



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.


