Court File and Parties

COURT FILE NO.: CR-18-4296 DATE: 2022-04-01

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Preet Kiran Singh Gill And Suresh Sharma

COUNSEL: Jennifer Rooke, for the Federal Crown Frank Miller, for Preet Kiran Singh Gill Stephen A. Whitzman, for Suresh Sharma

HEARD: November 12, 13, 14, 15, 18, 19 and 20, 2019; December 2, 3, 4, 5 and 6, 2019; May 10, 11, 12, 13 and 14, 2021; June 7, 8 and 11, 2021; September 23, 24, 27, 28 and 29, 2021; October 1, 25 and 26, 2021; November 19 and 22, 2021; and December 21, 2021

Reasons for Judgment

HEBNER J.

[1] On Monday, September 18, 2017, the accused, Mr. Gill and Mr. Sharma, left Ontario in a commercial tractor-trailer and drove to California. They picked up a load of product from Diamond Wipes and a second load of product from Stash Tea Company (“Stash Tea”). They then drove back to Ontario. The accused crossed the Ambassador Bridge at Detroit, Michigan into Windsor, Ontario on September 22, 2017. At the primary Canadian Border Services Agency (“CBSA”) station, Mr. Gill and Mr. Sharma were directed to the secondary station and then the offsite location where a search of the trailer was conducted. Inside the trailer, there were two cardboard boxes containing approximately 25 kilograms of cocaine.

[2] Mr. Gill and Mr. Sharma were arrested and charged on a two-count indictment:

1. That they imported cocaine into Canada contrary to s. 6 of the Controlled Drugs and Substances Act, S.C. 1996, c.19 (“CDSA”); and
2. That they possessed cocaine for the purpose of trafficking contrary to s. 5(2) of the CDSA.

[3] Mr. Gill and Mr. Sharma both provided a video statement to the Royal Canadian Mounted Police (“RCMP”) on arrest. The Crown sought to use the video statements in cross-examination in the event that either of the accused elected to testify. Mr. Sharma brought an application to exclude his statement under s. 24(2) of the Charter. A voir dire was held. For reasons released September 23, 2021, and marked Exhibit No. 112 on the trial, I granted the application and excluded the statement. Mr. Gill did not bring any such application.

[4] The trial took place over a number of days spanning two years. The trial was interrupted by the illness of counsel, a change of defence counsel for one of the accused, and the COVID-19 global pandemic.

[5] The court heard from the following, among other, witnesses:

1. CBSA Officers: a) Border Service Officer (“BSO”) Melissa Naud, officer at the primary station at the Ambassador Bridge; b) BSO Shannon Bodnar, officer at the secondary station who searched the cab; c) BSO Milena Babich, officer to convoy the accused’s truck to the offsite location; d) BSO Linda Tracey, officer at the offsite location; e) BSO David Cook, officer at the offsite location; and f) BSO Burke, officer at the offsite location.
2. Chris Jacobson, an analyst employed by the CBSA.
3. RCMP Officers: a) Constable Jerry Hoang, exhibit officer; and b) Constable Ian Smith.
4. From Diamond Wipes, Dani Garcia.
5. From Skylark, Sukwinder Mann.
6. From Hain Celestial, Michael Boehm.
7. From Stash Tea, Jiberto Hernandez and David Zimmerman.
8. From Pure Source, Andy Williams, Valerie Tasker and Jose Develo.
9. From ISG Transport Inc., John Gordon.

[6] These are my reasons for judgment.

Background Facts

[7] Mr. Gill, through his company SIM Logistics, owns a semi-truck. He was previously employed at a trucking company called Skylark as an owner operator and left to start his own company. In September of 2017, Mr. Gill contacted Sukwinder Mann of Skylark and said he had a load to deliver in Quebec. Mr. Gill said he did not have the manpower to deliver the load and asked if Skylark could do it. Paperwork was generated and an agreement was reached. He then said that he needed an empty trailer to use, as he did not have another trailer to cover another job. Skylark lent one of their trailers to Mr. Gill to use while Skylark was delivering Mr. Gill’s load to Quebec. Mr. Gill then used the Skylark trailer, with his truck, to drive to California with Mr. Sharma.

[8] Mr. Sharma was a second driver on the trip. He and Mr. Gill had been driving together, to California and Texas, for approximately 3.5 months. Mr. Gill hired Mr. Sharma to be a co-driver so they could, between the two of them, drive continuously. Mr. Gill said that they would each drive 11 hours at a time, with the other in the sleeper berth, sleeping.

[9] When Mr. Gill and Mr. Sharma left Ontario for California on September 18, 2017, they had a load of plastic and rubber caps. They were taking the load to Sterigenics near Chino and Corona, California, using Mr. Gill’s truck and the Skylark trailer. They picked up the load of caps in Kitchener, Ontario and headed to the border at Sarnia, Ontario. They drove into the United States over the Bluewater Bridge. Mr. Gill and Mr. Sharma drove as a team. One drove while the other rested in the sleeper cabin.

[10] Mr. Gill and Mr. Sharma arrived at Sterigenics on September 20, 2017. While there, Mr. Gill used a website to arrange for a load to return to Canada. He was successful in obtaining two loads, one from Stash Tea and one from Diamond Wipes, both within a 30-minute drive of Sterigenics. After they delivered the caps to Sterigenics, Mr. Gill and Mr. Sharma drove to Stash Tea. The load was not ready. They drove to Diamond Wipes where they collected 17 skids loaded with boxes of wipes. They then returned to Stash Tea where they picked up nine skids loaded with boxes of tea.

[11] The load from Stash Tea was headed to Pure Source in Guelph, Ontario. The load from Diamond Wipes was headed to Hain Celestial in Hamilton, Ontario.

Attendance at Diamond Wipes

[12] Mr. Dani Garcia was a warehouse supervisor at Diamond Wipes, in charge of shipping and receiving, in September of 2017. At the time, he had eight to nine people working for him including forklift drivers. There were two separate buildings, one for shipping and one for receiving. Each building had its own office area. There were three to four forklifts and drivers in shipping and three to four in receiving, during two different shifts.

[13] On the day that Mr. Gill and Mr. Sharma attended at Diamond Wipes to pick up their load, a worker named Gerry Reyes was loading the trailer. Mr. Reyes had to leave work early that day. He called Mr. Garcia who was working in receiving in the next building and asked him to help. Mr. Garcia went to the shipping area and, by the time he got there, the truck was loaded and ready to go.

[14] Mr. Garcia did not enter the trailer or the cab. He said the drivers were in a hurry and wanted to leave. Mr. Garcia saw the loaded skids at the back of the trailer but did not see anything else. He did not see any boxes that did not look like Diamond Wipes company boxes. The boxes containing the wipes were stacked on the skids and were all wrapped in plastic. Mr. Garcia did not see any boxes not wrapped in plastic.

[15] There were two cameras filming activity on the loading dock at the time the Diamond Wipes boxes were loaded onto the trailer. The two cameras, identified as camera four and camera five, provided views of the loading from different angles. The footage throughout contains gaps in time. There were 17 pallets of Diamond Wipes boxes loaded onto the trailer in rows of two. The two boxes of cocaine were situated in the sixth loaded row, beside skids 11 and 12. The next row, including pallets 13 and 14, was offset from skids 11 and 12 such that the two boxes of cocaine were not visible.

[16] The gaps in the camera footage are intermittent and relatively brief. Based on the number of pallets loaded on the video before the sixth row, there appear to be ten pallets loaded. Within the two to three minutes that skids 11 and 12 were loaded onto the trailer, there were three combined gaps in surveillance footage from cameras four and five: a 20-second gap, a 26‑second gap, and a 22-second gap. The three gaps were separated by brief footage of one to three seconds.

[17] The video footage shows Mr. Gill and Mr. Sharma in the warehouse, standing around and watching as the skids were loaded onto their trailer.

[18] The only witness called from Diamond Wipes was Mr. Garcia. Mr. Reyes was not called. The absence of his evidence was not explained.

Attendance at Stash Tea

[19] Mr. Jiberto Hernandez and Mr. David Zimmerman gave evidence on behalf of Stash Tea.

[20] Mr. Jiberto Hernandez works in shipping and receiving at Stash Tea. He was at work on September 20, 2017. He could not recall loading Mr. Gill’s trailer. He provided evidence on steps that are normally taken when a truck arrives to pick up a load.

[21] Initially, the order is prepared setting out the merchandise to be picked up. Mr. Hernandez could not recall who would have prepared orders in September of 2017.

[22] After Mr. Hernandez receives the order, the trailer is loaded using a forklift truck. Mr. Hernandez would then go into the trailer and stamp the order to confirm that the merchandise was loaded.

[23] Mr. Hernandez indicated that he inspects the trailers before the merchandise is loaded to ensure that their product will not be damaged. He also said that a seal is always put on the truck after it is loaded. Stash Tea uses a red seal with a number on it. The Stash Tea seal normally used is different from the package of seals found in the side box of the truck cab, which was on the trailer at the time the truck appeared at the CBSA primary station. Mr. Hernandez said that Stash Tea does not, under any circumstances, let the drivers put the seal on. The Stash Tea employee who loads the trailer is required to use and administer the seal. Mr. Hernandez does not recall any drivers asking that their load be sealed with their own seal.

[24] Mr. Zimmerman worked as a warehouse supervisor at Stash Tea in the shipping and receiving warehouse. Mr. Zimmerman said that once an order is loaded, the bill of lading and red Stash Tea trailer seal is given to the driver who is told to put the seal on when he closes the doors.

[25] Surveillance cameras took video of the SIM Logistics truck and Skylark trailer arriving for the Stash Tea load. The video is outside of the loading dock. It shows the truck backing up to the loading dock and then pulling away after the Stash Tea is loaded. The drivers remained outside while the Stash Tea skids were loaded. They were not allowed access to the warehouse.

[26] In the videos and still shots taken of the videos, it is clear that a seal was not applied to the trailer before the truck left Stash Tea.

The Route Home

[27] Mr. Chris Jacobson, an intelligence analyst employed with the CBSA, analyzed all of the data available to him in order to recreate the actions of Mr. Gill and Mr. Sharma from the time they left Ontario until their return. Mr. Jacobson used data from a Garmin GPS located in the truck, cell phone records, cell tower data, logbooks, and purchase receipts. He also used internal data from officers’ notes and obtained border-crossing times from the CBSA. Mr. Jacobson’s task was to go through the data, analyze it, and organize it on a spreadsheet. He used Google Earth, the GPS data, and logbook entries to analyze the path taken by Mr. Gill and Mr. Sharma. In this fashion, Mr. Jacobson was able to recreate the route taken by Mr. Gill and Mr. Sharma to Corona, California, the drop off and pick up stops in the vicinity, and the route taken home culminating in the final crossing at the Ambassador Bridge.

[28] In addition, Mr. Jacobson reviewed the data obtained from Sterigenics, Diamond Wipes, and Stash Tea in California.

[29] The route taken by Mr. Gill and Mr. Sharma from Kitchener, Ontario, to California was a common route. There were no unusual stops or detours. There were fewer GPS track points available to map the route to California than there were to map the route home from California, possibly because the GPS was not used as much on the way there.

[30] At trial, much more time was spent on the route taken by Mr. Gill and Mr. Sharma in California and on the way home. They arrived at Sterigenics in Corona, California, on September 20, 2017, at approximately 14:40 hours. The truck was parked at Sterigenics for a significant period of time. The truck then drove to Stash Tea and stopped there for a short time, following which the truck backtracked to Diamond Wipes. Mr. Gill and Mr. Sharma were at Diamond Wipes for a while and then left and returned to Stash Tea. After spending some time at Stash Tea, Mr. Gill and Mr. Sharma headed east towards home. They went northeast on Highway 15.

[31] The first anomaly in the data appeared less than an hour after the accused left Stash Tea, apparent in two track points in the GPS, 1739 and 1740 near Hesperia, California. It should have taken the accused 11 minutes to drive from track point 1739 to 1740. However, the time spent driving that distance was one hour and 46 minutes. There was no entry in the driver logs to explain how the time was spent. Mr. Jacobson concluded that there was an undocumented stop between these two track points.

[32] The second anomaly in the data appears in the area of Baker, California approximately an hour and 30 minutes after leaving Hesperia. The accused left Highway 15, drove along an overpass to Baker Blvd., and turned into a Dairy Queen store. The truck stopped there for approximately six minutes before leaving and heading northeast on Baker Blvd. They traveled past the Highway 15 entrance and into a vacant lot, circled around, and went back on Baker Blvd. heading northeast to another vacant lot where they pulled in and stayed for three minutes. They then headed southwest on Baker Blvd. to the same overpass and back on Highway 15 towards Las Vegas. The truck was off Highway 15 for 24 minutes. These stops were not noted in either driver’s daily log. At this point, the truck is 104 miles southwest of the Las Vegas truck stop, the first stop logged by Mr. Gill after loading at Stash Tea earlier in the day.

[33] Approximately one hour and 15 minutes later, there was a 20-minute stop in Primm, Nevada. The truck left Highway 15, headed west on East Primm Blvd. over Highway 15, and into the Whiskey Pete’s Hotel and Casino north parking lot. It circled around and headed south on the parking lot service road past Whiskey Pete’s. It circled around the Flying J truck stop parking lot, and rested there for approximately 11 minutes before heading back towards East Primm Blvd., and back on Highway 15 going north towards Las Vegas. This stop was not noted in either driver’s daily log.

[34] The data shows a 20-minute stop that Mr. Gill and Mr. Sharma made at the Petro North Las Vegas Service Station. This was the first stop documented as a “break” in Mr. Gill’s daily log. However, in his logbook, Mr. Gill noted the day and time of the stop as September 20, 2017, at 21:30 EST, but the actual stop was approximately two-and-a-half hours later, on September 21, 2017, at 00:02:09 EST.

[35] Mr. Jacobson reviewed the video data available at Diamond Wipes and Stash Tea. The video footage of the outside of the loading dock at Stash Tea clearly shows Mr. Gill and Mr. Sharma walking off the loading dock together after the trailer was loaded and the Stash Tea warehouse people had left. Mr. Gill entered the cab of the truck and pulled ahead while Mr. Sharma waited at the rear of the trailer, closed the doors, and walked to the passenger side of the cab. The truck and trailer pulled away from Stash Tea without anyone else approaching the trailer doors. It does not appear as though anyone, either Mr. Gill or anyone from Stash Tea, placed a seal on the back of the trailer.

[36] The times noted on the video data were consistent with the data obtained from the GPS. Mr. Jacobson said that the GPS data is extremely accurate.

The Events at the Ambassador Bridge

[37] At the time the accused drove the truck across the Ambassador Bridge, Mr. Gill was driving. Mr. Sharma sat in the passenger seat.

[38] At the CBSA primary station, BSO Naud reviewed the paperwork for the load. The paperwork included an ACI eManifest for Canada that indicated there were two loads in the trailer. There was a Canada Customs Invoice for the Stash Tea load that had been stamped by the CBSA indicating the load had been released or cleared to go. There was an “In Bond” document for the Diamond Wipes load. This document indicated that the broker had not put the shipment into the system properly and Mr. Gill was trying to obtain permission to take the load to Toronto to be cleared at a different customs warehouse. Apparently, that option is available for bonded truck owners.

[39] BSO Naud asked Mr. Gill if the shipment was sealed, and he responded “Yes”. BSO Naud asked, “Who sealed it?” and Mr. Gill said he did.

[40] BSO Naud elected for the truck and the trailer to be examined. She explained that she made that determination for a few reasons. Firstly, the load was coming from California, which is a source area for contraband. Secondly, Mr. Gill and Mr. Sharma said that they were relatively new drivers, just four months with the company. Thirdly, Mr. Gill said that he placed the seal on himself. BSO Naud said that a trailer sealed with a shipper’s seal is more secure. Mr. Sharma did not respond to any questions verbally. He responded only by nodding.

[41] Mr. Gill and Mr. Sharma were directed to the secondary location where BSO Bodnar searched the cab. They were then escorted to the offsite location by BSO Babich.

[42] At the offsite location, Mr. Gill and Mr. Sharma were met by BSO Tracey. BSO Tracey reviewed the documents and noted that there were two loads, a load of tea cleared to go and a load of wipes to go in bond. BSO Tracey spoke with Mr. Gill and Mr. Sharma through her office window. The two men were in the adjacent drivers’ area. BSO Tracey asked Mr. Gill and Mr. Sharma, “Who placed the seal on the back of the trailer? Was it a shipper’s seal or a trucking company seal?” Mr. Gill answered the questions with Mr. Sharma nodding his assent. The response was that they had requested the shipping company to put one of the trucking company seals on. BSO Tracey asked why the shipper would put a trucking company seal on and the response was that the accused asked the shipper to do it.

[43] BSO Tracey said the accused were compliant and forthcoming. She spoke to them at 12:05 p.m., and at 12:08 p.m. they backed the trailer up to the dock. BSO Tracey directed Mr. Gill to break the seal on the trailer in front of her and open the trailer doors. He did so and the two men were directed to wait in the drivers’ room. BSO Tracey then proceeded to examine the shipment.

[44] The two shipments were arranged in 13 rows of two skids, or pallets, per row. The boxes of goods were stacked on the pallets. The rows of pallets were offset such that there was a void in each row hidden by the pallet immediately behind the void. There were 17 pallets of Diamond Wipes and nine pallets of Stash Tea. The Diamond Wipes were located in the front of the trailer immediately behind the tractor. There were eight rows of two pallets each of Diamond Wipes, with the rows offsetting each other. In the ninth row, there was one pallet of Diamond Wipes and one pallet of Stash Tea. The next four rows contained two pallets each of Stash tea, with the rows offsetting each other.

[45] BSO Tracey decided to crawl or walk on top of the load if she was able to do so. She said the ability to crawl or walk on top of a load depends on the height and the stability of the skids. She either climbed up or used a ladder to access the top of the first row comprised of two skids of Stash Tea. She had no problem walking along the Stash Tea skids. They were secure and stable. When she reached the sixth row from the back, BSO Tracey stepped onto a skid of Diamond Wipes boxes. She started to sink and held onto the ceiling and wall of the trailer. She was able to cross the sixth and seventh rows. In the void just in front of row seven, at the eighth row from the back, there were two ordinary, nondescript cardboard boxes containing 25 bricks of cocaine.

[46] The two boxes containing the cocaine were both well worn moving boxes. They were not wrapped in plastic like the boxes from Diamond Wipes. They were simply folded closed and sat on the floor of the trailer.

[47] BSO Tracey looked for footprints or anything out of the ordinary that would indicate someone before her had followed the same route. There was nothing visible that she could see.

[48] BSO Cook was called to assist and the two boxes containing bricks of cocaine were removed. The bricks were examined, tested, weighed, and photographed. One of the boxes contained 12 bricks and the other box contained 13 bricks. Each brick weighed approximately one kilogram. The entire load was then taken off of the trailer to be examined, and 20 random boxes of merchandise were opened and checked for contraband. Nothing else was found.

[49] When BSO Cook attended at the trailer, he entered the back of the trailer and moved over top of the two loads to where BSO Tracey was standing. He was able to move himself across the loads without any difficulty. He said the boxes were strong enough to support his weight without assistance. Initially BSO Cook said that he walked across the two loads. In cross-examination, he clarified by saying that he began to walk and at some point moved to crawling on his knees. He said he did not see any marks or footprints on top of the boxes or in the natural voids of the load.

[50] BSO Cook completed a more thorough search of the cab and side boxes. He located a package of seals in plain sight in one of the side boxes. BSO Cook said that it was mandatory for truckers to cross the border with a trailer sealed. It was clear that the seal on the back of the trailer had come from the bag of seals found in the side box.

[51] There were three phones located, two in the truck and one on Mr. Gill’s person. BSO Cook located a Samsung Galaxy cell phone from the truck cab in the middle console, underneath the radio. BSO Cook also located a flip phone in a black duffel bag in the sleeper portion of the cab on the bed. BSO Burke located a Samsung phone on Mr. Gill’s person when he was arrested.

Hain Celestial

[52] Mr. Michael Boehm was the senior district manager of Hain Celestial in September of 2017. He dealt with shipping, receiving, and scheduling along with other duties. At the time this transaction occurred, Hain Celestial’s warehouse was located on Kenway and Mill Creek Dr. in Hamilton.

[53] Mr. Boehm described the warehouse facility at Hain Celestial at the time. It was an eight-dock facility. There were seven functioning loading docks with one being a drive-in door. It was 80,000 square feet and prepared for the storage of finished goods. There was a security cage around the dock that prevented drivers from wandering into the warehouse. Drivers could be admitted into the warehouse to use a bathroom or check a load, but they were generally not allowed on the loading dock.

[54] In this case, Hain Celestial arranged for the transport of their order from Diamond Wipes through a tender process. A tender for the transport of the load was sent to carriers collected over the years and the carriers return the request with a quote for the work. The freight is granted to the competitive quote.

[55] Hain Celestial has had a long history of business with Diamond Wipes. They have transactions two to three times per year. Hain Celestial ships the bulk product to Diamond Wipes and Diamond Wipes packages the product for sale to consumers. Each contract was ultimately given to ISG Transport Inc., a freight broker, who had the best price.

[56] Mr. Boehm described a freight broker as an organization that has a network of carriers. The freight broker will find a carrier to move the product.

[57] When a load is being delivered to Hain Celestial, drivers do not need an appointment. They simply show up with their paperwork referencing the purchase orders.

Pure Source

[58] Mr. Jose Develo and Mr. Andy Williams gave evidence on behalf of Pure Source Health Products in Guelph, Ontario. Mr. Develo was the warehouse supervisor in September of 2017. He recalls the load of Stash Tea that was destined to be delivered to Pure Source. He described the procedure on delivery of a load.

[59] The warehouse entrance is a controlled entrance. The drivers arrive and enter into a caged-in area. They are not permitted to enter further. They are required to ring a service bell and then someone comes to them to obtain the information. The driver is then assigned a loading dock door to back up to.

[60] Pure Source opens the trailer doors, the trailer is inspected for safety issues, and the load is removed using a pallet jack (a forklift device operated by person walking behind it) or a forklift truck. While the load is removed from the trailer, the drivers are invited to remain in the cage or sit in their tractor with the vehicle off. The only persons who enter the trailer are employees of Pure Source. In the event the load is sealed, either the driver removes the seal or asks Pure Source to remove it.

[61] Pure Source obtains many loads from Stash Tea, generally every three weeks.

[62] Mr. Williams described the security at the warehouse. He said that employees are issued key fobs to enter into the warehouse. The employees have lockers stacked on top of each other in an open area with two cameras. The lockers are large enough for employees to store their jacket and shoes. They are not large enough to accommodate boxes the size of the two boxes containing the cocaine in this case. The lockers are three-and-a-half feet high and 12 inches across. Any lunch boxes are left in the lunchroom and not in the employees’ lockers. He said that receivers are supervised and there are cameras on every dock and cage. He said it would be “pretty impossible” for a box to be removed without being seen by a person or being caught on camera.

[63] Miss Valerie Tasker, the purchasing manager at Pure Source, said appointments are required for the delivery of shipments over 14 skids. In this case, there were nine skids of tea to be delivered to Pure Source. An appointment would not be required. This particular order was placed on September 7, 2017, with a requested delivery date approximately three weeks later. If no appointment is required, as in this case, the receiving department will not know the precise date and time of the shipment’s arrival. They will know only the approximate date and time.

The Freight Broker

[64] Mr. John Gordon gave evidence on behalf of ISG Transport Inc. ISG Transport Inc. is a freight broker situated in Brampton, Ontario. The broker handles the movement of freight from point A to point B. The broker receives calls or e‑mails from either the shipper or the customer with a freight request. ISG Transport Inc. coordinates between five to 20 loads per day.

[65] On September 20, 2017, ISG Transport Inc. arranged for a load of 18 skids to be picked up at Diamond Wipes in Chino, California and delivered to Hain Celestial in Mississauga, Ontario. The job was requested by Hain Celestial and granted to SIM Logistics with the contact person identified as Mr. Gill. Mr. Gordon said the carrier is chosen based on price and service availability. There was verbal communication by phone between Mr. Gordon and Mr. Gill and then confirmation by e-mail.

Mr. Gill’s Statement

[66] Constable Ian Smith, an RCMP officer, was working in the border integrity unit in September of 2017. He was the officer in charge of the investigation. Constable Smith was the officer who arrested Mr. Gill and Mr. Sharma. He obtained video statements from both men. On Mr. Sharma’s application, his video statement was excluded (see my ruling on application delivered orally on September 23, 2021). Mr. Gill did not bring a similar application and his statement was used by the federal Crown, Ms. Rooke, in her cross-examination.

[67] In Mr. Gill’s statement he said the following:

• On Monday, September 18, 2017, Mr. Gill and Mr. Sharma left Canada by way of the Blue Water Bridge at Sarnia. They drove to Corona, California with a load of plastic caps.
• Mr. Gill and Mr. Sharma arrived in Corona, California on Wednesday, September 20, 2017, at 5:00 a.m. They had a specified window of time to deliver their load and were required to wait seven hours for the start of that window. They waited in their truck and arrived at the dock at 11:30 a.m. The trailer was unloaded. At 12:20 p.m., they left for Chino, California to pick up another load. It was a 20-minute drive.
• Mr. Gill and Mr. Sharma drove to Diamond Wipes where 18 skids were loaded onto the trailer. Mr. Gill said that he and Mr. Sharma were told by persons at Diamond Wipes to stay in the truck while the trailer was loaded. Mr. Gill said he followed that instruction. He said, “I just stay in the truck, so that’s all.” He said when the trailer was loaded, he was called inside to sign a bill of lading and then he left.
• Mr. Gill and Mr. Sharma left Diamond Wipes at approximately 1:30 p.m. They drove to Stash Tea (Mr. Gill could not recall the name of the company) for the next pick up, arriving at approximately 2:00 p.m. They picked up nine skids of tea. They stood outside while the tea was loaded into their trailer. They were there for approximately 15 to 20 minutes.
• When Mr. Gill left Diamond Wipes, the company did not put a seal on the trailer.
• At Stash Tea, after the trailer was loaded, the shipper put the seal on. They used an aluminum seal.
• Mr. Gill and Mr. Sharma left Stash Tea at approximately 2:30 p.m.
• Mr. Gill said their first stop on the way home was in Las Vegas, Nevada at a Petro North truck stop, arriving at approximately 9:30 p.m. The stop was for “15 to 20 minutes max”.
• Mr. Gill said their next stop was in Springville, Utah, at a Pilot truck stop. They stopped at 5:30 a.m. They took a break and switched drivers.
• Mr. Gill said their next stop was in North Platte, Nebraska, where they took showers and switched drivers.
• Their next stop was in Illinois at a truck stop where they switched drivers.
• They drove to Detroit where they switched drivers at the Duty Free gas pumps. Mr. Gill drove the truck across the Ambassador Bridge into Canada.
• Mr. Gill is the owner of the truck. He has a company, SIM Logistics, that he uses for operating the truck. The trailer is owned by a company called Skylark.
• Mr. Gill had a laptop with him on the trip that he used to access the website “Loadlink” for finding loads.
• Mr. Gill had two cell phones with him in the truck. Mr. Gill said that Mr. Sharma did not have a phone. If Mr. Sharma wanted to call his family at home, he used Mr. Gill’s phone.
• Mr. Gill did not know who owned the third, flip phone found in the truck.
• Again, Mr. Gill said that when they left Stash Tea, the shipper put the seal on the trailer.
• The seal number was placed on an ACI eManifest document required for entry into Canada. When Mr. Gill was asked who put the seal number on the paperwork, he said, “[m]y guess yes the shipper…they put them on.”

[68] Mr. Gill was insistent that Stash Tea, the shipper, put the seal on the trailer. He gave that information in the middle of the statement, when he described picking up the load at Stash Tea, and again at the end of his statement. He was pressed on this answer, and he consistently said the shipper put the seal on the trailer doors. Constable Smith said, “I don’t think you are telling me the truth on that…”. Mr. Gill said, “[n]o, not me, shipper put it on.”

[69] At the end of the interview, Mr. Gill was asked if there was anything else that Constable Smith needed to know. Mr. Gill said, “Sir that’s all, one of the truth I can tell you Sir,” and “[n]othing be not even 1% wrong.”

[70] The seal number was written on the ACI eManifest required for entry into Canada. The manifest clearly shows that whiteout was used to cover an entry. It appears as though a mistake was made, whiteout was used to cover the mistake, and the correct seal number was placed in the designated spot. A bottle of whiteout was located inside the cab of the truck.

Mr. Gill’s Evidence at Trial

[71] In 2017, Mr. Gill owned his own truck and trailer. He operated out of Guelph, Ontario. In September, he picked up a load of plastic and rubber caps in Kitchener, Ontario, and drove it to Chino, California. At the time he left, he did not have a load arranged to return with. He planned to arrange a return load while in California, using the website “Loadlink” through his computer.

[72] The trip to California was uneventful. Mr. Gill and Mr. Sharma knew the route to California and so did not need to use the GPS.

[73] Mr. Gill and Mr. Sharma reached the place where they dropped off their load (Sterigenics) in the early morning hours of September 20, 2017. They parked the truck and slept for a few hours. The load was taken off the trailer at approximately 10:00 a.m. California time, finishing at approximately 11:00 a.m. During this timeframe, Mr. Gill used his laptop to access the Loadlink website and find a load to take back to Canada. He was able to find two pick ups; one at Stash Tea and one at Diamond Wipes both relatively close by.

[74] Mr. Gill and Mr. Sharma went to Stash Tea to pick up the load, but Stash Tea was not ready. They left and went to Diamond Wipes.

[75] After they arrived at Diamond Wipes, Mr. Sharma backed the truck up to the loading dock. Mr. Gill opened the doors at the back of the trailer. Mr. Gill went to the shipping door, rang the bell, and went inside. He spoke to the people inside the warehouse, telling them the pick-up number and the destination of the load. The people he spoke to initially said they had misplaced the load. Mr. Gill and Mr. Sharma assisted in locating some of the skids and eventually all of the skids were located and loaded into the back of the trailer. Mr. Gill and Mr. Sharma stood in the warehouse while the trailer was loaded, leaving briefly to obtain water and use the washroom. Once the trailer was loaded, the doors were closed, and Mr. Gill and Mr. Sharma drove off.

[76] After they left Diamond Wipes, Mr. Gill and Mr. Sharma returned to Stash Tea. Mr. Sharma drove. When they arrived at Stash Tea, Mr. Gill opened the doors at the back of the trailer and went inside the trailer, with the shipper, to inspect it for cleanliness. The trailer was loaded with the shipment. Mr. Gill and Mr. Sharma drove away from Stash Tea at approximately 2:30 p.m. with Mr. Gill behind the wheel.

[77] After they left Chino, California, they took Highway 15 to Hesperia, California. The traffic was heavy. Mr. Gill said their first stop was at a Pilot truck stop in Hesperia. Mr. Gill described the truck stop as a very busy full-service truck stop covering three acres of land. Mr. Gill said that he parked the truck and asked Mr. Sharma if he wanted to take a shower. Mr. Sharma said no and that he was tired. Mr. Gill said he went inside the truck stop, took a shower, and faxed the paperwork for both loads. He had something to eat and returned to the truck. He said that he was inside the truck stop for at least an hour.

[78] Mr. Gill said that when he returned to the truck, Mr. Sharma was laying down in the sleeper cab. It was at that point that Mr. Gill said he noticed there was no seal on the trailer. He put the seal on the trailer doors and then he got behind the steering wheel and headed towards home. Mr. Gill claims he did not open the trailer doors before he put the seal on.

[79] Mr. Gill got on the same highway, Highway 15. The next time he stopped was at a truck stop in Nevada. On the way, he described an accident on the highway where police attended. They were instructed to exit the highway. After ten to 15 minutes, they were directed back onto the highway. Mr. Sharma remained in the sleeper cabin.

[80] Mr. Gill said he stopped at another truck stop in order to clean the bugs off of his windshield. That was a ten-minute stop. Mr. Sharma remained in the sleeper cabin.

[81] Mr. Gill’s next stop was the Petro North Las Vegas Service Station. He fueled the truck. Mr. Gill continued driving the truck until Springville, Utah, when they switched drivers. After they left Springville, Utah, Mr. Gill slept in the sleeper cabin and Mr. Sharma drove the truck. They switched drivers again in North Platte, Nebraska. After that, there was a stop in Des Moines, Iowa where they switched drivers again. Mr. Gill took over driving when they reached the Ambassador Bridge, as Mr. Gill was the owner of the truck and the primary driver.

[82] It appears as though every significant stop was logged in Mr. Gill’s logbook, with the exception of the stop in Hesperia, California. Mr. Gill said that he noted stops in his logbook at the time of the stop. He said he wrote in his logbook every time there was a driver change.

[83] When they drove over the Ambassador Bridge into Canada, Mr. Gill was behind the steering wheel and Mr. Sharma was sitting in the passenger seat.

[84] Mr. Gill said that he could not recall anybody asking him at the primary kiosk who put the seal on. He does recall being asked to cut the seal off.

[85] Mr. Gill said that he filled out the ACI eManifest with the seal number. By mistake, he wrote the PARS number where the seal number was to go and corrected the mistake using white out.

Mr. Gill’s Cross-Examination

[86] In cross-examination, Mr. Gill gave the following evidence:

• He confirmed that truckers can be fined for a failure to keep accurate logs. He agreed that there is certainly good reason to keep accurate logs in his logbook.
• He agreed that when he and Mr. Sharma left Stash Tea after the tea was loaded, there was no seal on the trailer.
• It is mandatory to log stops exceeding 30 minutes. There was no log for the stop in Hesperia after they left Stash Tea.
• Mr. Gill could not recall the 24-minute diversion through Baker, California. There was no explanation proffered.
• Mr. Gill believed that the stop in Primm, Nevada was when he was cleaning his windshield.

Evidence About the Las Vegas Stop

• The Crown put to Mr. Gill that he intentionally recorded the wrong time at the Las Vegas stop. He said, “[b]ecause lots of time was wasted at the place where we take the delivery. So if we didn’t change the log we could not have our... to our home. So then 36 hours we had to take off on the way for both of us.” In this answer, he appears to agree that he recorded the wrong time for the Las Vegas stop in his log.
• When it was put to him again, he said, “[n]o, everybody does it with a logbook and I’m – I’m not the only one who did this.” In this answer, he again agrees that he recorded the wrong time in his logbook but minimizes the action by saying everybody does it.
• The Crown put to Mr. Gill that he recorded an arrival in Las Vegas at 21:30 EST, but did not actually arrive until 00:02 EST the next day. His response was, “I do not remember, but whatever that was written on the log that was the time.” In this answer, he denies the inaccurate log entry.
• The Crown put to Mr. Gill that his log was not accurate, that he arrived in Las Vegas after the stated time of the log. His response was “[i]t’s possible, but I do not remember.”
• The Crown persisted and put to him that the log was not accurate. Mr. Gill agreed and said, “[t]here was a one hour difference.” He said, “[e]verybody does it who is doing the paperwork, for the paper log.”

[87] Mr. Gill gave inconsistent evidence about the third phone. He said that the two smart phones were his, one personal and one for business use, but could not account for the flip phone. He told Constable Smith that Mr. Sharma did not have a phone and used Mr. Gill’s phone. He confirmed that in his evidence initially, but he then said that Mr. Sharma did bring his own phone. There was no explanation for the inconsistency.

Untruthful Statements Made by Mr. Gill in the Video Statement

[88] Mr. Gill was not truthful in his video statement to Constable Smith. I set out the deceptive comments here:

1. Mr. Gill said that he and Mr. Sharma stayed in the truck when the Diamond Wipes shipment was loaded onto the trailer. They ate some food. He said when the trailer was loaded, the shipper knocked on the door. He said that after the knock, he went inside to sign the bill of lading. When pressed by Constable Smith, he clearly provided the same information. Constable Smith asked if Mr. Gill had any names of people who loaded the trailer. Mr. Gill said he did not “because I just stay in the truck, so that’s all” and “you know, we just sit in the truck”.

   It is clear from the Diamond Wipes video footage that this was not the case. He and Mr. Sharma were present, in the warehouse, close to the back of their trailer, the entire time the trailer was loaded. They actually helped search for the skids to be loaded.

2. Mr. Gill said that after the tea was loaded onto the trailer at Stash Tea, the shipper put his seal on the trailer. He said, “[w]e just put the seal and we just start driving that’s it.” When Constable Smith asked who put the seal on, Mr. Gill said, “[t]he shipper.” Later in his statement, when he was asked again, he became insistent on the point and said, “[t]he tea company, they put the seals on there.” He said, “[n]o, not me, shipper put it on.”

   It is clear from the surveillance footage that that was not the case, and the truck drove away with no seal. In his evidence, Mr. Gill said he put the seal on the trailer at his stop in Hesperia.

3. In his video statement, Mr. Gill said that the shipper (Stash Tea) put the seal number on “the paperwork”. I take that to mean the ACI eManifest. In his evidence, Mr. Gill said that he put the seal number on the manifest.

4. In his statement, Mr. Gill said that their first stop was in Las Vegas, Nevada, at a Petro North truck stop. In his evidence, Mr. Gill said that their first stop was a significant stop in Hesperia, California, for at least an hour. There was no mention of the Hesperia stop in the interview with Constable Smith, nor was there any mention of the stops in Baker, California or Primm, Nevada.

5. In his statement, Mr. Gill said that Mr. Sharma did not have a phone – that he used Mr. Gill’s phone. In his evidence, he said that the flip phone found in the black bag belonged to Mr. Sharma.

[89] Mr. Gill left the stops at Hesperia, California (at least one hour), Baker, California (24 minutes) and Primm, Nevada (20 minutes) out of his log.

[90] When faced with the untrue statements he made to Constable Smith in the interview, Mr. Gill said he was “unable to make out what has happened with us” and “what happened to us was quite perplexing to me” and “I may have said that”. When Ms. Rooke suggested to Mr. Gill that he had been deceitful to Constable Smith he said, “I was not able to understand what I say and what I didn’t say.”

Theory of the Crown

[91] The theory of the Crown is that Mr. Gill and Mr. Sharma imported the cocaine for profit. They met someone at one of the undocumented stops: the stop in Hesperia, California; one of the three stops in Baker, California; or one of the two stops in Primm, Nevada. The Crown asserts that Mr. Gill and Mr. Sharma then drove the cocaine across the United States and brought it across the Ambassador Bridge into Canada. The Crown requests a conviction for both accused on both counts.

Theory of the Defence

Mr. Gill

[92] Mr. Miller relies on the Supreme Court of Canada decision in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000. He points out that this is a circumstantial case. In other words, the Crown relies primarily on circumstantial evidence to prove that the accused, Mr. Gill and Mr. Sharma, had knowledge that there was cocaine in their trailer. Mr. Miller, counsel for Mr. Gill, points to the long-established principle that, in such cases, “[i]f there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt”: see Villaroman, at para. 35.

[93] Mr. Miller asserts that there is a reasonable inference other than guilt in this case. He submits that a reasonable inference is that the cocaine was loaded onto the trailer at the Diamond Wipes facility in California by an employee of that facility. Mr. Miller points out that Mr. Reyes, the individual at Diamond Wipes who actually loaded the skids onto the trailer, did not testify without any explanation. He points out that the surveillance videos have gaps in them and submits that the cocaine could have been loaded on the trailer during one of the gaps.

[94] Mr. Miller points to the location of the cocaine in the load. If the cocaine had been placed in the trailer after it had been loaded, someone would have had to crawl over top of seven rows of boxes placed on skids. Mr. Miller asserts that the more sensible conclusion is that the cocaine was placed in the middle of the load at Diamond Wipes while the wipes were being loaded. He suggests that someone could have deleted that portion of the surveillance video that shows the two boxes of cocaine being loaded onto the trailer.

[95] Mr. Miller’s theory is that the cocaine was placed in the trailer by Mr. Reyes or other persons at Diamond Wipes. His theory is that the cocaine was meant to be sent to Hain Celestial where it would be collected by someone in that warehouse. Mr. Miller suggests that person to be Mr. Shua who was identified by Mr. Boehm as the person responsible for receiving loads.

[96] Mr. Miller asserts that his client and Mr. Sharma were blind couriers. His hypothesis is that Mr. Reyes put the cocaine on the truck at Diamond Wipes in California. When the truck went to Stash Tea, nobody saw the cocaine as it was behind a skid of boxes of Diamond Wipes. Someone at Diamond Wipes then deleted that portion of the video that showed the boxes of cocaine being loaded onto the truck. Mr. Miller opines that this would require only one or two people at Diamond Wipes to be a party to the scheme. Once it was loaded and secured behind a skid of Diamond Wipes boxes, it would be easy to get the cocaine to the Hain Celestial warehouse in Ontario.

[97] Mr. Miller urges me to consider the lack of evidence, and specifically the lack of any evidence of Mr. Reyes. He urges me to consider the lack of any explanation for the gaps in the video coverage at Diamond Wipes.

[98] Mr. Miller submits that, as there is a plausible scenario inconsistent with guilt, the Crown has not proven its case beyond a reasonable doubt and Mr. Gill must be acquitted.

Mr. Sharma

[99] On behalf of Mr. Sharma, Mr. Whitzman takes the position that there was no direct evidence of knowledge on the part of Mr. Sharma. He adopts the submission of Mr. Miller that the cocaine was likely put on the trailer at Diamond Wipes in California, and likely would have been offloaded at Hain Celestial in Ontario.

[100] Mr. Whitzman opines that if the drugs were loaded at one of the undocumented stops between Corona, California and Detroit, Michigan, that person would require a forklift and means to offload the pallets. If I do find that the two boxes of cocaine were put on the trailer in Hesperia, there is no evidence that Mr. Sharma was aware of it. The evidence was that Mr. Sharma was in the sleeper cabin when the truck and trailer were in Hesperia, and he remained there throughout the stop.

[101] Mr. Whitzman points to the Court of Appeal for Ontario decision in R. v. Lincoln, 2012 ONCA 542, at para. 3, where the Court of Appeal said that there is “[n]o rebuttable presumption of knowledge and control for purposes of determining possession, based solely on the fact that a person is the operator with control of the vehicle…”. Mr. Whitzman points out that Mr. Sharma did not own the truck. He did occupy the cab of the truck for the purpose of his role as a co-driver, but the cocaine was not found in the cab. The fact that Mr. Sharma was a co-driver does not prove that he was aware of the contraband.

[102] Mr. Whitzman points out that Mr. Sharma’s video statement to police was excluded. He points out that when Mr. Gill and Mr. Sharma arrived at the primary CBSA station in Windsor, it was Mr. Gill who responded to the questions. There was evidence that Mr. Sharma nodded in agreement; however, Mr. Whitzman asserts that that evidence is confusing and points out that I have already determined Mr. Sharma has some difficulty with the English language.

[103] Mr. Whitzman submits that the Crown has failed to prove knowledge and control on the part of Mr. Sharma beyond a reasonable doubt.

The Issue

[104] For the accused to be convicted of importing cocaine pursuant to s. 6 of the CDSA, the Crown must prove, beyond a reasonable doubt, these four essential elements: that the accused imported a substance; that the substance was cocaine; that the accused knew that the substance was cocaine; and that the importing was intentional.

[105] The first and second elements are satisfied. The accused drove a truck and trailer with a substance that was proven to be cocaine into Canada. The issues in this case are the last two elements which can be described as knowledge and control. Did the accused know that their trailer held contraband, and did they intentionally bring that contraband into Canada?

[106] For the accused to be convicted of possession of cocaine for the purpose of trafficking pursuant to s. 5(2) of the CDSA, the Crown must prove, beyond a reasonable doubt, these four essential elements: that the accused were in possession of a substance; that the substance was cocaine; that the accused knew the substance was cocaine; and that the accused had possession of the cocaine for the purpose of trafficking in it. Once again, the germane issues are knowledge and control.

Analysis

Legal Principles

[107] This is a circumstantial case. My decision must rest primarily on an analysis of the facts that have been proven and the inferences that can be drawn from them. Before conviction can result from circumstantial evidence, the guilt of the accused beyond a reasonable doubt must be the only reasonable inference to be drawn from the evidence. Before an inference can be drawn, there must be proven facts which logically give rise to the facts sought to be inferred: see Caswell v. Powell Dufferin Associated Collieries Ltd., [1940] A.C. 152.

[108] A reasonable doubt can arise from an absence of evidence. In R. v. Villaroman Cromwell J., speaking for the Court, said:

I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence. As stated by this Court in R. v. Lifchus, [1997] 3 S.C.R. 320, a reasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[109] In R. v. Sandhu, 2018 ABQB 931, Tilleman J. considered how the Villaroman analysis applies to a judge-alone trial, at para. 75:

Although no particular language is necessary to warn myself about too readily drawing inferences of guilt, informing myself that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits is a succinct and accurate way to caution myself against filling in the blanks and jumping to a conclusion. To justify a conviction, the circumstantial evidence, assessed in the light of human experience, should be that it excludes any other reasonable alternative. On the other hand, expressed differently, circumstantial evidence does not have to totally exclude every conceivable inference as the trier of fact should not act on alternative interpretations of the circumstances that are unreasonable and merely possible.

[110] When assessing the evidence, I am required to consider “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt. However, “‘[o]ther plausible theories’ … must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation”: see Villaroman, at para. 37. The Crown may need to negative reasonable possibilities, but does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: see R. v. Bagshaw, [1972] 2 S.C.R. 2, at p. 8.

[111] The standard of proof, then, requires me to be satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference to be drawn from the whole of the evidence. It is the evidence as a whole that must meet this standard of proof, not each individual piece of evidence “that is but a link in the chain of proof”: see R. v. Lights, 2020 ONCA 128, at para. 37.

[112] When I consider the whole of the evidence, I am entitled to consider post-offence conduct. In R. v. Figueroa, 2008 ONCA 106, 233 O.A.C. 176, the accused was charged in the death of a Mrs. Wong. The accused gave a false statement to police. Doherty J.A. said the following, at para. 33:

Post-offence conduct, including lies to the police, is a kind of circumstantial evidence. The jury is asked to infer the existence of a fact in issue, e.g. the identity of the perpetrator, from post-offence conduct committed by the accused, e.g. lies to the police. The inference is permissible only if, based on human experience and common sense, that inference is a reasonable one. As with any kind of circumstantial evidence, the inferences to be drawn from post-offence conduct will depend on the nature of that conduct, the fact that is sought to be inferred from that conduct, the position of the parties, and the totality of the evidence. Inference drawing is situation-specific and is not amenable to a set of preset rules that categorize certain kinds of post-offence conduct as always relevant to, or never relevant to, a particular fact in issue: R. v. White (1998), 125 C.C.C. (3d) 385 at paras. 19-22 (S.C.C.); R. v. Peavoy (1997), 117 C.C.C. (3d) 226 at paras. 24-31 (Ont. C.A.).

[113] In R. v. White, [1998] 2 S.C.R. 72, the Supreme Court said the following about post-offence conduct, at para. 21:

Evidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence. In some cases it may be highly incriminating, while in others it might play only a minor corroborative role. Like any piece of circumstantial evidence, an act of flight or concealment may be subject to competing interpretations and must be weighed by the jury, in light of all the evidence, to determine whether it is consistent with guilt and inconsistent with any other rational conclusion.

[114] In R. v. Feng, 2012 BCCA 153, the appellant appealed from his conviction for first-degree murder. The appellant admitted his participation in the murder but asserted that his participation amounted to manslaughter or second-degree murder. The Crown’s evidence consisted primarily of statements made by the appellant to police after the murder. The appeal was dismissed. At para. 25, the court said:

At the conclusion of the summary of the evidence of the appellant’s lies to police, the trial judge told the jury that if they found the statements were deliberately fabricated to avoid suspicion, “[t]his post-offence conduct is simply a piece of circumstantial evidence for you to weigh when determining whether the Crown has proved Mr. Feng’s guilt beyond a reasonable doubt”, to be assessed like all other circumstantial evidence.

[115] Before concluding that the trial judge did not misdirect the jury, the court put the question thusly, at para. 43:

Is the fact that the appellant deliberately lied to the police, and what he lied about, equally consistent with or equally explained by his having participated in a killing that he knew was planned although he was not in control, as with his having willingly participated in the planned killing?

[116] How does the Crown prove the element of knowledge? In R. v. Virk, 2005 CarswellOnt 10000 (Ont. S.C.), at para. 15, Ducharme J. said:

Knowledge may be proved either by direct knowledge or by proof of objective, relevant and admissible facts from which a rational inference of knowledge emerges irresistibly from all the surrounding circumstances. The Crown may prove Mr. Virk’s guilty knowledge either way, provided that it establishes his knowledge beyond a reasonable doubt.

[117] In R. v. Jones (2006), 214 O.A.C. 225, the accused was charged with importing cocaine. He arrived at Pearson International Airport on a flight from Jamaica. He was asked questions by an inspector and in response said that he worked at a computer company and lived with his wife and three children. In fact, he was unemployed, separated from his wife, and did not live with his family. When addressing the evidentiary value of the false statements to the customs authorities, Doherty J.A. said, at para. 8:

The nature of the lies told by the appellant and the circumstances in which those lies were told, allowed for the reasonable inference that the appellant lied to the Customs officials in an attempt to present himself as a responsible, law-abiding citizen to “divert suspicion from himself”, and avoid a search of his luggage. That inference was potentially probative on the question of whether the appellant knew that there was cocaine hidden in the luggage.

[118] In R. v. Arnaud, 2017 ONCA 440, the accused was convicted of importing cocaine into Canada. At the Pearson International Airport, Border Services Officers found 33.7 kilograms of cocaine secreted in the lining of several winter vests in two suitcases that belonged to the accused. The accused appealed the conviction. The defence theory was that the accused was an innocent blind courier and asserted that there were reasonable inferences in the case other than guilt. At para. 17, the court said:

The trial judge concluded, in effect, that there was no reasonable inference in this case, on the whole of the record, other than guilt. We see no error in that conclusion. At the end of the day, the defence theory that the appellant was an unwitting “blind mule” of the drugs rested on nothing more than bald assertions by the defence of the possible involvement of unknown baggage handlers or other airport personnel in the importation of the cocaine. That the trial judge rejected that theory does not mean that he failed to apply R. v. W.(D.), [1991] 1 S.C.R. 742 properly. It simply means that he saw no available inference in this case, other than guilt, that was “reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense”: Villaroman, at para. 36.

[119] Mr. Gill gave evidence in this case. He denied knowledge of the cocaine. Accordingly, I must apply the test in R. v. W.(D.), [1991] 1 S.C.R. 742. The test is as follows:

• First, if I believe the evidence of the accused, obviously I must acquit.
• Second, if I do not believe the testimony of the accused but am left in reasonable doubt by it, I must acquit.
• Third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[120] With these principles in mind, I embark on an analysis of the evidence in this case.

Mr. Gill

[121] Mr. Gill testified and denied any knowledge of the cocaine in the trailer. I must first consider his evidence. If I believe his evidence, or if it leaves me with a reasonable doubt about his guilt, I must find him not guilty. Even if Mr. Gill’s evidence does not leave me with a reasonable doubt about his guilt, I may convict him only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.

[122] To put it bluntly, I do not believe Mr. Gill’s evidence. He was not a credible witness. The discrepancies between Mr. Gill’s evidence and his video statement to Constable Smith are stark. The only conclusion that I can reach is that Mr. Gill was purposely deceptive in his statement.

[123] Mr. Gill purposely distanced himself from the loading of the trailer at Diamond Wipes. He said that he and Mr. Sharma were told to stay in the truck while the pallets were loaded onto the trailer. He said he followed that instruction. He said after the trailer was loaded, he was called inside to sign the bill of lading and then he left. All of this was not true. Mr. Gill and Mr. Sharma were in the warehouse, often standing close to the back of the trailer, the entire time the pallets were loaded.

[124] Mr. Gill purposely distanced himself from the seal on the trailer. He told BSO Naud at the primary station that he put the seal on. He then told BSO Tracey that the shipper had placed the seal on the trailer. He told Constable Smith several times that the shipper had put the seal on the trailer. That was proven to be untrue. In his evidence, Mr. Gill said that he put the seal on the trailer when he and Mr. Sharma stopped in Hesperia.

[125] Mr. Gill purposely misled Constable Smith when it came to the stops taken on the way back from California. Mr. Gill said that the first stop on the way home was in Las Vegas. The first stop was actually in Hesperia, California, shortly after Mr. Gill and Mr. Sharma left Stash Tea. The stop in Hesperia was a significant one. Mr. Gill estimated that he was there for an hour. He acknowledged that stops of that length must be noted in the logbook, but he did not record the Hesperia stop in the logbook.

[126] Mr. Gill purposely misled Constable Smith when it came to the seal number placed on the ACI eManifest. He said the shipper put the number on the paperwork. He purposely distanced himself from the seal number.

[127] Mr. Gill, in my view, answered questions put to him by CBSA officers and Constable Smith in a manner that would, in his view, put him in the best light. There was no effort to be truthful. Every effort was made, instead, to distance himself from the trailer and from the seal on the trailer doors. His answers were a blatant attempt to explain away potentially damaging pieces of evidence.

[128] At trial, when his misleading and untruthful answers given in his video statement were put to him, Mr. Gill evaded the questions. He said he did not remember. He said that, at the time, he was “unable to make out what was happening to us”. He said he was “not able to understand what I say and what I didn’t say”. I simply do not accept the suggestion that Mr. Gill was unable to understand Constable Smith’s questions. The questions were clear, as were Mr. Gill’s answers. Mr. Gill insisted that Stash Tea put the seal on the trailer and Mr. Gill insisted that he stayed in the truck at Diamond Wipes while the trailer was loaded.

[129] I reject Mr. Gill’s evidence that he did not know about the cocaine in the trailer. I am not left with a reasonable doubt by it. But that does not end the matter. I must still consider the whole of the evidence in determining whether the Crown has met its burden of proof beyond a reasonable doubt.

[130] I turn, then, to the evidence as a whole. In doing so, I consider the defence theory that the boxes of cocaine were placed in the trailer at Diamond Wipes without the knowledge of the accused and that the boxes would have been collected at Hain Celestial in Ontario.

[131] Mr. Gill arranged for the pick up of the Diamond Wipes load very shortly before his arrival there. He said he made the arrangements using his laptop in his truck while waiting for the load of caps to be offloaded at Sterigenics. If there was a drug dealer at Diamond Wipes waiting to secrete two boxes of cocaine on a truck, he had very little notice to do so.

[132] At Diamond Wipes, the loading of the skids was captured by surveillance footage from two different camera angles inside the warehouse. The two camera angles provided, together, a clear view of the warehouse at the loading docks. I have reviewed the footage numerous times and particularly the footage surrounding the times that the boxes at the fifth, sixth and seventh row from the front of the trailer were loaded. Mr. Gill and Mr. Sharma are, for the most part, standing at the entry to the trailer where the forklift is loading the skids of Diamond Wipes. They appear to be watching the loading. All of the Diamond Wipes boxes are wrapped in plastic in a professional manner. There is no sign of the types of boxes that contained the cocaine. The combined gaps in the footage of the two cameras surrounding the loading of the skids where the cocaine was secreted comprise three separate gaps: one gap 20 seconds long; one gap 26 seconds long; and one gap 22 seconds long.

[133] The warehouse loading dock is a large and relatively busy place. In addition to Mr. Gill and Mr. Sharma, there were three other workers in the vicinity, with one of those workers being the forklift driver loading the skids onto the accused’s trailer.

[134] In my view, the suggestion that the cocaine was loaded at the Diamond Wipes warehouse is simply implausible. I conclude that there is insufficient time in any of the three gaps identified for someone to take two hidden boxes and put them on the truck without being seen by the others in the warehouse. There is no indication, anywhere in the footage other than the gaps, that that occurred.

[135] Defence counsel suggests that, if the cocaine were to be placed in the trailer at one of the stops enroute to Ontario, the skids would have had to have been offloaded using a forklift truck. I reject that suggestion. Instead, someone could have crawled or walked the load in the same manner that BSO Tracey and BSO Cook did when they examined the trailer at the CBSA offsite location. BSO Tracey said that there was plenty of room for her to walk along the top of the Stash Tea boxes and the boxes were stable. After the Stash Tea boxes, there was a void that could easily be traversed followed by one skid of Diamond Wipes boxes. BSO Tracey was able to walk across the Diamond Wipes boxes while steadying herself against the wall. BSO Cook was able to walk across the skids of Stash Tea and moved to crawling on his knees at some point. He, too, was able to maneuver himself to the void where the cocaine was located.

[136] The more plausible explanation for the placement of the cocaine is that a person followed the same route as BSO Tracey and BSO Cook, while carrying or pushing the two boxes of cocaine, and placed them in the void where they were found. This could have been done at the stop in Hesperia, the stop in Baker, California, or the stop in Primm, Nevada.

[137] The Diamond Wipes boxes were destined to be delivered to Hain Celestial in Mississauga. Mr. Boehm described the process when goods are received at the warehouse. Most importantly, drivers do not need an appointment. They simply show up with their paperwork and their loads of goods. Hain Celestial has seven functioning loading docks to accommodate deliveries.

[138] The suggestion that the cocaine was to be delivered to a wrongdoer at Hain Celestial is implausible. Given that appointments were not required for the delivery of goods, any intended recipient of the cocaine would not know when Mr. Gill and Mr. Sharma would arrive.

[139] I consider the possibility of the cocaine being loaded at Stash Tea, although this suggestion was not made by defence counsel. At Stash Tea, Mr. Gill and Mr. Sharma remained outside while the tea was loaded. They were not allowed access to the warehouse. There is no video of the inside of the warehouse. The video available from Stash Tea shows the loading dock outside.

[140] Similar to the Diamond Wipes load, Mr. Gill arranged for the Stash Tea load from the cab of his truck while he was waiting for the caps to be offloaded at Sterigenics. If there was a drug dealer at Stash Tea with two boxes of cocaine waiting to secrete the boxes in a truck headed for Ontario, that person would have had little time to plan.

[141] The tea was destined to be delivered to Pure Source in Guelph, Ontario. If I follow the logic of defence counsel, if the cocaine were loaded at Stash Tea, the intention would have been to offload the cocaine at the location where the tea was to be delivered. Mr. Williams described a tight operation at the Pure Source warehouse. Employees have key fobs to enter the warehouse. They must keep their belongings in lockers that are not large enough to accommodate the size of the two boxes containing the cocaine. Receivers are supervised and there are cameras on every dock. Mr. Williams said it would be “pretty impossible” for a box to be removed without being seen.

[142] Moreover, no appointment was required to deliver the tea to Pure Source as there were less than 14 skids. The receiving department will not know the date and time of the shipment’s arrival. Any intended recipient of the cocaine would not know when Mr. Gill and Mr. Sharma were to arrive with it.

[143] Given all of the evidence, in my view, the defence suggestion that the cocaine was loaded at one of the two pick up locations in California, and was destined to be delivered to one of the two delivery locations in Ontario, is implausible. To load the cocaine onto the truck at Diamond Wipes would require the complicity of the three or four men working in the warehouse at the time. It would require the cocaine to be placed in the truck, in front of Mr. Gill and Mr. Sharma, within one of the three camera gaps noted above. To then have the cocaine delivered to the intended recipient at Hain Celestial, when an appointment for delivery is not required, is extremely unlikely. The same comments apply to the suggestion that the cocaine was loaded at the Stash Tea warehouse destined to be delivered to Pure Source.

[144] Defence counsel point out that Mr. Reyes, the individual who loaded the wipes at Diamond Wipes, did not give evidence. Mr. Miller asserts that an inference can be drawn from that, namely that Mr. Reyes was the drug dealer who loaded the cocaine. I disagree. There could be any number of reasons why Mr. Reyes did not give evidence and his absence does not affect the conclusions I reach in these reasons.

[145] When the accused first arrived at Stash Tea to collect the load they were sent away and told to come back later as the load was not ready. I have considered that, if there were a drug dealer at Stash Tea, that person would have had more time to plan. However, given the tight operation at Pure Source, and that an appointment to deliver the tea would not be required, this fact alone does not raise a reasonable doubt.

[146] In my view, the only reasonable inference on all of the evidence is that the cocaine was loaded at one of the three undocumented stops in California. To do so would have required Mr. Gill’s cooperation. He was driving the truck at the time. He is the one who made the undocumented stops. It is highly unlikely that the cocaine could have been placed on the trailer at one of the stops without Mr. Gill’s knowledge.

[147] Mr. Gill had control of the truck and trailer from the time the accused left Diamond Wipes and Stash Tea to the time that they crossed the border at the Ambassador Bridge. Mr. Gill controlled when the seal was put on the trailer doors.

[148] Mr. Gill falsified his logbook. He left out the stops in Hesperia, Primm, and Baker. He then noted an arrival in Las Vegas, Nevada, 2.5 hours earlier than the actual arrival. Mr. Gill was not able to adequately explain why his log was falsified in this manner. The false entries are consistent with an attempt to hide the three undocumented stops and, instead, claim an earlier arrival in Las Vegas.

[149] From all of this, a rational inference of knowledge on the part of Mr. Gill emerges irresistibly from all of the surrounding circumstances.

[150] After considering all of the circumstantial evidence, including the evidence that Mr. Gill lied to the border authorities and Constable Smith to distance himself from the seal and the load, the only reasonable inference is that Mr. Gill had knowledge of the cocaine in the trailer. The only reasonable inference, on the whole of the evidence, is one of guilt.

Mr. Sharma

[151] I turn then to Mr. Sharma. Mr. Sharma was a hired driver. He did not have an ownership interest in the truck. He was not the one to arrange the load or transportation – Mr. Gill was. Most importantly, Mr. Sharma was not the person driving when the truck stopped in Hesperia, California, nor was he the person driving at the time of the two undocumented stops in Baker, California and Primm, Nevada. When the accused arrived at the border, Mr. Sharma was not the one answering questions – Mr. Gill was.

[152] For Mr. Sharma to be convicted on either count, the Crown must prove, beyond a reasonable doubt, that Mr. Sharma had knowledge of the cocaine in the trailer and the control over it.

[153] Mr. Whitzman suggests that the Crown has not proven the elements of knowledge and control on the part of Mr. Sharma. I agree. On the element of knowledge, I have found that the only reasonable inference on all of the evidence is that the cocaine was loaded at one of the three undocumented stops in California and Nevada. Mr. Gill was driving at the time of these stops. Mr. Sharma, according to the evidence of Mr. Gill, was in the sleeper cab sleeping. Although I rejected Mr. Gill’s evidence, there is no evidence that Mr. Sharma was not sleeping at the time of the stops. There is no direct evidence that Mr. Sharma had knowledge of the cocaine, and there is insufficient circumstantial evidence to infer that he had knowledge.

[154] To put the issue another way, it cannot be said that the only rational inference that can be drawn from all of the circumstantial evidence is that Mr. Sharma had knowledge of the cocaine in the trailer. Another rational inference is that Mr. Sharma was asleep, and therefore unaware, at the time the cocaine was loaded.

[155] On the issue of control, I reach a similar conclusion. Although Mr. Sharma was a co-driver of the truck, he was not the one in charge. He was not the one who arranged for the loads to be transported. He was not the one who dealt with CBSA officers on the way back into Canada. He was a driver hired by Mr. Gill to assist with the driving.

[156] Ms. Rooke submits that, if I am satisfied the cocaine could not have been removed at Hain Celestial, then a removal of the cocaine would have required both Mr. Sharma and Mr. Gill to be in on the plot. I do not agree. If Mr. Gill directed a stop on the way to Hain Celestial so that the cocaine could be removed, he would not require Mr. Sharma’s cooperation. Mr. Gill was in charge.

[157] Ms. Rooke submits that the falsified driver’s logbooks apply to both Mr. Gill and Mr. Sharma. I do not agree. According to the evidence of Mr. Gill, Mr. Sharma was off duty and in the sleeper cabin at the time of the undocumented stops. The evidence of Mr. Gill is that, when a driver is off duty, he is not responsible for completing his logbook. The other driver, who is on duty, must complete his own logbook. This makes some sense. How can a driver, who is off duty and sleeping in the sleeper cabin, be required to keep accurate logs? This is confirmed by Mr. Jacobson, who did not note any log entries by Mr. Sharma at the time of the undocumented stops.

[158] Accordingly, Mr. Sharma did not falsify log entries because he did not make any log entries, and was not required to make any log entries, during the undocumented stops.

[159] The “existence of any rational, non-guilty inference is sufficient to raise a reasonable doubt”: see R. v. Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289. In my view, there exists a rational inference that Mr. Sharma was not aware of, and/or did not have control over, the cocaine in the trailer.

Disposition

[160] For these reasons, I find Preet Kiran Singh Gill guilty on both counts. I find Suresh Sharma not guilty on both counts.

“original signed and released by Hebner J.”

Pamela L. Hebner Justice

Released Orally: April 1, 2022