it is not uncommon for drug importers from source countries to ship heroin to a nearby country for shipment to Canada in an attempt to reduce suspicion from authorities

(5) the practice of concealment of heroin in legitimately-shipped items is common

(6) a heavy injection user of heroin would consume within a range of 2 to 5 “points” daily (a point being 1/10 g. or 100 mg.)

(7) some users smoke heroin but this is less popular on account of much of the heroin being wasted during the smoking process

(8) snorting is the least used consumption method because, while a euphoria state may be experienced, the “rush” of other methods is not experienced

(9) the seized quantity represents a 6-year supply for a heavy user

(10) the presence of coffee as a cutting agent (a) lowers the melting point of heroin (b) lowers the drug’s purity to avoid overdoses (c) increases volume to maximize profit

(11) caffeine, a common cutting agent, was identified within the heroin and with the heroin purity cut to 45% the seized heroin required no further cutting and was ready for sale at the street level

(12) as to the pricing and value of the seized heroin:

“The general price for heroin in Toronto in 2013:

1 point (1/10th gram - $30.00 to $50.00 (cut))

Gram - $240.00 - $350.00

Ounce - $3,400.00 - $4,500.00

Kilogram - $80,000.00 - $110,000.00

If sold at the point level – 1,100 g x 10 x $30.00 = $330,000.00

If sold at the gram level – 1,100 g x $240.00 = $264,000.00

If sold at the ounce level – 38.8 oz x $3,400.00 = $131,920.00

If sold at the kilogram level – 1.1 kg x $80.0000.00 = $88,000.00”.

Positions of the Parties

The Crown

[88] On behalf of the prosecution, Mr. Leising submitted that, on the whole of the evidence, it has been established that Peter Ukwuaba was a knowing party to the three offences with which he is charged. It was submitted that the accused’s account in his videotaped statement to the police was a fabricated on-the-fly story which ought to be rejected as incredible on its own and as against the weight of persuasive circumstantial evidence. It is said to be inconsistent with other credible and reliable evidence, for example, the police testimony relating to the accused driving the Toyota on Holyoake Crescent more than once. It was argued that the testimony of Blessing Ojie ought to be similarly rejected as unbelievable given its improbability, her demeanour as a witness, and the vague and contrived nature of the witness’ evidence.

[89] In respect to the conspiracy and unlawful importation allegations, Mr. Leising argued that taking all the evidence collectively it demonstrates that the accused was a party to the initial unlawful agreement. It can be reasonably inferred that the accused, prior to the actual importation, provided a domestic address for delivery of the drugs and a name for receipt of the drugs knowing that Amesh Gupta had been gone from 43 Holyoake Crescent for a long time all with the objective of assisting in the agreement and in turn the importation itself. Acceptance of the parcel, counter-surveillance and concealment and intended destruction of the shipping wrapper eliminating evidence of the importation from India amount to evidence of the accused’s membership in the conspiracy and assistance in the importation all with knowledge that heroin was in the shipped package.

[90] The Crown relied in particular on these features of the evidence:

(1) the value of the heroin is such that the drug distribution organization would not subject it to haphazard or careless handling – only persons knowing the nature of the contents of the mailed package would be involved in the importation scheme and subsequent possession of the heroin

(2) the evidence circumstantially supports a finding that the Motorola phone was in the knowing possession of the accused and was used by him as a link to one or more co-conspirators in India

(3) the police surveillance evidence reasonably supports the inference that on July 25, 2011 the accused engaged in counter-surveillance conduct before and after the controlled delivery

(4) the accused, who claimed little or no knowledge of Amesh Gupta, signed for, and took, the package from 43 Holyoake Crescent rather than leaving it for an occupant of the premises

(5) the accused removed the wrapping from around the parcel, allegedly used it to wipe grease from his hands, and was carrying it into Value Village when arrested – conduct consistent with pending disposal of the evidence and inconsistent with a later return to 43 Holyoake Crescent to find the parcel’s owner.

The Crown did not seek to rely on the phonecalls to the LG phone on July 25, 2011 which originated from Pakistan, a heroin source country neighbouring India.

The Defence

[91] On behalf of the defence, Ms. McCabe-Lokos submitted that on the totality of the evidence the prosecution has failed to prove the elements of the charged offences beyond a reasonable doubt. For example, it is said with respect to the importation allegation that there is no evidence of arrangements by the accused to facilitate or effect the importation of the heroin. Reasonable doubt exists with respect to each of the charges.

[92] It was submitted that the accused’s videotaped statement contains an express denial of knowledge of the presence of a prohibited substance in the delivered package. While there may have been some inconsistencies within the accused’s statement, they related to minor aspects only by a person under arrest for serious charges and under stress and in jeopardy during a police interrogation. It was further argued that Blessing Ojie’s evidence was supportive of the accused’s statement as was other evidence including Mr. Kang’s evidence that the accused was known to return to 43 Holyoake Crescent to pick up mail, and, the discovery of mail in the Toyota when the accused was arrested.

[93] Defence counsel noted that the evidence supports a finding that in July 2011 the 43 Holyoake Crescent residence was a rooming house with a number of tenants. It was a busy place with tenants coming and going. Amesh Gupta had been a tenant at the home. As a real person, he may have been the actual arranger and intended recipient. Persons at the house signed for each other’s delivered mail or parcels when a signature was required. Mr. Ukwuaba signed his own name for the controlled delivery parcel not a false identity. He never opened the parcel.

[94] It was submitted that the court should have regard to the very limited nature of the police investigation – only the limited surveillance by Const. Dale prior to the controlled delivery and the premature take-down and arrest before the accused could return to the Holyoake residence with the parcel. There was no drug paraphernalia found in the Toyota. Counsel noted that the Crown has been unable to point to any text messages discussing the accused’s involvement in a conspiracy or unlawful importation.

[95] It was submitted, based on Ms. Ojie’s evidence, although overall it may not have been particularly detailed, that the court should find that it was the witness, not the accused, who drove by Const. Buchner on Holyoake Crescent at about 10:22 a.m. on July 25. Further, Ms. Ojie’s evidence regarding the Toyota needing to go to the mechanic supports the accused’s statement to the police as to why he was picking up the vehicle at 6 Humberline Drive.

[96] It was submitted that the only direct evidence relating to the Motorola phone, from Ms. Ojie, is that the phone did not belong to the accused. On the evidence, it was very likely the property of one of the persons Ms. Ojie picked up on the morning of July 25 who accidentally left the phone behind in the Toyota. As to the contact lists of the respective cellphones, members of the same community may well have overlapping or common friends. Even if the court were to find that the cellphone had a connection to the accused, this does not amount to knowledge on the accused’s part of the contents of the delivered and unopened package – at most, it would amount to mere acceptance of the package or “tacit agreement only” to pick up a package.

ANALYSIS

General Principles

[97] As the element of knowledge is essential to the prosecution’s proof of the alleged importation and possession for the purposes of trafficking, proof sought to be achieved through circumstantial evidence, it makes sense to turn to these issues first.

[98] With the prosecution’s reliance on circumstantial evidence in the present case, some review of the principles governing consideration of that form of evidence is warranted. In order to find guilt in a circumstantial evidence case, the trier of fact must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty: R. v. Griffin and Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.), at paras. 33-4. Inference must be carefully distinguished from conjecture or speculation. At all times, in assessing circumstantial evidence, a trier must be alert to explanation or contradiction or inference pointing toward innocence. The trier of fact must assess the reliability and credibility of any underlying direct evidence as well as whether that evidence reasonably supports the circumstantial inference to be drawn while always having regard to the scope of inferential bridges or gaps the trier is invited to make.

[99] Circumstantial evidence is not to be evaluated piece by piece but rather cumulatively. With circumstantial evidence based on reasoning or inference-drawing through probability (R. v. Arp (1998), 1998 CanLII 769 (SCC), 129 C.C.C. (3d) 321 (S.C.C.), at para. 64), a trier of fact’s application of logic, common sense and experience to the evidence engages consideration of both inherent probabilities and inherent improbabilities and, not infrequently, eliminating the unlikelihood of coincidence: C.(R.) v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at paras. 33-40, 47-8; R. v. Yousif, 2011 ABCA 12, at para. 5; In re B (Children), [2009] 1 A.C. 11 (H.L.), at paras. 5, 15, 70. Financial pressures, not economic status, may amount to a motive to become involved in a profit-motivated crime: R v. Mensah (2003), 2003 CanLII 57419 (ON CA), 9 C.R. (6th) 339 (Ont. C.A.), at paras. 7-13 (leave to appeal refused [2003] S.C.C.A. No. 207); R. v. Phillips, 2008 ONCA 726, at paras. 50-51.

[100] In considering the whole of the evidence in a circumstantial case, and in particular the search for alternative “innocent” explanations other than the prosecution’s theory of guilt, the court is not limited to inferential explanations based on “proven facts” but rather may take into account, as to whether reasonable doubt exists, alternate rational possibilities grounded in the evidence: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 57-8; Fontaine v. Loewen Estate, 1998 CanLII 814 (SCC), [1998] 1 S.C.R. 424, at para. 33; R. v. Bui, 2014 ONCA 614, at paras 22-9; R. v. Campbell, 2015 ABCA 70, at paras. 51-3; R. v. Dipnarine, 2014 ABCA 328, at paras. 22-28; R. v . Pryce, 2014 BCCA 370, at paras. 6-12; R. v. Maxie, 2014, SKCA 103, at para. 35; R. v. Robert (2000), 2000 CanLII 5129 (ON CA), 143 C.C.C. (3d) 330 (Ont.C.A.), at paras. 14-25.

[101] Further, while there is no obligation upon an accused to demonstrate the existence of an exculpatory hypothesis or other rational explanation other than guilt, it does not reverse the burden of proof upon the Crown to ask whether such explanations, as may be pointed to, amount to nothing more than speculation, conjecture or irrational inferences : R. v. Mufuta, 2015 ONCA 50, at paras. 22, 26, 47-9; Griffin, at para 35; R. v. C.(D.) (2012), 2012 SCC 48, 290 C.C.C. (3d) 64 (S.C.C.), at paras. 25, 28; R. v. Figueroa (2008), 2008 ONCA 106, 232 C.C.C. (3d) 51 (Ont.C.A.), at paras. 35, 42; R. v. Vu, 2002 BCCA 659, at para. 25.

[102] The following general principles apply to proof of unlawful possession of an illicit substance or contraband:

(1) In an unlawful possession prosecution, the Crown must prove knowledge, consent and control respecting the prohibited substance on the part of the accused: R. v. Beaver, 1957 CanLII 14 (SCC), [1957] S.C.R. 531, at pp. 536, 540-1; R. v. Terrence, 1983 CanLII 51 (SCC), [1983] 1 S.C.R. 357, at pp. 362-64; R. v. Midwinter, 2015 ONCA 150, at para. 12; R. v. Rahmani, 2013 ONCA 130, at para. 15; R. v. Robinson, 2009 ONCA 626, at para. 22; R. v. Chalk (2007), 2007 ONCA 815, 227 C.C.C. (3d) 141 (Ont. C.A.), at para. 19; R. v. Williams (1998), 1998 CanLII 2557 (ON CA), 125 C.C.C. (3d) 552 (Ont. C.A.), at paras. 10-11.

(2) As a general rule, there can be no proof of possession unless it is established by the Crown that the accused had “knowledge of the character of the forbidden substance”: Beaver, at p. 541; R. v. Pierce Fisheries Ltd., 1970 CanLII 178 (SCC), [1970] 5 C.C.C. 193 (S.C.C.), at pp. 203-4; Midwinter, at para. 14; and:

On allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with an act of control…

(emphasis of original)

(R. v. Morelli [2010] 15 S.C.R. 253, at para. 16)

The Supreme Court has held that two elements must be satisfied in order to prove knowledge in a case such as the present: “the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with an act of control (outside of public duty)”: R. v. Beaver, 1957 CanLII 14 (SCC), [1957] S.C.R. 531 at pp. 541-42; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at para. 16

(R. v. Eastgaard, 2011 ABCA 152, at para. 9)

However, it is not necessary that the prosecution demonstrate that the accused knew the very prescribed drug described in the indictment provided it is established that he or she know the drug was a controlled substance: R. v. Williams (2009), 2009 ONCA 342, 244 C.C.C. (3d) 138 (Ont. C.A.), at paras. 19, 20.

(3) Knowledge of the illicit drug’s presence and the intent to import must precede the narcotic’s entry to Canada: R. v. Rai, 2011 BCCA 341, at para. 23 (appl’n for leave to appeal refused [2011] S.C.C.A. No. 452).

(4) In crimes of unlawful possession, it is “not necessary for the prosecution to prove the required knowledge by direct evidence…it could be inferred from the surrounding circumstances”: R. v. Aiello (1978), 1978 CanLII 2374 (ON CA), 38 C.C.C. (2d) 485 (Ont. C.A.), at p. 488 (aff’d 1979 CanLII 31 (SCC), [1979] 2 S.C.R. 15); see also R. v. Pham (2005), 2005 CanLII 44671 (ON CA), 203 C.C.C. (3d) 326 (Ont. C.A.), at para. 18 (aff’d 2006 SCC 26, [2006] 1 S.C.R. 940); Vu, at paras. 23, 25; R. v. Anderson, 1995 CanLII 1338 (BC CA), [1995] B.C.J. No. 2655 (C.A.), at paras. 15-16 – frequently then, such cases are proven by circumstantial evidence: see R. v. Meggo, [1998] O.J. No. 2564 (C.A.), at para. 1; R. v. Ali, 2008 ONCA 741, at paras. 3-7.

(5) As summarized previously, the essential component of self-instruction on circumstantial evidence is that the trier of fact must be satisfied that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty and “the mere existence of any rational, non-guilty inference is sufficient to raise a reasonable doubt”: Griffin, at paras. 33-4 – not only must circumstantial evidence be viewed as a whole and not each piece individually (R. v. Warkentin et al. (1976), 1976 CanLII 190 (SCC), 30 C.C.C. (2d) 1 (S.C.C.), at p. 20), but also all competing explanations or inferences, not describable as speculative or unreasonable, must be considered: Figueroa, at paras. 35, 42.

(6) On occasion, expert evidence is admitted suggesting that a criminal organization would not entrust the importation of illicit drugs of significant quantity and value to an untrusted or untested or “blind” courier: R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 19; R. v. Singh, 2014 ONCA 791, at paras. 18-19, 36, 50. It is doubtful whether opinion evidence is actually necessary on this issue. A fact-dependent circumstance which may contribute to common-sense inference-drawing in an unlawful possession case is the value of the item/substance which is in the custody of the accused but which, in light of the accused’s denial of knowledge, is said to be the property of a third party:

The trial judge gave particular weight to the fact that the appellant was brought to the apartment and allowed to remain there by Rudder, the tenant of the apartment who had knowledge and control over the large quantity of drugs and cash located in the apartment. The trial judge drew the inference that Rudder would not leave such a large quantity of drugs and cash unguarded (cocaine and marihuana having an aggregate street value of over $1,000,000 and approximately $60,000). The trial judge drew the further inference that, given the circumstances of the appellant's arrival at the apartment and his presence in the apartment with this quantity of the drugs and money, the appellant was entrusted to be the keeper of the drugs.

In our view, the inferences drawn by the trial judge were supported by the evidence.

(R. v. Fredericks, [1999] O.J. No. 5549 (C.A.), at paras. 3-4)

…the dollar value of the cocaine…as a matter of common sense is undoubtedly a relevant consideration.

(Singh, at para. 84 per Laskin J.A. in dissent in the result)

As to the second ground of appeal, I think evidence of the retail value of the drug was relevant to the main question that the jury had to decide, namely, whether or not the respondent knew that the substance he imported was a narcotic. I think this evidence was so relevant because it could, in the opinion of the jury, tend to satisfy them of the existence of that knowledge.

(R. v. Blondin (1971), 1970 CanLII 1006 (BC CA), 2 C.C.C. (2d) 118 (B.C.C.A.), per McFarlane J.A. at p. 121 (affd 1971 CanLII 1411 (SCC), [1971] S.C.J. No. 42))

The jury’s finding that Hakimi was aware of the nature of the contents of the bag and thus the conspiracy’s objective rests primarily upon inferences drawn from the totality of the evidence. These inferences, which are of a type that our Court has previously and repeatedly endorsed, are as follows: First, drug dealers would be very unlikely to confide hundreds of thousands of dollars’ worth of drugs to the sole control of a person who was not a trusted member of the conspiracy…

In several instances, our Court has considered the inferences a jury is permitted to draw from evidence that a conspiracy entrusted a defendant with valuable contraband.

…in United States v. Sisca, 503 F.2d 1337 (2d Cir. 1974), we rebuffed a sufficiency challenge to a drug conspiracy conviction in the face of a defendant’s claims of ignorance, observing in relevant part, “[T]he suggestion that members of a conspiracy would entrust $60,000 in cash and a large quantity of narcotics to one who was not a full partner strains credulity.” Id. at 1343: see also United States v. Ramirez, 320 Fed. App’s 7, 10 (2d Cir. 2009) (summary order) (“[C]ommon sense and experience would support an inference that the ‘principals in [a large] conspiracy would not have trusted an outsider [ ] with no knowledge of their criminal purpose[] to transport’ hundreds of thousands of dollars in cash and drugs.” (quoting Huezo, 546 F.3d at 182) (alterations in original)); cf. United States v. Aleskerova, 300 F.3d 286, 293 (2d Cir. 2002) (“A defendant’s knowing and willing participation in a conspiracy must be inferred from … evidence that [he] possessed items important to the conspiracy.”).

It may be possible to imagine a circumstance in which an experienced drug smuggler could decide to entrust a million-dollar package of contraband to an unwitting courier. There is, however, simply no evidence that the conspiracy at issue in this case ever operated in this fashion. And the theoretical possibility that it did so on April 16 does not preclude the jury from drawing the inference – in a setting that includes corroborative testimony and circumstances – that an individual who accepts sole custody of valuable contraband was a trusted member of the conspiracy, with knowledge of the contraband’s true nature.

(footnotes omitted)

(United States v. Anderson, U.S.C.A. 2d Cir. (March 4, 2014; No. 11-5364-cr), at pp. 27-30, 36)

See also Vu, at para. 25; R. v. McIntosh, [2003] O.J. No. 1267 (S.C.J.), at paras. 45-6; United States v. Quilca-Carpio, 118 F.3d 719, 722 (11th Cir. 1997); United States v. Uriostegui-Estrada, 86 F.3d 87, 89 (7th Cir. 1996); R. v. Saleemi, 2005 BCPC 595, at para. 89; R. v. Schwengers, 2005 BCPC 578, at para. 77.

[103] Turning next to the crime of importing a controlled substance into Canada, to “import” means “to bring into the country or cause to be brought into the country” and accordingly unlawful importation “is complete when the goods enter the country”: R. v. Bell, 1983 CanLII 166 (SCC), [1983] 2 S.C.R. 471, at pp. 488-9. Put differently, the importation of illicit drugs is not a continuing offence beyond that point (Bell, at p. 488) and no subsequent authority has cast doubt on that interpretation: R. v. Vu, 2012 SCC 40, [2012] 2 S.C.R. 411, at paras. 52-56; Rai, at para. 23; R. v. Hayes (1996), 1996 CanLII 17943 (MB CA), 105 C.C.C. (3d) 425 (Man. C.A.), at para. 26. Of course, “[t]hereafter the possessor or owner may be guilty of other offences, such as … possession for the purpose of trafficking”: Bell, at p. 489.

[104] While the Crown must establish that the accused intended to import a controlled substance (R. v. Rashidi-Alavije, 2007 ONCA 712, at para. 27), “[t]o convict of importing, it is not necessary to show that the accused actually carried the goods into the country” or “was present at the point of entry”: Bell, at p. 489.

[105] An importer can be a principal or one who is a party to the offence. A person may be found to have aided and abetted the crime where he or she assisted the principal and intended to do so – the accused need not know all details of the crime provided he or she is aware of the type of crime committed and knew the circumstances necessary to constitute the offence he or she is accused of aiding: R. v. Roach (2004), 2004 CanLII 59974 (ON CA), 192 C.C.C. (3d) 557 (Ont. C.A.), at para. 34; R. v. M.R., 2011 ONCA 190, at paras. 34-40, 46.

[106] As a general rule, “[t]o prove that a recipient is guilty of importing, something more than receipt and knowledge of receiving a controlled drug is required to prove that the recipient was either a principal in, or a party to, importing”: R. v. Atuh, 2013 ABCA 350, at para. 7; Schwengers, at paras. 85-90. That said, the taking of a controlled delivery with proven knowledge of its contents and foreign origin is frequently viewed as an important circumstantial fact in the overall assessment as to whether the accused is criminally liable for the commission of an unlawful importation: see R. v. Rodriguez, 2014 ABCA 190, at paras. 13-15; R. v. Ifejika, 2013 ONCA 531, at paras. 2, 5-8; R. v. Ratmani, 2013 ONCA 130, at paras. 16-18; R. v. Khan, [2009] O.J. No. 2902 (S.C.), at para. 15.

[107] Various articulations have emerged in the relevant jurisprudence relating to the type of conduct on the part of an accused necessary to found liability as an importer including the following: R. v. Bond, [1999] O.J. No. 4562 (C.A.), at para. 10 (“possession of documents and other information regarding the shipping process including the name and address of the exporter in India” amount to “some evidence linking [the accused] to the importing”); R. v. Tanney (1976), 1976 CanLII 1319 (ON CA), 31 C.C.C. (2d) 445 (Ont. C.A.), at p. 449 (some “nexus between the “importing” of the drugs and the appellant”); Rai, at paras. 19, 20 (not an innocent receiver given “substantial body of evidence to prove the accused knew he was involved in importation of a narcotic”; evidence that accused “centrally involved in the importation of the drug into Canada”); R. v. Hayes, at paras. 29, 30, 33, 35 (making of “arrangements” in Manitoba as part of a plan to import heroin into Canada); Khan, at para. 57 (“no evidence of any connection between Mr. Khan and …the consignee of the box, nor that he had any connection to …the address to which it was delivered”); R. v. Doiron, [1989] N.B.J. No. 12 (C.A.), at p. 4 (“caused the importation of the narcotics into Canada”); R. v. Giammarco, 2011 ONSC 6649, at para. 118 (“While there was an agreement in place to accept the narcotics before they were shipped to Canada, there was no evidence to suggest that either of the defendants was involved in facilitating the shipment to Canada”); R. v. Montgomery, 2014 BCSC 1483, at para. 135 (“impossible to believe on the evidence … that one person was responsible for all of the steps necessarily required to … ship the cocaine from Argentina into Canada”); Saleemi, at para. 91 (evidence insufficient to demonstrate S. was one of the persons who “arranged for the importation of heroin or … [was] a party to that offence”); Schwengers, at para. 85 (“took any positive steps to assist in the importation”; “parcel … landed in Canada without any proven involvement of the accused”).

[108] Unlike the importation crime, conspiracy is a continuing offence (R. v. Root, (2008), 2008 ONCA 869, 241 C.C.C. (3d) 125 (Ont. C.A.), at para. 72, leave to appeal refused [2009] S.C.C.A. No. 282) as is possession for the purpose of trafficking: R. v. Valentini (1999), 1999 CanLII 1885 (ON CA), 43 O.R. (3d) 178 (C.A.), at p. 197.

[109] The “essence of criminal conspiracy is proof of agreement” to commit an unlawful act: R. v. Papalia; R. v. Cotroni, 1979 CanLII 38 (SCC), [1979] 2 S.C.R. 256, at pp. 276-7; R. v. J.F., 2013 SCC 12, [2013] 1 S.C.R. 565, at para. 17. The prosecution is obliged to prove an intention to agree, completion of the agreement, a common unlawful design or object or predicate offence, and the intention to put the unlawful object into effect: Root, at paras. 65-7; R. v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462, at paras. 66, 103, 108. It is not necessary that all members of a conspiracy play, or intend to play, equal roles in the ultimate commission of the unlawful object: J.F., at para. 54; Root, at para. 68.

[110] The inchoate crime of conspiracy “is more likely to be proven by evidence of overt acts … by the conspirators from which the prior agreement can be logically inferred”: R. v. Gassyt (1998), 1998 CanLII 5976 (ON CA), 127 C.C.C. (3d) 546 (Ont. C.A.), at para. 17, leave to appeal refused [1997] S.C.C.A. No. 143.

[111] In limited circumstances, acts of a conspirator to evade detection and prosecution after the object of the conspiracy has been achieved may nevertheless be in furtherance of the common purpose if such acts are “immediately connected with the crime specified as the object of the conspiracy and necessary for its successful completion, are within the common design, and in furtherance of the conspiracy”: R. v. Baron and Wertman (1976), 1976 CanLII 775 (ON CA), 14 O.R. (2d) 173 (C.A.), at p. 197; R. v. Magno, 2015 ONCA 111, at paras. 66-70.

[112] Conspiratorial liability may be founded on proof that the accused was a principal member of the unlawful agreement or an aider or abettor of the alleged conspiracy. In the case of a prosecution as a party to the unlawful agreement, the Crown must establish that the accused aided or abetted the act of agreeing – “party liability to a conspiracy is limited to cases where the accused encourages or assists in the initial formation of the agreement” (emphasis added): J.F., at paras. 43, 47, 63-64, 72-74. Accordingly, simply “[a]iding or abetting the furtherance of the unlawful object does not establish aiding or abetting the principal with any element of the offence of conspiracy”: J.F., at para. 45. However, evidence gathered after an importation, including the acts of the accused, may be used to infer the existence of the conspiracy and the accused’s membership and participation in the unlawful agreement: J.F., at paras. 44, 52-3, 73; United States v. Shakner, 2011 ONCA 452, at para. 7; Root, at para. 67.

Fact-Finding in This Case

[113] Heroin trafficking is a commercial business for profit. Heroin retailable in Canada in the range of $90,000 to $330,000 is a valuable commodity. International drug smugglers cannot buy insurance for their cargo indemnifying against accidental or deliberate loss. Common sense dictates that the owner(s) of an uninsured and illegal item of the value here would wish to minimize the risk of detection or other type of loss. Of course, one of the best protections is to have trusted insiders handling the drugs whenever possible.

[114] On the accused’s account, the parcel was shipped to an unlocked rooming house where anyone might sign for another’s parcel and mail might be left attended inside the front door of the house. This approach reflects an unlikely laxness by an organization engaged in commercial smuggling of illicit narcotics.

[115] Commercial heroin trafficking is a financially lucrative business capable of tempting some persons to become involved even though they are not in clear financial need. In July 2011, the accused was living at the apartment of his girlfriend, Blessing Ojie. He had not changed his mailing address to that location from the busy rooming house at 43 Holyoake Crescent address from which he had moved six to nine months earlier. Given the accused’s references to taking the bus in his statement to the police, it is unclear whether he owned a vehicle or simply drove his girlfriend’s car as needed. According to the accused, he supported himself by buying and privately selling used vehicles. He had no formal office or business premises.

[116] I accept the totality of the police evidence relating to the accused as the driver of the Toyota vehicle on Holyoake Crescent on more than one occasion between 10:00 a.m. and 11:00 a.m. on July 25, 2011. Identification of a suspect was a primary focus of the professional surveillance crew. As discussed below, the contrary account in the evidence of Ms. Ojie and the accused’s videotaped statement is rejected. Const. Buchner was certain in his evidence that it was the accused driving this vehicle. Having viewed the accused on video and in person, and Ms. Ojie when she testified, there is no possibility of the officer mistaking the bald accused for his girlfriend.

[117] The probative value of this evidence arises from the Toyota not just being on the street, but rather from the manner in which it was driven and the accused’s lie in saying that he drove the car onto the street only once sometime after the 11:24 a.m. controlled delivery. The inference fairly arises that the accused was not merely engaged in a 2 to 5-minute pop-in at the Holyoake house to pick up his mail but rather was awaiting the Canada Post delivery and very likely scoping out the street for possible surveillance. There is no logical or rational explanation consistent with innocence for the slow driving and the dropping of the car in the apartment building parking lot by the accused before he walked to 43 Holyoake to take delivery of the package. The accused’s presence inside the front door of the residence when the Canada Post truck arrived was no coincidence.

[118] I accept Mr. Kang’s evidence that the accused and Amesh Gupta overlapped as tenants at 43 Holyoake Crescent a year prior to July 25, 2011. However, in his statement to the police, the accused claimed not to know Gupta. On his evidence, he planned to go back to the house to ask, “Who is this?” or “Whose is this?” in reference to the delivered parcel.

[119] According to the accused, mail was routinely left inside the front door of the Holyoake residence. It is unclear why the accused believed that the contents of the parcel addressed to Gupta had sufficient value to warrant special treatment. The box could well have contained clothes, spices, books or some quite ordinary item of minimal value. There was no evidence either in the accused’s videotaped statement to the police or in Mr. Kang’s testimony to suggest that there had been a problem with theft of mail left inside the front of the Holyoake home. There was a front closet available in which to place the parcel.

[120] The evidence relating to the wrapping around the parcel containing the controlled delivery box is of some significance. This was the wrapping on the parcel shipped to Canada from India with information about the sender and the consignee. The police sewed the wrapping around the controlled delivery box. In his videotaped statement, the accused demonstrated how he forcibly removed the wrapper once that box came into his possession. Buy why? The accused provided various explanations:

(1) his first thought was that he would take the wrapper away and return to the house later to link up the unmarked box left behind with someone known as Amesh Gupta

(2) his next idea was to take the wrapper and the parcel away and to return later to find Gupta

(3) the wrapper, once off the box, was useful for cleaning his hands.

[121] These explanations are as nonsensical as the accused’s account as to why, when he arrived at Value Village, he was walking into the store carrying the wrapper – using it to clean grease on his hand. In the context of all the evidence, the only reasonable inference is that the accused was intent on separating the box containing the drug from evidence relevant to its entry into the country and, when arrested, was only seconds away from discarding the wrapping.

[122] As to the accused’s credibility generally as may be determined from his videotaped statement to the police, the following observations are warranted:

(1) the accused provided conflicting accounts of how he arrived at 43 Holyoake Crescent on July 25, 2011 after dealing with his Volvo resale

(2) on July 25, 2011, the accused spoke both of the Toyota being left at 6 Humberline Drive that day and yesterday by Blessing or somebody

(3) the accused stated that he printed his name when directed to do so during the parcel delivery process – the evidence discloses that he did not

(4) despite saying numerous times that “everything” taken out of 43 Holyoake Crescent was put in the trunk of the Toyota, the accused also claimed that the mail and books were on the floor of the front interior of the vehicle.

[123] On the latter point, according to Constable Buchner, on July 25, 2011 when he suggested to the accused that there were no books in the vehicle interior, that was his recollection from searching the car. There was month-old mail in the glovebox itself. Also, the accused claimed that no one was home at 43 Holyoake Crescent at the point that he left with the package – yet within a few minutes, the police discovered Kelvin Newman to be in his basement apartment.

[124] Blessing Ojie presented as an incredible witness in manner of testifying and the content of her evidence. The witness’ account of picking up three persons on the morning of July 25, 2011 who were all residents of 43 Holyoake Crescent was transparently a fabrication designed to promote an explanation for the presence of the Motorola phone in the Toyota and an explanation for the Toyota being driven by her on Holyoake Crescent before the controlled delivery. The witness had few details about Mary, little recall of timing of events, described her friend waiting outside the 6 Humberline Drive apartment building despite no arranged time to meet, misidentified the photo of the house at 47 Holyoake, had no precise location as to where she dropped her three passengers, and next to no details of those persons including their ages, names, distinguishing features or any estimate of how many times she had seen them at the Holyoake address.

[125] I do not accept the evidence of Ms. Ojie which I conclude was constructed to falsely prop up the accused’s version of events he related to the police. On July 25, the witness did not drive along Holyoake Crescent and there were not three passengers at a bus stop with groceries heading in the direction of 43 Holyoake Crescent who wanted out somewhere to go to breakfast one of whom left a cellphone in the Toyota. The Motorola cellphone was the accused’s second phone – its presence in the Toyota was not some undesigned accident or coincidence.

[126] On July 15, 2011, a text message was forwarded from India to the Exhibit #11 Motorola cellphone providing the postal tracking code for the parcel containing the heroin. Armed with this postal tracking number, a co-conspirator in Canada would be able, through the Canada Post on-line website, to monitor the parcel’s domestic processing including identification of the precise date and the time-of-day of “Item out for delivery”. The accused, I am satisfied, was present at 43 Holyoake Crescent fully expecting the parcel’s arrival – it was no coincidence that he was present when the controlled delivery was made.

[127] In his statement to the police, the accused was not questioned about the Motorola phone registered to George Uche. None of the police witnesses were asked about investigation into whether George Uche was a real or fictitious person. Nor was Harpreet Kang asked if someone with that name resided at 43 Holyoake Crescent in July 2011. Blessing Ojie was not asked whether she knew anyone by this name.

[128] The very Motorola phone which forwarded the tracking number was in the glovebox of the vehicle being driven by the accused containing the controlled delivery parcel and its companion wrapper with the identical tracking number. As well:

(1) at the time of his arrest, the cellphone was in the glovebox of the vehicle he operated along with contemporary-dated papers relating to the accused

(2) the same phone number in India which forwarded the parcel tracking number on July 15, 2011, called the Motorola phone at 9:31 a.m., on July 25, the Canada Post delivery date suggestive of communication about the pending delivery and pick up of the heroin

(3) having rejected Ms. Ojie’s evidence, and the accused’s account in his statement to the police, and having accepted the police evidence, the Toyota vehicle was in the accused’s possession at 9:31 a.m. and again at 10:15 when a text was forwarded to the phone, “Obinna,” the same name as in a July 3 text and a common Nigerian name – according to Mr. Kang, to his knowledge in July 2011 there were no residents of Nigerian descent residing at 43 Holyoake Crescent – the accused is a Nigerian citizen who also had communication with Nigeria on his LG phone

(4) there was overlap between the contact lists for persons in the LG phone and the Motorola phone, in particular unusual names (Emeka and Enerst) and identical contact phone numbers for Okey, Bish/Bisho and Ogbons/Ogbo, raising the inference that it was a single individual’s second cellphone.

[129] On leaving 43 Holyoake Crescent with the controlled delivery box, the accused drove an indirect route, and a much longer route, to Value Village than he need have. The accused’s explanation of “there’s construction along that line”, apparently a reference to Finch Avenue West, was a weak story. Given the totality of the evidence, including his earlier driving behaviour on Holyoake Crescent, it is more likely that the accused was again engaged in counter-surveillance.

[130] There is no doubt that the accused signed his own name on the delivery slip and that he did not at any point open the delivered package. Ms. McCabe-Lokos was right that these are facts capable of supporting the accused’s denial of knowledge and involvement in the heroin importation and possession. That said, the fact of the signature has a broader context – a signed name on a delivery slip by a person evidencing nervousness as described by Const. Todosijevic with only the “Peter” part of the name clearly legible, written by a person no longer resident at 43 Holyoake Crescent on behalf of a person also not resident there, with the package driven from the address minutes after delivery, and with the shipping wrapper in the process of being discarded. The fact that the box remained unopened, on the evidence accepted by the court, suggests that the accused was anxious to place some distance from 43 Holyoake Crescent before opening the package at another more private location or executing delivery to an accomplice in the drug distribution organization.

[131] As to consideration of the limits of the police investigation and its impact upon the quality and scope of the evidence available for fact-finding, Ms. McCabe-Lokos pointed out in particular the minimal investigation of 43 Holyoake Crescent prior to the controlled delivery, and, the premature arrest of the accused. There were, in addition, other gaps or unanswered questions to be taken into account in considering the prosecution and defence cases including the following. Was Amesh Gupta interviewed? Were “Kangsway Transport” and “6478182212”, both aspects of the consignee description on the shipping wrapper, investigated? Who is George Uche? Who is the person depicted in the photograph in the Motorola phone? In coming to its conclusions, the court is satisfied that these matters do not detract from the prosecution’s discharge of its burden of proof.

[132] The court has also exercised care in its assessment of the accused’s statement to the police and of Ms. Ojie’s evidence having regard to their accents and that English was not their first language.

[133] Having rejected most of Ms. Ojie’s evidence as unbelievable and, to use the words at para. 54 of Sekhon, the court having concluded that the accused’s account “is a contrivance from beginning to end” it “need not be considered” and is “off the table”, incapable of raising a reasonable doubt, leaving the court to determine whether, on the whole of the trial record, the prosecution has established guilt for the three alleged crimes beyond a reasonable doubt. That discharge of proof has been convincingly discharged having regard to the following factual findings and inferences drawn from the evidence:

(1) The accused knew Amesh Gupta from their time as overlapping tenants at 43 Holyoake Crescent. He knew that Gupta had moved out a year prior to July 2011.

(2) The accused, as a former resident of 43 Holyoake Crescent, also knew that he could attend the property at any time to pick up mail or on the pretext of picking up mail.

(3) The heroin was a valuable commodity. Commercial-oriented heroin traffickers, keen to avoid loss through detection, rip-off or otherwise, would be unlikely to trust such internationally-shipped cargo to handlers without knowledge of the illicit nature of the package’s contents.

(4) Prior to July 15, the accused entered into an agreement with others, including one or more unidentified persons in India, to import heroin into Canada. To facilitate the importation, the accused provided the name “Amesh Gupta” and the address of “43 Holyoake Crescent” – this information not only furthered the arrangement by giving the Indian exporter a Canadian consignee and safe house address to forward the package to but also avoided the accused using his own name or current residential address.

(5) On July 15, 2011, the tracking number for the parcel with the secreted heroin was texted to a Motorola cellphone used by the accused. The heroin, in a quantity more than adequate for trafficking, was on its way and, armed with the tracking code, the accused and others in the world could monitor its progress on-line to determine the date the drugs entered Canada (July 18) and the date and time that Canada Post recorded the parcel sent out for delivery (July 25).

(6) At 9:31 a.m. on July 25, again on the Motorola phone, the accused was in communication with his co-conspirator in India. They both knew that this was the delivery date.

(7) On July 25, the accused, not Blessing Ojie, was driving the Toyota Avalon on Holyoake Crescent. Prior to the controlled delivery, as early as 10:22 a.m., the accused was in the vicinity of 43 Holyoake Crescent anticipating the parcel’s delivery and checking out who else was in the area including close scrutiny of the undercover officer, Buchner. As a precaution, the accused elected to dump the Toyota a few blocks away and to proceed on foot to 43 Holyoake.

(8) By the time of the controlled delivery an hour later, the accused was inside the front door of the residence. This was not a 2 to 5-minute pop-in to retrieve mail – the accused had been in and around the house for some time expecting the parcel’s arrival. Coincidence had nothing to do with the accused’s presence. Then, at about 11:20 a.m., the accused nervously accepted delivery of the parcel.

(9) The accused next retrieved his vehicle from where it was tucked away nearby. He removed the shipping wrapper from the box for no innocent or rational reason other than to strip the imported parcel to the status of an unmarked box ready for transport and to separate it from any evidence of its origin. There were no room checks to determine if any other tenant was home to look after the parcel. The accused had no intention of returning to look for Gupta – Gupta, the straw man consignee, was never the intended recipient of the package containing the heroin.

(10) The accused left the scene driving an indirect route to Value Village where he exited his vehicle carrying the shipping wrapper where he was arrested only seconds from discarding this evidence of the importation he had assisted in arranging.

(11) In his interview with the police, with internal inconsistencies and at odds with police evidence accepted by the court, the accused spun an incredible tale of only being an innocent and temporary custodian of the parcel from India.

[134] In the result, the Crown has established beyond a reasonable doubt that the accused intended to agree with others to import heroin into Canada and assisted and encouraged others in the initial formation of that agreement which agreement was completed. Through his actions, the accused further assisted and facilitated the importation of the heroin into Canada and, on taking physical custody of the shipped package, the accused was in knowledgeable possession of heroin for the purpose of trafficking.

CONCLUSION

[135] The accused is found guilty of all counts in the indictment.

Hill J.

DATE: May 11, 2015

COURT FILE: CRIMNJ 2113/12

DATE: 2015 05 11

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: R. v. PETER IFEJUNA UKWUABA

COUNSEL: J. Leising, for the Crown

D. McCabe-Lokos, for the defence

HEARD: February 24-27, 2015

REASONS FOR JUDGMENT

Hill J.

DATE: May 11, 2015