COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Chhina, 2016 ONCA 663
DATE: 20160909
DOCKET: C59284
Watt, Epstein and Tulloch JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Sukhraj Singh Chhina
Appellant
Mark Halfyard and Breana Vandebeek, for the appellant
Xenia Proestos and Yael Pressman, for the respondent
Heard: March 24, 2016
On appeal from the convictions entered by Justice John A. Desotti of the Superior Court of Justice on June 16, 2014, with reasons reported 2014 ONSC 3651.
Tulloch J.A.:
A. Introduction
[1] The appellant, Sukhraj Singh Chhina, was convicted of importing and possession for the purpose of trafficking cocaine. In 2010, customs officials discovered 1.2 kilograms of cocaine wrapped in the appellant’s t-shirt in a fuse box in the cab of a truck in which the appellant was a passenger. Both the appellant and the truck’s driver, Mr. Kuljinder Lally, were charged separately with the same offences. Both men testified at the appellant’s trial and denied putting the cocaine in the fuse box.
[2] The appellant was convicted and now appeals. He argues that the trial judge made several errors that ultimately tainted his assessment of the appellant`s credibility. He also seeks to introduce fresh evidence, namely a “will say” statement from a customs officer. For the reasons that follow, I would dismiss the appeal.
B. BACKGROUND
[3] The appellant is a truck driver. In June 2010, he was delivering goods in the United States when he began experiencing mechanical problems with his truck. He contacted his trucking company from a truck stop in Michigan. According to the appellant, he was advised to leave the truck at the stop and that someone would attend to its removal. The appellant testified that he left the keys to the truck on a tool box affixed to the truck’s exterior and informed the company where they could be found.
[4] When the appellant abandoned the truck, he was transporting a shipment of oranges and had been in the United States for approximately ten to twelve days. His I-94, a visa waiver form that enables Canadian truckers to deliver goods in the United States, had already expired.
[5] Mr. Lally, another truck driver known to the appellant, was contacted by the appellant to attend to the truck stop to give the appellant a ride. Mr. Lally worked for a different trucking company owned by the appellant’s brother-in-law. Although initially reluctant because of fatigue, Mr. Lally agreed to pick up the appellant. He drove to the stop and the appellant got into the truck. He was carrying a blue duffle bag. According to the appellant, once inside, he removed his dirty and sweaty t-shirt and placed it on top of the bag.
[6] The truck proceeded directly to the border without incident. En route, the appellant told Mr. Lally not to drive down the middle of the two-lane highway for safety reasons and asked to stop at U.S. Customs before crossing the border to deposit his expired I-94. Mr. Lally told the appellant that it was safer to drive in the middle of the road when there was no traffic. Mr. Lally refused to stop at U.S. Customs, indicating that he was tired and would be returning to the United States the next day and could deposit the expired I-94 then.
[7] At Canadian Customs, the appellant and Mr. Lally provided their papers and were questioned by the primary officer. During this questioning, Mr. Lally indicated to the officer that he had only been in the United States for one day.
[8] Because the appellant’s name flagged a “look out” designation, the men were directed to a secondary inspection. Mr. Lally backed the truck up, got out to cut the seal on the trailer, and returned to the cab to get identification before going into the secondary inspection office. According to the appellant, at the secondary office, he got out of the truck’s cab and waited for a period of time outside the driver-side door before Mr. Lally left the vehicle. Mr. Lally, in contrast, testified that he was the first to leave the vehicle and that he observed the appellant with his hands on or proximate to a fuse box in the truck’s cab where the cocaine was later found.
[9] There were video recordings of the secondary inspection area. The recordings show Mr. Lally leaving the truck to cut the seal at the truck’s rear doors. As he leaves, the appellant can be seen getting out of the cab through the passenger-side door, walking around the front of the truck towards the driver’s side, and then quickly returning to and entering the cab.
[10] Customs officers eventually searched the interior of the truck cab. There they found a brick of cocaine wrapped in the appellant’s t-shirt in a fuse box in front of the passenger seat where the appellant had been sitting. The appellant’s DNA was also later found on the t-shirt.
[11] The appellant and Mr. Lally were charged separately with importing and possession for the purpose of trafficking cocaine. Mr. Lally’s charges were outstanding at the time he testified at the appellant’s trial. He was treated as a Vetrovec witness.
[12] The trial judge stated that the only real issue for him was whether he was satisfied beyond a reasonable doubt that the Crown had established the appellant’s guilt based on the evidence or lack thereof. He noted he was mindful of the principles in W. (D.) and had self-administered a Vetrovec caution for Mr. Lally’s evidence.
[13] The trial judge ultimately found the appellant guilty of the offences charged. He rejected the appellant’s version of events, listing several concerns with the appellant’s evidence. He noted that the only real timeframe that the cocaine could have been hidden in the fuse box was after the appellant was picked up and before the secondary inspection. In the trial judge’s view, if Mr. Lally was trafficking cocaine, he might have considered concealing it in a location other than his cab.
[14] Furthermore, on the appellant’s own evidence, Mr. Lally was only alone in the cab for a brief few moments at the secondary inspection and did nothing suspicious during that time. The appellant, in contrast, was seen on video furtively moving from the passenger-side door to the front of the cab, seemingly to confirm Mr. Lally’s whereabouts after he left to cut the truck’s seal. He then quickly returned to and re-entered the truck.
[15] The trial judge accepted Mr. Lally’s evidence that he got out of the truck first at the secondary inspection, reasoning in part that it did not make sense that Mr. Lally, who had already been driving for a long time and would have presumably been impatient to have the secondary inspection completed, would wait inside the cab while the appellant was already outside his door.
[16] In addition, the trial judge observed that the appellant lied to the customs officer about his time in the United States and looked straight ahead while answering the officer’s questions. The trial judge inferred that he lied in order to avoid a secondary inspection, precisely the sort of inspection a trafficker with a brick of cocaine would want to avoid.
[17] Moreover, the trial judge noted that the cocaine was wrapped in the appellant’s t-shirt and found in a fuse box directly in front of where the appellant had been sitting. The trial judge reasoned that the concealment of the cocaine wrapped in a t-shirt in the fuse box was indicative of someone who had limited time to conceal the drugs and did so in a panic.
[18] Finally, most incredible to the trial judge was that the appellant found himself in the United States without a valid I-94, with a load of produce that would go bad unless he kept the truck idling and the refrigeration unit on, combined with the absurdity of leaving his keys, not with the station manager but near a tool box outside his truck, even if the keys were concealed. There was no evidence that the appellant’s trucking company picked up the truck and the appellant indicated he was never given his log books by the company after his arrest, even though they were his property.
[19] Because he was satisfied beyond a reasonable doubt of the appellant’s guilt, the trial judge convicted the appellant of the charged offences.
C. ANALYSIS
(a) Assessments of Credibility
[20] The key issue at trial was credibility. The central issue on appeal is the trial judge’s credibility analysis. The appellant argues that the trial judge committed several errors, including finding facts that were not the proper subject of judicial notice, misapprehending the evidence, and reversing the burden of proof. In the appellant’s view, these errors, alone or cumulatively, led the trial judge to improperly reject the appellant’s evidence and warrant appellate intervention.
[21] On appeal, credibility assessments are entitled to significant deference: R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 11; R. v. Benson, 2015 ONCA 827, at para. 21. Absent palpable and overriding error, an appellate court will not intervene in a trial judge’s credibility analysis: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20; R. v. D.T., 2014 ONCA 44, 305 C.C.C. (3d) 526, at para. 80. The rationale for such a high level of deference was succinctly summarized by Watt J.A. in R. v. Wadforth, 2009 ONCA 716, 247 C.C.C. (3d) 466, at para. 66:
Resolution of credibility controversies is the daily fare of trial judges. Assessment of credibility is a difficult and delicate subject, often defying precise and complete verbalization. At bottom, belief of one witness and disbelief of another, in general or on a specific issue, is an alloy of factors, not a purely intellectual exercise: M. (R.E.) at para. 49; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20. The unique position of trial judges to see and hear witnesses, and the inestimable advantage they enjoy in the result in assessing witnesses’ credibility and the reliability of their evidence, cannot be squandered by unrealistic expectations of scientific precision in language used to describe the complex coalescence of impressions that effuse after watching and listening to witnesses and attempting to reconcile their renditions of critical events: Gagnon at para. 20.
[22] In this case, the trial judge had significant and serious difficulties with the appellant’s evidence. On appeal, the appellant effectively asks this Court to dissect the trial judge’s reasons and scrutinize isolated comments that supported his decision to reject the appellant’s evidence. In my view, these comments, discussed in greater detail below, were reasonably open to the trial judge on the evidence before him and, in any event, were peripheral to the core of the Crown’s evidence that satisfied the judge of the appellant’s guilt. As a result, I would dismiss the appeal.
(1) The trial judge committed no error in taking judicial notice that the produce in the appellant’s truck had to be preserved
[23] The appellant argues that the trial judge erred by improperly taking judicial notice that his truck needed to remain idling for the cooling system to be active to preserve the produce he was transporting. According to the appellant, this erroneous conclusion took on a great deal of prominence in the trial judge’s reasons for rejecting the appellant’s testimony and constitutes reversible error.
[24] I disagree. First, in my view, it was reasonably open to the trial judge to infer that something was operating to preserve the produce. Second, and in any event, the trial judge’s credibility determination did not turn on whether the produce was being preserved and the mechanism for doing so. As Doherty J.A. has explained, judicial notice is a flexible fact-finding mechanism: R. v. Perkins, 2007 ONCA 585, 223 C.C.C. (3d) 289, at para. 38. There are two limits. Judicial notice of an adjudicative fact is only to be taken if either a fact is (i) so notorious and generally accepted that it is not the subject of debate amongst reasonable persons; or (ii) capable of immediate and accurate demonstration by resort to readily accessible sources of undisputed accuracy: Perkins, at para. 39. Its scope depends on the nature of the fact and the centrality of that fact to a dispositive issue in the litigation: Perkins, at para. 38. Here, it was an available common sense inference that something was operating to preserve the produce. While the trial judge made reference to the truck “running” or “idling”, it is clear that he did not believe that the keys had been left in the ignition, but rather that there was some mechanism working to preserve the produce.
[25] In any case, the nature of the truck’s refrigeration mechanism was not central to the trial judge’s reasoning process and his decision to reject the appellant’s evidence. It was open to the trial judge to reject the appellant’s narrative that he had abandoned a truck full of oranges at a truck stop with the keys in a publicly accessible location. That rejection was not premised entirely on the truck having been left idling. Moreover, the trial judge’s negative credibility determination flowed from the overall evidence, and not just on that point.
[26] I would accordingly reject this ground of appeal.
(2) The trial judge did not misapprehend the evidence in relation to the appellant’s expired I-94 nor the time he had spent in the United States
[27] The appellant further contends that the trial judge misapprehended the evidence in two main regards. First, the appellant argues that the trial judge misapprehended the evidence with respect to his expired I-94 by erroneously stating that both the appellant and Mr. Lally testified that the appellant wanted Mr. Lally (as opposed to the appellant himself) to deposit the expired I-94 at U.S. Customs. Second, the appellant submits that the trial judge erred in finding that the appellant “lied” to the primary customs officer about the length of time he had been in the United States because it was actually Mr. Lally, not the appellant, who told the officer that the appellant had only been in the United States for one day. According to the appellant, each of these misapprehensions led the trial judge to draw a negative inference against the appellant’s credibility, resulting in reversible error.
[28] I would reject this argument.
[29] In R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 218, Doherty J.A. explained what constitutes a misapprehension of the evidence: “A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence.” Binnie J., writing for the Supreme Court in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2, cited with approval Doherty J.A.’s comments, noting further that the test for a misapprehension of the evidence is a stringent one:
The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”.
[30] In this case, the test is not met. In my view, the appellant’s evidence about both his I-94 and his interaction with customs officials regarding the length of time he had spent in the United States does not detract from the overwhelming evidence of guilt and, in any event, is peripheral to the trial judge’s reasoning.
[31] First, any alleged misapprehension of the evidence with respect to the appellant’s expired I-94 is immaterial. The trial judge’s observation that both the appellant and Mr. Lally indicated that the appellant wanted Mr. Lally to return the expired I-94 on his behalf (rather than returning it himself) did not play an essential part in the trial judge’s reasoning process. In reviewing the evidence, the trial judge posited whether asking Mr. Lally to drop off the expired I-94 was necessary to provide the appellant with an opportunity to stash the cocaine, but never returned to the issue. Simply put, the evidence about whether the appellant wanted to return the I-94 himself or whether he wanted Mr. Lally to return it on his behalf was not central to the trial judge’s analysis. Consequently, any alleged misapprehension of this evidence does not, in my view, warrant appellate intervention.
[32] Similarly, the trial judge’s conclusion that the appellant lied to the customs officer by indicating that he had only been in the United States for one day does not amount to a misapprehension of the evidence warranting intervention. While the appellant testified that it was Mr. Lally who told the officer that he had been in the United States for one day, it was reasonably open to the trial judge to conclude that the appellant deceived the officer. Even accepting the appellant’s testimony, the appellant allowed information about himself to be conveyed to the officer that he knew to be false. The trial judge’s observation that the appellant “lied” to the officer when he “indicated” that he had only been in the United States for one day was reasonably open to the judge on the evidence, regardless of who uttered the words.
[33] Contrary to the appellant’s submissions, the trial judge did not draw a negative inference against the appellant’s credibility because he misapprehended the evidence. There was ample evidence to support the trial judge’s verdict and any alleged misapprehension of the evidence was not material to the reasoning process resulting in the conviction.
(3) The trial judge did not reverse the burden of proof
[34] The Appellant further argues that the trial judge committed a reversible error by reversing the burden of proof and requiring him to lead evidence to corroborate his version of events. More specifically, the appellant alleges that the trial judge was critical that he did not lead evidence of his interaction with his trucking company. According to the appellant, the trial judge erroneously reversed the burden of proof and used his failure to lead corroborating evidence to denigrate his credibility.
[35] I would reject this argument. The trial judge’s observation that there was no evidence to substantiate the appellant’s story cannot be equated with reversing the burden of proof. Having correctly set out the principles in W.(D.), the trial judge rightly considered whether he believed the appellant’s evidence in the context of all the other evidence. His comment about the absence of evidence corroborating the appellant’s version of events stems from his concern that the appellant’s account could not be reconciled with the entirety of the evidence. The trial judge did not, as the appellant suggests, impose a burden on him to lead evidence corroborating his version of events.
[36] In any case, the significance of the absence of corroborating evidence concerning the appellant’s interaction with his trucking company relates to only one minor aspect of the evidence. Regardless of whether the appellant had evidence confirming the content of this interaction, the trial judge rightly observed that a brick of cocaine was found wrapped in the appellant’s t-shirt in a fuse box in front of where he had been sitting. Reading the reasons as a whole, it is clear that the trial judge respected the W.(D.) principles and was not under any misapprehension as to the correct burden of proof to apply.
(4) Conclusion: The trial judge’s credibility assessment is not the result of a reversible error
[37] The appellant has failed to show that the trial judge’s credibility assessment was tainted by reversible error. As a result, I would not give effect to this ground of appeal.
D. Fresh Evidence
[38] The appellant filed an application to admit fresh evidence, namely a “will say” statement from a customs officer indicating that Mr. Lally responded “today” when asked how long the parties had been in the United States. The appellant argues that this evidence undermines the trial judge’s finding that the appellant lied about how long he was in the United States.
[39] I would dismiss the application to admit this evidence. The test for the admission of fresh evidence on appeal is governed by the four criteria set out R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, namely due diligence, relevance, credibility and impact on the result. In my view, the appellant has failed to satisfy this test.
[40] Due diligence has not been demonstrated since, as acknowledged by the appellant, the will-say of the officer was available prior to trial and trial counsel chose not to cross-examine the officer on that point.
[41] In any event, the fresh evidence would not have any impact on the result of this case. As explained above, regardless of who told the officer that the appellant had only been in the United States for one day, it was open to the trial judge to find that the appellant lied to the officer through adoption or omission, that he had only been in the country for one day. There was overwhelming evidence to support the trial judge’s decision to reject the appellant’s evidence and to convict him of the charged offences. As a result, I would dismiss the appellant’s fresh evidence application.
E. DISPOSITION
[42] For the reasons above, I would dismiss the appeal.
Released: “DW” SEP 9 2016
“M. Tulloch J.A.”
“I agree. David Watt J.A.”
“I agree. Gloria Epstein J.A.”