Court File and Parties

File No.: CR: 21-5310 Superior Court of Justice

HIS MAJESTY THE KING v. FEDERICO JIMENEZ-MARTINEZ

BEFORE THE HONOURABLE JUSTICE K.W. MUNROE on February 28, 2023, at WINDSOR, Ontario

REASONS FOR JUDGMENT

APPEARANCES: S. Aujla Counsel for the Crown C. DeMelo Counsel for F. Jimenez-Martinez

SUPERIOR COURT OF JUSTICE T A B L E O F C O N T E N T S

REASONS FOR JUDGMENT 1 Transcript Ordered............................March 22, 2023 Transcript Completed..........................April 18, 2023 Ordering Party Notified.......................April 18, 2023

February 28, 2023

Reasons for Judgment

MUNROE, J. (Orally):

The basic facts of this case are undisputed. On a rainy summer evening, August 29, 2021, the accused, Federico Jimenez-Martinez (“Mr. Jimenez”), drove a vehicle from the United States into Windsor, Ontario, Canada, over the Ambassador Bridge. In the back of his vehicle was a spare tire loaded with 18 brick-like objects of cocaine that collectively weighed over 18 kilograms and had an approximate value ranging from $850,000 to close to two million dollars. Mr. Jimenez knew illegal drugs were secreted in the spare tire in his vehicle. He was transporting the drugs from Arizona for delivery in Michigan, both in the United States. Crown counsel concedes that it has insufficient evidence to prove, beyond a reasonable doubt, that Mr. Jimenez intended to come to Canada. But he did enter Canada, apparently by mistake. At the Canada side of the bridge, his vehicle was searched, the cocaine was found, and Mr. Jimenez was arrested.

According to Mr. Jimenez, he transported the cocaine out of fear for his safety and the safety of his family in Mexico.

Thus, the defence of duress is the primary issue before me.

Mr. Jimenez was arraigned before me on December 12, 2022, on the following two separate crimes, both allegedly committed in the City of Windsor, Ontario, on or about August 29, 2021:

Count 1: Import into Canada a schedule I controlled substance, to wit: Cocaine contrary to Section 6(1) of the Controlled Drugs and Substances Act; and

Count 2: Possession of Cocaine for the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act.

To these charges, Mr. Jimenez, pled not guilty. This trial ensued.

At the end of the case, Crown counsel conceded that it had insufficient evidence to prove, beyond a reasonable doubt, an essential element of the crime of importation, that Mr. Jimenez intended to import the cocaine into Canada. The Crown invited the court to acquit Mr. Jimenez on Count 1, the importation count. This Court agreed and entered a verdict of not guilty as to Count 1, the importation count.

Mr. Jimenez does not contest that he committed all of the essential elements of the remaining offence charged, possession of cocaine for the purpose of trafficking, but says his conduct was involuntary, the product of serious threats made against him and his family. Mr. Jimenez advances the defence of duress arguing that he should be excused from this criminal conduct that day. Thus, this defence and the facts related thereto are the heart of this case.

Admissions

The parties filed an Agreed Statement of Facts, Exhibit No. 1. In pertinent part, the following facts are agreed:

1. This court has jurisdiction to try Federico Jimenez-Martinez and the offences he has been charged with. This is not an admission that Mr. Jimenez-Martinez intended to be in Canada.

2. On August 29, 2021, Federico Jimenez-Martinez entered Canada where he was arrested. He had driven across the Canada-USA Ambassador Bridge in a black Chevrolet Suburban bearing Texas marker 22254V1.

3. During the examination of his vehicle the Canada Border Service Agency (“CBSA”) officers located a spare tire in the trunk. The spare tire had a cut on a sidewall and concealed 18 brick-like objects.

4. The nature of the substance is admitted, it was Cocaine.

5. The wrapping for the brick-like items seized from the spare tire were examined by RCMP Forensic Identification Investigators and the results were negative for fingerprints.

6. The electronic devices seized during the investigation were analyzed by a specialized RCMP unit, Integrated Technical Crimes Unit. The agreed upon results of that analysis may be filed on consent.

7. The RCMP seized three phones and SIM cards upon the arrest of the accused.

8. The parties agree that the phone logs generated as a result of the judicial Production Orders may be filed on consent.

9. The seized phones are: a) A black and blue Motorola Cricket phone b) A black and blue Nokia Cricket phone c) A black Samsung phone

10. The statement of the accused is filed on consent. It is admitted as voluntary.

11. The Crown does not take issue with the qualifications of the proposed defence expert witness, Dr. Nathan Jones. The Crown accepts, subject to the Court’s ruling, that Dr. Nathan Jones may provide opinion evidence in relation to the following areas: a) Mexican cartels; b) Mexican cartels and their illicit activity in the U.S. and Mexico.

Evidence

Evidence was taken at trial over five days. Submissions were held on a sixth day. The court heard from five CBSA witnesses called by the Crown. The defence called three witnesses including the defendant who elected to testify. Twenty-six exhibits were entered:

Exhibit No. 1 Agreed Statement of Facts; Exhibit No. 2 CBSA secondary referral slip; Exhibit No. 3 copy of the accused’s Mexican passport; Exhibit No. 4 USB date stick – video of primary and secondary; Exhibit No. 5 receipt from bag in Suburban; Exhibit No. 6 items from glove box; Exhibit No. 7 receipts from centre console; Exhibit No. 8 photos of Suburban at secondary; Exhibit No. 9 drug exhibits and weights and substances; Exhibit No. 10 CBSA Exhibit Control; Exhibit No. 11 exhibit photos; Exhibit No. 12 movement of Exhibit Report; Exhibit No. 13 Nokia Cricket cell phone; Exhibit No. 14 Samsung cell phone Exhibit No. 15 Motorola cell phone; Exhibit No. 16 photos of cell phones; Exhibit No. 17 Extraction Report – Samsung cell phone; Exhibit No. 18 Extraction Report – Motorola cell phone; Exhibit No. 19 USB Data Stick – Motorola cell phone analysis; Exhibit No. 20 Supplemental Agreed Statement of Facts (Motel 6); Exhibit No. 21 Motel 6 card Exhibit No. 22 Supplemental Agreed Statement of Facts (time zones); Exhibit No. 23 USB Data Stick – interview of accused; Exhibit No. 24 Motorola call log; Exhibit No. 25 CV – Dr. Nathan Jones; and Exhibit No. 26 value of cocaine seized

Position of the Parties

Defence

The defence first asserts that because Mr. Jimenez never wanted to enter Canada and was here only by accident, he committed no crime here. In support, by citing no authority, the defence claims mistake of fact and lack of jurisdiction.

In addition, the defence advances duress as a lawful excuse why Mr. Jimenez should not be convicted of the crime charged. Mr. Jimenez committed the crime only because he was afraid for his life and for the lives of his family in Mexico from the drug cartels. In this regard, the defence argues that the court should accept the evidence of the accused, the brother of the accused, and the defence expert.

Prosecution

The Crown says that the accused is guilty as charged. There was no duress. Considering the evidence collectively, the Crown argues that the evidence established the guilt of Federico Jimenez-Martinez for possession of cocaine for the purpose of trafficking beyond a reasonable doubt.

Legal Principles

Presumption of Innocence and Reasonable Doubt

At his arraignment, Mr. Jimenez entered his plea of not guilty. So, we have a formal accusation and a denial, a not guilty plea. A trial thus was necessary to determine the matter. But it is not a trial without principles. Mr. Jimenez is presumed in law to be innocent of the charge. This presumption is a cornerstone of our criminal justice system. This presumption of innocence stays with Mr. Jimenez throughout his trial and can only be defeated if and when Crown counsel satisfies me of the heaviest burden known in law, beyond a reasonable doubt, that Mr. Jimenez committed the crime, that Mr. Jimenez is guilty of any of the charges.

This heavy burden of proof never shifts, it is always on the Crown. The Crown brought the charges against this man; they must prove the allegations. Mr. Jimenez does not have to prove anything; he does not have to present evidence, he does not have to testify himself. It is the Crown who must prove every essential element beyond a reasonable doubt before I can find Mr. Jimenez guilty of any crime.

A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in the trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence.

It is not enough for me to believe that Mr. Jimenez is probably or likely guilty. In those circumstances, I must find Mr. Jimenez not guilty, because Crown counsel would have failed to satisfy me of Mr. Jimenez’s guilt beyond a reasonable doubt. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.

However, I must also remember that it is nearly impossible to prove anything to an absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high. However, having said that, proof beyond a reasonable doubt is closer to proof to an absolute certainty than it is to proof on a balance of probabilities.

When an accused elects to testify on his own behalf, as Mr. Jimenez did in his trial with regard to his duress claim, I must assess the evidence as follows:

i. if I believe the evidence of Mr. Jimenez that he committed the crime charged under duress, I must acquit him;

ii. even if I do not believe the evidence of Mr. Jimenez, but I am left in a reasonable doubt by his evidence as to each of the essential elements of duress, I must acquit him;

iii. even if I do not believe, and am not left in a reasonable doubt by the evidence of Mr. Jimenez, then I must consider whether, on the basis of all the evidence which I do accept, I am convinced beyond a reasonable doubt negating at least one of the essential elements of duress, only then can I convict. It is a very high burden indeed.

Credibility and Reliability

The two concepts are not identical. Credibility refers to the honesty of the witness. Reliability refers to the accuracy of the witness’s evidence. A witness may be honest but wrong. Both concepts must be considered by me.

Where there are significant inconsistencies or contradictions within a witness’s testimony, or when considered against conflicting evidence in the case, I must carefully assess the evidence before concluding that guilt has been established.

Demeanour evidence alone cannot suffice to make a finding of guilt.

To the extent a credibility or reliability assessment demands a search for confirmatory evidence for the testimony of a witness, such evidence need not directly confirm the witness’s evidence in every respect - the evidence should, however, be capable of restoring the trier’s faith in the witness’s account.

Prior Inconsistent Statements

When a witness says one thing in the witness box but has said something quite different about the same event on an earlier occasion, common sense tells you that the fact that the witness has given different versions may be important in deciding whether or how much you believe of or rely upon the witness’s testimony.

If I find, after having heard all the evidence, that any witness gave an earlier and different version about the same events, I will consider the fact, nature, and extent of any differences between the versions in deciding whether or how much I will believe of or rely upon the witness’s testimony in deciding this case. I bear in mind that not every difference or omission will be significant. I also will take into account any explanation the witness gives for any differences or omissions.

Assessment of the Evidence

To make my decision on the issues of credibility and reliability overall, I must consider carefully, and with an open mind, all the evidence presented during the trial. It will be up to me to decide how much or little I believe and rely upon the testimony of any witness. I may believe some, none, or all of it.

I must and will use may common sense in deciding whether people know what they are talking about and whether they are telling the truth. There is no magic formula for deciding how much or how little to believe of a witness’s testimony or how much to rely on it in deciding this case.

Duress

Canadian criminal law recognizes that in certain limited circumstances a conviction of a crime may be excused because the person who committed it acted in the absence of moral voluntariness.

The underlying rationale for a defence of involuntariness is stated by the Supreme Court in R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687, at para. 47:

It is a principle of fundamental justice that only voluntary conduct – behaviour that is the product of a free will and controlled body, unhindered by external constraints – should attract the penalty and stigma of criminal liability.

The criminal law punishes people only for the voluntary conduct. If a person has no voluntary control over what she or he is doing, the criminal law does not hold that person responsible for that conduct.

The availability of the defence of duress, however, is limited only to persons who commit offences while under compulsion of a threat made for the purpose of compelling the accused to commit the offence. As held by the Supreme Court in R. v. Ryan, 2013 SCC 3, at para. 33:

Duress is available only in situations in which the accused is threatened for the purpose of compelling the commission of an offence.

An accused does not have to prove that what he or she did was involuntary because he or she was acting under duress. Once there is record evidence of an air of reality to this defence, it is for Crown counsel to satisfy the fact finder beyond a reasonable doubt that what an accused did was voluntary, the result of free choice.

The defence of duress is found both at common law and in s. 17 of the Criminal Code. S. 17 provides:

A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offence that is committed is [a listed serious crime but not including a drug crime].

The Supreme Court of Canada in Ruzic and in Ryan found certain aspects of s. 17 violated s. 7 of the Charter that were not saved by s. 1 of the Charter. In Ryan, at para. 81, the Supreme Court noted the following essential elements shared by both the common law and the statutory defence:

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

2. The accused must reasonably believe that the threat will be carried out;

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

4. A close temporal connection between the threat and the harm threatened;

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

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

Elements 3 and 5 are assessed on a modified objective test: would a reasonable person draw the requisite conclusion. In this evaluation, the finder of fact must consider the particular circumstances and characteristics of the accused.

As to each of these elements, if the fact finder believes or has a reasonable doubt about each of the six elements, the fact finder must find the accused not guilty.

If, on the other hand, the fact finder is satisfied beyond a reasonable doubt that any of the elements does not apply, duress has not been satisfied, the accused is not excused from criminal liability for what she or he did. The defence of duress does not apply.

Of course, in this regard, the burden always remains on the Crown.

Principles Applied

Preliminary Issues

1. Admissibility of Lawyer Affidavit

The defence seeks admissibility of the Affidavit of Katie Heathcote, sworn December 15, 2022, as evidence in this trial. It is marked for identification as Exhibit C.

Although Crown counsel does not object to its entry as an exhibit stating that the affidavit has very little evidentiary value, I am troubled by this effort and, although agreeing that it has little, if any, evidentiary weight, I decline to elevated it to evidentiary status. I decline to make this a precedent.

Even ignoring the propriety of a defence lawyer providing trial evidence on the pivotal issue of the case, the affidavit is classic hearsay.

In pertinent part, the affidavit provides as follows:

• the affiant is a law partner in the firm representing Mr. Jimenez;
• on October 31, 2021, the affiant met with Mr. Jimenez in a detention centre where he was confined;
• the affiant’s purpose was to ascertain Mr. Jimenez’s version of the events;
• Mr. Jimenez “began uncontrollable crying” when asked about whether he had spoken to his family: “He was extremely scared for them and relayed to me that he was afraid they either had been killed or would be as a result of his arrest”; and
• the affidavit is made “in support of the defence” of Mr. Jimenez.

Post-arrest exculpatory statements by an accused are not admissible. A recognized exception to this general rule is when the statement was made spontaneously upon arrest or when first confronted with the accusation: see R. v. Edgar, 2010 ONCA 529, at para. 72, leave to appeal refused, [2010] S.C.C.A. No. 466. The Edgar exception obviously does not apply here. The statement was made over two months after the arrest of Mr. Jimenez.

During submissions, when the Edgar decision was brought to the attention of the defence, counsel pivoted saying the affidavit was not being offered for its truth but rather for the strong emotions exhibited by Mr. Jimenez. His emotions show he was upset and scared for his family.

First, the elimination of the context renders the reason for the purported crying unknowable. Second, inclusion of the context makes the crying a non-verbal assertion and thus hearsay. Finally, crying during a counsel visit after more than two months in jail upon being asked if he had spoken with his family has no probative value regarding the accused’s state of mind at the time of the crime.

This affidavit shall not be admitted into evidence nor considered by me.

2. Absence of Intent to Be in Canada

The defence asserts that the accused committed no crime in Canada because he had no intent to be in Canada and was here by accident.

As a matter of proof, I agree that there is insufficient evidence that Mr. Jimenez intended to enter Canada. This absence of proof led to the acquittal of Mr. Jimenez on the importation charge but an essential element of importation, pursuant to s. 6(1) of the CDSA, is an intent to import the substance into Canada. Possession for the purpose of trafficking pursuant to s. 5(2), of the CDSA does not include any such essential element. Trafficking is defined very broadly and includes to transport and to deliver: see s. 2(1), CDSA. The mental element is the purpose for which the substance is being trafficked: see s. 5(2), CDSA. In other words, the crime is complete upon proof that the accused possessed a controlled substance, possessed it knowingly, and possessed it for the purpose of trafficking.

The defence raises mistake of fact, that the accused had no intent to traffic in Canada. Setting aside the total absence of such an essential element, mistake of fact does not assist the defence. In its essence, mistake of fact is a negation of the mental element of the crime charged. It is designed to prevent conviction of the morally innocent. Any honest belief in the facts which, if true, renders an act innocent and not a crime, is a mistake of fact: see R. v. Papajohn (1980), 52 C.C.C. (2d) 481, at p. 494 (S.C.C.) (Dickson J.). This does not encompass the conduct here. Mr. Jimenez was not morally innocent; he committed the crime before he arrived at the customs booth at the Canada end of the Ambassador Bridge; the border between the two countries is approximately midway over the bridge.

A jurisdiction claim also does not assist Mr. Jimenez. This is a Canadian crime committed on Canadian soil by a person physically present in Canada. In addition to the admission of jurisdiction found in para. 1 of the Agreed Statement of Facts: by s. 470 (a) of the Criminal Code of Canada, this court has jurisdiction to try Mr. Jimenez on the indictable offence charged in Count 2 because that accused was arrested in Windsor, Ontario, Canada and continues to be in custody here.

In sum, the offence of possession of cocaine for the purpose of trafficking was complete when Mr. Jimenez drove past the Canada/USA border, about midway on the Ambassador Bridge. At that point, Mr. Jimenez was on Canadian territory and the crime charged was complete: he knowingly was transporting a load of illegal drugs for delivery. There is no jurisdiction problem here.

Expert Evidence

The defence called Dr. Nathan Jones a university professor in Texas to provide expert opinion evidence concerning Mexican drug cartels. A voir dire was conducted. The curriculum vitae of Dr. Jones is Exhibit No. 25. Dr. Jones has studied the Mexican drug cartels for many years and has published articles regarding same in peer-reviewed publications. Following the voir dire, I accepted Dr. Jones as an expert witness in the areas of Mexican drug cartels and their activities in the United States and Mexico.

I summarize the pertinent portions of the evidence of Dr. Jones:

• there are a number of Mexican criminal groups operating to smuggle into, and thereafter to distribute in, illegal drugs throughout the United States;
• the primary object of these groups is to make money from illegal drugs and other crimes;
• these groups commonly use violence, including murder, to achieve their primary goal, to make money;
• violence is used to collect drugs;
• a debt is created when drugs are not delivered or are lost;
• these groups operate differently in the United States where they attempt to minimize violence;
• these groups typically use willing people they trust to transport drugs;
• the transportation of 18 kilos of drugs is a fairly significant load;
• a transporter of an 18 kilo load would typically be a person trusted by the group, but use of a non-member does happen;
• there have been instances when the groups have used “blind mules” - people without knowledge of the presence of drugs, or people forced to transport by trickery or threats to transport drugs;
• forced transporters tend to be rare but it does happen;
• illegal immigrants in the United States provide a pool of potential recruits; and
• a recruit, having family in Mexico, provides the group with leverage against the recruit.

Credibility and Reliability

Before turning to the substantive issues presented, I must first decide what evidence I accept.

The Evidence of Adolfo Jimenez

I heard the evidence of Mr. Adolfo Jimenez (hereinafter “Aldolfo” to avoid confusion) for most of day three of the evidence. He testified remotely pursuant to s. 714.2 of the Criminal Code. He testified through a sworn Spanish interpreter. I listened carefully to what he had to say and how he said it.

Adolfo is the younger brother of Mr. Jimenez currently living in the United States. He is 10 years younger than the accused. Mr. Jimenez was in the United States approximately two years before Adolfo. Immediately before the August trip, Adolfo and the accused were working for the same construction operation and living in Tucson Arizona - Adolfo in an apartment and Mr. Jimenez in a trailer. They had the same boss. Mr. Jimenez had a black Suburban vehicle and Adolfo had no vehicle.

In August, Adolfo testified that he knew Mr. Jimenez was going on a trip but he did not tell anyone he was leaving his job. During the trip the brothers communicated via text messages. Mr. Jimenez told Adolfo he was going to Michigan. According to Adolfo, the accused told him he was going to make a delivery but he did not say what it was. Adolfo assumed it was drugs but the accused did not say. It was this believed nature of the trip that caused Adolfo to tell his brother to be careful. Mr. Jimenez offered to give his car to Adolfo because he was getting a new car. He also told Adolfo that Adolfo could go on the next trip.

Mr. Jimenez went missing. Adolfo had not heard from his brother for three days. Then Adolfo started receiving calls from a person or persons he identified as the “mafia”. They wanted to know where the accused was advising Adolfo he was carrying a load worth a lot of money. These calls came with threats to kill Adolfo and his family. They wanted to know where his brother was but Adolfo did not know. Adolfo was told he had to look for Mr. Jimenez. Adolfo moved out of Tucson and changed his number out of fear. Only then did the threats stop.

In sum, and taking all into account, I accept the evidence of Adolfo.

The Evidence of the Accused

Mr. Jimenez testified before me over the final two days of evidence. He testified through a sworn Spanish interpreter. I listened carefully to what he said and how he said it. Although Mr. Jimenez was very polite, much of his evidence gave me great concern.

Background

At the time of his evidence, Mr. Jimenez was 35 years old. He is a Mexican citizen born and raised in the Veracruz area. He is married with six children, all in Veracruz. He also has parents living there. He has five siblings.

Mr. Jimenez has very little formal schooling. He started to work at age seven and left what little school he had at age ten. His family was poor.

Mr. Jimenez came to the United States to work. He was first in the United States on a visa and later went without a visa. In 2019 Mr. Jimenez crossed illegally into the United States for work opportunities. He moved around doing construction work first at various locations throughout the south and then toward the west. By about June of 2021, Mr. Jimenez lived and worked in Tucson, Arizona. The construction crew numbered about 17 to 20 men, illegal immigrants like himself. He earned approximately between $500 to $700 weekly.

At the time of the trip in question, Mr. Jimenez lived in the construction bosses’ house with his brother, Adolfo.

Mr. Jimenez had a vehicle, a Suburban that he referred to as a “van”. Adolfo did not have a vehicle.

The Trip According to Mr. Jimenez

The trip from Arizona to Michigan began on Friday, August 27, 2021. On that morning, Mr. Jimenez woke up with an upset stomach and could not go to work. He told his boss. He went to the bathroom five or six times that morning and did not eat until later in the day. At around 2:00 p.m. or 3:00 p.m., Mr. Jimenez, although not totally well, decided to do his washing and went to the nearby laundromat. According to him, this was the first time that day that he had been out of the house.

Once at the laundromat, Mr. Jimenez went to the back of his vehicle to get his laundry. He lifted up the trunk and immediately was confronted by two men he had never seen before. The one who talked spoke in Spanish with a Mexican accent. Mr. Jimenez testified the following happened:

• in his evidence, Mr. Jimenez described the men as number one and number two;
• number one put the trunk down and number two stood to the left of Mr. Jimenez;
• number one said: “lend me your phone and put in your password”
• Mr. Jimenez did as requested;
• once he had the phone, number one turned around for about one or one and one half minutes;
• number one said: “we have a problem; you are going to take a load to Michigan”;
• Mr. Jimenez said: “but I don’t know the area”;
• number one said: “you are going to Michigan”;
• Mr. Jimenez said: “I can't go”;
• number one said: “you are going to go”;
• Mr. Jimenez said: “I don’t know how to go”;
• at this point, number two lifted up his shirt exposing a pistol in his pants and dropped his shirt;
• Mr. Jimenez felt shaky and forced;
• number one said: “I have information about your family; if you do not go we will kill your family”;
• Mr. Jimenez thought that was why number one took his phone;
• number one opened the trunk and loaded the tire in his vehicle;
• number one said he put the address on GPS in my phone;
• number one said: “I’m going to be watching you when you get to Detroit”;
• number one did not speak about money;
• number one said Good Luck and gave him two pats saying: “the life of your family is in your hands”; and
• both number one and number two drove off.

The entire exchange was quick, about four to five minutes.

Mr. Jimenez knew the tire contained drugs when they loaded it in his vehicle.

According to Mr. Jimenez, although he knew it was illegal, he had no choice but to obey.

Before leaving, he called his friend Alan and met with him at the roadside.

Thereafter, Mr. Jimenez left and followed the GPS to Detroit, Michigan. The trip was over two days. He drove straight through getting some sleep on the roadside. He arrived in the Detroit area on Sunday evening, August 29, 2021.

During the trip, Mr. Jimenez communicated with his brother Adolfo via text messages.

Once in the Detroit area, he stopped at a Chinese buffet restaurant where he thought he was being watched or followed by two women.

It was raining. Somehow he got on the Ambassador Bridge. He did not want to come to Canada. He did not realize the bridge led to Canada until he saw the Canada patch on the officer’s uniform at the border check point.

Once at the border, Mr. Jimenez knew the drugs would be found and he would be unable to deliver them. He knew that the non-delivery of the drugs was a problem.

Mr. Jimenez said he never considered calling the police because his family in Mexico was in his hands. He thought the threats against his family would be carried out.

Mr. Jimenez denied ever making a prior illegal delivery.

Inconsistencies

There are inconsistencies of concern to me.

When being questioned after his arrest, Mr. Jimenez told the police that he was living in Kansas. At trial, Mr. Jimenez admitted this was a lie, he was living in Tucson, Arizona. When pressed for a reason, Mr. Jimenez alternatively said he did not know what to say and that is what he was told to say.

Also, during the same statement, Mr. Jimenez said he was going to Detroit to visit his brother. He admitted this was a lie, he did not have a brother living in Detroit. At trial, when asked why he lied, he said that it was the only thing he could think of.

During examination in-chief, Mr. Jimenez testified that on the morning of August 27, 2021, he was too sick to work, was visiting the bathroom multiple times, could not eat until later, and did not leave his home until he went to do his laundry in the middle of the afternoon.

On cross-examination, receipts found in his vehicle showed he transferred money to Maria in Mexico at about 9:49 a.m., and got a car wash around 12:09 p.m. During re-examination, Mr. Jimenez did not deny these events happened but said he was unable to explain because he did not remember.

Inculpatory Statements

The police extracted text messages from the cell phones of Mr. Jimenez. Some are facially inculpatory.

On August 25, 2021, a few days before this trip began, Mr. Jimenez admitted he exchanged text messages with a female friend named Lis. She asked him if he dealt in guns, drugs, or people. Mr. Jimenez responded: drugs. On re-examination, Mr. Jimenez testified that he does not know why he gave that answer, but it is not true.

Mr. Jimenez admitted having a text message exchange on August 20, 2021, with a woman named Mary. In this exchange, Mr. Jimenez said he was going to see a guy to give him the drugs and the location, but that the guy did not want Mr. Jimenez to go yet. Mr. Jimenez said this was said but it was a joke and not true.

Mr. Jimenez admitted telling his brother Adolfo that he was going to give Adolfo his car because he was getting a new car. Mr. Jimenez testified he did not know why he said it, but it was not true.

Finally, Mr. Jimenez said he had a little savings. Found in the vehicle border was $2,300 in U.S. cash loose in the centre console. Mr. Jimenez testified that was from his work.

Version/Narrative

I do not find that the evidence of Mr. Jimenez of how he was involved in this drug trip is reasonable. I do not believe his version.

According to Mr. Jimenez, his trip to the laundromat was totally unplanned and because of his unexpected morning illness. Yet, immediately upon arriving at the laundromat he was confronted by two unknown men forcing him to make a drug trip. In only four to five minutes, he was loaded up with a significant quantity of cocaine hidden in a tire. I simply do not accept this evidence. So quickly trusting an unknown person seemingly and unexpectedly found at a laundromat with such a valuable product, makes no sense to me.

Confirmatory Evidence

To the extent that a credibility assessment demands a search for confirmatory evidence, such evidence need not directly confirm the account in every respect. The evidence should, however, be capable of restoring my faith in the evidence.

Here I find some confirmatory evidence. I believe Adolfo that he received threatening calls when Mr. Jimenez went missing.

This certainly confirms the violent nature of the people who traffic in such an illegal and valuable product. However, and importantly, it does not confirm the duress claim of Mr. Jimenez. They were looking for the person entrusted with the valuable product who had gone missing with the drugs. Neither Adolfo nor, apparently the drug organization, knew of the arrest of Mr. Jimenez and the seizure of the drugs at the Canadian border. As underscored by the evidence of Dr. Jones, the failure to deliver the drugs creates a drug debt which can be enforced by violence. Given the nature and quantity of problems with the evidence of Mr. Jimenez, as identified above, my overall faith in the evidence of Mr. Jimenez is not restored by this confirmation.

Finding

In sum, and taking all into account:

1. I reject the evidence of Mr. Jimenez as to why he made the drug trip ending at the Canadian border.

2. Mr. Jimenez willingly made this drug trip.

3. Mr. Jimenez was working for a drug organization.

4. There were no threats compelling Mr. Jimenez to make this drug trip.

From the evidence and the admissions, all of the essential elements of the crime alleged in Count 2 of the Indictment have been proven beyond a reasonable doubt. Indeed, in his trial evidence Mr. Jimenez admitted all the essential elements of the crime charged and advanced the defence of duress.

Excuse Defence

Having found that the crime of possession of cocaine for the purpose of trafficking, has been proven beyond a reasonable doubt, I now direct my attention to whether the defence of duress applies, and, if so, whether the Crown has disproven duress beyond a reasonable doubt. If applicable, this means that the Crown must satisfy me beyond a reasonable doubt that at least one essential element of duress has not been established.

Duress

The defence of duress is not available to Mr. Jimenez in this case. According to Mr. Jimenez, he committed this crime to escape claimed death threats from a Mexican drug cartel. This threat of death to himself, and to his family in Mexico, was made to compel Mr. Jimenez to transport a shipment of cocaine from Arizona to Michigan.

As reviewed above, the defence has six elements, all of which have to be established, at least to the point of raising a reasonable doubt, for the defence to prevail. The Crown has the burden to disprove the defence. For the Crown to defeat this defence, the Crown must show, beyond a reasonable doubt, that at least one of the duress elements has been shown not to exist.

For purposes of this analysis, I direct my attention to essential elements 1 and 6 - threats to compel the crime and participation in the conspiracy.

Considering all, I am satisfied beyond a reasonable doubt, that Mr. Jimenez was not threatened to transport this cocaine. Thus, duress does not excuse Mr. Jimenez from criminal liability for the crime committed.

Moreover, and again considering all, I am satisfied beyond a reasonable doubt that Mr. Jimenez was a knowing participant in the drug conspiracy. Thus, duress does not excuse Mr. Jimenez from the criminal liability.

In my analysis, I found the evidence of Dr. Jones interesting but not particularly helpful in deciding the duress issues before me. In essence, he testified that forced transporters tend to be rare but they do happen. Mr. Jimenez claimed he was a forced transporter. That is a factual issue I had to decide.

W.D. Analysis

With regard to the evidence of Federico Jimenez-Martinez and the defence of duress:

1. I do not believe the evidence of Federico Jimenez-Martinez that he was forced to transport the cocaine because he and his family were threatened and that he was not a party to the drug conspiracy.

2. I am not left in a reasonable doubt on any of the elements of the defence of duress by the evidence of Federico Jimenez-Martinez.

3. After careful consideration of all of the evidence that I do accept, I am convinced beyond a reasonable doubt that at least two of the duress elements are not satisfied in this case - threats to compel the crime and non-participation in the drug conspiracy.

Conclusion

In sum, and for the foregoing reasons, I find Federico Jimenez-Martinez guilty as to Count 2 of the Indictment.

Electronic Certificate of Transcript

FORM 3 ELECTRONIC Certificate of Transcript (Subsection 5(2)) Evidence Act

I, Renee Kaplan, certify that this document is a true and accurate transcript of the recordings of R. v. Federico Jimenez-Martinez, in the Superior Court of Justice, held at WINDSOR, ON taken from Recordings CRTRM1_20230228_080329__10_MUNROEKI.dcr, as recorded, which has been authorized in Form 1.

April 18, 2023

Date Renee Kaplan, C.C.R./ACT Certified Court Reporter Authorized Court Transcriptionist 9137992131

This certification does not apply to the Ruling, which was judicially edited.