Court File and Parties

Citation: R. v. Plaha, 2008 ONCA 96 Date: 2008-02-12 Docket: C46384

Court of Appeal for Ontario Before: Laskin, Rosenberg and LaForme JJ.A.

Between: Her Majesty the Queen (Appellant) and Harinderpal Singh Plaha and Gurmeet Singh Malhi (Respondents)

Counsel: Kevin Wilson for the appellant Daniel Scott and Roland Schwalm for the respondent

Heard: January 28, 2008

On appeal against acquittal by Justice Joseph G. Quinn of the Superior Court of Justice dated November 22, 2006.

Endorsement

[1] The Crown’s case that the respondents knew of the presence of the drugs depended on the inferences to be drawn from two facts: the presence of the drugs in the trailer and the demeanour evidence being the manner in which the trailer was backed into the customs inspection dock. While the Crown’s case was thin, in our view, the trial judge erred in directing a verdict of acquittal.

GROUNDS OF APPEAL

[2] Mr. Wilson for the Crown submitted that the trial judge made two errors. He applied the rule in Hodge’s Case (1838), 1838 CanLII 1 (FOREP), 2 Lewin 227, 168 E.R. 1136, at the directed verdict stage and he erred in finding that there was no evidence upon which a properly instructed trier of fact could convict.

[3] Mr. Wilson conceded, however, that his main point was the latter one. We therefore return to the inferences to be drawn from the two pieces of evidence.

(1) Demeanour Evidence

[4] The first piece of demeanour evidence is the difficulty the respondents had in backing up the truck, which was argued to indicate nervousness. Both respondents made several attempts to back up the truck. However, one of the respondents was in fact not qualified to back up the truck and there was evidence that this particular rig was difficult to back up. More importantly, the other demeanour evidence neutralized the impact of this evidence. Throughout their face-to-face contact with the customs agents, the respondents displayed no signs of nervousness or apprehension.

[5] Demeanour evidence is the kind of evidence that is particularly subject to the limited weighing available even on a directed verdict. Considered as a whole, the demeanour evidence did not tend to establish that the respondents were aware of the contraband hidden in the trailer.

(2) Presence of Drugs

[6] The other piece of evidence relied upon by the Crown is the presence of the drugs in the trailer. The Crown argues that an inference of knowledge can be drawn from the fact that it is unlikely a trafficker would entrust a large quantity of drugs to people who were unaware of their presence.

[7] There is much to be said for the respondents’ argument that this inference cannot be drawn in this case. The drugs were well hidden in the trailer in locked bags to which the respondents did not have keys. The documentary evidence establishes that the respondents did not have access to the trailer during the loading operations. Moreover, the bags themselves contained mostly fake bricks of cocaine. It could well be argued that whoever placed the drugs in the trailer was not placing any trust in the respondents.

[8] On the other hand, the trailer was unlocked and therefore the respondents, who had exclusive control of it except during the loading operations, had access to the contents of the trailer. We cannot say that the inference sought to be drawn by the Crown is unreasonable.

CONCLUSION

[9] We agree with the trial judge that inferences other than knowledge could be drawn from the undisputed facts. However, that was for the trier of fact at the conclusion of all the evidence. As McLachlin C.J.C. said in R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.) at para. 23:

The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt. [Italics in original, underline added.]

[10] Accordingly, the appeal is allowed, the acquittals set aside and a new trial ordered.

Signed: John Laskin J.A. M. Rosenberg J.A. H.S. LaForme J.A.