Her Majesty the Queen v. Sukhraj Chhina, 2014 ONSC 3651

COURT FILE NO.: 1609/12

DATE: 20140616

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SUKHRAJ CHHINA

Counsel: Michael Robb, for the Crown J. Thomas Wiley, for Sukhraj Chhina

HEARD: June 9, 10 and 11, 2014

DESOTTI, J.

A. The Facts

1The accused Sukhraj Chhina is charged with a two count indictment as follows:

1. That he, on or about the 16th day of June, 2010, at the Village of Point Edward, in the Southwest Region, in the Province of Ontario, did possess a controlled substance included in Schedule 1, to wit: cocaine for the purpose of trafficking, thereby committing an offence contrary to Section 5 (2) of the Controlled Drugs & Substances Act;

2. That he, on or about the 16th day of June, 2010, at the Village of Point Edward, in the Province of Ontario, did import a controlled substance included in Schedule 1, to wit: cocaine, thereby committing an offence contrary to Section 6 (1) of the Controlled Drugs & Substances Act.

2The principle Crown witness and co-accused, Kulgander Lally, is a truck driver driving for his cousin Juswinder Lally, who is the owner of the Lally Trucking Company. While returning from a trip to the United States and in Canada (Exit 25), he was asked to return to the United States with a load for Indianapolis, Indiana.

3On his way back to Canada, he was contacted first by his trucking company that he was to pick up Mr. Chhina and then later Mr. Lally was contacted by Mr. Chhina, the accused before the court, and eventually was advised to pick him up at Exit 184 on the American side of the border off I-69, between Flint and Port Huron, Michigan. It should be noted that Mr. Chhina was Mr. Juswinder Lally’s brother-in-law.

4Eventually, even though initially reluctant to pick up the accused because of fatigue, he stopped at Exit 184 and picked up the accused. The accused, who testified, indicated that his truck had both overheating and transmissions issues and would not or could not proceed further from this location.

5The accused, Mr. Chhina, had in his trailer produce (oranges) from California and had been in the United States for 10-12 days delivering various goods to many different States. His I-94, a trucker’s licence permitting Canadian truckers to be delivering goods in the United States, had already expired. This meant that the accused was already overstaying his attendance in the United States and was subject to some U.S. sanction if caught on that side of the border.

6Furthermore, the accused, Mr. Chhina, indicated that he called his trucking company, J.D Cartage, and indicated his mechanical difficulties with his truck. The accused then indicated that his trucking company advised him to leave the truck at this truck stop and that they would have someone attend to its removal (I infer, from what Mr. Chhina indicated in his testimony, that his cab would have be to be towed to be repaired and thus inferentially another truck with a freezer trailer would have to attend at this site to secure this produce cargo). He then indicated that he left the keys to the truck on a tool box and that he had advised his company where the keys were to be found.

7I will have more to say about this curious conversation between the accused and his company about the keys, the truck, and the cargo in my analysis and decision, but I was significantly perplexed by this explanation. At this juncture, I would only indicate that because the cargo was produce, I inferred, without any disagreement or contrary inference, that the refrigeration unit of the truck and thus the truck would have to be running (idling) or the produce would spoil. In other words, and without any indication to the manager of the gas plaza what was occurring, this idling truck was abandoned at the plaza.

8The accused entered Mr. Lally’s truck with his blue duffle bag. He indicated that he removed his sweaty and dirty T-shirt and placed this T-shirt on top of his duffle bag. I note that this was a Bluenote T-shirt and that the accused had other tagged Bluenote T-shirts in his duffle bag when a subsequent search was performed by Custom officials. In addition, the accused does acknowledge and indicates that he purchased Bluenote T-shirts at a Bluenote store in Brampton prior to his departure from Canada.

9The vehicle proceeded down the I-69 to Port Huron without incident, although the accused indicated that he advised the driver, Mr. Lally, not to drive down the middle of this two-lane highway. Mr. Lally acknowledges this conversation but indicated to the accused that there was no other traffic and that it was safer to drive in this manner when there was no traffic.

10A further conversation between the parties of some significance occurred concerning Mr. Chhina’s expired I-94 licence. Both parties indicated that Mr. Chhina wanted Mr. Lally to deposit his expired I-94 at the U.S. Customs office. Mr. Lally was reluctant to take the time to accommodate this request because he was quite tired, having already doctored his log book about the time he had spent driving that day, and also indicated to the accused that he would be returning to the United States the next day and would deposit this expired I-94 at U.S. Customs at that time.

11At Canadian Customs, the primary officer asked questions of both Mr. Lally and the accused and took their passports and papers. The accused’s name flagged a ‘look out’ designation. This meant that regardless of what was said or how it was said, a secondary search was going to occur.

12Furthermore, I agree with the submissions of the Crown on this point that this Custom’s officer, who already began making his notes when the ‘look out’ notation appeared on his screen, was and would have been on a higher level of observation and awareness.

13Interestingly, and contrary to section 11 of the Customs Act, the accused lied to the officer when he also indicated that he had only been in the States for one day. On this point, as I indicated to Crown counsel, if the accused had indicated that he had been in the States for 10 to 12 days; that he had left his own truck at Exit 184 between Flint and Port Huron; that he then had been picked up by Mr. Lally who was returning to Canada; and that he then had made arrangements for his trucking company to attend at his truck’s location to retrieve the truck and cargo, without a doubt this alone would have ‘triggered’ a secondary inspection.

14Two DVD recordings of the truck, Mr. Lally, and the accused, Mr. Chhina, indicate that only the accused, Mr. Chhina would have had an opportunity to hide the cocaine package in the fuse box. The video recording shows Mr. Lally leaving his truck to cut the seal at the rear of the truck and then open the truck doors. As Mr. Lally leaves the truck to proceed to the rear doors, we observe Mr. Chhina exit his passenger door, attend to the front of the truck to a position just adjacent to the front driver headlight, and then quickly return and enter the cab at the passenger door.

15Mr. Chhina, in examination-in-chief, indicated that he had exited the vehicle and shouted back at the accused to inquire whether Mr. Lally needed any assistance. Crown counsel queries, that if this explanation is plausible, why would the accused attend in front of the cab and not proceed to the rear of the cab along the passenger side of the trailer?

16Furthermore, the Crown submits, if any inquiry was made to provide assistance to Mr. Lally, how is it possible that Mr. Lally could have heard such an offer of assistance when this offer was alleged to have been made proximate to a running diesel engine? The obvious inference submitted by the Crown was that the accused was confirming to himself that Mr. Lally was in fact attending at the rear of the cab and thus Mr. Chhina then would have some time to hide the cocaine package.

17On the other hand, Mr. Chhina testified that when they attended at the secondary office, he exited the truck but waited for a period of time at the driver’s door for Mr. Lally to exit the truck. The inference by counsel for the accused was that this would have presented to Mr. Lally an opportunity to hide the cocaine.

18However, in cross-examination, Mr. Chhina confirms that even though he would have had a clear view of Mr. Lally through the side window or front windshield of the truck, he never indicated in his testimony that he observed Mr. Lally in the passenger seat or proximate to the fuse box location.

19I would also note that Mr. Lally indicated that it was he who firstly exited the vehicle at the secondary office and then attended at the passenger door waiting for the accused to exit. He also, for the first time, indicated that he observed the accused with his hands on or proximate to the fuse box located just in front of the dash on the passenger side of the vehicle.

20Counsel for the accused points out that this added information was significant but not disclosed in the testimony of the prime Crown witness, Mr. Lally, at the preliminary hearing and thus should be considered suspect and reflective of potentially a motive to fabricate evidence.

21Furthermore, I would note, and this was essentially affirmed by the accused, that Mr. Lally when he returned to his driver side of the truck after cutting the seal and opening the doors, that he observed the accused standing behind the passenger seat. Mr. Chhina acknowledges this fact but indicates that he was merely retrieving something from his duffle bag.

B. Analysis

1. The only real issue before me, is if I am satisfied, based on the evidence or lack of evidence beyond a reasonable doubt, that the Crown has established the guilt of the accused, mindful of the principles in W. (D.) and a self-administered Vetrovec caution?

22Turning to the W. (D.) analysis given that the accused has chosen to give evidence, the three pronged test is as follows:

a) If you believe the accused’s evidence that he did not commit the offences as charged, you must find him not guilty;

b) Even if you do not believe the accused’s evidence, if it leaves you with a reasonable doubt about his guilt, or an essential element of the offence or offences charged, you must find him not guilty of the offence or offences;

c) Even if the accused’s evidence does not leave you with a reasonable doubt of his guilt, or about an essential element of the offence or offences charged, you may convict him only if the rest of the evidence that you do accept proves his guilt beyond a reasonable doubt.

23From the evidence of the accused, Sukhraj Chhina, the DVD video, the evidence of the primary officer, Joel Grondin, and the evidence of the witness, Mr. Lally, there are significant and incredible difficulties in accepting the evidence of the accused.

24The evidentiary problems, difficulties, and concerns can be summarized as follows:

A) The accused indicated that he had been in the United States for 10 to 12 days making pickups and deliveries to many different States, with his final load consisting of oranges from California to be delivered to Canada. He states he ran into mechanical difficulties and thus had to park his truck at a gas plaza off of Exit 184 between Flint and Port Huron, Michigan. He then advised his company who indicated they would retrieve the truck, and inferentially, with his truck still running to keep the produce from spoiling, he could return to Canada. He indicated to them and apparently this was with their approval, that he would leave his keys to his vehicle on top or beside the truck’s tool box, out of sight.

1. The initial question is where are their documents both confirming his transportation of goods in the United States and some affirmation by his employer of their retrieval of the truck and its load (the driver’s log or load manifest) (even a letter confirming this reality would have been some assistance to the accused in corroborating his version of events at Exit 184) ;

2. Why would he leave his keys in a location where there was a possibility that they could be found by some other party and either the truck or its contents stolen?

3. Why would the company allow Mr. Chhina to leave his running truck unattended pending the retrieval of both the truck and the produce by the company;

4. Why would they agree to the placement of the location of the keys when those same keys could have been left securely with the plaza manager or assistant on duty?

5. Why did Mr. Chhina allow his I-94 to lapse in the first place, placing his presence and continued transportation of goods in question during this 10 to 12 day period and potentially jeopardizing his employment and his transportation of goods to the United States?

B) Why was the driving by Mr. Lally down the middle of the two lane highway of some concern to the accused? Was it, as was submitted by Crown counsel, that the accused did not want to draw attention to this motor vehicle, for example, by a state trooper, or was it merely out of safety concerns?

C) Why was it so necessary for the driver, Mr. Lally, to drop off the accused’s expired I-94 at the U.S. Customs office? Was it to facilitate Mr. Chhina processing of a new I-94 or was it to provide him with an opportunity to stash his cocaine?

D) Why did the accuse lie to the Customs’ officer about his length of time spent in the United States? As I indicated supra, any other answer would have invited a series of many more questions, which all would have led undoubtedly to a secondary inspection.

E) Why did the accuse exit the truck and walk to the front and driver’s side of the vehicle, if it was as he stated to assist potentially Mr. Lally with the seal and truck doors that were located to the rear of the truck?

F) Why did he call out to assist Mr. Lally from this location when it should have been apparent that the Mr. Lally could not have heard him with his tractor diesel motor running?

G) Why did he return so quickly back to and into the cab? Was it as was submitted by the Crown an opportunity for the accused to ‘stash’ the cocaine package?

H) The accused, Mr. Chhina, indicated that he took off and changed his T-shirt when he was picked up by Mr. Sally. A T-shirt bearing Mr. Chhina’s DNA was found wrapped around the cocaine package within the fuse box of the cab in front of the passenger seat. This placement of the cocaine package in the fuse box could only have occurred subsequent to the pickup of the accused, Mr. Chhina, and the eventual secondary search. At no time was either party out of sight of one another except when Mr. Lally went to unseal his trailer and open his trailer doors and when Mr. Chhina indicated, during his testimony, that he walked around the truck to the driver’s door waiting for Mr. Lally to embark and proceed to the secondary office. Corroborative of Mr. Chhina’s opportunity to hide the cocaine package is reflective in the 2 DVDs. Thus, excepting Mr. Chhina’s testimony about how he waited for Mr. Lally to exit the cab, and the absence of his evidence that he observed anything untoward about the actions of Mr. Lally while in the cab, Mr. Lally had no opportunity to conceal the cocaine package.

I) The accused, Mr. Chhina, acknowledges that when Mr. Lally returned to the cab he was in the rear of the cab retrieving a phone or other objects from the side pouch of his blue duffle bag. On the other hand, Mr. Lally indicated that he was first to disembark from the cab (not as Mr. Chhina indicated in his testimony) at the secondary office and then went around to the passenger side to wait for Mr. Chhina. He then observed that Mr. Chhina had his hands in the area of the fuse box. On this latter point, this observation was not given as his evidence at the preliminary hearing.

J) The discovery of the location of the package of cocaine in the fuse box wrapped in the T-shirt of the accused is either a brilliant exercise of anticipatory forensic forethought on the part of Mr. Lally reflective of the type of deception contrived in the movie ‘The Sting’, or the non-thinking panic of an individual caught between ‘a rock and a hard place’ who attempts to conceal not only the package of cocaine with a T-shirt wrapping, but its location within the fuse box.

25On the other hand, counsel for the accused submits that the witness Lally had both a motive and incentive to hide the cocaine package and present evidence implicating the accused, Mr. Chhina. His charges have not proceeded to preliminary hearing and thus counsel for the accused makes appropriate representation that the motive to fabricate and to target the accused is high and potentially significantly beneficial.

26In addition, the reality that the prime Crown witness is also charged with the same offences makes it dangerous to convict the accused absent any confirmation of the evidence relied on by the Crown (Vetrovec Warning).

27Nevertheless, there are some significant and serious reasons why I am confident in concluding that the accused, Sukhraj Singh Chhina, is guilty of the offences beyond a reasonable doubt and why I reject his version of events as reflected in his testimony before me.

28The only real time frame upon which the cocaine could have been hidden in the fuse box was after Mr. Chhina entered the cab at Exit 184 in Michigan between Flint and Port Huron and after he stated he removed his T-shirt. Inferentially, one would think that a cocaine trafficker, if we look exclusively at the witness Lally, might have considered concealing this package in a location other than one’s cab.

29Likewise, if we again focus on Mr. Lally, he did nothing suspicious while in the cab for the brief few moments that Mr. Chhina states that Mr. Lally was or remained in the cab. Mr. Chhina indicated that he observed nothing while outside the cab either through the driver’s window or through the window when he walked in front of the cab. At no time does he allege that Mr. Lally moved from his driver’s seat to the passenger seat.

30Frankly, the only person that we view on the video tape that seems to be doing anything suspicious is the accused Mr. Chhina. He is seen on the video furtively moving from the passenger door to the front of the cab seemingly looking to confirm Mr. Lally’s whereabouts. Then we see him quickly return to the cab. He acknowledges in his evidence and that of Mr. Lally that he is not in the passenger seat when Mr. Lally returns to the cab but in the area where his duffle bag was located.

31In addition, he has lied to the investigating officer about his time in the United States. He appeared not to be looking at the officer when he answered the usual questions but as the officer indicated he was looking straight ahead.

32Also, I infer, as indicated to defence and Crown counsel, that other than a lie any true response by Mr. Chhina would have resulted in precisely the secondary search that a trafficker with a brick of cocaine would want to avoid.

33His T-shirt is found wrapped around the cocaine. The cocaine is placed in a fuse box that is directly in front of the passenger seat where Mr. Chhina was sitting. Even the concealment of the cocaine in the fuse box is indicative of someone who has limited time to conceal this brick of cocaine and in a panic resorts to the utilization of a T-shirt as a means of further concealing the package of cocaine.

34What is also most incredible is how Mr. Chhina found himself stuck in the United States without a valid I-94, with a load of produce (oranges) that would go bad unless he keeps the truck idling and the freezer unit on, and the absurdity of leaving his keys not with the manager of the station but near a tool box outside his truck. Even if the keys were concealed this seems to be a rather strange location, unless there was no truck, no oranges, and no keys at all.

35Giving the keys to the manager at the station would obviously be something that could be corroborated. Putting keys by a tool box cannot be corroborated. Also, why is Mr. Chhina at this exit for this extended period of time from the early morning and why is it that Lally Transport advises Mr. Lally to pick up Mr. Chhina but it is only much later that Mr. Chhina advises Mr. Lally of his whereabouts on Exit 184. However, even his exact location at this truck stop is not known by Mr. Lally who waits for Mr. Chhina to come to his truck.

36While Mr. Chhina indicated that JD Cartage was going to attend this vehicle, there is no evidence when this necessary attendance was to take place. Furthermore, Mr. Chhina indicates that he was never given his log books after his arrest by JD Cartage. This is even more unusual since these are his driver’s logs and not the property of JD Cartage.

37The only evidence of Mr. Lally time alone in the cab is given by Mr. Chhina. While it is possible that Mr. Lally might have waited in his cab, I accept his evidence that it was he who had exited first from his cab at the secondary and then awaited Mr. Chhina’s exit after first observing his hands in the area near the fuse box. Clearly, given the time that Mr. Lally had been driving, I think it is reasonable to assume that he would have been impatient to have the entire secondary search completed and thus waiting in the cab while Mr. Chhina was outside does not make any sense.

38For the aforementioned reasons, I am satisfied beyond a reasonable doubt that the accused is guilty of the two offences as reflected in the two count indictment before me.