R. v. Dhatt, 2019 ONSC 6250

DELIVERED ORALLY AND MADE AN EXHIBIT

COURT FILE NO.: CR-17-3990

DATE: 20191031

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Manpreet Singh Dhatt

Defendant

Stephane Marinier, for the Federal Crown

Frank Miller, for the Defendant

HEARD: May 22, 2019

REASONS FOR DECISION

hebner j.

[1] Mr. Dhatt has been charged on a two-count indictment with the following:

1. Importing cocaine into Canada contrary to section 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA);

2. Possession of cocaine for the purpose of trafficking contrary to section 5(2) of the CDSA.

[2] Both offenses are alleged to have occurred on December 27, 2016. At the commencement of the trial, Mr. Dhatt admitted that he had cocaine in his vehicle when he tried to cross the border from the United States into Canada. Mr. Dhatt admitted that he knew the cocaine was in his vehicle and that it was to be trafficked by someone in Canada. Counsel for Mr. Dhatt advised that his defence was duress.

Background

[3] Mr. Dhatt is a truck driver. At the time of the offense, he was employed with a long-haul trucking company called State Express. State Express was a new company, with the business having been started in November 2016.

[4] On December 16, 2016, Mr. Dhatt left Canada in a State Express truck and drove to California to pick up a load of oranges. He was the driver and sole occupant of the vehicle. He was pulling a refrigerated transport trailer. He picked up oranges in Parlier, California on December 21, 2016. He drove to Detroit with the oranges and, on December 27, 2016 at approximately 3:30 a.m., he entered Canada by way of the Ambassador Bridge located in Windsor, Ontario with the refrigerated transport trailer containing 19 skids of 40-pound boxes of oranges.

[5] Mr. Dhatt presented himself to Border Services Officer (“BSO”) Cunningham at a primary commercial inspection booth. Mr. Dhatt made several statements suggesting that others had attempted to recruit him to bring drugs into the country. BSO Cunningham persuaded his superiors to speak with Mr. Dhatt. Mr. Dhatt was instructed to drive to the Canada Border Services Agency (“CBSA”) off-site location where he could meet with an investigator. Mr. Dhatt drove his truck and transport trailer to the off-site warehouse.

[6] The CBSA conducted an inspection of the truck and trailer. BSO Cummings noted unusual indentations atop the boxes of oranges located in the refrigerated trailer, suggesting somebody had crawled over top of the boxes. BSO Cummings crawled onto the load himself and looked into the void between the skids. He found on the floor of the trailer, between a skid and the trailer wall, 30 bricks of cocaine. Several were scattered and piled one atop the other on the floor. BSO Cummings also found an open black duffel bag which also contained bricks of cocaine.

[7] A total of 30 bricks of cocaine were found inside the refrigerated trailer. The total weight of the cocaine seized was 30.199 kg. One sample tested for purity revealed the level of purity of 94%. If sold at the kilogram level, the cocaine was worth $1.95 million. If sold at the gram level, the cocaine was worth $2.4 million. If it had been cut to maximize profits at the gram level, the cocaine could have been sold for as much as $4.8 million.

[8] Mr. Dhatt testified in his defence. He testified that Mr. Gagnan Grewal had attempted to recruit him to bring (what he understood to mean) drugs into the country. Mr. Dhatt suggested that Mr. Grewal had threatened him and forced him to do so. Mr. Dhatt raises the defence of duress.

The Evidence

[9] At the outset of the trial, Mr. Dhatt made several concessions including the following:

• The date of the offence is December 27, 2016.

• The identity of Manpreet Singh Dhatt as named in the indictment is one and the same person before the court.

• Samples from the cocaine seized were tested by Health Canada as cocaine. The certificates of analysis were filed on consent.

• Manpreet Dhatt knowingly crossed from the United States into Canada on December 27, 2016 with approximately 30 kg of cocaine in his trailer. He knew the cocaine was to be trafficked. The issue at trial was that of duress.

• Continuity of exhibits seized was not an issue.

• The video of the loading of the oranges in Parlier, California was admitted on consent.

• The video of the purchase of the duct tape and epoxy at the Flying J in Effingham, Illinois on December 25 was admitted on consent.

[10] The court heard evidence from the following witnesses:

a) Mr. Singh, the owner of State Express;

b) BSO Cunningham;

c) BSO Cummings;

d) BSO Moreland, BSO Boughner and BSO Gauvin, all of whom were working at the Ambassador Bridge the night of the offense;

e) BSO Gorman, a dog handler;

f) Gagnan Grewal;

g) RCMP officer Cpl. Forbes;

h) Mr. Letch, a forensics technologist employed by the RCMP;

i) Mr. Mills, an intelligence analyst with the CBSA;

j) Mr. Dhatt.

Before the Trip to California

[11] Mr. Dhatt is a truck driver with his AZ license that allows him to drive a heavy commercial vehicle. He initially drove truck for a company in Toronto. In November 2008, Mr. Dhatt purchased his own truck and became an owner operator. He began to drive throughout the United States and Canada. In 2011, Mr. Dhatt sold his truck and returned to driving as an employee. After some time living in Alberta driving a dump truck, Mr. Dhatt returned to Ontario. In 2015 and 2016, he worked with different trucking companies in Ontario until his license was suspended in April 2016 for three months due to a safety violation. He was fined $2,500. I understand the fine had to be paid before Mr. Dhatt’s license was reinstated.

[12] Mr. Dhatt is married. Mr. and Mrs. Dhatt married in 2013. They do not have any children. They lived in a rented basement apartment in Brampton. Mrs. Dhatt lives with severe anxiety and was not employed outside of the home until approximately March 2016, when she began to work in a retail establishment. She earned minimum wage. In 2016, Mr. and Mrs. Dhatt moved in with Mrs. Dhatt’s parents, living in their basement. They had hoped to purchase a home but needed to improve their credit and pay down their debt. Mrs. Dhatt wished to move out of her parents’ home sooner rather than later. Mrs. Dhatt also wished to purchase a motor vehicle.

[13] Mr. Dhatt wanted to return to work in long-haul trucking as an owner operator. He said that working as an owner operator was more lucrative ($.70 – $.75 per mile) then working as an employee ($.50 per mile). He talked to his friends about possible opportunities. Mr. Dhatt’s first language is Punjabi and most of the conversations relayed to the court took place in Punjabi. In April 2016, Mr. Dhatt’s friend, Gagnan Grewal, told Mr. Dhatt that he had a friend with a truck for lease. Mr. Grewal told Mr. Dhatt that he could have a look at the truck at 188 Rutherford Road in Brampton.

[14] In June 2016, Mr. Dhatt signed a lease for the truck. The truck was apparently owned by Mr. Surdip Dhaliwal. Mr. Dhatt signed a lease for the truck in June 2016. He obtained employment at State Express as an owner operator. He said that after he secured his employment, he “went to a judge” who ordered that Mr. Dhatt could pay his fine in instalments of $500 per month from December 2016 until April 2017 such that his license was reinstated.

[15] State Express is owned, in part, by Mr. Singh. State Express is a trucking company operating out of Brampton. It is a relatively small trucking company, having seven trucks and ten trailers. State Express hires seven truck drivers, three office personnel and two compliance agents. The company was started in November 2016. December 2016 was its first month in business.

[16] State Express placed an ad on Kijiji for an AZ driver for long-haul work. Mr. Dhatt called Mr. Singh, they met at a Tim Horton’s, and Mr. Dhatt was hired as an owner operator. According to Mr. Singh, Mr. Dhatt was hired to drive to several locations but only wanted to drive to California. Mr. Singh asked Mr. Dhatt if he would drive to Texas, the Midwest or Minnesota. According to Mr. Singh, Mr. Dhatt refused and said he would only drive to California as he had a girlfriend there. Mr. Dhatt agrees that he requested that he only go to California and said he has family in Sacramento and wanted to take his 36-hour rest break with his family.

[17] Mr. Dhatt took two trips to California. The first trip was earlier in December 2016. Mr. Dhatt took his own leased truck. He drove four days to California with a load of canned food and four days back from California with a load of broccoli. While on that trip, Mr. Dhatt’s radiator broke down in Brooklyn, Iowa. After he returned to State Express in Brampton, he switched to a company owned truck, a Volvo, drove the broccoli to Quebec, and picked up a load of peatmoss. He was then to embark on his second trip to California with the peatmoss. It is Mr. Dhatt’s second trip to California that culminated in the events leading to the charges against him.

[18] According to Mr. Singh, Mr. Dhatt told him he wanted to take a second trip to California right away because “he needed the money”; that his “wife wanted a big house and luxury car”. As Mr. Dhatt said he needed money, Mr. Singh gave Mr. Dhatt an advance on his earnings of approximately $2,000.

[19] After he picked up his load of peatmoss, and before he left for California, Mr. Dhatt drove to Toronto and stopped at his home. At this point, the date is December 13, 2016. Mr. Dhatt took his 10-hour break. He said he spoke to Mr. Grewal over the telephone and Mr. Grewal suggested a meeting. The two men met in Milton behind a McDonald’s restaurant in Mr. Grewal’s car for 30 minutes. According to Mr. Dhatt, Mr. Grewal told him that he had “a really good proposal” that he “wouldn’t offer to just anybody”. He said it was “totally safe” and that Mr. Dhatt just had to “bring stuff from USA into Canada”. Mr. Grewal said that he would pay Mr. Dhatt $10,000 after his return to Canada. Mr. Grewal told him to think about it and said it was “risk-free”. Mr. Grewal then dropped Mr. Dhatt at his home. Early the next morning, Mr. Dhatt left in the State Express company truck for California.

[20] According to the accused, truck drivers are only allowed to drive 70 hours in seven days. They are then required to have a mandatory 36-hour break. He had not had his required 36-hour break, so he had to falsify his logbook. The accused falsified his log book a number of times during the trip such that the logbook was of no assistance in determining dates and locations.

[21] Mr. Grewal was called to give evidence. At the time he gave his evidence, he was living in Brampton with his wife and two children. He was asked if he knew Mr. Dhatt. Mr. Grewal said he knew Mr. Dhatt as “Lumbar” which is the word for revenue collector in his village. He identified Mr. Dhatt as “Lumbar” and had not known Mr. Dhatt’s name until the day he gave evidence. He said he knew Mr. Dhatt (or “Lumbar”) for approximately six – seven years and had met him through a friend. He knew that Mr. Dhatt had purchased a truck in 2016.

[22] According to Mr. Grewal, he saw Mr. Dhatt a few times in the latter part of 2016 in his neighbourhood. He said Mr. Dhatt was “not a close friend”. He said they would “stand around and have a smoke”. Mr. Grewal said that he did not know anyone in California. He specifically did not know a “Bill” in California. Mr. Grewal said that at one point, Mr. Dhatt gave him money to buy opium. Mr. Grewal was unable to purchase the opium and returned the money to Mr. Dhatt.

[23] Mr. Grewal said that he has never imported cocaine or other drugs into Canada. He said he’s never had an agreement with anyone to bring drugs into Canada. He said he’s never asked or recruited anyone to bring drugs into Canada. He said he did not ask Mr. Dhatt to do so. He said he’s never threatened Mr. Dhatt. He said he’s never threatened Mr. Dhatt at the request of anyone else. He said he did not have anything other than normal conversations with Mr. Dhatt in November 2016. He could not recall any conversations at all with Mr. Dhatt in December 2016.

[24] Mr. Grewal admitted to being a heroin addict. He said that he last used heroin approximately eight months prior to the trial. At the time of the trial, Mr. Grewal said he was on a methadone program. In the summer of 2016, he was addicted to heroin “off and on”. He said that between the summer of 2016 and Christmas of 2016, he was spending approximately $300 per week on heroin. He got to know a lot of heroin users in the Toronto area. During this period of time, his wife was not working, and he was the sole income earner for his family. Mr. Grewal had a new son born August 2016.

[25] In cross-examination, Mr. Miller suggested to Mr. Grewal that he was desperate for funds in the fall of 2016. He was using heroin, he had a baby son and his wife wasn’t working. He suggested to Mr. Grewal that a third person asked Mr. Grewal to find someone to bring drugs into Canada and Mr. Grewal then went to Mr. Dhatt and tried to convince him to do it. Mr. Grewal denied the suggestion. He said he never asked Mr. Dhatt to bring drugs into Canada.

The Trip to California

[26] Mr. Dhatt left for California with his load of peatmoss. He crossed the border at Windsor into Detroit on December 16, 2016. According to Mr. Dhatt, after he crossed into Michigan, when he was in Michigan or Indiana, he received a telephone call from Mr. Grewal. Mr. Grewal said “hey – how are you doing – have you thought about my proposal”. Mr. Dhatt said he couldn’t do it and terminated the conversation. Approximately one to two hours later, Mr. Grewal called back. He said he trusted Mr. Dhatt “as my brother”. He said he believed Mr. Dhatt would say yes and so he “already told yes to those guys”. He said that when he told “those guys” that Mr. Dhatt had said no they asked for Mr. Dhatt’s address. He said, “they are angry – they are going to lose a lot of money”. He said they are “dangerous people” and if they threaten Mr. Grewal then Mr. Grewal would give them Mr. Dhatt’s address. Mr. Grewal said they will “level the playing field”

[27] According to Mr. Grewal, no such conversation took place. Mr. Dhatt said that after the conversation, he started to think of “how can I get out of this”. He said he knew Mr. Grewal associated with “bad people.” He said he heard of other drivers who were killed. He said he thought the term “level the playing field” meant that the bad people would set an example of him so nobody else backs down.

[28] According to Mr. Dhatt, Mr. Grewal gave the phone to someone else who gave Mr. Dhatt a telephone number to call someone named “Bill” to update him on his location. According to Mr. Dhatt, he spoke to Mr. Grewal almost every day after this conversation. Mr. Grewal said no such conversation took place and he did not speak daily to Mr. Dhatt.

[29] Mr. Dhatt said he drove to California. He called Bill every day to update him on his location. He delivered his load of peatmoss in Samoa, California. He went to Parlier, California to pick up a load of oranges, as scheduled. Mr. Dhatt picked up the load of oranges on December 21, 2016. He told Bill where he was going to pick up the oranges. Bill told Mr. Dhatt to call him after he picked up the oranges and before he reached Los Angeles. Bill told Mr. Dhatt that he was to stop at a Flying J truck stop at exit 142 where there was a rest area. Mr. Dhatt was to pull into the rest area with his tractor facing the highway and his trailer toward the fields. Bill told Mr. Dhatt to call him again when he reached the location. Mr. Dhatt said he followed those instructions. Once at the location, according to Mr. Dhatt, Bill texted “don’t get out of your truck and I’ll do whatever I have to do. You go after I’m done”. Mr. Dhatt was told to enter the Flying J truck stop, purchase a trailer seal, reseal the trailer after Bill was finished and text him a picture. He was told he would be watched while doing so.

[30] According to Mr. Dhatt, approximately five to ten minutes after he parked the truck as instructed a van pulled in. Mr. Dhatt thought there were two individuals in the van. He heard them go into his refrigerated trailer. He heard them talk to each other. He saw a face in the rearview mirror that “looked white” but the voice “had sounded Mexican on the phone”. He felt the men getting out of the trailer and closing the doors. They got back into the van and left. Mr. Dhatt then went into the Flying J truck stop, purchased a new trailer seal and re-sealed the trailer.

[31] According to Mr. Dhatt, after the ordeal described above, he left the truck stop and headed along Interstate 40 until he came upon another truck stop. At this point, it was late in the day and getting dark. He was concerned with what Bill and his friend had put in his trailer. He thought it may be explosives and was worried about a terrorist attack. He stopped at the truck stop, got out of his truck, cut the seal, opened the trailer and climbed over the crates of oranges. He dropped into an open space between the crates and found a zipped duffel bag. He opened the bag and found packages of five bricks taped together. He took one set of five bricks with him into the truck cab so he could see what it was.

[32] According to Mr. Dhatt, he said he had tried cocaine when he was in college in India. He thought he might be in possession of cocaine. He went into the truck stop, purchased a razor blade, came back to his truck cab and cut one brick open. A small piece of the contents fell onto the carpet. He picked it up, smelled it, and sniffed some of it into his nostrils. He said he smelled it and “I also sniffed a little of it”. He knew from the effect that it was strong cocaine. He put the bricks into the suitcase in his truck cab and left the truck stop. The date is still December 21, 2016.

[33] On cross-examination Mr. Dhatt was asked why he would ingest the cocaine through his nostrils. He said he “wanted to make sure it wasn’t explosives”; he wanted to “make sure it was cocaine”. He said he sniffed it “because he wanted to”. He acknowledged that the cocaine was much stronger than he had used when he was in college. He felt it was strong so “I didn’t do another line”. He said he sniffed one line and then threw the remainder of the piece onto the pavement outside of the truck. He purchased a coffee right after he sniffed the cocaine and then left the truck stop driving while under the influence.

[34] Mr. Dhatt headed to Arizona using highway I-40. The time was afternoon/evening. He reached Ashcroft, Arizona and received a message on his dashboard with a fault code. His truck speed was limited to five miles per hour. Mr. Dhatt called dispatch at State Express and gave them the fault code. Dispatch got back to him and directed him to a Volvo dealer in Flagstaff, Arizona. There is some evidence that Mr. Dhatt was towed to the dealership. By this point, it was December 23, and the dealership was closed for Christmas weekend. Mr. Dhatt said the next morning he drove around town at five miles per hour looking for a repair shop. Suddenly, the fault code terminated, the truck broke free and he could drive. He was concerned that the breakdown would happen again, so instead of continuing on his route, he drove to Phoenix, Arizona. On the way to Phoenix, Arizona, the refrigerator trailer light came on.

[35] Mr. Dhatt said he called Mr. Singh to tell him that the refrigerator light was now on. He was directed to take the truck and trailer to the Carrier Refrigeration Shop in Phoenix, Arizona. He made it to the instructed location and the refrigerator trailer was repaired.

[36] Mr. Dhatt then said that he took a break and stopped in San Jon, New Mexico. He falsified his log book in Phoenix because he was required to take a break there but didn’t. He stayed in San Jon, New Mexico for four to five hours. At this point, the five bricks of cocaine remained in his suitcase. He ate dinner at an Indian restaurant and tried to sleep. He said he had trouble sleeping because he knew what was in his trailer. He left San Jon, New Mexico and drove nonstop to Effingham, Illinois. Mr. Dhatt said he drove 13 to 14 hours nonstop to get to Effingham.

[37] Mr. Dhatt said he stopped in Effingham, Illinois at the Flying J truck stop. It is now December 25, 2016. He suddenly realized that he still had the bricks of cocaine in his truck cab; that if he happened to stop at a truck scale, persons may come into the cab and see the bricks of cocaine. By this time, the cocaine bricks had been in the cab with Mr. Dhatt for four days. Mr. Dhatt thought he should put the bricks of cocaine back in his trailer. He bought duct tape and a new trailer seal at the Flying J in Effingham. He used the duct tape to rewrap the open brick of cocaine. He took the bricks of cocaine back to the trailer and threw them, one by one, over the skids of oranges into the void. One of the thrown bricks landed on top of the first skid of oranges so Mr. Dhatt jumped into the trailer and reached up to push the brick into the void. He put the new trailer seal on the trailer after he returned the bricks.

[38] Mr. Dhatt said he deleted the picture of the trailer seal he sent to Bill from his phone. He deleted the text messages from his phone. He did these things as he was in the United States and understood that if he was stopped, the police would be able to look at his phone to see if he was texting while driving. Mr. Dhatt did not want to get caught with the cocaine while in the United States. He said the jail terms for drug offenses are significantly longer in the United States than in Canada.

[39] While in Effingham, Mr. Dhatt said he either called or texted Mr. Grewal to tell him that he would be crossing the border into Canada on December 27. Mr. Grewal messaged back and told Mr. Dhatt to call him two hours before he reached the border. Mr. Grewal denies this conversation.

[40] Mr. Dhatt said he needed to call the broker in order to have the load cleared to cross and he knew the broker would not be open until December 27. He drove to Warren, Indiana, arriving the night of the 25th, and stayed there until he could get the entry number from his broker. He obtained the number just after midnight on December 26, wrote it down and headed for the border.

[41] According to Mr. Dhatt, his plan was to reach the Canada/USA border with the cocaine in his trailer, speak to CBSA authorities and have them “make a plan to catch the bad guys”.

[42] According to Mr. Singh, Mr. Dhatt was required to keep in touch with State Express during the course of his trip. He was required to call two to three times per day and one time every night. Mr. Singh said Mr. Dhatt did not keep in touch with State Express. Mr. Singh said he was “off the radar” for 24 hours. Mr. Dhatt told Mr. Singh that his phone was broken down and he was using a tablet. Mr. Singh would get text messages from Mr. Dhatt but only spoke to him on two separate occasions. Mr. Singh said he began to get suspicious because he would receive texts or calls from three different telephone numbers. At no time did Mr. Dhatt tell Mr. Singh that as he was being threatened in any way.

Administration

[43] At this point, I will address some evidence I heard from Mr. Singh on policies of State Express.

[44] Mr. Dhatt was not to have and did not have any direct contact with the customer in California. After the truck is stopped for loading, the driver is required to sit in his truck until the trailer is loaded. Once loaded, the trailer is to be sealed by the shipper. When the seal is in place, a bolt cutter is required to cut it off. A bolt cutter is available at the office of State Express or at truck stops along the way.

[45] Mr. Singh had given Mr. Dhatt extra seals before he left for California in case Mr. Dhatt needed to go into the trailer due to a shift in the load. Mr. Singh told Mr. Dhatt that the load had to be sealed at all times. It appears from Mr. Dhatt’s evidence that the trailer was not sealed between December 21 and December 25.

[46] Mr. Dhatt was also supplied with a number of log books. The log books are to be used by the driver in order to log stops and number of hours driving. All fuel, breaks, and other stops are to be noted in the log books. The log books are to be returned to the employer at the end of the trip. Mr. Dhatt did not return his log books to State Express after his first trip. State Express did not receive the log books from the second trip as they were seized at the border.

[47] Mr. Singh said his drivers’ log books were often audited and “everything was fine”. None of the State Express drivers were ever charged with respect to false entries in log books.

[48] We know from Mr Dhatt’s evidence that he did not comply with company policy on use of the truck seals and log books.

[49] According to Mr. Singh, State Express makes the decision on the border entry point to use when leaving or re-entering Canada. State Express primarily uses the borders at Buffalo, Detroit/Windsor and Sarnia. It was State Express who chose the Windsor border and directed Mr. Dhatt to cross at the Ambassador Bridge. Mr. Singh had told Mr. Dhatt to wait until 8:00 a.m. on December 27 and cross the border at that time. Mr. Dhatt did not wait.

At the Border

[50] When he reached the border crossing at Detroit, Mr. Dhatt paid the bridge toll and crossed the Ambassador Bridge into Canada. He crossed into Canada at approximately 3:30 a.m.

[51] Mr. Dhatt appeared at the primary commercial booth manned by BSO Cunningham. BSO Cunningham interviewed Mr. Dhatt for approximately 30 minutes. BSO Cunningham said that Mr. Dhatt pulled up in his tractor-trailer and handed over his commercial paperwork, specifically his identification and an E-manifest. Mr. Dhatt’s demeanour was edgy and he appeared to be in a state of unease. He was sweaty, twitchy and nervous. He looked back and forth between BSO Cunningham, his lap and the steering wheel repeatedly.

[52] BSO Cunningham began to process the paperwork. He noted that Mr. Dhatt was hauling oranges. He scanned the bar code on the E-manifest to process the load. A document noting the load was “cleared” for entry into Canada was found in Mr. Dhatt’s truck but there is no evidence as to how it got there.

[53] BSO Cunningham asked Mr. Dhatt where he lived. Mr. Dhatt replied “Mississauga”. BSO Cunningham asked how long Mr. Dhatt had been outside of Canada. Mr. Dhatt said, “a little over a week”. Mr. Dhatt said he had had vehicle problems; that the truck broke down; that it took two days to repair and so he’s getting back late. He continued to appear agitated. BSO Cunningham took verbatim notes of the next part of their conversation:

Mr. Dhatt said, “can I tell you something?”

BSO Cunningham said, “you can tell me anything you want. Are you okay?”.

Mr. Dhatt said, “I want to tell you about a guy I know. He brings stuff through the border and he’s pressing me to do it too. He knows some bad people and I don’t want to be part of it.”

BSO Cunningham said, “if you want to tell me about it, I’ll listen to all the information you want to give me.”

[54] At this point, BSO Cunningham said that Mr. Dhatt’s demeanor was deteriorating. He appeared upset.

BSO Cunningham said, “before you keep going, I want to tell you thank you. If you’re telling me something to keep things from coming into Canada than you’re doing a good thing. I understand it’s a hard thing to do but thank you for being brave and helping to keep Canada safe”.

Mr. Dhatt said, “he knows I’ve been going through a hard time. He told me $10,000 per trip and he could fix the trailer so no one could find it.”

BSO Cunningham said, “you can go if you want, but to talk more why don’t you drop your air brakes and your re-fur (refrigerated trailer) so we can talk better”.

[55] By the suggestion that Mr. Dhatt could go if he wanted, BSO Cunningham said he meant that Mr. Dhatt could go to the secondary inspection site. He said that Mr. Dhatt understood that.

[56] Mr. Dhatt exited the vehicle to shut off the refrigeration unit. He dropped his air brakes from inside his cab. He returned to the cab of the truck and the conversation continued with Mr. Dhatt speaking out of the open window.

Mr. Dhatt said, “it’s been hard lately. He knows I’ve lost both my parents. I went to medical school, almost bankrupt and had to start working. I can give you his name/phone number/address.”

[57] BSO Cunningham started to take his notes on a piece of cardboard he had in the booth. Mr. Dhatt said, “his name is Gagnan Grewal” and he gave Mr. Grewal’s telephone number. He said that Mr. Grewal lived in Brampton.

[58] BSO Cunningham said that Mr. Dhatt was beginning to calm down. He asked for Mr. Grewal’s date of birth. Mr. Dhatt said he didn’t know his date of birth but “he’s about 35 years old. He’s on my Facebook page.” Mr. Dhatt showed BSO Cunningham the Facebook page on his smart phone.

[59] BSO Cunningham said that Mr. Dhatt spoke English with an East Indian accent. He said that Mr. Dhatt appeared to understand English quite clearly. When Mr. Dhatt handed his smart phone to BSO Cunningham, he saw a picture of an East Indian male on Mr. Dhatt’s Facebook page showing a date of birth of August 20.

BSO Cunningham said, “I want to thank you for everything you’re doing. I understand it isn’t an easy decision and you’re doing the right thing by helping. I hope you understand this information will be very helpful. I will have to give it to an investigator. Would you be willing to talk with one of our investigators.”

Mr. Dhatt said, “of course no problem. He keeps pushing me saying you have to do it. I’m willing to say yes next time. Then you can arrest everyone involved at once, so they don’t think I was part of it.”

BSO Cunningham said, “that’s something the investigator can work out. Can you hang on one second while I make a phone call to see if an investigator can talk to you now? Would you be willing to talk to one now if I can get one down here?”

Mr. Dhatt said, “the load is due in Montréal tomorrow, so I have plenty of time.”

BSO Cunningham said, “I’m going to make a call and see what I can do”.

[60] At this point, BSO Cunningham closed the window in his booth and called shift superintendent Boughner. He told BSO Boughner that he had a gentleman who had information with respect to smuggling. He was looking for an investigator to come down and speak with him. BSO Boughner said he would contact the investigator and get back to BSO Cunningham. After three to five minutes, BSO Boughner called BSO Cunningham back. Inexplicably, he said the investigator did not want to come to the border. He instructed BSO Cunningham to take down Mr. Dhatt’s phone number and said that someone from investigations would call Mr. Dhatt the next day. BSO Cunningham pushed to the issue and said that Mr. Dhatt needed to be interviewed now. BSO Boughner called the investigator again and after another three to five minutes, called BSO Cunningham back and said an investigator would attend to speak with Mr. Dhatt at the “off-site” location. The off-site location is a ten minute drive, approximately five to seven kilometres away. It is a restricted access area where commercial vehicles are examined.

[61] BSO Cunningham told Mr. Dhatt that an investigator would speak with him and that he was sending him to the on-site secondary vehicle inspection site which is located at the border under a canopy. He directed Mr. Dhatt to that location. BSO Cunningham said: “In case anyone is watching, I’m going to send you to the office and then will escort you in one of our vehicles to the off-site”.

[62] Mr. Dhatt said,

“I lost both my parents and now I have only my wife. I am all she has. She went against her parents and married me. If something happens to me, she will be all alone. I have to do the right thing. I have to take care of her.”

Mr. Dhatt then drove to the secondary inspection area under the canopy.

[63] At the secondary inspection area, Mr. Dhatt spoke to BSO Boughner, who told Mr. Dhatt that he would be taken to the off-site inspection location where the inspector would speak with him. BSO Boughner asked Mr. Dhatt if he had any drugs in the load or in the truck and he said “no”. Mr. Dhatt’s demeanour was calm.

[64] BSO Cunningham was relieved at the primary inspection area at 4:00 a.m. He walked to the secondary inspection area and escorted Mr. Dhatt to the off-site inspection location. Mr. Dhatt drove his truck pulling his trailer and BSO Cunningham followed in an unmarked vehicle. They arrived in less than 15 minutes.

[65] Mr. Dhatt was directed to the drivers’ waiting area, where he was told to wait for the investigator. Investigator Butler arrived at approximately 5:00 a.m. Investigator Butler asked that the truck and trailer be examined so BSO Cunningham asked Mr. Dhatt to back the trailer up to the loading dock and cut the seal. BSO Cunningham asked: “Are we going to find anything? Is there anything in the trailer this trip?” Mr. Dhatt said: “No. Nothing. No problems. I will back it up.”

[66] BSO Cunningham said that Mr. Dhatt had told him he was recruited to bring contraband into Canada. He wanted to be followed and have everyone arrested on the next trip. He implied that he had nothing on this trip.

[67] Mr. Dhatt parked his truck and was referred back inside. BSO Cunningham said that at no point did Mr. Dhatt say that he wanted to leave.

[68] Mr. Dhatt’s evidence differs slightly from that of BSO Cunningham. According to Mr. Dhatt, he told BSO Cunningham that there were bad people pressuring him. He asked to speak to someone senior. BSO Cunningham made a call, came back and said that the supervisor was at home. BSO Cunningham asked Mr. Dhatt to give his telephone number and said the supervisor would call him in the morning. He then cleared Mr. Dhatt’s load, stamping and returning his paperwork. He asked Mr. Dhatt if he wanted to stay or go “because your load is clear”. Mr. Dhatt told BSO Cunningham that he would stay. He said he knew what he had and wanted to explain the story.

[69] Mr. Dhatt said he knew that Border Services Officers would be inspecting his trailer. Before they searched the cab, he was asked if he had anything in the cab and said “no”. BSO Cunningham asked him if he “needed to tell him something” and Mr. Dhatt said, “no nothing”. He said he thought BSO Cunningham was asking about hazardous material. BSO Cunningham never asked him directly if he had drugs in his truck.

[70] After they drove to the off-site inspection, Mr. Dhatt went inside. He knew they were searching the trailer. He knew that the cocaine bricks would be found. He expected it. Mr. Dhatt said he was waiting for the lady inspector so that he could tell her about Mr. Grewal and the threat. He never did get to speak with her. He was arrested while in the drivers’ waiting room and taken to a holding cell.

The Discovery

[71] BSO Cummings was working at the off-site facility on Industrial Drive in the early morning hours of December 27. He saw the trailer for the first time backing up to the loading dock at approximately 5:25 a.m. He instructed Mr. Dhatt to open the trailer seal with a bolt cutter, back the truck up to the loading dock and return to the waiting room. BSO Cummings began to inspect the trailer at approximately 5:30 a.m. Using a ladder, he climbed onto the top of the load of oranges. The boxes of oranges were on skids piled approximately six feet high. The boxes were loaded such that there were natural voids in the trailer. He saw indentations on the right side of the load indicating that someone had crawled on the boxes in that location. He crawled onto the boxes to look into the voids. BSO Cummings also saw a Q-tip with a purple stem on top of the boxes immediately before the void. When he looked into the first void on the right-hand side, he saw an open duffel bag and wrapped packages.

[72] The packages were wrapped in plastic, with different types of wrappings. They were approximately one and one half to two inches thick and the size of a brick. Some packages appeared to have spilled out of the bag. There was a second purple Q-tip in the void. One of the packages had what appeared to be a ledger affixed to it.

[73] BSO Cummings obtained a camera to take photographs.

[74] After the skids were removed from the trailer, BSO Cummings inspected the contents more closely. There were 16 packages/bricks scattered outside of the duffel bag. There were five that were bundled together with tape, two that were bundled together and 9 single bricks. There were 14 packages inside the duffel bag, two packages of five bundled together and four single bricks. Some of the packages were wrapped with binder twine; some of the packages were wrapped in clear plastic; some of the packages were wrapped in green plastic; some of the packages were wrapped in bubble wrap. A third purple Q-tip was found, such that there were three Q-tips in total in the trailer.

[75] The RCMP attended, weighed and documented everything, and the contents of one of the packages were tested at random. The material inside the package tested positive for cocaine. The total weight, with packaging, of all of the bricks of cocaine was 36.98 kg.

[76] The bricks of cocaine were wrapped in many layers of wrapping. They were wrapped in clear vacuum food saver bags; then clear plastic; then green plastic; then a food saver bag; then carbon paper; then clear tape; then blue plastic tape; then completely wrapped in plastic. There was one brick of cocaine in particular that the wrappings were not consistent with the others. The original wrapping had been cut, the brick of cocaine had approximately three grams gouged out of it, and the brick was then rewrapped with a piece of duct tape covering the cut. There was no vacuum seal around this particular brick.

[77] BSO Gauvin completed a search of the truck. He located a number of articles. Those of note included:

• two separate LG cell phones;

• Flying J receipt for silver duct tape;

• two loose purple cotton swabs located on the sleeping bunk;

• a black Johnny Walker luggage bag on the top bunk behind the passenger side, with the main compartment unzipped, the flap open and an open box of Q-tip type swabs with purple stems located inside;

• one roll of silver duct tape, open and used;

• one roll of silver duct tape in its original package, unopened.

[78] BSO Gorman is a detector dog handler. In December 2016, BSO Gorman was working with a black Labrador retriever by the name of Pumba. Pumba was, at the time, certified in the passive detection of marijuana, cocaine, heroin and their derivatives, methamphetamine, MDMA and firearms. Pumba retired from service in March 2017.

[79] BSO Gorman attended at the off-site inspection location with Pumba. BSO Gorman had Pumba search the truck, trailer and load of oranges for odours. Pumba showed extended interest in the Johnny Walker black suitcase on the bunk situated behind the driver and passenger seats in the truck. As a result, BSO Gorman conducted an ion scan using a swab of the bottom interior of the suitcase. The swab tested positive for cocaine. A voir dire took place on the admissibility of this evidence. For reasons released orally on June 20, 2018, I found that the evidence of the detector dog was admissible only for the limited purpose of narrative and explanation as to the reason the ion scan was conducted on the interior of the suitcase. The evidence of the ion scan is admissible, however would be given very little weight. In any event, Mr. Dhatt acknowledged having placed the bricks he took from the trailer in the suitcase. The ion scan results confirm that evidence.

[80] Mr. Dhatt had three cell phones with him at the time of the arrest. He said he had the cell phones to communicate with “Bill” and one of the cell phones was used to communicate with Mr. Grewal. Then he said, only one of the phones was working and so that is what he used. A review of the phone records indicates that between December 18 at 5:28 p.m. and December 19 at 7:04 p.m., there were 18 calls placed to Bill. There was a seven minute telephone call to Bill on December 19 at 7:04 p.m. Mr. Dhatt said he told Bill that he had to take a detour due to freezing rain. Bill said, “are you lying to me”. Bill demanded to know the time that Mr. Dhatt would be passing by Los Angeles so that he could watch.

[81] There appears in the telephone messages to be a communication between Mr. Dhatt and an unknown person just before Mr. Dhatt reached the border. Mr. Dhatt said “Paji load not clear yet and no one at broker office picking up maybe I have to wait until eight in the morning when there”. The next one reads “call you in two minutes, are you at duty free”. There are several more messages to and from on unknown person that relate to Mr. Dhatt’s location just before he crossed the border.

The arrest

[82] Mr. Dhatt was arrested at approximately 5:30 a.m. on December 27. The arresting officer was BSO Moreland. Immediately after he was told he was under arrest, Mr. Dhatt said he was “forced” to do it. BSO Moreland stopped Mr. Dhatt and gave him his rights to counsel. Mr. Dhatt said that he understood and that he had wanted to be arrested with the other guys who are forcing him to do this. Mr. Dhatt expressed concern for his wife’s safety.

[83] BSO Moreland retrieved Mr. Dhatt’s iPhone.

[84] At approximately 8:40 a.m., Mr. Dhatt asked how long it would take because the longer he was there, the “bad guys” would know he was caught.

After the Charges

[85] The shipment of oranges was delivered to the customer right away. Mr. Singh did not receive the return of his truck and refrigerated trailer for approximately five to six months. He calculated his net losses at approximately $75,000.

[86] Mr. Singh was asked if he saw Mr. Dhatt at any time after his arrest. Mr. Singh said that he saw Mr. Dhatt approximately 45 days prior to the start of the trial at a grocery store. Mr. Dhatt was with his fiancée and Mr. Singh was with his wife. Mr. Singh said Mr. Dhatt was mumbling and shaking. The two men exchanged words in Punjabi. Mr. Singh said words to the effect that “we treated you like family and you treated us badly”. Mr. Dhatt replied saying he “needed the money and had some stuff to pay off”. He said he was “doing it for someone and that they messed him over”. He said, “somebody was trying to get me to get stuff”. When pressed on cross examination, Mr. Singh said that Mr. Dhatt was mumbling “I messed up. They made me do it. I needed the money. I needed the money.”

Mr. Dhatt’s Communications and finances

[87] Some information was obtained from Mr. Dhatt’s phones. I summarize the pertinent parts here:

1. On November 14, 2016, Mr. Dhatt emailed his employer requesting as much work as possible. He indicated he would take any job at any time. He said, “I just need lots of work bro lol coz my wife is demanding a nice house”.

2. There are text messages to and from Mr. Dhatt’s wife on December 16, 2016. A message from Mrs. Dhatt read “my brother said to me you are negative energy and evil”. Mr. Dhatt responded, “just wait till next week then he’ll be like a beggar in front of you when you have a car.”

[88] Mr. Dhatt provided income information for 2014, 2015 and 2016. He did not prepare and file his income tax returns. He provided a T4 slip for 2014 indicating income of $3,568.85 and two T4 slips for 2015 indicating income of $2,856. In 2016, due to the suspension of his license, Mr. Dhatt did not earn any income between April and December. He estimated his 2016 income to be between $8,000 to $10,000. He said he was expecting a substantial pay cheque on his return from the trip to California.

The Motion for a Directed Verdict

[89] Following the completion of the Crown’s case, Mr. Dhatt brought a motion for a directed verdict. Mr. Miller’s argument was that there was insufficient evidence that Mr. Dhatt and the cocaine cleared customs and, accordingly, the offense of importation is not complete. Mr. Miller relied on the decision of Watt J.A. in R. v. Foster, 2018 ONCA 53. For reasons released orally on June 20, 2018, the printed version of which was marked Exhibit number 23 on the trial, I dismissed the motion. Mr. Miller revisited the same argument in his final submissions. For the same reasons, I dismiss that argument here.

[90] Mr. Dhatt has admitted that he had cocaine in his vehicle when he tried to cross the border from the United States into Canada. Mr. Dhatt admitted that he knew the cocaine was in his vehicle and that it was to be trafficked by someone in Canada. The elements of both offenses in the indictment are made out. The defence is one of duress.

The Law

[91] The Criminal Code of Canada, R.S.C.1985, c. C-46, section 17, provides:

“A person who commits an offense under compulsion by threats of immediate death or bodily harm from a person who is present when the offense is committed is excused for committing the offense if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offense that is committed is high treason or treason, murder, piracy, attempted murder,……”

[92] The requirements of immediacy and presence were found to infringe s. 7 of the Canadian Charter of Rights and Freedoms and were struck down as unconstitutional (R. v. Ruzic, [2001] 1 SCR 24).

[93] The plain meaning of s. 17 is restrictive in scope. However, the common-law defence of duress remains available, notwithstanding s. 17, to parties to an offense (Ruzic at paragraph 56).

[94] In Ruzic, at paragraph 59, the Supreme Court discussed the practical problems relating to evidence in an assessment of the defence of duress at common law. The court said:

The assessment of a defence of duress at common law may carry with it a number of practical risks and problems relating to evidence. At times, as in the case at bar, proof of that offense may rest on little more than the accused’s own evidence. The verification of a spurious claim of duress may prove difficult. Hence, courts should be alive to the need to apply reasonable, but strict standards for the application of the defence. In the end, much will depend on the evaluation of the evidence and on the soundness of the instructions given to jurors during a jury trial.

[95] There are 3 essential elements which must be considered in assessing the defence of duress. They are:

1. clear and imminent danger;

2. absence of any reasonable legal alternatives to breaking the law; and

3. proportionality between harm inflicted and the harm avoided, in the sense that the harm avoided must be either comparable to or clearly greater than the harm inflicted. (Ruzic at paragraph 59; R. v. Latimer, 2001 SCC 1, [2001] 1 SCR 3 at para 29-31)

[96] The elements of the defence of duress are further summarized by the Supreme Court in R v. Ryan, 2013 SCC 3 at paragraph 81 as follows:

a) There must be an explicit or implicit threat of present or future death or bodily harm. This threat can be directed at the accused or a third party.

b) The accused must reasonably believe that the threat will be carried out.

c) There is no safe avenue of escape. This element is evaluated on a modified objective standard.

d) A close temporal connection between the threat and the harm threatened.

e) Proportionality between the harm threatened and the harm inflicted by the accused. The harm caused by the accused must be equal to or no greater than the harm threatened. This is also evaluated on a modified objective standard.

f) The accused is not a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew that threats and coercion to commit an offense were a possible result of this criminal activity, conspiracy or association.

Analysis

[97] In R. v. Berbeck, 2013 ONCA 241, the accused was charged with importing cocaine. The accused raised the defence of duress, alleging that his brother and a Jamaican police officer forced him to swallow cocaine pellets with guns pointed at his head in order to repay his father’s debt. The accused was acquitted by a jury. The Crown appealed alleging that the trial judge erred in his responses to the jury’s questions. The appeal was dismissed.

[98] In its decision, the Court of Appeal discussed the elements of the defence of duress along with a decision tree provided by the trial judge to the jury. The Court of Appeal did not find fault with the trial judge’s version of the decision tree but made reference to the decision tree set out in Watt’s Manual of Criminal Jury Instructions (Toronto: Thompson Carswell, 2005). The questions in the decision tree are posed in the negative given the Crown continues to bear the burden of proof beyond a reasonable doubt. The Crown suggests that I use that decision tree in the analysis of Mr. Dhatt’s defence of duress.

[99] Using the elements of the law of duress as articulated by the Supreme Court in Ryan, and as set out in Watt’s Manual of Criminal Jury Instructions, I ask myself the following questions:

1. Has the Crown proven beyond a reasonable doubt that Mr. Grewal did not threaten Mr. Dhatt explicitly or implicitly with present or future death or bodily harm unless he imported cocaine?

2. Has the Crown proven beyond a reasonable doubt that Mr. Dhatt did not reasonably believe that the threat would be carried out?

3. Has the Crown proven beyond a reasonable doubt that Mr. Dhatt had a safe avenue of escape to avoid the harm threatened?

4. Has the Crown proven beyond a reasonable doubt that Mr. Grewal’s threat did not cause Mr. Dhatt to import cocaine?

5. Has the Crown proven beyond a reasonable doubt that the harm Mr. Dhatt caused was disproportionate to the harm threatened by Mr. Grewal?

[100] If the answer to all five questions above is “no”, the conditions for duress are present and Mr. Dhatt must be acquitted. If the answer to any of the questions is “yes”, then Mr. Dhatt must be convicted. I will consider all of the five questions in turn even though an affirmative answer to one of the questions negates the defence of duress.

First Question: Has the Crown proven beyond a reasonable doubt that Mr. Grewal did not threaten Mr. Dhatt explicitly or implicitly with present or future death or bodily harm unless he imported cocaine?

[101] An implied threat can amount to duress. The issue of whether particular conduct can properly be construed as a threat must be determined on a subjective – objective standard. (R v. McRae, (2005), 2005 26592 (ON CA), 77 O.R. (3d) 1 (CA)).

[102] Turning to the evidence on this point, Mr. Dhatt claims that Mr. Grewal made a proposal to him. He said it was “totally safe” and that Mr. Dhatt just had to “bring stuff from USA into Canada.” From Mr. Dhatt’s evidence, I take it that he did not respond immediately. The next day he left for California.

[103] Mr. Grewal contacted Mr. Dhatt by phone shortly after he crossed the border from Canada into Michigan on December 16. Mr. Dhatt said he would not bring contraband back to Canada. According to Mr. Dhatt, Mr. Grewal said he “already told yes to those guys”, that “they are angry”, that “they are going to lose a lot of money” and that they are “dangerous people”. Mr. Grewal said that if these dangerous people threaten him, then he would give them Mr. Dhatt’s address and they will “level the playing field”.

[104] Mr. Grewal denies all of the above evidence. However, I have some difficulty with Mr. Grewal as a witness. In cross-examination, Mr. Grewal admitted to being a heroin addict. Between the summer of 2016 and Christmas of 2016, he was spending approximately $300 per week on heroin. During this period of time, Mr. Grewal’s wife wasn’t working, and he was the sole income earner. He had just had a new son born in August 2016. Mr. Grewal had every incentive to earn money illegally and I’m not satisfied that he didn’t try to do so. Given these circumstances, I find that Mr. Grewal is not a reliable witness and I decline to accept his evidence.

[105] I therefore proceed with my analysis on the basis that Mr. Grewal made the statements alleged by Mr. Dhatt.

[106] The only evidence of the threat came from Mr. Dhatt’s viva voce evidence and thus the comment in Ruzic, paragraph 59 applies. The substance of that evidence is a conversation by telephone between Mr. Dhatt and Mr. Grewal on December 16. In that conversation, according to Mr. Dhatt, Mr. Grewal relayed to unknown persons (presumably the exporters in California) Mr. Dhatt’s refusal earlier that same day to import drugs. According to Mr. Dhatt, Mr. Grewal told him that he had previously told these unknown persons that Mr. Dhatt had agreed to import cocaine on their behalf and when he told them that Mr. Dhatt had said no, they asked for Mr. Dhatt’s address. He said, “they are angry”, they are “dangerous people” and if they threaten Mr. Grewal, Mr. Grewal would give them Mr. Dhatt’s address. He said that they would “level the playing field”.

[107] The threat must be a threat of death or bodily harm. The Supreme Court explains, in Ryan, at paragraph 59:

“The harm threatened must be death or bodily harm. Traditionally, courts have qualified this bodily harm as needing to be “grievous” or “serious” (see e.g. Hibbert, at paras. 21 and 23). However, this higher threshold is not necessary in light of the existence of the proportionality requirement – inherent in the principle of voluntariness [page 43] -which acts as the ultimate barrier for those who seek to rely on the defence.”

[108] I agree with the Crown that the statement made by Mr. Grewal was vague, uncertain and remote. There is no evidence as to what “level the playing field” meant. The Supreme Court in Ruzic has instructed trial judges to “apply reasonable but strict standards for the application of the defence”. It seems to me that, to avail oneself of the defence of duress, the requirement that the harm threatened be death or bodily injury must be readily apparent, either expressly or by implication. It is not readily apparent in the statement alleged to have been made by Mr. Grewal. The statement could just as easily be interpreted as a threat of property damage. However, the question is whether the Crown has proven beyond a reasonable doubt that Mr. Dhatt was not threatened with death or bodily harm. The words spoken raise a reasonable doubt. I would therefore answer this question in the negative.

Question 2: Has the Crown proven beyond a reasonable doubt that Mr. Dhatt did not reasonably believe the threat would be carried out?

[109] When considering this question, I must consider Mr. Dhatt’s state of mind. Mr. Dhatt must believe, at the time of the offense, that the unknown persons/importers would actually follow through on the threat made. The belief must be reasonable in all the circumstances. This element is analysed on a modified objective basis, according to the test of the reasonable person similarly situated. (Ryan paragraph 64).

[110] Here, I consider Mr. Dhatt’s actions after the cocaine was placed in his trailer among the oranges. He drove to the next truck stop. He parked his truck, cut the new seal on the back of the trailer and entered the trailer. He located the duffel bag. He unzipped the double bag, opened it up and felt inside. Mr. Dhatt said he did these things because “I wanted to check what it was that I have.” He said: “So I had this feeling that, I don’t know what, what they were just telling me you have to pick up stuff, they didn’t tell me what it is. So, I wanted to check, is there guns in it, is there some kind of gunpowder or explosives, something that I won’t be named as a terrorist passing through a city. I won’t blowup with my truck and harm other people as well.”

[111] Mr. Dhatt put his hands in the bag and did not feel guns. He found bricks packed and taped together in groups of five. He took one package of five bricks into the truck cab with him “so I could check what actually is it.” He said “I know I’ve tried cocaine in the past, I know if it’s cocaine. I can tell because in my college, I did do cocaine in college.”

[112] The bricks of cocaine were wrapped in multiple layers of packaging. Mr. Dhatt didn’t have anything to open one of the packages with. He went into the truck stop and purchased a razor blade. He returned to his cab and, using the razor blade, cut one of the bricks open. He said, “some of the cocaine fell”, “half an inch piece fell, broke off and fell in my truck on the carpet”. He said, “I picked it up and I smelled it and I did actually sniff a little bit and then I put the bricks back in my briefcase because I knew it is cocaine and there is nothing that I should fear that I’m going to blow up or something.” He put the bricks in his suitcase, closed the suitcase and started driving.

[113] Mr. Dhatt’s actions are not those of a man who is afraid that he or his loved ones would be killed or come to grievous bodily harm. According to Mr. Dhatt’s evidence, he wanted to make sure that there were no guns or explosives in his trailer. Presumably, if there were guns or explosive in his trailer, he would have taken a different course of action rather than driving across the country and crossing the border into Canada. According to Mr. Dhatt, using a razor blade, he cut open one of the bricks of cocaine slicing through numerous layers of packaging. The bricks were carefully packaged, with the packaging clearly intended to conceal them and mask their scent. If Mr. Dhatt was afraid of the importers, it is inconceivable that he would open up their product and injest some.

[114] Mr. Dhatt drove across the United States from California to Effingham, Illinois over the course of four days from December 21 to December 25, with the bricks of cocaine in his suitcase in the cab of his truck. I find that he helped himself to the cocaine on more than one occasion. The brick that Mr. Dhatt opened had approximately three grams gouged out of it. Mr. Dhatt said he injested one line and threw the rest on the ground outside of his truck. If that were the case, then there would be no reason for Mr. Dhatt to keep the cocaine with him in the truck cab. His actions are more consistent with someone who used the cocaine over the next four days while driving across the United States.

[115] In addition to Mr. Dhatt’s actions, I consider all of the evidence including the following:

• There was not a close connection in time between the threat, Mr. Dhatt’s act in bringing the cocaine into Canada and the time when the threat was to be carried out. Indeed, there was no indication as to when the threat would be carried out. Mr. Dhatt did not ask Mr. Grewal and Mr. Grewal provided no particulars.

• The threat, that “they will level the playing field”, was vague. Mr. Dhatt did not know what was meant, nor did he ask Mr. Grewal what was meant.

• Mr. Grewal was not present with Mr. Dhatt when he made the threat. Mr. Grewal himself did not threaten Mr. Dhatt. Mr. Grewal was not present with Mr. Dhatt at the time of the offense.

• Mr. Dhatt was an experienced truck driver, and a relatively educated, mature individual at the time of the offense.

[116] Applying a modified objective standard, that of a reasonable person similarly situated as Mr. Dhatt, I find that such a reasonable person would not reasonably have believed the threat. However, I find that Mr. Dhatt’s actions themselves support the conclusion that he subjectively did not believe the threat.

[117] I therefore find that the Crown has proven beyond a reasonable doubt that Mr. Dhatt did not reasonably believe that the threat would be carried out.

Question 3: Has the Crown proven beyond a reasonable doubt that Mr. Dhatt had a safe avenue of escape to avoid the harm threatened?

[118] The question to be considered is whether there was some other way in which Mr. Dhatt could have safely gotten out of the situation in which he found himself other than by importing cocaine. A safe means of escape refers to an obvious, safe means of escape, such as fleeing or running away from the person who made the threats or seeking help from the police or other authorities.

[119] Once again, the test is to be considered on a modified objective basis namely that of a reasonable person similarly situated to the accused. The Supreme Court in Ryan explained, at paragraph 65, by quoting from Ruzic:

“The courts will take into consideration the particular circumstance where the accused found himself and his ability to perceive a reasonable alternative to committing a crime, with an awareness of his background and essential characteristics. The process involves a pragmatic assessment of the position of the accused, tempered by the need to avoid negating criminal liability on the basis of a purely subjective and unverifiable excuse.”

[120] In other words, a reasonable person in the same situation as the accused and with the same personal characteristics and experience would conclude that there was no safe avenue of escape or legal alternative to committing the offense. If a reasonable person similarly situated would think that there was a safe avenue of escape, the requirement is not met, and the acts of the accused cannot be excused using the defence of duress because they cannot be considered as morally involuntary.

[121] Mr. Dhatt received the call from Mr. Grewal on December 16. The cocaine was placed in his refridgerated trailer on December 21. He had five days within which to take steps. He could have contacted his wife and instructed her to go to a place of safety; he could have contacted police in Ontario and advised of his situation. He did not.

[122] Mr. Dhatt received the cocaine on December 21. He did not cross the border to Canada with it until December 27. He had six days in which he could have called the police in Canada. He had six days in which he could have alerted the police in the United States. He did not.

[123] Mr. Dhatt’s evidence was that he made up his mind that he would alert the CBSA on his entry into Canada. When it was suggested to him that he could have contacted the police in the United States or the Canadian police from the United States, he said:

I already made up my mind. I didn’t even think about that, what I am going to do. So, you are just putting in assumptions that I could have done that when I have already made up my mind what I am going to do. So, there is no thinking what I could have done else because I have already made up my mind what I am going to do. So, there is no question of what else would have, I could have done a million things except that. But that was the best thing I thought I would do.

[124] He gave the following answers to the following questions:

Q. Yes. You could have done a million things.

A. Yes.

Q. There are a lot of things you could have done differently?

A. Yes. But I didn’t think about that.

Q. You chose one path and one path only?

A. Yes. Yes.

Q. And that path had you bringing the drugs back into Canada…

A. Yes.

[125] In considering Mr. Dhatt’s evidence, I return to his evidence on his entering the trailer to ensure that he didn’t have explosives or guns. Mr. Dhatt said that he was concerned about explosives that could be detonated remotely. He was concerned that he had guns. He said that if he found explosives, he would call the police and tell them his story. He said that if he found a bag full of guns, he would have contacted the police. He said that he was not going to travel with explosives or guns in his trailer but that he would travel with cocaine because then his best option is to advise the CBSA.

[126] Mr. Dhatt did consider other options. He considered those options in the context of the possibility of having explosives or guns in his trailer. If he had explosives or guns, he had a different plan. In that event, he said he would have contacted the police immediately. This option was available to him, and he chose not to take it.

[127] Mr. Dhatt had a fear of being stopped in the United States with the cocaine. He had the following exchange with his counsel in chief:

Q. You seemed to be concerned about being stopped in the United States?

A. Yes.

Q. Why were you concerned about that?

A. I was just overcautious, I didn’t want to be stopped before I reached Canada. I didn’t want to get caught in the US and be in jail for the whole of my life when I’m innocent.

[128] Mr. Dhatt was prepared to contact the police in the United States if he had explosives or guns but not if he had drugs. In that event, he wanted to take his chances with the authorities in Canada. I note that the United States is not a lawless state. It has a justice system similar to ours, with the presumption of innocence and an independent judiciary. I have some difficulty understanding why Mr. Dhatt decided he would contact the American authorities if he had guns or explosives, but he would not contact the American authorities if he had drugs.

[129] In addition to contacting the police, Mr. Singh could have told his employer at State Express. He acknowledged that they, Mr. Pritpal and Mr. Singh, had treated him “like a brother” and that he could have called them to seek their assistance. He acknowledged that between December 15 and 26, he received or made a total of 184 calls to either State Express or its owners for a total of four hours and 54 minutes and at no point did he tell anyone he was forced to return to Canada with cocaine and he needed their assistance.

[130] I conclude that Mr. Dhatt had a safe avenue of escape. He could have contacted police in Canada or the United States before he picked up the contraband. He could have contacted the police in Canada or in the United States after he was in possession of the contraband. He could have confided in his employer and asked for help. He knew that he could have taken those steps and chose not to. I conclude that the Crown has proven beyond a reasonable doubt that Mr. Dhatt had a safe avenue of escape to avoid importing cocaine into Canada.

Question 4: Has the Crown proven beyond a reasonable doubt that Mr. Grewal’s threat did not cause Mr. Dhatt to import cocaine?

[131] This element of the offence has to do with the relationship between Mr. Grewal’s threat and the offense committed by Mr. Dhatt. Mr. Dhatt must have committed the offence only because Mr. Grewal threatened to kill or seriously injure him or his loved ones if he did not do so. To put the question another way, was it Mr. Grewal’s threat alone that caused Mr. Dhatt to commit the offence?

[132] Here, I consider Mr. Dhatt’s financial situation. According to the T4 information provided, he made minimal income in 2014 and 2015. His driver’s license was suspended between April and December 2016. Mr. Dhatt said his income in 2016 might have been $8,000 to $10,000. Mr. Dhatt’s wife did not work in 2014 or 2015 and in 2016, she worked at minimum wage jobs.

[133] Mr. Dhatt had received a fine of $2,500 in April 2016 which he had to pay. He had a Presidents Choice Financial MasterCard with a balance of $4,500 owed on it. His leased truck, on his first trip to California with State Express, had to have the radiator replaced at a cost of $3,000, paid by State Express and owed back to State Express.

[134] Mr. Dhatt and his wife had to move into a basement apartment in her parents’ home in 2016. Mr. Dhatt emailed Mr. Singh at State Express, requesting as much work as possible. He said he would take any job at any time. He said he needed “lots of work” because his wife was demanding a nice house.

[135] On December 16, a text exchange between Mr. Dhatt and his wife indicated that Mrs. Dhatt would have a new car the next week. This text exchange is consistent with an expectation of receiving a significant sum of money.

[136] Mr. Dhatt was deleting phone calls and text messages from his cell phones. He deleted messages from Mr. Grewal and from Bill. He deleted the text message sent to Bill of a picture of the sealed trailer. When he was asked why he would delete that message, he said that if he was stopped for a traffic violation in the United States “the police officer can come and ask you for your phone to check if I was texting while driving, to check if I was making any calls while I was driving. So, I didn’t want to keep those messages, I knew I wanted to keep the phone because I knew that they can recover those messages.” I find it inconceivable that Mr. Dhatt drove his truck for days, under the influence of cocaine at least once, with cocaine present in the truck cab with him, and at the same time was concerned about what police might find on his phone in the event he was stopped. Mr. Dhatt’s actions in deleting messages is inconsistent with someone who is acting under compulsion. They are more consistent with someone who is concealing his communications while committing a crime for financial gain.

[137] I conclude that the Crown has proven beyond a reasonable doubt that Mr. Dhatt did not import the cocaine only as a result of Mr. Grewal’s threat. He imported the cocaine, at least in part, for financial gain.

Question 5: Has the Crown proven beyond a reasonable doubt that the harm Mr. Dhatt caused was disproportionate to the harm threatened by Mr. Grewal?

[138] Duress will only excuse a person if that person does not cause greater harm to avoid a lesser harm. The concept is explained by the Supreme Court in Ryan at paragraphs 53 and 54:

The defence of duress requires proportionality between the threat and the criminal act to be executed. In other words, the harm caused must not be greater than the harm avoided. Proportionality is measured on the modified objective standard of the reasonable person similarly situated, and it includes the requirement that the accused will adjust his or her conduct according to the nature of the threat: “the accused should be expected to demonstrate some fortitude and to put up a normal resistance to the threat” (Ruzic, at para 62).

Proportionality is a crucial component of the defence of duress because, like the previous two elements, it derives directly from the principle of moral involuntariness: only an action based on a proportionally greater threat, resisted with normal fortitude, can be considered morally involuntary.

[139] I must then compare the two harms: the harm the importers threatened, through Mr. Grewal, to cause to Mr. Dhatt and the harm Mr. Dhatt caused by importing the cocaine. I must also consider the question of whether Mr. Dhatt’s act of importing cocaine accords with what society would expect of a reasonable person similarly situated with Mr. Dhatt’s personal characteristics in the same circumstances.

[140] Mr. Dhatt imported a significant quantity of cocaine into Canada. It is an extremely serious offence. It is one punishable by a maximum of life imprisonment. Cocaine is an extremely dangerous and highly addictive substance. In R v. Hamilton (2004), 2004 5549 (ON CA), 72 OR (3d) 1 (CA), Doherty J.A. noted that the importation of dangerous drugs like cocaine has always been considered among the most serious crimes known in Canada. At paragraph 104 he said:

The use and sale of cocaine kills and harms both directly and indirectly. The direct adverse health effects on those who use the drug are enormous and disastrous. Cocaine sale and use is closely and strongly associated with violent crime. Cocaine importation begets a multiplicity of violent acts. Viewed in isolation from the conduct which inevitably follows the importation of cocaine, the act itself is not a violent one in the strictest sense. It cannot, however, be disassociated from its inevitable consequences. Unlike the trial judge, I characterize cocaine importation as both a violent and serious offence.

[141] Cocaine is not indigenous to Canada. Without importers, Canada would have no cocaine. The harm threatened is therefore a very serious and significant one.

[142] The threat against Mr. Dhatt made from unknown persons through Mr. Gewal was to “level the playing field”. The threat is imprecise. Without imputing meaning to those words, we cannot conclude that the threat to Mr. Dhatt was for harm anywhere close to the harm caused by importing a significant amount of cocaine.

[143] I therefore find that the Crown has proven beyond a reasonable doubt that the harm Mr. Dhatt caused was disproportionate to the harm threatened by Mr. Grewal.

[144] For the foregoing reasons, I reject Mr. Dhatt’s defence of duress.

Abandonment or Innocent Possession

[145] Mr. Miller points to Mr. Dhatt’s behaviour at the Ambassador Bridge and suggests that Mr. Dhatt had no intention of importing the cocaine for the purpose of trafficking.

[146] Mr. Dhatt was agitated at the primary kiosk that was manned by BSO Cunningham. He was edgy. He was sweaty, twitchy and nervous. He told BSO Cunningham that a man was pressing him to bring “stuff through the border”. He told BSO Cunningham he was offered “$10,000 per trip”. Mr. Dhatt made no effort to leave. He was willing to talk to an investigator. He calmed down by the time he was sent to the on-site secondary vehicle inspection site and was certainly calm by the time he was taken to the off-site inspection location. Mr. Dhatt was asked if the border services officers would find anything in a search of the trailer and he said “no”. His answer was absurd. He knew the cocaine was in his trailer. He must have known that Border Service Officers would find it.

[147] In any event, Mr. Miller submits that Mr. Dhatt had no desire at the time he entered Canada with the cocaine to do anything other than hand it over to the CBSA. The importation was abandoned before its completion.

[148] Mr. Miller raises the defence of innocent possession. In the case of R. v. Chalk (2007), 2007 ONCA 815, 88 OR (3d) 448 (CA), the accused was charged with possession of child pornography. Child pornography was found on the hard drive of the computer the accused kept in the home he occupied with his girlfriend and her two children. When he was arrested on an unrelated matter, concerned that the police would examine the contents of his computer he telephoned his girlfriend and told her to delete the files. She opened them and found the pornographic images involving children and showed them to the police. The images were on the computer for several months. The trial Judge found that the accused exercised sufficient control over the videos when he instructed his girlfriend to delete them to put him in possession of the videos within the meaning of s. 4(3) of the Criminal Code. The accused was convicted, and his appeal was dismissed. Speaking for the Court of Appeal, Doherty J.A. said the following at paragraphs 23 – 25:

There is a line of authority supporting the proposition that exercising control over contraband with the requisite knowledge, but solely with the intent of destroying the contraband or otherwise permanently removing it from one's control does not constitute criminal possession: see R. v. Glushek, 1978 ALTASCAD 175, [1978] A.J. No. 643, 41 C.C.C. (2d) 380 (S.C. (A.D.)); R. v. Christie, 1978 2535 (NB CA), [1978] N.B.J. No. 68, 41 C.C.C. (2d) 282 (S.C. (A.D.)); R. v. York, 2005 BCCA 74, [2005] B.C.J. No. 250, 193 C.C.C. (3d) 331 (C.A.). In Christie, supra, Chief Justice Hughes, in referring to what I would call "innocent possession", said at p. 287 C.C.C.:

In my opinion, there can be circumstances which do not constitute a possession even where there is a right of control with knowledge of the presence and character of the thing alleged to be possessed, where guilt should not be inferred, as where it appears there is no intent to exercise control over it. An example of this situation is where a person finds a package on his doorstep and upon opening it discovers it contains narcotics. Assuming he does nothing further to indicate an intention to exercise control over it, he had not, in my opinion, the possession contemplated by the Criminal Code. Nor do I think that a person who manually handles it for the sole purpose of destroying or reporting it to the police has committed the offence of possession.

The "innocent possession" line of authorities was helpfully examined by Green J. in R. v. Loukas, [2006] O.J. No. 2405, 2006 ONCJ 219. Green J. points out that some of the "innocent possession" cases recognize a public duty defence as for example where an accused takes possession of contraband to deliver it to the authorities. In other cases, "innocent possession" is said to arise from the absence of an intention to exercise control beyond that needed to destroy the contraband or otherwise put it permanently beyond one's control. Green J. observes that in all of these cases there is, despite the existence of possession in the strict sense, an absence of a blameworthy state of mind or blameworthy conduct. Convictions for criminal possession by a technical application of the concepts of knowledge and control in these circumstances would overreach the purpose underlying the criminal prohibition against possession.

I agree with the analysis described above. There are cases where an individual has the requisite control and knowledge but cannot be said to be in possession for the purpose of imposing criminal liability. These cases will include cases in which a person takes control of contraband exclusively for the purpose of immediately destroying the contraband or otherwise placing it permanently beyond that person's ability to exercise any control over the contraband. In such cases, the intention is solely to divest oneself of control rather than to possess. Like the other appellate courts whose discussions are referred to above, I do not think that criminal liability should attach to that kind of brief, "innocent" possession: see e.g., R. v. Glushek, supra; R. v. York, supra.

[149] In the case at hand, Mr. Dhatt drove across the United States for four days with the cocaine in his direct possession, inside of his truck cab. He opened it, he examined it, he ingested it, he repackaged it and he returned it to his trailer. While the cocaine was in his possession, Mr. Dhatt exercised control over it. Under those circumstances, in my view, the doctrine of innocent possession is inapplicable.

[150] I also consider the evidence that Mr. Dhatt required funds and expected to receive a substantial sum of money the following week. I find that Mr. Dhatt accepted the cocaine in his trailer, knew it was there, and transferred it to the border in Michigan. He imported the cocaine for financial gain, a purpose which is entirely inconsistent with innocent possession.

[151] When Mr. Dhatt approached the US/Canada border, the only explanation for his odd behavior is that he got cold feet. He knew there was a good chance that Border Services Officers would locate the cocaine and so he decided to confess, blaming it on Mr. Grewal’s threat. Mr. Dhatt was certainly not an experienced, polished importer of cocaine. He talked of the stress he was under during the drive and an inability to sleep for four days. When those stressful circumstances are added to four days of cocaine use, odd behaviour on the part of Mr. Dhatt is not surprising.

Disposition

[152] For the foregoing reasons, I reject Mr. Dhatt’s defence of duress. I reject his suggestion that he was in innocent possession of the cocaine. I accordingly find Mr. Dhatt guilty on both counts.

Pamela L. Hebner

Justice

Released: Orally on October 31, 2019

COURT FILE NO.: CR-17-3990

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Manpreet Singh Dhatt

REASONS FOR DECISION

Hebner J.

Released: Orally on October 31, 2019