COURT FILE NO.: CR 376/20

DATE: 2022/07/15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Dmitri Davidov

Stephane Marinier and Sam Weinstock, for the Crown

Peter Brauti and Maureen Salama, for the Defendant

HEARD: January 18-21, 24-28, 31 February 1-4, April 7-8, 2022

REASONS FOR JUDGMENT

M. J. DONOHUE, j.

INTRODUCTION

[1] Mr. Davidov is charged with importing cocaine and conspiracy to import cocaine.

[2] The parties agree that there had to have been a conspiracy to import cocaine into Canada as it could not have been committed by just one person. However, Mr. Davidov denies having knowledge of the conspiracy and of being a member of that conspiracy. The issue in this trial is whether Mr. Davidov had knowledge of the conspiracy and was acting in furtherance of that unlawful objective.

[3] The parties agree that if the Crown has proven beyond a reasonable doubt that Mr. Davidov is guilty of conspiracy to import cocaine, it follows that he is also guilty of importing cocaine.

[4] The essential elements in the charge of conspiracy to import cocaine are set out in R. v. Ezechukwu, 2017 ONSC 5441 (aff’d 2020 ONCA 8) at para. 104, citing R. v. Buttazzoni, 2015 ONSC 6411 at para. 41:

1. that there was an agreement between two or more persons;

2. that the agreement was to commit an indictable offence, in this case to import cocaine into Canada; and

3. that the accused was a party to that agreement.

[5] The defence concedes the first two elements.

BACKGROUND

Background of the Defendant

[6] The defendant, Dmitri Davidov, was the head dispatcher for Boreas Logistics, a trucking carrier company. A customer contracted with Mr. Davidov to pick up a rush shipment of plastic resin in Texas and deliver it to Fergus, Ontario in three days. However, the shipment was diverted three times, including one occasion when it was dropped in a Houston truck yard to avoid a Sheriff’s search. Mr. Davidov directed the driver to bring the load into Canada more than 10 days after it had been picked up. At the border the shipment was searched. Within the bins of plastic resin was hidden 50 bricks of cocaine with a street value of 4.5 million dollars.

[7] Mr. Davidov had been a dispatcher at Boreas for more than five years when the events of this trial occurred in November 2017.

The Boreas Office

[8] Boreas Logistics had its office in Concord, Ontario on Highway 7, just north of Toronto.

[9] In the office area, to the right of the front door, were three computer desk areas. Mr. Davidov, another dispatcher, Brian Brum, and the owner, Mr. Churilov, occupied those desks. Further to the right were two accounting offices.

[10] To the left of the front door was a computer desk used by either “Ashley” or “Vadim”. A bedroom and bathroom down the corridor was used by drivers and/or workers, as was a kitchen at the back.

[11] Through the kitchen was another bedroom where Vadim (surname unknown) lived. Through his room and behind the office was a loading dock/warehouse area with two bays and a forklift.

[12] Boreas Logistics also had a truck yard for parking trailers and trucks located about a kilometre away.

Business Set-Up

[13] Boreas employed about 25 drivers with some being city drivers and others being long haul drivers who did trips to and from the United States.

[14] The dispatchers contacted brokers to bid on loads to carry by checking an electronic board called “Loadlink” where loads were posted. If successful in their bid for a load into the United States they would arrange a driver and truck to do the delivery. They would then promptly seek a load for that driver to pick up to return to Canada, rather than have the driver wait in his truck a day or two, or return home empty-handed.

[15] Penny Wright, representative at Traffic Tech, was the broker who posted the load of plastic resin to be picked up in Texas and delivered to Fergus, Ontario. She awarded the bid to Boreas Logistics and testified that she negotiated the deal with Mr. Davidov.

Mr. Davidov’s Evidence Regarding Lack of Knowledge

[16] The defendant, Mr. Davidov, testified.

[17] He knew that the load of plastic resin had been picked up by his driver in LaPorte, Texas but denied knowing that the trailer was then diverted to a yard in Houston on that same day, Tuesday, November 7.

[18] His evidence was that he was alerted that the trailer did not reach Canada when he heard from Penny Wright on Monday, November 13. He said he was told by his co-worker, Vadim, that a “cover story” had been arranged with a truck repair shop to say there were mechanical problems. This would explain the delay to the broker.

[19] On November 16, he arranged for a Boreas driver, Mr. Kutaladze, who had completed a delivery in San Antonio, Texas, to pick up the trailer that had been left in Houston, and head north with it.

[20] Mr. Davidov then received new instructions from the broker to deliver the trailer to a warehouse plant in Edison, New Jersey. When he called the plant for its hours he found they closed by 4:00 p.m. and so on Friday, November 17 he arranged that the trailer could be delivered to a New Jersey truck yard for the weekend. This would allow his driver, Mr. Kutaladze, to return home to Canada. He said he planned to have another driver pick up the trailer there and take it to the New Jersey plant on the following Monday to complete the delivery.

[21] Late on Friday, November 17 however he was advised by the co-worker, Vadim, that the customer wanted the trailer brought to Canada instead. He said Vadim provided him with a manifest and customs documents which Mr. Davidov faxed to Mr. Kutaladze on Saturday, November 18.

[22] Mr. Davidov testified that he did not know that the faxed manifest and customs documents were falsified.

[23] He testified that he did not know the trailer contained cocaine and that he was shocked and surprised to learn of Mr. Kutaladze’s arrest.

Evidence Before the Court

[24] The court was provided with an extensive agreed statement of fact and exhibit book, filed.

[25] The Crown called RCMP Officer Stewart regarding the execution of the search warrant of the Boreas office. Penny Wright and Roderik Diepen, representatives of the broker, Traffic Tech, testified. Alexandre Nijberg, owner of the factoring company which provided Boreas Logistics with cash for its accounts receivable, testified of his involvement. Thomas Pasquale, formerly of Willbri Truck Repair, testified to the “cover story” he supported regarding the broken trailer. Omari Kutaladze, the Boreas driver who crossed the border with the cocaine in the trailer, also testified.

[26] The defence called Gagik Soghomonyan, the Boreas driver who initially picked up the trailer of plastic resin in LaPorte, Texas and who then left the trailer in Houston. Mr. Davidov testified himself.

OVERVIEW

[27] The narrative begins on Sunday, November 5, 2017. The facts are taken from the Agreed Statement of Fact or defence witnesses and are not disputed. Three trips or loads were involved.

The Nexan Load/Trip

Sunday, November 5

[28] The Boreas driver, Gagik Soghomonyan, along with another driver, took a load on November 5 from Concord, Ontario to San Antonio, Texas. They arrived just two days later (some 1,700 miles) on November 7 because with two drivers they were able to keep the truck moving for 24 hours. Drivers in the USA are not permitted to drive more than 11 hours at a stretch, which roughly equates to 1,100 kilometres a day.

Tuesday, November 7

[29] On Tuesday, November 7 Boreas negotiated a contract with broker Traffic Tech to pick up the load of plastic resin in LaPorte Texas (near San Antonio) and deliver them to the Nexan plant in Fergus, Ontario by Friday, November 10. The load was sealed with the number 916569. This number was noted on the LaPorte warehouse’s bill of lading. Mr. Soghomonyan and the other driver were dispatched to pick up that load (“the Nexan load”). This load of plastic resin had an approximate value of $80,000.

[30] At 4:10 p.m. Penny Wright of Traffic Tech emailed Mr. Davidov asking if the driver was on site for the pickup. He emailed in reply at 4:12 p.m. confirming the driver was there.

[31] Twenty to thirty minutes after picking up that Nexan load, Mr. Soghomonyan received a call from dispatch to drop that trailer at a truck yard in Houston and pick up an empty trailer there.

[32] At some point, Mr. Soghomonyan was told to drive to Dallas to pick up a different load, also bound for Ontario.

Wednesday, November 8

[33] On Wednesday, November 8 Mr. Soghomonyan and the other driver took the empty trailer to pick up the load in Dallas.

[34] The Walker County Sheriff’s Office received a tip that they should pull over that tractor-trailer as it may contain drugs.

[35] Patrol Sergeant Beaman observed the vehicle and pulled it over on a traffic stop. The sergeant asked Mr. Soghomonyan to follow him to the Sheriff’s Department where a search was conducted in the sallyport. The officer’s dog, “Akie”, indicated a positive “alert” for the odour of narcotics in the empty trailer. Mr. Soghomonyan was released with a warning related only to the traffic offence.

[36] It is acknowledged by the defendant that the reason Mr. Soghomonyan had been instructed by someone at the Boreas office to drop the Nexan trailer in the Houston yard and to pick up the empty one was to avoid the discovery of the cocaine within that Nexan load.

Friday, November 10

[37] Mr. Soghomonyan and the other driver continued on to pick up the load in Dallas and proceeded to the Boreas office in Concord. En route they received approval from dispatch for a diesel gas purchase on Friday, November 10. The Boreas office sent them the necessary paperwork to cross the border.

[38] They reached Canada and crossed at Queenston-Lewiston bridge at 8:21 p.m., with the Dallas load on Friday, November 10. They dropped that load at Concord that night. Mr. Soghomonyan’s trip report was left at the office, although his log sheets have gone missing.

[39] The Nexan load, destined for Fergus, Ontario was never delivered. Rather, it was left in the yard in Houston, Texas. The evidence was that if the two drivers had proceeded with the Nexan load from LaPorte then the load would have been delivered on time to Fergus, Ontario for Friday, November 10.

Plantgistix Load/Trip

Monday, November 6-11

[40] On Monday, November 6, Boreas driver, Omari Kutaladze, by himself, left with a load from Concord. He arrived in San Antonio three days later on Thursday, November 9. He was dispatched to proceed to Houston to pick up a load of Dupont goods from “Plantgistix”. He returned to the Boreas site in Concord, Ontario, Canada on Saturday, November 11 with that load, using customs documents provided to him by Boreas.

[41] Those customs documents were later re-used as the falsified documents provided to Mr. Kutaladze when he tried to cross the border on Sunday, November 19 with the trailer containing cocaine.

[42] Mr. Kutaladze then had two days off work on November 12 and 13 (Sunday and Monday).

New Jersey Load/Trip

Tuesday, November 14

[43] Following his two days off, Mr. Kutaladze was dispatched on Tuesday, November 14 to deliver a load to San Antonio, Texas, arriving Thursday, November 16.

[44] En route, he phoned Mr. Davidov at dispatch and received approval for funds for a diesel fuel purchase. Once he dropped off the load in San Antonio he phoned Mr. Davidov to let him know, as was the usual practice.

Thursday, November 16

[45] Mr. Davidov called Mr. Kutaladze on that Thursday and told him to drop his empty trailer and pick up the Nexan trailer which had been previously left in Houston by Mr. Sogomongyan on Tuesday, November 7 (nine days before).

[46] Mr. Kutaladze located the documents for the Nexan trailer in the net document window. The bill of lading however now showed a seal number of 868954 (different from the original from the Laporte warehouse).

Friday, November 17

[47] Mr. Kutaladze headed north toward Canada with the load. He testified that he then received a call from Mr. Davidov on Friday, November 17 to deliver the load to an address in New Jersey, USA. Mr. Davidov messaged him the address of Palumbo Trucking in Bloomfield, New Jersey.

[48] En route, Mr. Davidov sent approval for gas purchases by messaging, as needed.

[49] Late Friday night on November 17 Mr. Davidov phoned Mr. Kutaladze and told him to bring the load home (to Canada) instead of to New Jersey.

Saturday, November 18

[50] On Saturday, November 18 Mr. Kutaladze phoned Mr. Davidov and gave him a fax location to send documents. He received by fax the falsified customs documentation for the border from Mr. Davidov. The invoice he received matched the delivery number of the Dupont goods that Mr. Kutaladze had previously picked up from Plantgistix in Houston on November 9, except for the last digit. This invoice was not an invoice for the Nexan load.

Sunday November 19

[51] At 8:01 a.m. Sunday morning on November 19, Mr. Kutaladze crossed the border at Queenston-Lewiston bridge and was directed to secondary inspection of the trailer. A search of the trailer revealed the load of cocaine within some of the bins of plastic resin.

COVER STORY

Thursday, November 9/10

[52] The Boreas owner, Mr. Churilov, phoned Willbri Truck Repair either Thursday, November 9 or Friday, November 10 requesting that the shop “cover” for them if someone called about a late shipment. Mr. Churilov, accordingly, was aware that the Nexan shipment had been diverted and was not going to arrive on time in Fergus, Ontario.

[53] Willbri was asked to say (lie) that the trailer had an electrical issue or a brake issue and was in for repairs. This was to cover for the delayed Nexan load which had been left in Houston on November 7.

[54] Willbri Truck Repair was located in Avoca, New York State.

[55] This was acknowledged by all parties that common practice in the trucking business is to “cover” for drivers running late in the way Willbri agreed to help out.

Monday November 13

[56] Mr. Churilov called Willbri again on Monday, November 13 requesting them to cover for the delayed truck if the broker, Traffic Tech, called.

[57] Thomas Pasquale, general manager at Willbri, received several calls from Traffic Tech that week and he lied to them saying the trailer was being repaired. He also created a false work order for repairs on Thursday, November 17 and faxed it to Traffic Tech.

[58] Mr. Davidov also maintained this cover story to Penny Wright at Traffic Tech to explain the undelivered Nexan load. He told this cover story to her on the morning of Monday, November 13. He emailed her later that day to say, “still not fixed”.

Tuesday, November 14

[59] On Tuesday, November 14 Mr. Davidov would not tell Ms. Wright the location of the trailer other than that it was somewhere in New York. Ms. Wright asked for the bill of lading so she could obtain customs pre-clearing from the customs broker, Livingston International. Mr. Davidov told her the driver was “stupid” and had locked the bill of lading in the trailer. (This is the bill of lading that is normally kept in the net document window of the trailer.) Ms. Wright therefore had to prepare her own bill of lading form which she sent to Mr. Davidov. He provided the needed customs “PARS” number for it.

[60] Mr. Davidov left various persons from Traffic Tech on hold when they called that day, as evidenced in their emails.

Wednesday, November 15

[61] On Wednesday, November 15 a lengthy apologetic email was sent to Traffic Tech from dispatch@boreaslogistics.com explaining that the trailer was broken and it could not be moved nor the freight offloaded and suggested that they contact Willbri Truck Repair.

Thursday, November 16

[62] Early on Thursday, November 16 Traffic Tech was emailing Mr. Davidov asking why the customs broker, Livingston International, had not received the paperwork for the load to cross the border.

[63] A second email at 9:14 a.m. requested the original bill of lading for the customs broker, Livingston. However, at 10:02 a.m. Traffic Tech confirmed that Livingston had accepted the bill of lading prepared by Penny Wright. Repeated requests were made by email to Mr. Davidov asking “when” the trailer was being picked up at Willbri. (Note that the trailer was still in Houston, Texas at this time and not in New York State.)

[64] Traffic Tech contacted Alexandre Nijberg to assist them with this missing load. Mr. Nijberg operated a factoring company, providing cash to Boreas for their operations by buying the company’s account receivables.

[65] An email at 10:42 a.m. to Traffic Tech from Mr. Nijberg confirmed that Mr. Davidov had said to him that “the driver was on site”, “should be rolling shortly”, “should be crossing the border in 3.5-4 hours.” (At this time Mr. Kutaladze was still en route to his delivery in San Antonio.)

[66] At 10:53 a.m. on that Thursday morning however Traffic Tech emailed Mr. Davidov with new routing instructions:

“Receiver in Canada will not take this anymore.”

“It will have to be delivered in NJ [New Jersey] by sounds of it.”

[67] At 11:48 a.m. Traffic Tech emailed Mr. Davidov,

“Please be sure not to move towards border until we provide further instructions.”

[68] At 2:48 p.m. on Thursday, November 16 Traffic Tech sent a revised carrier confirmation to Mr. Davidov with the address for delivery of the Nexan trailer to Interpak in Edison, New Jersey, for Friday, November 17.

[69] Mr. Davidov contacted Mr. Kutaladze to pick up the trailer in Houston, Texas.

[70] Mr. Davidov readily admitted to the lies told to Traffic Tech and to Mr. Nijberg to “buy time” and explain the delay in delivery.

[71] The Crown witnesses, Mr. Diepan of Traffic Tech and Mr. Nijberg, acknowledged that delays happen with deliveries. Such “cover stories” were common enough to buy a day or two when drivers were delayed and the carrier wanted to appease the client and avoid being charged a penalty fee.

[72] Mr. Nijberg testified that it was common for dispatchers to not provide accurate information and “feed people lines” to cover for delays and tell them “what they want to hear”.

[73] Delays for nine days or more were however not usual in the industry.

UPSET CLIENTS

[74] Penny Wright from Traffic Tech testified that she negotiated the Nexan load with Mr. Davidov and that she told him the load was urgent.

[75] Mr. Davidov testified that he did not recall speaking with her and that if a load was important “it should be written”.

[76] The delivery to Fergus on the carrier confirmation form sent by Ms. Wright stated not to deliver before November 10, 2017. The delivery date was noted as November 10, 2017. Receiving hours were 7:00 a.m. to 7:00 p.m. FCFS (first come first served). [Emphasis added]

[77] The confirmation form did however state in two places to call Ms. Wright immediately (at a 1-800 number or her after hours cell) if there were any delays.

[78] The original Load Tender had also noted “DELIVER ON REQUESTED DELIVERY DATE”. [Upper case in original]

[79] Ms. Wright did email Mr. Davidov on November 7 to check that the truck was on site for the pickup in LaPorte, Texas. I note that Mr. Davidov sent two drivers to do the pickup which would have allowed the delivery to have been done by the requested date on Friday, November 10. For these reason I am persuaded that Ms. Wright did communicate that the load was urgent.

[80] She phoned Mr. Davidov about 2:30 p.m. on Friday, November 10 and he told her that it was on schedule and that the driver (Mr. Soghomonyan) was just a few hours away.

[81] Ms. Wright, and others, sent multiple emails to Mr. Davidov and to other email addresses at Boreas in the following week expressing urgency. Her email of Tuesday, November 14 stated:

Answer the phone, I have been on hold for 20 minutes!!!!!!!!

I need to know if this got delivered last night!!!!!!

DOW is fuming, customer has shut down production last night and this causing 10s of thousands of dollars in lost revenue because of this.

If we don’t want to get fined here, I need to get answers….

My patients [sic] is running thin here. You are now 5 days late….

[82] Mr. Davidov testified that he understood that it was important to resolve the delivery problem as quickly as possible.

[83] Once it was rerouted, Traffic Tech continued to follow-up on Friday, November 17 and kept checking with Mr. Davidov as to when the trailer of plastic resin was going to get to the warehouse in Edison, New Jersey. Ms. Wright noted that Mr. Davidov told her there was a delay because the driver fell asleep.

[84] Ultimately, the Nexan trailer of plastic resin did not reach New Jersey but arrived instead at the Canadian border and was seized.

[85] Mr. Pasquale of Willbri testified that the following week Ms. Wright called him and expressed with a shaky voice that $80,000 of chemicals had gone missing. He later decided to confess to the lies he had told to Traffic Tech when interviewed by police.

WHO DIVERTED THE NEXAN LOAD ON NOVEMBER 7

[86] As noted above, it was recognized by all parties that the diversion of the Nexan load had to have been to avoid the Sheriff’s search for the drugs.

[87] Mr. Soghomonyan testified at trial in January 2022 that the call from dispatch telling him to drop the Nexan trailer in Houston was the man, Vadim. He testified that it was not Dmitri Davidov, whose voice he knows. He stated that the man had a Russian accent.

[88] Five months after these events, Mr. Soghomonyan was questioned by police on April 12, 2018. At that time he said that “dispatch” told him to take the Nexan load and drop it in Houston but he did not remember who it was. He agreed that Dmitri (the defendant) was the main dispatcher and that normally he spoke with Dmitri. He said he did not remember who at the office he spoke to. He then agreed to the question, “So Dmitri told you to take it to this yard?” Later, however, he clarified that he did not remember which dispatcher called him. In the interview he did not mention or name any dispatcher.

[89] The defence submitted that the problem for Mr. Soghomonyan in the police interview was that he was not provided with a proper Armenian interpreter.

[90] His English was broken however I am satisfied that it was sufficient for him to understand the question “WHO from dispatch called you?” and his answer of “I do not remember” was clearly expressed and repeated.

[91] At trial he did not explain why he did not mention Vadim’s name to police. At the end of his testimony in re-examination he reiterated “I still don’t remember who actually told me.”

[92] Mr. Soghomonyan said he had never spoken with Vadim in person. He said Vadim was the least familiar to him of the three Russian speakers at the office, being Mr. Davidov, Mr. Churilov and Vadim.

[93] As well, Mr. Soghomonyan said he had no memory of any other details of the trip, including the name of the other driver he was with for that week. He was unable to state that it was NOT Dmitri Davidoff when he spoke to police just five months after the events. It is not reasonable that his memory would be better some four years later without some explanation.

[94] At best, the court is left with the evidence that one of the Russian speakers from Boreas phoned Mr. Soghomonyan to divert the Nexan load to the Houston lot.

CONTINUED DELAY

[95] On Mr. Davidov’s evidence he knew on Monday morning, November 13, that the Nexan trailer was sitting in the Houston yard.

[96] While providing the cover story with Willbri to Traffic Tech of a repair issue he took no action to have the load picked up and on the road that day. He did not send a driver for the load until Thursday afternoon, November 16 when he instructed Mr. Kutaladze to pick it up.

[97] This inaction is in the face of Traffic Tech’s emails about the Fergus factory being shut down and losing revenue.

[98] Traffic Tech was asking on Tuesday, November 14 for the PARS number to get the customs pre-clearance done. But this should have been taken care of the prior week for the load to have crossed on Friday, November 10.

REROUTING TO NEW JERSEY

[99] On Thursday, November 16, Traffic Tech, at 10:53 a.m., told Mr. Davidov in an email that the receiver, Nexan, would “no longer accept the load” and it will be rerouted to a New Jersey plant (DOW Chemical).

[100] At 11:48 a.m. Traffic Tech wrote Mr. Davidov, “Please be sure not to move towards border until we provide further instructions.”

[101] At 3:10 p.m. on November 16 Penny Wright at Traffic Tech sent the revised carrier confirmation form to deliver the Nexan trailer to Interpak in Edison, New Jersey on Friday, November 17.

[102] Despite this information being given on November 16, it was Mr. Kutaladze’s evidence that he was told by Mr. Davidov to bring the load “home” to Concord, Ontario, Canada.

[103] Mr. Davidov testified that he could not remember if he advised Mr. Kutaladze that it was to be routed through New Jersey. The defendant said “I could have told him to pick up the load in Houston and go north, and then it could go to New Jersey.”

[104] I prefer the evidence of Mr. Kutaladze that he was told he was to bring it to Canada. The manifest he pulled from the trailer and sent with a PARS number indicated with his handwriting his expectation to cross the border at Niagara Falls on November 17. Mr. Kutaladze recalls that it was the next day on Friday, November 17 that he was told by Mr. Davidov to drive the load to New Jersey instead. He said that Mr. Davidov explained to him, “the people don’t want to see it at home”. Mr. Kutaladze agreed that he was not happy about the change of route because he wanted to get home to Toronto.

[105] Mr. Davidov, on receiving the revised carrier confirmation form from Ms. Wright, wrote down the phone number for Interpak in Edison, New Jersey. He testified that he contacted them to determine their hours to see when they closed on Fridays. He determined they closed between 3:00 and 4:00 p.m. and that Mr. Kutaladze would not reach them in time. He therefore directed Mr. Kutaladze to the nearby Palumbo Trucking yard. He told Mr. Kutaladze to leave the trailer there and then “bobcat” the truck home to Canada without a trailer. Mr. Davidov explained that he planned to send another driver to go pick up the trailer from Palumbo and take it first thing on Monday, November 20 to Interpak in Edison, New Jersey.

[106] Traffic Tech, who thought the Nexan trailer had been at Willbri in New York State expected it to arrive at Interpak, New Jersey on Friday, November 17 ( a five-hour trip).

[107] Penny Wright wrote a Traffic Tech email on November 17 at 9:47 a.m.:

“I just spoke to Dmitri [Davidov] 10 minutes ago, his ETA for delivery is between 12:00 – 14:00 today. I asked him why the driver wasn’t there this morning as it’s only a 5 hrs drive. He said driver fell asleep….”

[108] Mr. Davidov testified that that was a false statement he made to Ms. Wright and he was just “buying time” to get Mr. Kutaladze to New Jersey.

[109] As noted above, such lies to clients were common in the industry.

[110] Mr. Davidov testified that he also lied to Alexandre Nijberg on Friday afternoon of November 17. Penny Wright’s email stated, “Alex [Nijberg] is checking with the owner [Churilov] now, but says Dmitri [Davidov] is adamant the driver is there.” Mr. Davidov agreed that he was telling Mr. Nijberg that the trailer had reached Interpak but he knew it had not. Mr. Davidov testified that he figured that if Traffic Tech tried to phone Interpak at that point it would be closed. He said that as he planned to get the trailer to Interpak on Monday morning he would be able to say it had been delivered on the Friday.

REROUTING TO CANADA

[111] Late Friday, November 17 Mr. Kutaladze was told by Mr. Davidov not to go to New Jersey and instead bring the load home, “to the yard”. On the phone the defendant said he would send a new manifest and customs documents for Mr. Kutaladze to cross the border.

[112] Mr. Davidov testified that around 9:30 or 10:00 p.m. his co-worker, Vadim, said there was a change regarding that Nexan load and that it was okay to bring the load home.

[113] When cross-examined as to why he did not confirm with Traffic Tech these new instructions, Mr. Davidov said that he understood Ms. Wright was not in the office anymore and did not have access to the system to send another revised load confirmation with the Canadian address.

[114] On Saturday, November 18 at 2:12 p.m. Mr. Davidov faxed Mr. Kutaladze the falsified customs documents (from the previous Plantgistix trip).

[115] Mr. Davidov testified that these documents were prepared by Vadim and given to him. He acknowledged that he had written on them “crossing Queenston Ontario November 17 2017 at 22:00”. He said he wrote that to get Livingston, the customs broker, to act more quickly and get the clearance done, even though Mr. Kutaladze would not be crossing on Friday, November 17. Mr. Kutaladze actually crossed on Sunday, November 19 at which time the cocaine was discovered

ROLE OF VADIM

[116] At trial Mr. Davidov testified that his colleague Vadim prepared and sent the customs documents to the customs broker Livingston to get pre-clearance for loads. He described the desks in the Boreas offices where Vadim worked and handled this paperwork. “Everything related to customs clearing and border cross is Vadim” he said. He advised the court that Vadim’s email was customs@boreaslogistics.com

[117] Vadim also lived there at the Boreas offices. He occupied the back bedroom between the kitchen and the warehouse. Vadim had worked with him for four years. Mr. Davidov said he did not know Vadim’s last name. He did however sell him his wife’s father’s car.

[118] Mr. Davidov testified that on Monday, November 13 when Ms. Wright asked what happened to the Nexan load, it was Vadim who told him, “Don’t worry, the New York repair shop will cover for us.”

POSITION OF THE PARTIES

The Crown

[119] The Crown argues that the evidence supports the Crown’s theory that it was in fact Mr. Davidov who was the logistical directing mind of this conspiracy to import cocaine and had to have been a trusted insider for the importation to occur.

[120] It was the Crown’s position that the court should reject Mr. Davidov’s testimony as not credible, and find that he knew and was complicit in the conspiracy to import cocaine.

The Defence

[121] As noted above, the defence conceded that there had to have been a conspiracy to import this cocaine but that Mr. Davidov had no knowledge of it.

[122] They led evidence that it was Vadim who diverted the trailer on November 7 to the Houston truck lot; that Vadim advised the defendant of the “cover story” of truck repairs; that Vadim told the defendant that the broker instructed the change to have the load cross the border instead of delivery to New Jersey, and that it was Vadim who created and provided the false border documents to Mr. Davidov to send to the driver.

[123] The issue is therefore whether Mr. Davidov had knowledge of the conspiracy and was acting in furtherance of that unlawful objective.

LAW

General Principles

[124] This case involves Mr. Davidov’s credibility. The guidelines developed in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, as modified are the appropriate framework. For assessment of the Crown’s discharge of its burden of proof I proceed as follows.

[125] If I believe the evidence of the accused, I must acquit. If I do not believe the testimony of the accused but am left in reasonable doubt by it, I must acquit. Even if 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, and the evidence is not consistent with any other rational conclusion.

[126] This analysis is not a formula. Rather, it is a framework for conducting credibility assessments, having regard to the presumption of innocence and the burden upon the Crown to prove a criminal allegation beyond a reasonable doubt. If the trier of fact does not know whether or not to believe the accused but is nonetheless in a state of reasonable doubt based on the evidence heard, then the trier of fact must acquit the accused.

[127] The Crown in this case seeks to fix Mr. Davidov with knowledge and participation in the criminal act based on circumstantial evidence.

[128] The approach to circumstantial evidence of knowledge is clearly explained by Hill J. in R. v. Ukwuaba, 2015 ONSC 2953, at paras. 98 and 99:

With the prosecution’s reliance on circumstantial evidence in the present case, some review of the principles governing consideration of that form of evidence is warranted. In order to find guilt in a circumstantial evidence case, the trier of fact must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty: R. v. Griffin and Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.), at paras. 33-4. Inference must be carefully distinguished from conjecture or speculation. At all times, in assessing circumstantial evidence, a trier must be alert to explanation or contradiction or inference pointing toward innocence. The trier of fact must assess the reliability and credibility of any underlying direct evidence as well as whether that evidence reasonably supports the circumstantial inference to be drawn while always having regard to the scope of inferential bridges or gaps the trier is invited to make.

Circumstantial evidence is not to be evaluated piece by piece but rather cumulatively. With circumstantial evidence based on reasoning or inference-drawing through probability (R. v. Arp (1998), 1998 769 (SCC), 129 C.C.C. (3d) 321 (S.C.C.), at para. 64), a trier of fact’s application of logic, common sense and experience to the evidence engages consideration of both inherent probabilities and inherent improbabilities and, not infrequently, eliminating the unlikelihood of coincidence: C.(R.) v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at paras. 33-40, 47-8; R. v. Yousif, 2011 ABCA 12, at para. 5; In re B (Children), [2009] 1 A.C. 11 (H.L.), at paras. 5, 15, 70. Financial pressures, not economic status, may amount to a motive to become involved in a profit-motivated crime: R v. Mensah (2003), 2003 57419 (ON CA), 9 C.R. (6^th) 339 (Ont. C.A.), at paras. 7-13 (leave to appeal refused [2003] S.C.C.A. No. 207); R. v. Phillips, 2008 ONCA 726, at paras. 50-51.

[129] Circumstantial evidence may establish knowledge and membership in a conspiracy where the only reasonable inference from conduct is agreement to undertake the unlawful objective shared by co-conspirators.

[130] This is explained in the Supreme Court of Canada’s decision of R v J.F. 2013 SCC 12, [2013] 1 SCR 565 at paras. 52-54 where Moldaver J. wrote,

In my view, where a person, with knowledge of a conspiracy (which by definition includes knowledge of the unlawful object sought to be attained), does (or omits to do) something for the purpose of furthering the unlawful object, with the knowledge and consent of one or more of the existing conspirators, this provides powerful circumstantial evidence from which membership in the conspiracy can be inferred. To be precise, it would be evidence of an agreement, whether tacit or express, that the unlawful object should be achieved. Ultimately, that issue is one for the trier of fact, who must decide whether any inference other than agreement can reasonably be drawn on the evidence. But, as I will explain, the case at hand illustrates how a constellation of such facts can make a finding of membership a virtual certainty.

In so concluding, I note that conspiracies are often proved by way of circumstantial evidence. Direct evidence of an agreement tends to be a rarity. However, it is commonplace that membership in a conspiracy may be inferred from evidence of conduct that assists the unlawful object. Justice Rinfret made this basic point in Paradis v The King 1933 75 (SCC), [1934] S.C.R. 165, some eight decades ago:

Conspiracy, like all other crimes, may be established by inference from the conduct of the parties. No doubt the agreement between them is the gist of the offence, but only in very rare cases will it be possible to prove it by direct evidence. [p.168]

Furthermore, it is not necessary that all members of a conspiracy play, or intend to play, equal roles ion the ultimate commission of the unlawful object. Indeed, members in a conspiracy need not personally commit, or intend to commit, the offence which each has agreed should be committed; R. v Genser (1986), 1986 4942 (MB CA), 39 Man. R. (2d)203(C.a.), aff’d 1987 5 (SCC), [1987] 2 S.C.R. 685 Any degree of assistance in the furtherance of the unlawful object can lead to a finding of membership as long as agreement to a common plan can be inferred and the requisite mental state has been established.

ASSESSMENT OF THE CREDIBILITY AND RELIABILITY OF THE EVIDENCE OF MR. DAVIDOV

W.D. Analysis

Is The Evidence of the Defendant Believable and Credible?

[131] The content of Mr. Davidov’s evidence, examined in the context of all the evidence at trial, was not a believable story. I did not find him to be credible in his denial of knowledge of the conspiracy or participation in the conspiracy to import cocaine.

[132] I make this finding for a number of reasons as explained below.

[133] His evidence was inconsistent with his prior statements as discussed below. At trial he was evasive in almost all his answers under cross-examination.

KNOWLEDGE OF THE DIVERSION OF THE NEXAN LOAD

[134] The first clear overt inculpatory act in the conspiracy was the diversion of the Nexan load to the Houston truck lot to avoid the Texas Sheriff’s anticipated search of the trailer:

• Mr. Davidov testified that he did not know which of the dispatchers phoned Mr. Soghomonyan to pick up the Nexan load in San Antonio but that it could have been himself.

• He testified that he did not make the call to Mr. Soghomonyan diverting the load to the yard in Houston and that he was not aware that the load was not on its way to Fergus, Ontario. He testified that he did not know that Mr. Soghomonyan and the other driver were directed to pick up a different load in Dallas on November 8. He was not advised that they were pulled over by the Sheriff’s office on a traffic stop. He was unaware that the empty trailer had been searched. He was not told that they picked up the Dallas load and were headed for Concord, Ontario.

• Mr. Davidov testified that he did not learn of the delayed shipment until Monday, November 13 when Penny Wright of Traffic Tech emailed him. He said he assumed that once the load had been picked up in LaPorte, Texas that it was on its way to Fergus, Ontario for November 10, as planned.

[135] I do not find this evidence credible as it is contrary to the usual business practice described by the witnesses.

[136] As Mr. Soghomonyan testified, when they called dispatch the call was usually answered by Dmitri Davidov. He was most often on the phone with Mr. Davidov. Mr. Davidov was the one to call about a “breakdown”.

[137] Mr. Davidov testified that he always has his phone with him, even on weekends as there can be emergencies with drivers needing to get in touch with him so that he was always available by cell.

[138] Mr. Kutaladze testified that he communicated with Mr. Davidov “all the time”, and rarely got a call from the other dispatcher, Brian Brum. Mr. Kutaladze testified that he would be in touch with Mr. Davidov to fax the bills of lading, PARS numbers and customer numbers. He would contact him for security numbers to pay for fuel or cash advances. Mr. Kutaladze said drivers were to call dispatch when they did a pickup and call when they did a delivery.

[139] It is clear that Mr. Soghomonyan had to have called for gas authorization (as evidenced by his receipts) and for customs clearance documents for the Dallas load to be faxed to him (as had been done with Mr. Kutaladze).

[140] The traffic stop and search would have delayed Mr. Soghomonyan and the normal course would be to let dispatch know. Dispatch was usually answered by Dmitri Davidov.

[141] Mr. Soghomonyan did not drive to Fergus, Ontario on Friday, November 10. Rather, he crossed the border at 8:21 p.m. that evening with the Dallas load and drove it to Concord. He testified that he would have taken his paperwork in to the Boreas office.

[142] Mr. Davidov testified that Fridays were the busiest days and he and other dispatchers worked to a very late hour. They usually were all still there at 10:00 p.m. When Mr. Soghomonyan reported in with the Dallas load, this would mean the dispatchers would still be there.

[143] To be so out of contact with his drivers and unaware of their activities is also not in line with the evidence of the witnesses.

[144] Mr. Davidov testified that dispatch included himself, Brian Brum, Sergei Churilov and Vadim.

[145] Mr. Nijberg, the factor, described that all the dispatchers were on calls and speaking with one another, acting as a team. The dispatchers know where all the drivers are.

[146] Mr. Kutaladze testified that each truck had a GPS installed by Boreas and “Dmitri can see me in real time my whereabouts.”

[147] Mr. Davidov said that the dispatchers all sit next to each other and say, “I need this” “I need that” “please give me”. He said that all the dispatchers would know that Mr. Soghomonyan left November 5 for Texas and that he arrived in Texas on November 7. He said in general “everybody know who was moving where.”

[148] I do not find it credible that Mr. Davidov was so oblivious of Mr. Soghomonyan’s trip

• being diverted to drop the Nexan load in Houston;

• picking up an empty trailer;

• facing a traffic stop;

• having the empty trailer searched at the Sheriff’s office;

• picking up a different load in Dallas;

• making a gas purchase;

• getting customs documents for the Dallas load;

• arriving in Concord on Friday evening November 10.

[149] He certainly did not receive a call from Mr. Soghomonyan on Friday, November 10 confirming that the load had been delivered to the Fergus Nexan plant in satisfaction of the contract with Traffic Tech.

[150] Even had the phone call diverting the Nexan load to Houston been made by another dispatcher such as Mr. Churilov or Vadim, the circumstances show that Mr. Davidov must have been aware Mr. Soghomonyan was involved in a completely different load and destination. It follows that he did not alert Traffic Tech of the delay or take other action because he was aware that the load was problematic, and being looked into by drug enforcement authorities in Texas.

ANALYSIS OF THE DEFENDANT’S CONDUCT IN REROUTING TO CANADA

[151] On review of all the evidence, the suggestion by Mr. Davidov that the customer was directing that this load come back to Canada defies logical or business sense.

[152] The emails clearly stated repeatedly that the load was not wanted in Canada. Traffic Tech, with the help of Mr. Nijberg, kept following up to ensure that the trailer reached Interpak in New Jersey on Friday, November 17. The paperwork prepared on November 16 by Penny Wright confirmed it was to go to New Jersey. If there had been a change then some email or phone contact would have been done to alter these instructions. Ms. Wright’s after hours cell phone was on much of the paperwork. The fact that Mr. Davidov did not email or phone her at any time that evening or all day on Saturday, November 18 to check on these major changes for delivery makes it apparent that he knew there had been no such change.

[153] The documents which he says Vadim prepared for this load to fax to Mr. Kutaladze are markedly different from the prior manifests for the Nexan load which Mr. Kutaladze had sent to him on November 16. In light of the difficulties and cover stories involved, it is highly improbable that they would not be checked. It had a different shipper and a different consignee, for example.

ANALYSIS OF THE ROLE OF VADIM

[154] This evidence of the significant involvement of his co-worker Vadim is inconsistent with his prior statement to police on March 27, 2018, just four months after the events.

[155] At that time, Mr. Davidov said he did not know who prepared the false documents and stated, “As much as I want to tell you and help you I don’t know.” His explanation at trial in cross-examination was that he was exercising his right to silence on this point. I find that such an answer is not “silence”, rather it is actually providing the information that he did “not know who” prepared the documents.

[156] Mr. Davidov did not mention Vadim being connected with this load in any way. Vadim’s name was only mentioned by him when police asked about the back bedroom where a plate containing cocaine evidence had been found. The defendant spoke with police as follows:

Police: Who lives there?

Mr. Davidov: Oh, one of the guys that works for us as well.

Police: One of the drivers or a dispatcher?

Mr. Davidov: Well he does everything a little bit. He just help.

Police: What’s his name?

Mr. Davidov: Vadim

Police: What’s his last name, do you know?

Mr. Davidov: I don’t know.

[157] The significant role of Vadim as described by Mr. Davidov at trial was not indicated in his police statement made some four months after the incident. To the extent that Vadim was involved, it is apparent that Mr. Davidov hid that involvement from police. This speaks to his knowledge and complicity to the dealings with this trailer.

OTHER INCONSISTENT STATEMENTS

[158] Mr. Davidov testified to his surprise on Monday, November 13 about the failure of the Nexan shipment delivery being completed on November 10, his learning that the Nexan load had been left in Houston, his cover story and lies through that week, his rerouting the load to New Jersey, his lies about the load arriving at Interpak, arranging for storage over the weekend for another driver to complete, and then his rerouting to Canada that weekend on the advice of Vadim.

[159] This evidence is markedly different from his prior statement to police when asked about the Nexan load. He said:

“No, I didn’t see anything that was a problem with the load.”

“Nothing much, nothing was unusual, the delivery, pickup, nothing much I can say about it.”

[160] Although he dispatched Mr. Kutaladze to San Antonio with a load on November 14 and then told him to pick up the Nexan load in Houston on November 16, while daily giving the cover story of a broken trailer to Traffic Tech, he gave a fanciful reason to police for the delay of the Nexan load as follows:

If I am not mistaken, Omar [Mr. Kutaladze] was sick for a week in the States, he was in hospital, maybe not a week, 4 or 5 days something like that, I would say up to a week, maybe it isn’t connected to that I’m not sure, maybe because of that, because the load was prepared and he’s stuck in the hospital, maybe, I don’t want to say that because of it but that’s what’s in my mind.

[161] Later in the police statement Mr. Davidov reiterated this reason a second time to explain why the Nexan load was sitting for 12 days.

[162] Mr. Kutaladze testified that he has never been hospitalized in the United States. He attended the emergency room in Canada on November 19 during the seizure of the load at the border but was not admitted.

[163] I conclude that Mr. Davidov’s police statement was a deliberate misstatement of what the delay of the Nexan load was about, and adds to my finding that his evidence is not credible or reliable.

CHIEF DISPATCHER

[164] The evidence shows that Mr. Davidov was the chief dispatcher and the senior employee at Boreas Logistics.

[165] One example is that at Traffic Tech it was his email as the default email contact. Ms. Wright testified that when she phoned Boreas it was Mr. Davidov who answered. Similarly, the default email on file for Willbri Truck Repair for their system was the defendant’s email.

[166] Both drivers, Mr. Soghomonyan and Mr. Kutaladze, said that most of their communications were with Mr. Davidov and that Mr. Churilov was not often in the office.

[167] Mr. Davidov testified that he was at the office late on Fridays and in the office on Saturdays and available by phone.

[168] Despite there being an agreed statement of fact, Mr. Davidov in his testimony was equivocal about many of the emails and conversations set out. He suggested that he may not have authored some of the emails and it could have been someone else who wrote them; the owner Mr. Churilov, the other dispatcher Brian Brun, or Vadim.

[169] Nonetheless he testified that everyone knew each other’s passwords and could use each other’s computers. He did acknowledge that he read emails on his phone, and that many of the emails were on a chain, and therefore open to be read. He said he carried his phone with him “almost all the time.”

[170] The Traffic Tech witness, Roderick Diepen, testified that some of his emails went to other Boreas email addresses such as boreas20, and not to Mr. Davidov’s direct email. He testified however that in his phone conversations with Mr. Davidov it was apparent that Mr. Davidov was aware of the emails sent to the other addresses.

[171] There was no evidence that Mr. Davidov did not see or read the emails at the time, nor that he was unaware of emails sent in his name.

[172] Considering the pivotal role Mr. Davidov held at this company, I must conclude that he was aware of what was going forward in connection with the attempt to import the load of cocaine. He had to have been trusted by others in the company who were acting in this conspiracy.

Does the Evidence of the Defence Leave a Reasonable Doubt?

[173] In the entire context of the case, the evidence of Mr. Davidov did not leave me with a reasonable doubt of his knowledge and participation in the conspiracy.

[174] The defence made other submissions on this issue.

INVESTIGATION IN THE USA

[175] Evidence was given that the Nexan load had been a target of the Drug Enforcement Agency (DEA) in the United States but that they would not share information of their investigation.

[176] The DEA confirmed that neither the driver, Mr. Soghomonyan, nor the accused, Mr. Davidov, were targets in their investigation.

[177] The defence pointed out that in Vadim’s room drug paraphernalia and a plate containing evidence of cocaine were found. They also pointed out that the Boreas owner, Sergei Churilov, had a conviction in the U.S. for conspiracy to possess with intent to distribute more than 100 kilograms of marijuana.

[178] There was no inquiry of the DEA whether either Mr. Churilov or Vadim were targets of interest in their investigation.

[179] The defence submission that the fact the DEA had not targeted the defendant should leave me with a reasonable doubt that Mr. Davidov was not involved in this conspiracy is rejected in light of the paucity of information coming from that department.

FALSE PAPERWORK NOT DESTROYED

[180] Police searched the Boreas office pursuant to a warrant on February 27, 2018.

[181] The falsified customs documents and manifest that had been sent to Mr. Kutaladze and used at the border to get the Nexan load across were still at the Boreas office as an unpaid account.

[182] The defence submitted that if Mr. Davidov had guilty knowledge of those documents he would have disposed of them and that this should leave me with a reasonable doubt on the issue of knowledge.

[183] As the documents had been faxed to the customs brokers however, disposing of the originals would not have wiped out the paper trail. If, as Mr. Davidov stated, it was Vadim who prepared the documents I note that he also did not dispose of the documents.

[184] The presence of the documents in their office does not leave me with a reasonable doubt as to whether Mr. Davidov had knowledge of the conspiracy.

Analysis of the Strength of the Crown’s Case

[185] His evidence did not leave me with a reasonable doubt as to his knowledge and participation in this conspiracy to import cocaine.

[186] I am left to determine whether the strength of the Crown’s case on circumstantial evidence satisfies me beyond a reasonable doubt.

[187] The Supreme Court in R. v. Villaroman, 2016 SCC 33 at para. 35 discussed the approach to circumstantial evidence, stating that “if there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.”

[188] Further at para. 37, the court stated,

When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, 1938 14 (ON CA), [1938] O.R. 200 (Ont. C.A.) , at pp. 205 and 211, per Middleton J.A., aff'd 1938 7 (SCC), [1938] S.C.R. 396 (S.C.C.) ; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11 (B.C. C.A.), at para. 20; R. v. Mitchell, [2008] QCA 394 (S.C.C.), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": R. v. Bagshaw(1971), 1971 13 (SCC), [1972] S.C.R. 2 (S.C.C.), at p. 8. "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

[189] I note the Supreme Court in Villaroman discussed where the line is drawn between speculation and reasonable inferences at paras. 38-42 as follows:

Of course, the line between a "plausible theory" and "speculation" is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

I have found two particularly useful statements of this principle.

The first is from an old Australian case, Martin v. Osborne 55 C.L.R. 367, at p. 375:

In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed.

[Emphasis added.]

While this language is not appropriate for a jury instruction, I find the idea expressed in this passage — that to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative — a helpful way of describing the line between plausible theories and speculation.

The second is from R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138 (Alta. C.A.) , at paras. 22 and 24-25. The court stated that "[c]ircumstantial evidence does not have to totally exclude other conceivable inferences;" that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible.

[190] Are there other reasonable inferences other than guilt to be drawn from the evidence as a whole?

[191] Mr. Davidov’s evidence did point to the employee Vadim as a culpable person involved in the conspiracy such that the issue is whether he had knowledge of Vadim’s involvement in this crime and was participating with him to get this trailer of drugs into Canada.

[192] As noted above, the lack of interest by the DEA in Mr. Davidov, and the presence of the falsified documentation rather than being destroyed, do not leave me with a reasonable doubt.

[193] The evidence before the court is significant.

[194] Even if it was Vadim who diverted the Nexan load on November 7 to the Houston lot, I find that Mr. Davidov could not have been in the dark for the next six days that the Nexan load was abandoned and a Dallas load brought to Concord instead. All the evidence supports how much teamwork there was in the office, and how Mr. Davidov knew where his drivers were at all times, how they reported to him when they picked up, or dropped off, how they contacted him for funding for fuel and for customs documents and the extent to which he could be reached by phone and by email.

[195] Once becoming aware of the delay, Mr. Davidov perpetuated a false cover story about a repair while not taking action to get customs clearance or to get the trailer moving from Houston for many days.

[196] Once being told the load was to go to New Jersey he arranged for the trailer to remain in a truck lot for the weekend in New Jersey before being delivered to the warehouse.

[197] Then despite clear instructions that the $80,000 of plastic resin was not wanted by the customer and was to be left in New Jersey, he directed the load to come to Canada. It was Mr. Davidov who sent the falsified documents to the driver to use crossing the border.

[198] It is not credible that with all the problems with this load that he did not observe that the invoice he was sending to Mr. Kutaladze was not the invoice for this Nexan load.

[199] His evidence to the court was that “everything related to customs clearing and border cross is Vadim” and that Vadim prepared and handed him the falsified documents. This was completely contradicted by his prior police statement wherein he said he did not know who prepared the documents and Vadim “does everything a little bit. He just help.”

[200] Mr. Davidov was evasive in his police statement saying there was nothing unusual with the Nexan load when it was clearly problematic and delayed for well over a week. I found that he gave a deliberate misstatement to police to explain the delayed shipment by saying it may have been due to Mr. Kutaladze being hospitalized.

[201] An assessment of all the evidence in the case concludes that no other reasonable inference can be reached other than that Mr. Davidov had to have been a knowing member and participant in a conspiracy to import cocaine.

CONCLUSION

[202] Mr. Davidov’s evidence did not leave me with a reasonable doubt on the issue of his knowledge and participation in the conspiracy.

[203] On review of the evidence as a whole, I am satisfied beyond a reasonable doubt that Mr. Davidov knew and participated in a conspiracy to import cocaine in the Boreas trailer.

[204] Accordingly, I find him guilty on both counts.

M. J. Donohue J.

Released: July 15, 2022

COURT FILE NO.: CR 376/20

DATE: 2022/07/15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Dmitri Davidov

REASONS FOR JUDGMENT

M. J. Donohue, J.

Released: July 15, 2022