COURT OF APPEAL FOR ONTARIO
Laskin, Gillese and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
Drago Knezevic
Respondent
Thomas Lemon and Sam Siew, for the appellant
James Lockyer and Alexander Ostroff, for the respondent
Heard: September 26, 2016
On appeal from the acquittal entered on February 27, 2015 by Justice Thomas Carey of the Superior Court of Justice, sitting without a jury.
1Mr. Knezevic (the “respondent”) drove a transport truck loaded with raspberries from Oxnard, California to an intended destination of Etobicoke, Ontario. When Canada Border Services Agency (“CBSA”) officers opened the trailer of the respondent’s truck at the Ambassador Bridge border crossing in Windsor, Ontario, they immediately saw two suitcases on top of the skids of raspberries. Together, the suitcases contained 39 kilograms of cocaine.
2The respondent was charged with importing and possessing cocaine for the purpose of trafficking.
3At a judge-alone trial, the respondent testified. The defence position was that the respondent was a “blind courier”. He was acquitted.
4The Crown appeals.
5For the reasons that follow, I would allow the appeal and order a new trial.
BACKGROUND IN BRIEF
6The respondent arrived at the Ambassador Bridge border crossing in Windsor on June 10, 2011, with 39 kilograms of cocaine in the trailer of his truck. The cocaine was in two suitcases that were atop of skids of raspberries that he was transporting.
7He was the sole occupant and driver of the truck.
8The respondent was processed at the border starting at about 4:00 p.m. He declared that he had been away for ten days and that he had one carton of cigarettes. His shipment was randomly selected by the computer for a secondary inspection. He was directed to a secondary on-site inspection area.
9When the CBSA officer searched the cab of the respondent’s truck, she found two cartons of cigarettes. This caused the officer searching the truck to be suspicious of the respondent. So, too, did the fact that there was clothing in the cab of the truck in transparent plastic bags, which was something out of the ordinary. When the officer questioned the respondent about his apparently false declaration of one carton of cigarettes, he appeared very nervous. The officer directed the respondent to the off-site secondary inspection area.
10At the off-site inspection area, the respondent spoke with a different CBSA officer and confirmed that he had placed the seal on the doors of his truck.
11Under the supervision of several CBSA officers, the respondent backed his truck up to the loading dock, cut the seal and opened the trailer doors. When the doors of the truck were opened, the officers immediately saw the luggage atop of the skids of raspberries.
12When questioned by the CBSA officers, the respondent said the luggage was not his. He said that he had put the seal on the trailer at the “shipper’s” but that he “didn’t look up.” One of the two load bars was in place but the other was adjacent to the suitcases, which was inappropriate because it could damage the berries.
13The appellant was arrested and the truck was searched. In the truck cab, a CBSA officer found two unused seals from the company for which the appellant worked, one of which appeared to have been tampered with. The officer also found a notepad with the notation “18 + 21 = 39” on its face. Those figures correspond exactly to the number of bricks of cocaine found in each piece of luggage – 18 bricks of cocaine (17.86 kg) were in one suitcase and 21 bricks of cocaine (20.96 kg) were in the other, for a total of 39 bricks of cocaine.
14The search of the truck cab revealed a receipt from Ontario, California, dated June 6, 2011, in the name of “Jesus Gonzalez” and a box of disposable nitrile gloves.
15At trial, evidence was led that showed that, in his log books, the respondent had considerably underreported the length of the stop he made in Ontario, California.
16The Crown also led evidence which suggested that it would have been unlikely that the luggage was loaded on the truck at the same time as the berries.
17The berries were loaded at a facility of Western Pre-Cooling in Oxnard, California. Although video footage from cameras in the loading area was created, it was not available at trial because by the time the United States Drug Enforcement Administration requested it, on behalf of the RCMP, the video footage had already been erased.
18The respondent testified at trial. He said that while the berries were being loaded onto his truck, he watched part of the procedure but left for about 15 minutes to put on warmer clothes. When he returned, the truck was loaded and he opened the loading dock door to place the load bars. He said that he put one of the two load bars on top of the load, but not positioned as the Windsor officers found it. He denied seeing the luggage on the load when he put on the load bars. After affixing the load bars, the respondent said that he went to an office to do paperwork for about 20 minutes. After that, he drove the truck away from the dock, got out and closed the trailer doors, and placed the seal on the doors. He denied seeing the luggage while doing this.
19Evidence from the respondent’s employer indicated that drivers were supposed to check the temperature of the product with a “pulp meter”. The respondent denied that he checked the temperature of the product, even though he had sent a pulp temperature reading to his employer. The respondent said that he merely repeated the temperature listed on the bill of lading.
20The respondent said the first time he ever saw the luggage in the trailer was at the secondary inspection site in Windsor. He said that the notation “18 + 21 = 39” on the notepad in the cab of his truck referred to toll amounts that he had paid on a prior trip and that he used nitrile gloves when he handled food.
21When asked about the receipt in the name of Jesus Gonzalez, found in the cab of his truck, the respondent denied that he had met with anyone in Ontario, California before leaving for Oxnard.
22The respondent brought a Charter application in which he sought a stay of proceedings. He argued that the RCMP was negligent in requesting the video camera evidence from the Western Pre-Cooling warehouse in Oxnard. He also sought to exclude the evidence of Mike Thompson, the operations manager at Western Pre-Cooling in California responsible for reviewing the security camera footage on a daily basis.
23The sole issue at trial was whether the respondent knowingly imported the cocaine. The defence position was that the respondent was a “blind courier”.
24The trial judge acquitted the respondent and, consequently, found it unnecessary to deal with the Charter application. However, he went on to find that there had been no fault on the part of the RCMP in their handling of the request for the video.
THE ISSUES
25The Crown submits that the trial judge erred by:
making findings of fact for which there was no evidence; and
failing to consider the evidence as a whole to determine whether guilt had been proved beyond a reasonable doubt.
ISSUE #1 FINDINGS OF FACT FOR WHICH THERE WAS NO EVIDENCE
26In my view, the trial judge erred by making findings of fact based on speculation. As I would order a new trial in this matter, I will point to but a single example of this.
27In his reasons for judgment, the trial judge stated:
Given the frequency of car and [truck-jackings] in North America, the easily ascertainable route that this truck would take and the likelihood of stops on the way, I cannot conclude that only [the respondent] would be in a position to retrieve the drugs.
28There was no evidence before the trial judge of the frequency of car and truck hijackings in North America. Nor was there evidence that the route the truck would take from California to the warehouse in Etobicoke was “easily ascertainable”. Accordingly, those findings were speculative. It is an error of law to make a finding of fact for which there is no supporting evidence: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 25.
29The trial judge relied on these findings of fact for his conclusion that the respondent was not the “only” person who would be in a position to retrieve the drugs. The significance of that conclusion to the trial judge’s ultimate determination is readily apparent when considered in the context of the defence advanced at trial, namely, that the respondent was a blind courier.
ISSUE #2 FAILING TO CONSIDER THE EVIDENCE AS A WHOLE
30The Crown submits that the trial judge erred by failing to consider all of the evidence in relation to the ultimate issue of guilt by using a piecemeal approach.
31I agree. This, too, is an error of law that warrants appellate intervention at the instance of the Crown: J.M.H., at para. 31.
32By considering, in turn, whether each of the respondent’s exculpatory explanations for a particular piece of Crown evidence could reasonably be true, the trial judge effectively required the Crown to prove each individual piece of evidence beyond a reasonable doubt. It is an error of law to subject individual pieces of evidence to the standard of proof beyond a reasonable doubt: J.M.H., at para. 31; and R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345, at p. 359.
33In paragraph 63 of the Crown’s factum, several examples of this in the trial judge’s reasons are set out. The following draws heavily from that. The emphasis in the quotations are those of the Crown.
While at first blush the numbers 18 and 21 equals 39 on a sheet in plain view in the cab seems an unlikely coincidence, [the respondent’s] explanation that the number relates to tolls is supported by the writing beside it (tools for tolls) and a previous receipt for $18 from the Kansas Turnpike.
I don't reject his evidence because he has no receipts given the disorganization of the cab at the time it was searched.
I cannot rule out, on the evidence before me, that [the luggage filled with cocaine was] placed there at the Western refrigeration warehouse. I do not accept the Crown’s assertion that this happening was a near impossibility.
I do not think it was likely that this cocaine was destined to be unloaded at the Metro warehouse in Toronto, but I cannot dismiss as completely unlikely that the opening of the truck and removal of the bags without the accused driver’s consent or knowledge or both would be beyond any reasonable possibility.
Given the frequency of car and [truck-jackings] in North America, the easily ascertainable route that this truck would take and the likelihood of stops on the way, I cannot conclude that only Mr. Knezevic would be in a position to retrieve the drugs.
I cannot conclude that the presence of the latex gloves were out of the ordinary or only consistent with an intent by the accused to hide his fingerprints.
34While it was appropriate for the trial judge to consider each piece of evidence individually, he also had to consider the cumulative effect of the evidence as a whole. Although the trial judge twice stated that he was considering the evidence as a whole, on a full and fair reading of his reasons, I do not see that was ever done. This was legal error: J.M.H., at para. 31.
DISPOSITION
35It is clear that the trial judge’s legal errors affected his verdict of acquittal. Accordingly, I would allow the appeal and order a new trial.
Released: December 2, 2016 (“E.E.G.”)
“E.E. Gillese J.A.”
“I agree. John Laskin J.A.”
“I agree. David Watt J.A.”
