CITATION: R. v. Ezechukwu 2017 ONSC 5441

COURT FILE NO.: 15-1324

DATE: 20171106

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Sid Thompson for the Crown

• and -

FRANCIS EZECHUKWU

Deepak Paradkar for the Defence

HEARD: May 24, 26, 29, 30 2017

REASONS FOR JUDGMENT

Justice Joseph M. Fragomeni

[1] The accused, Francis Ezechukwu, is charged with three counts as follows:

1. importing a controlled substance

2. possession of a controlled substance for the purpose of trafficking

3. conspiracy to import cocaine

[2] The trial of this matter took place before me, sitting without a jury, on May 24, 26, 29 and 30, 2017.

Trial Evidence:

[3] Exhibit 1 is the Agreed Statement of Facts filed at this trial. It is useful and informative to set out those facts as it will give context to the review of the testimony of the witnesses called at trial.

Agreed Statement of Facts:

Pursuant to s. 655 of the Criminal Code of Canada, the following facts are admitted without the necessity of calling further evidence:

Importation:

On or before September 8, 2014, a package arrived at the Lester B. Pearson International Airport in Mississauga, Canada on Air Transat from Lima, Peru. This package, with Reference Number 8049 5242 3148 (the “Package”) was addressed as follows:

The sender was listed as:

Roger Huacas Huatac

Cuzco Palace

Lima, Peru

The recipient was listed as:

David Galino – Peruvian Arts

1650 Dundas St. East

Mississauga, Ontario

Phone number – 647-924-2887

It is agreed that the Package and its contents were imported into Canada from Peru.

Contents of the Package:

At approximately 7:45 a.m. on September 8, 2014, Border Services Officer (BSO) Randy Lee of the Canadian Border Services Agency (CBSA) was working in the Commercial Operations Area at the Toronto Lester B. Pearson International Airport. BSO Lee was tasked with examining packages shipped form outside Canada to various destinations inside Canada.

BSO Lee examined the Package. The declared contents of the Package were alpaca rugs and wool bags. The Package contained 13 bags and six cushion covers that appeared to be made of woven wool. Upon examining the contents of the Package, BSO Lee noted that the items felt uneven and lumpy. Upon further examination, BSO Lee found that there were plastic pouches glued within the items that contained a white powdery substance that BSO Lee believed to be cocaine.

Once the suspected cocaine was discovered, custody of the Package was transferred from the CBSA to the Royal Canadian Mounted Police (RCMP).

Nature and weight of the substance:

The RCMP sent a sample of the suspected cocaine in the Package to Health Canada for analysis. It is agreed that when analyzed by Health Canada, the white powdery substance in the Package tested as cocaine.

RCMP Constable Joe Benedet removed the cocaine in the Package from its wrapping and weighed it. It is agreed that the total weight is 3,535 grams of cocaine.

Value and possession for the purpose of trafficking:

An Expert Evidence Report was prepared for the purposes of this trial by RCMP Cst. Kevin Van Alstine.

On the basis of this report, it is agreed that:

i. The coca plant, from which cocaine is derived, grows almost exclusively in the Andean Mountains of South American, predominantly in the countries of Columbia, Bolivia and Peru. These are known as “source countries”. As cocaine is not produced in Canada, it must be imported.

ii. To get from those who produce cocaine in source countries (“producers”) to those who sell cocaine in Canada (“retailers”), cocaine will typically pass from an importer/exporter (“distributor”) who deals with cocaine at the multi-kilogram level through a courier or multiple couriers. Retailers may sell the cocaine at the kilogram, ounce or gram level. At each point in this chain, the cocaine is typically “cut” with various adulterants. The purpose of adding adulterants is to increase the volume and profit. This also decreases the purity of the cocaine.

iii. The wholesale price of cocaine per kilogram in Peru in 2014 was, at the top end, approximately $1,800 USD. As such, the cost of the 3535 grams of cocaine in Peru was worth roughly $6,300 USD in Peru.

iv. The price of cocaine per kilogram in the Greater Toronto Area (GTA) in 2014 averaged between $50,000 CAD and $65,000 CAD. As such, the value of the 3535 grams of cocaine if sold at the kilogram level in the GTA is between $175,000 CAD and $227,000 CAD.

v. The “street level” price of a gram of cocaine in the GTA in 2014 was a minimum of $80 CAD. As such, the value of the 3535 grams of cocaine if sold at the gram level in the GTA was $282,800 CAD.

vi. The quantity of cocaine in this case represents a 1.9 year supply for a heavy user at a consumption rate of 5 grams per day. The amount of cocaine is consistent with an amount possessed for the purpose of trafficking.

Controlled delivery:

After removing the cocaine from the Package, Cst. Benedet prepared it for a controlled delivery. He returned the remaining contents back into the Package box and placed within the box a 1.5 gram sample of the cocaine that had been removed. He reassembled the Package so that it appeared consistent with its original state.

Cst. Benedet turned the Package over to other officers for the purposes of executing a controlled delivery. Two delivery attempts took place on September 11, 2014. Following each of these two attempts, the officers returned the Package to Cst. Benedet’s care and control. The Package was returned to the officers by Cst. Benedet for the purpose of the final delivery which took place on September 12, 2014.

After the controlled delivery on September 12, 2014, the accused before the court, Mr. Francis Ezechukwu, was arrested. The Package was seized and returned to the RCMP detachment. Cst. Benedet examined the Package and found that the box itself was in essentially the same condition as it was prior to the controlled deliveries. Cst. Benedet did notice that the waybill, which had been taped to the box and contained the shipper and receiver information, had been removed and that the tape had been removed from the bottom of the box. The control sample of cocaine he previously placed in the Package was still in the Package.

Cell phone records:

Following the arrest of Mr. Ezechukwu, Production Orders for the records associated to various cellular phones found in his possession and in the possession of Mr. David Gani and Mr. Randy Boddis were sought and granted.

On the basis of these records, the following is agreed:

A Nokia device with IMEI 359208051286405 was seized from Mr. Gani at the time of his arrest (RCMP Exhibit #59) (“Gani’s phone”). The telephone number associated to this device is 647-403-0091. The subscriber information is as follows:

Steve Smith

11 Toronto ON W1W 1L3

A T-Mobile device with IMEI 01330300187511 was seized from Mr. Boddis at the time of his arrest (RCMP Exhibit #60) (“Boddis Phone”). The telephone number associated to this device is 647-717-5880. The subscriber information is as follows:

Paul Jones

38 Dan Leckie Way

Toronto, Ontario

M5v 2V6

A Nokia device was also seized from Mr. Boddis at the time of his arrest (RCMP Exhibit #61) (“Boddis’ Second Phone”). The telephone number associated to this device is 416-560-4722. The subscriber information is as follows:

Ron Brown

1246 ½ Garrard

Toronto, ON M4L 1Y6

A Huawei device with IMEI 8618640000620135 was seized from Mr. Ezechukwu at the time of his arrest (RCMP Exhibit #47) (“Ezechukwu’s Phone”). The telephone number associated to this device is 647-717-5881. The subscriber information is as follows:

Joe Brown

151 Dan Leckie Way

Toronto, Ontario

M5V 4B2

Gani’s Phone

During the period of June 24, 2014 and September 12, 2014 Gani’s Phone was used to contact 110 unique telephone numbers one of which included Boddis’ Phone. Contact with Boddis’ Phone began in July 2014 and continued frequently until September 11, 2014. There was no contact between Gani’s Phone and Boddis’ Phone on September 12, 2014.

During this same period, Gani’s Phone and Boddis’ Phone were in contact with seven common contact numbers.

On September 12, 2014, Gani’s Phone and Boddis’ Second Phone were both in contact with telephone number 647 409 9174 which is registered to the subscriber name Frank Jones (“Frank Jones’ Phone”). Gani’s Phone called Frank Jones’ Phone at 8:08 a.m. and Frank Jones’ Phone called Gani’s Phone at 1:32 p.m.

On September 12, 2014 Boddis’ Second Phone contacted Frank Jones’ Phone seven times as follows:

i. Outgoing call at 10:37 a.m.

ii. Outgoing call at 10:38 a.m.

iii. Outgoing call at 11:12 a.m.

iv. Outgoing call at 11:13 a.m.

v. Outgoing call at 11:16 a.m.

vi. Outgoing call at 11:47 a.m.

vii. Outgoing call at 1:30 p.m.

Boddis’ Phone:

During the period of August 2014 and September 12, 2014 Boddis’ Phone was used to contact eight unique telephone numbers. Only three of these numbers were contacted more than once. These include 647 717 5876 and Ezechukwu’s Phone.

The subscriber information for telephone number 647 717 5876 (“John Haigens’ Phone) is as follows:

John Haigens

151 Dan Leckie Way

Toronto, Ontario M5V 4B2

During the period of August 24, 2014 and September 12, 2014, Boddis’ Phone contacted John Haigens’ Phone more frequently than any other number (185 times). On September 12, 2014, Boddis’ Phone was in contact with John Haigens’ Phone six times as follows:

i. Incoming call at 10:24 a.m.

ii. Outgoing call at 10:27 a.m.

iii. Incoming call at 10:34 a.m.

iv. Incoming call at 10:42 a.m.

v. Outgoing call at 10:45 a.m.

vi. Outgoing call at 11:48 a.m.

Boddis’ Phone was in contact with Ezechukwu’s Phone since at least August 27, 2014. During the period of August 24, 2014 and September 12, 2014, Boddis’ Phone contacted Ezechukwu’s Phone 31 times.

On September 12, 2014, Boddis’ Phone was in contact with Ezechukwu’s phone six times as follows:

i. Outgoing call at 10:28 a.m.

ii. Incoming call at 10:46 a.m.

iii. Incoming call at 10:48 a.m.

iv. Incoming call at 11:50 a.m.

v. Outgoing call at 11:54 a.m.

vi. Outgoing call at 12:31 p.m.

Boddis’ Second Phone:

Between July 21, 2014 and September 12, 2014 Boddis’ Second Phone contacted 43 unique telephone numbers. The most frequently called telephone number during this time period was Frank Jones’ Phone (293 communications).

During the same time period, Boddis’ Second Phone was in contact with Gani’s Phone 39 times.

Ezechukwu’s Phone

During the period of August 24, 2014 and September 12, 2014, Ezechukwu’s Phone was used to contact eight unique telephone numbers. Only two of these telephone numbers were contacted more than once: John Haigen’s was contacted 108 times and Boddis’ Phone was contacted 31 times.

On September 12, 2014, Ezechukwu’s Phone was in contact with John Haigens’ Phone five times as follows:

i. Outgoing call at 7:56 a.m.

ii. Outgoing call at 10:32 a.m.

iii. Outgoing call at 10:39 a.m.

iv. Incoming call at 10:47 a.m.

v. Incoming call at 11:49 a.m.

The records received did not indicate any contact between Ezechukwu’s Phone and Gani’s Phone.

Continuity of Exhibits:

The exhibits to be tendered in this case are those seized by the CBSA and RCMP during the course of the investigation or are those provided to the RCMP by third parties pursuant to lawful Production Orders.

It is agreed that there are no issues of continuity in respect of any exhibits in this investigation.

Voluntariness

It is agreed that statements made by Mr. Ezechukwu to persons in authority were voluntary.

Jaswinder Singh:

[4] Mr. Singh drives a taxi for a living and works in the South Etobicoke and the Sherway Gardens area of the GTA.

[5] On September 12, 2014, he was coming from Dixie and Dundas Street East when he picked up a passenger between 11:00 a.m. and 12:00 noon. It was a white male, five feet seven inches or five feet eight inches tall and between 52 and 57 years of age.

[6] This male put a box in the backseat of the taxi. The box looked like it had a T.V. in it. The box had a clear bag on it but he could not see the details on the box.

[7] The male wanted to go to 2335 Kipling Avenue. On the way, and as they passed Albion, this male made a phone call and said, “almost there bring the money”. The taxi pulled into the back of the building’s parking lot. There were four buildings within six units on each floor. He went to the back door of the building closer to Kipling Avenue.

[8] The male passenger was in the back of the taxi. A black male came out of the back door of the building. The black male was wearing a t-shirt and blue track pants. He had paint on his t-shirt.

[9] The passenger window was down and the black male asked Mr. Singh how much the fare was and Mr. Singh said $40. The black male gave him two $20 bills. While he was paying, the passenger was still in the back of the taxi. There was no conversation between the passenger and the black male.

[10] The box had been placed on the back seat behind Mr. Singh. The passenger grabbed it, handed it to the black male, and then he exited the taxi.

[11] Mr. Singh had no idea where the two males went.

[12] As the taxi door closed, he heard “Police stop” and saw two officers running. He saw two guns in the officers’ hands.

[13] The black male was running for the front side of the building. The police yelled stop three times. Mr. Singh drove off. He saw the black male coming from the front of the building and run across the front of his taxi. Another vehicle was coming from the exit. It jumped the curb and hit the black male’s leg. The black male tried to get up. Mr. Singh then left the area.

Cross-examination:

[14] In cross-examination by the defence, Mr. Singh confirmed or acknowledged the following:

• On September 17, 2014 he made an audio statement to the police. At lines 203 to 207of this statement he states:

And I (…) an’ I (…) it was forty-two dollars on the meter, but I took forty dollars. As I – as a, as (…) I don’t if the black guy grabbed the TV that time? I have a feeling that he handed it to him? But as the white guy was kind of falling, and what he was shaking and (…) later I looked into the back, as I start moving, and I – I see somebody in my window, eh, I – I, I hear a shout.

• Mr. Singh acknowledged that he did not actually see the white passenger hand the box to the black male. It was just his impression of what had occurred.

• He was unable to see the word “Police” on the front of the jackets of the two men running and yelling “Police stop”.

Corporal Amandeep Sunny Singh

[15] Cpl. Singh was the Officer in charge. He has been a member of the RCMP for 11 years.

[16] In September 2014, he was working with the Toronto Airport Detachment.

[17] Through Cpl. Singh, the Crown filed the following exhibits:

Exhibit 2 – photo of the box with the Airway Bill, Pink Receipt and the phone number 647-924-2887

Exhibit 3 – photo depicting the contents of the box, that is, 6 cushions and 13 hand bags.

Exhibit 4 – photo of the 6 cushions

Exhibit 5 – photo of the 13 handbags

Exhibit 6 – photo of the handbag where the drugs were concealed

Exhibit 7 – photo of one of the cushions where the drugs were concealed

[18] Cpl. Singh drove by 1650 Dundas Street East to locate Peruvian Arts, the recipient of the package as noted on page 1 of the Agreed Statement of Facts. There was no indication of a David Galino-Peruvian Arts at that address. He drove around the area and could not locate this business.

[19] On September 11, 2014 Cpl. Singh set up an operational plan to deliver a package to 1650 Dundas St. East. An under-cover person would deliver the package. At 11:45 a.m., the surveillance team set-up.

[20] The first controlled delivery was negative.

[21] On September 11, Peter Diamantakos at FedEx was called by a male who identified himself as Dave about the package and Dave confirmed the address of 1650 Dundas St. East Unit 265 with a phone number 647-877-1102. Cpl. Singh called this number and a message said that the phone number was unassigned.

[22] On September 11, a second attempt to deliver was executed. This controlled delivery was also negative.

[23] On September 12, 2014, a last attempt was made to deliver the package. The new cover person was Frank Velasio. At 8:49 a.m., a male by the name of David called and said he was coming to sign for the package. At 10:00 a.m. Cpl. Singh met Peter from FedEx and was advised that David had called again and said he would be at Unit 265 and would accept the package. At 11:24 a.m. Mr. Velasio arrived at 1650 Dundas St. East with the surveillance team.

[24] Mr. Velasio arrived with the package in a Fed Ex truck at a parking lot. At 11:43 a.m. Mr. Velasio walked to 1650 Dundas Street East to deliver the package. The package was received by a white male, David Darren Gani a.k.a Gilano. Gani looked nervous and looked around. Gani was an older male. When he came out of the business premises, he looked around, moving his head back and forth. Gani took the package into the business’ premises.

[25] Inside he met Randy Lee Boddis. Boddis put a black garbage bag over the package. Gani exited the business. He no longer had the package. Gani went into a small variety store, and it was there that Cpl. Singh arrested him.

[26] Cpl Singh described Gani as a Caucasian male, who weighed 180 pounds, was 5 feet 11 inches tall and had good hair on his head.

[27] Gani was searched incident to arrest. Seized from Gani were the following:

Exhibit 8 – Invoice from the box

Exhibit 9 – the Fed Ex Airway bill

Exhibit 10(a) and 10 (b) – the pink slip and receipts

Exhibit 11 – the cardboard ripped off by Gani

Exhibit 12 – piece of paper with phone number similar to that on box for Recipient, 647-924-2887

Exhibit 13 – Rogers Invoice David Galino 265-1650 Dundas Street East

[28] Filed as part of Exhibit 14 is the telephone recording with FedEx relating to tracking no. 804952423148. The caller is advised the cost of shipping is $133.95. The caller asks to pay with VISA and is told he can do so.

Cross-examination:

[29] In cross-examination by the defence, Cpl. Singh testified to the following:

• No unit number was given initially for the 1650 Dundas Street E address

• After Gani got the package from the cover he interacted with Boddis

• He did not see Boddis get into a taxi

• During his observations, Cpl. Singh did not see either Gani or Boddis on their cell phones

Corporal Nav Randhawa:

[30] Cpl. Randhawa observed Boddis get into a taxi. He followed the taxi. The taxi arrived at 35 Jansusie Road in Rexdale. He drove the third vehicle following the taxi. Cpl. Belfour and Cst. Smith arrived at the address before him.

[31] The 35 Jansusie building is an older apartment building. Cpl. Randhawa pulled into the building from the Kipling side at the back of the building.

[32] Cpl. Randhawa observed the taxi pull away. He saw Boddis meet with the accused. They are talking but Cpl. Randhawa could not hear what they were saying so he walked towards them. Cpl Ranhawa explained he did not know where the accused came from. He did not see Boddis get out of the taxi. Boddis was still carrying the box in a black garbage bag. The accused never handled the package.

[33] The accused walked ahead of Boddis as they headed toward the building. They entered the building. Cpl. Randhawa did not know how the door was opened.

[34] At this point, Cpl. Belfour called a take down so Cpl. Randhawa ran to the door. He yelled “Wait – hold on” and moved his hand so the door would not close. He did this before it closed. He had not identified himself as a police officer at this point.

[35] The accused was ahead in the hallway that led to the foyer. Boddis still had the box in his hands. As he now had control of the door, Cpl. Randhawa yelled loudly, “Police – stop”, several times.

[36] The accused turned and looked Cpl. Randhawa in the eyes and ran. Cpl. Randhawa then arrested Boddis. He did not pursue the accused.

[37] Cpl. Belfour kicked the door open and Cpl. Randhawa pointed to where the accused had taken flight. He did not see Cpl. Belfour after that.

[38] Boddis was arrested and searched. Located on his person were the following items:

• 2 cell phones

• Black garbage bags

• Bus pass

• Change

[39] Boddis was described as an elderly Caucasian male. He was wearing a grey track suit and pants. He had no ID on him.

[40] Cpl. Randhawa also stated that he did not see the taxi arrive at 35 Jansusie. His first observation of the taxi was when it was departing. Boddis had already exited the taxi and was in the vicinity of the back door of the building. He observed Boddis holding the package with both hands. Cpl. Randhawa never saw the package in the accused’s hands.

[41] Cpl. Randhawa was part of the search team that searched 35 Jansusie, unit 206. He set out the following with respect to that search:

• It was a two bedroom apartment with a small living room and a small kitchen

• In the freezer was a small bag of marijuana

• He seized a cell phone from the kitchen drawer filed as Exhibit 18

• Exhibit 19 is an Elections Ontario Card in the accused’s name with an address of 35 Jansusie, Unit 206

• Exhibit 20 was a CIBC line of credit with the accused’s name

• Exhibit 21 was a Wind Mobile phone bill with Bob Marley’s name on it with a Calgary Alberta address on it

• Exhibit 22 was a Wind Mobile statement in the name of John Peter, 21 John Street, Toronto

• Exhibit 23 was a fitness membership with the accused’s name and address at 35 Jansusie

• Exhibit 24 were handwritten notes

• 4 cell phones were seized and filed as Exhibit 25 to 28

Cross-examination:

[42] In cross-examination, Cpl. Randhawa confirmed that there was no expert handwriting analysis done with respect to the handwritten notes.

[43] Cpl. Randhawa also stated he did not see the taxi with Boddis in it arrive at 35 Jansusie. His first observation of the taxi was when it was departing the scene and Boddis had already exited.

[44] He did not see Boddis holding the package with both hands and he never saw the package in the accused’s hands at all.

[45] Cpl. Randhawa confirmed that he had no identification on his plain clothes that identified him as a police officer.

[46] He yelled, “Police – Stop”, while the door to the apartment building was being held open for him. He placed Boddis under arrest. The accused ran down the hall after seeing him.

Cst. Drew MacDougall:

[47] Cst. MacDougall has been with the RCMP for nine years. On the date in question, he was part of the surveillance team. He was in an unmarked vehicle and he was in plain clothes.

[48] His first observations on September 12, 2014 consisted of the following:

• He was observing Dundas Street and saw an older male, who looked unkempt and was wearing grey clothing

• This older male was carrying a garbage bag. The box was 2 ft. by 2 ft. by 2 ft. in dimension and the garbage bag was a regular black garbage bag

• He observed this male get into a taxi

• He followed the taxi to 35 Jansusie

• At 35 Jansusie, Cpl. Belfour called for a takedown

• He observed the accused running and Cpl. Belfour running after him

• He got out of his unmarked vehicle and yelled “Police stop”. The accused heard this and he changed directions running into another building’s courtyard.

• Another team member was there and tackled the accused

[49] The accused resisted arrest and kept his arms beneath him so the officers could not handcuff him. He was told to stop resisting and he was eventually handcuffed.

[50] The accused had on his person a $20 bill, and a set of keys in his hands.

[51] The following exhibits were filed through Cst. MacDougall:

• Exhibit 29 – ripped paper containing the tracking number 804952423148 David Galino– 1650 Dundas Street East, Mississauga, Unit 265, M4X 2Z3 6479242887 1 800 463 3339 Payment Confirmation 91620927.

• Exhibit 30 – Huawei cell phone INEI 861-864-000620135

• Exhibit 31 – Wind Mobile Pay As You Go receipt

• Exhibit 32 – Chatter Wireless Pay As You Go Receipt

• Exhibit 33 – ripped paper from bank account no. 308 525 2038

• Exhibit 34 – accused statutory release from both institutions issued April 28, 2014 and expiring May 26, 2015

• Exhibit 35 – money in the accused’s wallet totalling $820 CAN and $52 (USD)

Cross-examination:

[52] In cross-examination, the Officer acknowledged that the surveillance team operated in unmarked vehicles and in plain clothes. There were no police markings on their jackets.

When the accused was on his stomach at the time of arrest, his fists were up to his chest area underneath his body. In his left hand, he was holding the $20 bill and keys. This was also the evidence Cst. MacDougall gave at the preliminary hearing.

Cpl. William Belfour

[53] Cpl. Belfour has been with the RCMP for 15 years. On September 12, 2014, he was part of the surveillance team tasked to observe the controlled delivery. He observed a male, later identified as Boddis, at 1650 Dundas Street. Boddis had a box wrapped in a black garbage bag, got into a taxi and left the area.

[54] At 35 Jansusie, Cpl. Belfour was the eye on the taxi. He had to look over his right shoulder to see the taxi.

[55] He made the following observations:

• The taxi stopped at 35 Jansusie and there was one person in the rear passenger seat.

• The taxi was stopped for 30 seconds when the accused came out of the side door of 35 Jansusie. At this time Boddis got out of the taxi.

• The accused walked in front of Boddis toward the door. There was no interaction between Boddis and the accused. Boddis was carrying the box wrapped in the garbage bag.

[56] As the accused and Boddis were going into the building, Cpl. Belfour said he called for the take down. Before entering the building, he saw the accused take a hard look to his left where there would be traffic. He described it as a head tilt to his left. According to Cpl. Belfour, the accused appeared to be checking for any presence in the area, not just police presence.

[57] When Cpl. Belfour called for the takedown, he was still in the driver’s seat of his unmarked vehicle. He got out and went to the door. Cpl. Randhawa had entered the door and left it open.

[58] At the door, he was right on the heels of Cpl. Randhawa, Boddis and the accused. He could not see Boddis or the accused. Cpl. Randhawa was engaged with Boddis. The accused was running away from him so he called “Police Stop” in a raised voice.

[59] Cpl. Belfour assumes the accused heard him because he looked back at him as he started running.

[60] Cpl. Belfour said “Police Stop” multiple times during the chase.

[61] The accused was eventually apprehended and arrested. He was tackled to the ground and his arms were under his chest. Cpl. Belfour tasered the accused to gain pain compliance. He was fearful that the accused may have had a weapon.

Once the accused’s hands came out from under his chest, Cpl. Belfour did not observe anything in his hands.

Cross-examination:

[62] Cpl. Belfour acknowledged that when Boddis got out of the taxi at 35 Jansusie, Boddis alone handled the box. At no time did the accused handle the box. There was no interaction between Boddis and the accused regarding the package.

[63] He observed the accused’s behaviour as neutral and dispassionate. He had a placid look; he did not smile and looked unemotional.

[64] With respect to the accused looking hard to his left, there is no mention in Cpl. Belfour’s notes of a “hard” look made by the accused while he is approaching the taxi. There is also no mention in his notes that this look was characterized as counter surveillance as he stated in his examination-in-chief at trial.

Position of the Crown:

[65] The Crown’s theory is that this was a criminal enterprise involving the importation of cocaine from Peru and the parties to this scheme were the accused, Gani and Boddis.

[66] There was a sophisticated concealment of identities to evade detection. The shipment of cocaine would move from Gani to Boddis who then delivered it to the accused.

[67] The phone numbers of Gani, Boddis and the accused were registered to fake accounts and fake names as set out in the Agreed Statement of Facts.

[68] The Agreed Statement of Facts sets out the instances of direct contact between Gani and Boddis up to September 12, 2014.

[69] The Crown’s position is that the box wrapped in the garbage bag was destined to go to the accused. The evidence in its totality establishes that the accused was the intended recipient. The accused also had control of the apartment where the box was being delivered to. The Crown submits that the logical inference is that the package was being brought to the accused’s apartment. When he was arrested, the accused had keys in his hands.

[70] The Crown submits that the following elements indicate that the accused had control of the box:

• The pattern of delivery to the accused

• Boddis calls the accused before arriving at 35 Jansusie

• The accused comes out to meet Boddis when he arrives in the taxi

• The accused pays for the taxi fare

• The $800 the accused had on him was to pay Boddis for the delivery

• The accused had on his person the consignee information and the payment information. The accused had an interest in and a knowledge of the package as early as September 9, 2014

[71] The Crown submits that with respect to the importation it is irrelevant that the accused did not handle the package or take physical possession of it. Possession is not an element of importing.

[72] Further, with respect to the count for possession for the purpose of trafficking, the accused does not have to handle the box to be in joint possession.

[73] The Crown argues that the accused’s post-offence conduct of fleeing from the scene is also relevant to the issue of knowledge. This flight is conduct that infers guilt. There is no other equal inference.

[74] The Crown also points to the significant value of the cocaine as circumstantial evidence supporting the accused’s knowledge and participation in this importation scheme.

Position of the Defence:

[75] With respect to the conspiracy count the defence submits that the Crown must prove that the accused knew there was cocaine in the box.

[76] With respect to the possession count, the defence submits that the Crown has not established knowledge, consent and control.

[77] The telephone number of 647-924-2887 found on the package and in the name of David Galino at 1650 Dundas Street had no contact with the accused.

[78] The phone numbers set out in the Agreed Statement of Facts are registered to other identities but there is no evidence that these are fake names or that they do not exist. There is no evidence that these phones were always in the possession of the accused, Boddis or Gani. There is no evidence that it is the accused who is in fact making the calls.

[79] The defence points to the following evidence in the Agreed Statement of Facts to support its position regarding the calls:

Para 25: calls between Boddis and John Haigens. There is no evidence as to who John Haigens is and there is no evidence as to who is in possession of the phones.

Paras 3, 26 and 27: contact between Boddis’ phone and the accused’s phone. Again the defence submits that there is no evidence as to who is in possession of the phones and the mere fact of contact has no probative value

Para 32: there is no contact between the accused’s phone and Gani’s phone

[80] The defence submits that there is no evidence the accused ever contacted FedEx. The voice of the accused was not identified as the caller on the call recording of September 9, 2014.

[81] At the time the accused meets Boddis getting out of the taxi, there is no real interaction between them.

[82] The defence submits that the Crown’s position on post-offence conduct should not be accepted. The police were not in uniform. They did not have on visible police badges. Their vehicles were unmarked. The accused was on parole at the time. There are other equally plausible explanations for his flight.

[83] The defence submits that there is no evidence that the accused is the only person who lives in that apartment building. There is no evidence that Boddis did not also live there. If he did, an inference could be drawn that the box was going to his own apartment.

[84] With respect to the piece of paper found on the accused, Exhibit 29, at no time was the handwriting analyzed to establish the note was written by the accused. The paper was not fingerprinted. Exhibit 24, the handwritten notes found in the accused’s apartment, were also not analyzed or fingerprinted.

[85] With respect to the keys found in the accused’s hand when he was tackled and apprehended, there is no evidence those keys were in fact for his apartment.

[86] The behaviour of the accused as observed by Cpl. Belfour does not depict anything unusual. Although he testified about the accused taking a hard look to his right, the Officer made no mention of that observation in his notes. The accused’s behaviour was neutral, dispassionate, and showed placid with no emotion. It was not strange or secretive. He was not nervous or anxious.

[87] With respect to the issue of joint possession, the defence argues that all the elements of knowledge, consent and control must be present. The defence submits that mere indifference or even possible acquiescence is not enough.

[88] Although the piece of paper located on the accused denotes possible knowledge of the package, the Crown has not established that the accused knew the package contained a controlled susbstance. The package also contained legitimate items as well.

Analysis

[89] I will firstly set out the essential elements of each of the charges that the Crown must prove beyond a reasonable doubt.

Count 1 Importing a Controlled Substance:

Essential elements

1. The accused imported a substance into Canada.

2. The substance was a controlled substance

3. The accused knew that the substance was a controlled substance and

4. The importing was intentional.

Count 2 Possession of cocaine for the Purpose of Trafficking:

Essential elements:

1. The accused was in possession of a substance

2. The substance was cocaine

3. The accused knew that the substance was cocaine and

4. The accused had possession of the cocaine for the purpose of trafficking.

Count 3 Conspiracy to Import Cocaine:

Essential Elements:

1. There was a conspiracy between two or more persons

2. The conspiracy was to import cocaine into Canada and

3. The accused, Francis Ezechukwu, was a member of that conspiracy.

[90] It is important to set out that where the case for the Crown is based on circumstantial evidence, in order to find the accused guilty, his guilt must be the only rational conclusion that can be drawn from the whole of the evidence.

[91] In R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, Cromwell J. reviews the legal principles relevant to the court’s assessment of circumstantial evidence and the relationship between circumstantial evidence and proof beyond a reasonable doubt. Justice Cromwell sets out the following at paras. 35 to 43:

At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts”: see R. v. McIver, 1965 26 (ON CA), [1965] 2 O.R. 475 (C.A.), at p. 479, aff’d without discussion of this point 1966 6 (SCC), [1966] S.C.R. 254. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.

I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, 1938 14 (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff’d 1938 7 (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, 1971 13 (SCC), [1972] S.C.R. 2, at p. 8. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

I have found two particularly useful statements of this principle.

The first is from an old Australian case, Martin v. Osborne (1936), 55 C.L.R. 367 (H.C.), at p. 375:

In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. [Emphasis added.]

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

The second is from R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138, at paras. 22 and 24-25. The court stated that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences”; that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible.

Where the line is to be drawn between speculation and reasonable inferences in a particular case cannot be described with greater clarity than it is in these passages.

[92] In R. v. Morris 2017 ONSC 835, [2017] O.J. No. 535, M.A. Code J. also dealt with the law relating to circumstantial evidence at paras. 103 to 106 as follows:

To satisfy the Crown’s burden of proof in a circumstantial case, the inference of guilt must be the only reasonable inference arising from the evidence. Therefore, in the context of the knowledge and control issues in the case at bar, the Crown cannot succeed unless the only reasonable inference is that a particular accused had knowledge and control in relation to a particular seizure. See: R. v. Cooper (1978), 1977 11 (SCC), 34 C.C.C. (2d) 18 at 33 (S.C.C.); R. v. Elmosri (1985), 1985 3545 (ON CA), 23 C.C.C. (3d) 503 at 506 (Ont. C.A.); R. v. Griffin and Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 at 303 (S.C.C.); R. v. Villaroman (2016), 2016 SCC 33, 338 C.C.C. (3d) 1 at paras. 28-30 (S.C.C.).

The first step in a circumstantial case, is to determine what primary facts have been proved. The second step is to determine what reasonable and non-speculative inferences flow from the primary facts. See: R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 at 31-2 (S.C.C.); R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 at 209 (Ont. C.A.); R. v. Figueroa (2008), 2008 ONCA 106, 232 C.C.C. (3d) 51 at paras. 33-5 and 42 (Ont. C.A.); R. v. Alexander (2006), 70 W.C.B. (2d) 321 (Ont. S.C.J.).

As in most circumstantial cases, some of the primary facts in this case do not support an inference of guilt or they are open to innocent explanations, when viewed in isolation. The proper way to assess the cogency of any suggested rational inference, or any suggested innocent explanation, is not by analyzing the primary facts piecemeal. As Taschereau J. put it, speaking for six members of the Court in R. v. Coté (1941), 1938 44 (SCC), 71 C.C.C. 75 at 76 (S.C.C.):

It may be and such is very often the case, that the facts proven by the Crown, examined separately have not a very strong probative value, but all the facts put in evidence have to be considered each one in relation to the whole, and it is all of them taken together, that may constitute a proper basis for conviction. [Emphasis added.]

Also see: R. v. Morin (1988), 1988 8 (SCC), 44 C.C.C. (3d) 193 at 205-211 (S.C.C.); R. v. Bouvier (1984), 1984 3453 (ON CA), 11 C.C.C. (3d) 257 at 264-6 (Ont. C.A.), aff’d. 1985 17 (SCC), 22 C.C.C. (3d) 576 n (S.C.C.); R. v. J.M.H., 2011 SCC 45, 2011 S.C.C. 45; R. v. Morin (1992), 1992 40 (SCC), 76 C.C.C. (3d) 193 at 200 (S.C.C.); R. v. Lynch, Malone and King (1978), 1978 2347 (ON CA), 40 C.C.C. (2d) 7 at 19 (Ont. C.A.).

Finally, it must be remembered that a potential inference of guilt will only satisfy the Crown’s burden of proof if it is the only reasonable inference arising from the evidence. However, inferences consistent with innocence do not have to arise from proven facts and they do not have to be the only reasonable inferences. Inferences consistent with innocence can arise from a lack of evidence and they may simply be reasonable possibilities, provided they are based on logic, common sense, and experience and not on speculation. See: R. v. Villaroman, supra at paras. 35-43; R. v. Finlay and Grellette (1985), 1985 117 (ON CA), 23 C.C.C. (3d) 48 at 58 (Ont. C.A.); R. v. Figueroa, supra.

[93] The Crown points to the following factors to ground its position that the package sent from Lima, Peru was destined for the accused:

• The phone seized from the accused at the time of his arrest has the following subscriber information for the number 647-717-5881:

Joe Brown 151 Dan Leckie Way Toronto Ontario M5V 4B2

• The Crown submits that this is a fake name

• There is direct telephone contact between Gani’s phone and Boddis’ phone numerous times up to and including September 12, 2014

• From August 24, 2014 to September 12, 2014, Boddis’ phone was in contact with the accused’s phone 31 times

• On September 12, 2014, Boddis’ phone was in contact with the accused’s phone 6 times

• The accused lived at the apartment building where the package was intercepted by the police. The only inference is the package was being delivered to him

• The accused paid for the taxi fare

• The accused had on his person a piece of paper with the consignee information

• The flight from the scene by the accused is post-offence conduct pointing only to guilt

• The significant value of the cocaine

• The accused had $820 CAN and $52. US funds in his wallet, the logical inference being that these funds were to be used to pay Boddis for the delivery.

Phone Calls:

[94] The defence points out that there is an absence of evidence that the subscriber information associated to the names Steve Smith, Paul Jones, Ron Brown or Joe Brown are fake names. The phones are registered to these names but the Agreed Statement of Fact does not set out that these are fake names or that these individuals do not exist. Further, the defence points out that there is no concession made in the Agreed Statement of Facts that the phones seized and analyzed were at all times in the possession of Gani, Boddis or the accused. There is no admission that the accused is the person making the calls on that phone.

[95] At paragraph 25 of the Agreed Statement of Facts it states:

During the period of August 24, 2014 and September 12, 2014, Boddis’ Phone contacted John Haigens’ Phone more frequently than any other number (185 times). On September 12, 2014, Boddis’ Phone was in contact with John Haigens’ Phone six times as follows:

a) Incoming call at 10:24 a.m.

b) Outgoing call at 10:27 a.m.

c) Incoming call at 10:34 a.m.

d) Incoming call at 10:42 a.m.

e) Outgoing call at 10:45 a.m.

f) Outgoing call at 11:48 a.m.

The defence points out that there is no evidence as to the identity of John Haigens.

[96] The defence points out further that, as set out at paragraph 32 of the Agreed Statement of Fact, there is no contact between the accused’s phone and Gani’s phone.

[97] There is also no evidence that the accused called FedEx on that September 9, 2014 call recording and that it was the voice of the accused.

[98] There is also no surveillance evidence of the accused at the time when the police observe Gani and then Boddis entering a taxi.

35 Jansusie Road

[99] There is an absence of evidence as to whether Boddis also resides at that apartment. The key located on the accused when he was tackled and arrested was never checked by the police to confirm or determine for which apartment unit, if any, it applied to.

Piece of Paper on Accused with the Delivery Instructions

[100] The Crown points to this seizure from the accused’s person as the most compelling piece of evidence to establish that the accused knew this package had arrived, had an interest in its arrival and knew that it contained a large quantity of cocaine that was destined for him. It suggests that the $800 on his person was to be used to pay Boddis for delivering the package to him.

[101] In support of its position, the Crown refers the court to the decision of Hill J. in R. v. Ukwuaba, 2015 ONSC 2953, [2015] O.J. No. 2349, at paras. 107 to 112:

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 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”).

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 1885 (ON CA), 43 O.R. (3d) 178 (C.A.), at p. 197.

The “essence of criminal conspiracy is proof of agreement” to commit an unlawful act: R. v. Papalia; R. v. Cotroni, 1979 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 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.

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 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.

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 775 (ON CA), 14 O.R. (2d) 173 (C.A.), at p. 197; R. v. Magno, 2015 ONCA 111, at paras. 66-70.

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.

[102] It is important when considering the Ukwuaba decision to set out what factual findings and inferences Justice Hill drew from the evidence he heard at trial. Justice Hill sets these out at para. 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.

[103] I will deal with each count separately beginning with the count for conspiracy to import cocaine.

Issue #1: Was there a conspiracy between two or more persons?

[104] In R. v. Buttazzoni, 2015 ONSC 6411. [2015] O.J. No. 6198, Daley RSJ., thoroughly reviews the principles relevant to conspiracy to import at paras. 41 to 56 as follows:

Proof of a criminal conspiracy requires evidence of an agreement involving two or more persons to complete an illegal act, or to commit a lawful act, but through unlawful means. The essential elements of the offence of conspiracy are:

(1) that there was an agreement between two or more persons;

(2) that the agreement was to commit an indictable offence; and

(3) that the accused was a party to that agreement: R v. Carter 1982 35 (SCC), [1982] 1 S.C.R. 938; United States Of America v. Dynar, 1997 359 (SCC), [1997] 2 S.C.R. 462 at para. 86.

It is not necessary that it be demonstrated that each co-conspirator was aware of all of the details of the common scheme, but simply that each had knowledge of its general nature.

It is well-established that the parties to such an agreement need not have all been charged or on trial at the same time; or that the agreement include terms as to the duration of the agreement or the roles of those who are parties to the agreement; or that all participants have to join the agreement at the same time and stay involved in the agreement for the same period or leave the agreement at the same time.

Although a meeting of the minds between the conspirators, with respect to the object of their agreement, must be established, the Crown need not prove that each conspirator was aware of or communicated with, all other conspirators: R. v. Longworth et al. (1982), 1982 3764 (ON CA), 67 C.C.C. (2d) 554 (Ont. C.A.).

In determining whether the requisite actus reus of the offence of criminal conspiracy is present, the inquiry is whether an agreement was reached by the conspirators and not what each conspirator may have done in their efforts to realize their common goal. The fact that one or more parties to a conspiracy agreement is kept in the dark as to the relationship with and as between other parties to the agreement, and the fact that one or more parties to the agreement has no contact with other parties to the agreement, are strategies that may be expected to characterize a conspiracy to import drugs: R. v. Nieme, (2006) 2006 13949 (ON CA), 208 C.C.C. (3d) 119 at paras. 65 – 66. (Ont. C.A.).

In considering whether the required actus reus exists, the focus of the examination is on whether an agreement was reached by the conspirators and not as to what each conspirator may have done in their efforts to realize their common goal. The acts of the co-conspirators in carrying out the planned illegal act are not necessarily irrelevant , as the acts carried out by the co-conspirators can often furnish evidence of the existence of an agreement: R. v. Gassyt, 1998 5976 (ON CA) at para. 17. The offence of conspiracy is more likely to be proven by evidence of overt acts by the conspirators, from which the prior agreement can logically be inferred.

In its decision in R. v. Carter, 1982 35 (SCC), [1982] 1 S.C.R. 938 the Supreme Court of Canada established a process for the consideration of evidence in respect of a charge of criminal conspiracy and for the purpose of guiding the determination as to whether or not the co-conspirator’s exception to the hearsay rule is engaged.

McLachlin C. J. in R. v. Mapara 2005 SCC 23, [2005] 1 S.C.R. 358 summarized the co-conspirator’s exception to the hearsay rule in Carter at para. 8 as follows:

The co-conspirators’ exception to the hearsay rule may be stated as follows: “Statements made by a person engaged in an unlawful conspiracy are receivable as admissions as against all those acting in concert if the declarations were made while the conspiracy was ongoing and were made towards the accomplishment of the common object” (J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2^nd ed. 1999), at p. 303). Following Carter, co-conspirators’ statements will be admissible against the accused only if the trier of fact is satisfied beyond a reasonable doubt that a conspiracy existed and if independent evidence, directly admissible against the accused, establishes on a balance of probabilities that the accused was a member of the conspiracy.

A co-conspirator’s guilty plea or statement to the police is not admissible as against other co-conspirators as these are after-the-fact statements or confessions and were not made in furtherance of the conspiracy alleged.

The trier of fact, whether a judge or jury, must be instructed to follow these steps:

(1) The trier of fact is to consider whether on all the evidence he is satisfied beyond a reasonable doubt that the alleged conspiracy in fact existed. If he is not so satisfied, then the accused must be acquitted;

(2) If the trier finds that a conspiracy, as alleged, did exist, then he must review all of the evidence that is directly admissible against the accused and decide on a balance of probabilities whether or not he is a member of the conspiracy;

(3) If satisfied on the balance of probabilities that the accused is a member of conspiracy alleged, the trier is then entitled to apply the hearsay exception and consider the acts and declarations made by the co-conspirators in furtherance of the conspiracy, as evidence against the accused on the issue of his guilt beyond a reasonable doubt;

(4) If the trier of fact determines that there is sufficient evidence directly admissible against the accused, making his participation in the conspiracy probable and thereafter applying the hearsay exception, the trier must still be satisfied beyond a reasonable doubt as to the existence of the conspiracy and the accused’s membership in it: The Law of Evidence, Fifth Edition, Paciocco and Stuesser, Irwin Law, 2008.

Thus, steps one and three in the Carter process must not be conflated.

The co-conspirator’s exception to the hearsay rule applies not only to a conspiracy charge but to acts done or words spoken in furtherance of a common unlawful design: R v. Koufis 1941 55 (SCC), [1941] S.C.R. 481; R. v. Baron 1976 775 (ON CA), [1976] O.J. No. 2304 (Ont. C.A.).

As to the first part of the three part Carter process, namely the determination as to whether or not a conspiracy truly exists, that is did two or more persons agree to commit the common crime, in considering this the court must examine “all of the evidence”: Carter – which has been held to mean as referring to both the evidence otherwise admissible against the alleged co-conspirators and the evidence contingently admissible under the co-conspirators exception: R. v. Smith [2007] NSCA 19 at paras. 225-233; R. v. Wu, [2010] A.J. No. 1327 (C. A.) at paras. 40 – 41; R. v. Puddicombe , 2013 ONCA 506 at paras. 111-112.

After the trier of fact determines beyond a reasonable doubt that a conspiracy did exist, the second part of the Carter process requires a determination as to whether or not the accused was a member of the conspiracy. In this part of the process, the trier must only consider evidence that is admissible as against each accused, and where there is more than one accused, the analysis must be performed for each accused: R. v Gagnon , 2000 16863 (ON CA), [2000] O.J. No. 3410 (C.A.) at paras. 61 – 62.

The Crown’s burden in this second part of the Carter process is to prove on a balance of probabilities that an accused was a member of the conspiracy. The trier of fact is not to consider the evidence against the particular accused in isolation. The acts and utterances of the particular accused under consideration must be examined in the context of the actions and declarations of co-conspirators, for the limited purpose of establishing the context within which the accused’s own acts and statements are to be understood. Thus, the actions of possible co-conspirators and the fact of certain conversations having taken place would provide a context in which the words and actions of the accused are to be evaluated: R v. Filiault, 1981 3165 (ON CA), [1981] O.J. No. 132 (C.A.) at paras. 14 and 17, aff’d R. v. Kane , 1984 72 (SCC), [1984] 1 S.C.R. 387; R. v. Gagnon supra at para. 51.

As to the third and final step in the Carter process, having decided that the accused being considered was, on the balance of probabilities, a member of the conspiracy, the trier of fact would then be entitled to apply the hearsay exception and consider the acts and declarations made by co-conspirators, in furtherance of the conspiracy, as evidence against the accused under consideration, on the issue of his guilt beyond a reasonable doubt.

[105] When considering this essential element I am satisfied that there was an agreement between at least two persons. The whole of the evidence, including the Agreed Statement of Facts, establishes beyond a reasonable doubt that such an agreement was in place.

[106] The facts agreed to include the following, which ground the finding that an agreement existed between two or more persons:

• During the period of June 24, 2014 and September 12, 2014, Gani’s phone was used to contact 110 unique telephone numbers, one of which included Boddis’ phone. Contact with Boddis’ phone began in July 2014 and continued frequently until September 11, 2014.

This timeline is important as the package containing the cocaine arrived at the Lester B. Pearson Airport on or before September 8, 2014.

• During the same period, June 24, 2014 to September 12, 2014, Gani’s phone and Boddis’ phone were in contact with seven common contact numbers.

• On September 12, 2014, Gani’s phone and Boddis’ second phone were both in contact with telephone number 647-409-9174, which his registered to the subscriber named Frank Jones. Gani’s phone called Frank Jones’ phone at 8:08 a.m. and Frank Jones’ phone called Gani’s phone at 1:322 p.m.

This timeline is also important as the controlled deliveries took place on September 11, 2014 and September 12, 2014. Two delivery attempts took place on September 11, 2014. Following each of these two attempts, the officers returned the package to Cst. Benedet’s care and control. The package was returned to Cst. Benedet for the purpose of the final controlled delivery which took place on September 12, 2014.

• On September 12, 2014, Boddis’ second phone contacted Frank Jones’ phone seven times as follows:

(i) Outgoing call at 10:37 a.m.

(ii) Outgoing call at 10:38 a.m.

(iii) Outgoing call at 11:12 a.m.

(iv) Outgoing call at 11:13 a.m.

(v) Outgoing call at 11:16 a.m.

(vi) Outgoing call at 11:47 a.m.

(vii) Outgoing call at 1:30 a.m.

• During the period of August 2014 and September 12, 2014, Boddis’ phone was used to contact eight unique telephone numbers. Only three of these numbers were contacted more than once. These include 647-717-5876 and Ezechukwu’s phone.

• The subscriber information for telephone number 647-717-5876 is as follows:

John Haigens

151 Dan Leckie Way

Toronto, Ont. M5V 4B2

• During the period of August 24, 2014 and September 12, 2014, Boddis’ phone contacted John Haigens’ phone 185 times. On September 12, 2014, Boddis’ phone was in contact with John Haigens’ phone six times as follows:

(i) Incoming call at 10:24 a.m.

(ii) Outgoing call at 10:27 a.m.

(iii) Incoming call at 10:34 a.m.

(iv) Incoming call at 10:42 a.m.

(v) Outgoing call at 10:35 a.m.

(vi) Outgoing call at 11:48 a.m.

Again, it is important to keep in mind the dates of arrival of the package and the date of the controlled delivery, namely September 12, 2014.

• Boddis’ phone was in contact with Ezechukwu’s phone since at least August 27, 2014. During the period of August 24, 2014 and September 12, 2014, Boddis’ phone contacted Ezechukwu’s phone 31 times. On September 12, 2014, Boddis’ phone was in contact with Ezechukwu’s phone six times as follows:

(i) Outgoing call at 10:28 a.m.

(ii) Incoming call at 10:46 a.m.

(iii) Incoming call at 10:48 a.m.

(iv) Incoming call at 11:50 a.m.

(v) Outgoing call at 11:54 a.m.

(vi) Outgoing call at 12:31 a.m.

• During the period of August 24, 2014 and September 12, 2014, Ezechukwu’s phone was used to contact eight unique numbers. Only two of these telephone numbers were contacted more than once: John Haigens was contacted 108 times; Boddis’ phone was contacted 31 times. On September 12, 2014, Ezechukwu’s phone was in contact with Haigens’ phone five times as follows:

(i) Outgoing call at 7:56 a.m.

(ii) Outgoing call at 10:32 a.m.

(iii) Outgoing call at 10:39 a.m.

(iv) Incoming call at 10:47 a.m.

(v) Incoming call at 11:49 a.m.

[107] In addition to these facts as set out in the Agreed Statement of Facts, Cpl. Singh’s testimony with respect to the September 12, 2014 controlled delivery is also relevant. He testified that on September 12, 2014, a last attempt was made to deliver the package. The new cover person was Frank Velasio. At 8:49 a.m. a male by the name of David called and said he was coming to sign for the package. David then called again and said he would be at unit 265 and would accept the package. At 11:24 a.m., Frank Velasio arrived at 1650 Dundas Street East with the surveillance team. The recipient as noted on the package was:

David Galino-Peruvian Arts

1650 Dundas Street East

Mississauga, Ontario

Phone Number 647 924 2887

[108] On September 12, 2014 the cover arrived with the package in a FedEx truck. At 11:43 a.m., the cover walked to 1650 Dundas St. East. The package was intercepted by a white male, David Darren Gani, a.k.a. Gilano. Gani received the package from the cover. A black garbage bag was put over the package by Randy Lee Boddis. Gani went into a small variety store where he was arrested by Cpl. Singh. Boddis got into a taxi with the package and left that area.

I am satisfied beyond a reasonable doubt that considering the evidence in its totality, there was an agreement between at least two persons to import this package from Peru to Canada.

Issue #2: Was there a Conspiracy to Import Cocaine into Canada?

[109] The crime of conspiracy was complete when the members agreed to commit the crime. It is not essential for the Crown to prove that the crime was ultimately committed. In circumstances where the importation of the cocaine was in fact committed, the trier of fact, if satisfied beyond a reasonable doubt, may conclude that that crime was committed as a result of the prior agreement.

[110] Considering the totality of the evidence, I am satisfied beyond a reasonable doubt that the conspiracy was for the purpose of committing the indictable offence of importing a controlled substance, in this case, cocaine, into Canada contrary to section 6(1) of the Controlled Drugs and Substsances Act, S.C. 1996, c.19. The Agreed Statement of Facts, along with the testimony of the Officers establishes that this essential element has been proven.

Issue #3: Was the Accused a member of the Conspiracy?

[111] The issue of the accused’s membership in the conspiracy is the main issue that has to be resolved. This question involves two steps. The first step in the analysis relates to a determination, on a balance of probabilities, based on the accused’s words and conduct only, as to whether he was a probable member of the conspiracy.

[112] Following this review and assessment of that evidence, if the trier of fact determines that an accused was probably a member of the conspiracy, they may then consider all of the evidence including anything that any other person who was probably a member of the conspiracy said or did while the conspiracy was ongoing and for the purpose of achieving its objective or purpose. The evidence must be assessed in its totality to determine if the Crown has proven beyond a reasonable doubt that the accused was a member of the conspiracy.

Step One

[113] In considering the evidence with respect to the accused’s probable membership in the conspiracy, only his own words and acts may be considered. However, they are considered within the context of the words and acts of the other alleged members of the conspiracy. In this regard, therefore, the following evidence is relevant:

• The number of telephone exchanges during the relevant time period up to and including the day of the controlled delivery, namely September 12, 2014. These exchanges included contact with Gani and Boddis, who received the package containing the cocaine from the cover.

• The accused also had on his person $820 CAD and $52 (USD). The taxi driver, Jaswinder Singh, testified that on his way to the accused’s apartment building, the passenger subsequently identified as Boddis, made a phone call and said “almost there bring the money”. The seizure of the funds on the accused’s person has to be considered within that context.

• It can be reasonably and logically inferred that the accused was aware that Boddis would be attending at his apartment because he knew to come downstairs to meet Boddis when he arrived in the taxi. Although the contents of the phone call in the taxi cannot be considered for the truth of its contents the fact of a phone call being made is relevant and probative.

• The accused paid for the taxi fare.

• The accused had on his person when searched a ripped paper, containing the following information from the package:

Tracking number 804952423148

David Galino – 1 650 Dundas Street East, Mississauga, Unit 265 M4X 2Z3

Phone No. 647-924-2887 1-800-463-3339 Payment Confirmation 91620927

• The post-offence conduct can only be explained as circumstantial evidence pointing to the accused’s involvement in the offence. Although there is evidence that the accused was on parole and the conditions of the parole were still in effect, there is no evidence establishing that simply being where he was at his own apartment building was in breach of any of the conditions. I am satisfied that the accused would have heard the police yell “Police Stop” more than once as he fled.

[114] All of this evidence is sufficient to establish that the accused was probably a member of the conspiracy.

Step Two:

[115] It is now necessary to determine whether or not, on a review and assessment of all of the evidence, including the words and acts of any other person who was probably a member of the conspiracy, the Crown has established beyond a reasonable doubt that the accused is a member of the conspiracy.

[116] I am satisfied that the accused was a member of the conspiracy and the totality of the evidence called at trial supports this finding. The following evidence anchors my conclusion that the Crown has established beyond a reasonable doubt that the accused was a member of the conspiracy:

• The evidence set out at para. 113 of these reasons.

• The facts agreed to in the Agreed Statement of Facts filed as Exhibit 1.

• The pattern of delivery from Gani to Boddis to the accused.

• The call made by Boddis while in the taxi and on his way to the accused’s apartment. The statement by Boddis while on the phone in the taxi cannot be used for the truth of its content. The Crown agreed that the words spoken were only being introduced for narrative. As a result, the evidence that a phone call was made is relevant; but the words spoken cannot be considered by the Court.

• The accused knew to come down and meet Boddis when he arrived at his apartment in the taxi.

• The accused paid the $40 taxi fare.

• The accused let Boddis into the apartment building.

• The accused had on his person the consignee’s information and the payment information relating to the package.

• When Gani was searched incident to arrest the following items were seized from him:

• Invoice from the package

• The FedEx Airway Bill

• The pink slip and receipt

• The cardboard ripped off the package by Gani

• A piece of paper with a phone number similar to the number on the box for the recipient.

• A Rogers’ invoice in the name of David Galino at no. 265, 1650 Dundas Street East.

Post Offence Conduct

[117] With respect to post offence conduct, the defence refers the court to the decision in R. v. Arcangioli, 1994 107 (SCC), [1994] S.C.J. No. 5 (S.C.C.), at paras.: 42 to 45:

A similar situation arose in United States v. Myers, 550 F.2d 1036 (5th Cir. 1977). The accused was wanted for two robberies; one was committed in Pennsylvania and the other in Florida. The reported decision concerns the latter. There was evidence that the accused fled when approached by FBI agents. Clark J. canvassed the law, adopted the view expressed in McCormick on Evidence (2nd ed. 1972), § 271, at p. 655, and concluded that the proper approach determines whether there is sufficient evidence in support of drawing four inferences:

(1) from the accused's behavior to flight,

(2) from flight to consciousness of guilt,

(3) from consciousness of guilt to consciousness of guilt concerning the offence in question,

(4) from consciousness of guilt of the offence in question to actual guilt of the offence in question.

Clark J. held that the third inference could not be drawn. Since the accused knew that he was wanted for a robbery committed in Pennsylvania, the possibility existed that he fled solely out of consciousness of guilt with respect to it, rather than the Florida robbery. To be useful, flight must give rise to an inference of consciousness of guilt in regard to a specific offence.

The test articulated in Myers provides helpful guidance on the inferences that may be drawn from evidence of an accused's flight (or other possible indicia of consciousness of guilt, such as lying). Such evidence can serve the function of indicating consciousness of guilt only if it relates to a particular offence. Consequently, where an accused's conduct may be equally explained by reference to consciousness of guilt of two or more offences, and where an accused has admitted culpability in respect of one or more of these offences, a trial judge should instruct a jury that such evidence has no probative value with respect to any particular offence.

Those principles can be applied to the facts of this appeal. The trial judge simply told the jury that people often flee the scene of a crime even if they are entirely innocent. Having said what she did upon this matter, she also should have told the jury that because the appellant's flight was equally consistent with both common assault and aggravated assault, it could not be evidence of guilt of the latter. Any inference to be drawn from flight disappears when an explanation for such flight is available, as it is here.

The jury should have been warned against drawing any inference from the fact of flight. The trial judge's direction that even innocent people sometimes flee the scene of a crime was insufficient in light of the fact that the appellant admitted that he had committed common assault by punching Heffern, and thus had reason to flee. The issue was not whether the appellant fled because he was guilty or because he panicked despite being innocent. Rather, the issue was whether the appellant's flight indicated a consciousness of guilt arising from the fact that he had stabbed Heffern or rather from the fact that he had punched Heffern. And on that question, the evidence could have no probative value.

[118] I do not agree with the position of the defence on this issue. When the accused ran from the Officers he was on parole and his conditions were still in effect. However, there is no evidence that his actions prior to fleeing were in any way a breach of the conditions of his parole. Exhibit 34 sets out the parole conditions as follows:

(a) on release, travel directly to your place of residence, as set out in your release certificate, and report to your parole supervisor immediately and thereafter as instructed by your parole supervisor;

(b) remain at all times in Canada within the territorial boundaries fixed by your parole supervisor;

(c) obey the law and keep the peace;

(d) inform your parole supervisor immediately on arrest or on being questioned by the police;

(e) at all times carry the release certificate and the identity card provided by the releasing authority and produce them on request for identification to any peace officer or parole supervisor;

(f) report to the police if and as instructed by your parole supervisor;

(g) advise your parole supervisor of your address of residence on release and thereafter report immediately of:

(i) Any change in your address of residence,

(ii) Any change in your normal occupation, including employment, vocational or educational training and volunteer work,

(iii) Any change in your domestic or financial situation (of the offender), and on request of the parole supervisor, any change that you (the offender) have knowledge of in your family situation (of the offender), and

(iv) Any change that may reasonable be expected to affect your ability to comply with the conditions of statutory release;

(h) not own, possess or have the control of any weapon, as defined in section 2 of the Criminal Code, except as authorized by your parole supervisor.

Special Conditions Effective Date End Date

Y M D Y M D

Financial Disclosure 2014/04/28 2015/05/26

Provide Documented Financial

Information to the Satisfaction of your

Parole supervisor as per a schedule to

Be determined by your parole supervisor

Seek or Remain Employed 2014/04/28 2015/05/26

Remain gainfully employed or

Continue to actively search for employment

Or pursue academic upgrading. Submit proof of

These activities to your parole supervisor.

Avoid certain persons 2014/04/28 2015/05/26

Not to associate with any person

You know or have reason to believe is involved in criminal activity

Avoid certain persons 2014/04/28 2015/05/26

CONDITIONS OF STATUTORY RELEASE AND ACKNOWLEDGEMENT:

I fully understand and accept the conditions of my statutory release (attached), any special conditions noted below or attached and any instructions given by my parole supervisor in respect to any condition of my release. I also understand that if I violate them, my statutory release may be suspended and terminated or revoked.

[119] The Crown submits that the accused would have clearly heard the police yell out “Police stop” and only ran because he knew there was cocaine in the package. It is true that the police officers were not wearing uniforms, they were in unmarked vehicles and their badges were not visible. It is important to note, however, that evidence of post-offence conduct is not to be examined separately and apart from the rest of the evidence in the case; but rather it must be assessed within the context of the totality of the evidence called at trial. I accept the testimony of the Officers that they yelled, “Police Stop” on more than one occasion and that the accused would have heard them.

[120] In R. v. White, 1998 789 (SCC), [1998] 2 S.C.R. 72 (S.C.C.), the Court stated the following at paras. 20 to 22:

Evidence of this kind is often called “consciousness of guilt evidence”, since it is introduced to show that the accused was aware of having committed the crime in question and acted for the purpose of evading detection and prosecution. That label is somewhat misleading and its use should be discouraged. “Consciousness of guilt” is simply one inference that may be drawn from the evidence of the accused’s conduct; it is not a special category of evidence in itself. Moreover, the words “consciousness of guilt” suggest a conclusion about the conduct in question which undermines the presumption of innocence and may prejudice the accused in the eyes of the jury. As has been suggested by the Ontario Court of Appeal, to the extent a general description is necessary, the use of more neutral language such as “evidence of post-offence conduct” or “evidence of after-the-fact conduct” is preferable: Peavoy, supra, at p. 238. Regardless of which phrase is used, however, the focus of the jury should be kept on the specific items of evidence at hand -- the act of flight, the false statement, as the case may be -- and on the relevance of those items to the ultimate issue of guilt or innocence.

Evidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence. In some cases it may be highly incriminating, while in others it might play only a minor corroborative role. Like any piece of circumstantial evidence, an act of flight or concealment may be subject to competing interpretations and must be weighed by the jury, in light of all the evidence, to determine whether it is consistent with guilt and inconsistent with any other rational conclusion.

It has been recognized, however, that when evidence of post-offence conduct is introduced to support an inference of consciousness of guilt it is highly ambiguous and susceptible to jury error. As this Court observed in Arcangioli, the danger exists that a jury may fail to take account of alternative explanations for the accused’s behaviour, and may mistakenly leap from such evidence to a conclusion of guilt. In particular, a jury might impute a guilty conscience to an accused who has fled or lied for an entirely innocent reason, such as panic, embarrassment or fear of false accusation. Alternatively, the jury might determine that the conduct of the accused arose from a feeling of guilt, but might fail to consider whether that guilt relates specifically to the crime at issue, rather than to some other culpable act.

[121] In conclusion, I am satisfied beyond a reasonable doubt that the Crown has proven the guilt of Mr. Ezechukwu of conspiracy to import cocaine into Canada.

[122] As noted by Justice Cromwell in Villaroman inferences other than guilt must be reasonable given the evidence and absence of evidence assessed logically and in light of human experience and common sense. All of the facts have to be considered each one in relation to the whole.

[123] The false address of 1650 Dundas St. East with the name Peruvian Arts was designed and calculated by the accused to avoid detection by not using his own name and address.

[124] The accused knew Boddis was delivering the package to him. The accused was expecting him and knew to come down and meet him at the back of his building, pay for the tax and let him in.

Importing a Controlled Substance into Canada

[125] The essential elements of this offence include the following:

1. The accused important a substance into Canada

2. The substance was a controlled substance as set out in the CDSA

3. The accused knew the substance was a controlled substance

4. The accused intentionally imported the controlled substance into Canada

[126] I am satisfied considering the total body of evidence called at trial that the accused was one of the persons responsible for importing the cocaine into Canada. I agree with the Crown that the following evidence establishes the package containing the cocaine and sent to Canada from Lima, Peru was destined for the accused. The following factors as set out by the Crown supports its position:

• The Agreed Statement of Facts setting out the numerous exchanges between Gani’s phone, Boddis’ phone and the accused’s phone, as well as all of the other telephone exchanges during the relevant time period, up to and including September 12, 2014, the day of the controlled delivery.

• The pattern of delivery of the package from Gani to Boddis to its arrival by taxi at the accused’s apartment.

• The phone call by Boddis from the taxi, and then shortly thereafter, the meeting with the accused at the apartment.

• The accused coming out to meet Boddis, who was in possession of the package, and paying Boddis’ taxi fare.

• The accused had on his person a piece of paper containing the following information from the package:

Tracking number 804952423158

David Galino – 1650 Dundas Street East Mississauga Unit 265 M4X 2Z3

647-924-2887

1-800-463-3339

Payment confirmation 91620927

• The accused’s flight from the scene.

• The significant value of the cocaine is circumstantial evidence supporting the essential element of knowledge. The value of the cocaine seized is set out in the Agreed Statement of Facts filed as Exhibit 1.

[127] The defence position that there were legitimate items in the package so receiving the package was for an innocent purpose is not borne out by the level of deception and cover up. The address of the recipient does not exist. There is no David Galino – Peruvian Arts at 1650 Dundas Street East. The package was covered with a garbage bag. The names on the phones were not in the name of the accused. The efforts made to deceive are significant and would have been unnecessary if the package was legitimate.

[128] This is not a case where the accused’s handling of the cocaine commenced after it reached Ontario. Nor is it a case where the accused was not aware of when the cocaine would be imported into Canada. The totality of the evidence, setting out the numerous telephone contacts up to and including September 12, 2014 establishes otherwise. The accused knew the cocaine was being sent to David Galino at 1650 Dundas Street East. He was aware of the tracking number and he was aware of the payment. All of this information was on a piece of paper that he had on his person. This evidence is very compelling and establishes the accused’s knowledge of the shipment of this package from Lima, Peru to Canada. I am satisfied that the Crown has proven all of the essential elements of the importation count.

Possession of a Controlled Substance for the Purpose of Trafficking

[129] In R. v. Cantrill, 2011 ABQB 273, [2011] A.J. No. 465 the Court set out the principles as related to knowledge and possession at paras. 56, 57, and 77:

Knowledge of illegal material forms the mens rea for possession, while control of the illegal material is the actus reus: R. v. Terrance, 1983 51 (SCC), [1983] 1 S.C.R. 357, 147 D.L.R. (3d) 724; R. v. Beaver, 1957 14 (SCC), [1957] S.C.R. 531, 118 C.C.C. 129. Control is typically an active process, for example a passenger in a stolen vehicle does not control that vehicle: R. v. Terrance. “[M]ere indifference or passive acquiescence” is not sufficient to establish control: R. v. Piaskoski, 1979 2920 (ON CA), [1979] O.J. No. 1183 (QL) 52 C.C.C. (2d) 316 (Ont. C.A.). Rather, possession requires at a minimum evidence that “... suggests such co‑operation and active assistance, going beyond mere indifference or negative conduct ...”: R. v. Hung, 1946 118 (ON CA), [1946] O.R. 187, [1946] 3 D.L.R. 111 (Ont. C.A.).

More recently, the same principles were reviewed in R. v. Pham, at paras. 15-17:

In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. See R. v. Caldwell (1972), 1972 ALTASCAD 33, 7 C.C.C. (2d) 285 (Alberta Supreme Court, Appellate Division); R. v. Grey (1996), 1996 35 (ON CA), 28 O.R. (3d) 417 (C.A.).

In order to constitute joint possession pursuant to section 4(3)(b) of the Code there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession. See R. v. Terrence, 1983 51 (SCC), [1983] 1 S.C.R. 357 (S.C.C.); R. v. Williams (1998), 1998 2557 (ON CA), 40 O.R. (3d) 301 (C.A.); R. v. Barreau, 1991 241 (BC CA), 9 B.C.A.C. 290, 19 W.A.C. 290 (B.C.C.A.) and Re: Chambers and the Queen (1985), 1985 169 (ON CA), 20 C.C.C. (3d) 440 (Ont. C.A.).

The element of knowledge is dealt with by Watt J. in the case of R. v. Sparling, [1988] O.J. No. 107 (Ont. H.C.) at p. 6:

There is no direct evidence of the applicant's knowledge of the presence of narcotics in the residence. It is not essential that there be such evidence for as with any other issue of fact in a criminal proceeding, it may be established by circumstantial evidence. In combination, the finding of narcotics in plain view in the common areas of the residence, the presence of a scale in a bedroom apparently occupied by the applicant, and; the applicants apparent occupation of the premises may serve to found an inference of the requisite knowledge.

The Court of Appeal decision in R. v. Sparling, [1988] O.J. No. 1877 upheld the above passage as being sufficient evidence to infer knowledge. [Emphasis added.]

A useful summary of the relevant principles is provided by Graesser J. in R. v. Nguyen, at para. 65:

1. This is a very fact specific area.

2. Constructive possession under s. 4(3) of the Criminal Code can be and often is established by circumstantial evidence.

3. The inferences to be drawn from the circumstantial evidence must be reasonable.

4. An inference drawn which establishes an essential element of an offence must be the only reasonable inference that can be drawn.

5. The trier of fact must look at the totality of the evidence.

6. Constructive possession requires knowledge and control.

7. Control in the context of constructive possession means consent with the power to affect the location of the item.

8. Occupancy can be evidence of possession.

[130] In R. v. Pham 2005 44671 (ON CA), [2005] O.J. No. 5127 (C.A.),the court set out the following regarding knowledge and possession at paras. 13 to 17:

Section 2 of the Controlled Drugs and Substances Act, S.C. 1996 C.19 adopts the definition of “possession” in subsection 4(3) of the Criminal Code. That section reads:

4(3) For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly:

(i) has it in the actual possession or custody of another person or

(ii) (ii) has it in any place, whether or not that place belongs to or is occupied by him for the use or benefit of himself or another person; and

(b) where one of two or more persons with the knowledge and consent of the rest has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

[14] Section 4(3) of the Code creates three types of possession:

(i) personal possession as outlined in section 4(3)(a);

(ii) (ii) constructive possession as set out in section 4(3)(a)(i) and section 4(3)(a)(ii); and

(iii) (iii) joint possession as defined in section 4(3)(b).

[15] In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. See R. v. Caldwell (1972), 1972 ALTASCAD 33, 7 C.C.C. (2d) 285 (Alberta Supreme Court, Appellate Division); R. v. Grey (1996), 28 O.R. (3d) 412 (C.A.).

[16] In order to constitute joint possession pursuant to section 4(3)(b) of the Code there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession. See R. v. Terrence, 1983 51 (SCC), [1983] 1 S.C.R. 357 (S.C.C.); R. v. Williams (1998), 1998 2557 (ON CA), 40 O.R. (3d) 301 (C.A.); R. v. Barreau 1991 241 (BC CA), 19 W.A.C. 290 (B.C.C.A.) and Re Chambers and the Queen (1985), 1985 169 (ON CA), 20 C.C.C. (3d) 440 (Ont. C.A.).

[17] The element of knowledge is dealt with by Watt J. in the case of R. v. Sparling, [1988] O.J. No. 107 (Ont. H.C.) at p. 6:

There is no direct evidence of the applicant’s knowledge of the presence of narcotics in the residence. It is not essential that there be such evidence for as with any other issue of fact in a criminal proceeding, it may be established by circumstantial evidence. In combination, the finding of narcotics in plain view in the common areas of the residence, the presence of a scale in a bedroom apparently occupied by the applicant, and; the applicant’s apparent occupation of the premises may serve to found an inference of the requisite knowledge.

The court of appeal decision in R. v. Sparling, [1988] O.J. No. 1877 upheld the above passage as being sufficient evidence to infer knowledge.

[131] Having concluded that the accused was a member of the conspiracy to import cocaine into Canada, and that he was one of the persons responsible for the importation, I am satisfied that the package containing the cocaine was destined for him. I am satisfied that the accused had knowledge of the cocaine in the package and had control of the package as well. Indifference or possible acquiescence is not sufficient to establish control. However, in this case, the accused has knowledge of the package and was in direct contact with others who would be delivering the package containing the cocaine to him. The totality of the evidence points to a logical and reasonable inference that this package, containing this very valuable illegal substance, was destined for the accused. As set out in the Agreed Statement of Fact the amount of cocaine seized is consistent with an amount possessed for the purpose of trafficking.

Conclusion

[132] When considering a case based on circumstantial evidence, in order to find the accused guilty, his guilt must be the only rational conclusion that can be drawn from the whole of the evidence. I am satisfied that when the total body of evidence is considered, the guilt of the accused is the only rational conclusion that can be drawn from all of the evidence.

[133] There will be a finding of guilty on counts 1, 2, and 3.

Justice Joseph M. Fragomeni

Released: November 6, 2017

CITATION: R. v. Ezechukwu 2017 ONSC 5441

COURT FILE NO.: 15-1324

DATE: 20171106

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

and –

FRANCIS EZECHUKWU

REASONS FOR JUDGMENT

Justice Fragomeni

Released: November 6, 2017