ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-2253
Delivered Orally: December 4, 2012

BETWEEN:

HER MAJESTY THE QUEEN – and – GORAN MASLIC and CHRISTOPHER JAMES BORONKA Defendants

Edward Posliff, for the Crown

Ken Marley, for the Defendant Goran Maslic
Ravin Pillay, for the Defendant Christopher Boronka

HEARD: September 10, 11, 12, 13, 17, 18, 19, 20, 2012.

reasons for judgment

pomerance j.:

INTRODUCTION AND OVERVIEW

1The accused Goran Maslic and Christopher James Boronka are charged with one count of unlawfully importing cocaine into Canada, contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“ CDSA ”) , and one count of possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the CDSA. On September 14, 2009, Canadian Border Service Officials discovered 45 kilograms of cocaine concealed in a shipment of peppers being driven across the Canada/U.S. Border by the accused. The 45 bricks of cocaine were found in five boxes, loaded on a pallet at the very back of the trailer. There is no issue that the substance found in the boxes was cocaine and that it was being imported into Canada. The issue to be determined at trial is whether the accused had knowledge and control of the cocaine in the back of the truck; whether they were, at law, in possession of the contraband.

2It is the position of the Crown that the offences have been proved beyond a reasonable doubt. The Crown posits that, sometime after picking up the load of peppers from a facility in California, the accused came into possession of the cocaine and concealed it in the boxes of peppers. Mr. Posliff, for the Crown, argued that it would have been very difficult for someone to conceal the cocaine in the boxes before they were loaded on the accused individuals’ truck. He relied on the drivers’ logs, which suggested that the accused spent close to two hours in Lake Havasu, Arizona after having picked up the pepper shipment. The Crown posits that it was during this period that the accused received and concealed the contraband.

3Counsel for Mr. Maslic and counsel for Mr. Boronka both contest the Crown’s assertion of proof. Mr. Marley, on behalf of Mr. Maslic, and Mr. Pillay, on behalf of Mr. Boronka, argued that the court should have a reasonable doubt about whether the cocaine was already in the boxes when the peppers were loaded on the truck. The defence relied upon the video evidence depicting the loading of the boxes of peppers onto the accused individuals’ truck in California. The video showed an unusual procedure for the loading of the very pallet of boxes later found to house the cocaine. The persons who loaded the truck were not called to testify at trial. Nor was there any evidence to indicate that the boxes were touched or disturbed by the drivers – or anyone else – between the time they were loaded and the time the cocaine was found by Border officers.

4Having carefully considered the evidence and the arguments of counsel, I have determined that I have a reasonable doubt on the critical question of whether the accused knew that cocaine was concealed in the back of their truck. The circumstances are suspicious. However, I cannot be satisfied on the criminal standard of proof that the accused had knowledge and/or control of the 45 bricks of cocaine hidden in the five boxes of peppers.

5In the reasons that follow, I will explain the basis for this conclusion.

THE EVIDENCE

THE APPREHENSION AT THE BORDER

6The accused entered Canada via the Ambassador Bridge at the Windsor-Detroit Border Crossing. The initial Border officer directed the truck to secondary inspection because a “flag” came up on the computer screen. At secondary inspection, the truck was subject to a VACIS image search. The VACIS effectively took an x-ray of the contents of the truck and allowed Border officers to examine the image for anomalies. Anomalies were observed and it was determined that the truck would be unloaded for closer inspection. The pallets of peppers were offloaded one by one and searched.

7In total, the trailer held 26 pallets of peppers – two rows across and 13 rows deep. Each pallet held 40 boxes, stacked eight high and five across. The cocaine was found in five boxes from a single pallet, situated at the rear driver’s side, closest to the back of the truck. This pallet looked different than the others. It did not have cardboard corners, which are usually used to keep the boxes in place. Nor did it have the usual number of skid bands around it to secure the load. The majority of the pallets were secured with six skid bands. The pallet at the rear driver’s side had only two bands.

8Bricks of cocaine were discovered in five boxes located in the fifth row down from the top. The cocaine was sitting on, under, or was otherwise mixed in with the peppers. The weight of the cocaine with the wrappers was 56.05 kilograms, without wrappers, it amounted to 45 kilograms.

9The boxes containing cocaine were, save for one, marked in some fashion or another. Some boxes were marked with the handwritten letters “ch” and the number “48” on the outside of the box. Some of the bricks of cocaine had “ch” written on them. One of the boxes was marked with the letter “M” and the letters “CH”. Another box had a marking that was either a “V” or, perhaps a checkmark. There was no evidence led as to what these markings might convey. None of the other boxes had any similar or analogous markings. It is open to inference that the marks were intended to identify the boxes containing the contraband.

10When officers searched the cab of the truck, they discovered skid bands similar to those used to secure pallets. However, these skid bands were not in plain view and were only visible during a comprehensive search when the sleeping bunk was lifted. No forensic examination or analysis – for fingerprints, handwriting or other identifying evidence – was ever conducted on the boxes, the bricks of cocaine, or the pallets.

TRACING THE SHIPMENT

11The peppers were picked up by the accused from Western Pre-cooling Systems (“WPS”) located in Oxnar, California. The Crown called only one witness from the WPS facility, Michael Thompson, who is the operations manager. Mr. Thompson did not have any direct dealings with the load picked up by the accused. He testified about the usual procedures surrounding shipments of produce. He also testified about the security cameras in the facility. Through this witness, the Crown introduced video footage of Mr. Maslic going in and out of the facility. The Crown also introduced video footage of the accused individuals’ truck being loaded with the pallets of peppers. This latter video took on significant importance as events unfolded at the trial.

12Mr. Thompson described the process whereby peppers are harvested in fields, placed in large plastic bins, then packaged at the Prime Time Processing facility (“Prime Time”). Prime Time is located approximately 75-80 yards away from WPS. The peppers are brought into Prime Time, sorted by grade, and then packaged in 11, 15 or 25 pound cartons, depending on the desired sale quantities. Other peppers are placed in specialty packs for discount supermarkets. The cartons make their way down a conveyer to a distribution point where they are assembled into pallets. Each pallet is labelled with grade and size, and each pallet typically has corner boards and straps to hold the cartons in place. These are usually cardboard or plastic; they strengthen the pallet, making it more likely that it will remain intact. A corner board might not be used if a pallet is not stacked very high.

13After the pallets are constructed, they are placed on a flat bed truck – 12 at a time – and driven across to the WPS facility. The pallets are received at the Ocean Breeze Cooling (“OBC”) facility where the pallets are removed by forklift. A manifest is signed and identifying information, such as lot number, is recorded. The pallets are then placed on racks in the pre-cooling room where heat is extracted from the product to stop it from rotting.

14From the racks in the pre-cooling room, pallets are selected to meet orders made by customers. The load is usually selected when the driver arrives at the facility to pick up the product. Prime Time will identify the product to be placed on the load with a pick ticket, which identifies the size, grade, date rotation and lot. Within the WPS facility, a forklift driver identifies pallets that match the specifications of the order. He or she pulls that product from the racks in order to load the truck. The forklift driver has the discretion to pull any boxes of peppers that match the specifications of the order.

15When the transport vehicle arrives at WPS, the driver is asked to pull into the dock for loading of the product. Once the truck is backed in, the driver is asked to remove load locks and anything else in the back of the truck. The driver has limited access to the facility, entering through a specific door where he or she checks in. While the truck is being loaded, the driver is to remain within the parameters of a small yellow square painted to the side of the truck. If the driver chooses, he or she can leave that area and watch the loading of the truck from a window in the dispatch area.

16The forklift driver examines the truck for damage and both he/she and the truck driver sign a document attesting to the state of the truck. When loading is completed, the forklift driver inspects the load and signs off, as does the truck driver.

17In this case, the video depicting the loading of the accused individuals’ truck showed that pallets were selected and placed on the truck by the forklift driver. The video depicted the loading dock; there was no video to show what occurred in the area of the cooling racks. At one point in the video, the forklift driver combined two partial pallets. He or she then took boxes from another full pallet to top up the two partial pallets and make it a full pallet. This pallet was one of the last to be loaded, and was placed at the rear of the trailer on the driver’s side. This was the pallet found to contain the cocaine.

18Mr. Thompson testified that, if there are not enough boxes for a full pallet, partial pallets might be combined. He testified that the goal is to get the truck loaded in a timely way. Full pallets are loaded first, and partial pallets are loaded last. There was no evidence to explain why the forklift driver in this case dismantled a full pallet to top up two partial pallets. There is no evidence to indicate why the forklift driver did not simply load the full pallet that was available.

19The pallet that was constructed out of two partial pallets and additional boxes from a full pallet was unusual in other respects. This particular pallet did not have corner boards placed on it. Nor was it secured with the usual number of skid bands.

20Mr. Thompson could not identify the employee from Prime Time that had lotted out the peppers in the shipment placed on the accused individuals’ truck. Mr. Thompson testified that there were three forklift drivers on duty when the accused individuals’ truck was loaded, but he could not remember who they were. Before the peppers were loaded, they had been in the facility for two days. Four shifts of employees had had access to them.

21Once the load was complete, the truck drove away from the facility, with the door still open. The door to the back of the truck was not sealed. At that point in time, seals were not used unless the customer specifically requested it.

22The peppers were ultimately to be delivered to a Loblaws facility in Cambridge, Ontario, the Maple Grow Facility. James Stokes, an employee of Loblaws, was responsible for arranging delivery of orders. He was contacted in September 2009 about the order for the peppers coming from Oxnar, California. Mr. Stokes contacted Ontario Potato Distributing, a company that owns a fleet of trucks and also brokers trucks for loads. He sent the request for pick up and delivery through a computerized system – the Itrade system - which creates the contract. Once the Itrade contract was created, it was for Ontario Potato Distributing to select a driver to pick up the load

23In this instance, Ontario Potato Distributing contracted the pick up and delivery out to another company, JBT Transport (“JBT”), located in Ayr, Ontario. Mark Vona worked as a dispatcher for JBT in September 2009. It was his job to find loads for trucks and dispatch them. JBT owned several trucks, but also contracted with other owner operators. Mr. Vona dispatched Mr. Maslic and Mr. Boronka to pick up the load of peppers from WPS in Oxnar, California. According to Mr. Vona, the accused worked for an independent owner operator. JBT did not own the truck they drove; neither did they.

24The dispatch was sent by Mr. Vona to the accused by way of Qualcomm, a satellite messaging system. He did not receive any response but testified that he usually only heard from the drivers if there was a problem. He did not recall any other messages regarding this load of peppers. He testified that other dispatchers could have been in touch with the drivers by way of Qualcomm or by way of cell phone during the course of the trip. Dispatchers worked around the clock and could be reached by drivers at any time of the day or night via cell phone.

25The usual time period between the time of order and expected delivery was five days. Drivers would arrive at the Maple Grow Facility by appointment, set up more than 24 hours in advance. Mark Trepanier worked in the Loss Prevention Department of Loblaws in September 2009. He described the procedure for unloading a truck delivering goods to the Maple Grow Facility in Cambridge. He also testified about the security measures in place in the facility. According to Mr. Trepanier, orders were unloaded on a first come – first serve basis. There was no way of predicting which employee would unload which loads.

26The evidence established that any number of individuals would have been aware of the order and the fact that the accused individuals’ truck was dispatched to pick up the peppers in Oxnar, California. Within Loblaws, there could be up to 12 persons who would have access to the Itrade system and could discern that the load had been ordered. Perhaps three persons within Ontario Potato Distributing would have had access to the system information about the order. The vendor, Prime Time, situated in California, would also have advance knowledge of the shipment.

27The evidence did not definitively establish the final destination of the load driven by the accused. It was not clear whether the load was destined for the JBT facility in Ayr, or the Loblaws facility in Cambridge. JBT served as a “hub” for picking up and dropping off loads. Candace Shaw, the Safety and Compliance Manager for JBT testified that the company distinguished between highway drivers and city drivers. If a driver was coming from California, he or she might drop the load off at JBT where it would then be picked up by a city driver. Or, the highway driver might take it to its final end-point. Ayr and Cambridge were only about 20 km apart. The Crown argued that, in these circumstances, it was likely that the accused were expected to take the load directly to the Loblaws facility in Cambridge. Ms. Shaw testified that a refrigerated truck, such as that driven by the accused, would often take the load through to its final destination. There were no cooling areas for perishable goods at JBT, and it would cost more money for the load to be dropped off at JBT and then delivered by a city driver.

28Other evidence indicated that the accused were to drop the load off at the JBT lot. The JBT Transport Inc. Highway Drivers’ Trip Report, entered as an exhibit at the trial, set out the location of the various pick ups, deliveries and border crossings to be undertaken by the accused on their journey. This document, which was filled out before the trip began, listed the final delivery point as Ayr.

ANALYSIS

29The case against the accused individuals consists of circumstantial evidence. It is well settled that, in order for a conviction to ensue, the guilt of the accused must be the only rational inference to be drawn from the evidence. The existence of other rational inferences need only raise a reasonable doubt. There is no onus on the accused to prove an alternate theory. Inferences must be grounded in evidence and logically linked to the underlying facts. They must not be too remote or speculative. Finally, it is the cumulative weight of the evidence that must be considered in determining whether the guilt of the accused has been proved beyond a reasonable doubt.

30On a charge of importing, the Crown has the burden of proving that the accused had the requisite mental intent to commit the act. In order to prove possession, the Crown must prove two distinct elements: knowledge and control. Constructive possession may be established where the accused does not, in fact, exercise control over the object in question, but has power or authority over the object. The right to grant or withhold consent to drugs being stored is sufficient for constructive possession to be established.

31In this case, it is acknowledged by all parties that both accused stand in the same position vis-à-vis the charges. There is no basis on which to distinguish them. The Crown has either proved the case against both accused, or against neither of them.

32All counsel referred to various cases in which persons had been found either guilty or not guilty of importing offences. Of course, every case must turn on its own facts. To this extent, I find the authorities of assistance on the applicable legal principles, but they are otherwise of limited application.

33Having regard to the whole of the evidence, I am left with a reasonable doubt as to whether the accused were involved in, or aware of, the concealment of cocaine in the boxes of peppers. The circumstances are suspicious. However, it is impossible to conclude that the guilt of the accused is the only rational inference to be drawn on the evidence.

34The biggest concern relates to the point at which the peppers were loaded onto the truck. The accused were not involved in the loading of the peppers. They observed the process, but did not have any direct contact with the produce at that time. The video establishes that the loading procedure was somewhat irregular as it related to the pallet found to house the cocaine. Rather than load the last full pallet, the forklift driver combined two partial pallets and then took some additional boxes from the full pallet to top the partial pallets up. This was at odds with the procedure described by Mr. Thompson, whereby full pallets were loaded first, and only then were partial pallets considered. The forklift driver had the discretion to choose from amongst the pallets that matched the order specifications. There is no evidence to explain why these particular boxes were selected or loaded in this particular way on the accused individuals’ truck. This is not to say that the forklift driver was complicit in the loading of the cocaine. It is only to say that, absent evidence to explain the unusual loading procedure, important questions remain unanswered.

35The Crown suggested that the loading procedure might have been based on the “first in, first out” principle. That is, the forklift driver may have been trying to load older peppers before fresher peppers. While that would serve as a rational explanation, it is nowhere established in the evidence before me. There is no evidence of such a policy, nor is there any evidence to indicate how long the respective pallets had been in the facility.

36The failure to hear from persons directly involved in placing the load on the truck raises other questions. There is no evidence to indicate the condition of the boxes at the time they were loaded. Did they weigh more than they should have? Did they have unusual markings when they were loaded? Why were no corner boards placed on the pallet? Why were there only a few skid bands in place?

37Moreover, there is no evidence to suggest that that pallet was touched or disturbed by the accused – or anyone else – between the time it was loaded and the time it was searched by Border officers. This is not a case in which there were signs of tampering, or where the absence of corner boards or skid bands could be attributed to the accused. We know, from the video, that the pallet was, by all external appearances, in the same condition when it was searched as when it was loaded.

38The markings on the boxes must also be considered. All boxes containing cocaine, with the exception of one, were marked in some fashion with letters, numbers or a check mark. If the accused were picking up and delivering the drugs, there would be no need for such markings as they would presumably know which boxes contained the contraband. There was no forensic evidence linking the accused to the boxes. No fingerprint or handwriting analysis was conducted.

39I acknowledge that, as a general proposition, one might think it odd for a drug trafficker to entrust a large quantity to cocaine to drivers unconnected with the enterprise. Traffickers might be wary of risking lucrative contraband by placing it in the custody of persons who might discover it and contact the police or dispose of it in some other fashion. But this scenario is not so far-fetched as to be inconceivable, particularly where the trafficker can claim some measure of control at the points of pick up and delivery.

40I have already referred to the videotape of the loading of the boxes at the WPS facility. The Crown argued that it would have been extremely difficult for someone to sneak 45 bricks of cocaine into the facility and then into the boxes. I accept that this would have been a challenging feat, but cannot exclude it as a possibility. While security cameras were placed throughout the WPS facility, no footage was introduced of the cooling room where the boxes of peppers were stored for some days before being loaded. There is no evidence to indicate that the peppers were not disturbed during this period.

41As for the delivery point, there is some uncertainty over whether the peppers were to be dropped off at the JBT facility in Ayr, or the Loblaws facility in Cambridge. The Crown, relying on the evidence of Candace Shaw, argued that the peppers were likely destined for Cambridge. Ms. Shaw did testify that loads coming in with highway drivers were often delivered to the final destination, rather than being offloaded in Ayr for delivery by city drivers. The Crown pointed out that, if the peppers were destined for Cambridge, it would have been close to impossible for a third party trafficker to intercept them, given the security measures in place at Maple Grow, and the randomness with which employees are assigned to deal with loads.

42I find, on the evidence, that the accused drivers were not taking the peppers to Cambridge. Rather, they were taking the peppers to JBT transport in Ayr. I base this finding on the drivers’ trip report, which expressly lists Ayr as the final drop off point. The Trip Report is relied upon for various business purposes. There is no reason to doubt the veracity or reliability of the locations listed on this document. Candace Shaw acknowledged the possibility that city drivers employed by JBT might drive loads from the JBT facility to their final destination, even when those loads emanated from the United States.

43Once it is accepted that the load was destined for Ayr, rather than Cambridge, the possibility of third party interception is increased. The JBT facility did not have the same level of security as did Maple Grow. The gate leading into the facility was only locked after hours and on weekends. Any number of persons – virtually all the drivers – had keys that would allow access during the periods in which the gate was locked. As indicated earlier, any number of persons had access to computerized information documenting the anticipated pick up and delivery of the load.

44I accept that it would have been challenging for third party traffickers to orchestrate the loading and drop off of the cocaine without the assistance of the drivers. However, the sophistication and ingenuity of persons in the drug trade should not be underestimated. In this particular case, the scenario becomes reasonably plausible when one considers the other evidence tending to raise a reasonable doubt – the irregularities in the loading of the truck and the absence of evidence that the accused ever handled the pallets. I need not be satisfied that the third party scenario was actually in play, or that it was even more likely than not. If the possibility of that scenario raises a reasonable doubt as to the accused’s guilt, they must be found not guilty of the offences.

45Some additional aspects of the case should be mentioned. During the search of the cab of the truck, officers found strapping bands similar to those used to wrap pallets. I do not find this evidence to be compelling, given that the strapping was concealed underneath the bunk. It was not in plain view. The truck was not owned by the accused and the strapping may have been concealed under the bunk some time earlier by another driver or the owner.

46Finally, the drivers’ logs would indicate that the accused spent close to two hours in Lake Havasu, Arizona some time after picking up the load of peppers in Oxnar. After this stop, the accused drove straight through to the Windsor/Detroit Border. There is no apparent explanation for the stop; for example, there is no fuel receipt for this location. It is said by the Crown that this is likely the period when the accused received and concealed the cocaine in amongst the peppers. If the other evidence pointed to the complicity of the accused in the storage of the contraband, I might well find that some aspect of the offence took place in Lake Havasu. However, for reasons already mentioned, I am not satisfied that the accused were involved in or aware of the cocaine in the back of the truck. Against that backdrop, the unexplained stop is not incriminating. Nor does it, standing alone, provide any cogent evidence of guilt.

47For all of these reasons, I find that the Crown has failed to prove the offences beyond a reasonable doubt.

48Goran Maslic and Christopher Boronka shall each be found not guilty on counts 1 and 2 on the indictment.

Renee M. Pomerance