Her Majesty the Queen - v. -, 2013 SKPC 162

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 162 Date : October 9, 2013 File: 24399549 Location: Swift Current , Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Borislav Vucinovic and Bojan Jajalo Steven P. Dribnenki for the Crown Danny Markovitz for the Defence ____________________________________________________________________________ JUDGMENT L.A. MATSALLA , J _____________________________________________________________________________ [ 1 ] The accused persons are jointly charged that they did, at the location and on the day in question: - possess a controlled substance included in

Schedule II, to wit: cannabis marihuana , in an amount exceeding three kilograms, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act. Each of them elected to be tried by this Court. At the outset, it was agreed that the identity of the accused and the continuity of the exhibits were not in issue and, furthermore, the following facts were agreed upon:

a) that the police officer seized 39.7 kilograms (or 87.5 pounds) of cannabis marihuana ,

b) that the amount is consistent with an amount that could be possessed for the purpose of trafficking, and

c) that the arrest of the accused persons was lawful and that the defence took no issue with the search or seizure conducted by the police. The defence did not allege a breach of any of the rights of the accused under the Charter. On the date of trial, each of the accused entered a plea of guilty to a charge of failing to maintain a daily logbook contrary to the Commercial Vehicle Driver ’s Hours of Service Regulations .

The Evidence of the Crown [ 2 ] At about 5:00 p.m. a member of the R.C.M.P., who had experience in drug investigations and who had conducted numerous stops of commercial vehicles, was on patrol on Highway #1 west of Swift Current when he observed a tractor/trailer unit eastbound. He decided to stop the vehicle to, among other things, check the logbook of the driver of the truck. The driver pulled over to the side of the road without incident. [ 3 ] Corporal Halbauer noted that there was a lock in place that secured the two doors at the back of the trailer.

He approached the driver’s side of the tractor unit where he saw Mr. Vucinovic behind the wheel and Mr. Jajalo in the sleeper compartment located behind the driver and passenger seats. He requested the driver’s licence and registration for the vehicle from the driver and the logbooks from each of the occupants. While Mr. Jajalo produced his book, Mr. Vucinovic could not do so because he had left his logbook at a truck stop. It was apparent that the accused were en route from British Columbia to Ontario after having picked up their load at 8:00 p.m. on the previous day.

They denied placing the lock on the trailer or having the key to the lock although Mr. Vucinovic produced a red lock and a key that, he said, he had obtained when he had picked up the trailer. According to the officer, Mr. Vucinovic seemed nervous and he moved about in his seat. The officer thought it unusual that Mr. Jajalo had opened and closed his eyes while located in the sleeping compartment. He believed that the individual was avoiding eye contact. [ 4 ] It became evident from Mr.

Jajalo’s logbook that the trailer had been picked up in Coquitlam, that the accused had been in Burnaby at 10:00 p.m. and then Chilliwack at 11:30 p.m., when Mr. Jajalo became the driver. No other notations were made, therefore the logbook was not current to the time that the vehicle was stopped. The officer further noted that it had taken the pair some 17 hours to drive to the point where they were stopped. The officer decided to arrest the accused for failing to keep and maintain a logbook and he called for assistance.

An examination of other available material showed that the tractor was registered to an import and export firm in Port Moody, B.C. and that, for insurance purposes, the principal operator was declared to be Mr. Vucinovic. Mr. Jajalo had not worked for 11 days before accompanying Mr. Vucinovic on this trip. [ 5 ] After arresting the two persons, the police officers searched the cab of the truck and the sleeper compartment in the rear of the cab where they found two logbooks under some mats along with various receipts.

At the back of the compartment they noticed a light fixture that did not have a light bulb but instead was stuffed with a paper towel. When the paper was removed, two silver keys fell out of the fixture and it was discovered that the keys opened the lock that had secured the back doors of the trailer. After opening the right- hand door, the officers discovered five garbage bags at the back of the truck near the rear doors that contained a large quantity of cannabis marihuana . There was no evidence as to the value of the drug but, given the quantity, it is fair to conclude, that the value is significant.

The rest of the trailer contained a load of cucumbers that was destined for Kingsville, Ontario.

Both accused were then placed under arrest for possession of an illegal substance for the purpose of trafficking. [ 6 ] As I understand it, the investigating officer thought that it had taken more time (about 17 hours) than it should have (about 14 hours) to cover the distance travelled especially since he understood that for financial reasons, it is in the best interests of a truck driver to make a trip as quickly as possible. [ 7 ] The unit was towed to the local detachment of the R.C.M.P. where four cell phones and two computers were seized.

The sum of $1,350.00 was also found in a storage compartment located above the steering wheel of the truck. No further evidence was tendered.

The Evidence of the Defence [ 8 ] Both accused persons testified. [ 9 ] Mr. Jajalo testified that he had been on vacation with his girlfriend before making the trip, that he had been driving for 10 years and that it usually took him 11 hours to go to Calgary and another 5-1/2 to 6 hours to travel to Swift Current. At least two stops (each taking about one half hour) would be necessary. It takes about 20 minutes to fuel the tractor. He went on to say that drivers do not load or unload a trailer and that if a trailer has a padlock in place or is sealed, drivers are not permitted to break the seal.

If access to a padlocked trailer is necessary and a key is not available, the lock is routinely cut off. [ 10 ] He had the ignition key and so on the day before the stop he had picked up the truck at nine o’clock at a location in Coquitlam. The bill of lading was in the truck. He then drove to another location to hook up the trailer. He did not put the padlock on the trailer nor did he notice that the lock was in place when he inspected the unit. [ 11 ] He then drove the tractor/trailer unit westbound from Coquitlam and he made stops at Kamloops and Canmore. Mr. Vucinovic then assumed driving duties and Mr.

Jajalo retired to the sleeper where he had some rest. The sleeper area was separated from the driving and passenger area by a curtain and it was about seven feet wide with a small closet, a refrigerator and a bunk for two drivers. This occasion was the second time that he had operated the same unit. He had noticed the paper towel in the light fixture on the previous occasion as well. He was awakened when the officer stopped the vehicle. Mr. Jajalo believed that the load consisted of cucumbers but he had no idea that there was cannabis marihuana in the trailer. [ 12 ] Mr.

Vucinovic told the Court that he did not notice the padlock and that he did not know that there was cannabis marihuana in the truck. He said that he had driven the truck at least 10 times prior to this occasion - on some occasions with Mr. Jajalo and so he was very familiar with it. He did notice the paper towel in the light fixture on this occasion. He went on to say that, based on his experience, it was impossible to travel the distance in question in 14 hours. After completing some entries, he said that he had left his logbook at a business on the Saskatchewan and Alberta border.

He had previous violations for failing to keep a logbook and he was nervous when he was stopped because he was concerned about the possibility of a fine and a driving suspension. The Issue [ 13 ] The sole issue in this case is whether the Crown has proven that the accused were in possession of the cannabis marihuana . The Law [ 14 ] Section 5(2) of the Controlled Drugs and Substances Act reads as follows:

(2) No person shall, for the purpose of trafficking, possess a substance included in

Schedule I, II, III or IV.

Section 2 of the legislation provides that the definition of “possession” is the same as that set out in section 4(3) of the Criminal Code . The Code defines “possession” as follows:

(3) For the purpose 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. Therefore, possession can be established if a person, even momentarily, manually handles an item, knows what it is and exercises somecontrol over it. But it is not necessary that a person manually handle an item because one can have constructive possession if one knowswhat the item is, concurs with another having physical possession of it and has some control over it. There must be an intent to controlthe object.

Mere indifference does not amount to possession. A person can be in possession of a substance jointly with another if each person knows of the item, consents to possession of the substance in the hands of another and has a measure of control over the item[1]. Inthis case, the Crown alleges that each of the accused persons were in constructive or joint possession of the cannabis marihuana that wasfound in the trailer. [15] The Supreme Court of Canada, in the leading case of R. v.

Pham[2], dismissed the appeal of the accused after a conviction for possession of cocaine for the purpose of trafficking for the reasons set out by the Ontario Court of Appeal[3]. That Court, at paragraph 15,said this about constructive and joint possession: 15 In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledgewhich extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. See R. v.Caldwell (1972), 1972 ALTASCAD 33 , 7 C.C.C. (2d) 285 (Alberta Supreme Court, Appellate Division); R. v.

Grey (1996), (ON CA), 28 O.R. (3d) 417 (C.A.). 16 In order to constitute joint possession pursuant to section 4(3)(

b) of the Code there must be knowledge, consent, and a measure ofcontrol on the part of the person deemed to be in possession. See R. v. Terrence, (SCC), [1983] 1 S.C.R. 357 (S.C.C.); R.v. Williams (1998), (ON CA), 40 O.R. (3d) 301 (C.A.); R. v. Barreau, (BC CA), 9 B.C.A.C. 290, 19W.A.C. 290 (B.C.C.A.) and Re: Chambers and the Queen (1985), (ON CA), 20 C.C.C. (3d) 440 (Ont. C.A.).

It is for the Crown to establish that the accused had possession of the item and the Court went on to comment about the evidencenecessary to establish possession, at paragraph 18: 18 The onus is on the Crown to prove beyond a reasonable doubt, all of the essential elements of the offence of possession. This canbe accomplished by direct evidence or may be inferred from circumstantial evidence.

In Re: Chambers and the Queen, supra at 448,Martin J.A. noted that the court may draw “appropriate inferences from evidence that a prohibited drug is found in a room under thecontrol of an accused and where there is also evidence from which an inference may properly be drawn that the accused was aware of thepresence of the drug.” To determine whether possession has been proven, the Court is required to consider all of the evidence and, in doing so, can drawinferences from the evidence that the prohibited drug was found at a location under the control of the accused.

It is critical that the inferences be drawn from objective facts rather than from conjecture or speculation[4]. Furthermore, in doing so, it is often the case thatindividual facts may not, in themselves, be especially probative, however all of the facts put into evidence may provide a sufficient basis for a conviction[5].

Put another way, the question to be resolved is whether the Court is satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts[6]. [16] Knowledge on the part of the accused can be shown if it can be said that the person should have known about the existence ofthe prohibited substance. A person may be said to be wilfully blind if it is evident that the accused’s suspicion was “aroused to the point

where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries”.

In such a case, the Supreme Court of Canada set the question to be answered as follows: Did the accused shut his eyes because he knew, or strongly suspected, that looking would fix him with knowledge? [7] [ 17 ] A factor to be considered by the Court when determining the knowledge that ought to be attributed to a person, can include whether the quantity and value of the drug seized is of such a nature as to make it inconceivable that the owner would entrust possession of the container that concealed the drug to someone else [8] .

Analysis [ 18 ] Having heard the evidence of both accused persons, I found that each of them gave their evidence in a straightforward fashion. I have no reason to disbelieve either one. I must conclude that their evidence could reasonably be true. [ 19 ] The evidence discloses that the tractor and trailer unit did not belong to either one of them. On this occasion they had control over the units for a relatively short period of time. Each of them had driven the tractor for the owner on previous occasions. The evidence discloses that they had acquired access after someone else had made it available for Mr.

Jajalo to pick up and then after someone else had loaded the trailer and secured it with a lock. There is no evidence that either of them were present when the trailer was loaded or when the lock was applied to secure the trailer. There is no evidence as to how the lock came to be placed on the rear doors of the trailer. [ 20 ] The Crown argues that Mr. Vucinovic was the principal operator and, it seems, for that reason he must have known about the presence of the drug however there is no evidence to indicate that he was to be the only operator and person solely responsible for the truck and its cargo.

It would seem to be common knowledge that more than one driver would be needed to cover the distance to the destination. The investigating officer found it unusual that the trailer door was sealed and that the drivers told him that they did not have a key to the padlock. Both accused testified that they are not to have access to the trailer if it is sealed and that it is unusual for locks to be cut off if a key is not available.

There is no evidence before me that the drivers were expected to examine or inspect the cargo. [ 21 ] It is urged upon the Court that since the accused had charge of the tractor (including the sleeper compartment), the tractor was essentially their residence and so they must be taken to have known about the presence of the key or they were wilfully blind as to the presence of the key. No authorities were referred to the Court in support of that proposition.

The control that a driver or lessee of a vehicle has over a vehicle is not the same as that of a person who operates a vehicle with the owner’s consent however, the latter can control access to the vehicle and exclude others from it [9] . In this case, it is evident that other persons must have had access to the tractor and trailer before the drivers took charge of them. Each had spent time in the sleeper compartment to rest but there was no evidence that they had contact with or would have been expected to have contact with the light fixture.

It is not the law that every person who drives or is a passenger in a vehicle that contains a concealed object must be said to have knowledge of the presence of the object [10] . The case before me is unlike the case of R. v. Johnson [11] in which an accused person was convicted of having constructive possession of a drug and a firearm in a vehicle.

In that case a vehicle belonging to the accused was stopped and the Court concluded that he knew that the passenger used the vehicle to conduct drug deals, that the passenger hid drugs in a recessed panel in the vehicle and that the passenger frequently carried a gun when conducting drug deals. In the circumstances the Court held that the accused was wilfully blind as to the presence of the drug and criminal liability was attributed to him. The Crown suggests that the case R. v. Bolla [12] is a similar case to the one before me.

In that case, Bolla attempted to actively conceal boxes containing drugs and he insisted on handling the boxes himself. He was offered a significant amount of money to deliver the boxes to a destination. Kyle J. concluded that the accused knew of the presence of the drug or that he was wilfully blind as to its presence. Similar inculpatory facts cannot be found in this case. [ 22 ] Much was made of the time that it took the accused persons to drive from British Columbia to Swift Current - a trip that the officer believed could be made in a shorter period of time.

I do not consider the time to be especially significant. Stops are necessary for breaks, to eat and to fuel the tractor. There was no apparent need in this case for the load to be transported with undue haste. In any event, the accused testified that they are paid by the mile. [ 23 ] Four cell phones and two computers were seized. I cannot say that either one of them had an ulterior motive for possessing the

items. The presence of cash in the amount of $1,350.00 is unusual however the Crown in cross-examination made little of the fact. Therewas no reason given as to why such a large amount of money was in the locker above the steering wheel although the need for someamount of money while travelling such a distance seems obvious. No other documents or other material of a suspicious nature wereseized. [24] The Crown argued that the nervousness of the driver and apparent reluctance of the passenger to look at the officer was anunusual response.

Given that one occupant of the cab (Vucinovic) had lost his logbook, the other (Jajalo) had not kept his logbook up todate and each had received sanctions in the past, I would be surprised if they would not have been nervous when they were stopped bythe officer. Mr. Jajalo had just awakened when the vehicle was stopped. [25] The Crown urges the Court to conclude that the defence must have known that there was cannabis marihuana in the truck, inpart, because no person would entrust such a valuable cargo to two persons who did not know of its presence.

The amount of cannabis issignificant and I suspect that the value of the same is also significant although there was no specific evidence on the point. The evidencethat was present in the cases relied upon by the Crown is not present in this case. In McIntosh, supra, it was determined that when thevehicle that the accused was driving was stopped, the police noted a strong odour of freshly burnt marihuana in the vehicle. Mr.McIntosh was unemployed yet he had $4,000.00 in his possession. The vehicle was stopped at night in a high crime area.

Cocainevalued at $3,000.00 to $5,000.00 was found behind the glove box along with a loaded firearm and ammunition. He had provided falseidentification to the police. The Court in McLean, supra, noted that the accused owned his own vehicle and that there was a strong odourof air freshener that masked the aroma of raw cannabis. There were loose marihuana cigarettes in the vehicle. An unusual upholstery toolthat permitted access to a secret compartment containing cocaine was found on the floor of the vehicle.

The Ontario Court of Appeal inBryan, supra, considered a case in which the police found cocaine, marihuana, $775.00 in cash and multiple cell phones in the consoleand passenger side door compartment of the rental vehicle that the accused was driving. The cases are distinguishable from the casebefore me. [26] The Crown argues that each of the accused were wilfully blind as to the presence of the prohibited substance in the trailer.

Forthe reasons set out above, there is insufficient evidence for me to conclude that they knew or should have strongly suspected that therewas an illegal substance in the trailer and that they acted in deliberate ignorance. Conclusion [27] In light of the manner in which each of the accused came to take possession of the tractor and trailer, it is distinctly possible thatthe keys and the padlock were placed in the tractor and on the trailer before the accused persons took possession and that the cannabismarihuana was in the locked trailer when the accused picked it up.

I cannot logically conclude that the only rational inference to bedrawn from the evidence is that the accused had constructive possession of the cannabis marihuana in that each must have known of thepresence of the drug, that each exercised some control over it and that each consented to the possession of the drug with some otherperson. Similarly, as a result of my analysis set out above, I cannot infer that each of them had joint possession of the drug with the otheror with any other person.

In the end, the Crown has not proven the elements of the offence beyond a reasonable doubt and each of theaccused is acquitted. __________________________ L.A. Matsalla, J [1] R. v. Saikaley, 2013 ONSC 1854 , [2013] O.J. No. 1572 (Ont. S.C.J.) at para. 177. [2] [2006] S.C.J. No. 26.

[3] (ON CA), [2005] O.J. No. 5127. [4] R. v. Switucka, [2009] S.J. No. 429 at para. 42 referring to Caswell v. Powell Duffryn Associated Collieries Ltd., [1940] A.C. 152. [5] R. v. Truong, [2010] S.J. No. 192 (Sask. Q.B.) at para. 21. [6] R. v. Cooper, (SCC), [1978] 1 S.C.R. 860. [7] R. v. Briscoe, 2010 SCC 13 , [2010] 1 SCR 411 at para. 21. [8] R. v. McIntosh, [2003] O.J. No. 1267 at para. 45 - 46, R. v. McLean (2009), March 7, 2012 (unreported) Herauf J. (as hethen was)(Sask. Q.B.), R. v. Bryan, 2013 ONCA 97 , [2013] O.J. No. 673 (Ont. C.A.) para. 11. [9] McIntosh, supra at para. 62. [10] R. v.

Green and Rawlins (1993), 5 M.V.R. (3d) 280 (Ont C.A.) at 281. [11] (2013), O.J. No. 3674 (Ont. S.C.J.). [12] [2005] S.J. No. 213 (Sask Q.B.).