This week’s top three summaries: R v Spicer, 2023 ONCA 232: not #stereotyping, R v Blatchford, 2023 ABKB 193: circumstantial #ID, and R v Zamora, 2023 ONSC 2169: innocent #dupe
This week’s top case deals with an issue to that comes up often in sexual assault trials. For great general reference on the law in this area, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.
PROSECUTING AND DEFENDING SEXUAL OFFENCE CASES, 2ND ED.
R v Hills, 2023 ONCA 232
[April 5, 2023] Sexual Assaults: Stereotyping Human Behaviour [I.V.B. Nordheimer, L. Sossin, and J. Copeland JJ.A.]
AUTHOR’S NOTE: All criminal lawyers know that reasoning from stereotypes of human sexuality is prohibited in a sexual assault trial. The harder question is precisely identifying when that is actually occurring either in questions, arguments, or objections of counsel. Some prosecutors will object or call sexual stereotyping on arguments that are definitely not. This case reminds us that reasonable doubt is permissible where it arises out of behaviour that seems unlikely on the basis of the evidence before the court – this is not stereotyping. Here, the summary appeals judge failed to appreciate that the finding of unlikelihood related to non-consensual sexual relations underlying the original conviction arose from facts on the record (not myths in the head of the jurist).
Background
[2] The background facts can be summarized briefly. The complainant and the appellant worked at the same restaurant. On the evening in question, they were both at a staff party. Both had been drinking. At one point, the complainant needed to use the washroom. The complainant testified that she went into the men’s washroom because she could not see the entrance to the women’s washroom. The complainant was washing her hands, prior to leaving the washroom, when the appellant came into the washroom. The complainant joked about being in the men’s washroom, and the appellant laughed. It is at this point that the versions of events diverge.
[3] The complainant said that the appellant made comments about her looks, then approached her and grabbed her nipples. The complainant said that the appellant then told her to go into one of the bathroom stalls where he followed. In the stall, with the door locked, the appellant attempted to force the complainant to perform oral sex on him. This effort ended when two co-workers, one after the other, came into the washroom. The first co-worker who entered the washroom saw what was going on between the two. The complainant and appellant left the washroom. The complainant was upset and found her sister.
[4] The appellant said that, after he entered the washroom, he did make comments about the complainant’s looks but did not touch her breasts before entering the stall. He suggested that the two go into one of the stalls and then put out his hand to guide the complainant toward the stall. The complainant took his hand, and they went into the stall where he locked the door. The appellant then removed his penis from his pants. The complainant put her hand into his hand, and he guided it towards his penis but there was no touching of it because they heard people come into the washroom. The appellant reached down and grabbed the appellant’s breasts. At that point, a co-worker entered the washroom. The co-worker looked over the wall of the stall and saw what was happening. The co-worker left, and the complainant left the stall directly thereafter as a second co-worker walked into the washroom. The appellant then left the washroom.
The Trial Decision
[6] … The trial judge then reviewed the evidence of the complainant and the appellant in detail. He noted the obvious differences between the two versions of the events. In the end, the trial judge said he was left with a reasonable doubt that the appellant had grabbed the complainant’s nipples prior to them going into the stall. Also, on the evidence, the trial judge said he was also left with a reasonable doubt that the complainant did not give her consent for what happened in the stall and how they both wound up in the stall. In coming to this conclusion, the trial judge noted an inconsistency in the complainant’s evidence (the complainant’s evidence “materially changed”) about how she and the appellant ended up in the stall together. Consequently, the trial judge entered an acquittal.
[7] The Crown appealed. The SCAJ allowed the appeal and ordered a new trial. In so concluding, the SCAJ found that the trial judge’s conclusion “rested on myth-based reasoning predicated around the myth that sexual assaults happen only in private” which amounted to an error of law. The SCAJ further found that there was “no evidence that [the complainant] specifically consented to each and every sexual act” and that the trial judge erred in finding that she had….
Analysis
[8] While the SCAJ correctly cited the principles applicable to a Crown appeal from an acquittal, in our view, she failed to properly apply those principles. In fact, what the SCAJ did was to revisit the conclusions that the trial judge drew from his factual findings and substitute her own view of them. It was an error for the SCAJ to do so.
[9] Central to this error was the SCAJ’s finding that the trial judge engaged in myth-based reasoning. With respect, that is not what the trial judge did. What the trial judge did was draw reasonable inferences from the particular facts that were before him. More specifically, the trial judge did not say that sexual assaults happen only in private….
…What the trial judge did say was that he had a reasonable doubt that the appellant grabbed the complainant’s nipples in part because the assault would have been in “open plain view for anyone to see entering the bathroom”, especially so at a staff party with others right outside the washroom door. The trial judge also referred to the fact that any report of the appellant grabbing the complainant’s breasts would be grounds for the immediate termination of the appellant’s employment under his employer’s zero-tolerance policy. [Emphasis by PJM]
[10] A trial judge is entitled to draw reasonable inferences from the facts that are presented. It was open to the trial judge to draw the inference that he did from the facts that were before him. A different factual scenario might not allow for such an inference. But it was the trial judge’s job to decide on the available inferences, and to do so without being labelled as having engaged in myth-based reasoning. While we accept that the trial judge’s reasons were not as clear as they might have been on this point, ambiguity is not sufficient to establish error. As was observed in R. v. G.F., 2021 SCC 20, 404 C.C.C. (3d) 1, at para. 79:
Where ambiguities in a trial judge’s reasons are open to multiple interpretations, those that are consistent with the presumption of correct application must be preferred over those that suggest error. [Citations omitted.]
[11] It was also an error for the SCAJ to conclude that the trial judge erred in finding that the complainant had consented to each and every sexual act. The trial judge did not make any such finding. What the trial judge did find was that he was left in a reasonable doubt over the issue of consent. Specifically, the trial judge said:
It leaves this court with a reasonable doubt that [the complainant] did not give her consent for what happened in the stall and how both of them end up entering the stall together.
[12] There is a difference between a finding of a lack of consent and a finding that there is a reasonable doubt about consent. The difference is fundamental to the W.(D.) principle and the burden of proof that rests on the Crown. The SCAJ erred in failing to recognize, and give effect to, that difference.
[13] Finally, even accepting that any error occurred in the trial judge’s reasoning, the SCAJ was required to determine whether any such error materially affected the trial judge’s ultimate conclusion….
…The SCAJ failed to engage in that analysis or to make that finding.
Conclusion
[14] The appeal is allowed, the order of the SCAJ is set aside, and the acquittal is restored.
R v Blatchford, 2023 ABKB 193
[April 4, 2023] Circumstantial Identification: DNA and blood, video evidence, opportunity [John T. Henderson J.]
AUTHOR’S NOTE: The principles of analysis of circumstantial identification evidence are well-known. However, this case deals with a few subsets of evidence that are very common in a particularly helpful way for the defence. First, the trial judge’s treatment of the DNA evidence is uncommonly rigid in favour of the defence. Forensic experts are almost always unable to determine if the DNA they matched from a sample obtained from a scene (despite description of it coming from a bloody area on clothes or other items) actually came from the blood itself. That is often an inference judges or juries make. However, here the judge refused to do so saying the expert could not say the DNA was from the blood. This is the type of conclusion defence often want the trier of fact to make and now there is a persuasive precent to follow. Second, video evidence is pervasive in today’s world. Here, the judge used R v Sandoval-Barillas, 2017 ABCA 154, to highlight that despite the video evidence placing the accused on scene near the time of death, this was not a case of exclusive opportunity which can provide strong evidence of identity. To prove a case through opportunity, the Crown must prove exclusive opportunity by the accused.
I. Overview
[1] Mathew Blachford is charged with second-degree murder in relation to the death of Victorine Jennifer Donovan.
[2] In the early morning hours of October 8, 2019, Ms Donovan was viciously attacked in the parking lot of an apartment complex in Peace River, Alberta. During the attack Ms Donovan was struck several times causing multiple broken facial bones. She was also shot 5 times in the head and shoulder area….
…the cause of death was multiple gunshot wounds.
[7] The only issue in this case is whether the Crown has proven beyond a reasonable doubt that Mr Blachford was the person who was responsible for Ms Donovan’s death.
II. Evidence
A) Police Investigation
[25] Police located and seized video surveillance footage from Fas Gas. Mr Blachford admits that the still photos taken from the Fas Gas video footage capture his image.
[26] Police located and seized the Avenger and conducted forensic testing. In the interior of the Avenger, no blood was found and none of Ms Donovan’s DNA was detected.
[27] On the exterior of the Avenger, police found two areas of interest, one on the left passenger door and one on the front of the left rear wheel well. Swabs were taken of those areas which were submitted for analysis. The analysis confirmed Ms Donovan’s DNA in each of the samples. Neither sample was confirmed as being blood. Therefore, Ms Donovan’s DNA could have come from her saliva, skin, or other body cells.
[28] Police obtained a search warrant for Mr Blachford’s home. During the execution of that warrant, police seized a pair of blue jeans from a trash can. On the jeans police located three small stains which were areas of interest: the front right knee, the front right hip seam, and the back side of the jeans below the knee. The jeans were submitted for analysis, which confirmed the presence of Ms Donovan’s DNA on all three areas of interest. Each sample was also confirmed to contain blood, but the testing could not determine whether the blood was from a human source or from an animal. The same jeans also contained Mr Blachford’s DNA, which was extracted from around the waist band of the jeans.
[31] Police located and seized five .22 shell casings from the area in and around the Ford Escape near where Ms Donovan’s body was found….
…Firearms were found in Mr Blachford’s home. All were all lawfully purchased, owned, and stored, but none were capable of discharging the ammunition that was used to shoot Ms Donovan. No .22 calibre ammunition was found in Mr Blachford’s gun safe, house, or vehicle.
[33] Three weeks after Ms Donovan’s death, her black purse was located near Glenmary School in Peace River. No forensic testing of the purse or its contents was conducted.
[34] Three months after Ms Donovan’s death, her identity documents and health card were found in a stolen vehicle in the possession of Eugene L’Hirondelle and Samantha Camber. The stolen vehicle was found by members of the McLennan, Alberta RCMP detachment. Police took no steps to investigate the possible involvement of these individuals in Ms Donovan’s death.
[35] Mr Blachford did not testify, and no inferences can be drawn from this election….
C) Video Surveillance Evidence
[43] While it may be open to triers of fact to make an identification based solely on videotape evidence, caution must be exercised in doing so. The video must be of sufficient clarity and quality and show the accused for a sufficient time to enable a proper identification beyond a reasonable doubt: Nikolovski at para 30 – 32. The trier of fact must assess the video evidence, taking into consideration its inherent values, deficiencies, or shortcomings: R v Osman, 2021 ABCA 114, at para 24, leave to appeal to SCC ref’d [2021] SCCA No 181; R v Harrison, 2022 ABCA 74 at para 18; R v Ermineskin, 2021, ABCA 225.
[44] Caution is particularly critical in the present case because some of the video clips that form part of the compilation presented by the Crown have inherent deficiencies, as I will later describe.
[45] The Crown submits that a careful examination of the video evidence chronicles the events that led to Ms Donovan’s death. However, the Crown does not rely exclusively on the video evidence. The Crown submits that when the video evidence is assessed in the context of the other evidence, including the DNA found on Mr Blachford’s jeans, the evidence establishes beyond a reasonable doubt that Mr Blachford is guilty of second-degree murder.
[49] The significant features of the surveillance videos can be summarized as follows:
a) The video from Fas Gas is of very high quality and proves that Mr Blachford was driving the Avenger that left Fas Gas at 1:05 AM on October 8, 2019. Mr Blachford admits that he is the person depicted in the still photographs taken from the Fas Gas video.
b) At 1:11 AM, approximately 6 minutes after Mr Blachford drove away from Fas Gas, a video clip from the Gymnastics Club captures what the Crown submits is the Avenger driving through the north entrance of the Nova parking lot and parking on the north side of the lot, four stalls east of the white Ford Escape. This video clip does not show the driver of the motor vehicle. Nevertheless, the Crown submits that Mr Blachford was the driver of the Avenger at that time.
c) Approximately 30 minutes later at roughly 1:37 AM, a video clip from Matt’s Pizza captures a person wearing a dark winter coat and a white toque leaving the north end of the Nova parking lot and crossing 77th Avenue walking toward the Norglen. The person’s face cannot be seen on the video. The Crown submits that this person was Ms Donovan.
d) Approximately 90 seconds later at roughly 1:39 AM, a video clip from Matt’s Pizza captures the lights from a motor vehicle being turned on. This motor vehicle was parked in the Nova parking lot, several stalls east of the north exit to the lot. The motor vehicle then left the parking stall. The Crown submits that this is the Avenger being driven by Mr Blachford.
g) …The lights of the motor vehicle can be seen as it continues south for a very short distance and then turns left into the west entrance of the Nova parking lot at 1:41 AM. As this is happening, the person in the dark winter coat and white toque turns around and begins to walk east on the south side of 77th Avenue in the direction of the north entrance to the Nova parking lot. This person enters the Nova parking lot at 1:42 AM. The Crown submits that the vehicle traveling south on 98th Street was the Avenger being driven by Mr Blachford. The Crown submits that the Avenger had travelled north in an alley between the Gymnastics Club and the Reddi Mart for some unknown reason and then ultimately turned left onto 98th Street to travel south. The Crown submits that as the Avenger was driving south on 98th Street, Ms Donovan was waiving her arm and hand at the Avenger.
h) After the motor vehicle entered the Nova parking lot from the west entrance, a clip from Matt’s Pizza captures the lights from a motor vehicle some distance behind the white Ford Escape. The Crown submits that this was the Avenger being driven by Mr Blachford. The Crown also submits that this video clip shows that the Avenger being parked in a row of stalls near the north entrance to the Nova, some distance behind the Ford Escape. If the Crown is correct in this submission, I conclude that the Avenger would be approximately 60 to 80 feet behind the Ford Escape.
i) The Crown submits that very shortly after the motor vehicle parked and after the person with the dark winter coat and white toque returned to the Nova parking lot, an altercation occurred. A video clip from Matt’s Pizza at time marker 4:45 (approximately 1:42 AM) captures what the Crown submits is a person dropping to the ground. The Crown submits that this person was Ms Donovan after she had been shot by Mr Blachford.
j) A video clip from Matt’s Pizza at time marker 5:19 (approximately 1:43 AM) captures what the Crown submits is the person who had fallen to the ground being dragged from the left side of the Ford Escape to the front of the Ford Escape. The Crown submits that the person being dragged was Ms Donovan and that Mr Blachford was dragging her. The video clip from the residence at 9713 – 76th Avenue at time marker 1:46 AM also shows this movement.
k) A video clip from Matt’s Pizza at time marker 6:01 (approximately 1:44 AM) captures what the Crown submits are movements near the Ford Escape that are consistent with one person stomping another person, as described by Mr Mildenberger. The Crown submits that this was Mr Blachford stomping Ms Donovan.
l) At 1:45 AM, a video clip from the Gymnastic Club captures a motor vehicle leaving the Nova parking lot via the north exit, turning left, and travelling west on 77th Avenue. The Crown submits that this motor vehicle was the Avenger being driven by Mr Blachford after he killed Ms Donovan.
[50] Apart from the Fas Gas video clips, none of the video clips have sufficient clarity to identify Mr Blachford. Some of the video clips capture images from a considerable distance. At times it is extremely difficult to determine what is taking place in the videos.
[51] The Crown does not argue that the video clips identify the assailant, as in Nikolovski. Rather, the video clips are circumstantial evidence that the Crown argues provide a basis upon which reasonable inferences can be drawn to identify Mr Blachford as the assailant.
[55] Where the criteria in Villaroman are properly applied, circumstantial evidence can be used to prove one or more of the elements of an offence, including that the accused person before the court is the person who committed the offence: R v Hassan Ali, 2021 ABCA 21; R v Eide, 2021 ABCA 70; R v Habte, 2020 ABCA 476; R v Matchee 2019 ABCA 5; R v Brazeau, 2018 ABCA 170. However, before permitting circumstantial evidence to be used to prove identity, it is necessary to consider the totality of the evidence, including any frailties in relation to that evidence: R v Metzger, 2023 SCC 5 at para 6
[56] In this case, I must consider what inferences may properly be drawn from the totality of the evidence and whether those inferences, when properly assessed in accordance with the principles described in Villaroman, can prove beyond a reasonable doubt that Mr Blachford assaulted and shot Ms Donovan.
[57] I conclude that the Avenger that Mr Blachford was driving when he left Fas Gas at 1:05 AM on October 8, 2019 was the same vehicle that was seen at the Nova parking lot between 1:11 AM and 1:45 AM…
[58] When I consider all of these factors, I conclude that the Avenger left Fas Gas at 1:05 AM and arrived at the Nova at 1:11 AM. I also conclude that the Avenger was at or near the Nova until it finally departed at 1:45 AM. There are no other reasonable possibilities arising from these facts.
B) Mr Blachford was the driver of the Avenger at the Nova
[59] I infer that Mr Blachford was the driver of the Avenger while it was at Nova.
[60] The video clips from the cameras near the Nova are not sufficiently clear to permit identification of the driver of the Avenger while it was at the Nova. Nevertheless, I infer that Mr Blachford was the driver of the Avenger at all relevant times. Mr Blachford admits that he was the person getting into the Avenger as captured in the Fas Gas video clips. It is clear from those video clips that he was the driver of the Avenger as it left Fas Gas.
[61] The Fas Gas video clips also shows that Mr Blachford was alone at the relevant time. As I earlier explained, the travel time from Fas Gas to the Nova is almost precisely what would have been expected for an arrival at 1:11 AM. It would be pure speculation to assume that the Avenger stopped to change drivers or to pick up other persons.
C) Ms Donovan was the person captured walking on 77th Avenue
[63] I infer that the person captured in the video clips walking on 77th Avenue was Ms Donovan for the following reasons. Dakota testified that when he and Ms Donovan went to Ms Courtorleille’s apartment, Ms Donovan was wearing a dark winter coat with fur trim around the hood and black or blue coveralls. Police photographs show the coat that Ms Donovan was wearing at the time of her death. It was a black winter coat with fur trim around the hood (Ex 2, photos 15 and 83), which is consistent with the coat worn by the person captured in the video clips. Police photographs also show the pants that Ms Donavan was wearing at the time of her death. They were blue in colour and bulky (Ex 2, photos 22 and 23), which is consistent with the pants worn by the person captured in the video clips. Police photographs also show a toque that was found beside the Ford Escape (Ex 2, photos 12, 33 and 34), which is consistent with the toque worn by the person captured in the video clips.
[64] I infer that the person captured in the video clips walking on 77th Avenue was Ms Donovan. There is no other reasonable inference available on the facts. I infer that after initially leaving the Nova parking lot at 1:37 am, Ms Donovan walked west down 77th avenue, waived at the Avenger before she returned and entered the Nova parking lot at 1:42 am. This was approximately 2 minutes before she was assaulted and shot.
D) Was Mr Blachford the assailant?
[67] Despite the compelling nature of the Crown’s argument, I am not able to accede to the Crown’s position. The Crown’s submissions fail to consider the frailties in the evidence and the absence of evidence on the record before me. When I consider the totality of the evidence, I conclude that it is not possible to draw the inference that Mr Blachford was Ms Donovan’s assailant.
[68] Some of the evidence that prevents a proper inference on identity are as follows:
i) Lack of clarity in critical portions of video evidence
[69] The video clips are subject to many frailties. On their own, the video clips are not sufficiently clear to permit any conclusion regarding who killed Ms Donovan.
[71] The primary value of the video clips is that they depict the Avenger in the Nova parking during the material times and demonstrate that no other vehicles drove into the Nova parking lot at any material time prior to the attack. However, in other respects, the value of these video clips is very limited. While I am able to infer that Mr Blachford was driving the Avenger, none of the video clips show Mr Blachford getting out of the Avenger at any time.
[72] Further, this is not a case of exclusive opportunity which, if established can provide strong evidence of identity: R v Sandoval-Barillas, 2017 ABCA 154 at para 41 – 45. In this regard, the video clips do not capture activities in other areas of the Nova parking lot. The uncontested evidence is that the Nova was located in a high-density residential area with 13 apartment complexes in the immediate area that were easily within walking distance of the Nova parking lot. The relevant video cameras do not provide coverage for all points of access into the Nova parking lot. Furthermore, while the video clips from Matt’s Pizza and from 9713 – 76th Avenue show what appears to be the movement of a person or persons near the Ford Escape at or very near the time that Ms Donovan was attacked, those portions of the videos are of very poor quality. It is not possible to determine the number of persons present, the gender of the persons, the size of the persons, or what that person or persons are doing. These videos are of little probative value in attempting to identify the assailant.
[73] I conclude that Mr Blachford was in the Nova parking lot at the time of the attack on Ms Donovan. This gives rise to a very high level of suspicion. However, mere presence in the same parking lot at the time when the offence occurred does not, alone, permit an inference that Mr Blachford was Ms Donovan’s assailant. Much more than that is required.
ii) DNA on Mr Blachford’s jeans
[74] The presence of Ms Donovan’s DNA on Mr Blachford’s jeans is relevant evidence, particularly when assessed in conjunction with the video evidence and Mr Blachford’s presence in the Nova parking lot. If the DNA evidence had been strong, it may have supported an inference as to identity. However, I conclude that the DNA evidence has frailties that impede a proper inference regarding identity.
[75] Trevor Price, a civilian employee of the RCMP working in the Biological Services area, was qualified as an expert in forensic DNA analysis. Mr Price opined that Ms Donovan’s DNA was found on three small samples cut from the jeans found in Mr Blachford’s trash can. He also opined that blood was found in each of the three samples tested. However:
- Mr Price could not determine when the DNA was deposited on the jeans.
- Mr Price could not determine whether the DNA was from the blood or from some other substance such as saliva, phlegm, skin, hair, or other bodily substance.
- Mr Price could not determine whether the DNA was from direct, secondary, or tertiary transfer.
- Mr Price could not determine whether the blood detected was from a human or animal.
[76] Based on Mr Price’s expert evidence, I can safely conclude that Ms Donovan’s DNA was on the jeans that Mr Blachford was wearing in the early morning hours of October 8, 2019.
[77] However, Mr Price also confirmed that DNA transfer could occur through direct transfer such as sneezing or through indirect transfer such as touching an object on which the DNA was deposited and then touching some other object or person. Mr Blachford and Ms Donovan were not strangers and they met regularly to conduct drug transactions. While they were doing so, they would generally meet in or around his vehicle and converse before completing the exchange. During those transactions there were transfers of drugs for cash. Each of these meetings presented the opportunity for the transfer of DNA from Ms Donovan to Mr Blachford because they were standing near to one another conversing and passing drugs from Ms Donovan to Mr Blachford.
[78] The unchallenged expert evidence of Dr Lorne Tyrrell was that that there is a significantly increased chance of nose bleeding in patients using crystal meth or cocaine compared to the non-drug using population. It is admitted that Ms Donovan was a regular user of both methamphetamine and cocaine. Mr Price agreed in cross-examination that, given Dr. Tyrrell’s opinion, and based on Ms Donovan’s history of the use of methamphetamines and cocaine, it was a reasonable possibility that the small deposits of blood on the jeans could have occurred through the expulsion of blood with the phlegm or saliva in the direction of the person wearing the jeans and then through indirect transfer to the jeans.
[79] However, Mr Price’s opinion in this regard presupposes that Ms Donovan’s blood was contained within the samples from the jeans that were tested. On the evidence before me, I am unable to conclude that Ms Donovan’s blood was on Mr Blachford’s jeans. This is because Mr Price was unable to directly associate Ms Donovan’s DNA to the blood on the jeans….
[80] Furthermore, Mr Price opined that the source of the blood found on the jeans could either have come from a human or from an animal. This is significant because Mr Blachford is a hunter and, at the time of these events it was hunting season….
[81] The presence of Ms Donovan’s DNA on Mr Blachford’s jeans is, at least on the surface, significant. But the significance of this evidence is diminished because the evidence is capable of reasonable explanations other than blood deposited at the time of the attack on Ms Donovan. This argues against an inference on identity.
iii) Ms Donovan’s DNA on the Avenger
[82] The presence of Ms Donovan’s DNA on the exterior of the Avenger has even greater frailties. I conclude that this evidence has little probative value. The likelihood that the bodily substances containing Ms Donovan’s DNA were deposited on the Avenger during the attack is extremely remote. This is because the Avenger was parked at least 60 to 80 feet from the area where Ms Donovan’s body was found and a similar distance from where the Crown alleges the attack took place. Based on the evidence of the blood spatter expert, that blood spatter can travel at most eight feet. Therefore, it is not possible to reasonably infer that Ms Donovan’s DNA on exterior of the Avenger was deposited during Ms Donovan’s attack.
[83] Furthermore, in relation to these samples, the lab was not able to confirm that blood was present. Thus, it is possible that Ms Donovan’s DNA came from another of Ms Donovan’s bodily substances or from Ms Donovan’s skin. As was the case with Ms Donovan’s DNA on Mr Blachford’s jeans, Mr Price was not able to determine when the DNA was deposited on the vehicle or whether it was a direct or indirect transfer. Given that the drug transactions between Ms Donovan and Mr Blachford occurred in or around the Avenger, Ms Donovan could have touched the exterior of the Avenger during any one of those drug transactions prior to the attack.
[84] For these reasons the presence of Ms Donovan’s DNA on the exterior of the Avenger does not assist in making any inferences on identity.
iv) Absence of Evidence
[85] In addition to the frailties of the video and DNA evidence, it is necessary that I consider the absence of evidence:
- Police found a large blood mark on the hood of the Ford Escape. The pattern suggested that a hand and thumb had come into contact with the pool of blood and was then transferred to the hood of the Ford Escape. I conclude that these marks were not made by Ms Donovan. Police photos show no blood on Ms Donovan’s hands. It is more likely that the hand marking was made by the assailant. If Mr Blachford was the assailant, then after the attack he must have immediately returned to the Avenger before leaving the parking lot at 1:45 AM. If Mr Blachford had blood on hands, then the blood would very likely have transferred to the Avenger’s door handle, steering wheel, or gearshift. No blood or DNA was found in these areas. If Mr Blachford was wearing gloves, that may account for the absence of blood in these areas. However, it would be speculative for me to draw that inference. The Fas Gas video clips show Mr Blachford wearing a light fleece jacket without any gloves. No gloves were found at the scene or in Avenger or Mr Blachford’s residence.
- The Crown submits that the video clips capture what appears to be the assailant stomping on Ms Donovan in the manner described by Mr Mildenberger. Police photos show substantial damage to Ms Donovan’s face and a loss of blood in Ms Donovan’s facial area. Police photos of the Ford Escape confirm blood spatter. Given these circumstances, I conclude that the assailant’s shoes would very likely have had Ms Donovan’s blood on them after the assault. If Mr Blachford was the assailant, then that blood would likely have been secondarily transferred to the Avenger’s gas peddle, brake peddle, or floor mat. No blood or DNA evidence was found in these areas. Moreover, the police confirmed that no attempt had been made to clean this area of the Avenger.
- The stomping of Ms Donovan’s face would very likely have caused blood spatter onto the pants of the assailant as was described by the blood spatter expert. While Mr Blachford’s jeans did show a deposit of three small spots of blood, none of the locations where blood was detected were near the hem of the jeans. The jeans did not show the same patten of blood spatter found on the Ford Escape.
- Police searched Mr Blachford’s vehicle, home, and gun case. They found no evidence of the murder weapon, nor did they find any ammunition of the type used in Ms Donovan’s shooting. While firearms were found in Mr Blachford’s home, none were capable of firing the type of .22 ammunition that had been used in Ms Donovan’s shooting.
- There was no evidence of animosity between Ms Donovan and Mr Blachford. Police conducted searches of the phones of Mr Blachford and Ms Donovan and no evidence was found to suggest any animosity between them. In his statement to police Mr Blachford confirmed that there was no animosity between them. Further, there is video evidence of Ms Donovan waving to Mr Blachford shortly before the attack, which is inconsistent with animosity between them.
[86] When I consider the totality of the evidence, I conclude that it is simply not possible to safely draw an inference that Mr Blachford was the assailant. The presence of Mr Blachford in the Nova parking lot is not sufficient on its own to permit this inference. The video evidence is of poor quality at the critical times and is not sufficient to permit this inference. The DNA evidence has frailties that prevent this inference because of other reasonable explanations. Furthermore, the absence of evidence gives rise to reasonable doubt. The combination of these factors would make it very dangerous to find that identification has been proven beyond a reasonable doubt.
VI. Conclusion
[88] Mr Blachford gave a statement to police which was tendered as part of the Crown’s case. When I consider that statement in the context of the Crown evidence, I conclude that I have a reasonable doubt as to Mr Blachford’s guilt. For this reason, I find him not guilty of second- degree murder, the sole count on the indictment.
[89] Since my reasonable doubt rests on the identity of the person who committed the offence, there is no need to consider Mr Blachford’s liability for any included offences.
R v Zamora, 2023 ONSC 2169
[April 6, 2023] Possession/Importing: The Innocent Dupe Defence [Mandhane J.]
AUTHOR’S NOTE: The evidentiary record really drives the result here for Zamora. There was a well-developed digital trail that suggested Mr. Zamora was a delivery driver for hire on Kijiji. He produced these records for police during his custodial interview which included text messages with the hiring party – who used a pseudonym. While the particular facts are unlikely to be reproduced with the same degree of detail, something like this defence is made much more possible by new software that links people to services they need, like: TaskRabbit. The challenge is overcoming the argument that valuable drugs would only be entrusted to an insider with knowledge. The facts of this case led to a doubt about that conclusion to the benefit of Zamora, but the detriment of his co-accused.
INTRODUCTION
[1] On March 1, 2018, Sebastian Zamora, Nicholas Poku, and Chukwuemka Madumelu (together, the “suspects”) were arrested by the Royal Canadian Mounted Police (“RCMP”) in relation to an alleged conspiracy to import and traffic heroin.
[2] While under RCMP video surveillance and in the presence of undercover officers, Zamora picked up a parcel containing heroin from an airport warehouse. Afterwards, the three suspects met at a restaurant and transported the parcel to an apartment building where they were arrested.
[3] Zamora is charged with importing heroin contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). Both Zamora and Poku are charged with possession of heroin for the purposes of trafficking contrary to s. 5(2) of the CDSA. Madumelu pleaded guilty to importing heroin on April 26, 2019.
[4] Zamora and Poku appeared before me for their trial. Zamora was represented by counsel while Poku represented himself. The central issue is whether either or both accused knew that the parcel contained a controlled substance….
INVESTIGATION AND ARRESTS
[8] The 1.347 kg of heroin was concealed in a parcel that arrived on a Pakistan International Airlines flight on February 21, 2018 with a waybill addressed to “Richard Domond.” The parties agree that “Domond” was an alias created and used by Madumelu for the purposes of importing heroin into Canada. The parcel was a large white burlap bag with over twenty low-quality, plastic-wrapped laptop bags inside. Two of the laptop bags had a substance concealed behind their nylon lining.
[10] The RCMP wanted to attempt a controlled delivery of the parcel to the intended recipient, “Domond.” They seized most of the heroin, reassembled the parcel to appear as though no one had opened it, but left a small amount of heroin concealed inside. On February 28, 2018, an RCMP officer posing as a delivery driver unsuccessfully attempted to deliver the parcel to “Domond” at the address listed by the sender on the parcel and waybill.
[11] The RCMP then learned that “Domond” had created a one-time account with Livingston International, Inc., a freight brokerage firm, and retained them to facilitate customs clearance and delivery of the parcel. Eventually, an RCMP officer posing as a Livingston employee called the telephone number on the waybill and spoke with Madumelu, who claimed to be “Domond.” Madumelu asked the officer if his cousin could pick the parcel up at the warehouse in Mississauga where it was being stored, and what identification and paperwork his cousin would need. The officer told Madumelu that he would first need to pay the customs and brokerage fees owing to Livingston before the parcel would be released back to the warehouse for pickup. “Domond” paid the required fees on February 27, 2018.
[12] On March 1, 2018, a Livingston employee emailed “Domond” a letter authorizing a “Sebastian/Richard Domond” to retrieve the parcel from the warehouse. Livingston transferred the parcel to the warehouse and the RCMP laid in wait for whoever was going to show up to claim it. The RCMP set up surveillance cameras and undercover officers posed as warehouse employees.
[13] On March 1, 2018, just before 5:00 p.m., Zamora and Poku drove into the warehouse parking lot in Zamora’s Chrysler. Zamora got out of the car and entered the warehouse reception area. While he was inside, Poku exited the Chrysler, smoked a cigarette, and then re-entered the vehicle. Inside the warehouse, Zamora spoke to an attendant, presented paperwork, waited for about 15 minutes, entered a loading dock, and bought food from a vending machine. He watched as the parcel was wheeled out on a dolly by an RCMP officer posing as a warehouse employee. Zamora spoke briefly with the RCMP officer, rocked the parcel back and forth, lifted the parcel off the dolly, and carried it through the reception area and out the front doors. He loaded the parcel into the backseat of the Chrysler while Poku remained in the car.
[14] While still under RCMP surveillance, Zamora and Poku left the warehouse parking lot and drove to a nearby restaurant where they met Madumelu. Zamora and Poku left the parcel in the backseat of the car while they dined. The three suspects exited the restaurant about 20 minutes later and returned to their respective vehicles.
[15] Zamora and Poku then drove to an apartment complex and parked in front of the entrance. Madumelu drove to the same location via a different route and also parked. Poku and Madumelu took the parcel out of the Chrysler’s backseat and carried it into the building while Zamora waited in the car. Poku and Madumelu rode the elevator to the 19th floor with an undercover RCMP officer. Poku and Madumelu, and the undercover officer all exited the elevator and started to walk down the hall. Madumelu and Poku were arrested and handcuffed by the same officer. Zamora was arrested while waiting in the Chrysler in the parking lot.
BURDEN OF PROOF
[19] In this case, the central issue is whether the Crown has proven beyond a reasonable doubt the mens rea, or mental element of the offence(s), for each accused. That is because both Zamora and Poku concede the actus reus for possession insofar as they had physical control of the parcel containing heroin. While Zamora does not concede that his actions satisfy the actus reus for importing, his counsel agrees that the most contentious issue relates to the mental element of the offence
[20] The offences of importing heroin and possessing heroin for the purpose of trafficking share a common mental element. For each, the Crown must prove beyond a reasonable doubt that the accused either knew or was wilfully blind to the fact that the parcel contained heroin or a controlled substance of some kind: see R. v. Rai, 2011 BCCA 341, paras. 1, 17-20; R. v. Sandhu (1989), 50 C.C.C. (3d) 492 (Ont. C.A.), pp. 498-499; R. v. Duffy (1973), 11 C.C.C. (2d) 519 (Ont. C.A.), p. 520; R. v. Blondin (1970), 2 C.C.C. (2d) 118 (B.C.C.A.), pp. 131-132, affirmed in [1971] S.C.J. No. 42 (QL).
[21] The Crown may prove the mens reas of knowledge by establishing either actual knowledge or wilful blindness: R. v. Briscoe, 2010 SCC 13, para. 21. Wilful blindness is the mindset of an accused who subjectively suspects the existence of the prohibited consequences or circumstances, for example, in this case, suspecting that the parcel contained heroin or some other controlled substance, but who nevertheless decides not to inquire because they would prefer not to know the truth: see Sansregret v. The Queen, [1985] 1 S.C.R. 570, pp. 584- 586; Briscoe, paras. 21-24; R. v. Pilgrim, 2017 ONCA 309, para. 66; R. v. Farmer, 2014 ONCA 823, para. 26. Wilful blindness is often described as “equivalent to knowledge” and only available in situations when “it can almost be said that the defendant actually knew”: see Sansregret, at para. 22; R. v. Morrison, 2019 SCC 15, para. 98.
WEIGHING THE EVIDENCE
[22] The Crown relies on circumstantial evidence to satisfy its burden of proving that Zamora and Poku knew that that the parcel contained heroin. Where proof of the offence depends exclusively or mainly on circumstantial evidence, I may only find an accused guilty if an inference of guilt is the only reasonable inference available to me on the totality of the evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, para. 30.
[23] For me to find the accused guilty, the Crown’s case must negate other plausible theories and reasonable possibilities inconsistent with guilt that arise from the evidence or lack of evidence: Villaroman, paras. 30, 35-37. That said, the Crown is not required to negate “every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, [1972] S.C.R. 2, at p. 8; Villaroman, para. 37. Other plausible theories or reasonable possibilities “must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation”: Villaroman, para. 37. The Supreme Court cautioned that the trier of fact “should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible”: Villaroman, para. 42.
[24] The distinction between what constitutes a “plausible theory” and what amounts to impermissible “speculation” is not always clear: Villaroman, para. 38. Nevertheless, the “basic question” I must answer “is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty”: Villaroman, para. 38. Stated differently, “to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative”: Villaroman, para. 41. Ultimately, it is for the trier of fact to draw the line to separate reasonable doubt from speculation: Villaroman, para. 71.
Kijiji Messages
[28] Zamora provided the RCMP with printouts of messages that he exchanged with “Richard Domont” the morning of the pickup. The messages were exchanged through the private messaging function on Kijiji.com (“Kijiji messages”). The RCMP authenticated and timestamped the Kijiji messages: see Zamora.
[29] The Kijiji messages show that, as of at least February 28, 2018 at 11:02 p.m., Zamora had an active advertisement stating, “Delivery Driver Available.” On the day of the pickup, March 1, 2018 at 9:33 a.m., a Kijiji user asked Zamora if he was available to do a pick up for him “today or tomorrow.” The following exchange took place between Zamora and “Richard D.” on the day between 10:03 a.m. and 12:45 p.m.:
Zamora: Hey I got your email and I can do a pickup today, at some point this afternoon. Im going to need a pickup and drop off location for the delivery and if you have any questions call me at 905-392-6340.
“Richard D”: ok thanks, the pickup will be at 6500 silverdart dr. and the dropoff will be in toronto. i would also need your name. the warehouse will need it for ID. here is my number if you need to call me 4379225277 Richard D
Zamora: Ok Richard thanks. My name is Sebastian and will be there this afternoon
“Richard D.”: Hi Sebastian, i will attach to you some documents you may need and also a letter to authorize you for the pick up. i will also talk to Marie about a release paper, i think she mentioned something like that.
Zamora: Ok I’ll make sure i have it ready when i go for the pickup. Ill need details for the drop off location, just to let you know i charge per km, and based off where the pickup is you’re look at about $1.50 per km travelled
“Richard D.”: hello, i will need you email address to send you the release letter. i will also want to know your charge. Thanks! Richard
Zamora: My email address is sebzamora95@outlook.com and depending on the drop off location, a trip to toronto should cost about $25-$30 for the trip
“Domond: ok thanks, i will be sending you the release letter to your email that you provided to me.and also the address.
The Email Attachments
[30] Zamora also showed the RCMP three email attachments that he received from “DOMONDRICHARD@yahoo.com” following the exchange on Kijiji. One email attachment is a freight document that lists the consignee as “Richard Domond” and the contents as “Empty Bags.” The second email attachment is a “Release Notification Report” that lists the importer as “Richard Domond” and states that one 45-kilogram bag was released on February 27, 2018, to the warehouse.
[31] The third email attachment was a letter dated March 1, 2018 from “Julius Dela Cruz” of Livingston International, Inc. to the warehouse. The letter stated that Livingston was acting as agent for the consignee, “Richard Domond,” and directed the warehouse to: “Please release freight to their appointed carrier: Hold for pickup: Sebastian / Richard Domond.” Mr. Dela Cruz testified that “Domond” asked him to prepare this letter and gave him the name “Sebastian.”
Cell Phone Extraction Report
[34] The cell phone extract report shows the following:
February 5, 2018
- Madumelu made a note on his phone with the details for the consignee “Richard domond.” He also took a photograph of a piece of paper with extensive personal information for “Richard Domond.”
February 19, 2018
- Poku sent two text messages to Zamora that said:
Poku: Yo chuks wants to know if you are good for tomorrow or Wednesday
Poku: It could be tomorrow it could be Wednesday.
- Zamora did not reply to the February 19th messages.
February 21, 2018
- Poko and Madumelu exchanged the following text messages:
Poku: Did you call or text sebs yesterday
Madumelu: Ya but he never replied
Madumelu: Did his number change?
Poku: Ok he wasn’t sure if it was you
Poku: In will tell him now
Madumelu: Ok
Poku: He will reply soon.
Madumelu: Ok
February 28, 2018
- Poku sent Zamora the following text message:
Poku: Yo if send me the link for your delivery when u are done I couldn’t find and he want to start on it so it could be done tomorrow.
- About 90 minutes after receiving this message, Zamora visited the Kijiji website, and clicked on “My Ads”, “Post Your Ad,” and “Delivery Driver Available / Moving and Storage / Markham / York Region.”
- Zamora then sent a text message to Poku with a link to a Kijiji ad titled, “Delivery Driver Available.”
- A few minutes after receiving the link, Poku called Madumelu and sent him a link to Zamora’s Kijiji ad. Madumelu promptly texted Poku back and said, “Yo tell him I Will email him tonight.”
March 1, 2018
- Between 10:17 and 10:20 a.m., Poku and Madumelu exchanged the following text messages:
Madumelu: “Make him reply now now.”
Poku: “We dey for work sha he go reply soon lol”
- Between 10:28 a.m. and 12:39 p.m., Madumelu and Poku exchanged the following texts:
Madumelu: “Make him go washroom do am” Poku: “He reply back he said”
Madumelu: “When?”
Madumelu: “I don’t see anything”
Poku: “He said he sent it.”
Madumelu: “Do you know his last name?”
Poku: “Zamora”
Madumelu: “Ok”
Poku: “U got it”
Madumelu: “I didn’t get the email”
Madumelu: “He should make sure it’s to me, or even do it again. I need it asap.” Poku: “He did it you he showed me”
Madumelu: “Ok let me check”
Madumelu: “Ok, I see it, it went to spam”
Poku: “Kk”
Madumelu: “Ya”
Madumelu: “sent”
Poku: “K”
[35] The co-accused concede that the cell phone extractions are admissible as circumstantial evidence connecting the suspects to one another at specific points in time: R. v. Bridgman, 2017 ONCA 940, paras. 72-77. They also admit that their outgoing text messages and their activities while online are admissible against them as statements against interest: Bridgman, para. 10-11. Finally, incoming text messages are admissible for the truth of their contents if the recipient effectively adopted the statement by way of acknowledgement or reply: Bridgman, para. 69- 70, 79-88.
[36] The only outstanding issue is whether the Crown can rely on the communications between Madumelu and Poku for the truth of their contents in its case against Zamora. The parties agree that the Crown must satisfy the co- conspirators’ exception to the hearsay rule if it wishes to do so. I consider the exception below.
THE CO-CONSPIRATORS’ EXCEPTION TO THE HEARSAY RULE
[37] I must apply the three-stage Carter test to determine whether the cell phone extraction report entries engage the co-conspirators’ exception to the hearsay rule: R v. Carter, [1982] 1 SCR 938 at pp. 943-44. Carter governs the admissibility of co-conspirators’ acts or statements as evidence against the accused who is alleged to be a member of the conspiracy: R v. Chang, 2003 CanLII 29135 (Ont. C.A.), para. 59; R v. Dawkins, 2021 ONCA 113 (CanLII), paras. 35- 42. If the Carter test is satisfied, absent exceptional circumstances, the Crown does not have to go on to establish the necessity or reliability of the evidence: R. v. Young, 2021 ONCA 535, para. 36.
[38] In Chang, the Court of Appeal for Ontario set out the three steps as follows at para. 53:
- The trier of fact must first be satisfied beyond reasonable doubt that the alleged conspiracy in fact existed.
- If the alleged conspiracy is found to exist then the trier of fact must review all the evidence that is directly admissible against the accused and decide on a balance of probabilities whether or not [the accused] is a member of the conspiracy.
- If the trier of fact concludes on a balance of probabilities that the accused is a member of the conspiracy then [the trier] must go on and decide whether the Crown has established such membership beyond reasonable doubt. In this last step only, the trier of fact can apply the hearsay exception and consider evidence of acts and declarations of co-conspirators done in furtherance of the object of the conspiracy as evidence against the accused on the issue of his guilt.
[39] On the first stage of Carter analysis, the Crown has proven beyond a reasonable doubt that there was a conspiracy to import heroin in a concealed shipment from Pakistan, to ensure the parcel’s release from customs, and to transport it from the warehouse to the apartment to facilitate trafficking…
[40] On the second stage of the Carter analysis, the Crown says that it has proven, on a balance of probabilities, that Madumelu, Poku, and Zamora were members in the conspiracy. I agree. The circumstantial evidence convincingly establishes that Madumelu was the mastermind:…
[41] I also find, on a balance of probabilities, that Poku was a part of the conspiracy.…
[42] …I find that it is more likely than not that Zamora was a member of the conspiracy.
[44] As will be discussed in detail below, on the totality of the evidence, including the hearsay evidence, I find that the Crown has not established beyond a reasonable doubt that Zamora was a member of the conspiracy to import, possess, and traffic in heroin. While he was likely a member of the conspiracy, I have a lingering doubt about whether Zamora knew that there was a controlled substance in the parcel.
[45] Because the Crown’s theory of liability rests on Zamora being a “trusted insider” in relation to the suspects’ conspiracy to import, possess, and traffic heroin, my analysis under the third step of Carter resolves the ultimate issue as it relates to Zamora. Stated differently, if the Crown cannot prove that Zamora was a member of the conspiracy to import heroin based on all the evidence—including the hearsay evidence—it follows that the Crown will not be able to prove that Zamora’s had the requisite intention to import, possess, and traffic in a controlled substance. Therefore, to avoid duplication, I consider below whether the Crown has proven reasonable doubt that Zamora was a member of the conspiracy to import and traffic in heroin, and whether he is guilty of the offence charged.
HAS THE CROWN PROVEN THE CHARGES AGAINST ZAMORA?
[47] Given the amount and value of the heroin seized, the Crown says I can infer that Zamora was a trusted insider who would have known about the parcel’s contents. The Crown reasons that, without such knowledge, Madumelu would not have trusted Zamora to retrieve and transport such a valuable amount of heroin. Indeed, the Court of Appeal for Ontario has confirmed that these inferences “may be available from the objective improbability that such a valuable quantity of drugs would be entrusted to anyone who did not know the nature of the contents or the means of transport”: R. v. Burnett, 2018 ONCA 790, para. 64; R. v. Bains, 2015 ONCA 677, para. 157.
[48] The Crown says that the totality of the evidence unequivocally points to Zamora being a “trusted insider.” I agree that the circumstantial evidence supports reasonable inferences that, when taken together, establish a compelling case that Zamora knew what was inside the parcel. In particular, the evidence supports reasonable inferences that:
- Zamora knew Madumelu’s true identity and involvement in the scheme as early as February 19, 2018, when Poku texted him saying, “Yo chuks wants to know if you are good for tomorrow or Wednesday.”
- Zamora was directed by Madumelu—via Poku—to create a Kijiji ad that would facilitate private web-based communications, with Madumelu using the alias “Richard Domond.”.
- Zamora was directed by Madumelu—via Poku—to communicate with “Domond” in a tone and manner that would support their ruse of Zamora being an innocent delivery person.
- Zamora revealed his precise knowledge about the contents of the parcel when he told the undercover officer at the warehouse that there was “nothing fragile” inside.
- Zamora would have overheard Poku speaking with Madumelu immediately after they left the warehouse and while they were in the car together, and the conversation likely referred to the true contents of the parcel.
- Zamora would only have met with Madumelu at the restaurant after the delivery if he was a trusted insider who knew Madumelu’s true identity and whose role extended beyond that of an innocent delivery driver.
[49] Zamora admits that the “trusted insider” inference is available to me but argues that it is not the only reasonable inference arising on the totality of the evidence or absence of evidence. Zamora’s counsel says that the Crown’s theory is weak insofar as it invites me to speculate about what the suspects may have spoken about in the car and in the restaurant.
[50] Counsel says that another reasonable inference available to me on the evidence is that Zamora was an innocent delivery driver who was duped by Poku and Madumelu into picking up the parcel. Mr. Roth says that it was in Poku and Madumelu’s interests to keep Zamora in the dark about the contents of the parcel so that Zamora would agree to do the pickup, would not rouse suspicions while doing so, and would not be able to supply information to the authorities if he was apprehended at the warehouse: see R v. Allen, 2022 ONSC 5539, paras. 81-84.
[51] Zamora relies on the following evidence to support the alternative inference that he was an “innocent dupe”:
- Zamora never concealed his true identity from Poku or Madumelu.
- Zamora used his personal cell phone and email address to communicate with both Madumelu and Poku.
- Zamora only ever communicated directly with “Domond,” who responded to his Kijiji advertisement for delivery services, and with whom he engaged in a professional conversation about particulars and rates.
- Zamora was largely unknown to Madumelu, who only learned Zamora’s last name from Poku a few hours before the pickup and did not have Zamora’s contact information in his phone.
- The only freight documents in Zamora’s possession listed the consignee as “Domond” and the contents of the parcel as “empty bags” weighing 45 kilograms.
[52] The Crown says that the “innocent dupe” theory is speculative and ungrounded in the evidence. I disagree. The defence theory is grounded in the Kijiji messages and email attachments that Zamora provided to police, coupled with the absence of evidence directly linking Zamora and Madumelu. On their face, the Kijiji messages provide some evidence to support the “innocent dupe” theory. However, I agree with the Crown that the statements cannot be afforded much weight given their self-serving nature. They were provided by Zamora to police and proffered by him at trial. When read against the contemporaneous text messages between Poku and Zamora, I strongly suspect that Zamora used Kijiji as a means to communicate privately with Madumelu and to create exculpatory evidence as insurance in case he was apprehended.
[53] However, the Kijiji messages point to a larger issue with the Crown’s case. The Crown’s theory rests almost entirely on the “trusted agent” inference without establishing that Zamora was indeed directly connected to or trusted by the admitted mastermind, Madumelu. While there is some evidence linking Zamora and Madumelu, none of it is particularly strong. While Poku referred to “Chuks” in a text message to Zamora on February 19th, Zamora did not acknowledge or reply to the message. The Crown says that I should infer that Zamora saw the message. I refuse to do so. Poku’s text message referencing “Chuks” did not include a last name or phone number, is temporally disconnected from the pickup on March 1st, and was neither acknowledged nor adopted by Zamora.
[54] Indeed, the Crown has offered no circumstantial evidence supporting an inference that Zamora knew Madumelu’s true identity at any point during the conspiracy. Zamora never used Madumelu’s name in his outgoing text messages….
…While Zamora met with Madumelu at the restaurant, we do not know what identity Madumelu may have assumed during the meeting. In this context, the fact that Madumelu knew Zamora’s true identity tells us little about the extent of Zamora’s knowledge about Madumelu or what was in the parcel.
[55] Moreover, Poku’s involvement in attending at the warehouse and apartment makes more sense if Zamora were an innocent dupe than if he were a trusted insider. Poku never went inside the warehouse and did not help Zamora carry the parcel to the car. If Zamora were a trusted insider, why would Poku attend at the warehouse at all? What was his role? Why couldn’t Zamora be trusted to retrieve the parcel on his own? And, most importantly, why expose himself to risk of arrest? Poku’s actions and near constant communication with Madumelu make the most sense if his role had been to supervise the parcel’s safe delivery to its ultimate destination on the 19th floor of the apartment building precisely because Zamora did not know about its contents.
[57] In short, the circumstantial evidence against Zamora can reasonably support several alternative inferences about his potential state of mind. Zamora may well have been entirely oblivious to the scheme or an “innocent dupe.” Or he could have even suspected that the parcel contained contraband but not necessarily drugs. On either of these alternative inferences, Zamora lacks the mens rea required to be found guilty of importing a controlled substance or possessing a controlled substance for the purpose of trafficking….
…Based on the totality of the evidence, the Crown has not satisfied its burden of proof in relation to Zamora.
PROSECUTING AND DEFENDING SEXUAL OFFENCE CASES, 2ND ED.
