



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Rahmani, 2013 ONCA 130

DATE: 20130304

DOCKET: C54614

MacPherson, MacFarland and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nejmeddin Rahmani

Appellant

Timothy E. Breen, for the appellant

Amber Pashuk, for the respondent

Heard: February 28, 2013

On appeal from the conviction entered by Justice Margaret
    F. Woolcott of the Superior Court of Justice, dated August 30, 2011.

By the Court:

[1]

The appellant appeals his conviction on the charges of importing opium
    and possession of opium.

[2]

The facts are as follows.

[3]

On July 25, 2010, a package addressed to H. Rahman was intercepted at
    the Hamilton International Airport. Canada Border Services Agency (CBSA) personnel
    found the package to be suspicious and investigated it further. It contained an
    unlocked briefcase which in turn was wrapped in a black plastic bag. The
    briefcase contained childrens clothes and shoes. CBSA agents discovered
    approximately one kilogram of opium concealed in the hard shell of the
    briefcase. The waybill listed the importer as H. Rahman and listed the
    appellants home address.

[4]

An unsuccessful attempt at delivery resulted in a courier slip being
    left at the appellants front door. On the Friday before the long weekend in
    August, the appellant called the number on the delivery slip.  This put him in
    contact with an undercover officer.  He spelt his name for the officer, gave
    him his address and made arrangements for the package to be delivered that
    afternoon. The appellant told the officer that delivery of the package on
    Tuesday would be too late because he was going to America on Monday.  When
    asked whether the package was for him, the appellant responded that he thought
    it was either for his wife or his son.

[5]

Later that day, the appellant came down from his apartment to meet
    another undercover officer in the lobby of the apartment building. The officer
    requested identification and the appellant provided his drivers license.  The
    officer asked the appellant about the discrepancy between the name on the
    license, namely N. Rahmani, and the name on the package, namely H. Rahman.  The
    appellant did not have an answer. They subsequently discussed the spelling of
    the name and the appellant stated that it should have been Rahmani and not
    Rahman. The appellant told the officer that the package had to be delivered
    that day because he and his family were travelling to the U.S. The officer gave
    a lookalike briefcase containing a small amount of opium to the appellant.

[6]

The two parted company and the building was placed under surveillance. 
    More than six hours elapsed and officers observed the appellant outside the
    building on two occasions. When the officers executed a search warrant later
    that evening, two individuals were found inside: the appellants 17 year old
    son, Omid, and a 27 year old family friend. One of the officers testified that
    Omid told him that his mother and brother were in Iran. The officers discovered
    the briefcase in the walk-in pantry concealed behind a tall white shelving unit
    filled with food staples and surrounded by a variety of pots and pans.  It was
    covered with a box of demolition tools.  The briefcase continued to be sealed
    and unopened and was in the same condition as it was when first delivered to
    the appellant. Concealed nearby, the officers found $8000 in cash bundles
    principally in $20 and $10 denominations. The officers also found $4500 in cash
    in the backpack of the family friend, the appellants business card identifying
    him as the owner of an import/export business, and the birth certificate of his
    son, Hewa.

[7]

The only evidence before the court was that of the Crowns witnesses.

[8]

The appellant advances two grounds of appeal.

[9]

First, he submits that the trial judge erred in relying on the
    out-of-court statement that the appellants wife and son were in Iran.

[10]

The
    Crown concedes this error but argues that it was not determinative.

[11]

In
    reaching her verdict, the trial judge enumerated 12 circumstances that she had
    considered, a few of which related to the out-of-court statement.

[12]

That
    said, she indicated that she would have come to the same conclusion in the
    absence of that statement. We agree with her conclusion. The verdict would have
    been the same absent the error.

[13]

We
    would not give effect to this ground of appeal.

[14]

Second,
    the appellant submits that the finding of guilt was unreasonable.

[15]

To
    establish possession, the Crown was required to prove both control and
    knowledge.

[16]

Control
    of the package through acceptance of delivery having been conceded, the trial
    judge correctly noted that the only live issue was whether the appellant had
    knowledge of the contents of the package.

[17]

The
    trial judge gave thorough reasons for her decision.

[18]

There
    was no direct evidence of knowledge, however, the circumstantial evidence
    supported a finding of knowledge. This included the manner of acceptance and
    the concealment of the package. Based on the evidence before her, it was open
    to the trial judge to infer that the appellant had concealed the package and
    had the requisite knowledge.  The verdict was not unreasonable.

[19]

The
    appeal is dismissed.

Released: March 4, 2013 JCM

J.
    C. MacPherson J.A.

J.
    MacFarland J.A.

S.
    E. Pepall J.A.


