



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Onyedinefu, 2018 ONCA 795

DATE: 20181001

DOCKET: C63862

LaForme, Watt and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Onyedinefu

Appellant

Paul Calarco, for the appellant

Sarah Shaikh, for the respondent

Heard: September 24, 2018

On appeal from the convictions entered on July 25, 2016
    and the sentence imposed on November 9, 2016 by Justice Joseph M. Fragomeni of
    the Superior Court of Justice.

REASONS FOR DECISION


Introduction

[1]

The appellant does not dispute that he had physical possession of a
    sealed box containing 146 grams of heroin, which was delivered by FedEx. This
    originated in India and came to Canada by way of the United States.

[2]

The appellants main argument at trial  as he testified - was that he
    was involved in several schemes to import goods from various countries and
    knowingly posed as a realtor to gain access to empty homes where drop off could
    be made. However, he claimed he believed the goods he would be receiving were
    electronics for which he would receive a fee of $800.

[3]

The trial judge found the appellants version neither credible nor
    plausible. He convicted him of importing heroin, and possession of heroin for
    the purpose of trafficking. He was sentenced to: (i) six years imprisonment
    for importing; and (ii) a concurrent term of six years imprisonment for
    possession for the purpose of trafficking. He was credited with seven months
    for pre-sentence custody.

[4]

The appellant appeals his conviction and
    seeks leave to appeal his sentence.
As we explain, none of the grounds
    of appeal against his conviction are persuasive and the appeal is dismissed.
    Further, we find no reason to interfere with the sentence imposed.

The Conviction Appeal

[5]

On his conviction appeal, the appellant advances several grounds.

[6]

First, the appellant argues that the trial judge failed to properly
    apply both the
mens rea
and
actus reus
of importing. More
    specifically, the appellants complaint is that the offence of importing was
    complete before he accepted the package and there is no evidence that he was
    responsible for importing the drugs.

[7]

We disagree. The offence of importing was not factually complete until
    the appellant took possession of the package. The appellants role in the
    importing was aiding the principals of the scheme.

[8]

After a careful review and consideration of
Bell v. The Queen
, [1983] 2 SCR 471 - which the appellant principally relies
    on  this court
in
R. v. Foster
,
    2018 ONCA 53, held
at para. 106: while "importing may be legally
    complete on entry into Canada, it is not factually complete" until the
    drugs clear customs and become available to the ultimate recipient. Thus,
    importing is a process that begins with the procurement of the contraband, its
    transport to a point of entry, and ultimately to a domestic destination or
    recipient. Here the facts are that the importing of heroin was complete in law
    when it entered Canada and in fact when the appellant, who was the Canadian
    recipient, took possession of it.

[9]

Second, the appellant argues it was an error for the trial judge to find
    that the appellant knew heroin was in the package and that he was willfully
    blind as to the contents. We see no error in the trial judges analysis.

[10]

The
    trial judge's reasons, when read as a whole, reveal that he found the evidence
    supported a finding of knowledge, or at the very least, wilful blindness. This
    court has made it clear that the entirety of the evidence can support a trial judges
    conclusion that a person knew the package contained narcotics, or was wilfully
    blind as to its contents:
R. v. Ifejika
, 2013 ONCA 531, at paras. 4
    and 8. Thus, even if it can be said that the trial judges reasons are
    equivocal on this issue, it is clearly one or the other, which is sufficient in
    law.

[11]

Third,
    the appellant submits the trial judge ignored, or failed to understand or apply
    relevant evidence and, instead of drawing inferences based his findings on
    speculation. The appellant complains that the trial judge essentially
    foreclosed consideration of other inferences that may be drawn from the
    evidence. Specifically, he argues that the evidence points to his involvement
    in a criminal activity - importing electronics - but not the criminal activity
    of importing heroin and possession of heroin for the purpose of trafficking. We
    disagree.

[12]

It
    is well established that a trial judge is not required to negate every
    possible conjecture which might be consistent with the innocence of the
    accused: see
R. v. Villaroman
, 2016 SCC 33, at para. 33.
Here the trial judge specifically turned his mind to
    the fact that this was a circumstantial case and that he could only find the
    appellant guilty if he was satisfied beyond a reasonable doubt that guilt was
    the only rational conclusion:
Reasons for Judgment
, at para. 88
.

[13]

The
    trial judge considered the appellant's explanation and found his version of
    events to be irrational. Having rejected the appellants evidence that he
    believed the package contained electronic equipment, there was only one reasonable
    inference available on the totality of the evidence: he had knowledge of the
    presence of a controlled substance and the intention to import it. The trial
    judges reasons for decision make it clear as to why he did so and reveal no
    error. He made a finding open to him, and one that is reasonable in all the
    circumstances.

[14]

Fourth,
    the appellants assertion that the trial judge's reference to the appellant not
    having opened the package amounted to a reversal of the burden of proof is not
    persuasive. That is, he says the trial judge improperly required the appellant
    to disprove the Crowns case
when he found that,
    when the appellant became aware that he was under surveillance, he did not open
    the package to ensure it only contained the electronics he was expecting.
We
    agree with the Crown; the trial judge was simply referencing that, for wilful
    blindness to be made out, the Crown had to prove that the appellant was aware
    of the need to make an inquiry but failed to do so. This did not amount to a
    reversal of the Crowns onus of proof.

[15]

Fifth,
    the appellant argues that the cross-examination of him by the Crown was
    demeaning, sarcastic, and injected the Crowns personal views into the trial.
    During cross-examination, the Crown suggested that he was not caught every time
    that he had committed a fraud and called the appellant a liar several times.
    There are several other examples the appellant provides that are not necessary
    for us to repeat in order to decide this issue.

[16]

In
    considering whether cross-examination resulted in a miscarriage of justice,
    this court must draw the line between conduct that is merely improper and
    conduct that compromises trial fairness. Only the latter will justify ordering
    a new trial:
R. v. A.G.
, 2015 ONCA 159, at para. 22. In determining
    whether the cross-examination resulted in a miscarriage of justice, the overall
    effect of the improper questions in the context of the full cross-examination
    and the entire trial must be considered:
A.G.
, at para. 25.

[17]

The
    Crowns cross-examination arguably did cross the line at times. However, when
    viewed in the context of the entire trial, we are not satisfied that the
    instances complained of were prejudicial. At no time during the trial did the
    appellant object, or seek a mistrial. Moreover, he did not refer to any
    allegation of improper Crown conduct in his submissions to the trial judge.
    Finally, on other occasions, such as when Crown counsel called the appellant a
    liar, the trial judge intervened and properly exercised his gatekeeping
    function.

[18]

Looking
    at the entirety of the trial, the Crowns cross-examination did not render the
    trial unfair or result in a miscarriage of justice.

[19]

For these reasons, the appeal against conviction is dismissed.

The Sentence Appeal

[20]

The
    appellant also appeals against the sentence imposed on the possession for the
    purpose of trafficking count. He does not challenge the six year sentence
    imposed for importing heroin. His position is that if his appeal on the
    importing conviction is successful, the sentence imposed for possession for the
    purpose of trafficking should be reduced.

[21]

Given
    the result on the conviction appeal, the harmful nature and amount of heroin
    involved, the financial motive for the heroin offences, and the appellants prior
    criminal record, the sentence imposed by the trial judge is fit. We would,
    therefore, grant the appellant leave to appeal sentence but dismiss the appeal
    from sentence.

H.S. LaForme J.A.

David Watt J.A.

Gary T. Trotter J.A.


