Court of Appeal for Ontario

Date: 2023-11-14 Docket: COA-22-CR-0173 Judges: Feldman, Brown and Monahan JJ.A.

Between: His Majesty the King, Respondent And: Dmitri Davidov, Appellant

Counsel: Michael Lacy and Alexa Banister-Thompson, for the appellant Ghazala Zaman and Sam Weinstock, for the respondent

Heard: November 9, 2023

On appeal from the conviction entered on July 15, 2022, and the sentence imposed on October 18, 2022, by Justice Meredith J. Donohue of the Superior Court of Justice, with reasons reported at 2022 ONSC 4040 and 2022 ONSC 5839.

Reasons for Decision

Overview

[1] The appellant, Dmitri Davidov, was convicted on a two-count indictment of importation of a Schedule I substance (cocaine) and conspiracy to commit the importation of a Schedule I substance (cocaine). The appellant was sentenced to terms of imprisonment of twelve and nine years concurrent. As well, the sentencing judge imposed a non-communication order pursuant to s. 743.21(1) of the Criminal Code in respect of certain witnesses who testified at trial. The appellant appeals his conviction and seeks leave to appeal the non-communication order.

[2] At the material time, the appellant worked as the head dispatcher for a trucking carrier company, Boreas Logistics. The charges stemmed from a drug importation scheme under which 50 kilograms of cocaine, with a street value of $4.5 million, were imported into Canada on a Boreas trailer. The cocaine was hidden in bins containing a cargo of plastic resin (the “Nexan Load”), and was discovered during an inspection of the trailer at the border. The cargo in which the cocaine was hidden originated in Texas and, after an inordinate delay, was directed by the appellant to proceed to New Jersey and then redirected to cross the border at Queenston.

[3] At trial, the appellant conceded there was a conspiracy. The sole issue was whether the appellant had knowledge of the conspiracy and knowledge that there was cocaine in the trailer when it crossed the border into Canada. The appellant testified that he had no knowledge of the conspiracy, and he intimated that another Boreas employee, Vadim, might have been the more likely organizer of the conspiracy. The trial judge was satisfied beyond a reasonable doubt that the appellant knew and participated in a conspiracy to import cocaine using the Nexan Load in the Boreas trailer. She convicted the appellant.

Conviction Appeal

[4] The appellant raises a single ground of appeal on his conviction appeal. The appellant made a voluntary pre-trial statement to the police in which he denied knowledge of or involvement in the importation scheme. The appellant then testified at trial. The Crown did not adduce the appellant’s police statement as part of its case. However, the Crown cross-examined the appellant at length on the statement, especially on inconsistencies between the statement and his evidence at trial.

[5] The appellant submits the trial judge made two related errors in how she used the evidence of those inconsistencies.

[6] First, the appellant submits, and the Crown agrees, that while the trial judge could use such inconsistencies as part of her assessment of the appellant’s credibility, such inconsistencies could not ground inferences about the appellant’s guilt: R. v. Hill, 2015 ONCA 616, 339 O.A.C. 90, at para. 46; R. v. Kiss, 2018 ONCA 184, at para. 49. The appellant argues the trial judge committed a legal error by using those inconsistencies for the improper purpose of inferring the appellant knew of the illegal importation scheme and participated in it.

[7] Second, and relatedly, the appellant submits, and again the Crown agrees, that: (i) the law draws a distinction between statements or testimony by an accused that are disbelieved and rejected, and those that are found to be fabricated in an effort to avoid culpability; (ii) only the latter can be considered as circumstantial evidence of guilt; and (iii) to find that a statement was fabricated, there must be independent evidence that the exculpatory statement was deliberately made for the purpose of avoiding culpability: R. v. U.K., 2023 ONCA 587, at paras. 71-72.

[8] The Crown did not adduce the appellant’s statement to the police as part of its case; as mentioned, it put parts of the police statement to the appellant during cross-examination. In those circumstances, the appellant contends the trial judge was limited to using any inconsistencies for the purpose of her credibility assessment of the appellant but transgressed that limit in the following two passages of her reasons:

[157] The significant role of Vadim as described by Mr. Davidov at trial was not indicated in his police statement made some four months after the incident. To the extent that Vadim was involved, it is apparent that Mr. Davidov hid that involvement from police. This speaks to his knowledge and complicity to the dealings with this trailer.

[200] Mr. Davidov was evasive in his police statement saying there was nothing unusual with the Nexan load when it was clearly problematic and delayed for well over a week. I found that he gave a deliberate misstatement to police to explain the delayed shipment by saying it may have been due to Mr. Kutaladze being hospitalized. [Emphasis added.]

[9] The respondent Crown contends that when these passages are read within the context of the trial judge’s reasons as a whole, they disclose no error and simply constituted a permissible part of her assessment of the appellant’s credibility.

[10] We are not persuaded the impugned passages in the trial judge’s reasons are amenable to the interpretation advanced by the Crown. In our view, the passages disclose that the trial judge committed legal error by improperly using some of the inconsistencies between the appellant’s statement to the police and his evidence at trial to infer he knew of and participated in the importation scheme.

[11] The Crown further submits that if this court finds that the trial judge committed legal error, it should apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code.

[12] While we are not persuaded the Crown has demonstrated that the trial judge’s legal error was a harmless one, in the sense that it could not have had any impact on the verdict, we are persuaded that the proviso should be applied as the case against the appellant was overwhelming and a conviction would have been inevitable even if the serious error had not been made: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 94.

[13] The evidence, which included evidence of a large volume of communications to which the appellant was a party as detailed in the trial judge’s reasons and the Agreed Statement of Facts, demonstrated that:

a. the appellant was the head dispatcher at Boreas; as such, he knew where his drivers were at all times as they reported to him when they picked up and dropped off cargo, as well as when they required customs documents or funding for fuel; b. the location of each truck was constantly monitored by on-board GPS systems which were observable by the appellant in real time; c. the appellant admittedly lied to the broker about the reason for the delay of the Nexan load, while not taking action to get customs clearance or get the trailer moving from Houston for many days; d. when told by the broker that the Nexan Load should be routed to a New Jersey affiliate of the Ontario customer, the appellant gave directions to the driver to place the trailer in a truck lot in New Jersey for the weekend before delivery to the designated New Jersey warehouse; e. notwithstanding that the appellant was told the load of plastic resin was no longer wanted by the Ontario customer and was to be left in New Jersey, the appellant then directed the driver to bring the Nexan Load across the border into Ontario and sent the driver falsified documents to use in the border crossing.

[14] When taken cumulatively, we are persuaded that this body of circumstantial evidence establishes beyond a reasonable doubt that the appellant’s guilt is the only reasonable inference such evidence permits.

[15] For these reasons, we dismiss the appellant’s appeal from conviction.

Sentence Appeal

[16] As to the sentence appeal, we are not persuaded that the trial judge committed any error in principle or proceeded in an unreasonable manner by exercising her discretion to impose the non-communication order under s. 743.21(1) of the Criminal Code in respect of certain witnesses who testified at the trial. Her goal of protecting the witnesses from contact with the appellant was reasonable in the circumstances.

Disposition

[17] The appeal from conviction is dismissed. While we grant leave to appeal the imposition of the non-communication order, the sentence appeal is also dismissed.

“K. Feldman J.A.”

“David Brown J.A.”

“P.J. Monahan J.A.”