



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chibani, 2016 ONCA 952

DATE: 20161215

DOCKET: C59781

Feldman, MacPherson and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Charbel Chibani

Appellant

Robert C. Sheppard, for the appellant

Marie Comiskey and Erin K. Carley, for the respondent

Heard: December 12, 2016

On appeal from the conviction entered by Justice Terrence
    L. J. Patterson of the Superior Court of Justice on October 8, 2014, and from
    the sentence imposed on November 28, 2014.

ENDORSEMENT

[1]

The appellant, Charbel Chibani, was convicted of conspiracy to export
    ecstasy into the United States by Patterson J. of the Superior Court of
    Justice. He was sentenced to six years imprisonment for this offence.

[2]

The appellant appeals the conviction and the sentence.

[3]

Three people were charged with conspiracy to export a prohibited drug: the
    appellant, Mary Ann Habib (Habib), and a man named Ahmid or Hamid (Ahmid).

[4]

On the afternoon of October 28, 2009, Habib drove a Nissan van from
    Windsor to Detroit. On the U.S. side, she was detained by Customs officers, the
    van was searched, and about 57,000 ecstasy pills were found in a hidden
    compartment in the cargo area.

[5]

Habib was arrested for unlawfully importing the drug into the United
    States. Canadian police were brought into the investigation. Habib co-operated
    with the police, telling them that she had been enlisted by the appellant and Ahmid
    to drive the van across the border to Detroit, there to receive further
    instructions by cell phone about the next steps in the trip.

[6]

On instruction from U.S. Homeland Security investigators, Habib made
    cell phone calls to the appellant. The calls were recorded (some partially,
    some fully) by the investigators. Habib followed the instruction to lead the
    appellant to believe that she was now in Detroit and was ready to carry on. On
    the appellants direction, Habib contacted and met with Mo Baghdadi, a Detroit
    resident. Baghdadi was arrested by U.S. Customs officers. They conscripted him
    into the cell phone conversations with the appellant.

[7]

Habib pleaded guilty in Detroit to attempted importation of a prohibited
    drug. She received a sentence of 32 months imprisonment.

[8]

At the appellants trial in Windsor, there were two principal categories
    of evidence against the appellant  Habibs testimony and the recorded
    conversations involving the appellant, Habib and Baghdadi.

[9]

The appellant appeals his conviction on four grounds.

[10]

First,
    the appellant contends that since it is possible that the trial judge accepted
    Habibs testimony that she did not know that there were drugs in the van (she
    said that her part in the enterprise was to drive the van to Detroit and then
    do something involving drugs), the consequence would be that there was
    insufficient evidence to prove that Habib was a party to the charged
    conspiracy.

[11]

We
    do not accept this submission. Even without Habib, there was strong evidence
    that the appellant and Ahmid were joined in a common purpose to export ecstasy
    into the U.S. Habib met with the appellant and Ahmid in Windsor. Ahmid handed
    Habib the keys to the Nissan van. The appellant loaded her suitcase into the
    back where the drugs were found by U.S. authorities secreted within the back of
    the van. She was given both the appellants and Ahmids cell phone numbers to
    contact once she crossed the border. And in recorded calls between Habib and
    the appellant he uses the word we when indicating his concern when she did
    not call right away. Together with the fact that the ecstasy was secreted in
    the van that was given to Habib to drive across the border, all the
    circumstances were sufficient for the trial judge to conclude that the
    appellant and Ahmid formed an agreement to export the ecstasy to the U.S.

[12]

Second,
    the appellant submits that the trial judge erred by concluding that the
    appellants anxiousness during his telephone conversations with Habib
    corroborated Habibs testimony about the reasons for the trip to the U.S.

[13]

We
    are not persuaded by this submission. In
R. v. Lepage
, 2008 BCCA 132, 232
    C.C.C. (3d) 411, leave to appeal refused, [2008] S.C.C.A. No. 249, Hall J.A.
    said, at para. 42:

Telephone conversations between participants in a conspiracy
    furnish cogent and reliable evidence of the very essence of the conspiracy. It
    is undeniably the best evidence that exists concerning what is occurring
    between the conspirators.

[14]

Referring
    to the appellants anxious, agitated phone conversation with Habib after Habib
    arrived in Detroit, the trial judge said:

In my opinion, this represents circumstantial evidence that
    Chibani was the person who set up the agreement to export ecstasy across the
    border. This call was not that of a friend commenting about a delay in getting
    a phone call after she had crossed the border. This was a person who was
    clearly worried and was aware there was something to worry about, namely, the
    border authorities and the illegal drugs being in the vehicle and her possible
    arrest.

[15]

We
    see no error in this reasoning and the inference that the trial judge drew from
    it.

[16]

Third,
    the appellant asserts that the trial judge needed to exercise greater caution
    in assessing Habibs credibility, especially against the backdrop of a reduced
    sentence in the U.S. proceedings in return for her testimony in the Canadian
    trial.

[17]

We
    disagree. It is not this courts function to recalibrate the weight assigned
    to evidence at one remove from the trial process:
R. v. M.K.
, 2016
    ONCA 589, at para. 8. The trial judge who heard Habibs testimony was entitled
    to conclude:

Im satisfied that she testified not only because she was
    obligated to do so because of her agreement with the U.S. authorities and her
    reduced sentence but that because she wanted to answer all the questions put to
    her honestly and to the best of her ability.

[18]

Fourth,
    the appellant contends that non-disclosure, inadequate disclosure, and late
    disclosure led to a trial that proceeded in a piecemeal way. This meant that
    Habib testified on three occasions and, the appellant submits, required the
    trial judge to take this into account in considering Habibs credibility
    because the interruptions gave her an opportunity to tidy up problems
    apparent in her earlier testimony.

[19]

We
    reject this submission. The appellant offers no specifics with respect to this
    generalized claim.

[20]

The
    appellant submits that a six year sentence was too harsh; a fit sentence would
    be in the three to four year range.

[21]

At
    trial, the Crown asked for a sentence of 5-6 years. The trial judge imposed a
    sentence at the high end of the range. The trial judge acknowledged the
    progress the appellant has made in turning his life around while on bail.
    However, he concluded that the circumstances of the offence warranted the
    imposition of a six year sentence. We commend the appellant for the positive
    steps he has taken both in his work and family life. However, the trial judge
    made no error in imposing the sentence he did. The appellant had a previous
    record for drug offences. He was trying to export about 57,000 ecstasy pills to
    the U.S. The usual target of ecstasy is young people. Finally, the appellant
    did not drive the van himself; he recruited a woman, Habib, to take the front-line
    risk of trying to cross an international border with a huge stash of prohibited
    drugs.

[22]

The
    conviction and sentence appeals are dismissed.

K. Feldman J.A.

J.C. MacPherson J.A.

C.W. Hourigan J.A.


