Court File and Parties

COURT FILE NO.: CR-22-90000620 DATE: 2024-11-25 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – MOUBACHAR ANIMER Defendant

Counsel: I. Erdei, for the Crown K. Schofield and R. Singh, for the Defendant

HEARD: September 14-15, 2024

BEFORE: P.T. Sugunasiri, J.

Reasons for Decision on the Charter Application and Trial

Overview

[1] On March 25, 2021, a man is captured on CCTV walking into a Canada Post Centre with Purolator services at Kipling and Bloor. He had with him a small Canada Post box wrapped in saran wrap. He printed a shipping label addressed to Margot Gauthier, from “marcus”. The sender’s address was listed as the address of the Canada Post Centre, and the man paid in cash.

[2] Purolator withheld and opened the box under its Terms and Conditions and found powder and crack cocaine inside. The police took possession of it and later identified Mr. Animer through a fingerprint analysis of the box and its Shipment Receipt. They did not file a Report to Justice of the items that they took from Purolator until September 16, 2024.

[3] Mr. Animer has been charged with possession of cocaine and crack for the purpose of trafficking, and trafficking pursuant to ss. 5(1) and (2) of the Controlled Drugs and Substances Act, R.S.C. 1996, c. 19 (“CDSA”). The Crown proceeded on the trafficking charges only, which form counts three and four on the indictment.

[4] Mr. Animer argues that that the box, its contents, and the Shipment Receipt should be excluded because the police violated his s. 8 Charter rights when they failed to file a timely Report to Justice pursuant to s. 489.1 of the Criminal Code of Canada, R.S.C. 1985, c. C-46. While I agree that the police violated Mr. Animer’s s. 8 rights by failing to Report to Justice as soon as practicable, I decline to exclude the evidence.

[5] Mr. Animer argues at trial that the Crown cannot prove beyond a reasonable doubt that the man seen dropping off the box was him. Even if the Crown met that burden, he submits that it is a reasonable inference on the totality of the evidence that he was a blind courier.

[6] For the reasons that follow, I find that Mr. Animer is the man dropping the box off. The only reasonable inference from the whole of the evidence is that he knew of the box’s contents, or if he did not know, it was only because he chose to remain deliberately ignorant. There is no reasonable inference that he was a blind courier.

Factual Background

[7] The Crown’s case was largely entered through an Agreed Statement of Facts (“ASF”) marked as Trial Exhibit 1.

[8] On the afternoon of March 25, 2021, a thin to medium built black man with black hair tucked under black hooded jacket with reflective tape, wearing black pants, a white T-shirt, and black shoes with a white decal walked into a Canada Post Centre with Purolator services at Kipling and Bloor. The man was carrying an already sealed and plastic wrapped Canada Post box. He left the box on the scale at the counter to go to the self-serve area to print a shipping label. The man returned to the counter and handed the label to the employee. The employee put the shipping label in a clear plastic sleeve and stuck it to the Canada Post box. The label listed the sender as “marcus”, and the return address of the Purolator centre. The recipient was Margot Gauthier. The man also gave the Purolator worker two copies of a Shipment Receipt bearing the same information and PIN number (332835307247) as the shipping label. He paid in cash, received back one copy of the Shipment Receipt with a payment receipt affixed, and left the box with the employee.

[9] The employee decided that the box required some investigation and she called her supervisor, who called the Manager of Loss and Risk Prevention. The employee and supervisor put the sealed box and the Shipment Receipt in the back storage area. There were only two or three Purolator employees working at that location at the time. Neither employee who was working at the time the box was dropped off opened it. At the end of the shift, the employee set the alarm for the Centre and left, shortly after 9:00 p.m.

[10] The next morning (March 26, 2021), the Loss Manager arrived at the location. When he retrieved the box from the storage area, it was unopened, heavily and completely wrapped in saran wrap, and had the shipping label bearing PIN 332835307247. I find no issue with continuity of the box as left by the man with the Purolator employee. Wearing gloves and a mask, he opened the box in the back storage area as permitted by Purolator’s Terms and Conditions and saw white powder. He closed it up and moved it into a Training Room where he opened the box again and inspected it more thoroughly. It was at that time that he discovered five clear bags containing a white substance. He took photos and called the police at 9:23 a.m.

[11] While waiting for the police, the Loss Manager left the opened box, contents, and Shipment Receipt in the Training Room with a “do not enter” sign on the door. He remained nearby and did not see any other employees leaving or entering the Training Room. The only other access to the Training Room was from a storage room that was locked with a master key. Retail employees did not have a copy of this key. Only the Loss Manager did.

[12] Officer Besco, Detective Constable Metzger, and another detective attended the Kipling Purolator and took the Canada Post box with the affixed shipment label, the clear bags, and the Shipment Receipt. I am satisfied that no one had access to the box or its contents when the Loss Manager secured it in the Training Room. Ultimately, Health Canada concluded that the bags contained a total of 555.6 grams of cocaine and 153.88 grams of crack cocaine.

[13] At the time the police went to the Centre and retrieved the box, its contents, and the Shipping Receipt, no one knew who the box belonged to. However, the Loss Manager tied this box to an attempted shipment the day before (March 24, 2021) at their Commerce Court location. On March 24, 2021, Purolator’s CCTV captured a thin to medium built black man with short, braided hair sticking out from under a grey toque, wearing black pants, a white T-shirt, and black shoes with a white decal walking into a Purolator self-serve kiosk at Commerce Court in downtown Toronto. He was carrying a similar small box. He wrapped the box in plastic wrap. He processed a shipping label that indicated Anthony Brown as the sender and Margot Gauthier as the receiver. The sender had a phone number, but his address was incomplete. The man took the wrapped box, left the shipping label behind, and exited the self-serve kiosk. Purolator employees retrieved the label bearing PIN number 332832706854. An employee phoned Anthony Brown’s number as listed on the box and reached someone who said they were not aware of the shipment and was not trying to send anything.

[14] The police analyzed the box, the baggies, and Shipment Receipt from March 25, 2021 for fingerprints. Mr. Animer’s and other prints were found on the Shipment Receipt and on the outside of the box when unassembled. In assembled form, his left middle fingerprint, right ring fingerprint, and right thumbprint would be on the interior of the box. The police also analyzed the saran wrap on the exterior of the box, the plastic containing the shipping label, and the plastic bags containing the drugs. None revealed Mr. Animer’s fingerprints.

[15] On July 8, 2021, the Toronto Drug Squad executed a search warrant at Mr. Animer’s residence and found no further evidence. There is no evidence of further investigation of Anthony Brown or surveillance of Mr. Animer. There is no evidence of further investigation of the other prints found on the Shipment Receipt that had hits on the police’s AFIS system.

Charter Decision

The police violated Mr. Animer’s s. 8 Charter rights by failing to report to justice as required

[16] The parties agree that after the police took possession of the box, the drugs, and the Shipment Receipt, they did not file a Report to Justice pursuant to s. 489.1 of the Criminal Code until September 16, 2024. There was no one assigned to the case at the time. The Officer in charge came on board in or around November of 2022. The Crown argues that there was initially no seizure and therefore no report required.

The police action in taking the box, Shipment Receipt, and its contents amounts to a seizure by the state

[17] While Mr. Animer’s identity was not known at the time he dropped off the box, I find the police’s actions in taking possession of the box amounts to a seizure under s. 489.1 of the Code. In R. v. Lambert, 2023 ONCA 689, 169 O.R. (3d) 81, at para. 70, the Court of Appeal for Ontario defined a seizure under s. 489.1 of the Code to mean “any investigative conduct by the police in which they take control of a thing, to the exclusion of a person holding a reasonable expectation of privacy in that thing.” This includes what used to be known as a passive acquisition, when third parties hand over items to the police.

Mr. Animer had a reasonable expectation of privacy in the contents of the box

[18] Mr. Animer is entitled to rely on the Crown’s theory of the case to underpin the existence of his subjective expectation: R. v. Jones, 2017 SCC 60 at para. 19. That theory posits that Mr. Animer knowingly possessed illegal drugs and twice attempted to send them to Ms. Gauthier through Purolator. Even though he attempted to distance himself from the package at the time of drop off, I find that he had a subjective expectation of privacy over it. Prior to leaving it with Purolator, Mr. Animer had possession and control of the item. He created the label including a false sender address. He wrapped the box the day prior. His fingerprints are on the box and the Shipment Receipt. In R. v. Dosanjh, 2022 ONCA 689, 163 O.R. (3d) 401, at para. 117, the Court of Appeal held that “whether an individual has a direct interest in the subject matter of a search is not defined by whether the subject matter is incriminating or not, but by the degree to which the individual has a meaningful connection to the subject matter – for example, through participation, authorship, ownership or control”. In my view and on the Crown’s theory, Mr. Animer’s conduct gave him a direct interest in the box and its contents.

[19] In R. v. Piatt, 2021 NSSC 20, 482 C.R.R. (2d) 36, at para. 72, the Supreme Court of Nova Scotia concluded that the subjective expectation of privacy threshold, which it qualified as a low bar, was satisfied because the subject matter of the search had the capacity to reveal personal information about the accused’s lifestyle. The same principle applies in this case.

[20] Mr. Animer’s expectation of privacy is also objectively reasonable. Albeit diminished by the Purolator’s Terms and Conditions which allows it to search packages, it is reasonable for him to expect that his parcel would not be opened and handed over to a state actor: Piatt at paras. 92-93.

The police’s late filing of the Report to Justice violated Mr. Animer’s section 8 Charter rights

[21] The police violated Mr. Animer’s s. 8 rights in their late filing of the Report to Justice: R. v. Garcia-Machado, 2015 ONCA 569, 126 O.R. (3d) 737, at paras. 44-45. Section 489.1 of the Code requires the Report to Justice “as soon as is practicable.” The seizure occurred on March 26, 2021. The Report was filed on September 16, 2024. This is far from “as soon as practicable”.

[22] I do not, however, exclude the box, its contents, and the Shipment Receipt under the s. 24(2) analysis. I consider the three Grant factors which must be balanced:

1. The seriousness of the Charter-infringing conduct;
2. The impact of the breach on the Charter-protected rights of the defendant; and
3. Society’s interest in the adjudication of the case on its merits: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71.

The Charter-infringing conduct was not serious

[23] The late filing of the Report to Justice was negligent but not purposeful. Officer Daniel Besco was the first to arrive at the Kipling Purolator Centre. He took the box and the shipping label while Detective Constable Metzger took the drugs. Officer Besco testified that when he filled out the property report, he noted the items as “abandoned”. This triggered the form to automatically indicate that no Report to Justice was needed. Officer Besco testified, and I accept, that at the time of the seizure, he was not sure if a Report to Justice was supposed to be done or was going to be done.

[24] D.C. Metzger admitted that not filing a Report to Justice on the seized drugs as the exhibits officer was a mistake. She testified that because no one had been arrested, it was a grey area in her mind. She now knows that a Report should have been filed.

[25] That said, something fell through the cracks somewhere. Even after the Officer in Charge was appointed in November of 2022, no Report was filed until September 16, 2024. The defence argues that the misconduct is serious because the police have not taken the issue seriously, did not investigate what happened, and offer no systemic solution for the future.

[26] In a different case, the deficiencies that the defence points out may amount to serious state misconduct. Given the circumstances of the seizure in this case, it is not misconduct from which the court should dissociate itself. Dissociation is less of a concern here where police reporting practices when seizing items not associated with anyone, were unclear.

Minimal impact on Mr. Animer’s Charter-protected interests but serious impact on overall system

[27] Mr. Animer distanced himself from the package, even though it was ultimately traced back to him. The late Report to Justice had no impact on him. None of his personal belongings were in jeopardy.

[28] However, the impact is on the system itself. The requirement to file a Report to Justice is not simply a paper exercise: R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at para. 45. It is a built-in system of checks and balances that the police should take seriously. For this reason, this factor favours exclusion.

Society has a strong interest in the adjudication of this case on its merits

[29] Society has a strong interest in having this case adjudicated on its merits. The allegation of trafficking of illegal drugs is serious. The Crown has a strong circumstantial case that depends on the items proposed to be excluded.

The balancing favours inclusion

[30] In this case, the Charter violation raised by the defence is not serious, nor is the impact on Mr. Animer. I consider however that there is an impact on the criminal justice system where police continually fail to report to justice or file them very late. On this topic, see Justice Molloy’s comments in R. v. Fareed, 2023 ONSC 1581, 525 C.R.R. (2d) 112 (“Fareed”). However, unlike in Fareed, there is ambiguity here as to what the officers should have done. Officer Besco was led astray by a pre-populated form that indicated that no Report to Justice was needed. The protocol was similarly unclear to DC Metzger who seized and exhibited the drugs. And I accept from those officers that the protocol for dealing with evidence obtained by third parties was generally unclear to the police at the time.

[31] Ms. Schofield echoes Justice Molloy in her submissions that at some point, the police need to be held accountable for their habitual failures to report to justice. I agree, but this is not that point. In balancing the factors, the evidence in this case should not be excluded. A reasonable, dispassionate person fully apprised of the circumstances would conclude that the admission of the evidence would not bring the administration of justice into disrepute.

Trial Decision Analysis

[32] In addition to the ASF, the Crown relies on a fingerprint expert report, a drug valuation report, Health Canada certificates, CCTV footage from a self-serve kiosk, Canada Post counter footage, footage of the self-serve area at the Kipling location, the Canada Post box itself, the printed shipping label, the Shipment Receipt, and photographs of these items to prove its case.

[33] The Crown must prove the elements of trafficking pursuant to s. 5(2) of the CDSA. All elements are admitted except for identity and knowledge. First, is the person dropping off the package at the Kipling Purolator on March 25, 2021 Mr. Animer? Second, if it is Mr. Animer, did he know the contents of the package when he dropped it off?

[34] The Crown’s theory of the case is that Mr. Animer assembled the box or helped assemble it, put drugs in it himself or observed someone else doing so, and attempted to deliver it through the mail knowing its contents.

[35] The defence argues that the Crown can neither prove identity nor knowledge beyond a reasonable doubt. The man seen on CCTV walking into the Purolator on March 25, 2021 is unidentifiable. Even if the Crown can prove identity beyond a reasonable doubt, the defence argues that Mr. Animer is a blind courier with no knowledge of the contents of the box.

[36] The Crown’s case against Mr. Animer is entirely circumstantial. As such, I can only find Mr. Animer guilty if guilt is the only reasonable inference arising from the whole of the evidence or lack of evidence. In assessing the circumstantial evidence, I must consider other plausible theories and other reasonable possibilities based on logic and human experience, which are inconsistent with guilt: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 35-36 (“Villaroman”).

[37] The standard of proof beyond a reasonable doubt applies to the final evaluation of innocence or guilt and is not piecemeal to individual items of evidence: R. v. Wu, 2017 ONCA 620, 2017 CarswellOnt 11450, at para. 15.

[38] I find that it is Mr. Animer who dropped off the package on March 25, 2021 and attempted to do so on March 24, 2021. I also find that he knew what was in the box or purposely decided not to know.

Issue #1 - Identity

Mr. Animer dropped the box off on March 25, 2021

[39] The image of the person dropping off the package on Canada Post’s CCTV is not clear. I conclude however that it was Mr. Animer at the Kipling Purolator on March 25, 2021, because his fingerprints were found on the Shipment Receipt that the person gave to the employee. The defence points out that there were other prints on the Shipment Receipt that showed up on the police database and that this raises doubt as to the identity of the person seen entering. In other words, it is a reasonable alternative that the person seen dropping off the box was not Mr. Animer.

[40] I disagree. Based on the agreed sequence of events and the CCTV evidence, I conclude that the only way Mr. Animer’s prints could have gotten on the Shipment Receipt was for him to have been the person handing that document to the staff person at the counter. The parties agreed to the following facts at paragraphs 32-38 of the ASF:

1. The male carrying the white Canada Post cardboard box wrapped in plastic went to the counter and placed it on the scale.
2. The male then left the box on the scale and went to a computer in the self-service area.
3. The male typed some information into the computer while looking at his phone. A shipping label printed and the male retrieved it. He then walked to a nearby counter next to the photocopier and remained there for less than a minute.
4. The male returned to the counter and handed the staff member the shipping label that he had retrieved from the printer. She placed it in a clear plastic sleeve and stuck it to the box. She then handed the male a pen and directed him back toward the self-serve area. He went there to retrieve two pieces of paper, returned to the counter, and appeared to write something on the papers.
5. The male gave the worker two identical sheets of paper. He then paid for the shipping in cash. She scanned the paperwork, inputted something into the computer, and a receipt printed off her station. She stapled the receipt to one of the papers and retained the other, which was a Shipment Receipt. She gave the paper with the stapled receipt to the male. He then left the store.

[41] From this sequence of events, Mr. Animer had to be at the Kipling Purolator for his prints to be on the Shipment Receipt. I find that it was him who handed it to the Purolator employee. There is no evidence or suggestion that Mr. Animer would have had access to the Shipment Receipt after it was left with Purolator. On the other hand, it is possible that others touched the Shipment Receipt after it was left with the Purolator worker. On March 26, 2021, the Loss Manager had access to the Shipment Receipt as did the police who took possession of it. After that, there are likely others who might have touched the Receipt. There is no evidence of how long the other prints had been on the Shipment Receipt. As a matter of common sense and logic, there is only one time in this sequence that Mr. Animer could have touched it.

[42] I am satisfied beyond a reasonable doubt that it was Mr. Animer who attempted to ship the box of cocaine on March 25, 2021.

Issue #2 - Knowledge

[43] I am satisfied beyond a reasonable doubt that Mr. Animer knew what he was sending or that the circumstances were inherently suspicious such that the only reason he did not know of the contents was because he chose to remain deliberately ignorant. It is the only reasonable inference on the whole of the evidence.

Mr. Animer tried to send the same package on March 24, 2021

[44] As noted above, I find it was Mr. Animer who tried to deliver the package to Ms. Gauthier on March 25, 2021. I also find that Mr. Animer was the person who attempted to send the same Canada Post box through the self-serve kiosk the day before. First, the two men look alike in terms of build and the clothing they were wearing underneath their outerwear. This includes both men having a white decal on black shoes. Second, the box that the person attempted to send on March 24, 2021 had the identical recipient as the box Mr. Animer was sending on March 25, 2021. Third, the box looked the same size and had the same markings. Fourth, on March 24, 2021 the person can be seen wrapping a box in saran wrap. The box that Mr. Animer attempted to send on March 25, 2021 looked the same size and was already heavily saran wrapped.

[45] As counter-points to these similarities, I have considered the difference in the labelling of the packages, in so far as Mr. Brown was listed on the shipping label created on March 24, 2021. I also consider that there is no evidence of any investigative steps the police took to rule out Mr. Brown as the real drug trafficker.

[46] That said, logic and human experience tell me that it is highly unlikely that two different but similarly dressed people attempted to send a significantly similar looking Canada Post box wrapped in saran wrap to the same recipient within a day of each other. I do not know why the person left the shipping label with Mr. Brown’s number behind. Perhaps he made a mistake by putting Mr. Brown’s name down. Regardless, that gap in the evidence does not cause me to deviate from the conclusion that it is Mr. Animer that we see in the CCTV on March 24, 2021.

Mr. Animer’s fingerprints are on the box

[47] The fingerprint evidence establishes that Mr. Animer touched the box at some point in time before he touched it again to wrap it in saran wrap. Exhibit 14A shows the location of his fingerprints. Three of them, R10, R11 and R17, would be on the interior of the box if the box was assembled. The prints labelled as R10 and R11 are on a flap that is tucked in under the front flap when the box is assembled. The box was tendered as Trial Exhibit 9. Logic dictates that prints R10 and R11 could only have gotten on the box if Mr. Animer touched the unassembled box or assembled the box himself. Those prints could not have been on the box simply from touching it to wrap it in saran wrap.

[48] I find that Mr. Animer assembled the box. The placement of his thumb on R17 (the small interior flap when assembled), the number of prints found on the front flap, and the way this box is assembled is more consistent with Mr. Animer assembling it than with him simply handing it to someone to assemble and then touching it again to wrap it.

[49] Even if I am incorrect, unlike what one would expect from a typical blind courier, Mr. Animer was involved in some way with this box from the beginning. Whether he assembled it or not, Mr. Animer knew of its contents or chose to avert his eyes in an inherently suspicious situation.

The labelling and sending of the box is inherently suspicious

[50] Mr. Animer took unusual steps to deliver the box to Ms. Gauthier. He first attended a self-serve kiosk to deliver the package but abandoned that plan. The labelling was unconventional in the sense that it had only a name and a number, and an incomplete address. This suggests that the sender wanted to distance themselves from the package. Then, at the Kipling location, Mr. Animer made up a sender, “marcus”, and indicated no personal address on the shipping label; another indicator that he wanted to distance himself or anyone else from the package. In both instances, he used untraceable methods of payment – the first being a purchased gift card or credit card, and the second being cash. Even if Mr. Animer was acting for someone else, he knew that the contents of the box were such that the sender needed to be distanced from it.

[51] I further find that Mr. Animer not only knew that the contents were such that the box needed to be untraceable, but also that it contained illegal drugs. In addition to my finding that Mr. Animer assembled the box, Mr. Animer wrapped the box in saran wrap. Detective Duffus, conceded to be a drug expert, would have stated, if called to testify, that wrapping a box that contained cocaine or crack cocaine with plastic wrap is consistent with an effort to stifle a chemical smell. [1] His evidence was accepted as part of the Agreed Statement of Facts at Trial Exhibit 1. Even if Mr. Animer did not assemble the box, I find that he knew what was in it and wrapped it with saran wrap to conceal its contents. I do not accept that he just blindly followed someone’s instructions to wrap it without knowing its contents.

[52] I also draw the reasonable inference that a valuable item like this quantity of drugs would not be entrusted to anyone who did not know the nature of the contents of the container they are found in: R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545, at paras. 156-157. Detective Duffus values the 555.6 grams of crack cocaine between $25,246 and $110,120 depending on how it is sold. He values the 153.88 grams of powder cocaine between $10,355 and $17,006 depending on how it is sold.

[53] The cumulative effect of the circumstantial evidence raises the reasonable inference that even if Mr. Animer did not know the contents of the box, he would necessarily have been suspicious and did not make the necessary inquiries. The whole of the evidence does not support the inference that he was a bona fide blind courier.

The gaps on the evidence or lack of evidence do not give rise to other reasonable inferences inconsistent with guilt

[54] The defence argues that there are simply too many gaps in the Crown’s case for them to satisfy their onus. Nothing was revealed on a search of Mr. Animer’s home and the police did not conduct any surveillance that led to observations tying him to drug trafficking. There was no evidence of investigating and ruling out Anthony Brown as the real trafficker, nor any follow up on other prints that were found on the Shipment Receipt and in the police’s system.

[55] None of these gaps leave me with reasonable doubt. As noted in Villaroman, at para. 36 certain gaps in the evidence may result in inferences other than guilt, but those inferences must be reasonable and made in light of human experience and common sense. Despite the gaps in evidence or the lack of other investigation, the Crown has presented a tight chain of circumstantial evidence. It is not a reasonable inference from the whole of the evidence that Mr. Animer was just handed a package to deliver with no knowledge of its contents nor suspicion that triggered questions that he chose not to ask. Mr. Animer was involved with this package from the very beginning of the transaction. He either assembled the box or touched it before the contents were put in it. He wrapped the box. He created a label with no traceable sender. He paid in cash. On the totality of the evidence, the Crown has satisfied me beyond a reasonable doubt that it was Mr. Animer who attempted to send the box of powder and crack cocaine on March 25, 2021 and that he knew or chose not to know that it contained illegal substances.

[56] I find Mr. Animer guilty beyond a reasonable doubt of trafficking powder cocaine and crack cocaine.

P.T. Sugunasiri J. Released: November 25, 2024

Footnotes

[1] Detective Duffus’ evidence is at paragraphs 92-94 of the Agreed Statement of Facts.