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
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.
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.)
·
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.
