R. v. Aghani
Between Her Majesty the Queen, and
Sal Aghani
Sal Aghani
[2007] O.J. No. 5784
Ontario Superior Court of Justice
N.E. Garton J.
Heard: October 29, 2007.
Oral judgment: October 29, 2007.
N.E. Garton J.
Heard: October 29, 2007.
Oral judgment: October 29, 2007.
(173 paras.)
Reasons for Judgment
1 N.E. GARTON J. (orally):-- The accused, Sal Aghani, is charged with importing into Canada and with the possession of two genuine Canadian passports, contrary to the Immigration and Refugee Protection Act. The indictment reads as follows:
· Count 1: That Sal Aghani a.k.a. Mike Vortish, between November 1, 2002 and March 1, 2003, both dates inclusive, at or near the City of Bangkok, Thailand; at or near the City of Vancouver, Province of British Columbia; at or near the City of Toronto, Province of Ontario, and elsewhere in Ontario, unlawfully did, in order to contravene the Immigration and Refugee Protection Act, import into Canada, passports of Canadian origin, that purport to establish or that could be used to establish a person's identity, to wit: one blank Canadian passport number XXXXXXXX; and one genuine Canadian passport number XXXXXXXX purporting to identify Catherine Beykzadegan-Tabrizi (DOB: 1971-02-11), as a Canadian citizen, contrary to section 122(1)(c) of the Immigration and Refugee Protection Act;
· Count 2: And further that Sal Aghani a.k.a. Mike Vortish, between November 1, 2002 and March 1, 2003, both dates inclusive, at or near the City of Bangkok, Thailand; at or near the City of Vancouver, Province of British Columbia; at or near the City of Toronto, Province of Ontario, and elsewhere in Ontario, did possess a passport of Canadian origin, that could be used to establish a person's identity, to wit: one blank genuine Canadian passport number XXXXXXXX, contrary to section 122(1)(a) of the Immigration and Refugee Protection Act;
· Count 3: And further that Sal Aghani a.k.a. Mike Vortish, between November 1, 2002 and March 1, 2003, both dates inclusive, at or near the City of Bangkok, Thailand; at or near the City of Vancouver, Province of British Columbia; at or near the City of Toronto, Province of Ontario, and elsewhere in Ontario, did possess a passport of Canadian origin, that purports to establish a person's identity, to wit: one genuine Canadian passport number XXXXXXXX purporting to identify Catherine Beykzadegan-Tabrizi (DOB: 1971-02-11), as a Canadian citizen, contrary to section 122(1)(a) of the Immigration and Refugee Protection Act.
[Numbers replaced with X's by LexisNexis Canada.]
2 No witness actually saw Mr. Aghani in possession of the passports in Bangkok, saw him mailing the passports to Canada, or observed him instructing someone else to do the same. The case against the accused consists mainly of circumstantial evidence. The position of the Crown is that the evidence establishes the accused's guilt beyond a reasonable doubt.
3 The position of the defence is that the Crown has failed to meet its burden. The defence also submits that even if the Crown has established that Mr. Aghani was in possession of the passports and that he imported them into Canada, it has failed to establish beyond a reasonable doubt that he did these things "in order to contravene" the Immigration and Refugee Protection Act (the "Act") as required by s. 122(1) of the Act. Counsel for the accused points out that the Crown chose not to rely on the statutory presumption of guilty intent in s. 122(2) of the Act.
The Evidence
4 On January 21, 2003, Canada Customs and Revenue Agency ("C.C.R.A.") intercepted at the international mail centre in Vancouver a ten inch by fifteen inch brown manila envelope containing two Canadian passports. The passports had been mailed from Bangkok, Thailand on January 17, 2003.
5 One of the passports was blank. The other contained counterfeit biographical data of a "Catherine Beykzadegan Tabrizi." These two passports were among 246 blank Canadian passports stolen from the Scarborough Passport Office on June 24, 2002. In November 2002, 186 of the passports were recovered when an undercover police officer purchased them from two individuals for $900 each. Corporal Luc Bonin, the RCMP officer in charge of the case before the court, testified that more passports were later recovered at overseas airports from people attempting to represent themselves as Canadian citizens. At the time of this trial, forty-one of the passports were still missing. It is not alleged that Mr. Aghani was involved in the Scarborough theft.
6 The envelope containing the passports was addressed to the attention of "Mike Vortish", at "6021 Yonge St., Suite #886, Toronto, Ont., M2M 3W2, CANADA." This was the address of "Mail Boxes Etc.", a business owned and operated by Donald Wong and where Mr. Aghani rented Box #886, commencing in February 2002. The accused disputes that the rental agreement was still in effect in January 2003. The position of the defence is that Mr. Wong renewed the agreement without the accused's authorization or ignored his instructions to cancel it.
7 Both the sending and return address on the envelope were hand printed. The word "Bangkok" was misspelled as "Bankok", from which the Crown asks the court to infer that the sender was not a native of that city. The police investigation revealed that the purported sender, Nippo C&D Co., was a Japanese owned company in Thailand that supplies electronic parts. No one from this company was familiar with either the name "Mike Vortish" or the sending address. None of the employees recognized Mr. Aghani from a photographic lineup. They did not know the names "Sal Aghani", "Catherine Beykzadegan Tabrizi", or "Emerald Financing Services Inc.", which was the name of Mr. Aghani's business. The police were advised that Nippo C&D sends all its packages via Federal Express and does not use the regular mail service.
8 An investigation of the name "Mike Vortish" led the police to one Michael Vortish, who had no knowledge of any of the names or items connected to the offences with which Mr. Aghani is charged.
Mr. Aghani's trip to Bangkok
9 Mr. Aghani was in Bangkok in December 2002 and January 2003. He left Bangkok to return to Canada on the same day that the passports were mailed to Canada, that is, on January 17, 2003. Details of his trip to Malaysia and Thailand are as follows.
10 On December 12, 2002, Mr. Aghani purchased a one-way plane ticket from Toronto to Kuala Lumpur, Malaysia, via Frankfurt. He left Toronto on December 23, 2002, and arrived in Frankfurt on December 24, 2002. On December 24th, he flew from Frankfurt to Kuala Lumpur, arriving there on the morning of December 25th. On December 26th, he traveled to Bangkok. On December 31st, he returned to Kuala Lumpur, but went back to Bangkok on January 1, 2003.
11 On January 6, 2003, Mr. Aghani, using the services of a Bangkok travel agent, purchased a plane ticket on China Airlines from Bangkok to Vancouver via Tai Pei. He left Bangkok at 5:55 p.m. on January 17, 2003, stayed overnight in Tai Pei, and arrived in Vancouver on the morning of January 18, 2003.
The interception of the envelope, its contents and the fingerprint evidence
12 The envelope initially came to the attention of C.C.R.A. personnel in Vancouver when an x-ray revealed inconsistencies in the thickness of its contents. The envelope and contents were couriered by Fed-Ex to the RCMP detachment in Bowmanville, where Officer Bonin received them on January 24, 2003. He documented and photographed the way in which the passports had been packaged within the envelope. Cpl. Graeme Shaw later tested the envelope and all of its contents for fingerprints.
13 Officer Shaw identified Mr. Aghani's fingerprints on both the blank passport and on a magazine sent in the same package. No fingerprints were found on the envelope itself. The following is a list of items contained in the envelope:
Canadian Passport XX XXXXXX [Exhibit 7131, (the "Tabrizi passport")
· This passport contained counterfeit biographical data on page 2. It purports to be the passport of one Catherine Beykzadegan Tabrizi, date of birth February 11, 1971, with a date of issue of March 17, 2001, and an expiry date of March 17, 2006. According to Yves Quevillon, who testified as an expert witness in document examination, this counterfeit information was printed using the kind of toner found in a copier or laser printer, as opposed to the printing method employed by the Passport Office. The data was laminated onto the page using the laminate sewn into all passports during the manufacturing process. There is no photograph in the photo slot. The laminate in that area has been cut out, leaving what appears to be the backing of a photograph. There is no signature on the third page.
· The police investigated the name "Catherine Beykzadegan Tabrizi" on all police databases, including immigration computer files, with negative results, and were unable to confirm whether this individual was a real person.
· A Malaysian entry stamp, dated December 25, 2002, appears on page 9 of the passport and states: "Malaysian Immigration KL International Social/Business Visit Pass Stamp", which permits a visitor to remain in Malaysia for up to three months. It was the opinion of Brian O'Connell, who testified as an expert with respect to methods used to alter passports, that this stamp was counterfeit. Malaysian immigration records revealed no record of anyone with that name and date of birth using Canadian passport number XX XXXXXX to enter or exit Malaysia between December 25, 2002, and January 1, 2003. However, records do indicate that the accused used his passport to enter and exit Malaysia during that same period. Mr. Aghani's passport contains a genuine Malaysian stamp with the same date, number and officer number as the counterfeit stamp that appears in the Tabrizi passport.
· In correspondence with CIBC Visa in November 2002, and prior to leaving for Bangkok, Mr. Aghani requested that "Catherine Beykzadegan Tabrizi", with a date of birth of February 11, 1971, and whom he described as "my wife", be added to his Visa account as an authorized user.
· No fingerprints were found on the Tabrizi passport, which was concealed in white computer paper and opened at pages 12 and 13, presumably with the intention of making the envelope lie flatter. A partial palm print was located on the computer paper, but it was not attributed to Mr. Aghani.
Blank Genuine Canadian Passport XX XXXXXX [Exhibit 8B], (the "blank passport")
· This passport was intact and in good condition. Cpl. Shaw located the accused's left thumbprint on page 2, where the biographical data of a Canadian citizen would normally appear. Cpl. Shaw also lifted a partial fingerprint from page 3 of the passport, but testified that it lacked sufficient detail or clarity for identification purposes.
· The blank passport, like the Tabrizi passport, was opened and lying flat at pages 12 and 13. It was concealed inside a yellow computer mouse advertisement, which was folded and wrapped around it. No fingerprints were found on this advertisement.
Live Well Magazine, January/February 2003 Issue, in English and a foreign language
· Five fingerprints were found on the back cover of this magazine. Two were identified as Mr. Aghani's right thumbprint and two were identified as his left thumbprint. The fifth fingerprint was not identified.
Toyota Corolla Brochure
· Both of the stolen passports, wrapped in their respective coverings, had been inserted inside this brochure. No fingerprints were found on the brochure.
Contiki Holidays Brochure for Europe, issue 2002/03, in English
· Cpl. Shaw located eight fingerprints and one palm print on the back cover of this brochure. None of the fingerprints was attributed to Mr. Aghani. With respect to the palm print, Cpl. Shaw testified that he compared it to Mr. Aghani's palm print but was unable to identify it as belonging to him. Cpl. Shaw explained that palm prints are difficult to compare. Unlike fingerprints, there is no Canadian database for palm prints. When asked about his inability to identify the palm print as that of Mr. Aghani, Cpl. Shaw testified:
· Yes. It's a stretch to say that. With palm prints, I have seen it before where another fingerprint expert who might be versed or better trained in palm prints or have a keener eye for how palm prints are laid out, I have seen, not in a file of mine. I'm aware of case studies where another expert has picked up a palm print and looked at it and where one expert was looking in the certain area of the palm that expert there would say, no, no, you see it's from the other area of the palm. Then looking at it, we are able to identify it to that area. ... The hardest part is finding that starting point. If you want similar clarity between them, then you work from that, so it's a stretch for me to say that it's definitely not someone's, but I could say that I was unable to identify it to that person.
Red and white Thai Pioneer Brochure
· A red and white brochure from Thai Pioneer for various electronic products was also in the manila envelope. No fingerprints were found on it.
[Numbers replaced with X's by LexisNexis Canada.]
The execution of the search warrant at 6021 Yonge Street in Toronto on February 13, 2003
14 Cpl. Bonin and his partner, P.C. Rola Kobrosli, executed a search warrant at Mail Boxes Etc. at 6021 Yonge Street on February 13, 2003. The franchisee of this business, Mr. Wong, provided the officers with a number of documents concerning Box #886, including the Service Agreement signed by Sal Aghani on February 12, 2002. This was the first time that Cpl. Bonin heard the accused's name in connection with this investigation.
15 The Service Agreement for "Suite #886", as it is referred to in the contract, gave Mr. Aghani use of the box for six months, or until August 12, 2002. The cost of the rental was $97.74, including a $10 key service fee. Mr. Aghani listed in the Agreement the other authorized users of the box as Emerald Financial Services, Saeed Joshaghani and Effat Najarzadeh. There is no issue in this case that Sal Aghani and Saeed Joshaghani are the same person and that Effat Najarzadeh was Mr. Aghani's wife. Mr. Aghani wrote out his address -- 50 Water Wheel Way Dr. -- on the agreement, as well as his telephone number, which was the same for both home and business.
16 The size of Box #886, as indicated on the Service Agreement, is "small". Its dimensions, as measured by Cpl. Bonin on April 11, 2005, are 3 inches wide, 5 inches high and 12 inches deep. Cpl. Bonin noted that the envelope containing the passports would have to be folded in order to fit into the box. The envelope, which had been stamped "Letter" -- presumably by the postal service -- was sent through regular letter mail delivery according to the postage, and did not require handling by special parcel service or registered mail.
17 Mr. Wong testified that his practice in terms of dealing with large envelopes was simply to fold them and place them in the box: "If the mailbox number match, then I will put the stuff into the mailbox. If it is too big, if this is an irregular size envelope, then I will fold it and then put in into the mailbox."
18 Pursuant to the search warrant, Mr. Wong also provided Cpl. Bonin with the Parcel Receiving Agreement for "Suite #886", which was signed by Mr. Aghani on February 12, 2002. This agreement permitted Mr. Wong to sign for and receive registered mail and parcels on his behalf. Mr. Wong testified that he would put registered mail or parcels in a customer's box if they would fit. Otherwise, he would keep such items in the mailroom until the customer picked them up. A notice would be placed on the customer's mailbox with instructions to retrieve the item at the counter. The same procedure was followed with respect to regular mail that didn't fit into a mailbox. Items were held in the mailroom for up to two months.
19 Cpl. Bonin copied into his notebook the notice alerting customers as to the procedure to be followed when registered mail, parcels, or envelopes that would not fit into their box were received. This notice read:
· Dear Boxholders:
· When you come to pick up your parcel or registered mail, please bring back the notice that you have a parcel or registered mail or big envelope which does not fit in your box and is being held for you. Please bring the notice to the counter for collection.
20 Mr. Wong testified that sometimes customers would call to advise him that they were expecting a parcel that might not fit into their mailbox. He did not recall whether he ever received a parcel on behalf of Mr. Aghani that was too big for Box #886. He did recall Mr. Aghani calling him, although not often, to inquire about items in his mailbox.
21 Mr. Wong could not recall if Mr. Aghani called in January or February of 2003 to ask whether he had received a parcel. Mr. Wong did not recall anyone during that period inquiring on Mr. Aghani's behalf about mail for Box #886.
22 It was the position of the defence that the envelope containing the passports would not have fit into Box #886. As a result, Mr. Wong would have had to take it to the mailroom, where it would remain until someone attended at the counter with the appropriate notice to pick it up. Counsel for Mr. Aghani submitted that this circumstance suggests that Mr. Aghani was not the individual who mailed the envelope. It would not make sense for him to package the passports in such a way that Mr. Wong's attention would be drawn to the parcel, and where he would be more likely to notice that it was addressed to someone not listed as an authorized user on Mr. Aghani's Service Agreement.
23 The difficulty with this submission is that it is clear from the evidence of both Cpl. Bonin and Mr. Wong that the envelope containing the passports would have easily fit into Box #886. Cpl. Bonin testified that it was just a matter of bending or folding it. Mr. Wong testified that his practice with large or irregular sized envelopes was, in fact, to fold them so that they could be placed into a mailbox. The envelope and its contents were made exhibits at this trial. On examination of them, there is no reason to conclude that the package could not be placed into a mailbox of the size described by Cpl. Bonin by simply rolling or folding it.
24 Other documents provided by Mr. Wong to Cpl. Bonin pursuant to the search warrant included photocopies of the identification Mr. Aghani presented to Mr. Wong on February 12, 2003. These included a Canadian Citizenship Card and an Ontario Driver's licence, both in the name of Sal Aghani.
25 Mr. Wong testified that Mr. Aghani renewed the rental agreement for a further three-month term, or until November 12, 2002, on September 3, 2002. Mr. Wong provided Cpl. Bonin with an unsigned Visa payment slip issued by Mail Boxes Etc. on that date for $62.06. The defence does not dispute that Mr. Aghani authorized this renewal and that he provided Mr. Wong with his Visa number over the telephone on this occasion.
26 In addition to maintaining a paper file of his agreements with customers, Mr. Wong also keyed certain information into a computer. Cpl. Bonin recorded in his notebook the information from the computer with respect to Box #886. The computer file confirmed that Mr. Aghani signed the original contract on February 12, 2002. It also indicated that there was a current contract running from November 12, 2002, to May 12, 2003. Payment was noted as being up to date. Mr. Wong testified that either he or his wife would have entered this data into the computer.
27 Mr. Wong provided the police with a copy of the renewal notice that he routinely left in customers' mailboxes about two weeks prior to the expiry of their contracts. The notice requests payment of one of three rates offered in order to continue mail service. The rental fees are listed as $62.06 for a three-month term, $87.74 for a six-month term, and $141.24 for a year long contract. Mr. Wong testified that the minimum rental period is three months, and that he never rented a mailbox for just one month. When questioned as to the rate of $13.67 per month that appears in the computer file, Mr. Wong explained that that figure was automatically generated by the franchisor's software and indicated the size of the mailbox being rented. Mr. Wong would then enter the number of months of the contract.
28 Mr. Wong testified that when Mr. Aghani's contract expired on November 12, 2002, he would not have permitted him to renew it for only one month and would have insisted on at least a three-month term.
29 The records from CIBC Visa indicate that on November 19, 2002, the fee for a six-month rental -- $87.74 -- was charged to Mr. Aghani's account by Mail Boxes Etc. Mr. Wong had no recollection of Mr. Aghani ever requesting him to cancel this contract. The Visa records indicate that at the expiry of this contract, Mr. Aghani paid for another six-month term, commencing on May 12, 2003, with an expiration date of November 12, 2003.
30 As stated earlier, it was the position of the defence that Mr. Aghani never authorized the renewal of the Service Agreement on November 12, 2002, and that even if he had, he cancelled it prior to his trip to Bangkok. The renewal of the agreement in November 2002 would have resulted in Mr. Aghani having had use of Box #886 throughout the month of January 2003, when the stolen passports were mailed to that address from Bangkok.
31 According to Mr. Wong, Mr. Aghani rented Box #886 for a total of twenty-one months -- from February 12, 2002, to November 12, 2003. Mr. Wong testified that the agreement was eventually cancelled on December 9, 2003, when Mr. Aghani failed to respond to a renewal notice. Mr. Wong mailed the notice to the address provided by Mr. Aghani on the service agreement, but it was returned. Mr. Wong also tried, without success, to reach the accused by telephone by calling the number on the agreement. Mr. Wong testified that both the number and address were wrong. Consequently, Mr. Wong removed all the mail in Box #886, returned it to the senders, changed the lock on the box and cancelled the agreement.
32 On September 13, 2004, Cpl. Bonin returned to Mail Boxes Etc., at which time Mr. Wong provided him with a handwritten ledger for Box #886. Mr. Wong referred to this ledger during the course of his testimony in order to refresh his memory.
33 The ledger consists of three lines. The first two list the authorized users of Box #886: Sal Aghani, Effat Najarzadeh, Emerald Financial Services, and Omni Present. Mr. Wong testified that these names were written by his wife. He identified her handwriting on the ledger. The third line, which was filled out by Mr. Wong, states: "Cancelled 09/Dec./03. Due Nov. 12/03; Tel./Address are wrong." In noting the cancellation of the contract, Mr. Wong put X's through the names of the authorized users.
34 On February 13, 2003, Mr. Wong, before turning over the Mailbox Service Agreement and the Parcel Receiving Agreement for Box #886 to Cpl. Bonin, photocopied these documents for his own records. On September 13, 2004, after giving the officer the ledger sheet, Mr. Wong stamped his photocopies of the agreements on the right hand corner with the words: "CANCELLED DEC 09 2003." Mr. Wong produced his stamped copies of the agreements during his testimony.
35 Mr. Wong was vigorously cross-examined as to the date of cancellation of the contract. It was suggested to him that he had made a mistake and that the contract was actually cancelled on December 9, 2002. Mr. Wong denied that he made such an error. He testified that he did not write down the date incorrectly and that it was not possible that he had made such a mistake. He testified that if, at any time, Mr. Aghani had called and asked him to cancel the agreement, he would have obliged him and cancelled it, but he would not have issued a refund. He testified that he never received a telephone call from Mr. Aghani asking him to return his mail to the senders.
36 Mr. Wong's position that the November 2002 renewal of the rental agreement was in force until May 2003, is supported by the information contained in the computer file as of February 13, 2003, when the police attended at his store with the search warrant. As noted above, that file indicated that the contract was not due to expire until May 12, 2003. In addition, a third renewal of the agreement, running from May 12, 2003, to November 12, 2003, was charged to Mr. Aghani's CIBC Visa account. There is no evidence that Mr. Aghani ever disputed this charge. Mr. Wong testified that this third renewal would have been keyed into the computer. However, after the cancellation of the contract on December 9, 2003, and the rental of Box #886 to another customer, this information would have been over written. Mr. Wong testified that he currently does not have access to such information in any event because he no longer owns the business.
37 Mr. Wong was unable to produce the merchant copy of the Visa slips and the receipts for the second and third renewals, as well as for the original agreement. He testified that he normally retained these for six months in case a payment was disputed by a customer.
38 Mr. Wong denied that he ever renewed the Service Agreement without Mr. Aghani's authorization. Mr. Wong's evidence regarding the renewals was supported by Mr. Aghani's Visa statements, which were introduced through the testimony of Sophia Rodopoulos, a CIBC credit card investigator. Those statements indicate that at the time of each renewal, the credit card used to pay for the previous rental period had been cancelled and its usage blocked by Visa. Each renewal was accordingly billed to a different credit card number. Mr. Wong could therefore not have billed Mr. Aghani for any of the renewals without Mr. Aghani having provided to him his most current credit card information, unless Mr. Wong somehow gained access to that information in some other way. There is no evidence to suggest that Mr. Wong would have had access to Mr. Aghani's credit card numbers other than through Mr. Aghani himself. There is no evidence of any special relationship between the two men. Mr. Aghani was simply one of Mr. Wong's 380 customers.
The February 12, 2002 Service Agreement for Box #886 and the renewal periods according to CIBC Visa records
39 Mr. Aghani's rental of Box #886, according to the charges on his Visa statements, was as follows:
February 12, 2002 to August 12, 2002, (6 months): $97.74 billed to Visa account XXXX XXXX XXXX XXXX, in the name of Saeed Joshaghani, 50 Waterwheel Way Dr., Willowdale;
August 12, 2002, to November 12, 2002, (3 months): $62.06 billed on September 3, 2002, to Visa account XXXX XXXX XXXX XXXX in the name Saeed Joshaghani, 402-76 Aikman Avenue, Hamilton;
November 12, 2002 to May 12, 2003, (6 months): $87.74 billed on November 19, 2002 to Visa account XXXX XXXX XXXX XXXX in the name Saeed Joshaghani, 402-76 Aikman Avenue, Hamilton. This was the renewal referred to in the computer file copied by Cpl. Bonin into his notebook on February 13, 2003;
May 12, 2003 to November 12, 2003, (6 months): $87.74 billed on May 20, 2003 to Visa account XXXX XXXX XXXX XXXX in the name Saeed Joshaghani, 311-1245 Jefferson Avenue, Winnipeg.
[Numbers replaced with X's by LexisNexis Canada.]
40 Ms. Rodopoulos testified that cardholders have 30 days from the date that a statement is received to report any items that are not theirs or that they dispute. There is no evidence that Mr. Aghani disputed any of the charges to his credit card from Mail Boxes Etc. CIBC Visa has no record of any such dispute. Mr. Wong testified that neither Mr. Aghani nor anyone from CIBC Visa ever called to complain about any of the charges.
41 Mr. Aghani's Visa records indicate that he was well aware that he could dispute items charged to him. For example, he disputed a transaction that occurred at a Sony store in Bangkok on January 15, 2003, stating that his credit card had been stolen. This transaction appeared as a credit on his next Visa statement. When Mr. Aghani called CIBC Visa in January 2003 to report the theft, he told the representative that he had been using the name of both the primary cardholder, Saeed Joshaghani, as well as the name of the authorized user, Sal Aghani.
42 As already noted, on November 22, 2002, Mr. Aghani faxed an "urgent" request to CIBC Visa to add Catherine Beykzadegan Tabrizi (D.O.B. 02/11/1971), whom he referred to as his wife, to his Visa account as an authorized user. This is the same name and date of birth that appear on the Tabrizi passport mailed from Bangkok to Box #886 at Mail Boxes Etc. in January 2003. Mr. Aghani's request to add Ms. Tabrizi to his account was signed by him using the name Saeed Joshaghani. The request was also purportedly signed by Ms. Tabrizi. Visa records indicate that the new card was delivered to Mr. Aghani's Hamilton address the same day because the cardholder was leaving the country.
43 On December 19, 2002, Mr. Aghani advised CIBC Visa that he would be travelling out of Canada, but that he was not certain of his return date.
44 On February 13, 2003, after Mr. Aghani had returned to Canada, he requested CIBC Visa to remove Ms. Tabrizi from his account.
Mr. Aghani's name changes
45 Mr. Aghani has changed his name legally three times since his arrival in Canada in 1983 as "Saeed Joshaghani." He was granted Landed Immigrant Status on September 12, 1986, and became a Canadian citizen on March 30, 1995. On February 8, 2001, he changed his name to Sal Aghani, and applied for and received a Canadian citizenship card in that name. On May 27, 2002, he changed his name to Joshua Zachery and obtained a Manitoba driver's licence under that name the following month. On August 22, 2003, Mr. Aghani changed his name to Mehran Amini.
46 Cpl. Bonin was unaware of the accused's whereabouts until July 2003, when another RCMP officer, Cpl. Joseph Huot, informed him that Mr. Aghani was living in Winnipeg. Cpl. Bonin arrested Mr. Aghani for the present offences in Winnipeg on September 30, 2003. At the time of his arrest, Mr. Aghani was in possession of a Social Insurance card in the name of Saeed Joshaghani, a Canadian citizenship card in the name of Sal Aghani, and a Manitoba driver's licence in the name of Mehran Amini. He was also in possession of credit cards in all four of his names.
47 On March 5, 2004, by which time Mr. Aghani had changed his name from Joshua Zachery to Mehran Amini, he contacted CIBC Visa using the name Saeed Joshaghani, requested that the name Joshua Zachery be added to his account, and asked that the card be sent on a rush basis to his Winnipeg address. The request bears the signatures of both "S. Joshaghani" and "J. Zachery".
Mr. Aghani's addresses
48 Pursuant to the agreed statement of facts and according to Mr. Aghani's CIBC Visa statements, Mr. Aghani lived at the following addresses:
January to May, 2002: 50 Water Wheelway Drive, Toronto, Ontario, which is the address indicated by Mr. Aghani on the February 2002 Service Agreement;
May 1, 2002 to February 6, 2003: 76 Aikman Avenue, Apt. 401, Hamilton, Ontario;
March 2003 to July 2003: 1245 Jefferson Avenue, Unit 311, Winnipeg, Manitoba.
Evidence of Susan Minos
49 Susan Munoz testified that during the period from January 2002 to April 2003, she was living with her companion, Les Milton, in an apartment at 76 Aikman Avenue in Hamilton. She first met Mr. Aghani when he moved into the apartment next door in April 2002. Ms. Munoz knew Mr. Aghani as "Sal."
50 Ms. Munoz testified that her first conversation with Mr. Aghani occurred when he knocked on her door some time in October 2002 and asked her if she would accept a Fed-Ex package on his behalf. She agreed and he later returned to her apartment to retrieve the parcel.
51 Some time later, Mr. Aghani asked Ms. Munoz if she wanted to make some money. Thereafter, from mid October and into November of 2002, Ms Munoz assisted Mr. Aghani in delivering vehicles -- usually SUVs or trucks -- from Hamilton to Toronto. Mr. Aghani would drive the new vehicle to CN Rail, with Ms. Munoz following in Mr. Aghani's vehicle. After Mr. Aghani completed some paperwork, the two of them would then return to Hamilton in Mr. Aghani's car. Ms. Munoz testified that she made anywhere from nine to twelve such trips and was paid $20 to $30 per trip. On one occasion, when they delivered four vehicles on the same day and during a snowstorm, she was paid $140.
52 Ms. Munoz testified that Mr. Aghani gave her his cellular telephone number, which she provided to police when she called the R.C.M.P. on March 31, 2003, regarding some of Mr. Aghani's activities. She was unaware when she contacted the police that Mr. Aghani was already the subject of an investigation regarding the two stolen passports.
53 Ms. Munoz recalled using Mr. Aghani's cell phone to call home to speak to Mr. Milton during the trip back to Hamilton in the snowstorm. Mr. Aghani's cell phone records indicate that calls were made from his phone to Ms. Munoz's telephone on thirteen occasions between November 5 and December 2, 2002.
54 In November 2002, Mr. Aghani again asked Ms. Munoz if she wanted to make some money. When she indicated "Yes", he told her that he wanted to send her to Bangkok. He stated that he would pay her airfare, plus an additional $160. She was to deliver some papers to an agent, who would then give her some papers to take back to Hamilton. This trip was to take place "as quickly as possible" and before Christmas.
55 Ms. Munoz told Mr. Aghani that she would not go to Bangkok for any amount of money, and that her passport had expired in any event. Ms. Munoz's passport, filed as an exhibit at this trial, indicates an expiry date of February 18, 1991. Mr. Aghani stated that it would take too long for her to obtain a new passport and that he would therefore make the trip himself.
56 It was Ms. Munoz's recollection that Mr. Aghani left for Bangkok on December 19, 2002. He gave her the keys to his apartment, asked her to look after it while he was gone, and told her that if he was "put in jail or murdered", she could have everything in his place. Ms. Munoz testified that it was her understanding that Mr. Aghani would be returning to Canada on January 10, 2003. However, he called her at some point while he was in Bangkok and told her that he would not be coming home on that date. He did not give a reason for the delay.
57 Ms. Munoz thought that Mr. Aghani returned to Hamilton around January 28, 2003, at which point she returned his keys to him. He did not discuss with her anything about Bangkok, other than to say that it was "a horrible place."
58 Ms. Munoz recalled that Mr. Aghani moved out of his apartment in March or April of 2003. A couple of weeks later, he called her, advised that he was in Kelowna, British Columbia, and that he had married "Sabrina", a woman from California. Ms. Munoz testified that Mr. Aghani had mentioned Sabrina to her in 2002 during their return trips to Hamilton. He had also spoken of "Christina", a woman working for a German company and living in Tehran, and whom Mr. Aghani told Ms. Munoz that he loved.
59 Ms. Munoz testified that on one of their return trips to Hamilton in late October 2002, Mr. Aghani asked her to speak to a woman -- "Christina" -- on his cell phone. Ms. Munoz said hello to the person on the other end.
60 On September 30, 2003, Ms. Munoz provided a videotaped statement to Corporal James Bennett at the RCMP detachment in Hamilton. She agreed in cross-examination that she told Cpl. Bennett that she had spoken to "Christina" three times on the telephone.
61 Ms. Munoz testified that when Mr. Aghani returned from Bangkok in January 2003, he advised her that things had not worked out with "Christina" and that he had not married her.
62 Ms. Munoz testified that some time in late October or November of 2002, Mr. Aghani came to her apartment and showed her two different passport-sized photographs of "Christina". Ms. Munoz was uncertain as to whether they were genuine passport photos. It appeared to her that they could have been "fake", not the "real McCoy" or generated from a computer. There was no stamp or line for a commissioner's signature on the back. The photographs were on a single piece of paper that was about two inches by three inches in size. In cross-examination, Ms. Munoz stated that Mr. Aghani asked her whether she thought the photographs could be used as passport photos and which one would be best suited for that purpose.
63 Ms. Munoz agreed that the notes on her "tip sheet" from March 31, 2003, make no reference to passport photographs and that the first time she mentioned them was during her discussions with Corporal Bennett on September 30, 2003.
64 In cross-examination, Ms. Munoz agreed that she may have been mistaken about the name "Christina" -- that Mr. Aghani may have, and in fact "probably" told her that the woman's name was "Catherine."
65 Ms. Munoz testified that in November 2002, Mr. Aghani had a number of conversations with her about passports. On one such occasion, he asked her if she knew anyone who could get a blank passport. When she replied, "No", he asked to see her expired passport, which she produced for him. Ms. Munoz testified that Mr. Aghani asked her for a hairdryer, and then, using the hairdryer, tried for about a minute, without success, to remove the laminate on the passport. When asked whether he tried to remove it with his fingers, Ms. Munoz stated, "Oh no. I wasn't going to have him destroy my passport, and I was pretty sure the laminate wouldn't come off, or everybody would be having fake passports."
66 Ms. Munoz testified that a few days, or possibly a couple of weeks later, Mr. Aghani came to her apartment and showed her a blank passport, which she described as being the same size as her own. The word "Canada" was on the front cover. It contained no photograph or biographical data. Initially, Ms. Munoz recalled that the Maple Leafs on the pages appeared to be different from the ones in her passport, but, on reflection, was unsure of this. She testified: "I thought they were [bigger than normal] because I hadn't seen a new passport that are small. I only have seen the large ones like my own and that could have been a very big mistake saying that the Maple Leafs were different. There might not even have been Maple leafs on them."
67 Ms. Munoz did not believe that Mr. Milton was home when Mr. Aghani asked her if she knew anyone who could obtain a blank passport. Nor was Mr. Milton home when Mr. Aghani tried to remove the laminate from Ms. Munoz's passport using the hairdryer.
68 Ms. Munoz testified that Mr. Milton may have been present when Mr. Aghani showed her the blank passport. She was confident that Mr. Milton saw it at some point -- if not that day, the next day or a few days later. It was her recollection that he viewed it the next day when Mr. Aghani came to their apartment and showed it to him. At the preliminary hearing in September 2004, when asked if Mr. Milton was present at the time that Mr. Aghani showed her the blank passport, Ms. Munoz stated, "I believe yes. Yeah, he was." At trial, she maintained that "we both saw it, but I'm not sure that we saw it the same day."
69 Ms. Munoz testified that Mr. Aghani showed her his own passport prior to his departure for Bangkok to confirm to her that he was a Canadian citizen. It was put to Ms. Munoz in cross-examination that this was, in fact, the only passport that Mr. Aghani ever showed her. Ms. Munoz denied that this was the case. She insisted that Mr. Aghani had shown her a blank passport. She agreed that when she called the police "tip line" in March 2003, she referred to it as a "fake" as opposed to a "blank" passport. She told police at that time that Mr. Aghani had asked her if she knew anyone who could obtain "fake" passports. She also told them that just before he left for Bangkok, he had shown her a "fake" passport, in which the Maple Leafs in the background appeared to be bigger than the ones on her own passport. Ms. Munoz explained that in her mind, "blank" and "fake" were one and the same thing. She explained: "The reason I thought it was fake was because you just don't go outside and a few days later come back with a blank passport, blank Canadian passport."
70 Defence counsel cross-examined Ms. Munoz with respect to a statement purportedly made by her on March 26, 2004, when Crown Counsel, Ms. Olesko, interviewed her at the RCMP detachment in Hamilton. Police Constable Eric Desrosiers, who had been instructed by Ms. Olesko to write down any new information that came to light during the interview, made the following entry in his notebook:
· "Sal Aghani asked Susan if she would know someone who could get a Canadian passport for him. Susan sent a friend just to find out what he wanted exactly. The 'friend' went to see Aghani and reported to Susan that Aghani was looking for a blank Canadian passport. Later date, Aghani went to Susan and said 'Guess what? Your friend can't get me a passport but I got one.' That's when he showed her the blank passport."
71 Ms. Munoz denied making such a statement. She testified that what she told Ms. Olesko was that she would have liked to have sent someone over to Mr. Aghani's apartment to investigate because she was curious, or, as she put it, nosy. However, she didn't know anyone whom she could send and certainly did not know anyone who sold passports. She noted that on the back of her "tipster sheet", where she had made some notes for her own information, she had written, "send friend over to be nosy", and stated "but that was just -- that's what I wanted to do, but I didn't do it." According to Ms. Munoz, P.C. Desrosiers did not accurately record what she told Ms. Olesko.
72 Having considered this aspect of Ms. Munoz's testimony, as well as Officer Desrosiers' evidence regarding the circumstances of his notetaking on the day in question, I accept the evidence of Ms. Munoz and find that Officer Desrosiers' notes are not an accurate reflection of what Ms. Munoz told Ms. Olesko. Ms. Munoz was never shown the statement as recorded in the officer's notebook. The statement was never read back to her. Although the interview lasted an hour, Officer Desrosiers' recording of it consists of only four pages. He explained that he only recorded an answer given by Ms. Munoz when instructed to do so by Ms. Olesko. Officer Desrosiers knew very little about the investigation -- he was filling in for Cpl. Bonin at the time. Although he tried to be as accurate as possible, he had some difficulty keeping up with what was being said. His notes are written in the third person. Officer Desrosiers stated that he wrote a synopsis of, or paraphrased Ms. Munoz's answers. Although he tried "to use as many words as possible or keep the meaning of what was said," his notes are not verbatim.
73 I accept Ms. Munoz's testimony that she never sent a friend over to Mr. Aghani's apartment, but that she certainly thought about doing so, as she was curious to know what he was up to after he had asked her if she knew anyone who could obtain a blank passport.
74 Towards the end of her cross-examination, Ms. Munoz stated that she could not recall if Mr. Aghani showed her his passport on the same day that she showed him hers.
75 Ms. Munoz agreed that she did not spend a lot of social time with Mr. Aghani. She was only in his apartment on two or three occasions, including one time when Mr. Aghani was in Bangkok and the landlord requested permission to enter the apartment. Ms. Munoz agreed with defence counsel's suggestion that while in his apartment, she observed an open briefcase containing several credit cards and various pieces of identification, including social insurance cards, in different names -- mainly female Arabic names. This caused her to suspect that Mr. Aghani "was after women to get their money", or possibly "in a type of marrying business".
76 The position of the defence was that it was Ms. Munoz's suspicions in this regard, and the fact that she came to believe that Mr. Aghani was a terrorist, that caused her to contact the police in March 2003. The defence submits that her decision to notify the authorities had nothing to do with Mr. Aghani having asked her for a blank passport, having shown her a blank passport or his trying to remove the laminate from her own passport. It was the position of the defence that these things never happened and that the only passport Mr. Aghani ever produced for Ms. Munoz was his own.
77 Ms. Munoz denied that she believed Mr. Aghani was a terrorist. She agreed that some time in November 2002, she had watched a program on television about terrorists meeting in Bangkok the following month -- the same month that Mr. Aghani travelled to Bangkok. Ms. Munoz testified that at the time that she contacted the police in March 2003, she regarded Mr. Aghani's activities -- his delivery of vehicles to CN Rail, the women he spoke of, his possession of credit cards and other pieces of identification in women's names, the trip to Bangkok and his discussions about passports -- as a "big puzzle". She discussed these matters with her mother and daughter when she visited them in London and prior to calling the police. She testified that both her mother and daughter were of the view, based on what she had told them, that Mr. Aghani was a terrorist and that she should contact the authorities. Ms. Munoz testified that she "just thought he was gonna go after women." Her opinion in this regard was buttressed when Mr. Aghani called her in March 2003, purportedly from British Columbia, and asked her for the number of her Health Insurance Card to enable another woman to get medical attention. Ms. Munoz told him to call her the next day, but he never called back. Ms. Munoz never gave him her OHIP number.
78 Ms. Munoz agreed that she listened to the opinions expressed by members of her family. However, she also testified: "They didn't direct me to [call the police]. They gave their opinions. I listened and I did what I wanted to do. You can't make somebody go and testify or give a tip if they don't want to."
79 Initially, Ms. Munoz did not want Mr. Milton to know that she had contacted the authorities about Mr. Aghani or that she was attending at the police station on September 30, 2003, for an interview regarding Mr. Aghani. She explained that Mr. Milton liked Mr. Aghani. She therefore made up an excuse or lied to him about why she was going to the station. However, after the interview, she confessed to Mr. Milton that it had concerned Mr. Aghani. She did not provide any details to him about her statement to the police.
80 At the time that Ms. Munoz spoke to Corporal Bennett in September 2003, she was aware that Mr. Aghani had been arrested, but did not know what he had been charged with. Corporal Bennett simply told her that the information she had provided was helpful and that it coincided with some of the other information that the police had already gathered. She testified, "They don't tell a tipster anything. They just ask you questions."
81 When asked about her mental health, Ms. Munoz readily acknowledged that she is bipolar and "a little" schizophrenic. She testified that when she does not take her medication, "anything can happen" -- that after three or four days without medication, she is in crisis. According to Ms. Munoz, there have been four times in her life when she stopped taking her medication. The first time was in 1998 and the second occasion was in 1999 or 2000. On the other two occasions -- one on January 27, 1999 and the other on April 14, 2003 -- the police were called to her home as a result of her actions. She testified that during the January 1999 incident, she "trashed" Mr. Milton's apartment. On April 14, 2003, she acknowledged that she "saw people" and that she "gave birth to a rabbit". When asked, "And, as I understand it, ma'am, you were very confused on that date and unable to make any eye contact. Is that right?" Ms. Munoz responded, "There is no way for me to answer these questions because I was so sick. You don't remember what you're doing."
82 When asked about her state of mind at the time that she contacted the RCMP on March 31, 2003, Ms. Munoz testified that she was fine. She stated that she is currently taking her medication and that she continued to take it throughout the time that she had dealings with Mr. Aghani.
83 Ms. Munoz acknowledged using marijuana three times between September 2002 and March 31, 2003. She did not use it on March 31, 2003, when she called the police.
84 Despite her history of mental health problems, Ms. Munoz appeared to be 'an intelligent witness who answered the questions put to her in a direct, candid and straightforward manner. She took care to be accurate and, when unsure of a fact or detail, acknowledged her uncertainty. I refer, for example, to her evidence concerning the Maple Leafs on the blank passport. Ms. Munoz appeared to hold no animus towards Mr. Aghani. She had no motive to lie. At the time that she contacted the police about his activities, she had no idea that he was already the subject of a police investigation. Ms. Munoz's motivation in calling the "tipster's number" was her genuine concern that Mr. Aghani was involved in some sort of illegal activity, although she was not exactly sure what that activity entailed -- it was all a "big puzzle" to her.
85 In my view, the main issue with respect to Ms. Munoz's evidence is not her credibility but her reliability as a witness. Ms. Munoz's evidence requires close scrutiny in light of her admitted mental health problems.
86 Ms. Munoz's recollection of events, despite the fact that they occurred over three years ago, was remarkably detailed, and, for the most part, consistent. There were no gaps in her evidence. With only one exception, she gave her testimony without having to refer to her "tip sheet". When she did refer to it, it was to refresh her memory as to Mr. Aghani's telephone number, which she had provided to the police on March 31, 2003.
87 Ms. Munoz's evidence as to the timing of certain events was supported by other evidence. For example, Ms. Munoz recalled that Mr. Aghani moved into his apartment in Hamilton in April of 2002, and that he moved out in March or April of 2003. Mr. Aghani's monthly Visa statements indicate that he moved in on May 1, 2002, and that he took up residence in Winnipeg in March 2003.
88 Ms. Munoz testified that she began assisting Mr. Aghani in delivering cars to Toronto in October and November of 2002, and that she sometimes used his cell phone to call home on these occasions. Mr. Aghani's cell phone records confirm Ms. Munoz's testimony concerning her use of his telephone during these trips. Thirteen calls were made from his phone to Ms. Munoz's residence between November 5 and December 2, 2002.
89 Ms. Munoz testified that it was in November 2002 that Mr. Aghani asked her if she would go to Bangkok to deliver some papers to an agent, who would then give her some papers to bring back to Hamilton. When she refused to go, Mr. Aghani indicated that he would make the trip himself. That Mr. Aghani began to plan his trip to Bangkok in November is apparent from his urgent request, faxed to CIBC Visa on November 22 that "my wife Catherine Beykzadegan Tabrizi, DOB 02, 11, 1971," be added to his account. On December 19, 2002, he contacted Visa to advise them of his travel plans.
90 Telephone records indicate that Mr. Aghani initiated contact with Star Travel, the agency from whom he eventually purchased his ticket to Kuala Lumpur, as early as December 5, 2002. On December 11, 2002, the agency made an on-line inquiry for a one-way fare for one adult to fly from Toronto to Kuala Lumpur on December 23, 2002. On December 12, 2002, Mr. Aghani purchased his ticket and charged it to his Visa account.
91 Ms. Munoz testified that Mr. Aghani left for Bangkok around December 19, 2002, and returned home around January 28, 2003. Mr. Aghani gave her the keys to his apartment to look after his place while he was gone. Ms. Munoz recalled that Mr. Aghani called her from Bangkok at some point to advise her that he would not be returning on January 10, 2003, as he had earlier planned. Other evidence establishes that on January 6, 2003, Mr. Aghani paid cash for a ticket on China Airlines for a flight leaving Bangkok on January 17, 2003. He arrived in Vancouver the following day.
92 In cross-examination, Ms. Munoz testified that she saw credit cards and other pieces of identification in names other than "Sal Aghani" -- which was the name by which she knew the accused -- when she entered his apartment with the superintendent while Mr. Aghani was in Bangkok. Ms. Munoz's testimony that Mr. Aghani possessed many documents in different names is supported by Exhibits 30 and 31, which are photocopies of the numerous documents in various names in Mr. Aghani's possession at the time of his arrest. The accused travelled to Bangkok under the name Sal Aghani, notwithstanding the fact that he had legally changed his name to Joshua Zachery on May 27, 2002.
93 The evidence of Mr. Aghani's possession and/or use of credit cards and identification documents in various names was admitted at trial for a limited purpose. The evidence was not adduced or relied upon to show that by virtue of his possession of such documents, Mr. Aghani was a person of bad character or the kind of person more likely to have committed the offences before the court. The defence elicited Ms. Munoz's observations of the multiple pieces of identification in an attempt to persuade the court that it was her suspicions in this regard that caused her to contact the police -- and not Mr. Aghani's alleged inquiries about blank passports or his showing to her a blank passport, which the defence contends never happened. The Crown, on the other hand, asserted that the fact that Mr. Aghani possessed various documents in different names lends support to Ms. Munoz's testimony about the observations that she made in his apartment and generally enhances her reliability as a witness.
94 I have carefully considered Ms. Munoz's testimony. I am satisfied that although Ms. Munoz, as she candidly admitted, suffers from mental health problems, which she stated are controlled by her medication, her testimony as to her interaction with Mr. Aghani between the spring of 2002 and the spring of 2003, was both credible and reliable. In particular, I accept Ms. Munoz's evidence that in November 2002, Mr. Aghani asked her to travel to Bangkok to deliver papers to an agent, who was to provide her with papers to bring back to Hamilton. I accept her evidence that when she refused his request, Mr. Aghani told her that he himself would go to Bangkok. I accept Ms. Munoz's evidence that Mr. Aghani asked her whether she knew anyone who could get a blank passport.
Evidence of Donald Wong
95 I have already referred to some portions of Mr. Wong's testimony. Mr. Wong was the franchisee of Mail Boxes Etc. at 6021 Yonge Street from September 5, 1997, to September 6, 2005, when he sold the business. Although Mr. Wong has some command of the English language, he gave his testimony through a Cantonese interpreter.
96 Mr. Wong testified as to the circumstances of the signing of the Mailbox Service Agreement for Box #886, a copy of which he provided to Mr. Aghani. He testified that he never met any of the authorized users of Box #886 that were listed by Mr. Aghani on the agreement. He never met Effat Najarzadeh or anyone from Emerald Financial Services. He understood that Saeed Joshaghani and the accused were one and the same person.
97 Mr. Wong issued two keys to Mr. Aghani -- one for Box #886 and one for the main door to the premise. No one other than Mr. Aghani could access Box #886 unless Mr. Aghani gave that person the key. Mr. Wong recalled seeing Mr. Aghani's sister and his sister's son pick up the mail on occasion.
98 Mr. Wong testified that customers are able to access their mailboxes twenty-four hours a day, seven days a week, since the key to the main door permits access outside normal business hours. Mr. Wong and his wife were the only people employed at the Yonge Street location.
99 Mr. Wong testified that he only checked the mailbox numbers, not the name's, on the mail that arrived at his business. He explained: "I have about 380 clients, right. I don't have that kind of time to match the box number and the name against the name, the name of the mail and the box number. I just check the mailbox number. If the mailbox number match, then I will put the stuff into the mailbox."
100 Mr. Wong had no recollection of Mr. Aghani using the name "Mike Vortish". Nor did he recall seeing that name on mail addressed to Box #886. However, he stated that he could easily have overlooked the name, since he only checked the mailbox numbers.
101 Mr. Wong was questioned about a statement that he allegedly made to Cpl. Bonin on February 13, 2003:
Have you ever seen mail packages addressed to Mike Vortish for mailbox #886?
He said that if it is not his name or business, Mr. Aghani will not take it.
102 Mr. Wong denied having made this statement. He testified that if Mr. Aghani did not wish to accept certain mail, he was at liberty to return it to Mr. Wong. However, that would have been Mr. Aghani's responsibility, not Mr. Wong's. Mr. Wong repeated that given the fact that he delivered mail to 380 mailboxes, he did not have time to compare the name of each addressee on each piece of mail to the names on individual contracts. Nor would he have undertaken to perform such a task.
103 The above statement was the subject matter of an application by the defence to have it admitted as proof of the truth of its contents. I ruled that it was not admissible for that purpose. In my ruling, I reviewed the circumstances in which the statement was made, which I do not propose to repeat here. However, I do note that the statement was not recorded. It was never shown to Mr. Wong or read back to him. Cpl. Bonin did not regard the interview as a formal statement but more of an information-gathering exercise, which took place at Mr. Wong's place of business during business hours. Cpl. Bonin acknowledged that what he "jotted down" in his notebook was a paraphrasing of what Mr. Wong told him. It was not word for word but the "idea" of what he understood Mr. Wong to be saying. No interpreter was present. Cpl. Bonin had difficulty understanding Mr. Wong because he spoke quickly and with an accent. Mr. Wong may have had difficulty understanding Cpl. Bonin, who has a French accent. Taking into account all of the surrounding circumstances, I am satisfied that Cpl. Bonin did not accurately record Mr. Wong's answer.
104 Mr. Wong was also questioned in cross-examination about a statement he made to Cpl. Bonin when the officer and Constable Amber Bara attended at his store on September 13, 2004. Again, no interpreter was present. Counsel for Mr. Aghani relied on this statement as evidence that Mr. Aghani had "abandoned" Box #886 in December 2002. The statement, which was audiotaped, is as follows:
Did you receive a phone call from [Mr. Aghani] as a result of our search warrant?
No, it seems no, because I looking for him for payment.
Okay. Do you remember the day we came for the search warrant, 13 February 2003?
A. I am. I cannot remember, but I recognize you.
Q. We were here at noontime.
A. Okay.
Q. Do you recall seeing Mr. Aghani that day after?
No. They left, they left. They had not been here for a long time and then the mail, he had some mail at that time, but after he disappear, I returned all the mail.
105 Mr. Wong explained that the time period to which he was referring in this statement was November/December 2003, after the expiration of the last renewal of the agreement on November 12, 2003. It was during this time that he was "chasing" Mr. Aghani for payment. When he did not hear from him, he cancelled the contract and returned all the mail for Box #886 to the senders. Mr. Wong was clear in his evidence that this was the action he took in December 2003, as opposed to December 2002. He testified that he never received a request from Mr. Aghani to cancel the rental agreement.
106 As might be expected, Mr. Wong did not have a clear recollection of how Mr. Aghani paid for each renewal of his rental agreement without referring to the Visa records. He thought that the renewal on May 20, 2003, was probably over the telephone, as "I didn't see him for a very long time." He also agreed that on February 13, 2003, when Cpl. Bonin asked him if Box #886 was very active, he replied that it was "not a very busy one. The past couple of months, not very busy. Before that, every other day." Mr. Wong did not specifically recall seeing Mr. Aghani in 2003.
107 Mr. Wong testified that Mr. Aghani never mentioned anything to him about passports. He testified that he would not know anything about the contents of his customers' mail in any event.
108 There is no evidence to suggest that Mr. Wong held any animus towards Mr. Aghani. I found him to be a truthful witness who did his best to recall his dealings with the accused -- one of his many customers -- that took place some years ago. Mr. Wong's evidence was supported by the viva voce evidence of Sophia Rodopoulos, documents from CIBC Visa, documentation from Mr. Wong's paper file for Box #886, as well as Cpl. Bonin's notes of the computer file. I am satisfied that Mr. Wong did not attempt to cheat Mr. Aghani with respect to the payments made on November 19, 2002, and May 20, 2003.
Evidence of Brian O'Connell
109 Brian O'Connell was qualified to give expert testimony with respect to the obtaining of fraudulent passports and their uses, as well as the methods of altering passports. Mr. O'Connell has been a Regional Intelligence Officer with Canada Border Services Agency ("C.B.S.A.") since 1995. From 1977 to 1995 he was a superintendent in charge of fifteen immigration officers. From 1975 to 1977 he was a Senior Examining Officer at Pearson International Airport. Mr. O'Connell has also worked in the "C 44 Mail Intercept Program", which involves detecting altered or fraudulent passports, the seizure of passports, as well as the running of programs related to the detection of false or fraudulent identity documents required for travel and immigration. Mr. O'Connell has been involved in training personnel in the recognition of false, altered or fraudulent passports in Canada and overseas.
110 Mr. O'Connell was of the view that the 246 blank Canadian passports stolen from the, Scarborough Passport Office in June 2002 were probably shipped out of the country fairly quickly because "the idea is to use the Canadian passport to travel to Canada." He described Bangkok, Thailand as "a known international clearing house" and the place to go if one is shopping for fraudulent documents. He suggested that there could be a connection to Kuala Lumpur in that "the arranger was in Kuala Lumpur and he had contacts in Bangkok".
111 Mr. O'Connell testified that both passports in issue in this case are very valuable and highly marketable. However, it was his view that the blank passport was worth more than the Tabrizi passport. Once altered, the blank passport would be less likely to be detected as a fraudulent document. He noted that although the two passports are of an older style, such passports were still in use at the time that they were seized. The Tabrizi passport still had three years of potential use before its March 2006 expiry date.
112 Mr. O'Connell testified that the damage done to the Tabrizi passport could be easily repaired by simply inserting a photograph and pasting over it with a pebble finish laminate. This would increase its value. He also testified that the entry of certain biographical data, such as the place of birth -- Tehran -- and a birth date of 1971, did not particularly detract from the passport's value. Most officials who would be examining the passport would not be familiar with the Farsi language. Nor would the person using the passport be likely to travel through countries where Farsi is spoken.
113 During cross-examination, Mr. O'Connell was asked to compare the Malaysia entry stamp dated December 25, 2002, on page 7 of Mr. Aghani's passport to the Malaysia entry stamp of the same date on page 9 of the Tabrizi passport. Mr. O'Connell examined both stamps and noted that they shared a number of similarities, including the same stamp number, the same officer number, and the same details around the border. However, variations in certain security features that were visible under a magnifying glass led Mr. O'Connell to form the opinion that the stamp in the Tabrizi passport was counterfeit.
114 Mr. O'Connell testified that there is a significant market in counterfeit stamps because of the credibility they give to an altered passport. Such stamps suggest that other immigration officers have accepted the passport as genuine. he counterfeit Malaysia entry stamp in the Tabrizi passport herefore enhanced the passport's value.
115 Mr. O'Connell estimated that the blank passport could be sold for "at least two to five thousand dollars", depending on the person with whom one was dealing and the kind of "package" that was being offered. A Canadian passport can be a very valuable part of the deals offered by smuggling rings to get people to Canada or the United States:
· I know it's $40,000 U.S. [that the organizers] charge for a guaranteed admission to the United States out of China and that includes your passport, maybe most likely a Canadian passport as well because you would fly from Hong Kong directly to Vancouver or maybe into Los Angeles on a Canadian passport. The idea is to make a refugee claim when you arrive. So it's a very valuable document. It's part of the package. You get your ticket. You get your passport. Quite often, if you're paying top dollar, you will be part of a group and that group will have a leader to help you through the checkpoints on your journey. If you are admitted as a returning Canadian, everything is fine. Then you are met by an escort who will then smuggle you into the United States either in the back of a transport truck or trunk of a car, railroad, whatever, or use the altered Canadian passport to cross the border into the United States, depending on the package."
116 Mr. O'Connell testified that a fraudulent passport may be used many times over by smugglers, who will match it to someone with an appearance similar to that of the person in the passport's photograph.
117 Mr. O'Connell testified that anyone who learns of a passport for sale would realize that "there is something wrong" and that the passport must be stolen. People are generally aware that the only lawful way to obtain a passport is to receive it through a Passport Office, where a person must satisfy government officials as to his or her proper identity. One does not obtain a legitimate passport by buying it on the street.
118 Mr. O'Connell referred to sections 117 to 122 of the Immigration and Refugee Protection Act as examples of the types of offences that could be committed using altered or fraudulent Canadian passports. The main use is "to get somebody into Canada, get somebody travelling on this document unhindered ...
119 An individual may want to come to Canada under a false name for any number of reasons. Mr. O'Connell explained:
· If you are wanted internationally, if you're a criminal or if you're a terrorist or you're an organized crime family member or something like that and you can't travel on your own identity, you want to travel on somebody else's identity, because a lot of ports of entry now have machine readers, and some countries actually tie into the national criminal data base. ...
120 Mr. O'Connell testified that stolen passports could be used to bring a family member from an oppressed country to Canada, and to keep that family member in Canada, thereby avoiding the lengthier but legitimate refugee process. An individual could apply to a foreign embassy in Canada for permission to enter that country on the basis of a fraudulent Canadian passport. Fraudulent or altered Canadian passports may be used to enter the United States or other countries that do not require Canadian citizens to obtain visas. They may be used to hide a person's true identity in order to avoid arrest on outstanding immigration or other types of warrants. They may be used in the perpetration of identity theft. They may also simply be sold for profit.
121 Mr. O'Connell explained that money is made by people all along the chain of distribution:
· Somebody stole these passports from the Passport Office originally. Well, that person, they realized that these are very valuable documents they've got, but they may not have the contacts to get the value from them. So the first person, somebody who says, yes, I'll give you $10,000 for those passports. Well, that's a lot of money to the thief, so they say fine. Well then, this fellow who has now bought 250 or 500 passports, it doesn't matter. Now he's got a lot of passports and, of course, there is not a big demand in Canada for the passports. There's a demand, but with 500 of them, he'll get a lot more money if they're sold overseas because that's where the demand is because of the desire to get from overseas to Canada. So he will arrange to have those passports shipped overseas to a place like Bangkok to another person who has his agents in the field who are organizing the smuggling of people to Canada so that all along the link there's money to be made, all along the chain too.
122 Mr. O'Connell testified that it is not common for blank passports to be intercepted in the mail, although he was aware of fraudulent and altered Canadian passports having been intercepted in this way. At the time of the commission of the offences before the court, there was no computerized index of stolen passports available at the ports of entry or the primary customs lines. Nor did ports of entry and field officers have access to serial numbers to be checked by computer. Mr. O'Connell explained that Canadian officers "would probably make a reference call to an intelligence officer on duty and he could follow up the next day through the passport investigations office, have the serial numbers checked and see if it's been reported lost or stolen."
123 Mr. O'Connell testified that it was only about a year and a half ago that the computerized data system, known as FOSS, included stolen passport records. He was uncertain as to how current these records are at any given moment. A passport is checked using FOSS only after a traveller is referred from the primary to the secondary point of inspection; the officer at the primary line does not have access to the records. Mr. O'Connell could not say whether officers at ports of entry read or keep current with the bulletins that publish information about stolen passports.
124 Mr. O'Connell noted that in 2002 and 2003, customs officers were not mandated to stamp the passport of a returning Canadian citizen. There is therefore no way of ascertaining whether someone used the Tabrizi passport to enter Canada.
Possession
125 The definition of "possession" is contained in section 4(3) of the Criminal Code, which states:
· For the purposes of this act,
a person has anything in possession when he has it in his personal possession or knowingly
has it in the actual possession or custody of another person, or
has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person;
126 In order to establish personal possession, the Crown must prove knowledge and control, as well as an intention to possess. In R. v. Hess (No. 1) (1948), 94 C.C.C. 48 (B.C.C.A.) at pp. 50-51, the court set out the essential elements of the offence of possession in instances where the evidence establishes manual handling:
· To constitute 'possession' within the meaning of the criminal law, it is my judgment that where as here there is manual handling of a thing, it must be co-existent with knowledge of what the thing is, and both these elements must be co-existent with some act of control.
127 This view of the law was approved by the Supreme Court of Canada in Beaver v. The Queen (1957), 118 C.C.C. 129.
128 There is no particular period of time that an accused must have actual physical contact with the prohibited object. As stated in R. v. York, (2005), 193 C.C.C. (3d) 331 (B.C.C.A.) at para. 20, personal possession is established where an accused person exercises physical control over a prohibited object with full knowledge of its character, however brief the physical contact may be, and where there is some evidence to show the accused person took custody of the object willingly with intent to deal with it in some prohibited manner.
129 In the present case, the Crown must establish that Mr. Aghani had some measure of control over the passports in order to satisfy the requirement of an intent to possess or exercise control. The Crown must also establish that Mr. Aghani had knowledge of the illegal character of the passports. Knowledge may be proved either by direct evidence or by inferences drawn from all the surrounding circumstances. [See R. v. Aiello (1978), 38 C.C.C. (2d) 485 (Ont. C.A.) at 488, aff'd at 46 C.C.C. (2d) 128n (S.C.C.)]
130 The position of the Crown is that it has established beyond a reasonable doubt that Mr. Aghani had personal possession of the passports prior to their being mailed from Bangkok. The Crown also takes the position that it has established that Mr. Aghani was in constructive possession of the passports by virtue of his having mailed them to his mailbox in Toronto.
131 In R. v. Kocsis (2001), 157 C.C.C. (3d) 564 (Ont. C.A.), the court held that the three elements required for personal possession also apply to constructive possession, namely: (a) knowledge of the item; (b) control over the item; and (c) an intention to possess the item. The knowledge must be co-existent with control, and is often proven by drawing inferences from circumstantial evidence. Knowledge may be inferred where the accused has a strong connection to the location where the item is stored.
132 Control for the purpose of constructive possession does not require that an accused did in fact exercise control over the object in question. Control means power or authority over that object and is established if there is the right to grant or withhold consent. It is not necessary that the consent in fact be granted or withheld. [See R. v. Dixon [2007] O.J. No. 741, S.C.J.]
Importing
133 The actus reus of the offence of importing was considered by the Supreme Court of Canada in R. v. Bell (1983), 8 C.C.C. (3d) 97. The court held that the word "import" in s. 5 of the Narcotic Control Act should be given its ordinary meaning, and that ordinary meaning is simply to bring into the country or cause to be brought into the country. [See also R. v. Valentini, [1999] O.J. No. 251 (C.A.)].
134 The mens rea of the offence of importing is the basic intent to knowingly bring something into Canada. This requires actual knowledge or willful blindness on the part of the accused. There is no necessity to prove intent beyond the intent to commit the prohibited act. The intention to commit the importing may be proved through direct evidence or by inferences drawn from the surrounding circumstances.
Findings re Possession and Importation
135 There is a substantial body of evidence that points to Mr. Aghani having been in possession of the stolen passports.
136 In November 2002, Mr. Aghani asked Ms. Munoz to go to Bangkok to deliver some papers to an agent, who, in turn, was to provide her with papers to be brought back to Hamilton. Mr. Aghani wanted Ms. Munoz to embark on this trip as soon as possible and before Christmas. When Ms. Munoz refused, Mr. Aghani arranged to go to Bangkok himself. Prior to leaving, he had expressed an interest in obtaining a blank passport, and asked Ms. Munoz if she knew anyone who could get one for him.
137 On December 12, 2002, Mr. Aghani purchased his airplane tickets. He left Toronto on December 23, and, on December 26, 2002, arrived in Bangkok, which was described by Mr. O'Connell as "a known international clearing house" and the place to go if one is shopping for fraudulent documents.
138 The presence of Mr. Aghani's thumbprint on page 2 of the blank passport indicates that he manually handled it. There can be no doubt that when he did so, he knew it was a passport, as the words "CANADA PASSPORT/PASSEPORT" are printed in gold lettering on the outside cover. Moreover, an inference may be drawn that Mr. Aghani was aware that the passport was blank by virtue of the fact that his fingerprint was located on the same page that biographical information and a citizen's photograph normally appear. There was no biographical data in this passport. It was obviously an illegal document.
139 Mr. Aghani's fingerprints -- two right thumbprints and two left thumbprints -- were located near the bottom and bottom side portions of the back cover of the Live Well magazine. This magazine, as well as a number of flyers and brochures, was included in the envelope. Other than the passports, all of these items were of little consequence. It is obvious that their inclusion was an attempt by the sender to prevent authorities from detecting the contraband passports. The fingerprint evidence, which establishes that Mr. Aghani handled not only the blank passport but also part of the packaging material, is, in the context of all of the evidence and surrounding circumstances, highly probative on the issue of possession. I note that the issue date of both the Live Well guide and the Contiki Holidays brochure was January-February 2003, which includes the period of time that Mr. Aghani was in Bangkok.
140 There is also evidence that links Mr. Aghani to the Tabrizi passport. Mr. Aghani had knowledge of the biographical data, which happened to be counterfeit, that was contained in that passport. The data in the Tabrizi passport is identical to the data faxed by Mr. Aghani to CIBC Visa on November 22, 2002, before his trip to Bangkok. In that fax, Mr. Aghani asked that "Catherine Beykzadegan Tabrizi", with a date of birth of February 11, 1971, and whom he described as his wife, be added to his Visa account as an authorized user. His request was marked urgent. On February 13, 2003, after his return from Bangkok, Mr. Aghani requested that Ms. Tabrizi be removed from his account. Mr. Aghani told Ms. Munoz upon his return from Bangkok that he had not married "Catherine" [Ms. Munoz originally recalled the woman's name as "Christina"] after all.
141 The presence of the counterfeit Malaysia immigration stamp, which was the only stamp in the Tabrizi passport, is further evidence linking Mr. Aghani to this stolen passport. It points to his knowledge, if not complicity, in the placement of the stamp on the passport. As noted earlier, the forged stamp bears the same date, port of entry, stamp number and officer identification number as the December 25, 2002 Malaysia immigration stamp on page 7 of Mr. Aghani's passport. Malaysian immigration records indicate that no one by the name of Catherine Beykzadegan-Tabrizi, with a date of birth of February 11, 1971, and using this passport, entered or exited Malaysia between December 25, 2002, and January 1, 2003.
142 Both passports, each of which is linked to the accused in the manner described above, were concealed within the same envelope in an almost identical way. Both were opened in the middle at pages 12 and 13 so that they would lie as flat as possible. Each passport was individually wrapped with several layers of paper so that it was enclosed in its own "package". Both passports were then inserted into the thick pages of the semi-glossy Toyota brochure.
143 Mr. Aghani left Bangkok at 5:55 p.m. on January 17, 2003, which was the same date that the envelope was mailed from Bangkok to Toronto. Mr. Aghani arrived in Vancouver on the morning of January 18, 2003. The envelope was intercepted in Vancouver by C.C.R.A. personnel on January 21, 2003. The Crown submitted that the timing of these events was not coincidental but was calculated by the accused in an attempt to maintain as much control as possible over what was very valuable contraband. The Crown submitted that although the passports were placed temporarily in the custody of the international postal services, first in Thailand and then in Canada, it was with the expectation that they would be delivered to Mail Box #886 in Toronto around the same time that the accused returned home, when he could then resume personal control over them.
144 The envelope containing the passports was addressed to 6021 Yonge Street, Suite #886, Toronto, Ont. M2M 3W2, Canada, which is the address of the mailbox that Mr. Aghani rented at Mail Boxes Etc. from February 12, 2002, to November 12, 2003. I am satisfied that Mr. Aghani never called Mr. Wong to cancel the Service Agreement, and that he renewed the agreement on three separate occasions. On each of these occasions, Mr. Aghani provided Mr. Wong with his most current Visa number -- information to which Mr. Wong would not otherwise have had access. There is no evidence before the court to suggest that someone other than Mr. Aghani gave Mr. Wong his credit card information. To conclude that such was the case would be to engage in speculation and conjecture.
145 That all the renewals of the Service Agreement were authorized and approved by Mr. Aghani is further evidenced by the fact that he never disputed the charges to his Visa account. Mr. Wong testified that Mr. Aghani never, called him to complain about the charges. The CIBC Visa records indicate that although Mr. Aghani disputed other items charged to his account by other retailers, he never complained about the charges from Mail Boxes Etc.
146 That the Service Agreement was in force during the renewal period from November 12, 2002 to May 12, 2003, is also apparent from the data contained in Mr. Wong's computer file, which was copied by Cpl. Bonin into his notebook on the day that the search warrant was executed. I accept Mr. Wong's evidence that that renewal ran its full course and that it was not, as submitted by the defence, prematurely cancelled by Mr. Aghani in December 2002. In fact, it was followed by another renewal, this time for the period from May 12, 2003, to November 12, 2003. Mr. Wong only cancelled the contract in December 2003, when Mr. Aghani failed to respond to a renewal notice and Mr. Wong was unable to contact him because Mr. Aghani's address and telephone number, as they appeared on the Service Agreement, were no longer current. Consequently, Mr. Wong returned the mail in Box #886 to the senders, changed the locks, and cancelled the contract, which he noted on his ledger.
147 I accept Mr. Wong's evidence that had Mr. Aghani called him in December 2002 to cancel the renewal, he would have obliged him in this regard. There was no reason for Mr. Wong to do otherwise in the circumstances. Mr. Wong testified that he would not have granted Mr. Aghani a refund -- his policy was not to refund money upon cancellation. Mr. Wong could then have proceeded to rent the box to another customer. I find that Mr. Aghani never requested Mr. Wong to cancel any of the renewals.
148 There can be no doubt that Mr. Aghani controlled Box #886 at the time that the passports were mailed from Bangkok and that he continued to have control over it until Mr. Wong cancelled the contract on December 9, 2003. When the original Service Agreement was signed in February 2002, Mr. Wong issued only one set of keys to Mr. Aghani -- one for the mailbox and one for the main door. No one other than Mr. Aghani could access Box #886 unless Mr. Aghani provided that individual with the key.
149 Counsel for Mr. Aghani submitted that if the accused had knowledge of the envelope and anticipated its arrival, he would likely have called Mr. Wong during January and February of 2003 to inquire about his mail or any packages that had arrived for him. Mr. Wong did not recall Mr. Aghani or anyone on his behalf having made such calls. However, since Mr. Wong, according to his usual practice, would have simply folded the envelope and placed it directly into Box #886, as opposed to placing it in the mailroom, such calls would have been superfluous. They would also have drawn unnecessary attention to the envelope. Mr. Aghani, or someone on his behalf, could simply have attended and retrieved the envelope directly from the box. I note that the envelope, which had been stamped "Letter" by the postal service, was sent through regular mail delivery. It was not sent by special parcel delivery or registered mail, and therefore would not have required Mr. Wong's signature for acceptance.
150 The fact that Mr. Wong did not recall seeing Mr. Aghani in January or February of 2003, or around the time of the anticipated arrival of the envelope, is of little consequence. First, I take into account the fact that it is unrealistic to expect that Mr. Wong could have remembered with precision all the comings and goings of his 380 customers over a number of months. Secondly, and more importantly, Mr. Aghani had keys that gave him access to Box #886 twenty-four hours a day, seven days a week. The accused could also have sent someone else to pick up the envelope. Mr. Wong testified that Mr. Aghani's sister and her son occasionally performed this task.
151 Counsel for the accused submitted that if Mr. Aghani were responsible for mailing the envelope, it is unlikely that he would have addressed it to "Mike Vortish", a name that does not appear on the list of authorized users in the Service Agreement. It was submitted that such a name might result in Mr. Wong refusing to accept the envelope on Mr. Aghani's behalf, or, at the very least, cause him to place it in the mailroom until he could contact the accused about it. However, Mr. Wong testified that because he had so many customers, he did not have time to check the names on the mail he received. He only looked at the mailbox number. It would be unrealistic in the circumstances to think that Mr. Wong would bother to look at the name on each and every piece of mail, or that the names on an envelope would be of any significance to him.
152 It is a matter of common sense that the person responsible for mailing these passports would be concerned about the possibility of their being intercepted by the authorities and hence would address the envelope to a fictitious person. Anyone importing such valuable contraband would be unlikely to link himself so obviously and directly to the crime by using his own name.
153 I note that the address on the envelope refers to Box #886 as "Suite #886". This is the same terminology used in the Service Agreement signed by Mr. Aghani on February 12, 2002, to describe the mailbox. The same wording also appears on the accused's CIBC Visa statement for May 2002. The statement is addressed to Saeed Joshaghani, Wedgewood Plaza, 6021 Yonge St. Suite #886, Toronto, ON.
154 Based on all of the evidence, and having considered the submissions of counsel, I am satisfied beyond a reasonable doubt that Mr. Aghani was in possession of the two stolen passports. The Crown has established that the accused had knowledge and control of the passports, that he had the intention to possess them, and that he knew that said possession was illegal. The incontrovertible inference from all of the circumstances is that Mr. Aghani intended to resume control over the passports once they had been delivered to his mailbox in Toronto.
155 The evidence establishes that Mr. Aghani's original intention was to have Ms. Munoz obtain the passports or "papers" for him. When she refused to go to Bangkok, Mr. Aghani arranged to go there himself. The presence of Mr. Aghani's fingerprint on page 2 of the blank passport establishes that he handled it at some point. There can be no question that when he did so, he knew that it was a passport and he knew that it was blank -- in other words, a prohibited document.
156 Mr. Aghani's knowledge of the Tabrizi passport may be inferred not only from his knowledge of the counterfeit biographical information contained in it, but also from the presence of the counterfeit Malaysia immigration stamp, which bears a striking similarity to the legitimate Malaysia immigration stamp in his own passport.
157 The two passports, both of which are linked to Mr. Aghani -- the one by the presence of his fingerprint, and the other by virtue of its counterfeit data and stamp -- were packaged in the same way and in the same envelope. Mr. Aghani's right and left thumbprints were on the back cover of one of the magazines used to camouflage or conceal the passports, which were mailed on the same day that Mr. Aghani left Bangkok to return to Canada. They were mailed to Mr. Aghani's mailbox in Toronto -- a mailbox for which he alone had been issued the keys.
158 Counsel for Mr. Aghani pointed out in his submissions that fingerprints other than those of Mr. Aghani were located on some of the items contained in the envelope. Clearly, other persons had contact with these items. However, this fact does not detract from.all of the evidence, when considered as a whole, that points to the accused's culpability.
159 Defence counsel submitted that had Mr. Aghani been responsible for mailing the envelope, one would expect to find his fingerprints on it. It was argued that the absence of his fingerprints on the envelope points to his innocence and lack of involvement in these offences. However, it should be noted that Cpl. Shaw located no fingerprints whatsoever on the envelope, even though a number of people within the postal service, both in Thailand and Canada, would probably have handled it. In these circumstances, I do not view the absence of the accused's fingerprints on the envelope as particularly significant.
160 The totality of the evidence is such that the Crown has established beyond a reasonable doubt that Mr. Aghani was in possession of the passports during the time frame as set out in the indictment. No foundation for a reasonable doubt can be found on the evidence before me. The overwhelming inference to be drawn from the evidence, even if one were to exclude Ms. Munoz's evidence from consideration, is that Mr. Aghani obtained, packaged and mailed the passports to his Toronto address, using a fictitious name. Knowing the illegal nature and value of the documents, which had a street value of anywhere from $2000 to $5000, Mr. Aghani mailed them to himself, as opposed to carrying them on his person or in his baggage. He thereby avoided the risk of detection by immigration authorities upon his return from Bangkok -- a known clearinghouse for counterfeit documents. The fact that Mr. Aghani mailed the passports on the same day that he left Bangkok indicates an intention to minimize the time that they were out of his control.
161 The Crown has also established the actus reus and mens rea of the offence of importing. Mr. Aghani clearly intended to import the passports when he mailed them from Bangkok.
Interpretation of Section 122 of the Immigration and Refugee Protection Act: "In order to contravene this Act"
162 Section 122 appears in the "Enforcement" section of the Act, under the heading "Offences Relating to Documents". It reads as follows:
No person shall, in order to contravene this Act,
possess a passport, visa or other document, of Canadian or foreign origin, that purports to establish or that could be used to establish a person's identity;
use such a document, including for the purpose of entering or remaining in Canada; or
import, export or deal in such a document.
Proof of the matters referred to in subsection (1) in relation to a forged document or a document that is blank, incomplete, altered or not genuine is, in the absence of evidence to the contrary, proof that the person intends to contravene this Act.
163 Since every Canadian who possesses a passport commits the actus reus of possession under s. 122, the offence turns on the mental element of an accused at the time that he or she is in possession. An accused cannot be found guilty of an offence under s. 122 unless the Crown establishes beyond a reasonable doubt that the accused's possession, use, importation or exportation of the passport was "in order to contravene the Act."
164 As stated earlier, the Crown in this case is not relying on the statutory presumption of guilty intent in s. 122(2). However, s. 122(2) provides some interpretive guidance to the mental element of the offences named in s. 122(1). Notably, it highlights the fact that the possession, use, importation or exportation of forged or blank identifying documents is not a separate offence under the Act. Whether the documents are false or genuine, the criminality of the acts listed in s. 122(1) is assessed by reference to the mental element -- that is, whether the act in question was taken "in order to contravene the Act."
165 Counsel for Mr. Aghani submitted that the Crown has not met its burden because it has neither particularized nor proved what Mr. Aghani intended to do with the passports that would contravene the Act. It was the position of the defence that the Crown must specify and prove the nature of the accused's intended scheme or the precise manner in which he planned to breach the Act. It was argued that even if it could be inferred that Mr. Aghani's possession was for some nefarious purpose, this would be an insufficient basis on which to found a conviction, since the words "in order to contravene the Act" refer to a specific as opposed to a general intention related to the Act.
166 In my view, the Crown is not required to establish the specific infringement that the accused intended. Section 122 requires only that the Crown establish beyond a reasonable doubt that the accused possessed the documents in order to infringe the Act in some way. For example, if the Crown establishes that an accused is in possession of a hundred blank Canadian passports in the trunk of his car, the Crown need not particularize and prove the accused's ultimate purpose -- such as whether the accused intended to sell the passports for profit or use them in his own or someone else's smuggling operation -- as an element of the offence under s. 122. The question in all cases is simply whether the possession, use, importation, or exportation of the documents was "in order to contravene the Act" by some means. There may, of course, be cases in which there is evidence of a specific scheme or plan to commit a particular offence under the Act. Such evidence, along with other evidence as to the circumstances, would naturally strengthen any inference to be drawn that the possession, use, importation or exportation was in order to contravene the Act. However, the Crown is not required to specify and prove the particular or specific manner in which an accused intended to contravene the Act.
167 There are a number of sections of the Act that can be contravened by using an identifying document such as a passport. Mr. O'Connell, who was qualified as an expert witness, canvassed these in his testimony. Many actions relating to improper documents would violate the broad "misrepresentation" provision in s. 126, which states:
Every person who knowingly counsels, induces, aids or abets or attempts to counsel, induce, aid or abet any person to directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act is guilty of an offence.
Mr. O'Connell testified that the two passports in this case could be sold for profit. They could be used to bring a family member or friend into Canada, assist someone to remain in Canada who would otherwise be removed, provide different identities for persons wanted by the authorities, or provide different identities for persons who wish to travel to other countries and would otherwise not be eligible but for the Canadian passport indicating that the person is a Canadian citizen. Under s. 127 of tile Act, it is an offence to use a passport to misrepresent oneself to immigration authorities upon entering Canada. Other actions involving improper documents could violate s. 117, which prohibits smuggling people into Canada, either as part of an organized smuggling ring, or as an individual.
168 After a consideration of all of the evidence, I am satisfied that the Crown has established beyond a reasonable doubt that Mr. Aghani was in possession of and imported the blank passport and the Tabrizi passport in order to contravene the Act.
169 As stated earlier, Mr. Aghani was aware that one of the passports was blank -- a document for which there could be no legitimate purpose. He was aware of and connected to the counterfeit information in the Tabrizi passport -- a document that had obviously been altered, as the photograph had been removed. According to Mr. O'Connell, the counterfeit stamp, similar in appearance to the legitimate stamp in Mr. Aghani's passport, enhanced the value of the passport. The presence of the stamp indicates that the person in possession of the Tabrizi passport -- Mr. Aghani -- intended to sell it or use it in some manner contrary to the Act. Both passports had a significant street value. The fact that Mr. Aghani was in possession of not one, but two passports, is also a factor to consider in assessing his intention vis-à-vis the Act.
170 That Mr. Aghani was aware of the illegal nature of the passports is apparent from the care he took to conceal them within the envelope. Such care is inconsistent with an intention to destroy the passports, an intention to abandon them or an intention to surrender them to the authorities. Had Mr. Aghani intended to destroy or abandon the passports, he could have done so in Bangkok. He need not have packaged them, along with numerous inconsequential flyers etc., paid the appropriate postage, and then taken the risk involved in mailing them to his Toronto address. It is also improbable that Mr. Aghani intended to abandon or destroy documents that he had travelled all the way to Bangkok to obtain. His efforts in this regard are consistent with an intention to make some use of the passports once they were in his possession. That Mr. Aghani intended to avoid detection rather than turn the passports over to police may also be inferred from his use of the fictitious name, "Mike Vortish".
171 In summary, Mr. Aghani's entire pattern of behaviour with respect to the passports and all the surrounding circumstances are inconsistent with his possession of them for any innocent purpose. I am satisfied that he obtained the passports and mailed them to himself with the intention of engaging in activities that he knew would contravene the Immigration and Refugee Protection Act.
172 The Crown has established beyond a reasonable doubt that Mr. Aghani was in possession of the passports and that he imported them "in order to contravene" the Act.
Conclusion
173 The Crown having met its burden, the accused is found guilty on all three counts in the indictment.
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