Court File and Parties

COURT FILE NO.: CR-18-90000607-0000 DATE: 20200224

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – EVANS OKWARA Accused

COUNSEL: Jason Mitschele and Alexia Bystrzycki, for the Crown John Struthers and Ashli Pinnock, for the Accused

HEARD: January 27, 28, 29, 30 and 31, 2020

Cavanagh J.

Reasons for Judgment

Overview

[1] Evans Okwara is charged with possession of a controlled substance, heroin, for the purpose of trafficking, and unlawfully importing heroin into Canada, contrary to s. 5(2) and s. 6(1), respectively, of the Controlled Drugs and Substances Act. The Crown withdrew the other two counts in the indictment.

[2] The issues with respect to these charges are whether the Crown has proven beyond a reasonable doubt that Mr. Okwara was knowingly involved with the importation of a package containing 799.5 grams of heroin to Canada and whether he knew that the package he received in his vehicle on July 27, 2017 contained heroin.

[3] For the following reasons, I am satisfied that the Crown has proven beyond a reasonable doubt the essential elements of the offences with which Mr. Okwara is charged. As a result, I find him guilty of these offences.

Events which resulted in Mr. Okwara’s arrest

[4] The Crown and Mr. Okwara entered into an Agreed Statement of Facts by which the facts stated are considered admissions of fact for the purpose of the trial of Mr. Okwara, pursuant to s. 655 of the Criminal Code.

[5] On July 18, 2017, a shipment which originated in Pakistan was imported into Canada on an Air Canada flight and destined for an address in Etobicoke, Ontario. The shipment was examined by a Border Services Officer. Heroin was discovered concealed in the soles of high heeled shoes with a total weight of 799.5 grams. As a result, the RCMP prepared a substituted shipment containing a control sample of the heroin and received judicial authorization to conduct a controlled delivery.

[6] On July 24, 2017, the RCMP attempted a controlled delivery of the heroin shipment. An undercover officer attended at the Etobicoke address to deliver the package. No one answered the door. The controlled delivery was called off for that day.

[7] On July 27, 2017, the RCMP officers learned through DHL that the heroin shipment had been re-directed online, the day before, from the Etobicoke address to 21 Boake Street, North York, Ontario. The unknown person who re-directed the shipment indicated that no signature was required upon delivery. Consequently, RCMP officers attempted a second controlled delivery that same day.

[8] Officer Robert Saade was on the controlled delivery team that day. He was assigned to be the “eye” of the team who would have direct visibility of the location of the controlled delivery package. Officer Saade testified that at 15:30 p.m. on July 27, 2017 the controlled delivery package was left at the doorstep at 21 Boake Street. Officer Saade observed a female who was later identified as Nancy Mintah come to the house at 21 Boake Street and pick up the package. Ms. Mintah walked a couple of blocks to a nearby house and entered the front door of the house carrying the package. Officer Saade adjusted his location so he could have a good visual view of the front of the house which was identified as 73 Haynes Avenue.

[9] Officer Saade testified concerning his observations of a person outside of this house and I will address this evidence later in my reasons.

[10] Officer Saade testified that he observed a black Mercedes pull up to this address. The driver of the Mercedes vehicle was later identified as Mr. Okwara.

[11] Officer Saade testified that the saw the same female who had gone into the house with the package come out and walk toward the Mercedes vehicle, carrying the package. He saw the male get out of the vehicle and head towards the back of the vehicle, where the female was headed. The controlled delivery team had decided in advance that if the package went into a vehicle, they would not allow the package to go further because the team did not have resources to conduct surveillance by vehicle. Officer Saade called a takedown when both the male and female were headed to the back of the Mercedes SUV.

[12] The controlled delivery team converged on Ms. Mintah and Mr. Okwara and took them down. Both were arrested at approximately 17:25 p.m. on July 27, 2017.

[13] The statements from the Agreed Statement of Facts are admitted, and I accept the evidence given by Officer Saade to which I have referred. I find that the controlled delivery package containing heroin was placed in the backseat of the black Mercedes SUV which Mr. Okwara was driving at the time of his arrest and that Mr. Okwara accepted this package. Mr. Okwara was the owner of this vehicle.

[14] Officer Saade testified that searches of Mr. Okwara and the Mercedes vehicle were conducted as searches incident to the arrest. The RCMP officers seized the controlled delivery package which Ms. Mintah had placed inside the Mercedes vehicle on the rear seat. The officers seized two cellular phones, a red iPhone and a white BLU phone. The officers also seized a wallet and some documents found in the centre console of the vehicle. RCMP officers also conducted a search of Mr. Okwara’s house and a search of a storage locker which they identified from documents seized from Mr. Okwara’s vehicle.

Positions of the Parties

[15] The Crown’s position is that Mr. Okwara was involved in the importation of the package containing heroin to Canada and knew the package that was placed in his vehicle at 73 Haynes Avenue contained heroin intended for trafficking. The Crown relies on the evidence of Officer Saade who saw Mr. Okwara arrive in his vehicle at 73 Haynes Avenue and open the car door to receive from Ms. Mintah the controlled delivery package containing the control sample of heroin. The Crown also relies on evidence from the searches of Mr. Okwara’s car, the search of a storage locker (where an additional significant quantity of heroin was found) which was identified from documents found through the vehicle search, the search of Mr. Okwara’s house, and the call records from the two cell phones which were seized from Mr. Okwara’s vehicle.

[16] The Crown’s position is that it has proven beyond a reasonable doubt that Mr. Okwara possessed heroin for the purpose of trafficking and that he unlawfully imported heroin into Canada for the purpose of trafficking, contrary to the Controlled Drugs and Substances Act.

[17] Mr. Okwara testified in his own defence at the trial. Mr. Okwara testified that on July 27, 2017 he was hired by an acquaintance, Mr. Amara, to drive him around that day. He testified that he drove to Ms. Mintah’s house on the instructions of Mr. Amara. Mr. Okwara’s evidence is that he was not involved with importing a package from Pakistan containing heroin, and he did not know anything about a package being delivered to 21 Boake Street on July 27, 2017 or the package that Ms. Mintah placed in his car at 73 Haynes Avenue. He testified that he did not know that this package contained heroin. Mr. Okwara testified that he did not rent or know about the storage locker which was found to contain heroin, and that the items in this locker are not his.

[18] Mr. Okwara’s position is that he was unknowingly used by Mr. Amara to pick up the package from Ms. Mintah so that Mr. Amara could avoid the risk of arrest if the package was being surveilled by the police.

Issues on the charges

[19] The issues with respect to these charges are whether the Crown has proven beyond a reasonable doubt that Mr. Okwara was knowingly involved with the importation of heroin to Canada and whether the Crown has proven beyond a reasonable doubt that Mr. Okwara knew that the package that Ms. Mintah placed in his vehicle on July 27, 2017 contained heroin.

Other Evidence

[20] In addition to the circumstances to which I have referred in relation to the controlled delivery and takedown on July 27, 2017, the Crown relies on (a) the evidence of Officer Saade’s observations of 73 Haynes Avenue on the day of the arrests; (b) the evidence of Nancy Mintah; (c) evidence from the searches of Mr. Okwara’s vehicle, Mr. Okwara’s home, and a storage locker identified through documents seized from Mr. Okwara’s vehicle; and (d) reports from the analyses of the two cell phones seized from Mr. Okwara’s vehicle.

Officer Saade’s observations at 73 Haynes Avenue before Ms. Mintah came out with the package

[21] Officer Saade testified that at 17:12 p.m. on July 27, 2017, after Ms. Mintah had taken the controlled delivery package to 73 Haynes Avenue, he had moved to a location where he had a view of 73 Haynes Avenue. He spotted a black male with an average build standing in front of the house at 73 Haynes Avenue lighting a cigarette. This man was wearing a red sweatshirt. This person walked north towards the corner of Assiniboine Road and Haynes Avenue. Officer Saade testified that this man turned around and stared at the address for a little bit and went back to the residence and stood under a tree on the property at 73 Haynes Avenue, looking at the house. It appeared to Officer Saade that this man was waiting for someone to come out. The man then walked across the street and disappeared from Officer Saade’s vantage point. I accept Officer Saade’s evidence of his observations at 73 Haynes Avenue on July 27, 2017.

[22] Officer Saade testified that approximately 1 to 2 minutes later a black Mercedes pulled up to this address. He could not clearly see the driver, but he could see he was a black male wearing a red sweatshirt. Officer Saade believed the driver was the same person he had seen outside the house at 73 Haynes Avenue.

Nancy Mintah’s evidence

[23] Ms. Mintah testified that at approximately 11:30 a.m. on July 27, 2017 she was sitting on the front porch at 73 Haynes Ave. and saw two men in a dark coloured Mercedes driving by. She knew the time because she had just finished watching The View on television. They drove by once and then drove by her house again. The men in the car stopped and chatted with her and she agreed that they could come up to the porch for a cigarette. They asked for directions to Mary Ross Parkway. They asked what she was doing that day and she told them that she planned to go out later to get her nails done. She testified that the men drove her to Tim Horton’s, and she said that on the way she could show them where Mary Ross Parkway was. They dropped her back at 73 Haynes Avenue afterwards. Ms. Mintah testified that “Chris”, who she identified as Mr. Okwara, gave her his phone number and she gave him her number. They offered to pick her up later and drive her when she went to do her nails.

[24] Ms. Mintah identified the man driving the car as Mr. Okwara. She identified the other man by the name “Amara”. Ms. Mintah testified that she did not know Mr. Okwara but recognized him from the African community. She did not know the other man, Amara.

[25] Ms. Mintah testified that after she was dropped off, her friend came over. She told her friend that they would be going out with the two guys after they finished having their nails done. Ms. Mintah testified that she received a call from Amara who said that he would come by later to take her to have her nails done.

[26] Ms. Mintah testified that she received a second call from Amara who told her that he was getting a package from DHL delivered to his other house on Boake Street and he asked her to pick it up for him. He said he would come by in half an hour to take her to do her nails.

[27] Ms. Mintah testified that she finished doing her makeup and then walked to the Boake Street address to pick up the package and she brought it back with her to her house. She testified that Amara called her again and asked if she had picked up the package. Amara told her that “Chris” (the other man in the car who she identified as Mr. Okwara) was coming to pick her up instead because he was taking longer to get ready. He said that Mr. Okwara would be there shortly.

[28] Ms. Mintah testified that she received another call from the man she knew as Amara who said that Mr. Okwara is at her door. She looked out, and he was parked outside of the house. She testified that she finished doing her eyelashes and then she brought out the package. He waited for her on the passenger side of the Mercedes vehicle. Mr. Okwara thanked her for getting the package and asked whether he could give her $20, which she declined. He opened the back passenger door for her, and she put the package on the passenger seat. She told Mr. Okwara that it might take another 10 minutes for her to get ready. She asked whether Mr. Okwara could go to Tim Horton’s and she would be ready when he returned. At this time, the police came and arrested both of them.

Search of the Mercedes SUV on July 27, 2017

[29] Officer Saade testified that after the arrests, he and Officers George Johnson and Gregory Thomas searched the Mercedes SUV vehicle Mr. Okwara was driving. Officer Saade had received a call a few minutes earlier from Officer Bryce Fiegehen who advised that Mr. Okwara had requested the phone number of his lawyer which was in his wallet in the centre console of the vehicle. He found the wallet in the centre console and provided Officer Fiegehen with the contact information for four lawyers from cards found in the wallet. Officer Saade also seized two cell phones found in the centre console. One was a red iPhone and the other was a white BLU phone. Mr. Okwara was not in possession of a phone on his person when he was arrested. The wallet and the cell phones were put into a temporary storage locker and the contents were later turned over to Officer Fiegehen.

[30] Officer Johnson testified that he participated in the takedown on July 27, 2017. He put Mr. Okwara on the ground and secured him. He searched the Mercedes vehicle and found in the centre console a rental agreement for a storage locker at Access Storage and a receipt from Access Storage for $105.70. These documents were in the name of Davis Eysayah Jaymin Elijah. The space number on the lease agreement is 5916.

[31] Officer Fiegehen testified that he was involved in the controlled delivery during which the controlled delivery package was placed in the backseat of the black Mercedes vehicle which Mr. Okwara was driving. He testified that Mr. Okwara owned this car, and he had owned it for one and a half to two months.

[32] Officer Fiegehen testified that he was involved in processing exhibits which were turned over to him by Officer Saade, including Mr. Okwara’s wallet. Officer Fiegehen identified a card found in Mr. Okwara’s wallet which showed “DIRECTIONS FOR OPERATING GATE” and a passcode number 5916 4912.

Search of Mr. Okwara’s home on July 28, 2017

[33] A search warrant was obtained for a search of Mr. Okwara’s home at 475 The West Mall, Unit 314 and this warrant was executed early in the morning on July 28, 2017.

[34] Officer Jennifer Oliveros testified that she was involved in the search of Mr. Okwara’s residence at 2:45 a.m. on July 28, 2017. She searched a room where there was an unplugged freezer. When she opened the freezer, it was filled with deflated soccer balls. No drugs were found in the soccer balls. There was also a box with a DHL waybill which also originated in Pakistan and was destined for 11 Boake Street in North York. This package also contained soccer balls. No drugs were found in the box of soccer balls. Officer Oliveros noted that there was a TV in every room, and the one in the living room was large, with a curved screen.

[35] Officer Gregory Thomas testified that he also participated in the search of Mr. Okwara’s house. He testified that he found several women’s shoes in a closet at the house. He found one shoe which had the heel removed from the shoe. A photo was taken of this shoe which was placed into evidence.

Search of storage locker at Access Storage on August 2, 2017

[36] A search warrant was obtained for a search of a storage locker at Access Storage. The storage locker which was searched was number 5916, which was shown on the rental agreement and also as part of the access code on the card found in Mr. Okwara’s wallet seized from the centre console of his vehicle. This search was done on August 2, 2017. The lock on storage locker 5916 was broken and the locker was searched.

[37] Officer Oliveros testified that she attended this search with several other officers. She observed several empty boxes for televisions, including one for a large television with a curved screen. She found a box for a child’s car seat and inside this box she found deflated soccer balls with the same design of the soccer balls she had found in Mr. Okwara’s apartment. Officer Oliveros also found three diaper boxes. One of these boxes, a Huggies box, contained a cloth bag with a zipper within which was a plastic bag which contained a substance identified as heroin. It is agreed that the substance found in the Huggies box was heroin which weighed 551 grams.

Mr. Okwara’s evidence

[38] Mr. Okwara testified that he is married with four children, ages 10, 8, 4, and 3. He testified that at the time of the alleged offences, he was working as a construction worker. He was also working as a ride share driver.

[39] Mr. Okwara testified that he first met Mr. Amara at a picnic at Centennial Park held for the Nigerian community in Toronto in 2015 or 2016. He also attended this picnic in June 2017, and he saw Mr. Amara there. Mr. Amara attended with his wife and his 4 to 5-month-old baby. At the picnic, Mr. Okwara’s son was playing soccer, and Mr. Amara came up to him to say how good his son was at soccer. Mr. Amara offered to give Mr. Okwara some soccer balls, and he accepted. Mr. Okwara testified that Mr. Amara asked him about his work, and he told him that he was a driver for a ride share service outside his regular work.

[40] A couple of days later, Mr. Amara gave him two boxes of soccer balls which Mr. Okwara took to his house. He put the contents of one of the boxes in an unplugged freezer which was used for storage and he left the other box unopened. Mr. Amara gave Mr. Okwara his phone number so they could stay in touch. Mr. Okwara testified that they were in contact by telephone on July 26, 2017 when Mr. Amara called him to ask about his availability to drive Mr. Amara the next day.

[41] Mr. Okwara testified that on July 27, 2017, Mr. Amara called him in the morning and asked whether anyone had booked him as a driver that day. Mr. Okwara responded that he was not booked, and Mr. Amara asked if he would drive him around for the whole day. They agreed on a charge of $150 and Mr. Amara gave Mr. Okwara his address at 555 The West Mall. Mr. Okwara testified that he picked Mr. Amara up at this address around 10:30 to 11:00 a.m. that morning.

[42] Mr. Okwara testified that Mr. Amara asked him to drive to his girlfriend’s house at 73 Haynes Avenue near York University. He testified that they went straight to this address when he picked up Mr. Amara. When they arrived around 11:30 a.m. or noon, Mr. Amara called the girl, Ms. Mintah, who came outside, and she and Mr. Amara chatted. Mr. Okwara testified that he did not know what the relationship was between Mr. Amara and Ms. Mintah. Mr. Okwara stayed in the car and around 1:00 or 1:30 p.m. they then drove to a nearby Tim Horton’s and Mr. Amara and Ms. Mintah went inside. Mr. Okwara then drove Ms. Mintah back to 73 Haynes Avenue. Mr. Okwara testified that Mr. Amara told him that Ms. Mintah was going to dress up, and they will come back to pick her up. Mr. Amara asked Mr. Okwara to drive him to a salon so he could dress himself up too.

[43] Mr. Okwara testified that when they arrived at the salon, there was a queue of people. Mr. Amara asked Mr. Okwara to wait for him. Mr. Okwara testified that when he parked the car at the salon, Mr. Amara left the white cell phone, some papers, and something like a business card on the front passenger seat and asked him to look after these items because Mr. Amara did not want to take them to the salon. In his examination in chief, Mr. Okwara testified that after an hour or two, Mr. Amara came out and told him that there were still 4 or 5 people in front of him, and that Ms. Mintah was ready, and he should go and get Ms. Mintah for him and bring her to the salon. Mr. Amara went back to the salon. He said nothing about a package. Mr. Okwara testified in cross-examination that he and Mr. Amara arrived at the salon at around 2:30, almost 3:00 p.m., and Mr. Amara did not take much time in the salon before he came out and asked Mr. Okwara to go and pick up Ms. Mintah.

[44] Mr. Okwara testified that when he left the salon, because of traffic, it took him almost an hour to get back to the area of York University. He arrived in the period of time between 3:30 and 4:30. When he was in front of 73 Haynes Avenue, he called Mr. Amara and asked him to tell Ms. Mintah to come out. He testified that Mr. Amara called him back to say that she was coming out. After 10 or 15 minutes, Ms. Mintah was still not coming out, and he phoned Mr. Amara again. He waited, and then saw someone peeking out of an upstairs window. He called Mr. Amara again. Mr. Okwara testified that these calls to Mr. Amara are shown on the call log of his phone.

[45] Mr. Okwara testified that after about five minutes from the last call to Mr. Amara, Ms. Mintah opened the door and came out with a box she held in both hands. He took the cell phone, papers and the card which Mr. Amara had left on the front passenger seat and put them in the centre console because Ms. Mintah would be sitting in the front passenger seat. Mr. Okwara came from the driver’s side to open the door for her. He opened the door to the back seat for her, and she put the package inside. He did not touch it or talk to her. Ms. Mintah said she was not finished getting ready and asked for another ten minutes, and he responded, “no problem”. She asked him to go to Tim Horton’s, and she would be ready when he got back. When she was pulling money from her purse, they were arrested.

[46] Mr. Okwara’s evidence is that he has no knowledge of the storage locker, and the items found there are not his. His counsel pointed out that many people have large televisions with curved screens, and that Mr. Amara had an infant child who would still be in diapers, so the presence of television boxes or diaper boxes in the storage locker does not necessarily point to Mr. Okwara as the person who rented it. Mr. Amara had given soccer balls to Mr. Okwara, so the presence of similar soccer balls would not connect the locker to Mr. Okwara any more than it would connect the locker to Mr. Amara.

Analysis

[47] Whether the Crown has proven beyond a reasonable doubt that Mr. Okwara was knowingly involved in the importation of heroin to Canada and that he knowingly took possession of the package containing heroin for the purpose of trafficking depends, to a significant extent, on the credibility of Mr. Okwara’s evidence.

[48] The Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742 articulated the framework for the determination of cases where the accused person testifies or calls evidence. In accordance with this framework, if I accept Mr. Okwara’s evidence, I must acquit him. Even if I do not accept his evidence, but I am left in reasonable doubt by it, then I must acquit him. Even if I am not left in reasonable doubt by his evidence, I must determine whether the Crown has proven his guilt beyond a reasonable doubt based on the evidence that I do accept.

A. First question in W.(D.)

[49] I assess the credibility of Mr. Okwara’s testimony in the context of the other evidence.

Evidence of call logs from cell phones

[50] I first consider Mr. Okwara’s evidence having regard to the evidence from reports of the contents of the two cell phones which were seized from the centre console of the Mercedes vehicle. These cell phones were analyzed by the RCMP. In the Agreed Statement of Facts, Mr. Okwara agreed that the report of the analysis of each cell phone will be marked as an exhibit at trial and can be tendered in evidence for the truth of its contents. Mr. Okwara testified that the red iPhone is his phone, but the white BLU phone is not his phone. He testified that the white BLU phone was left in his car by Mr. Amara. He testified that Mr. Amara used Mr. Okwara’s cell phone, the red iPhone, while Mr. Okwara was driving him around.

[51] The call log of the RCMP extraction report of Mr. Okwara’s red iPhone is evidence of the incoming and outgoing calls and instant messages made to and from this cellular phone. The extraction report for the iPhone which was entered into evidence and marked as an exhibit states that the details recorded in the call log are cross-referenced from the device’s contacts. This report also shows web searches done on this phone. The call log shows the number to which each outgoing call and message was placed, usually with a name associated with the number, the time each call was made, and the duration of the call. The call log shows the same information with respect to incoming calls and messages.

(a) Message sent transmitting delivery information for DHL package containing heroin

[52] I first consider the instant message sent from Mr. Okwara’s phone at 9:42:48 a.m. on July 27, 2017. This is an instant message to a number beginning with “234” and ending with “9585”. The name of the person associated with this number on the call report is “Yahka”. The message reads: “1482358846 Sissy Amir 559 the west mall apt 305 m9c1g4”. There was a response from the number associated with the name “Yahka” at 10:05:52 which reads “Boss I don’t get what you sent to me”. The reply from Mr. Okwara’s phone at 10:07:05 reads “Not for u”.

[53] The message at 9:42 a.m. is significant because the package which originated in Pakistan and was found to contain 799.5 grams of heroin was originally directed to be delivered to “Sisay Amir” at the same address as is recorded in the message, 559 The West Mall Unit 305, Etobicoke M9C 1G4. The waybill number is the same number that is recorded in the message, “1482358846”. The person who sent the message from Mr. Okwara’s iPhone at 9:42 a.m. on July 27, 2017 knew the delivery particulars of the package containing heroin.

[54] Mr. Okwara was cross-examined about this message and he was examined about it in re-examination. He testified that he did not send this message. It was suggested to Mr. Okwara in re-examination that the message was sent to his brother, and he answered that he does not know the person to whom the message was sent. Mr. Okwara was asked to explain these three messages, and his explanation was that they may have been sent and received when Mr. Amara was using his phone.

[55] The message at 9:42 a.m. was sent before the time that, according to Mr. Okwara’s evidence, he picked up Mr. Amara at 555 The West Mall, which was between 10:30 to 11:00 a.m. Mr. Okwara testified that they went straight to 73 Haynes Avenue and arrived at 11:30 to noon, a trip of about one hour. The time that Mr. Okwara picked up Mr. Amara is consistent with the evidence of Ms. Mintah who testified that she first saw them at approximately 11:30 a.m., just after she finished watching The View on television.

[56] When it was suggested to Mr. Okwara in re-examination that the 9:42 a.m. message was sent to his brother, he answered that he does not know who received this message. The call record makes it clear, however, that there were many outgoing and incoming calls and messages to and from the number associated with the name “Yahka” using Mr. Okwara’s iPhone in the days before July 27, 2017. These calls and messages were not made or received by Mr. Amara. The call record shows calls or messages to and from the number associated with the name “Yahka” on July 19, 20, 25, and 26. In several messages, the person identified as “Yahka” refers to Mr. Okwara as “boss”, the same nickname that was used in the 10:05 reply message to the 9:42 message.

[57] I find based on the call record showing repeated calls and messages to and from this number that, contrary to his testimony, Mr. Okwara knows the person who uses the number ending in “9585” associated with the name “Yahka” in Mr. Okwara’s iPhone contacts. There is no evidence to suggest that Mr. Amara knows this person.

(b) Searches of terms “21 boake street” or “21 boake st”

[58] The call record also shows that searches of the term “21 boake street” were made from Mr. Okwara’s iPhone at 10:00 a.m. on July 27, 2017. This is also before the time that, according to his testimony, Mr. Okwara picked up Mr. Amara (10:30 to 11:00 a.m.). Mr. Okwara’s evidence is that he picked up Mr. Amara between 10:30 and 11:00 a.m. and drove directly to 73 Haynes Avenue and Ms. Mintah’s evidence that they drove by her house at approximately 11:30 a.m. The search is significant because 21 Boake Street is the new delivery address to which the shipment containing heroin was re-directed.

[59] In addition to the search at 10:00 a.m., the call record also shows that another search of the term “21 boake st” was done on Mr. Okwara’s iPhone at 3:18 p.m. on July 27, 2017. According to Mr. Okwara’s evidence, he drove with Mr. Amara from the time he picked him up at 10:30 to 11:00 a.m. until he dropped him off at the salon. In cross-examination, Mr. Okwara testified that he dropped Mr. Amara at the salon at 2:30 or almost 3:00 p.m. Mr. Okwara testified in chief that he waited there for Mr. Amara until he came out from the salon and asked him to go and pick Ms. Mintah up at 73 Haynes Avenue.

[60] Mr. Okwara testified that because of traffic it took him almost an hour to return to 73 Haynes Avenue, and he arrived there between 3:30 and 4:30 p.m. Mr. Okwara did not testify that Mr. Amara had the use of his phone at any time after Mr. Amara left the vehicle and went into the salon. Mr. Okwara did not testify that he was asked to make this search by Mr. Amara or anyone else.

(c) Search of term “dhl deliver time in west mall etobicoke”

[61] The call record also shows that there was a search from Mr. Okwara’s iPhone at 3:55:10 p.m. on July 27, 2017 for the phrase “dhl deliver time in west mall etobicoke”. When he was cross-examined about this search, Mr. Okwara testified that he did not make it. He explained that Mr. Amara had the use of his phone for some time, and that Mr. Amara was using it while Mr. Okwara was driving him. Through this answer, Mr. Okwara invited the inference that the search was made by Mr. Amara. According to Mr. Okwara’s evidence, at the time this search was made, he was on his way back to 73 Haynes Avenue to pick up Ms. Mintah or had already arrived there. If this is true, Mr. Amara could not have made this search using Mr. Okwara’s iPhone. The search term is significant because it relates to a DHL delivery at the “west mall” in Etobicoke, and the original delivery address for the DHL package containing heroin was an address at The West Mall in Etobicoke.

(d) Records of calls and messages to and from “Amara”

[62] Mr. Okwara described his relationship with Mr. Amara as one in which they were not close. Mr. Okwara testified that he “barely” knew Mr. Amara. Mr. Okwara gave evidence concerning his contacts with Mr. Okwara on July 26 and July 27, 2017. He testified that Mr. Amara called him on July 26 to ask about his availability the next day, and that Mr. Amara called him in the morning on July 27 to make arrangements for Mr. Okwara to drive him around that day.

[63] The call log from the report for Mr. Okwara’s red iPhone shows a record of incoming and outgoing calls and messages to and from the phone number ending in “3039” associated on this phone with the name “Amara” beginning on July 25, 2017. On that day, there are records of the placement of two outgoing calls to the number associated with the name “Amara”, each showing two seconds in duration. This may indicate that the calls were not received. On July 26, 2017 there are records of the placement of eleven outgoing calls throughout the day to and from the number associated with the name “Amara” at various times from 1:23 a.m. until 8:07 p.m. Some of the records show that the duration of the call is 00:00:00, indicating that the call was not successfully placed. Other records from the call log show the durations of the calls, in minutes and seconds. There are ten incoming or outgoing calls on July 26 that show durations in excess of one minute, including several with durations of more than three minutes. There are also records of three incoming SMS messages from the number associated on the iPhone with “Amara”.

[64] Mr. Okwara did not offer an explanation for why he had so many telephone conversations with Mr. Amara on July 26, 2017.

[65] Mr. Okwara’s evidence is that he was with Mr. Amara on July 27, 2017 from between 11:30 a.m. to noon, when he picked him up, until he dropped Mr. Amara at the salon at 2:30 or close to 3:00 p.m. The iPhone call log shows that during this period of time, Mr. Okwara placed calls to Mr. Amara at 12:30 p.m. (a 25 second call), 12:44 p.m. (a 41 second call), 1:13 p.m. (a 50 second call), and 1:22 p.m. (a 36 second call).

[66] The iPhone call log shows that on July 27, 2017 there were five outgoing calls successfully placed to the number associated with “Amara” between 4:21:28 p.m. and 5:19:57 p.m. The last outgoing call lasted 53 seconds. The takedown took place soon after the last call, around 5:25 p.m.

[67] Mr. Okwara testified that he called Mr. Amara three times after he arrived back at 73 Haynes Avenue and was waiting for Ms. Mintah to come out. He testified that these calls are shown on the record of calls from his iPhone. This evidence shows that the name “Amara” which is associated with the number ending in 3039 on Mr. Okwara’s iPhone is the same Mr. Amara who was with Mr. Okwara on July 27, 2017 (and not another person with the same name).

(e) Analysis of white BLU phone

[68] An analysis report of the white BLU phone which was seized from Mr. Okwara’s vehicle was also introduced into evidence. The analysis shows a number of communications with a Nigerian number associated with the name “Obi”. One incoming message on July 26, 2017 transmitted the number “1482358846” which is the same number as the waybill number for the DHL shipment of the package which was found to contain heroin. Another incoming message on July 26, 2017 transmitted the name and address for the original delivery of the DHL package. There are also records of four outgoing calls on July 7 and 14, 2017 made from this white BLU phone to the same 3039 number which is associated with the name “Amara” on Mr. Okwara’s iPhone. One rational inference which may be drawn from the evidence is that the white BLU phone also belonged to Mr. Okwara. This was put to him in cross-examination and he denied it. Another rational inference that is available is that the white BLU phone belonged to Mr. Amara.

[69] I am not satisfied that the Crown has proven beyond a reasonable doubt that the white BLU phone belonged to Mr. Okwara or that he placed or received the calls and messages shown on the report for this phone.

Evidence of card with storage locker access code and contents of storage locker

[70] The evidence given by Officer Saade is that Mr. Okwara’s wallet was seized from the centre console of his vehicle after Mr. Okwara was arrested. Officer Fiegehen testified that a card was found in Mr. Okwara’s wallet which showed directions for the operating gate and a passcode number 5916 4912. The storage locker number shown on the Access Storage User Agreement and on the payment receipt which were found in the centre console of Mr. Okwara’s vehicle is number 5916. A search of this locker resulted in the seizure of a significant additional quantity of heroin.

[71] I accept the evidence of Officers Saade and Fiegehen with respect to the seizure of the items found in Mr. Okwara’s vehicle including, in particular, that the card with the passcode for the storage locker was found in Mr. Okwara’s wallet, and not loose with other papers. The fact that the passcode card was found in Mr. Okwara’s wallet conflicts with the version of events given in his testimony through which he invites me to infer that this card was left by Mr. Amara with other papers when he went into the salon.

[72] The storage locker was found to contain items which may have been connected to Mr. Okwara. Empty boxes for television sets, including a large box for a television with a curved screen, were found. Officer Oliveros testified that she observed televisions in almost every room during the search of Mr. Okwara’s house, including a large television with a curved screen. Diaper boxes and a box for a child’s car seat were found, and Mr. Okwara has young children. Soccer balls were found in the storage locker which are similar to soccer balls found in the search of Mr. Okwara’s house. The discovery of these items in the storage locker does not, however, by itself, show that Mr. Okwara had rented the storage locker or that he knew of its contents. There could be other inferences from the discovery of these items consistent with Mr. Okwara’s innocence, if this was the only evidence.

Evidence of shoe with detached sole found at Mr. Okwara’s house

[73] The discovery during the search of Mr. Okwara’s house of a woman’s shoe with a heel with the sole separated from the rest of the shoe does not, by itself, support a finding that Mr. Okwara was involved in the importation of heroin hidden in women’s shoes. There could be other inferences from this evidence consistent with Mr. Okwara’s innocence, if this was the only evidence.

Assessment of Mr. Okwara’s evidence in the context of the evidence as a whole

[74] When I consider the evidence as a whole in assessing Mr. Okwara’s credibility, I am unable to accept Mr. Okwara’s evidence that he was not involved with the shipment of the package from Pakistan containing heroin, and that he did not know that the package that Ms. Mintah placed in his vehicle on July 27, 2017 contained heroin.

[75] The records of outgoing and incoming calls and messages on Mr. Okwara’s iPhone and the evidence that the card with the passcode for the storage locker was found in Mr. Okwara’s wallet cannot be reconciled with the version of events recounted by Mr. Okwara in his testimony. This so for several reasons:

a. Mr. Okwara testified that he picked up Mr. Okwara on July 27 between 10:30 and 11:00 a.m. and drove directly to 73 Haynes Avenue arriving between 11:30 and noon. The time that Mr. Okwara picked up Mr. Amara is after the 9:42 message from Mr. Okwara’s iPhone which transmitted to “Yahka” the original delivery address for the package found to contain heroin. The 9:42 a.m. message was sent to “Yahka”, a person with whom Mr. Okwara had been in regular contact on a number of occasions over the several preceding days. b. Searches for “21 boake street” were made from Mr. Okwara’s iPhone at 10:00 a.m. and at 3:18 p.m. Mr. Okwara testified in cross-examination that he dropped Mr. Amara at the salon at 2:30 or almost 3:00 p.m. and waited for him until he asked Mr. Okwara to go and pick up Ms. Mintah. According to Mr. Okwara’s evidence, Mr. Amara was not in Mr. Okwara’s car when these searches was made. c. The search for “dhl deliver time in west mall etobicoke” was made at 3:55 p.m. According to Mr. Okwara’s version of events, Mr. Amara was not in Mr. Okwara’s car when this search was done. d. Although Mr. Okwara testified that be “barely” knew Mr. Okwara, the iPhone call log shows many outgoing and incoming calls to and from the number associated with “Amara” on Mr. Okwara’s iPhone on July 26 and 27, 2017. Mr. Okwara did not offer any explanation for why he had so many communications with Mr. Amara on July 26, 2017, some lasting several minutes, based on the version of events recounted in Mr. Okwara’s testimony. The fact that these calls were made on July 26 conflicts with Mr. Okwara’s testimony concerning his limited contact with Mr. Amara that day. e. The call log for Mr. Okwara’s iPhone shows that during the period of time he testified that he was with Mr. Amara on July 27, 2017, Mr. Okwara placed several calls to Mr. Amara from his iPhone and spoke with him. The evidence of these calls from the call record conflicts with Mr. Okwara’s evidence recounting his version of the events that day. f. The evidence that the card showing the passcode for the storage locker number 5916 was found in Mr. Okwara’s wallet, which I accept, conflicts with Mr. Okwara’s evidence that a card was left loose with other papers left by Mr. Amara in Mr. Okwara’s vehicle.

[76] In respect of the 9:42 a.m. message and searches of terms tied to the shipment containing heroin, defence counsel suggested in closing submissions that Mr. Okwara was giving evidence of the times of events on July 27, 2017 based on his recollections long after this date, and that his estimates of times may have been honestly mistaken.

[77] With respect to the 9:42 a.m. message, Mr. Okwara evidence is that when he picked up Mr. Amara at 10:30 to 11:00 a.m., they went directly to Ms. Mintah’s house at 73 Haynes Avenue and arrived at 11:30 to noon, a trip of about one hour. Ms. Mintah testified that she saw them drive by her house at approximately 11:30 a.m. I accept Ms. Mintah’s evidence of the time she first saw Mr. Okwara and Mr. Amara. Under Mr. Okwara’s version of events that they went directly to visit Ms. Mintah and arrived after about one hour, he would have picked up Mr. Amara at about 10:30 a.m., well after the 9:42 a.m. message.

[78] The fact that the card with the code for the storage locker was found in Mr. Okwara’s wallet, and not loose among other papers in the centre console of his car, is also significant because it undermines Mr. Okwara’s contention that this card was left by Mr. Amara with other papers, and that he knows nothing about the storage locker or its contents.

[79] When I assess Mr. Okwara’s evidence in the context of all of the evidence, I do not accept Mr. Okwara’s testimony that he had nothing to do with the package shipped from Pakistan which contained heroin, or that he did not know that the package placed in his vehicle by Ms. Mintah contained heroin.

B. Second question in W.(D.)

[80] Even if I do not accept Mr. Okwara’s evidence, but I am left in reasonable doubt by it, I must acquit.

[81] I am satisfied beyond a reasonable doubt that Mr. Okwara sent the message at 9:42 a.m. on July 27, 2017 to the number associated with the name “Yahka”, a person known to Mr. Okwara, and that he performed the searches of “21 boake street” and “dhl deliver time in west mall etobicoke” on July 27, 2017, and that this message and these searches were not made by Mr. Amara. These findings lead to an inference that Mr. Okwara knew about and was involved with the shipment of the package containing heroin from Pakistan and that he knew that the package placed in his car by Ms. Mintah contained heroin.

[82] The evidence from the call log report of Mr. Okwara’s iPhone shows many calls to and from the number associated with “Amara” on July 26 and 27, 2017. This evidence conflicts with the version of events that Mr. Okwara recounted about how he knew Mr. Amara and his contacts with him on July 26 and 27.

[83] I am satisfied beyond a reasonable doubt that the card with the code for storage locker 5916 at Access Storage was found in Mr. Okwara’s wallet in the centre console of his vehicle when he was arrested, and that this card belonged to Mr. Okwara and was not left by Mr. Amara. This finding leads to an inference that Mr. Okwara knew about the storage locker at Access Storage and its contents.

[84] I am not left with a reasonable doubt by Mr. Okwara’s evidence that he had nothing to do with the package containing heroin which was shipped from Pakistan or that he did not know that the package placed in his vehicle by Ms. Mintah contained heroin.

C. Third question in W.(D.)

[85] Even if I am not left in reasonable doubt by his evidence, I must determine whether the Crown has proven his guilt beyond a reasonable doubt based on the evidence that I do accept.

[86] In count 1 of the indictment, Mr. Okwara is charged that he unlawfully did at Toronto, on or about the 27th day of July 2017, have heroin in his possession contrary to s. 5(2) of the Controlled Drugs and Substances Act.

[87] The essential elements of this offence are (i) that Mr. Okwara was in possession of a substance, (ii) that the substance was heroin, (iii) that Mr. Okwara knew that the substance was heroin, and (iv) that Mr. Okwara had possession of heroin for the purpose of trafficking. The Crown must prove each of these elements beyond a reasonable doubt.

[88] In count 2, Mr. Okwara is charged that he unlawfully did at Toronto, on or about the 17th day of July 2017, unlawfully import in Canada heroin contrary to s. 6(1) of the Controlled Drugs and Substances Act.

[89] The essential elements of this offence are (i) that Mr. Okwara imported a substance into Canada, (ii) that the substance was heroin, (iii) that Mr. Okwara knew that the substance was heroin, and (iv) that the importing was intentional. The Crown must prove each of these elements beyond a reasonable doubt.

[90] To “import” means to bring something into a country or to cause something to be brought into a country: R. v. Foster, 2018 ONCA 53 at para. 56.

[91] A question has been raised in the jurisprudence concerning when the offence of importing is complete. In Foster, Watt J.A., writing for the panel, analyzed the leading authority from the Supreme Court of Canada, Bell v. the Queen, [1983] 2 S.C.R. 471 and cases which followed it, and held at para. 106 that while the offence may be legally complete on entry of the contraband into Canada, it is not factually complete until the contraband and its carrier have cleared customs and thereby become available to their ultimate recipient. In R. v. Onyedinefu, 2018 ONCA 795 the Court of Appeal for Ontario, in a panel which included Watt J.A., cited this passage from Foster and held at para. 8 that “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”. In Onyedinefu, the Court of Appeal held that the importing of heroin was complete in law when it entered Canada and in fact when the accused, who was the Canadian recipient, took possession of it.

[92] In R. v. Buttazzoni, 2019 ONCA 645, the Court of Appeal at para. 45 addressed Foster and Onyedinefu in relation to the question of when the offence of importing ends. In Buttazzoni, the container in question originated in Guyana and entered Canada in New Brunswick. Canada Border Services Agency personnel inspected the container and learned that it contained 112 kg of cocaine. The RCMP took control of the container and arranged for a controlled delivery. The container was transported to a shipyard in Brampton where it was picked up by the appellant. The Court of Appeal held at para. 46, relying on Foster and Onyedinefu, that the offence of importing was factually complete when the controlled delivery package was picked up by the appellant and moved to a storage facility.

[93] These authorities stand for the principle that the offence of unlawfully importing a controlled substance is factually complete when the substance becomes available to the ultimate recipient who takes possession of it.

[94] Mr. Okwara had possession of the package that was placed in his vehicle by Ms. Mintah. The package contained heroin. Mr. Okwara admits 799.5 grams of heroin was seized in relation to the investigation and that samples seized tested as heroin.

[95] The only issue with respect to the first count is whether the Crown has proven beyond a reasonable doubt that Mr. Okwara knew that the package placed in his car by Ms. Mintah contained heroin. The only issue with respect to the second count is whether the Crown has proven beyond a reasonable doubt that Mr. Okwara was knowingly and intentionally involved in directing or causing another person to bring heroin to Canada.

[96] The factual findings which support the conclusion that the Crown has proven beyond a reasonable doubt that Mr. Okwara committed these offenses are as follows:

a. Mr. Okwara sent an instant message on July 27, 2017 at 9:42 a.m. from his iPhone to a person with whom he had communicated on a number of occasions over the preceding several days (identified on his iPhone as “Yahka”) in which he transmitted the waybill number and the name and initial delivery address for the shipment from Pakistan which contained heroin. Mr. Okwara made searches on July 27, 2017 on his iPhone of the terms “21 boake st” and “dhl deliver time in west mall etobicoke”. These are details of the delivery particulars for the shipment from Pakistan which contained heroin, including the re-directed delivery address and the waybill number. b. Mr. Okwara had many communications with Mr. Amara by telephone on July 26 and July 27, 2017 which suggests they discussed more than simply the arrangements for Mr. Okwara to drive Mr. Amara around on July 27, 2017, for money. c. The card found with the code for locker 5916 at Access Storage was found in the wallet belonging to Mr. Okwara with other items belonging to him. Items found during the search of the storage locker (soccer balls and television boxes including for a large television with a flat screen) and items found during the search of Mr. Okwara’s house (soccer balls with a similar style to those found in the storage locker and televisions (including a large television with a flat screen)), suggest that the contents of this locker, including the presence of heroin in the locker, were known to Mr. Okwara. d. Mr. Okwara drove to 73 Haynes Avenue in the afternoon of July 27, 2017. Mr. Okwara stood and observed Ms. Mintah’s house for several minutes, as described by Officer Saade, before returning to and driving his Mercedes vehicle to 73 Haynes Avenue and parking it outside this house. e. Ms. Mintah brought the package containing heroin to Mr. Okwara’s vehicle and placed it in the back seat, and he accepted it.

[97] When I consider the evidence as a whole, I find it leads to the rational inference that Mr. Okwara knew about and was involved with the shipment of a package from Pakistan which contained heroin for the purpose of trafficking, and that he knew that the package which Ms. Mintah placed in his vehicle on July 27, 2017 contained heroin for the purpose of trafficking. I am satisfied beyond a reasonable doubt that Mr. Okwara’s knowledge of and involvement with these matters is the only rational inference that can be drawn from the whole of the evidence. I draw this inference.

Conclusions

[98] I am satisfied that the Crown has proven beyond a reasonable doubt that on July 27, 2017 Mr. Okwara was in possession of a substance he knew was heroin for the purpose of trafficking.

[99] I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Okwara was knowingly and intentionally involved in directing or causing another person to bring the heroin to Canada, an offence which was factually complete when he accepted the package placed in his vehicle by Ms. Mintah on July 27, 2017.

Disposition

[100] I find Mr. Okwara guilty of count 1, possession of heroin for the purpose of trafficking.

[101] I find Mr. Okwara guilty of count 2, unlawfully importing heroin for the purpose of trafficking.

Cavanagh J.

Released: February 24, 2020