R. v. Rai Date:, 2010 BCPC 437

Citation: R. v. Rai Date: 20100506 2010 BCPC 0437 File No: 170454-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SONNY SINGH RAI REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. DOHM Counsel for the Crown: Federal Crown: B. Smith, C. Fast Counsel for the Defendant: M. Rowan Place of Hearing: Surrey , B.C. Dates of Hearing: April 6, 7, 8, 9, 12, 13, 19, 20, 21, 22, 2010 Date of Judgment: May 6, 2010 [ 1 ] The accused is charged with importing heroin into Canada and with possessing heroin for the purposes of trafficking.

The charges arise out of the discovery by the police of approximately one kilogram of heroin in the false bottom of a small wooden cabinet. The accused had previously asked a friend to accept delivery of a package on his behalf. The friend subsequently became a police agent and delivered the cabinet to the accused. [ 2 ] The main issues are whether the Crown has proven beyond a reasonable doubt the accused knew the cabinet contained heroin and that the heroin had been imported into Canada. [ 3 ] Many of the facts do not appear to be in dispute, and in any event, have been established by the evidence.

These include the following: [ 4 ] Some time around the middle of September of 2008, the accused asked his friend, L.B., if she would accept a package for him. He explained that it would be delivered to her residence and he would come by and pick it up when it arrived. L.B. would be paid $500. L.B. never asked what would be in the package and the accused never told her. He said the package was for a buddy, who he did not name. When asked by L.B. if it was safe, the accused assured her it was, telling her he had done this once before, the package arrived and he got paid.

Although mildly suspicious, L.B. believed she was doing the accused a favour so she agreed to accept the package for him.

[ 5 ] A short time later, L.B. felt uncomfortable with what she had agreed to do and she contacted the accused to call off the arrangement. The accused told her it was too late as her name and address had already been given to a third party. He told L.B. not to worry about it. [ 6 ] On September 28th, 2008, Jeff Wyatt, a Border Services officer with the Canadian Border Services Agency examined a small wooden cabinet in a secured area at Pearson International Airport in Toronto. His examination led him to suspect there was heroin in a false bottom of the cabinet.

He turned the cabinet over to the RCMP. [ 7 ] Two days later, the RCMP shipped the cabinet via air to Vancouver where it was examined and found to contain 925 grams of 62 percent pure heroin in a false bottom. The RCMP planned on carrying out a controlled delivery of the cabinet. Towards that end, they placed a placebo for the heroin back in the false bottom and installed a tracking device in the cabinet so they could monitor its movement. [ 8 ] Between October 2nd and 9th, the RCMP conducted surveillance of L.B.'s residence as part of the controlled delivery.

The RCMP was not aware L.B. was away from her residence for most of this time. She returned on the evening of October 8th. [ 9 ] On October 9th, the RCMP decided to speak with L.B. They met with her at her workplace where she was interviewed. Later that day she agreed to become a police agent and assist them in the delivery of the package to the accused. As a result, the focus of the investigation shifted from L.B. to the accused. The RCMP commenced surveillance of the accused and his residence in Surrey.

This surveillance was carried out at various times over the ensuing week or so. [ 10 ] On the evening of October 16th, L.B. contacted the accused to let him know she had received the package. The RCMP had placed it in L.B.'s apartment, outside a bedroom near the entrance door. The package consisted of the cabinet wrapped up and inside a white plastic burlap tarp-like courier bag. The accused questioned L.B. about the package, including how it came to be in her possession. [ 11 ] Later on in the early morning hours of the 17th, the accused came by L.B.'s apartment to look at the package.

At the time, an undercover police officer was present, posing as a friend of L.B.'s roommate. The accused remained in the entranceway of the apartment. He looked at the package. He moved it around to check the size and weight. He said it was what he expected it to be. L.B. told him she did not want it around her apartment. The accused asked her if she could keep it in a safe place.

The accused told her they would exchange the package the next day. [ 12 ] Later that same day the accused and L.B. communicated with each other, and, around 6:00 p.m., they met up at a Home Depot Store where they discussed exchanging the package. The accused said he did not want to take the package because he had his new car with him and did not want it to be confiscated. He wanted to use another vehicle to transfer the package. He suggested L.B. drive the package to Surrey, somewhere off King George Highway towards White Rock, where his buddy would go and pick the package up.

L.B. emphasized she did not want the package in her possession any longer. Eventually, the two agreed to exchange the package in a nearby BCIT parking lot. [ 13 ] The two of them drove there in their vehicles and parked adjacent to one another. The accused removed the package from L.B.' s vehicle and placed it in his own vehicle. The accused told L.B. that he hoped she was not screwing him over. L.B. responded by saying she hoped he was not screwing her over.

The accused got in his vehicle and drove off. [ 14 ] The RCMP attempted to follow the accused's vehicle through visual surveillance and the tracking device in the cabinet. At 6:26 p.m. his vehicle was observed to leave the BCIT parking lot, drive north on Willingdon, and then at 6:27 p.m., head east on Highway number 1. The accused's vehicle was next seen at 6:59 p.m. when it was travelling south on 152nd Street, crossing Fraser Highway. It then turned right to head westbound on 76th Avenue, where visual contact was lost at 7:03 p.m.

Seven minutes later, the accused's vehicle was observed driving south on King George Highway at 44th Avenue. It then performed a U-turn and drove northbound on King George Highway. It was lost to visual surveillance at 7:12 p.m. when it was in the area of 48th Avenue and King George Highway. [ 15 ] At 7:19 p.m., an officer conducting surveillance was driving south on King George Highway at 48th Avenue. He observed a car and a truck coming out from his left-hand side onto King George Highway. These two vehicles turned right to go northbound on King George Highway.

The officer did not obtain the licence plate for either vehicle. [ 16 ] Surveillance was subsequently set up in the area of 48th Avenue and King George Highway. At 9:21 p.m., the package was located with the assistance of a police dog and the Emergency Response Team. It was located in some bushes off 48th Avenue. It was in the same state as when the accused took it from L.B. a few hours earlier. Surveillance in the area continued. [ 17 ] The next day, at 1:58 p.m., a black extended-cab pickup truck was observed to turn eastbound onto 48th Avenue at King George Highway.

Approximately three minutes later, the police were notified that the motion detector inside the cabinet had been triggered. At 2:05 p.m., a black extended-cab pickup truck was observed to come out of 48th Avenue and turn northbound onto King George Highway. The officer noted it to be a black, four-door, newer-style Dodge Ram pickup truck.

The officer believed this truck to be the same truck that he had seen turning onto 48th Avenue at 1:58 p.m., but he could not be 100 percent sure. [ 18 ] At 2:08 p.m. an officer positioned further north of 48th Avenue observed the black pickup truck driving north on King George Highway. He identified the first four digits of the licence plate as AE11. This truck passed in front of the officer from his left to his right, with the passenger's side of the truck closest to him. He was able to observe two East Indian males in the truck, with the passenger wearing a white baseball hat with a design on it.

The officer also observed in the bed of the pickup truck, immediately behind the passengers' seats, a white burlap or nylon bag flapping in the wind approximately a half foot above the top of the truck bed. [ 19 ] The truck continued north up the hill on King George Highway until it was lost from surveillance just before it reached Highway 10. The truck was not observed again until 2:24 p.m. when this same officer saw the same truck turn in front of him on Highway 10 to go north on 148th Street. The officer observed there was no white bag in the bed of the truck.

The officer and others continued to try and follow the vehicle. It was observed to drive down small streets and make various turns and U-turns in the area. In particular, at 2:29

p.m., another officer observed the truck turn eastbound onto 68th Avenue. She noted the full licence plate to be AE1136. [ 20 ] One minute later, the truck was observed to turn north on 150th Street and drive one block before performing a U-turn and driving back towards the accused's residence at 15169 - 68A Avenue. An officer watching that residence observed the truck travelling eastbound on 68th Avenue and stop in the driveway of the accused's residence. A male wearing a white baseball hat, grey sweat top and grey sweatpants exited the front passenger's side of the truck and walked into the residence.

The truck backed out and drove westbound on 68A Avenue. [ 21 ] In the next two minutes, the truck turned northbound on 150th Street and drove one block before suddenly performing a U-turn to go southbound on 150th Street. It then turned back onto 68A Avenue and returned to the accused's residence where the same male person who had exited the truck two to three minutes earlier re-emerged from the residence and got back into the front passenger's seat of the truck. The truck then drove off westbound on 68A Avenue.

Over the next several minutes the truck was observed driving in the area of the accused's residence, including performing at least one further U-turn. [ 22 ] At 2:49 p.m., an officer who had continued to surveil the area of King George Highway and 48th Avenue after the motion sensor in the cabinet was triggered attended down 48th Avenue and located the cabinet. It had been broken into pieces. All but the placebo heroin, the white courier bag and one piece of the monitoring device were recovered.

This evidence confirms and explains why the motion detector in the cabinet was triggered around 2:01 p.m. [ 23 ] At 2:50 p.m., the truck returned to the accused's residence where the two occupants were arrested. The driver of the truck was identified as Gopal Powar. The accused was the only passenger. Both are East Indian. A wallet containing Mr. Powar's identification was located in the centre console of the truck. Within that wallet was a piece of paper with L.B.'s name and full address on it. L.B. does not know Mr. Powar.

On the back side of that piece of paper was a phone number purported to be for a phone in the Punjab state of India. Also within that centre console was a piece of paper with various handwritten licence plate numbers and vehicle descriptions. Some of those plates belonged to unmarked police vehicles. A pair of thin, black gloves were located on the passenger's seat of the truck. [ 24 ] The truck was a Dodge Ram King Cab, a four-door, full-sized pickup, black in colour. The placebo heroin, the white courier bag and the missing piece of the monitoring unit were not located. [ 25 ] Two factual areas are in dispute.

One is the accused's involvement with the package after receiving it from L.B., and the other is the arrival of the cabinet in the secure warehouse at Pearson Airport and its connection to L.B. Before addressing these factual areas, I should indicate that I accept the evidence of all the witnesses called by the Crown. I found them to be reliable and credible. While the accused did challenge some aspects of the evidence of a few witnesses, it was with one exception, not generally with regards to the observations they made, and accordingly, had little impact on my factual findings.

The one exception relates to Officer Wyatt and I will address that in a moment. [ 26 ] As for the accused's involvement with the package after taking it from L.B. on October 17th, the surveillance evidence establishes the accused left the BCIT parking lot at 6:26 p.m. and his vehicle was lost to surveillance when it was in the area of King George Highway and 48th Avenue at 7:12 p.m. This area was defined as rural residential, but it is clear from the evidence, including the photographs, that it was very sparsely populated. At the time, 48th Avenue only proceeded eastbound off of King George Highway.

It was a windy, dirt road which did not connect with any other roads and dead-ended into a fence where a farm was located. There were a couple of businesses near where 48th Avenue connects with King George Highway. There were also a few residences, but other than that, the area was quite open, but with some bushes and trees. The location of the package was three-quarters of a kilometre from King George Highway in a bushy, treed area just off 48th Avenue.

In the immediate vicinity were two boats and a vehicle, all apparently abandoned, and a house which I accept was boarded up at the time. [ 27 ] This evidence establishes that vehicle traffic on 48th Avenue was not common, such that some significance can be attached to observations of that nature. Included within those observations was a light-coloured Prelude entering 48th Avenue a few minutes prior to the black truck doing so at 1:58 p.m. on October 18th. It was not known when or even if that vehicle ever exited 48th Avenue back onto King George Highway.

There was no suggestion this vehicle was linked to the accused, who drove an Accord, or Mr. Powar, who drove a black pickup truck with licence plate AE1136. The most that can be said about this Prelude is that it may or may not have had some connection to the package. [ 28 ] On the evidence, I conclude the package was hidden in the bushes off 48th Avenue a few minutes after the accused's vehicle was lost to surveillance at 7:12 p.m. on October 17th when it was in the vicinity of 48th Avenue and King George Highway.

The package remained in the bushes until very shortly after 2:00 p.m. on October 18th. [ 29 ] I also conclude Mr. Powar met up with the accused at this location at the time the package was hidden on October 17th. I reach this conclusion for the following reasons: 1. A truck was seen with a car exiting off of 48th Avenue to drive northbound on King George Highway at 7:19 p.m. The accused was driving a car and the evidence establishes that Mr. Powar drove a truck. 2.

The accused had just asked L.B. to drive the package to somewhere off of King George Highway towards White Rock, where his buddy would go and pick it up. The description of "somewhere off of King George Highway towards White Rock" fits the area where the package was eventually hidden. It also suggests the accused may not have known exactly where the package was to be taken and needed to meet up with someone for that purpose. The accused initially drove past 48th Avenue around 7:10 p.m. and then completed a U-turn at 44th Avenue to go back towards 48th Avenue.

Moreover, it is difficult to see how someone would be able to simply go and pick up the package in this area. At the time, it was most likely quite dark outside, with little to no artificial light, so it could not be expected that someone would be able to provide a detailed description of where the package was hidden, especially in this area. 3. Furthermore, L.B.'s evidence demonstrates the accused was taking some instructions from his buddy and he was quite concerned about the well-being of the package such that it would be logical for another trusted person to be present when the package was hidden

to ensure it would not be discovered by strangers, but also still able to be later found. In this regard, I do not agree with the accused's suggestion that where the package was left shows the accused had little interest in it. Rather, the package was placed in a concealed area where it was most unlikely to be found by anyone except those who put it there. 4. Mr. Powar fits the description of a buddy to the accused, given the cell phone records and the fact the two of them were in each other's company the next day. 5. Mr.

Powar did not know L.B. and there is no logical reason for him to have in his possession a piece of paper with her name and address, other than it having been provided to him by the accused as the person who agreed to accept the package. There is no other rational connection between Mr. Powar and L.B. such that Mr. Powar had an interest in this valuable package which would include its overall security and knowing its whereabouts. [ 30 ] I find Mr.

Powar met with the accused to hide the package in the bushes off of 48th Avenue some time around 7:15 p.m. on October 17th. [ 31 ] As for October 18th, the accused and Mr. Powar were together in Mr. Powar's pickup truck when they were arrested at 2:50 p.m. 42 minutes earlier, at 2:08 p.m., a black pickup truck was observed travelling north on King George Highway north of 48th Avenue and south of Highway 10, which is 56th Avenue. The first four digits of that truck's licence plate were AE11, which is the first four digits of the licence plate of Mr. Powar's black truck.

In my view, given this evidence, the likelihood that this black truck was a black truck other than Mr. Powar's is so remote as to not raise any doubt in my mind that the truck seen at 2:08 p.m. was Mr. Powar's. [ 32 ] Inside that truck were two East Indian males, the passenger wearing a white baseball hat. 22 minutes after this sighting, the male person in the passenger's seat of Mr. Powar's truck exited, wearing a white baseball hat, grey sweatpants and top, and entered the accused's residence. Moments later, that person left the accused's home and got back in the passenger's side of Mr.

Powar's truck. 20 minutes after that, the accused was arrested exiting the passenger's seat of Mr. Powar's truck, wearing the same clothing. In my view, the person seen exiting Mr. Powar's truck at 2:30 p.m. could only have been the accused. [ 33 ] The accused emphasizes that Mr. Powar's truck was lost to surveillance between 2:08 p.m. and 2:24 p.m. He suggests the passenger in the truck could have changed in that time. I do not agree. I find such a suggestion to be simply speculation. On the evidence, I conclude that at 2:08 p.m., it was the accused in the passenger's seat of Mr. Powar's truck with Mr.

Powar being the driver. That evidence includes the descriptor links of a white baseball cap and an East Indian male, a relatively restricted timeframe, the obvious connection between Mr. Powar and the accused, including them being together to hide the package the night before, and the fact that during this timeframe, the accused only attended his residence when with Mr. Powar, the accused's residence being one of the most obvious places where he would be picked up or dropped off, particularly given he was later dropped off there. [ 34 ] Based on the evidence, I also find it was Mr.

Powar's truck which turned onto 48th Avenue at 1:58 p.m. and came out of 48th Avenue, heading northbound onto King George Highway at 2:05 p.m. That evidence includes the similar truck descriptions, the tight and consistent timeframe, the amount of traffic on 48th Avenue, the location of the truck and direction of its travel, and the fact it was the accused and Mr. Powar who hid the package hours before. Who else would have known in such a short timeframe exactly where the package was located? Obviously only those responsible for putting it there. [ 35 ] On all the evidence, I conclude it was the accused and Mr.

Powar who, shortly after 2:00 p.m. on October 18th, retrieved the package and broke up the cabinet, taking with them the heroin placebo, the white courier bag and the missing piece of the motion detector. The white bag protruding above the bed of the truck moments later adds further support to these conclusions. Sometime between 2:08 p.m. and 2:24 p.m., they delivered what they had taken to some place or some person, which explains why the white bag was not observed in the truck when it was seen at 2:24 p.m., and why none of the three items were in the truck when the accused and Mr.

Powar were arrested minutes later. [ 36 ] The fact that neither the accused nor Mr. Powar had money on them to corroborate them selling the heroin is really of no consequence in the circumstances. They may not have sold it but only moved it somewhere, or they were to be paid later, or most likely, they, and perhaps others, had become aware it was not real heroin, particularly with the discovery of the motion detector inside the cabinet. Mr.

Powar's driving behaviour observed by the officers from 2:24 p.m. to 2:50 p.m. tends to support this explanation. [ 37 ] As for the other main factual dispute, that being the arrival of the cabinet in the secure warehouse at Pearson Airport and its connection to L.B., the accused argues there is no reliable link between the cabinet and L.B.

He says Officer Wyatt's evidence amounts to no more than a belief the cabinet was addressed to L.B., and that is not sufficient proof to connect L.B., and thus the accused, to the cabinet containing the heroin. [ 38 ] Officer Wyatt was not as careful with the cabinet and its packaging as he should have been. Given the cabinet contained potentially between $68,000 and $102,000 worth of heroin, it is difficult to imagine the cabinet was not properly and fully labelled with the required information, including the consignee's name and address and the courier's tracking numbers or documents.

Whoever shipped the cabinet would want to ensure it reached the intended recipient and was not lost or left unclaimed. This identifying evidence should have been preserved. Dumping out all of the courier bags from the flight on the warehouse floor and then searching each item in a similar manner may have contributed to this failure. It would explain why Officer Wyatt located the cabinet in courier bag 28, but bag 52 was seized along with the cabinet.

In my view, though, the courier bag number is of limited relevance in linking the cabinet to L.B. because the evidence was courier bags often contain multiple parcels and make no reference to what is actually in the bag. It is what is on the package itself that has the important linking information and that should have been preserved in this case. [ 39 ] However, Officer Wyatt was particularly interested in two or three cargo items from the flight he was searching due to their descriptions as wooden products. He marked these items on the consist sheet which he had received directly off the aircraft.

He testified he located one of those wooden items and set it aside to be searched later. Within a few minutes, he searched that item. He was sure it was the item attached to airway bill 74093, although he had no notes or recollection as to where he obtained that number. In the circumstances, it would seem most unlikely that Officer Wyatt would be mistaken about an item he was specifically focusing on, particularly one in which he believed he had found heroin.

[ 40 ] I conclude the waybill for the cabinet was 74093 and the consist sheet establishes the cabinet was to be delivered to L.B. at her address in Vancouver. [ 41 ] More importantly, in my view, this evidence is not necessary for establishing the connection between the cabinet and L.B. The cabinet was retrieved and dismantled within a few minutes, and the accused and Mr. Powar took with them the heroin placebo, plus the other two items. On this evidence, they obviously knew what they were looking for and they immediately went about obtaining it from the cabinet.

The accused received the cabinet from L.B., so clearly L.B. received the cabinet she was supposed to, that being the one the accused and Mr. Powar were expecting and quickly destroyed to obtain the heroin. In other words, the receivers of the cabinet got what they wanted and they got it from L.B., so L.B. had to have received the correct cabinet. [ 42 ] With regards to where the cabinet came from, I accept Officer Wyatt's testimony that it came directly off Aerosvit flight 141 from Kiev in the Ukraine. He attended to Gate C36 at Pearson Airport to await its arrival and he oversaw the removal of all the cargo.

This evidence was corroborated by the white courier bag which identifies the date and flight number from which it came, along with all the other cargo, including the cabinet. The fact the purity of the heroin was not higher than 62 percent is of no concern when the evidence is that it is as low as 20 percent at street level. The heroin was imported into Canada on this flight. The evidence of Insp.

MacDonald, the expert on all aspects of the importation of heroin into Canada, along with the white courier bag and the airline customs documents established the heroin originated in Afghanistan and was transported to India, then by air to Kiev and then on to Toronto. [ 43 ] I turn to the knowledge issues. There is no evidence to show the accused arranged with persons outside of Canada to have the cabinet and heroin imported into Canada. The accused arranged with L.B. for her to receive a package for him, but he says the evidence shows he was expecting one from Toronto and not from outside of Canada.

Further, he says the evidence demonstrates he did not know heroin was in the cabinet. [ 44 ] In support of these arguments, the accused relies on two areas of the evidence. The first is what I will refer to as the accused's lifestyle. He points out that in the search of his residence following his arrest, and from nine days of surveillance, the police did not obtain any evidence to support the accused being a drug trafficker or drug importer. As well, L.B. testified the accused worked as a stockbroker and was not involved with controlled substances, other than smoking some marihuana.

The cell phone records and surveillance evidence reveal the accused was involved in some other activities, including hockey. Lastly, the accused was supposed to be paid either $750 or $1,000 for his involvement with the package. He says this does not support him being a drug trafficker or importer, nor does it seem logical for this particular illegal activity, given the value of the heroin and the accused's risk. [ 45 ] I do not find any of this lifestyle evidence to raise a reasonable doubt as to the accused's knowledge. Drug traffickers and importers come in all shapes and sizes.

One does not have to be a hard drug consumer or even a user of any drugs to be a trafficker or importer of controlled substances. The only evidence to suggest the accused had been involved in drug trafficking or importing activities other than on this occasion comes from the accused's mouth when he told L.B. he had done it once before. Accordingly, it is not surprising the officers did not observe the accused in other drug activities, other than in relation to the package. There is no suggestion he was selling drugs on the street or engaged in the narcotics business except on this occasion.

Even if he was so engaged, the surveillance may not have been able to observe any behaviour associated with it. The absence of any evidence from his residence merely tends to explain why he used L.B. He did not want to risk involving his family, much like he did not want to risk losing his vehicle. People earning legitimate incomes who are regularly involved in positive activities and present as law-abiding citizens do involve themselves in stupid, risky behaviour, even for what would appear to some as paltry sums when balanced against the potential risks.

In fact, the drug business is often a glaring example of that. [ 46 ] The other area of evidence the accused relies on in support of his lack of proven knowledge arguments is what he said to L.B. about the package, but I also find this evidence does not raise any doubt as to the accused's knowledge. As counsel for the accused conceded, the evidence supports the accused was involved in something dishonest or illegal, just not importing or trafficking heroin or some other controlled substance.

Counsel suggests it may have been fraud related, although that is based only on a belief L.B. held, there being little evidence the accused said or did anything to demonstrate he shared that belief. Nevertheless, given the secretive deceitful evasive context in which the accused said some of these things to L.B., it is difficult to place any credence in them as it relates to the accused's knowledge. The accused obviously wanted to use L.B. most likely to insulate himself or others, including his family, from the activities he was engaged in. Otherwise, why would he not simply have the package sent to himself?

L.B. speculated it may have been because the accused was not around his residence that often, but that was only speculation and makes no sense given he could easily have arranged to pick it up or have it delivered to an address he more frequently attended. No logical reason appears on the evidence for why it was necessary to involve L.B. in the receipt of the package other than the accused knew, through his relationship with her, that L.B. was a trusting, yet perhaps naïve person, who would not ask questions.

He would obviously not want to tell her something that would result in the loss of her co-operation both before and after the activity was carried out. In all these circumstances, it would hardly be expected that the accused would be completely forthcoming with L.B. such that I cannot conclude his statements to L.B. reflect the full extent of his knowledge. [ 47 ] Moreover, the accused told L.B. he expected the package to come from Toronto. Clearly it did, but it made its way to Toronto via Ukraine and New Delhi.

When the accused attended to L.B.'s apartment to see the package, he examined the white courier bag which contained the wrapped-up cabinet. He also moved the package to check its size and weight, following which he told L.B. it was what he expected it to be. The accused suggests the writing on the bag of an Ontario telephone number and "Mississauga, Canada" supports the accused's expectation of the package coming from Toronto. Mississauga does not necessarily equate with Toronto, but Pearson International Airport does.

More importantly, the bag also has a security label for Air India on it, as well as the written words "India" and "New Delhi." The difficulty is that I have no idea what it was about the package that led the accused to tell L.B. it was what he expected. As a result, the accused's statement that he expected the package to come from Toronto really sheds no light on his actual full knowledge. [ 48 ] Later on at the Home Depot when L.B. asked the accused what he thought was inside the package, the accused responded by saying it could be weed or money, but nothing hard.

"Weed" refers to marihuana and "hard" refers to hard drugs like heroin and cocaine. In my view, this statement suggests the accused was simply trying to assure L.B. that a considerably more serious controlled substance was not in the package so as to minimize the seriousness of the matter for her sake, as well as his. Otherwise, as previously discussed, I

do not find this statement reflects the full extent of the accused's knowledge of the package, given the context in which it was made. At a minimum, though, it does suggest the accused was very suspicious of the contents of the package and chose to remain deliberately ignorant. [ 49 ] In further support of his arguments on the lack of proven knowledge, the accused points to his apparent failure to understand the charge of importing heroin when the second officer to deal with him advised he was under arrest for that offence.

However, there could be many reasons why the accused appeared to not understand the importing charge, including a simple lack of co-operation, which was evident from the accused's initial behaviour of attempting to flee.

Again, I do not find this evidence to raise any reasonable doubt as to the accused's knowledge especially when the first officer who dealt with the accused advised him he was under arrest for importing heroin and the accused made no indication that he did not understand the charge. [ 50 ] What is readily apparent from the findings of fact I have made is that the accused was involved to a considerable degree with the package. His involvement was not just obtaining L.B.'s approval to accept the package and passing on her name and address.

He used a separate cell phone obtained from 7-Eleven for communicating with L.B. whenever they discussed the package. He attended to L.B.'s apartment to check out the package to ensure it was what he expected it to be. Hours later, he took the package from L.B. and transported it to 48th Avenue and King George Highway where he met up with Mr. Powar to hide it in the bushes. The next day he attended with Mr. Powar to the package, where it was immediately broken apart and what they could only believe was heroin removed.

The thin black gloves found minutes later on the passenger's seat along with the white courier bag containing the heroin being placed in the truck's bed immediately behind the passengers' seats suggests the accused was the one more directly involved in breaking the cabinet and retrieving the desired product. The accused and Mr.

Powar then transported the heroin to either another storage location or to another person or persons. [ 51 ] In my view, in these circumstances, it is inconceivable the accused would not know the full extent of this entire transaction, including that the package he used L.B. to obtain would and did contain heroin imported into Canada. The accused was obviously trusted by the others involved in this transaction, otherwise he would not have been involved to the extent he was. With that trust comes knowledge.

The suggestion that the accused was an innocent receiver or trafficker like L.B. is completely unbelievable, given the accused's level of involvement. An innocent receiver would have no need or interest in returning the day after the package had been hidden to assist in retrieving, removing and transporting the product. An innocent receiver's role would be limited as much as possible in order to ensure knowledge is not obtained because obtaining that knowledge creates unwanted risks for those involved that the transaction or operation will be uncovered.

On the evidence, there is simply no logical basis to suggest this transaction involved two innocent receivers and the facts clearly establish the accused was not one. [ 52 ] I should add that even if I had a doubt about the accused's actual knowledge, I would nevertheless have found that the knowledge elements had been proven beyond a reasonable doubt based on the doctrine of wilful blindness.

The circumstances the accused was in would have had to arouse his suspicions to the point where he needed to make further inquiries and his deliberate choice not to make those inquiries would have resulted in the knowledge elements having been established. [ 53 ] In my view, the facts of this circumstantial case lead to only one rational and logical conclusion; that is, the accused knew that the package he used L.B. to obtain would and did contain heroin imported into Canada.

With that knowledge and his acts of involving L.B., including passing on her name and address, the accused was a party to importing the heroin into Canada. Also, with that knowledge and the evidence of his possession and transportation of the package, the accused possessed the heroin for the purpose of trafficking, the amount of heroin being completely inconsistent with personal use and consistent with trafficking. [ 54 ] All the essential elements of both offences have been proven beyond a reasonable doubt, and accordingly, I find the accused guilty of both charges. (REASONS FOR JUDGMENT CONCLUDED)