COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Okojie, 2021 ONCA 773

DATE: 20211102

DOCKET: C68428

Doherty, Watt, van Rensburg, Benotto and
    Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Justice Okojie

Appellant

Chris Sewrattan, Ashley Sewrattan and Raj Vijan, for the
    appellant

Sarah Shaikh, Christopher Walsh and Jonathan Geiger, for
    the respondent

Emily Marrocco, for the intervener, Attorney General for
    Ontario

Owen Goddard and Rick Frank, for the intervener,
    Criminal Lawyers Association

Heard: February 23, 2021 by video conference

On appeal from the conviction
    entered by Justice Jennifer Woollcombe of the Superior Court of Justice on
    December 2, 2019, with reasons reported at 2019 ONSC 6898, and the sentence imposed
    on January 31, 2020.

Watt J.A.:

[1]

The label on the FedEx package said Beauty products. The sender was
    Lucy Shighara of Malindi, Kenya. The package was addressed to Abel Morrison
    of 10 Haynes Ave., North York.

[2]

The package was delivered to the appellant. At 10 Haynes Avenue in North
    York. From a person wearing a FedEx uniform and driving a FedEx truck.

[3]

The appellant paid the duty owing to the delivery operator. He paid in cash,
    signed for the package, got a receipt, and drove away.

[4]

About an hour later, in another town several miles away from where he
    got the package, the appellant was arrested on four charges having to do with
    the contents of the package. Heroin. Importing and having possession of heroin
    for the purpose of trafficking. And conspiracy to commit both offences.

[5]

After a trial before a judge of the Superior Court of Justice sitting
    without a jury, the appellant was convicted of the counts charging importing
    and possession for the purpose of trafficking but acquitted of both conspiracy
    counts. He appeals those convictions and the sentence imposed.

[6]

The reasons that follow explain why I would dismiss both appeals.

The Background

[7]

The underlying circumstances are largely uncontroversial.

The Package

[8]

The package with which we are concerned was sent by FedEx. Affixed to it
    was a document that designated the consignor as Lucy Shighara in Malindi,
    Kenya. The consignee was Abel Morrison of 10 Haynes Avenue in North York. The
    contents were described as Beauty products.

The Interception

[9]

The package arrived at the FedEx consignment hub in Memphis, Tennessee
    on February 18, 2018. There, it was intercepted by officials at U.S. Customs
    and inspected. The contents of the package were contained in four smaller boxes:
    96 tubes of mascara. Each tube contained heroin.

The Transfer

[10]

Three days later, the package was turned over to the Canadian Border
    Services Agency (CBSA) in Mississauga, and thereafter to the RCMP who removed
    all but one gram of the heroin from the tubes and substituted it with regular
    mascara.

The Value of the Heroin

[11]

The true value of the heroin contained in the package varied according
    to how it was sold. When sold at the kilogram level, the street value varied
    from $30,200 to $41,525. At the gram level, the value increased to between $67,
    950 and $83,050.

The Controlled Delivery

[12]

Arrangements were made for a controlled delivery to the consignee, or
    anyone accepting delivery on the consignees behalf.

[13]

Around mid-day on February 23, 2018 an undercover police officer wearing
    the uniform of a FedEx delivery operator drove a FedEx delivery truck to 10
    Haynes Avenue in North York. After parking the vehicle, the officer approached
    the home and rang the doorbell. No one answered. She rang the doorbell again.
    And waited. No one answered the door.

The Appellant Arrives

[14]

The undercover officer noticed a vehicle travelling towards the FedEx
    truck. The vehicle stopped and parked behind the FedEx truck. The appellant was
    in the front passenger seat of this vehicle.

[15]

The undercover officer asked the appellant whether he lived at that
    address. The appellant said Yes, got out of the vehicle, and approached the
    officer. He had crumpled currency in his hand. The undercover officer said A-bell,
    deliberately mispronouncing the name of the consignee. The appellant corrected
    the mispronunciation, confirmed his identity as Abel Morrison, and repeated
    his name.

[16]

The officer did not ask the appellant for any identification.

The Exchange

[17]

The undercover officer explained that $38.87 was owing for duty and
    taxes on the package. She required either exact change or a credit card in
    payment. The appellant said that he did not have a credit card. He retrieved
    $40 in cash from his vehicle, gave the money to the officer, and told her to
    keep the change.

[18]

The officer gave the appellant a receipt for the package. She explained
    that her scanner was not working. She gave the appellant a delivery tag and
    asked him to sign it to confirm receipt of the package. The appellant wrote
    four illegible letters on the tag.

[19]

The officer gave the appellant the package. He took it to the vehicle in
    which he had arrived as a passenger and put it on his lap.

The Surveillance and Arrest

[20]

Surveillance officers followed the vehicle in which the appellant was a
    passenger. They arrested him and his then girlfriend, who was driving the
    vehicle, in a parking lot in Newmarket.

The Investigation

[21]

Advised of his right to counsel on arrest, the appellant told
    investigators that his girlfriend had nothing to do with this. In a satchel
    in the vehicle, police found three chequebooks and a banking client card in
    different names. They also found a credit card and health card in the
    appellants own name. When processed at the police station, the appellant told
    the police that he lived at 329 Cook Road in North York.

[22]

The appellant showed police his cellphone which contained a text message
    exchange with Chucks 3. An incoming text read Abel Morrison, 10 Haynes Ave.
    The appellant had replied ok. No evidence was given about the date of this
    exchange.

The Grounds of Appeal

[23]

The appellant urges two grounds of appeal against conviction. He
    contends that:

i.

the offence of importing was complete before his involvement in picking
    up the package at the North York address; and

ii.

the
    convictions of importing and possession for the purpose of trafficking are
    unreasonable because it was not the only reasonable inference from all the
    evidence that the appellant knew the package contained a controlled substance.

Ground #1: When Importing is Complete

[24]

This, the principal ground of appeal, is also raised in the appeal in
R. v. Jacinda
    Hudson
(C65962). The appeals were heard together by a five-judge panel because
    the appellants allege that some prior decisions of this court are in conflict
    with the decision of the Supreme Court of Canada in
Bell v. R.
, [1983]
    2 S.C.R. 471. The reasons in both appeals are being released concurrently.

[25]

The circumstances of the offences of which the appellant was convicted
    have already been described. Repetition is unnecessary. Brief reference to the
    reasons of the trial judge will provide a suitable footing for the discussion
    that follows.

The Reasons of the Trial Judge

[26]

The first issue the trial judge considered on the importing count was
    whether the Crown had proven beyond a reasonable doubt that the appellant had
    any involvement in the act of importing the heroin. She described the positions
    of the parties in these terms:

The Crown says that the importation of the package with the
    heroin continued until Mr. Okojie took delivery of the package.

It is the defence position that in order to establish that the
    accused imported, the Crown must prove the accuseds involvement in either
    bringing the controlled substance into Canada or causing it to be brought into
    Canada. Counsel relies on the Supreme Court of Canadas decision in
R. v.
    Bell
, 1983 CanLII 166 (SCC), 1983, SCJ No. 83. It is the defence position
    that the Crown has adduced no evidence that the accused had any personal
    involvement in bringing the package with the heroin into Canada. The defence
    says that the
actus reus
, or act of importing, was complete before he
    had any connection to the package and thus he must be acquitted.

[27]

The trial judge considered that the importing offence did not require
    the accused to have been involved with actually bringing the package into
    Canada. This was because that, although the importing offence is complete in
    law when the contraband enters Canada, the offence is not complete in fact
    until the contraband reached its intended recipient. Relying on the decisions
    in
R. v. Onyedinefu
, 2018 ONCA 795 and
R. v. Buttazzoni
, 2019
    ONCA 645, the trial judge concluded that the importation was completed in fact
    when the appellant took delivery of the package.

The Arguments on Appeal

[28]

In addition to the parties, we also heard submissions from two
    interveners, the Attorney General of Ontario (AGO) and the Criminal Lawyers
    Association (CLA). Neither intervener advanced argument on the disposition of
    this or the grouped appeal. Each offered assistance on the scope of the
    importing offence and the precedential value of the decision in
R. v.
    Foster
, 2018 ONCA 53, 360 C.C.C. (3d) 213, leave to appeal refused [2018]
    S.C.C.A. No. 127, and its progeny.

The Position of the Appellant

[29]

The appellant says that he could not have been found guilty of importing
    because the offence was complete before he became involved with the package
    containing the heroin. The decision in
Bell
governs when the importing
    offence is complete. Importing is not a continuing offence. The offence is
    complete at the time the contraband enters Canada.
Bell
left open the
    question of when contraband enters Canada. In this province, binding precedent
    holds that contraband enters Canada when it clears customs. Thus, the appellant
    should be acquitted of importing.

[30]

The failure of the court in
Bell
to explain when contraband
    enters the country has produced disparate conclusions in appellate courts in
    Canada. In this court, the decisions in
R. v. Tan
(1990), 44 O.A.C.
    324 (C.A.) and
Foster
interpret the enters the country mandate of
Bell
as clears customs. But the later decisions in
Onyedinefu
and
Buttazzoni
have erroneously extended enters the country to transport to the domestic
    destination or recipient. This has created confusion and yielded inconsistent
    results.

[31]

The appellant assigns the blame for this ball of confusion to
Foster
which got the result right, but the reasoning wrong. The result is correct
    because it is consistent with
Tan
in its statement that contraband
    enters the country when it clears customs. But the reasoning in
Foster
is incorrect, premised on three errors:

i.

the disposition in
Bell
 ordering a new trial  does not
    indicate that the importation was completed in the trial venue, Mirabel,
Québec;

ii.

a non-continuing offence
, such as
    importing, is not distinguishable as complete in law and fact; and

iii.

this court cannot anticipatorily
    overrule
Bell
.

[32]

The disposition in
Bell
, the appellant urges, was controlled by
    the evidence found in Bells

Québec home. This evidence was capable
    of supporting an inference that
Bell was involved in causing the
    contraband to be brought into Canada, thus making him

a party to the
    importing. The error
in
Foster
was in concluding that the disposition in
Bell
meant that the
    Supreme Court majority concluded that the importing occurred or ended at
    Mirabel. Extending the
actus reus
of importing beyond customs clearance
    violates the binding precedent of
Tan
and invites courts to extend the
    endpoint in cases involving controlled delivery.

[33]

The second flaw in this courts reasoning in
Foster
is that it
    distinguishes completion of the offence in law, on the one hand, and completion
    of the offence in fact, on the other. This is a valid distinction in continuing
    offences. But, as
Bell
teaches, importing is
not
a continuing
    offence.
Foster
, the appellant argues, was at once overambitious and
    wrong to apply this distinction between completion in law and in fact  unique
    to continuing offences  to the non-continuing offence of importing. The same
    result could have been achieved without error simply by following the binding
    precedent of
Tan
.

[34]

In addition, the appellant continues,
Foster
was wrong because
    it appears to have anticipatorily overruled
Bell
. Vertical precedent
    demanded adherence to
Bell
. Even the Supreme Court would be unable to
    overrule the horizontal precedent of
Bell
. We should reconsider
Foster
and its progeny because the reasoning in
Foster
is unlawful, running
    contrary to
Bell
s vertical precedent; illogical, because importing is
    not a continuing offence; and undemocratic, because Parliament should correct
    any perceived error arising from the Supreme Courts interpretation of its
    criminal legislation.

The Intervener CLA

[35]

The CLA adopts the appellants argument that
Bell
must be
    followed. The decisions in
Foster
,
Onyedinefu
, and
Buttazzoni
effectively render the concurring judgment of Dickson J. in
Bell
the
    law in Ontario. This will result in convictions of importing for those whom the
    evidence fails to establish played any role in bringing controlled substances
    into Canada or causing those substances to enter Canada from abroad.

[36]

The CLA says that the plain meaning of import and the legislative
    intention underlying the creation of the offence support a narrow definition of
    the term. Other jurisdictions have expanded the definition to include dealing
    with controlled substances in connection with their importation. But Parliament
    has not done so, and it is not open to this court to do so indirectly. Further,
    this unprecedented extension stigmatizes conduct that is properly the subject
    of discrete offences as importing. Such an expansion disproportionately harms
    marginalized groups and perpetuates discrimination in the justice system.

The Respondent

[37]

The respondent sees no need to reconsider the recent authorities in this
    court impugned by the appellant. Adherence to precedent enhances the legitimacy
    and acceptability of judge-made law and by so doing enhances the appearance of
    justice. The first consideration for the court in deciding whether it should
    overrule a prior precedent is whether the earlier decision is wrong. Absent
    error, no basis exists to overturn prior precedent.
Foster
correctly
    applied
Bell
. Likewise, the authorities that apply
Foster
. No
    case for departure has been established.

[38]

The functional approach that characterizes this courts approach in
Foster
is not only faithful to the reasons of the majority in
Bell
, but also
    makes sense. It takes into account the myriad ways in which controlled
    substances may be imported and that crossing the border into Canada is a
    process, not something that happens in an instant or by crossing over an
    imaginary line.

[39]

The
Bell
majority adopts the ordinary meaning of import  to
    bring or cause a controlled substance to be brought into Canada. The offence is
    complete when the substance enters the country. The physical and fault elements
    coalesce. But the
Bell
majority created no bright-line rule that
    defines
when
contraband enters Canada. This was left for the trial and
    intermediate appellate courts to determine in individual cases. This court did
    so in a manner consistent with, and in no way misapprehended the effect of, the
    disposition in
Bell
.

[40]

The respondent contends that the analysis in
R. v. Vu
, 2012 SCC
    40, [2012] 2 S.C.R. 411  which distinguishes between offences complete in
    law and those complete in fact  is
not
confined to any particular
    type of offence. The court did
not
restrict this analysis to continuing
    offences, nor is such a submission sound in principle. A non-continuing offence
    may take time to commit. It may be committed at different points in time by
    different people. When an offence is completed should be determined on the
    facts of each case.

[41]

The reasoning in
Foster
, the respondent contends, is a sensible
    approach to complex border-crossings. But the
Foster
approach is not
    limited to airports. All border-crossings can be a complex matrix of
    checkpoints and regulations. The
Foster
approach  that importing is
    not factually complete until the contraband clears customs and thus becomes
    available to the importer  effectively manages these complexities. It permits
    an assessment of what it means to truly enter the country on a case-specific
    basis. Both
Onyedinefu
and
Buttazzoni
represent a logical
    application of
Foster
in the controlled delivery framework because the
    object of the importation had not concluded when the importation was alleged to
    have occurred.

[42]

The respondent says that the appellant has failed to establish any
    justifiable reasons for this court to overrule the precedents challenged on
    appeal. We do not lightly depart from prior precedent. We only overrule prior erroneous
    decisions if there are sufficient reasons to do so. When invited to do so, we
    weigh the advantages and disadvantages of correcting the error. We focus on
    several factors. The nature of the error. The effect on the parties and future litigants.
    And the administration of justice.

[43]

In this case, as the respondent puts it, the analysis in
Foster
does not expand the scope of liability for importing beyond what the majority
    in
Bell
authorizes. The Crown must prove not only that an accused intentionally
    brought a controlled substance into Canada, or caused such a substance to be
    brought into the country, but also intended to do so with knowledge of the
    nature of the substance and its origins. These elements were established on the
    evidence adduced at trial. The legal principles in cases of importing are not
    in any state of uncertainty, nor are they inconsistent with the intention of
    Parliament to prevent devastating drugs from landing on Canadian streets.

The Intervener AGO

[44]

The AGO submits that the common law of the offence of importing requires
    no revision or reconsideration in this province. The elements of the offence
    are being articulated and applied consistently with governing jurisprudence of
    the Supreme Court of Canada and with the plain meaning of the verb import.
    The applicable definition stigmatizes as importers only those persons who
    knowingly bring contraband into Canada from outside Canada, or who knowingly
    cause contraband to be brought into Canada as principals or parties to the offence
    of others. This is as it should be.

[45]

The meaning to be assigned to the term import is important for the
    purpose of prosecutions conducted by the Attorney General of a province. These
    include importing firearms and related accessories under s. 103 of the
Criminal
    Code
,
R.S.C. 1985, c. C-46.
    And importing child pornography, contrary to s.
163.1(3).
The correct definition of import must consider its meaning through the
    broad lens of evolving and changing methods of bringing contraband into Canada.
    The meaning assigned should not focus on a discrete moment when a border is
    crossed, customs cleared, or contraband is received.

[46]

Section 84(1) of the
Criminal Code
provides an exhaustive
    definition of import for the purposes of Part III of the
Criminal Code
    (Firearms and Other Weapons)
. For those purposes, the term means import
    into Canada and, , includes the importation of goods into Canada that are
    shipped in transit through Canada and exported from Canada. Sophisticated
    firearms importing schemes succeed because of the different roles played by
    various participants in the scheme. A definition of importing that would
    exclude some because their actions are not sufficiently linked to the event of
    border-crossing would fail to address the practical heart of the offence. Those
    who have the
mens rea
for the offence and whose actions are part of
    the process of moving the contraband to the intended recipient are properly
    convicted of importing. This is so regardless of the time of their involvement
    or the role they played concerning border-crossing arrangements.

[47]

The AGO submits that when the offence of importing ends will be a
    question of fact to be determined on the evidence in each case. That point will
    be when the trier of fact determines that the contraband has arrived in the
    hands of the intended recipient. This will be the point at which importing
    becomes possession, or possession for the purpose of trafficking in the
    contraband.

[48]

Nor does the correct definition of importing ensnare too many
    unsophisticated offenders. This argument overlooks the fact that to convict,
    the Crown must prove
all

the essential elements of the offence
    beyond a reasonable doubt. This includes the fault element. An intention to
    import. Knowledge of the nature of the contraband. And knowledge that it has
    come from outside Canada. The simple reality is that importing is a process.
    The current scope of the offence ensures that those essential to the success of
    importing schemes, including key domestic distributors and those who take
    receipt of internationally shipped packages of contraband, are properly
    convicted of what they do  importing.

The Governing Principles

[49]

Some basic principles inform our decision in connection with this ground
    of appeal. Although the focus of the argument has been on the correctness of a
    series of decisions in this court and their compatibility with the decision of
    the Supreme Court of Canada in
Bell
, other principles  none of which
    are unique to the offence of importing  are of service in the analysis that
    follows. Some have to do with what is required to establish criminal liability.
    Others with the manner in which the essential elements of an offence may be
    proven. And the remainder with trial jurisdiction.

The Coincidence/Concurrence Principle

[50]

Crimes consist of a physical element and a fault element. A variety of
    terms are used to describe these elements. Among them are
actus reus
and
mens rea
. Not only must each of these elements be proven beyond a
    reasonable doubt, the prosecution must establish that, at some time, these
    elements were concurrent. In other words, the physical element must be
    contemporaneous or coincident with the fault element: Glanville Williams,
Criminal
    Law: The General Part
, 2nd ed., (London, UK: Stevens, 1961), at para. 1,
    p. 2 (
CLGP
); Glanville Williams,
Textbook of Criminal Law
, 4th
    ed., (London, UK: Sweet & Maxwell, 2015), at para. 10-037, p. 276 (
TCL
).
    It follows that it is not enough that a mentally innocent act is followed later
    by
mens rea
. Nor does a later intent amount to a crime without another
    act in which it becomes manifest:
CLGP
, at para. 1, p. 2.

[51]

On the other hand, it is not always essential that the physical and
    fault elements be completely concurrent. The determination of whether the fault
    element or
mens rea
coincides with the physical element or
actus
    reus
will depend to a large extent on the nature of the physical element.
    A series of acts may form part of the same transaction and so comprise the
    physical element of an offence. This is so irrespective of whether the offence
    involved is a continuing offence:
R. v. Cooper
, [1993] 1
    S.C.R. 146, at p. 157-8. See also,
Meli v. The Queen
,
[1954] 1 W.L.R. 228 (P.C.);
TCL
,
    at paras. 10-037-10-039, pp. 276-78.

The Modes of Participation

[52]

Our criminal law does not distinguish among the modes of participation
    in an offence in determining criminal liability. Section 21(1) of the
Criminal
    Code
makes principals, aiders and abettors equally liable. A person
    becomes a party to an offence when that person, knowing of a principals
    intention to commit the crime, and with the intention of assisting the
    principal in its commission, does something that helps or encourages the
    principal in the commission of the offence:
Vu
,
    at para. 58, citing
R. v. Briscoe
,
2010 SCC 13, [2010] 1 S.C.R. 411,
    at paras. 14-18.

[53]

Section 21(2) is a form of parasitic criminal liability capturing
    participants in a common unlawful purpose in specified circumstances. The
    accused is party to an offence that is committed by another participant in
    carrying out the common unlawful purpose provided the accused has the required
    degree of foresight that the incidental crime would be committed:
R. v.
    Simon
, 2010 ONCA 754, 263 C.C.C. (3d) 59, at para. 43.

Establishing Criminal Liability

[54]

To establish the essential elements of an offence, thus the criminal
    liability of an accused for its commission, the Crown introduces evidence that
    is relevant, material and admissible. This evidence may be direct or
    circumstantial in nature. Or it may consist of a combination of both types of
    evidence.

[55]

Circumstantial evidence gives rise to inferences, deductions of fact
    that may logically and reasonably be drawn from another fact or group of facts
    found or otherwise established in the proceedings at trial.

[56]

As a means of establishing a fact, thus an essential element of an
    offence and ultimately guilt, circumstantial evidence may invoke one or more
    chains of reasoning:

·

prospectant, such as evidence of motive;

·

concomitant, such as evidence of opportunity, means, or skill;
    and

·

retrospectant, such as evidence of after-the-fact conduct.

[57]

Evidence of after-the-fact conduct is circumstantial evidence that
    invokes a retrospectant chain of reasoning. The process of reasoning is that
    the subsequent occurrence of an act, state of mind, or state of affairs
    justifies the inference that an act was done, or state of affairs or of mind
    existed at a material time in the past, when the charged offence is alleged to
    have been committed:
R. v. Adamson
, 2018 ONCA 678, 364 C.C.C. (3d) 41,
    at para. 56.

[58]

The reasoning process involved in the retrospectant use of
    circumstantial evidence is not offence-specific or limited to certain offences.
    As with any item of circumstantial evidence, evidence of after-the-fact conduct
    is receivable if it is relevant, material, and compliant with any applicable
    rules of admissibility:
R. v. Calnen
, 2019 SCC 6, [2019] 1
    S.C.R. 301, at para. 107.

Trial Jurisdiction

[59]

As a general rule, the courts of one province have no jurisdiction to
    try an offence committed entirely within another province:
Criminal Code
,
    s. 478(1). However, the
Criminal Code
recognizes that, in some
    circumstances, offences may be committed in more than one territorial division.
    As a result, the
Criminal Code
makes provision for the jurisdiction of
    courts to try offences extending over more than one territorial division as
    defined in s. 2 of the
Criminal Code
.

[60]

Offences commenced in one territorial division and concluded in another
    are deemed to have been committed in each:
Criminal Code
, s. 476(b).
    In the result, the courts of either jurisdiction have the authority to try
    these cases.

[61]

The offence of importing controlled substances may be committed anywhere
    in Canada. And one offence may occur in whole or in part at more than one place
    in Canada. For example, an importer from one territorial division may make all
    the arrangements and do all the acts necessary to bring about the importation
    of the controlled substance at another. In these cases, we can say that the
    importer has committed an offence which has occurred at two places, or an
    offence which has begun in one territorial division and has been completed in another.
    These offences may be tried where the contraband entered the country or where
    the acts or arrangements leading to the importation occurred:
Bell
, at
    p. 491.

The Importing Offence

[62]

Importing a scheduled controlled substance is an offence under s. 6(1)
    of the
Controlled Drugs and Substances Act
(
CDSA
), S.C. 1996,
    c. 19. The punishment and mode of procedure depends on the Schedule in which
    the controlled substance is included.

The Statutory Definition

[63]

The offence-creating provision, s. 6(1) of the
CDSA
, does not
    define or set out the essential elements of the offence of importing. Nor is
    import, in any of its forms, defined in the
Interpretation Act
,
    R.S.C. 1985, c. I-21. The
CDSA
does not incorporate by reference the
    definition of import as it may appear in any other federal enactment, as for
    example in s. 84(1) of the
Criminal Code
where import is defined for
    the purpose of Part III of the
Criminal Code
.

The Ordinary Meaning of Import

[64]

The term imports in s. 6(1) of the
CDSA
is used as a
    transitive verb, its object, a scheduled controlled substance. In ordinary
    speech, import means to bring or introduce something from an external source
    to another place or destination. More specifically, imports means to bring in
    goods from another country. Importing posits a relationship between a source
    and a destination, a nexus more causal than temporal. The ordinary meaning of
    the term says nothing about when importing begins or when it ends.

The Authorities

[65]

The principal source of assistance in assigning meaning to the term
    imports in s. 6(1) of the
CDSA
, more specifically to its temporal
    limits, is the jurisprudence commencing with the decision of the Supreme Court
    of Canada in
Bell
.

The Decision in
Bell

[66]

Bell was charged with importing
cannabis
and two related counts of possession of cannabis for the purpose of trafficking
    and simple possession of the same drug. The offence was alleged to have been
    committed at Mirabel,
Québec, on
    or about April 18, 1979. The contraband was hidden in four gift-wrapped
    footstools shipped by air from Jamaica on Air Canada. Bell was the consignee of
    the shipment at his home address in St-Hubert, Québec.

[67]

The shipment containing the
    footstools arrived in Toronto on April 10 or 11, 1979. On inspection, Customs
    officials found 6.7 pounds of
cannabis
secreted in the footstools. The RCMP
    were notified and, on their instructions, the footstools were shipped to their
    designated destination at Mirabel Airport. The RCMP removed all but 5 grams of
    the
cannabis
, re-assembled the footstools, and
    after someone inquired about the parcels at the airport  repackaged and
    returned them to the airport. On April 18, 1979, the appellant picked up the
    parcels, paid the freight charges, signed an entry form at customs, obtained a
    customs release and took the parcels to his home.

[68]

Bell was arrested at his home amid discarded wrapping paper and a
    dismantled footstool with its covering material removed. Police also found a
    piece of paper near the telephone on which was written a number corresponding
    to that of the Air Canada way-bill for the shipment and an address in Jamaica
    on the way-bill. The way-bill described the footstools as a gift.

[69]

The trial judge directed a verdict of acquittal, not because the act of
    importation was complete when the contraband entered at Toronto, but because
    the conduct of the RCMP in extracting the
cannabis
broke the chain of possession and completed the act of importation before Bell
    obtained the goods.

[70]

The
Québec Court of Appeal
    set aside the acquittal entered at trial and directed a new trial on the count
    of importing. The court concluded that importing was a continuing offence that
    extended to the time the consignment was released from custody at Mirabel to Bells
    possession. The court also held that the intervention of the RCMP was
    irrelevant.

[71]

Bell appealed to the Supreme Court of Canada as of right. There, he
    argued that the act of importation was complete when the shipment entered
    Canada on April 10 or 11, 1979. He had no involvement there. Bell also
    submitted that if any offence had been committed, it had occurred in Toronto,
    not within the jurisdiction of the
Québec
    superior court.

[72]

The majority judgment of four justices was given by McIntyre J. He
    concluded:

i.

that importing a (then) narcotic is not a continuing offence;

ii.

that
    importing bears its ordinary meaning of to bring into the country or to cause
    to be brought into the country;

iii.

that the
    offence of importing is complete when the goods (narcotics) enter the country;

iv.

that once
    the importing offence is complete, the possessor or owner of the contraband may
    be guilty of other offences, but the offence of importing has been completed
    and the importer, in keeping or disposing of the drug, has embarked on a new
    criminal venture;

v.

that
    conviction of importing does
not
require that an accused carried the
    contraband into the country or was present at the point of entry; and

vi.

that
    importing may be committed anywhere in Canada and the offence may occur in
    whole or in part at more than one place in Canada. The importer, from one part
    of Canada, may make all the arrangements and do all the acts necessary to bring
    about the importation at another place. Thus, the importer could be said to
    have committed an offence which has occurred at two places, or an offence committed
    in one jurisdiction and completed in another. The courts in either jurisdiction
    have authority to try the case.

See,
Bell
, at pp. 488-91.

[73]

Dickson J. (as he then was) wrote separate reasons in which he reached
    the same result as the majority. He began his analysis by ascribing to import
    its ordinary and natural meaning: to bring in (goods or merchandise) from a
    foreign country. This means to bring in goods from anywhere outside Canada to
    anywhere inside Canada:
Bell
, at p. 477.

[74]

For his part, Dickson J. saw no reason in principle or precedent to
    restrict the relevant location of importing to the actual point of border-crossing.
    Importing is a process. Although importing necessarily includes the act of
    crossing the border, importing extends to the point of intended final
    destination. The test is whether a direct link exists between the place of
    origin outside Canada and the destination inside Canada:
Bell
, at p.
    477.

[75]

As a principal in importing, an accused must bring in or cause to be
    brought into Canada goods from a foreign country. By definition, this requires
    crossing the Canadian border. A person who becomes involved only after the
    border-crossing may be an aider or abettor of the principal who brings the
    goods from outside Canada to a destination inside Canada:
Bell
, at p.
    478.

[76]

The essence of the reasons of Dickson J. appears in this passage:

The elements of an offence of importing are present as soon as
    the goods cross the border, but the offence is not over and done with until the
    goods have reached their intended final destination within Canada. Accordingly,
    a charge could be laid relating to the point of entry or of destination or
    anywhere in between. In this case there was evidence that the intended and
    actual destination within Canada was St-Hubert, but there were stops along the
    way at Toronto and Mirabel. In my view it was open to the Crown to charge
    importing at Toronto or at Mirabel or at St-Hubert.

See,
Bell
, at p. 481.

[77]

Of some significance to the arguments advanced here is Dickson J.s
    conclusion that it was of no consequence to his analysis whether importing is
    or is not regarded as a continuing offence:
Bell
, at p. 481. Dickson
    J. did not conclude that importing was a continuing offence. Rather he expressly
    found it unnecessary to do so. Nor did he say that his distinction between
    completion of an offence in law and completion of an offence in fact applies
    only to continuing offences.

The Decision in
Foster

[78]

Unlike
Bell
,
Foster
was not a case of controlled
    delivery. Foster brought 1.2 kilograms of cocaine into Canada hidden in her
    bra. CBSA officers located it after she was referred for secondary inspection following
    disembarkation from a flight from Jamaica at Pearson International Airport. At
    trial, she advanced the excuse of duress. The Crown resisted duress on the
    basis that Foster had a safe avenue of escape by reporting her predicament to
    law enforcement officials before the offence of importing was complete when she
    cleared customs. The jury rejected the excuse of duress and found Foster guilty
    of importing. This court dismissed her appeal from conviction.

[79]

The
Foster
court expressed a preference for the reasoning of
    Dickson J. in his minority opinion concurring in the result in
Bell
.
    But, mindful of its obligation, despite this preference, the court followed the
    reasons of the majority to conclude that in
Foster
, the importing
    offence was not complete until the cocaine and its carrier had cleared customs
    at the conclusion of the secondary inspection. This conclusion is consistent
    with the prior decisions of this court in
Tan,
at para. 8, and
R.
    v. Valentini
(1999), 43 O.R. (3d) 178 (C.A.), at para. 54.

[80]

In
Foster
, this court, faithful to the majority decision in
Bell
,
    did
not
conclude that importing was a continuing offence. In reaching
    our conclusion in
Foster
about when the importing ended, a point not
    determined by the
Bell
majority, we relied on not only what the
Bell
majority wrote, but also its conclusion, as the
Québec Court of Appeal had decided, that a new trial should be
    ordered. This could only have occurred if there were evidence that the offence
    was committed
in
Mirabel. And there was evidence that supported an inference that
Bell
, in Mirabel, had caused, or been
    involved in causing, the
cannabis
to be brought into Canada. That
    evidence included items, found on a search of Bells residence, capable of
    supporting an inference that Bell was involved in causing delivery of the
    packages to Canada.

[81]

The
Foster
court also found support for its
    conclusion in the distinction drawn by Dickson J. in
Bell
between an offence complete in law and
    an offence complete in fact. This distinction was adopted by Moldaver J. in
Vu
, a case involving the continuing
    offence of kidnapping. The analogy was not intended and should not be taken as
    a conclusion that importing is a continuing offence, or that the
Foster
court was following the minority,
    rather than the majority, in
Bell
.

The Decision in
Onyedinefu

[82]

In
Onyedinefu
, the
    appellant admitted he obtained a box delivered by FedEx. The box, which was
    sealed, contained 146 grams of heroin. It originated in India and came to
    Canada from the United States. At trial, the appellant testified that he was
    involved in several schemes to import goods from various countries. He posed as
    a realtor to gain access to empty houses where drop-offs of the imported goods
    could be made. He believed the package containing the heroin actually contained
    electronics for which he was to receive a fee of $800. The trial judge rejected
    the appellants version of events and convicted him of importing heroin and
    possession of heroin for the purpose of trafficking.

[83]

In this court, the appellant argued that the offence of importing was
    complete before he took possession of the package, thus he could not be found
    guilty of that offence. This court disagreed, and observed that importing is a
    process that begins with the procurement of the contraband, its transport to a
    port of entry, and ultimately to a domestic destination or recipient. The
    offence was not factually complete until the appellant took possession of the
    package. He was an aider of the principals of the scheme:
Onyedinefu
,
    at paras. 7-8.

The Decision in
Buttazzoni

[84]

At trial, the appellant Buttazzoni was acquitted of importing, but
    convicted of conspiracy to import and possession of cocaine for the purpose of
    trafficking. The principal issue on appeal was whether the conviction of
    conspiracy to import was well grounded in law and in fact.

[85]

A container was shipped from Guyana, its destination, Moes Island
    Grocery in Mississauga. When the container arrived by ship in Saint John, New
    Brunswick, CBSA staff inspected the container. It contained a quantity of
    canned and prepared food products, together with 20 empty skid pallets which
    served as space fillers. In the wood of 19 of these pallets were 112 kilograms
    of cocaine valued at between $3,920,000 and $8,960,000. Police removed the
    cocaine except for 1 gram and arranged for a controlled delivery.

[86]

Police delivered the container to a railyard in Brampton. A man had
    leased a storage facility several days earlier. The only other person
    authorized to access the unit was the appellant. The other man arranged for a
    truck to deliver the container from the railyard to the storage facility. The
    appellant drove the other man to the storage facility to meet the truck. The
    appellant punched in the code to open the gate. Both men re-attended later that
    day and took delivery of the container. There was evidence of the appellants
    involvement with the shipment before it entered the railyard, as well as of his
    conduct at the storage facility when the container was delivered.

[87]

The appellant argued that the importation ended when the drugs entered
    Canada and cleared customs at Saint John on May 28, 2012  about two weeks
    before delivery of the container to the railyard in Brampton and its subsequent
    transport to the storage facility. The Crown was required but failed to prove
    that the appellant joined the conspiracy before it ended by the completion of
    its object, the importation of the cocaine.

[88]

The
Buttazzoni
court rejected the argument. The court held
    that, following
Onyedinefu
, the importation was not factually complete
    until its Canadian recipient took possession of it on June 13, 2012, after it
    became available at the railyard.

The Decision in
Anderson
;
Cumberbatch

[89]

In
R. v. Anderson; Cumberbatch
, 2020 ONCA 780; leave to appeal refused 2021
    CarswellOnt. 7082, CBSA officers intercepted a package addressed to Harley
    Eckert at an address in St. Catharines. The package, apparently sent from
    Jamaica, was labelled with a customs declaration listing various non-perishable
    food items as its contents. On inspection, cocaine was discovered. Police
    became involved. They removed all but one ball of cocaine and reassembled the
    package after installing a tracking device that would also trigger and alert
    the police when the package was opened. Police then obtained a general warrant
    to authorize a controlled delivery.

[90]

The controlled delivery took place. The
    consignee signed for the package and put it in the trunk of his vehicle. A few
    hours later, the package was transferred to the rear seat of the Andersons vehicle
    by Cumberbatch, who had received the package from the consignee. The two appellants
    remained together for about an hour at the place of transfer before Anderson drove
    home and took the package with her into the house. About an hour later, the
    tracking device alerted police that the package had been opened. They entered Andersons
    home and found her standing by the opened package. The bags in which the
    cocaine had been found had been removed. They were being examined by another
    man in a backyard shed.

[91]

The appellants and Eckert were convicted
    of importing and possession of cocaine for the purpose of trafficking. On
    appeal, Anderson and Cumberbatch contended that the conviction of importing was
    unreasonable because the offence was complete when the package was delivered to
    the consignee. Since their involvement occurred after the offence was complete,
    they could not be convicted of importing. At best, possession for the purpose
    of trafficking, provided the required elements of knowledge and control could
    be proven beyond a reasonable doubt.

[92]

This court rejected the argument, which
    was different than the argument that the appellants had advanced at trial.
    There, the appellant had urged that the importation was complete when the drugs
    entered the country, even before the consignee took delivery. On appeal the
    appellants contended that the importation was complete when the consignee, as
    the first domestic recipient, received the package:
Anderson
;
Cumberbatch
,
    at paras. 14, 16.

[93]

In
Anderson
;
Cumberbatch
, the court held that
Buttazzoni
did
not
stand for the principle that it is always the first domestic
    recipient who is the importer. It is the identity of the ultimate domestic
    recipient that is important. The offence of importing was not factually
    complete until the package was received by the ultimate recipient. In
Anderson
;
Cumberbatch
, the ultimate recipient was the man in Andersons backyard
    shed who was apparently searching for the cocaine in the packaging in which
    police had found it secreted:
Anderson
; Cumberbatch, at paras. 20-22.

The Current State of the Law

[94]

This survey of
Bell
and subsequent decisions of this court in
    the ensuing decades leads me to several conclusions about the principles that
    govern the essential elements of importing and their proof.

[95]

As with all true crimes, importing a controlled substance consists of a
    physical and a fault element. Each element must be established by relevant
    material and admissible evidence beyond a reasonable doubt. At some point, the
    two elements must coincide.

[96]

The
physical
element in importing requires that an accused
    import a substance. That substance must be a controlled substance included in a
    Schedule under the
CDSA
.

[97]

The
fault
element in importing requires that the accused intended
    to import a substance and knew that the substance was a controlled substance,
    though not necessarily the precise substance alleged.

[98]

The majority decision in
Bell
teaches that the term
    import, in its various forms undefined in the
CDSA
, has no special
    or restricted meaning. It bears its ordinary meaning of bringing, or causing a
    controlled substance to be brought into the country. We also learn from the
Bell
majority
that the offence is complete
    when the controlled substance enters the country and that importing is not a
    continuing offence, as for example, is possession, or as later determined in
Vu
, kidnapping.

[99]

What we do not know from
Bell
,

is what enters the country
    means  or more accurately put, when the enters the country requirement is
    completed or ends. We do know that the offence may be committed anywhere in
    Canada and, in all or in part, at more than one location. And that the courts
    in each place where it occurs have jurisdiction to try those charged there.

[100]

Since
Bell

doe
s not define enters the country, or at least its
    endpoint or outer limit, it has fallen to this and other intermediate appellate
    courts to do so  at a minimum in cases in which controversy exists about
    whether the evidence of an accuseds involvement satisfies the physical element
    of the offence.

[101]

Any meaning assigned to enters the country, thus
    the endpoint or temporal limit of the physical element in importing, must be consistent
    with the decision of the majority in
Bell
.
But it must also keep a weather eye on
    the purpose of the legislation  to prohibit dangerous drugs becoming available
    to the population of Canada  and the myriad ways, bounded only by the limits
    of human ingenuity, in which controlled substances may be brought in from
    abroad. Personal carriage. Mail or courier service. By air. By water.

[102]

When the
    physical element in importing has been completed, its endpoint is important in
    the demonstration of an accuseds criminal liability. But, as we know, evidence
    of things said and done by an accused after an offence has been committed may
    assist in proof of that accuseds participation in the antecedent offence and
    demonstrate the fault element that accompanied it. Completion of the physical
    element is not the final curtain on proof of criminal liability.

[103]

The appellant
    acknowledges that binding precedent in this province requires that we hold that
    contraband, such as controlled substances, enters the country when it clears
    customs. In this case, he says, that means the appellant should be acquitted.
    But if the appellant paid the duties owed to the impersonated FedEx employee,
    as the evidence shows, is he not hoisted on his own petard? The package cleared
    customs when he paid the duties owing, otherwise it would have remained under
    Customs control.

[104]

Not every
    importation involves clearance through Customs. Consider an act of smuggling to
    an isolated location. Guns and drugs across the St. Lawrence River from New
    York State into Ontario. Or Quebec. The precise purpose  to avoid customs and
    its rigours. What clearance through Customs does is to result in the cessation
    of control over the contraband by the appropriate authorities, with the
    consequence that the contraband becomes available to the carrier, consignee,
    addressee, or their delegate and remains in Canada. Perhaps a more felicitous
    expression of the endpoint of importation is that it occurs when contraband
    from abroad enters Canada and is no longer under the control of the appropriate
    authorities.

[105]

The appellant
    does not challenge the correctness of the decision in
Foster
. It is
    consistent with binding precedent. But, he says, its reasoning is flawed. The
    descriptives the appellant applies vary. Unlawful. Undemocratic. Anticipatorily
    over-ruling the binding precedent of
Bell
. Stripped of hyperbole and
    pejorative characterization, I take this to mean that the reasoning is legally
    wrong.

[106]

The decision in
Foster
applies and is consistent with the majority decision in
Bell
. Left
    unanswered by
Bell
, by the appellants own admission, is the meaning
    to be assigned to the phrase enters the country. This,
Foster
concludes, in a case of personal carriage of the contraband, of bringing it
    into Canada, occurs when the contraband (and its carrier) clear Customs. This
    concludes the physical element of the offence. This endpoint does not mean that
    importing is a continuing offence. Nor is it inconsistent with what the
    majority in
Bell
decided. It reflects the law in this province as
    expressed in post-
Bell
authorities, the integrity of which is not
    challenged here.

[107]

The decision in
Foster
involved a courier who brought the drugs into Canada from Jamaica. Although the
    drugs were physically in Canada when she arrived at Pearson International
    Airport, they and she remained in the control of the relevant authorities until
    she cleared Customs. It was only when she and the drugs cleared Customs that
    the drugs were no longer in the control of the relevant authorities and the
    offence of importing was complete.

[108]

The
    circumstances here differ from
Foster
. The drugs were sent from Kenya
    by FedEx. When the package arrived in the United States, heroin was detected on
    customs inspection. The package and its contents were forwarded to Canada where
    authorities removed most of the drugs but retained control over the package and
    the drugs remaining in it. A warrant authorizing a controlled delivery was obtained.
    The authorities did not give up control over the package and its contents until
    the appellant, posing as the consignee, Abel Morrison, took delivery. It was at
    that time that the offence of importing was complete. The drugs were physically
    in Canada and apparently out of the control of the authorities. The
    circumstantial evidence, taken as a whole, established the appellants
    liability for importing.

[109]

In some cases, as
    the example given in para. 104 illustrates, the drugs may be physically in
    Canada but never in the control of the authorities because of the manner in
    which the drugs have been brought into the country. In these cases, the offence
    of importing is complete when the drugs are physically in Canada. It will be
    for the Crown to establish that any person charged brought the drugs into
    Canada from abroad, or caused them to be brought into this country from abroad.
    The evidence relied upon to establish liability may be direct, or
    circumstantial, or a combination of both.

[110]

A final point
    about the decision in
Foster
: the reference to the distinction between
    an offence being complete in law, on the one hand, and in fact, on the other.

[111]

This distinction
    was referred to with apparent approval by Moldaver J. on behalf of the court in
Vu
in deciding that kidnapping was a continuing offence. Neither
    Moldaver J. in
Vu
, nor Dickson J. in his minority reasons in
Bell
,
    confined the distinction to continuing offences. In
Foster
, the
    reference to
Vu
and the distinction between completion of an offence
    in law and in fact was not essential to the decision that the importing was not
    complete until Foster and her contraband cleared Customs. Whether the
    distinction extends beyond continuing offences is best left to another day and
    should not form part of the analysis in importing cases until that decision has
    been made.

[112]

The other
    authorities whose continued vitality and precedential value are challenged here

Onyedinefu
and
Buttazzoni
 may be considered together.
    Each applied the principles of
Foster
to controlled deliveries. In
    each case, the argument was the appellants involvement occurred only
after
the
    importation was complete. It followed, the submission continued, that the
    appellant could not have been convicted of an offence that was complete before
    he became involved.

[113]

To the extent
    that each applied the completion in law  completion in fact distinction from
Foster
,
    as I have already explained, that reasoning may be flawed, applicable only to
    continuing offences of which importing is not one. It should not be followed in
    determining whether liability for importing has been established. The standard
    that should be applied in connection with the physical element of the offence
    is whether the contraband has cleared Customs. Or, more generally, whether the
    contraband, having entered Canada from abroad, is no longer within or under the
    control of the Customs authorities.

[114]

Without more, the
    mere fact that the principal evidence against an accused consists of things
    done or said
after
the physical element of the offence of importing
    has been completed does not mean that an acquittal will inevitably follow. Each
    case falls to be decided on its own facts. As is well known, evidence of
    after-the-fact conduct, including things done and said, may support an inference
    of prior participation and its accompanying fault element.

[115]

Foster
applied the standard I have described to a case in which the appellant brought
    the cocaine physically into Canada. She did so by secreting it on her person.
    She and the cocaine were and remained in the control of the authorities. Her
    conviction was consistent with
Bell
,
Tan
and
Valentini
.
    The importing offence was not complete until she and her cargo cleared Customs
    since only then was the contraband beyond the control of the authorities.

[116]

The decisions in
Onyedinefu
and
Buttazzoni
both involved controlled deliveries
    where drugs had been detected prior to their arrival in Ontario. The conviction
    under appeal and in
Onyedinefu
was importing and in
Buttazzoni
conspiracy to import. Each applied the complete in law/complete in fact distinction
    from
Foster
. As I have already explained, that reasoning should not be
    followed unless it is approved by the Supreme Court of Canada.

[117]

In
Onyedinefu
,
    the drugs were present in a package that the appellant admittedly brought into
    Canada but which he claimed he thought contained electronics. The package
    remained under the control of the authorities until the appellant picked it up.
    It was only at that point that the authorities gave up control. It was at that
    point that the importation ended. Despite the trial judges use of the complete
    in law/complete in fact analysis, the result would have been no different had
    the analysis followed the proper standard.

[118]

In
Buttazzoni
,
    another case of controlled delivery, the appellant was acquitted of importing,
    but convicted of conspiracy to import. The court considered when the
    importation was complete because the Crown had to prove and the trial judge had
    to find that the appellant had joined the conspiracy before its object
    importation of cocaine  was complete. The court concluded that the importation
    did not end until the co-accused picked up the container on behalf of the
    consignee, a grocery store. In reaching this conclusion, the court applied the
    complete in law/complete in fact reasoning.

[119]

The conclusion
    reached by the
Buttazzoni
court would not have been different had the
    analysis applied the proper standard. There was ample evidence of Buttazzonis
    involvement with the shipment from Guyana
before
it arrived at the
    railyard to support an inference that his agreement with his co-accused
    included an agreement to import drugs into Canada. The court also concluded
    that the importation ended on the date the cargo was picked up at the railyard.
    The same result would fall on the correct analysis since the drugs remained in
    the control of the authorities until the consignee picked them up in the
    railyard.

[120]

It follows from
    what I have said that, apart from rejecting the complete in law/complete in
    fact reasoning in
Foster
,
Onyedinefu
, and
Buttazzoni
,
    I would not overrule or otherwise qualify the decisions rendered in those
    cases. In each case it is for the trier of fact to determine on the whole of
    the evidence whether the Crown has proven beyond a reasonable doubt that the
    accused was responsible for the importation alleged, that is to say, that the
    accused brought the controlled substance into Canada or had it brought here
    from outside the country.

[121]

Neither
    appellant invited us to overrule or otherwise qualify our previous decision in
Anderson
;
Cumberbatch
. In particular, we were not asked to reject its reference
    to the ultimate recipient as extending the offence of importing beyond what
Bell
and the other authorities would permit. In these circumstances, we consider it
    best to leave to another day whether that decision requires reconsideration.

The Principles Applied

[122]

As I will
    briefly explain, I would not give effect to this ground of appeal.

[123]

The first issue
    the trial judge considered was whether the appellant had been involved in the
    physical element of the offence  the act of importing the heroin. This was a
    contested issue at trial. The position of the appellant was that the physical
    element of the offence was complete before he had any connection to the package.

[124]

The trial judge held
    that the offence of importing was not complete in fact until the contraband
    reached its intended recipient. She relied on the decisions in
Foster
,
Onyedinefu
, and
Buttazzoni
to support her conclusion.

[125]

To the extent
    that the reasoning of the trial judge invoked the complete in law  complete in
    fact distinction, it is in error. But her conclusion, that the importation was
    completed when the appellant obtained the package from the impersonated FedEx
    delivery operator, was correct. It was only then that the packages were in
    play in Canada. It was only then that the controlled substance in the package
    heroin  was no longer under the control of the appropriate authorities, thus
    became available to the consignee or addressee or their delegate and reached
    the point that would result in them remaining in Canada.

[126]

The trial
    judges findings of fact were at once faithful to the evidence adduced at trial
    and supportive of the appellants participation in causing the heroin to be
    brought into Canada.

[127]

When asked by
    the impersonated FedEx delivery operator whether he lived at 10 Haynes Avenue,
    the appellant responded affirmatively. He got out of the vehicle in which he
    had arrived there. He had crumpled currency in his hand. He asked how much he
    owed. He corrected the officers deliberate mispronunciation of the first name
    of the consignee. He repeated the full name of the consignee, Abel Morrison,
    twice without even having been advised of it by the officer. The appellant did
    not in fact live at 10 Haynes Avenue. He misled the officer into thinking that
    he did live there and that his name was Abel Morrison. He had received a text
    from Chucks 3 that read: Abel Morrison, 10 Haynes Ave. The heroin in the
    package had substantial value. On arrest and after
Charter
advice, the
    appellant told investigators that his girlfriend, who was with him when he took
    delivery of the package, had nothing to do with this.

[128]

This ground of
    appeal fails.

Ground #2: Unreasonable Verdict

[129]

The core of this
    complaint is that the appellants belief that the package imported from Kenya
    contained a controlled substance was not the only reasonable inference from the
    whole of the evidence admitted at trial.

[130]

The appellant
    acknowledged that the evidence, taken as a whole, was sufficient to support an
    inference that the appellant believed the package contained a controlled
    substance. However, that was not the only reasonable inference available, as is
    required by the authorities to sustain the finding.

[131]

A brief reference
    to the trial judges reasons provides sufficient background to evaluate the
    merits of this claim.

The Reasons of the Trial Judge

[132]

The trial judge
    explained why she was satisfied that the only reasonable inference from the
    totality of the circumstantial evidence received at trial was that the
    appellant knew that the package contained a controlled substance. She wrote:

First, I rely on the fact that the accused received a text
    message that provided him with the name Abel Morrison and the address of 10 Haynes
    Avenue. He responded ok. I view this as an indication that he knew that there
    was a delivery for Abel Morrison that he was to take receipt of at that address
    using a false name. This is some indication that he knew that there was
    something illicit about what he was doing.

Second, I consider the value of the package. As Hill J.
    explained in
R. v. Ukwuaba
, 2015 ONSC 2349, at para. 112, heroin
    trafficking is a commercial business for profit. Common sense dictates that
    those who own this sort of valuable illegal item seek to protect it against the
    risk of detection or loss. It makes sense, therefore that they would protect
    their investment by insuring that they have trusted insiders handling the drugs
    where possible. This necessitates that those who receive packages into Canada
    with valuable narcotics appreciate what it is they are receiving. Common sense
    powerfully suggests that Mr. Okojie knew what he was receiving.

Third, I consider the level of sophistication of the importing
    operation. Both parties agree that concealing the small heroin packages in the
    top of the mascara was sophisticated. This packaging would have been time
    consuming. The package with the mascara was shipped from Kenya. Given the
    amount of effort spent concealing the drugs and then getting them from Kenya
    into Canada, it just makes sense that the person receiving the package would
    know what is in it.

Fourth, I consider the words and actions of Mr. Okojie at the
    time that he took possession of the package, knowing that it was not addressed
    to him. I view his conduct as demonstrative of the fact that he was aware that
    there was a controlled substance in the package and that he was determined to
    ensure that he took possession of it, even if doing so required misleading the
    officer as to who he was. More specifically:

a. Mr. Okojie knew that there was a FedEx package being
    delivered to 10 Haynes Avenue. When Sgt. Gorgichuk first asked him if he lived
    there, he said he did. Given that he provided a different home address to Cst.
    Rimanelli at the police detachment after his arrest, it appears that he lied to
    Sgt Gorgichuk so that she would deliver the package to him.

b. Mr. Okojie also intentionally misled the officer into
    believing that he was Abel Morrison, the person to whom he knew the package was
    sent. When she mis-pronounced the first name of the person to whom the package
    was sent, he immediately corrected her and provided the last name Morrison. I
    find that he did this with the intention of making her believe that was who he
    was, even if he did not say so directly. I have no doubt that the accused was
    trying to appear to be the intended recipient of the package.

c. Mr. Okojie signed the door delivery tag to acknowledge
    taking possession of the package. What he wrote on the document is not really
    clear. I cannot conclude, as the Crown suggests, that he used a signature
    different from what he later used at the detachment. But, I do find that the
    act of signing for the package was a further step taken in his effort to hold
    himself out as the proper recipient of the package, Abel Morrison.

Fifth, I find that Mr. Okojies statement after his arrest that
    his girlfriend had nothing to do with this is some evidence that he knew that
    there was a controlled substance in the package when he took it. While the
    package was not addressed to his girlfriend, his utterance suggests that he
    knew that there were a small number of people who would be aware of its
    contents, that he was within that circle, and that he knew that his girlfriend
    was not in that circle. While I accept that Mr. Okojie could have been trying
    to mislead the police, I view his statement as a further piece of
    circumstantial evidence that he knew that there was a controlled substance in
    the package.

The Arguments on Appeal

[133]

As I have said,
    the appellant accepts that the requisite belief that the package contained a
    controlled substance was a reasonable inference from the whole of the evidence
    received at trial. But that is not enough to prove this essential element
    beyond a reasonable doubt, much less to establish the appellants guilt. The required
    belief was not the only reasonable inference available on this evidence. Other
    reasonably possible beliefs were available. Explosives. Counterfeit money.
    Fraudulent banking instruments. Poison.

[134]

The respondent
    accepts the standard of proof required when a finding of fact about an
    essential element of an offence, as well as the ultimate issue of guilt, rests
    solely on circumstantial evidence. Further, the respondent acknowledges that
    inferences consistent with innocence may be grounded on the absence of
    evidence, as well as unproven facts. However, the respondent reminds us, the
    other reasonable inferences consistent with innocence must find their footing
    in logic and experience applied to the evidence or lack of evidence, not
    speculation.

[135]

In this case,
    the respondent continues, the proposed alternative inferences inconsistent with
    guilt  explosives, poisons, counterfeit money, and the like  are speculative,
    far-fetched theories, unmoored from logic and human experience. What is more, a
    relevant factor in evaluating the merit of this ground of appeal is that the
    appellant did not testify nor adduce any evidence in support of any alternative
    reasonable inference consistent with innocence.

The Governing Principles

[136]

The governing
    principles are beyond debate.

[137]

In a case in
    which proof of one or more essential elements of an offence depends exclusively
    or largely on circumstantial evidence, the inference of guilt or of an
    essential element of the offence must be the only reasonable inference to be
    drawn from the evidence as a whole:
R. v. Villaroman
, 2016 SCC 33,
    [2016] 1 S.C.R. 1000, at paras. 30, 34.

[138]

Inferences
    consistent with innocence may, but need not, arise from proven facts. This is
    because these inferences may also arise from a lack of evidence:
Villaroman
,
    at paras. 35-36. To establish guilt, the Crown is required to negative these
    reasonable possibilities consistent with innocence, but need not negative every
    possible conjecture, no matter how irrational or fanciful, which might be
    consistent with the innocence of an accused:
Villaroman
, at para. 37.
    These other plausible theories or reasonable possibilities must be based on
    logic and experience applied to the evidence, or absence of evidence, not on
    speculation:
Villaroman
, at para. 37.

[139]

To support a
    finding of guilt based entirely or substantially on circumstantial evidence,
    the circumstantial evidence, taken as a whole, and assessed in the light of
    human experience, must exclude any other
reasonable
alternatives:
Villaroman
,
    at para. 41;
R. v. Ali
, 2021 ONCA 362, at paras. 97, 98.

[140]

A verdict is
    reasonable if it is one that a properly instructed jury, acting judicially, could
    reasonably have rendered. Where the verdict of the trial court challenged as
    unreasonable on appeal is based entirely or substantially on circumstantial
    evidence, the issue for the appellate court to determine is whether the trier
    of fact, acting judicially, could reasonably be satisfied that the appellants
    guilt was the only reasonable conclusion available on the evidence taken as a
    whole:
Villaroman
, at para. 55. It is fundamentally for the trier of
    fact to decide whether any proposed way of looking at the case is sufficiently
    reasonable to raise a doubt about the accuseds guilt:
Villaroman
, at
    para. 56.

[141]

When a
    conviction based wholly or substantially on circumstantial evidence is
    challenged as unreasonable on appeal, the appellate court may consider the
    appellants failure to testify as indicative of the absence of any inference
    alternative to guilt:
R. v. Corbett
, [1975] 2 S.C.R. 275, at pp.
    280-81;
R. v. George-Nurse
, 2018 ONCA 515, 432 D.L.R. (4th) 88, at
    para. 32, affd, 2019 SCC 12, [2019] 1 S.C.R. 570.

[142]

A final point
    concerns the manner in which circumstantial evidence is to be assessed. Neither
    triers of fact at first instance, nor appellate courts on review for
    unreasonableness, examine individual items of circumstantial evidence
    separately and in isolation, adjudging them against the criminal standard and
    rejecting them should they fail to measure up to that standard. No individual
    item of circumstantial evidence is ever likely to do so. They are bricks with
    which to construct a wall, not the wall itself. In circumstantial cases, it is
    commonplace that individual items of evidence adduced by the Crown, examined
    separately and in isolation, have not a very strong probative force. But all the
    pieces of evidence have to be considered, each one in relation to the whole,
    and it is the whole of them taken together whose cumulative force must be
    considered and may constitute a basis for conviction:
Coté v. The King
(1941), 77 C.C.C. 75 (S.C.C.), at p. 76;
R. v. Morin
, [1988] 2 S.C.R.
    345, at pp. 361-62.

The Principles Applied

[143]

I would not
    accede to this ground of appeal.

[144]

The appellant
    acknowledges that the cumulative force of the items of evidence relied upon by
    the trial judge can support the inference of knowledge of a controlled
    substance drawn by the trial judge. As
Villaroman

teaches, fundamentally, it was for the
    trier of fact to decide whether the proposed alternative inference was
    reasonable enough to raise a reasonable doubt about the appellants guilt.

[145]

The trier of
    fact was not entitled to speculate about other plausible theories or
    possibilities. She was constrained by logic and experience that she was required
    to apply to the evidence or lack of evidence. The appellant did not testify. He
    did not otherwise provide any basis for an inference inconsistent with guilt.
    Nothing about explosives. Or poison. Or counterfeit money. Or fraudulent
    banking instruments, as are now said to have been reasonably possible
    inferences.

[146]

This ground of
    appeal fails and with it the appeal from conviction.

The Sentence Appeal

[147]

The appellant
    indicated that he also challenged the fitness of the sentence imposed upon him
    in the event that we set aside his conviction of importing, but not his
    conviction of possession of heroin for the purpose of trafficking. Since I
    would dismiss the appeal from both convictions, I do not reach the prospective
    sentence appeal.

Disposition

[148]

For these reasons,
    I would dismiss the appeal in its entirety.

Released: November 2, 2021 D.D."

David Watt J.A.

I agree. Doherty J.A.

I agree. K. van Rensburg
    J.A.

I agree, M.L. Benotto J.A.

I agree. I.V.B. Nordheimer
    J.A.


WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under
    ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue. These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in paragraph (a).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the victim of the right
    to make an application for the order; and

(b)     on application made by the victim, the
    prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other
    than an offence referred to in subsection (1), if the victim is under the age
    of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of
    their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29;
    2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. L.D., 2021 ONCA 786

DATE: 20211103

DOCKET: M52884/C69894

Trotter J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

L.D.

Applicant/Appellant

Michael Crystal, for the applicant/appellant

Manasvin Goswami, for the respondent

Heard: October 29, 2021 by video conference

REASONS FOR DECISION

[1]

After a trial in the Ontario Court of Justice, the applicant was
    convicted of sexual assault (
Criminal Code
, R.S.C. 1985, c. C-46, s.
    271), uttering death threats (s. 264.1), and breaching a release order (s.
    145). He was sentenced to three and a half years imprisonment.

[2]

The applicant seeks bail pending appeal. For the following reasons, the
    application is dismissed.

Background

[3]

The applicant was found guilty of sexually assaulting his former
    intimate partner. Although they had broken off their relationship, they
    remained in contact. They shared the same bed when the offences took place. The
    victim said that she awoke to find the appellant penetrating her vagina. The
    appellant then moved himself towards the victims face and ejaculated in her
    mouth.

[4]

The next day, the victim was on the phone with a male friend. The
    applicant was angry because a bail condition prohibited him from having a
    phone. When the victim said, Its not my fault  that youre not allowed a
    phone, he became angry and started punching himself in the temple area. He
    told the victim that he would tie up his mother and step-father and slit their
    throats; he also said he would slit the victims throat. At the time, the
    applicant was on bail while awaiting trial on charges of uttering threats,
    distributing intimate messages, and criminal harassment.

The Applicant

[5]

The applicant is 38 years old. He has an extensive criminal record.
    Excluding the offences for which he now seeks bail, the applicant has approximately
    40 convictions, including entries for sexual assault (x 1), uttering threats (x
    3), and criminal harassment (x 2). Most notably for bail purposes, he has 19
    convictions for breaching various types of court orders  release orders,
    probation orders, and a conditional sentence order.

The Release Plan

[6]

The applicant proposes a single surety  his new intimate partner. They
    have been together for over two years. The proposed surety is aware of the
    applicants most recent convictions. Although she was not his surety with
    respect to these offences, she swears that the applicant abided by all of his
    bail conditions when they were together. She also said: I have no concerns
    that if this court sees fit to release him, he will comply with all conditions
    imposed upon his release this time. I will be there to support him and to
    ensure that he complies with his conditions.

Grounds of Appeal

[7]

The applicant submits that the trial judge erred by admitting a
    statement the appellant gave to the police. The trial judge rejected the
    submission that the police breached the applicants rights under s. 10(b) of
    the
Charter
by denying him access to his counsel of choice. He submits
    that he should not have been forced into consulting with duty counsel when he
    had his own lawyer. The police should have allowed him more time to consult his
    counsel of choice.

Discussion

[8]

The criteria for bail pending appeal of a
    conviction are set out in s. 679(3) of the
Criminal Code
. An applicant must establish that: (a) the appeal is not frivolous;
    (b) he will surrender into custody in accordance with the terms of any bail
    order; and (c) detention is not necessary in the public interest.

(1)

Not Frivolous (s. 679(3)(a))

[9]

In
R. v. Oland
, 2017
    SCC 17, [2017] 1 S.C.R. 250, at para. 20, Moldaver J. said that the not
    frivolous test is widely recognized as being a very low bar. The Crown does
    not assert that the proposed ground of appeal is frivolous; instead, he submits
    that it is weak and, in any event, overcome by enforceability considerations in
    the public interest equation (s. 679(3)(c)). I agree that the appeal is not
    frivolous.

(2)

Surrender into Custody (s. 679(3)(b))

[10]

Despite
    the applicants many breaches of court orders, absconding does not appear to be
    a problem. The Crown does not submit otherwise. The applicant has met his onus
    on this criterion.

(3)

The Public Interest (s. 679(3)(c))

[11]

There
    are two components to public interest branch under s. 679(3)(c) of the
Criminal
    Code
 public safety and public confidence in the administration of
    justice. This bail application fails on public safety considerations.

[12]

As
    noted already, the applicants criminal record is extensive. The applicant has convictions
    for sexual assault and criminal harassment in relation to former intimate
    partners. This must be seen in the light of his track record for breaching
    court orders of various kinds. This is an important factor in gauging how the
    applicant can be expected to perform if released on bail pending appeal: see
R. v. S.H.
,
    2020 ONSC 4041, at para. 33. So too is the fact that the applicant was on bail
    when he committed the sexual assault in this case: see
R. v. Le
, 2006
    MBCA 68, 240 C.C.C. (3d) 130, at paras. 34-35.

[13]

Set
    against the applicants criminal history is the evidence of his proposed
    surety, being his new intimate partner. She observed no breaches during his
    time on bail, a factor that weighs in the applicants favour on this ground:
R.
    v. Walters
, 2020 ONCA 825, at para. 11.

[14]

Although
    the proposed surety has not witnessed any compliance problems, she was not his
    surety at the time. Like many good people willing to assume the important role
    of a surety, she has no track record in actually supervising the applicant. Her
    chances of success are considerably weakened by the applicants proven
    unwillingness or inability to comply with court orders.

[15]

In
    all of the circumstances, the applicant has failed to discharge his onus on
    this aspect of s. 679(3)(c). Given my finding on the public safety component of
    this ground, it is not strictly necessary to address public confidence
    considerations. However, I make the following observations.

[16]

I
    am not persuaded that reviewability interests ought to trump enforceability
    considerations in this case. The offence was serious. The trial judges
    thorough reasons for judgment demonstrate that, although there were
    inconsistencies between the applicants statement and his testimony, there were
    significant internal testimonial inconsistencies. The prospect of overturning
    his conviction on this basis seems doubtful.

[17]

Even
    if the applicant could establish a favourable balance between reviewability and
    enforceability considerations under s. 679(3)(c), this is one of those cases
    where residual public safety concerns prevent release:
Oland
, at
    para. 27.

Conclusion

[18]

The
    application is dismissed.

Gary Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Kelly (Re), 2021 ONCA 782

DATE: 20211105

DOCKET: C69092

Rouleau, Huscroft and Thorburn JJ.A.

IN THE MATTER OF: Cindy Kelly

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti and Tanner Blomme, for the appellant

Khorshid Rad, for the respondent, Attorney General of
    Ontario

Julie Zamprogna, for the respondent, Southwest Centre
    for Forensic Mental Health Care

Heard: October 29, 2021 by video conference

On appeal from the disposition of the Ontario Review
    Board, dated February 10, 2021, with reasons dated March 2, 2021.

REASONS FOR DECISION

[1]

It is not contested that the appellant poses a significant risk to the
    safety of the public. The sole issue on this appeal is whether a detention
    order was the least onerous and least restrictive disposition. The appellant
    argues that she should have received a conditional discharge.

[2]

The appellant argues that the Board failed to make a number of inquiries
    relevant to granting a conditional discharge and that it was unreasonable to
    deny her a conditional discharge. For example, the Board failed to meaningfully
    consider or inquire into the housing of the appellant at her husbands home in
    Lambton County.

[3]

We disagree.

[4]

The Board considered and rejected a conditional discharge for two
    primary reasons: the need to facilitate the appellants return to the hospital
    if necessary and the need to approve her housing in the community.

[5]

The Board found that recourse to the
Mental Health Act
, R.S.O. 1990, c. M.7,
had been
    inadequate to manage the risk the appellant poses in the past and could not be
    relied upon in the future. The appellant had a history of supervision failure
    immediately prior to her NCR finding. She remains incapable of making treatment
    decisions and has limited insight into her mental illness and treatment
    requirements. She left hospital against medical advice on several occasions and
    on one occasion soon returned to the scene of the index offence.

[6]

We see no error in the Boards decision and no basis to intervene on
    appeal. Contrary to the appellants submissions, the Board did not fail to
    exercise its inquisitorial function. It specifically considered the inclusion
    of a
Young
provision, but considered it inadequate because the
    hospital would have no power to detain the appellant unless she agreed to
    voluntary readmission or remained certifiable under the
Mental Health Act
 clearly a problem in light of the appellants history of refusing to stay in
    hospital and non-compliance. Moreover, the appellant had been unable to receive
    substance abuse counselling she required, as a result of the COVID pandemic.

[7]

As for housing, it is well established that the appellants residence is
    a relevant consideration in determining the management of risk to public safety:
    see e.g.,
Munezero (Re)
, 2017 ONCA 585, at para. 9.

[8]

The Board found that the appellant requires professional support,
    supervision, and monitoring for community accommodation, as unstable housing
    had been a risk factor for her methamphetamine use and criminal behaviour.

[9]

This is not, as the appellant submits, a case such as
Williams (Re)
,
2021 ONCA 90, where the hospital can be faulted for failing to assess the
    adequacy of available housing options. First, unlike
Williams
, the
    hospital did not consider the appellant ready to live in the community. The
    hospital needed to know the outcome of therapy before allowing the appellant to
    reside in the community.

[10]

Second,
    the Board was not satisfied that her needs would be met if she lived with her
    husband. There was evidence that the appellants relationship with her husband
    was not good, including a prior restraining order against him. The appellant
    and her husband had been separated and homeless prior to her admission to the
    hospital. He had little in-person contact with her, and she had previously made
    it clear to her treatment team that she did not want her husband involved in
    her care until she was granted an absolute discharge. He was not designated as an
    approved person or as her substitute decision maker and the appellant had
    denied the treatment team permission to allow them to contact him.

[11]

In
    these circumstances, the Boards finding that a conditional discharge was
    inappropriate cannot be said to be unreasonable.

[12]

The
    appeal is dismissed.

Paul Rouleau J.A.

Grant Huscroft J.A.

J.A. Thorburn J.A.