ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-11/1725
DATE: 2013/10/29
BETWEEN:
HER MAJESTY THE QUEEN
D. Anger, for the Crown
- and -
FITZGERALD PATRICK
F. Patrick, in person
HEARD: Sept. 9, 10, 11, 12, and 13, 2013
THE HONOURABLE MR. JUSTICE ARRELL
JUDGMENT
Introduction:
[1] This matter began as a jury trial. On day 4 Mr. Patrick indicated he would like to re-elect judge alone. The Crown consented and the jury was discharged. I continued with the case with the consent of Mr. Patrick.
[2] The Crown proceeded on 2 of the 4 counts against Mr. Patrick. Those two counts were importing marijuana into Canada and possession of marijuana for the purpose of trafficking.
[3] Mr. Patrick has been unable to retain counsel and was self-represented throughout the trial. He spoke with duty counsel during certain parts of the proceeding at my instigation. He elected not to give evidence or call any defence after discussing that issue with duty counsel.
The Facts:
[4] The facts are not really in great dispute. Mr. Patrick is a long-distance truck driver operating out of Mississauga, Ontario. He appears to drive regularly to New Jersey and back to Mississauga. He drove an 18 wheel transport truck with a sleeper compartment as part of the cab.
[5] On October 27, 2009 at around 6:00 p.m. Mr. Patrick was alone in his truck and coming from New Jersey from where he had left approximately 7 to 7 ½ hours earlier, hauling a container of coffee beans.
[6] He was crossing at the Queenston Bridge from the U.S. into Canada. He was in the commercial truck lane and approached the booth occupied by Border Services Officer Davison for his primary inspection.
[7] Officer Davison obtained Mr. Patrick’s passport and documentation for his load. He confirmed that Mr. Patrick was alone in the truck. He identified Mr. Patrick in the courtroom as the driver of the truck. He asked Mr. Patrick some routine questions. He had to ask him to remove his sunglasses. He states Mr. Patrick looked away from him and did not look him in the eye. Officer Davison concluded that Mr. Patrick was somewhat nervous and agitated. He was suspicious. He therefore directed Mr. Patrick to the warehouse for a secondary inspection. He followed Mr. Patrick visually as he left his booth driving his truck to the warehouse where Mr. Patrick was met by Border Services Officer Bacik who directed him to back into one of the 4 bays of the warehouse.
[8] Officer Bacik also confirmed that Mr. Patrick was alone in the vehicle. He had watched the vehicle come from the toll booth as he had been radioed by Officer Davison. Once the truck was parked Mr. Patrick got out of the cab and had some preliminary discussions with Officer Bacik who asked him to wait at a table near the back of the truck.
[9] Officer Bacik then proceeded to search the cab of the truck. He lifted the passenger seat and under the passenger seat found a bundle duct taped with plastic. He then proceeded between the two seats into the sleeper compartment of the truck and located two large black duffel bags. The bags were half-way under the bed in the sleeper compartment with approximately 18 inches of each sticking out and exposed. The bags were approximately 2 feet high and 3 feet long. He unzipped one of the bags and immediately there was a strong odor of marijuana. The bag was full of different sized plastic bundles which were duct taped. The second bag was the same. He zipped them both back up and radioed for assistance.
[10] Officer Bacik testified that the cab of this truck was very clean and there was no odor of marijuana when he first entered it. He also stated that the bundle that was located under the seat required him to flip the seat up and remove the bundle. He testified that someone obviously had to put the bundle there and it was out of sight unless the seat was flipped up. He stated that the two bags in the sleeper compartment were easily visible once one went into the sleeper compartment.
[11] The two duffel bags and the duct taped bundle were removed to a safe room at Canada Border Services. Mr. Patrick was arrested, read his rights and placed in a holding cell. He requested to speak with duty counsel and that was arranged and he did indeed speak with duty counsel.
[12] The RCMP was contacted and Corp. Mitchell attended at Canada Border Services at Queenston later that evening. He was briefed by Canada Customs who advised him that the two duffel bags contained various packages of different sizes which they believed contained marijuana. The bundle from under the passenger seat contained $23,000 U.S. and was in various sized bundles and denominations.
[13] Corp. Mitchell also counted the money and confirmed the amount of $23,000 U.S. He confirmed as well that some of the samples taken from the packages in the duffel bags were marijuana, in his opinion. Border Services had tested some of the bundles with a test kit which also confirmed the substances in the bundles in the duffel bags to be marijuana. The marijuana was weighed and the two duffel bags contained approximately 150 lbs in total.
[14] Corp. Mitchell arrested Mr. Patrick and again read him his rights. Corp. Mitchell recalls again contacting duty counsel and once he was on the line passing the phone to Mr. Patrick and leaving the room. He assumes Mr. Patrick discussed the matter further with duty counsel.
[15] Corp. Mitchell then proceeded to interview Mr. Patrick. There was no video recording facility available at that particular location so a digital recorder was used.
[16] A voir dire was held and I concluded, without hesitation, that Mr. Patrick was well aware of his rights and had spoken with duty counsel once if not twice and answered the questions asked of him voluntarily and of his own free will. The interview was made an exhibit.
[17] The sound quality of the recording, although poor is certainly for the most part decipherable. The court was assisted with a transcript which after listening to the recording on two occasions and comparing it to the transcript concluded that the transcript was accurate.
[18] The statement given by Mr. Patrick makes it clear that he had stopped at a truck stop where there was a public washroom on Cobourg Street in Port Newark, New Jersey that morning.
[19] While stopped at this truck stop he was approached by a gentleman who introduced himself as Chico. Mr. Patrick claims he had never met this gentleman before. Chico told him he wanted him to take something into Canada and he would be paid at least $15,000.00 to $20,000.00 for doing so. Mr. Patrick then left his truck unlocked and went into the public washroom. He was gone for 10 to 15 minutes. When he came back out his statement says Chico told him he had put something in his truck to which Mr. Patrick indicated he had not given Chico permission to do. Mr. Patrick said in his statement that he did not know what had been put in his truck although he did ask Chico what he wanted delivered and the response was “…don’t worry…and I said oh”. He was then given the bundle of money which Mr. Patrick himself put under the passenger seat. He stated that he was aware that it was money but he did not know how much nor did he look inside the package.
[20] Chico told Mr. Patrick that he knew where he was going and that upon him crossing the border around 7 to 8 o’clock that night someone would call him and arrange to pick up what had been placed in his truck. Mr. Patrick gave Chico the phone number to his Iphone on which he could be contacted later that night.
[21] Mr. Patrick was very clear in his statement that he was not threatened by Chico. He also stated he had not done this before. He further stated that he did not look in the bags. He did not smell any marijuana.
[22] Although Mr. Patrick did not testify I made note that in his submissions to me he indicated that he never looked in the sleeper compartment of the truck and did not know the two black bags were there. He further indicated in his submissions that he thought he was simply taking some money across the border. No such evidence was given under oath.
[23] In his statement Mr. Patrick was asked “So did he tell you what it was though, he told you it was drugs right? I I I” Mr. Patrick answered “drugs I offered then I should have known what it was was then” Later in his statement he said “ya I didn’t touch the stuff I didn’t look inside” and further “no I didn’t open the bags” and to the question “you didn’t open the bag, so you were just gonna drive off without even looking in the bags” he replied “I do I didn’t look inside the bags_____”.
[24] A certificate of analysis from Health Canada confirmed that the two bags contained marijuana.
Analysis:
[25] The Crown must prove beyond a reasonable doubt on the importation charge the following:
- That Mr. Patrick imported a substance into Canada.
- That the substance was marijuana.
- That Mr. Patrick knew that the substance was marijuana.
- That the importing was intentional.
[26] There is no doubt that Mr. Patrick was the person responsible for bringing the bags into Canada. He was alone in his truck, the bags were in his truck and he was responsible for driving the truck over the Canadian border.
[27] It is clear that the substance was marijuana.
[28] The real issue is of course, whether the Crown has proven beyond a reasonable doubt that Mr. Patrick knew that the substance was marijuana.
[29] The Crown may prove this element of the offence in one of two ways. One that Mr. Patrick had actual knowledge that the substance was marijuana. The Crown may also prove this element of the offence by proving beyond a reasonable doubt that Mr. Patrick was aware of the need to make an inquiry about the nature of the substance but deliberately failed to do so because he did not want to know the truth about it.
[30] I do not accept that Mr. Patrick did not know that the bags were in his sleeper compartment. His statement makes it clear he knew the bags were in his truck. I also conclude from his statement that he knew the bags contained drugs. In any event, I also conclude that Mr. Patrick’s mens rea has been proven beyond reasonable doubt by his willful blindness. He knew he had contraband in his truck but “…he refrained from obtaining final confirmation because he wanted in the event to be able to deny knowledge.” R. v. Jorgensen (1995), 102 C.C.C. (3d) 97 at135; see also R. v. Malfara 2006 17318 (ON CA), [2006] O.J. No. 2069 at para. 3; R. v. Callejas 2011 ONCA 393 at para. 8; R. v. Morales (2006) 2006 19930 (ON CA), 81 O.R. (3d) 161at Paras. 23 and 26.
[31] It is completely implausible to this court that someone could be approached outside a public washroom at a truck stop by a total stranger and told that they would be paid at least $15,000.00 to $20,000.00 to take something across the border; then to be given a bundle of cash which the person hides under a seat; then be told that something had been put in their truck; then give out their cell number to be contacted upon crossing the border; and then to suggest that over the next 7 ½ hours while driving to the border there was no obligation to see what was put in the truck, look inside the bag of money, make inquiries of Chico or call the authorities.
[32] Under the circumstances as set out in Mr. Patrick’s statement, he knew he was doing something highly illegal. I conclude that the crown has proven beyond a reasonable doubt that he knew he had to make inquiries of Chico, investigate his truck, or at the very least to call the authorities and he elected not to do so. He did not want to know what was in his truck because he knew it was illegal drugs. He was willfully blind as to what he was transporting across the border. This court can only infer that Mr. Patrick elected to turn a blind eye as to what was in his truck out of greed of a payment of at least $15,000.00 to $20,000.00 that he already had possession of. It is not plausible for someone to be told they would be paid at least $15,000.00 to $20,000.00 for one trip across the border without knowing that what they were doing was carting something highly illegal.
[33] Under the circumstances I have no hesitation in finding that the Crown has proven beyond a reasonable doubt that Mr. Patrick was well aware about the need to make inquiries about the nature of the substance put in his truck but deliberately failed to do so because he did not want to know the truth.
[34] I conclude as well that the Crown has proven beyond a reasonable doubt that Mr. Patrick intended to import the marijuana. A person means or intends to do actually what he does. I have already concluded that Mr. Patrick knew he was transporting marijuana or drugs of some sort. He knew he would be paid to do so and he gave out his phone number so he could be contacted once he had crossed the border when delivery would be arranged. Clearly under those circumstances he intended to import the marijuana across the border, otherwise he would not be paid.
[35] For all of those reasons I conclude that I am left with no reasonable doubt as to Mr. Patrick’s guilt based on his statement and further I have no hesitation in concluding from the evidence that I accept that the Crown has proven beyond a reasonable doubt that Mr. Patrick intended to import marijuana into Canada contrary to the Controlled Drug and Substances Act and I find him guilty of that charge.
[36] With regards to the second charge of unlawfully possessing marijuana for the purpose of trafficking I also conclude that I am not left with any reasonable doubt of Mr. Patrick’s guilt based on his statement. I further conclude that the Crown has proven the essential elements of that offence beyond a reasonable doubt.
[37] I have already found Mr. Patrick was in possession of a substance and that the substance was marijuana. He knew or was willfully blind to the fact that the substance was marijuana and as it was in his truck and he was alone in the truck, he clearly had possession of the marijuana. I find that to traffic means to transfer, transport or deliver among other definitions. There can be no doubt that Mr. Patrick intended to transport the marijuana across the border and deliver it to whoever called him on his cell phone later that evening.
[38] I can reach no other conclusion but that the Crown has proven the essential elements of the possession for the purposes of trafficking charge beyond a reasonable doubt. I find Mr. Patrick guilty of that charge.
ARRELL, J.
Released: October 29, 2013
COURT FILE NO.: CR-11/1725
DATE: 2013/10/29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
FITZGERALD PATRICK
REASONS FOR JUDGMENT
Arrell J.
Released: October 29, 2013