Court File and Parties

Court File No.: CR-24-338 Date: 2025-08-01

ONTARIO SUPERIOR COURT OF JUSTICE

Between:

HIS MAJESTY THE KING

Crown

- and -

MILCA DIBA KALANGA

Applicant

Before: Mirza J.

Counsel:

• Andrew Hrivnak, for the Crown
• Edmond Brown, for the Applicant

Heard: May 22, 23, 26, 28, and 29, 2025

Reasons for Judgment

Overview

[1] Milca Diba Kalanga is charged that on or about September 1st, 2023, she possessed cannabis for the purpose of exportation contrary to Section 11(2) of the Cannabis Act, S.C. 2018, c. 16.

[2] On September 1, 2023, Ms. Diba Kalanga attended at Pearson Airport in Toronto to board a flight to Lisbon, Portugal, with a final destination of London, Gatwick airport. She had travelled to Toronto from Ottawa.

[3] Ms. Diba Kalanga had checked in two bags.

[4] Canada Boarder Services Agency (CBSA) officers were conducting baggage inspections and had targeted the flight to Portugal.

[5] During the CBSA's examination of checked bags in a secure area of the airport, an officer selected one of Ms. Diba Kalanga's bags for examination. The suitcase was full of vacuum sealed packages believed to be marijuana or cannabis. Later as the investigation continued, a second bag was located, also containing cannabis.

[6] A total of 29.77 kilograms of cannabis was seized.

[7] The central issue is whether the accused had knowledge of the cannabis.

Procedural History

[8] The trial was conducted on May 22, 23, 26, 28 and 29, 2025. It started as a jury trial and then on consent of the parties there was a re-election to judge alone on May 26, 2025. This was due to disclosure issues that arose mid-trial in relation to text messages extracted from the accused's phone. Defence counsel requested time to obtain additional text messages.

Summary of the Evidence

Agreed Statement of Facts (ASF)

[9] The following facts were agreed to by way of an agreed statement of facts:

i. Date – On September 1, 2023, Ms. Milca Diba Kalanga arrived at the Toronto Pearson International Airport, 5980 Airport Road, Mississauga, Ontario.

ii. Jurisdiction – Ms. Diba Kalanga entered Terminal 1 of the Toronto Pearson International Airport on Air Canada flight AC455 from Ottawa, Ontario. She intended to board Air Portugal flight TP260 to Lisbon, Portugal. Her final destination was England.

iii. Identification – Officials of the Canada Border Services Agency ("CBSA") and of the Royal Canadian Mounted Police ("RCMP") arrested Ms. Diba Kalanga on September 1, 2023. She is the individual before the court in answer to the charge.

iv. Nature of Substance – The substance seized from Ms. Diba Kalanga's checked baggage tested as cannabis.

v. Weight & Value – The total amount of cannabis seized in this investigation was 29.77 kilograms. In 2023, average street prices of cannabis were as follows:

• Gram: $5.00 - $7.00 CAD
• Kilogram: $2000.00 - $4000.00 CAD

vi. Based on the above ranges, 29.77kg of cannabis would be worth between $59,540 and $208,390 CAD in 2023.

vii. Continuity – The drug, documentary, and personal effects exhibits tendered in this case are those seized by the CBSA or the RCMP from Ms. Diba Kalanga or her luggage.

viii. Authenticity of Cell Phone – The Black Samsung cell phone that the CBSA and RCMP seized from Ms. Diba Kalanga is her phone. The RCMP analyzed this phone and generated a report of extracted data. The report of extracted data tendered in this case is a true and accurate copy of the contents of Ms. Diba Kalanga's phone.

ix. Authenticity of Photobook – The Photobook tendered by the Crown in this case contains photos taken by RCMP Constable Kyle Miller on Sep 13 and 14, 2023. These photos depict the evidence seized from Ms. Diba Kalanga or her luggage. For further clarity:

• a. Page 12 depicts the lock used to lock Ms. Diba Kalanga's checked bags;
• b. Page 25 depicts two Apple Airtags (one from each checked bag).

CBSA Officers

Taylor Roden

[10] Taylor Roden has been a CBSA officer since 2017.

[11] On September 1, 2023, he worked on the immigration and enforcement team. He was working on the air side where outgoing bags destined for Europe were to be checked.

[12] He was working with officers Kudryk and Jansen.

[13] He explained the internal airport bag loading process where the bags are examined. The CBSA officers searched bags on flight TAP260 going from Toronto to Lisbon. At 16:03, the officers located a bag that they decided warranted further inspection.

[14] The accused's suitcase had her name tag on it. He described the suitcase as a large navy blue bag, with a brand "justpack." It was inspected by officer Roden pushing down on the bag to see if it was full. There was a lock on it. He used his handcuff key to get through the zipper to minimize damage. Inside, he found silver opaque vacuum sealed bags in numerous smaller packages. On top were two random black and blue t-shirts.

[15] Officer Roden explained that each checked baggage has a unique bag tag. A computer system shows a manifest with bags checked.

[16] The ramp agent was asked to check for a second baggage. Officer Roden waited for the baggage to arrive in the area. He waited a few hours, but it was still not located.

[17] At 17:05, officers Roden and Kudryk attended at the gate for the flight and arrested Ms. Diba Kalanga in the "finger" area of the boarding ramp to the airplane. She was taken to a private area and explained her rights. In cross-examination, he said he did not recall if she said anything.

[18] The baggage was taken to secondary inspection for further filing on a computer system and photographs.

[19] Later, a second baggage that was tagged with the accused's name was located at 19:31 by officer Gouveia and subsequently inspected. This bag also contained similar contents believed to be cannabis.

[20] Photographs of the contents were taken.

Adam Kudryk

[21] Officer Kudryk has worked with the CBSA for nine years in various enforcement roles.

[22] On September 1, 2023, he was working on airside duty, checking baggage and passengers.

[23] He was present for the arrest of the accused at Gate 181, noted as at 17:23.

[24] He identified three boarding passes for Ms. Diba Kalanga. A flight from Ottawa to Toronto #455; a flight from Toronto to Lisbon at 13:25; and a flight from Lisbon to London Gatwick at 16:55.

[25] The baggage numbers for the two checked bags were #772392 and #77293.

[26] Stickers were affixed to the back of the boarding passes. He observed that both tags, ending in 92 and 93, were to London Gatwick.

[27] The officers had the suitcase with tag ending in 92 available to examine. The second bag had not yet been located by officer Gouveia.

[28] He participated in the examination of the second bag in secondary inspection.

[29] He recalled that it was black and had a "Lucas" name badge on it.

[30] Inside were the same silver, vacuum-sealed bags containing cannabis. There was a shirt or cloth placed on top of it.

[31] He observed that this second baggage had been re-tagged. The new tag had a red border and was destined for London Heathrow (not Gatwick) Airport.

[32] In cross-examination, officer Kudryk agreed that the second baggage was destined for a different airport than the first baggage.

[33] He participated in the arrest and transportation of the accused to facilitate access to duty counsel.

Christopher Gouveia

[34] Officer Gouveia has been with the CBSA since 2007.

[35] On September 1, 2023, he was on airside duty. He was contacted by his superintendent and asked to keep an eye out for a baggage that the ICE team was looking for on Air Portugal (TAP). He did not have an identifier.

[36] He eventually located the baggage at 19:13 at Terminal 1, on the outbound lateral for London Heathrow.

[37] He recorded the baggage number as #0014AC772393. He observed that it had an overlay tag with a red border. At 19:32, he delivered the baggage to officer Roden.

[38] In cross-examination, he agreed that a passenger does not have control over their baggage once it is deposited. If the baggage was placed on a plane in Ottawa and was transiting through Toronto to London, the passenger would not see the baggage again. The passenger has no control over it after it is turned over, unless they request the baggage.

Ms. Diba Kalanga

[39] Ms. Diba Kalanga is 28 years old. In September 2023, she was 26 years old.

[40] She comes from a large family originally from Congo.

[41] She attends university and is entering her fourth year studying sciences. She wants to go to medical school.

[42] She described that her family immigrated to Canada in 2005, when she was nine years old, after they were able to escape a civil war. During this period, she witnessed violence and social breakdown.

[43] She lived in Montreal and then settled in Ottawa.

[44] Around the age of 11 years old, she was diagnosed with an eating disorder. As a result, she underwent treatment for several years at various in-patient and out-patient facilities. This was later combined with treatment for mental health issues.

[45] For a number of years into early adulthood, Ms. Diba Kalanga said that she struggled with her mental health, particularly with depression, anxiety, and PTSD.

[46] She was on ODSP but was later able to work steadily in retail positions and at a hospital.

[47] She described that while at an in-patient women's facility in Ontario, she met a young girl around 14 years old named Svetlana. Ms. Diba Kalanga was 16 years old. It was around 2013.

[48] She would later refer to Svetlana as Lana.

[49] They bonded during their time at the clinic, which was over a period of a few years. They became close long-term friends. In cross-examination, she explained that at the facility each person had their own room and participated in group therapy. They had meals together and spent recreational time with each other. There were about 11 to 12 other people at the facility at the time.

[50] She said Lana was like a little sister to her, and their families also met. Ms. Diba Kalanga admitted that they confided in each other and were close.

[51] Ms. Diba Kalanga left the facility when she turned 18 years old after "aging out" (reaching adulthood) and she returned to Ottawa. Lana remained at the facility until around 2015. They kept in touch.

[52] However, from 2015 to 2022, their contact was less frequent. She said they would communicate here and there. They would sometimes send each other messages on Snapchat. She described it as sporadic.

[53] They kept in touch consistently in the few years leading up to the alleged cannabis possession incident. In 2021 or 2022, Ms. Diba Kalanga stayed with Lana at her place in Mississauga, while in town for a young women's conference. Lana asked her to come and stay with her. During this trip, Lana met Ms. Diba Kalanga's pastor and sisters.

[54] In cross-examination, Ms. Diba Kalanga stated that in 2022, Lana disclosed that she was in an abusive relationship with a person named Jay. She later said that Lana had left that relationship before the time of the women's conference.

[55] In 2022, Lana was working as an exotic dancer. Ms. Diba Kalanga did not know what Lana was doing for work in 2023.

[56] In cross-examination, Ms. Diba Kalanga admitted that Lana was still sharing intimate details of her personal relationships.

[57] Sometime after May 2022, Lana told her that she was engaged to a person named "Tee". By around June 2023, Ms. Diba Kalanga learned that Lana had a baby and was married to Anthony, whom she later realized was the same person as Tee.

[58] In cross-examination, Ms. Diba Kalanga said that she was not told Tee's last name, nor did Lana tell her what Tee did for work at that time.

[59] Ms. Diba Kalanga and Tee met each other again in August 2023. She drove down to see Lana on August 7, 2023, and stayed until August 12 or 13, 2023.

[60] Lana had reached out, indicating that she needed help because the Children's Aid Society (CAS) was involved with Lana and her child. In cross-examination, she said Lana and Tee had taken their child in for check-ups after birth, and some concerns about abuse arose.

[61] When Ms. Diba Kalanga visited, she did not see any child safety concerns or partner abuse.

[62] Ms. Diba Kalanga said her involvement in the alleged possession of cannabis for the purpose of exporting began around December 2022. She had been speaking with Lana and complaining about school and stress. Lana mentioned to her about a company that pays for full vacations to Europe, suggesting that it would be a good break.

[63] In cross-examination, she said she was informing Lana that she was experiencing stress. Lana told her that it would be really good for her because everything is covered, describing it as super chill, super nice. At first, she thought Lana was joking because it's a whole trip. Lana said that she would put her in contact with a person. Then she connected her to Tee. The initial conversation was on Snapchat. (A copy of this discussion was not tendered in evidence).

[64] Lana told her that she would be bringing clothing and heels in her luggage for a clothing company, and in return, her trip would be fully paid for including expenses. Lana put her in contact with Tee, whom she did not know at the time was Lana's partner or husband.

[65] The Crown questioned whether Ms. Diba Kalanga asked Lana about why someone had to transport clothes instead of shipping them. She responded that she did not inquire, explaining that it didn't seem necessary to ask. Lana was telling her it was a trip. For Ms. Diba Kalanga, it was like if a sister or people from back home ask to take something, because they know you are leaving, and they say a cousin will meet you at the airport. She didn't see it as something for her to make sure people involved are not evil. She said it didn't cross her mind that they were transporting drugs. She was told it was clothes, and while going on vacation she needed to bring them in exchange for a free trip. Lana had said she worked with the company before. However, Lana did not tell her the name of the company.

[66] Ms. Diba Kalanga told Lana that she could go in December, a few days before Christmas because she doesn't celebrate the holiday. However, that date did not work out.

[67] Tee then set up a chatgroup with an associate named Simms. Ms. Diba Kalanga never met Simms and did not know the last names of either Tee or Simms.

[68] In cross-examination, she explained the context of how the topic came up. She said she was in Lana and Tee's guest room. She received a message from Tee from the App and he said that are you ready to go. He asked are you sure, and she said yes. She told him that she was in his house. He said he will create a group chat, which he did, including with Simms.

[69] Ms. Diba Kalanga explained the phone numbers from the data extraction. She explained that Telegram assigns a number that is not your phone number.

[70] She said her number ended in 5010. Tee's number ended in 8357, and Simms number ended in 8556. The telegram app based text messages were reviewed and filed. The sets of messages had some overlap in time and content.

[71] Ms. Diba Kalanga confirmed the accuracy and contents of sets of messages as authentic. Some were obtained through Crown disclosure, while others were obtained by the Defence at their request, mid-trial. (Although the Defence request for additional messages was late and should have been dealt with before trial, I confirmed with the Defence that they were satisfied that they were able to obtain the desired additional messages from the extraction of Ms. Diba Kalanga's phone and had enough time to review them to prepare.)

[72] However, Ms. Diba Kalanga thought that the timestamps on some messages may not be correct, as she recalled conversations during the day when they indicated early morning hours.

[73] Tee first contacted her in a direct telegram message on December 23.

[74] On December 23, 2022, Ms. Diba Kalanga messaged Tee that she wanted more information. He had said to her that he heard she was interested in the program. She testified that she had additional discussions beyond the text messages with Tee and Lana.

[75] She received a detailed message from Tee, timestamped at 20:57 p.m., which stated:

My Asian people have a program they've been running for years where they Basically need people to bring down expensive art for a fully paid vacay. So, they will book your flight, your Airbnb/hotels and transportation. The program is super organized they make sure everything goes according to plan. In the luggage's the art is going to be covered by a black material that makes anything inside of it undetectable. So, to the airport people, it will like the art isn't even in the bag. Outside of the black material, they're gonna pack the luggage's with clothes, shoes/heels and hygiene products so it'll look like you're simply going on a vacay because this is all that will show. On top of that they have a paid insiders at the airport that makes sure the bags get to the UK safely. Everything's super on point at all times.

Key instructions:

1. When you check in and get past security, go to the washroom and send a picture of your boarding pass. Afterwards, go to your gate for your flight.

In Manchester:

2. Do not pull out your phone when you get off the plane. Go to the baggage area, pick up the luggage's and exit the airport.

3. Don't loiter around.

4. When you are in the taxi and heading to your hotel, send me a picture of the luggage's.

5. When you arrive at your hotel, check in. You will receive further instructions from there.

6. We also bring electronics like iPhones and iPads. I usually find out what's in the bags the day of the drop.

[76] In this longer message, that explained the details about the program and trip, she said that she spoke to Lana about the technology used to cover the clothing. She did not speak with Tee about the technology or why he would make efforts to conceal the art. She said that she likely asked Lana about the art.

[77] When she was told in a separate discussion that it was clothing that would be transported, she stated that she did not ask Tee why the clothing could not be sent by FedEx. She said that in retrospect, should have asked.

[78] She was questioned by the Crown about the above noted message's reference to insiders and what she made of it.

[79] She stated, up until that point, she thought it was professional and organized. She said that "I know I didn't see that it was suss (suspect) and weird." She did not think that they have big insiders like something criminal. However, now looking back, she believes she should have been more concerned, but at the time, she didn't see this as illegal activity. She thought that they had someone who would help her if she got lost or if her luggage was lost, so that it gets to UK.

[80] She did not consider why the items were not simply shipped, rather than having someone bring them in suitcases, which would have been more costly.

[81] When challenged with the suggestion that it must have occurred to her that these were people paid from outside, she said that she understood it as third party at airport handling things, and that everything would go smoothly.

[82] She did not ultimately go on this particular contemplated trip.

[83] In examination in chief, her counsel read in many of the messages to confirm her knowledge and the planning for other trips since the other one fell through. In summary, she described that on February 2, 2023, she discussed with Simms doing a trip during her reading week, of February 19, for six days. They discussed how the trip would happen, and her comfort with navigating the airport and gates. Simms mentioned that he would bring his partner into the group discussion and that Ms. Diba Kalanga should have her banking information ready.

[84] On February 11, she messaged Simms about the travel plans, as she had not heard back. Tee asked Simms if everything was confirmed. Simms messaged that he tried, but the trip was not possible at that time. He said he would be getting new slots on the 14th. This trip also did not happen.

[85] On February 18, they discussed the money being sent over. Ms. Diba Kalanga testified that this was about the fact she was supposed to leave the next day, and the money was intended for booking the airline ticket and hotel. She told Simms, can you just tell me "yes or no for tomorrow. I have a life. I can't just be on standby."

[86] She generally thought that she would receive the money and then book the ticket. In later correspondence, she said they would tell her which flight and hotel to book.

[87] By February 28, Simms apologized for not being in touch, stating he lost his phone and didn't have a backup. He told Ms. Diba Kalanga, "Whenever you have 6 or 7 days free, message me. Also, I'll increase your pay by $1,000 for the inconvenience." Ms. Diba Kalanga responded, "Thanks. I appreciate. I'll keep you posted."

[88] In cross-examination, she interpreted the additional money offer as paying for expenses, but she was not told a concrete amount that she would be paid.

[89] On July 17, Ms. Diba Kalanga messaged Simms, "sorry, long time." She said she had not communicated with him again until July. She was willing to travel on August 6 or 7 for six days. Later, she said she was good from August 31 to September 5. In cross-examination, she agreed that she reached out to him to arrange new dates.

[90] On July 31 and August 1, she asked for an update. She said that Simms would just disappear. She didn't like that she would give up her shifts at her job on the expectation of a trip. She did not travel in July.

[91] In early August, she communicated with Simms again about a trip but did not hear back from him.

[92] By August 10, Simms told her that he will make sure that there is a "slot" for her.

[93] Around August 22 to 23, a person she testified that she believed was Patrick was added. She later corrected herself, stating that she did not know who the added person was. She did not speak to this person and does not know who they are.

[94] She sent a photo of her passport. She was asked if she had a covid vaccine and confirmed that she had. She also stated: "Need a step by step breakdown of what is expected of me, how to ensure everything goes well."

[95] This person told her that he would walk her through the steps.

[96] An excerpt of a call log from Ms. Diba Kalanga's phone from August 3, 2023, to August 17, 2023, was filed.

[97] She explained some of the calls. For example, she identified Lana's number ending in 1704. On August 17, she had a 41 minute call. This was shortly after she stayed with Lana from August 7 to 15. She said their calls were mostly about other topics. She surmised the last call may have been about the trip where they discussed her concerns about travelling and Lana reassured her that she would be safe because Lana works with these people.

[98] Ms. Diba Kalanga said that she did not ask Lana what would be in the suitcases. However, Lana had mentioned they would likely contain designer clothes and heels.

[99] Ms. Diba Kalanga said that they communicated mostly over Snapchat, and those conversations were not preserved on her phone, with the exception if she took a screenshot.

[100] A screen shot of a segment of their communication was filed, showing a photo of Lana with some overlayed text from the Snapchat app. In this photo, Lana described Tee as being abusive toward her and their daughter. She says Tee denied the abuse and did not want a divorce. She stated that Lana told her that Tee needed help and she was not staying with him.

[101] In cross-examination, Ms. Diba Kalanga said that she received this Snapchat communication a week or two after leaving Lana and Tee's home in August. She could not recall if they had a phone call afterward. She said it was the first time she learned of Lana's allegations of abuse by Tee. She agreed that she was learning Tee was abusive towards Lana and possibly their daughter, and that Tee was not being honest about the abuse.

[102] She was cross-examined that now that she had learned that Tee is potentially dangerous; potentially a liar, why would she still proceed to arrange a trip with Tee and his associates. She explained that she spoke with Lana after this Snapchat message. Ms. Diba Kalanga said that Lana had a problem with Tee that was resolved. Ms. Diba Kalanga did not feel like Tee was a liar to her. Lana knew that she was still planning to travel, and in the days following the message, she no longer believed that Tee was "cropped" out of her life. She still saw them together, and they had a second baby. Ms. Diba Kalanga spoke to Lana after, and she didn't have a problem. She concluded that Lana was safe and that they were not getting a divorce.

[103] Ms. Diba Kalanga described that she viewed her relationship with Tee as normal. She said that she stayed in his house. He shared a newborn baby with Lana and had a five-year-old son from a previous relationship. Although Lana had said Tee was abusive and dishonest, Ms. Diba Kalanga did not distrust him.

[104] She said that she thought they were professionals and they made sure she was safe.

[105] She said that she believed that she was taking shoes and heels, like Lana had told her.

[106] She said that no one told her she was transporting cannabis or drugs. No one told that she would be transporting anything illegal. She said she would not have agreed to take anything illegal.

[107] She was told to increase her bank limit for payments, which she did.

[108] She was told she could not book a flight that transited through the United States. When questioned what she thought about this instruction, she said that she thought it was weird that she could come back from the U.S. but not depart through it, but then said she didn't ask any questions. She said she did not think it meant they were trying to bring drugs.

[109] On August 30, She was asked if she had $227 to cover costs. She told them she did not. She said she thought she was talking to Tee, who already owed her money, so she did not want to agree. She said that there were text messages where she requested reimbursement of approximately $100 for paying for Lana to go to Wonderland. She never received the payment.

[110] However, she insisted that she did not necessarily distrust Tee at that time as a person. She believed the company that he was a part of would take care of her.

[111] She agreed the messages indicated how she would get to the hotel and that a driver would pick her up and she would be paid upon delivery. She said she did not ask how much would be paid.

[112] In the messages, she was also instructed directly:

Know your itinerary: flight return date etc. Your reason for travel is you are visiting friends. If anyone asks what you do for a living tell them your real job.

[113] She agreed that she was concerned that they are giving her fabricated reasons for the trip. After these messages, she indicated that she did not want any trouble, and they reassured her it was safe. She maintained that she believed she was taking clothes.

[114] She also remembered that she was told how to handle the airport maneuvers when she arrived. The following is a message with instructions that she received:

KEY INSTRUTION:

IN TORONTO

1. Message when you are about to board the flight and then again when the plane is moving IN LISBON.

2. Message when you are about to board the flight and then again when the plane is moving IN LONDON.

3. Do noy pull our your phone when you get off the place. Go to the baggage area, pick up the luggage's and exit the airport.

4. Don't loiter around.

5. When you are outside the airport and about to get into the taxi, send a picture of the luggages.

6. When you arrive at your hotel, check in. You will receive further instructions from there.

[115] She agreed that it was weird, why she would have to do and say things specific. She didn't think she would have to tell anyone. She said that she didn't think there was reason to lie.

[116] She said that she didn't think anything of the specific instructions. She thought it was about being told to be professional, not loiter, take photos, just get the bags and get out.

[117] She agreed that she asked questions about the duration of the trip and if she would be paid in addition to the vacation, as well. She was told the bags would be in the vehicle and that she should pack her clothes in a carry-on bag. She was told to wear a presentable outfit and not to wear hoodies or tracksuits. Her response to whether this caused her to be suspicious was that she thought she was being told to be professional.

[118] She was also told to send a photo of what she would be wearing when leaving Canada and to check two bags.

[119] She was also messaging and talking on the phone with her ex-girlfriend about the trip. She agreed that her ex-girlfriend was suspicious and told her to be safe. Ms. Diba Kalanga agreed that in retrospect that there were red flags and she didn't know why she was so trusting of them.

[120] She repeated that, at the time, she thought it was about professionalism, and that the company seemed legitimate. She thought that the person that referred her is tangible and through someone that she trusts. She didn't think that they were criminals.

[121] She was questioned in cross-examination about the "main instructions"

MAIN INSTRUCTIONS

1. When you get passed security, go to the washroom and send a photo of your boarding pass and baggage stickers then go wait for your flight. Let us know when you are boarding the plane.

2. In TORONTO, let us know when you land and again when you are boarding the plane.

3. In LISBON, let us know when you land and again when you are boarding the plane.

4. In LONDON, go to baggage claim, get the bags, and then take a taxi to the hotel. Send us a photo of the bags right before you get into the taxi. You will receive further instructions when you arrive at the hotel

[122] She was questioned by the Crown, if she thought that it was odd that they asked her to take photos in the bathroom? She responded, "No," and added that maybe she should have. She said that she didn't think anything of it.

[123] Additional messages from August 29 were explained. Ms. Diba Kalanga said that she was receiving text instructions from a person associated with number 2461. Initially, she testified she thought at the time, it was Simms, but in her testimony, she later said it was not Simms and that she didn't know who it was. She was under the impression she was taking clothes. She repeated that Lana told her it was mostly clothes. She did not ask Simms, or the person associated with number 2461 what she would be taking. She said she was not suspicious it could be something else.

[124] On August 29, she was messaged that $3,500 was deposited into her account via direct deposit.

[125] On August 31, she also messaged with her friend, Merola, who said to her : "bro I feel like you shouldn't go lol" – Ms. Diba Kalanga responded, "I am anxious and quite scared. Pray for me."

[126] She was asked why she was scared. She said that she was afraid of being abroad and alone for the first time. She thought that she would go missing and felt the need to tell someone. She also told her brother's girlfriend because she was feeling anxious.

[127] She said her friend Merola advised her to be careful and to do her research. Ms. Diba Kalanga said she looked up things to do in England.

[128] She also queried why someone would smuggle art or take over art or hide it. She didn't find anything.

[129] Her friend Merola told her to be careful. She also told her to check for worst case scenarios. Ms. Diba Kalanga interpreted that Merola's advice was about trip safety and travelling alone and not about transporting illegal items in the bags.

[130] Ms. Diba Kalanga did research and did not find anything weird. She did not find answers online and just wanted a trip. She didn't think that Lana would be involved in drug exporting. Overall, she concluded that she didn't think it was weird as she believed what Lana told her.

[131] On August 31, at 10:38, Merola asked her – "is it too late to back off?". She responded "yes ish."

[132] Then she said she just spoke to a different friend who has done it multiple times and had given her "all the deets" (details). This friend was Ashley, a friend of her brother.

[133] Ms. Diba Kalanga clarified that when she said Ashley had done it multiple times, she meant Ashley had travelled to the UK and taken bags for others, but not with the same company.

[134] In cross-examination, she agreed that by 2023 she was in her second year of university. She was working at Walmart to pay her expenses. She had bought a car. She was paying her tuition with student loans. She had a line of credit, and her sister helped her financially.

[135] For the September 1, 2023 trip, she said that she was sent the link by Simms for the flight and hotel, and she booked the trip. She thought that the ticket was paid for by the company.

[136] She explained how the day took place. She first saw the suitcases at the airport when the driver placed them on the trolley. When she was picked up, they had already been placed in the driver's car.

[137] She described the driver's vehicle as a van, with the bags located in the trunk. They arrived at the Ottawa airport, she got out of the vehicle and the driver helped her put the suitcases on the trolley. The driver confirmed her ID with her driver's license. She did not see the driver's face because he was wearing a mask and she did not get the driver's name. She tried small talk but did not ask him about the company, as she didn't think he would know anything. The drive was about ten minutes.

[138] The driver gave her cash for her taxi in the UK. She was told to go to the exchange to get euros.

[139] At the airport, the driver unloaded the bags out of the vehicle. She said she continued to believe it was clothes inside.

[140] She had checked in online already and went inside.

[141] An airline or airport employee that helps with checks in helped her print the baggage tags and placed the two bags on the conveyor belt. The employee lifted one bag, and she lifted the other.

[142] She believes that she took a photo of the baggage tag, as directed by Simms.

[143] She was told to go downstairs and walk to the gate of the flight leaving from Ottawa to Toronto.

[144] She did not open the suitcases. The next time she saw the bags was in Toronto, in secondary inspection area of the CBSA.

[145] After her arrest, she did not have further contact with Lana, Tee or Simms. She said Lana tried to message her a few weeks later and again in 2023, but she did not respond.

[146] Overall, she agreed that she did not ask Tee or Simms what would be in the bags; about the black material to conceal the items; or insiders. She did not ask the name of the company. She found nothing online resembling this program.

[147] Also, when picked up she didn't see the driver's face as he wore a mask.

[148] She also agreed that she asked questions about the duration of the trip and if she would be paid in addition to the vacation, as well. She said she googled the company that paid for trips but did not find anything.

[149] Ms. Diba Kalanga denied the suggestions that she knew it was cannabis in the bags; that Lana never told her that she would be transporting designer clothes; and that when she spoke to Ashley on August 31 about being anxious and scared, she knew she was transporting cannabis. Ms. Diba Kalanga maintained that if she knew it was cannabis, she would not have gone on the trip.

The Law

Fundamental Legal Principles

Presumption of Innocence

[150] The accused is presumed innocent. The presumption of innocence is the bedrock of the criminal justice system as it places the burden of proof on the Crown and also serves to protect against wrongful conviction.

[151] The presumption of innocence stays with the accused throughout the trial and is only displaced if the court is satisfied that the Crown has proven the charges beyond a reasonable doubt. The Crown has the sole obligation or burden of proving each charge. The accused does not have an obligation to prove anything or to testify.

Proof Beyond a Reasonable Doubt

[152] The concept of proof beyond a reasonable doubt is also of fundamental importance in the criminal justice system. Proof beyond a reasonable doubt is a very high legal standard. A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based upon sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is logically derived from the evidence or absence of evidence.

[153] While probable or likely guilt is not enough, proof to a level of absolute certainty is not required as that standard is impossibly high. That said, proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities.

[154] If there are reasonable inferences other than guilt, the Crown's evidence does not meet the proof beyond the reasonable doubt standard. A certain gap in the evidence or lack of 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: R. v. Villaroman, 2016 SCC 33, [2016] 1 SCR 1000, at paras. 36, 41.

[155] When assessing circumstantial evidence, I must consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. The Crown thus may need to negative these reasonable possibilities but certainly does not need to disprove every possible conjecture which might be consistent with innocence. Other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, and not on speculation: Villaroman, at paras. 36-37.

[156] In R. v. Kruk, 2024 SCC 7, [2024] S.C.J. No 7, at para. 68, the Supreme Court explained that speculation amounts to an error of law, where there is the failure "to distinguish between a rational conclusion as to reasonable doubt based on evidence, and an unsupported conclusion based on conjecture."

[157] When the court considers all of the evidence and the application of the only reasonable inference criterion, this does not mean that guilt must be the only possible or conceivable inference: R. v. Vernelus, 2022 SCC 53, [2022] S.C.J. No. 53, at para. 5. The emphasis is on the only reasonable inference.

[158] Ultimately, in order to convict an accused person of an offence, I must be sure that the accused committed that offence. If I am not sure, I must acquit.

[159] When assessing credibility, there is no formula that applies in determining whether a witness is telling the truth. Instead, the witness' evidence is considered using a common-sense approach that is not tainted by myth, stereotype, sympathy, or assumption.

[160] There are many factors that may be relevant in determining credibility. Some of the key factors include whether the witness' evidence is internally consistent, whether it is externally consistent with evidence from other witnesses or exhibits, whether inconsistencies in the evidence are about important or minor matters, whether a reasonable explanation is given for any inconsistencies, and whether the evidence is plausible. Further, the court considers whether a witness has a bias or motive to give evidence that is more favourable to one side or the other that impacts their credibility.

[161] It is important that a judge consider whether the inconsistencies, bias, or motive to lie indicate that the witness is lying or not telling the whole truth or that their memory may be flawed or unreliable: R. v. J.E., 2024 ONCA 801, at para. 25.

[162] The central issue is whether the Crown has proven the case against the accused beyond a reasonable doubt. In making this determination I can accept some, none, or all of any witness' evidence. I may find that even though I prefer the evidence in favour of the Crown on some points over the evidence of or supporting the accused, I am still left with a reasonable doubt about guilt.

Accused's Evidence and Reasonable Doubt (W.D.)

[163] The methodology for assessing the evidence in cases where credibility is a key issue was set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742, as follows:

[164] First, if I believe Ms. Diba Kalanga's evidence, that she did not know the substance was cannabis then I must find her not guilty. Also, even if I find that she had knowledge of the substance and control but did not possess it for the purpose of exporting, I must find her not guilty.

[165] If I do not believe Ms. Diba Kalanga's evidence in whole or part, but if it leaves me with a reasonable doubt as to knowledge it was cannabis; or control over the substance; or that she had the purpose to export it outside of Canada; then I must find her not guilty.

[166] There is an available alternative between complete acceptance and complete rejection of the accused's evidence that can ground a reasonable doubt.

[167] It is not necessary to believe the evidence that supports the defence on a vital issue; rather, it is sufficient if, when viewed in the context of all of the evidence, the conflicting evidence leaves me in a state of reasonable doubt as to the accused's guilt.

[168] An accused's evidence should only be rejected after a considered and reasoned assessment of their evidence, free from bias, partiality, or sympathy. It is not appropriate to just refuse to accept their evidence in a conclusory manner without proper justification.

[169] Second, if I reject or disbelieve the accused's version, I must take a step back and consider whether, on the whole of the remaining evidence that I do accept, whether I am left in a state of reasonable doubt.

[170] The rejection or disbelief of the evidence of the accused cannot, in itself, be taken as positive evidence of guilt.

[171] Third, even if I am not left in doubt by the evidence of the accused, I must ask whether, on the basis of the evidence which I do accept, am I convinced beyond a reasonable doubt by that evidence of the guilt of the accused. If her evidence does not leave me with a reasonable doubt that she had had requisite knowledge of the substance; control, and the purpose of exporting it outside of Canada, I may only convict her only if the rest of the evidence that I do accept proves those essential elements beyond a reasonable doubt.

[172] If I only find the Crown has proved that the accused probably knowingly possessed cannabis with an intention to export it outside of Canada, then the prosecution has not met its burden of proof, and the accused must be found not guilty.

[173] On the other hand, if the Crown has met their burden of proof beyond a reasonable doubt, then the accused must be found guilty of that charge.

Law of Possession

[174] Section 2(1) of the Cannabis Act, defines possession as having the same meaning as in subsection 4(3) of the Criminal Code.

[175] Section 4(3) of the Criminal Code, R.S.C., 1985, c. C-46, defines possession to include:

• Personal possession;
• Constructive possession; and
• Joint possession.

[176] In R. v. Lights, 2020 ONCA 128, at paras. 44 to 52, Justice Watt for the Court of Appeal provided a helpful summary of central features of the law of possession. Below, I repeat the relevant parts.

[177] Knowledge and control are essential elements common to both personal possession and constructive possession: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 15.

[178] When personal possession is alleged, the knowledge element consists of two components. An accused must be aware that they have physical custody of the prohibited item alleged, and they must be aware of what that prohibited item is: Morelli, at para. 16.

[179] These elements of knowledge must co-exist with an act of control: Morelli, at para. 16; see also, R. v. Beaver, [1957] S.C.R. 531, at pp. 541-42.

[180] When personal possession is not alleged or cannot be established on the evidence, the Crown may rely on constructive possession to prove its case.

[181] Constructive possession is established when an accused does not have physical custody of the item but has it in any place for their own or another's use or benefit: Criminal Code, s. 4(3)(a)(ii).

[182] Constructive possession is complete where an accused:

i. Has knowledge of the character of the object;

ii. Knowingly puts or keeps the object in a particular place, irrespective of whether the place belongs to or is occupied by the accused; and

iii. Intends to have the object in the place for the use or benefit of the accused or of another person. Morelli, at para. 17

[183] In R. v. Morelli, [2010] 1 S.C.R. 253, [2010] S.C.J. No. 8, 2010 SCC 8, at paras. 16-17, the court described knowledge as it relates to possession in these terms:

On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is.

Constructive possession is established where the accused did not have physical custody of the object in question, but did have it "in the actual possession or custody of another person" or "in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or another person" . . . Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his "use or benefit" or that of another person.

[184] In many cases, the evidence relied upon to prove constructive possession is wholly or substantially circumstantial.

Knowledge

[185] Knowledge includes not only actual knowledge but also wilful blindness. In R. v. Tyrell, 2014 ONCA 617, 123 O.R. (3d) 109, the Court of Appeal wrote at para. 30: "Proof of knowledge, or of its close cousin, wilful blindness, demands a subjective inquiry." The question is based on the totality of evidence; "what did the accused know" and not "what ought he (or she) to have known": Tyrell, at para. 30.

[186] Wilful blindness involves an accused's awareness of the likely existence of the prohibited circumstances together with a conscious decision to refuse to make inquiries because they do not want to know the truth or want to remain ignorant.

[187] This is deliberate ignorance as explained in R. v. Williams, 2003 SCC 41, [2003] 2 S.C.R. 134, at paras. 27-28:

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. [Emphasis added.]

See also Sansregret v. The Queen, [1985] 1 S.C.R. 570, at p. 584, per McIntyre J.; See also R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 22-24.

[188] In R. v. Morrison, 2019 SCC 15, the Supreme Court similarly explained the law as follows:

[98] Wilful blindness exists where an accused's "suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries": R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 21 (emphasis in original). Wilful blindness has been characterized as "deliberate ignorance" because it connotes "an actual process of suppressing a suspicion": D. Stuart, Canadian Criminal Law: A Treatise (7th ed. 2014), at p. 261. "A court can properly find wilful blindness only where it can almost be said that the defendant actually knew": Briscoe, at para. 23, citing G. Williams, Criminal Law: The General Part (2nd ed. 1961), at p. 159. This Court has repeatedly held that if an accused is found to be wilfully blind, that state of mind may substitute for actual knowledge: Sansregret v. The Queen, [1985] 1 S.C.R. 570, at pp. 584-85; Briscoe, at para. 21. Indeed, it is "equivalent to knowledge": Briscoe, at para. 23, citing Williams, at p. 159.

[189] However, to be clear wilful blindness is not the same as negligence in failing to acquire knowledge: Briscoe, at para. 23, citing Glanville Williams, Criminal Law: The General Part, 2nd ed. (U.K.: Stevens & Sons Ltd., 1961), at p. 159. An ought to have known standard is not sufficient.

[190] In drug prosecutions for importing and exporting offences under the CDSA, the mens rea is proven through actual knowledge or wilful blindness as to the possession of illicit drugs. Mere recklessness is not sufficient. R. v. Sandhu, (1989), 50 C.C.C.(3d) 492 (Ont. C.A.)

[191] A belief by the accused that they are smuggling goods in violation of the Customs Act or other regulatory act is not sufficient to ground a conviction under the CDSA (or it's predecessor the Narcotic Control Act.) An accused may be convicted where the Crown proves the accused knew or was wilfully blind the substance they possessed was an illegal drug and not necessarily the particular drug seized. R. v. Blondin (1970), 2 C.C.C. (2d) 118 (B.C.C.A), affd [1971] S.C.R. v.

[192] I pause here to note that the ruling in Sandhu on the authority of Sansregret held that where the offence requires proof of knowledge by the accused, recklessness which was held to be a path to knowledge earlier in Blondin, was no longer good law.

[193] In the analysis I will review further that in order to prove the accused is guilty of the offence of possession of cannabis for the purpose of exporting it, contrary to section 11(2) of the Cannabis Act, the Crown must prove the accused had actual knowledge or was wilfully blind.

Offence Charged

Cannabis Act, Section 11(2)

Importing and exporting

11 (1) Unless authorized under this Act, the importation or exportation of cannabis is prohibited.

Possession for purpose of exporting

(2) Unless authorized under this Act, it is prohibited to possess cannabis for the purpose of exporting it.

Punishment

(3) Every person that contravenes subsection (1) or (2)

(a) Is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years; or

(b) Is guilty of an offence punishable on summary conviction and is liable

(i) In the case of an individual, to a fine of not more than $5,000 or imprisonment for a term of not more than six months, or to both, or

(ii) In the case of an organization, to a fine of not more than $300,000.

Elements of the Offence

[194] Crown counsel must prove each of these essential elements beyond a reasonable doubt:

i. That the substance was cannabis;

ii. That Ms. Diba Kalanga was in possession of cannabis;

iii. That Ms. Diba Kalana knew that the substance was cannabis; and

iv. That Ms. Diba Kalanga had possessions of cannabis for the purpose of exporting it outside of Canada. In other words, "purpose" is understood as synonymous with "intention."

Exporting

[195] Exporting in this context means to knowingly send or carry cannabis outside of Canada. R. v. Weston, 2025 ONCJ 151 at para. 14.

Positions

Crown Position

[196] The Crown submits that the only reasonable explanation for the accused to not make further inquiries in these suspicious circumstances is because she knew that her bags contained cannabis.

[197] The Crown places emphasis on the following points:

1. The Telegram from Tee explaining the company on Dec 23, 2022.
2. The Snapchat from Lana to Ms. Diba Kalanga in Aug 2023.
3. The Telegram conversation with number ending -2461 on Aug 29, 2023.
4. The SMS conversation with Merola on Aug 31, 2025.
5. The significant costs associated with the trip.
6. The conflicting explanations from Lana and Tee.
7. The close and candid relationship between Lana and Ms. Diba Kalanga.
8. The absence of any inquiries regarding the contents of the bags across all conversations with Tee, Simms, Patrick, and number ending-2461.
9. The value of the cannabis.

Defence

[198] The Defence concedes that Ms. Diba Kalanga brought the suitcases that were later found to contain cannabis to the Toronto airport for transit to Lisbon. She was arrested as she was about to board the flight to Lisbon.

[199] The Defence submits that the only issue is whether Ms. Diba Kalanga knew that there was cannabis in the suitcases and whether she intended to export cannabis.

[200] The Defence contends that even if the Defendant's belief that she was not transporting cannabis was unreasonable, it does not follow that the belief was not honestly held. The Defence submits that Ms. Diba Kalanga was sheltered to a significant extent in her life due to her illness where she was in hospital and not in the community for long period of time from the age of 10 through when she was an adult.

[201] The Defence submits that the accused trusted her friend Lana that she would be carrying items other than drugs. She did not think Lana would put her in a dangerous or illegal situation.

[202] Overall, the Defence submits that the Crown has not proven beyond a reasonable doubt that Ms. Diba Kalanga had knowledge and an intention to export cannabis.

Analysis

[203] It is conceded in the agreed statement of fact that the substance in the accused's bags is cannabis. It is not disputed that the suitcases containing the cannabis were intended to be exported outside of Canada.

[204] The parties agreed that the central issue is whether Ms. Diba Kalanga had knowledge that the contents of the suitcases were cannabis.

[205] The Crown specifically submitted that they are not relying on wilful blindness. I will address this further below.

[206] After considering the total evidence, I find that the Crown has not proven beyond a reasonable doubt that Ms. Kalanga had knowledge that she possessed cannabis for the purpose of exporting.

[207] I reject much of Ms. Diba Kalanga's testimonial evidence as not credible. This is because I do not find that her explanation was believable. In making that finding I have factored the total evidence including her age, experience, life circumstances, intellect, and surroundings at the time of the alleged offence, while taking into account her distinct history, trust for Lana, knowledge of Tee, and that she did not know much about the people or company that organized the trip or the general nature of the scheme.

[208] Her answers in cross-examination that she did not see a reason to be concerned from Tee and his unknown associates, when she agreed to accept the expensive trip, despite the numerous reasons to be alarmed, was not credible.

[209] I find that she understood the importance to find out more information about an inherently unusual offer to accept a fully paid trip by an unknown company facilitated in part by people that she did not know or meet, with all expenses paid, where they directed her on how to travel, who to meet, and where to stay, all to deliver purported goods that could have been shipped more efficiently without her involvement. Further, she was cautioned by her friend that the circumstances were suspicious. Her searches on the internet did nothing to alleviate her concerns. Her discussion with Ashley, about travelling alone to the UK, would not address the obvious concerns of agreeing to participate in this program.

[210] However, a rejection of her evidence (in part or whole) is not in of itself proof of guilt.

[211] For reasons that I will explain further, although she knew there was risk and persisted, that failure on the facts of this case does not prove that she knew that the suitcases contained cannabis or drugs.

[212] When the evidence is considered in totality, including with messages and parts of her explanation that I accept and are not contradicted, it is plausible that she believed she was exporting items that were not drugs. Similarly, I find that the Crown has not proven that she knew the suitcases contained cannabis.

[213] Although I do not accept her evidence and it raises legitimate credibility concerns, I do not find that she engaged in deliberate self-deception or a choice not to find out it was drugs she was transporting. R. v. Morales, [2006] O.J. No. 2356, 81 O.R. (3d) 161 (Ont. C.A.).

[214] The Crown has not proved beyond a reasonable doubt that she came to (i) a subjective realization of the likely result of her actions was to export cannabis and (ii) deliberately avoided actual knowledge while engaging in the activity. The focus is on the subjective realization of the need for some inquiry and the failure to make inquiries for the purpose of avoiding knowledge. The fact that a person ought to have known that certain facts existed does not by itself form a basis for the application of the doctrine.

[215] The accused's state of mind can be inferred from her conduct and total circumstantial evidence. The evidence from the text message with Tee of December 23, 2022, specifically indicating to her that the program that she was participating in, involved transporting expensive art, or electronics of iPhones or iPads, indicates that cannabis, or illicit drug exportation, were not contemplated or suspected. Later she was told she was transporting clothing. Further, as I discuss, she was given some reassurance that it was "safe" and therefore she was not getting involved in exporting illegal drugs.

[216] Although there is no onus on the accused to show that she took reasonable steps to comply with the law, there is evidence that she did ask some questions and received specific information about the nature of the items to be exported not being illegal drugs. This evidence was uncontradicted. I find that it does not follow that the accused chose not to know something about the items being drugs and deliberately failed to make further inquiries that were necessary in the circumstances. R. v. Mara, [1997] S.C.J. No. 29, [1997] 2 S.C.R. 630 at para. 8 (S.C.C.).

[217] Where some inquiry is made, the nature of that inquiry will be an important consideration in determining whether the accused remained suspicious and chose to refrain from further inquiry because she preferred to remain deliberately ignorant of the truth. R. v. Lagace, [2003] O.J. No. 4328, 181 C.C.C. (3d) 12 (Ont. C.A.). I find that based on the information obtained by the accused, she believed that she was not involving herself in the possession of drugs for the purpose of exporting.

[218] In cross-examination, the Crown did not undermine the accused's evidence and messages on this point. The Crown did not establish that this important text exchange and total evidence that she was told she was taking items that were not drugs, was inaccurate, misleading or not credible.

[219] In other words, the Crown did not prove that the accused knew at the time of this text exchange and more importantly when she took the trip carrying the bags with cannabis, that the information provided by the people coordinating the program were involved with drugs and she knew the bags she possessed contained drugs. For example, it was not proven that she understood that they used coded language when referencing art or electronics, to conceal the true substance of cannabis. No other evidence was adduced that established that the messages reference to expensive art or electronics or discussions about clothing is a known reference to cannabis or drugs.

[220] I recognize that the quantum and significant value of the cannabis in this case is circumstantial evidence that a person entrusted with that amount and value would have knowledge. It is recognized as a common sense inference that a criminal that recruits and entrusts a person to serve as a courier of a valuable quantity of illegal drugs will inform them of what they are carrying. In R. v. Bains, 2015 ONCA 677 at para. 157 (aka the Queen and Pannu), the Court of Appeal held that the considerable value of the drugs is available circumstantial evidence of knowledge:

[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, [1971] B.C.J. No. 656, 2 C.C.C. (2d) 118 (C.A.), at p. 121 C.C.C.; R. v. Fredericks, [1999] O.J. No. 5549 (C.A.), at paras. 3-4; R. v. To, [1992] B.C.J. No. 1700; and R. v. Bryan, [2013] O.J. No. 673, 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.

See also; R. v. Burnett, 2018 ONCA 790 at para. 64; R. v. N'Kansah, 2019 ONCA 290, at para. 14; R. v. Bryan, 2013 ONCA 97 at para. 11.

[221] However, the total evidence and context is that Ms. Diba Kalanga was specifically informed that the items were expensive art or electronics or clothes, which would also reasonably vest her with an interest in their possession for the purposes of successful exportation. The general proposition of the objective improbability that such a valuable quantity of drugs would be entrusted to anyone who did not know the actual nature of the contents to be exported, does not negate that a person in Ms. Diba Kalanga's circumstances could also be deliberately told and misled that they were transporting other valuable items that are not criminal (and specifically not drugs) so as not to dissuade them from participating out of fear of consequences.

[222] Ms. Diba Kalanga did seek confirmation that the program was "safe", which I will discuss further below. In that context, it makes sense from a reasonable doubt perspective that she was told the suitcases would contain expensive art or valuable electronics or clothes, to ensure she followed instructions diligently so that they were not lost and delivered.

[223] That means that the logic of Bains, and related body of case law applied to these facts, does not mean that the only reasonable inference is that she knew the suitcase contents were drugs, and in this case, cannabis.

[224] I am also concerned that the baggage tag for one suitcase was changed at some unknown point at the airport re-routing delivery to Heathrow rather than Gatwick airport. This is some circumstantial evidence that Ms. Diba Kalanga was not being told the truth about the contents and organizers intentions. It also raises the reasonable possibility that other persons were involved at the airport in the scheme and did not inform the accused of this change.

[225] Even without that re-routing anomaly, I have a reasonable doubt that Ms. Diba Kalanga knew that the bags she possessed contained cannabis. It is plausible that she believed the contents were expensive items that may potentially contravene customs or regulatory laws but were not cannabis or drugs. There is corroboration of her explanation was that she was told directly that it was not drugs.

[226] Although I do not accept much of her evidence, I am left in a reasonable doubt by the total evidence based on relevant aspects of the messages and parts of her evidence, which is not contradicted on this point.

[227] The Crown concedes that the total evidence, and only direct information from the messages and testimony overall, is that she was told that the suitcases did not contain cannabis or other drugs.

[228] In this case the Crown says it must prove the accused had actual knowledge that the contents of the suitcases contained cannabis and does not rely on wilful blindness.

[229] In that regard, I find that the Crown did not prove beyond a reasonable doubt that the accused had actual knowledge that the contents of the suitcases contained cannabis.

[230] Although I do not accept most of Ms. Diba Kalanga's testimony, I accept the part of her text messages to Tee and Simms that she was concerned about participating and needed to know it was safe (not drugs or criminal), because she intended to go to medical school and was concerned about the long-term consequences relative to the circumstances of her life.

[231] Viewed in context, this part of their communications reasonably shows that she did not want to be involved in criminality due to the potentially severe long-term consequences to both her future and personal security.

[232] While I recognize her desire or request for confirmation from Tee and Simms that the exporting program was safe, could also be construed to mean that she specifically wanted assurance that her transport of illegal items and stay abroad would be safe, or that she would not be caught with valuable prohibited drugs, that is not the only reasonable inference.

[233] In parts of her testimony, she said that she had concerns about personal safety while travelling alone and gave an example of people being forced into human trafficking. To be clear, I do not accept this explanation, but I do find that she had concerns about her safety overall and of participating in the program if it put her in jeopardy.

[234] Overall, I am sure that she knew that she was involved in exporting expensive items and agreed with at least one other person to participate in a scheme of that nature for a paid trip, but I am not sure that she knew (or was wilfully blind) that she was exporting cannabis (or even drugs) in the suitcases.

[235] In the end, the evidence is reasonably capable of supporting an inference that Ms. Diba Kalanga did not know that the package contained cannabis or a controlled illicit substance.

[236] I also cannot find on these facts that she was wilfully blind, shutting her eyes because she knew or strongly suspected cannabis (or illicit drugs), and that by looking she would fix her with knowledge" of the prohibited consequences or circumstances: R. v. Jorgensen, [1995] 4 S.C.R. 55, at para. 104. For similar reasoning in the importing context see Stribopoulos J. reasons in R. v. Allen et al., 2022 ONSC 5539 at paras. 83-87.

[237] The total evidence does not establish Ms. Diba Kalanga's was wilfully blind such that "suspicion is aroused about the suitcases containing cannabis (or alternatively even illicit drugs) to the point where she saw the need for further inquiries but deliberately chose not to make those inquiries": Briscoe, at para. 21. Morrison, at para. 98.

Wilful Blindness

[238] Although my findings above are determinative, should it assist in the future, I pause to further address wilful blindness in relation to the offence charged.

[239] Although the Crown specifically does not rely on wilful blindness to prove knowledge in this case, I turned my mind to this issue. My factual findings required that I consider whether the accused engaged in deliberate ignorance: awareness of the likely existence of the prohibited circumstances together with a conscious decision to refuse to make inquiries because she did not want to know the truth or wanted to remain ignorant that she possessed cannabis.

[240] First, the Crown must prove the accused became aware of risk, and the probability that the suitcases contained cannabis for the purpose of exportation, together with a conscious decision to refuse to make inquiries about involvement with cannabis because she did not want to know the truth.

[241] Alternatively, at minimum it must be proven that she had an understanding that the "program" which rewarded her with a free trip and payments, involved the movement of illicit drugs and that she refused to make further inquiries because she did not want to know the truth that she was possessing cannabis.

[242] For the reasons stated, I find that the Crown has also not met this burden of proof on the standard of wilful blindness even in relation to illicit drugs.

[243] For future cases, the offence charged is specific to cannabis contrary to the Cannabis Act. Cannabis is now a distinctly regulated substance whose possession and exportation are regulated under a separate statute from the CDSA. The Cannabis Act contains its own purpose with specific offences and regulations. The punishment is also distinct. See s. 11(3)(a).

[244] The purpose of the Cannabis Act is explained in s.7, which states that this Act is intended to protect public health and public safety in relation to the responsible use and regulation of cannabis.

[245] Section 8 and following of the Cannabis Act deals specifically with criminal offences, categorized under Division 1. Sections 8 to 18 specify how possession (distribution, production, selling etc.) of cannabis, an otherwise legal substance to possess under certain circumstances, becomes illegal. They also explain related sentencing.

[246] Section 11 deals specifically with importing and exporting offences, including possession for the purposes of exporting under s. 11(2): "Unless authorized under this Act, it is prohibited to possess cannabis for the purpose of exporting it." [emphasis added].

[247] Many of the sections in Division 1 start with the language unless authorized under this Act.

[248] Part 3 of the Cannabis Act deals with licenses and permits for cannabis. Subsection 62(2) states a limitation on the purpose for which cannabis may be imported or exported from Canada:

(2) Licences and permits authorizing the importation or exportation of cannabis may be issued only in respect of cannabis for medical or scientific purposes or in respect of industrial hemp.

[249] In contrast, prosecutions for the related offence under s. 6(2) of the CDSA, requires proof of possession, knowledge and the requisite intention regarding an illicit drug stipulated by schedules 1 to 6 of the CDSA.

[250] To prove an offence under s. 11(2) of the Cannabis Act the Crown must prove the accused knowingly possessed cannabis. Morelli; Weston, at paras. 6 and 16.

[251] In my view, when relying on wilful blindness, the Crown must prove the accused is wilfully blind in relation to possession of cannabis, not any illicit drug under the CDSA. The nature of the Cannabis Act is highly specific to a particular substance that is legal to possess in certain circumstances and distinctly regulated, criminalized and punished, different from the other drugs in the CDSA.

[252] In other words, in my view a prosecution of a person under s. 11 of the Cannabis Act where the Crown relies on wilful blindness, requires that the Crown prove that the accused became aware of the risk, realized the probability that it was cannabis, and refrained from obtaining the final confirmation because he or she wanted to deny knowledge. Briscoe at para. 23.

[253] This finding is consistent with the criminal law principles of proof of knowledge of the substance possessed together with the law of statutory interpretation as summarized in Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601 at para. 10, that the interpretation of a statutory provision must be made according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole, including the scheme and object of the Act, with the intention of Parliament. See also 65302 British Columbia Ltd. v. Canada, [1999] 3 S.C.R. 804, at para. 50; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para 21;

[254] I recognize that it is plausible that if the Crown was able to prove that the accused was wilfully blind in relation to exporting an illicit drug, depending on the facts, that this circumstance may support deliberate ignorance in relation to possession of cannabis. Proof of that circumstance could support at least the accused had a basis for further inquiry about whether the substance possessed for the purposes of exporting is cannabis but chose not to inquire.

[255] That said, regardless of legal nuances noted above in relation to wilful blindness which are not determinative to the verdict, I find that the Crown has not met their burden of proof of knowledge, including wilful blindness even in relation to an illicit drug.

Conclusion

[256] I find Ms. Diba Kalanga not guilty.

Released: August 1, 2025

Mirza, J.