COURT FILE NO.: CRIMJ(F) 1314/18
DATE: 20200506
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Mr. S. Aujla and Mr. O. Melnik, for the Crown / Respondent
Respondent
- and -
KYLE JAMES GUNN, MOHAMMED NAJAFI-FARD, and MUSTAPHA NAQIZADEH
Mr. H. Gold, for Mr. Gunn / Applicant
Mr. M. Mehrabi, for Mr. Najafi-Fard / Applicant
Mr. D. Paradkar and Mr. L. Jajou, for Mr. Naqizadeh / Applicant
Applicants
HEARD: February 21, 24 and 25, 2020
REASONS FOR DECISION ON MOTIONS FOR DIRECTED VERDICTS
Stribopoulos J.
Introduction
[1] In April 2017, a shipping container began its long journey from Afghanistan to Canada. Transported first by land, and then by sea, it arrived at the Port of Montreal on August 28, 2017.
[2] Customs officials inspected the container and discovered more than the declared cargo of marble stone. Although the shipment mainly consisted of decorative stone tiles, on closer examination, some of these turned out to be fake. They were, in fact, small containers made to appear like stone tiles that concealed 29 kilograms of heroin and 600 grams of opium.
[3] The three accused faced various charges relating to the drugs discovered in the shipping container.
[4] Mr. Naqizadeh and Mr. Najafi-Fard jointly faced charges of importing heroin, importing opium, conspiracy to import heroin, and conspiracy to import opium.
[5] Mr. Naqizadeh and Mr. Gunn jointly faced charges of possessing heroin for the purpose of trafficking, possessing opium for the purpose of trafficking, conspiracy to possess heroin for the purpose of trafficking, and conspiracy to possess opium for the purpose of trafficking.
[6] At the close of the Crown's case, all three accused brought motions for directed verdicts. Mr. Naqizadeh's motion only concerned the four importing-related charges he faced. In contrast, Mr. Gunn and Mr. Najafi-Fard both sought directed verdicts on all of the charges each of them faced.
[7] After hearing submissions, I dismissed the motions brought by Mr. Gunn and Mr. Naqizadeh. However, I granted Mr. Najafi-Fard's motion, withdrew the case against him from the jury, and entered not guilty verdicts on the four charges he was facing: see R. v. Rowbotham, 1994 CanLII 93 (SCC), [1994] 2 S.C.R. 463, at p. 477.
[8] At the time, with the jury waiting and this lengthy trial already behind schedule, I informed the parties that reasons would follow. These are my reasons for deciding the motions for directed verdicts as I did.
[9] This decision will proceed in three parts. Part one will summarize the evidence adduced by the Crown at trial. The second part sets out the governing principles on a motion for a directed verdict. In the final part, these reasons separately address the motions brought by all three accused. With each, the positions of the parties are detailed. Then the evidence against each accused is assessed against the standard for granting a directed verdict.
I. Summary of the Evidence
a. A Shipping Container Arrives in Canada
[10] On August 28, 2017, a ship arrived at the Port of Montreal from Morocco. The cargo offloaded from the vessel included a shipping container that, according to its customs declaration, originated in Afghanistan and consisted of crates of marble stone.
[11] The documentation also identified Rugs Place, a business in Richmond Hill, Ontario, as the consignee, and Mr. Najafi-Fard, the owner of that business, as the contact for the shipment.
[12] Rugs Place has been in operation for quite some time and has a business number that enables it to import goods into Canada.
b. CBSA Discovers Heroin and Opium Hidden in the Shipping Container
[13] After offloading the cargo, Canadian Border Services Agency (“CBSA”) officers inspected the shipping container and its contents. Inside, they found 24 wooden crates, each containing cardboard boxes full of stone tiles. The cardboard boxes bore the logo, "Malik Mirsad Co."
[14] With the help of a drug-sniffing dog, in one of the wooden crates, CBSA officers located four boxes containing small containers made to look as if they were stone tiles. On closer examination, they discovered that these fake tiles concealed 29 kilograms of heroin and 600 grams of opium.
[15] The CBSA officers removed the heroin and opium from the fake tiles before delivering both the drugs and the shipping container to police officers with the Royal Canadian Mounted Police (“RCMP”) on August 31, 2017.
c. The RCMP Undertakes a Controlled Delivery Investigation
[16] The RCMP brought the shipping container to the Greater Toronto Area and began making arrangements to carry out a controlled delivery so that they could identify and arrest the persons responsible.
[17] To that end, the RCMP created a "control box." They reassembled some of the fake tiles, substituting brown sugar for the heroin and opium, and placed a small sample of each drug inside one of the reconstructed tiles (a "control tile"), writing the number "17" on that tile.
[18] RCMP officers put these tiles, including the control tile, in a single box, marking it by colouring in, using blue ink, the dot in the "i" in the word "Mirsad" on the Malik Mirsad Co. logo on the side of that box. The RCMP then placed the control box into one of the crates filled with boxes of actual stone tiles.
[19] Intercepted communications formed an integral part of the Crown's case. The RCMP secured judicial authorizations to intercept private communications on two telephone lines. Initially, to intercept and record Mr. Najafi-Fard's telephone calls, and soon after, to do the same with a second phone number associated with a Chatr Mobile account registered in the name "Gabe Corridore". (Although Mr. Corridore is an actual person, he had nothing to do with this account, which was registered in his name without his consent on August 10, 2017.) The RCMP also obtained judicial authorization to intercept private communications from inside the shipping container by concealing listening devices in undisclosed locations within it. The Crown’s case included intercepted communications both from the telephone lines and from inside the shipping container.
[20] The RCMP placed all of the crates back into the shipping container, including the one containing the control box with the control tile. They sealed the doors of the container with a CBSA seal to create the impression that it was subject to customs inspection and cleared for release.
[21] On September 8, 2017, a representative from the transportation company responsible for delivering the shipping container called Mr. Najafi-Fard's number to arrange for its delivery the next day. Police intercepted that call. Mr. Najafi-Fard's wife answered. She told the person from the transportation company that "Mustapha" (Mr. Naqizadeh's first name) would be the person receiving the shipment and provided the Chatr Mobile number for him.
[22] Early on the morning of September 9, 2017, the police moved the shipping container to CN's Intermodal terminal in Brampton, Ontario. Later that morning, a truck driver picked up the shipping container from that location and took it to Apple Self Storage in Stouffville, Ontario, where Mr. Naqizadeh and Mr. Gunn also attended. There was an issue with the size of the truck trailer, and the facility refused to accommodate it. Later that morning, the shipping container was moved to Green Storage in Aurora, Ontario.
[23] Once at Green Storage, over the course of three days (September 9, 10, and 11, 2017), the contents of the shipping container were unloaded and moved into storage lockers at that facility.
[24] From the time of the shipping container's release from the CN Railyard until the arrests three days later, the police had the container and those involved in unloading it under surveillance. The police also surreptitiously took photographs. In addition, Apple Self Storage and Green Storage each had high-quality video surveillance systems.
[25] Evidence from the police officers who conducted the surveillance and the photos they took, along with the surveillance video recordings from both storage facilities, together formed an essential part of the Crown's case.
[26] On all three days, Mr. Naqizadeh and Mr. Gunn actively participated in unloading the cargo from within the shipping container. At times, they had assistance from three other people: Edwin Tang, Edmond Tang, and Jesse Brophy. In contrast, there is no evidence to suggest that Mr. Najafi-Fard ever attended either of these storage facilities.
[27] After the container was finally emptied, at approximately noon on September 11, 2017, the police arrested those who were involved in unloading it, including both Mr. Naqizadeh and Mr. Gunn. Later that same day, the police also arrested Mr. Najafi-Fard at his store.
[28] Police carried out forensic examinations of the cellphones found in possession of Mr. Naqizadeh, Mr. Gunn and Mr. Najafi-Fard at the time of their respective arrests. On consent, the reports from those examinations became exhibits at trial, as did phone records from the mobile service providers for each of the associated phone lines.
[29] Finally, in the aftermath of the arrests, the police executed search warrants at various locations. That included both Mr. Naqizadeh's residence and Mr. Najafi-Fard's rug store. Some of the items seized during these searches also became exhibits at trial.
[30] With the benefit of that general overview of the investigation and the sources of evidence, a more detailed review of the Crown's case follows.
d. Rental of a Storage Unit at Apple Self Storage
[31] On August 30, 2017, two days after the shipping container arrived in Canada, but eleven days before its release for delivery, Mr. Naqizadeh and Mr. Gunn attended at Apple Self Storage to rent a storage locker.
[32] Surveillance video from their attendance formed part of the Crown's case, as did the testimony of the Apple Self Storage employee who dealt with the two men that day.
[33] The rental of the storage locker required the execution of a rental agreement. Mr. Gunn completed the customer portion of that agreement, while Mr. Naqizadeh sat next to him. Video surveillance evidence shows both men reviewing and completing the paperwork.
[34] Mr. Gunn used the name "Adam Westland" to rent the storage locker. He also presented an Ontario Health Card in that name. At the same time, he listed a phone number registered in his name and an e-mail address that also included his actual name. As an alternate contact, the two men provided the name "Peter Tee" and listed the number associated with the Chatr Mobile account registered in the name of Gabe Corridore.
e. The Chatr Mobile Phone Line
[35] The evidence strongly supports an inference that Mr. Naqizadeh was the person using the Chatr Mobile phone line registered in Mr. Corridore's name.
[36] Beyond Mr. Naqizadeh appearing to list that phone number on the Apple Self Storage contract, during the phone calls intercepted from that line, on several occasions, people speaking to the man using that number referred to him as "Mustapha" (Mr. Naqizadeh's first name).
[37] Police also placed a call to that number, and, at that very same time, a police officer conducting surveillance at Green Storage observed Mr. Naqizadeh answer a white cellphone.
[38] A receipt from a mobile phone store, dated September 10, 2017, for the purchase of additional minutes to top up the account on that phone line was found by police in a pocket of the jean jacket that Mr. Naqizadeh was wearing when he arrived at Green Storage on the morning of September 11, 2017.
[39] Importantly, a white Samsung cellphone found by police in Mr. Naqizadeh's shorts during a search incidental to his arrest contained the SIM card associated with the Chatr Mobile phone line registered to Mr. Corridore.
[40] All of this evidence furnishes a somewhat irresistible inference that Mr. Naqizadeh was the person using the Chatr Mobile phone line and whose telephone conversations were intercepted on that line by police.
[41] A forensic analysis of Mr. Gunn's cellphone, which police found in the jacket he was wearing at the time of his arrest on September 11, 2017, revealed that he listed the phone number for the Chatr Mobile line in his contacts as "Burner".
f. Arrangements to Secure the Release of the Shipping Container
[42] On September 6, 2017, and again on September 8, 2017, Mr. Naqizadeh and Mr. Najafi-Fard spoke by telephone. Police intercepted these conversations. Unlike Mr. Naqizadeh, whenever Mr. Najafi-Fard's telephone calls were intercepted, he spoke on a phone line registered in his name.
[43] During these calls, Mr. Najafi-Fard tells Mr. Naqizadeh about communications from the freight forwarding company handling the shipment regarding outstanding fees to secure the release of the container.
[44] From these conversations, it is apparent that Mr. Naqizadeh was responsible for paying the fees and that he did so, while Mr. Najafi-Fard was handling communications with the freight forwarding company regarding the shipment.
[45] It is noteworthy that there was nothing said during these telephone calls averting to the illicit nature of the contraband concealed within the shipping container.
g. Conversations With a Man Using an Afghan Telephone Number
[46] On September 8, 2017, Mr. Naqizadeh also had a telephone conversation in Dari with someone using an Afghan phone number. There were many subsequent intercepted calls between Mr. Naqizadeh and the person using that same number.
[47] In both their tone and substance, these calls are consistent with Mr. Naqizadeh's interlocutor being his father, Shir Ahmad Naqizadeh. For example, during a call in the early morning of September 10, 2017, the man using the Afghan phone number repeatedly refers to Mr. Naqizadeh both as "my dear" and as "my child".
[48] During the call on September 8, 2017, Mr. Naqizadeh explains to his father the fees that he paid to secure the release of the shipping container. At one point, his father asks if he paid because he was told to do so by "the company" (most likely, the freight forwarder) or "Hasim". (There is evidence that a person named "Hasim Rahmani" was using the same phone number listed on invoices from the stone company in Afghanistan that supplied the marble stone - Malik Mirsad Co.)
h. Delivery of the Shipping Container on September 9, 2017
[49] On the morning of September 9, 2017, the truck driver delivering the shipping container called Mr. Najafi-Fard to let him know that he would be earlier than expected. Mr. Najafi-Fard then called Mr. Naqizadeh to tell him the delivery was ahead of schedule. After that, Mr. Naqizadeh called the truck driver directly to say that he was on his way.
[50] Eventually, Mr. Naqizadeh, along with Mr. Gunn, arrived at Apple Self Storage by taxi. (On September 12, 2017, there were four vehicles at Mr. Naqizadeh's residence. Police found a key for one of those vehicles in the jean jacket Mr. Naqizadeh was wearing on the morning of September 11, 2017.)
[51] An undercover police officer, posing as a customer at Apple Self Storage that morning, testified to observing the interactions between Mr. Naqizadeh, Mr. Gunn and the truck driver delivering the shipping container. The police officer testified that although both men spoke with the truck driver, as between them, Mr. Naqizadeh was the person who primarily dealt with the driver.
[52] The Apple Self Storage employee working on the morning of September 9, 2017 testified that when issues arose regarding accommodating the shipping container at that facility, it was Mr. Naqizadeh who took the lead rather than Mr. Gunn.
[53] During an intercepted telephone call from that morning, Mr. Naqizadeh contacted another storage facility to see if it could accommodate the shipping container. The Apple Self Storage employee also testified to making calls to other storage facilities on behalf of Mr. Naqizadeh and helping him to make alternative arrangements at Green Storage in Aurora.
i. Rental of Storage Lockers at Green Storage
[54] Later on the morning of September 9, 2017, the shipping container was taken to Green Storage in Aurora. Once there, Mr. Naqizadeh and Mr. Gunn attended a nearby hardware store to purchase various items for use in unloading the container. Mr. Naqizadeh paid for these items using his credit card.
[55] After returning, they began unloading the shipping container, breaking the wooden crates open and moving the boxes into the storage lockers. That afternoon, Edwin Tang joined them at Green Storage.
[56] Edwin Tang testified to being friends with Mr. Naqizadeh, who he said told him about a shipment of stone two or three days before September 9, 2017 and asked for his help in unloading it. Mr. Tang agreed to assist. He assumed he would receive payment for his labour, but they never settled on an amount.
[57] After arriving at Green Storage on September 9, 2017, Mr. Tang attended the office at that facility to complete and sign the rental agreement. He testified to doing so at Mr. Naqizadeh's request, who told him he forgot his wallet and did not have any identification. Mr. Tang paid for the rental of the storage lockers, and Mr. Naqizadeh paid him back the next day.
[58] Early on the evening of September 9, 2017, Edwin Tang's twin brother, Edmond, also arrived at Green Storage and began assisting with unloading the shipping container.
j. Mr. Najafi-Fard Calls Mr. Naqizadeh
[59] Shortly before 4:00 p.m. on September 9, 2017, Mr. Najafi-Fard called Mr. Naqizadeh to check-in. During the call, Mr. Najafi-Fard asks if the driver had left and also asked, "You don't need any help?" Mr. Naqizadeh says he does not. Mr. Najafi-Fard mentions speaking with Mr. Naqizadeh Sr. and says that he had been trying to get a hold of Mr. Naqizadeh. Again, there is nothing about this telephone call averting to the contraband concealed within the shipping container.
k. The Lighter Box and Intercepted Conversations Following Its Discovery
[60] At approximately 7:30 p.m. on the evening of September 9, 2017, a police officer conducting surveillance observed Mr. Gunn, while inside the shipping container with Edwin Tang, lift a box from a crate. Based on how easily he appeared to lift it, the officer concluded that the box was much lighter than the others.
[61] The officer conducting surveillance testified that in the aftermath of that, the unloading of the shipping container stopped. Mr. Tang then went to Mr. Naqizadeh who returned with him to the container. At point, the people present, including Mr. Naqizadeh and Mr. Gunn, appeared to congregate near the doors of the shipping container.
[62] Additionally, although Mr. Tang denied having any memory of a lighter box, he recalled Mr. Gunn handing a box to Mr. Naqizadeh. During cross-examination, he adopted a portion of an earlier statement he gave to police in which he referenced Mr. Naqizadeh putting a box to the side.
[63] Mr. Tang testified that both Mr. Gunn and Mr. Naqizadeh were present and participated in conversations intercepted from the shipping container shortly after the discovery of the lighter box. From that intercepted conversation, Mr. Tang identified Mr. Gunn as the person remarking, "They dot the 'i'".
[64] During that same conversation, someone says, "It's numbered five ... it should be it" and "We'll open it when we leave, you know what I mean", and "Yeah, it's probably all in there." However, Mr. Tang maintained that he was unable to identify the voices of the people who made these comments.
l. Transporting One of the Boxes to Apple Self Storage on the Evening of September 9, 2017
[65] On the evening of September 9, 2017, after the unloading of the shipping container had ended for the day, Mr. Tang testified that Mr. Naqizadeh placed one of the boxes of marble tiles in his vehicle. The two men then drove to Apple Self Storage.
[66] Mr. Tang testified that Mr. Naqizadeh directed him throughout the drive, which included taking a detour along the way. Surveillance officers following their vehicle that night observed them travel a less than direct route to Apple Self Storage.
[67] At Apple Self Storage, Mr. Tang testified that he remained in the vehicle while Mr. Naqizadeh took the box from his vehicle and placed it in a storage locker at Apple Self Storage. They then left the storage facility.
[68] After departing, a police officer conducting surveillance observed their vehicle driving around a parking lot in a nearby industrial unit. Mr. Tang testified that he did this at Mr. Naqizadeh's direction, who said he was concerned about an ex-girlfriend following him.
m. Mr. Naqizadeh Speaks With His Father
[69] In the early morning hours of September 10, 2017, Mr. Naqizadeh had several telephone conversations with his father. During these calls, he provides his father with an update regarding the day's events. Police intercepted these calls.
[70] Their initial conversation that morning was heated. His father sounded upset when Mr. Naqizadeh told him he had opened and begun unloading the shipping container. At one point, his father says, "I wanted to send you a map ... as to which lane you should go to and which box to take. You've mixed them up now. Now that you've mixed them up, finding them will be difficult." Mr. Naqizadeh attempted to reassure his father that he had organized the boxes in the storage locker in the same order he found them in the shipping container.
[71] On several occasions during these calls, Mr. Naqizadeh's father promises to send him a "map". On the white Samsung phone located in Mr. Naqizadeh's pocket following his arrest, police discovered a photograph of what appears to be a diagram of the shipping container, with one of the crates marked with a rectangle and a corresponding notation that either reads "5 box 5" or "5 boxes".
[72] During one of their conversations that morning, Mr. Naqizadeh tells his father that he must finish unloading the shipping container by Monday (September 11, 2017) because that is when the driver said that he would be returning to retrieve it. In another conversation that morning, Mr. Naqizadeh's father tells him that the driver made a mistake and that the shipping container "belongs to us".
[73] During one of their initial calls that morning, Mr. Naqizadeh's father appears to ask about Mr. Najafi-Fard and whether he was "there himself, or not?" To which Mr. Naqizadeh answered, "No, as for him, he, poor guy called too and said, should I come? I said no, it's not necessary; it's okay." There is nothing about this conversation to suggest that Mr. Najafi-Fard knew anything about what Mr. Naqizadeh was searching for in the shipping container.
n. Events of September 10, 2017, and the Intercepted Conversation About Jesse Brophy
[74] Early on the afternoon of September 10, 2017, Mr. Naqizadeh and Mr. Gunn arrived at Green Storage. A surveillance officer saw them attend on foot. Presumably, they were driven to the location by someone else.
[75] After they arrived, they began unloading boxes of stone from the shipping container. Later that afternoon, the two Tang brothers joined them, with each attending in separate vehicles. The four men spent the afternoon moving boxes from the shipping container to storage lockers at Green Storage.
[76] At approximately 3:23 p.m. on September 10, 2017, a listening device in the shipping container intercepted a conversation. In his testimony, Mr. Tang identified the voices of Mr. Naqizadeh and Mr. Gunn as the persons speaking during this conversation. The discussion was about the possibility of enlisting another person to help with unloading the shipping container.
[77] During that discussion, referring to an unidentified person, Mr. Naqizadeh says, "The thing is he knows ____ he's not an idiot, he knows what's up." To which Mr. Gunn responded, "Yeah, but, just well, if he's not handling anything, he's not bringing in, he's not physically handling it." To which Mr. Naqizadeh responded, "He's present bro. Being here right now is a risk, you know that." To which Mr. Gunn answered, "Yeah."
[78] After that conversation, Mr. Naqizadeh called Jesse Brophy, offering him $300 for his assistance. Mr. Brophy agreed to help. A police officer conducting surveillance observed Mr. Brophy arrive shortly before 7:00 p.m., at which point he began to help with unloading boxes from the shipping container.
[79] Early on the evening of September 10, 2017, Mr. Gunn struck up a conversation with a patron at Green Storage that he encountered. Mr. Gunn told that person that he had decorative stone tiles available for sale, gave him some samples, and they exchanged phone numbers.
[80] The unloading continued until shortly before 9:00 p.m. At that point, work ended for the evening, and all of the men departed. Edwin Tang and Mr. Naqizadeh left together in a vehicle driven by Mr. Tang.
o. Edwin Tang and Mr. Naqizadeh Attend Apple Self Storage on the Evening of September 10, 2017
[81] After leaving Green Storage on the evening of September 10, 2017, Mr. Tang and Mr. Naqizadeh once again attended Apple Self Storage. Undercover police officers followed them. Unlike the evening before, they travelled a direct route from Green Storage to Apple Self Storage, where they remained for approximately 25 minutes.
[82] Mr. Tang testified that he and Mr. Naqizadeh entered a storage locker at Apple Self Storage. At the time, Mr. Naqizadeh was on the phone, speaking to someone in a language other than English. Mr. Tang testified to observing a single box in the storage locker. Mr. Naqizadeh told him to open the box, which he assumed was the same box they had taken to that location the night before.
[83] Mr. Tang remembered looking inside the box and noticing some "funky tiles". To him, the tiles appeared to be made of wood and painted white. At Mr. Naqizadeh's direction, he pried one of the tiles open. Inside, he saw a bag. At Mr. Naqizadeh's request, he opened the bag. When he did so, Mr. Tang discovered that it contained sugar. Mr. Tang opened about four tiles in total.
[84] Mr. Tang testified that he told Mr. Naqizadeh, "You got scammed; these are not actual tiles." According to Mr. Tang, Mr. Naqizadeh did not say anything in response.
[85] Although Mr. Tang did not remove anything from the box, he testified that Mr. Naqizadeh removed a tile and placed it in his jacket. They then left, with Mr. Tang driving Mr. Naqizadeh home.
p. Mr. Gunn is Reluctant to Help on September 11, 2017
[86] Shortly before 8:00 a.m. on the morning of September 11, 2017, Mr. Gunn called Mr. Naqizadeh. Police intercepted the call. During this conversation, Mr. Gunn indicates that he is "hurting" and does not want to assist in unloading the shipping container that day. After some discussion, Mr. Naqizadeh persuades Mr. Gunn to continue helping, and he reluctantly agrees.
q. Calls Between Mr. Naqizadeh and His Father on September 11, 2017
[87] Shortly before 9:00 a.m. on September 11, 2017, Mr. Naqizadeh and Mr. Gunn arrived at Green Storage in a Toyota RAV4 driven by Edwin Tang. Around that time, Mr. Brophy also attended in a separate vehicle. After that, the men continued unloading the shipping container.
[88] A police officer conducting surveillance at Green Storage testified to observing Mr. Naqizadeh speaking on the telephone throughout the morning. Police intercepted three separate phone calls between Mr. Naqizadeh and his father.
[89] During these calls, Mr. Naqizadeh confirms that he received the “map”. However, he explains to his father, "We arrived to where it was located. There was nothing there. ... I'm talking about number five. There was nothing there." He continues, "Several boxes were supposed to be there, right? One was found." In another call, he described the box found as being "very light". He tells his father, "We took that box uh, and place it somewhere. We then went and looked at it last night ... and opened it. There was sugar in between. A box full of sugar."
[90] During the calls, Mr. Naqizadeh describes to his father one of the tiles found in the lighter box. He tells his father that, "It had a number 17 written on top, right. ... I opened that one too" and "God forbid, when someone, for instance, were to go to court or something ... there's evidence, and they bag and ... bag and tag it. And that becomes, for instance, Exhibit A, Exhibit B. Do you understand? For example, to show to court." He continued, "So at the top there, there was a name written. A name describing what it is. A name written at the top that this is this and this is that. At the top too, once again at the top there was writing, 'CS' meaning customs." During another call that morning, he essentially repeats the same description. He tells his father, "At the top of the plastic, uh, it was written like exactly what it is and instead. Like one in black, one in white. It was written ___ at the top, meaning this is this, and this is that."
[91] Recall that police had marked the control tile inserted into the shipment with the number "17". Inside of it, the police had put the samples of opium and heroin in separate small Ziploc bags, writing on each, respectively, "Exhibit 12 CS opium" and "Exhibit 10 1.0 gram heroin". The "CS" would seem to have been a reference to "controlled sample" rather than "customs".
[92] During one of the calls that morning, Mr. Naqizadeh questions his father about how familiar he is with the people from "the stone company" and who they might be "partners with?" He asks, "Do you even know these people?"
[93] In the final telephone call between them that morning, which took place at 11:28 a.m., Mr. Naqizadeh's father attempts to reassure his son. His father tells him there is "nothing wrong", asks him to "be patient", and tells him, "don't worry". However, during that same call, he instructs Mr. Naqizadeh to immediately send him a photograph of the tile he is describing.
[94] At one point during their final call that morning, Mr. Naqizadeh's father asks him, somewhat in passing, "What else is new with, with, with, with uh, with uh, with Mr. Najafi?" Mr. Naqizadeh responds, "Nothing, from the first day it came. I talk to him, told him it had arrived. And since that first day, I have not spoken to him since." Neither suggests that Mr. Najafi-Fard knew anything about what Mr. Naqizadeh was looking for inside the shipping container.
r. The Arrests and the Incidental Searches
[95] Shortly before noon on September 11, 2017, with the shipping container finally emptied, the police moved in and arrested Mr. Naqizadeh, Mr. Gunn, Mr. Brophy, and Edwin Tang.
[96] The surveillance video from Green Storage shows that when Mr. Naqizadeh arrived there that morning, he removed the jean jacket he was wearing and placed it in the RAV4. Police seized that jacket following the arrests.
[97] When a police officer searched Mr. Naqizadeh's jacket later that day, inside one of the pockets, the officer found the control tile marked with the number "17" together with the control samples of opium and heroin.
[98] That afternoon, with the items seized from Mr. Naqizadeh incidental to his arrest in their possession, police observed that someone called his white Samsung phone (the Chatr Mobile line) three separate times from the phone number listed on the Malik Mirsad Co. invoices. There is evidence connecting that phone number to a person named "Hasim Rahmani".
s. Evidence Seized Under the Authority of Search Warrants
[99] Following the arrests, the police obtained and executed search warrants at various locations.
[100] On September 12, 2017, police executed a search warrant at the storage locker that Mr. Naqizadeh and Mr. Gunn rented at Apple Self Storage. The only item found in that locker was the control box. It was already open, and the control tile was no longer in it.
[101] That same day, police also executed a search warrant at Mr. Naqizadeh's residence. There, they located the rental agreement for the storage locker at Apple Self Storage. They also observed three vehicles in the driveway and one in the garage. (As noted above, police found the key for one of those vehicles in the jean jacket Mr. Naqizadeh was wearing on the morning of September 11, 2017.)
[102] On September 13, 2017, the police also executed a search warrant at Mr. Najafi-Fard's rug store. During that search, police found a green hanging folder sitting in plain view on a printer at the front of the store. That folder contained a collection of various documents relevant to the shipment, including two invoices from Malik Mirsad Co. for the sale of marble stone, one dated from April 25, 2017, and the second dated August 5, 2017.
t. Mr. Najafi-Fard's Phone Records and the Forensic Analysis of His Cellphone
[103] The police also obtained records for Mr. Najafi-Fard's cellphone from his mobile service provider. They also subjected his cellphone to forensic analysis. The parties admitted this evidence at trial on consent. There are two things worth noting about this evidence.
[104] First, Mr. Najafi-Fard was in frequent contact with Mr. Naqizadeh Sr. for quite some time. The analysis of Mr. Najafi-Fard's phone showed that there were telephone, text, WhatsApp, and Viber communications between them dating back to 2015, including through the spring and summer of 2017.
[105] The last attempted contact was by Mr. Naqizadeh Sr. who unsuccessfully tried to call Mr. Najafi-Fard on WhatsApp on the afternoon of September 12, 2017.
[106] It is also noteworthy that during these communications, Mr. Naqizadeh Sr. used a Canadian cellphone registered to him, rather than the Afghan number he used when communicating with Mr. Naqizadeh about the shipment.
[107] Second, Mr. Najafi-Fard was also in frequent contact with Hasim Rahmani. Mr. Rahmani was using the very same phone number listed for Malik Mirsad Co. on the two invoices police found in the green hanging folder seized at Mr. Najafi-Fard's business.
[108] The analysis of Mr. Najafi-Fard's phone showed that there were telephone, text, WhatsApp, and Viber communications between him and Mr. Rahmani beginning in April 2017 and continuing through the spring and summer of 2017.
[109] In August 2017, Mr. Najafi-Fard received documents relevant to the shipment through WhatsApp from Mr. Rahmani. Text messages accompanied some of these WhatsApp communications. These were in either Farsi or Dari. An English translation for these did not form part of the record at trial. However, there is a single text message in English sent by Mr. Najafi-Fard to Mr. Rahmani on WhatsApp on September 6, 2017. It reads, "We are looking for original bill of lading please."
[110] The final attempted communication involves Mr. Rahmani trying to contact Mr. Najafi-Fard on September 12, 2017, on both WhatsApp and Viber.
u. The Expert Evidence
[111] On consent, the parties agreed to the admission of an expert report prepared by an RCMP officer familiar with the drug trade. The expert describes Afghanistan, where the shipping container originated, as a source country for heroin and opium.
[112] The expert's report also addressed the operation of drug distribution networks. Like most businesses, they use a hierarchical structure, with higher-level traffickers selling drugs to intermediaries, who in turn sell to other distributors or users. According to the expert, for the most part, those who import drugs do so in "small groups" comprised "of people who are socially close knit." According to the report, "trafficking groups attempt to use the least number of individuals in the hierarchy to minimize the chance of detection."
[113] The expert report also addresses the value of the quantities of heroin and opium imported in this case. In the Greater Toronto Area in 2017, if sold by the kilogram, the drugs had a value of between $2,320,000 and $3,190,000. And, if sold by the gram, between $5,800,000 and $11,600,000.
[114] If possession was proven, it was an admitted fact that it would have been for the purpose of trafficking.
II. The Governing Principles
[115] On a motion for a directed verdict, the same standard applies that governs committal decisions at both preliminary inquiries and extradition hearings. The question in all three contexts is the same, "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty": United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080; see also R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 16; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21; R. v. Monteleone, 1987 CanLII 16 (SCC), [1987] 2 S.C.R. 154, at p. 160; M.M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973, at paras. 37, 44-46.
[116] The sufficiency of the evidence is assessed against the governing standard with reference to the ultimate burden on the Crown to prove each element of the offence charged beyond a reasonable doubt: R. v. Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679, at p. 701, McLachlin J. dissenting; R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at para. 50; R. v. Turner, 2012 ONCA 570, at para. 16. That means "the case against the accused cannot go to the jury unless there is evidence in the record upon which a properly instructed jury could rationally conclude that the accused is guilty beyond a reasonable doubt" (emphasis in original): Fontaine, at para. 53.
[117] In assessing the adequacy of the evidence, the judge is not to assess the credibility or reliability of the evidence: R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 15; Sazant, at para. 18; Arcuri, at paras. 23, 30, 33; R. v. Tomlinson, 2014 ONCA 158, at para. 153; M.M., at para. 47. Those kinds of qualitative assessments of the evidence are reserved exclusively for the jury: Deschamplain, at para. 15.
[118] The judge's assessment of the adequacy of the evidence takes on a different dimension in cases involving circumstantial evidence. In such cases, the Supreme Court of Canada made clear in Arcuri, at para. 22, that the judge must:
... weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt. [Emphasis in original.]
[119] The potential impact of exculpatory evidence turns on the nature of the Crown's case. If the Crown has adduced "direct evidence on all the elements of the offence, the case must proceed ... regardless of the existence of defence evidence, as by definition the only conclusion that needs to be reached is whether the evidence is true": Arcuri, at para. 29; see also Sazant, at para. 16; M.M., at para. 46. In contrast, where the Crown's case concerning any essential element includes circumstantial evidence, "the judge must engage in a limited weighing of the whole of the evidence (i.e. including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty": Arcuri, at paras. 29, 34.
[120] If the circumstantial evidence is reasonably capable of supporting competing inferences, pointing towards guilt and also against it, the judge is not to choose between them. Instead, "only the inferences that favour the Crown are to be considered": Sazant, at para. 18. Stated differently, the judge must take the Crown's case at its highest, accepting the Crown's evidence as credible and reliable, while also assuming "the reasonable inferences from the primary facts that are most favourable to the Crown": R. v. Jackson, 2016 ONCA 736, at para. 7. If the judge concludes, "that the evidence as a whole, if believed, could reasonably support an inference of guilt, a directed verdict motion will fail" (emphasis in original): R. v. Pannu, 2015 ONCA 677, at para. 160, leave to appeal refused, [2015] S.C.C.A. No. 498.
[121] Reasonable inferences are those drawn from an analysis of the evidence using logic informed by human experience: United States of America v. Huynh, 2005 CanLII 34563 (ON CA), [2005] O.J. No. 4074 (C.A.), at para. 7; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 37. When engaging in a limited weighing of the circumstantial evidence, as required by Arcuri, the judge, just like a jury, must not bridge gaps in the evidence through speculation or conjecture: Jackson, at paras. 7-14; R. v. Wilson, 2016 ONCA 235, at para. 24; Huynh, at para. 7.
[122] With the governing principles summarized, these reasons next address the merits of the motions brought by each accused.
III. Analysis of the Motions
[123] In certain critical respects, the evidence against the three accused overlaps. For example, the arrival of the shipping container in Canada on August 28, 2017, along with its hidden cargo of heroin and opium, is an essential part of the Crown's case against all three accused. However, there are also material differences in the evidence concerning each of them. As a result, their respective motions for directed verdicts require separate consideration.
a. Mr. Gunn's Motion for Directed Verdicts
[124] Recall that Mr. Gunn faced charges of possessing heroin for the purpose of trafficking, possessing opium for the purpose of trafficking, conspiracy to possess heroin for the purpose of trafficking and conspiracy to possess opium for the purpose of trafficking. On his motion, he sought directed verdicts on all four counts.
i. Positions of the Parties
[125] On Mr. Gunn's behalf, Mr. Gold argues that the evidence cannot rationally support an inference that his client knew about the drugs hidden within the shipping container. It follows, says Mr. Gold, that the jury could not reasonably conclude that Mr. Gunn possessed heroin or opium for the purpose of trafficking or that he was a member of a conspiracy to commit those offences.
[126] At its highest, Mr. Gold argues that the evidence supports a finding that Mr. Gunn participated in unloading what he only believed to be a shipment of decorative stone tiles. He submits that Mr. Gunn's use of an Ontario Health Card in another person's name when renting the storage locker at Apple Self Storage is not enough to sustain a finding that he knew about the drugs. Mr. Gold points out that after all, in filling out the rental agreement, Mr. Gunn also included his actual phone number and an e-mail address that incorporated his real name. Mr. Gold argues that these actions are hardly consistent with Mr. Gunn trying to conceal his true identity.
[127] Further, despite the many intercepted conversations, Mr. Gold notes that Mr. Gunn never said anything about drugs. During the call between him and Mr. Naqizadeh on the morning of September 11, 2017, Mr. Gunn tries to avoid helping to unload the shipping container that day. That call, argues Mr. Gold, confirms that Mr. Gunn was just a hired hand who was unaware of the illicit cargo. Also, Mr. Gunn attempted to sell some of the tiles to another patron at Green Storage. Mr. Gold submits that these are not the actions of someone involved in a lucrative drug scheme.
[128] For the Crown, Mr. Aujla reminds the court that the motion must be decided based on the cumulative effect of all of the evidence. While acknowledging that some of the evidence may be capable of an innocent explanation or support an inference that Mr. Gunn did not know about the drugs, Mr. Aujla argues that, on the whole, the evidence furnishes a compelling circumstantial case on all four charges against Mr. Gunn. He submits that there is more than enough evidence from which the jury could reasonably find, beyond a reasonable doubt, that Mr. Gunn is guilty of the offences charged.
ii. Analysis
[129] In my view, the evidence, when considered cumulatively, as required, is reasonably capable of supporting an inference that Mr. Gunn was a knowing participant in a scheme to possess heroin and opium for the purpose of trafficking.
[130] The evidence includes all of the circumstances surrounding Mr. Gunn's attendance at Apple Self Storage on August 30, 2017. Nine days before the shipping container's release for delivery, Mr. Gunn attended Apple Self Storage, along with Mr. Naqizadeh, to rent the storage locker for the apparent purpose of securing a location where it could be stored and unloaded. Mr. Gunn used someone else's name and identification to do so. While Mr. Gunn was seated next to him, Mr. Naqizadeh also used a false name and listed the Chatr Mobile phone number on the rental agreement. Mr. Gunn had that number in his phone contacts listed as "Burner", rather than under Mr. Naqizadeh's name. In my view, this collection of evidence is reasonably capable of supporting a finding that Mr. Gunn was much more than just a "hired hand" that was unaware of the drugs.
[131] First, Mr. Gunn's attendance at Apple Self Storage to make arrangements for the shipping container and its cargo more than a week before its release for delivery is reasonably capable of supporting an inference that his involvement was at an organizational level.
[132] Second, Mr. Gunn's use of someone else’s name and identification to rent the storage locker supports an inference that he was attempting to distance himself from the shipping container. That is consistent with him knowing about its illicit cargo and trying to avoid documenting his connection to it.
[133] Third, there is Mr. Gunn's recording of the Chatr Mobile phone line in his telephone contacts as "Burner". That phone number was acquired shortly before the importation, apparently for use in making calls regarding the shipping container and the drugs. In popular culture, a "Burner" is the term for a throw-away phone used for nefarious purposes. This evidence further supports an inference that Mr. Gunn knew about the drugs concealed in the shipping container.
[134] Fourth, the intercepted communications furnish further support for an inference that Mr. Gunn knew about the drugs. The evidence suggests he was in the vicinity of the shipping container when someone said, "It's probably all in there." Additionally, he made comments about how to limit Jesse Brophy's involvement, including the suggestion of having Mr. Brophy participate in unloading the container while "not handling it." Further, when Mr. Naqizadeh said to him, "Being here right now is a risk, you know that?", Mr. Gunn responded, "Yeah." These intercepted communications, on their own, provide a reasonable basis for the jury to infer that Mr. Gunn knew about the drugs in the shipping container.
[135] At the same time, some of the evidence also lends support to an inference that Mr. Gunn did not know about the drugs and was nothing more than hired labour. For example, on the Apple Self Storage rental agreement, Mr. Gunn included his actual phone number and an e-mail address that incorporated his real name. These actions were not in keeping with him trying to distance himself from the shipping container. Further, his apparent reluctance to assist on the morning of September 11, 2017 suggests he was not a partner in a venture involving the drugs.
[136] However, on a motion for a directed verdict, only those inferences that favour the Crown, which are reasonably available on the evidence, are to be considered: Sazant, at para. 18. Ultimately, the potential exculpatory impact of some of the evidence is a matter for the jury's consideration.
[137] Further, even if the evidence falls short of demonstrating Mr. Gunn's involvement on an organizational level, that does not preclude his liability for the offences charged. Assuming Mr. Gunn's role was limited to receiving payment to help unload the shipping container, he would still be guilty of possessing heroin and opium for the purpose of trafficking and conspiracy to commit those crimes if he agreed to do so knowing about the drugs. The evidence considered in its entirety is reasonably capable of supporting an inference that he did know.
[138] The definition of "traffic" in s. 2(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, includes "transport". That encompasses the role of someone who knowingly assists in transporting drugs. Such a person has the requisite knowledge and some element of control over the drugs they are helping to move. It matters not that others also play different roles at other stages in the drug distribution process: Bruce MacFarlane, Robert Frater and Croft Michaelson, Drug Offences in Canada, 4th ed. (Toronto: Thomson Reuters, 2015, loose-leaf), at para. 5:40.120.40.40. Accordingly, culpability for the crimes charged does not require proof that Mr. Gunn is a partner in the larger drug distribution scheme.
[139] In my view, when considered in its totality, the evidence provides a basis from which the jury could reasonably conclude, beyond a reasonable doubt, that Mr. Gunn possessed opium and heroin for the purpose of trafficking, and that he was also a member of a conspiracy to commit those offences. Accordingly, the court dismissed Mr. Gunn's motion for directed verdicts.
b. Mr. Naqizadeh's Motion for Directed Verdicts
[140] Mr. Naqizadeh sought directed verdicts on four of the eight counts he faced. His motion concerned the charges of importing heroin, importing opium, and two separate counts of conspiracy to import each of those substances.
i. Positions of the Parties
[141] For Mr. Naqizadeh, Mr. Paradkar submits that the evidence does not provide a basis for the jury to reasonably conclude that his client was a principal, a party or a co-conspirator in the importation of the heroin and opium. He argues that at its highest, the evidence suggests that Mr. Naqizadeh only became involved after the shipping container arrived in Canada on August 28, 2017. Mr. Paradkar submits that by that point, the importation of the drugs was complete, which forecloses Mr. Naqizadeh's liability for any of the importing-related offences.
[142] In advancing this argument, Mr. Paradkar relies on the Supreme Court of Canada's decision in Bell v. The Queen, 1983 CanLII 166 (SCC), [1983] 2 S.C.R. 471. In Bell, the majority held that the offence of importing a narcotic, under what was then s. 5 of the Narcotic Control Act, R.S.C. 1970, c. N‑1, unlike other crimes, is not a continuing offence. The crime of importing is complete once the drugs enter the country: Bell, at pp. 488-489. As a result, someone who only takes possession of the drugs after they arrive in Canada, even to assist the importer in their delivery to the intended recipient, can only be guilty of possessing the drugs, or possessing the drugs for the purpose of trafficking, or even drug trafficking, but not importing: Bell, at p. 489.
[143] In Bell, Dickson J. (as he then was) authored a separate concurring opinion. He held that the offence of importing is "not over and done with until the goods have reached their intended final destination within Canada": Bell, at p. 481. On that view, even after illegal drugs enter Canada, a person who helps a principal in the importation to facilitate their delivery to the intended recipient could still be a party to the offence of importing.
[144] On behalf of the Crown, Mr. Aujla responds by arguing that the majority's decision in Bell must now be read together with recent decisions of the Court of Appeal for Ontario. That court has clarified the offence of importing in the aftermath of the Supreme Court of Canada's decision in R. v. Vu, 2012 SCC 40, [2012] 2 S.C.R. 411. In Vu, the Supreme Court of Canada endorsed a distinction between an offence being complete in law but not necessarily in fact: paras. 49-56, 67.
[145] In light of the distinction embraced in Vu, the Court of Appeal for Ontario has reconsidered the offence of importing. In R. v. Foster, 2018 ONCA 53, leave to appeal refused, [2018] S.C.C.A. No. 127, it explained that although the crime of importing may be legally complete when drugs enter Canada, it is only factually complete when “the contraband and its carrier have cleared customs and thereby become available to their ultimate recipient”: para. 106. In R. v. Onyedinefu, 2018 ONCA 795, the Court of Appeal for Ontario cited Foster before observing 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”: para. 8; see also R. v. Buttazzoni, 2019 ONCA 645, at paras. 45-46.
[146] Mr. Paradkar responds by arguing that it would be an error to read the Court of Appeal for Ontario's decisions as affecting how the majority's decision in Bell should now be understood. He submits that this court is still bound to follow the majority's holding in Bell, unless and until the Supreme Court of Canada makes clear that it no longer represents the law: see R. v. Okojie, 2019 ONSC 1526, at paras. 33-36.
[147] Counsel also took conflicting positions concerning whether or not the evidence serves to implicate Mr. Naqizadeh in the importation. For Mr. Naqizadeh, Mr. Paradkar submits that the evidence does not reasonably support a finding of his client's involvement with the shipping container concealing the drugs before it arrived in Canada on August 28, 2017. As a result, he could not be a party to any offence relating to the importation. In contrast, for the Crown, Mr. Aujla submits that there is an abundance of evidence reasonably capable of supporting an inference that Mr. Naqizadeh's involvement both preceded and followed the arrival of the drugs in Canada. As a result, there is a reasonable basis for finding that he was a participant in the importation.
ii. Analysis
[148] In my view, the evidence, when considered cumulatively, is reasonably capable of supporting an inference that Mr. Naqizadeh was either a principal or a party in the importation of the heroin and opium. And, further, that he was also a member of a conspiracy to import these drugs.
[149] In coming to that conclusion, it is unnecessary to reconcile the Supreme Court of Canada's decision in Bell with the Court of Appeal for Ontario's decisions in Foster and Onyedinefu. Even accepting, for the sake of my analysis, that the importation offences were complete when the shipping container arrived in Canada on August 28, 2017, the evidence is reasonably capable of supporting a finding that Mr. Naqizadeh was a participant in the scheme to import heroin and opium before that date.
[150] First, there is evidence reasonably capable of supporting an inference that Mr. Naqizadeh was taking steps to prepare for the shipping container's importation weeks before it arrived in Canada. The Chatr Mobile phone number, registered in an unrelated person's name without his consent, was activated on August 10, 2017. The evidence supports a finding that just a few weeks later, Mr. Naqizadeh was the person using that phone number to make telephone calls concerning the shipping container and the drugs concealed within it. Given the timing, it is reasonable to infer that Mr. Naqizadeh was also the person responsible for securing that phone line for that purpose. As a result, this evidence is reasonably capable of supporting a finding that Mr. Naqizadeh was preparing for the arrival of the drugs weeks before their importation.
[151] Second, the evidence also suggests that Mr. Naqizadeh was the person responsible for making all of the logistical arrangements for the shipping container and its hidden cargo once it arrived in Canada. For example, nine days before the delivery of the shipping container, he made arrangements for a storage locker where it could be taken and unloaded. He also paid the freight forwarding company's fees to secure the release of the shipping container. He took the lead in communicating with the truck driver and in making alternative arrangements at Green Storage when Apple Self Storage could not accommodate the shipping container. Mr. Naqizadeh purchased the tools used in the unloading process. He also enlisted both Mr. Tang and Mr. Brophy to help with unloading the shipping container. And, he arranged for Mr. Tang to sign the contract and pay for the storage lockers at Green Storage and then repaid him the next day. Finally, he encouraged a reluctant Mr. Gunn to assist on September 11, 2017. All of this evidence reasonably supports a finding that Mr. Naqizadeh was the person responsible for handling the Canadian end of the drug importation.
[152] Third, the intercepted telephone conversations between Mr. Naqizadeh and his father also reasonably support a finding that Mr. Naqizadeh's involvement in the importation scheme preceded the arrival of the drugs in Canada. There is nothing said during these calls to suggest that Mr. Naqizadeh was surprised by the arrival of the shipping container or that he only became involved in the very late stages of the process. As mentioned, the activation of the Chatr Mobile phone line supports a finding that he was taking steps to prepare for the shipment at least by August 10, 2017. The calls also evidence Mr. Naqizadeh's close connection and regular communications with the person apparently responsible for sending the shipping container from abroad (his father), and his familiarity with the source of the shipment (the "stone company" and "Hasim"). Mr. Naqizadeh also appears to accept his father's assertion that the shipping container "belongs to us." These communications all reasonably support a finding that Mr. Naqizadeh was a full participant in the importation of the drugs and not just someone who became involved after the fact.
[153] Fourth, the intercepted communications between Mr. Naqizadeh and his father also reasonably support an inference that he was a partner in the importation enterprise. In both tone and substance, the intercepted telephone conversations between them reveal that they were both equally and increasingly concerned as the shipping container was emptied and the drugs could not be found. Mr. Naqizadeh's level of concern suggests his shared interest in the enterprise, consistent with his partnership in the drug importation venture.
[154] All of this evidence, taken together, provides a basis from which the jury could reasonably conclude, beyond a reasonable doubt, that Mr. Naqizadeh was at least a party, and very likely a co-principal, in the drug importation.
[155] Finally, the conclusion that there was a conspiracy to import both heroin and opium is somewhat inescapable given the sophisticated nature of the concealment efforts and the evidence suggesting the involvement of other individuals, including Mr. Naqizadeh's father and the people at the stone company (i.e. Hasim). The same evidence that serves to implicate Mr. Naqizadeh in the importation of the drugs provides a basis from which the jury could also reasonably conclude that he was a member of a conspiracy to import both heroin and opium.
[156] Accordingly, the court dismissed Mr. Naqizadeh's motion for directed verdicts on the importing-related charges.
c. Mr. Najafi-Fard's Motion for Directed Verdicts
[157] Mr. Najafi-Fard jointly faced charges, along with Mr. Naqizadeh, of importing heroin, importing opium, conspiracy to import heroin, and conspiracy to import opium. He sought directed verdicts on all four charges that he faced.
i. Positions of the Parties
[158] There is no dispute between the parties that Mr. Najafi-Fard, as the consignee of the shipping container, was instrumental in its importation. Further, there can be no question that Mr. Najafi-Fard agreed with others, particularly Mr. Naqizadeh Sr., to facilitate the importation of the shipping container.
[159] The dispute between the parties on this motion is whether or not the evidence is also reasonably capable of supporting an inference that Mr. Najafi-Fard agreed to assist with the importation knowing about the heroin and opium concealed within the shipping container. And, a further inference, that he was a co-conspirator in the importation of the drugs.
[160] On behalf of Mr. Najafi-Fard, Mr. Mehrabi argues that the evidence falls short. He submits that it does not provide a basis from which the jury could reasonably conclude that his client knew anything about the drugs or conspired to import them. Mr. Mehrabi makes several arguments in support of that position.
[161] First, he notes that Mr. Najafi-Fard did not take any steps to conceal his involvement with the importation of the shipping container. The documentation relating to the shipment accurately listed the name and address of Mr. Najafi-Fard's business, which had been in operation for years. It referenced Mr. Najafi-Fard as the contact person. And, it included his actual phone number. In short, Mr. Mehrabi argues that Mr. Najafi-Fard did nothing to conceal his involvement, which is consistent with him not knowing about the illicit cargo.
[162] Second, Mr. Mehrabi emphasizes the intercepted telephone calls between Mr. Najafi-Fard and Mr. Naqizadeh. During these calls, Mr. Najafi-Fard, unlike Mr. Naqizadeh, used a phone line registered in his name. Further, not once is there anything said during these calls, either explicitly or implicitly (i.e. coded or cryptic language), to suggest Mr. Najafi-Fard knew about the drugs hidden within the shipping container.
[163] Third, Mr. Mehrabi points to the absence of the kind of evidence one might expect if Mr. Najafi-Fard was a party to the drug importation or had any interest in the drugs. For example, even though the shipping container was under surveillance from the time of its release for delivery on September 9, 2017, until the arrests on September 11, 2017, Mr. Najafi-Fard was never seen attending either of the storage facilities. And, unlike Mr. Naqizadeh and his father, whose telephone calls show them growing increasingly concerned when the drugs could not be found in the shipping container, there are no comparable intercepted telephone calls involving Mr. Najafi-Fard.
[164] Finally, Mr. Mehrabi points out that when the police searched Mr. Najafi-Fard's business, they did not locate any evidence suggesting his involvement in the drug trade. Instead, they found the folder containing the documentation concerning the shipping container out in the open on top of a printer in a public area of Mr. Najafi-Fard's rug store. Mr. Mehrabi argues that that is consistent with Mr. Najafi-Fard not having any reason to think he needed to conceal his role in importing the shipping container. In short, it is in keeping with him not knowing about the drugs.
[165] Mr. Mehrabi argues that based on all of the evidence, there is no reasonable basis for the jury to conclude that his client knew about the drugs or was a member of a conspiracy to import them. At most, he says, the evidence supports a finding that his client helped to import a shipping container that he had no reason to believe contained anything other than the declared shipment of marble stone.
[166] In contrast, on behalf of the Crown, Mr. Aujla argues that there is a sufficient basis in the evidence for the jury to reasonably conclude that Mr. Najafi-Fard facilitated the importation of the shipping container with knowledge of the drugs concealed within it. And, further, that he was one of the people who conspired to import the drugs.
[167] First, Mr. Aujla emphasizes the expert evidence regarding the operation of drug importation groups. According to that evidence, such groups are close-knit. That is inconsistent with Mr. Najafi-Fard being a stranger to the people responsible for the drugs. Mr. Aujla submits that this increases the likelihood that Mr. Najafi-Fard would have been in-the-know when it came to the actual contents of the shipping container.
[168] Second, Mr. Aujla argues that it is highly improbable that those responsible for the drugs would entrust Mr. Najafi-Fard with facilitating the importation while keeping him in the dark about the illicit nature of the cargo, especially in light of the value of the drugs. In making that submission, Mr. Aujla draws on the case law involving drug couriers.
[169] The Court of Appeal for Ontario has recognized that as a matter of common sense, someone entrusted to serve as a courier of a valuable quantity of illegal drugs is unlikely to be left unaware of what they are carrying: R. v. N’Kansah, 2019 ONCA 290, at para. 14; Pannu, at para. 157; R. v. Bryan, 2013 ONCA 97, at para. 11.
[170] By analogy, Mr. Aujla argues that it is equally improbable that those responsible for the drugs in the shipping container would entrust Mr. Najafi-Fard to facilitate the importation without also keeping him in the loop regarding the illicit nature of the cargo.
[171] Finally, Mr. Aujla emphasizes the information gleaned from the forensic analysis of Mr. Najafi-Fard's phone. It shows that Mr. Najafi-Fard was in regular contact with Mr. Naqizadeh Sr., dating back to 2015, including throughout the spring and summer of 2017. Mr. Najafi-Fard's phone also reveals that he was in regular contact with Hasim Rahmani, the person who appears to have been the contact at Malik Mirsad Co. Their communications begin in April 2017 and continue through the spring and summer of 2017.
[172] This record of communications shows Mr. Najafi-Fard had a close and regular connection with the people responsible for the drug importation. Mr. Aujla argues that this increases the likelihood that Mr. Najafi-Fard knew about the drugs and was in on the plan from the outset.
[173] Ultimately, Mr. Aujla argues that the jury could reasonably conclude, based on his role as the consignee, the value of the drugs, and his regular contact with Mr. Naqizadeh Sr. and Mr. Rahmani, that Mr. Najafi-Fard knowingly facilitated the importation of the drugs. And, further, that he was a member of the conspiracy to import the drugs.
[174] Finally, Mr. Aujla reminds the court that where the evidence is reasonably capable of supporting competing inferences, with some pointing to guilt and others against it, on a motion for a directed verdict, only those inferences that favour the Crown may be considered.
ii. Analysis
[175] Having considered all of the evidence carefully, I am of the view that it is not reasonably capable of supporting an inference that Mr. Najafi-Fard knowingly imported heroin or opium, or that he was a member of a conspiracy to import these drugs.
[176] At this stage, it is unnecessary to address in detail the evidence cited by Mr. Mehrabi, which, I agree, is reasonably capable of supporting an inference that Mr. Najafi-Fard did not know about the drugs concealed within the shipping container.
[177] Far more critical, on a motion for a directed verdict, is the evidence the Crown points to as being reasonably capable of supporting an inference that the accused is guilty of the offence(s) charged. In this case, that evidence includes:
• That Mr. Najafi-Fard was the consignee of the shipment.
• The expert evidence that drug importation groups are close-knit.
• That, in the period coinciding with the shipment, Mr. Najafi-Fard was in regular contact with the people who, the evidence suggests, were responsible for concealing the drugs in the shipping container.
[178] The Crown submits there is a ready parallel between a drug courier and the consignee of a shipping container. If common sense reasonably supports an inference that a drug courier entrusted with valuable drugs likely knows what they are carrying, it follows, says the Crown, that the consignee of a shipping container is unlikely to be ignorant of its illicit cargo.
[179] With respect, the analogy urged by the Crown does not survive logical scrutiny. A person tasked with carrying a bag containing drugs has complete control over the contraband. Leaving a suitcase containing drugs worth hundreds of thousands of dollars unattended could spell financial disaster for those with a stake in the illegal enterprise. Common sense suggests that to ensure the courier's vigilance, they are likely to be told the truth about what they are transporting.
[180] In contrast, in the circumstances of this case, based on the evidence, it is apparent that Mr. Najafi-Fard never exercised control over the shipping container. Although he served as the consignee, he never took possession of the shipment. After delivery, the shipping container remained under the control of Mr. Naqizadeh and the people he enlisted to assist with unloading it. In these circumstances, common sense does not furnish an inference that those responsible for the drugs would need to share the truth with Mr. Najafi-Fard to safeguard their investment.
[181] Nor is the close-knit nature of the criminal groups that import drugs, even when combined with the regular contact between Mr. Najafi-Fard and the people responsible for secreting the drugs in the shipping container, enough to reasonably sustain an inference that he knew about the drugs.
[182] The evidence establishes that Mr. Najafi-Fard was well acquainted with Mr. Naqizadeh Sr. and that he was in regular contact with him and the person at the stone company (Hasim Rahmani) during the spring and summer of 2017. The men may have been discussing logistical issues surrounding the importation of a shipping container full of stone tile, or they could have been plotting the importation of heroin and opium. The record furnishes only limited insight into the nature of their communications.
[183] The evidence reveals that Mr. Rahmani sent Mr. Najafi-Fard documents relevant to the shipment through WhatsApp. There were also text communications between them, but these were mostly in Farsi or Dari. The Crown did not introduce an English translation of these text communications into evidence. The only text in English was from Mr. Najafi-Fard to Mr. Rahmani, on September 6, 2017, that read, "We are looking for original bill of lading please." The evidence does not shed any light on the substance of their other communications.
[184] The evidence overwhelmingly supports an inference that Mr. Najafi-Fard actively took steps to facilitate the importation of the shipping container. However, without something more, the evidence falls short of reasonably supporting an inference that, in doing so, Mr. Najafi-Fard also knew about the drugs hidden within it.
[185] To be sure, it is quite possible that Mr. Najafi-Fard served as the consignee of the shipping container with knowledge of the heroin and opium, and that he was also a member of a conspiracy to import the drugs. There could be truth to the Crown's theory that Mr. Najafi-Fard agreed to use his existing business, which had a track record of importing goods from abroad, as cover for the importation of the drugs. In short, it is far from inconceivable, as the Crown submitted during oral argument, that Mr. Najafi-Fard chose to conceal his role in the importation by hiding in plain sight.
[186] A theory, however, is not evidence. Nor are possibilities proof. Reasonable inferences are those that flow inductively, based on logic and human experience, from the evidence. In my view, without something more, there is a critical lack of evidence capable of bridging the divide between Mr. Najafi-Fard's role as the consignee of the shipment and a reasonable inference that he knew about the drugs and was a co-conspirator in their importation. The Crown's theory ultimately depends on speculation and conjecture, which can never substitute for evidence.
[187] In the end, after engaging in a limited weighing of all the evidence, as required, I do not believe that the jury could reasonably conclude that Mr. Najafi-Fard is guilty of the offences for which he faced charges. Accordingly, I granted his motion for directed verdicts.
Conclusion
[188] For all of these reasons, I dismissed the motions for directed verdicts brought by Mr. Gunn and Mr. Naqizadeh. In contrast, I granted Mr. Najafi-Fard's motion, withdrew the case against him from the jury, and entered not guilty verdicts on the four charges he faced.
Signed: Justice J. Stribopoulos
Released: May 6, 2020
COURT FILE NO.: CRIMJ(F) 1314/18
DATE: 20200506
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
KYLE JAMES GUNN, MOHAMMED NAJAFI-FARD, and MUSTAPHA NAQIZADEH
Applicants
REASONS FOR DECISION ON MOTIONS FOR DIRECTED VERDICTS
Stribopoulos J.
Released: May 6, 2020