COURT FILE NO.: CR-15-1356 DATE: 2016 07 27

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN C. Letman, for the Crown

- and -

FAITH CHINWENDU UZONDU G. Tomlinson, for the Accused Accused

HEARD: June 8, 9, 10, 13, 15, 16, 17, 2016

REASONS FOR JUDGMENT

Justice Thomas A. Bielby

INTRODUCTION

[1] The accused, Faith Chinwendu Uzondu, stands charged as follows:

1. That she, unlawfully did, at the City of Mississauga, Ontario, on or about June 25, 2015, import into Canada a Schedule 1 controlled substance, namely, heroin, contrary to section 6(1) of the Controlled Drugs and Substances Act.
2. That she, on July 9, 2015, at the City of Mississauga, Ontario, did have in her possession a Schedule 1 controlled substance, being heroin, for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.
3. That she, on or about June 25, 2015 and July 9, 2015, both dates inclusive, in the City of Mississauga and elsewhere in Ontario and at the City of Montreal, Quebec and in the Country of India and the Country of Kenya, did conspire with a person or persons unknown to commit the indictable offence of importing a controlled substance, namely heroin, contrary to section 6(1) of the Controlled Drug and Substances Act, thereby committing an offence contrary to section 465(1)(c) of the Criminal Code of Canada.
4. That she, on or about June 25, 2015 and July 9, 2015, at the City of Mississauga and elsewhere in Ontario and at the City of Montreal Quebec, and in the Country of India and the Country of Kenya, did conspire with a person or person unknown to commit the indictable offence of having in her possession a schedule 1 substance, being heroin, contrary to section 5(2) of the Controlled Drugs and Substances Act, contrary to section 5(1) of the Controlled Drugs and Substances Act, thereby committing an offence contrary to section 465(1)(c) of the Criminal Code of Canada.

[2] On July 9, 2015 the accused had delivered to her home via TNT Delivery, a package, which was sent from India and was found to contain heroin. The accused denies any prior knowledge that the package contained any controlled substance, let alone heroin. She testified that she believed the package contained false passports or credit cards which were to be used for fraudulent purposes.

FACTS

[3] Exhibit 1 is an agreed statement of facts that sets out the following:

1. On June 25, 2015, TNT parcel #CCN286516620 (the TNT package) was intercepted by Canada Customs at the TNT warehouse, in Mississauga. The shipment was found to contain 486 grams of heroin. The package contained five spools of women’s bangles and within those bangles were five wooden dowels that concealed the heroin. The stated value on one of the packing slips was $20.00 USD.
2. The shipment was addressed to, Samuel John, 23 Kidd Terrace, North York, On, M3J 3S9, Canada, +16475045691
3. Members of the RCMP removed the heroin from the parcel and obtained a General Warrant with related Omnibus Orders in order to conduct a controlled delivery investigation. On June 30, 2015, an undercover operator posing as a TNT employee attempted to deliver the package to 23 Kidd Terrace, North York. The occupants of the residence did not recognize the consignee’s name and would not accept the package. As a result, the RCMP maintained continuity of the TNT package at the Toronto Airport Detachment.
4. On July 8, 2015, a female person contacted TNT by telephone and requested that the package be delivered to 7500 Goreway Drive, Unit 20, Malton. A telephone number of 647-687-7170 was also provided. Wind Mobile records indicate that the number was assigned to the accused.

[4] The accused, in her testimony, admitted making the call to TNT and telling whomever she spoke to that she was the wife of Samuel John and that the package was to be delivered to her at the Goreway Drive address.

[5] Exhibit 23 is also an agreed statement of facts which sets out the following:

1. On July 7, 2015, Canada Border Services (CBSA) in Montreal conducted an examination of Canada Post package RR 002 909 111 KE.
2. This package was addressed to Samuel John, 23 Kidd Terrace, North York, ON, M3J 3S9, Canada, +16475045691.
3. The sender was listed on the side as Dinah Kariuki, Box 55105, Code 00200 (?) Square, Nairobi Kenya.
4. During the course of the examination they found three scarfs within the package, the scarfs were unfolded and found to be concealing an envelope within each scarf. CBSA agents opened the envelopes and found them to contain a powdery substance which was later determined to be heroin.
5. On August 10, 2015, the CBSA turned over the package to RCMP investigators in Montreal, who in turn securely disseminated the package to RCMP investigators at Toronto Airport Detachment. The contents of the package were further examined and members received confirmation from Health Canada that the substance was heroin, having a total weight of 313.39 grams.
6. On July 8, 2015, CBSA in Montreal conducted an examination of Canada Post package RR 002 067 742 KE.
7. The package was addressed to Samuel John at the Kidd Terrace address.
8. The sender was listed on the front as, Pauline Mutaeria, P.P. box 5514, Code 00200, 254714174525, Kenya.
9. During the course of the examination of this package they found two scarfs which were unfolded and found to be concealing an envelope in each scarf which contained heroin.
10. On August 10, 2015, CBSA turned over the package to RCMP investigators in Montreal who in turn securely disseminated the package to RCMP investigators at Toronto Airport Detachment. Health Canada confirmed the drug was heroin which had a total weight of 235.5 grams.

[6] The Expert Report of RCMP Officer Ryan Corcoran was entered, on consent, as Exhibit 24b. The subject of the report is the three packages of heroin seized (Toronto and Montreal).

[7] Officer Corcoran opined that the heroin seized, given the amount, was imported for the purpose of trafficking and had a significant value.

[8] The accused was the tenant of the lower apartment at 7500 Goreway Dr., Mississauga. On the upper floors resided the landlord’s sister, Dhanmatee Basdeo, and her daughter, Chandinie Basdeo, along with three other children.

[9] Dhanmatee Basdeo testified that the accused told her she had a package being delivered to the house and because the accused had to work, the accused asked if Dhanmatee would accept delivery of it.

[10] On the date of the delivery, July 9, 2015, it was Chandinie who interacted with the delivery person and who signed for the package. She then left the package on the stairs leading down to the accused’s apartment.

[11] Dhanmatee testified that she was not offered any money to accept delivery.

[12] Dhanmatee testified that shortly after her daughter left for work (3:30 pm) the police arrived and entered the premises.

[13] Chandinie testified that she was told in advance she may have to sign for a package for the basement tenant who she knew as, Faith.

[14] Chandinie described the TNT package as medium sized, rectangular in shape with clear tape on it. She recalled that it had writing on the side and a picture of a bangle. She identified Exhibit 2 as the TNT package of which she took delivery.

[15] Officer Marianne Schwartz of the CBSA testified as to the interception of the package. She testified that the TNT package was colourful with pictures of bracelets. She testified that the documentation indicted the package was shipped from India.

[16] Officer Schwartz opened the box which contained another box with a clear panel in the lid. The box was secured by a combination lock. Looking through the lid the officer could see rows of bracelets. She opened the box from the rear and commenced her search which resulted in her finding the heroin.

[17] On cross-examination CBSA Officer Schwartz agreed that the package had no odour nor was any white powdery residue noted on the outside. The officer acknowledged that heroin can have a vinegar-type odour. The weight of the package was not suspicious nor was the clear tape around it. In regards to the box within the package, simply by looking at it did not cause suspicion.

[18] RCMP Constable MacDougall testified as to the pictures he took of the package, the box inside and of the contents, all of which were made Exhibit 5. When he opened the dowels he did notice a vinegar odour. He testified as to removing the heroin and repacking the box which included a small sample of heroin, to allow the package to be used in a controlled delivered.

[19] On cross-examination the officer acknowledged that the inside box itself did not have a vinegar-type smell and there was no obvious indication of heroin on the box. He agreed that the heroin was hidden very well.

[20] RCMP Constable Anderson, who posed as the TNT delivery person, acknowledged the package had no odour or obvious signs of a white powdery substance.

[21] RCMP Officer April Delorme was, at the time, a member of the controlled delivery team and on July 9, 2015, at 16:45, was part of the team which entered the premises.

[22] Officer Delorme went to the lower apartment where she located the accused. She escorted the accused out of the apartment and remained with her.

[23] When the officer was advised the package was located in the lower apartment, the accused was arrested. The accused was given her rights and cautioned and placed in a police cruiser. She was advised she was under arrest for possession of a controlled substance for the purpose of trafficking and for conspiracy.

[24] By 17:00 the accused had been transported to the Airport Detachment and placed in a cell. There was some initial confusion as to the identity of the accused’s lawyer but, with the permission of the accused, Officer Delorme was able to locate, in the accused’s cell phone (Exhibit 12), the contact information for her lawyer and at 18:28 the accused was able to speak to her lawyer.

[25] Thereafter the accused was interviewed by Officer Delorme, which interview was audio and video recorded. There was no issue as to the admissibility of the statement. The computer disc of the interview was entered as Exhibit 13a and the transcript as Exhibit 13b.

[26] In her police statement the accused stated her date of birth to be December 5, 1990, and that she had lived at the 7500 Goreway address for about two months. She was employed at Tailor Made in customer service and sales.

[27] On the day of her arrest the accused had left the residence to go for a job interview. She admitted that, at the time of her arrest, she was on bail for charges relating to fraud. She denied knowing about the contents of the TNT package. She denied any knowledge or use of drugs.

[28] The accused told the officer that she would be honest and that she was innocent and had been set up. During the interview the accused was seen to be visibly upset and crying, at times, sobbing.

[29] The accused stated she agreed to take delivery of the package as a favour for a friend who was out of the country.

[30] The accused, during her statement said that she opened the outer package to see what was in there and saw “jewelleries” which she said did not make sense. She stated she called the person after she opened the outside packaging and asked the person, “what is this” and “I don’t care, just come get this and please don’t come back to me anymore.” “I didn’t even know the person was into anything.”

[31] The accused stated to the officer that she took a picture of the box found inside the package. She was told by the person that someone would call and pick up the package that evening. She told the person, “I can’t be involved in this, I have kids.” She stated she never opened up the inner box.

[32] She somehow knew something was not right and stated maybe the person stole the package. The accused stated she was asked by the person to open the inner box and open the bracelets. The accused refused, telling him, “I am not touching it”. She stated the inner box was secured by a combination lock and she was not going to break it open.

[33] The accused in her statement denied being paid to take delivery of the package, stating again the person was a friend.

[34] The accused identified the person who asked her to take delivery of the package as Dan, but denied knowing the identity of the person who was to come and get the package from her.

[35] The accused told the officer that she had a friend come over who saw the package and hid the package by putting it in the laundry room behind the water heater. She went on to say the friend left and that she did not know where the friend had put the package. The accused refused to identify the friend.

[36] The accused told the officer that she had agreed the week before to take delivery of the package and that they had expected delivery of the package on an earlier date.

[37] The accused stated she thought she was helping out a friend who was in Nigeria for three months. She stated she got a call from the TNT package people to confirm the address and they told her the package was coming from India.

[38] The accused identified her cell phone number as, 647-687-7170, a number she had recently acquired. She stated she changed her number because boys were bothering her.

[39] The accused in her statement stated that she asked the woman upstairs to accept delivery of the package if she was out. When the accused returned home on July 9, 2015, the package was on the stairs leading down to her apartment.

[40] The accused denied knowing anyone by the name of Samuel John or ever hearing the name before.

[41] Towards the end of the interview the accused stated, “I don’t even know what heroin looks like” and that she had never seen heroin before.

[42] The accused again denied that she put the package in the laundry room. When asked what caused her to think something was wrong in regards to the package she replied, “When he asked me to break it open.”

[43] The accused in her statement denied calling TNT and telling them she was the wife of Samuel John, stating she was not married.

[44] Returning now to the evidence given at trial, Officer Delorme testified that, purposely, at no time prior to the interview did she tell the accused the type of drug that was found. She testified that the accused’s initial use of the word “heroin” was the first time the word was used in any exchange between the officer and the accused.

[45] On cross-examination the officer denied mentioning the word “heroin” to the accused but was unable to say what another officer might have said.

[46] Upon their arrival at the police detachment the accused was placed in cell # 3. Officer Delorme confirmed there would other officers at the detachment who had contact with the accused.

[47] At the detachment office and prior to the interview Officer Delorme determined that the accused was from Nigeria and was on bail pending fraud charges. The officer testified that when speaking to defence counsel she did not mention the type of drug found and that it is her practise not to do so.

[48] Officer Delorme testified that she only saw the package at the briefing on July 9, 2015 and that she was not close enough to it to note any odour. She did not see anything on the outside of the package which would suggest heroin.

[49] Sergeant Johnson of the RCMP testified as to involvement with the controlled delivery team. He testified that on June 30, 2015, he unsuccessfully tried to deliver the package to Samuel John, 23 Kidd St. North York.

[50] On July 7, 2015, he received a call from someone with TNT and was redirected to 20-7500 Goreway Dr. Markham, 647-687-7170. It was determined there was no such address in Markham and that the correct place was Malton, a part of Mississauga.

[51] Sergeant Johnson called the “take down” and the police entered the unit and participated in clearing the basement apartment where he saw the accused. He had no interaction with the accused.

[52] In regards to the charges relating to Montreal, this officer spoke to Constable Gabriel from Montreal and was told of the two packages seized. The packages were flown to Toronto via Air Canada and the officer took possession of the packages directly from the aircraft.

[53] RCMP Officer Oliveros was part of the controlled delivery team and assisted with supervising the persons who were removed from the residence. While on scene she recalls asking the accused her name and if she was a resident. She did not recall any other conversation and testified that it is her practise to keep the interaction to a minimum.

[54] This officer returned to the airport detachment office at 17:10 and assisted in monitoring the interview of the accused. She noted that at 19:53 the accused, while being interviewed, mentioned the word “heroin”. The officer testified that she never used the word heroin when speaking to the accused.

[55] On cross-examination this officer could not say how many other officers interacted with the accused. She did not recall being asked to assist with contacting a lawyer for the accused.

[56] Officer Oliveros did not hear Officer Delorme use the word heroin.

[57] Officer Oliveros testified that she saw the package at their briefing and did not see or smell any indicia of heroin.

[58] RCMP Officer Cowan was part of the team and Officer Delorme arrested the accused in the presence of Officer Cowan. The accused was told she was under arrest for the possession of a controlled substance for the purpose of trafficking. She did not hear anyone tell the accused that the drug was heroin. This officer was present when the accused was escorted into her bedroom to get a change of clothes and her wallet, phone, etc.

[59] Officer Cowan travelled with Officer Delorme and the accused from the scene to the detachment office. She assisted in searching for the accused’s lawyer. She did not speak to the accused’s lawyer, Mr. Tomlinson, when contact was made.

[60] Officer Cowan fingerprinted the accused and monitored the interview. At no time did she hear any officer use the word heroin. She testified she does not tell a lawyer of the type of drug stating, this is policy because if an accused mentions it first, it goes to (proving) knowledge.

[61] Officer Cowan was at the briefing and observed the package. She could not observe or smell any indicia of heroin at that time. She did note only one gram was in the package when she first saw it and it would have to be open for anyone to be able to smell the odour attributed to heroin.

[62] Officer Cowan, on cross-examination, testified that it is not uncommon for a lawyer to ask the nature the substance seized.

[63] RCMP Officer Ferguson was part of the controlled delivery team and since February, 2016, has been the officer in charge of this investigation. He was also the exhibits officer at the time in regards to this investigation. At some point during the search of the building, the officer was advised of the discovery of the package and went down to the lower apartment where he observed the package in the laundry room behind the water heater.

[64] Once the package was located Officer Ferguson order his fellow officers to discontinue what they were doing as the warrant only authorized them to search for and seize the package (Exhibit 9).

[65] Exhibit 15 is the audio recording made on July 8, 2015, of a woman calling the TNT office and advising she is the wife of Samuel Johnson and confirming the Goreway Drive, Malton, address. Delivery is arranged for the next day. As noted previously, the accused has admitted that she was the female who called the TNT office and told them she was the wife of Samuel John and then provided her address.

[66] Data extracted from the accused’s cell phone was copied to a computer disc, a copy of which was made Exhibit 19. The production order (Exhibit 14) confirmed that the phone was registered to the accused and was activated on February 12, 2014. On May 23, 2015, the number was changed to 647-687-7170.

[67] When studying the extracted data Officer Ferguson identified a social media chat application called, “Whatsapp” by which the accused and Dan exchanged messages.

[68] The extraction report and some loose pages of excerpts were made Exhibits 10a and 10b.

[69] Exhibit 20 represents excerpts which Officer Ferguson believed to be relevant messages between the accused and Dan.

[70] These records establish that on June 26, 2015, the day after the TNT package was seized by the RCMP, Dan tells the accused that he has a “biz proposal’ for her and asks her to use her address to receive a package and for that she would be paid $700.

[71] On the same date the accused sent Dan her Goreway Drive address.

[72] There are a series of chats commencing on July 1, 2015 in which Dan and the accused discuss the delivery of the package. The accused is told it is a package and not a letter. The accused is told the name on the package is Samuel John. A second package may also be delivered but it would be addressed to the accused.

[73] Discussion continues indicating the package will be delivered by TNT and the accused is to ensure someone is there to receive the package.

[74] The chats indicate there was some confusion when the package was to be delivered. Delivery was initially expected prior to July 9, 2015. Dan messages the accused and tells her that he has given her cell phone number to TNT and instructs the accused to tell TNT, if they call, that she is the wife of Samuel John.

[75] Dan suggests to the accused that she offer the person upstairs $200 to take delivery of the package if the accused is not home. The accused messages that she does not want to do this because it might give the person the wrong idea.

[76] The accused tells Dan she will stay home sick on the day of delivery if she gets paid first. Dan responds by saying to the accused, receive the money first and “money will be flourishing in your hand”.

[77] On July 9, 2015 the accused is told by Dan that TNT will deliver between 9:00 am and 5:00 pm and that they will come for sure.

[78] Thereafter the accused messages Dan that he owes her $1,000 because she had to pay the person (upstairs) $250 for staying home for her and then inquires as to where she is to meet the person who is to take delivery from her.

[79] The package is delivered on July 9, 2015, and the accused notifies Dan of the delivery. He tells the accused to take a picture of what is inside the package and send it to him.

[80] The accused does so and presses Dan to have the person who is to take possession of the package from the accused to come and get the package as soon as possible and that her boyfriend is coming over and she does not want him to start asking questions.

[81] The accused sends Dan the following message, “Once I get the package, I need the money immediately and the person should come and get it cause am not taking it to the person.”

[82] Another message from the accused to Dan reads, “I need him to come get it now.” “For security reasons”.

[83] The accused then sends a number of messages, writing,

• “please”;
• “I am begging”;
• “Before I go to work”;
• “Just come and get it”;
• “I don’t want to hold on to it”; and
• “I’m not going to touch it.”

[84] These messages lead to the conclusion that the accused was quite anxious to have the package removed from her possession.

[85] The accused refuses Dan’s request to break the lock on the box in which the bangles are visible. The accused, when asked by Dan why she is acting this way, says, “your not understanding me.” and “I don’t like it.”

[86] Officer Ferguson testified to other matters discussed between the accused and Dan. The accused, for example, was asked to provide her bank account information to allow monies to be deposited. On occasion the accused is required to go to a Western Union office to collect a money order. It was obvious to Officer Ferguson that the two had an ongoing and illegal business relationship, beyond the issue of the package, which relationship involved extracting monies from people by fraudulent means. This relationship is admitted by the accused who in the exchange of messages is referred to as, Chichi.

[87] On March 13, 2015, Dan messages the accused and asks, “hv u tell any ofvyr friends on dat thing?” “the travelling stuffs.” The accused responds, “no seems interested yet” and she is told by Dan, “ok keep looking abeg”. The accused, in her testimony, stated that this conversation was in reference to Dan wanting her help to recruit individuals to carry suitcases of money to the Caribbean.

[88] Officer Ferguson testified that while the word “drugs” is not used this exchange, in his opinion, is very suspicious and is likely connected to the drug trade.

[89] On June 20, 2015, Dan messages the accused, saying he needed her to pick up something in Scarborough. In a voice mail message the accused is told she could make $700 picking up the item.

[90] The accused messages Dan and asks, “what is it”. Dan messages that it is something ordered with a credit card. The accused agrees to pick up the package. She messages Dan and asks him to let her know what she is supposed to do and states, “so I don’t get in trouble”. Dan messages, “Listen this is risk free.”

[91] In the spring of 2015, Dan travelled to Nigeria and remained there at least until sometime after July 9, 2015. In a message he provides the accused with his telephone number.

[92] On June 21, 2015, the accused provides to Dan the phone number, 647-687-7170. Arrangements are made for the accused to pick up something else on the next day. Dan asks the accused to provide her account number (bank) and the accused sends Dan the particulars of her BMO account. The accused is told that the money would be put in her account. Messages are exchanged as to the accused requiring a taxi cab and who is to pay for it. It is agreed the additional money for the cab would be put in her account.

[93] In regards to these series of chats, Officer Ferguson conceded that they could be “fraud related” and not in reference to drugs.

[94] Officer Ferguson conceded that the extracted messages indicate that the accused was not made aware of the TNT package and the need for her to take delivery, until June 26, 2015, the day after the package was intercepted and seized.

[95] In the spring and summer of 2015, the accused was on bail as a result of being charged with fraud. Exhibit 22 is a copy of her bail conditions, including not possessing documents related to any fraudulent activity.

[96] Officer Ferguson agreed on cross-examination that nothing in the messages extracted refer to drugs and there is no evidence of previous drug transfers.

[97] Officer Ferguson testified that another package arrived in Montreal naming Samuel John as the consignee. He agreed that in the message extracts there is no reference to such a package.

[98] Officer Ferguson testified as to the lay out of the airport detachment and testified that when the police contact the lawyer and speak with him or her, they do so from the office and not the room utilized for solicitor/client discussions. Once contact with the lawyer is made he or she is put on hold and the accused transferred from the cell to the phone room to obtain legal advice.

[99] The accused, Faith Chinwendu Uzondu, testified in her defence. She has resided in Canada since 2011, entering the country on a student visa. She has two children who reside in Nigeria with her mother, who also financially supported the accused.

[100] The accused studied business for one year at Durham College but dropped out. Her student visa expired in 2013 and the accused made a refugee claim. She then obtained a work permit pending the resolution of her refugee status.

[101] The accused first worked at a pizza restaurant in Oshawa but soon moved to Toronto to live with her boyfriend, whom she testified was abusive.

[102] The accused testified that the she first got involved in fraudulent activities with her boyfriend. The activities, as noted, involved money wire transfers and the collection of cheques. The activities also involved the use and transfer of fraudulent credit cards and passports.

[103] The accused denied any involvement in drug activities.

[104] In 2014 the accused was introduced to Dan through someone named, Ozo. Dan needed help with Western Union wire transfers of money orders.

[105] The accused sent Dan her bank information (CIBC and BMO) to allow for the deposit of monies presumably received by fraudulent means. The accused would at some point withdraw the money and give it to Dan.

[106] The accused testified she got involved in fraudulent matters for the money which she needed to send home for her children.

[107] In relation to the messages exchanged on March 13, 2015, in which Dan states, “hv u tell any ofvyr friends on dat thing”, the accused testified that while Dan asked her to find people to transport suitcases of money to the Caribbean he never asked her to find people to transport drugs.

[108] Dan then message, “the travelling stuffs” and the accused explained this was in reference to her travelling to different cities in Canada, such as Vancouver, to collect money.

[109] The accused acknowledged that all these activities were breaches of her terms of bail.

[110] In regards to the reference to her going to Scarborough to pick something up, the accused testified that it was to collect fake passports and that it was an envelope and not a package. She never thought that any of what she did had to do with drugs. The accused testified that the Scarborough pick up was never concluded.

[111] In regards to Dan’s request that she take delivery of the TNT package, the accused testified that she thought it was fraudulent credit cards. Another time she testified that she thought the package contained false passports.

[112] The accused testified that whether it was money transfers, deposits of money in her bank accounts or packages, she believed it all related to fraudulent activities.

[113] The accused acknowledged that she was told the name Samuel John and that she did call the TNT office and pose as Samuel’s wife, two things she denied in her police statement.

[114] The accused testified that she asked the woman upstairs to take delivery of the package when it came. She never offered her any money to do so because she did not want to get them involved in fraud.

[115] The accused testified that Dan’s reference to “money flourishing in your hand” referred to the fraudulent credit cards.

[116] In regards to the TNT package, the accused testified that on her return from a job interview the package was on the stairs leading down to her apartment. She advised Dan of the delivery and he asked her to open it and take pictures. She testified that this had never happened before and she did not know why it was necessary.

[117] The accused took the gold locked box out of the outer packaging and saw bracelets, not credit cards. She at no time thought of drugs.

[118] After he was sent the pictures Dan asked the accused to break the box open and put the contents in a paper bag. This confused the accused and she refused to do so.

[119] The accused admitted that no friend attended at her apartment and put the package in the laundry room, behind the water heater. The accused admitted it was she who did so. She said she did so because of the police, her being on bail and breaching the terms of her bail, and she did not want the police to know about the credit cards.

[120] The accused testified that her message, “for security reasons” was in reference to her being on bail.

[121] When the accused was arrested she thought it was because of the credit cards but was then told she was arrested for a controlled substance. She testified that the word “heroin” was not mentioned when she was arrested nor was it mentioned when she was being transported to the airport RCMP detachment.

[122] The accused testified that she heard the word “heroin” when she overheard the officer talking to her lawyer, Mr. Tomlinson, when the call for the accused to speak to counsel was being arranged.

[123] The accused conceded that when giving her statement she lied to the police repeatedly.

[124] She admitted that she lied to the police when she told them she was just doing a friend a favour by taking delivery of the package and that she was not paid for doing so.

[125] The accused testified that what she does is fraud and that she didn’t know anything about drugs.

[126] In regards to the Montreal packages, the accused testified that while she was to go to her mailbox to get a package she knew nothing else about packages from Montreal.

[127] On cross-examination the accused testified that she had never heard the word “heroin” until after she was arrested. She did not even know it was a drug.

[128] The accused testified that she did not have a close relationship with her mother from whom she wanted to get away. However, she also testified that her mother financed her to travel to Canada and contributes to the accused’s on-going living expenses and cares full time for her children.

[129] The accused testified that she claimed refugee status in order to get a work permit. She said her refugee claim was still outstanding.

[130] Prior to working for Dan, and as referenced previously, the accused testified that she was involved in fraudulent matters with other men, all of whom were Nigerian. It involved using Western Union, and receiving money transfers and delivering cheques. She was paid 10% of everything that came in.

[131] Some of the accused’s work involved receiving fraudulent credit cards via a mailbox rented in her name.

[132] The accused acknowledged that she was arrested for using false identification to acquire cell phones.

[133] She conceded that she travelled to Vancouver to acquire cell phones, which she acknowledged was a breach of her bail as she was to remain in Ontario, notwithstanding her testimony that her bail conditions were important to her.

[134] The accused testified that it was not her place to get particulars of Dan himself or of the transactions. Her job was to transport large amounts of money. Her job was to, “get the money” and Dan provided her with fake identification, citizenship papers and driver’s licence.

[135] The accused testified that she did not take delivery of any packages through Western Union and that any envelopes were sent to a mailbox.

[136] The accused testified during her examination if chief that the only sick day she took from her employment with Tailor Made was the day of her arrest. She did so to attend a job interview. In the extracted messages she tells Dan, when he asked her to take a day off work to take delivery of the package, that she had already taken one day off, “last Monday”. The accused explained this inconsistency by testifying that the first time was not a full sick day. On that Monday she left work at 3:00 pm to go to hospital because she was sick as a result of allergies.

[137] In regards to the accused asking her friends to transport suitcases of money to the Caribbean, she said that she and Dan talked about this, in person, and on the phone. She could not say why Dan wanted to do this and that she never asked. If she found someone to travel, the arrangements would be between that person and Dan.

[138] When asked if carrying large sums of money into a country may be illegal, the accused said she did not know anything about that. The accused testified that she never thought the transport of large sums of money might involve drugs.

[139] The accused was aware of someone named Aldo requiring someone to transport $10 million to Jamaica. The accused never asked him why there was a need to do so. While she knew a lot of Jamaicans she never thought they were involved in drugs.

[140] The accused testified that the only other package she ever picked up for Dan contained a false passport.

[141] The accused was asked why she did not ask what was in the TNT package and responded saying, because she believed it was credit cards or passports because that is all she does. She did not think it might be drugs. She also said credit cards usually come in envelopes.

[142] As noted previously, the accused sent Dan the pictures of what was in the package at 6:37 pm on July 9, 2015 and was quite anxious to get rid of the package.

[143] The accused messaged Dan that she needed whoever was to take delivery of the package from her to come get it, for security reasons. When asked what the security reasons were, she answered because she was on bail and that notwithstanding her continued breaches of the bail terms, this occasion was different as it was in her house.

[144] The accused denied that her concern was that the package appeared to contain bracelets and not credit cards and for that reason was worried and wanted to get rid of the package.

[145] On cross-examination the accused conceded that as long as she got paid she wasn’t concerned with what was in the box.

[146] The accused testified that she did not know what heroin was and it was her lawyer who told her what it was and that is why she freaked out and referenced the drug while giving her statement.

[147] The accused testified that on June 21, 2015, she gave Dan her new cell phone number as she changed her number every six months because of her involvement in fraudulent activities.

[148] In summary, the accused testified that while she knew what she was doing was illegal she thought it related to fraudulent endeavours and not the trafficking in drugs. She testified she believed the package contained false credit cards or fraudulent passports.

ARGUMENT

[149] Counsel for the accused relies on the case of R. v. Collymore, a decision of Beaulieu J. of the Ontario Superior Court of Justice. He submits that the facts of that case are similar to the facts in our case.

[150] In Collymore the accused agreed to supply false addresses and names for packages as well as to pick up packages which were being delivered from Trinidad and Tobago. He was to be paid $1,000 for doing so. Nothing about the envelopes themselves was suspicious. The accused admitted knowing that the person who arranged the pickup was involved in shady business but never suspected the packages contained drugs. Nothing in the accused’s past had any connection to the drug trade.

[151] Mr. Collymore was acquitted as the Crown had failed to establish beyond a reasonable doubt that the accused knew or was wilfully blind to the fact that the envelopes contained a controlled substance.

[152] At paragraph 11 of the Collymore case it was noted that in regards to “willful blindness”, it is not enough for the Crown to prove that the accused was willfully blind to the fact that some offence was being committed while also noting that the Crown does not have to prove that the accused knew the drug was cocaine as opposed to another type of drug.

[153] At paragraph 13 Beaulieu J. stated, “But even if the Crown succeeded in destroying Mr. Collymore’s credibility, he must still convince me beyond a reasonable doubt that Mr. Collymore was willfully blind to the fact that the packages contained drugs.”

[154] The trial judge went on to state that, at best, the Crown has proven that the accused was willfully blind to some illegal activity. The court concluded there was no evidence to suggest he would have known the envelopes contained drugs. As noted in paragraph 15, “It was no more likely that they contained drugs than passports – or, for that matter, child pornography, pirated software, or stolen historical artifacts.”

[155] Mr. Collymore was acquitted of all charges.

[156] Defence counsel submits that the same circumstances apply to this case. His client has a history of involvement with Dan in relation to fraudulent endeavors. There is no evidence to suggest previous drug transactions or any other evidence to suggest his client was aware the package may contain some type of drugs. The packaging itself and the box contained therein had no obvious indicia of drugs.

[157] Defence counsel submits that the Crown has not proven beyond a reasonable doubt that the accused was willfully blind to the fact the package contained drugs. Regardless of the fact his client knew she was involved in illegal activities, the evidence falls short of establishing she knew drugs were in the package.

[158] In regards to the fact the accused attempted to hide the package from the police, defence counsel submits that such action was consistent with the acts of someone who is on bail, a refugee claimant, and believing she is engaged in fraudulent activities.

[159] Counsel submits that within the phone records there is no reference to drugs. Further, counsel submits that there is reasonable doubt whether the accused was told the package contained heroin prior to her reference to heroin in her police statement. It is submitted that we don’t know definitively whether Officer Delorme did not use the word heroin when speaking by telephone to counsel.

[160] Defence counsel submits that the accused should be acquitted on all charges.

[161] Crown counsel submits that the phone records refer to the need to recruit persons to transport money to the Caribbean and that the accused, when asked what she thought the money was going to the Caribbean for, testified that she didn’t have any interest in knowing the reason. The suggestion is that drugs may be the reason and that the accused’s lack of interest amounts to wilful blindness.

[162] Crown counsel submits that Officer Delorme’s best evidence is that she did not use the word heroin prior to the accused using the word. Further, when the police attempt to make telephone contact with defense counsel it is in a different room than used by the accused to speak to counsel. An accused is only taken to this other room after contact is made with counsel so the accused would have no opportunity to overhear any conversation.

[163] It is submitted that the accused’s use of the word “heroin” was a slip up on her part. The Crown submits it is simply unbelievable that the accused had never heard the word heroin before the night of her arrest or that she did not know what it was.

[164] The Crown submits that the accused’s evidence ought to be rejected. Her statement and her testimony contain numerous lies and inconsistencies.

[165] Crown counsel submits that the accused is a party to the importation of drugs and that the accused’s involvement with this package is sufficient to establish a conspiracy.

[166] In regards to the Montreal package, it has the name Samuel John in common with the TNT package which is sufficient to establish conspiracy.

[167] In regards to the decision, R. v. Collymore Crown counsel submits that it can be distinguished on its facts as it dealt with envelopes and not a package. In our case the accused in fact opened the package as she wanted to know what was in it.

[168] Crown counsel submits that it was the accused’s evidence that bogus credit cards are shipped in envelopes and not in package form.

[169] With respect to direct knowledge, Crown counsel submits that the accused’s evidence should be rejected in its entirety and that the evidence in total proves that the accused had direct knowledge, along with Dan, of what the package contained.

[170] Alternatively, the accused was willfully blind as to the contents of the package. The accused testified that, as long as she got paid, she did not ask about the contents because she did not want to know. She deliberately chose not to investigate what might be in the package.

[171] Crown counsel submits that knowledge has been proven, whether by direct knowledge or willful blindness.

[172] Crown counsel submits that the accused should be convicted on all of the counts in the indictment.

ANALYSIS

[173] I concur with the Crown that the evidence of the accused lacks complete credibility and ought to be rejected for the following reasons.

[174] The accused admittedly was involved in numerous fraudulent activities. Fraud is a crime of dishonesty.

[175] During the period of time relating to these charges the accused was on bail in regards to another charge(s) relating to fraud yet she willingly breached the terms of her bail.

[176] The accused’s police statement is full of admitted untruths and misrepresentations, some of which are as follows: a. that she was innocent and was set up; b. that a friend, who she refused to identify, opened the package and put it behind the hot water tank; c. that she never heard the name, Samuel John; d. that she was not paid to take the delivery; e. she was doing an innocent favour for friend when agreeing to take delivery of the package; and f. she said that she changed her phone number because some boys were harassing her.

[177] In regards to her trial testimony, the accused’s evidence included a number of inconsistencies, suggesting she was fabricating evidence to fit the questions and circumstances.

[178] In her examination in chief the accused testified that she had no discussions with Dan concerning the contents of the TNT package. On cross-examination she testified that she had a telephone conversation with Dan on June 26, 2015, and that he told her the contents were fraud related. However, the phone records do not disclose any such phone conversation.

[179] When asked about her message to Dan that she needed to be paid $1,000 because she paid someone $200 to take delivery of the package, the accused said this message was a joke and Dan knew that. Nothing in the message suggests it was a joke and it is noted again that Dan suggested she pay someone.

[180] She first said the package contained fraudulent credit cards but later testified it contained false passports.

[181] The accused testified that she was not close to her mother yet also testified that her mother supports her financially and is caring for her children in Nigeria.

[182] The accused testified that the only sick day she took from her job was on the day of her arrest. She went to a job interview. In the extracted text messaging between her and Dan she tells him that she couldn’t take another day off as she had already taken one. When asked about this inconsistency she testified that in regards to the earlier day off she left work at 3:00 pm to go to the hospital because she was sick.

[183] On July 9, 2015, at 6:37 pm, the accused sent Dan pictures of the package and told him she had to go back to work. She testified at trial however that she had taken the day off of work. She also testified that her hours of work were 5:00 am to 5:00 pm.

[184] The accused had messaged Dan that she wanted whoever was to take the package to come and get it for security reasons. When asked about what were the security reasons, she testified that she was on bail. It was put to her that she never had any other issue with being on bail when she continued to be involved with Dan and fraudulent activities. To this the accused responded that the difference was this delivery was to her house in an effort to explain the “for security reasons” message. Is the fact the package is in her home any different however to the accused depositing in her personal bank account monies received through fraudulent means?

[185] For these reasons I reject the accused’s evidence. She lacks all credibility. Specifically I reject her testimony that she overheard the officer, when the officer was speaking to counsel, use the word heroin.

[186] Further, because of her total lack of credibility, the accused’s evidence does not raise a reasonable doubt in regards to any of the charges.

[187] I am left then to determine if the Crown has proven all the essential elements beyond a reasonable doubt.

[188] In regards to Count 1, relating to the importing of heroin into Canada, I find there is reasonable doubt. The heroin was discovered by the police on June 25, 2015. The accused was asked on June 26, 2015, to take delivery of the TNT package. This raises a reasonable doubt as to whether she was even aware of a package being imported or participated in any way in the importation of the heroin. There is no other evidence linking the accused to the importing of this package or that the accused was a party to its importation. It can reasonably be argued that, even assuming she knew of the contents of the package, that she only became aware of the imported package after the fact.

[189] Counts 3 and 4 relate to conspiracy involving not only the TNT package but packages containing heroin seized in the city of Montreal. The only evidence linking the packages is the co-signee in all cases was Samuel John. There is no other evidence linking the packages and certainly no evidence that the accused had any knowledge or involvement in regards to the Montreal packages.

[190] On the evidence of the Crown a reasonable doubt exists in relation to Counts 3 and 4. I am unable to conclude that the accused was part of a conspiracy as set out in the indictment.

[191] We are left then with Count 2 and the only issue is whether or not the Crown had proven beyond a reasonable doubt the accused had the requisite knowledge that a controlled substance was in her possession. The actus reus of the offence is not in issue.

[192] At the very least, and notwithstanding the package had no obvious indicia that it contained a controlled substance, I find that the accused was willfully blind as to the contents of the package and therefore had the required knowledge to substantiate a conviction.

[193] To begin with the accused agreed with the suggestion of the Crown that she did not care what was in any package she accepted as long as she got paid.

[194] Most of her “fraudulent” work for Dan was to pick up money orders at Western Union or provide a bank account in her name in which monies obtained by fraudulent means were deposited. She would then withdraw the funds and provide them to Dan.

[195] The acceptance of the TNT package by the accused for Dan was quite different and unique from her other assignments. While it was the accused’s evidence that she may have been asked to pick up another package and leaving aside my rejection of her evidence, there were inconsistencies in regards to whether the other package contained passports or credit cards and whether the accused ever picked up such other package from a post office box or otherwise.

[196] As noted previously, the accused’s reaction to taking possession of the package, as found in the text messaging excerpts, suggest the accused had significant concerns over her having this package in her possession, concerns not displayed in any other conversations related to her dealings with Dan.

[197] The accused is instructed by Dan to open the package and take pictures of the contents, which she does. The accused then messages Dan that she needs his guy to come and get it now, for security reasons. She messages, “please” and “I am begging”.

[198] While anyone one of these exchanges may be explained away, in total they suggest an involvement by the accused in a matter that was something different from her fraudulent activities. It would suggest that she was concerned about the contents of the package and was aware that the package did not contain passports or credit cards.

[199] In the accused’s statement to the police the accused stated that she knew something was wrong when she opened the package.

[200] The earlier messages in relation to persons needed to take suitcases of money down to the Caribbean, suggests some connection to the drug trade and should have prompted the accused to inquire, as does her reference to Aldo needing someone to transport $10,000,000 to Jamaica.

[201] I cannot accept the accused’s evidence that, prior to her arrest, she never had heard the word heroin and did not know what heroin was.

[202] The accused was willing participant in criminal activities with numerous persons. She was aware of a need to transport large sums of money to the Caribbean. To then suggest ignorance or naivety as to the drug trade and of heroin itself is beyond belief.

[203] The accused chose not to look at the contents or inquire as to the contents because she did not want to know.

[204] When a person has become aware of the need for some inquiry about the nature of the substance in their possession but deliberately fails to make an inquiry because he or she does not wish to know the truth or would prefer to remain ignorant, willful blindness is made out.

[205] I find that given the circumstances and the obvious concerns the accused expressed in her messages to Dan that there was a need for some inquiry. The accused preferred to remain ignorant as to the contents.

[206] These facts distinguish this matter from the facts in Collymore.

[207] The accused’s wilful blindness establishes knowledge and on that basis the accused is guilty of possession of heroin for the purpose of trafficking.

[208] In regards to actual knowledge, the accused testified that she first heard the word “heroin” when she overheard the officer talking to her lawyer, Mr. Tomlinson. This would have been prior to the accused’s conversation with Mr. Tomlinson.

[209] Having rejected the accused’s evidence, I find that it was the accused that first used the word “heroin” when she was interviewed by Officer Delorme. The officer testified that as an investigative technique while she would tell the accused that she was arrested for the possession of a controlled drug, she would not name the actual drug. She testified that she did not disclose to the accused, at any time prior to the interview, that the suspected drug was heroin.

[210] Officer Oliveros testified she never used the word “heroin” in the presence of the accused.

[211] Officer Cowan testified that the accused was arrested in her presence for the possession of a controlled substance for the purpose of trafficking. At no time, whether on the scene or at the detachment, did the officer hear the word “heroin”.

[212] Further, I accept the evidence of Officer Ferguson that police officers contact and speak to counsel in a different room than the one used by arrested persons to speak to their lawyer. An accused is not removed from their cell to speak to counsel until after police have contacted and spoken to counsel. Accordingly, the accused would not be in a position to overhear the use of the word “heroin”.

[213] Without actual knowledge of what was hidden in the package the accused would not have used the word “heroin”.

[214] In my opinion, on this and the balance of the Crown evidence, especially the text messages between the accused and Dan, it is reasonable to conclude that the accused intended to do what she did, that is, have in her possession a controlled substance for the purposes of trafficking.

[215] Actual knowledge has been established.

[216] The accused is found guilty of Count 2.

Bielby J. Released: July 27, 2016