



COURT OF APPEAL FOR
    ONTARIO

CITATION: R. v. Ezechukwu, 2020 ONCA 8

DATE: 20200107

DOCKET: C66208

Hoy A.C.J.O., van Rensburg and
    Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Francis Ezechukwu

Appellant

Ravin Pillay, for the appellant

David Quayat, for the respondent

Heard: December 19, 2019

On appeal from the conviction entered on November 6, 2017,
    with reasons reported at 2017 ONSC 5441, and the sentence imposed on April 17,
    2018 by Justice Joseph M. Fragomeni of the Superior Court of Justice.

REASONS FOR DECISION

A.

Introduction

[1]

Francis Ezechukwu was convicted of importing cocaine, possession of
    cocaine for the purpose of trafficking, and conspiracy to import cocaine. He
    was sentenced to nine years imprisonment.

[2]

On appeal, he submits that the trial judge: (1) misapprehended the
    evidence on matters that went to the core of the findings of guilt, (2) erred
    in his application of the law on importing and post-offence conduct, and (3)
    rendered an unreasonable verdict. The appellant has abandoned his sentence
    appeal.

[3]

For the following reasons, we dismiss the appeal.

B.

Facts

[4]

On September 8, 2014, a package arrived at Toronto Pearson International
    Airport from Lima, Peru. The declared contents of the package were alpaca rugs
    and wool bags. It was shipped via FedEx and addressed to David Galino 
    Peruvian Arts, 1650 Dundas St. East, Mississauga, Ontario, telephone number
    (647) 924-2887. The commercial invoice for the package was dated September 5,
    2014 and the FedEx receipt shows a direct shipment date of September 5.

[5]

An officer of the Canadian Border Services Agency (the CBSA) examined
    the package and discovered plastic pouches that contained a white powdery
    substance that he believed to be cocaine. At that point, custody of the package
    was transferred from the CBSA to the Royal Canadian Mounted Police (the
    RCMP).

[6]

The RCMP confirmed through Health Canada that the substance in the plastic
    pouches was cocaine, totaling 3,535 grams. In 2014, the value of the seized cocaine
    in the Greater Toronto Area, if sold at the kilogram level, was between
    $175,000 and $227,000. If sold at the gram level, the value was roughly
    $282,800.

[7]

An RCMP constable prepared the package for a controlled delivery. He
    removed the cocaine, save for the 1.5-gram sample that had been tested by
    Health Canada. The RCMP unsuccessfully attempted a controlled delivery on two
    occasions on September 11, 2014. The same day, however, a male who identified
    himself as Dave called FedEx and inquired about the package. He confirmed the
    address and specified that it should be delivered to unit 265.

[8]

On September 12, 2014, the RCMP attempted to deliver the package again.
    At 11:43 a.m., it was received by a man named David Gani, who took the package
    inside the foyer of 1650 Dundas and gave it to Randy Boddis. Gani then exited
    the premises without the package and went into a variety store where he was
    arrested.

[9]

Boddis put a black garbage bag over the package and got into a taxi. The
    taxi travelled to an apartment building in Rexdale. A short time later, the
    appellant came out of the side door of the building. He approached the taxi and
    paid the fare. As the appellant and Boddis walked toward the door of the
    building, Boddis was carrying the package.

[10]

When Boddis and the appellant neared the building, an RCMP officer,
    Corporal Randhawa, ran to the door, yelled Wait, hold on!, and stopped the
    door from closing. Once he had control of the door, Corporal Randhawa yelled
    loudly, Police  stop, several times and arrested Boddis. The appellant
    turned, looked Corporal Randhawa in the eyes, and ran. Another officer,
    Corporal Belfour, chased the appellant and called out Police  stop multiple
    times during the chase. At that point, Constable MacDougall, got out of his
    vehicle and yelled Police  stop. The appellant heard this and changed
    directions, running into another buildings courtyard. Another RCMP team member
    was there and tackled him.

[11]

The appellant was arrested and searched incident to arrest. That search
    revealed, among other items, a piece of paper containing the following
    information: tracking number 804952423148, David Galino  1650 Dundas Street
    East, Mississauga, Unit 265, M4X 2Z3, (647) 924-2887, 1 (800) 463-3339, and
    Payment Confirmation 91620927. The cash in the appellants wallet totalled $820
    CAD and $52 USD. A search of unit 206 of the apartment building resulted in the
    seizure of various documents with the appellants name and/or address and a
    small bag of marijuana in the freezer.

[12]

Cell phone records seized as part of the police investigation revealed
    several calls between a cell phone seized from the appellant and one of two
    phones seized from Boddis. Boddiss phone was in contact with the appellants
    phone since at least August 27, 2014.

[13]

Boddiss phone was also frequently in contact with the phone seized from
    Gani from July 2014 until September 11, 2014. During this same time period, Ganis
    phone and Boddiss phone were in contact with seven common contact numbers. On
    September 12, 2014, Ganis phone and the second phone seized from Boddis were,
    collectively, in contact with a common number nine times.

C.

Analysis

(1)

Did the trial judge misapprehend the evidence
?

[14]

The appellant submits that the trial judge misapprehended the evidence. Specifically,
    in his analysis of conspiracy charge, the trial judge stated at para. 113 that
    he was relying on [t]he number of telephone exchanges during the relevant time
    period up to and including the day of the controlled delivery, namely September
    12, 2014. These exchanges included contact with Gani and Boddis, who received
    the package containing the cocaine from the cover.

[15]

The appellant submits that this finding was contrary to the evidence.
    Indeed, the parties explicitly stated in the Agreed Statement of Facts that
    there was no contact between the appellants phone and the cell phone linked to
    Gani. The appellant submits that this erroneous finding significantly advanced
    the case for the Crown because it connected the appellant to the prime mover
    in the scheme.

[16]

The appellant also takes issue with the trial judges conclusion at
    para. 123 of his reasons that [t]he false address of 1650 Dundas St. East with
    the name Peruvian Arts was designed and calculated by the [appellant] to avoid
    detection by not using his own name and address. The appellant submits that
    there was no evidence capable of supporting the finding that he designed the
    false address. Notably, the document in the appellants possession did not name
    Peruvian Arts. According to the appellant, this erroneous finding elevated him
    to the prime mover of the alleged conspiracy.

[17]

Finally, the appellant submits that the trial judge erred in finding
    that his flight from the police was evidence of his state of mind. At trial,
    the defence took the position that the flight was equally consistent with a
    violation of his parole for possession of marijuana and therefore had no
    probative value. The trial judge rejected that argument, finding that there was
    no evidence that his actions breached his parole terms. The appellant submits
    that the trial judge erred in this regard because possessing marijuana was a
    breach of his condition to obey the law and keep the peace.

[18]

In
R. v. Gill
, 2019 ONCA 902, at para. 10, this court
    considered the standard to be applied to an alleged misapprehension of
    evidence:

The standard applied when misapprehension of evidence is said
    to warrant reversal of a conviction is a stringent one. The misapprehension of
    the evidence must relate to the substance of the evidence, not simply a matter
    of detail. It must be material, rather than peripheral to the reasoning of the
    judge. But that is not all. The errors alleged must also play an essential
    part, not just in the narrative of the judgment, but in the reasoning process
    resulting in the conviction. Misapprehensions of evidence amount to a
    miscarriage of justice only if striking the misapprehension from the judgment
    would leave the judges reasoning on unsteady ground. [Citations omitted.]

[19]

Regarding the post-offence conduct, we agree with the Crowns submission
    that it strains credibility that a small quantity of marijuana located in an
    apartment some distance away would be capable of explaining the appellants
    flight when he was proximate to a large amount of cocaine. Accordingly, we are
    not satisfied that the trial judge made a factual error in rejecting the
    argument that the appellants post-offence flight was equally consistent with a
    violation of his parole.

[20]

It is not entirely clear that the trial judge meant to convey that there
    had been contact between the cell phone seized from the appellant and the one
    seized from Gani. Earlier in his reasons, at para. 96, he noted that the
    parties agreed that there had been no such contact between these phones. For
    the purposes of this analysis, we are prepared to accept that the trial judge
    erred on this point. We are also prepared to accept that the trial judge erred
    in finding that the appellant designed the false address.

[21]

These errors must be placed in context of a very strong Crown case. The
    compelling evidence of the appellants guilt included his possession of the
    paper with the shipping details, the numerous telephone calls between the
    appellant and Boddis, and the fact that he met and paid for the taxi and was
    leading Boddis into the apartment. While direct evidence of communication
    between Gani and the appellant would have strengthened the Crowns case, it was
    not essential to the convictions. Similarly, whether the appellant designed
    and calculated the false address and business name was of marginal relevance.

(2)

Did the trial judge err in his application of the law on importing
    and post-offence conduct?


[22]

The appellant submits that the trial judge made two errors of law in his
    analysis. First, relying on
R. v. Bell
, [1983] 2 S.C.R. 471, he argues
    that the trial judge failed to consider whether the importing had been complete
    when Gani received the package. According to the appellant, a proper
    application of importing in
Bell
would have precluded a conviction.

[23]

The appellants reliance on
Bell
is misplaced. At para. 128 of
    his reasons, the trial judge made clear that he was convicting the appellant
    based on his being a principal to the importation. The trial judge found that
    the appellant knew that the cocaine was being imported into Canada. That
    finding was open to him based on the record. In particular, the appellants
    possession of the shipping details of the package  including a unit number at
    1650 Dundas that was not included in any of the shipping documents  and the
    telephone contact with Boddiss phone that predated the shipment of the
    package, provided a compelling evidentiary basis for this finding. Given the
    appellants involvement as a principal on this count, it is not dispositive that
    Gani received the package and the appellant never touched it.

[24]

Second, the appellant submits, relying on
R. v. Chambers
, 2016
    ONCA 684, 342 C.C.C. (3d) 285, that because there were multiple offences
    charged, the trial judge erred in failing to consider whether the post-offence
    conduct was probative of one, two, or all three of the offences. He argues that
    the flight from police was only potentially relevant to the possession for the
    purpose of trafficking count.

[25]

We disagree. The appellants guilt of the offences charged turned
    largely on the same underlying factual matrix. It was thus unnecessary for the
    trial judge to tie his analysis of the post-offence conduct to a particular
    count. Nor are we of the view that the post-offence conduct could only
    potentially be relevant to the possession for the purpose of trafficking count.
    It was circumstantial evidence that the appellant was engaged in criminal
    conduct, regardless of the precise charge.

[26]

In any event, given the strong circumstantial evidence of guilt, even if
    the appellants flight was excluded from the evidence, we are not satisfied
    that it would have impacted the trial judges findings of guilt.

(3)

Did the trial judge render an unreasonable verdict?

[27]

The appellant submits that the trial judge erred in failing to find that
    a reasonable doubt arose from gaps in the evidence and in failing to find that
    inferences inconsistent with the appellants guilt could be drawn from the
    evidence.

[28]

The appellants argument on this ground of appeal amounts to nothing
    more than an invitation to reweigh various pieces of circumstantial evidence in
    isolation. We decline to do so. Assessing the reasonableness of a verdict
    requires an appellate court to ask whether a trier of fact, properly
    instructed, could have returned a guilty verdict. It is not a re-trial and the
    appellate court must look at the evidence in its totality:
R. v. Biniaris
,
    2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36.

[29]

We note that the appellant elected not to testify. In considering the
    reasonableness of the verdict, we treat the appellants silence as indicating
    that he could not provide an innocent explanation for his conduct. His failure
    to provide an innocent explanation at trial undermines the alternative
    inferences he says were available on the evidence:
R. v. Dell
(2005), 194
    C.C.C. (3d) 321 (Ont. C.A.), at para. 35;
R. v. An
, 2015 ONCA 799, at
    paras. 15-16;
R. v. Wu
, 2017 ONCA 620, at para. 16.

[30]

In our view, the evidence against the appellant was overwhelming and no
    inference short of guilt on all three charges was available. Accordingly, we
    reject this ground of appeal.

D.

Disposition

[31]

For the foregoing reasons, the conviction appeal is dismissed. The
    sentence appeal is dismissed as abandoned.

Alexandra Hoy
    A.C.J.O.

K. van Rensburg
    J.A.

C.W. Hourigan
    J.A.


