R v Singh, 2021 ABQB 243

Court of Queen’s Bench of Alberta Citation: R v Singh, 2021 ABQB 243 Date: 20210330 Docket: 181443144Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Navjot Singh and Gurjeet Ghotra Accused Corrected judgment: A corrigendum was issued on August 18, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Decision of the Honourable Mr. Justice R.A. Neufeld _______________________________________________________ I. Overview

[ 1 ] In the early morning hours of October 4, 2018, a minivan was stopped by Calgary police as it entered Calgary from the East. Four duffel bags were found inside the vehicle, containing large quantities of illegal drugs. This was comprised of approximately 66 kilograms of cocaine and 30 kilograms of methamphetamine, with a street value of $3.5 Million and $.45 Million respectively. [ 2 ] The driver, Gurjeet Ghotra and lone passenger Navjot Singh, were arrested. Police had been surveilling Mr.

Singh for weeks on suspicion of drug dealing, and had followed the minivan to Brooks where it met up with a semi-trailer at a dimly lit truck wash, received delivery of the duffel bags, and then returned to Calgary. [ 3 ] Later in the day of October 4, 2018, a search warrant was executed on Mr. Singh’s vehicle. He had left the vehicle (the “Infiniti”) in a parking lot in front of his barbershop the previous evening when Mr. Ghotra picked him up, after having been observed driving it throughout the day and on numerous occasions during the preceding weeks.

The Infiniti contained substantial quantities of cocaine, methamphetamine and cash, along with other accoutrements of drug dealing, such as baggies, a Blackberry, pepper spray, a digital scale, and slips of paper that appeared to document sales. Police also found ownership and insurance documents in Mr. Singh’s name, and three of his bank cards were also found inside the vehicle. [ 4 ] Mr. Singh and Mr. Ghotra are jointly charged with Possession for the Purpose of Trafficking in respect of the drugs found in the minivan, pursuant to s 5(2) of the Controlled Substances and Drugs Ac , SC 1996, c 19 [“ CDSA ”]. Mr.

Singh is charged individually with possession for the purpose of trafficking, and possession of cash proceeds of crime in respect of the drugs and money found in his Infiniti. The precise charges are as follows: 1. That they, on or about the 4 th day of October, 2018, at or near Calgary, Alberta, did unlawfully possess a controlled substance, to wit: cocaine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act . 2.

That they, on or about the 4 th day of October, 2018, at or near Calgary, Alberta, did unlawfully possess a controlled substance, to wit: methamphetamine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substance Act . And further that: Navjot Singh stands charged 3.

That he, on or about the 4 th day of October, 2018, at or near Calgary, Alberta, did unlawfully have in his possession property (or proceeds of property), to wit: currency of a value exceeding $5,000.00 knowing that all (or part) of the property was obtained (or derived directly or indirectly) as a result of the commission in Canada of an offence under section 5(1) of the Controlled Drugs and Substances Act , contrary to

section 355 (

a) of the Criminal Code of Canada . 4. That he, on or about the 4 th day of October, 2018, at or near Calgary, Alberta, did unlawfully possess a controlled substance, to wit: cocaine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drug and Substances Act . 5. That he, on or about the 4 th day of October, 2018, at or near Calgary, Alberta, did unlawfully possess a controlled substance, to wit: methamphetamine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drug and Substances Act . 6.

On or about the 4 th day of October, 2018, at or near Calgary, Alberta, did unlawfully possess a controlled substance, to wit: opium, contrary to section 4(1) of the Controlled Drugs and Substances Act . [ 5 ] Both Accused take the position that the Crown has failed to prove beyond a reasonable doubt that they were in possession of the drugs , as that term is defined in s. 4(3) of the Criminal Code . Mr. Ghotra testified to having no knowledge that the duffel bags contained drugs, having been told by Mr. Singh that the purpose of the trip to Brooks was to pick up electronics. Mr.

Singh argues that the Crown has failed to prove beyond a reasonable doubt that he had control of the duffel bags, or knowledge of their contents. He also argues that the Crown failed to prove beyond a reasonable doubt that the drugs and cash found in his Infiniti were in his possession. [ 6 ] The evidence satisfies me beyond a reasonable doubt that Mr. Singh was in possession of the drugs found in both the minivan and his Infiniti because he had the requisite control and knowledge of the unlawful drugs recovered from both vehicles. As for Mr. Ghotra, while I have suspicions that he knew more about Mr.

Singh’s reasons for organizing the trip to Brooks than he admitted to in testimony, I am left with a reasonable doubt as to whether he had actual knowledge of or was wilfully blind regarding the contents of the duffel bags. [ 7 ] Accordingly, I must convict Mr. Singh of the charges against him, and acquit Mr. Ghotra. [ 8 ] My reasons for reaching these conclusions follow. II.

Possession for the Purpose of Trafficking – Essential Elements [ 9 ] To be convicted of possession for the purpose of trafficking it is necessary for the Court to be satisfied beyond a reasonable doubt of the following: (1) the identity of the Accused ;

(2) that the Accused was in possession of the substances in question, either personally or jointly with another; (3) that the substances were controlled substances as defined in the CDSA; and (4) that possession was for the purpose of trafficking. [10] The first, third, and fourth element are not in dispute here. Identity of Mr. Ghotra and Mr. Singh as the driver and solepassenger was established in the testimony of Mr. Ghotra, as well as the arresting officers and was not contested in argument.

The partiesagreed and I find that the drugs found in the minivan were of a quantity that they would be for the purpose of trafficking, as were thedrugs found in the Infiniti (other than the opium, which could have been for personal use). It was also agreed that the drugs recoveredfrom both vehicles were cocaine and methamphetamine as defined in the CDSA as was the opium found in the Infiniti. [11] At issue is whether the Crown has proved beyond a reasonable doubt that the drugs found in the minivan were in thepossession of Mr. Singh and Mr.

Ghotra, and that the drugs found in the Infiniti were in the possession of Mr. Singh. [12] Section 4(3) of the Criminal Code defines possession as follows: Possession

(3) For the purposes of this Act, (

a) a person has anything in possession when he has it in his personal possession or knowingly (

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person;and (

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall bedeemed to be in the custody and possession of each and all of them. [13] The seminal decision of R v Beaver, (SCC), 1957 SCJ No 32 (QL), [1957] SCR 531 confirmed that mens reais essential for conviction on a drug offence. Accordingly, the trial judge was found to have erred in instructing the jury that the accusedcould be convicted of possession of diacetylmorphine in the absence of knowledge that the substance in question was a drug.

The Courtapproved the following statement of the law, from R v Hess, (BC CA), [1948] BCJ No 65 (QL), [1949] 1 WWR 577 at579 (BCCA): To constitute “possession” within the meaning of the criminal law, it is my judgment, that where as here there is manual handling of athing, it must be co-existent with knowledge of what the thing is and both these elements must be co-existent with some act of control(outside public duty). [14] In the more recent decision of R v York, 2005 BCCA 74, the British Columbia Court of Appeal summarized the requirementsmore succinctly.

At para 10, the Court said that to prove possession the Crown must establish: (1) manual or physical handling of the object; (2) knowledge; and (3) control. [15] Knowledge can be actual or can consist of willful blindness –something that can be found when: it can almost be said that the accused actually knew, he suspected the fact, realized its probability but he refrained from obtaining finalconfirmation because he wanted in the event to be able to deny knowledge” Glanville Williams, Criminal Law: The General Part, 2nd ed (London: Stevens & Sons, 1961) at 159 as cited by MacFarlane et al, Drug Offences in Canada 4th ed.(Toronto: Canada Law Books,2015 (Vol 1) at 4-21. [16] In either case proof of knowledge (or lack thereof) can be found in direct evidence or, more commonly, circumstantialevidence.

Control need not be absolute. It is sufficient that the Accused be shown to have exercised a measure of control over thesubstance in question. Again, proof of control can be found in either direct or circumstantial evidence. III. Analysis A. First Issue—Was Mr. Singh in possession of the drugs found in the minivan? [17] The evidence of Mr. Ghotra was that at a truck wash lot in Brooks, he and Mr. Singh carried the duffel bags from a semi-trailer to the minivan, and placed them into the middle passenger area of the minivan. Sgt.

Marshall of the Calgary Police Service(“CPS”) observed the transfer of what she described as boxes or box-like objects into the open sliding door of the minivan and heard thesliding door being closed prior to the minivan departing. I will discuss this evidence in detail later in these reasons. It suffices to say thatfor now I am satisfied beyond a reasonable doubt that Mr. Singh and Mr. Ghotra both had contact with the duffel bags when they carried

them to the minivan. [18] I am also satisfied beyond a reasonable doubt that both of the Accused had some measure of control over the duffel bags whenthey were transported to Calgary. The bags were in plain view. They were accessible to and within the reach of both Mr. Singh and to alesser extent Mr. Ghotra (who was driving). Both were in a position to exercise a directing or restraining power over the bags.

This issufficient at law to constitute a measure of control irrespective of whether such control was actually exercised: R v Dipnarine, 2014ABCA 328 at para 20, citing R v Wu, 2010 BCCA 589 at para 20. [19] There was no direct evidence presented at trial regarding Mr. Singh’s knowledge of the contents of the duffel bags.

However,the circumstantial evidence before the Court on that issue is compelling. [20] Circumstantial evidence is evidence that tends to prove a factual matter by proving other events or circumstances from whichthe occurrence of the matter can be reasonably inferred: R v Cinous, 2002 SCC 29 at para 89.

Each piece of circumstantial evidence maywhen considered in context, contribute to the analysis. [21] The Crown need not disprove every possible explanation for the behavior or event in question, but in the end the evidencemust on the whole be sufficiently convincing that the standard of proof beyond a reasonable doubt has been met: R v Lifchus, (SCC), [1997] 3 SCR 320 at paras 30-31; R v Villaroman, 2016 SCC 33 at paras 28, 36, 50). [22] Circumstantial evidence can also be relied upon to show that an Accused had possession of drugs for the purpose oftrafficking, irrespective of whether the basis of possession is personal joint or constructive.

The common element is that there issufficient objective, reliable and admissible evidence upon which it can be found that the Accused had control and knowledge that hewas in possession of a prohibited drug. [23] Police surveillance of Mr. Singh began on August 14, 2018, when “Operation Infiniti” was launched. Over the ensuing sixweeks or so his Infiniti was followed by a six-person surveillance team, a number of whom testified at trial. The results of thosesurveillance efforts were summarized by Detective Glenn Barrett, who was assigned as Primary Investigator for the operation.

He statedthat members of his team reported observing Mr. Singh on nine occasions meeting with individuals in his car, by entering into theirvehicle, or through window-to-window conversations. Police did not observe actual exchanges of drugs or money but the pattern ofbehavior, according to Detective Barrett, was consistent with organized drug dealing. As of October 3, 2018, Mr. Singh was within daysof being arrested, but before taking that action Det Barrett wanted to have nighttime surveillance conducted as well.

I accept DetBarrett’s evidence regarding the state of the investigation as of October 3, 2018, and find that his

summary of previous surveillanceactivities is supported by and consistent with the evidence of surveillance team members who testified before me. [24] I do not rely on the evidence of prior drug dealing activities for any inferences regarding Mr. Singh’s character or propensityto commit a crime. However, I find this to be relevant circumstantial evidence that provides context as to the purpose of the trip toBrooks on the night of October 3, 2018, and Mr. Singh’s role in putting that trip into motion.

Judicial authorities support admission ofcontextual or narrative evidence for such a purpose: R v Granados-Arana, 2017 ONSC 2113 at paras 5-8; R v Lamirande, 2002 MBCA41 at paras 59-99. [25] The circumstances of the trip to Brooks are in themselves evidence of an unlawful purpose. To begin with, the co-accused leftfor Brooks (a drive of more than two hours from Calgary) at approximately 11:00 p.m. Mr. Singh and Mr.

Ghotra were seen with with anunknown person, in a downtown Calgary alley way before they started out for Brooks. [26] Approximately two hours later, they met up with a semi-trailer on a secondary highway near Brooks, where Mr. Singh spokebriefly to the driver, before both proceeded to a dimly lit truck wash lot in Brooks. After another conversation between Mr. Singh and thedriver the transfer of duffel bags from the semi-trailer to the minivan took place.

Common sense and human experience dictate that a tripof this nature, in these conditions, is one that is likely to have been taken in furtherance of an unlawful objective. [27] The next day, Mr. Singh’s Infiniti was searched. The circumstances of that search and its results will be discussed in moredetail later in these reasons as they are the subject of separate charges against Mr. Singh. The Infiniti search confirmed that the vehiclehad been used for drug dealing and was owned by Mr. Singh. After being parked by Mr. Singh when he was picked up by Mr.

Ghotra(presumably for the night), the Infiniti was found to contain substantial quantities of cocaine, methamphetamine, cash and tools of thedrug dealing business. [28] Once again, this provides circumstantial evidence bearing on the purpose of the trip to Brooks, and consequently, Mr. Singh’ssubjective knowledge of what the contents of the duffel bags were. I have considered this evidence in that context. [29] In argument before me, Mr. Singh took the position that the circumstantial evidence adduced by the Crown fell short ofproving beyond a reasonable doubt that Mr. Singh had possession of the duffel bags.

He argued that Mr. Ghotra’s evidence wasinconsistent with the evidence of Sargent Marshall that she saw the co-accused carry boxes or box-like objects to the minivan. I wasurged to carefully review photographs of the minivan interior, which show the duffel bags on the middle chairs of the minivan and on thefloor in front of those chairs, with cardboard boxes visible behind those chairs, in the rear portion of the minivan.

I was invited to inferfrom that evidence that the duffel bags might have been in the minivan from the outset, with cardboard boxes being picked up in Brooksand placed in the back portion of the vehicle. [30] As discussed earlier the Crown is not required to disprove every theoretically possible scenario consistent with innocencewhen relying on circumstantial evidence. The scenario presented by Mr. Singh is in my view highly improbable and speculative. [31] To begin with, I accept the evidence of Mr. Ghotra that the containers transferred into the minivan were the duffel bags foundon arrest. Mr.

Ghotra’s evidence on that point was clear and uncontroverted, and was not a subject of cross-examination. [32] I also disagree with the contention that Mr. Ghotra’s evidence was inconsistent with that of Sgt. Marshall. She testified toobserving the activity at the rendezvous from about 75 to 100 feet away while admitting under cross-examination to having given

different estimates of distance in previous proceedings and being a poor estimator of distance. She also testified that from that distance, and in the semi-darkness the individuals being watched were reduced to silhouettes. Given these limitations, I do not consider the description of these rectangular duffel bags as boxes or box-like objects to be surprising or contradictory to the evidence of Mr. Ghotra. [ 33 ] It is also noteworthy that Sgt. Marshall observed the open sliding side door of the minivan, and heard it being closed prior to the minivan’s departure from the truck wash.

This is consistent with containers being loaded into the middle area of the minivan which is where the duffel bags were found. [ 34 ] Finally, I find it implausible that anyone would take a midnight trip to Brooks to pick up cardboard boxes containing restaurant supplies or other lawful products, and in doing so bring several million dollars worth of illegal drugs along for the ride. It is even more implausible that bags containing drugs would be carried in plain view in the middle of the minivan, where they would need to be reached or climbed over in order to put cardboard boxes into the rear seat.

With respect, the alternate scenario posited to me makes no sense. [ 35 ] The evidence adduced by the Crown leads to only one rational conclusion. That is, Mr. Singh’s purpose in organizing the trip to Brooks was to pick up a delivery of cocaine and methamphetamine for resale in Calgary. The trip was undertaken in the middle of the night, involved two rendezvous with the driver of the semi-trailer carrying those drugs to whom only Mr. Singh spoke and concluded with an immediate return to Calgary, where Mr. Singh was actively engaged in dealing those substances. There can be no reasonable doubt that Mr.

Singh was in personal possession of the duffel bags in question. He had manual contact with the bags, he had a measure of control over them as they were transported toward Calgary, and he knew what he was transporting. I conclude that for him this was a business trip—nothing more. B. Second Issue—Was Mr. Singh in possession for the purpose of trafficking drugs and in possession of proceeds of crime in respect of the contents of the Infiniti? [ 36 ] Prior to being searched on October 4, 2018, Mr.

Singh’s Infiniti had been under surveillance for approximately six weeks. [ 37 ] The vehicle was found to contain the following:

(1) Vehicle registration in the name of Navjot Singh;

(2) Vehicle insurance in the name of Navjot Singh;

(3) Three bank cards in the name of Navjot Singh;

(4) A Blackberry telephone;

(5) Pepper spray;

(6) A bag of cash totalling $38,000;

(7) A digital scale;

(8) Baggies;

(9) A sheet of paper recording information as to the apparent sale of “files” to individuals identified by initials, as well as amounts owing; (10) 706 grams of cocaine; (11) 88 grams of methamphetamine and 8.1 grams of opium [ 38 ] The Infiniti was the subject of surveillance throughout the day of October 3, 2018. Mr. Singh was observed entering it that morning after leaving his home. Thereafter, it was observed and tracked at various locations. Mr. Singh was observed to be driving it by Constables Kozlik, Robertson and Hiebert as well as Sgt. Marshall at different times during the day.

All testified at trial. [ 39 ] At approximately 9:00 pm the Infiniti was parked by Mr. Singh at the west end of the strip mall in which Mr. Singh’s barbershop was located. The surveillance team did not see Mr. Singh enter Mr. Ghotra’s minivan at that time, but suspected that he had done so and commenced surveillance of the minivan. Shortly thereafter Mr. Singh was seen entering a downtown Shisha bar with Mr. Ghotra . He left the bar briefly to make a telephone call before returning inside. [ 40 ] Later, Mr. Singh and Mr.

Ghotra left the shisha bar, and spoke briefly with an unidentified man in an alleyway before getting into the minivan. Detective Barrett ordered that surveillance continue. The minivan was followed to Brooks and back to Calgary until Mr. Singh and Mr. Ghotra were stopped and arrested at approximately 4:00 a.m. the following morning. [ 41 ] A search warrant was obtained for the Infiniti later that day. It was executed at approximately 4:00 p.m.. The vehicle was where Mr. Singh had left it the night before, and was locked. A tow truck was ordered by police to obtain entry to the car. [ 42 ] Mr.

Singh argues that the Crown failed to prove beyond a reasonable doubt that he had possession of the contents of the Infiniti when it was searched on October 4, 2018. He says that there was a “major loss of continuity” over the vehicle because it was not watched by police on the night of October 3/4 and during the day of October 4.

[ 43 ] In order to secure a conviction on these charges, the Crown must prove beyond a reasonable doubt that the essential elements of possession for the purpose of trafficking are present. I must be satisfied that Mr. Singh had manual contact with the drugs in question, a measure of control over them and knowledge that they were unlawful substances. [ 44 ] Given the surveillance of Mr. Singh during the day of October 3, and the weeks preceding, I am satisfied that the Infiniti was the vehicle he used on a day-to-day basis, and that his activities during that time period included dealing in illegal drugs.

I am also satisfied, for reasons explained earlier, that the purpose of his trip to Brooks was to pick up a delivery of cocaine and methamphetamine –both of which substances were found in the Infiniti when searched on October 4, 2018. The contents of the vehicle (aside from the illegal drugs themselves) are also strong evidence of an active drug dealing operation. From that it can be reasonably inferred that the drugs found in the Infiniti had in the past been handled by Mr.

Singh; were under his control; and that he knew exactly what they were. [ 45 ] The question that arises is whether the loss of continuity of the Infiniti is such that there is a reasonable doubt as to whether, from the time he parked the Infiniti on the evening of October 3 until the time it was searched on the afternoon of October 4, Mr. Singh maintained possession of the Infiniti and its contents. [ 46 ] Is it reasonably possible, for example, that someone else may have driven the Infiniti or entered into it –depositing or leaving in place drugs, cash, and the tools of the drug trade as they went? Mr.

Singh argues that it is. His counsel went so far as to argue that if he was a drug dealer and left drugs and a bag of cash in his car overnight, he must be the worst drug dealer in the business. [ 47 ] I make no comment as to Mr. Singh’s business skills, but do note that there seems to be a simple explanation for this conduct: Mr.

Singh expected to be back within hours and before daylight, and was much more concerned with taking delivery of 100 kilograms of cocaine and methamphetamine than protecting the contents of his Infiniti. [ 48 ] I agree with the Crown that the idea that someone may have entered the vehicle and put drugs and cash into it overnight is fanciful and speculative. The vehicle remained parked at the same place that Mr. Singh left it. The vehicle remained locked the next day and showed no sign of having been forcibly entered.

Police had to summon a tow truck to gain access to it. [ 49 ] I am satisfied beyond a reasonable doubt that the drugs and cash (which was clearly the proceeds of crime given the other contents of the vehicle) were in Mr. Singh’s possession on the evening of October 3, 2018 and remained so until the vehicle was unlocked, opened and searched the next day. C. Third Issue—Was Mr. Ghotra in possession of drugs found in the minivan? [ 50 ] Counsel for Mr. Ghotra conceded in argument that certain elements required for a finding of possession on his part were present. He acknowledged that Mr.

Ghotra had manually handled the duffel bags when they were transferred to the minivan and that there was a measure of control over the bags. The bags were in plain view and within reach of both Mr. Ghotra and Mr. Singh during the trip back to Calgary. It was also conceded that the quantity of drugs was such that they were possessed (by someone) for the purpose of trafficking. [ 51 ] Mr.

Ghotra argues, however, that the Crown has failed to prove beyond a reasonable doubt that he had the subjective knowledge that the duffel bags contained illegal drugs that is required to prove possession – on either a joint or personal basis. [ 52 ] Mr. Ghotra chose to testify at trial. Some of his evidence has been discussed earlier, but for the purpose of this portion of my decision it is necessary to revisit and provide a more detailed description of that evidence in order to properly assess Mr. Ghotra’s credibility. [ 53 ] At the time of his arrest Mr. Ghotra was 23 years old.

He worked at his family’s restaurant and lived with eleven other family members in a multi-generational household. He met Mr. Singh through the restaurant, where Mr. Singh was a regular customer, and also saw him at cultural or entertainment events. He considered Mr. Singh to be an acquaintance, a fellow member of the close-knit Sikh community and a businessman who owned a barbershop and sometimes promoted concerts. On one occasion they attended a hockey game together, but they were not close friends. [ 54 ] Mr. Ghotra testified that on October 3, 2018, Mr. Singh asked if he could use Mr. Ghotra’s minivan. Mr.

Singh told him that he needed to go out of town, to get some electronics or computer stuff. This made sense to Mr. Ghotra given Mr. Singh’s activity as a concert promoter. Mr. Ghotra was not prepared to lend his family’s van out but was willing to help out a customer and fellow member of the Sikh community by driving Mr. Singh to do the pick-up. They agreed to meet at Mr. Singh’s barbershop, after Mr. Ghotra’s work shift was over. [ 55 ] As agreed Mr. Ghotra went to the barbershop. He parked in front of a convenience store at the strip mall and picked up Mr. Singh. They went to a downtown shisha bar.

They then left and from there Mr. Singh directed him to head east to Brooks. [ 56 ] According to Mr. Ghotra, there was no further discussion enroute regarding the purpose of the trip. Near Brooks he was told to turn onto a secondary highway. They saw a semi-trailer truck there and slowed down for Mr. Singh to have a brief window-to-window discussion with its driver. They then followed the semi-trailer to a truck wash in Brooks. [ 57 ] At the truck wash, the vehicles were parked side-by-side. Mr. Singh had a conversation with the semi-trailer driver. Mr.

Ghotra testified that he did not hear what was said and paid no attention. The truck driver then went to the back of the trailer, opened its doors, and brought out the duffel bags, one-by-one. According to Mr. Ghotra both he and Mr. Singh took

part in carrying the bags to the minivan and loading them into the vehicle. [ 58 ] After stopping for gas in Brooks (paid for by Mr. Singh), they headed back to Calgary where they were stopped and placed under arrest. Mr. Ghotra testified that throughout the trip he continued to believe that the duffel bags contained electronics.

[59] Mr. Ghotra was vigorously cross-examined by the Crown regarding his knowledge of the purpose of the trip, and the contentsof the duffel bags. He insisted that he did not think it out of the ordinary to be asked to take a drive to Brooks, in the middle of the nightto pick up electronics. He said that he was not concerned because members of the Sikh community help each other, and Mr. Singh was agood customer. He denied having any knowledge of the fact that the bags contained drugs, or having any reason to believe that they did. [60] Mr. Singh argues that Mr.

Ghotra’s evidence should be given no weight due to its self-serving nature. As discussed earlier healso takes the position that Mr. Ghotra’s evidence regarding the transfer of duffel bags to the minivan is inconsistent with Sgt. Marshall’sevidence that she saw boxes being moved from the semi-trailer to the minivan. [61] The Crown does not take issue with the bulk of Mr. Ghotra’s evidence, including his evidence of good character, hisdescription of events on the night of October 3 and 4, and the role played by Mr. Singh. It says however that the circumstantial evidencerefutes Mr.

Ghotra’s denial of knowledge as to the contents of the duffel bags, and shows beyond a reasonable doubt that Mr. Ghotraknew, or was wilfully blind to the fact that the bags contained drugs. The Crown therefore urges me to reject this part of Mr. Ghotra’stestimony. [62] Because Mr. Ghotra testified, I am required to apply the analytical framework set out in R v W(D), (SCC),[1991] 1 SCR 742 in assessing his liability:

(1) If I believe his testimony, I must acquit;

(2) Even if I do not believe his testimony, if it raises a reasonable doubt as to his guilt, I must acquit;

(3) If Mr. Ghotra’s evidence does not give rise to a reasonable doubt, I must determine whether based on the evidence that I do accept, Iam satisfied of his guilt beyond a reasonable doubt, in which case I must convict him. [63] I am also mindful of the clarifications provided in R v Ryon, 2019 ABCA 36 and R v Achuil, 2019 ABCA 299. [64] In assessing the credibility of Mr. Ghotra’s testimony, I have considered among other things, its internal and externalconsistency, Mr.

Ghotra’s response to vigorous cross-examination by the Crown, and the overall likelihood (or plausibility) of eventsunfolding as testified. [65] Mr. Ghotra’s testimony in chief and under cross-examination was delivered in a measured and thoughtful manner, despite thestressful environment of a trial on such serious charges. He was careful in his description of the events on the night in question. He wasnot prone to embellishment as to the nature of his relationship (or lack thereof) with Mr. Singh; nor did he display animus toward his co-Accused. There were no material inconsistencies in his evidence. [66] Mr.

Ghotra’s evidence regarding his activities and movements on October 3 and 4 of 2018 was consistent with the evidencegiven by members of the police surveillance team. It is possible that such consistency was affected or even driven by a desire to bolsterthe credibility and reliability of Mr. Ghotra’s evidence by aligning it with evidence already received by the Court on matters not materialto Mr. Ghotra’s defence. It was nonetheless externally consistent. [67] As discussed earlier, Mr. Singh argues that there was a major external inconsistency in Mr. Ghotra’s evidence: whereas Mr.Ghotra testified that he and Mr.

Singh moved black duffel bags from the semi-trailer to the minivan, Sgt. Marshall testified that she sawthem carrying boxes or box-type objects (the term she used at the preliminary inquiry, as she confirmed under cross-examination). [68] I do not view this variation to constitute a material inconsistency, for reasons discussed earlier. First, there is no reason toconclude that at a distance of 75 to 100 feet a black, rectangular duffel bag observed in semi-darkness would not resemble a box or box-like container or object. Second, the duffel bags were found in the middle

section of the minivan, having being loaded through the sidesliding door which Sgt. Marshall heard being closed immediately before the minivan left the truck wash lot.

Third, if it is somewhatimplausible that the co-accused would take a midnight trip to Brooks to pick up boxes of electronics, produce or the like from a semi-trailer it is even more implausible that they would take some $3.5 million worth of cocaine and methamphetamine along for the ridewhile running such an errand. [69] Accordingly, to the extent that there is an inconsistency in the description of the containers moved from the semi-trailer to theminivan, I find that such inconsistency is simply the product of the relatively poor vantage point from which Sgt.

Marshall observed thetransfer, as compared to that of Mr. Ghotra, who was a participant. This has no adverse effect on Mr. Ghotra’s credibility. [70] I turn then to the plausibility of Mr. Ghotra’s denial of knowledge as to the contents of the duffel bags. [71] I agree with the Crown that the circumstances of the trip to Brooks are not consistent with its purpose being an innocent pickup of electronics. The journey was undertaken in the dark of night, and included two rendezvous with a semi-trailer driver—one on asecondary highway and another in a semi-lit truck wash lot.

The containers transferred into the mini-van were not boxes bearingelectronics brand names or similar markings, but black duffel bags. There was, according to Mr. Ghotra no discussion of the purpose ofthe trip enroute, including the specific equipment to be picked up or the savings achieved. I find this somewhat surprising given theobvious inconvenience of a trip to Brooks in these circumstances. [72] For this reason, while the evidence of Mr.

Ghotra was otherwise credible and accepted by me, I do not entirely believe hisdisavowal of any knowledge of the trip’s purpose, and I suspect that he may have known more about this than he let on, or may at leasthave had more reason to question Mr. Singh as to exactly what was going on and what he was getting into by doing Mr. Singh a favor.His evidence does not therefore, form the basis of acquittal as per the first step in R v W(D). [73] It does however, leave me with a reasonable doubt.

Common sense and experience tell us that in a situation such as this Mr.Ghotra knew or ought to have known that something was wrong and something unlawful was going on. Common sense and experiencealso tell us however that people are sometimes gullible, naïve and too eager to please. In the circumstances of this case, Mr. Ghotra may

well have fallen into this category. [ 74 ] Mr. Ghotra has no history of involvement in illegal activities; he was not at any point a target, nor was he observed, during the six weeks or so of surveillance of Mr. Singh; and as readily admitted by Detective Barrett (the principal investigator under Operation Infiniti), he was not a subject of post-arrest search warrant applications or investigations. Although he was present during a meeting involving Mr.

Singh and an unknown man in an alley behind the shisha bar before the pair left for Brooks, he was not part of later discussions with the driver of the semi-trailer. [ 75 ] Accordingly, I am left with a reasonable doubt as to whether Mr. Ghotra had actual knowledge that the duffel bags contained drugs, and also as to whether his suspicion was aroused to the point where he saw the need for further inquiries but chose not to make them for fear of what he would be told—the touchstone for liability based on wilful blindness: R v Burnett, 2018 ONCA 790 , at para 142 .

Therefore, an essential element of possession - whether personal or joint- has not been proven beyond a reasonable doubt. Mr. Ghotra must be acquitted. IV. Conclusion [ 76 ] In conclusion, I find that the Crown has proved beyond a reasonable doubt that Mr. Singh was in possession of drugs for the purpose of trafficking as charged in Counts 1, 2, 4, and 5 of the indictment and simple possession of opium as charged in Count 6. [ 77 ] Mr. Singh is also found guilty of possession of proceeds of crime exceeding $5000 as charged in Count 3. [ 78 ] Mr. Ghotra is found not guilty of all charges against him.

Heard on the 10 th day of March, 2021. Dated at the City of Calgary, Alberta this 30th day of March, 2021. R.A. Neufeld J.C.Q.B.A. Appearances: Ms. Krysia Przepiorka and Ms Shelley Moore for the Accused Navjot Singh Mr. Patrick Fagan Q.C. for the Accused Gurjeet Ghotra Mr. Scott Couper For the Crown _______________________________________________________

Corrigendum of the Decision of The Honourable Mr. Justice R.A. Neufeld _______________________________________________________ Corrected the name in the citation to: R v Singh