INTRODUCTION

[1] After a judge alone trial, I convicted Mr. Cornelius Oparah of importation of heroin contrary to section 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”); Conspiracy to import heroin, contrary to section 6(1) of the CDSA, thereby committing an offence contrary to section 465(1)(c) of the Criminal Code, R.S.C 1985, c. C-46; and two counts of possession of heroin for the purpose of trafficking, contrary to section 6(1) of the CDSA. All offences were committed between the 20^th^ day of October 2010 and the 4^th^ day of November 2010, in the City of Mississauga, in the Province of Ontario.

[2] The issues are possession of the heroin in the apartment and knowledge of the controlled substance (heroin) in the package imported into Canada. The only reasonable inference that can be drawn from the evidence is that Mr. Oparah actually knew that there was a controlled substance in the boxes he picked up from the UPS Store. Mr. Oparah intentionally imported them into Canada. He was also in possession of the heroin found at 220 Steeles Avenue, Apartment 1209, Brampton, Ontario (“the apartment”).

[3] I have carefully considered all of the evidence adduced at trial as well as the submissions of counsel. However, in this judgment, I only refer to the portions of evidence and submissions necessary to explain and provide context for the conclusions I have reached.

[4] Twelve witnesses testified on behalf of the Crown: Royal Canadian Mounted Police (“RCMP”) Officers George Johnson, Sam Ismail, Brent Hasey, Bruce Sabourin, Greg Prowse, Aron Buchner, Ryan Hulan, Eddie Ting, Wendy MacFadyen and Jeff Smith; Canada Border Services Officer (“BSO”) Patricia Venneman, and retired UPS Store owner Magdy Salama. Mr. Oparah testified in his own defence. 100 exhibits were filed.

[5] Unless I indicate otherwise, I found all the Crown witnesses to be credible and I accept their evidence. I do not accept Mr. Oparah’ s evidence and it does not raise a reasonable doubt. The culminative effect of the evidence that I do accept, is the conclusion that the Crown has proved Mr. Oparah’s guilt of all the offences beyond a reasonable doubt.

THE CASE AGAINST MR. OPARAH

[6] It is not disputed that on October 28, 2010, 2.30 kilograms of heroin was sent from India via Ghana via New Jersey, United States to Canada. The heroin was discovered when the package was intercepted by Customs Officers in Newark, New Jersey, who alerted the RCMP.

[7] The package entered Canada on a commercial flight arriving on October 28, 2010, at 9:05 p.m. at Toronto Pearson International Airport. The RCMP took immediate custody of the package.

[8] The heroin was concealed in gears packed in two boxes (the “package”). Each box contained 12 smaller boxes of plastic calendar gears from “Shakti Engineering Works”. Each smaller box contained two gears. There were 24 gears in each box. A total of 48 gears in the package. Each gear contained a black plastic component which encircled cylindrical metal rods. Heroin was secreted in the black plastic component of each gear.

[9] The total weight of the heroin was 2.30 kilograms. The value ranged from $184,000 to $805,000 CDN. The quantity is consistent with possession for the purpose of trafficking and not possession for personal use.

[10] The package had a tracking number: 8669-0036-0596. The FedEx shipping shows that it was sent by:

Overseas Logistic Pvt Ltd.

Joshua Appai Phillip

Accra, Ghana

New Delhi

New Delhi 110001

India

[11] The package was addressed to:

Alhabeeb

No. 400 Steeles Avenue East (sic)

Suite No. 8

Brampton, ON L6W 4T8

[12] The package was addressed to a UPS store where mailbox 129 was located. This mailbox was opened by Martin Claude Vilad in February 2009. Martin Claude Vilad added the name Alhabeeb to his mailbox afterwards. He also designated Jarrett Elliot as his mailbox representative. This authorized Mr. Elliot to pick up packages sent for Alhabeeb. The UPS store had a driver’s license for Jarrett Eliot on file with Mr. Oparah’s photograph on it. This was fake identification.

[13] The RCMP prepared the package for a controlled delivery and removed all the heroin, except one gram, from the package. A General Warrant authorising the controlled delivery was obtained.

[14] On November 3, 2010, RCMP Sergeant Johnson placed a delivery notice in mailbox 129 to signify that the package had arrived. In the process, Sergeant Johnson discovered a Canada Post notice dated November 2, 2010. According to the notice, a package addressed to a “Sammie Bunns c/o Martin Vilad Ltd” was ready for pick up at a Shoppers Drug Mart location. Sergeant Johnson did not remove the notice from the mailbox. He passed on this information to Canada Border Services who reported that there were no drugs in the Shopper’s Drug Mart package.

[15] On November 4, 2017, Mr. Salama received a phone call inquiring if the package for Alhabeeb had arrived. That morning, Mr. Oparah went to the UPS store, opened mailbox 129, picked up the two delivery slips and left. Mr. Salama recognised Mr. Oparah as “Jarret Elliott” who had previously picked up other packages.

[16] There was a white officer working undercover as one of Mr. Salama’s employees. Mr. Salama speculated that the white undercover officer may have spooked Mr. Oparah. He asked the RCMP to replace this undercover officer with a Persian speaking officer. Mr. Salama said his employees were usually Persian. Constable Ismail was sent as the replacement.

[17] RCMP surveillance officers observed Mr. Oparah drive away in a light blue Ford Taurus sedan with an Ontario license plate number. He parked his vehicle at the Lowes parking lot across from Kennedy Road. He never exited his vehicle. He stayed in that position for approximately ten minutes, then drove north on Kennedy road, made a loop back to the UPS store, drove slowly past it and then travelled north on Kennedy Road, past Rambler Road and out of sight of the RCMP surveillance team.

[18] At 2:10 p.m., Mr. Oparah returned to the UPS store. He assumed the identity “Jarrett Elliott”. He paid Mr. Salma $40.00 CDN to pick up the package. He took one box to his light blue Ford Taurus Sedan. He placed the box in the rear seat of the vehicle. Undercover officer Ismail helped carry the second box. He gave the box to Mr. Oparah who placed it beside the first box in the rear seat of the vehicle. Mr. Oparah drove away. He was followed by RCMP officers to an apartment building at 220 Steeles Avenue West. Constable Prowse stopped Mr. Oparah’s vehicle just before the entrance to the underground parking garage. Constable Prowse arrested Mr. Oparah for importing heroin into Canada.

[19] Mr. Oparah was searched incident to arrest. He had two fake Canadian citizenship cards on his person, with his photograph on them. One was in the name of the person who rented mailbox 129 - Martin Claude Vilad. The second was in the name of Richard Elliott. Mr. Oparah also had an Ontario driver’s license in his own name, a CIBC Convenience Card in the name of Ghilazhi Faven, a Direct Ink Trading business card in the name of Cornelius Oparah and a Costco Photo ID card.

[20] The police searched the vehicle Mr. Oparah was driving and found multiple overnight parking tickets for 220 Steeles Avenue West, Apartment 1609. The package was still in the rear seat. A third box was found in the trunk. The label on the third box indicates that it was sent by the same sender and addressed to the same recipient as the package. The contents were described as air filters, valued at $165.00 CDN. No controlled substances were found in the contents of the third box.

[21] The police determined that Mr. Oparah’s apartment number is 1609. Police remained outside the apartment and ensured that no one entered the apartment until a search warrant was obtained and executed. At 10:00 a.m. on November 5, 2010, the police search on the apartment began. The police seized several pieces of documentation and some additional heroin[^2]. Several documents in Mr. Oparah’s name, addressed to him at the apartment, some with both his name and photograph, connect him to the apartment. Fake identification in the name of Jarret Elliot with Mr. Oparah’s photograph, and the rental agreement for mailbox 129 in the name of Martin Claude Vilad, connect Mr. Oparah to the apartment and the offence of importation of the heroin. Some of the documents seized made reference to Michael Oparah and another made reference to both Cornelius Oparah and Carola Tulloch. The connection between Mr. Oparah and the documentation seized is overwhelming.

[22] In the kitchen, Constable Smith found an open box containing filters, labelled “Shakti Engineering Works” gear boxes. There were calendar gears in the boxes. The black plastics ordinarily surrounding the rods were missing. The box was addressed to the same recipient and to the same address as the package. Constable Sabourin found 15.50 grams of heroin in the apartment.

LAW

[23] To obtain a conviction on importation, the Crown must prove beyond a reasonable doubt that Mr. Oparah imported the substance into Canada[^3]; that he knew the substance was a controlled substance[^4] and he intended to import the controlled substance into Canada: Bell v. R, 1983 CanLII 166 (SCC), [1983] 2 S.C.R. 471; R v. Blondin (1970), 1970 CanLII 1006 (BC CA), 2 C.C.C (2d) 118. With the exception of the element of knowledge, none of the other essential elements are in dispute. In effect, it is agreed that the substance imported into Canada was heroin and if the prosecution proves Mr. Oparah’s knowledge beyond a reasonable doubt, she will also have proved that Mr. Oparah intended to import the heroin into Canada.

[24] To prove that Mr. Oparah conspired to import a controlled substance (heroin) into Canada, the prosecution must prove beyond a reasonable doubt that there was a conspiracy (an agreement) between two or more people to import a controlled substance (heroin), and that Mr. Oparah was a member of that conspiracy[^5]: Criminal Code, s. 465(1)(c); United States v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462; Canada (Attorney General) v. Lalonde, 2016 ONCA 923, 133 O.R. (3d) 481.

[25] It Is not disputed that there was an agreement to import heroin into Canada. The prosecution submits that Mr. Oparah was part of that agreement. Mr. Oparah submits he was not part of that agreement; it was Mr. Dominic. It is agreed that if the prosecution proves beyond a reasonable doubt that Mr. Oparah knew that the package contained heroin, she would have proved beyond a reasonable doubt that Mr. Oparah was a part of the agreement to import heroin into Canada.

[26] To prove that Mr. Oparah was in possession of the heroin for the purpose of trafficking, the prosecution must prove beyond a reasonable doubt that the substance was a controlled substance; Mr. Oparah was in possession of the controlled substance;[^6] Mr. Oparah knew the substance was a controlled substance and Mr. Oparah possessed the substance for the purpose of trafficking: CDSA, s. 465(1)(c); Criminal Code, s 4(3); R v. Pham, 2005 CanLII 44671 (ON CA), 77 O.R (3d) 401 (C.A).

[27] With respect to the heroin imported, it is not in dispute that Mr. Oparah took physical control of the package when he picked it up from the UPS store, and the quantity of the drug constitutes possession for the purpose of trafficking. What is in dispute is whether Mr. Oparah knew that there was a controlled substance (heroin) in the package.

[28] To prove that Mr. Oparah was in possession of the heroin found in the apartment, the prosecution must prove beyond a reasonable doubt that Mr. Oparah had knowledge and control[^7] over the heroin found by Constable Sabourin in the apartment: R v. Beaver, 1957 CanLII 14 (SCC), [1957] SCR 531.

[29] For all offences, the prosecution submits that Mr. Oparah knew there was heroin in the package and the apartment or was, at the minimum, wilfully blind or reckless that there was heroin in the package and the apartment[^8]: R v. Beaver, 1957 CanLII 14 (SCC), [1957] SCR 531; R v. Briscoe, 2010 SCC 13, [2010] 1 SCR 411.

MR. OPARAH’S VERSION OF EVENTS

[30] Mr. Oparah has no criminal record. Mr. Oparah denied having any knowledge that there was a controlled drug (heroin) in the package and in his rented apartment. He temporarily moved out of the apartment from September 2009 to April 2010. He moved to Montreal for work. He later clarified that he moved back and forth between Toronto and Montreal during that period.

[31] Mr. Oparah said since his apartment was vacant for that period he offered it to his friend Tommy Dominic, who had fallen on difficult times. Mr. Dominic was a mechanic by trade who occasionally imported auto parts and would sometimes ship some auto parts and used cars to Africa. He also described Mr. Dominic as a truck driver.

[32] Mr. Oparah said he returned to Toronto in April 2010. He said he moved to 45 Huntingdale Road in Scarborough to live with his uncle. He maintained his apartment at 220 Steeles Apartment, apartment 1609, and allowed Mr. Dominic to live there. Mr. Oparah said he did not return to live in the apartment. At some point, Mr. Dominic’s girl friend moved in to live with Mr. Dominic temporarily. Mr. Oparah said he surrendered the apartment to Mr. Dominic.

[33] The police executed a search warrant at Mr. Oparah’s leased apartment on November 5, 2010. The police found a box in the kitchen. Mr. Oparah said in September 2010, he asked Mr. Dominic about the contents of this box. Mr. Dominic told him that the box was full of auto parts he planned to ship to Africa.

[34] Mr. Oparah said Mr. Dominic was planning to travel to Nigeria to get married via Spain. He asked him to kindly pick up some parcels for him from the UPS store while he was away. Mr. Oparah said Mr. Dominic told him that he had set up a mailbox under a false name to receive the packages. Mr. Dominic gave him false identifications in the name of Jarrett Elliot, Michael Elliot, and Martin Claude Vilad to pick up the packages. Mr. Oparah thought this was odd and inquired why. Mr. Dominic told him that the false names were for tax saving purposes. Mr. Oparah said he was satisfied with this response. Mr. Oparah said he did not know how Mr. Dominic got the false identification.

[35] Once Mr. Dominic was away on his trip, he asked Mr. Oparah to pick up a package from the UPS store using fake identification. He picked up the package. He told Mr. Dominic, who told him the recipient would contact him. The recipient contacted him. He met and gave her the package and received $120.00 CDN. The package contained shoes. Mr. Dominic told him to keep the money.

[36] About two to three weeks before his arrest, Mr. Dominic asked Mr. Oparah to pick up a second package containing auto parts. He picked it up using fake identification. He put it in his car. He said Mr. Dominic told him he intended to ship the auto parts to Africa once his shipping container in Montreal was full. Unlike the first package, no one contacted him to claim this package. Mr. Oparah found this odd, but he was not concerned. This was the package that was in the trunk of his car when he was arrested on November 4, 2010.

[37] Mr. Oparah said that on November 3, 2010, Mr. Dominic called him and asked him to pick up a package made up of two boxes from the UPS store. Mr. Oparah said he was reluctant because he was planning to travel to Montreal to see his cousin’s new baby. Mr. Dominic joked that he would pay him $1000.00 CDN to pick up the package. Mr. Oparah explained that because he trusted Mr. Dominic, he relented and agreed to pick up the package.

[38] Mr. Oparah said he went to the UPS store twice on November 4, 2010. He was driving his girl friend’s car at that time. The first time he went in, Mr. Salama told him he had to pay $40.00 CDN to pick up the package. Mr. Oparah said he left the store to withdraw money to pay for the package and to wait for a friend.

[39] Mr. Oparah said he met his friend at Shopper’s World at Hurontario and Steeles, withdrew some money, and returned to the UPS store. He paid the money and picked up the packages. He carried the package to the car. He was assisted by the undercover officer. Mr. Oparah said he believed the package contained auto parts. He had no idea that it contained a controlled substance (heroin).

[40] Mr. Oparah said he had no idea that there was 15.5 grams of heroin in his leased apartment. Mr. Oparah said he was Mr. Dominic’s dupe. He had no knowledge of a controlled substance in the packages or in the apartment.

CONCERNS WITH MR. OPARAH’S TESTIMONY

[41] There are several areas of concern with Mr. Oparah’ s testimony. Any of which lead me to reject his testimony and conclude that his testimony does not raise a reasonable doubt. The cumulative effect of all this evidence, leads to the same conclusion in overwhelming fashion.

[42] Mr. Oparah said Mr. Dominic told him the package contained auto parts. Mr. Oparah’ s explanation that he used fake identification to pick up the package, in order to help his friend, save taxes, makes no sense. The scheme required Mr. Oparah to use fake identification created with Mr. Oparah’ s own image. Such action placed Mr. Oparah in his own potential legal jeopardy and yet he was willing to do so based on such a flimsy explanation from Mr. Dominic. Under such circumstances, the assertion that he did this because he trusted Mr. Dominic is simply not a reasonable one.

[43] Mr. Oparah told the court that Mr. Dominic provided him with the fake identification for the sole purpose of picking up packages. He told the police that at some point, his car was stolen, and he found the fake identification in his car, after the car was returned to him. He told the police that he decided to use the identification himself because he had no identification with his picture on it. This explanation is also unreasonable.

[44] Mr. Oparah explained that he was untruthful to the police because he wanted to protect Mr. Dominic at that time. This explanation is inconsistent with his conduct after his arrest. He told the police that Mr. Dominic owned the package; had rented the mailbox; he provided the police with Mr. Dominic’s full name – Obinna Ike; and he provided a general description of Mr. Dominic and Mr. Dominic’s occupation and address. Such conduct is inconsistent with an effort to protect Mr. Dominic. This is another instance of a deliberate attempt by Mr. Oparah to mislead the court.

[45] Mr. Oparah was unequivocal, he saw the box in the kitchen and asked Mr. Dominic about it in September 2010. This was before Mr. Dominic left Canada. Mr. Oparah also said he picked up the box in the trunk in October 2010. This was the second box he picked up upon Mr. Dominic’s instructions. The only reasonable inference from Mr. Oparah’ s version, is that the box in the kitchen and the box in Mr. Oparah’ s trunk are two different shipments.

[46] Notations on the shipping labels for the controlled delivery package, the box found in the kitchen, and the box found in Mr. Oparah’ s trunk are part of the evidence in this case. The shipping labels provide information on the date a box was cleared, a tracking number for the package, the name of the consignee, the name of the consignor, and an invoice describing the contents.

[47] The only reasonable inference that can be drawn from the shipping labels and invoice for the box found in Mr. Oparah’ s trunk and the box found in the kitchen, are as follows:

• The boxes were cleared on the same day, October 18, 2010;

• The boxes had the same tracking number: 464084006850;

• The boxes had the same consignee: Alhabeeb;

• The invoice on the box in the kitchen described its contents as “Shakti Gear, Filter Ring Filter”. This was the contents of the box minus the black plastic rods;

• The invoice on the box in the trunk stated “Arrow Air Filter, Flora Air Filter”;

• The boxes had the same distinctive markings circled #1 for the box in the trunk and circled #2 for the box in the kitchen.

[48] The only reasonable inference that can be drawn from this evidence is that the box in the trunk and the box in the kitchen were sent as one package and at the same time. Thus, it is impossible for Mr. Oparah to have spoken to Mr. Dominic about the box in the kitchen in September 2010, and then subsequently received instructions from Mr. Dominic to pick up the package, which was the box Mr. Oparah kept in his trunk. In other words, the package had to have arrived to be seen. At the time Mr. Oparah says he showed Mr. Dominic the package, it would not have arrived. Mr. Oparah was not being truthful. I reject his evidence. It does not raise a reasonable doubt.

[49] I note that the consignee and consignor information on the controlled delivery package, and on the boxes in the kitchen and in the trunk of Mr. Oparah’ s car, are the same. The contents include the same brand of auto parts – gears. No drugs were found in the box in the kitchen and the box in the car trunk. The similarities raise some strong suspicions of a connection between the package and those prior shipments. However, I do not accept the prosecution’s submission that this is further evidence of Mr. Oparah’ s knowledge that the package imported into Canada contained heroin. Therefore, this evidence does not assist the prosecution in proving the case against Mr. Oparah beyond a reasonable doubt.

[50] The defence has suggested that it is inconceivable that if Mr. Oparah knew of the importation scheme, he would drive around with a drug packed box of air filters. This submission is premised on an acceptance of Mr. Oparah’s explanation for why the box was in his trunk, which I have rejected.

THE REST OF THE EVIDENCE

[51] I accept the rest of the evidence proffered by the prosecution. That evidence does not leave me with a reasonable doubt. In the result, the prosecution has proven beyond a reasonable doubt, that Mr. Oparah had knowledge that the package imported contained a controlled drug (heroin); that he knew there was heroin in his apartment; he was in sole control of the apartment and he was in possession of the heroin in the package and the heroin in the apartment for the purpose of trafficking.

[52] The defence has raised some concerns about the absence of important evidence and the manner in which the police investigation was conducted. These include that there is no fingerprint or DNA evidence to show that Mr. Oparah or anyone else touched the box in the kitchen, and there is no analysis of any residue of dust in the kitchen to determine whether there were drugs in the kitchen.

[53] The defence points to additional failures in the police investigation. These include a failure to investigate several names connected with the allegations. The names include Sammi Bunns, Tommy Dominic, Valid Martin, and several others. The defence also points to a failure to investigate who else had access to the apartment and a failure to investigate 45 Huntingdale Road, despite the fact that this address noted in Mr. Oparah’ s driver’s license.

[54] There is no doubt that the police could have conducted some further investigation. Thus, some potentially useful evidence is missing. This is a factor that I consider in assessing all the evidence. It is an important consideration in assessing whether the prosecution has proved the offences beyond a reasonable doubt.

[55] The defence submitted that the search of the apartment could have been conducted, items seized, and the police documented in a more efficient manner, to establish continuity of the items seized in the apartment. Some of the shortfalls, identified by the defence, are failure by the officers to document seizure of the evidence. In this case, the fact that the process can be improved does not warrant a finding that continuity was compromised.

[56] I conclude that the police officers documented what they found and where items found were seized. The defence suggests that the police should have taken additional steps while seizing evidence. For example, the exhibit officer should have been more involved prior to each seizure and photographed each item before the officer made a seizure. These are useful suggestions. Each officer documented what they had seized and where they seized the item, secured the item, and ultimately provided the item to the exhibits officer. On the facts of this case, despite the absence of the additional safeguards required by the defence, there is no basis upon which I can conclude that the items were not seized, documented and secured as described by the witnesses, or to conclude that chain of custody (i.e. continuity of the exhibits) was ever broken. Appendix A accurately reflects what was found and where the item was located in the apartment. I accord that evidence full weight.

[57] Several overnight tickets were found in Mr. Oparah’ s vehicle. Mr. Oparah was arrested just as he was about to enter the underground parking lot of the apartment. At the time of his arrest, Mr. Oparah had keys to the apartment. He testified that at the time Mr. Dominic was not in the apartment since he was on a trip overseas. There was no one else using the apartment at that time.

[58] The important documentation found related to Mr. Oparah. Police did not find any documentation for Tommy Dominic (Mr. Dominic). There were a few pictures Mr. Oprah identified as that of Mr. Dominic. However, there were solo portraits of Mr. Oparah in the living room wall, in loose form and in a photo album.

[59] The police found recent telecommunications and credit card bills. Some of these bills were from October 2010, just a few weeks before the delivery of the package. There were vaccination, baptism, immigration and educational records in Mr. Oparah’ s name. His passports, wallet, social insurance number card, and driver’s license were all found in the apartment.

[60] Mr. Oparah’s driver’s license lists an address of 45 Huntingdale Road in Brampton. Despite the fact that the police could have done more, the evidence linking Mr. Oparah to the apartment is overwhelming. The only reasonable inference to draw from all of this evidence is that despite the address listed on his driver’s license, Mr. Oparah lived alone at the apartment. He had full control and knowledge of the apartment’s contents.

[61] The defence raised some concerns about Constable Sabourin. Constable Sabourin did not take a photograph of where he found the drugs. He did not report to the exhibits officer that he had found drugs until five weeks after he had made the discovery. Constable Sabourin lost his police notes. He debated whether the nightstand where he found the drugs was a cabinet or nightstand. Constable Sabourin had problems with alcohol abuse, had been the subject of four police disciplinary hearings, was charged criminally, and was suspended from duty for a period.

[62] The defence submits that Constable Sabourin planted the 15.5 grams in Mr. Oparah’ s apartment. At the minimum, there must be a reasonable doubt as to whether the 15.5 grams were found in the apartment.

[63] I concur with the defence that it would have been preferable for Constable Sabourin to have immediately notified his fellow officers or, at the minimum, the exhibits officer that he had found the drugs, and it would have been even better if he had taken a picture of where he found the drugs before seizing them. Constable Sabourin followed the practice of the other officers participating in the search of not photographing items seized or involving the exhibits officer immediately.

[64] Constable Sabourin explained that his original notes went missing when he transferred to another unit. He was able to testify with a copy of his original notes. He sought assistance for alcohol abuse and there is no evidence that he has any blemish on his record since his reinstatement. More importantly, there is no evidence that any of these professional and personal problems were in existence at the time of the search. Constable Sabourin’s disciplinary problems occurred a year and a half after the search was executed. Under all these circumstances, I am satisfied beyond a reasonable doubt that Constable Sabourin found the heroin in the apartment as described in Appendix A.

[65] The defence submits that when Sergeant Johnson examined the “Sammie Bunns package” delivery card in mailbox 129, he did so without judicial authorisation. The Judge who authorised the warrant had specifically struck out the provision seeking judicial authorisation to examine the contents of mailbox 129. Through this unauthorised process, Sergeant Johnson obtained information about the delivery of the “Sammie Bunns package” at a Shopper’s Drug Mart store.

[66] Sergeant Johnson called the Canada Border Services Agency to investigate the delivery of the “Sammie Bunns package”. BSO Patricia Venneman did not recall receiving any call from Sergeant Johnson to investigate the “Sammie Bunns package”. She reported that no drugs was found in the “Sammie Bunns package”. The defence submits that this resulted in a second warrantless search at Shoppers Drug Mart and that she was untruthful about receiving information from Sergeant Johnson. This is another illustration of sloppy and non judicially authorised investigation by the police.

[67] The defence did not bring a Charter motion with respect to the alleged warrantless search because the Shoppers Drug Mart search did not reveal the presence of any drugs. However, police conduct in conducting an investigation can be considered in assessing the credibility of the officers involved. In this case, it is a reasonable inference to draw from the evidence that Sergeant Johnson held the honest belief that simply looking at the information on the Sammy Bunns notice in mailbox 129, without seizing it, was not a warrantless search. Sergeant Johnson determined that he was not authorised to take any further action to investigate this new information, so he passed it on to the Canada Border Service Agency. His conduct was based on his understanding of the law and did not constitute a blatant disregard of a judicial order.[^9]

[68] BSO Patricia Venneman received this information and conducted a search of the “Sammie Bunns package” with negative results for drugs. The fact that she does not remember receiving this information from Sergeant Johnson does not suggest a “cover up”. Sergeant Johnson was forthright about how he obtained the information and what he did with it. The only way to impute dishonest conduct to the officers is to engage in unsubstantiated conjecture.

[69] For reasons previously articulated, I now summarize some of my findings on each the offences with which Mr. Oparah is charged.

IMPORTATION OF HERION INTO CANADA

[70] 2.30 kilograms of heroin was imported into Canada from India on October 28, 2010. On November 4, 2010, some one called Mr. Salama to inquire about whether the package had arrived, but it was Mr. Oparah who retrieved the package under the false name Jarett Elliot. The letter authorising Mr. Jarett Elliot to pick up packages from mailbox 129 had identification with a picture of Mr. Oprah with the name Jarett Elliot. Mr. Oparah posed as Jarett Eliot when he picked up the package. There was identification with Mr. Oparah’s picture as Jarett Elliot in the apartment.

[71] Someone called Mr. Salama and threatened him after Mr. Oparah had been arrested. Despite this, when Mr. Oparah was arrested, he had a citizenship card with the name Martin Claude Vilad and Mr. Oparah’s picture on his person. Martin Claude Vilad was the person who opened the mailbox. Documentation in support of this was found in the apartment. Absent Mr. Oparah’ s discredited testimony, there is no incriminating evidence against Tommy Dominic.

[72] The only reasonable inference to be drawn from all of this evidence is that Mr. Oparah, under the false name Martin Claude Valid, rented mailbox 129, procured or prepared the false identifications in the names of Jarett Elliot and Martin Claude Valid, picked up the package under the name Jarett Elliot, had complete knowledge that the package contained heroin, was an integral part of the scheme to import heroin into Canada, and intended to import the heroin into Canada.

[73] The prosecution has proven the offence of importation of a controlled substance (heroin) into Canada beyond a reasonable doubt.

CONSPIRACY TO IMPORT A CONTROLLED SUBSTANCE (HEROIN)

[74] The heroin was imported, the sender is not Mr. Oparah. It is unclear whether Alhabeeb is a fictitious person or the current identity of another person. Mr. Salama said a person identifying himself as Alhabeeb had picked up packages from the UPS store in the past. As previously noted, Mr. Salama said a person called to inquire about whether the package had arrived and he received another call from another person, not Mr. Oparah, after the police had arrested Mr. Oparah, threatening him. The heroin was elaborately concealed and was of significant financial value.

[75] The only reasonable inference to draw from this evidence is that Mr. Oparah entered into an agreement with others to import the heroin into Canada. He conspired with others to import heroin into Canada and he was a member of that conspiracy. He knew that the substance imported was heroin. His role was to handle the collection and delivery of the package.

POSSESSION FOR THE PURPOSE OF TRAFFICKING

[76] Mr. Oparah took control of the package and transported it from the UPS store to his apartment. He was arrested just as he was about to enter the underground parking garage. He had control over the heroin. He had knowledge that the package contained heroin. Thus, he was in possession of the heroin imported. The amount of the heroin was 2.3 kilograms. The street value of the heroin ranged from $184,000 to $805,000 CDN. The quantity of the heroin is inconsistent with possession for personal use.

[77] In the result, the prosecution has proven beyond a reasonable doubt that Mr. Oparah was in possession of the 2.3 kilograms of heroin for the purpose of trafficking.

POSESSION FOR PURPOSE OF TRAFFICKING OF THE 15.5 GRAMS OF HEROIN

[78] I have previously accepted Constable Sabourin’s evidence that he found 15.5 grams of heroin in the apartment. Mr. Oparah had complete control of the apartment and knowledge of its contents, including the heroin, which was found among his personal items. The prosecution has proved beyond a reasonable doubt that Mr. Oprah had know ledge and control of the heroin and thus in possession of the heroin. It is not disputed that the amount of the heroin is consistent with possession of heroin of the purpose of trafficking.

[79] Therefore, the prosecution has proven beyond a reasonable doubt that Mr. Oparah was in possession of the 15.5. grams of heroin for the purpose of trafficking.

CONCLUSION

In the result, the prosecutor has discharged her burden of proof and Mr. Oparah is found guilty on all the offences with which he is charged in the indictment.

Justice K. Barnes

Released: December 20, 2021

APPENDIX A

EXHIBIT # / EX. #3 TAB

DESCRIPTION

SEIZING OFFICER

Kitchen

(Photos in situ in Exhibit 1, Tab 3; Contents in Exhibit 3, Tab 9)

A opened box on the floor containing filters, “Shakti Engineering Works” calendar gear boxes, and disassembled gears addressed to “Albeeb, No 400 Steeles Ave East, suit #8, Brampton, Ontario”

Only the metal rods of the calendar gears were present. The black plastic ordinarily surrounding the rods was missing.

Smith

Dining Room – Yellow Folder on Bookshelf

(Tab 2A)

June 2, 2010 Fido invoice for Cornelius Oparah at 220 Steeles Avenue West, Apartment 1609

Sabourin

Living Room

45 and 46

(Exhibit 1, Tab 3)

Photos of Cornelius Oparah on the wall and in a photo album on the coffee table.

Prowse

Living Room – Desk with Computer Monitor

48 and 49

(Tab 4C/D)

TNT Express shipment invoice and letter for Mr. Jarrett Elliot at 7305 Woodbine Avenue, Ste 162, Markham, Ontario L3R 3V7.

Prowse

(Tab 3H)

Canada Post delivery notice for Sammie Bunns, c/o Martin Vilad Ltd.

Venneman

(Tab 3A)

Black address book for “Cornelius Oparah”

Venneman

(Tab 3D)

A February 2010 Bank of Montreal credit card bill sent to Cornelius Oparah and Carola N. Tulloch at 220 Steeles Ave W, Apt 1609 in Brampton

Venneman

(Tab 3E)

Intact Insurance letter sent to Cornelius Oparah at 1609-220 Steeles Avenue in Brampton from August 18, 2010

Venneman

(Tab 3B)

June 30, 2010 car service bill for “Michael Oparah” at 220 Steeles Avenue, Suite 1609 in Brampton

Venneman

(Tab 3C)

Cornelius Oparah business card for Direct Ink

Venneman

EXHIBIT # / EX. #3 TAB

DESCRIPTION

SEIZING OFFICER

Bedroom (Room 9) – Wallet in Top Dresser Drawer

(Tab 2B)

Flight Itinerary for Cornelius Oparah, from 12 October 2010

Sabourin

(Tab 2B)

Office Depot card for Cornelius Oparah

Sabourin

(Tab 2B)

September 2009 MoneyGram identifying Cornelius Oparah at 220-1609 Steeles Avenue, Brampton as the sender

Sabourin

(Tab 2G)

Ontario Driver’s License for Cornelius Oparah, exp. July 8, 2011

Sabourin

Bedroom (Room 9) –Dresser

(Tab 2H –True Copy)

Cornelius Oparah’s Canadian Passport (current)

Sabourin

(Tab 2H –True Copy)

Cornelius Oparah’s Nigerian Passport (current)

Sabourin

(Tab 6B)

Fake Social Insurance Number card for Jarrett Elliot

Hulan

(Tab 6C)

Fake Canadian citizenship card for Jarrett Elliot, with a photo of Cornelius Oparah on it

Hulan

(Tab 6C)

Fake Canadian citizenship card for Michael Elliot, with a photo of Cornelius Oparah on it

Hulan

Passport photo with Cornelius Oparah’s photo, same photo as the Michael and Jarret Elliot IDs

Hulan

Bedroom (Room 9) – On Top of the Dresser

(Tab 2E)

Passport photos of Cornelius Oparah and TD Small Business Debit Card for Cornelius Oparah and Direct Ink Trading

Sabourin

(Tab 2F)

Ontario Driver’s License for Cornelius Oparah, exp. July 8, 2006

Sabourin

Bedroom (Room 9) – Bottom Drawer of Nightstand/Cabinet to Right of Dresser

18-21

(Tab 2C)

4 yellow folders with business documents, tax documents and invoices from 2007-2009 for Cornelius Oparah and/or Direct Ink Trading at 220 Steeles Avenue West, Apartment 1609 in Brampton

Sabourin

EXHIBIT # / EX. #3 TAB

DESCRIPTION

SEIZING OFFICER

(Tab 2D)

Photocopies of Cornelius Oparah’s:

▪ Canadian passport

▪ Ontario driver’s license

▪ Social Insurance Number card

Sabourin

15.50 grams of heroin in clear baggy

Sabourin

Bedroom (Room 9) – Nightstand/Cabinet to Left of Dresser

(Tab 6A)

Photocopy of Cornelius Oparah’s Government of Canada ID card with black powder

Hulan

Bedroom (Room 9) – Safe in Closet

(Tab 3M)

Cornelius Oparah’s original Record of Landing

Venneman

(Tab 3N)

Cornelius Oparah’s original Certificate of Canadian Citizenship

Venneman

(Tabs 3L-3Q)

Other documents from safe in Cornelius Oparah’s name, including:

Two expired Canadian passports
Two expired Nigerian passports
Social Insurance Number card
Certificate of vaccinations from Nigeria
Nigerian Revenue Collectors receipt
Baptismal certificate with date-of-birth
Secondary school statement of grades
Primary grade transfer for elementary school
American Express card (expired 04/09)
American Express business card (expired 08/10)
MBNA world points card

Venneman

Bedroom (Room 9) – Elsewhere in Closet

(Tab 3J)

Travel documents for Cornelius Oparah’s June 2010 trip to London, UK on Air India, in knapsack on the floor

Venneman

(Tab 3K)

Shipping invoice for “gift of shoes” to “Michael Oparah” at 1609-220 Steeles Avenue West, Brampton in accordion file folder

Venneman

EXHIBIT # / EX. #3 TAB

DESCRIPTION

SEIZING OFFICER

Bedroom (Room 9) – Open Shelves

Black gear calendar machine pieces of paper

Ting

(Tab 7B)

Hotel refund slip for Cornelius Oparah

Ting

(Tab 7C)

October 6, 2010 BMO MasterCard statement for Cornelius Oparah and Carola N. Tulloch at 220 Steeles Avenue West, Apt. 1609

Ting

(Tab 7D)

November 2010 Fido Invoice for Cornelius Oparah at 220 Steeles Avenue West, Apartment 1609 in Brampton

Ting

(Tab 7E)

October 25, 2010 Rogers Communications Inc. letter to Cornelius Oparah at 220 Steeles Av W, Apt 1609 in Brampton

Ting

(Tab 7F)

September 17, 2010 BMO Banking Statement for Cornelius Oparah at 220 Steeles Avenue West, Apt. 1609 in Brampton

Ting

(Tab 7J)

Intact Insurance letters, sent to Cornelius Oparah at 220 Steeles Avenue West, Apt. 1609 in Brampton in on June 30 and September 30, 2010

Ting

(Tab 7M)

Flora filter and Flora filter box, identical to filters found in car trunk box

Ting

Bedroom (Room 10)

(Exhibit 1, Tab 3 Photos)

Prescription medication for Cornelius Oparah, filled in December 2009 in Brampton not seized

MacFadyen

(Tab 8D)

Luggage tag for Cornelius Oparah at 1609-220 Steeles Ave W. in Brampton, from July 2010 trip to U.K. on Air India

MacFadyen

Digital scale

MacFadyen

(Tabs 8A/B)

2008-2009 Banking and telecommunications invoices to Cornelius Oparah at 1609-220 Steeles Avenue West, Brampton

MacFadyen

(Tab 8C)

Mailbox rental agreement for mailbox 129 between owner UPS store and renter “Martin Claude Vilad”, dated February 2009

MacFadyen

COURT FILE NO.: CR-11-00001168

DATE: 2021 12 20

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

and -

CORNELIUS N. OPARAH

REASONS FOR DECISION

Barnes J.

Released: December 20, 2021

[^1]: All references to 5.5 KILOGRAMS OF HEROIN have been corrected to 15.5 GRAMS OF HEROIN

[^2]: Appendix A is a chart prepared by the prosecution which accurately describes what was found, where the item was found and the name of the officer who found the item.

[^3]: Bell v. R, 1983 CanLII 166 (SCC), [1983] 2 S.C.R. 471.

[^4]: R v. Blondin (1970), 1970 CanLII 1006 (BC CA), 2 C.C.C (2d) 118.

[^5]: Criminal Code, s. 465(1)(c); United States v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462; Canada (Attorney General) v. Lalonde, 2016 ONCA 923, 133 O.R. (3d) 481;

[^6]: CDSA, s. 465(1)(c); Criminal Code, s 4(3); R v. Pham, 2005 CanLII 44671 (ON CA), 77 O.R (3d) 401 (C.A).

[^7]: R v. Beaver, 1957 CanLII 14 (SCC), [1957] SCR 531.

[^8]: R v. Beaver, 1957 CanLII 14 (SCC), [1957] SCR 531; R v. Briscoe, 2010 SCC 13, [2010] 1 SCR 411.

[^9]: See also Section 99(1)(a) of the Customs Act which authorises him to take such action.

R. v. Oparah, 2021 ONSC 8369

Case Summary

INTRODUCTION

THE CASE AGAINST MR. OPARAH

LAW

MR. OPARAH’S VERSION OF EVENTS

CONCERNS WITH MR. OPARAH’S TESTIMONY

THE REST OF THE EVIDENCE

IMPORTATION OF HERION INTO CANADA

CONSPIRACY TO IMPORT A CONTROLLED SUBSTANCE (HEROIN)

POSSESSION FOR THE PURPOSE OF TRAFFICKING

POSESSION FOR PURPOSE OF TRAFFICKING OF THE 15.5 GRAMS OF HEROIN

CONCLUSION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legislation 2