R. v. Ikenna, 2023 ONSC 3431

Court File No.: Cr-22-90000129 Date: 2023-06-08

Ontario Superior Court of Justice

Between: His Majesty the King – and – Ikenna Nwene

Counsel: J. Gevikoglu and B. Chu, for the Crown M. Huberman, for Mr. Ikenna

Heard: February 21, 22, 23, 27 and 28, 2023

Reasons for Judgment

H. McArthur J.:

Introduction

[1] Nwene Ikenna is facing one count of importing a controlled substance. The Crown alleges that Mr. Ikenna imported 461 grams of heroin.

[2] The facts in this matter are largely undisputed. Authorities intercepted a package sent to Canada from South Africa on July 26, 2021. Inside the package they found baby clothes and thermoses. Concealed in the thermoses, they found 461 grams of heroin.

[3] The declaration for the shipment said that the package contained baby clothes and travel mugs. The consignor of the shipment was noted as Zipho Khoza, not Mr. Ikenna. The consignee for the package was also not Mr. Ikenna, rather the name of the person to whom the package was sent was “Bhavana Abasi”.

[4] On the same day that the authorities intercepted the shipment, someone paid for the import duties owed on the package. The customer information on the invoice for the duties paid was recorded as Bhavana Abasi. The person paid for the duties with a credit card. The credit card used did not belong to Mr. Ikenna.

[5] The person who paid for the duties requested that the shipment be sent to the DHL store at the Scarborough Town Centre for pick up on August 3. The police set up a controlled delivery at that location.

[6] On August 5, 2021, Mr. Ikenna went to the DHL store to pick up that package. He had the shipping details, including the airway bill number and consignee’s information written down on a pink piece of paper. He provided the pink paper to an employee of the DHL and asked for the package. This employee brought the pink paper to another employee, who read out the airway bill number. Then the pink piece of paper was returned to Mr. Ikenna.

[7] A few moments later, the undercover officer who had been waiting came out of the back room of the DHL store. He attempted to hand the package to Mr. Ikenna, saying “this is for you.” Mr. Ikenna, however, told the officer that it was not his and that he was expecting a larger package. The officer held out the airway bill so that Mr. Ikenna could see the information, which clearly matched the information on the pink paper. According to the officer, Mr. Ikenna did not say much other than to deny that the package was his. Also, although the airway bill noted the package had “travel mugs”, at some point Mr. Ikenna uttered the word “thermos”. The officer asked to see the pink piece of paper, but Mr. Ikenna did not give it to him. Mr. Ikenna instead shrugged and left without taking the package. As a result, the package never left the possession of the police.

[8] Mr. Ikenna left the mall. Rather than going to his car, which was parked close by, he began to walk in a different direction. He walked quite some distance away from his car, through the parking lot and towards the McCowan overpass. Police then approached and arrested him.

[9] In a search incident to arrest, police located a wallet on Mr. Ikenna. In his wallet the police found a fake driver’s licence with Mr. Ikenna’s photograph. However, the name on the license was Bhavana Abasi - the name of the consignee for the package.

[10] The ultimate question in this case is whether the prosecution has proven the essential elements of the offence of importing beyond a reasonable doubt. Importing a controlled substance consists of a physical and a fault element. At some point, the two elements must coincide. The physical element in importing requires that a defendant caused a controlled substance to be brought into the country. The fault element in importing requires that the defendant intended to import a substance and knew that the substance was a controlled substance, though not necessarily the precise substance alleged. A person who aids or abets an importer can also be guilty of importing if that person is aware of the importing and intends to assist the principal in the scheme.

[11] In Mr. Ikenna’s case, there are two main issues in determining the ultimate question. First, given that the package/drugs remained in the control of the police, was the offence of importing ever completed? Second, if I am satisfied that the importation was completed, has the Crown established that Mr. Ikenna caused the package to come into Canada, or assisted in causing the package to come into Canada, knowing that it contained a controlled substance?

[12] I do not intend to set out the facts any further at this point but will refer to the evidence as necessary in the analysis. I turn now to the issues raised.

Analysis

Issue One: Given that the package/drugs never left the control of the police, was the offence of importing ever completed?

[13] The package containing the heroin never left the possession of the police. While Mr. Ikenna went to the DHL store and asked for the package, he left the store empty-handed. Defence counsel argues that because the package remained with the police, the Crown has failed to establish the physical element of importing.

[14] In support of this argument, counsel points to the recent decision of R. v. Okojie, 2021 ONCA 773. There, at para. 104, the court stated that the “endpoint of importation” occurs when “contraband from abroad enters Canada and is no longer under the control of the appropriate authorities.” In this case, since the package/drugs remained under the control of the police, defence counsel argues that the drugs did not enter the country and thus the offence of importing was never completed.

[15] I am unable to accept this argument. The paragraph referred to by counsel must be read with the whole of the decision. In Okojie, a five-judge panel considered when it can be said that contraband has entered or come into Canada, thus completing the physical element of importing.

[16] Watt J. for the court noted that contraband can be brought into Canada from abroad in a variety of ways, “bounded only by the limits of human ingenuity”: Okojie, at para. 101. Thus, he cautioned that when determining whether contraband has entered the country, it is vital to keep in mind the purpose of the legislation - to prohibit dangerous drugs becoming available to the population of Canada.

[17] Watt J. noted that there are a “myriad” of ways in which illegal substances can be imported. Some importation schemes, such as the one in the present case, involve a mail/courier service, where any duties owed on the shipment are to be paid by the consignee before the item clears Customs. As Watt J. noted, once items have cleared Customs, the contraband becomes available to the consignee in Canada. He repeatedly confirmed that once contraband clears Customs, then it has “entered the country”, thereby completing the physical element of importing: Okojie, at paras. 103, 104, 113.

[18] In the present case, on the same day that the package arrived in Canada, someone paid the duties owed and re-directed the package. At that point the package cleared Customs. That is, at that point the physical element of importing had been completed and the contraband had entered Canada.

[19] I turn now to the issue of whether the Crown has established beyond a reasonable doubt that Mr. Ikenna was responsible for the importation, either as a principal or a party, with the requisite knowledge.

Issue 2: Has the Crown established beyond a reasonable doubt that Mr. Ikenna caused the package to come into Canada, or assisted in causing the package to come into Canada, knowing that it contained a controlled substance?

[20] The starting point of my analysis is that Mr. Ikenna is presumed to be innocent, unless and until the prosecution has proven the offence against him beyond a reasonable doubt. It is not enough for me to believe that Mr. Ikenna is possibly or even probably guilty. I must be convinced of his guilt beyond a reasonable doubt. As a standard, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty. At the same time, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities.

[21] The prosecution’s case relies entirely on circumstantial evidence to prove that Mr. Ikenna caused the contraband to enter Canada, knowing that the package contained a controlled substance. As a result, he must not be convicted of importing unless his guilt is the only reasonable inference considering all the evidence: see R. v. Villaroman, 2016 SCC 33, at paras. 30-42.

[22] Mr. Ikenna did not testify. It is essential to keep in mind that a defendant need not testify in their defence. If the defendant elects to remain silent in the face of the criminal allegations, as Mr. Ikenna elected to do in the present case, no adverse inference can be drawn against them for their reliance upon that important right. A defendant’s testimonial silence at trial "is not evidence" of guilt and "cannot be used as a makeweight for the Crown in deciding whether the Crown has proved its case": R. v. Prokofiew, 2012 SCC 49, at para. 4. In other words, if, after considering the whole of the evidence, I am not satisfied that the case against Mr. Ikenna has been proven beyond a reasonable doubt, I cannot look to his election to not testify to remove that doubt and help the Crown prove its case beyond a reasonable doubt. Prokofiew, at paras. 4, 10-12, 15, 20-21, 26, 64-65; R. v. Noble, [1997] 1 S.C.R. 874, at para. 72; R. v. Tomlinson, 2014 ONCA 158, at paras. 97-98.

[23] Defence counsel submits that if the contraband entered the country as of July 26, the day the duties were paid, then Mr. Ikenna must be acquitted. That is because, he says, the evidence only establishes Mr. Ikenna’s involvement as of August 5. Since that is after the endpoint of the importation, counsel argues that the prosecution has failed to establish its case.

[24] But as Watt J. explained in Okojie, at para. 102, “[c]ompletion of the physical element is not the final curtain on proof of criminal liability.” Evidence of things said or done by a defendant after the offence has been completed may assist in proof of the defendant’s participation in the offence and establish the requisite fault element.

[25] In my view, the evidence is clear that Mr. Ikenna knew that the package contained a controlled substance when he went to pick it up on August 5. Mr. Ikenna went to the DHL store equipped with a fake driver’s licence in the name of the consignee. If he had no knowledge of the scheme at that point, given the highly suspicious circumstances, it was only because he chose to remain deliberately ignorant: R. v. Burnett, 2018 ONCA 790, at para. 141; and R. v. Anderson, 2020 ONCA 780, at paras. 36-37.

[26] Moreover, if Mr. Ikenna was simply a dupe tasked to pick up the shipment, why would he have refused to take the package when the officer offered it? The airway bill, which the officer held out for him to see, matched the information written on the pink piece of paper he carried. Since the details matched, there would be every reason for him to take the package. But he did not. Nor did he call or text anyone, saying “I think there is a mistake with the package you sent me to pick up, what do you want me to do?” Nor did he otherwise try to sort out any mistake. Yet that is what one would expect him to do if he was concerned that he was being offered the wrong package. After all, he had already made the effort to drive to the mall to get the package. Instead, he shrugged and left.

[27] So why did Mr. Ikenna refuse to take the package? I have watched the surveillance video of his interaction with the officer numerous times. It seems clear to me that Mr. Ikenna suspected the man who came out to give him the package was an undercover police officer. One can readily understand this suspicion. With respect to the officer, he stuck out like a sore thumb from the other DHL employees. He was wearing a different uniform. He was noticeably the only one wearing gloves. He looked very much like a “cop” pretending to be an employee. Mr. Ikenna’s refusal to take the package in these circumstances supports the inference that he knew that the package he was attempting to retrieve contained a controlled substance.

[28] This inference is further supported by Mr. Ikenna’s actions upon leaving the mall. Rather than walking to his car, which was parked close by, Mr. Ikenna went in the opposite direction. He did not walk towards a park, or another store, instead he walked towards a highway overpass. As he walked, he threw the pink piece of paper with the information on the ground. The clear inference is that Mr. Ikenna knew that the package contained a controlled substance, was concerned that the police were involved, and was trying to distance himself from the package.

[29] Moreover, if things had gone as expected, Mr. Ikenna would have walked out of the DHL store with the 461 grams of heroin. At the time, that much heroin would be worth between $32,000 to $83,000. A clear inference could be drawn that Mr. Ikenna would not be asked to retrieve a parcel worth that amount of money unless he knew something about its illicit contents: R. v. Bains, 2015 ONCA 677, at paras. 157 and 173, leave to appeal refused [2015] S.C.C.A. No. 478; and Anderson, at para. 28.

[30] In terms of when Mr. Ikenna knowingly became involved, on the day he went to get the package, he had a fake driver’s licence in the name of Bhavana Abasi, the consignee. His photograph was on the licence. He obviously had to be involved in the production of the fake licence by at a minimum providing his photograph. While I do not have evidence as to when the fake identification was created, it looks to be high quality. It seems reasonable to infer it would take some time and effort to make the counterfeit licence. This supports that Mr. Ikenna became involved in the importing scheme before the day he went to get the package.

[31] Further, someone paid the duties for the package on July 26. It is true that the credit card used was not Mr. Ikenna’s. But the invoice for the duties recorded the name of Bhavana Abasi. The shipment was redirected to the DHL store for pickup. It seems reasonable to infer that the individual who paid the duties and redirected the package would not have done so unless they knew that they could send someone who had the ability to prove that they were the consignee, Bhavana Abasi, if asked. Which, as it turns out, Mr. Ikenna was in a position to do on August 5, when he attempted to pick up the package while carrying the fake driver’s licence in his wallet.

[32] In my view the only reasonable inference that can be drawn on the evidence is that Mr. Ikenna became involved in the scheme, at a minimum, at the point the duties were paid, the endpoint of the importation. The suggestion that he may have been asked to join the scheme after that point is speculative. His possession of a driver’s licence in the name of the consignee on August 5 links back to the payment of the duties owed, clearly supporting a finding of his participation at the endpoint of the importation and the requisite knowledge.

[33] All the pieces of evidence must be considered, each in relation to the whole, and it is the cumulative force of the whole of the evidence that must be considered: Okojie, at para. 142. Here, based on the totality of the evidence, the only reasonable inference is that Mr. Ikenna either caused the package to come into the country, or he assisted the principal in having the package enter the country. And, in either event, that he did so knowing, or being willfully blind to the fact, that the package contained a controlled substance. The Crown has established beyond a reasonable doubt the physical and the fault element of importing, and that they at some point coincided.

[34] As a result, I find Mr. Ikenna guilty of importing.

Justice Heather McArthur

Released: June 8, 2023