Court File and Parties

Court File No.: CR-23-90000364
Date: 2025-04-16
Court: Ontario Superior Court of Justice

Between:
His Majesty the King
and
Rasim Kaba & Hassan Talebi, Defendants

Appearances:

• Christopher Walsh and Ira Glasner, for the Crown
• Solange Davis-Ramlochan, for the Defendant Rasim Kaba
• Fariborz Davoudi, for the Defendant Hassan Talebi

Heard: November 26-29, December 2-4, 2024; January 15-16, February 10 and 12, 2025
Judge: Michael Dineen

Introduction

[1] The defendants are charged on a four-count indictment with importing opium, possession of opium for the purpose of trafficking, and conspiracy to commit those offences.

[2] These charges arise from the importation of more than 500 kilograms of opium that arrived in the country concealed in food packaging in a shipping container. The shipment was intercepted by the RCMP, who seized the opium, substituted clay to mimic the consistency of the drug, and then engaged in a controlled delivery of the shipping container.

[3] Mr. Kaba was the consignee for the shipment. Mr. Talebi was involved in receiving the shipment at a storage facility. Both defendants testified that they did not know or suspect that the shipment contained a controlled substance. Each said that he had been duped by the other into unwittingly assisting with the importation of the opium, believing the shipment to contain only food items.

[4] The key issue is whether the Crown has proven beyond a reasonable doubt that either or both of the defendants knew or was willfully blind to the presence of a controlled substance in the shipment.

Review of the Evidence

The Background of the Defendants

[5] Mr. Kaba was 63 years old at the time of trial. He was born in Turkey and came to Canada in 1986. He is divorced with two daughters in their 30s. He studied mechanical design and business in Turkey and after coming to Canada did further programs in both areas through the University of Toronto and Ryerson University (as it was then known).

[6] Mr. Kaba’s professional specialty is the design of overhead conveyer systems, primarily for the garment industry. He worked for a conveyer company and then began working independently through a corporation he established in 1992. He declared bankruptcy in 2011 after one of his daughters had a health crisis and he put his business aside.

[7] When he emerged from bankruptcy, he registered a new company named AUPS Inc. for his conveyer business. This was initially registered in the name of two friends until his discharge in bankruptcy. At the end of 2017 he began operating through a sole proprietorship registered as simply “AUPS.” His business was international and involved some clients outside Canada. He also on occasion imported conveyer parts and conveyers into Canada and so had an import license and knew how to work with a broker to arrange for shipments.

[8] Beginning around 2018, Mr. Kaba’s business began to slow down. The manufacturer he had worked with for 25 years died suddenly. Without access to this manufacturer’s products, Mr. Kaba’s prices became uncompetitive and his bids on projects were increasingly unsuccessful. Starting in 2018, he began driving for Uber to get by while doing occasional work on conveyer projects. By March, 2020, he was essentially driving for Uber full time while trying to maintain his business in some form.

[9] Mr. Talebi was 48 years old at the time of trial. He was born in Iran and came to Canada in June 2002, leaving five siblings who now live in Kuwait. His first language is Farsi and his English is not fluent, and so he testified with the use of an interpreter.

[10] Mr. Talebi testified that at the time of the relevant events, he was supported primarily by ODSP. He also worked as a middleman for mortgage brokers and real estate agents, referring clients from Gulf countries to them for cash commissions. His siblings had also become very wealthy in the jewellery business and would occasionally send him money.

The Relationship Between the Defendants

[11] The defendants met each other at the Niagara Falls casino around 10 years before the events at issue in the trial. They became friends through a mutual interest in gambling and through regularly seeing each other at casinos. In 2019, they became closer friends, seeing each other several times a week, usually at the Woodbine Casino. They would borrow small sums from each other or sometimes Mr. Talebi would have Mr. Kaba place bets on his behalf if he was enjoying success.

[12] Mr. Talebi’s full name from his birth certificate is “Hasan Ali Talebi Rad.” He is generally known as “Ali” and this is how Mr. Kaba addressed him. He and others call Mr. Kaba “Ras” as a short form of his first name.

Sohrab Hanareh-Mafarani

[13] The defendants were previously charged jointly with Sohrab Hanareh-Mafarani, whose charges have now been severed. Mr. Talebi testified that he met Mr. Hanareh-Mafarani through a mutual friend at an Iranian plaza in September, 2019 and they struck up a friendship. Mr. Hanareh-Mafarani told him that he worked in stonework and offered a 10% commission for referrals. They exchanged phone numbers and would speak on the phone occasionally. On one occasion Mr. Hanareh-Mafarani invitedMr. Talebi to see some of the work he had performed at a client’s residence.

[14] Mr. Kaba testified that he never met Mr. Hanareh-Mafarani. Mr. Talebi testified to seeing them both at the casino on one night but said that he did not see them interact and did not know them to be acquainted with each other. Telephone records show interactions between Mr. Talebi and Mr. Hanareh-Mafarani but no contact between the latter and Mr. Kaba.

The Shipment of Food

[15] The earliest documentary evidence about the shipment that contained the opium is a bill of lading from Maersk shipping dated December 26, 2019. It describes a shipment of edible spices due to travel from the port of Karachi to the port of Montreal and from there to Toronto. The recipient is listed as AUPS Inc. with Rasim Kaba as the contact person with a phone number and post office box associated to Mr. Kaba and an email address of kolman1216@yahoo.com.

[16] The broker who assisted with the shipment was Hossein Afzali of Global Golden Gate. Phone records show that the first recorded contact of a phone of either defendant with Mr. Afzali is a call from Mr. Talebi on September 6, 2019. Mr. Talebi’s phone had been in contact with a phone associated with Mr. Hanareh-Mafarani two days earlier.

[17] An invoice and packing list for the shipment dated January 3, 2020 was found among Mr. Kaba’s possessions upon his arrest. It reflects a total value of $20,000 U.S. for 1571 cartons of food including noodles, desserts, and spices. The same address and consignee information from the bill of lading is present.

[18] While both defendants agreed that they eventually worked together on the receipt of the shipment, they gave diametrically opposed accounts of how this came about.

Mr. Kaba’s Evidence

[19] Mr. Kaba testified that he was not involved with the shipment until January 2020, and first heard about it in mid-January when Mr. Talebi approached him and asked for help with the importation process for a shipment of food he wished to bring from overseas. Mr. Talebi said the shipment would earn him $20,000 and offered to pay Mr. Kaba something if he would help. Mr. Kaba declined on the basis that he did not have enough information. He refused again when Mr. Talebi approached him a few days later.

[20] Ultimately, Mr. Talebi asked a third time and provided more information. He said that Mr. Kaba’s role would be limited to assisting with the shipping process through a licensed custom broker who had already been hired. Mr. Talebi made an emotional appeal, saying that this business deal was a chance for him to prove himself to his family. Mr. Kaba asked for a list of the items to be imported and Mr. Talebi sent a screenshot of the invoice. Mr. Kaba then agreed to help. He testified that he did so primarily to be of service to his friend, and expected a small amount from Mr. Talebi in return, perhaps a couple of thousand dollars. He understood that Mr. Talebi would cover all of the expenses associated with the shipment.

[21] Mr. Kaba denied any involvement in the preparation of the bill of lading that identified his business as the consignee. He testified that the information on the bill of lading about his business was out of date but was consistent with the contact information he had on his business’s website at the time. He first received the bill of lading at a meeting at the broker’s office and noticed the out-of-date information and asked that it be corrected. He assumed Mr. Talebi had given them this information from his website. He did not notice at the time that the bill of lading had a date before he had even been approached about assisting with the shipment.

[22] Mr. Kaba denied that he had ever used the email address listed on the bill of lading before. That address and an apparent password for it was found on a slip of paper in his possession on his arrest. He testified that Mr. Talebi gave him the address and password as one that had been used to communicate with Mr. Afzali so that Mr. Kaba could use it for this purpose. He believed that this took place shortly after their first meeting with the broker when they were discussing a correction for the itemized invoice that was to be sent to Mr. Afzali.

Mr. Talebi’s Evidence

[23] Mr. Talebi testified that it was Mr. Kaba who approached him in mid-January 2020 and asked for assistance with the shipment. He showed Mr. Talebi a list of food items he was bringing from Pakistan and the prices for each and asked for his help in selling them to Iranian stores. There were to be two containers with over a thousand boxes of food. He offered to share the profits for any food Mr. Talebi helped to sell 50/50. As part of these efforts, they went together to a Pakistani store to explore the pricing of some of the food items to be imported. Mr. Talebi asked how he could afford this importation and Mr. Kaba replied that he had been extended credit.

[24] Mr. Kaba told him that he had been using an Indian broker who had quoted him a high price for his services. Mr. Talebi opened a local Iranian newspaper one day while in Mr. Kaba’s company and saw an advertisement for Mr. Afzali. They immediately called and arranged to meet with Mr. Afzali. At this meeting, Mr. Talebi greeted Mr. Afzali in Farsi and made introductions but had no other role. Mr. Kaba brought the paperwork and did all of the talking. Mr. Talebi testified he had no other contact with Mr. Afzali. He did not place any phone call from his cell phone to Mr. Afzali’s number in September 2019 and could not explain why this would appear in his phone records.

The Police Investigation and Interception of the Shipment

[25] The police investigation began on January 15, 2020, when the RCMP received information that opium was bound for Toronto in a shipping container. The police targeted Mr. Kaba as the consignee and the two listed owners of AUPS Inc., placing them under surveillance.

[26] Pursuant to a general warrant, the shipment was intercepted by the RCMP after its arrival in Canada on February 14, 2020. The police took the two containers to a covert location in Toronto. They discovered opium in one of the two containers. The opium was concealed in boxes of turmeric powder. A logo reading “Mehar Masala” was written on the outer boxes containing the opium. The shipment also contained many other boxes with pasta and other inexpensive food products. These boxes were labelled differently. The shipment contained 507.563 kilograms of opium with a street value of between $12.6 and $35.5 million.

[27] Officer bought bricks of clay to mimic the weight and consistency of opium and substituted this clay for the opium in each of the turmeric boxes, leaving a small amount of opium in one box. The officers sealed the boxes lengthwise with tape in an attempt to replicate what boxes would look like when they arrived from a factory.

The Rental of Storage Units

[28] On February 24, Mr. Kaba and Mr. Talebi attended Access Storage at 150 Duncan Mill Road in North York. They rented two units with a move in date of February 26, 2020, at a cost of $1,175 plus tax for each unit for a month. Mr. Kaba’s name was incorrectly recorded as “Rasim Koba.” The agreement otherwise has Mr. Kaba’s contact information.

[29] Surveillance video depicting the Access Storage parking lot appears to show Mr. Talebi reach into Mr. Kaba’s pocket as they walked towards the entrance of the storage office on their way to arrange this rental. Mr. Kaba testified that this was Mr. Talebi providing him with cash to cover the cost of the rental. He testified that Mr. Talebi told him he did not have his identification with him and so asked Mr. Kaba to put his own name and contact information on the agreement.

[30] Notably, Mr. Kaba had earlier leased a unit at a different Access Storage location for the month of February for $470 plus tax. When this was pointed out in cross-examination, Mr. Kaba testified that he had done this at Mr. Talebi’s request and that Mr. Talebi had accompanied him at the time but had again not had identification he could use to rent the unit himself. Mr. Kaba testified that Mr. Talebi ultimately said that the unit was too small, leading them to rent the larger units at 150 Duncan Mill Road. The earlier rental agreement features a different phone number. Mr. Kaba testified that this number would have been provided by Mr. Talebi in advance and was not his.

[31] Mr. Talebi testified that he simply accompanied Mr. Kaba to rent the storage units but that Mr. Kaba made all the decisions. He testified that he is not sure what he was placing in Mr. Kaba’s pocket as depicted on the surveillance video. If it was money, it was perhaps a loan for gambling. Mr. Talebi also testified that perhaps it was candy.

The Intercepted Communications

[32] On February 25, the police began to intercept Mr. Kaba’s phone calls pursuant to a wiretap authorization. Beginning on February 28, they intercepted a series of calls relating to the status of the shipment. First, a representative of the broker informed him that one of the two containers was on the rails and would arrive the night of February 28, while the second had not yet travelled. She said there had been delays due to rail blockades then taking place as part of a series of indigenous protests. Mr. Kaba questioned whether it was normal for the two containers to have been separated and said he had been checking Maersk’s website for status updates.

[33] Later that day, Mr. Kaba spoke with Mr. Afzali who told him that there had been an issue with Maersk’s systems and that he had confirmed that the containers had arrived at the CP terminal and that they would both be delivered on Monday, March 2. Mr. Kaba and Mr. Talebi were recorded attending Access Storage that evening.

The Events of March 2

[34] At 8:18 a.m. access records and surveillance videos show that Mr. Talebi attended the Access Storage units that Mr. Kaba had rented. He had not recalled doing this during his examination in-chief and had originally testified that he did not receive the key and access code for the unit from Mr. Kaba until that afternoon.

[35] Shortly after 9:00 a.m., Mr. Kaba phoned Mr. Afzali to say that he had four or five people waiting to unload the containers and asking when they would be delivered. Mr. Afzali said he would follow up.

[36] At 10:45 a.m. Mr. Afzali called back and said that the terminal was advising him that one of the containers had not actually arrived despite contrary information from their computer systems and that the other container could not be located. Mr. Kaba expressed incredulity. Mr. Afzali said that there was “chaos” in the terminal and that he would continue to make inquiries.

[37] A cell phone associated with Mr. Hanareh-Mafarani appears from cell tower data to have travelled from a location near Access Storage towards Newmarket, where Mr. Hanareh-Mafarani resided, between 10:24 and 11:25 a.m.

[38] Following the 10:45 a.m. call, Mr. Kaba and Mr. Talebi met at a Second Cup coffee shop at Bayview Village Mall. Mr. Kaba appears on surveillance videos to be showing Mr. Talebi something on a tablet. Both men testified that they were tracking the status of the shipment in Maersk and the terminal’s online systems.

The 11:40 a.m. Intercept

[39] They then went to Mr. Kaba’s vehicle where he placed a call to Maersk at 11:40 a.m. While on hold waiting to be transferred, Mr. Kaba and Mr. Talebi had a conversation in the background captured by the police intercept. There was hold music playing and the conversation is partially inaudible. This conversation is a cornerstone of the Crown’s case. The transcript is agreed to be accurate and accords with what I can and cannot hear on the intercept.

[40] Mr. Kaba can be heard angrily berating Mr. Talebi for saying “it’s okay” and “don’t worry about it.” The conversation continues:

Mr. Kaba: Are these guys…
Mr. Talebi: Yeah.
Mr. Kaba: Yeah, but this is just guess, it’s what they say. But right now you cannot accept this type of thing, okay. It’s not only macaroni in the hands of somebody else, it’s (indiscernible), alright? You don’t want anybody open and wonder, what is this? Oh, this is not ours. I’m telling you a story, you’re not giving a shit about what I’m saying. It’s possible it can be shipped somewhere else, it’s possible. Cause of the chaos, maybe… just on the papers they show it's off, but it’s not off. Maybe it’s not off, right. You don’t know anything.
Mr. Talebi: But it shows one in there. You can’t, you can’t have (indiscernible)
Mr. Kaba: Ali, Ali, fuck the paperwork. Paperwork, uh, is not correct. Hossein says he received an email saying that they both are here but then, then another, uh, on the phone they say, no, one is not here, one is not in Toronto.
Mr. Talebi: (Indiscernible) did someone bring one?
Mr. Kaba: I did, but I didn’t believe him that it would be delivered here, because they couldn’t find it yet. They have to find it first. He’s hundred percent sure what his delivery guy says. ‘Kay, now between you and me, between you and me, like can they do some monkey business and collect this, these guys.
Mr. Talebi: Maybe, yeah.
Mr. Kaba: Listen to me.
Mr. Talebi: I am.
Mr. Kaba: Listen to me.
Mr. Talebi: (Indiscernible)
Mr. Kaba: Listen to me. These people, they (indiscernible), Hossein maybe works with these people.
Mr. Talebi: No, they do not. No, I swear I know something, you and you know something and my (indiscernible). (Indiscernible) do this regular business deal.
Mr. Kaba: But they know Hossein.
Mr. Talebi: Hossein doesn’t (indiscernible).
Mr. Kaba: Hossein knows wh-, wh-, what, who, where to pick it up from.
Mr. Talebi: I know where, but he does not, he cannot.

[41] The defendants then continued to discuss the delay and the fact that Mr. Afzali was responsible for paying the delivery people waiting at the shipping facility.

The Evidence of the Defendants About the 11:40 a.m. Intercept

[42] Mr. Kaba testified that, during the meeting in the Second Cup, he explained the loss of the containers to Mr. Talebi and found his response unusual. Mr. Talebi appeared unconcerned and to not be paying careful attention, simply repeating “it’s OK.” Mr. Kaba found this frustrating.

[43] Mr. Kaba was surprised and troubled by the apparent disappearance of the container after it had been in the terminal, something that he had never experienced before in importing goods. He testified that in the conversation captured on the intercept, he was floating the possibility that Mr. Afzali and the delivery persons working with him might have taken the containers. He acknowledged that with hindsight, this was a “silly” suggestion. He testified that his references to “these people” meant persons working for Mr. Afzali.

[44] Mr. Kaba testified that his comment that it was “not only macaroni” that might be in the hands of somebody else reflected the fact that he understood there to be other more valuable food items also in the shipment.

[45] Mr. Talebi testified that he did not have a strong memory of this conversation but he did recall that the gist of it was that Mr. Kaba believed that Mr. Afzali might have stolen the goods in the shipment, and that he was assuring Mr. Kaba that this was not the case and that whatever happened was nothing to do with Mr. Afzali.

The Delivery of the Shipment

[46] The defendants ate lunch at Longo’s. At 12:11 p.m., Mr. Afzali called back to say that the containers had been located and would be delivered between 4:00 and 5:00 p.m. Mr. Kaba testified that he had promised to help his daughter with her essay for her studies at Seneca College and travelled in that direction that afternoon. He then worked as an Uber driver that evening. He never attended the Access Storage location during or after the delivery.

[47] Mr. Talebi agreed that Mr. Kaba had not attended Access Storage that day, saying that Mr. Kaba had told him abruptly that his daughter was sick and that he had to attend to her. Mr. Talebi, seeming very aggrieved about this, testified that it had not been part of the plan and he was surprised to be given the key and access code for the storage area and asked to manage the delivery himself.

[48] Surveillance video at Access Storage shows Mr. Talebi arrive at 4:28 p.m. and then return at 5:26 p.m. leading a group of men into the storage area. In between he texted Mr. Kaba to ask him to call Mr. Afzali to see what was happening. At 5:50 p.m. Mr. Kaba was seen by the police at a coffee shop in the general neighbourhood of the Access Storage location. At 6:21 p.m. Mr. Kaba received a call about the shipment from an unknown man and directed the man to the back of the Access Storage building.

[49] A phone associated with Mr. Hanareh-Mafarani registered with a cell tower near Access Storage shortly after 7:30 p.m. and a car registered to his son was seen by police officers parked in a nearby location giving a view of the loading docks where the shipment was being unloaded shortly after that time.

[50] Mr. Talebi testified that he managed the unloading of the shipment between around 5:00 p.m. and between 2:00 and 3:00 a.m. After the unloading of the first container, he noticed that some of the boxes appeared damaged. He moved these around and later took two boxes appearing to be turmeric powder that he intended to take home as samples of the imported food items. He testified that he did not see Mr. Hanareh-Mafarani that night and remained totally unaware that he might have any role in the shipment.

Further Police Actions and Mr. Kaba’s Arrest

[51] The police had an electronic alert that revealed that the door of the container with the substituted shipment had been breached at 8:12 p.m. on March 2 but they elected to continue their observations in the hopes of gathering more evidence and identifying other persons associated with the shipment.

[52] During the course of the day on March 3, both Mr. Hanareh-Mafarani and Mr. Talebi called the same phone number of an unknown person. The call by Mr. Hanareh-Mafarani was placed while his phone accessed a cell tower near the Access Storage location. Shortly after 5:30 p.m. both his phone and Mr. Talebi’s phone registered in the same general area. The loading dock at Access Storage was opened using Mr. Kaba’s code at 6:15 p.m. and both Mr. Hanareh-Mafarani and Mr. Talebi’s phones registered in the area shortly afterwards.

[53] In the early evening of March 3, the officer in charge of the investigation received information suggesting that the loss of the opium had been discovered by the persons responsible for the importation. The police elected at this point to attempt to disclose to anyone they believed to be involved in the shipment that they had seized the opium in an attempt to forestall any violence that might result if the persons responsible believed that they had been robbed.

[54] At this time, the police believed that they had grounds to arrest only Mr. Kaba and had not yet identified the “Ali” he spoke to on the intercepted phone call as Mr. Talebi. They had also observed two vehicles on March 2 near Access Storage that they suspected were involved in the shipment. One was associated with Mr. Talebi and his nephew Saroush and the other, as described above, with Mr. Hanareh-Mafarani’s son. Police officers were dispatched to the addresses registered to the vehicles to pass on the message that the police had seized the opium.

[55] Officers first attended Mr. Hanareh-Mafarani’s residence and spoke to him and his son, telling them that the police had seized opium from the shipment. An officer then attended the residence of Mr. Talebi’s nephew who was not home. He spoke to Mr. Talebi’s niece Maryam and asked her to get a message to Mr. Talebi and his nephew that the police wished to speak to them. He then went to Mr. Talebi’s address but could not locate him. Mr. Talebi never contacted the police to follow up on this inquiry and the police made no further efforts to contact him.

[56] Mr. Kaba was arrested at around 9:42 p.m. on March 3 at an AirBnb rental in Scarborough. Police seized his cell phone and a tablet. In searching his jacket, they also found a renewal notice for Mr. Kaba’s post office box with a handwritten note on it that appears to read:

1 week after shp.
A gets 20,000
R gets 10,000 of it
One week after complete 30,000

[57] When asked about this note, Mr. Kaba testified that he wrote it while on the phone with Mr. Talebi during the conversation in which he ultimately agreed to assist with the shipment. Mr. Talebi was predicting a total profit of $30,000 of which he suggested Mr. Kaba would receive $10,000. Mr. Kaba said that he did not take these numbers especially seriously and that Mr. Talebi seemed to be simply throwing figures around. He expected to be paid something less than $10,000.

[58] On March 4, the police entered the storage locker at Access Storage and found that many of the Mehar Masala boxes in which the opium had been located had been opened and then taped back up. This was apparent because the boxes were taped width-wise while the police had taped the boxes length-wise only, as is documented in photos of the substitution process and taken from the storage locker. A roll of packing tape was also present in the locker. The police changed the lock and sealed the locker.

Mr. Talebi’s Evidence About Events Following Mr. Kaba’s Arrest

[59] Mr. Talebi testified that he was unaware of Mr. Kaba’s arrest. He called Mr. Kaba on March 4 but Mr. Kaba did not pick up. He assumed Mr. Kaba was occupied with something else and thought nothing of this. He also did not receive the message that the police were looking for him. He did recall that at some point he spoke to his niece Maryam and learned that somebody had been looking for him or Saroush but testified that he received no other information about this.

[60] Shortly after the delivery of the containers, he began to have more frequent contact with Mr. Hanareh-Mafarani, who started to call him from an unknown number rather than his previous phone, telling Mr. Talebi that his number had changed. Mr. Hanareh-Mafarani arranged to pick him up and take him for lunch around March 4 and asked him about his business arrangements. He took Mr. Talebi out for lunch again the following day. The shipment was not discussed and Mr. Talebi testified that he was unaware that Mr. Hanareh-Mafarani had any involvement with it. He also never mentioned Mr. Kaba and Mr. Talebi knew of no connection between them.

[61] On March 9, Mr. Hanareh-Mafarani again called and invited him to lunch. Mr. Hanareh-Mafarani picked him up in his vehicle and asked to stop at his own residence on the way to the restaurant. He invited Mr. Talebi in.

[62] As soon as he entered the residence, Mr. Talebi was struck in the back of the head with a construction hammer. He was taken to the basement where he endured a 16-hour ordeal at the hands of Mr. Hanareh-Mafarani and his son while taped to a chair. Other persons who contacted Mr. Hanareh-Mafarani over Whatsapp, one from Vancouver and one from Iran, participated in interrogating Mr. Talebi, accusing him of stealing two tons of drugs and of employing the police to falsely claim to have seized it. They demanded to know where he had stored the drugs. His mouth and nose were taped to mostly obstruct his breathing and he was struck further with the hammer causing injuries to his ankles, knees, and eye. Mr. Hanareh-Mafarani produced a knife and threatened him with emasculation. He tied wire tightly around his scrotum and hung him from the ceiling. There were threats that his fingers would be cut off and one was broken.

[63] Mr. Talebi testified that he was bewildered by these events. Mr. Hanareh-Mafarani and the others told him that they had discovered his theft by consulting GPS tracking of their container while it was in Montreal and seeing that it had been held up somewhere on Highway 15. He did not connect what they were saying with the shipment he helped Mr. Kaba with until after these events were over. He had no idea why Mr. Hanareh-Mafarani and his associates would believe that he had stolen their opium and indeed Mr. Hanareh-Mafarani told him during the ordeal that he knew that Mr. Talebi was innocent of this.

[64] After many hours, Mr. Hanareh-Mafarani produced a saw and threatened to dismember Mr. Talebi. At around 3:30 a.m., the torture paused. Mr. Talebi managed to free himself from his restraints and flee the residence, closely pursued by Mr. Hanareh-Mafarani and his son. He located a neighbour while screaming for help and Mr. Hanareh-Mafarani broke off his pursuit. Mr. Talebi was taken to the hospital and made a police statement about what had happened.

[65] During cross-examination by Ms. Davis-Ramlochan, he acknowledged that he had told the police at this time that Mr. Hanareh-Mafarani only imported large quantities of opium and that it was always from Pakistan. He testified that he was told this during the torture. He did not connect this at the time to the food shipment Mr. Kaba imported from Pakistan.

[66] Mr. Talebi was arrested on March 13 after police obtained surveillance video from Access Storage and saw him entering the unit on March 2. On March 16, the police executed a warrant on the storage locker which remained sealed after their entry on March 4. It was again apparent that many of the Mehar Masala boxes had been opened and re-sealed. None of the other boxes appeared to have been opened.

[67] It was an agreed fact that Mr. Talebi’s fingerprint was found on the sticky side of the tape used to re-seal one of the Mahar Masala boxes. Mr. Hanareh-Mafarani’s fingerprints were found on the sticky side of the tape of four of the boxes. Mr. Hanareh-Mafarani’s fingerprints were also found on the clay that was placed in the boxes to replace the opium.

Legal Principles

[68] The burden of proof lies on the Crown. It requires proof of the essential elements of the offences charged beyond a reasonable doubt. While the Crown is not required to meet the impossibly high standard of proof to an absolute certainty, proof beyond a reasonable doubt falls much closer to absolute certainty than it does to proof on a balance of probabilities.

[69] Both defendants testified and I have approached their evidence in accordance with the very well-known principles established in R. v. W.(D.), [1991] 1 S.C.R. 742. Given that the case depends on circumstantial evidence, I am governed by the approach established in R. v. Villaroman, 2016 SCC 33. A trier of fact must consider whether the circumstantial evidence gives rise to reasonable inferences other than guilt. Such innocent inferences do not need to be based on proven facts and the trier of fact must consider other plausible theories which are “reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.” To prove guilt, the Crown must disprove such reasonable possibilities but does not need to disprove every possible speculative conjecture which might be consistent with the innocence of the accused.

Credibility Findings and Conclusions

The Credibility of Mr. Talebi

[70] I have considered the credibility of each of the defendants in the context of the whole of the evidence. I will begin by discussing the evidence of Mr. Talebi.

[71] Mr. Talebi faced a number of challenges in his testimony. He testified through an interpreter, which unavoidably affects the precision of his choice of words and I take that into account in assessing inconsistencies and his relative responsiveness to questioning. He also testified that the passage of time has left him with a poor memory for dates and times and other details. He reasonably said that his experience of being tortured affected him psychologically in discussing these events in his police statements and at trial. It is also understandable that a person testifying in their own defence on serious criminal charges might be nervous and defensive.

[72] Even making the maximum possible allowance for these factors, I am nonetheless forced to conclude that Mr. Talebi was a very poor witness who gave his evidence in an evasive and argumentative manner and whose testimony is irreconcilable with other reliable evidence and established facts.

[73] There are two particularly obvious examples: first, Mr. Talebi was unable to explain the phone call apparently placed from his phone to Mr. Afzali in September, 2019, a call that was close in time to contact he had with Mr. Hanareh-Mafarani and that is completely inconsistent with his narrative of events at trial. Second, Mr. Talebi was equally unable to explain how his fingerprint came to be on the sticky side of the tape used to re-seal the Mehar Masala boxes after Mr. Hanareh-Mafarani evidently opened and examined them and discovered the clay in place of the opium. Mr. Talebi went so far as to reject the agreed fact that this is where his fingerprint was located.

[74] I also conclude Mr. Talebi’s version of events is so wholly implausible as to be reasonably incapable of belief. His account features a series of unusual and unfortunate coincidences. His evidence implies that Mr. Kaba and Mr. Hanareh-Mafarani, two friends of his who were seemingly unconnected to each other, somehow came to conspire together to import opium and to involve Mr. Talebi for little apparent reason while hiding from him the nature of their objective. Even more unlikely is his evidence that in a shipment of some 1500 boxes, he happened to innocently open only the very type of boxes in which opium had been concealed in order to take “samples” of food items.

[75] The pattern of communication between Mr. Talebi and Mr. Hanareh-Mafarani, the movement of their phones, the location of the fingerprints of the two men, and the eventual kidnapping and torture of Mr. Talebi by Mr. Hanareh-Mafarani, are also in my view only reasonably explicable if Mr. Talebi was working for Mr. Hanareh-Mafarani to coordinate the shipment with full knowledge that it contained opium. I find that Mr. Talebi knew which boxes contained the drug and that, whether or not Mr. Talebi opened the Mehar Masala boxes on the night the shipment first arrived, the two men opened the boxes and re-sealed them while together later on March 3.

[76] I do not believe the evidence of Mr. Talebi, nor does it leave me with a reasonable doubt.

Mr. Kaba’s Credibility

[77] Mr. Kaba testified that he suffered a head injury while incarcerated before eventually receiving bail, and that this may have affected his memory. Nonetheless, unlike Mr. Talebi, there was nothing about his manner of giving evidence that I found cast doubt on his credibility.

[78] There are though issues with the substance of his evidence. I find it difficult to reconcile the amount of effort he put in to assisting with this shipment with the limited benefit he testified that he expected to receive and with his apparent lack of curiosity about many of its details.

[79] Mr. Kaba’s testimony about what he understood the shipment’s value to be was not particularly precise. The bill of lading found in his possession gave a value of $20,000 U.S. His handwritten note appears to contemplate a profit of $50,000 for him and Mr. Talebi, though he testified that the correct interpretation is that it reflects a profit of $30,000. He said that this was Mr. Talebi simply throwing numbers around and that he did not take this particularly seriously despite writing it down. He said his main motivation was to assist his friend.

[80] Mr. Kaba may well be a generous friend. It is clear from the evidence however that he devoted a substantial amount of time and effort to the shipment at a time when he was in a difficult financial situation. He attended the broker’s office for a meeting, rented two sets of storage units, dealt with the shipping process, and attended a food store which he testified was to check the ingredients of one of the food items to be imported to ensure that the paperwork was completed properly. He was also responsible for extensive communications with their broker. I understand his evidence that he felt a responsibility after agreeing to act as the consignee. Nevertheless, it is difficult to avoid the conclusion that he expected a significant financial benefit from the importation.

[81] Given this and the amount of time he spent on the shipment, much of it in the company of Mr. Talebi who he in any case saw regularly, one would expect Mr. Kaba to have sought more information about how this shipment was going to be profitable for his friend. Mr. Kaba appears to be an intelligent person who has education and experience in running a business. Mr. Talebi lacks that experience and apparently needed assistance with the basic paperwork required. Mr. Kaba would have no reason to trust his business acumen. Mr. Kaba also described himself as initially skeptical and reluctant to agree to any involvement in the deal.

[82] I would have expected Mr. Kaba to wonder exactly how Mr. Talebi came to be involved in the importation of food, who was going to buy the somewhat random assortment of food products, and how much they were going to pay. I am troubled by the number of hours and amount of effort Mr. Kaba spent on this deal with no apparent understanding of how Mr. Talebi was going to realize large profits on what the bill of lading characterized as $20,000 of food. The two men also wasted hundreds of dollars on storage units rented before the containers arrived that were apparently the wrong size. This was a negligible expense in view of the actual value of the cargo but would be a significant amount of money thrown away given what Mr. Kaba says his understanding was of its value. I would again have expected this to have prompted pointed questions about whether Mr. Talebi knew what he was doing and what the financial arrangements for the cargo would be.

[83] There are other objectively suspicious features of the deal that might be expected to raise concerns and obvious questions. These include the apparent need to use the “kolman1216@yahoo.com” email address rather than Mr. Kaba’s own and more generally Mr. Talebi’s insistence on Mr. Kaba’s name and information appearing on all paperwork, often with subtle misspellings or discrepancies.

[84] Whether or not Mr. Kaba’s testimony and Ms. Davis-Ramlochan’s persuasive advocacy might otherwise have raised a reasonable doubt, Mr. Kaba’s credibility evaporates in the face of the March 2, 11:40 a.m. intercepted conversation with Mr. Talebi.

[85] I appreciate that this intercepted conversation was partially inaudible and I have considered it in light of R. v. Merritt, 2023 ONCA 3 and the cases considered in that decision. I do have the benefit in this case of testimony from both participants in the conversation and their agreement that the general context was Mr. Kaba’s suspicion that Mr. Afzali might have stolen the shipment, a suspicion that Mr. Talebi dismissed.

[86] I conclude that Mr. Kaba’s words and tone in this conversation cannot be reconciled with his overall position at this trial. The conspiratorial tone of the conversation and Mr. Kaba’s degree of agitation and suspicion that their broker stole the shipment are perfectly understandable if he was aware that the shipment contained very valuable contraband. By contrast, these features of the conversation would be absurd and incomprehensible if he believed this be a shipment of relatively inexpensive food items in which he had little-to-no financial stake. His explanation for questioning Mr. Talebi about whether Mr. Afzali was working with “these people” is also in my view nonsensical.

[87] On the evidence as a whole and notwithstanding the inaudible portions of the conversation, I find that the only reasonable interpretation is that Mr. Kaba suspected that Mr. Afzali had stolen the opium, and that Mr. Talebi assured him that they knew of the presence of the opium and he knew where it could be found in the shipment, but Mr. Afzali lacked this knowledge and understood the importation to be a regular business deal.

Conclusions

[88] I do not believe the evidence of Mr. Kaba or Mr. Talebi, nor does either defendant’s evidence raise a reasonable doubt. I accordingly must consider whether the Crown’s evidence has proven the guilt of either or both defendant.

[89] I have considered Mr. Davoudi’s submission that a reasonable possibility arising from the evidence is that the defendants might have believed that the importation involved some form of criminality other than drug trafficking. However, I find that the only reasonable conclusion on all of the evidence is that Mr. Talebi in association with Mr. Hanareh-Mafarani was aware of the location of the opium in the shipment and that both men opened the Mehar Masala boxes to look for it and re-sealed the boxes when it was not found. I infer from this that Mr. Talebi was aware that it was specifically opium, a drug with which he was familiar and that he could consequently have identified upon finding it, that was being imported.

[90] Given the March 2 11:40 a.m. intercept and the evidence of Mr. Kaba and Mr. Talebi’s close association and extensive work together in preparing for the shipment, I find that the only reasonable conclusion is that Mr. Talebi would have shared this knowledge with Mr. Kaba.

[91] I have no reason to believe that the defendants were otherwise involved in criminality and they appear to have been essentially patsies for the serious organized criminals who were ultimately responsible for the shipment. I conclude however that it has been proven beyond a reasonable doubt that they knew what they were doing, and that they jointly conspired with the actual organizers of the scheme to import and traffic opium in exchange for payment in the amounts reflected in the handwritten note made by Mr. Kaba, and that they took steps in furtherance of this goal both before and after the arrival of the drug in Canada.

[92] I find both defendants guilty on all counts.

Michael Dineen
Released: April 16, 2025