COURT FILE NO.: CR-20-10000157-00MO DATE: 20210908

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

OMAID RAHMANI Defendant/Applicant

COUNSEL: Michael Bernstein, for the Crown John Fennel, for the Defendant/Applicant

HEARD: June 3, 2021, by Zoom

BEFORE: MOLLOY J.

REASONS FOR DECISION

A. INTRODUCTION

[1] Omaid Rahmani brings this application for certiorari seeking to quash his committal for trial on a charge of possession of fentanyl for the purpose of trafficking. This charge was one of a myriad of charges laid against multiple individuals after a large criminal investigation known as Project Kraken. The charge involving Mr. Rahmani proceeded to a preliminary hearing along with seven other accused persons, continuing for ten days before the Honourable Justice M. Block in the Ontario Court of Justice. Block J. delivered judgment on November 20, 2020, committing all of the accused to trial on all 39 charges before him.

[2] Mr. Rahmani was arrested in Sudbury on June 23, 2019 when the car in which he was a passenger was stopped by the police. Mr. Rahmani’s co-accused on this charge, Devon Lewis, was driving the car at the time and Mr. Rahmani was in the front passenger seat. The car, a silver Toyota Yaris, was owned by Mr. Rahmani’s father. In the trunk of the car was a backpack containing two packages of fentanyl wrapped in foil, weighing approximately four ounces each.

[3] There was no direct evidence at the hearing that Mr. Rahmani had knowledge or control of the fentanyl. The case against him turns on what inferences can be drawn from the evidence, much of which consists of intercepted cellphone communications.

[4] Mr. Rahmani raises two issues. First, he submits that the hearing judge improperly admitted hearsay evidence from which he drew inferences favourable to the Crown’s case and which should not have been considered. Second, he argues that there were many inferences that could be drawn from the evidence, some of which were inconsistent with his guilt. A properly instructed jury could not draw an inference of guilt in such circumstances. Therefore, he submits that the test for committal cannot be met and the committal should be quashed.

[5] For the reasons set out below, I reject both arguments. The admissibility of evidence is a question of law and is not a reviewable error on certiorari. With respect to the drawing of inferences, the applicant’s argument has some logical resonance. However, the Ontario Court of Appeal has been clear that this type of weighing of evidence is not permissible at a preliminary hearing, nor on a motion such as this one to quash a committal.

[6] I heard this application together with that of one of the other individuals on the indictment, Eric Rivard, but have delivered separate reasons for my decision in that case.[^1]

B. THE FACTS

[7] The Crown alleges that Mr. Rahmani was part of a group transporting drugs from the Toronto area to Sudbury. For purposes of the preliminary hearing, the details of the larger scheme were not in contention. The sole issue was where there was any evidence that Mr. Rahmani had knowledge and control of the fentanyl in the trunk of the car.

[8] Much of the evidence came from wiretaps. Those revealed that between June 17, 2019 and June 23, 2019 several of the co-accused (specifically, Mohamed Aden, Makador Mohamed, Trevor Poland and Ed Greco) had conversations about drugs being delivered from Toronto to 234 Lloyd Street in Sudbury. Aden is alleged to be the drug supplier. Aden told both Greco and Poland that he was sending “four” to each of them. At 2:40 p.m. on June 23, 2019, Aden told an unnamed caller that his runner had left the Scarborough Town Centre and was on his way. At 3:00, Aden told Mohamed that his “boy” was going to be at the shopping mall soon. He also talked about having just communicated with the “youths” on Facetime. Shortly after that, Aden told both Poland “he coming by” and Greco “he’s on da way.” Greco provided the 234 Lloyd Street address.

[9] While Aden, Greco, and Poland were in communication, police surveillance teams were in place at the Cookstown Outlet Mall and observed Makador Mohamed arrive in a Volkswagon Jetta. A surveillance officer saw Devon Lewis get out of the driver seat of a silver Toyota Yaris and get into the front passenger seat of Mohammed’s Jetta. Lewis was there a short period of time, then exited. He appeared to be holding something in his right hand, which he then placed in his pocket. Lewis returned to the Yaris, again getting into the driver’s seat. Mohamed drove out of the parking lot. The officer then lost sight of Lewis for a short period of time because his view was blocked. When he regained visual observation, Lewis was outside the Yaris and getting into the driver’s seat again. Throughout this time, Mr. Rahmani was seated in the front passenger seat.

[10] The car was owned by Mr. Rahmani’s father.

[11] The Yaris left the Cookstown mall with Devon Lewis at the wheel and went directly to Sudbury. It was under constant surveillance during this trip and made no stops. At 7:04 p.m., as the Yaris entered Sudbury, the police stopped the car. At first, Mr. Lewis tried to evade the police by aggressive driving. This was not successful, and the car eventually stopped and rolled into a shallow ditch. Mr. Lewis then got out of the driver’s side and attempted to flee on foot. He was apprehended by police and appeared to them to be nervous. He made a number of unsolicited utterances supporting an inference that he knew there were drugs in the car: “that’s not my car, I’m only the driver;” “if there are drugs in the car do I get charged;” and, asking if he would get bail.

[12] Mr. Rahmani remained in the front passenger seat until he was arrested.

[13] In the trunk of the Yaris, police found a backpack containing two foil packages of fentanyl, each weighing approximately four ounces. This evidence supports an inference that these are the drugs Aden was supplying to Poland and Greco.

[14] Ten minutes after police stopped the Yaris, Aden called Greco and said “these guys” were not answering calls. Minutes later, they had another discussion about it. Aden told Greco that it was “two Black guys in a silver Toyota.” Mr. Lewis is Black; Mr. Rahmani was described by the surveillance officer as being Middle Eastern in appearance. In a later discussion, Aden and Greco again expressed concern about the delay with the Toyota. Greco said he would go to the courthouse the next day to see what he could find out. Aden told him that one of the guys in the car was named Devon Lewis.

[15] D.C. Brine was one of the officers involved in the search of the Toyota Yaris at the roadside following the arrest of Rahmani and Lewis. D.C. Brine testified that he found two cellphones in the front seat: a black iPhone in a black Otterbox case that was on the front passenger seat and plugged into the charging outlet; and a grey iPhone in a clear gold-patterned case that was on the floor in front of the front passenger seat. He turned the phones over to D.C. Kelly.

[16] D.C. Kelly confirmed receiving the iPhones from D.C. Brine. D.C. Kelly testified that he had been informed by D.C. Brine that the GPS App on the black iPhone had been opened with an estimated arrival of 7:59 at the address of 234 Lloyd Street. This phone was located on the seat where Mr. Rahmani had previously been sitting and showed the address provided by Greco for the delivery of the drugs.

C. THE DECISION OF THE HEARING JUDGE

[17] The preliminary hearing judge held that “the combined effect of the intercepts” and the surveillance at the Cookstown Mall “are consistent with a reasonable inference that Mohamed Aden attempted to resupply drugs to Greco and Poland for their local trafficking operations” in Sudbury with the assistance of Makador Mohamed, using Lewis and Rahmani as couriers from Cookstown to Sudbury. Further, he held that the drugs found in the trunk of the Yaris “create a reasonable inference that the purpose of the meeting between Makador Mohamed and Devon Lewis in Cookstown was the transfer of the drugs discovered after the takedown.”[^2] The hearing judge recognized that there were some weaknesses in the evidence and other possible inferences available but held that these “potential competing inferences must be evaluated by the jury.”[^3]

[18] The hearing judge found ample evidence to support the inference that Mr. Lewis had knowledge and control of the fentanyl in the trunk of the car including his conduct at the Cookstown Mall, his control of the vehicle carrying the drugs, his behaviour at the time of takedown, and his inculpatory remarks demonstrating his knowledge of the drugs.

[19] With respect to Mr. Rahmani, the hearing judge observed that “the evidence pointing to an inference that the passenger Rahmani was a knowing participant in the drug delivery to Sudbury might well be inadequate to ground committal except for the discovery of the black iPhone on his seat after the June 23, 2019 takedown.” He noted that the active GPS App showed the delivery address for the drugs destined for Greco and held that this was “some evidence that Rahmani was not a mere passenger but rather a participant with knowledge of the destination and purpose of the journey.” He held that the determination of that issue must be left with the jury.[^4]

D. THE TEST TO BE APPLIED

[20] This is not an appeal. The preliminary hearing judge is entitled to be wrong on questions of law. Certiorari is not available to review purported errors of law by the preliminary hearing judge. The only basis upon which this court can intervene is where the preliminary hearing court judge has lost jurisdiction. A preliminary hearing judge loses jurisdiction if he or she orders committal in the absence of any evidence upon which a properly instructed jury could rationally conclude that the accused is guilty beyond a reasonable doubt.[^5]

[21] The test to be applied for committal to trial is the same, whether the evidence is direct or circumstantial. Where there is no direct evidence of an essential element of an offence, the preliminary hearing judge must assess whether the circumstantial evidence is reasonably capable of supporting an inference of guilt. The inference consistent with guilt is not required to be the only inference, or even the most compelling one, but it is required to be a reasonable one that is rooted in the evidence, as opposed to being mere speculation. The Crown’s case must be taken at its highest. Only inferences consistent with the Crown’s case are permitted to be drawn.[^6]

E. HEARSAY EVIDENCE

[22] The applicant submits that the hearing judge erred in jurisdiction by admitting the hearsay evidence of D.C. Kelly about what was on the black iPhone, that testimony being based on what he was told by D.C. Brine rather than what he observed himself. The applicant relies in that regard on Stillo v. R.,[^7] a 1981 decision of the Ontario Court of Appeal.

[23] In Stillo the accused was charged with assaulting a child, a girl not quite eight years old at the time of the trial. Because the child did not understand the nature of an oath, her testimony at the preliminary hearing was received unsworn. There was no evidence corroborating her testimony about the assault. Notwithstanding the absence of corroboration, the preliminary hearing judge committed the accused for trial. The accused brought an application to quash his committal, which was dismissed by Cory J. (as he then was).

[24] The Evidence Act in force at the time of the Stillo case provided that if a child’s evidence is unsworn, “no case shall be decided upon such evidence, and it must be corroborated by some other material evidence.”[^8] Cory J. ruled that the acceptance by the preliminary hearing judge of the unsworn and uncorroborated evidence of a child was an error of law, not an error of jurisdiction, and accordingly immune from judicial review. On further appeal, the Court of Appeal disagreed, holding that the absence of corroboration as required by the Evidence Act meant that there was no evidence upon which a reasonable properly instructed jury could convict and that the preliminary hearing judge had therefore made an error going to jurisdiction.

[25] Before me, counsel for the applicant argued that the same principle should apply to inadmissible hearsay evidence. Since no properly instructed jury could rely on such evidence to convict, he submitted, this amounts to an error of jurisdiction.

[26] I disagree. The issue in Stillo was not whether the child’s evidence was admissible. Rather, there was a statutory requirement that it be corroborated, such that corroborating evidence became an essential element or precondition to a conviction. That is not the case before me. D.C. Allen’s evidence clearly was hearsay, but whether or not it was admissible is a question of law, not one of jurisdiction.

[27] Crown counsel argued before me that, given the surrounding circumstances, the preliminary hearing judge committed no error in admitting the evidence of D.C. Allen on this issue. It is not necessary for me to decide whether the evidence was or was not admissible, and I decline to do so. In my view, the Ontario Court of Appeal and Supreme Court of Canada have been consistent in holding that the admissibility of evidence is a question of law and not reviewable on an application to quash a committal for trial.

[28] In R. v. Deschamplain the Supreme Court of Canada held that any error made by a preliminary hearing judge as to the application of the rules of evidence “constitutes an error of law, not a jurisdictional error” and is “not reviewable by way of certiorari.”[^9] Similarly, Watt J.A. held in R. v. Vasarhelyi[^10] that errors in the admission of evidence or the application of the rules of evidence are errors of law and not jurisdictional in nature. The Supreme Court of Canada recently reiterated its position that certiorari cannot be used to challenge evidentiary rulings in R. v. Awashish, in which Rowe J. held:

Certiorari is an extraordinary remedy that is available only in narrow circumstances. Allowing parties to use it to challenge interlocutory rulings, including evidentiary matters, risks gravely slowing the criminal justice system. For similar reasons to those set out by the Court of Appeal, I would dismiss the Crown’s appeal.[^11]

[29] The preliminary hearing judge may have erred in admitting this evidence as hearsay through D.C. Allen. However, if this was an error (and I make no finding on whether it was), it was an error of law, not an error of jurisdiction. It is not the function of this court on certiorari to review evidentiary rulings or other errors of law. Accordingly, I find no merit to this aspect of the application.

F. CIRCUMSTANTIAL EVIDENCE and INFERENCES

[30] The applicant submits that the circumstantial evidence in this case was not sufficient to commit him for trial because no properly instructed jury could find him guilty on such evidence. The applicant argues that this case is analogous to the situation in R. v. Lights[^12] in which the Ontario Court of Appeal reversed the decision of a trial judge convicting an accused of drug possession based entirely on circumstantial evidence. In Lights, six men were sitting in an apartment when armed police suddenly entered pursuant to a warrant. On the floor of the apartment, equidistant from each of the six men, was a closed duffel bag containing over a kilogram of marijuana and two ounces of cocaine. There was no identification inside or attached to the bag. In the apartment itself police found a firearm, a bulletproof vest, a few leaves of marijuana next to a kitchen scale, a vacuum sealer, a money counter, and approximately $10,000 in cash locked in a safe. The accused was the principal occupant of the apartment (although he was not on the lease) and in his pocket he had a key to the safe. The Court of Appeal set aside Mr. Lights’ conviction for possession of the drugs in the duffel bag and registered an acquittal. The Court found the trial judge’s decision to be unreasonable, having previously defined that term as a verdict “that no properly instructed jury, acting judicially, could reasonably have rendered.”[^13] In coming to that conclusion, the Court relied on the Supreme Court of Canada’s decision in R. v. Villaroman, which held that “when the Crown’s case consists wholly or substantially of circumstantial evidence, the standard of proof requires the trier of fact to be satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference to be drawn from the evidence as a whole.”[^14] Applying those principles, Watt J.A. (writing for the unanimous Court) held:

But the black duffel bag and its contents was in a common area near the entrance to the apartment, equidistant to all six male occupants in possession of three fully-loaded handguns. The duffel bag was closed, its contents not visible from its exterior. There was no identification in, on, or attached to the bag. No forensic evidence linked the appellant to the bag. There was no evidence of its origins or how it came to be in its location. In these circumstances, we simply cannot say that the only reasonable inference from the evidence as a whole is that the appellant was in possession of the bag and its cache of contraband.[^15]

[31] Arguing by way of analogy, counsel for the applicant points out that Mr. Rahmani was occupying the car when the drugs were in the trunk and had an address on his phone for the place where the drugs were to be delivered. However, there was no evidence connecting him to the backpack and its contents were not visible. There are other inferences that could logically be drawn with respect to the address on his phone and his knowledge and/or control of the drugs in the trunk. Therefore, he submits that no properly instructed jury could draw the inference of guilt and the committal for trial must therefore be quashed.

[32] The applicant also relies on the Court of Appeal’s decision in United States v. Huynh[^16] in which Doherty J.A. held that where an inferential gap exists, it can only be properly overcome by evidence. In that case, the United States sought Mr. Huynh’s extradition for the offence of laundering proceeds of crime obtained by the commission of the designated offence of trafficking in a controlled substance. The applicant was the owner of a large transport truck. The gas tank of the truck contained a secret compartment in which large quantities of cash were hidden and the truck was then driven across the border from the United States to Canada. Justice Doherty found that the designated offence of trafficking in a controlled substance was an essential element to be established and that this was not an inference that could properly be drawn from the evidence, stating:

The material identified by the respondent certainly permits the inference that the cash was the proceeds of some illicit activity. Drug trafficking comes readily to mind as one possible source. The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess. The gap between the inference that the cash was the proceeds of illicit activity and the further inference that the illicit activity was trafficking in a controlled substance can only be bridged by evidence. The trier of fact will assess that evidence in the light of common sense and human experience, but neither are a substitute for evidence. The requesting state has not offered any evidence as to the source of the funds even though its material indicates that one of the parties to this conspiracy is cooperating with the police. Despite the effective argument of counsel for the respondent, I do not think there is anything in the material that would reasonably permit a trier of fact to infer that the cash was the proceeds of drug trafficking and not some other illicit activity.

[33] The test on extradition is the same as on committal for trial after a preliminary inquiry. By analogy the applicant before me argues that Huynh stands for the proposition that where there are other available inferences from the circumstantial evidence, the hearing judge cannot draw an inference consistent with guilt.

[34] I confess that I find some logical force to the applicant’s argument. Clearly, where there are multiple inferences available from the evidence, the preliminary hearing judge is required to draw the inference favourable to the Crown. This principle is well-established in the case law.[^17] However, the Supreme Court of Canada has also been clear in Villaroman that where a case is entirely circumstantial the jury must be instructed that they can only make a finding of guilt if that is the only reasonable inference from the evidence. This is an application of the ancient Rule in Hodge’s Case. If there is any other available inference supported by the evidence looked at as a whole, even where the inference consistent with guilt is the most likely of the available inferences, the jury cannot return a guilty verdict. Logically, then, why commit an accused for trial in an entirely circumstantial case, where there are alternative inferences available from the evidence, and where the jury will be instructed that the availability of other rational inferences means they cannot draw an inference of guilt? The preliminary hearing judge is required to do some limited weighing of the evidence in a circumstantial case.[^18] Should this not include a recognition that, in a case based entirely on circumstantial evidence, proof beyond a reasonable doubt at trial will require the application of Hodge’s Case? Having confessed my attraction to the logic of that proposition, I must also confess (as I did to counsel in this case during the course of their oral submissions) that I have previously written a decision on a certiorari application adopting that line of analysis,[^19] which was decisively reversed by the Ontario Court of Appeal.

[35] The Court of Appeal’s decision in that case, R. v. Jackson,[^20] was authored by Doherty J.A. for the unanimous court. As I had relied on Doherty J.A.’s earlier decision in Huynh, the decision in Jackson addresses that point directly, stating:

The Superior Court judge confused cases in which the circumstantial evidence read at its strongest for the Crown could not reasonably support an inference of guilt (see e.g. United States of America v. Huynh (2005), 2005 CanLII 34563 (ON CA), 200 C.C.C. (3d) 305 (Ont. C.A.)), with cases in which the evidence could reasonably support inferences necessary to a finding of guilt or inferences inconsistent with guilt: (see e.g. Russell). The preliminary inquiry judge must discharge if the evidence falls into the first category of cases, but must commit for trial if the evidence falls into the second category.[^21]

[36] I take it from Jackson that Huynh is not properly characterized as a case in which there is more than one inference that can be drawn with respect to the source of the large amounts of cash being covertly transported across the border hidden in the truck’s gas tank, but rather as a case where there is nothing but speculation to support the inference sought by the Crown. If characterized as the former, the hearing judge would be required to draw the inference that supports the Crown’s theory. However, in the latter, the hearing judge must not draw any inference.

[37] The Court of Appeal was clear in Jackson that the Rule in Hodge’s Case, as applied by the Supreme Court of Canada in Villaroman, has no place in the analysis at a preliminary hearing, nor on a certiorari review of a committal for trial. Doherty J.A. held:

Given the nature of the decision the preliminary inquiry judge must make when deciding whether to commit, I see no value in reference to Hodge’s Case (1838), 1838 CanLII 1 (FOREP), 2 Lewin 227. The often cited passage from Hodge’s Case provides language that may be used in a jury instruction to assist a jury in applying the reasonable doubt standard to circumstantial evidence, and to alert the jury to the dangers of leaping too quickly to conclusions based on circumstantial evidence: see R. v. Villaroman, 2016 SCC 33. Neither concern is germane to the function of the preliminary inquiry judge at the end of the preliminary inquiry. Inserting the jury instruction language from Hodge’s Case into the analysis required to determine whether an accused should be committed for trial is confusing and potentially misleading.[^22]

[38] Accordingly, the question at this point is not whether there are other inferences available consistent with the innocence of the accused. Rather, the question is whether there is any reasonable inference available at all that Mr. Rahmani knew there were drugs in the trunk of the car and that the address on his phone was the drug drop-off point, and not simply some place to which they were headed. The fact that there is an available inference that Mr. Rahmani was no more than a passenger in the car is irrelevant. The fact that Aden referred to “two Black guys” being the couriers, when Mr. Rahmani is Middle Eastern, is also irrelevant. It was Mr. Rahmani’s father’s car, he was in it at the time the drugs were picked up, he remained in it for the entire drive to Sudbury, he knew the address to which they were going, and Aden referred multiple times to there being more than one courier involved for this delivery in the Toyota to Sudbury. All of these facts together could support a rational inference that Mr. Rahmani was acting as a drug courier and had knowledge and control over the drugs in the trunk of his father’s car. In my view, such an inference is rooted in the evidence and goes beyond mere speculation. The existence of other inferences, and the significant (if not insurmountable) obstacle Villaroman and Hodge’s Case will present at trial, are not relevant considerations at this stage.

G. CONCLUSION

[39] I find no error of jurisdiction by the preliminary hearing judge. This application is dismissed.

Released: September 8, 2021

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

OMAID RAHMANI Defendant/Applicant

REASONS FOR DECISION

Molloy J.

Released: September 8, 2021

[^1]: R. v. Rivard, 2021 ONSC 5717.

[^2]: Reasons of the Preliminary Hearing Judge, at para. 38 (“Reasons”).

[^3]: Reasons, para. 40.

[^4]: Reasons, para. 46.

[^5]: R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 21; R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 16; R. v. Skogman, 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93, at p. 106; United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21; R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at para. 53.

[^6]: Arcuri, at para. 23; Sazant, at para. 18; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 84-91.

[^7]: Stillo v. R. (1981), 1981 CanLII 3313 (ON CA), 60 C.C.C. (2d) 243 (Ont. C.A.).

[^8]: Canada Evidence Act, R.S.C. 1970, c. E-10 s. 16(1) and (2).

[^9]: R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 17.

[^10]: R. v. Vasarhelyi, 2011 ONCA 397, 272 C.C.C. (3d) 193, at paras. 50-53, leave to appeal denied, [2011] S.C.C.A. No. 70.

[^11]: R. v. Awashish, 2018 SCC 45, [2018] 3 S.C.R. 87, at para. 2.

[^12]: R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273.

[^13]: Lights, at para. 30.

[^14]: Lights, at para. 36, citing R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 20.

[^15]: Lights, at para. 105.

[^16]: United States v. Huynh (2005), 2005 CanLII 34563 (ON CA), 200 C.C.C. (3d) 305 (Ont. C.A.).

[^17]: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 25.

[^18]: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 23.

[^19]: R. v. Jackson, 2016 ONSC 1069 (“Jackson ONSC”).

[^20]: R. v. Jackson, 2016 ONCA 736 (“Jackson ONCA”).

[^21]: Jackson ONCA, at para. 11.

[^22]: Jackson ONCA, at para. 15.