COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Windebank, 2021 ONCA 118

DATE: 20210202

DOCKET: M52172 (C68874)

Fairburn A.C.J.O.

BETWEEN

Her Majesty the Queen

Appellant

and

Jason Windebank

Respondent

Stacey D. Young and Jennifer Stanton,
    for the appellant

Anil K. Kapoor and Dana C. Achtemichuk,
    for the respondent

James Foy and Michelle Psutka, for the
    proposed intervener, the Criminal Lawyers Association of Ontario

Heard: February 1, 2021 via videoconference

REASONS FOR DECISION

[1]

The Crown appeal in
R. v. Windebank

(C68874)
    is scheduled to be heard on February 22, 2021. The respondents factum is due
    on February 10, 2021.

[2]

This appeal raises an issue of statutory
    interpretation. Section 535 of the
Criminal Code
, R.S.C., 1985, c. C-46,

sets out
    when an accused is entitled to a preliminary inquiry. Section 535 reads:

If an accused who is
charged
    with an indictable offence that is punishable by 14 years or more of
    imprisonment
is before a justice and a request has been made for a
    preliminary inquiry under subsection 536(4) or 536.1(3), the justice
shall
, in accordance with this Part, inquire into the
    charge and any other indictable offence, in respect of the same transaction .
    [Emphasis added.]

[3]

The issue on appeal is whether s. 535 of the
Criminal
    Code
should be interpreted so as to entitle an accused to a preliminary
    inquiry in those circumstances where he or she is informed by the Crown, ahead
    of his or her election, that the Crown may pursue a dangerous offender finding
    in the face of a conviction. Owing to the potential indeterminate nature of the
    custodial term that could flow upon a dangerous offender finding, despite the
    fact that he is not charged with an offence that is punishable by 14 years of
    imprisonment or more, Mr. Windebank argues that he is entitled to a preliminary
    inquiry under s. 535 of the
Criminal Code
.

[4]

This case rests on a narrow factual foundation.
    Mr. Windebank stands charged with one count of assault causing bodily harm
    contrary to s. 267(b) and one count of assault by choking contrary to s. 267(c)
    of the
Criminal Code
. When tried by indictment, these crimes are
    punishable by not more than ten years imprisonment. This brings squarely into
    focus whether an informal prosecutorial notice that a dangerous offender
    designation may be sought upon conviction, should entitle Mr. Windebank to a
    preliminary inquiry.

[5]

Mr. Windebank has taken the position that s. 535
    should be interpreted broadly, permitting him resort to a preliminary inquiry
    because of the potential jeopardy that he now knows he faces. He has found
    favour with that argument at two levels of court, first in the Ontario Court of
    Justice and then in response to the Crowns attempt to seek relief by way of
    prerogative writs: 2020 ONCJ 567, [2020] O.J. No. 5284; 2020 ONSC 8107, [2020]
    O.J. No. 5771.

[6]

The Criminal Lawyers Association of Ontario
    (CLA) seeks leave to intervene in this appeal that is only three weeks away.
    In the normal course, it is expected that intervener applications will be
    brought in a reasonable amount of time prior to the hearing of the appeal so
    that there is no disruption to the court or the parties. Indeed, the timing of
    any such application is a factor to be taken into account in determining
    whether a potential intervener should be granted that status.

[7]

In this case, the scheduling of the appeal has
    been substantially accelerated in light of its subject matter. Therefore, I do
    not take the timing of this application into account in determining its proper
    disposition.

[8]

The CLA wishes to make three arguments on
    appeal:

(a)     If
    an accused faces a
potential total
sentence of 14
    years or more, he or she should be entitled to a preliminary inquiry.

(b)     Section
    718.3(8) of the
Criminal Code
allows
    for the imposition of a term of imprisonment that is more than the maximum term
    of imprisonment provided for the offence in circumstances involving repeat
    intimate partner violence. In specific, s. 718.3(8)(c) allows for a maximum
    term of 10 years imprisonment to be increased to 14 years imprisonment in
    circumstances involving repetitive conduct as defined in that provision. The
    CLA argues that
any accused who is given
    informal notice of the Crowns intention to invoke s. 718.3(8)(c) at the
    sentencing stage of the proceedings, should a conviction flow, should also be
    entitled to a preliminary inquiry
.

(c)     Except
    where impracticable,
the Crown should be required to
    provide the accused with pre-election notice
as to whether a dangerous
    offender proceeding upon conviction will be pursued or an increased penalty
    will be requested pursuant to s. 718.3(8)(c) of the
Criminal Code
.

[9]

The respondent on appeal consents to the CLAs
    intervention on all proposed issues.

[10]

The Crown consents to the CLAs intervention on
    the first proposed argument: whether s. 535 of the Criminal Code extends to
    those situations where the accused faces a
potential
    total sentence
of 14 years or more. The Crown opposes the intervention
    on the other proposed arguments.

[11]

In my view, the CLAs first proposed position
    serves to add a useful and different perspective to the appeal, one that will
    not cause an injustice to the parties. The CLAs first position is somewhat different
    from Mr. Windebanks, in the sense that the CLA will argue that when
    determining whether the accused is charged with an offence that is punishable
    by 14 years or more, that calculation must be approached from the perspective
    of totality. To use Mr. Windebanks situation as an example, the CLAs position
    is that, because he is charged with two offences that are each punishable by up
    to 10 years, he is theoretically susceptible to a total sentence of 20 years
    imprisonment. Therefore, based upon the plain meaning of the provision, and
    consistent with its spirit, the CLA will argue that s. 535 of the
Criminal
    Code
affords a preliminary inquiry
    upon request in circumstances such as the one that Mr. Windebank finds himself
    in
.

[12]

The CLAs second position is more problematic.
    The CLA has focussed in on s. 718.3(8)(c) of the
Criminal Code
. That
    provision reads as follows:

718.3(8) If an accused is convicted of an
    indictable offence in the commission of which violence was used, threatened or
    attempted against an intimate partner and the accused has been previously
    convicted of an offence in the commission of which violence was used,
    threatened or attempted against an intimate partner, the court may impose a
    term of imprisonment that is more than the maximum term of imprisonment
    provided for that offence, but not more than

(c)    14 years, if the maximum term of imprisonment for the offence
    is 10 years or more but less than 14 years .

[13]

In their written materials, the CLA has argued
    that, because an accused may face a sentence higher than the statutory maximum
    after conviction for the offence for which they are charged in circumstances
    of consecutive convictions for intimate partner related crimes, the accused
    should also be entitled to a preliminary inquiry.

[14]

To the extent that the CLA is asking this court
    to rule that the potential applicability of s. 718.3(8)(c) of the
Criminal
    Code
, at a potential sentencing stage of a proceedings,

entitles an
    accused to a preliminary inquiry, the CLA is raising a new issue that has not
    been decided in the courts of first and second instance. This statutory
    provision was not even addressed in either of the decisions that form the
    backdrop for this appeal. To allow an intervener at this stage to request this
    court to make a definitive statement about the operation of s. 718.3(8)(c),
    such that it entitles an accused to a preliminary inquiry, is entirely outside
    the scope of this appeal.

[15]

This case is about the interpretation of s. 535
    of the
Criminal Code

in the face of an informal notice about
    potential dangerous offender proceedings that may occur following a potential
    conviction. While there is nothing to preclude the CLA from pointing to s.
    718.3(8)(c) as an interpretative aid in advancing their argument as to the
    scope of s. 535, it would well exceed the bounds of this appeal to request this
    court to embark upon an exercise in determining whether the potential
    applicability of s. 718.3(8)(c) is a definitive gateway to a preliminary
    inquiry. In my view, to permit the CLA to advance this argument, would introduce
    a completely new issue into the appeal.

[16]

This is equally true when it comes to the final proposed
    argument made by the CLA: the timing of Crown notice. The CLA contends that,
    except in exceptional cases, the Crown should be required to provide notice,
    prior to the accuseds election, of its intention to pursue a dangerous
    offender application or the application of s. 718.3(8)(c) of the
Criminal
    Code
.
Again, to permit the CLA to raise this argument on appeal
    would inject a significant new and previously untested issue into the appeal.

[17]

Prior to his election, Mr. Windebank was given informal
    notice of the Crowns intention to seek a s. 752.1 remand for an assessment
    should he be convicted. That assessment acts as a precursor to bringing a
    dangerous or long-term offender application. The Crown was under no statutory
    obligation to provide that notice in this case. Indeed, Part XXIV of the
Criminal
    Code

only requires seven days notice before an application is
    brought: s. 754(1)(b). Of course, proceedings under Part XXIV of the
Code

typically occur post-conviction, a long time following the election having
    been made.

[18]

The CLA advances a similar argument with respect
    to s. 718.3(8)(c) of the
Criminal Code
. The CLA wishes to advance the
    argument that there should be a near-mandatory pre-election notice obligation
    placed on the Crown in those circumstances where, in the event that the accused
    is convicted, the Crown intends to resort to s. 718.3(8)(c) of the
Criminal
    Code
at the sentencing proceeding.

[19]

To allow the CLA to advance this position would
    inject a significant issue into the appeal. In my view, not only would it
    result in prejudice to the parties at this late stage, but it could result in
    prejudice to the administration of justice.

[20]

As before, s. 754(1)(b) of the
Criminal Code
does not require pre-election notice. If this argument were permitted, not only
    would it raise a new issue, but it would serve to contradict the statutory
    notice provision in the context of dangerous offender proceedings. The argument
    raised by the CLA raises serious questions about the constitutionality of that
    notice provision, ones that could only be properly explored in the court of
    first instance, permitting the parties an opportunity to develop an evidentiary
    record addressing the issue. This court is without the benefit of that record
    or the considered views of the jurists from whom this appeal is taken.

[21]

This case is about the interpretation of s. 535
    of the
Criminal Code
. The record reflects litigation rooted in a
    discretionary notice having been given. To allow an intervener at this stage to
    argue that this court should create a requirement that notice be given in all
    but exceptional cases, would not only serve as an implicit attack on the
    statutory provision(s) involving post-election notice,
0F
[1]
but would also risk deciding a critical issue without a proper
    factual record, including reference to the broad implications that could result
    form any such approach.

[22]

Respectfully, the latter two proposed arguments
    advanced by the CLA are not a simple matter of bringing a unique perspective to
    bear on the appeal. The CLA has historically provided this court with important
    assistance, including in matters involving the new legislation relating to
    preliminary inquiries, Bill C-75,
An Act to amend the
Criminal Code
,
    the
Youth Criminal Justice Act
and other Acts and to make consequential
    amendments to other acts
, 1st Sess., 42nd Parl., 2019, c. 25:
R. v.
    R.S.
, 2019 ONCA 906, [2019] O.J. No. 5773. The CLAs intervention in this
    appeal is equally welcome. That intervention cannot, though, become a platform
    to add issues which have potentially far-reaching implications, upon which
    there has been no decision, and that are without a factual record to allow for
    a proper adjudication:
Bedford v. Canada (Attorney General)
, 2011 ONCA
    209, [2011] O.J. No. 1111, at paras. 9-10.

[23]

Accordingly, the CLAs intervention is granted
    on the following terms:

(a)
The CLA is granted leave to intervene
    on the basis   set out in these reasons;

(b) The CLAs submissions will not repeat the submissions of the
    respondent, Mr. Windebank;

(c)   The CLA will file a factum no later than February 10, 2021 of
    no more than 10 pages in length;

(d)   The CLA will be granted 15 minutes to make oral argument at
    the hearing of the appeal; and

(e)   In response to the CLAs factum, the parties may each file a
    factum of no more than 5 pages in length, to be served and filed no later than
    February 17, 2021.

Fairburn
    A.C.J.O.

[1]
See also: s. 727(1) of the
Criminal Code
.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zamora, 2021 ONCA 354

DATE: 20210526

DOCKET: C68052 & C68065

Hoy, Hourigan and Zarnett JJ.A.

BETWEEN

C68052

Her Majesty the Queen

Respondent

and

Sebastian Zamora

Appellant

AND BETWEEN

C68065

Her Majesty the Queen

Respondent

and

Nicholas Poku

Appellant

Chantelle M. LaFitte and Jacob D. Roth,
    for the appellant, Sebastian Zamora

Nicholas Poku, acting in person

Amanda Webb, for the respondent

Heard: May 4, 2021 by video conference

On appeal from the order of Justice Gisele
    M. Miller of the Superior Court of Justice, dated January 28, 2020, granting the
    application for
certiorari
and
mandamus
to set aside the
    order of Justice Hafeez S. Amarshi of the Ontario Court of Justice, dated August
    7, 2019, discharging the appellants.

Hoy J.A.:

Overview

[1]

The appellants, Mr. Poku and Mr. Zamora, were
    charged with possession of heroin for the purpose of trafficking, contrary to
    s. 5(2) of the
Controlled Drugs and Substances Act
, S.C. 1996, c. 19
(the CDSA). Mr.
    Zamora was also charged with importing heroin, contrary to s. 6(1) of the CDSA.

[2]

The preliminary inquiry judge discharged the
    appellants at their preliminary inquiry. The Crown applied for, and the
    reviewing judge granted, an order in
certiorari
quashing the
    preliminary inquiry judges decision and
mandamus
ordering that both
    appellants be committed for trial on the charges against them.

[3]

The appellants argue that the reviewing judge
    erred in doing so. Mr. Zamora also argues that the preliminary inquiry judge
    and the reviewing judge erred in concluding that the
actus reus
of the
    offence of importing was not complete before Mr. Zamora took possession of the
    package containing the heroin. Mr. Zamora urges this court to clarify the law
    as to when the
actus reus
of the offence of importing is complete.

[4]

For the following reasons, I would affirm the
    order of the reviewing judge.

[5]

Below, I briefly outline the relevant principles
    as to roles of a preliminary inquiry judge and a judge faced with an
    application to quash the decision of a preliminary inquiry judge and the
    evidence at the preliminary inquiry. Then I review the reasons of the
    preliminary inquiry judge and the reviewing judge and explain why I conclude
    that the reviewing judge did not err in quashing the preliminary inquiry
    judges decision. Finally, I explain why I decline to address the issue of when
    the
actus reus
of the offence of importing is complete on this appeal.

The roles of the preliminary inquiry judge
    and a reviewing judge

[6]

The law as to the jurisdiction of a preliminary
    inquiry judge and the role of a reviewing judge is not at issue. Both the
    preliminary inquiry judge and the reviewing judge adverted to the key legal
    authorities as to the jurisdiction of a preliminary inquiry judge and the
    reviewing judge directed herself as to the limited role of a reviewing judge.
    The appellants take no issue with their articulation of the relevant
    principles. This appeal concerns the application of those principles. However,
    a brief outline of the relevant principles, drawing heavily on the reasons of
    the reviewing judge, provides context for the issues on appeal.

[7]

As the reviewing judge noted, a preliminary
    inquiry judges jurisdiction is derived from s. 548(1) of the
Criminal Code
, R.S.C., 1985, c. C-46
. When a
    preliminary inquiry judge acts outside of s. 548(1), he or she commits
    jurisdictional error.

[8]

Section 548(1) provides as follows:

548 (1) When all the evidence has
    been taken by the justice, he shall

(a) if in his opinion there is
    sufficient evidence to put the accused on trial for the offence charged or any
    other indictable offence in respect of the same transaction, order the accused
    to stand trial; or

(b) discharge the accused, if in his
    opinion on the whole of the evidence no sufficient case is made out to put the
    accused on trial for the offence charged or any other indictable offence in
    respect of the same transaction.

[9]

In
R. v. Arcuri
, 2001 SCC 54, [2001] 2
    S.C.R. 828, McLachlin C.J., writing for the court, reaffirmed what s. 548(1)
    requires a preliminary inquiry judge to do and when a preliminary judge acts
    outside of s. 548(1). A preliminary inquiry judge must determine whether there
    is sufficient evidence to permit a properly instructed jury, acting reasonably,
    to convict. This does not require the judge to assess credibility or draw
    inferences from the facts. That is the role of the jury. Where, as in this
    case, the evidence is circumstantial, the preliminary inquiry judge must engage
    in a limited weighing of the whole of the evidence to determine whether the
    evidence, if believed, could reasonably support an inference of guilt:
Arcuri,
at paras. 23, 29. In doing so, the preliminary inquiry judge does not draw
    inferences from facts:
Arcuri
, at para. 30. If the evidence could
    result in a conviction, the accused must be committed:
Arcuri
, at
    para. 33.

[10]

If a preliminary inquiry judge weighs the
    evidence beyond the limits established in
Arcuri
, he or she commits
    jurisdictional error:
M.M. v. United States of America
, 2015 SCC 62,
    [2015] 3 S.C.R. 973, at para. 47;
R. v. Kamermans
, 2016 ONCA 117, 346
    O.A.C. 31, at para. 15.

[11]

At paras. 13-15 of her reasons, the reviewing
    judge summarized other relevant principles:

A preliminary inquiry judge may not weigh the
    evidence for competing inferences in determining whether there is sufficient
    evidence for committal. That role is reserved for the trier of fact.
R. v.
    Deschamplain
, [2004] 3 SCR 601 at paragraph 15.

If more than one inference may be drawn from
    the evidence, then only the inference(s) that favour committal are to be
    considered.
Sazant
at paragraph 18.

Where there are competing inferences, and one
    of those inferences supports committal, then that inference must be favoured at
    a preliminary inquiry.
R. v. Magno
, [2006] O.J. No. 2590 (C.A.), at
    paragraphs 21-23.

[12]

In reviewing the decision of a preliminary
    inquiry judge, the reviewing judges role is limited to whether the preliminary
    inquiry judge exceeded or declined to exercise his or her jurisdiction in
    arriving at that decision. The reviewing judge does not simply redo the limited
    weighing of the evidence in which the preliminary inquiry judge was permitted
    to engage, nor attempt to determine the correctness of the preliminary inquiry
    judges decision.
R. v. Manasseri
, 2010 ONCA 396, 276 C.C.C. (3d) 406,
    at para. 28.

The evidence at the preliminary inquiry

[13]

The preliminary inquiry judge noted that for the
    most part the facts were not contentious.

[14]

On February 21, 2018, a Canadian Border Services
    Agent discovered 1.347 kg of heroin concealed in the lining of computer
    bags shipped from Pakistan. The RCMP removed the heroin and replaced it with a
    controlled sample. The shipment was then returned to the Air Cargo
    International (ACI) warehouse on airport property in Mississauga.

[15]

Through the customs broker who called to inquire
    about the status of the bags, the RCMP determined that the account with the
    customs broker associated with the bags was in fact that of Chukwuemeka
    Madumelu, who had been using a pseudonym in his dealings with the customs
    broker. Mr. Madumelu was known to the RCMP because he had previously been
    charged with importing a Schedule I substance.

[16]

When he called, the customs broker advised Mr.
    Madumelu that all funds needed to be paid before the shipment would be
    released. That day  February 27, 2018  the required fee was paid.

[17]

On February 28, 2018, a controlled delivery of
    the package was unsuccessful: the person who answered the door at the residential
    address that Mr. Madumelu had provided to the customs agent refused delivery.

[18]

On March 1, 2018, Mr. Madumelu advised the
    broker that he or Sebastian, whom he told the customs broker was his cousin, would
    pick up the package at ACI. Later that day, Mr. Zamora attended at ACI to
    collect the package. He identified himself as Sebastian. Mr. Poku, who came
    with him, waited in Mr. Zamoras car. Mr. Zamora asked if the package was
    heavy. When asked if he needed assistance carrying the package, Mr. Zamora declined,
    stating that there was nothing fragile inside. In the process of the
    delivery, a waybill was handed to Mr. Zamora. The waybill indicated that the
    package contained empty bags.

[19]

Mr. Zamora carried the package to his car and
    placed it in the backseat. Then he and Mr. Poku drove directly to a restaurant.
    They left the package in open view in the backseat of the car and entered the
    restaurant. They exited the restaurant approximately 20 minutes later with Mr.
    Madumelu. Mr. Zamora and Mr. Poku left in their car, and Mr. Madumelu left
    in his. The cars left the restaurant in opposite directions. They reconvened at
    a nearby apartment building.

[20]

Mr. Madumelu and Mr. Poku removed the package
    from the backseat of the car driven by Mr. Zamora and entered the apartment
    building, where they were arrested. Mr. Zamora was arrested while waiting in
    the car.

[21]

Upon his arrest, Mr. Madumelu was found with a
    slip of paper upon which were written, among other things, the waybill number
    and Mr. Zamoras phone number with the name Seb  a short form for Mr.
    Zamoras first name, Sebastian  noted beside it.

The preliminary inquiry judges reasons

[22]

The preliminary inquiry judge rejected Mr. Zamoras
    argument that the offence of importing heroin had been completed before he took
    possession of the package at the ACI warehouse on March 1, 2018. However, he
    was not persuaded that the evidence supported a reasonable inference that Mr.
    Zamora or Mr. Poku had the requisite knowledge of the drugs in their
    possession.

[23]

The preliminary inquiry judge concluded that the
    trusted agent argument advanced by the Crown  namely that such a valuable
    quantity of drugs would not be entrusted to anyone who did not know the nature
    of the contents of the package  did not support a reasonable inference of
    knowledge. The fact that Mr. Madumelu, who had clearly organized the retrieval
    of the package, had to scribble down Mr. Zamoras name and number on a slip
    suggested a superficial relationship between the parties as opposed to fellow
    drug conspirators. Also, the fact that the appellants left the package
    unattended for 20 minutes in the restaurant parking lot undermines the Crown
    argument that the package would only be left with trusted insiders.

[24]

The preliminary inquiry judge found that Mr.
    Zamoras utterance that the contents were not fragile did not support a
    reasonable inference that he was aware of the contents. Standing alone, it did
    little. And the value of the inference was diminished by the fact that the
    waybill handed to Mr. Zamora during his pickup indicates empty bags as the
    contents. A cursory review of the waybill would have grounded his belief that
    the shipment was not fragile. Also, Mr. Zamoras first question to the
    undercover officer who was acting as an ACI agent was whether the package was
    heavy, undermining the Crowns suggestion that Mr. Zamora knew what the contents
    were.

[25]

Further, while the fact that all three met at
    the restaurant before proceeding to the apartment building is somewhat
    suspicious, absent additional evidence, it does not rise past the level of
    speculation that they are connected to a drug conspiracy.

The reviewing judges reasons

[26]

The reviewing judge reviewed the evidence and
    the parties positions on the application before her. The Crown argued that the
    preliminary inquiry judge engaged in a prohibited weighing of competing
    inferences, making two arguments.

[27]

First, the Crown submitted that Mr. Zamoras
    utterance that there was nothing fragile in the package clearly gave rise to an
    inference that he had knowledge of the packages contents. The Crown argued the
    preliminary inquiry judge balanced this inference with another, namely that Mr.
    Zamora could have learned from the waybill that the contents of the packages
    were empty bags, and did so in the absence of any evidence from the defence
    that Mr. Zamora had looked at the waybill.

[28]

Second, in rejecting the Crowns trusted agent
    argument, the preliminary inquiry judge failed to consider that Mr. Zamora and
    Mr. Poku left the package in the car to meet Mr. Madumelu, the undisputed
    organizer of the importation scheme; that the meeting was brief; and that
    during this meeting period, Mr. Madumelu also left the package unattended.

[29]

In response, the appellants argued that the
    inferences that the Crown asked the preliminary inquiry judge to draw were no
    more than speculative.

[30]

The reviewing judge concluded that the
    preliminary inquiry judge went beyond the limited weighing of the evidence
    permitted by
Arcuri
and instead engaged in a weighing of competing
    inferences prohibited by it.

Analysis

[31]

On appeal, the appellants argue that the
    reviewing judge exceeded the proper role of a reviewing judge and impermissibly
    substituted her own assessment of the evidence and decision with respect to the
    reasonableness of the Crown-sought inferences for that of the preliminary
    inquiry judge.

[32]

They renew the argument they made to the
    reviewing judge, namely that the preliminary inquiry judge did not weigh
    competing inferences. Rather, they argue, the inferences favourable to the
    appellants were the only inferences available to the preliminary inquiry judge
    after he rejected the Crowns inferences as unreasonable and nothing more than
    speculation.

[33]

I reject this argument. I agree with the
    reviewing judge that the preliminary inquiry judge committed jurisdictional
    error: he drew inferences from facts, effectively chose from among competing
    inferences, and failed to give effect to inferences that favoured the Crown.
    The reviewing judge did not exceed her role.

[34]

Turning first to Mr. Zamoras utterance that there
    was nothing fragile in the package, it is reasonable to infer that a person who
    volunteers information about the contents of a package knows what is contained
    in the package. Contrary to the appellants assertion, the preliminary inquiry
    judge did not reject this inference as unreasonable. Rather, the preliminary
    inquiry judge effectively acknowledged that the inference was available but
    concluded that, on its own, it did little. He then diminished the
    significance of this inference favouring the Crown by weighing it against the
    inference he impermissibly drew from the fact that the waybill had been given
    to Mr. Zamora, namely that Mr. Zamora would have learned the contents of the
    package from a cursory review of the waybill. There was no evidence that Mr. Zamora
    reviewed the waybill.

[35]

As to the preliminary inquiry judges rejection
    of the Crowns trusted agent argument, this court has held that where an
    accused is alleged to be in possession of a controlled substance of significant
    value, it may be open to a jury to infer that such a valuable quantity of drugs
    would not be entrusted to anyone who did not know the nature of the contents of
    the package:
R. v. Pannu
, 2015 ONCA 677, 127 O.R. (3d) 545, leave to
    appeal refused, [2015] S.C.C.A. No. 498, at paras.  157, 173.

[36]

Apart from the significant value of the drugs, a
    constellation of facts supported the availability of an inference that Mr.
    Madumelu entrusted the collection of the package to persons who were part of
    the scheme and knew that they were collecting drugs, including that: directly
    after the appellants collected the drugs, they went to meet with Mr. Madumelu,
    the undisputed organizer of the importation; and after meeting Mr. Madumelu,
    the appellants continued in possession of the valuable drugs until they again
    met up with Mr. Madumelu at the apartment complex, having taken different
    routes to get there.

[37]

The preliminary inquiry judge impermissibly drew
    a competing inference, namely that the appellants were not drug conspirators,
    from the fact that Mr. Madumelu had written Mr. Zamoras phone number on a
    slip of paper and weighed that inference against the available competing
    inference favouring the Crown. The drawing of inferences is the role of the
    jury. It might draw a different inference from the fact that Mr. Madumelu had a
    slip of paper with Mr. Zamoras phone number on it. A person need not be a
    long-standing conspirator to be a conspirator. And Mr. Zamora might simply have
    been using a newly acquired phone number.

[38]

Similarly, the preliminary inquiry judge
    effectively impermissibly inferred that the appellants did not know the package
    contained drugs because they left the package in the car for approximately 20
    minutes, while they met Mr. Madumelu at the restaurant. But, as the Crown
    argued before the reviewing judge, Mr. Madumelu knew the package contained
    valuable drugs and presumably knew that the appellants had left it in Mr.
    Zamoras car. Leaving the drugs in the car does not necessarily mean the
    appellants did not have knowledge of the contents of the package. Again, the
    inference to be drawn from this evidence is a matter for the jury.

[39]

I agree with the reviewing judge that there is
    sufficient evidence to permit a properly instructed jury, acting reasonably, to
    convict the appellants of the offences with which they are charged. I would
    affirm the order of the reviewing judge.

The completion of the
actus reus
of
    the offence of importing

[40]

Relying on
R. v. Bell
, [1983] 2 S.C.R.
    471, and
R. v. Okojie
, 2019 ONSC 1526, Mr. Zamora argued before the
    preliminary inquiry judge and the reviewing judge that the
actus reus
of the offence of importing was complete on February 27, 2018. At that point,
    the requisite fees had been paid and the shipment of heroin had cleared
    customs. And, since on the evidence before the preliminary inquiry judge Mr.
    Zamora was not involved until March 1, 2018, Mr. Zamora argues that there was
    no evidence that he committed the offence of importing.

[41]

The Crown, relying on
R. v. Onyedinefu
,
    2018 ONCA 795 and
R. v. Foster
, 2018 ONCA 53, 360 C.C.C. (3d) 213,
    leave to appeal refused, [2018] S.C.C.A. No. 127, (and also on
R. v.
    Buttazzoni
,
2019 ONCA 645,
    when before the reviewing judge), argued that the offence of importing was only
    completed on March 1, 2018, when Mr. Zamora took possession at the ACI
    warehouse of the package containing the heroin.

[42]

The preliminary inquiry judge was persuaded by
    this courts decisions that the offence of importing heroin was complete in law
    when it entered Canada, but only factually completed when Mr. Zamora took
    possession of the package at the ACI warehouse on March 1, 2018. The reviewing
    judge came to the same conclusion.

[43]

Mr. Zamora argues that this courts decisions as
    to when the offence of importation is completed are inconsistent with
Bell
,
    and, moreover, that recent decisions of this court broaden the definition of
    the
actus reus
of importation established in earlier decisions of this
    court. He urges this panel to provide guidance on when the
actus reus
of the offence of importing is complete, and to conclude that, in this case,
    the importing offence was complete before he became involved and there was
    therefore no evidence to support his committal on the importing charge. Further,
    he says that
Sazant
is authority that this court can do so on appeal
    from an order for
certiorari
.

[44]

I decline to do so.

[45]

This case is different from
Sazant
, where
    Major J., writing for a majority of the Supreme Court, found that one of the
    three ways the preliminary inquiry judge exceeded his jurisdiction was that the
    exercise of weighing the evidence proceeded on an
entirely
erroneous basis in law:
Sazant
, at para. 25 (emphasis added). In
    contrast, decisions of this court support the conclusions of the preliminary
    inquiry judge and the reviewing judge that the importation of the heroin had
    not been completed before Mr. Zamora took possession of it. An appeal from
certiorari
heard by a three-judge panel is not the forum to reconcile what Mr. Zamora
    characterizes as the inconsistency between this courts jurisprudence and
Bell
and the broadening of the definition of the
actus reus
of
    importation by recent decisions of this court. An error of law, possibly short
    of the type of jurisdictional error identified in
Sazant
at para. 25,
    is not reviewable on
certiorari
:
R. v. Deschamplain
, 2004 SCC
    76, [2004] 3 S.C.R. 601, at para. 17;
R. v. Russell
, 2001 SCC 53,
    [2001] 2 S.C.R. 804, at paras. 19-20. As the Supreme Court stated in
R. v.
    Awashish
, 2018 SCC 45, [2018] 3 S.C.R. 87, at para. 10,
certiorari
is tightly limited by the
Criminal Code
and the common law so as to
    ensure that it is not used to do an end-run around the rule against
    interlocutory appeals. Moreover, a five-judge panel of this court currently
    has decisions under reserve on two appeals which raise the issue of when the
actus
    reus
of the offence of importing is complete.

Disposition

[46]

For these reasons, I would dismiss the appeal.

Released: May 26, 2021 A. H.

Alexandra
    Hoy J.A.

I
    agree. C.W. Hourigan J.A.

I
    agree. B. Zarnett J.A.