R. v. Dhesi Date:, 2011 BCPC 399

Citation: R. v. Dhesi Date: 20111006 2011 BCPC 0399 File No: 179141-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GURVINDER SINGH DHESI ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.P. HARRIS Counsel for the Crown: Federal Crown: K. Reid Counsel for the Defendant: M. Richards Place of Hearing: Surrey , B.C. Dates of Hearing: September 12, 13, 14, 19, 27, 2011 Date of Judgment: October 6, 2011 [ 1 ] THE COURT : The central issue in this case is, does the evidence prove beyond a reasonable doubt that the accused knowingly transported cocaine in a trailer that he was towing?

In these reasons I will set out the background facts, outline the law, and conclude with my decision. BACKGROUND : [ 2 ] On July 24th, 2009 a tractor-trailer being operated by the accused, Mr. Dhesi, entered Canada via the Pacific Highway border crossing. The tractor was fleet number B13 and the trailer was fleet number B216. As the trailer approached the primary inspection booth, Officer Stebbings directed the officer in the primary inspection booth, Officer Vanderegen, to refer the tractor-trailer to the Customs warehouse for a secondary inspection.

This referral was purely random. [ 3 ] While at the primary inspection booth the accused answered all of Officer Vanderegen's questions, including an acknowledgement that he had duty free liquor with him. Upon leaving the primary inspection booth, the accused drove his tractor-trailer into the compound to the Customs inspection warehouse. He reversed the tractor and trailer to bay 2, stopping just short of the bay door. He exited the tractor and walked to the rear of the trailer where he met Officer Baker.

Officer Baker gave the accused bolt cutters and instructed him to cut off the security seal that was on the right-rear door. The seal was cut off and given to Officer Baker who noted that it was CSA seal number 001901. With respect to the security seal, this is a security device that is placed through loops in the right-

rear of the trailer door latches. It is placed on the right-rear door because the doors are designed so that a person must open the right- rear door before the left door can be opened. As such, the only way to access the trailer is by first opening the right door which requires either damaging the security seal or bypassing it. [ 4 ] Once the seal had been removed, the accused was instructed to back the trailer up to the bay door and to wait in the driver's waiting area. Inside the waiting area the accused was met by Officer Baker.

The accused gave documents to Officer Baker who asked the accused a series of questions. From these questions the following was learned: That the accused would sleep in the cab of the truck when the trailer was being loaded; that the shipper placed the seal on the rear door; that the accused first saw the seal when he had just opened the door; and that the accused did not go onto the loading dock at CSA. [ 5 ] While Officer Baker was speaking with the accused, Border Services Agency personnel started examining the trailer. Officer Stebbings was the officer conducting this examination.

He testified that when he first arrived at the trailer, the first pallet he encountered, that is the pallet located at the rear of the trailer, that it was tipped inwards. He noted that the fourth pallet on the left side had some boxes on top that had been crushed inwards, and that there were dark scuff markings on top of these boxes. Despite the boxes being on top of a pallet, photographs confirm that there was sufficient space for a person to move over the top of boxes.

Exhibit 4, photo 15, shows the slight markings to the boxes and the damage. [ 6 ] Further inspection of the trailer revealed six brown cardboard boxes loaded on the sixth pallet on the left side of the trailer. These boxes were sealed with clear tape and they were on top of freight that was shrink-wrapped. Officer Stebbings opened one of the six boxes and found that it was full of packing chips. Buried in the packing chips and concealed therein were bricks of cocaine. The bricks were sealed in plastic with duct tape. When Officer Stebbings discovered the cocaine he notified Officer Baker.

Arrangements were then made for Officer Byhre to attend with his dog, Scotch. A search was conducted and Scotch’s behaviour indicated that cocaine was in the six boxes. [ 7 ] Once the cocaine was located, the pallets were systematically off-loaded and photographed. Exhibit 7 is Officer Stebbings' diagram detailing where the pallets were found in the trailer. It should be noted that the trailer also contained boxes that were scattered around pallets 18 and 16. [ 8 ] A search of the tractor was conducted and a Walmart receipt was found. The receipt was for the purchase of a cordless drill and two drill bits.

The purchase was made on July 21, 2009 which was during the period of time that the accused was in possession of the tractor. Also discovered were tools, including a seven-16th wrench. This wrench matched the size of the nut on the right trailer door. An instruction manual for a Black & Decker cordless drill and various nuts and bolts and gloves were also found, as was a longer wrench. [ 9 ] Significantly, one of the bolts found in the tractor, Exhibit 16, contained the following markings on the head: P3142. This marking was also noted to be on the bolt that was removed from the right trailer latch mechanism.

No such markings were on the bolt used on the left-side latch mechanism. The bolt that was found in the tractor was found in a Costco bag in the sleeping area of the tractor. Also in the Costco bag was, amongst other things, a telephone bill in the accused's name. [ 10 ] After searching the trailer, Officer Byhre inspected the latch mechanism on the rear of the trailer door. In doing so he noticed that the bolt used to secure the right handle was somewhat lighter in colour than the bolt affixed to the left door receiver. He noticed that the nut attached to the bolt was not a locking-type nut.

It was his experience that there is typically a lock nut on the bolt that is used to secure the door handle into its receiver. From the court's perspective, this makes sense. If there were not some type of locking nut, then any security seal or lock placed on the right rear of the trailer would be ineffective. [ 11 ] Further investigation by Officer Byhre revealed speckling or scratches to the area around where the nut on the right-rear door was located; that is, the backside of the door handle receiver. Officer Byhre testified about an experiment that he conducted on the trailer B216.

In this regard the test was done in April of 2010 and it was videotaped. The video was shown in court and entered as an exhibit. The video shows the ease and quickness with which a security seal that is placed on the right-rear door of trailer B216 can be bypassed. In this regard, the video shows Officer Byhre placing a security seal on the right-rear latching mechanism of the trailer. He then used a seven-16th wrench (same size of wrench as found in the tractor) to remove the nut on the back of the door handle.

Once this was done he removed the nut and bolt which allowed the handle to drop down and away from its receiver at the one end while the other end remained secured in the latch by the security seal. [ 12 ] Next, Officer Byhre used a wrench similar in length and style to the one found in the tractor. He placed the wrench into the receiver where the handle had originally been. He then used the wrench to generate sufficient leverage to operate the door latches. This enabled him to open the right-rear trailer door without removing or damaging the security seal.

He then reversed his steps, resulting in the trailer door being secured without the security seal having been damaged. [ 13 ] Finally, it was noticed that when Officer Byhre removed the nut that his wrench contacted the backside of the handle receiver. This is the location where Officer Byhre, on his original inspection of the trailer, had noticed speckling.

Further, it is an area that is usually protected, thus one would not expect to find marks such as those noted by Officer Byhre. [ 14 ] After having performed the experiment, Officer Byhre seized the nut and bolt that secured the right-rear handle to the receiver. This is Exhibit 27. When asked to compare Exhibit 27 to Exhibit 16, that is, the bolt seized from the sleeper of the tractor, Officer Byhre was of the view that there was no longer a colour difference between the two bolts. [ 15 ] As for the accused's connection to the tractor and trailer, the accused was a driver employed by Bugga Trucking Inc.

This company is partially owned by Mr. Mann. Mr. Mann testified that the company owns 12 trucks and it has a number of trailers. His role with the company was to dispatch drivers, find loads for drivers, and to deal with customers. Bugga Trucking Inc. provides services to a number of warehouses performing pick-ups and deliveries in 17 of the Western United States. [ 16 ] With respect to the accused, Mr. Mann testified that the accused had been dispatched to attend a CSA warehouse in Richmond, British Columbia and to pick up a trailer containing coffee beans.

He was then directed to deliver the trailer in the United States. Once

in the States, the accused was directed to the CSA warehouse where he was to pick up a loaded Bugga trailer and bring it to Canada. According to Mr. Mann, it was not uncommon for a trailer to be left at a CSA warehouse for a period of time. This would give CSA theopportunity, should they choose to do so, to take the trailer to other nearby warehouses so that CSA customers may load goods that theymay want trucked to Canada. The trailer would then be taken back to the CSA warehouse for final loading and sealing. [17] It was clear from Mr.

Mann's evidence that when a driver was at a CSA warehouse that the driver was not allowed onto theloading dock. He testified that when a trailer is loaded and ready to go, a numbered seal is placed on the rear latch of the trailer. Moreover, there are situations where a driver is not even present when a trailer that has been delivered to its destination is unloaded. Thepurpose of the numbered seal is twofold: First, it is to prevent unauthorized access into the trailer; second, it provides a means by whichunauthorized entry into a trailer may be detected.

Accordingly, if the security seal is broken upon a driver's arrival at a receivingwarehouse, the load is refused and the driver is required to answer questions. [18] Mr. Mann was questioned regarding trailer B216. He testified that the trailer was around four years old. When shown photos ofthe latch mechanism on the trailer doors he testified that the markings looked to have normal wear and tear. He testified that the bolts onthe rear doors, as shown in Exhibit 4, the photographs were different types, and in his view the proper ones are like rivets.

He did notput the bolts on the trailer, he did not instruct anyone to do this, and he did not know when it was done. Further, that numerous drivershave hauled trailer B216 and he acknowledged that the bolt combination on the rear latch could have been in place for years. [19] As for the tractor, Mr. Mann confirmed that various drivers drove the tractor in issue. He also confirmed that it was notuncommon for a variety of tools as well as nuts and bolts to be found in the tractor.

He explained that that these items are typically usedfor minor roadside repairs. [20] A comparison of the manifest, Exhibit 5, and the CBSA officer's notes show some discrepancy over the precise number of palletsthat were originally placed in the load versus what was removed. I do not place any significance to this difference because it is clearfrom the photos that there would be difficulty in knowing how CSA counted the pallets versus how the officers counted them.

Forexample, did one pallet on the floor of the trailer with two more pallets on top represent a count of three, or is it a count of one? [21] Further to the above, no fingerprints or DNA evidence was discovered; moreover, no one from CSA warehouse was ever calledas a witness. EXPERT EVIDENCE: [22] Sgt. Fossum testified as an expert witness for the Crown. As such, he was qualified to give opinion evidence on issues relatingto an addicted person's rate of cocaine consumption, distribution methods of cocaine, price of cocaine, packaging, and the importation ofcocaine. It was Sgt.

Fossum's opinion that the amount of cocaine in this case had a value in excess or around $2,448,000. He testifiedabout the three types of couriers; two types of couriers are those who know about the load, and the third type of courier is a blindcourier. Those couriers that know about the load are paid in amounts that accord with the level of guarantees that they are prepared tomake. [23] The blind courier is an individual who has no knowledge that there is contraband in their cargo. Sgt.

Fossum testified that ablind-courier situation can occur when the importer makes arrangements for cocaine to be picked up within a trailer in circumstances thatwould not alert the driver. The driver would then pick up the sealed trailer with the cocaine already inside the shipment. Sgt. Fossumagreed that blind-courier situations can exist where there is commonality between the origin of the contraband and the destination of thecontraband, [24] Sgt.

Fossum was given a hypothetical that included six unmarked boxes containing cocaine on the top of a load inside a trailer,that the boxes near the cocaine were slightly damaged with scuff marks, and finally, the trailer door having been tampered with so as tobypass the security seal. In such a scenario it was Sgt. Fossum's opinion that the hypothetical facts are more consistent with a courierwho has knowledge. THE LAW: [25] The presumption of innocence is the foundation of criminal law. It is a rule that protects the fundamental liberty and humandignity of any and every person charged with a criminal offence.

The presumption of innocence is essential in a society that iscommitted to fairness, and this is because of the grave social and personal consequences associated with the finding of criminalwrongdoing. The presumption of innocence is essential in a society committed to justice. (R. v. Oakes (SCC), 1986 24CCC (3d) 321 at para. 9) [26] A reflection of our collective commitment to this presumption of innocence is found in s. 11(

d) of the Canadian Charter ofRights and Freedoms. It states: Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and publichearing by an independent and impartial tribunal. The accused in this case has the presumption of innocence. [27] To rebut the presumption of innocence the Crown bears the onus of proving the guilt of an accused person beyond a reasonabledoubt. The standard of proof beyond a reasonable doubt is inextricably linked to the presumption of innocence and the two conceptsmust be presented together as a single unit.

The presumption of innocence is the golden thread of criminal justice, and proof beyond areasonable doubt is the silver one, and these two are forever intertwined in the fabric of criminal law. R. v. Lifchus, (SCC), [1997] 118 CCC (3d) 1 SCC. para. 13. [28] A reasonable doubt is not a far-fetched or frivolous doubt, it is a doubt based on reason and common sense, one that logicallyarises from the evidence or the lack of evidence. Proof beyond a reasonable doubt is something more than probable guilt; it is not

enough to believe that the accused is probably or likely guilty. It is not, however, absolute certainty as it is nearly impossible to proveanything to absolute certainty. R. v. Starr 2000 SCC 40 , 2000 147 CCC (3d) 449 S.C.C. [29] A component of the presumption of innocence is the accused does not have to testify. The accused does not have to presentevidence of proof or disprove anything. The Crown has the burden of proving the guilt of the accused. The silence of the accused mustnot be used against him or her. (R. v. Noble (SCC), 1997 1 S.C.R. 874).

A weak Crown case cannot be strengthenedby the failure of the accused to testify. There does, however, come a time when, in the words of Irving, J.A. in R. v. Jenkins (BC SC), 1908 14 CCC 221 at page 230: Circumstantial evidence, having enveloped a man in a strong and cogent network of inculpatory facts, that a man is bound to provide anexplanation or stand condemned. That time, however, is where the evidence standing alone would support a conclusion of guilt beyond areasonable doubt. Silence cannot be used to strengthen a case that otherwise falls short of proving guilt beyond a reasonable doubt.

Silence cannot be used to remove a reasonable doubt where there is a rational explanation which is consistent with innocence and whichmay raise a reasonable doubt. (R. v. Noble, supra, para. 87 and 89) [30] The instant case is a case of circumstantial evidence. This does not make the case against the accused weaker or stronger. At theend of the day I, as the trier of fact, must consider all evidence, direct or indirect, and determine if the evidence proves guilt beyond areasonable doubt.

In order to convict the accused on circumstantial evidence, I must be satisfied beyond a reasonable doubt that the onlyrational inference that can be drawn from the circumstantial evidence is that the accused is guilty. (R. v.

Griffin 2009 SCC 28 ,2009 2 S.C.R. 42) [31] If other inferences can be drawn from the evidence, I should not engage in a comparative exercise assessing the qualitativereasonableness of one inference against another when the mere existence of any rational, non-guilty inference is sufficient to raise areasonable doubt. [32] In order to determine if the Crown has proven the guilt of the accused beyond a reasonable doubt, all of the evidence must beexamined. It is an error when deliberating to think of standards of proof applying to individual items of evidence. (R. v.

Morin (SCC), 1988 44 CCC (3d) 193 S.C.C.) [33] Individual pieces of evidence are not to be weighed in isolation; rather, all of the evidence is to be taken together as a wholewhich must be considered. (R. v. G.L.J. 1997 BCJ No. 2994) Thus, the proper approach is to consider whether all of the evidencetaken together in its totality proves the accused's guilt or is inconsistent with any other rational conclusion. (R. v. Nguyen 2007 BCSC209 BCCA 29. Also at R. v.

Narwal 2009 BCCA 410) [34] Accordingly, I should not parse the circumstantial evidence and evaluate each item on a piecemeal basis without regard to thecumulative effect of the evidence as a whole. POSITION OF THE PARTIES: [35] The Crown argues that the only rational inference to be drawn from the evidence is that the accused knew that he was importingcocaine and that he did so for the benefit of others.

In this regard it is the Crown's theory that the accused, while en route to the CSAwarehouse, stopped and purchased a cordless drill, and upon leaving the CSA warehouse, used the drill to remove the tamper-resistantnut and rivet, replacing them with a nut and bolt. At some point thereafter he met with the supplier and that the accused opened the reartrailer doors by removing the nut and bolt, thus bypassing the security seal. Once access was gained to the inside of the trailer, theaccused or the supplier climbed on top of the load, placing the boxes of cocaine on top of pallet 11.

The doors were then closed and thelatch mechanism reassembled so as to avert suspicion and give the impression that the load had not been tampered with. [36] The defence argues that after one considers all of the evidence that a reasonable doubt exists as to whether or not the accusedknew about the cocaine within his cargo. It is argued that the fact that the security seal could be circumvented is evidence from whichan inference of knowledge may, and I emphasize the word "may" exist. However, according to defence, it falls short of proof beyond areasonable doubt when considered with the proven facts.

Further, that these other proven facts support a blind courier theory with thecocaine loading and unloading points being the CSA warehouses. [37] After reviewing all the evidence, I find it particularly significant the colour difference between the bolts on the left and righttrailer door mechanisms. It will be recalled Officer Byhre noticed that the bolt on the right trailer door appeared to be lighter in colour. He made this observation on July 29th, and this difference in colour is documented in Exhibit 4, photograph D2.

In April 2010, whenthe bolt was removed and seized for evidence which is now Exhibit 27, the bolt had changed colour and was similar in colour to the bolton the left door. This change over time suggests that the right-hand bolt was newly installed in and around July 24th, 2009 and that itscolour had changed over a period of time due to the exposure to the elements.

Or stated another way, the bolt was so new that it had noextensive exposure to the elements. [38] In reaching this conclusion, I am aware that the defence has made some suggestion that we do not know if the bolt removed onApril 2010 was the same bolt observed July 24th, 2009. In considering this issue I am satisfied that they are the same bolts. Mydecision is based on Officer Byhre's evidence, the photograph showing the bolt on July 24th, 2009, and the exhibit now, Exhibit 27.

Further, there is no logical reason why the bolts would be changed; why would anyone enter a CBSA compound for the purpose ofmaking this change? [39] I also find it significant that unique markings, P3142, appear not only on the bolt alleged to have been changed, Exhibit 27, butthe identical markings are also located on Exhibit 16 which is the bolt that was found in the sleeper within a Costco bag containingphone records in the accused's name. The bolts appear identical.

The location where Exhibit 16 was found was quite distinct from thelocation where other nuts and bolts were found as those were found in areas of general access without link to the accused. Exhibit 16 hasthe link of the phone records. [40] The finding of the Walmart receipt and instruction manual for the cordless drill is significant. The receipt shows that a drill and

drill bits were purchased when the accused was in the United States. The purchase was made on July 21, 2009, which is before the accused attended at the CSA warehouse. The significance of this evidence is born out by Officer Byhre's evidence in that he was of the view that the drill would be the best way to remove the rivet from the door mechanism.

The finding of the evidence relating to the drill and the absence of any other tool being found that would reasonably remove the rivet is significant. [ 41 ] Additionally, the speckling and scratches on the handle, when considered with all of the evidence, are consistent with the rivet and lock nut being removed when the door was in the closed position. This was obvious from the video. Had the rivet and lock nut been changed when the door was open, one would not expect to see the damage observed by Officer Byhre. THE BLIND COURIER : [ 42 ] Cross-examination of Sgt.

Fossum was in part focussed on the possibility of the accused being a blind courier, particularly so given that the origin and the point of destination had a connection in that they are both CSA warehouses. It is my view that this is not a rational inference that can be drawn from the evidence. I say this for a number of reasons. If the cocaine was added when the trailer was at a CSA warehouse it would not have been necessary to cause the damage to the boxes inside the trailer. This is because the cocaine would have been placed within the trailer before it was completely loaded.

The damage noted by Officer Stebbings suggests that someone crawled on top of various boxes in order to place the boxes of cocaine on pallet 11. [ 43 ] Next, the ability of a CSA warehouse employee to surreptitiously bring six large boxes into a warehouse and load them, as well as CSA warehouse employees being able to surreptitiously unload six large boxes and remove them from the Richmond warehouse, seems very unlikely.

Moreover, this would seem like an unlikely and significant risk that an importer would not be prepared to take, given the value of the cocaine being over two million dollars. [ 44 ] Next, if the cocaine was loaded at the warehouse there would be no need to change the bolt and tamper-resistant nut that are typically found on the rear of the trailer. This is because the cocaine would have been loaded before the security seal was in place and the cocaine would have been removed after the security seal had been properly removed.

As such, to alter the bolt and nut would have been unnecessary, with the potential of alerting observant officials. In essence, it would have unnecessarily placed two million dollars worth of cocaine at risk. CONCLUSION : [ 45 ] The following evidence is significant: The accused had care and control of the tractor and trailer. The cargo near to where the cocaine was found was damaged and scuffed, this suggesting the boxes were loaded after the cargo was in place. The cocaine boxes were on top of a pallet not shrink-wrapped.

Yes, there were other loose boxes within the cargo, but they were contained either by the walls of the trailer or other pallets. The different colour of the bolts on the rear of the trailer and how the right-rear trailer bolt changed colour over time, this suggesting the bolt was new in July of 2009. How the rivet and the locking nut had been changed on the door that had the security seal. The speckling and marks on the back of the door handle receiver. The ease and speed with which the bolt and nut could be removed and replaced, thus bypassing the security seal.

The Walmart receipt showing the purchase of a drill and drill bit, these being the very tools that could remove the rivet. The presence of the cordless drill manual, the finding of tools inside the tractor that match what was required to remove the nut and bolt, those being the seven-16th wrench, the longer wrench, and pliers. The finding of a bolt and nut inside the Costco bag with documents linking to the accused. It is especially significant that the bolt found was marked with P3142 which matched the letter and numbers on the bolt on the right rear of the trailer.

It also matched in length and circumference and type; that is to say, what was on the rear of the trailer was a carriage-type bolt and the one found next to the accused's documents was also a carriage-type bolt. Lastly, the value of the cocaine and Sgt.

Fossum's evidence. [ 46 ] After carefully considering all of the evidence, the submissions of counsel and the relevant authorities, I find that the totality of the evidence satisfies me beyond a reasonable doubt that the only rational conclusion is the accused knowingly transported the cocaine into Canada, and he did so in order to deliver it to unknown third parties. Accordingly, I find him guilty on Count 1 and Count 2. (REASONS FOR JUDGMENT CONCLUDED)