Her Majesty the Queen v. Zehra Sevim

Oshawa Court File No.: CR-20-1543 Date: 2022-08-26 Ontario Superior Court of Justice

Between:

Her Majesty the Queen

– and –

Zehra Sevim

Counsel:

Amanda Hauk, for the Federal Crown

Mitch Engel, for Zehra Sevim

Heard: June 23 and 24, 2022

Reasons for Decision

Christie J.

Overview

[1] Zehra Sevim is charged that she unlawfully did, in the city of Toronto and elsewhere in the province of Ontario, on or about the 14th day of May, 2019, traffic in a controlled substance, namely fentanyl and heroin, contrary to section 5(1) of the Controlled Drugs and Substances Act.

[2] The case for the Crown was not in any dispute and was introduced through an Agreed Statement of Facts, supported by various pieces of evidence, including text messages and videos.

[3] The case for the defence also included an Agreed Statement of Facts, the introduction of several investigative reports admitted on consent, as well as the viva voce testimony of Ms. Sevim.

[4] It should be stated at the outset that Ms. Sevim admitted the continuity of all items seized in relation to this investigation from the point of seizure by the police and thereafter, including approximately 494 grams of blue fentanyl heroin mix, and drug packaging including a plastic Popeye’s bag and paper Popeye’s bag. Further, Ms. Sevim admitted that text messages sent to the undercover officer, D/C Smith, by co-conspirators, Dat Doan and Thanh Hai Lu, via the Signal Messenger Application on May 14, 2019, were admissible pursuant to the co-conspirator’s exception, as “in furtherance” statements.

[5] The only issue to be determined by this court is whether the Crown has proven knowledge beyond a reasonable doubt.

Facts

Background of Project Kamloops

[6] In August of 2018, the Durham Regional Police Service, Drug Enforcement Unit (DEU) commenced a drug investigation into Dat Doan, a male who was known to them from his previous involvement in the sale of cannabis through illegal dispensaries.

[7] Between November 27, 2018 and June 18, 2019, the DEU utilized an undercover officer to conduct ten drug purchases from Dat Doan and various associates. These included the following transactions:

• November 27, 2018 - 498 grams of MDMA for $10,000 • January 10, 2019 - 510 grams of cocaine for $30,000 – the product was received directly from Thanh Hai Lu • February 21, 2019 - 248 grams of cocaine for $15,000 – the product was received directly from Thanh Hai Lu • March 29, 2019 - 527 grams of cocaine for $28,000 • April 4, 2019 - 0.7 grams of purple fentanyl; 1.3 grams of blue fentanyl/heroin • April 16, 2019 - 506 grams of purple fentanyl for $39,000 – the product was received directly from Thanh Hai Lu. • May 14, 2019 - 494 grams of blue fentanyl/heroin for $39,500 • May 24, 2019 - 1094 grams of cocaine for $54,000 • June 17, 2019 - 1.2 grams of heroin • June 18, 2019 - 504 grams of heroin for $37,500

[8] Zehra Sevim came to the attention of the police as a result of surveillance conducted in relation to this investigation. Some of the surveillance can be summarized as follows:

a. On April 25, 2019, the DEU installed a tracking device on Zehra Sevim's white Honda with Ontario License plate CDKC202. A Tracking Device Analysis report was created dated June 27, 2019, which was marked as Exhibit 13, which covered the time period from April 25, 2019 to June 19, 2019.

b. A surveillance report from April 25, 2019, between the hours of 0636 and 1346, demonstrated that the white Honda Civic CDKC202 (registered to Zehra Sevim) was seen being driven by a white male, in his twenties, described as “possibly middle eastern, white hoodie with black vest over top, white hat (ball cap), slim-med build, approx. 5’10”.

c. A surveillance report from April 25, 2019, between the hours of 1605 and 2154, described that the white Honda Civic CDKC202 arrived and parked on the north side of a building at Runnymede and Liverpool at 1840. Ms. Sevim walked back to the vehicle and then towards the unit. A short time later, a male wearing a white hoody and black vest and a black male wearing dark clothing entered the vehicle. The vehicle then proceeded to the south side plaza at St. Clair and Runnymede. The black male entered the Popeye’s chicken and returned to the vehicle. The vehicle then went somewhere eastbound on Liverpool, where it parked, and the occupants exited. The white male had a black knapsack, and the black male was wearing all black. Both went into a complex. The white male then entered the passenger seat of a black BMW 225DLR waiting on Liverpool and it went mobile. The BMW proceeded to a convenience store on Runnymede. The white male with the white hoodie and black vest went into the store and then back into the BMW on the passenger side. There was then a meeting in the Petro lot with a black Nissan Altima CHWR433. Both occupants got out of the BMW and met two males from the Nissan Altima. They walked north on Runnymede. The white male, wearing the white hoodie and black vest, who drove the white Honda Civic CDKC202 earlier, was identified as Yusuf Sevim.

d. A surveillance report from April 26, 2019, between the hours of 1030 and 1440, described that at 1030, Ms. Sevim's white Honda Civic was confirmed parked in the Tim Hortons parking lot, located at 2075 Sheppard Avenue East, Toronto. Ms. Sevim was observed exiting the Tim Hortons with two coffee and a pastry. She drove her white Honda Civic to a condo building located at 55 Ann O'Reilly Road, Toronto, where she was observed going into the front lobby of the condo building and then returning to her vehicle. At 1037, Ms. Sevim's white Honda Civic was observed parked in a visitor parking spot located in the underground parking lot of the condo building.

e. A surveillance report from April 26, 2019, between the hours of 1435 and 2050, described that at 1835, the white Honda Civic CDKC202 left the underground of 55 Ann O’Reilly. At 1859, the vehicle was located parked, unoccupied, in a school lot beside a 2019 VW Jet Black CHNJ862. The VW had people inside. At 1919, Aisa Husaini got out of the VW into the Honda Civic. Both vehicles went mobile. The white Honda Civic went to a funeral home parking lot, where a male got out and went into Halal Pizza Shop at 2584 Danforth Avenue. The male came out of the pizza shop and was confirmed to be Aisa Husaini. Mr. Husaini got back into the white Honda which then sat in the lot. At 1947, the white Honda went mobile and attended at Food Fair at Gerrard and Woodbine. Mr. Husaini was again seen getting out and into the white Honda. The white Honda then travelled to Grand Magazine and parked on the street. Mr. Husaini got out and into a Jeep CFKH580. One minute later, he got back into the white Honda. At 2042, the white Honda returned to 55 Ann O’Reilly.

The Events of May 14, 2019

[9] Throughout the day on May 14, 2019, the police conducted surveillance and observed the movements of Mr. Doan, his partner Thanh Hai Lu, and Zehra Sevim. Throughout the day, the police had continuous observations of Ms. Sevim and her vehicle, the white Honda Civic, with Ontario license plate CDKC202.

[10] At 9:53 a.m., the white Honda Civic was in the area of 287 Penn Avenue, Newmarket according to the tracking warrant.

[11] That morning, D/C Smith, an undercover officer with Durham Regional Police Service, exchanged a series of messages with Dat Doan on the Signal Messenger application. D/C Smith arranged to purchase half a kilogram of blue fentanyl from Mr. Doan for $39,500. The messages between D/C Smith and Mr. Doan on May 14, 2019, between 10:09 a.m. and 10:13 a.m., were in part as follows:

D/C Smith: Yoooooo D/C Smith: Buddy is ready for more grapes same as last time Doan: ½ case? D/C Smith: Yep. Doan: I’ll check D/C Smith: Kk thx. Lemme kno and I’ll arrange files and bring them wherever

[12] At 11:13 a.m., a black Mercedes GLE CHEB700 was observed parked in the underground parking spot associated to unit #1602, 55 Ann O’Reilly Road in Toronto.

[13] At 12:14 p.m., the messages between D/C Smith and Dat Doan continued:

Doan: Hey bro only blue left D/C Smith: How much is that one again for half? Doan: I have the same question Doan: I’ll update soon D/C Smith: Hahaha k thx that should work I’ll just have to check with him Doan: 38.5 Doan: 39.5.. I forgot 1 for buddy Doan: Remember? Doan: So charge buddy 41.5 Doan: We each make 1 Doan: Or whatever you can get D/C Smith: Lol yeah squeezing whatever I can. That wrks 4 buddy. I’ll get paper in next bit. U think today?

[14] At 1:46 p.m., Ms. Sevim exited the residence on Penn Avenue. At 1:48 p.m., Ms. Sevim left driving the white Honda, dressed all in black with a black purse.

[15] Commencing at 2:04 p.m., D/C Smith and Dat Doan exchanged the following text messages:

D/C Smith: Files are good to go. You want me to make my way? Doan: Ok waiting

Approximately a half hour elapsed, at which point the following exchange took place:

D/C Smith: Oh fuck sorry u waiting for me? I can come down right now Doan: No I’m waiting to see when she’s ready D/C Smith: Ahhhhh okay! Lemme know so I don’t make U wait lol

[16] At 2:52 p.m., Ms. Sevim’s white Honda Civic parked in the underground parking lot of 2490 St. Clair Avenue West.

[17] At 3:16 p.m., Ms. Sevim, and an unknown female with blonde hair, left Ms. Sevim's residence located at #110-2490 St. Clair Avenue West. Both were wearing black jackets. The blonde female was carrying a black purse. Ms. Sevim, who was carrying a black reusable shopping bag at the time, entered the driver's side of the white Honda Civic CDKC202. The unknown female entered the passenger side.

[18] At 3:32 p.m., the white Honda pulled to the curb on Smithfield Drive. A female wearing a burka walked away from the white Honda.

[19] At 3:34 p.m., Ms. Sevim exited the Honda wearing a black jacket, blank pants, and Adidas shoes. She had a cigarette next to the car. A couple of minutes later, Ms. Sevim walked east on the Queensway and entered the Midwife Alliance through the front door.

[20] At 4:00 p.m., Ms. Sevim and the female with the burka exited the Midwife Alliance and both returned to the Honda.

[21] At 4:04 p.m., the Honda driven by Ms. Sevim pulled into the Sobey's parking lot at 125 The Queensway with its hazard lights on. The Honda parked in the lot even with the Tim Horton’s.

[22] At approximately 4:05 p.m., the following exchange took place between D/C Smith and Dat Doan:

Doan: Should have it by 7-8 pm D/C Smith: Kk I’ll start making my way with paper to u in a bit if it’s good

[23] At 4:33 p.m., the white Honda went mobile and parked in another spot in the same lot. Ms. Sevim and the female exited the white Honda and walked toward the Sobey’s. The second female was carrying a shopping bag. Two minutes later, both females entered the Sobey’s and attended the sushi counter.

[24] At 4:48 p.m., a grey Audi A42 CDZT648, associated to Silman Husaini, drove into the underground of 55 Ann O’Reilly, and Silman Husaini was observed in the driver’s seat of the vehicle which was parked in a visitor’s parking spot. Aisa Husaini then was observed getting into the front passenger seat of the vehicle.

[25] At 4:49 p.m., Ms. Sevim and the female exited the Sobey’s and walked to a seating area on the north side of the building, where they sat to eat.

[26] At 4:53 p.m., after eating, the two approached a tow truck in the parking lot. At 5:04 p.m., they both boarded the tow truck, which towed the Honda out of the parking lot.

[27] At 5:27 p.m., Silman Husaini dropped Aisa Husaini off at the apartment complex located at 12 St. Dennis Drive, Toronto. Aisa went into the front door of the building and Silman departed.

[28] At 5:35 p.m., the tow truck arrived at Paul's Service Center located at 301 Weston Road with the Honda. Ms. Sevim and the unknown female passenger retrieved some items from the Honda and went to the front desk of the garage.

[29] Between 5:30 p.m. and 5:40 p.m., Mr. Doan advised D/C Smith by the Signal Messenger application that the deal would have to wait until "tomorrow", because the "driver" was "having car problems". The messages were as follows:

Doan: Tomorrow Doan: Driver having car problems D/C Smith: Kk that suxks. But understandable. What time do u think tomorrow? I’ll come to you first Doan: I’ll let you know Doan: Ya I’ll handle files D/C Smith: Yep I’ll get up in good time to not psh it too late D/C Smith: If driver figures out car situation tonight lemme kno Doan: For sure Doan: Should I put that leg in the bbq? D/C Smith: Hahaha fuck no!!! (2 laughing face emojis) those are tears of laughter and sadness hahah Doan: Hahaha Doan: You gotta life a little bro

[30] At 5:40 p.m., the tow truck dropped the white Honda and a worker pulled it into the shop. Ms. Sevim and the second female went to the desk after Ms. Sevim gathered belongings from the car.

[31] At 6:05 p.m., a grey Toyota with Ontario License plate BTHZ701 attended at Paul's Service Center. The unknown female, who was previously observed with Ms. Sevim, got into the passenger seat of the Toyota and the vehicle left the area.

[32] At 6:46 p.m., Ms. Sevim exited Paul's Service Center with papers in hand. She entered the driver's side of the Honda and left the lot. Police followed her to the underground parking lot at 2490 St. Clair Ave. West. She arrived there at 6:55 p.m. She was the lone occupant in the vehicle.

[33] At 6:58 p.m., Ms. Sevim drove out of the underground parking garage at 2490 St. Clair Ave. West in the white Honda. She was the lone occupant.

[34] At 7:00 p.m., Ms. Sevim parked near a Popeye's Chicken restaurant at St. Clair Ave. West and Runnymede Rd.

[35] At 7:07 p.m., Ms. Sevim exited the white Honda and jogged over and entered the Popeye's Chicken restaurant. One minute later, she returned to the Honda and got into the driver's seat. She was carrying an empty white plastic Popeye's bag. She then got out of the driver's seat carrying a black bag, which she placed in the trunk of the Honda before driving out of the parking lot.

[36] At 7:19 p.m., Ms. Sevim drove to the Tim Horton's at St. Clair Ave. West and Keele St, which was located just east of the Popeye's restaurant. Before parking, she went through the Tim Horton's drive thru. She then reversed into a parking spot on the south side.

[37] At 7:29 p.m., Mr. Lu, driving an Acura with Ontario Licence plate number CEAY793, parked in the same parking lot. The vehicle was confirmed as registered to Thanh-Hai Jackson Lu pursuant to certified MTO documents.

[38] At 7:30 p.m., Ms. Sevim repositioned the white Honda and parked in a different spot in the parking lot.

[39] At 7:32 p.m., Thanh Hai Lu got out of his vehicle and walked up to the passenger side of the white Honda, carrying a shoulder bag. He leaned into the open window of the white Honda and retrieved a brown paper bag. He then walked away from the white Honda carrying the brown paper bag. Ms. Sevim was the lone occupant of the vehicle during this interaction. This interaction took less than 5 seconds. In a 20 second video, marked as Exhibit 5, the white Honda is visible, a person in a white hoodie approached the passenger side of the car, with a dark coloured bag on his right side. As soon as he reached the vehicle, he reached with his left arm into the vehicle, pulled out a paper bag, and appeared to smile as he walked away.

[40] At 7:33 p.m., Ms. Sevim drove out of the parking lot in the white Honda.

[41] Dat Doan and D/C Smith exchanged the following messages commencing at 7:38 pm:

Doan: She’s kn Doan: Come D/C Smith: Cool I’ll come to u. Ur house or ur shop? I’ll be there in like an hour and a bit Doan: Ok Doan: Message buddy to setup meeting pls D/C Smith: Ur house or shop around 9? Doan: I’ll see you first D/C Smith: Kk I will Doan: At home

According to Agreed Statement of Facts #1, Mr. Doan was indicating that the deal could proceed and that Mr. Lu now had the fentanyl. Mr. Doan asked D/C Smith to message "buddy", which was a reference to Thanh Hai-Lu, "to set up meeting". He also asked D/C Smith to come to his home to provide him the money.

[42] Mr. Lu messaged D/C Smith and asked him to meet at the CAA center, 7575 Kennedy Road South, by 10:15 p.m. The messages were as follows between 7:41 p.m. and 7:46 p.m.:

Lu: Hey bro how long would it take you to get to Mississauga D/C Smith: Just gotta see our buddy at 9 so like 10ish? Lu: I will be at the CAA Center in Brampton Lu: Try to be there at 10:15 the latest Lu: Because I will be playing hockey D/C Smith: Kk I’ll try to hurry Lu: Okay thanks bro Lu: Sorry I don’t have time to meet you halfway this time D/C Smith: No sweat. All good bro. Lu: Cool see you soon

[43] Mr. Lu left the parking lot after his meeting with Ms. Sevim. At 8:05 p.m., he entered the parking lot of the CAA Center. He parked and took a bag of hockey equipment into the building. Mr. Lu at the CAA Centre was captured on video.

[44] The police surveillance team continued to follow Ms. Sevim. At 8:09 p.m., the white Honda pulled into the lot for Grant’s Food Mart. At 8:13 p.m., an Asian male entered the passenger side of the white Honda and exited. The Asian male entered Grant’s Food Mart.

[45] At 8:16 pm, the white Honda went mobile and at 8:33 p.m., pulled into the underground parking at 2490 St. Clair Avenue West. At 8:39 p.m., the white Honda exited the underground parking garage and travelled to a Circle K. Ms. Sevim exited wearing a black sweater and grey track pants. She entered the Ali Baba’s restaurant on Bloor St. at Runnymede Road. She exited with food and returned to her car. She then returned to her residence at 2490 St. Clair Ave. West. She arrived there at 8:58 pm. She was the lone occupant.

[46] At 8:32 p.m., Silman Husaini returned to the building at 12 St Dennis Drive, Toronto and parked in parking spot #60. Silman exited the vehicle, left the car running, and went into the Tuck Shop. Silman then returned to his vehicle one minute later and drove west through the apartment complex parking lot. The vehicle then parked on the west side of the parking lot.

[47] At 8:57 p.m., D/C Baldini provided D/C Smith with $39,500 in a white and green Nespresso bag. At 9:05 p.m., D/C Smith met Mr. Doan at his residence located at 120 Harbourside Drive and gave him the $39,500. At 9:08 p.m., D/C Smith left 120 Harbourside Drive.

[48] D/C Smith exchanged Signal messages with Mr. Lu, who instructed him to meet in the parking lot of the CAA Center. The messages were as follows between 9:13 and 10:06 p.m.:

D/C Smith: On my way to u bro be there at right about 10 Lu: Awesome 9:54 – Lu: Eta? 9:55 – D/C Smith: 5 or so 9:57 – Lu: Ok 10:02 – D/C Smith: Is it a big lot? Where should I go when I get there? 10:03 – Lu: On the side….Right side of the building….If ur looking at community entrance 10:03 – D/C Smith: Kk be there really soon 10:04 – Lu: Im walking white hoodie 10:06 – D/C Smith: Just waiting to turn in 10:06 – Lu: Ok come all the way around

[49] At 10:07 pm, D/C Smith arrived at the CAA Center. He stopped his vehicle beside Mr. Lu, who approached the driver's side. This was captured on video. Mr. Lu passed a white bag containing a brown paper bag to D/C Smith through the driver's window of D/C Smith's vehicle. D/C Smith left the parking lot.

[50] At 10:11 p.m., the grey Audi, previously driven by Silman Husaini, went mobile from parking spot #60 and proceeded north on Don Mills Road.

[51] At 10:14 p.m., D/C Smith gave the white bag provided to him by Mr. Lu to D/C Marsh.

[52] D/C Marsh opened the white bag. Inside was a brown paper bag with a Popeye's Chicken logo on it. Inside that paper bag was a white plastic Popeye's bag. In that bag were chunks of a blue substance (numerous pieces). D/C Marsh processed and weighed the contents of the Popeye's bag, and Det. Mackintosh photographed them. The photographs were marked as Exhibit 9 at trial. The weight of the blue substance and the white plastic Popeye's bag was 494 grams. D/C Marsh submitted two samples of the blue substance to Health Canada for testing. The substance tested as a mixture containing fentanyl and heroin which was confirmed in Certificates of Analyst dated June 14, 2019.

[53] At approximately11:00 p.m., D/C Smith and Dat Doan had the following exchange:

Doan: All good bro? D/C Smith: All good thx man. Saw our boy. Everything good with what I dropped off? Doan: Yes brother on point Doan: Let me know when you’re home safe D/C Smith: Kk good or I’d snap! Haha will do

Events Following May 14, 2019 / Arrest

[54] On June 19, 2019, at the completion of the investigation, investigators learned that Ms. Sevim had left the country. A warrant for her arrest was issued.

[55] On August 5, 2019, Ms. Sevim returned to Canada and was arrested at Pearson International Airport by PC Noyes and PC Rafhee for trafficking in a Schedule I substance.

[56] It has been admitted that Travis Ha, Aisa Husaini and Silman Husaini were not arrested as part of Project Kamloops.

Testimony of Zehra Sevim

[57] Zehra Sevim testified at this trial.

[58] At the time of trial, Ms. Sevim was 26 years old, and living at 2490 St. Clair Avenue West, Unit 110, Toronto with her elder brother, younger brother, husband and four-month-old son. Ms. Sevim’s husband works in the towing industry. Ms. Sevim is self-employed as an aesthetician, but at the time of trial, was on maternity leave. She attended college for training from January to October 2018. In 2019, at the time of these events, and for the previous five years, she worked as a dietary aide at Runnymede Health Care, a long-term care facility. She concluded this work when she started to pursue her current occupation. Her mother passed away in 2016. Her father resides in Turkey.

[59] In cross-examination, Ms. Sevim was asked further questions about her employment at the relevant time in 2019. She stated that she was working at Runnymede Health Care and at a hair salon in Richmond Hill. She was earning just over $26 per hour at Runnymede Health Care, where she worked part-time. She estimated that she worked 20-25 hours per week. As for the hair salon, she worked on commission and her earnings fluctuated. She only worked at the hair salon on the weekends, Saturday and Sunday, for 8 hours. Her earnings would be between $100 and $500. This was all of her income at that time.

[60] At the relevant time in 2019, she had savings. She did not remember how much but estimated not more than $10,000. Her monthly expenses at the time included $800 for rent, $300-$350 for car insurance, $200 for gas, $30 for a cell phone, and $75-$100 for groceries. At the time, her brother was in university, and she helped with some of his expenses, such as when he needed books or just needed some cash. She estimated $100 per month. Ms. Sevim agreed that she would also eat out, but stated she tried not to spend too much and would try to keep it at a budget. She would make sure she had money for her bills and groceries, put some savings aside and then, if she had some left over, she would eat out. She agreed that she was living within her means, did not have a lot of extra money lying around, and that she was, essentially, living paycheck to paycheck.

[61] Anbarin Wardak was Ms. Sevim’s best friend for a couple of years commencing in 2016 or 2017. She stated that they met at a party through mutual friends. Ms. Wardak also did aesthetics. Ms. Wardak lived at 55 Ann O’Reilly Road, Toronto, on the 16th floor. Ms. Sevim agreed that she went there often to visit. Ms. Sevim mainly went to her residence as Ms. Wardak did not drive. Aisa Husaini was Ms. Wardak’s boyfriend, and he resided with Ms. Wardak at Ann O’Reilly. Ms. Sevim was not sure when she met him. She testified that he worked in construction. As for Silman Husaini, she knew him to be Aisa’s older brother. She met him through Anbarin and Aisa. He also worked in construction. Neither the two brothers, nor Anbarin, talked about or used drugs in the company of Ms. Sevim.

[62] Around the time of these events, Ms. Sevim drove a white Honda Civic. Also around this time, she would lend her car to her siblings, as well as to Aisa and Silman Husaini. She did not remember the number of times she lent her car to the Husaini brothers, and she did not remember if they said why they needed to borrow her car. She did not know where they would go when they borrowed her car. She was never concerned that they were doing something unsavoury or illegal.

[63] In cross-examination, Ms. Sevim described her relationship with Aisa Husaini as “normal…like he was my best friend’s boyfriend….so just like respectful towards each other.” She considered him a friend. Ms. Sevim agreed that she spent a lot of time at the residence at Ann O’Reilly but did not agree that she spent a lot of time with Ms. Wardak and Mr. Husaini together, as when he would come to Ann O’Reilly she would leave as she did not want to “third-wheel them”. At the time, she felt comfortable to lend him her car because it was her best friend’s boyfriend. She said that they were not sharing secrets, but she felt safe around these people. She agreed that her car was her main asset at that time, and she trusted him enough to give him her main asset and, in that sense, there was a level of trust.

[64] Ms. Sevim stated that she did not know Aisa had a criminal record for drug trafficking or that he had spent over a year in jail. She also did not know that Silman had a criminal record, such as for firearm offences, and that he spent 3.5 years in jail for those offences.

[65] As for Silman Husaini, Ms. Sevim did not know exactly when she met him, but it was in 2019. She did not remember the location where they met. In the spring of 2019, she did not remember the exact amount of time that they would hang out together. She testified, “Like it wasn’t too much, and it wasn’t too little.” She said, “It was more like he would come around and then go”. She said that she saw him a couple of times at Ann O’Reilly.

[66] Ms. Sevim agreed that her car was tracked to Ann O’Reilly fifteen times between April 26 and June 18, 2019. In that time, she estimated that she saw Silman a couple of times. He was not a close friend, rather was someone who would just come around. However, Ms. Sevim stated that she let him borrow her car a couple of times. She did not know exactly how many times. When asked why she did that, she stated, “I feel like…I don’t know why I did that.” Ms. Sevim agreed that Silman had a car, in that he shared a car, an Audi, with his brother. She agreed it was a nice car. When asked why he needed to borrow her car, she said, during those times, one of the brothers had the Audi and so the other brother would ask if they could borrow her car for a “quick second” and then come back. She stated that this happened a couple of times, but she did not remember when. She stated that she did not think they would do anything with her car and that she trusted them “blindfully”.

[67] As for May 14, 2019, Ms. Sevim testified that she started the day in Newmarket, where her husband resided. Later in the day, she was at her address on St. Clair Avenue West. Her plan that day was to do errands, including to take her sister to a midwife appointment.

[68] At some point in the day, Silman Husaini called her and told her that he had left a package in her vehicle, in the trunk, and that he was going to get it picked up later on. She told him she had errands, to which he said that was ok and he would give her a call back later in the day. She did not remember him saying anything in response to the suggestion that she would be driving around doing errands with the package. He did not tell her anything about the value of the package. She did not remember the time that he called her. She was home when he called. She did not ask him when he left the package in the trunk and he did not say when he left the package in the trunk. Ms. Sevim did not remember the last time Silman had borrowed the car before this day. She did not remember if he told her what the package looked like or whether she asked him what it looked like. She stated that she did not ask any questions about the package, and he did not tell her anything else about the package. She did not remember if he gave her a time frame in which he would call back.

[69] Ms. Sevim initially testified that she did not go look for the package at that time as she would not have a phone signal. However, a few moments later, she said that she did go to her car, looked in the trunk, and the package was under some stuff that she found after moving some things around. She described the package as wrapped in black, but she did not remember what the wrap was made of. She agreed that she picked it up and handled it but stated that she did not examine it. When asked what it felt like, she stated, “Just like something that would be in a package…I don’t remember like what it really felt like.” Other than the black packaging, the item was not in anything else. Ms. Sevim stated that she put the package back in the trunk and went and did her errands. According to Ms. Sevim, she did not wonder what was inside the package. She stated, “I never suspected the package to have drugs in it. I never suspected it to be anything illegal in it.” She agreed that she never really turned her mind to it and never actively engaged with that curiosity. She stated, “No, I didn’t… it never occurred to me in my mind that it would be drugs or anything illegal….I just didn’t think too much of what was inside the package.” Ms. Sevim agreed that she did not have $39,500 in savings at that time.

[70] Ms. Sevim continued on with her errands. At some point, she had car trouble. Silman Husaini called again asking what she was doing, and she told him her car had troubles. He said he would call back in a bit and for her to let him know when she was “situated”. She did not remember if she told him the car was towed. She did not tell him where she was at that time. Silman did not express any concern about the package. When Ms. Sevim was asked why she did not ask Silman to come get the package when her car broke down, she stated,

I don’t know. During that time, I wasn’t really thinking too much about this package. My main concern was trying to fix my car and get back home…..Even when Silman was talking he wasn’t too pushy or edgy on the package and during that time that’s that’s not what I was thinking about.

[71] The car was towed from the Sobey’s to the mechanic. She did not remember moving anything from the car. The car was eventually fixed. She did not remember if Silman contacted her or she contacted him, but during their next communication, he said that his friend was going to be in the area, and he would pick up the package from her. She was supposed to go to the MacDonald’s plaza by Keele and St. Clair, an area she was familiar with as she lived around there. She was not given any particulars about this person who was going to meet her. Silman said his friend would find her. She did not remember what the plan was as far as time to meet. Ms. Sevim stated, “He [Silman] did mention to me that if I had a bag, I could just put the package in a bag.” Silman had not mentioned any specific type of bag. She did not remember if she asked him why the package was to be put in a bag.

[72] Ms. Sevim testified that she went home and checked but she did not have any bags, other than big black garbage bags. In cross-examination, Ms. Sevim agreed that her car was messy, yet she did not know why she did not look in her car for a bag. Ms. Sevim testified that she went to Popeye’s to get a bag as this was convenient, as her and her sister previously worked for the manager there and the people there are familiar with her. She also stated that she ate there often. She did go to Popeye’s and they gave her a bag - a white plastic Popeye’s bag. She was in there for 1 minute.

[73] As for the package, she said it was in the trunk under some stuff like some shoes and clothes and her work equipment. She had not noticed it there before. It was wrapped up in black wrapping and it was pretty small “like kinda cylinder”. She was not concerned that the package contained anything illegal or drugs. She testified that she retrieved the package from the trunk and put it in the Popeye’s bag. A short while later, when asked when she took the package out of the trunk, whether at home or at Popeye’s, she said that she did not remember. She also did not recall getting out of her car carrying a black bag which she placed in the trunk of her car before driving out of the parking lot (as referred to in the ASF #1). She had no idea what was in that black bag as she had no recollection of doing this.

[74] From Popeye’s, Ms. Sevim drove to the plaza at St. Clair and Keele, parked her car, and waited for Silman’s friend to come. She did not recall moving her car from one place in the parking lot to another and did not know why she did that. In the parking lot, the Asian male approached her vehicle and asked if she was Aisa’s friend. She said, “yeah” and then he reached in for the package and left. She did not remember if she handed it to him. The package was in a brown paper bag on video. She did not remember putting it in the brown paper bag, although she stated that a brown paper bag would typically be in her car as she ate at Popeye’s the majority of the time and would eat in her car. She stated that her car was “more on the messy side” and would often contain clothes, shoes, work equipment, and food wrappers “tossed around everywhere”. She stated that her trunk would also be “more of a mess”.

[75] According to Ms. Sevim, she did not think she was handing this Asian fellow drugs. It did not even enter her mind. Ms. Sevim stated that she did not know Mr. Lu and had never met him before May 14. During cross-examination, the video was played for Ms. Sevim. She agreed that Mr. Lu walked directly up to her car, and it looked like he knew where he was going. Her passenger window was down. Mr. Lu leaned into the passenger window. Ms. Sevim testified that Mr. Lu stated, “Are you Aisa’s friend” and she said “yeah” as he reached in for the package. He grabbed the brown Popeye’s bag. He then walked away. Ms. Sevim agreed that it was a quick interaction – only a few seconds. According to Ms. Sevim, she did not have a description of this person she was meeting.

[76] Ms. Sevim was asked what she would have done if she opened the package and found that it was drugs. She stated that she would have been shocked and would probably call the police. She also agreed that she could have thrown it out. She agreed that if she called the police and was questioned about it, she would have told the police that this person called and said he left this package in her vehicle.

[77] Ms. Sevim stated that she never wondered what was in that package. She did not think it was odd that she was being asked to do this.

[78] Ms. Sevim agreed that she was arrested for these events on August 5, 2019, upon her return to Canada from Turkey. [The investigation ended on June 18, 2019, around the same time she left Canada.] Ms. Sevim did not know about this police investigation when she left Canada. She had bought a ticket on her credit card to visit family in Sweden and from there she had planned to go to Turkey. Ms. Sevim agreed that there was a search warrant conducted at her home and that her family contacted her. She said that her family told her that the house got raided and they were looking for her and asked her if she knew what was going on. She said she was not aware of what was going on. When asked if she was given any details, she said, “No, not exact details, no”. She stated that she was given the name of a detective and she did make the call from Sweden. The detective advised that he was unable to disclose any information over the phone and that it had to be done in person. The detective did not give any details.

[79] At some point when Ms. Sevim was still in Turkey, Ms. Wardak advised Ms. Sevim that Silman Husaini had been murdered. She then looked at some news articles about his death. She stated that she was shocked because, when she read the article on the news, it was very gruesome. Ms. Wardak had not given the details, so when she looked online, it gave some background.

[80] Upon her return on August 5, she was arrested at the airport. She testified that this was the first time she was given any details about what was going on.

Analysis

[81] Ms. Sevim is charged with one count of trafficking fentanyl and heroin. The Crown must prove each of the following essential elements of the offence beyond a reasonable doubt:

a. The substance was a controlled substance, namely fentanyl and heroin, as set out in the Indictment; b. Ms. Sevim trafficked in these substances; c. Ms. Sevim knew the nature of the substances; and d. Ms. Sevim intentionally trafficked.

[82] There is no dispute that the substances that were transferred from Ms. Sevim to Mr. Lu were fentanyl and heroin. Certificates of Analyst demonstrate that the product was a mixture of fentanyl and heroin. This was also admitted as a fact in Agreed Statement of Fact #1.

[83] Section 2(1) of the Controlled Drugs and Substances Act defines “traffic” to include the following:

traffic means, in respect of a substance included in any of Schedules I to V, (a) to sell, administer, give, transfer, transport, send or deliver the substance, (b) to sell an authorization to obtain the substance, or (c) to offer to do anything mentioned in paragraph (a) or (b), otherwise than under the authority of the regulations.

[84] There is no requirement that the trafficker obtain a material benefit from their role in the transaction. See R. v. Drysdelle (1978), 1978 2554 (NB CA), 41 C.C.C. (2d) 238 (N.B.C.A.) at para. 6

[85] There is no question that Ms. Sevim, in fact, transferred a package containing a fentanyl / heroin mixture to Mr. Lu in the parking lot of the MacDonald’s at Keele and St. Clair. This is an admitted fact.

[86] The real, and only, issue in this case is the third element of the offence - knowledge. If this third element is proven beyond a reasonable doubt, the fourth element will be obvious. For the fourth element, the Crown must prove beyond a reasonable doubt that Ms. Sevim intended to do the act or acts that constitute trafficking. This court may infer, as a matter of common sense, that a person usually intends to do what they do.

[87] Both parties agree that the only question for this court is whether the Crown has proven knowledge beyond a reasonable doubt. Did Ms. Sevim know, or was wilfully blind to, the nature of the substance? Knowledge is established if the Crown proves beyond a reasonable doubt that Ms. Sevim knew the substance was fentanyl and heroin as set out in the indictment, or that she thought it was some other substance in which trafficking is in fact prohibited, or that she was wilfully blind to the fact that the package contained an illegal drug. The Crown need not prove that Ms. Sevim knew the technical name of the substance.

[88] In R. v. Williams, 2009 ONCA 342, the Crown appealed the acquittal at trial for possession of a loaded prohibited firearm, with the central issue being whether the accused had the necessary mens rea for that offence. The Court stated:

[19] There is some support for this approach to the mens rea component of the s. 95(1) offence in the jurisprudence arising from drug-related prosecutions. In trafficking, importing or possession cases, it is not necessary for the Crown to demonstrate that the accused knew he or she possessed (or was importing or trafficking in) the very prescribed drug identified in the indictment provided the accused knew the drug was a narcotic - for example, the actual drug involved is cocaine whereas the accused believed it to be hashish, or is LSD but was believed to be mescaline: see R. v. Burgess (1969), 1969 467 (ON CA), [1970] 2 O.R. 216 (Ont. C.A.); R. v. Blondin (1970), 1970 1006 (BC CA), 2 C.C.C. (2d) 118 (B.C.C.A.), aff’d 1971 1411 (SCC), 4 C.C.C. (2d) 566n (S.C.C.) ; R. v. Custeau (1971), 1971 682 (ON CA), [1972] 2 O.R. 250 (Ont. C.A.); R. v. Kundeus (1975), 1975 161 (SCC), [1976] 2 S.C.R. 272 (S.C.C.). In Burgess, at p. 217, Brooke J.A. said:

[We] are all of the opinion that in these circumstances where the evidence is clear and consistent only with the conclusion that the accused knew the substance that he had in his possession was indeed a drug the possession of which was contrary to the statute, the fact that he mistakenly believed the drug to be hashish rather than opium is of no moment.

[20] Paraphrased in the context of the case at bar, it can be said that “the evidence is clear and consistent only with the conclusion that the accused knew [the loaded handgun] that he had in his possession was indeed [a loaded handgun] the possession of which was contrary to the statute”, and therefore that “the fact that he mistakenly believed the [handgun measured more or less than 105 millimetres] is of no moment.”

[21] Under the narcotics control regime, the offence in question forbids the possession of (or the importing of or trafficking in) a narcotic. Which narcotic does not matter, as long as it is included in a forbidden schedule. Similarly, under s. 95(1) of the Code, the offence is the possession of a loaded firearm. Whether the firearm is prohibited or restricted does not matter. The common denominator in the comparison between the two types of offences is that the actus reus (possession of a forbidden item) and the mens rea (knowledge of the characteristics that make it a forbidden item) do not relate to different crimes but rather to the same crime in each case.

[89] In R. v. Stewart- Barachin, 2017 ONSC 7504, the accused was alleged to be the “middle person” who took cocaine from one person to another. The Court stated:

[97] The mens rea for the offences of trafficking and possession for the purpose of trafficking in narcotics is knowledge or willful blindness to the fact that the package contained narcotics: R. v. Collymore, [2003] O.J. No. 2322 (Ont. S.C.J.), at paras. 11-12; R. v. Blondin (1970), 1970 1006 (BC CA), 2 C.C.C. (2d) 118 (B.C. C.A.), aff’d 1971 1411 (SCC), [1971] S.C.J. No. 42 (S.C.C.). The Crown must prove that the accused knew or was wilfully blind to the fact that the package specifically contained narcotics, as opposed to some other illegal item; but they need not show that the accused knew the precise type of narcotics. The mens rea for the offence of possession of proceeds of crime is knowledge or willful blindness to the fact that the money is proceeds of crime.

[98] A finding of knowledge or willful blindness is also necessary for the actus reus of each offence, since proof of possession requires proof of knowledge (or wilful blindness), consent, and control: R. v. Sandhu, [2016] O.J. No. 5810 (Ont. S.C.J.), at paras. 162-63.

[99] The doctrine of wilful blindness imputes knowledge onto an accused if suspicion is aroused in the accused’s mind such that he sees the need to ask further questions or make further inquiries, but fails to do so: R. v. Sansregret, 1985 79 (SCC), [1985] 1 S.C.R. 570 (S.C.C.), at para. 22; R. v. Callejas, 2011 ONCA 393, [2011] O.J. No. 2232 (Ont. C.A.), at para. 8.

[90] The concept of wilful blindness was explained in R. v. Sansregret, 1985 79 (SCC), [1985] S.C.J. No. 23, as being distinct from recklessness. The Supreme Court stated:

[22] Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by reason of the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry.

In other words, knowledge is established if the Crown proves beyond a reasonable doubt that Ms. Sevim was aware of indications about the illegal nature of the substance but deliberately chose to ignore those indications because she did not want to know the truth. See also R. v. Sidhu, 2009 ONCA 81, in which the Court held that it will not be a mitigating factor on sentence where couriers “wear blinders” and keep themselves in the dark about the nature of the substance.

[91] In this case, Ms. Sevim has provided evidence, both through an agreed statement of fact, with attachments, and through her own testimony. This court is required to, and has, applied the principles enunciated in R. v. W.(D.), 1991 93 (SCC), [1991] 1 SCR 742 (as reformulated /added to in R. v. J.H.S. 2008 SCC 30), which are as follows:

1. If you believe the evidence of the accused, you must acquit;
2. If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit;
3. If you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit;
4. Even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[92] On the particular facts of this case, the Crown argued that, even on a complete acceptance of Ms. Sevim’s evidence, an acquittal does not necessarily follow, and that even if this court fully accepts Ms. Sevim’s evidence that she did not have any knowledge of the content of the package, the concept of wilful blindness must be considered. This court is not in agreement with this argument. Ms. Sevim has stated that she did not know the nature of the substance; in other words, she did not know what was in the package. Further, Ms. Sevim has testified that nothing about these events caused her any concern; in other words that she never became aware of the need for some inquiry. If this court believes Ms. Sevim, this would lead to an acquittal. Even if this raises a reasonable doubt, an acquittal would flow.

[93] The defence submitted that if this court believes the evidence of Ms. Sevim, that she did not know that the package contained an illegal substance, that would rule the day, and Ms. Sevim must be found not guilty. At the very least, Ms. Sevim’s evidence would raise a reasonable doubt on the issue of knowledge. Even if her evidence is not believed and does not raise a reasonable doubt, according to the defence, the Crown has not satisfied its burden by alleviating all reasonable innocent inferences.

[94] Knowledge can be established by direct evidence, circumstantial evidence, or a combination of both. With respect to circumstantial evidence, the analysis as established by the Supreme Court of Canada in R v Villaroman, 2016 SCC 33, and the Court of Appeal for Ontario in R v Darnley, 2020 ONCA 179 and R. v. Ali, 2021 ONCA 362, must be followed when considering the evidence.

[95] In Villaroman, the Supreme Court of Canada described the relationship between circumstantial evidence and proof beyond a reasonable doubt. The court stated in part as follows:

[28] The reasonable doubt instruction describes a state of mind - the degree of persuasion that entitles and requires a juror to find an accused guilty: Berger, at p. 60. Reasonable doubt is not an inference or a finding of fact that needs support in the evidence presented at trial: see, e.g. Schuldt v. The Queen, 1985 20 (SCC), [1985] 2 S.C.R. 592, at pp. 600-610. A reasonable doubt is a doubt based on "reason and common sense"; it is not "imaginary or frivolous"; it "does not involve proof to an absolute certainty"; and it is "logically connected to the evidence or absence of evidence": Lifchus, at para. 36. The reasonable doubt instructions are all directed to describing for the jurors how sure they must be of guilt in order to convict.

[29] An instruction about circumstantial evidence, in contrast, alerts the jury to the dangers of the path of reasoning involved in drawing inferences from circumstantial evidence: Berger, at p. 60. This is the danger to which Baron Alderson directed his comments. And the danger he identified so long ago - the risk that the jury will "fill in the blanks" or "jump to conclusions" - has more recently been confirmed by social science research: see Berger, at pp. 52-53. This Court on occasion has noted this cautionary purpose of a circumstantial evidence instruction: see, e.g., Boucher v. The Queen, 1954 3 (SCC), [1955] S.C.R. 16, per Rand J., at p. 22; John, per Laskin J., dissenting but not on this point, at p. 813.

[30] It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences. It may be helpful to illustrate the concern about jumping to conclusions with an example. If we look out the window and see that the road is wet, we may jump to the conclusion that it has been raining. But we may then notice that the sidewalks are dry or that there is a loud noise coming from the distance that could be street-cleaning equipment, and re-evaluate our premature conclusion. The observation that the road is wet, on its own, does not exclude other reasonable explanations than that it has been raining. The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[35] At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts”: see R. v. McIver, 1965 26 (ON CA), [1965] 2 O.R. 475 (C.A.), at p. 479, aff’d without discussion of this point 1966 6 (SCC), [1966] S.C.R. 254. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.

[36] I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, 1938 14 (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff’d 1938 7 (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, 1971 13 (SCC), [1972] S.C.R. 2, at p. 8. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

[38] Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

[96] In Darnley, the Court of Appeal for Ontario further clarified the relationship between circumstantial evidence, reasonable inferences and reasonable doubt as follows:

[34] Moreover, an inference need not arise from “proven facts”, which is a “standard that is never applicable to an accused”: R. v. Robert (2000), 2000 5129 (ON CA), 143 C.C.C. (3d) 330, at para. 17 (Ont. C.A.). This is because a reference to “proven facts” suggests an obligation to establish those facts to a standard of proof, yet a reasonable doubt can arise from evidence that, while not proven to be true to any standard of proof, has not been rejected.

[35] It is also incorrect to link a reasonable doubt to a “conclusion” drawn from the facts. An acquittal need not be based on a conclusion about innocence but can rest on an inability to conclude guilt.

[36] It is also an error to suggest that an exculpatory inference must be “a much stronger conclusion” than a speculation or guess. That language imports the need for a strong inference, when an exculpatory inference relating to a required element of the offence need merely raise a reasonable doubt: Villaroman, at para. 20.

[97] In R. v. Ali, at paras. 97-8, the court stated as follows:

[97] An inference of guilt drawn from circumstantial evidence must be rooted in the evidence and must be the only reasonable inference available on the totality of the evidence. However, when the jury is considering whether the Crown has met its burden to show that guilt is the only reasonable inference, the jury is not engaged in fact-finding and is not limited to considering alternative explanations founded on the evidence. Instead, the jury is testing the force of the inference urged by the Crown against the reasonable doubt standard. In doing so, the jury can consider other reasonable alternative explanations for the conduct. Those alternative explanations may or may not lead the jury to conclude the Crown has failed to prove that guilt is the only reasonable inference available on the evidence: R. v. Villaroman, 2016 SCC 33, at paras. 28, 35-42.

[98] In determining whether the Crown has met that burden in a circumstantial evidence case, the jury may apply its logic and common sense to the totality of the evidentiary picture, including gaps in that picture, and consider whether other reasonable possibilities not only exist, but preclude a finding that an inference of guilt is the only reasonable inference available…

[98] Circumstantial evidence must be viewed as a whole and not each piece individually. See R. v. Anderson-Wilson, 2010 ONSC 489, [2010] O.J. No. 377 (S.C.), para. 72

[99] In the case at bar, the defence submits that even if this court does not accept the evidence of Ms. Sevim and is not left in reasonable doubt by it, it is reasonable to infer from the facts of this case that the package was left in the car by Silman Husaini and delivered by Ms. Sevim to Mr. Lu without her knowing of what was inside. It is a reasonable inference in all of the circumstances that must leave this court in reasonable doubt.

[100] Certainly the credibility of Ms. Sevim is a key consideration in this trial. The defence submitted that in assessing her credibility, this court should consider the following:

a. Her level of sophistication b. Her demonstrated sincerity c. The attempt to recount common events that occurred three years ago.

[101] There is no question that Ms. Sevim’s evidence was replete with answers of “I don’t remember” or similar responses. However, this court accepts that this event occurred three years ago. She was unaware of any investigation, and she carried on her life, including travelling to Europe, as if nothing had happened. Even when she was told about Silman’s murder, there was nothing to tie that to the package that was located in her car. At some point, a search warrant was executed, and Ms. Sevim was made aware of this and the need to contact a detective. This court is not certain when this occurred. Therefore, it may only have been on August 5 when she returned to Canada and was arrested that she started to think back to these events. By this time, she claimed that she did not remember certain things, including the feel of the package, or putting it in a brown bag. The defence submitted that she could have lied about putting the package in the brown bag given that it would be obvious she would be confronted with this at trial, yet, she chose the truth, in that she did not remember.

[102] This court has considered the argument that if Ms. Sevim knew or had reason to believe there were drugs in her car, one would think she would want to get it out of her car as quickly as possible, rather than going about doing her errands. However, this court has also considered that people react differently, and it is difficult, if not impossible, for this court to conclude anything from this reaction without knowing a lot more context.

[103] Ms. Sevim did testify that other people would drive her car from time to time, including members of her family and the Husaini brothers. There was some evidence presented to corroborate this, including a report from April 25, 2019 at which time Yusuf Sevim was driving the car, and a report from April 26, 2019 at which time Aisa Husaini was seen getting into and out of the Honda. Despite the surveillance on Ms. Sevim and her car for a period of time, there was no surveillance evidence that Silman Husaini was ever driving, or even in, the car.

[104] As for the videotape of Mr. Lu attending at Ms. Sevim’s car, it is true that Mr. Lu may be demonstrating a level of familiarity with Ms. Sevim by going directly to her car, reaching in the passenger window, grabbing a package in a brown bag, and smiling as he walked off. This may suggest that Mr. Lu was given a very good description of Ms. Sevim and her car and knew exactly what he was going there to do. However, this really does not suggest any level of familiarity on the part of Ms. Sevim.

[105] With respect to the text messages that were entered as exhibits, this court is not convinced that this shows any knowledge on the part of Ms. Sevim. This court has no doubt that Dat Doan is speaking about Ms. Sevim when he referred to “she” and her “car problems”, however, this does not demonstrate any knowledge on the part of Ms. Sevim. This is equally consistent with Ms. Sevim’s version of events that she was communicating with Silman Husaini and he was setting up the transaction with others.

[106] Having said all this, however, this court has some serious concerns about Ms. Sevim’s version of events, in the context of the evidence as a whole, including the following aspects:

a. While the defence submitted on a number of occasions that Ms. Sevim is unsophisticated, this was not the impression of this court. Ms. Sevim appears to be an articulate, hardworking woman who supports herself and her family.

b. Ms. Sevim was unclear, perhaps even inconsistent, about when she first saw the package. Ms. Sevim initially testified that she did not go look for the package when Silman first called, as she would not have a phone signal. However, a few moments later, she said that she did go to her car, looked in the trunk, and the package was under some stuff that she found after moving some things around. Then later when describing the events at Popeye’s, she said it was in the trunk under some stuff like some shoes and clothes and her work equipment and that she had not noticed it there before. It was not at all clear when Ms. Sevim first saw the package. Also, if Ms. Sevim had handled the package earlier, and had no concerns about its content, there would be no reason for it to be under shoes, clothes and work equipment at the Popeye’s.

c. Ms. Sevim was unclear about when she took the package out of the trunk. She initially testified that she retrieved the package from the trunk and put it in the Popeye’s bag in the Popeye’s parking lot. A short while later, when asked when she took the package out of the trunk, whether at home or at Popeye’s, she said that she did not remember.

d. According to the Agreed Statement of Fact #1, at 7:07 p.m., Ms. Sevim entered the Popeye's Chicken restaurant. One minute later, she returned to the Honda and got into the driver's seat. She was carrying an empty white plastic Popeye's bag. She then got out of the driver's seat carrying a black bag, which she placed in the trunk of the Honda before driving out of the parking lot. Ms. Sevim claims to have no memory of doing this. Given that Ms. Sevim did recall events at the Popeye’s, this forgetfulness seemed purposeful.

e. There would appear to be no question that Mr. Lu reached into Ms. Sevim’s car and retrieved a package in a brown paper bag. Ms. Sevim stated that she placed the package in a white plastic Popeye’s bag and has no explanation for how or why the package was in a brown bag a short time later.

f. Ms. Sevim handled the black package at least once, maybe more, yet claims to have no recollection of what it felt like. It is unbelievable that Ms. Sevim placed the drug package in the white plastic bag or a brown paper bag without any note of what the packaging felt like.

g. Ms. Sevim, by her own admission, took no steps to ascertain what was in the package. Ms. Sevim, by her own admission, took no steps to understand what she was being asked to do or why she was doing it. Ms. Sevim, by her own admission, had only met Silman a couple of times before this event. Therefore, she really did not know Silman at all. Anyone – everyone – in Ms. Sevim’s position that day, as she described it, would have asked questions about this package, or at least had a serious curiosity. Yet, Ms. Sevim claims that she did not ask one question and had no curiosity whatsoever. This suggests to this court that Ms. Sevim already knew full well what was in the package – perhaps, not the exact product, but at least knew that it was an illegal drug.

h. Ms. Sevim was asked to meet a stranger in a parking lot and to provide him with the package. Ms. Sevim sat idly by while a stranger reached into the passenger side window of her car to grab the package with barely any discussion whatsoever. Again, it defies logic and common sense that Ms. Sevim, or anyone, would not ask any questions, or be concerned about these circumstances. All of these circumstances would have screamed out to make some inquiries, yet she made none. It is the view of this court that she declined to ask because she knew or strongly suspected. At the very least, Ms. Sevim chose to keep herself in the dark.

[107] It is the view of this court that the only rational and reasonable inference is that Ms. Sevim knew that the package contained an illegal substance, or she was willfully blind to that fact.

[108] The value of the drugs also suggests an awareness on Ms. Sevim’s part. The value of drugs being $39,500 would be significant to anyone. This renders it unlikely that anyone, including Silman Husaini, would leave this value of drugs out of their control, not knowing if they would ever have control of this vehicle again.

[109] In R v. Fredericks, [1999] O.J. No. 5549 (C.A.), the court was considering an appeal by Mr. Fredericks from a conviction for possession for the purpose of trafficking. In that case, Mr. Fredericks had been found in the apartment of another by the name of Rudder. The suggestion was that Rudder had brought Fredericks to the apartment and allowed him to stay there while Rudder had a large quantity of drugs and cash in the apartment. The trial judge in that case inferred that Rudder would not leave such a large quantity of drugs and cash unguarded, and that Mr. Fredericks was entrusted to be the keeper of the drugs. In that case, the court stated as follows:

[3] Having regard to the totality of the evidence, we are of the view that there was sufficient circumstantial evidence from which the trial judge could properly conclude that the appellant had both control and knowledge of the drugs found in the apartment. The trial judge gave particular weight to the fact that the appellant was brought to the apartment and allowed to remain there by Rudder, the tenant of the apartment who had knowledge and control over the large quantity of drugs and cash located in the apartment. The trial judge drew the inference that Rudder would not leave such a large quantity of drugs and cash unguarded (cocaine and marihuana having an aggregate street value of over $1,000,000 and approximately $60,000). The trial judge drew the further inference that, given the circumstances of the appellant's arrival at the apartment and his presence in the apartment with this quantity of the drugs and money, the appellant was entrusted to be the keeper of the drugs.

[110] In R. v. McIntosh, [2003] O.J. No. 1267 (S.C.), Mr. McIntosh was driving a rented vehicle when he was pulled over by police. A search of the vehicle resulted in the seizure of a loaded handgun, ammunition, and about 50 grams of crack cocaine from a cavity from behind the glove compartment. Mr. McIntosh was found to be carrying about $4,000 in cash. The person that rented the vehicle testified that she had loaned it to Mr. McIntosh, and that she had asked him to return it to the rental company when he was done with it. One of the passengers in the vehicle at the time it was pulled over had a record, including possession of cocaine for the purpose of trafficking and unauthorized possession of a loaded firearm in a vehicle. In that case, Justice Hill held:

[43] In crimes of unlawful possession, it is "not necessary for the prosecution to prove the required knowledge by direct evidence ... it could be inferred from the surrounding circumstances"…

[45] The retail value of the drug associated with a person is relevant not only to whether he or she had knowledge the substance was a narcotic (R. v. Blondin (1970), 1971 1411 (SCC), 2 C.C.C. (2d) 118 (B.C. C.A.) at 121 (aff'd. on appeal (1971), [1971] S.C.J. No. 42, 4 C.C.C. (2d) 566n (S.C.C.)) but also to whether the person had knowledge of the substance itself (R. v. Fredericks, [1999] O.J. No. 5549 (C.A.) at para. 3-4).

[111] In R v. Bains, 2015 ONCA 677, Mr. Bains and Mr. Pannu had switched vehicles. Police stopped the vehicle Mr. Bains was driving and searched the car. Under the front passenger seat, police found a plastic bag which contained some items, including a vacuum sealed bag containing one kilogram of heroin. Mr. Pannu seemed quite interested in what was happening to Mr. Bains and called his cellphone. A police officer answered, invited Mr. Pannu to drive over to their location, where he was arrested. Mr. Bains and Mr. Pannu were jointly charged with possession of the heroin for the purpose of trafficking. A jury found them guilty, and both appealed. The court dismissed their appeals and stated in part as follows:

[157] As with other offences, Crown counsel may prove the essential elements of constructive possession by direct evidence, by circumstantial evidence or by a combination of direct and circumstantial evidence. Where the subject matter of which an accused is alleged to be in possession is a controlled substance of significant value, it may be open to a trier of fact to infer not only knowledge of the nature of the subject, but also knowledge of the substance itself: R. v. Blondin (1970), 1970 1006 (BC CA), 2 C.C.C. (2d) 118 (B.C. C.A.), at p. 121; R. v. Fredericks, [1999] O.J. No. 5549 (Ont. C.A.), at paras. 3-4; R. v. To, 1992 913 (B.C.C.A.); and R. v. Bryan, 2013 ONCA 97, at para. 11. It is a reasonable inference that such a valuable quantity of drugs would not be entrusted to anyone who did not know the nature of the contents of the bag or other container.

[173] It was open to the jury to infer from the quantity and value of the heroin found in the car Bains was driving that the drugs would not have been left unattended or entrusted to somebody who did not know the nature of the contents of the bag.

[112] In R. v. DaCosta, 2017 ONCA 588, [2017] O.J. No. 3569 (C.A.), the appellant was charged with smuggling 830 grams of cocaine dissolved in two bottles of ginger wine she took with her on a flight from Jamaica to Toronto. She was convicted of importing cocaine and sentenced to three years' imprisonment. On her conviction appeal, she submitted that the trial judge erred in his findings of fact and credibility assessments and gave unsupportable reasons for rejecting her evidence. The appeal was dismissed with the court stating in part:

[21] We would not give effect to this argument. It was open to the trial judge to draw the inference that the manner of the cocaine smuggling that occurred in this case was not consistent with the use of a blind courier. In particular, the total value of the dissolved cocaine found in the appellant's custody was significant enough to contribute to a common sense inference that a third party would not entrust it to her as a blind courier for the purpose of importation: see R. v. Ukwuaba, 2015 ONSC 2953, at para. 101; and R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 527, leave to appeal refused, [2015] S.C.C.A. No. 478.

[22] A trier of fact is entitled to draw factual inferences based on his or her assessment of the totality of the evidence. The trial judge concluded, on the totality of the evidence, the only reasonable inference was that the appellant had knowingly imported cocaine. Circumstantial evidence need not totally exclude alternative conceivable inferences, and a verdict is not unreasonable simply because the alternatives do not raise a reasonable doubt in the mind of the trier of fact: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 56.

See also: R. v. Basha, [2017] O.J. No. 5203 (S.C.) at para 234; R. v. Buchanan, [2020] O.J. No. 1492 (C.A.), paras 60-1

[113] It is the view of this court that the circumstances of this case are similar to the circumstances in those cases, in the sense that it is reasonable to infer that it is unlikely that another person would have left this valuable item in the trunk of Ms. Sevim’s car without her knowledge. It is reasonable to infer that this value of drugs would not be entrusted to anyone that did not know of the item. It defies logic and common sense that Mr. Husaini would leave this drug in the car, not knowing when he would see it again, or if he would have access to the car ever again. It is not clear whether Mr. Husaini has any information about Ms. Sevim such as where she lived. Her evidence was that she had met him only a couple of times in 2019. If they had only met a couple of times and only knew each other as acquaintances, it is illogical that Mr. Husaini would leave this value of drugs in her vehicle without her knowledge. He would be taking a huge risk that she would simply throw it out or open it and call police.

[114] Ms. Sevim’s evidence is not believable and does not raise a reasonable doubt. The evidence demonstrates beyond all reasonable doubt that Ms. Sevim knew exactly what she doing that day and why she was doing it.

Conclusion

[115] It is the view of this court that Ms. Sevim knew the nature of the substance. Everyone agrees that this case turns on this element. This element has been proven beyond a reasonable doubt.

[116] For all of the foregoing reasons, this court finds Ms. Sevim guilty of trafficking in a controlled substance, namely fentanyl and heroin, contrary to section 5(1) of the Controlled Drugs and Substances Act, as charged.

NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written Ruling that is to be relied upon.

Released: August 26, 2022