Her Majesty The Queen v. Meron Asfaw Zere and Christopher Cristini, 2018 ONSC 5035

COURT FILE NO.: 17-661 DATE: 2018 10 16

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN K. Robertson, for the Crown

- and -

MERON ASFAW ZERE and CHRISTOPHER CRISTINI D. Goodman, for the accused Meron Asfaw Zere

HEARD: August 7, 8, 9, 10, 13, & 15, 2018

REASONS FOR JUDGMENT

TRIMBLE J.

[1] On 26 February, 2016, Meron Asfaw Zere was arrested and charged with possessing heroin for the purposes of trafficking. The total amount of heroin was 1.3 kilograms.

The Arrest

[2] Mr. Zere’s arrest came about as part of a controlled delivery of a package which had come from Malaysia via Vancouver containing Nokia cellular telephone chargers, which was addressed to Michael Gucciardi in Toronto. The chargers contained the heroin. The Vancouver detachment of the Canadian Border Services Agency detected the heroin, contacted the Toronto RCMP detachment, and forewarned it that the package was coming. The package was intercepted by the RCMP in Toronto, who searched it and found that the total weight of heroin was 1.3 kg. A controlled delivery was planned.

[3] On 24 February, 2016, the RCMP left a Canada Post Delivery Notice stuck to the door of the apartment listed on the package as belonging to Michael Gucciardi, the consignee of the package. That Notice advised the consignee that Canada Post attempted to deliver the package and that the consignee had 15 calendar days to pick up the item at the Canada Post counter at the Shoppers Drug Mart at 3003 Danforth Avenue, Toronto.

[4] On the evening of February 26, Christopher Cristini arrived at the Canada Post counter at the Shoppers Drug Mart to claim the package. He presented to the RCMP officer at the Canada Post desk (under cover as a Canada Post/Shoppers Drug Mart employee) the Canada Post Delivery Notice that was left at the consignee’s address two days earlier, and a letter from Michael Gucciardi which said that Mr. Cristini was authorized to pick up the package.

[5] The RCMP officer gave the package to Mr. Cristini. After Mr. Cristini left the Canada Post desk, the RCMP officer at the Canada Post desk radioed to the RCMP officers outside Shoppers Drug Mart a description of the man who had just picked up the package. Mr. Cristini was followed from the Shoppers Drug Mart to a red four-door Subaru sedan. They observed him place the package into either the rear seat of the car or the trunk, and then get in. There were two people already inside the car: Mr. Zere, and a woman named “Nev”.

[6] All three were arrested. Nev was released after questioning. Both Mr. Zere and Cristini were charged. While Mr. Cristini’s name appears on the indictment along with Mr. Zere’s, he did not appear and a warrant was issued for his arrest.

Elements of the Offense

[7] The Crown and Mr. Zere agree that the only issue on this trial (aside from voluntariness of his statement for which I delivered oral reasons) is Mr. Zere’s knowledge of what was in the parcel. Mr. Zere was in the driver's seat of the red four-door sedan and had the keys. Even though Nev owned the car, Mr. Zere, as driver, was in control of the automobile into which the drugs were placed, and thereby in possession of the drugs. The amount of heroin of 1.3 kg meets the essential element of the charge that it was for the purpose of trafficking.

Positions of the Parties

[8] Mr. Zere says he did not know what was in the box. He says that the Crown has not proven its case beyond a reasonable doubt.

[9] The Crown says that in all the circumstances the only reasonable inference from the evidence is that Mr. Zere knew that the box contained heroin or another controlled substance. These circumstances include:

1. Mr. Cristini and Mr. Zere were long-time friends. Nev was Mr. Zere’s on-again-off-again girlfriend.
2. Mr. Zere, who did not have a valid driver’s licence, was behind the wheel of Nev’s car and began to reverse out of the parking stall in the parking lot before he was stopped by the RCMP.
3. The cellular telephone chargers containing the drugs were not fit for use in North America and with North American electrical current.
4. The letter from the consignee of the parcel. Mr Gucciardi, specifically named Mr. Zere’s long-time friend, Mr Cristini, as the person who could pick up the package.
5. Mr. Cristini lived in the same apartment building listed on the package as the building in which the consignee lived.
6. Mr. Zere had been staying with Mr. Cristini.
7. Mr. Zere possessed a cell phone which, when it was seized from him, showed that calls were made from that phone to the Shoppers Drug Mart shortly before the arrest. These outgoing phone calls from the cell phone seized from Mr. Zere corresponded with statements made by various Shoppers Drug Mart employees concerning calls they received about the package. The evidence concerning the advice from Shoppers' employees was investigative hearsay which informed of later steps taken by the RCMP. I did not rely on the hearsay.
8. Mr. Zere made many references during his taped interview with the RCMP which, in the broader context, indicated he was aware that the package contained drugs.

[10] Alternately, the Crown submits that Mr. Zere was wilfully blind.

Evidentiary Ruling

[11] A preliminary evidentiary issue arose, which I address now.

[12] At trial, the Crown introduced two computer discs. One disc contained the information downloaded from a cell phone that was found in Mr. Zere’s possession (Exhibit 19) and the second disc containing information from Telus relating to the phone and the SIM card it contained (Exhibit 17). Both discs were created by RCMP Constable Vieira who received Excel spreadsheets containing the data, put them on the RCMP server, and then created PDF versions for disclosure purposes. The disc that was originally entered as Exhibit 19 proved to be unreadable because of scratches on the disc. Accordingly, on consent, a USB stick was prepared which contain the identical information to the defective disc (Exhibit 19-A).

[13] The Crown seeks to admit these two electronic records solely for the purpose of indicating what phone calls, images, and text messages were sent or received by the phone. The Crown admits that the electronic records do not show who made, sent, or received the phone calls, images, or messages. The Crown says that the messages themselves, when put in the overall context, indicate it was Mr. Zere.

[14] I admitted the two discs subject to argument as to what they contain and my ruling as to what could be admitted. This is that ruling.

[15] Since the issue of where the phone was found and who owned it arise from the same evidence, I have addressed those two questions within this evidentiary ruling.

1) Positions of the Parties

[16] The telephone was the subject of the judicial authorizations to obtain the data from the telephone and to obtain the carrier records that corresponded with the information downloaded from the telephone.

[17] With respect to the information received from the download from the phone, the Crown says that these records are admissible under section 30 of the Canada Evidence Act, notwithstanding that no notice under the Act was given, because the records were contained in disclosure made after the preliminary hearing but well before the trial. With respect to the disc containing the Telus records, the Crown submits that these are admissible under the common-law exception to the hearsay rule.

[18] Mr. Zere’s position on the voir dire concerning the admissibility of these records was directed more to their weight than their admissibility. Mr. Zere argued that the disc containing the information downloaded from the telephone was not admissible as no notice was provided under section 30 of the Canada Evidence Act. He conceded, however, that he did receive the disclosure well before the trial of the action.

[19] With respect to both kinds of records, he argued:

a) the telephone was not Mr. Zere’s (or at least I should have reasonable doubt on this issue),

b) it was not possible to conclude that the records received from Telus pertained to this phone.

[20] No evidence was produced that Mr. Zere owned or leased the telephone. The Telus records did not show that the account was registered in his name. The carrier identified on the telephone itself was Fido, whereas the carrier that provided the records was Telus. Further, what is contained in all of the records does not implicate Mr. Zere. Finally, the telephone was not found in Mr. Zere’s possession. Therefore, the Crown has not proved that the telephone is his. In any event, there is also no evidence, even if the phone was Mr. Zere’s, that he was the one using it at any material time.

2) Analysis

a) Possession of the Phone

[21] I find that the cell phone at issue was found in Mr. Zere’s possession.

[22] I agree that there is a lack of continuity of the evidence. It is a non-issue, however.

[23] The first mention of the cell phone appears after Mr. Zere was handcuffed by Constable Delorme, and after Constable Delorme delivered Mr. Zere to Constable Cowan. Constable Delorme says that she did not search Mr. Zere except, perhaps, for a perfunctory pat-down to make sure he was not carrying a weapon. Once she handcuffed Mr. Zere, Constable Delorme turned him over to Constable Cowan. Constable Cowan did not search Mr. Zere. She asked a male constable involved in the take down (whom she cannot name) to search Mr. Zere. Constable Van Alstine, one of the two male RCMP officers identified as being involved in the take down and the only one of the two male RCMP officers to testify, said that he did not search Mr. Zere. Constable Saade, the other male constable identified as involved in the take down, did not give evidence. He was unlikely to have searched Mr. Zere as he was giving commands to those in the car and overseeing their removal from the car. This process continued after Mr. Zere was handed over to Constable Cowan.

[24] Constable Cowan said that she received the phone at the same time as she received Mr. Zere from Constable Delorme. Mr. Zere, through his cross-examination of the RCMP officers, suggested that the cell phone was found in the car after all of the parties were out of the car. I do not accept this as a reasonable possibility. Mr. Zere was transferred from Constable Delorme to Constable Cowan and searched immediately after the transfer. The RCMP were still extracting the other occupants from the car during this time. Officer Van Alstine testified that he searched the car after all of the occupants had been removed and arrested. He found no cell phones in the car.

[25] I accept Constable Cowan’s evidence that she received the phone at the same time as she received Mr. Zere, after the male RCMP officer searched him. Constable Cowan says that the phone was given to her when she received Mr. Zere into her custody. It sat beside her on the front seat of the car along with his other personal possessions. The phone was bagged as evidence. There is no evidence before me that the telephone was found anywhere else than in Mr. Zere’s possession. Neither the evidence, nor any absence of evidence leaves me with any reasonable doubt about the fact that the phone was found in Mr. Zere’s possession.

b) Ownership of the Phone

[26] Notwithstanding the fact that it was registered to someone named Alem Zere, in context, I find that the cell phone was Mr. Zere’s.

[27] I make this finding for several reasons. First, in a recorded in-cell discussion between Constable Cowan and Mr. Zere concerning contacting counsel (Exhibit 11), Constable Cowan asked Mr. Zere if there was a number on his telephone for the lawyer he had asked the RCMP to contact. Mr. Zere did not deny that the phone was his. Inferentially, he acknowledged having a phone and was aware that it is in police possession.

[28] Second, in his video statement to police, Mr. Zere referred to switching phones recently. He did not say he received a new phone.

[29] Finally, given the similarity of the surnames of the registered owner of the phone and Mr. Zere, and in context of his statement that he “switched phones”, I conclude that he switched phones with someone who shares his last name, likely a family member.

c) Admissibility of Phone Records

The Process:

[30] On November 7, 2016, pursuant to a judicial authorization, Constable Vieira provided a Digital Mobile Field Triage (DMFT) request form (Exhibit 18) to Constable Panzer, an RCMP DMFT technician, requesting that Constable Panzer download the information contained on the phone using the standard software, hardware, and policies and procedures followed by the RCMP for doing such downloads. The unique device identification number (the IMEI number) identified by Constable Vieira in his request to Constable Panzer matched the IMEI number of the cell phone on which Constable Panzer performed the download. Constable Panzer put the downloaded information into an Excel spreadsheet which he forwarded to Constable Vieira. Constable Vieira reviewed the information and on October 4, 2017 created a PDF of that spreadsheet for the purposes of disclosure, which Mr. Zere’s counsel concedes he received.

[31] Based on the information contained in the DMFT download from the phone, a judicial authorization was obtained for the purpose of obtaining from Telus its records with respect to this phone’s phone number and SIM card. Constable Vieira received an email from Telus containing an Excel spreadsheet of that information which he reviewed, and turned into a PDF format for the purposes of disclosure, which was also part of the disclosure given to Mr. Zere, albeit after the preliminary inquiry.

Admissibility Under section 30 of the Canada Evidence Act:

[32] The Telus disc contains information received pursuant to a judicial authorization obtained and submitted to Telus, to produce data with respect to or related to the cellular telephone and SIM card at issue in this case.

[33] The Crown says that because the Telus disc was disclosed to Mr. Zere well before the trial, a notice under section 30(7) of the Canada Evidence Act is not required as the formal requirements of notice and opportunity of inspection are already met. Mr. Zere says that formal notice was required, although he did not argue this strenuously.

[34] The report in excel or PDF formats containing the information requested from and provided by Telus, is admissible. Formal written notice under section 30(7) of the CEA is not always required. It is sufficient if the business record is produced well before trial (for instance at the preliminary inquiry) so that the accused has the opportunity to inspect it (R. v. Penno (1977) , 35 C.C.C. (2d) 266 , 76 D.L.R. (3d) 529 (B.C.C.A.) , at p. 535 D.L.R.; and R. v. Voykin (1986), C.C.C. (3d) 280, 1986 ABCA 154 , 71 A.R. 241 (C.A.) , at para. 2).

[35] In this case, the Telus records disc was produced to Mr. Zere as part of disclosure in approximately October, 2017. The notice requirement under the CEA is met.

Common Law Exception to the Hearsay Rule:

[36] The Crown acknowledges that the information obtained from the cell phone is not a business record and that section 30(7) of the CEA does not apply. The Crown argues, however, that the information taken from the cell phone, as well as the information from Telus, are admissible as exceptions to the hearsay rule. They are inherently reliable.

[37] Mr. Zere argued that neither disc is admissible under the exception of the hearsay rule as the information on those discs is not inherently reliable. The records from the cell phone’s service provider were produced by Telus, for example, whereas the digital mobile field triage checklist (Exhibit 18) at the bottom of the first page, indicated that the service provider was Fido. Therefore, says the defence, I should have reasonable doubt as to whether the records provided by Telus relate to the phone.

[38] For the reasons that follow, both Exhibit 17 and 19-A are admissible as exceptions under the hearsay rule.

[39] I am satisfied that the difference between the service provider listed as Fido on the bottom of the first page of the DMFT form (Exhibit 18) and Telus, the provider who provided the actual records (Exhibit 19-A), is a non-issue. The records on Exhibit 17 and 19-A pertain to the cell phone at issue. Exhibit 19-A, the USB drive containing the Excel spreadsheet containing the information from the DMFT download from the phone, provides an IMEI number (the unique identifier for the phone) of 355060051593783 and an IMSI number (the unique identifier for the SIM card) as 302220305270319. Exhibit 17, the disc containing the Telus records pertaining to the Samsung phone identifies the SIM card in the phone, number 891223010002703245, as having the same IMSI number of 302220305270319.

[40] Mr. Zere argued that I cannot rely on the fact that the IMEI and IMSI numbers were the same as between Exhibits 17, 18 and 19-A. The Crown led no evidence that the IMSI number for the SIM card in the phone is unique among all other SIM cards, or that the IMEI number for the cell phone is unique among all other cell phones. It is possible, says Mr. Zere, that this is mere coincidence. It is possible that the IMSI number is unique only among Telus SIM cards and the IMEI number is unique only among Samsung phones. Put another way, it is possible that IMSI numbers issued to SIM cards issued by one cell phone service provider and the IMEI number issued to cell phones from one cell phone manufacturer are unique only to the specific carrier and manufacturer, respectively and that it is possible that there are SIM cards issued by other carriers and phones manufactured by other manufacturers that will have the same IMSI and IMEI numbers, respectively.

[41] I reject this argument as illogical. Were it so, cellular systems would have no way of differentiating between the identically numbered SIM cards or cell phones. Were it so, cell phone users on different networks and/or using phones that had the same IMSI and IMEI numbers by coincidence, would receive each other’s messages, texts, phone calls.

[42] I turn now to the law, which is still developing.

[43] In R. v. Monkhouse , 1987 ABCA 227, the court addressed the admissibility of information extracted from a company’s payroll system. The witness described the system by which payroll records were created. The employee who entered the information into the system, or extracted the statistics as required by the Order, was not called to give evidence. In a very brief ruling, the trial judge ruled that the evidence was admissible although did not agree that it was hearsay evidence.

[44] The Court of Appeal upheld the decision for other reasons. The Court began with the Wigmore criteria for admitting evidence for the truth of the contents under the common-law exception to the hearsay rule, which are: the document containing the hearsay must be (A) an original entry, (B) made contemporaneously with that which it recorded, (C) in the routine, (D) course of business, (E) by a person since deceased, (F) who was under a duty to do the act and record, and (G) who had no motive to misrepresent (citing Wigmore , 3 rd Ed., Vol. 6, Sections 1517, and 1521-1535).

[45] The Court of Appeal also reviewed Ares v. Venner (1970) , 14 D.L.R. (3d) 4 (S.C.C.), and its progeny extending the Wigmore exception, adding one modification to the Wigmore criteria; namely, that the “original entry” need not be made personally by a recorder with knowledge of the thing recorded. It is sufficient that the recorder is functioning in the usual and ordinary course of a system in effect for the preparation of recording the information and creating the business record. The court recognized the modern reality that business records, customarily, are a compilation of original documents and it is rare that every person who prepared the original document which is compiled in the business record would be called. Those records, however, are accepted daily as valid by all those affected by them. The court cautioned that hearsay records are not accepted in evidence merely to avoid the inconvenience identifying a witness or because many witnesses would have to be called to prove them. Rather, they are admitted only if they come into existence under circumstances which makes them inherently trustworthy. Where there is an established system in a business or other organization that produces records which are regarded as reliable and customarily accepted by those affected by them, they should be admitted, prima facie , into evidence.

[46] The New Brunswick Court of Queen’s Bench, in R. v. Oland , 2015 NBQB 245 , at paras. 89-95, considered the admissibility of cell phone Call Detail Records which formed the basis of expert opinion regarding the location of the deceased’s cell phone at various times. The Call Detail Records is a collection of information stored automatically by various computers taken from cell tower information.

[47] Walsh J. found that CDR’s were reliable, saying:

[93] …It seems to me, as it did to Clark, J. in R. v. Marini, supra, that information captured by automatic electronic equipment fulfills, in the modern era, the “duty” requirement and the “reasonably contemporaneous recording” requirements of the common law. I fail to see how a delay in the electronic sending of the already recorded data to a server to be kept for a period until the company’s business purposes are fulfilled takes this information outside of the common law's criteria for admission.

[94] I therefore find that the cellular site ID information falls within the criteria of the common law business exception to the rule against hearsay. I also hold the same for descriptive tower information recorded on an updated monthly basis in an Excel program file. It is manifestly apparent that for a large corporation like Rogers, this kind of information also needs to be kept current and accurate and that the recording of such information would be done by those under business duty. I harken back to the evidence in the previous hearing of the RF engineer Joseph Sadoun as to the importance of cellular tower information within the communication industry. And, even at common law the record for production in court can be by way of “extracts” compiled from source records ( see: R. v. Monkhouse , 1987 ABCA 227).”

[48] Walsh J. also found that the information was necessary. Relying on R. v. Khelawon , 2006 SCC 57, His Lordship stated that the principle of “necessity” implies that something is necessary when the court will lose the benefit of the evidence unless it is received, untested by cross-examination, to correctly dispose of the litigation before the court. This principle is founded on society’s interest in getting to the truth where it is not always possible to meet the optimal test of contemporaneous cross-examination, without which there is a risk that the evidence could be lost.

[49] Walsh J. also opined on the admissibility of records submitted to court which are created by a computer using well-recognized software, extracted from a larger database of raw data. In that case, the computer automatically recorded information from which information extracted by software used by the cell phone provider and made available to the security department of the cell phone provider, by way of computer generated reports. This was done for the routine purposes of the company’s internal procedures and to respond to court orders to produce such information.

[50] At paragraph 72, the court found that these circumstances guaranteed the trustworthiness surrounding the extraction of the information by the software program. The witness who testified about these purposes was not an IT specialist and could not testify as to the inner workings of the software program or the server. However, he did testify that commercially available software is routinely used and relied upon by Rogers to extract from its raw data information of the sort requested by the court. Walsh J. found that Rogers had an explicit duty to comply with a court order to extract information from source information, reliably. As well, the reports generated from the raw data on which Rogers relied was some evidence that the system operated properly. Therefore, he recognized that the production of internal company information pursuant to the order was the product of an understandable team approach and that there was nothing inherently suspect in this approach that would undermine the circumstantial guarantees of trustworthiness.

[51] Our Court of Appeal has weighed in on the subject. In R. v. Ranger , 2010 ONCA 759, the court considered the argument that the trial judge erred in taking judicial notice that certain cell phones were being operated in various geographical locations at different times. The trial judge concluded, without expert evidence, that he could take judicial notice of the approximate location of a cell phone at a particular time a call was made, based on the cell phone tower that received the signal. Similarly, he could plot the directional movement of a cell phone over a particular time period by reference to the location of the different cell phone towers that receive the signals from that cell phone during the time frame.

[52] At paragraph 15, the Court of Appeal upheld the trial judge’s taking judicial notice of the facts as outlined, without having expert evidence. The trial judge used the cell phone evidence for the limited purpose to show association among the parties and to show the approximate geographical location of the cell phone in relation to the cell phone towers that received the transmission. He did not take judicial notice that the cell phone was in any precise location, merely a general location. In that case, the accused conceded that it was “notorious” that cell phone users engaged in a cell phone call and traveling from point A to B would find that their cell phone signals pass from one tower to another at different times along the route. The Court of Appeal said “we agree and accept that concession”.

[53] In R. v. Farhan et al, 2013 ONSC 7094, Polowin J. addressed the admissibility of investigative documents (Booking Summary Report and mug shots) as business records. She held that while they are excluded from the ambit of the CEA by section 30(10), they are admissible provided they meet the Wigmore criteria.

[54] In this case, on consent, I received the affidavit from Rebecca O’Grady, a security analyst with Telus. She said that Telus maintains, in the usual course of its business, electronic records of information generated by telephone numbers registered with Telus, which are stored electronically. No hard copy exists. Pursuant to a production order dated December 29, 2016, Telus employees searched the electronic records and extracted information pertaining to the cell phone number identified by Constable Vieira. They were then assembled into a document and provided pursuant to the order.

[55] Based on this evidence, I am satisfied that the Telus records as contained in the Excel spreadsheet and the PDF version contained on Exhibit 17 meet the test of reliability and necessity, there being no evidence to the contrary.

[56] I am also satisfied that the information obtained from the cell phone by the RCMP technician on Exhibit 19-A is also reliable. The phone, itself, records information and stores it within the cell phone as part of its normal operation. According to Constable Vieira, the only person to provide relevant evidence on this point, the information is extracted using commercially available software and hardware which the RCMP uses in all cases to extract information from cell phones. This information, too, was extracted pursuant to judicial authorization.

[57] With respect to necessity, no objection was taken by the accused with respect to necessity.

Mr. Zere’s Knowledge

[58] The parties agree that I can convict Mr. Zere only if I find that he knew that the package contained a controlled substance under the Controlled Drugs and Substances Act. It is not necessary that I find that he knew the package contained heroine, specifically.

[59] They also agree that “knowledge” can be Mr. Zere’s specific knowledge that the package contained heroin or at least a controlled drug or substance, or that Mr. Zere was willfully blind to what the package contained (see: R. v. Rai (2011), 88 F.R. (6 th ) 361, 27 C.C.C. (3d) 389 (B.C.C.A.)). In order to find willful blindness, I must find that the circumstances were such that Mr. Zere was aware of the need to make an inquiry about the nature of the substance in the package but deliberately failed to do so because he did not want to know the truth.

[60] The Crown argues that, on the totality of the evidence, I should find that Mr. Zere actually knew what was in the package or, if he did not actually know, that he was wilfully blind to the issue. These factors are:

1. Mr. Cristini and Mr. Zere were long-time friends.
2. Nev was Mr. Zere’s on-again-off-again girlfriend.
3. Mr. Zere, who did not have a valid driver’s licence, was behind the wheel of Nev’s car and began to reverse out of the parking stall in the parking lot before he was stopped by the RCMP.
4. The cellular telephone chargers containing the drugs were not fit for use in North America.
5. The letter from the consignee of the package specifically named Mr. Zere’s long-time friend, Mr Cristini, as the person who could pick up the package.
6. Mr. Cristini lived in the same apartment building as the consignee of the package.
7. Mr. Zere was staying with Mr. Cristini, in Cristini’s apartment at the time.
8. Mr. Zere possessed a cellular telephone which, when it was seized from him, indicated that calls were made from that phone to the Shoppers Drug Mart during the 36 hours before the arrest. These outgoing telephone calls from the cell phone seized from Mr. Zere corresponded with statements made by Shoppers Drug Mart employees to the RCMP concerning calls they received about the package. The evidence concerning the advice from Shoppers employees was investigative hearsay which informed of later steps taken by the RCMP. I did not rely on this hearsay.
9. The cell phone records contain messages sent from the phone about there being ‘big payday’ coming soon. Further, there are incoming messages on February 26, beginning at about 3:40, p.m., from two cell phone numbers that can only relate to the pick up of the package. These messages include references to percentage splits of profit compared to risk, and messages in which people accuse each other of being greedy. Beginning at 7:02, p.m., Mr. Zere’s phone receives text messages such as “how far away are you. I know you said you will be a little late.” and “what’s your ETA”. After 8:05, p.m., there is a series of messages asking about the “ETA”, asking what was happening, asking if Mr. Zere was “dissin”, saying that the absence of a reply was ridiculous and, at 8:35, saying “we’re not going to your house these guys think you’re a good it doesn’t take two hours to come from your place to there I told you not to play with these guys their men not kids wasted a lot of people’s time”. The last note is at 9:44 (long after the arrest) “where the fuck are u guys”. Constable Cowan saw some of these text messages arrive. Further, on the day of the arrest, there were a number of calls to and from both numbers that were sending the text messages (905 391 5148 and 416 700 6650). The telephone was noted, at, 4:28, p.m., to have made one telephone call to the Shoppers Drug Mart number.
10. Mr. Zere made many references during his taped interview with the RCMP which, in the broader context, indicate he was aware that the package contained drugs and that he was involved in the plan to pick up the drugs. For example, he indicated at many points that the other two occupants of the car were not involved and knew nothing about the package. The Crown says that I should infer from this that Mr. Zere did know about the package. He denies being part “of the conspiracy”. He says that and talked about the fact that he was going to give his friend money because his ID was expired. At page 14 line 602 he says “I'ms, I don't. I'm I'm struggling like I want, I wants, I want to be open and forthcoming but like I don’t want I don’t want to say anything and then you guys use it against me and like tie me to some fucking conspiracy like I’ve. Like this is crazy.” He denies that he is drug trafficking and that he even knew there is drugs in the box. At page 21 line 929 and following, Mr. Zere says that there was no talk of drugs and what was in the box. He is asked what he thought was in the box. At that point he says “you know I’ve said enough… I don’t want to be railroaded into like, like”. At page 25, line 1093 he says “I’m not on any organizational chart”. On the same page, while Constable Oliveros is out of the room, Mr. Zere to himself says “what are you thinking” at several instances he think's he says that he feels he is being railroaded by the police, in circumstances which the Crown submits indicate that he has some involvement, just not the level of involvement the police suggest that he has.

[61] Mr. Zere called no evidence, as is his right. He is entitled to say to the Crown, as he has in this case, “You have not done your job. You have not proved beyond a reasonable doubt that I knew or was wilfully blind as to what was in the package".

[62] Mr. Zere argues that this case, like any other drug case, is a circumstantial case. Where it is possible to draw more than one inference from the facts, and if any of those inferences is not consistent with the guilt of the accused, I must acquit. To put it another way, in order to convict I must be satisfied beyond a reasonable doubt that the only inference that can be drawn from circumstantial evidence is that Mr. Zere is guilty. If there are other inferences compatible with not guilty, I must acquit. I agree, but these other inferences cannot be fanciful or remote. They must be plausible and reasonable possibilities ( see R. v. Villaroman , 2016 SCC 33 , at paras. 18 , 35).

[63] In this case I have reasonable doubt that Mr. Zere knew what was in the package or was wilfully blind.

[64] I agree that the telephone records combined with all of the other evidence would point to Mr. Zere’s being aware of or legally blind to the fact that the package likely contained heroin or some other controlled drug or substance.

[65] It is not clear on the evidence, however, that Mr. Zere was the person sending or receiving the phone calls, texts and messages shown in the records. It is a reasonable and rational possibility that someone else in the car was sending and receiving text messages or phone calls, using his phone.

[66] There is no evidence, for example, that anyone else in the car had a cell phone. The only evidence is that there was one cell phone found in the car and that one cell phone was found on Mr. Zere’s person. Assuming that the three people drove into the parking lot together and only one cell phone was in the car, it is a reasonable and rational possibility that any of the three occupants of the car used the cell phone. Likewise, after Mr. Cristini left the car to pick up the package, it is a reasonable and rational possibility that Nev received or sent texts or phone calls.

[67] Absent a finding that Mr. Zere sent and received the text messages and made the phone calls on the cell phone, I am unable to conclude that Mr. Zere’s statements in his police interview show that he knew that the box contained heroin or another controlled substance.

[68] Absent a finding that Mr. Zere sent and received the text messages and made the phone calls on the cell phone, I am likewise unable to conclude that Mr. Zere’s statements in his police interview show that he was wilfully blind to the fact that the package contained heroin or another controlled substance.

[69] The charges against Mr. Zere are dismissed, and an acquittal will be entered.

TRIMBLE J.

Released: October 16, 2018

COURT FILE NO.: 17-661 DATE: 2018 10 16 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and - MERON ASFAW ZERE and CHRISTOPHER CRISTINI REASONS FOR JUDGMENT TRIMBLE J. Released: October 16, 2018