COURT FILE NO.: 13-G30241

DATE: 2018/05/14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Crown

– and –

HANIYEH JAHANGIRI AND SAMIRA JAHANGIRI

Defendants

David McKercher, for the Crown

Barry Fox, Counsel for Haniyeh Jahangiri

Richard Addelman, Counsel for Samira Jahangiri

HEARD: May 8, 9, 10, 11, 12, 15,16, 17, 19, 2017, June 6, 21, 2017, February 2, 2018, March 22, 2018.

REASONS FOR JUDGMENT

justice Marc r. labrosse

Summary

[1] On November 29, 2012, the Ottawa RCMP performed a controlled delivery of a package which contained opium and was addressed to Matt Trudue. When the undercover officer arrived at 515 St. Laurent Blvd., Apartment 2508, the undercover officer said: “It’s for Matt Trudue”. One of the accused, Haniyeh Jahangiri said: “Yes, my new roommate”. She accepted the delivery of the package but did not open it. The package remained in the entrance of her apartment for over 24 hours until the RCMP executed a search warrant and seized the package along with other evidence. Haniyeh Jahangiri was arrested and charged with importing opium, conspiracy to import opium and possession of opium for the purpose of trafficking. Haniyeh Jahangiri’s sister, Samira Jahangiri was arrested in British Columbia and charged with importing opium and conspiracy to import opium.

[2] Both Haniyeh Jahangiri and Samira Jahangiri stood trial for 13 days. At the end of the trial, all counsel consented to these reasons being released in writing. For ease of reference, I will refer to Haniyeh Jahangiri as “Haniyeh” and Samira Jahangiri as “Samira”.

[3] Prior to the commencement of trial, Haniyeh made an application for a stay of proceedings resulting from an alleged breach of section 11(b) of the Charter. That application was denied by Maranger J.

[4] Also prior to trial, Samira brought a motion for an adjournment of the trial as a result of her desire to await the Supreme Court of Canada’s decision in R. v. Marakah 2017 SCC 59 as the law in Ontario did not allow her standing to bring a s. 8 Charter application to exclude certain seized text messages. Ratushny J. made a pre-trial order that denied the request for the adjournment and ordered that at the end of the evidence, the trial judge was to reserve her/his ultimate decision on each count for each accused until after the Marakah decision was released.

[5] During the trial, there were two relevant rulings made by this Court:

(a) The denial of a Charter Application by Haniyeh to exclude the evidence seized during the search of Apartment 2508 as a result of alleged breaches of s. 8 of the Charter; and

(b) The denial of a request by Samira for a directed verdict.

[6] Ultimately, the Supreme Court of Canada’s decision in Marakah was released on December 8, 2017. A case conference was held on February 2, 2018 and Samira confirmed that she would not be making an application to exclude any text messages. The trial was continued on March 22, 2018 at which time Samira made her election not to call any further evidence. At the conclusion of the trial, after final submissions, Haniyeh renewed her application pursuant to section 11(b) of the Charter as a result of the additional delay from waiting for the Marakah decision. A decision on that application remains outstanding.

[7] For the reasons set out herein, I find both accused’s not guilty of all charges. As a result of that decision, the renewed application under section 11(b) of the Charter is now moot.

The Evidence

[8] At the commencement of trial, the Crown and Defence agreed to the following admissions (Ex.1): the identity of the accused and that they are sisters, the service of the Notice of Intention to Introduce, the continuity of the packages from arrival in Canada until the analysis of the drugs and that if possession of the drugs is proven as against Haniyeh then it is admitted that it is for the purpose of trafficking.

[9] A good portion of the evidence provided by various RCMP officers related to the controlled delivery of the Ottawa Package, the manner of entry by the RCMP when it entered apartment 2508 at 515 St. Laurent Blvd and the seizure of objects pursuant to the telewarrant obtained by the RCMP on November 30, 2012. The validity of those actions by police was previously determined in my oral decision dated June 6, 2017 which dealt with the applications by Haniyeh pursuant to s. 8 of the Charter.

[10] Of relevance to the charges before the Court are the following three classes of circumstantial evidence:

(1) The items seized during the search of Haniyeh’s apartment;

(2) The seized communications including cellular telephone back-ups, the various communications between Haniyeh and Samira in the months prior to the controlled delivery together with some post-arrest communications; and

(3) The evidence of a pattern of packages being sent or arriving by mail and the prior instances where packages were sent to third party addresses.

[11] With respect to possession, the Crown relies on the evidence of the controlled delivery, together with the above circumstantial evidence to establish the knowledge of Haniyeh in the contents of the controlled delivery package.

[12] I will now refer to the relevant portions of the evidence.

The controlled delivery of the Ottawa Package

[13] On or about November 20, 2012, a package destined for Port Mooely, B.C. was x-rayed by Canada Border Services Agency (“CBSA”) and found to be suspicious. When opened, opium was found in the heels of women’s footwear. The package was addressed to “Antons Visockis, 410-2909 Hope Street, Port Mooely, B.C. V3H 2J3” (the “B.C. Package”). The B.C. Package was found to contain approximately 1 kilogram of opium.

[14] A second similar package addressed to “Matt Trudue, 2508-515 St. Laurant Blvd, Ottawa, Ont, K1K 3X5, Buzz 679, Canada” was also seized (the “Ottawa Package”). CBSA contacted the Ottawa RCMP to see if they wanted to assist with the Ottawa Package and the Ottawa RCMP confirmed that it did. The Ottawa Package was found to contain just under 2 kilograms of opium.

[15] Both packages originated from Turkey and appeared to show the following information for the sender: Mazlum Sak, Dere Mah 129, SOK, No 20. Although the handwriting on the boxes is not absolutely clear, it was not challenged at trial that the two packages had the same address for the sender.

[16] A decision was made by the RCMP in Ottawa to perform a controlled delivery of the package to its intended address in order to assess the recipient’s actions. The RCMP in Ottawa contacted the B.C. RCMP and asked if they also wanted to participate in a controlled delivery of the B.C. package but they declined to be involved.

[17] At approximately 19:49 on November 29, 2012, an undercover RCMP officer delivered the Ottawa Package to its intended destination, being apartment 2508 – 515 St. Laurent Blvd. in the City of Ottawa. Approximately 3 grams of opium was left in the Ottawa Package for the purpose of the controlled delivery and an audio probe was inserted to listen to the handling and opening of the package. The probe also allowed to record the conversation between the undercover officer and the person who received the package. At the time of delivery, the undercover officer said: “It’s for Matt Trudue”. According to the undercover officer, Haniyeh responded: “Yes, my new roommate” and she accepted the package on behalf of Matt Trudue. Travis Cordt Trudeau had moved out approximately 9 months before.

[18] The RCMP monitored the audio probe for over 24 hours. At one point, Haniyeh was seen leaving the apartment without the Ottawa package and returned later. A telewarrant was obtained and executed at 21:03 on November 30, 2012. At the time of entry, Haniyeh was arrested and various property was seized, including the unopened Ottawa Package. There is conflicting evidence from the RCMP as to the words said by Haniyeh at the time of entry and as such, I am unable to conclude that she said anything other than wanting to speak to her lawyer.

The Search of Haniyeh’s Apartment

[19] Of relevance to the charges are the various items found during the search in Haniyeh’s apartment from which an inference can be made that they relate to drug consumption or drug trafficking. I note the following:

(i) a black scale;

(ii) a money counting machine;

(iii) a red bong;

(iv) numerous cellular telephones; and

(v) residue of cocaine tested using the NIK test.

[20] As a Crown witness, Che Esprit, testified that the scale and the money counting machine belonged to Matthew Kerr who was a previous roommate. He had left the apartment quickly as he had an issue with the police. As for the cellular telephones, Mr. Esprit claimed that they were his as he would often change his phone number. Otherwise, the only available inference in the evidence would be that the items listed above would have belonged to Haniyeh.

Intercepted Communications

[21] During the search of Haniyeh’s apartment, a computer was seized which contained two iCloud back-ups for two Apple iPhones purportedly belonging to Haniyeh. The date of the back-ups are June 5, 2012 for what was referred to as the “44 device” and September 10, 2012 for what was referred to as the “88 device”. The 88 device was shown to be the cell phone of Haniyeh with the telephone number 613-220-4681 (Ex.43). The 88 device contained text messages from March 31, 2012 to September 7, 2012 between Haniyeh and Samira, Sara Della Vedova and Travis Trudeau. The following messages were highlighted by the Crown:

(i) April 3, 2012: Travis Trudeau asks Haniyeh if she knows anyone who wants morphine;

(ii) May 27 and 28, 2012: Haniyeh sends the following name and address to Samira: Matt Trudeau, 2508 – 515 St. Laurent boulevard, Ottawa ON;

(iii) From May 23, 2012 to June 3, 2012: Haniyeh and Samira discuss that a package is being sent to Haniyeh and that she should wait before going away for the weekend. She should wait until after the “stuff” arrives;

(iv) July 4, 2012: Haniyeh and Samira discuss a delivery notice for a package related to the “Nono hair thing”;

(v) July 7, 2017: Haniyeh sends the following number to Samira: Cp007395081TR and they discuss picking up a package which includes the following from Samira: “Nooo u have tooo get there for thu so u could go get it for fri bec they r scaredddd it will smell so u have to go earlier”;

(vi) July 20, 2012: Haniyeh and Sarah Della Vedova discuss Ms. Della Vedova picking up a parcel for Haniyeh;

(vii) July 21, 2012: Haniyeh and Samira discuss the condition of a box that in the possession of a third person and that she told them she thinks it’s hair products;

(viii) July 21, 2012: Samira sends the following address to Haniyeh: 15322 101 ave, Apt 108, Surry BC, V3R4G9 and says: “if u want sara to send u ur keys”;

(ix) July 29, 2012 and August 16, 2012: Haniyeh sends the following address to Haniyeh: 30-2111 Montreal Rd, Ottawa, ON K1J 8M8 Lynton Finnie;

(x) August 17, 2012: The following message was sent in Kurdish and translated to English by Chain Cevat, a certified translator: “We gave your friends Address (boy or girl) to somebody ok. He already wrote it on the box without a return address”;

(xi) September 7, 2012: Haniyeh to Samira: “What happened to this shit not coming?” and Samira answers: “Nooo not yettt”.

[22] However, after September 7, 2012, there are no other communications in evidence between Haniyeh and Samira prior to November 29, 2012. The iPhone backup for Haniyeh’s phone is dated September 10, 2012. Following the search and arrest of Haniyeh, the RCMP made a decision to return Haniyeh’s iPhone to her and not obtain a copy of Haniyeh’s communications leading up to November 29, 2012. Haniyeh’s iPhone was returned to her on December 5, 2012 and the RCMP made no effort to open the phone or access its contents although Haniyeh offered that the content of her cell phone could be accessed by the RCMP. By returning the phone promptly, it allowed the RCMP to monitor the post-arrest communications from Haniyeh’s iPhone.

[23] As part of the intercepted communications from Haniyeh’s telephone are post-arrest text messages between Haniyeh and Che Esprit (Ex. 33) which include the following:

(i) Dec 8, 2012 - incoming messages: “Your acting like I fucking got u in this fucking problem” – “U didn’t fucking listen to me” – “I told you not to” – “Now its suddenly my fault n my problem”;

(ii) Dec 13, 2012 outgoing message: “If u had never came into my life I wouldn’t be here”; and

(iii) Dec 13, 2012 incoming message: “Its my fault u used ur own address right”.

[24] When questioned about the messages, Mr. Esprit was unable to provide a reasonable explanation for what those messages were referring to other than saying that he was “probably trying to get a rise” out of Haniyeh.

[25] Finally, when asked about what photo #6 from Haniyeh’s phone appeared to be, he candidly said that it looked like hash to him because he buys it and that is what it looks like although he did not and would not take a photograph of it.

Pattern of receiving packages by mail

[26] The Crown presented a series of text messages between Haniyeh and Samira from which they suggest an inference can be made of a pattern of receiving packages sent either to Haniyeh’s apartment or to third party addresses from foreign locations. The Crown relies on the following evidence:

(1) text messages between Haniyeh and Samira between May 27, 2012 and June 3, 2012 which include Haniyeh providing the following address: Matt Trudeau, 2508 – 515 St. Laurent Blvd, Ottawa ON;

(2) text messages between Haniyeh and Samira between July 4, 2012 and July 6, 2012 which include reference to a delivery notice for the “Nono hair thing”;

(3) text messages between Haniyeh and Samira between July 17, 2012 and July 19, 2012 where Samira tells Haniyeh to pick up a package because there is concern that it will smell;

(4) text messages between Haniyeh and Sarah Della Vedova from July 20, 2012 which suggest that Ms. Della Vedova was going to the post office to pick up a package for Haniyeh;

(5) text messages between Haniyeh and Samira where Haniyeh provides the following information: “30-2111 Montreal rd Ottawa ON K1J 8M8 Lynton finnie”;

(6) text message from August 16, 2012 which provides the same address; and

(7) text messages from September 7, 2012 waiting for something to arrive.

[27] Exhibit 29 contains photographs extracted from Cellphone 613-220-4681 which include photographs of a label for a package addressed to “Matt Trubnali at 2405 – 415 St. Lauran abvd, Ottava” along with photographs of a ripped up box which appears to be the box relating to the Trubnali package. The sender of that package was M. Emin Yol from Turkey. The sender’s information is not linked to the sender of the B.C. and Ottawa packages.

[28] Exhibit 41 is tracking information from a package which originated from Turkey with a tracking number of CP007395081TR and picked up by Sarah Della Vedova on July 21, 2012. That tracking number was part of the text messages between Haniyeh and Samira. It also appears on a photograph of the label for the package addressed to Matt Trubnali. Exhibit 42 is tracking information for a package which originated from Surrey B.C. with a tracking number of MD053131232CA that also appears in the text messages between Haniyeh and Samira and was picked up on July 20, 2012.

[29] Finally, on July 29, 2012, Haniyeh provided the address of Lynton Finnie to Samira. As a Crown witness, Tanya Roy testified that she was asked by Haniyeh if Ms. Roy’s father’s address could be used by Samira to send a package to Ottawa for Haniyeh. Ms. Roy accepted and testified that there was nobody home on the day it arrived and that she went to the Shoppers Drug Mart to retrieve it and then gave it to Haniyeh.

Analysis

Circumstantial Evidence:

[30] Both Haniyeh and Samira are charged with importing opium and conspiracy to import opium. The Crown admits that in large part, its case is founded on circumstantial evidence, particularly with respect to the charge of conspiracy to import opium.

[31] 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. In R. v. Villaroman, 2016 SCC 33, the legal principles relevant to the court’s assessment of circumstantial evidence are set out at paras. 35 to 43.

[32] In R. v. Morris 2017 ONSC 835, [2017] O.J. No. 535, Code J. also dealt with the law relating to circumstantial evidence at paras. 103 to 106 and highlighted the following guiding principles:

− 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.

− 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.

− 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.

− 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.

− 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.

Conspiracy to import opium

[33] The essential elements of that offence are:

(a) There was a conspiracy between two or more persons;

(b) The conspiracy was to import opium into Canada; and,

(c) The accused, Haniyeh and Samira were members of that conspiracy.

[34] 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. 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.

[35] The Crown points to the following evidence to establish the conspiracy:

(i) the two packages from November 2012 seized by CBSA containing opium which originated from the same sender;

(ii) one package delivered to Haniyeh and one package delivered to and address in British Columbia;

(iii) Samira resides in British Columbia but has no ties to the address on the package;

(iv) communications between Haniyeh and Samira between May 2012 and September 2012 which suggest that they are arranging for the delivery of packages with those packages being sent to other addresses and picked up by third parties;

(v) the references in the text messages to using the same address as before establishes a pattern with both Haniyeh and Samira involved in tracking the July package addressed to Matt Trubnali;

(vi) that the use of the names “Matt Trudue” and “Matt Trubnali” further demonstrate the pattern;

(vii) the reference from Samira that there is concern that the package will smell and this is inconsistent with the delivery of hair product;

(viii) the proposed use of the address of Lynton Finnie for another package; and

(ix) that all the facts demonstrate a clear pattern of planning and agreement on arranging for packages to come to Canada for Haniyeh or third parties known to Haniyeh.

[36] When considering the entirety of the circumstantial evidence, I conclude that the Crown has demonstrated that both Haniyeh and Samira participated in the planning, tracking and receipt of the July package from Turkey which was addressed to Matt Trubnali and picked up by Sarah Della Vedova. However, the same cannot be said for the second package in July 2012 or the package sent to Lynton Finnie. The only evidence is that those packages were sent by Samira for Haniyeh.

[37] I have also considered that the evidence seized at the apartment of Haniyeh is available to the Court as circumstantial evidence that Haniyeh was involved in the trafficking of drugs. I am not persuaded by the evidence of Che Esprit that those items belonged to Matthew Kerr. There was a lack of detail to that evidence and he appeared to simply provide an alternate explanation. There was no substance to his evidence and thus I conclude that the items seized in the apartment were the property of Haniyeh and conclude that she was probably involved in drug consumption or drug trafficking.

[38] However, the absence of evidence in relation to the November 2012 packages leaves me with a reasonable doubt that there was an agreement between Haniyeh and Samira or with any third party to import opium for the following reasons:

(a) there is no direct evidence to support a conclusion that there were drugs in the July package in the name of Matt Trubnali or the July package sent from Surrey B.C.. There is also no evidence to suggest that the package sent to Lynton Finnie was anything other than a package sent from Samira to Haniyeh with unknown contents. Consequently, the Crown’s theory of a pattern of receiving packages from foreign destinations can really only apply to the package addressed to Matt Trubnali;

(b) the circumstantial evidence relating to drugs being in the July package to Matt Trubnali such as the concern about smell, the torn up delivery box and the presence of opium in the November packages does not allow me to draw the inference that the previous packages contained drugs. There is contradictory evidence from both Sarah Della Vedova and Tanya Roy on such an inference. There is also no evidence to support that the July package to Matt Trubnali was a “dry run” for the November packages;

(c) the absence of evidence from September 2012 to November 29, 2012 prevents me from using the evidence of the text messages, such as the planning and tracking of the packages, as circumstantial evidence leading to the delivery of the November package to Haniyeh. While I appreciate that the RCMP made a strategic decision to return Haniyeh’s telephone to her in order to allow for post-arrest intercepts, it has left an important gap in the pattern of planning and tracking of the November packages which may have demonstrated an agreement to import. I do not question the decision made by the RCMP as the importance of such evidence would not have been apparent until the iPhone back-ups were analyzed to reveal the text messages from May 2012 to September 2012. Regardless, the absence of similar evidence relating to the November packages leaves an important gap in the evidence. In addition, the RCMP did not accept Haniyeh’s offer to let them look at the content of her cell phone which may have provided relevant evidence;

(d) the May 27, 2012 text message from Haniyeh to Samira with the exact address and use of the name “Matt Trudeau” five months before November 29, 2012 becomes too remote. Another package was delivered with the name “Matt Trubnali” with a similar address in July 2012 which allows for a conclusion that the inference of guilt is not the only reasonable inference arising from this evidence. The evidence of Sarah Della Vedova, together with the references in the text messages to hair products allow for other reasonable inferences; and

(e) finally, as agreed by the RCMP witnesses, there is no evidence linking either Haniyeh or Samira to the B.C. Package. The RCMP in British Columbia refused to become involved with the delivery of the B.C. Package. This is also a significant gap in the evidence which could have demonstrated any ties between the B.C. Package and Samira. Also, if there was an unrelated third party involved, it may have provided relevant evidence on Samira’s lack of involvement with the B.C. Package.

[39] I wish to be clear that I do not accept the evidence of Sarah Della Vedova as being conclusive of the content of the July package addressed to Matt Trubnali. However, based on the absence of evidence to the contrary, it remains a reasonably possible inference.

[40] I appreciate that various portions of the intercepted communications between Haniyeh and Samira are suspicious and point to the fact that both Haniyeh and Samira were probably involved in some form of illicit activity which may have led to the two November packages being sent from the same sender. There are clearly elements of the evidence which contradict that the July package to Matt Trubnali contained hair products.

[41] In addition, the exchange of text messages between Haniyeh and Che Esprit are suggestive that Haniyeh used her home address and that this was a poor choice on her behalf. The post-arrest intercepted communications between Haniyeh and Samira are also suggestive that they are involved in illicit activities. Furthermore, the reaction of Haniyeh in accepting the package on November 29, 2012 is suggestive that she may have been expecting the November 29, 2012 package to be delivered to her home address. The fact that both November packages, with similar contents, were sent from the same sender, together with all of the other circumstantial evidence referred to above leads me to believe that both Haniyeh and Samira are probably and even highly probably involved in some capacity, with the November packages.

[42] However, the conspiracy charges require that I be satisfied beyond a reasonable doubt that there was an agreement between Haniyeh and Samira to import opium which led to the delivery of the November packages. The absence of communications between Haniyeh and Samira leading up to November 29, 2012, the absence of tracking evidence for the November packages, the absence of direct evidence of the content of the previous packages and the absence of evidence to contradict the evidence from Ms. Della Vedova that the July package contained hair products leave me with a reasonable doubt that there was an agreement to import opium in relation to the November packages. While I am of the view that the evidence of regular communications between Haniyeh and Samira suggest that they would have been communicating otherwise from September to November 2012. I cannot speculate that communications must have taken place before the November packages arrived in Canada.

[43] In addition, the evidence is insufficient to conclude beyond a reasonable doubt that either Samira or Haniyeh were involved in a conspiracy to import opium with any unknown party with whom they may have been communicating.

[44] I find both Haniyeh and Samira not guilty of conspiracy to import opium.

Importing opium

[45] The essential elements for the charge of importing opium are:

(i) that Haniyeh and/or Samira imported a substance into Canada;

(ii) that the substance was opium;

(iii) that Haniyeh and/or Samira knew the that the substance was opium; and

(iv) that the importing was intentional.

[46] As a result of my finding on the conspiracy to import opium charge, the charge of importing opium follows the same result as I am left with a reasonable doubt that Haniyeh and/or Samira were responsible for the arrival of the opium into Canada. My conclusion on this point is that there is an essential gap in the evidence leading up to the arrival of the November packages into Canada that prevents me from concluding that either accused was responsible for bringing the opium into Canada either directly or by causing someone else to bring it in from outside Canada. There is not sufficient evidence to establish the planning, tracking and receipt of the Ottawa or B.C. packages leading up to November 29, 2012. As previously stated, the circumstantial evidence relied upon by the Crown allows for other reasonably possible inferences.

[47] Also relevant is the element of knowledge. As set out below in dealing with the possession charge, the Crown has failed to establish beyond a reasonable doubt that either Samira or Haniyeh knew that the substance in the November packages was a controlled substance.

[48] I find both Haniyeh and Samira not guilty of importing opium.

Possession for the purpose of trafficking

[49] Turning now to the charge against Haniyeh of possession of opium for the purpose of trafficking, I note that Haniyeh has admitted that if possession of the drugs is proven against Haniyeh, then it is admitted that it is for the purposes of trafficking (Exhibit #1).

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

[13] Section 2 of the Controlled Drugs and Substances Act adopts the definition of "possession" in s. 4(3) of the Criminal Code, R.S.C. 1985, c. C-46. 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 [page406]

(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 s. 4(3)(a);

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

(iii) joint possession as defined in s. 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, [1972] 5 W.W.R. 150 (Alta. S.C. (A.D.)); R. v. Grey (1996), 1996 CanLII 35 (ON CA), 28 O.R. (3d) 417, [1996] O.J. No. 1106 (C.A.).

[16] In order to constitute joint possession pursuant to s. 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 CanLII 51 (SCC), [1983] 1 S.C.R. 357, 147 D.L.R. (3d) 724; R. v. Williams (1998), 1998 CanLII 2557 (ON CA), 40 O.R. (3d) 301, [1998] O.J. No. 2246 (C.A.); R. v. Barreau, 1991 CanLII 241 (BC CA), [1991] B.C.J. No. 3878, 19 W.A.C. 290 (C.A.); and R. v. Chambers, 1985 CanLII 169 (ON CA), [1985] O.J. No. 143, 20 C.C.C. (3d) 440 (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 (H.C.J.), at p. 6 (QL):

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, 31 O.A.C. 244 (C.A.) upheld the above passage as being sufficient evidence to infer knowledge.

[51] The Crown has not advanced any theory of constructive or joint possession. The Crown’s position is that Haniyeh was in actual possession of the Ottawa package and its contents.

[52] In R. v. Ukwuaba, 2015 ONSC 2953, Hill J. provided a useful summary of the general principles that apply to proof of unlawful possession of an illicit substance or contraband:

(a) in an unlawful possession prosecution, the Crown must prove knowledge, consent and control respecting the prohibited substance on the part of the accused;

(b) as a general rule, there can be no proof of possession unless it is established by the Crown that the accused had “knowledge of the character of the forbidden substance;

(c) knowledge of the illicit drug’s presence and the intent to import must precede the narcotic’s entry to Canada;

(d) in crimes of unlawful possession, it is “not necessary for the prosecution to prove the required knowledge by direct evidence…it could be inferred from the surrounding circumstances; and

(e) the essential component of self-instruction on circumstantial evidence is that the trier of fact must be satisfied that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty and “the mere existence of any rational, non-guilty inference is sufficient to raise a reasonable doubt.

[53] The evidence relied on by the Crown which supports that Haniyeh was in possession of the contents of the controlled delivery package is focused on the fact that she directed her sister to use the name “Matt Trudeau” and her home address for delivery, that she accepted the delivery of a package in the name of “Matt Trudu” and that she can be heard saying “Yes, my new roommate” or words to that effect.

[54] The other relevant piece of direct evidence in relation to possession is that Haniyeh made no attempts to open the package once delivered and that there is no evidence that took any steps to advise anyone of its arrival.

[55] I have considered the totality of the circumstantial evidence previously referred to in this decision. When specifically applied to the knowledge of Haniyeh, I highlight the following:

(a) there is an available innocent inference from the acceptance of the package in the name of “Matt Trudu” which is that she thought that it was a package for either Matt Kerr or Travis Trudeau which is supported by the fact that she put it down and did not open it. However, given the previous use of the name “Matt Trudeau”, I conclude that such an innocent inference is not reasonably possible;

(b) there is also a reasonable possible inference that this was another package which which would have contained hair products such as the package in the name of Matt Trubnali picked up by Sara Della Vedova. Based on the uncontradicted evidence of Ms. Della Vedova that the July package to Matt Trubnali were hair products, it remains a reasonably possible inference that Haniyeh did not have knowledge that the November package contained illicit drugs; and

(c) there is a reasonably possible inference that Haniyeh was not aware of the contents of the Ottawa Package. This is support by the fact that she did not open the package for close to 24 hours prior to the entry by the RCMP. If Haniyeh was aware of the contents of the package, being a significant amount of opium, it is inconsistent with knowledge and possession that she would have simply left the package there without taking any steps to open it.

[56] Finally, the inference that Haniyeh did not have knowledge of the content of the controlled delivery package is made reasonably possible by the absence of any communications that Haniyeh was expecting this package to arrive in November 2012. This includes the absence of evidence that she contacted anyone to advise of its arrival. To the contrary, she even left the apartment with the package and its contents in the apartment.

[57] While I believe that it is highly probable that both Haniyeh and Samira were involved in some capacity with the arrival of the Ottawa Package and the B.C. Package, the presence of innocent inferences which are reasonably possible leave me with a reasonable doubt that Haniyeh ever had knowledge, consent and control of the Ottawa Package delivered to her which contained opium.

[58] I find Haniyeh not guilty of the charge of possession for the purpose of trafficking.

Conclusion

[59] I conclude that Haniyeh and Samira are not guilty of all counts on the Indictment.

Justice M. Labrosse

Released: 2018/05/14

COURT FILE NO.: 13-G30241

DATE: 2018/05/14

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Crown

– and –

HANIYEH JAHANGIRI AND SAMIRA JAHANGIRI

Defendants

REASONS FOR JUDGMENT

Justice M. Labrosse

Released: 2018/05/14