Her Majesty the Queen v. Singh

[Indexed as: R. v. Singh]

Ontario Reports

Court of Appeal for Ontario,

Laskin, Cronk and Blair JJ.A.

November 10, 2014

122 O.R. (3d) 481 | 2014 ONCA 791

Case Summary

Criminal law — Evidence — Expert evidence — Commercial truck driver convicted of importing cocaine after 53 kilograms of cocaine were discovered hidden in his legitimate cargo — Accused's knowledge of cocaine being central issue at trial — Expert police report addressing use of commercial vehicles for transportation of contraband admitted at trial — Report containing case-specific opinions concerning accused's credibility and his knowledge of presence of cocaine — Statements that accused had ties to organized criminal group and had knowledge of cocaine being inadmissible as they did not meet necessity criterion for admissibility of expert evidence — Trial judge erring in relying on that evidence in reaching his conclusion that accused knew about cocaine — Curative proviso not applying.

The accused, a commercial truck driver, was charged with importing cocaine and possession of cocaine for the purpose of trafficking after Canada Border Services officials discovered 53 kilograms of cocaine concealed in a load of electronic games in his trailer. The accused testified at trial and denied any knowledge of the cocaine. The Crown adduced an expert police report addressing the use of commercial vehicles for the transportation of contraband. The report was admitted without objection, but defence counsel indicated that she would call evidence to attack some of the factual underpinnings of the report. In addition to offering opinions of a general nature, the report contained case-specific opinions, some of which bore directly on the accused's credibility and his alleged knowledge of the cocaine. The accused was convicted and was sentenced to 12 years' imprisonment. He appealed.

Held, the conviction appeal should be allowed.

Per Cronk J.A. (Blair J.A. concurring): The police expert's general opinions concerning the involvement and activities of organized criminal groups and drug couriers in the illegal transportation of contraband, and his opinions regarding normal trucking industry practices, were admissible. However, his case-specific opinions on the accused's alleged association with organized criminal elements, his knowledge of the cocaine in his trailer and his credibility strayed beyond the proper scope of expert evidence. Those opinions did not meet the necessity criterion for the admission of expert evidence and were highly prejudicial to the accused. The determination of whether the accused knew about the cocaine and whether his account of his activities was credible were not beyond the knowledge and experience of the trial judge. Nor were they technical or scientific matters requiring the assistance of an expert. The determination of those questions was squarely within the trial judge's expertise and domain. The trial judge's reasons indicate that he relied on the inadmissible evidence in concluding that the accused knew of the cocaine in his vehicle including explicit statements that he weighed the accused's account against the opinion of the expert. He also relied on the expert's claim that a criminal enterprise would not usually trust a blind courier with a highly valuable cargo of drugs; a conclusion which in turn was based on inadmissible fact-specific findings outlined in the expert's report. The curative proviso did not apply, as the Crown's circumstantial case was not so [page482] overwhelming that, notwithstanding the trial judge's serious error, the trier of fact would inevitably convict.

Per Laskin J.A. (dissenting): The trial judge gave several reasons for rejecting the accused's evidence. Only one reason relied on the expert's report and that was not based on the inadmissible portion of the report. The trial judge did not rely on the inadmissible evidence in convicting the accused, he only agreed with some of its conclusions.

If the trial judge erred by failing to hold a voir dire into the admissibility of the accused's statements to a border agent at the time of this arrest, the error was harmless as the trial judge did not rely on any of those statements. The trial judge did not err by failing to hold a voir dire into the qualifications of an interpreter, as there was no legitimate reason to doubt the interpreter's qualifications. The trial judge was entitled to take the accused's demeanour into account in assessing his credibility. Even if he erred in his reliance on the accused's demeanour, it was not plausible to conclude that he would have made a different credibility finding had he not erred. The accused's demeanour was not at all the primary basis for rejecting his evidence. The appeal against conviction should be dismissed.

The accused was a first offender, was only 29 years old at the time of the offence, had worked steadily to support his family and received a very positive presentence report. In view of his personal circumstances, justice would be done by imposing a nine-year sentence less four months' credit for presentence custody.

R. v. Sekhon, [2014] 1 S.C.R. 272, [2014] S.C.J. No. 15, 2014 SCC 15, 2014EXP-658, J.E. 2014-341, EYB 2014-233391, 351 B.C.A.C. 1, 8 C.R. (7th) 223, 307 C.C.C. (3d) 464, 367 D.L.R. (4th) 601, 454 N.R. 41, 112 W.C.B. (2d) 45, consd

Other cases referred to

R. v. Abbey (2009), 97 O.R. (3d) 330, [2009] O.J. No. 3534, 2009 ONCA 624, 68 C.R. (6th) 201, 254 O.A.C. 9, 246 C.C.C. (3d) 301; R. v. Couture, [2009] O.J. No. 5822, 2009 ONCJ 655; R. v. Cunningham (1996), 1996 CanLII 1311 (ON CA), 27 O.R. (3d) 786, [1996] O.J. No. 448, 88 O.A.C. 143, 104 C.C.C. (3d) 542, 30 W.C.B. (2d) 74 (C.A.); R. v. D. (D.), [2000] 2 S.C.R. 275, [2000] S.C.J. No. 44, 2000 SCC 43, 191 D.L.R. (4th) 60, 259 N.R. 156, J.E. 2000-1894, 136 O.A.C. 201, 148 C.C.C. (3d) 41, 36 C.R. (5th) 261, 47 W.C.B. (2d) 311; R. v. Davis, 1995 ABCA 188, [1995] A.J. No. 427, 165 A.R. 243, 98 C.C.C. (3d) 98, 27 W.C.B. (2d) 99 (C.A.); R. v. François, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827, [1994] S.C.J. No. 66, 116 D.L.R. (4th) 69, 169 N.R. 241, J.E. 94-1147, 73 O.A.C. 161, 91 C.C.C. (3d) 289, 31 C.R. (4th) 201, 24 W.C.B. (2d) 108; R. v. I. (D.A.), [2012] 1 S.C.R. 149, [2012] S.C.J. No. 5, 2012 SCC 5, 280 C.C.C. (3d) 127, 427 N.R. 4, 2012EXP-596, J.E. 2012-326, 345 D.L.R. (4th) 385, 89 C.R. (6th) 221, 288 O.A.C. 1, 99 W.C.B. (2d) 328; R. v. J. (J.- L.), [2000] 2 S.C.R. 600, [2000] S.C.J. No. 52, 2000 SCC 51, 192 D.L.R. (4th) 416, 261 N.R. 111, J.E. 2000-2140, 148 C.C.C. (3d) 487, 37 C.R. (5th) 203, 47 W.C.B. (2d) 591; R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36, 114 D.L.R. (4th) 419, 166 N.R. 245, J.E. 94-778, EYB 1994-67655, 71 O.A.C. 241, 89 C.C.C. (3d) 402, 29 C.R. (4th) 243, 23 W.C.B. (2d) 385; R. v. Niemi, [2012] O.J. No. 869, 2012 ONCA 133, affg [2008] O.J. No. 5830 (S.C.J.); R. v. Perlett (2006), 2006 CanLII 29983 (ON CA), 82 O.R. (3d) 89, [2006] O.J. No. 3498, 214 O.A.C. 264, 212 C.C.C. (3d) 11, 71 W.C.B. (2d) 210 (C.A.); R. v. Rybak (2008), 90 O.R. (3d) 81, [2008] O.J. No. 1715, 2008 ONCA 354, 236 O.A.C. 166, 171 C.R.R. (2d) 306, 283 C.C.C. (3d) 58, 78 W.C.B. (2d) 151 [Leave to appeal to S.C.C. refused [2008] S.C.C.A. No. 311]; [page483] R. v. S. (N.), [2012] 3 S.C.R. 726, [2012] S.C.J. No. 72, 2012 SCC 72, 290 C.C.C. (3d) 404, 297 O.A.C. 200, 437 N.R. 344, 2013EXP-15, J.E. 2013-8, EYB 2012-215586, 353 D.L.R. (4th) 577, 98 C.R. (6th) 1, 104 W.C.B. (2d) 824; R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, [1987] S.C.J. No. 36, 40 D.L.R. (4th) 435, 75 N.R. 321, [1987] 5 W.W.R. 1, J.E. 87-810, 15 B.C.L.R. (2d) 273, 34 C.C.C. (3d) 97, 58 C.R. (3d) 193, 31 C.R.R. 193, 2 W.C.B. (2d) 303; R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951, [1994] S.C.J. No. 16, 117 D.L.R. (4th) 7, 170 N.R. 81, 133 N.S.R. (2d) 81, 92 C.C.C. (3d) 218, 32 C.R. (4th) 34, 23 C.R.R. (2d) 32, 24 W.C.B. (2d) 308

Statutes referred to

Canadian Charter of Rights and Freedoms, s. 14

Criminal Code, R.S.C. 1985, c. C-46, s. 655, 686(1) (b)(iii)

APPEAL by the accused from conviction entered on June 27, 2012 and the sentence imposed on December 3, 2012 by Donohue J. of the Superior Court of Justice, sitting without a jury.

Paul Burstein, for appellant.

Kevin Wilson, for respondent.

CRONK J.A. (BLAIR J.A. concurring): —

A. Introduction

[1] In December 2009, officials of the Canada Border Services in Sarnia, Ontario discovered approximately 53 kg of cocaine concealed in a load of electronic games contained in a commercial trailer driven by the appellant, a long-haul truck driver. The appellant was arrested and charged with importing cocaine and possession of cocaine for the purpose of trafficking. After a trial by judge alone, he was convicted of both offences. He was sentenced to 12 years' imprisonment, less four months' credit for presentence custody.

[2] The appellant appeals from his convictions, seeks leave to appeal sentence and, if leave is granted, appeals against his sentence.

B. Background

(1) The arrest

[3] On December 3, 2009, the appellant drove a load of salt from Ontario to Michigan. The next day, he picked up a load of electronic games in Redford, Michigan. He drove to the Canada/ United States border, arriving that evening at the Blue Water Bridge near Sarnia for entry into Canada.

[4] Canadian border officials conducted an X-ray examination of the appellant's load, which revealed an anomaly in the contents of the appellant's trailer. The appellant was directed to open the trailer and did so by breaking a metal seal on the trailer's [page484] unlocked rear doors. On physical inspection of the interior of the trailer, approximately 53 kg of cocaine were discovered in two boxes secreted among the games pallets in the trailer. Border officials also found footprints on the games packages and fingerprints on the drug packaging, none of which matched those of the appellant. The appellant was arrested and charged with importing cocaine and possession of cocaine for the purpose of trafficking.

(2) The trial

[5] At trial, the central issue was whether the appellant knew the cocaine was in the trailer. Also in dispute were the circumstances of the loading of the trailer in Redford, the appellant's actions between Redford and the border, the circumstances surrounding the unsealing of the trailer, the admissibility of statements allegedly made by the appellant to a Canadian border official on arrest and the appellant's conduct on arrest.

[6] There is no dispute that the appellant's trailer was fully loaded in Redford by 2:30 p.m. and that he arrived at the border about four hours later, at approximately 6:35 p.m., on the evening of December 4.

[7] The Blue Water Bridge is located about 75 miles from Redford. The Crown led evidence at trial that the estimated travel time between Redford and the bridge was either one hour and ten minutes or one hour and 48 minutes, depending on the chosen travel route. The appellant's log and various shipping documents were seized at the border. According to his log entries, he crossed the bridge approximately three and one-half hours after departing from Redford.

[8] The Crown tendered two expert police reports at trial, in lieu of calling the experts to testify. The first report concerned the estimated value of the seized cocaine. The appellant does not challenge the admission of this report or the trial judge's treatment of it.

[9] The second report, authored by Sergeant Robert Ruiters of the Royal Canadian Mounted Police (the "RCMP"), addressed the use of commercial vehicles for the transportation of contraband, including drugs (the "Ruiters report"). The propriety of the trial judge's reliance on certain of the opinions expressed in this report is the main issue on appeal.

[10] The appellant testified at trial. He denied any knowledge of the cocaine in his trailer. He claimed that he did not observe the loading of his truck in Redford, that he remained in the cab of his truck during the loading and did not count the load, that an unidentified man placed the seal on the trailer in Redford [page485] after it was loaded, and that he signed various shipping documents on request at Redford without looking into the trailer.

[11] The appellant also testified about his activities between the time his trailer was fully loaded in Redford, at 2:30 p.m., and his arrival at the Blue Water Bridge, at approximately 6:35 p.m., on December 4. He admitted that he had falsified his log entries during this critical period, concerning both the number and length of times he was out of his truck prior to arriving at the border.

[12] The appellant also said that, after breaking the seal on his trailer doors for customs officials at the Blue Water Bridge, he discarded the broken seal by throwing it to the ground. He could not account for the whereabouts of the broken seal, or for the fact that a seal found by customs officials inside his truck bore a different number than the discarded seal from the rear doors of the trailer.

[13] The trial judge disbelieved the appellant's account of events and his professed ignorance of the presence of the cocaine in his trailer. He identified numerous concerns with the appellant's testimony and, based on the cumulative effect of these concerns, concluded that the appellant was not credible and that his evidence did not lead to a reasonable doubt about his culpability. On the evidence that he did accept, including Sgt. Ruiters' opinion evidence, the trial judge was satisfied as to the appellant's guilt beyond a reasonable doubt on both charges.

[14] Accordingly, the trial judge convicted the appellant of both offences and sentenced him to 12 years' imprisonment, less four months' credit for presentence custody.

C. Conviction Appeal

[15] The appellant raises several grounds in support of his conviction appeal. In my view, it is necessary to address only one of those grounds for the disposition of this appeal, namely, the appellant's contention that the trial judge erred by failing to confine his use of Sgt. Ruiters' opinion evidence to the proper limits of that evidence.

(1) The expert evidence

[16] Sergeant Ruiters is the national program manager and coordinator of a national highway criminal interdiction and contraband seizure program operated by the RCMP and other Canadian law enforcement agencies. His report was admitted at trial without objection by the defence on the basis that the appellant intended to testify and, as defence counsel put it, would "[present] evidence in due course in order to address some of the factual premises laid out . . . within the report". Sergeant Ruiters' [page486] qualifications to offer the opinions contained in the Ruiters report were accepted by the defence. Sergeant Ruiters did not testify and was not cross-examined on the contents of the Ruiters report.

(a) The general expert evidence

[17] In his report, Sgt. Ruiters offered several opinions of a general nature about the overland transportation of illegal commodities. In particular, the Ruiters report detailed Sgt. Ruiters' opinions concerning (1) the use of commercial vehicles by organized criminal groups to transport large amounts of contraband, particularly drugs; (2) the role of drug couriers used by such groups to facilitate the transportation and delivery of contraband; and (3) what Sgt. Ruiters described as "normal trucking industry practices".

[18] With respect to the involvement of organized criminal groups in the transportation of contraband, Sgt. Ruiters stated:

the movement of contraband is a business -- albeit an illegal business. Therefore, criminal organized groups usually do not entrust valuable commodities to someone who is unproven or unreliable -- just as a major legitimate business would not trust valuable commodities to someone unproven or with no experience of previously displayed skills.

the movement of 53+ kgs. of contraband (cocaine) is significant and believed to be tied to an organized criminal group.

[19] As to the participation of drug couriers in the movement of contraband on behalf of organized criminal groups, Sgt. Ruiters said:

the drug courier needs to be someone whom [sic] is considered reliable and trustworthy by the organization to ensure safe and on-time delivery of the contraband.

an organized criminal group would not usually trust someone with a load of 53 kg of cocaine unless they have proven themselves reliable or trustworthy. Most commonly, this reliability would likely have been proven by making previous deliveries of smaller amounts and/or previous criminality within the group.

all members involved in criminal groups have roles and responsibilities within the group and are held accountable within this group. Therefore, the person who recruits/ hires the actual drug courier needs to know that this person will deliver the contraband on-time and therefore must establish control of this courier. This control comes by clear instruction of delivery and understanding of risks of failure to follow these directions. Therefore in order for there to be control over the driver, the driver must have knowledge of the duties expected of him/her. The drug courier is also held accountable for the contraband load and its delivery. [page487]

the drug courier would have knowledge of the contraband aboard the vehicle so that he would know to retrieve or safeguard the drugs should the vehicle break down or be involved in a collision.

in order for a commercial vehicle to be loaded with contraband after the legitimate load, the driver must stop after legitimate loading and, either be the one to load the vehicle with contraband or, entrust the vehicle to someone else who then facilitates the loading of contraband.

[20] With respect to "normal trucking industry practices", Sgt. Ruiters' evidence included the following:

the normal trucking industry practices however show that once a legitimate load is loaded that the driver has an expectation upon them to immediately leave for their destination point for their legitimate delivery. The legitimate driver accepts responsibility to deliver this legitimate freight to its destination.

[a]ll legitimate truck drivers would not, therefore, surrender their vehicle, after loading, to someone else, even temporarily. This is inconsistent with normal practices and goes against the normal trucker's responsibility of ensuring proper transportation of the legitimate load. Should a driver surrender his/her vehicle to someone else temporarily (that is not the normal legitimate shipper for a legitimate load) he/she would have known, or ought to have known, that it was being loaded with illegal cargo.

as the contraband must be removed prior to the off-loading of the legitimate load, the driver must stop or deviate from the normal expected destination of the legitimate load to enable the contraband off-loading. In order for this to occur the driver must have knowledge of the contraband aboard.

(Emphasis in original)

(b) The case-specific expert evidence

[21] As I have said, the opinions described above were general in nature. Although they touched in part on a commercial truck driver's suggested knowledge of the contents of cargo loaded in his or her vehicle and, hence, on the likelihood of the driver's knowledge of any illegal contraband contained in his or her loaded cargo, they were not directed at the actual circumstances of the appellant's case or his alleged knowledge of the drugs ultimately found in his vehicle.

[22] However, Sgt. Ruiters also offered several case-specific opinions, some of which bore directly on the appellant's credibility and his alleged knowledge of the cocaine in his vehicle.

[23] First, Sgt. Ruiters expressed the view that the appellant's account of his activities between the time of the loading of his vehicle in Redford and his arrival at the border, which ostensibly accounted for the lapse of approximately four hours, was both [page488] inconsistent with normal industry trucking practices and based on falsified log entries. In this regard, Sgt. Ruiters stated:

The time in between is not accounted for. This is extremely inconsistent with normal trucking practices and very consistent with someone who was waiting for contraband to transport after having legitimate cargo loaded. His log books in this case are nonsensical, inaccurate and falsified.

(Underlined emphasis in original; italicized emphasis added)

[24] Sergeant Ruiters also offered the following key opinions:

[i]n this case, the driver claims that the shipper placed a lock and a seal on the rear doors of the trailer. However, at the time of inspection at the [Port of Entry], no lock was noted nor was the seal the same as was placed on by the shipper. This is further evidence that the trailer had been opened after being loaded with the legitimate load of electronics.

[f]urther, in this case, had the driver truly been unaware that the trailer had been entered after being loaded in Redford, he would have expressed concerns immediately to the CBSA officials once he realized that there was no longer a lock or company seal on his trailer when asked to open the trailer at the port. He did not do so thus indicating he was aware that it had been entered.

it is my opinion in this case that the driver, who was transporting a significant amount of contraband, has ties to an organized criminal group and had knowledge of the contraband aboard the trailer.

it is also my opinion that this driver arranged a legitimate load pickup with a purpose of having the "appearance of normal transportation" of cargo; or attempts to legitimize his real intent, which was the pick up and transportation of the cocaine.

(Emphasis added)

(2) The parties' positions

[25] At the appeal hearing, the appellant's main argument was that the trial judge erred by relying on Sgt. Ruiters' evidence to test the appellant's version of events and to determine the ultimate issue whether the appellant knew of the cocaine found in his vehicle. As set out in his factum, the appellant maintained that Sgt. Ruiters' opinions on these issues "relied upon speculative associations to organized crime, objective standards of mens rea and reversals of the burden of proof". According to the appellant, rather than cautioning himself against the use of these inadmissible opinions, the trial judge relied upon them, both to reject the appellant's evidence and to support the Crown's case.

[26] The Crown argues that the Supreme Court of Canada's recent decision in R. v. Sekhon, [2014] 1 S.C.R. 272, [2014] S.C.J. No. 15, 2014 SCC 15 is a full answer to these complaints. The Crown maintains that the impugned opinions in the Ruiters [page489] report are similar to certain of the expert evidence addressed, and accepted, in Sekhon.

[27] Moreover, and in any event, the Crown submits that the trial judge did not rely on or defer to Sgt. Ruiters' evidence on the question of the appellant's knowledge of the cocaine. Rather, the trial judge independently assessed the evidence concerning the appellant's knowledge of the cocaine and, having done so, concluded that he agreed with Sgt. Ruiters' opinion that the appellant knew of the presence of the cocaine when he entered Canada at the Sarnia border crossing.

(3) Discussion

[28] I agree with the appellant that the trial judge erred in his treatment of certain of Sgt. Ruiters' evidence, in particular, by relying on Sgt. Ruiters' case-specific opinions concerning the appellant's credibility and the key question of the appellant's knowledge of the presence of cocaine in his vehicle. In so doing, in my opinion, the trial judge fatally erred by failing to restrict his use of Sgt. Ruiters' expert evidence to its proper limits.

[29] To begin, I emphasize that while defence counsel at trial did not object to the admission of the Ruiters report, she also did not admit, as fact, the statements contained in it. To the contrary, in agreeing to the admission of the Ruiters report, defence counsel expressly indicated that she anticipated leading evidence to challenge the factual underpinnings of Sgt. Ruiters' opinions. As the trial unfolded, she in fact did so, at least to some extent. In these circumstances, no formal admission of the facts in the Ruiters report having been made within the meaning of s. 655 of the Criminal Code, R.S.C. 1985, c. C-46, it was not open to the trial judge to rely on the Ruiters report for the truth of its contents.

[30] The criteria for the admission of expert evidence -- (1) relevance; (2) necessity in assisting the trier of fact; (3) the absence of any exclusionary rule; and (4) a properly qualified expert -- are well established: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36, at pp. 20-23 S.C.R.; R. v. J. (J.-L.), [2000] 2 S.C.R. 600, [2000] S.C.J. No. 52, 2000 SCC 51; R. v. D. (D.), [2000] 2 S.C.R. 275, [2000] S.C.J. No. 44, 2000 SCC 43. It falls to the trial judge to determine whether these criteria are met in a given case.

[31] It is important not to lose sight of the scope of a trial judge's "gate-keeping" function in relation to expert evidence. A ruling in favour of the admission of expert evidence does not discharge the trial judge's obligation to protect against the misuse of such evidence. In [page490] R. v. Abbey (2009), 97 O.R. (3d) 330, [2009] O.J. No. 3534, 2009 ONCA 624, at para. 62, Doherty J.A. of this court warned:

A cautious delineation of the scope of the proposed expert evidence and strict adherence to those boundaries, if the evidence is admitted, are essential. The case law demonstrates that overreaching by expert witnesses is probably the most common fault leading to reversals on appeal.

(Citations omitted)

[32] More recently, in affirming the importance of the Abbey caution and the oversight role of a trial judge concerning expert evidence, Moldaver J. of the Supreme Court, writing for the majority, stressed in Sekhon, at paras. 46 and 47:

Given the concerns about the impact expert evidence can have on a trial -- including the possibility that experts may usurp the role of the trier of fact -- trial judges must be vigilant in monitoring and enforcing the proper scope of expert evidence. While these concerns are perhaps more pronounced in jury trials, all trial judges -- including those in judge-alone trials -- have an ongoing duty to ensure that expert evidence remains within its proper scope. It is not enough to simply consider the Mohan criteria at the outset of the expert's testimony and make an initial ruling as to the admissibility of the evidence. The trial judge must do his or her best to ensure that, throughout the expert's testimony, the testimony remains within the proper boundaries of expert evidence[.]

The trial judge must both ensure that an expert stays within the proper bounds of his or her expertise and that the content of the evidence itself is properly the subject of expert evidence.

(Citations omitted; emphasis added)

[33] Justice Moldaver continued, at para. 48, by noting that trial judges "are accustomed to disabusing their minds of inadmissible evidence". Nonetheless, he emphasized:

It goes without saying that where the expert evidence strays beyond its proper scope, it is imperative that the trial judge not assign any weight to the inadmissible parts.

[34] In light of these foundational principles, there are two critical issues with respect to the Ruiters report: (1) did the content of the report, in whole or in part, exceed the proper scope of expert evidence; and (2) if so, did the trial judge err by assigning weight to the inadmissible parts of this evidence? I will address these questions in turn.

(a) The inadmissible evidence

[35] Sergeant Ruiters' general opinions, described above, addressed the likely association between an organized criminal group involved in the commercial transportation of contraband and the driver of a vehicle containing such contraband, as well as the likely knowledge by the driver of the presence of contraband [page491] found in his or her vehicle. Inferentially, at least, some of Sgt. Ruiters' statements concerning these matters came close to the expression of opinions on the appellant's criminal culpability. Nonetheless, the general statements in the Ruiters report bearing on these issues did not include any explicit commentary on the appellant's activities, or on his alleged knowledge of the cocaine discovered in his vehicle.

[36] As a result, in my view, Sgt. Ruiters' general opinions concerning the involvement and activities of organized criminal groups and drug couriers in the illegal transportation of contraband, as well as his opinions regarding normal trucking industry practices, detailed above, were admissible given his unchallenged and extensive qualifications to offer expert testimony on the overland transportation of illegal commodities.

[37] However, these general opinions stand in stark contrast to the case-specific opinions expressed by Sgt. Ruiters, quoted earlier in these reasons. In my opinion, his case-specific opinions, on (1) the appellant's alleged association with organized criminal elements; (2) his knowledge of the cocaine in his trailer; and (3) his credibility, strayed beyond the proper scope of expert evidence. These opinions were inadmissible and highly prejudicial to the appellant.

[38] Recall, for example, Sgt. Ruiters' opinions that the appellant had ties to an organized criminal group and that he knew about the cocaine in his trailer; that the appellant's actions (including his failure to express concerns to border officials when he learned that there was no lock or seal on his trailer), in effect, refuted his claim that he was unaware that his trailer had been opened after being loaded with its legitimate cargo of electronic games; that, as a courier, the appellant had to have knowledge of the contraband aboard his vehicle in order to retrieve or safeguard it in the event that his vehicle broke down or was involved in a collision; that the appellant's real intent was to pick up and transport cocaine; and that the appellant's account of his activities, as recorded in his log entries, was "nonsensical, inaccurate and falsified".

[39] These opinions concerned the core, indeed the pivotal, questions before the trial judge: whether, on the whole of the evidence, the Crown had established that the appellant knew of the cocaine and whether the appellant's testimony, including his denial of such knowledge, was credible. As with the impugned expert evidence in Sekhon, Sgt. Ruiters' personal opinions on these issues were not necessary. The determination whether the appellant knew about the cocaine and whether his account of his activities was credible were not beyond the knowledge and [page492] experience of the trial judge. Nor were they technical or scientific matters requiring the assistance of an expert: Sekhon, at para. 49. Indeed, the determination of these questions was squarely within the trial judge's expertise and domain. As the majority stated in Sekhon, at para. 45:

As for the "necessity" criterion, Mohan holds that "[i]f on the proven facts a judge or jury can form their own conclusions without help, then the opinion of [an] expert is unnecessary. . . . The [Mohan] Court went on to note that the concern "inherent in the application of this criterion [is] that experts not be permitted to usurp the functions of the trier of fact".

(Citations omitted)

[40] Justice LeBel, writing in dissent in Sekhon on other grounds, agreed. He put it this way, at paras. 75-76:

[T]his court has repeatedly cautioned that expert evidence must not be allowed to usurp the role of the trier of fact. The trier of fact, whether a judge or a jury, is responsible for deciding the questions in issue at trial. Judges must be especially cautious where the testimony of police expert witnesses is concerned, as such evidence could amount to nothing more than the Crown's theory of the case cloaked with an aura of expertise. The courts have clearly recognized the risk that expert evidence could usurp the role of the trier of fact in the assessment of credibility, and even in the decision on the ultimate issue of guilt or innocence. I see no reason to believe that this danger is less real where the evidence is given by a state agent like a police officer rather than by a scientific expert.

The Mohan requirement of necessity is the primary safeguard against the inappropriate proliferation of expert evidence. But even where the expert's evidence is broadly necessary, as in this case, it should be assessed with special scrutiny as it approaches the "ultimate issue": Mohan, at p. 24; R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 37. The decision to qualify an expert witness does not end the need for scrutiny of the expert's evidence. A properly qualified expert could stray into expressing inadmissible opinions about the guilt of an accused, and the trial judge must ensure that the expert's testimony stays within the proper boundaries of such evidence and maintain the integrity and independence of his or her own fact-finding function as regards the credibility of witnesses and the guilt or innocence of the accused.

[41] In this case, the Crown conceded in oral argument before this court that at least two parts of the Ruiters report were inadmissible. The parts in question, set out above and repeated here for convenience, read as follows:

it is my opinion in this case that the driver, who was transporting a significant amount of contraband, has ties to an organized criminal group and had knowledge of the contraband aboard the trailer.

[42] I agree with the Crown's concession. Sergeant Ruiters' first statement -- that the appellant "has ties to an organized criminal group" -- is supposition only, based merely on the quantity of cocaine found in his trailer. This opinion is an inferential [page493] extrapolation from Sgt. Ruiters' general opinion that no "blind" courier would be entrusted by an organized criminal group to transport a quantity of cocaine as large as that seized in this case. I see no necessity within the meaning of the Mohan criteria for the admission of an unsupported opinion of this kind. The flaw in Sgt. Ruiters' second opinion -- that the appellant "had knowledge of the contraband aboard the trailer" -- is self-evident. This opinion purported to answer the central question at trial -- whether the appellant knew of the presence of the cocaine. This was a determination to be made by the trial judge.

(b) The trial judge's reliance on the inadmissible evidence

[43] The more difficult question in this case is whether, as the appellant contends, the trial judge relied on the inadmissible parts of the Ruiters report in evaluating the appellant's credibility and determining his guilt or innocence. In my view, the suggestion that the trial judge did not rely on Sgt. Ruiters' inadmissible evidence must be rejected. The trial judge's reasons undercut this claim. The reasons are replete with references, direct and indirect, to Sgt. Ruiters' case-specific opinions, including, especially, those pertaining to the likelihood that the appellant knew of the presence of the cocaine in his vehicle and his credibility.

[44] The following examples suffice to make this point. First, the trial judge expressly indicated in his reasons: "I test the version of the accused about what happened to him against the opinion of Sergeant Ruiters." This statement was unqualified. The trial judge then said: "In my view, the accused's version of how he was taken advantage of is highly improbable. One cannot get away from the fact that this cocaine in round figures was worth somewhere between two million and six million Canadian dollars."

[45] The trial judge next outlined several reasons for his conclusions that the appellant was not credible and that the appellant's evidence did not give rise to a reasonable doubt. Several of these reasons were unrelated to Sgt. Ruiters' case-specific opinion evidence -- e.g., the discrepancy between the seal on the rear doors of the appellant's trailer and the seal placed on the vehicle by officials in Michigan.

[46] However, in embarking on his assessment of the appellant's credibility, the trial judge expressly indicated that he regarded the Ruiters report as the benchmark against which the appellant's testimony was to be tested. The trial judge's reasons afford no certainty that in evaluating the appellant's [page494] credibility, the trial judge placed no reliance on the inadmissible parts of Sgt. Ruiters' evidence.

[47] Second, and more problematic still in my view, is the trial judge's approach to the key issue of the appellant's knowledge of the presence of the cocaine. Having explained why he concluded that the appellant was not credible, and why the appellant's evidence did not leave him with a reasonable doubt, the trial judge next directed himself to examine whether the evidence that he did accept proved the appellant's knowledge of the cocaine in his trailer beyond a reasonable doubt. He stated:

It is highly improbable that [the appellant] would be allowed to transport cocaine worth between two million and six million dollars without knowing anything about it, and without any control upon his movements.

[48] In the same vein, the trial judge indicated:

I accept the view by Sergeant Ruiters that criminals would not usually trust someone with a load of 53 kilograms of cocaine without some proven track record for reliability.

[49] These findings are coloured by Sgt. Ruiters' case-specific opinions, specifically, his opinions that the fact of the appellant's transportation of a significant amount of cocaine established that his reliability and trustworthiness as a drug courier had been tested and accepted by an organized criminal group and that he knew of the contraband aboard the trailer. In other words, that the appellant was not a "blind" but, rather, a "knowing" courier who was acting in association with and for the benefit of organized criminal groups.

[50] Invoking Sekhon, the Crown submits that Sgt. Ruiters' opinion regarding the implications of the use of a courier to transport a large load of contraband -- i.e., that an organized criminal group would not trust an untested or "blind" courier to transport approximately 53 kg of cocaine -- is unobjectionable. Crown counsel points out that in Sekhon, a somewhat factually similar case, the Supreme Court did not reject or otherwise criticize a police expert's evidence, at para. 19:

[T]hat the recruitment of a drug courier takes time and that an organization will not typically entrust a first-time courier with a large shipment. Instead, the courier's reliability will be tested with smaller shipments.

[51] In my view, the Crown misreads Sekhon. Sekhon affords no authority for the proposition that the trial judge was free to rely on the type of inadmissible, case-specific evidence offered by Sgt. Ruiters in this case.

[52] It is true that the above-quoted extract from the expert evidence in Sekhon is substantially similar to one of Sgt. Ruiters' [page495] opinions in this case. It is also true that the quoted excerpt met with no adverse comment from the Sekhon court. However, it also formed no part of the impugned expert evidence in Sekhon. Rather, the Sekhon court's focus, and apparently that of the parties, was on the police expert's testimony that he had not had any personal historical experience or encounter with a "blind" courier. The Sekhon court noted, but did not address, that part of the police expert's opinion in Sekhon that corresponds to the counterpart opinion by Sgt. Ruiters that the Crown relies on in this case.

[53] If there were any doubt that the trial judge relied on inadmissible parts of Sgt. Ruiters' evidence in concluding that the appellant knew of the cocaine in his vehicle, that doubt is put to rest by the trial judge's additional comments in his reasons. Later in his reasons, he said, with reference to Sgt. Ruiters' evidence:

Those features of his opinion that appealed to me are the following: The unlikelihood that criminals would trust this large a load to a blind courier. The obvious point that a courier would have knowledge of the contraband aboard his vehicle so that he would know to retrieve or safeguard it in the event of a breakdown or a collision. The fact that there would be no reason for the shippers to leave footprints on top of the cartons of the legitimate load. That load was loaded on pallets by way of a forklift. As I have stated, I agree and find as a fact that the truck was entered and the legitimate load was climbed upon at the time that the cocaine was loaded. This is entirely consistent with the finding of the footprints on the boxes. I agree that normal trucking industry practice places an expectation upon a driver that once a legitimate load is loaded he is to immediately leave for his destination and not leave his load unattended for anything other than brief washroom or nourishment stops. What [the appellant] did on this occasion does not comply with that normal practice. As I had stated, it was also part of Sergeant Ruiters' circumstances that he considered in coming to his opinion, whereas a driver should leave immediately for his destination, a destination at the border, which in this case was an hour or so from the loading point. The very fact here that it took four hours or so for [the appellant] to get to the border is extremely inconsistent with normal trucking practices, and consistent with someone who was waiting for contraband to be loaded with his legitimate cargo.

(Emphasis added)

[54] Against the backdrop of these findings, the trial judge concluded:

Accordingly, considering all of these circumstances, I agree with the opinion of Sergeant Ruiters that the [appellant] had knowledge of the cocaine when he brought his truck across the border.

On the basis of the evidence which I do accept, I am satisfied beyond a reasonable doubt that [the appellant] knew that the cocaine was in his truck upon entry into Canada. [page496]

[55] In fairness to the trial judge, before describing those "features" of Sgt. Ruiters' evidence that "appealed" to him, the trial judge noted that his evidence was unchallenged by any cross-examination and stated, "His opinion carries some weight, but of course the finding in this case is for me." The Crown submits that this statement, coupled with the trial judge's concluding comment, quoted above, that he "agree[d]" with Sgt. Ruiters' opinion that the appellant knew of the cocaine in his vehicle confirm that the trial judge did not rely on Sgt. Ruiters' opinion but, rather, independently concluded that he agreed with it.

[56] I cannot accept this submission. The "features" of Sgt. Ruiters' evidence identified by the trial judge in the above-quoted passage formed the basis for Sgt. Ruiters' opinion that the appellant knew of the cocaine in his vehicle. The "opinion" referred to by the trial judge was Sgt. Ruiters' opinion that the appellant knew about, and was intentionally complicit in the transportation of, the cocaine. This was not merely a general opinion based on the normal practices of long-haul truck drivers. It was an inadmissible opinion specific to the appellant's conduct and state of mind.

[57] The trial judge's reasons must be read in this context. They indicate that in assessing the Crown's case against the appellant, the trial judge relied on Sgt. Ruiters' case-specific opinions that (1) the amount of cocaine transported by the appellant rendered it unlikely that he was unaware of its presence; (2) the appellant had to know of the cocaine in order to safeguard or retrieve it in the event of an unanticipated breakdown or collision; and (3) the appellant's actions in delaying his departure from Michigan after his truck was loaded and the time taken by him to reach the border were consistent with the conduct of someone waiting for contraband to be loaded.

[58] In my view, therefore, when the trial judge's reasons are read as a whole, they reveal that he did rely on the inadmissible parts of Sgt. Ruiters' evidence -- namely, his opinion about the appellant's knowledge of the cocaine in his vehicle. To the extent that the trial judge's finding that the appellant knew of the cocaine rested on the inadmissible parts of Sgt. Ruiters' evidence, described above, the trial judge fell into reversible error.

[59] There is also an additional, significant difficulty, as I see it. As I read the record, including the reasons, both at the time the Ruiters report was admitted into evidence and during the remainder of the trial, the trial judge failed to lend his mind to whether the content of Sgt. Ruiters' evidence was properly the subject of expert evidence, that is, whether parts of the Ruiters report exceeded the proper bounds of expert evidence. Given the [page497] absence of a defence objection to the admission of the Ruiters report, the trial judge appears to have simply accepted that it was admissible in its entirety. At no point thereafter does it appear that he revisited the issue of the proper scope of Sgt. Ruiters' evidence. By failing to address this critical question, the trial judge ran afoul of the Abbey and Sekhon principles.

(4) The use of the curative proviso is inappropriate

[60] I have concluded that parts of Sgt. Ruiters' evidence were inadmissible and that the trial judge fatally erred by relying on the inadmissible evidence. In the circumstances of this case, this was not an inconsequential error.

[61] This is not an appropriate case for application of the curative proviso under s. 686(1)(b)(iii) of the Criminal Code. The trial judge's reliance on the impugned evidence permeates his reasons. While there was other evidence in this case, apart from Sgt. Ruiters' inadmissible evidence, that may have supported the convictions, I am not persuaded that the Crown's circumstantial case was so overwhelming that, notwithstanding the trial judge's serious error, the trier of fact would inevitably convict: see Sekhon, at paras. 52-53. I note that Crown counsel did not press the case for the application of the curative proviso during the appeal hearing.

D. Sentence Appeal

[62] I conclude that the appellant's convictions must be set aside and a new trial ordered. Accordingly, I do not reach the appellant's sentence appeal.

E. Disposition

[63] For the reasons given, I would allow the conviction appeal and order a new trial.

[64] LASKIN J.A. (dissenting): I have read the reasons of Cronk J.A., and I am unable to agree with them or with her conclusion that the conviction appeal should be allowed. I would dismiss the conviction appeal, but allow the sentence appeal.

A. Introduction

[65] The appellant, Antarpal Singh, was a long-haul commercial truck driver. He was convicted of importing 53 kg[^1] of cocaine [page498] into Canada and of possession of cocaine for the purpose of trafficking. He was sentenced to 12 years in prison.

[66] The appellant picked up a load of electronic games at Redford, Michigan and crossed into Canada at the Blue Water Bridge near Sarnia. Border officers discovered the cocaine hidden in the trailer of the truck the appellant was driving.

[67] The central issue at trial was knowledge: Did the appellant know that the cocaine was in his truck? The appellant testified and denied that he knew. The trial judge rejected his evidence and concluded that it did not raise a reasonable doubt. The trial judge then concluded that the Crown had proved the appellant knew he was carrying cocaine when he crossed the border into Canada.

[68] The appellant argues four grounds of appeal against his conviction:

(1) the trial judge relied on the inadmissible portion of Sgt. Ruiters' expert opinion to reject the appellant's evidence and to find that the appellant had knowledge of the cocaine;

(2) the trial judge failed to hold a voir dire into the admissibility of the appellant's statements to border agent Arjan Bos at the time of his arrest;

(3) the trial judge failed to conduct a voir dire into the qualifications of the second interpreter; and

(4) the trial judge inappropriately relied on the appellant's demeanour as a primary basis to reject his evidence.

[69] On his sentence appeal, the appellant submits that a 12-year sentence is unreasonable, outside an acceptable range.

[70] My colleague deals only with the first ground of appeal against conviction. She concludes that the trial judge relied on inadmissible parts of Sgt. Ruiters' opinion, both to reject the appellant's evidence and to find that the Crown had proved the appellant's knowledge of the cocaine. On this ground alone, she would allow the appeal and order a new trial.

[71] I disagree with Cronk J.A.'s conclusion on this first ground of appeal. The trial judge gave a lengthy list of reasons for rejecting the appellant's evidence. Only one of those reasons relied in any way on the admissible portion of Sgt. Ruiters' opinion. Not one of the trial judge's reasons relied on the inadmissible portion of his opinion. Similarly, the trial judge gave several reasons for his conclusion that the Crown had proved knowledge. In part, the trial judge relied on Sgt. Ruiters' opinion for his conclusion, but only on the admissible portion of that [page499] opinion. In finding the appellant guilty, the trial judge did not rely on the inadmissible part of Sgt. Ruiters' opinion.

[72] Thus, I would not give effect to the appellant's first ground of appeal. Nor would I give effect to any of the other grounds of appeal against conviction. I would therefore dismiss the appellant's appeal against his conviction. I would, however, allow his sentence appeal and reduce his sentence from 12 years to nine years in prison, less four months' credit for presentence custody, in other words to a sentence of eight years and eight months' imprisonment.

B. The Conviction Appeal

(I) Did the trial judge rely on the inadmissible portion of Sgt. Ruiters' expert opinion?

[73] In her reasons, my colleague thoroughly sets out the factual background giving rise to this appeal. I need not repeat it here. Cronk J.A. divides Sgt. Ruiters' opinion into two parts: his general expert opinion, and his case-specific expert opinion, which the Crown concedes is inadmissible. I attach as Appendix A to these reasons Sgt. Ruiters' four-and-a-half page written expert opinion.

[74] I accept my colleague's division. The first four pages of Sgt. Ruiters' report contain general opinion evidence, which is admissible, though I feel compelled to add that much of what Sgt. Ruiters says in these pages seems to be common sense. In the admissible portion of his opinion, Sgt. Ruiters discusses criminal organizations' use of commercial trucks to transport large amounts of drugs, the role of drug couriers in the transportation of drugs, and normal trucking industry practices.

[75] Sgt. Ruiters' case-specific opinion on the appellant's culpability is in the last half-page of his report, and Cronk J.A. reproduces it at paras. 23-24 of her reasons. This part of his opinion is inadmissible because the trier of fact, not an expert, must decide the appellant's guilt or innocence.

[76] The question under this ground of appeal is whether the trial judge relied on Sgt. Ruiters' inadmissible case-specific opinion to reject the appellant's evidence or to find that the Crown had proved the appellant's knowledge of the cocaine. Cronk J.A. says that he did and I answer that he did not.

[77] To put my answer in context, I make four preliminary points. First, Sgt. Ruiters' opinion was admitted in evidence on consent and was not challenged by the defence in cross-examination. The trial judge can therefore, perhaps, be somewhat [page500] excused for not performing his gatekeeper role over the admissibility of this opinion evidence.

[78] Second, this was not a jury trial. It was a judge-alone trial, and as Moldaver J. said in R. v. Sekhon, [2014] 1 S.C.R. 272, [2014] S.C.J. No. 15, 2014 SCC 15, at para. 48, judges "are accustomed to disabusing their minds of inadmissible evidence".

[79] Third, the trial judge expressly cautioned himself about relying too heavily on Sgt. Ruiters' opinion. He said: "His opinion carries some weight, but of course the finding in this case is for me."

[80] Fourth, an appellate court gives significant deference to a trial judge's credibility findings.

(a) The trial judge did not rely on the inadmissible portion of Sgt. Ruiters' opinion to reject the appellant's evidence

[81] The trial judge gave a lengthy list of reasons why he did not believe the appellant's evidence or find that it raised a reasonable doubt. None of these reasons relied on Sgt. Ruiters' opinion. They included:

The appellant admitted that he did not watch the load being placed in his truck, contrary to the shipper's policy.

The appellant left Redford at 2:30 p.m. He gave an estimated time of arrival at the border of 5:00 p.m. Yet the distance between Redford and the border is only about 75 miles, with an estimated travel time of between one hour and ten minutes and one hour and 48 minutes. The trial judge concluded that in the light of the appellant's driving experience, his answer to the question at trial about his estimated arrival time "did not make much sense".

The appellant claimed that he stopped at a truck stop just before the border to clear his load with customs officials. According to the appellant, he was at the truck stop between 4:00 and 6:00 p.m. to fax his paperwork to the officials. The trial judge found his explanation for the amount of time out of the truck "unbelievable". Leaving a truck unattended for that amount of time, the trial judge said, "does not accord with normal practices of responsible drivers". Overall, the appellant's explanation for what happened at the truck stop was "improbable in the extreme".

The appellant admitted that he falsified his log sheet to show he was in the truck. He said that he did so because he did not want to be ticketed for being away from his load. [page501] The trial judge found his explanation "completely incredible". In so finding, the trial judge noted that the appellant falsified his log at a critical time: just before he was to arrive at the border.

The appellant broke the seal on the trailer door and claimed he threw the seal on the ground. He claimed he did so because the border services officer was rushing him. The trial judge rejected the appellant's explanation. Instead, he found that throwing the seal on the ground was "completely incredible" considering the appellant's experience as a trucker crossing the border. Later in his reasons, the trial judge added: "I cannot believe that an experienced trucker would honestly do that with a seal, realizing how critically it is connected to the papers and the load that he is carrying."

One of the border agents retrieved a seal numbered 273944 from the floor of the trailer. It did not match the seal number on the paperwork from Redford. When the appellant was shown the discrepancy, "he injected a self-serving lie into testimony". He claimed the seal in the trailer was from the load he had taken into the United States. But that claim was shown to be false.

"[M]aking full allowance for cultural and linguistic differences", the trial judge found that the appellant "was a furtive witness", "not frank and open in the stand". To the trial judge, the appellant "projected the appearance of a witness who was trying to hide the truth".

[82] In rejecting the appellant's evidence and finding that it did not raise a reasonable doubt, the trial judge referred to Sgt. Ruiters' opinion only once. He said, "I test the version of the accused about what happened to him against the opinion of Sergeant Ruiters." Cronk J.A. relies on this statement. She says it is unqualified. Thus, in her view [at para. 46], "[t]he trial judge's reasons afford no certainty that in evaluating the appellant's credibility, the trial judge placed no reliance on the inadmissible parts of Sergeant Ruiters' evidence".

[83] Respectfully, I disagree for two reasons. The first and main reason is that the trial judge's statement must be read in context. The entire paragraph in which it appears is as follows:

In this trial, Mr. Robb has put forward the opinion of Sergeant Ruiters about the nature of couriers and the whole illegal process of bringing cocaine into Canada. I test the version of the accused about what happened to him against the opinion of Sergeant Ruiters. In my view, the accused's version of how he was taken advantage of is highly improbable. One cannot get away [page502] from the fact that this cocaine in round figures was worth somewhere between two million and six million Canadian dollars.

[84] The first sentence of this paragraph shows that the trial judge's statement is not "unqualified" at all. He is testing the appellant's evidence against "the nature of couriers and the whole illegal process of bringing cocaine into Canada" -- in other words, against the portion of Sgt. Ruiters' opinion conceded by my colleague, at para. 36 of her reasons, to be admissible. The last part of the paragraph simply refers to the dollar value of the cocaine, which comes from the report of the expert Sgt. Kowalczyk admitted on consent, and as a matter of common sense is undoubtedly a relevant consideration. I therefore conclude that in rejecting the appellant's evidence, the trial judge did not rely on any inadmissible opinion evidence of Sgt. Ruiters.

[85] The second reason for my disagreement is that the trial judge gave a compelling and lengthy list of reasons for disbelieving the appellant's account. And none of those reasons in any way relied on Sgt. Ruiters' opinion. In my view, even without Sgt. Ruiters' evidence, the trial judge undoubtedly would have disbelieved the appellant's evidence.

(b) The trial judge did not rely on the inadmissible portion of Sgt. Ruiters' opinion to find that the Crown had proved the appellant had knowledge of the cocaine

[86] Having rejected the appellant's evidence, the trial judge then turned to consider whether the Crown had proved beyond a reasonable doubt that the appellant knew he was transporting cocaine. He concluded that the Crown had done so. In reaching that conclusion, the trial judge relied on four considerations, none of which depended on Sgt. Ruiters' evidence:

"The seals in this case are critical evidence. I find as a fact that there was a different seal on the rear doors of the truck trailer than the one which was placed on it by the officials at Redford, Michigan. The seal that was recovered just inside the doors was certainly not the seal that was placed on the truck by the officials at Redford, Michigan. The numbers were different. I cannot accept that the accused would allow his trailer to be sealed by a seal that did not match his paperwork, or that he would allow the proper seal that supported his innocence to be treated like a piece of garbage. Along with all the other evidence, the evidence of the seal determines his fate." [page503]

The appellant falsified his log about his whereabouts and activities at a critical time: just before he crossed the border.

The appellant took an inordinate length of time to get from Redford to the border -- roughly four hours, more than twice the time needed. The trial judge did not accept the appellant's explanation for the delay -- his "problems with getting clearance". Instead, the trial judge found "that this whole explanation of the long delay is simply a dodge to hide the fact that the time was required to make a connection to have the cocaine loaded".

"A circumstance that is telling here are the reactions of Mr. Singh on being referred to secondary at Canada Customs and his reaction upon being placed under arrest. Particularly at the time of his arrest, he has no real explanation for why he dropped to his knees. One inference that can be made is that he realized that in slang terms 'the jig was up'."

[87] It seems to me these cogent considerations alone may have proved the Crown's case. But the trial judge also relied on Sgt. Ruiters' opinion. Cronk J.A. says he relied on Sgt. Ruiters' inadmissible case-specific opinion. I disagree. She points to three passages in her reasons.

[88] The first two passages are similar and can be dealt with together. The trial judge said:

It is highly improbable that he would be allowed to transport cocaine worth between two million and six million dollars without knowing anything about it, and without any control upon his movements.

I accept the view by Sergeant Ruiters that criminals would not usually trust someone with a load of 53 kilograms of cocaine without some proven track record for reliability.

[89] According to Cronk J.A. [at para. 49], "These findings are coloured by Sergeant Ruiters' case-specific opinions". In fact, these findings are based on Sgt. Ruiters' general opinion evidence, as my colleague seems to acknowledge, at paras. 19, 21 and 36 of her reasons. Indeed, Sgt. Ruiters says in the admissible part of his opinion:

An organized criminal group would not usually trust someone with a load of 53kg cocaine unless they have proven themselves reliable or trustworthy. Most commonly this reliability would likely have been proven by making previous deliveries of smaller amounts and/or previous criminality within the group. [page504]

[90] The third passage of the trial judge's reasons that my colleague points to and reproduces in full, at para. 53 of her reasons, is the following:

Those features of his opinion that appealed to me are the following: The unlikelihood that criminals would trust this large a load to a blind courier. The obvious point that a courier would have knowledge of the contraband aboard his vehicle so that he would know to retrieve or safeguard it in the event of a breakdown or a collision. The fact that there would be no reason for the shippers to leave footprints on top of the cartons of the legitimate load. . . . I agree that normal trucking industry practice places an expectation upon a driver that once a legitimate load is loaded he is to immediately leave for his destination and not leave his load unattended for anything other than brief washroom or nourishment stops. What Mr. Singh did on this occasion does not comply with that normal practice. . . . The very fact here that it took four hours or so for Mr. Singh to get to the border is extremely inconsistent with normal trucking practices, and consistent with someone who was waiting for contraband to be loaded with his legitimate cargo.

[91] Cronk J.A. says that in this passage, the trial judge relied on inadmissible opinions specific to the appellant's conduct and state of mind. I do not read this passage in that way at all.

[92] The specific "features" of Sgt. Ruiters' opinion that appealed to the trial judge all came from Sgt. Ruiters' general opinion evidence, accepted by my colleague to be admissible, and, again, acknowledged to be so at paras. 19, 21 and 36 of her reasons. Nowhere in this passage does the trial judge rely on any inadmissible opinion evidence.

[93] Perhaps the closest the trial judge comes is the concluding sentence in the passage, which comes from the inadmissible portion of the report: "The very fact here that it took four hours or so for Mr. Singh to get to the border is extremely inconsistent with normal trucking practices, and consistent with someone who was waiting for contraband to be loaded with his legitimate cargo." The trial judge, however, had already made the same finding earlier in his reasons, relying on the amount of time the appellant took to reach the border and his rejection of the appellant's explanation for the delay.[^2]

[94] The trial judge concludes his reasons by stating:

Accordingly, considering all of these circumstances, I agree with the opinion of Sergeant Ruiters that the accused, Mr. Singh had knowledge of the cocaine when he brought his truck across the border. [page505]

[95] "Agree" is different from "rely". In finding the appellant knew the cocaine was in the trailer, the trial judge did not rely on the inadmissible portion of Sgt. Ruiters' opinion.

[96] I would thus not give effect to this ground of appeal.

(II) Did the trial judge err by failing to hold a voir dire into the admissibility of the appellant's statements to border agent Bos at the time of his arrest?

[97] After the cocaine was discovered, one of the border agents, Bos, was instructed to arrest the truck driver. He was not sure who that was. The appellant then came to the counter in the customs office. Bos took him aside and had a brief conversation with him to find out if he was "the right person". The appellant gave Bos some basic information about where he got his load, how long it took to load the truck and a few other details. Bos was then satisfied that the appellant was the truck driver.

[98] Defence counsel objected to Bos' evidence and asked for a voir dire. Bos was then examined and cross-examined to determine if a voir dire was necessary. The trial judge ruled:

I am going to allow the answers to the questions that preceded the arrest. In my view, they were simply questions made and answers received with respect to ensuring the identity of the individual that he was dealing with.

[99] The appellant submits that the trial judge erred by failing to hold a voir dire into the voluntariness of his responses to Bos. In my view, even if the trial judge erred by failing to hold a voir dire, the error was harmless. The appellant's evidence at trial was essentially consistent with the responses he gave Bos. More important, in his reasons, the trial judge did not rely on any of the appellant's statements to Bos; he relied only on the appellant's trial testimony.

[100] Therefore, I would not give effect to this ground of appeal.

(III) Did the trial judge err by failing to hold a voir dire into the qualifications of the second interpreter?

[101] The appellant's native language is Punjabi. He required an interpreter throughout the trial. Two interpreters were used. The trial judge held a voir dire into the qualifications of the first interpreter and found him to be qualified. This interpreter translated the English proceedings into Punjabi through to the end of the first week of the trial. No one raised any concern about his translation.

[102] The first interpreter was unavailable at the start of the second week of the trial. A second interpreter, Syed Ahmed, took [page506] over part way through the appellant's examination-in-chief, and continued to interpret for the rest of the appellant's examination-in-chief and for his cross-examination. The trial judge did not hold a voir dire into the second interpreter's qualifications because defence counsel, Ms. Brandon, said it was unnecessary.

THE COURT: Is there any question about the qualifications of Mr. Ahmed?

MS. BRANDON: I'm familiar with this gentleman and I have no issues unless something has changed with respect to his status. There's . . .

THE COURT: All right.

MS. BRANDON: . . . nothing that I'm aware of.

THE COURT: All right.

MR. ROBB: I confirmed . . .

THE COURT: Yes?

MR. ROBB: . . . with Mr. Ahmed prior to court commencing this morning, Your Honour, when Mr. Ahmed arrived that he is now fully accredited by the Vancouver Community College through the Ontario Government program.

[103] Soon after the appellant's examination-in-chief resumed, defence counsel raised a concern about the second interpreter. She claimed he was having difficulty interpreting some of the appellant's answers. In his factum, the appellant points to a passage where he was being questioned about the source of the money he used to buy a home in Brampton. He said that it was "dowr" or "daw", which the interpreter initially interpreted incorrectly as "alimony". A few questions later, however, the appellant clarified that he received the money from his in-laws.

[104] Soon after the appellant's cross-examination began, defence counsel renewed her concern about the second interpreter. She said the appellant told her that at times he was having difficulty understanding what the interpreter was saying. She noted the difficulty may have been attributable to differences in dialect: the appellant is from India and the interpreter is from Pakistan. In response to defence counsel's concerns, the trial judge ruled that a voir dire into the second interpreter's qualifications was unnecessary:

At the outset of this week, it was placed on record that Mr. Ahmed, the interpreter, was accredited in Ontario. Defence expressed its satisfaction with his qualifications. I have not detected any significant confusion on the part of Mr. Singh beyond what would normally be expected between an inexperienced witness and a veteran interpreter. [page507]

We are going to proceed on with the signal to Mr. Singh that if there is any interpretation which he does not understand, he should ask to have it repeated.

[105] The appellant submits that the trial judge erred by failing to hold a voir dire into the qualifications of the second interpreter. He contends that the trial judge equated accreditation with competence, and that the two are not the same. He submits that the trial judge's failure to hold a voir dire deprived him of a fair trial. In support of his submission, he seeks to introduce fresh evidence. The fresh evidence consists of an affidavit from a professional interpreter skilled in English-Punjabi translation who reviewed the transcript of the appellant's examination.

[106] The appellant's submission has merit, but having reviewed the examination and cross-examination of the appellant together with the fresh evidence, I am not persuaded that the trial judge erred by failing to hold a voir dire.

[107] Section 14 of the Canadian Charter of Rights and Freedoms guarantees the assistance of an interpreter for an accused who does not understand or speak the language in which the proceedings are conducted. In this case, the appellant was undoubtedly entitled to the assistance of an interpreter.

[108] Yet it is not enough that an interpreter be provided; the interpreter must be competent enough to ensure both that justice is done and that it is seen to be done. Where there is legitimate reason to doubt the interpreter's competence, the trial judge should conduct an inquiry into the interpreter's qualifications. But where, as in this case, the challenge is to the quality of interpretation, the standard is adequacy, not perfection. Minor inconsistencies revealed on a microscopic examination of the record will not signify the quality of the interpretation is inadequate. See R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951, [1994] S.C.J. No. 16, at pp. 987-88 S.C.R.

[109] In this case, I agree with the appellant's contention that simply because an interpreter is properly accredited -- as was the second interpreter -- does not automatically mean the interpreter is competent to interpret the proceedings in any given case: see R. v. Rybak (2008), 90 O.R. (3d) 81, [2008] O.J. No. 1715, 2008 ONCA 354, at para. 84, leave to appeal to S.C.C. refused [2008] S.C.C.A. No. 311. Nonetheless, the trial judge did not err in failing to hold a voir dire into the second interpreter's qualifications because there was no legitimate reason to doubt the interpreter's competence.

[110] Indeed, the record shows that the second interpreter's interpretation of the appellant's evidence was at least adequate. The one area of confusion the appellant points to -- about what he meant by "dowr" or "daw" -- was quickly cleared up. No other [page508] misunderstandings are apparent on the record. The appellant seems to have adequately understood and have been understood as if he were conversant in English.

[111] The fresh evidence affidavit confirms the second interpreter's competence. The affidavit states that "most of the interpretation was adequate". It points to eight "misstatements" -- English statements the second interpreter made that did not accurately reflect what the appellant had said in Punjabi. Two of these misstatements relate to confusion over the words "dowr" and "daw". The other six are at best very minor inconsistencies on peripheral matters.

[112] Accordingly, I would not give effect to this ground of appeal.

(IV) Did the trial judge inappropriately rely on the appellant's demeanour as a primary basis to reject his evidence?

[113] Among his catalogue of reasons for finding the appellant's evidence not credible and finding him guilty, the trial judge referred to the appellant's demeanour four times:

When the accused was testifying about the completion of the load at Redford, and the attachment of the PARS sticker, I noted that he seemed to be rushing ahead of the question he was asked in an apparent anxiety to get his defence in.

I am going to comment on the accused's demeanour in the stand making due allowance for cultural and language differences. I was concerned about his style of answering questions. He seemed to be having an intimate discussion with the interpreter. He was not facing counsel who was asking him the questions when giving his answers, and the whole impression was unfavourable. I say this while giving full allowance for a different cultural background and any possible language difficulties.

I am going to comment on the accused's demeanour in the stand, again making full allowance for cultural and linguistic differences. The best characterization observed by me is that he was a furtive witness. He was not frank and open in the stand. To me he projected the appearance of a witness who was trying to hide the truth.

A circumstance that is telling here are the reactions of Mr. Singh on being referred to secondary at Canada Customs and his reaction upon being placed under arrest. Particularly at the time of his arrest, he has no real explanation for why he dropped to his knees. One inference that can be made is that he realized that in slang terms "the jig was up". There are other interpretations of why he did that. It is one circumstance. [page509]

[114] The appellant argues that the trial judge's reliance on demeanour was inappropriate, yet was a primary basis to reject his evidence and infer guilty knowledge. In support of his argument, he makes three points. First, this court has repeatedly said demeanour evidence is of little, if any, probative value in assessing a witness' credibility.

[115] Second, although the trial judge cautioned himself about "cultural and linguistic differences", he had no evidence to assist him in understanding these differences. Third, the trial judge should not have relied on the appellant's emotional response to being arrested -- falling to his knees -- as it was unsafe for the trial judge to do so.

[116] I do not accept the appellant's argument. On his first point, though this court has often questioned the value of demeanour evidence, many recent Supreme Court of Canada decisions have continued to assert its relevance in assessing a witness' credibility: see R. v. S. (N.), [2012] 3 S.C.R. 726, [2012] S.C.J. No. 72, 2012 SCC 72, at paras. 25-26; R. v. I. (D.A.), [2012] 1 S.C.R. 149, [2012] S.C.J. No. 5, 2012 SCC 5, at paras. 18, 72; and R. v. François, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827, [1994] S.C.J. No. 66, at pp. 836-37 S.C.R.

[117] On the appellant's second point, the trial judge's self-caution at least showed his sensitivity to the concern that specific cultural and linguistic characteristics might be mistaken for troubling demeanour. I am not convinced the trial judge required evidence before relying on the appellant's demeanour. Certainly, that the appellant testified through an interpreter could not justifiably shield him from an assessment of his demeanour: see R. v. Davis, 1995 ABCA 188, [1995] A.J. No. 427, 165 A.R. 243 (C.A.), at para. 19.

[118] On the appellant's third point, I agree that any conclusion drawn from an accused's reaction to a stressful situation is of dubious value. See R. v. Perlett (2006), 2006 CanLII 29983 (ON CA), 82 O.R. (3d) 89, [2006] O.J. No. 3498 (C.A.), at paras. 84-85. The trial judge, however, recognized that other inferences for the appellant's reaction were available, and that it was but "one circumstance".

[119] Still, the main reason I would not give effect to the appellant's argument on demeanour rests on the lengthy and compelling list of considerations unrelated to his demeanour that the trial judge relied on to reject his evidence. I have summarized most of these considerations in my discussion of the first ground of appeal. In the light of this compelling list, I agree with the Crown that even if the trial judge erred in his reliance on the appellant's demeanour, it is not plausible to conclude the trial judge would have made a different credibility [page510] finding had he not erred. The appellant's demeanour was not at all the primary basis for rejecting his evidence. I would therefore not give effect to this ground of appeal.

[120] Accordingly, I would dismiss the appellant's appeal against his convictions.

C. The Sentence Appeal

[121] The trial judge sentenced the appellant to 12 years in prison, less four months' credit for presentence custody, or an overall sentence of 11 years and eight months. In doing so, he did not commit any error in principle, or fail to consider the relevant sentencing goals or aggravating and mitigating circumstances. The appellant does not assert otherwise.

[122] The trial judge recognized the two important sentencing goals of denunciation and general deterrence. He referred to R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, [1987] S.C.J. No. 36, where, in an often-cited passage on the evils of the importation of hard drugs, Lamer J. commented, at p. 1053 S.C.R.:

Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts. . . . Such persons, with few exceptions. . . , should, upon conviction, in my respectful view, be sentenced to and actually serve long periods of penal servitude.

[123] Numerous judgments across Canada -- both at trial and on appeal -- have echoed Lamer J.'s comments. In R. v. Cunningham (1996), 1996 CanLII 1311 (ON CA), 27 O.R. (3d) 786, [1996] O.J. No. 448 (C.A.), for instance, this court repeated Lamer J.'s remarks and added, at p. 791 O.R.:

There can be no doubt that commercial traffickers rely heavily on couriers to facilitate their deadly trade. That being so, it falls to the courts to warn would-be couriers, in no uncertain terms, that they will pay a heavy price for choosing to import large quantities of hard drugs for quick personal gain.

[124] The trial judge also referred to several mitigating considerations on which the appellant could rely. He concluded his reasons with the following apt observation:

I am faced with, on the one hand, the tragic consequences caused to Mr. Singh's wife and children by jailing their husband and father. On the other hand, I am faced with the horrific social chaos that is caused by the arrival of 53 kilograms of high quality cocaine into Canada.

[125] He decided that a 12-year sentence was fit.

[126] I cannot in any way fault the trial judge's approach to the sentencing of the appellant. I disagree solely with the length of the sentence he imposed. Because of the appellant's personal [page511] circumstances, in my view, justice would be done by imposing a nine-year sentence (less the agreed four months' credit).

[127] The appellant's sympathetic personal circumstances support a relatively lenient sentence: he is a first offender; he was but 29 years old at the time of sentencing; since arriving in Canada in his teenage years, he has worked steadily to support his wife, small children and extended family; his sole involvement in this case was as a courier; he received a "very positive" presentence report; and he has been on bail for about four years without a hint of trouble.

[128] In Cunningham, at p. 790 O.R., this court said that "absent exceptional or extenuating circumstances, the range of sentence for first-offender couriers who smuggle large amounts of cocaine into Canada for personal gain should be six to eight years in the penitentiary". In Cunningham itself, the accused imported just more than five kilograms of cocaine into Canada. The appellant imported ten times that amount. Decisions in this province after Cunningham, both at trial and in this court, have imposed sentences higher than the six-to-eight-year range where larger amounts of cocaine have been imported. See, for example, R. v. Couture, [2009] O.J. No. 5822, 2009 ONCJ 655; and R. v. Niemi, [2012] O.J. No. 869, 2012 ONCA 133, affg [2008] O.J. No. 5830 (S.C.J.).

[129] As is invariably the case, there is no one right sentence. As we have said many times, including in Cunningham, at p. 790 O.R., sentencing "is not an exact science". Trial courts -- and, I would argue, this court, too -- "must retain the necessary degree of flexibility to do justice in individual cases": Cunningham, at p. 790 O.R.

[130] Here, though I recognize the gravity of the appellant's crime, taking into account his personal circumstances, I would sentence him to eight years and eight months in prison -- in other words, nine years less four months' credit for presentence custody.

D. Conclusion

[131] I would dismiss the appellant's conviction appeal. I would allow his sentence appeal and reduce his sentence to eight years, eight months in prison.

Appeal from conviction allowed.

[page512]

APPENDIX A

'Can Say' Sgt. Robert Andrew Ruiters National Pipeline/Convoy Program Manager Traffic Services HQ - Regina, Saskatchewan

My CV, listing my qualifications pertaining to the Pipeline/Convoy Program and overland transportation of illegal commodities is attached with this document.

• I am a Sgt. with the RCMP currently stationed in Regina, SK, and in my 29th year.

• I am assigned to Ottawa HQ Traffic Services and am currently the National Program Manager for the RCMP and Canadian law enforcement community for the 'Pipeline/Convoy' Program.

• I have been the program coordinator on a full-time basis since developing this national program within Canada in 1993/94.

• In 2005 the Canadian Association Chiefs Police Traffic Committee recommended that the Pipeline/Convoy Program, under my coordination and the mentorship of the RCMP, is the sole recognized highway interdiction program in Canada.

• As National Coordinator, I have reviewed thousands of seizure reports and related documents relative to highway criminal interdiction and contraband seizures that have occurred throughout Canada and the United States since 1994.

• United States is a known origin/source supplier for cocaine in Canada.

• Commercial vehicles are often used in the transportation of larger loads of contraband. They can accommodate larger amounts than that of a passenger vehicle. This allows for less trips due to the larger capacity as opposed to making more trips with smaller vehicles, thus reducing likelihood of detection/apprehension.

• Commercial vehicles are most commonly favoured by organized criminal groups to move large amounts of contraband because commercial vehicles can easily blend in with the traffic flow as many commercial vehicles are upon our highways at any given time.

• Couriers usually tend to stay on the major roadways and generally take the most direct route of travel to fit in with traffic flow as they are most vulnerable to police apprehension while in transit.

• Commercial vehicles are usually favoured by organized criminal groups to move large amounts of contraband because they are less likely to be stopped by police due to the majority of police being unfamiliar with the trucking industry and/or regulations associated with them.

• Commercial vehicles are most commonly favoured by organized criminal groups to move large amounts of contraband because they often have legitimate cargo aboard that can be used to conceal the contraband from law enforcement detection.

• the movement of contraband is a business - albeit an illegal business. Therefore, criminal organized groups usually do not entrust valuable commodities to someone who is unproven or unreliable - just as a major legitimate business would not trust valuable commodities to someone unproven or with no experience of previously displayed skills.

• the movement of 53+ kgs of contraband (cocaine) is significant and believed to be tied to an organized criminal group.

• the greatest vulnerability to a criminal group involved in large scale drug activity is while the commodities are in transit. It is at that time that it is most vulnerable to police apprehension and detection.

• organized criminal groups are often compartmentalized to protect the identity/detection of the groups hierarchy. The actual drug courier is often at the bottom of this hierarchy.

• the driver of the illegal commodities is usually given instructions of delivery and transport of the product to ensure the safeguard of the contraband/ illegal commodity and limit exposure to law enforcement Criminal groups believe that without these clear instructions that there is greater possibility of losing their drugs to police.

• the drug courier needs to be someone whom is considered reliable and trustworthy by the organization to ensure safe and on-time delivery of the contraband.

• the courier, although trusted enough not to steal the contraband, is generally not trusted enough to know the hierarchy of the criminal organization.

• the drug courier needs be trusted to have the sufficient skill set and available equipment to safely deliver these large amounts. In other words the criminal organization will look for someone with a commercial drivers licence and a commercial vehicle to enable this transportation.

• an organized criminal group would not usually trust someone with a load of 53 kg cocaine unless they have proven themselves reliable or trustworthy. Most commonly this reliability would likely have been proven by making previous deliveries of smaller amounts and/or previous criminality within the group.

• all members involved in criminal groups have roles and responsibilities within the group and are held accountable within this group. Therefor the person who recruits/hires the actual drug courier needs to know that this person will deliver the contraband on-time and therefor must establish control of this courier. This control comes by clear instruction of delivery and understanding of risks of failure to follow these directions. Therefor in order for there to be control over the driver, the driver must have knowledge of the duties expected of him/her. The drug courier is also held accountable for the contraband load and its delivery.

• the drug courier would have knowledge of the contraband aboard the vehicle so that he would know to retrieve or safeguard the drugs should the vehicle break down or be involved in a collision.

• The legitimate commercial trucking industry is highly competitive. The trucking industry today is one the largest recorded occupation for males in Canada. The top companies recruit/hire the top drivers (driving records, experience, etc...). The lower the quality company, generally the lower quality of the driver hired. This being said, if I have a commodity that needs to be transported, be it legal or otherwise, I will find someone willing to do so.

• Due to the competitive nature of the legitimate commercial trucking business there are fewer and fewer independent trucking companies in Canada. Most owner/operator companies find themselves leasing to larger trucking companies due to the burden of the costs associated in todays trucking. It is the owner/operators however that are more likely to be involved in transporting contraband. Unlike company trucks whom are controlled by the company and their dispatch and/or company Global Positioning Systems, many independents or owner/operators are afforded the ability to deviate from normal trucking routes, take detours or delays along their transportation routes. This makes them more attractive to organize criminal groups when it comes to recruiting drivers to transport contraband.

• In this case the company B & K is a small 5 truck company and no company GPS. As such, and with no GPS, the driver can come and go as he pleases. He is able to decide which legitimate loads he wishes to pick up or drop off and therefore does not have the same restrictions upon him that he would if he were driving for a large fleet company or major trucking company. He is much more attractive to be recruited by criminal groups to transport contraband than he would have been if he was a larger company driver. B & K is a smaller company (not a major company) with 5 trucks and 5 drivers and according to DOT records, their trucks are frequently inspected.

• further, according to DOT records this company has had higher than average/nonnal driver transgressions or violations. The company, according to the US DOT, was not deemed to be operating in a professional manner and were audited and given a conditional rating by the US DOT in November 2009.

• Due to the competitive and rising costs associated with the legitimate trucking business, prudent cost effectiveness is essential to legitimate trucking operations. When one considers all the costs associated with legitimate trucking practises (fuel, insurance, truck payments, food, etc...) it generally costs a minimum of $2.00 km to operate a commercial vehicle. The vehicle needs to be moving to generate any form of revenue. Therefor any truck that is operating in a non-cost effective method should always be considered suspicious and inconsistent with normal trucking practices.

• The company is based out of Brampton, ON. Brampton, ON, is recognized as both a source and destination location for illegal drug distribution. In a majority of the large drug seizures being transported in Canadian Commercial Vehicles, Brampton has been the destination or origin of the drags involved or where the company involved was based.

• when a commercial vehicle is loaded with contraband and legitimate freight, the contraband is almost always loaded after the legitimate freight is loaded, and the contraband is off-loaded before the legitimate freight is delivered. This ensures that the cover load (legitimate freight) for the contraband is in place. It also ensures that the persons whom load/ off-load legitimate freight do not see or discover the drugs. Criminal groups, in their effort to ensure the safe transportation of the contraband, are concerned that if the drugs were present during loading/off-loading of the legitimate goods, that someone may report it to police or may steal the contraband.

• in order for a commercial vehicle to be loaded with contraband after the legitimate load, the driver must stop after legitimate loading and, either be the one to load the vehicle with contraband or, entrust the vehicle to someone else who then facilitates the loading of contraband.

• in this case, there were several U-Haul boxes containing cocaine within the load. These boxes are refered to as anomalous cargo. There is no legitimate reason for U-Haul boxes to be in with a load of electronics. They were hidden in amongst the legitimate load. The footprints atop the legitimate load confirms this. There is no reason for the shippers to have crawled atop the load of electronics. The legitimate load would have been loaded on pallets by a forklift. The prints are further evidence that the driver would have stopped after being legitimately loaded and had the U-Haul boxes of cocaine loaded and hidden amongst the load thus explaining the footprints. This is highly consistent with the movement of drugs in commercial vehicle loads.

• the normal trucking industry practices however show that once a legitimate load is loaded that the driver has an expectation upon them to immediately leave for their destination point for their legitimate delivery. The legitimate driver accepts responsibility to deliver this legitimate freight to its destination.

• All legitimate truck drivers would not, therefor, surrender their vehicle, after loading, to someone else, even temporarily. This is inconsistent with normal practices and goes against the normal truckers responsibility of ensuring proper transportation of the legitimate load. Should a driver surrender his /her vehicle to someone else temporarily (that is not the normal legitimate shipper for a legitimate load) he/she would have known, or ought to have known, that it was being loaded with illegal cargo.

• as the contraband must be removed prior to the off-loading of the legitimate load, the driver must stop or deviate from the normal expected destination of the legitimate load to enable the contraband off-loading. In order for this to occur the driver must have knowledge of the contraband aboard.

• In normal trucking practices, once the accused was loaded in Redford, MI, he would be expected to leave immediately towards his destination with this legitimate load. In normal trucking practices if a driver were wishing to visit friends, make any stops or shopping, or take a break in anyway, he would do so prior to being loaded. Once he is loaded he has an expectation to depart immediately for his destination. That was not the case in this particular case. Once he arrived in St. Lapeer, MI, he slept many hours and was off-loaded at 7 am December 4th. He then drove to where he was to be loaded with his legitimate load of electronics. He was loaded in Redford between 11:15 am and 1:30pm. He had already had his required off duty time and therefore - consistent with normal cost effective trucking operations - should have left immediately for his destination and driven for several hours before going off-duty again as required. He did not do this however. Instead he arrived at the port of entry approximately 6:00pm. The port is approximately 1 hr from where he was loaded with electronics however it took him 4.5 hrs to arrive there. The time in between is not accounted for. This is extremely inconsistent with normal trucking practices and very consistent with someone who was waiting for contraband to transport after having legitimate cargo loaded. His log books in this case are nonsensical, inaccurate and falsified.

• In this case, the driver claims that the shipper placed a lock and a seal on the rear doors of the trailer. However, at the time of inspection at the POE, no lock was noted nor was the seal the same as was placed on by the shipper. This is further evidence that the trailer had been opened after being loaded with the legitimate load of electronics.

• Further, in this case, had the driver truly been unaware that the trailer had been entered after being loaded in Redford, he would have expressed concerns immediately to the CBSA officials once he realized that there was no longer a lock or company seal on his trailer when asked to open the trailer at the port He did not do so thus indicating he was aware that it had been entered.

• it is my opinion in this case that the driver, who was transporting a significant amount of contraband has ties to an organized criminal group and had knowledge of the contraband aboard the trailer.

• it is also my opinion that this driver arranged a legitimate load pickup with a purpose of having the "appearance of normal transportion" of cargo ; or attempts to legitimize his real intent, which was the pick up and transportation of the cocaine.

Notes

[^1]: Although the trial judge refers to a load of 53 kg, the unchallenged expert report of Sgt. Kowalczyk refers to 49 kg.

[^2]: See above, at para. 23, bullet point three.

End of Document