HUMAN SMUGGLING CONVICTION IN KINGSTON AREA CASE

The question of human smuggling in the Thousand Islands area has been a source of concern for authorities on boths sides of the border for many years.  In the case below, the court summarizes the applicable legislation and a convicted is entered against the accused.

R. v. Alli

Between
Her Majesty the Queen, and
Yavar Alli, Accused

[2015] O.J. No. 1629

2015 ONSC 1716

Court File No.: CR-13-119

 Ontario Superior Court of Justice

R. Leroy J.

Heard: February 23, 24 and 26, 2015.
Judgment: April 2, 2015.

(40 paras.)

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·       R. LEROY J.:-- 

Introduction

1     The Crown theory is that the accused was knowingly complicit in an organization formed to smuggle humans across the US-Canada border, crossing the river at Cornwall for transport to Toronto. To the extent the accused lacked specific details, the Crown contends he was wilfully blind to them. Few facts are in dispute. There was an organization. Its members knew the persons being smuggled did not have the required documentation. Their purpose was to circumvent border-crossing process. It is an offence under the Immigration and Refugee Protection Act, SC 2001, c. 27 (IRPA) to facilitate entry to Canada of persons without examination by an officer -- s. 18, without timely appearance before an officer at a port of entry and without visas or passports -- s. 117. The pertinent legislation is summarized in Appendix A to these reasons.

2     Authorities on both sides of the border were aware of the organization and of this delivery. The humans were of Nigerian origin. The members of the organization were unaware the area around the delivery location was closely monitored by members of the Cornwall Regional Task Force.

3     The accused's older brother was a member of the organization. This was not his first assignation. He awaited delivery by motorboat in a decrepit motel directly across the street from the delivery dock. His role was to receive the illegals from the dock, escort them across street to his vehicle and drive them to Toronto. He did this for the sum of $400.00.

4     The plan on May 24, 2012 required two vehicles for carriage to Toronto.

5     The brother occupied a room two doors north of the south end of the motel on the second floor. The closest police surveillance sourced from two officers occupying the most southerly room on the same floor -- two doors down. Delivery to the dock awaited arrival of the second transport motor vehicle. The second vehicle, operated by the accused, arrived at the motel shortly after 23:00 hours.

6     The six Nigerians entered Canada without required documents and appearances before an officer or attendance at the closest port of entry were not considerations.

7     These are specific intent offences. In addition to the acts and defaults involved in organizing, inducing, aiding or abetting the person to enter Canada without required documents or appearing before an officer, the Crown is required to prove that the accused knew or was wilfully blind to the fact that:

·       i. 

The passengers did not have the requisite documents; 

·       ii. 

The passengers failed to appear before an officer or attend at the nearest port of entry to do so. 

8     The brother pled guilty to these offences. The statement of fact with minor revisions filed to ground conviction on his guilty plea was submitted as agreed fact in the trial. The accused denies the requisite knowledge. He denies knowingly inducing, aiding or abetting the entry into Canada of the Nigerians without documents or reporting.

The Accused

9     Mr. Alli testified. He is 35, married with one child. He resides in North York with his in-laws. His brother resides in Mississauga. At the time, Mr. Alli worked as a tow truck driver. Today he works in building maintenance.

10     Mr. Alli was born in Canada and raised in Guyana. He returned to Canada at age 15 in the care of his brother. By the age of 20 years, Mr. Alli began amassing a criminal record. He encountered nine separate sets of convictions between 1999 and March 2005, four in 1999 and one each in the years 2000, 2001, 2002, 2003 and 2005. He said, and the record does not refute his assertion, he committed to legal income sources over the ensuing seven plus years.

11     He confirmed a symbiotic working relationship with his brother. Mr. Alli has mechanical skills and his brother does motor vehicle bodywork. He said their relationship was conflicted when they operated as business partners. He thought their relationship improved after they dissolved their business. To his knowledge, his brother did not have a criminal record. He trusted the brother. His brother knew of Mr. Alli's criminal record and consequences of further infractions. They continued to assist each other as independent contractors. The business model involved motor vehicle rehabilitation for sale at affordable prices. Mr. Alli observed his brother had many Nigerian customers and seemed active in that community.

12     He said he worked his scheduled tow truck shift through the day on May 24, 2012. He received the first text from his brother around 12:00 noon. At trial, he understood his brother to ask him to give his people a ride back to the city. In his statement to police on May 25, 2012, he described the context as "Hey Man, I need a driver. Can you come help me?" He was to receive the sum of $100 and change for fuel. He had never been to Cornwall before. He talked with his spouse who wrote trip instructions. He did not appreciate the distance. The decision to make the drive was altruistic.

13     Mr. Alli emphasized the significance of the behavioural turnaround in his life. He expected that another conviction signified incarceration and was determined to conduct his affairs within legal parameters. He trusted his brother to honour that commitment and did not expect to be entangled in an illegal venture.

14     While en route to Cornwall, Mr. Alli could not help but hypothesize. It was a conundrum. He said he speculated about why his brother needed his assistance. He did not suspect anything illegal. In Mr. Alli's experience, the brother had not been so inclined. He associated Cornwall with tobacco and alcohol smuggling. There were texts between the brothers through the trip. The authorities had Mr. Alli's cell phone and said they would review the texts of the day forensically against his story. He was not questioned about the texts. I conclude his narrative is consistent with the text communications between brothers and there was nothing in those texts to suggest Mr. Alli had foreshadowing of participation in a human smuggling organization.

Events at the Monte Carlo Motel

15     Mr. Alli entered Cornwall along the east side, exiting from Highway 401 at Boundary Road, turning right at the Highway 2 intersection. It was shortly after twenty-three hundred hours and dark when he arrived. He parked beside his brother's vehicle, observed his brother on the balcony and climbed the stairs. Seth Lazore, another member of the organization was waiting. They had a cigarette, talked briefly about unrelated matters and Lazore departed. Mr. Alli and the brother remained on the balcony for a few minutes. The police officers could not hear the words spoken between them. Mr. Alli said it was then he was tasked to transport the passengers to Toronto.

16     In his statement, Mr. Alli said he learned of the passengers when he arrived at the motel. The brother left the balcony and went downstairs at 23:30. Mr. Alli went to the washroom for ablution. The boat dropped the passengers at 23:40 and departed by 23:42. By 23:51, the brother and passengers were loading the vehicles. Mr. Alli said he was interrupted in the washroom activities by his brother's knock on the door advising it was time to go. He recalled that when he left the room, the passengers assigned to his vehicle were well into the process of loading and seating. He went to the car and moved an infant into a car seat. He said this was an instinctively protective action learned from caring for his own child. He denied any role in loading the passengers' luggage. He confirmed the take down happened as soon as he entered the driver seat.

17     The statement of agreed fact - exhibit #14 states that the defendants assisted with loading passengers' luggage. Intelligence officer Gauthier said he observed both Allis loading passenger luggage. His notes recorded the brother and passengers loading the vehicles, omitting reference to Mr. Alli as participant in that task. He testified to independent recall of observing Mr. Alli load luggage. Mark Evans was coordinator and in steady communication with Officers Gauthier and Barkley -- his notes indicate the brother helped load vehicles but does not mention Mr. Alli.

Mr. Alli's Knowledge

18     Mr. Alli's version is he was unaware of the smuggling component. When he arrived in Cornwall, it was dark and the existence of the river contiguous to the roadway did not register. He was in the bathroom when the boat deposited the passengers on the dock and while they traversed the distance to the parked cars. He did not know the passengers entered Canada while he was in the washroom.

19     He said his brother assured him the venture was legitimate. His said his brother confirmed the passengers were good in the United States and presumed they were good in Canada -- statement Exhibit 13 page 10. He was apprised of the imminent arrival of the passengers. He was not explicitly apprised of the cross border aspect.

20     That take on the situation is belied by what he said later at page 37 of the statement. He said his brother told him "Some of them, they came from the States or whatever, but they don't have Toronto document but they have State paper or whatever. So they are legit in the State but not legit in Canada."

21     Mr. Alli decided to not ask more questions until they returned to Toronto. "Like I was going to wait until we reached back in Toronto and then figure it out...Because obviously I was going to ask him "What's going on?" But I was going to do it at ... when we're out of their faces."

22     The Crown position is this is dispositive admission of knowledge the passengers did not have the necessary documents to enter Canada and by implication knowledge they had not reported. If not actual knowledge, then dispositive admission of suspicion. There is no other reason for the discussion. Mr. Alli's explanation in trial testimony, to the point he understood his brother to say they were United States citizens thereby allowing the inference they had the right to be in Canada, obfuscated the plain admission. The submission is if that was what he thought he should have said as much in the statement. He reported his brother to say "I am picking up some Nigerian people -- Drop them in Toronto for me." The Crown submission is that the descriptors "Nigerian people" and United States citizen are mutually exclusive.

23     The defence position is Mr. Alli was candid. He assisted his brother with many endeavors. The impression is they viewed their respective skill sets as symbiotic. His first words to the brother on arrival were "What do you have for me brother?" There were no indicators of counter-surveillance. They talked openly on the balcony. His trust in his older brother was forged over a lifetime and many transactions. This was not stranger-based intelligence. He knew his brother did business with Nigerian immigrant Canadians. He was in a strange place, unaware of the juxtaposition of the river and United States border. He was not entirely sure if he remained in Ontario.

24     Mr. Alli's engagement was different from those of Alli and Alzehrani -- R. v. Alzehrani 2008 CarswellOnt 6556 and R. v. Alli 2009 CarswellOnt 8881 where the organizations were sophisticated and their involvement repeated many times with supporting wiretap nexus to the accused. They were well paid. Mr. Alli undertook the drive as a favour for $100.00.

25     The passengers entered Canada without required documents and without attending before a border officer. The brother and Seth Lazore knew of these deficiencies. Their purpose was to breach ss. 117, 18, 124 and 131 of the IRPA.

26     The issue is whether or how much the accused knew about it. There is no direct evidence Mr. Alli knew anything about this organization before the brief discussion with his brother on arrival at the motel after Mr. Lazore departed or that he knew the travelers were brought into Canada while he was attending to his needs in the washroom after his brother departed. He was unfamiliar with the terrain and environ and it is unlikely he knew of the juxtaposition of the river, island and motel. I agree with Mr. Stauffer's observation to the point that the officers, and for that matter anyone living near the river, would recognize the sound of the motor boat for what it was, but the same sound insulated by the motel and washroom activities would not necessarily register.

27     I accept that when Mr. Alli exited the motel room, the loading process was well underway and his activity was limited to adjusting the infant in the car seat.

Has the Crown established beyond a reasonable doubt that Mr. Alli either knew or was wilfully blind to the fact he was assisting human smuggling into Canada by delivering them to Toronto?

28     The Crown argues that Mr. Alli knew or suspected the purport of the undertaking. His brother told him the passengers had documentation for presence in the United States but not Canada.

29     There is no onus on Mr. Alli to prove anything. The onus remains throughout on the prosecution. He began the trial presumed innocent.

30     I accept there is a solid evidentiary foundation to support the conclusion that until the discussion with his brother on the balcony, Mr. Alli was legitimately unaware of the organization and conspiracy. He trusted the brother. He knew nothing about the plan. He did not know about the juxtaposition of the river, the island, the border and the dock. He would not connect the sound, if he discerned it at all, of the motorboat. But for the brother's advice he would not connect the timely arrival of the passengers to human smuggling.

31     Wilful blindness substitutes actual knowledge when knowledge is a component of mens rea. To satisfy the requirements of wilful blindness, the Crown must establish Mr. Alli had 1) a subjective realization; 2) of the likely result of his actions; and 3) deliberately avoided actual knowledge while engaging in or pursuing the activity: R. v. Harding (2001), 2001 CanLII 21272 (ON CA), 57 O.R. (3d) 333 (Ont. C.A.). Mr. Alli must have had a real suspicion in his mind that caused him to see the need for inquiry. Culpability can rest on a finding of deliberate ignorance: R. v. Legace (2003), 2003 CanLII 30886 (ON CA), 181 C.C.C. (3d) 12 (Ont. C.A.) at para. 26 and 28.

32     In R. v. Sansregret, [1985] CarswellMan 176 (S.C.C.) the Supreme Court cited Granville Williams (Criminal Law: The General Part, 2nd ed. 1961, at pp. 157-160):

·       Knowledge, then, means either personal knowledge or (in the license cases) imputed knowledge. In either event there is someone with actual knowledge. To the requirement of actual knowledge there is one strictly limited exception. Men readily regard their suspicions as unworthy of them when it is to their advantage to do so. To meet this, the rule is that if a party has his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge. 

...

·       In other words, there is a suspicion which the defendant deliberately omits to turn into certain knowledge. This is frequently expressed by saying that he "shut his eyes" to the fact, or that he was "willfully blind". 

33     Granville Williams warned that wilful blindness has narrow application.

·       The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law. It is, at the same time, an unstable rule, because judges are apt to forget its very limited scope. A court can properly find willful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realized probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice. Any wider definition would make the doctrine of willful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge. 

34     In summary, mens rea may be established through the use of the wilful blindness doctrine. It is not sufficient to establish the accused ought to have known. The evidence must establish suspicion combined with a conscious decision to refrain from inquiry. An accused cannot deliberately remain ignorant and thereby escape criminal responsibility.

35     This is not a credibility case where the analysis revolves on the credibility of exculpatory explanation.

36     If the only evidence of knowledge derived from the circumstances, including the fairly obvious clandestine context or the anomaly that was Seth Lazore, Mr. Alli's decision might well be seen as negligent. He might have asked about why middle of the night, or why they needed a ride instead of public transit or why his brother was involved at all. It smelled covert but could be negligence and not wilful blindness.

37     The direct evidence of Mr. Alli's knowledge came from him. He knew passenger documentation was problematic and there is the inescapable inference these passengers did not attend before a border officer or to a port of entry. If that is not enough for the requisite knowledge, the fact is he was suspicious. He intended to make further enquiry when they got to Toronto. His window for reflection was brief. He was tired and a long way from home. His brother was less than forthcoming on details. He trusted the brother to keep him safe. It was easier to take the chance and go along with the plan than to ask questions and disrupt the plan. He did not consider the ramifications. It was the wrong decision. Once he heard about documentary deficiencies directly probative to the legitimacy of his part of the undertaking he was on notice. If that notice informed less than actual knowledge and his suspicions aroused as he said, he was obliged to inquire and chose not to because he did not want to know the truth. He preferred to remain deliberately ignorant of the truth.

38     That was not negligence. His brother told him about the passengers' documentary deficiencies and he knew it was a clandestine undertaking. Closing his mind to the implications of his real suspicions was wilful blindness.

39     The Crown proved from his own words he knew that by driving these passengers to Toronto he was aiding in an offence under the IRPA. If such knowledge lacked certainty and particulars at the time he did, in fact, harbour real suspicion and chose to close his eyes to inquiry and the implications.

40     I conclude Mr. Alli is guilty as charged and convictions are entered.

R. LEROY J.