COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Aujla, 2015 ONCA 350

DATE: 20150515

DOCKET: C53386 & C55573

Laskin, van Rensburg and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jaswinder Singh Aujla and Gurminder Singh Riar

Appellants

Brian Callender, for the appellant Jaswinder Singh Aujla

James Lockyer, for the appellant Gurminder Singh Riar

Howard Piafsky, for the respondent

Heard: October 29, 2014

On appeal from the convictions entered on January 20, 2011, and the sentences imposed on February 11, 2011, by Justice Gordon I. A. Thomson of the Superior Court of Justice, sitting without a jury.

Benotto J. A.:

[1] The appellants were truck drivers who crossed the Ambassador Bridge into Windsor, Ontario with $3.5 million of cocaine. They had just driven across the continent from California where they had picked up a load of ice cream. The cocaine was in the trailer, in boxes marked “Public Storage” surrounded by pallets containing the ice cream.

[2] They asserted that they knew nothing of the cocaine and were “blind couriers.” They suggested that either someone at the California ice cream facility put the boxes in the trailer under the pretext of shipping samples, or, some unknown importer gained access to the trailer on their drive back from California.

[3] The trial judge convicted both of importing cocaine and possession of cocaine for the purpose of trafficking. The appellant Aujla was sentenced to imprisonment for 16 years, and the appellant Riar was sentenced to 14 years. They each appeal their conviction and sentence.

Facts

The truck drivers

[4] Aujla’s father owned Aujla Transport Services Inc., the trucking company that employed the appellants. In April 2007, Aujla was an experienced driver. Riar was not. Riar obtained his truck licence in July 2006, worked with another company and was hired by Aujla Transport in February 2007. He was then supervised by Aujla as a driver-in-training.

[5] Aujla had travelled many times to California. Riar had made four trips to the U.S., including California, with the previous company, and then another four trips with Aujla.

[6] English was a second language for both men who used a Punjabi interpreter during the trial.

The trip to California

[7] On March 31, 2007, Aujla and Riar embarked on their fifth trip together. They were off to Rancho Santa Margarita, California from Brampton, Ontario to deliver a load of insulation. Their tractor was hauling a trailer that could be refrigerated.

[8] They arrived in Rancho Santa Margarita in the early hours of April 2. The trailer was unloaded and they then drove to Ontario, California.

Riar’s visit to his friend

[9] Aujla and Riar differed about what happened from the afternoon of April 2 when they arrived in Ontario, California until the evening of April 3 when they resumed their trip. It was a discrepancy that would factor into the trial judge’s reasons and the issues in this appeal.

[10] Aujla said that he and Riar were together the entire time at a truck stop in Ontario, California. Riar stated that he left Aujla to visit a friend who lived in nearby Loma Linda, California.

[11] Riar’s friend was Ravinder Riar (“Ravi”), who coincidentally had the same last name. Riar said that Aujla dropped him off at a gas station on April 2 at about 3 p.m. where Ravi picked him up. He stayed with Ravi overnight. The next day, around 6 p.m., Ravi dropped him off at a truck stop in Ontario, California, where Aujla was waiting. Neither Riar nor his trial counsel suggested that this was when the cocaine was put in the tractor or the trailer.

[12] Aujla’s phone records were put in evidence in relation to Riar’s meeting with Ravi. Riar testified that he had given Aujla’s cellphone number to Ravi so that he (Riar) would not incur roaming fees on his cellphone. The phone records show calls from Ravi to Aujla on April 1 and 2. On April 3, there were three calls - two just after midnight and one at 9:11 p.m. Riar said he had made these three calls using Ravi’s phone to arrange with Aujla his return to the truck. The cell phone records show “Toronto time” which is three hours ahead of California. Therefore, the last call was just after 6 p.m. in California – the time that Riar said he met up with Aujla.

[13] During his cross-examination, Riar produced a piece of paper which he said he had prepared a few days earlier. On the paper was written:

Ravinder Riar

10930 - Veach Street

Lomalinda CA

92354

[14] By the end of the day on April 4, Riar and Aujla were together and were given directions from their dispatcher.

Dreyer’s Ice Cream facility in Bakersfield

[15] Riar and Aujla were told by their dispatcher to go to Bakersfield, California to pick up a load of ice cream from Dreyer’s to deliver to Nestlé’s in Mississauga, Ontario. They spent the night at a truck stop in Bakersfield.

[16] They arrived at Dreyer’s on April 5 at 10:38 a.m. and left with the load of ice cream at 5:28 p.m. Loading took a while since the trailer had to be chilled. During part of their wait, the appellants left the trailer at Dreyer’s and drove the tractor to a nearby temple where they prayed and ate lunch.

[17] Two Dreyer’s employees, Isaac Garza and Dewayne Santomen, testified about the facility, its policies for loading product into trailers, and their recollections of April 5, 2007.

[18] The Dreyer’s facility is secure. It is surrounded by a fence and under video surveillance. It has only a single entry point for trucks. A security guard checks trucks in. Employees need a swipe card to enter through different doors.

[19] The loading dock is also secure. Truck drivers have no access to the product being loaded into their trailers. Drivers are not allowed to watch the loading. The driver is only able to inspect the load when loading is complete, the trailer is pulled away from the dock and the driver closes the doors to the trailer.

[20] The Dreyer’s employees testified that the trailer transporting the load must be empty and clean before loading. It must then contain nothing other than the ice cream. As Garza put it: “It has to be pristine”. A single loader puts the product into the trailer.

[21] It was Garza who loaded the ice cream shipment onto the appellants’ trailer on the afternoon of April 5. It took him under an hour. Garza said that there were other loaders working on the dock with him that afternoon, but only he loaded the appellants’ trailer. Garza signed a “load schematic” certifying that he had pre-inspected the trailer and that it was safe to load. He testified that if he had seen any cardboard boxes in the trailer during his pre-inspection, he would have reported them in accordance with the company policy.

[22] Garza said that he did not place the Public Storage boxes onto the trailer and that no other Dreyer’s employee had any contact with the interior of the trailer. He had never seen Public Storage boxes, such as the ones containing the cocaine before. When samples are occasionally shipped with the loads, they are packed in large, white, unmarked boxes. These boxes are larger than the Public Storage boxes that contained the cocaine.

[23] Garza placed a temperature monitor into one of the pallets in the middle of the trailer to track the temperature on the way back to Canada.

[24] Santomen was the Dock Administrator at Dreyer’s facility in Bakersfield. He was responsible for signing out trailers – including the appellants’ - once they were loaded. He gave the appellants a bill of lading which Aujla signed.

[25] After the ice cream was loaded into the appellants’ trailer, Santomen gave Aujla a yellow plastic seal to put on the back doors of the trailer. The purpose of the seal is to keep the load secure from tampering. Once attached, the seal cannot be removed without breaking it. The seal can be easily broken by using any piece of metal to create leverage. The seal was numbered so that it could be checked against paperwork at a border inspection.

[26] Aujla did not immediately put the seal on the trailer doors. He testified that he put it on the doors later in the evening of April 5 when they stopped at a weighing station. He said that he wanted to wait because, if the trailer was overloaded, he would have to return to Dreyer’s for the load to be lightened or adjusted.

[27] I will return to the seal later.

[28] Santomen testified that two men twice tried to get onto the secure loading dock while the Dreyer’s product was being loaded into the appellants’ trailer. This was out of the ordinary. According to Santomen, they were told both times – the first time by Garza - that they were not allowed on the loading dock. In a police interview, Santomen identified one of the men as Aujla and, with less certainty, identified the other man as Riar.

[29] Aujla acknowledged the signature on the bill of lading was his and that he tried to get into the loading dock at Dreyer’s but was stopped. He explained that it was his practice to see how product was loaded into the trailer. Riar denied trying to access the loading dock at Dreyer’s.

[30] Garza did not recall any drivers entering or trying to enter the loading dock on April 5, 2007.

The trip from Bakersfield to Detroit

[31] The appellants’ journey back from California to Detroit, Michigan took them through Arizona, New Mexico, Texas, Oklahoma, Missouri, Illinois, Indiana, and Ohio. They took turns driving and resting and made numerous stops for fuel and restroom breaks. The trip took from April 5 to April 7.

[32] At several points on the return trip, Aujla faxed documents concerning the load of ice cream to a customs broker. By the time they reached the border, they had not heard back from the customs broker. They waited in a duty-free shop hoping to hear. When they did not, they drove across the border knowing their load had not been cleared.

The border

[33] The appellants arrived at the Ambassador Bridge on April 7 at approximately 6:17 p.m. They were stopped at the primary inspection stage by officers of the Canada Border Services Agency because the importation paperwork did not clear. As a result, the trailer was subjected to a secondary inspection. This was a new procedure. A week earlier, drivers with deficient paperwork would have been directed to a commercial importation centre to arrange for the proper paperwork. After being told to proceed to a secondary inspection, the Border Services officer noticed that Aujla “appeared nervous”, in particular because he was repeatedly touching his nose. The officer acknowledged that it was not unusual for drivers to be nervous when referred to a secondary inspection.

[34] On this day, loads without paperwork that did not clear were subjected to an x-ray scan. The scan of the appellants’ load indicated an anomaly inside the trailer. The trailer doors were opened. A Border Services officer crawled on top of the pallet closest to the trailer door and saw two cardboard boxes labeled “Public Storage” resting atop the next pallet in. This interior pallet was about two feet shorter than the others and was not visible from the ground. It took the officer under a minute to open the doors, climb up and retrieve the boxes. He found bricks of cocaine inside the boxes. They weighed over 37 kilograms and had a street value of approximately $3.5 million.

[35] Border Services officers told the appellants that they would be arrested for importing cocaine. According to two Border Services officers, when an officer tried to frisk and handcuff Aujla, he physically resisted and was screaming. Aujla was taken to the ground and handcuffed while face-down on the ground. He was kicking and twisting. Immediately thereafter, while being read his rights, Aujla gagged for about 10-30 seconds, as if he were about to vomit, and then cried for about 30 seconds. He had a second period of crying about 15 minutes later.

[36] Similarly, according to two Border Services officers, Riar also physically resisted being handcuffed and was brought to the ground by an officer.

[37] While in a holding cell at the border, at around 11 p.m., Aujla was gagging and perspiring. He said he was feeling dizzy and about to faint. He was eventually transported to hospital.

[38] Aujla testified that he was beaten up by the Border Services officers. He claimed that because he could not understand English he did not know why he and Riar were being arrested. He testified that he did not understand the meaning of “under arrest”. He claimed not to have any recollection of what happened following his arrest, including going to the hospital.

[39] Riar testified that he did not resist being handcuffed.

The temperature monitor

[40] A graph produced by the monitor showed four increases of temperature within the trailer, from the normal temperature of minus 20°F to about minus 15°F, which occurred on the trip from Bakersfield to Detroit. Santomen opined that these temperature increases were consistent with either the trailer doors being opened for a short time or the trailer’s “reefer” unit going into “defrost mode”.

The location of the cocaine in the trailer

[41] The Public Storage boxes containing the cocaine were at the rear end of appellants’ trailer. In reference to Garza’s load schematic, they were resting atop pallet position number 27. Pallet position number 27 was unique in this load as it consisted of two partially loaded pallets stacked directly on top of one other. In total, the stacked pallets at position 27 would have been only five feet tall. A fully-loaded pallet was about seven feet tall. The pallet at position number 29 was next to the door and was the usual seven feet in height. It would not have been possible to see over the seven-foot stack at position number 29 in order to realize that the stack at position 27 was shorter. There was no way to walk through the pallets. The Border Services officer found the Public Storage boxes by climbing atop the pallet at position 29.

[42] Garza testified that he placed the stacked, shorter pallet towards the end of the trailer because it was lighter and “we want the back end of the trailer to be lighter”. In addition, he believed that should the driver slam on the brakes, there would be less overall damage to the product if the shorter load was placed at the back. He explained that if the trailer is not properly balanced it would not comply with California “State code”.

[43] Andre DaSilva, a former shift supervisor at Nestlé’s shipping warehouse in Mississauga, Ontario, testified that earlier in 2007 he had seen a Public Storage box in a shipment from Dreyer’s. The box contained samples of new products coming on the market. Samples were routinely sent from Dreyer’s but normally in different types of boxes. There had been instances where samples were sent from Dreyer’s without appearing on the bill of lading, although he could not recall if this was the case with the Public Storage box he had seen. It would be possible to walk out the door of the Nestlé warehouse with a box or duffle bag without being checked by anyone.

[44] DaSilva agreed that, in his experience, there was always a notification by email from Dreyer’s saying that a sample box would be in a shipment. DaSilva also agreed that there would be a “big problem” if there was a seal indicated on the bill of lading but no seal on the trailer.

The inspection reports and the missing seal

[45] The Border Services officer who found the cocaine testified that the seal was not on the trailer doors at the time of the secondary inspection on April 7. He stated, however, that trailers at that time were usually not sealed. There was a protocol in place for recording the number of any seal broken by a Border Services officer incident to searching a trailer. No seal number was recorded by the officers with respect to the appellants’ trailer.

[46] Drivers are required to do daily inspections and complete inspection reports. To properly complete the report, the driver must walk around the truck and the trailer and inspect the trailer doors.

[47] Aujla testified that he inspected the trailer, including the doors, daily as required. He last checked the doors at Exit 76 in Ohio. He said the seal was in place. From this stop, until they reached the duty-free shop at the border, they made only one more stop: in Beaverdam, Ohio. He did not check the doors there or at the duty-free shop.

[48] Riar completed the vehicle inspection reports on April 6 and April 7. To do so, he was supposed to walk around the trailer and inspect its doors. Riar testified that he never actually inspected the tractor and trailer before filling out these reports – he just copied Aujla’s reports. The following exchange took place during Riar’s cross-examination by Crown counsel:

Q. And you understood what that meant at the time, those words, “Vehicle Inspection Report?”

A. Yes, I understood, but I did it form [sic] – just doing as a formality, filling out the paper. I did not go outside to do the inspection.

[49] Riar claimed that after they left Dreyer’s on April 5, he never looked at the trailer doors and never opened them.

Positions of the Parties at Trial

[50] The Crown's position at trial was that the appellants put the boxes in the trailer after they left Dreyer’s.

[51] The appellants testified that they had no knowledge of the cocaine or how it got into the trailer. They submitted that the reasonable inference was that the boxes were placed in the trailer while it was being loaded at Dreyer’s on April 5. Alternatively, someone loaded the boxes after gaining access to the trailer on the trip back from California.

The Trial Judge’s Reasons

[52] The trial judge found as fact that the trailer was empty when it arrived at Dreyer’s on April 5, 2007. He accepted Garza’s evidence that the two Public Storage boxes were not in the trailer when it left the Dreyer’s facility. Therefore the cocaine was loaded into the trailer after the tractor trailer left Dreyer’s on April 5 on the way from Bakersfield to Detroit.

[53] The trial judge considered Aujla’s testimony that he put the seal on the door in the evening of April 5 and he saw it on the doors the last time he checked in Ohio at Exit 76. He rejected this testimony. He concluded that – if this were true - the cocaine was hidden by an unknown person at either Beaverdam, Ohio or the duty-free shop at the border. The trial judge did not accept that a drug importer would have coincidentally happened upon the trailer and stashed the drugs. There was a significant risk in being observed breaking into a trailer in a public location. The person would also have to (i) assume the trailer would not be searched at the border, (ii) track the truck through the border crossing, and (iii) somehow collect the drugs once the trailer crossed the border.

[54] The trial judge found it “highly unlikely” that a drug importer would risk hiding $3.5 million of cocaine in a trailer over which he or she had no control, in the hands of truck drivers with whom he or she had no contact. This grounded an inference that the appellants had knowledge of the cocaine.

[55] Following an extensive credibility analysis, the trial judge rejected both of the appellants’ testimony that they had no knowledge of the cocaine in the trailer. He concluded that the Crown had satisfied him beyond a reasonable doubt that the appellants had control of the trailer after it left Dreyer’s and knowledge of the cocaine.

Grounds of Appeal

[56] The appellants submit that the trial judge put undue emphasis on the appellants’ knowledge of English; ignored the evidence that supported their defence of being blind couriers; and failed to separately distinguish the liability of the two appellants.

[57] Riar adds an additional ground of appeal. He submits that his trial was unfair and a new trial is necessary because the trial judge misconstrued his defence by referring to his visit to Ravi as an “alibi”, and this mistake infected the credibility assessment.

[58] Both appellants submit that the sentences were demonstrably unfit as outside the established range of sentence for first-time offender couriers. They also argue that the trial judge erred by finding that they had breached the trust of the border officials and then by treating this as aggravating factor.

Analysis

[59] I will first address the grounds of appeal relating to both appellants and then address the appellant Riar.

Knowledge of English

[60] The appellants submit that the trial judge relied heavily on the appellants' knowledge of English in considering their credibility, and that this focus was irrelevant and prejudicial.

[61] I see the appellants’ knowledge of English as a factor that they and their counsel made relevant at trial.

[62] Aujla testified that he did not understand the meaning of “under arrest”, apparently to explain why he physically resisted being frisked and handcuffed following his arrest. Riar testified that he understood that he was being arrested but did not understand some of the other words spoken by the officers. Border Services officers testified that Riar also resisted being handcuffed, although Riar denied this.

[63] In closing submissions, counsel for Aujla – whose submissions were adopted by counsel for Riar – repeatedly referred to the difficulties both appellants had in speaking, reading or writing English. In particular, reference was made by Aujla’s counsel to:

• the fact that the signage and documentation at Dreyer’s was all in English;
• the testimony of the Border Service officer who had difficulty understanding Aujla;
• the inference that Aujla’s apparent nervousness upon being referred to a secondary inspection was a result of an understandable confusion given his “limited understanding” of English.

[64] Counsel for Riar made the following additional submissions:

• “[Riar] had to be forcefully handcuffed upon arrest because he did not understand what was going on, nor was English his first language.”
• “It is important to note that Mr. Riar speaks very little English and required the use of an interpreter for this proceeding and all meetings with counsel in preparation for the trial. His first language is Punjabi. His ability to read and write in the English language at the time – at the time of the offence -was very minimal and simplistic.”

[65] In the face of this evidence and these submissions, the trial judge did not place undue weight on the appellants’ knowledge of English. He used it as one of many factors in assessing credibility.

Evidence supporting the defence of blind courier

[66] The appellants submit that DaSilva’s evidence should have raised a reasonable doubt because it established that the Public Storage boxes could have been loaded onto the trailer at Dreyer’s facility in Bakersfield to be collected at Nestlé’s warehouse in Mississauga. That is, it was evidence of an on-going drug smuggling operation between the two facilities using drivers, like the appellants, as blind couriers. DaSilva testified that if samples are sent to Nestlé’s warehouse, they would typically be listed on the bill of lading and an email notification would be sent in advance from Dreyer’s. However, the appellants submit that a sophisticated drug importer would not follow protocol.

[67] In my view, it was open to the trial judge to accept Garza’s evidence. He testified that the Public Storage boxes were not in the trailer on April 5, 2007, when it left the Dreyer’s facility in Bakersfield and, in any event, samples would not be sent in similar boxes.

[68] It was also open to the trial judge to reject the suggestion that some unknown person secreted the boxes while the appellants were en route from Bakersfield to Detroit. He found that the likelihood of a drug importer placing over three million dollars of cocaine in a trailer without any arrangement or certain logistical ability to retrieve the drugs was “beyond remote”.

Failure to consider the charges separately

[69] I do not agree with the appellants that the trial judge failed to consider their charges individually. The trial judge repeatedly instructed himself to consider the appellants separately. While many issues were common to both appellants, the trial judge made individual credibility assessments and considered the liability of each.

Misapprehension of Riar’s defence

[70] I turn to the judge’s comments about Riar’s “alibi”, which he referred to at least three times.

[71] The trial judge listed the issues he was to determine. One of the questions he posed to himself was as follows:

Is the contradictory evidence of the two drivers concerning where they were after delivery of the load to Rancho Santa Margarita on April 2, 2007 and the arrival at Dreyer’s on April 5th, 2007 capable of being considered an alibi that favours either accused or, because it all occurred before taking delivery of the ice cream, of no significance other than to be used along with all of the other evidence to determine the credibility, believability and reliability of each of the accused?

[72] He went on to discuss the “hiatus between April 2 and April 5, 2007”, and stated, referring to Riar’s testimony that he visited Ravi during some of this time:

This is either an attempt to create an alibi for Riar or is a complete fabrication…

[73] Later in his reasons the trial judge said:

Riar’s evidence took on a desperate quality and appeared as if he was attempting to distance himself from Aujla, give himself an alibi and point the finger at Aujla being able to come into possession of the cocaine, secrete it in the tractor and perhaps secretly put it into the trailer later.

[74] The appellant submits that the trial judge had a basic and fundamental misunderstanding of Riar’s defence. He repeatedly referred to alibi when it was made clear by Riar’s counsel that alibi was not the defence.

[75] The trial judge’s oral reasons are not a model of succinctness or organization. However, when I read the reasons in their entirety, I find that the trial judge understood the issues and Riar’s defence.

[76] The trial judge misspoke when he used the word “alibi”. However, in the context of his analysis as a whole, this mistake did not affect the finding of guilt. I say this for five reasons.

[77] First, the trial judge did not misunderstand Riar’s defence. He was aware that the defence was lack of knowledge of the cocaine. The trial judge accepted the evidence of Garza - a finding of fact supported on the evidence. Having found that the cocaine was not in the trailer when it left Dreyer’s, the trial judge turned his focus to the period between April 5 and 7, 2007. He stated:

Both defence counsel took the position that the two accused had control over the tractor at all times during the complete trip. Neither accused had control over the trailer during the time that it was being loaded at Dreyer’s. The issues then become whether they had control of the trailer from the time it left Dreyer’s until it arrived [at the border] and whether each had knowledge of the presence of the cocaine in the trailer and consented to it being there.

[78] The trial judge understood Riar’s defence to be lack of knowledge of the cocaine after April 5 when they left Dreyer’s. He rejected the notion that an unknown person would entrust the shipment to strangers travelling across the country and through an international border. He added:

The value of the goods discovered leads me to conclude that it is highly unlikely that any person would entrust goods worth $3.5 million to a person or persons who had no knowledge of their existence and therefore risk losing everything by any number of ways.

[79] Second, the trial judge’s opening question to himself was in the alternative. Either the evidence of Riar on his visit with Ravi would go toward alibi or it would merely form a part of the overall assessment of Riar’s credibility and reliability. Since he found that the cocaine was not in the truck when it left Dreyer’s on April 5, the events of April 2-4 could only go to credibility.

[80] In other words, the trial judge’s finding that the cocaine was put in the trailer after the April 5 loading of the ice cream meant that the discrepancy in the testimony of the appellants as to the events of April 2 to April 4 had no probative value with respect to Riar’s knowledge of the cocaine. Although the trial judge said that Riar raised the issue of his April 2 to April 4 whereabouts to assist himself in being able to deny his knowledge of the cocaine that may have been in the trailer before April 5, he added: “This doesn't make sense because the trailer was not loaded until April 5”. Therefore the trial judge did not misunderstand the defence.

[81] Third, the trial judge used the discrepancy between the testimonies of the two accused as only one of many factors in assessing Riar’s credibility. There were other factors he relied on. Riar lied on his job application about his truck driving experience. He provided a false letter of reference. He lied on his log reports and the vehicle inspection reports. Riar’s testimony about his arrest was contradicted by the several Border Services officers whose testimony the judge accepted.

[82] The trial judge disbelieved Riar’s evidence that at no time between April 5 and April 7 did he look at the doors to the trailer – particularly when doing the required inspection reports.

[83] Fourth, the central findings of the trial judge had nothing to do with the “alibi” evidence. He understood Riar’s defence to be that he knew nothing about the drugs. He found as fact that the drugs were put into the trailer while the appellants were driving from Dreyer’s in Bakersfield to Detroit. Riar knew that there was supposed to be a seal on the doors to the trailer. The trial judge did not believe his evidence that he never looked at the doors. This supported the inference that Riar knew the doors had been opened.

[84] Fifth, it was appropriate for the trial judge to consider the evidence of Riar’s visit to Ravi in connection with credibility. During his testimony, Riar spoke at length about the meeting with Ravi, discussed phone records of calls to and from Ravi’s phone and a presented a recently handwritten address. His evidence differed from that of Aujla. Although the evidence was irrelevant to the stashing of the cocaine in the trailer, it was relevant to credibility.

[85] For all of these reasons, I would dismiss the conviction appeals of both appellants.

The Sentence Appeal

[86] The trial judge sentenced Aujla to 16 years’ incarceration and Riar to 14 years. In doing so he made two errors: he sentenced them on the basis that they were high-level importers and on the basis that there had been a breach of trust. There was no evidence of either fact.

[87] Also, the sentences imposed were outside of the appropriate range for first time offenders: R. v. Cunningham (1996), 1996 1311 (ON CA), 27 O.R. (3d) 786 (C.A.).

[88] I agree with the sentencing judge that denunciation and deterrence are the most relevant sentencing principles in this case. However, he erred in principle, and thus I would grant leave to appeal the sentences. I would vary the sentences as follows:

• For Aujla, a sentence of 12 years;
• For Riar, a sentence of ten years;
• Both appellants would be entitled to enhanced credit of 1.5:1 days for each of the 35 days they spent in pre-trial custody.

Disposition

[89] I would dismiss the conviction appeals, grant leave to appeal the sentences and vary the sentences as set out above.

“M.L. Benotto J.A.”

“I agree. K. van Rensburg J.A.

Laskin J.A. (Dissenting in part):

[90] I have read Benotto J.A.’s reasons. I agree with her that Aujla’s conviction appeal should be dismissed. And I agree with her proposed disposition of the sentence appeals. I do not agree, however, that Riar’s conviction appeal should be dismissed.

[91] In assessing Riar’s evidence and in rejecting his denial of knowledge of the cocaine, the trial judge made a litany of errors. Several of these errors, individually, amounted to errors of law. Collectively, these errors played a critical role in the trial judge’s reasons for rejecting Riar’s evidence and finding him guilty of importing cocaine. Thus, although the trial judge had valid grounds to disbelieve Riar, these numerous errors deprived him of a fair trial and caused a miscarriage of justice: see R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at pp. 221-22; R. v. Lohrer, 2004 SCC 24, [2004] 1 S.C.R. 627; R. v. Lohrer 2004 SCC 80, [2004] 3 S.C.R. 732.

[92] I would allow Riar’s conviction appeal and order a new trial.

A. Overview

[93] On March 31, 2007, Aujla and Riar drove a truck from Brampton, Ontario to California to deliver a load of insulation. While they were in California, they received instructions to pick up a load of ice cream from Dreyer’s in Bakersfield.

[94] On April 2, before arriving at Bakersfield, Aujla and Riar stopped in Ontario, California. The events of April 2 to 3 loomed large in the trial judge’s reasons, though not in the case for the defence of either accused. Riar said he left the truck and went to visit a friend in Loma Linda. Aujla said he and Riar were together the whole time. As I will discuss, the trial judge wrongly concluded that Riar was putting forward an alibi defence. And, he never resolved the contradiction between Riar’s and Aujla’s accounts. Instead he relied on the contradiction as a ground to disbelieve both accused.

[95] Aujla and Riar picked up the load of ice cream from Dreyer’s on April 5. They were to deliver it to Nestlé in Mississauga, Ontario on Monday, April 9. They crossed the border at Windsor on April 7. Customs officials inspected the truck and found two cardboard “public storage” boxes containing cocaine, concealed behind a seven-foot pallet at the rear of the truck. No forensic evidence linked either accused to the cocaine.

[96] Aujla and Riar were charged with importing 37 kilograms of cocaine and possession of cocaine for the purpose of trafficking. The cocaine had a street value of approximately $3.5 million.

[97] The two main questions at trial were first, when was the cocaine put in the truck, and second, who put it there? Each accused testified and denied knowledge of the cocaine.

[98] On the first question, a Dreyer’s employee testified there was no cocaine in the truck when it arrived at or left Dreyer’s. The trial judge accepted the employee’s evidence and found that the cocaine was placed in the truck somewhere between Bakersfield, California and Windsor, Ontario. Riar does not challenge this finding on appeal. On the second question, the trial judge disbelieved the evidence of Aujla and Riar. He found that each accused had knowingly imported cocaine into Canada.

[99] The trial judge’s reasons are excessively long – 140 transcript pages – disorganized, repetitive, and, in his rejection of Riar’s evidence, riddled with errors. In my opinion the trial judge made the following eight errors.

1. The trial judge mischaracterized Riar’s defence as one of alibi, even though Riar’s defence counsel had expressly disavowed an alibi defence. For Riar, his trip to Loma Linda on April 2 to visit a friend was a peripheral part of the narrative.
2. The trial judge erred by relying on the lack of corroboration of Riar’s “alibi” as a ground to disbelieve him. In doing so, the trial judge misapprehended the evidence that Riar had put forward corroborating his trip to Loma Linda. The trial judge further erred in law by drawing an adverse inference against Riar for failing to call his friend as a witness.
3. The trial judge wrongly used his rejection of Riar’s “alibi” and its late disclosure as grounds to disbelieve Riar, and even to infer his guilt.
4. The trial judge failed to make a finding on the “big discrepancy and contradiction” between the evidence of the two accused about whether Riar left the truck and Aujla on April 2 to visit his friend in Loma Linda. Someone had to be telling the truth. But instead of resolving the discrepancy, the trial judge used it to disbelieve both accused.
5. Over defence counsel’s objection, the trial judge permitted the Crown to cross-examine Riar improperly and then used Riar’s answer to discredit him.
6. The trial judge improperly used Riar’s knowledge of English to make a negative credibility finding against him. In doing so, the trial judge again misapprehended the evidence.
7. The trial judge placed excessive weight on Riar’s false employment record and reference letters in determining that he was not credible.
8. The trial judge erred by failing to consider the liability of each accused separately.

[100] The respondent acknowledges that the trial judge erred by mischaracterizing Riar’s testimony as an attempt to create an alibi and by allowing the Crown’s improper cross-examination of Riar. But the respondent contends that these errors were harmless and did not affect the verdict. I take a different view. On my assessment, the trial judge made the eight errors I have listed and these errors cumulatively produced a miscarriage of justice: they deprived Riar of a fair trial.

[101] To put my analysis of these errors in context, I will briefly review the trip undertaken by the two accused to and from California, their arrests, the comparative trucking experience of Aujla and Riar, and the strength of the Crown’s case against Riar.

B. Background

(1) The Trip

[102] Aujla and Riar both worked for Aujla’s father’s company, Aujla Transport. On March 31, they set out from Brampton headed for Rancho Santa Margarita, California with a load of insulation. On April 2, after delivering the load, they stopped in Ontario, California. Riar testified at trial that he stayed overnight in nearby Loma Linda with a childhood friend from India, Ravinder Riar. He testified that he rejoined Aujla at 6:00 p.m. the next day, April 3. Aujla, on the other hand, said they were together between April 2 and 3.

[103] Between April 3 and 4, Aujla and Riar drove to Bakersfield, where they stayed overnight. On April 5 they picked up the load of ice cream from Dreyer’s. The consignment of ice cream was to be delivered to Nestlé in Mississauga on Monday, April 9, either by Aujla or his father. Riar was to have no role in the final delivery; he was to be dropped off at his car before the load was delivered.

[104] Garza, a warehouse specialist, testified about the loading of the trailer at Dreyer’s. The trial judge accepted his evidence. The trailer was loaded with 30 pallets of ice cream, in 15 rows of 2 pallets each. A full pallet was seven feet tall. One of the pallets near the rear, however, was only five feet tall. The two boxes of cocaine were eventually discovered on top of the shorter pallet. Neither box was visible from ground level. Garza testified that he did not see the two boxes containing the cocaine on April 5 and he did not place them on the load. As I have said, the trial judge accepted his evidence.

[105] Aujla obtained the paperwork for the load. He testified that he placed the seal on the trailer at a nearby truck stop, after leaving Dreyer’s. Riar testified that he did not inspect the trailer after it was loaded.

[106] Between April 5 and 7, Aujla and Riar drove through Arizona, New Mexico, Texas, Oklahoma, Missouri, Illinois, Indiana, and Ohio, en route to Windsor, where they crossed the United States/Canada border. They alternated driving and made stops along the way to eat, go to the bathroom, and sleep.

[107] A scan of the truck at the border crossing showed an anomaly in the load. A customs officer searched the trailer and discovered the cocaine. The officer took less than a minute to open the doors, climb up, and retrieve the cocaine. This officer testified that there was no seal on the trailer. Aujla maintained there was a seal when he entered Canada.

(2) The Arrests

[108] Aujla and Riar were arrested while standing in an area of the commercial warehouse at the border crossing, after their truck was scanned. Both were handcuffed and given the right to counsel. Aujla started gagging and crying and became ill. The trial judge relied on Aujla’s demeanour after he was arrested as one of the reasons to reject his testimony. Riar’s demeanour and behaviour on arrest were “not out of the ordinary”.

(3) Aujla’s and Riar’s Trucking Experience

[109] The trucking experience of the two accused differed significantly. Aujla was an experienced truck driver; Riar was a relative novice.

[110] At the time of trial, Riar was 32 years old. He immigrated to Canada in 2005, and lived with his wife and family in a rented basement apartment in Brampton. At the time of the incident, Riar had limited driving experience. He obtained his truck driver’s licence in July 2006, less than a year before the trip to California. He first worked for another company for which he made four trips to the United States.

[111] Riar was hired by Aujla Transport in February 2007. When he was hired, he told the company he was a new driver. The company told him that he needed two years driving experience to be insured. So, Riar agreed to embellish his driving experience. The company falsified his employment record and arranged for false reference letters. At trial Riar candidly acknowledged he had participated in falsifying his employment history.

[112] Before the trip in question, Riar had made four trips to the United States with Aujla Transport. He was not permitted to drive in heavy traffic, over mountains, or through customs.

[113] By contrast, Aujla was an experienced truck driver. He was licensed in 2002, worked for his father’s company, and at the time of the trip in question, had made over 100 trips to California. Aujla taught Riar how to drive, and how to complete a log book. On their trip to Bakersfield and back, Aujla had primary responsibility for the seal, the trailer doors, and the paperwork for the load.

(4) The Strength of the Crown’s Case against Riar

[114] In my view, the Crown had a strong case against Riar, but not an overwhelming case.

[115] At trial there were two possibilities for when the cocaine was secreted in the trailer: at Dreyer’s, without the knowledge of either Aujla or Riar; or after Dreyer’s, with the knowledge of one or both accused. Even at trial the first possibility was unlikely as it ran up against Garza’s evidence. On appeal, Riar must accept the second possibility: the cocaine was put in the trailer after the accused left Dreyer’s.

[116] If the cocaine was secreted in the trailer after Dreyer’s, then there are three possibilities of who did it or at least knew about it: Aujla and Riar together, Aujla alone, or Riar alone. I consider it very unlikely that Riar could have put the cocaine in the trailer without Aujla’s knowledge. I therefore turn to the other two possibilities.

[117] That Aujla alone put the cocaine in the trailer is a realistic and reasonable possibility. His father owned the truck in which the drugs were found. He was an experienced driver. He was primarily responsible for the daily logs and vehicle inspection reports. He handled the seal for the trailer doors, the bill of lading, and other customs paperwork. He drove the truck through customs. He acted suspiciously at primary inspection. He or his father was going to deliver the load to its final destination in Mississauga. And, I find it hard to conceive why he would need an accomplice.

[118] Riar, on the other hand, was a mere trainee driver. This was only his fifth trip with Aujla Transport. He was limited in where he could drive. He relied on Aujla to tell him how to complete the daily logs and vehicle inspections. He had nothing to do with the customs paperwork or with placing the seal on the trailer doors. He showed no signs of nervousness at primary inspection. And he was not going to participate in the delivery of the load to its final destination.

[119] The most compelling piece of evidence that both Aujla and Riar had knowledge of the cocaine is that they were together for the whole trip. But that piece of evidence has a context. In a general sense Aujla and Riar were together throughout the trip from Bakersfield to Windsor. There was no evidence, however, that during the trip they were together for every hour of every day. At times, they were likely apart – for washroom breaks, perhaps for sleeping or eating, perhaps for other reasons not disclosed in the record. The customs officer’s prompt removal of the cocaine showed that it could have been placed there very quickly. Thus, I consider the possibility that Aujla was the smuggler and Riar was innocent to be a reasonable possibility on the evidence. With that background, I turn to my discussion of the trial judge’s errors in rejecting Riar’s testimony.

C. Analysis

(1) The Trial Judge Mischaracterized Riar’s Defence as One of Alibi

[120] At trial Riar did not put forward his trip to Loma Linda on April 2 to 3 as an alibi. And in cross-examining him, Crown counsel did not suggest Riar was advancing an alibi defence.

[121] The trial judge, however, asked counsel for closing written submissions, and in those submissions Crown counsel said Riar’s evidence was “consistent with an alibi defence”. In response, defence counsel submitted, “It was never the intention of the defence to claim alibi so as to suggest that while Mr. Riar was away from the tractor-trailer, Mr. Aujla was picking up cocaine.” That response should have ended the discussion of alibi, as accused have a constitutional right to control their own defence. Moreover, Riar’s trip to Loma Linda could not in law constitute an alibi. Alibi evidence must be determinative of the guilt or innocence of an accused: see R. v. Hill (1995), 1995 271 (ON CA), 102 C.C.C. (3d) 469 (Ont. C.A.), at pp. 478-79. Riar’s evidence of his trip to Loma Linda was hardly that. It was but a minor piece of the narrative.

[122] Nonetheless, the trial judge took up the position put forward by the Crown in closing. He treated Riar’s evidence of his trip to Loma Linda as an alibi defence. My colleague says the trial judge simply misspoke when he used the word alibi in his reasons. I do not agree. The trial judge did not simply use the word “alibi” mistakenly on an isolated occasion in his reasons. Had he merely done that, his misstatement could be excused.

[123] Instead, the trial judge listed the question whether Riar had an alibi as one of the 13 issues he had to resolve:

(9) Is the contradictory evidence of the two drivers concerning where they were after delivery of the load to Rancho Santa Margarita on April 2, 2007 and the arrival at Dreyer’s on April 5th, 2007 capable of being considered an alibi that favours either accused or, because it all occurred before taking delivery of the ice cream, of no significance other than to be used along with all of the other evidence to determine the credibility, believability and reliability of each of the accused?

[124] And repeatedly throughout his reasons, the trial judge referred to Riar’s attempt to create an alibi defence. He said:

This is either an attempt to create an alibi for Riar or is a complete fabrication, but both versions can’t be truthful and lead to further questions about the veracity of each person’s evidence, especially as they contradict each other.

[125] And later in his reasons, the trial judge said:

Further, the inconsistencies and contradictions between the two accused as to where they were between April 2 and 4, 2007 was raised by Riar to provide him with an alibi in assisting him in being able to deny his knowledge of the cocaine that may have been in the trailer.

[126] And still later:

Riar’s evidence took on a desperate quality and appeared as if he was attempting to distance himself from Aujla, give himself an alibi and point the finger at Aujla being able to come into possession of the cocaine, secrete it in the tractor and perhaps secretly put it into the trailer later.

[127] The trial judge completely mischaracterized Riar’s defence. As important, the trial judge’s mistaken belief that Riar was attempting to create an alibi defence played a significant role in his assessment of Riar’s credibility. In this court, the Crown accepts that the trial judge erred by mischaracterising Riar’s testimony as an attempt to create an alibi. The respondent submits, however, that the error is harmless because the trial judge did not rely on his mischaracterization.

[128] My colleague accepts that Riar did not put forward an alibi defence. But, like the respondent, she maintains that the trial judge understood Riar’s defence. In her opinion, the trial judge was aware that Riar’s defence was lack of knowledge. His disbelief of Riar’s account of the events April 2 to 3 was only one of many factors he used in assessing Riar’s credibility.

[129] I cannot accept these arguments. The trial judge’s assessment of the credibility of Riar’s denial of knowledge of the cocaine, and the trial judge’s mischaracterization of Riar’s defence as one of alibi cannot be neatly severed. They are intertwined. Indeed, the trial judge’s mischaracterization of Riar’s defence had two tangible effects. First, it generally coloured the way the trial judge viewed Riar’s credibility. Second, it led the trial judge to commit the specific errors I identify in sections two, three, and four of this part of my reasons. But for treating Riar’s defence as one of alibi, the absence of corroboration, late disclosure, and the contradictory accounts of Riar and Aujla would be immaterial. Instead, the trial judge relied on these considerations to reject Riar’s testimony.

(2) The Trial Judge Relied on the Lack of Corroboration for Riar’s “Alibi” as a Ground to Disbelieve Him

[130] When an accused puts forward an alibi defence, the trier of fact may consider whether the accused gave timely disclosure of the alibi, whether the alibi is corroborated, and whether the alibi is a deliberate concoction. Because the trial judge mistakenly believed Riar had advanced an alibi defence, he relied on the lack of corroboration, the late disclosure, and even the possibility of concoction as grounds to disbelieve Riar. In my view, he erred in law in doing so. As this court said in R. v. Rhode, 2009 ONCA 463, 246 C.C.C. (3d) 18, at para. 18: “A trier of fact is not justified in applying the principles for assessing an accused’s credibility where the defence is alibi in a case where the defence is not alibi.” And assessing evidence on a wrong legal principle is an error of law. See R. v. Morin, 1992 40 (SCC), [1992] 3 S.C.R. 286, at p. 295.

[131] In this section, I deal separately with the question of corroboration because of its significance in the trial judge’s reasons. In the next section, I deal with the late disclosure and the possibility of concoction.

[132] The trial judge used what he perceived to be Riar’s failure to corroborate his “alibi” as an important basis to reject his evidence. Midway through his reasons, the trial judge said:

He was asked to produce his friend’s address that he said he had on a piece of paper with him. It was written on a photo static copy of the logbook dated April 6th, 2007. He was asked when he wrote the address and he said he wrote it down after he was arrested. The address of his friend was in Loma Linda, California, zip code 92354 and there were no other particulars with respect to street address or telephone number. However, there is no reference in his log or Aujla’s log about being in Loma Linda, California.

He agreed his friend he said that he visited in Loma Linda, California was not in court.

[133] And then, in the critical part of his reasons where the trial judge found Riar was not credible, he returned to the lack of corroboration for Riar’s trip to Loma Linda:

The inconsistencies and contradictions between where he and Aujla were between April 2 and April 4, 2007 affected his credibility and there was no other evidence to corroborate his side of the story. There was no entry that the tractor was ever in Loma Linda. The street address of his friend that he visited was not given. There was no indication that this person could not be found or brought to court to testify to support him. There is no requirement for that to happen, but had it happened it certainly would have assisted in making a determination that that aspect of his story was credible.

[134] In these passages the trial judge erred in three ways. First, he erred by even considering whether there was corroboration for a trip that Riar did not put forward as an alibi. Second, he misapprehended the evidence. Riar had in fact produced three pieces of evidence to corroborate his visit to Loma Linda. He had marked his log “off duty” and for that reason, did not refer to Loma Linda in his log book. Indeed, he did not testify that the tractor itself was in Loma Linda. He said Aujla dropped him off at a gas station and from there his friend Ravinder Riar picked him up in his own car and drove him to his house, which was ten minutes away. Riar also pointed to telephone calls on Aujla’s cellphone, which were consistent with his trip to Loma Linda. And Riar produced a piece of paper with his friend’s address:

Ravinder Riar

10930 Veach Street

Loma Linda CA

92354

[135] The trial judge failed to appreciate the significance of any of this evidence.

[136] Finally, the trial judge seemed to draw an adverse inference from Riar’s failure to call his friend Ravinder Riar as a witness. To the extent that he did so, the trial judge erred in law. Only in rare circumstances, and with great caution, should a trial judge draw an adverse inference against an accused for failing to call a witness. Doing so risks imposing the burden of adducing evidence on the accused and shifts the onus of proof. See R. v. Zehr (1980), [1981] 54 C.C.C. (3d) 65 (Ont. C.A.); R. v. Ellis, 2013 ONCA 9, 293 C.C.C. (3d) 541, at para 49. One exception to this general rule is where the burden of proof is on the defence – for example, where it has put forward an alibi defence: R. v. N.L.P., 2013 ONCA 773, 305 C.C.C. (3d) 105, at para. 63. Riar made no claim of alibi, and the trial judge was not entitled to draw an adverse inference from his failure to call this witness.

(3) The trial judge wrongly used his rejection of Riar’s “alibi” and his late disclosure as grounds to disbelieve Riar and even to infer his guilt.

[137] The Crown did not cross-examine on an alleged alibi or the late disclosure of it. In his written submissions, however, the trial Crown argued that Riar’s trip to Loma Linda was “consistent with an alibi defence”. He contended:

Mr. Riar’s evidence was lacking in credibility and only served to strengthen the Crown’s case on this issue of knowledge. Riar’s testimony was crafted to rebut the obvious inferences raised by the evidence for the Crown.

[138] And he went further, submitting that Riar’s evidence amounted to “after the fact fabrication”, raised for the first time in his testimony. The Crown’s submission is incorrect in law. A trier of fact is entitled to infer guilt from evidence that is fabricated, but a finding of fabrication requires independent evidence, that is, evidence apart from the evidence showing the statement to be false. See R. v. O’Connor (2002), 2002 3540 (ON CA), 170 C.C.C. (3d) 365 (Ont. C.A.). In this case, there was no such independent evidence.

[139] Nonetheless, the trial judge seemed to adopt the Crown’s submission, as shown by this troubling passage in the trial judge’s reasons:

This is either an attempt to create an alibi for Riar or is a complete fabrication, but both versions can’t be truthful and lead to further questions about the veracity of each person’s evidence, especially as they contradict each other. I realize I must assess each accused’s evidence individually, but this part is important. This was the first time this evidence came to the attention of the Crown, I am led to believe.

[140] In relying on fabrication and late disclosure as grounds to disbelieve Riar and even infer his guilt, the trial judge fell into legal error.

(4) The trial judge erred by failing to resolve the “big discrepancy and contradiction” between the evidence of the two accused, and by using the contradiction to disbelieve both accused.

[141] The trial judge said:

There was a big discrepancy and contradiction between the evidence of Riar and Aujla about whether they were together the whole time they were in California between April 2nd and April 5th, 2007.

[142] Indeed, there was a contradiction between the evidence of Riar and Aujla, though as I have already said, on a matter peripheral to this case. Riar testified he left Aujla and the truck on April 2 to 3 to visit his childhood friend Ravinder Riar in Loma Linda. Aujla said he and Riar were together the entire time. One of the two accused was telling the truth. Instead of resolving the contradiction and making a finding on which accused was being truthful, the trial judge used the contradiction to disbelieve both Riar and Aujla. This was a serious error and it was an error that flowed from the trial judge’s mistaken belief that Riar was putting forward an alibi defence.

[143] This error figured prominently in the trial judge’s rejection of Riar’s testimony. Its prominence is illustrated by several passages in the trial judge’s reasons. First, in a passage I have already quoted:

This is either an attempt to create an alibi for Riar or is a complete fabrication, but both versions can’t be truthful and lead to further questions about the veracity of each person’s evidence, especially as they contradict each other. I realize I must assess each accused’s evidence individually, but this part is important. This was the first time this evidence came to the attention of the Crown, I am led to believe.

[144] And again:

Further, the inconsistencies and contradictions between the two accused as to where they were between April 2 and 4, 2007 was raised by Riar to provide him with an alibi in assisting him in being able to deny his knowledge of the cocaine that may have been in the trailer. This doesn’t make sense because the trailer was not loaded until April 5 and the two of them had been back together again since they went to court on April 4, 2007 and there was no indication of Riar seeing Aujla put anything into the rear of the trailer after it was loaded.

[145] And finally:

With respect to Riar, as I have already said, this evidence was crafted to rebut obvious inferences raised by the evidence of the Crown…. The inconsistencies and contradictions between where he and Aujla were between April 2 and April 4, 2007 affected his credibility and there was no other evidence to corroborate his side of the story.

[146] This last passage shows glaringly the error in the trial judge’s reasons. And, as I have already shown, Riar did provide evidence to corroborate his trip to Loma Linda, though not required to do so.

(5) The trial judge erred by using the Crown’s improper cross-examination to discredit Riar

[147] Over defence counsel’s objection, the trial judge permitted Crown counsel to ask Riar to explain why his evidence about his trip to Loma Linda was inconsistent with Aujla’s account that the two stayed together.

Q. Do you have any explanation as to why Mr. Aujla’s memory might not be as good as yours when he says you and he never left the truck stop?

MS. CRAIG: Your Honour?

THE COURT: Let him answer.

A. I cannot say anything. Maybe he forgot. I can’t say anything.

THE COURT: Yes. Hang on a second, Mr. Pollock. Yes?

MS. CRAIG: Well, it’s complete speculation of Mr. Riar to figure out what’s in Mr. Aujla’s mind. I don’t think it’s a fair question. But, it’s already been answered, so that doesn’t matter.

[148] The respondent[^1] acknowledges this question was improper. The opinion of one witness about the veracity of another is irrelevant, and may risk shifting the burden of proof. See R. v. L.L., 2009 ONCA 413, 244 C.C.C. (3d) 149, at paras. 14-16. Although improper, the question by itself would have had little significance. It became significant, however, when the trial judge relied on Riar’s answer as one of the grounds to discredit his testimony:

He had no explanation as to why Aujla’s memory might not be as good as his when Aujla said he was with Riar the whole time and that the two of them never left the truck stop. He responded by saying “I cannot say anything. Maybe he forgot.”

[149] Standing alone, this error would not justify a new trial. But it is one of the large number of errors that cumulatively produced a miscarriage of justice.

(6) The trial judge improperly used Riar’s knowledge of English to make a negative credibility finding against him.

[150] English was Riar’s second language. At trial, both he and Aujla used a Punjabi interpreter. Although seeming to have little relevance to the case, the trial judge became preoccupied with Riar’s knowledge and understanding of English. Early in his reasons, he listed it as one of the 13 issues he had to resolve:

(11) Is there evidence that either or both of the accused had some knowledge and understanding of the English language?

[151] Defence counsel did refer to their clients’ knowledge of English in their closing submissions. But it was only a minor part of their case. Yet the trial judge referred to this issue time and again in his reasons, and used his assessment of Riar’s understanding of English to make a negative credibility finding against him. And – more important – in doing so, the trial judge misapprehended what, for him, became an important piece of evidence. Two passages from the trial judge’s reasons illustrate his misplaced reliance on Riar’s understanding of English.

[152] The first passage concerns the testimony of the accused about what they understood when they were arrested at customs. Aujla testified that he did not understand the meaning of the words “under arrest”. Riar testified that he understood he was being arrested but could not understand the other words the customs officer said to him because the officer spoke too fast.

[153] The trial judge did not appreciate that Aujla and Riar had given different evidence. He conflated the two, and made a negative finding about Riar’s testimony as if he had testified as Aujla had. After concluding that “each of the two accused are not devoid of a working knowledge of English”, the trial judge said:

I reject totally their testimony that they did not understand what the words “under arrest” meant. I find that they had sufficient knowledge about English to deal with that.

[154] The trial began more than two and a half years after Aujla and Riar were arrested, so one could reasonably assume their English had improved in the intervening time. Even apart from that consideration, the trial judge misapprehended Riar’s evidence. Riar testified he understood he was being arrested, as the following passages from his evidence demonstrate:

Q. And what did you – what did they tell you?

A. They said, “We have to arrest you.”

Q. Is that all they said?

A. They were speaking very fast. Whatever I could understand with – that, “We’re going to arrest you.”

And:

Q. So when did that happen?

A. When they said they’re going to arrest us. Then they made us stand with the glass, and that’s when they searched us.

[155] The trial judge was simply wrong, and his misunderstanding of Riar’s evidence led him to comment unfairly on Riar’s credibility.

[156] The second passage in the trial judge’s reasons demonstrating his misplaced reliance on Riar’s understanding of English arose out of the cross-examination of Riar. During Riar’s testimony, the trial judge twice noted that Riar had answered in English before the question was translated into Punjabi. Riar’s defence counsel then asked to re-examine her client on his understanding of English. The trial judge refused, saying he had simply noted the exchange. But, in his reasons, the trial judge made a point of commenting on Riar’s understanding of English.

His friend asked Aujla to come along but he refused. Aujla did not know his friend before. This was never taken up with Aujla in his examination in-chief or his cross-examination as I recall. At this point, I noted that the question was asked in English about whether Aujla and the friend knew each other and Riar answered “no” in English before the question was translated into Punjabi. This occurred more than once during the cross-examination.

[157] This is admittedly a small point, but it is yet another sign of an unfair trial.

(7) The trial judge placed excessive weight on Riar’s false employment record and reference letters in determining that he was not credible

[158] In his testimony, Riar candidly acknowledged that his job application to Aujla Transport contained a falsified employment history. He also acknowledged that the letters of reference he provided were not accurate. He testified that drivers were required to have two years of experience in order to qualify for insurance, and that a dispatcher at Aujla Transport helped him embellish his record.

[159] The trial judge relied heavily on these earlier untruths in rejecting Riar’s credibility. Although he was, of course, entitled to take into account this evidence of dishonesty in assessing the appellant’s credibility, the extent to which he did so was unreasonable. He effectively held that Riar’s dishonesty in connection with his application for employment showed Riar to be generally of bad character, with a propensity for dishonesty. He then used what he viewed as Riar’s propensity for dishonesty as a justification for rejecting Riar’s claim of no knowledge of the cocaine.

[160] In his analysis of Riar’s knowledge, the trial judge said:

The fraudulent letters relied upon by him to gain employment indicated that he had little respect for the truth. His evidence was riddled with contaminated untruths. Therefore again, on the totality of the evidence given by Riar, I cannot conclude that he was a truthful and honest witness and his evidence leads me to the inescapable conclusion beyond a reasonable doubt that his evidence is not credible, believable or reliable when he denied knowledge of and control of the cocaine.

[161] And again, when assessing Riar’s credibility:

The fraudulent letters Riar submitted to Aujla Transport are clearly indicative of a person who will falsify his acts and is a clear indication that he is an untruthful person and that his evidence is contaminated with untruths and therefore not credible, believable or reliable.

[162] Although the trial judge could look at previous acts of dishonesty in assessing credibility, the way he did so here was unreasonable. He took no account of the context for the earlier misrepresentations, or that Riar candidly acknowledged these misrepresentations in his testimony. He appeared to make no distinction between lying to the court and falsifying a job application. This credibility assessment crossed the line into propensity reasoning. The trial judge appears to conclude that because Riar lied on his job application and reference letters, he was an “untruthful person” who could not be expected to tell the truth in any context. The excessive weight the trial judge placed on Riar’s lies in connection with the employment application unfairly tainted his reception of Riar’s trial testimony.

(8) The trial judge erred by failing to consider the liability of each accused separately.

[163] Riar and Aujla were entitled to have their guilt or innocence assessed individually. And, at times in his lengthy reasons, the trial judge seemed to recognize his obligation to consider the liability of each accused separately. But, in the critical part of his reasons where he made his findings on the knowledge of each accused, he came to the “inescapable conclusion” that because of the value of the cocaine, both accused must have knowingly imported the drugs:

The value of the goods discovered leads me to conclude that it is highly unlikely that any person would entrust goods worth $3.5 million to a person or persons who had no knowledge of their existence and therefore risk losing everything by any number of ways. That leads to the inescapable conclusion that because of the value in this particular case being $3.5 million, that I can clearly infer that each of the accused had knowledge on that factor alone. However, with respect to Aujla there is the additional factor of his demeanour at primary inspection observed by BSO Matos.

I have posited at the end of this judgment further scenarios as to how the cocaine was most likely placed in the trailer. It makes no sense whatever to guesstimate that this was done without the knowledge of both of the accused for the reasons set out above respecting the value of the cocaine. Therefore, I am satisfied beyond a reasonable doubt that each of the two accused had the requisite knowledge and control required for a conviction with respect to these charges before the court.

[164] The trial judge’s reasoning is illogical. The amount and value of the cocaine could reasonably support the inference that one of the accused had knowledge – but not both. The trial judge never explained why he inferred from the value of the cocaine the knowledge of both Aujla and Riar. In drawing this inference and in failing to explain it, he erred in law.

D. Conclusion

[165] The central issue in this case was knowledge. Did Riar know that 37 kilograms of cocaine were secreted in the trailer? He testified that he did not know. The trial judge disbelieved him and found that the Crown had proved Riar knowingly imported the cocaine into Canada.

[166] The trial judge had grounds, reasonably open to him, to reject Riar’s testimony. My colleague has referred to these grounds in her reasons. But in his rejection of Riar’s testimony, the trial judge made numerous errors. These errors materially affected his assessment of Riar’s credibility. They tainted his credibility finding to such an extent that they deprived Riar of a fair trial. See R. v. Morrissey; R. v. Lohrer. I would allow Riar’s conviction appeal, set aside his convictions and order a new trial.

Released: “J.L.” May 15, 2015

“John Laskin J.A.”

[^1]: Mr. Piafsky, counsel for the Crown on appeal, was not counsel at trial.