ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-10-2123

DELIVERED ORALLY: September 22, 2014

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Baldev Singh

Accused

Richard L. Pollock, for the Crown

Maurice Mirosolin, for the Accused

HEARD: January 27, 28, 29, 30, February 10, 11, 12, 13, 14, 18, 19, 20, 21, March 13; and May 30, 2014

Pomerance J.:

[1] On March 19, 2009, Baldev Singh drove his tractor trailer into Canada, crossing from Detroit into Windsor via the Ambassador Bridge. His trailer contained 54 bins of oranges from Woodlake California, destined for a Metro warehouse near Toronto. This trailer also contained 69 kilograms of cocaine, discovered by border officers during a dog training exercise[^1]. This discovery led Mr. Singh to be charged with one count of unlawfully importing cocaine into Canada, and one count of possession of cocaine for the purpose of trafficking.

[2] The central issue to be determined at trial is whether Mr. Singh knew about the cocaine hidden in two bins of oranges in the back of his trailer. It is common ground that, if the accused knew of the cocaine, he is guilty on both counts before the court. If he did not know of the cocaine, or there is a reasonable doubt as to his knowledge, he must be acquitted on both counts.

[3] The Crown argues that, given the evidence, the accused must have known that cocaine was hidden in his trailer. The defence argues that the Crown has failed to prove knowledge and control beyond a reasonable doubt. Mr. Singh testified in his own defence, and denied having any knowledge of the contraband.

[4] At the outset, I will note certain fundamental principles. First, Mr. Singh is presumed to be innocent and that presumption is only displaced if and when the Crown proves the essential elements of an offence beyond a reasonable doubt. This principle rests at the heart of our criminal justice system. Second, the burden remains on the Crown throughout these proceedings to prove guilt beyond a reasonable doubt. There is no obligation on the accused to prove anything. Third, in assessing whether the Crown has discharged its onus, I must not simply compare the evidence of Crown witnesses to the evidence of defence witnesses and decide which evidence I prefer. Rather, the question is whether, viewing the evidence as a whole, the Crown has discharged its burden to prove guilt beyond a reasonable doubt.

[5] I have considered the whole of the evidence in this case. I have followed the analytical steps required by R. v. W.(D.)[^2]. I have asked whether the accused’s testimony, considered in the context of the evidence as a whole, should be accepted or, alternatively, whether it raises a reasonable doubt as to guilt.

[6] I am satisfied that the Crown has proved the elements of the offence beyond a reasonable doubt. Given the physical evidence in this case, and the resulting inferences, neither Mr. Singh’s testimony, nor any other evidence, raises a reasonable doubt. I find that Mr. Singh had knowledge and control of the cocaine in his trailer, that he intended to import that drug into Canada, and that he possessed it for the purpose of trafficking.

[7] My reasons will be set out in the reasons that follow. I will begin by outlining the testimony of the accused. I will then turn to the other evidence at trial.

THE EVIDENCE OF ACCUSED

[8] Mr. Singh testified that he began working as a truck driver for a man named Prem Thandi in 2008. In March 2009, Thandi contacted him and told him that there was a load to be picked up in Southern California. The accused did not know what the load was, or precisely where it was, but he agreed to pick it up. He attended at the yard in Mississauga where he kept his truck, and hooked up Thandi’s trailer, which was also parked in the yard. The trailer was empty. He began the trip to California on March 8, 2009.

[9] The accused crossed the border from Windsor into Michigan and drove through various states. As he approached California, he called Thandi to report on his progress and find out more about the load. According to the accused, Thandi told him to call back in an hour and to keep driving. The accused drove toward Los Angeles, saying that most loads in California were from that area. He spoke to Thandi again and was told that the load due for pick-up had been cancelled. Thandi told the accused that he was looking for another load that the accused could pick up, and that the accused should keep driving into California.

[10] There is no documentary or other evidence to confirm the accused’s claim that an initial load was cancelled. The accused did not say anything about a cancelled load when he was later questioned by Canadian Customs officers, even though that would have explained his extended absence from Canada.

[11] The accused drove to Fontana California, close to Los Angeles. He claimed that Fontana was within the area that Thandi told him to drive to. He acknowledged in cross-examination that Fontana was not an agricultural location, but he said that he had picked up loads in this area before.

[12] On March 12, 2009, the accused called Thandi to find out whether there was a new load to be picked up. Thandi told him that nothing had yet been arranged. During subsequent calls, the accused was told that there was still no load. He remained in Fontana overnight, sleeping in his truck at a truck stop.

[13] On March 13, 2009, a Friday, the accused was again told by Thandi that there was no load. He remained in Fontana for the weekend. On Monday, March 16th, Thandi told him that a load was ready for pick-up. Thandi gave the accused the company name, the company phone number and the purchase order details. The accused drove to the Visalia facility in Woodlake California to pick up a load of oranges. When the load was ready, he backed his trailer up to the dock and opened the doors. The trailer was empty but for a tire and a load bar. While a forklift driver loaded the trailer, the accused retired to the cab of his truck. The accused acknowledged that he could have watched the trailer being loaded, but that he chose not to.

[14] It took over two hours to load the trailer. The accused claimed that, during this time, he had a meal in the cab of his truck, followed by a brief nap. When he woke up, the trailer was still being loaded. When the loading was complete, he got the paperwork and then closed the trailer doors. He looked inside the trailer before closing the doors. He saw the double stacked bins. He did not see any loose bags of oranges in the trailer or anything else that seemed unusual.

[15] After closing the doors, the accused decided to throw away the bag of garbage from his meal. He walked over to the garbage bin and saw that it was full up to the top. He walked around to the other side and saw three suitcases lying near the garbage. He picked them up, opened them, and saw that they were empty. He took the empty suitcases to his truck and placed his clothes inside them. He then left the Woodlake facility.

[16] When asked why he would take the suitcases, the accused testified that he liked the bags, and that he could use them when he travelled to India. This was so notwithstanding that the suitcases were found in, and surrounded by, garbage.

[17] The accused left the facility, following a route that would bring him back to Canada via the Ambassador Bridge. He testified that he drove more than regulations permitted, so that he could get to the delivery point on time. Delivery was to take place by 8:00 a.m. on March 19, 2009. The accused falsified the entries on his drivers’ logs to conceal the extra time he spent driving.

[18] While driving the load back to Canada, the accused had exclusive control over the truck and trailer. He was the sole occupant of the truck. The trailer was attached to the truck for the duration of the trip. The accused was the only person with access to the trailer. He never opened the doors to the trailer during the drive back to Canada. He never saw anything suspicious about or around the trailer.

[19] The accused crossed the border into Canada at about 9:20 a.m. Thereafter, his truck was stopped, searched and he was arrested. In addition to seizing the 69 kilograms of cocaine from the trailer, border officials seized three suitcases from the cab of his truck, one of which contained the accused’s clothing, and one of which contained a foul smelling blanket.

[20] During his testimony the accused was asked where he would have taken the load, had it not been intercepted at the border. He testified that he would have driven to Thandi’s truck yard at Dixie and Derry Roads. From there, someone who worked for Thandi would have attended and delivered the load to the Metro warehouse in Etobicoke. The accused testified that he was not to meet anyone at the truck yard, but rather, was just to drop off the trailer and tell Thandi that it was there. He said that he would have left the trailer unlocked, without any seal on it.

[21] When asked why he would not have delivered the load to the Metro warehouse, the accused said that he would normally bring a load to the yard, unless he happened to pass the delivery point along the way. He also said that he was tired from having driven so long, and just wanted to go home.

[22] The accused was cross-examined about his financial circumstances. His tax return for 2007 reported an income of $2,950. He did not file a tax return for 2008 or 2009. When asked how he supported his family, the accused claimed to own property in India, though his income tax return did not report any income from foreign property. When pressed further, the accused testified, in extremely vague terms, that he could borrow money from friends of family members. However, his evidence on this point was distinctly non-specific.

[23] At the time of his arrest, the accused owed $50,000 on a line of credit. On March 1, 2009, the accused leased a new truck, which involved 36 monthly payments of $2,815. He acknowledged in cross-examination that he was in financial difficulty at the time the truck was leased. He did not provide any real explanation for how he was able to afford this expenditure.

[24] The accused was supposed to be paid $7,000 for picking up the load in Westlake California. He was never paid by Thandi and has never tried to collect the money from him.

[25] In his testimony, the accused insisted that he did not know that cocaine was in the trailer. He did not know how the drug had come to be planted in the bins of oranges.

THE CREDIBILITY OF THE ACCUSED’S EVIDENCE

[26] If I accept the accused’s testimony, I must acquit. Even if I do not accept the accused’s evidence, if it raises a reasonable doubt, I must acquit. How do I go about assessing the credibility of the accused’s account.

[27] I am guided by the dicta in Faryna v. Chorney[^3] which, while decided many years ago, offers guidance on the difficult task of credibility assessment:

The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. [Emphasis added.]

[28] Of course, Faryna was a civil case and must be read with that in mind. In the criminal context, the presumption of innocence obviates the need for the accused to prove anything. It is for the Crown to prove the elements of the offence beyond a reasonable doubt. The point that I take from Faryna is simply that the credibility of testimony can be tested against facts that are not realistically in dispute, either because they are admitted, or because they are objectively discernable from reliable evidence.

[29] Objectively discernable facts serve as an anchor in the deliberation process. They assist one to evaluate evidence of unproven reliability. Objective evidence may consist of recordings, physical measurements or any other evidence that essentially “is what it is”. Objective facts also tend to operate in the background, under the banner of so called “common sense”. The credibility of testimony is checked against the logic of ordinary human experience. While common sense is not always as common as it may seem, credibility assessment is invariably affected by the trier’s perception of how the world works.

[30] In this case, the objective evidence is compelling and drives many important factual conclusions.

[31] The physical evidence consists of marks or impressions seen on the cardboard lids of certain bins of oranges from the accused’s load. These impressions were compared to the wheels of one of the suitcases found in the cab of the accused’s truck. The pattern of impressions on one of the lids was strikingly similar to the wheels on the suitcase.

[32] This is critical evidence. The impressions stand as silent witness to the placement of the cocaine in the bins of oranges. The evidence tells us that at least one of the suitcases found in the cab of the accused’s truck was pulled across the top of the load of oranges. The inference to draw is that the suitcase was used to haul bricks of cocaine to the bins at the nose of the trailer where the drug was hidden.

[33] Corporal Ray Rigby gave expert opinion evidence about similarities between the marks on the boxes and the wheels of the suitcase. Corporal Rigby was accustomed to working with vehicle tire tracks, but insisted that the same methods governed comparison of wheel tracks left by a suitcase. He examined indentations found on three separate lids. One came from the last row of bins, closest to the tail of the trailer. One came from the bin located at the nose of the trailer. And the third lid was from the second row closest to the nose of the trailer. It was one of the bins from which cocaine had been seized. While all of the lids had markings, only one had markings suitable for forensic analysis. This was the first lid, which came from the top tack of bins in the row closest to the tail (the doors) of the trailer.

[34] Corporal Rigby spoke about manufacturer characteristics, which would be common to all suitcases of a particular make and model. With respect to the Travel Pro suitcase found in the cab of the accused’s truck, he measured the width of the wheels, the centreline on the wheel, the wheel circumference, and two oval patterns.

[35] Accidental characteristics result from wear and tear and therefore unique to a particular suitcase. In the case of the Travel Pro suitcase, Corporal Rigby identified 15 accidental characteristics of the wheels of the suitcases. These accidental characteristics were consistent with the impressions on the lid of the box. This led Corporal Rigby to conclude that there is a very high probability that the wheels from the Travel Pro suitcase, found in the cab of the truck, made the impressions on the lid of the box at the tail of the trailer.

[36] I found the officer’s evidence, together with the photographic exhibits, to be compelling. I accept the validity of his analysis, together with his conclusions. The impressions on the box were consistent with the manufacturer characteristics of the wheels on the Travel Pro suitcase, and 15 accidental characteristics of the wheels on that suitcase. It would defy common sense to suggest that the correspondence between the impressions and the wheels of the suitcase was a product of pure coincidence. This evidence compels the inference that the Travel pro suitcase, seized from the cab of the truck, was pulled across the top of the load of oranges.

[37] I find that the suitcase was used to haul the bricks of cocaine to the bins at the nose of the trailer where it was hidden.

[38] This finding leads to other inferences. It suggests that the cocaine was placed after, and not before, the bins were loaded on the trailer. Prior to loading, there would be no need to pull a suitcase across the boxes. The cocaine could have been placed in two bins, and those bins placed at the nose of the trailer. The bins were capable of supporting a person’s weight without difficulty and without significant damage. Based on the height of the double stacked bins within the trailer, there was room for a person to walk or crawl along the tops of the bins from the doors to the nose of the vehicle. The marks, dents and tears observed on some of the lids would suggest that a degree of pressure had been applied to them. Most of the top bin lids were observed to have some damage. I find that the suitcase examined by Corporal Rigby was pulled across the tops of the bins after they had been loaded in the trailer.

[39] I further find, based on other evidence, that all three suitcases from the cab of the truck were used to move the cocaine. Corporal Rigby testified that, while the impressions on the lids did not positively correspond to the other two suitcases, he could not eliminate the possibility that they too had been dragged across the top of the load.

[40] During its case, the Crown sought to demonstrate that all 69 bricks of cocaine could fit neatly into the three suitcases. Constable Jovanovic was asked to pack all of the seized bricks into the suitcases seized from the cab of the truck. This was not a simple task. It took breathless exertion, and assistance from Crown counsel, before the officer could fit all of the bricks into the bags. The danger of physical demonstrations – be they with a suitcase or, as in one famous case, a glove – is that they may not yield the evidence that is sought.

[41] Despite the officer’s exertion, the demonstration did have evidentiary value. The bricks were a tight fit, but a fit nonetheless. I accept the officer’s testimony that the bricks had changed in size and shape since the time of the seizure, due to forensic processing. The bricks brought into court did look different than the bricks depicted in the photographs of the seizure. Some were crushed or in pieces. Others were in large exhibit bags. Of the bricks that were most intact, 24 fit quite neatly into the Travel Pro suitcase.

[42] Allowing for variations in size, I find that all 69 bricks would have fit neatly into the three suitcases at the time of the offence. I find, as a fact, that all three suitcases were used to move the cocaine to the bins at the nose of the trailer. It is logical to think that the person placing the cocaine would want to move as efficiently as possible. Using three suitcases would be far quicker than using one suitcase, packed and unpacked three separate times.

[43] These findings are also supported by the presence of loose bags of oranges near the door of the trailer when the doors were opened at the border. Loose bags of oranges were also observed on top of the bins during the off-load process. It is logical to infer that bags of oranges were removed from the bins in order to accommodate the bricks of cocaine and would have been replaced when the cocaine was unloaded. The accused testified that he did not see the oranges when the doors of the trailer were closed in Westlake California, and he claimed not to see the oranges when the doors were opened at the border, though they were clearly there. The defence argued that the oranges might have fallen out of boxes during the drive from California. While anything is possible, this seems unlikely, given the upright stacking of the boxes in the trailer and the fact that they were not filled to overflowing. The lids were, in some cases, damaged or torn, but they were not open. It is far more likely that the bags of oranges were deliberately removed in order to accommodate the placement of the cocaine.

[44] The Crown introduced evidence of an Ion scan analysis, which detected trace amounts of cocaine in each of the suitcases. I attach very little weight to the Ion scan evidence. First, the test may yield a false positive. Secondly, the device cannot tell the authorities when traces of drug were deposited. There is nothing to link the result of the test to the events underlying the charge. Third, the evidence failed to establish that the device used in this case was subject to regular maintenance checks. I am not persuaded that it is safe to rely on the results as disclosing the presence of cocaine.

[45] While I attach little weight to the Ion scan, the other evidence persuades me that the three suitcases found in the cab of the accused’s truck were used to transport 69 bricks of cocaine to the nose of the accused’s trailer, where it was secreted in two bins of oranges. I find, as a fact, that this took place after the bins had been loaded on the truck.

[46] This clearly implicates the accused in the placement of the cocaine. The defence argues that the cocaine could have been planted by someone working at the Woodlake facility. It is difficult to imagine that a person at the Woodlake facility dragged suitcases across the top of the load in plain view of others at the loading dock, placed the cocaine, and then dumped the suitcases in the garbage area, all before the accused left his truck. The use of the suitcases would attract the attention of other workers, be caught on videotape, and possibly seen by the driver who had every right to watch the bins being loaded.

[47] Nor is it plausible to suggest that someone, working independently of the accused, placed the cocaine after the truck left the Woodlake facility. On the accused’s own evidence, the truck and trailer were, at all times, under this control. He did not leave them unlocked or otherwise vulnerable to break-in. He did not open the doors of the trailer between the time he left California and the time he arrived at the Ambassador Bridge. The accused testified that the other driver that worked for Thandi also had a key to the trailer. But he never saw that person in his vicinity during his travels. Moreover, he did not report his precise whereabouts on a daily basis. He did not follow a pre-determined itinerary. He alone decided how much he would drive and when he would sleep. He did not tell anyone in the company where he was, but only that he was on his way. It would have been impossible for any third party to know where the trailer was at any given point in time.

[48] In short, it is not reasonably possible that someone could have planted the cocaine in the boxes without the accused participation or awareness.

[49] Similarly, on the evidence, the accused must have been involved in the plan to unload the cocaine. The shipping documents stated that the oranges were destined for the Metro Ontario warehouse in Etobicoke. If the oranges had been delivered to Metro, it would have been difficult, if not impossible, for someone to off-load the cocaine in a controlled fashion. First, this suggestion implies conspiracy between someone in the Metro warehouse and someone in the Westlake facility. This seems unlikely, though it is not beyond the realm of contemplation. The trickier question is how the cocaine could have been removed from the trailer at the Metro warehouse.

[50] Greg Alderton, the direction of the Metro warehouse, testified about the procedures in place for unloading shipments in 2009. There was one main entrance leading into the facility, which was surrounded by a fence. When a driver arrived with a load, he was given a gate pass. He would then present a bill of lading to the inbound receiving office, at which time a loading dock would be assigned. In March 2009, the facility was receiving between 90 and 100 trucks a day, between 6:00 a.m. and 4:00 p.m. The loads were dealt with on a “first in, first out” basis. The general warehousemen were not assigned to particular docks but would attend at docks as needed. The facility was equipped with cameras, including cameras at the dock locations.

[51] Given the randomness with which loading docks and personnel were assigned, it would be difficult for an employee to access a particular load. The presence of surveillance cameras would make it difficult to conceal suspicious activity. Finally, the presence of loose bags of oranges in the trailer suggests that the cocaine was to be off-loaded before arriving at Metro. The warehouse was concerned with the integrity of the load it was receiving. If it observed loose product outside of the bin, this might have triggered some form of investigation or inquiry.

[52] For these reasons, I find that the accused was intending to stop the trailer somewhere and unload the cocaine before arriving at the Metro warehouse.

[53] The accused testified that he was not going to deliver the load to the Metro warehouse, but rather, that he was going to leave it in the truck yard, for someone else to deliver. I reject this evidence. On the accused’s account, perishable goods were to be left in a truck yard in an unlocked trailer, with the refrigerator unit operating, until someone else arrived at some later time to deliver it to Metro. This does not make sense. When the accused crossed the border, the delivery to Metro was already late. It was to be at Metro at 8:00 a.m. and the accused crossed the border at 9:20 a.m. The accused testified about the importance of getting loads delivered on time, saying that this was why he drove more than the allowable hours. Why, then, would he leave a load at the yard, creating even further delay. The account becomes even less credible when one considers that the Metro warehouse was only about 12 kilometres, or 15 minutes, away from the truck yard.

[54] Finally, the official documentation listed the accused’s destination as the Metro warehouse. No document referred to the truck yard. I find, as a fact, that the accused was intending to take the load to the Metro warehouse, albeit after he had off-loaded the cocaine from the trailer. I find that he fabricated his evidence about the yard to make it look like an unknown third party was going to collect the cocaine.

[55] Other aspects of the accused’s evidence also raise concern about credibility. I have already referred to the accused’s incredulous account of picking up the suitcases from the garbage. I find that he concocted this story in order to distance himself from incriminating evidence. The accused was vague when describing his financial circumstances, and was unable to identify a legitimate source of income to fund his living expenses and the lease of an expensive vehicle.

[56] The accused often seemed evasive and defensive while answering questions. I am cautious about attaching too much weight to this observation, as the witness was testifying through an interpreter. It is dangerous to rely on demeanour in normal circumstances. The use of an interpreter injects an artificial barrier between the witness and the court. Despite the competence of the interpreters in this case, I am wary of placing too much reliance on the accused’s appearance or manner of speaking while giving his evidence.

[57] For the reasons stated, I do not accept the testimony of the accused as true. Nor does the testimony of the accused raise a reasonable doubt in my mind.

CONCLUSION

[58] The accused’s testimony does not correspond to the physical evidence in the case. It cannot be reconciled with the objectively discernable facts. I do not accept the accused’s evidence. Nor, having regard to the evidence as a whole, is it capable of raising a reasonable doubt.

[59] I find that the evidence, as a whole, proves beyond a reasonable doubt that the accused participated in, or had knowledge of, the loading of cocaine into the bins of oranges for importation into Canada. I find that he possessed the cocaine and imported it into Canada for the purpose of trafficking.

[60] I find the accused, Baldev Singh, guilty on counts 1 and 2 on the indictment.

Delivered Orally: September 22, 2014

[^1]: In an earlier ruling, I found that the use of load for a training exercise, without the accused’s consent, violated his rights under s.8 of the Charter. I ruled, however, that the evidence seized from the trailer should be admitted at trial under s.24(2) of the Charter.

[^2]: 1991 SCC, [1991] 1 S.C.R. 742

[^3]: [1951] B.C.J. No. 1