COURT FILE NO.: CR-19-1444 DATE: 2019-12-02

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JUSTICE OKOJIE

COUNSEL: Jonathon Geiger and Robert Tremblay, for the Crown Raj Vijan for the Accused

HEARD: October 28, 29, 31, 2019

REASONS FOR JUDGMENT

J.M. Woollcombe J.

[1] The accused, Justice Okojie is charged on a four-count indictment with offences alleged to have occurred between February 21 and 23, 2018: importing heroin, conspiring to import heroin, possession of heroin for the purpose of trafficking and conspiring to possess heroin for the purpose of trafficking.

Summary of the Relevant Evidence

[2] The evidence before me is largely unchallenged.

[3] On February 18, 2018, a package addressed to “Abel Morrison” at 10 Haynes Avenue, North York, Ontario was intercepted by US customs at a Federal Express Consignment Hub. Inside the package, which was labeled with shipment information as “Beauty Products” were four boxes containing 96 tubes of mascara. In each mascara tube was concealed heroin. The package consignor was Lucy Shighara of Malindi, Kenya.

[4] The American authorities turned the package over to the Canada Border Services Agency (CBSA), who then turned it over to the RCMP. The RCMP removed all but 1 gram of the heroin, which was left in the package as a “control sample”. The RCMP to effect a “controlled delivery” of the package.

[5] In the packages of mascara in the intercepted package was 377.5 grams of heroin. Its value in 2018 in the GTA was $30,200 to $41,525 if sold at the kilogram level and $67,950 to $83,050 if sold at the gram level.

[6] On February 23, 2018, undercover officer Sgt. Marnie Gorgichuk posed as a Federal Express delivery operator for the controlled delivery. She was given the controlled delivery package and “props” to make the delivery. Her plan was to deliver the package to someone who identified themselves as “Abel Morrison”, or a person who took the package in Abel Morrison’s name

[7] Sgt. Gorgichuk arrived at 10 Haynes Avenue at 12:50. The building was a house, and was the corner house in a row of houses. She parked the FedEx truck she was driving and rang the doorbell of the home. No one answered. She rang the bell a second time and again got no answer. Her plan was to stay for only a minute or so.

[8] She rested the package on the rail and looked northbound along Haynes Avenue. She then saw a light-coloured Santa Fe SUV traveling southbound towards her truck. At that point, she had been on the porch for just over a minute. The SUV slowed and parked behind her truck. It had two occupants, a female driver and a male passenger. She said that the male made eye contact with her and said something inaudible. She then called out and asked if he lived at the home. He said “yes”, got out of the car and walked towards her without saying anything. She said that he had crumpled cash in his hand. It is agreed that the accused, Mr. Okojie, is the person with whom the officer spoke.

[9] As he walked towards Sgt. Gorgichuk, Mr. Okojie asked her how much he owed. She responded, saying, “A-bell”. She said this in order to confirm his identity. She mis-pronounced the name “Abel” and Mr. Okojie corrected her, replying, “Yes, Abel Morrison, Abel Morrison”. At no point did Sgt. Gorgichuk ask for identification from Mr. Okojie.

[10] She told him that the duty and taxes were $38.87 and that she needed a credit card or exact change. He told her he did not have a credit card but could give her cash. He then went to the SUV and returned with two $20.00 bills. He gave them to her, and she said that she needed exact change. He replied that should could keep the change. She told him that he would get her in trouble, and they laughed about it.

[11] The officer pulled out a pink “Receipt” and ticked the box that he had paid the funds and wrote $40.00. She tore off the top of the receipt and handed it to him. He put it into what she described as his man purse.

[12] The officer apologized to Mr. Okojie for taking so long. She said that she took out the scanner she had been given, but that it was not working and so she grabbed a delivery tag. On it, she wrote down the tracking number from the waybill and asked him to sign to confirm receipt of the package. He wrote four illegible letters on the door tag, which was marked as Exhibit 12.

[13] The officer said goodbye and handed Mr. Okojie the package. She said that he took it to the SUV and that he left with the package on his lap. The surveillance officer, Corporal Saade, testified that he saw Mr. Okojie put the package in the rear passenger side of the Santa Fe. The vehicle left the area.

[14] Mr. Okojie was followed from the area of 10 Haynes Avenue to a parking lot in Newmarket where he was arrested at 2:04 p.m. that afternoon. His then girlfriend, Norina Paolucci, was the driver of the SUV and was in it with him at the time of the arrest. After being arrested and read his rights to counsel, Mr. Okojie told Corporal Saade that his girlfriend had nothing to do with this.

[15] The Santa Fe was searched, and a satchel located. Its contents included 3 chequebooks in the names: (1) Xiaoyun Chen; (2) Justin Duke and (3) Kellie-Anne Lohnes and Justin Duke. There was also an RBC client card with the name Justice Duke. In addition, there was a Visa card and Ontario health card in Mr. Okojie’s name.

[16] At the detachment, Mr. Okojie was processed by Cst. Rimanelli. The officer completed the tombstone information on a prisoner’s log based on what he was told by Mr. Okojie. The prisoner’s log was entered as Exhibit 14. Mr Okojie told the officer that his address in North York was 329 Cook Road.

[17] It is agreed that Mr. Okojie showed the police his cellular telephone and that the phone had a text message exchange with the name “Chucks3”. An incoming text to Mr. Okojie read “Abel Morrison, 10 Haynes Avenue”. Mr. Okojie had responded, “ok”. There is no evidence as to the date of these text messages.

Relevant Legal Principles

[18] Mr. Okojie is presumed innocent. He is not required to prove anything and was not required to adduce evidence or to testify. I draw no inference from his decision to call no evidence. The burden of proving his guilt rests on the Crown. This is a heavy burden. I must assess the evidence before me to determine whether the Crown has proven each of the essential elements of the offences beyond a reasonable doubt.

[19] In order to prove the offences charged, the Crown must prove their essential elements beyond a reasonable doubt. I will set out the essential elements of each offence as I address it.

[20] It is important to recognize that in a case like this one, 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.

[21] In R. v. Villaroman, 2016 SCC 33, Cromwell J. reviewed the legal principles relevant to the court's assessment of circumstantial evidence and the relationship between circumstantial evidence and proof beyond a reasonable doubt. He explained that when assessing circumstantial evidence, the trier of fact should consider "other plausible theories" and "other reasonable possibilities" that are inconsistent with guilt. These 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. The question, ultimately, 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. If it is, an accused must be acquitted.

[22] In R. v. Morris, 2017 ONSC 835, Code J. also summarized the law relating to circumstantial evidence at paras. 103 to 106:

103 … 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

104 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.

105 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. Côté (1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 (S.C.C.) at 76 S.C.C. at 76:

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.]

106 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.

Analysis

[23] I will address each of the offences separately.

Count 1: Has the Crown proven that Mr. Okojie imported a controlled substance?

[24] The essential elements of the offence are:

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.

[25] The real issues to be determined by me with respect to the importing charge are:

• whether the Crown has proven beyond a reasonable doubt that the accused had any involvement in the act of importing the heroin. This issue relates to the actus reus of the offence of importing, which the defence says has not been proven;
• whether the accused knew that there was a controlled substance in the package; and
• whether the accused knew that the controlled substance was imported from another country.

Whether the Crown has proven beyond a reasonable doubt that the accused had any involvement in the act of importing the heroin

[26] The Crown says that the importation of the package with the heroin continued until Mr. Okojie took delivery of the package.

[27] It is the defence position that in order to establish that the accused imported, the Crown must prove the accused’s involvement in either bringing the controlled substance into Canada or causing it to be brought into Canada. Counsel relies on the Supreme Court of Canada’s decision in R v. Bell, 1983 CanLII 166 (SCC), 1983, SCJ No. 83. It is the defence position that the Crown has adduced no evidence that the accused had any personal involvement in bringing the package with the heroin into Canada. The defence says that the actus reus, or act of importing, was complete before he had any connection to the package and thus he must be acquitted.

[28] After reviewing the relevant authorities, it is clear that the offence of importation does not require the accused to have been involved with actually bringing the package into Canada. In reaching that conclusion, I rely on R. v. Foster 2018 ONCA 53, and the cases from the Court of Appeal that follow it. These cases explain that while the offence of importing is completed in law when the contraband enters Canada, the offence is not complete in fact until the contraband reaches its intended recipient.

[29] In very similar circumstances as those before me in R. v. Onyedinefu, 2018 ONCA 795 the Court of Appeal explained this, expressly rejecting the argument now advanced by the accused at paras. 6-8:

6 …More specifically, the appellant's complaint is that the offence of importing was complete before he accepted the package and there is no evidence that he was responsible for importing the drugs.

7 We disagree. The offence of importing was not factually complete until the appellant took possession of the package. The appellant's role in the importing was aiding the principals of the scheme.

8 After a careful review and consideration of Bell v. R., 1983 CanLII 166 (SCC), [1983] 2 S.C.R. 471 (S.C.C.) - which the appellant principally relies on — this court in R. v. Foster, 2018 ONCA 53(Ont. C.A.), held at para. 106: while "importing may be legally complete on entry into Canada, it is not factually complete" until the drugs clear customs and become available to the ultimate recipient. Thus, importing is a process that begins with the procurement of the contraband, its transport to a point of entry, and ultimately to a domestic destination or recipient. Here the facts are that the importing of heroin was complete in law when it entered Canada and in fact when the appellant, who was the Canadian recipient, took possession of it.

[30] I am persuaded that the actus reus of importing is proven and conclude that the importation was completed, in fact, when Mr. Okojie took the package. See also: R. v. Buttazzoni, 2019 ONCA 645.

Whether the accused knew that there was a controlled substance in the package

[31] I turn next to whether the Crown has proven that Mr. Okojie knew that the package contained a controlled substance.

[32] The defence says that the evidence that Mr. Okojie knew there was a controlled substance in the package is just too thin. The heroin was well concealed. The text he received respecting the address for the delivery and name of recipient said nothing about controlled substances and, furthermore, there is no evidence as to when that text was even sent. There is no evidence of anyone ever telling the accused that there was an illegal substance in the package. Nothing on the outside of the package gave any indication that it had heroin inside it. The waybill stated that the content was mascara. While the accused made an utterance that his girlfriend was not involved, the defence says this does not mean he had knowledge of the contents of the package.

[33] Despite these arguments, I find that the only reasonable inference from the totality of the circumstantial evidence is that the accused knew that the package he took from Sergeant Gorgichuk contained a controlled substance. I say this for the following reasons.

[34] First, I rely on the fact that the accused received a text message that provided him with the name Abel Morrison and the address of 10 Haynes Avenue. He responded “ok”. I view this as an indication that he knew that there was a delivery for Abel Morrison that he was to take receipt of at that address using a false name. This is some indication that he knew that there was something illicit about what he was doing.

[35] Second, I consider the value of the package. As Hill J. explained in R. v. Ukwuaba 2015 ONSC 2953, at para. 112, heroin trafficking is a commercial business for profit. Common sense dictates that those who own this sort of valuable illegal item seek to protect it against the risk of detection or loss. It makes sense, therefore that they would protect their investment by insuring that they have trusted insiders handling the drugs where possible. This necessitates that those who receive packages into Canada with valuable narcotics appreciate what it is they are receiving. Common sense powerfully suggests that Mr. Okojie knew what he was receiving.

[36] Third, I consider the level of sophistication of the importing operation. Both parties agree that concealing the small heroin packages in the top of the mascara was sophisticated. This packaging would have been time consuming. The package with the mascara was shipped from Kenya. Given the amount of effort spent concealing the drugs and then getting them from Kenya into Canada, it just makes sense that the person receiving the package would know what is in it.

[37] Fourth, I consider the words and actions of Mr. Okojie at the time that he took possession of the package, knowing that it was not addressed to him. I view his conduct as demonstrative of the fact that he was aware that there was a controlled substance in the package and that he was determined to ensure that he took possession of it, even if doing so required misleading the officer as to who he was. More specifically:

a. Mr. Okojie knew that there was a FedEx package being delivered to 10 Haynes Avenue. When Sgt. Gorgichuk first asked him if he lived there, he said he did. Given that he provided a different home address to Cst. Rimanelli at the police detachment after his arrest, it appears that he lied to Sgt Gorgichuk so that she would deliver the package to him.

b. Mr. Okojie also intentionally misled the officer into believing that he was Abel Morrison, the person to whom he knew the package was sent. When she mis-pronounced the first name of the person to whom the package was sent, he immediately corrected her and provided the last name Morrison. I find that he did this with the intention of making her believe that was who he was, even if he did not say so directly. I have no doubt that the accused was trying to appear to be the intended recipient of the package.

c. Mr. Okojie signed the door delivery tag to acknowledge taking possession of the package. What he wrote on the document is not really clear. I cannot conclude, as the Crown suggests, that he used a signature different from what he later used at the detachment. But, I do find that the act of signing for the package was a further step taken in his effort to hold himself out as the proper recipient of the package, Abel Morrison.

[38] Fifth, I find that Mr. Okojie’s statement after his arrest that his girlfriend had nothing to do with this is some evidence that he knew that there was a controlled substance in the package when he took it. While the package was not addressed to his girlfriend, his utterance suggests that he knew that there were a small number of people who would be aware of its contents, that he was within that circle, and that he knew that his girlfriend was not in that circle. While I accept that Mr. Okojie could have been trying to mislead the police, I view his statement as a further piece of circumstantial evidence that he knew that there was a controlled substance in the package.

[39] In considering all of the evidence, I am persuaded that Mr. Okojie knew that there was a controlled substance in the package.

Whether the accused knew that the controlled substance was imported from another country

[40] The remaining issue with respect to count one is whether the Crown has proven that the accused knew that the controlled substance that he took possession of was from outside the country.

[41] The defence points out that in R. v. Atuh, 2013 ABCA 350, the Alberta Court of Appeal held, at para. 7 that:

7 …To prove that a recipient is guilty of importing, something more than receipt and knowledge of receiving a controlled drug is required to prove that the recipient was either a principal in, or party to, importing. Here the trial judge did not turn his mind to whether Atuh knew where the drugs were coming from. Thus, even if Vu applies, the reasons relating to the conviction for importing do not address the issue of Atuh's knowledge, not only of the fact that the books contained drugs, but also the origin of the drugs. In other words, the Crown must prove that Atuh knew that the drugs he knowingly expected and accepted were from out of the country.

[42] See also: R. v. Gill, 2017 ONSC 3558 at paras. 74-79; aff’d 2019 ONCA 902 and R. v. Ukwuaba 2015 ONSC 2953 at para. 105.

[43] It is the defence position that the Crown has not proven that the accused knew that the controlled substance was from out of the country.

[44] I do not agree.

[45] Five aspects of the evidence, viewed together, lead me to conclude that the accused knew that the package came from out of the country.

[46] First, it is of significance that as soon as he began speaking with Sgt. Gorgichuk, Mr. Okojie had money in his hands and asked her what he owed. He knew, it appears, that he would have to pay a fee or tax in order to accept the package. That is some indication that he was aware that there was duty owing because the package came from another country.

[47] Second, the accused was told that the duty and taxes were $38.87. Hearing that there was “duty” owed would have suggested to the accused that the package had come from outside Canada.

[48] Third, after receiving the $40.00 from the accused, the officer gave to him the pink receipt that is marked as Exhibit 9. On the right side of it, there is a breakdown of the $38.87, and there is an indication that the first item listed, $10.01, was “Customs Duty”. Again, this suggests that the package has come from outside Canada.

[49] Fourth, Sgt. Gorgichuk gave to the accused the door tag that has been marked as Exhibit 12. She wrote the waybill number on it and had him sign to confirm receipt of the package. His signature is directly adjacent to an indication on the door tag that there were “import duties and taxes” to collect and her hand-written indication that these were $38.87. The fact that the accused had this document when he placed his signature on it, right beside the indication that there were import duties and taxes, is further support for him knowing that the package was from another country.

[50] Finally, when he received the package, there was, on top, a waybill, which has been entered as Exhibit 6. On the top of the waybill, there is an indication that the package is from Malindi, Kenya. This is a further indication that the package was from outside of Canada.

[51] The evidence, viewed cumulatively, is very different from that which was considered by Fairburn J., as she then was, in Gill. There was no evidence in that case to support an inference that the accused knew the origin of the package. Here, I find that there was an abundance of evidence that the package was from out of the country and that Mr. Okojie knew that.

[52] In conclusion, the only reasonable inferences to draw based on the circumstantial evidence as a whole are, first, that the accused was aware that there was a controlled substance in the package addressed to Abel Morrison when he took control of if from Sgt. Gorgichuk and, second, that the package had been imported into Canada. On the basis of these findings, I conclude that Mr. Okojie is guilty of importing heroin.

Count 2: Has the Crown proven beyond a reasonable doubt that Mr. Okojie conspired with others to import heroin?

[53] The essential elements of this offence are:

1. There was a conspiracy between two or more persons;
2. The conspiracy was to import heroin into Canada; and
3. The accused, Mr. Okojie, was a member of that conspiracy.

[54] 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.

[55] There is no issue that there was an agreement between two or more parties to import heroin into Canada. The real issue is whether Mr. Okojie was a party to that agreement.

[56] It is my view that the Crown has proven beyond a reasonable doubt that Mr. Okojie was a party to an agreement to accept the package. One compelling aspect of the evidence of Mr. Okojie having an agreement with at least one other person is that he received a text message with the name Abel Morrison and the address of 10 Haynes Avenue to which he responded saying, “ok”. Taken in isolation, this does not mean much. But, Mr. Okojie acted on the text and went to the identified address and collected the package by holding himself out as Abel Morrison. The only reasonable inference to draw is that when he responded “ok”, he was acknowledging that he would accept the package for Abel Morrison.

[57] The difficulty I have is the absence of compelling evidence that Mr. Okojie was part of a plan to import the heroin into Canada. As I have indicted already, I am satisfied that he knew that it came from outside Canada when he took the package. But, there is an absence of evidence that he knew before taking the package that it had come from outside the country.

[58] The Crown points to two aspects of the evidence that it says support an inference that Mr. Okojie was aware that the package was from outside Canada when he arrived at 10 Haynes Avenue: the fact that he had cash crumpled in his hand and the fact that he asked what was owed for the package. While these pieces of evidence do support a possible inference of knowledge, I cannot conclude that they are enough to prove his knowledge that the package was from outside Canada beyond a reasonable doubt.

[59] On this basis, Mr. Okojie is acquitted on count two.

Count 3: Has the Crown proven beyond a reasonable doubt that Mr. Okojie possessed the heroin for the purpose of trafficking?

[60] The essential elements of this offence are:

1. The accused was in possession of a substance;
2. The substance was heroin;
3. The accused knew that the substance was heroin; and
4. The accused had possession of the heroin for the purpose of trafficking.

[61] It is an agreed fact that the quantity of heroin (337.5 grams) located in the package was for the purpose of trafficking.

[62] I have already explained my reasons for concluding that Mr. Okojie was, when he took the package, knowingly in possession of a controlled substance. The only issue, therefore, is whether Mr. Okojie knowingly had possession and control of the heroin for the purpose of trafficking.

[63] Mr. Vijan initially made the submission that because the quantity of heroin contained in the package in Mr. Okojie’s possession was so small and consisted of a 1-gram sample, rather than the 337.5 grams that had been in the original package, Mr. Okojie could not be found guilty of possession for the purpose of trafficking. I understood him, however, to wisely resile from this position. His initial position was firmly rejected in R. v. Chan, 2003 CanLII 52165 (ON CA), [2003] O.J. No. 3233; leave to appeal dismissed [2003] S.C.C.A. No. 453.

[64] Based on the findings I have already made, and the fact that I find that Mr. Okojie intended to and expected to receive the quantity of heroin that was in the original package, I find him guilty of possession of heroin for the purpose of trafficking.

Count 4: Has the Crown proven beyond a reasonable doubt that Mr. Okojie conspired with others to possess heroin for the purpose of trafficking?

[65] The essential elements are:

1. There was a conspiracy between two or more persons;
2. The conspiracy was to possess heroin for the purpose of trafficking; and
3. The accused, Mr. Okojie, was a member of that conspiracy.

[66] Accordingly, in order to be found guilty of count 4, the Crown must prove that there was an agreement between two or more people to possess a controlled drug, in this case heroin, for the purpose of trafficking, and that Mr. Okojie was part of that plan: R. v. Baker (1974), 1974 CanLII 1559 (BC CA), 21 C.C.C. (2d) 572 (B.C.C.A.).

[67] As I have indicated, I am satisfied that there was a conspiracy to import the heroin, although I cannot be sure that Mr. Okojie was a part of that plan. I am satisfied that Mr. Okojie knowingly possessed the heroin. Given the amount of heroin that I find he intended and expected to possess, his possession was for the purpose of trafficking. But, I see no evidence that he had any agreement with anyone else to possess the heroin for the purpose of trafficking. On this basis, he must be acquitted of count 4.

Conclusion

[68] I find the accused guilty of count 1, importing heroin and of count 3, possession of heroin for the purpose of trafficking. I find him not guilty of conspiracy to import heroin and of conspiracy to possess heroin for the purpose of trafficking.

Woollcombe J.

Released: December 2, 2019