R. v. Dhillon Date:, 2016 BCPC 427

Citation: R. v. Dhillon Date: 20161031 2016 BCPC 427 File No: 204109-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. GURJINDER SINGH DHILLON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.I.S. SUTHERLAND Counsel for the Crown: L. Kilgore and K. Torvick Counsel for the Defendant: J. Stowe, R.P. Thirkell and V. Aldosky Place of Hearing: Surrey , B.C. Dates of Hearing: February 1-4, 2016; February 9-11, 2016; March 2, 2016; May 2, 3, 10-12, 2016; June 20-23, 2016; August 29, 2016

Date of Judgment: October 31, 2016 INTRODUCTION [1] The accused, Gurjinder Singh Dhillon, was a long haul truck driver. In June 2013, he worked for a trucking company based inSurrey, B.C. that provided him with a truck to use, and determined the locations where he would pick up and deliver cargo along theWest coast of the United States. [2] On June 24, 2013, the accused picked up cargo at three different warehouses in the Los Angeles area and made his way back toCanada.

The cargo was destined for delivery to a customer in Surrey, B.C. [3] At approximately 9:30 p.m. on June 26, 2013, the accused arrived at the Pacific Highway border crossing into Canada. After adiscussion with the Canada Border Services Agency officer at the Primary Inspection Line booth, he was referred for a secondaryinspection where the pallets of cargo he was transporting were unloaded. Among the pallets containing legitimate cargo were fivecardboard boxes containing 56 kilograms of cocaine. [4] As a result of the discovery, Mr.

Dhillon has been charged with unlawfully importing the cocaine into Canada and possessing itfor the purpose of trafficking, contrary to s. 6(1) and s. 5(2) respectively of the Controlled Drugs and Substances Act. [5] Whether the accused had knowledge of the cocaine is the only issue. Consequently, it is admitted by the accused that if hispossession of the cocaine is proven, the cocaine was imported into Canada and possessed for the purpose of trafficking. LAW Possession [6] Possession may be personal, constructive, or joint. [7] The definition of "possession" in s. 4(3) of the Criminal Code, R.S.C. 1985, c.

C-46, is incorporated into the Controlled Drugsand Substances Act, R.S.C. 1996, c.19, by virtue of s. 2(1) of that statute. Subsection 4(3) of the Code provides:

(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 anotherperson; 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 shallbe deemed to be in the custody and possession of each and all of them. [8] Knowledge of the existence and nature of the substance and some measure of control over it is required to establish any of theseforms of possession: see, for example; R. v. Fisher, 2005 BCCA 444, citing R. v. Hess (No.1), (BC CA), [1949] 1W.W.R. 577 (BCCA); R. v. Liu, 2011 BCSC 1269; R. v. Montgomery, 2007 BCSC 664 ; R v. Morelli, 2010 SCC 8 ,[2010] 1 S.C.R. 253. [9] Given that Mr.

Dhillon had physical control over the vehicle in which the cocaine was found, control has not been placed inissue. The issue before the court, rather, is whether the accused had knowledge of the existence of the cocaine in the vehicle. [10] As mentioned, there are two elements to the knowledge requirement for personal possession: “The accused must be aware thathe or she has physical custody of the thing in question, and must be aware as well of what that thing is.”: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253.

It follows that the question is whether the accused knew the cocaine was in the trailer, not whether heought to have known: R. v. Sault Ste Marie, (SCC), [1978] 2 S.C.R. 1299, at pp.1309-1310; R. v.Tyrell, 2014 ONCA617. Circumstantial Evidence [11] The Crown has the burden of establishing knowledge beyond a reasonable doubt. However, knowledge need not be proven bydirect evidence, but can be inferred from all of the circumstances: R. v. Fletcher, [2014] B.C.J. No.3298; R. v. Mayen, [2013] M.J.No.413. There is no direct evidence placing the cocaine in the hands of the accused.

The Crown seeks to prove his knowledge based oncircumstantial evidence. [12] The test to be applied when considering whether a case built on circumstantial evidence meets the criminal standard of proofbeyond reasonable doubt is that a trier of fact must be satisfied beyond a reasonable doubt that the guilt of the accused is the onlyreasonable inference to be drawn from the evidence and the absence of evidence, when assessed logically, and in light of humanexperience and common sense: R. v. Villaroman, 2016 SCC 33 , [2016] S.C.J. No. 33; R. v. Griffin, 2009 SCC 28 ,[2009] 2 S.C.R. 42; R. v.

Cooper (1977), (SCC), 34 C.C.C. (2d) 18 (S.C.C.). [13] When considering circumstantial evidence, logical inferences must be distinguished from speculation: Villaroman, supra; R. v.Griffin, supra. In considering reasonable inferences, I am mindful that there must be proven facts which logically give rise to the factssought to be inferred before an inference can be made: R. v. Clark, 2015 BCCA 488, at para. 45. Otherwise, impermissible speculation

to bridge evidentiary gaps takes place: R. v. Kang, 2009 BCSC 1826, at para. 76. Inferences consistent with innocence do not have toarise from proven facts, however. A reasonable inference other than guilt is not speculative because it arises from a lack of evidence:Villaroman; paras. 35-36. [14] In considering the inferences that can reasonably be drawn in this case, I also bear in mind the admonition by McEachern C.J.in R. v.

To, (1992), (BC CA), 16 B.C.A.C. 223 not to over intellectualize, but rather to bring a degree of realism to theanalysis of whether there are any other reasonable conclusions other than the guilt of the accused when reviewing the evidence: see alsoR. v. Bauer, 2003 BCCA 138. It follows then that the Crown need not negative every possible theory consistent with the innocence ofthe accused. Rather, only reasonable possibilities or theories presented by the evidence, or lack thereof, that are based on logic andhuman experience, need to be disproved.

It is this chain of reasoning that differentiates plausible theories from speculation: Villaroman,supra, paras. 37-38. [15] I also bear in mind that in determining whether the accused had knowledge of the cocaine in his trailer, it is important toconsider all of the evidence together: R. v. G.L.J., [1997] B.C.J. No. 2994 (B.C.C.A.), para. 29. Further, that one piece of evidence mayput a different complexion on another seemingly innocuous piece of evidence. [16] In

summary, the question is whether the circumstantial evidence, taken as a whole, supports the accused’s knowledge of thecocaine in his trailer as the only reasonable inference. Reasonable Doubt [17] It is worth mentioning that the ultimate conclusion I must reach is whether the Crown has proven the charges against theaccused beyond a reasonable doubt. In making this determination, I bear in mind that proof beyond a reasonable doubt is not proof to anabsolute certainty.

Further, that a reasonable doubt is exactly what the term implies – a doubt based on reason and common sense that islogically connected to the evidence or absence of evidence: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320. FACTUAL BACKGROUND [18] To understand the significance of the accused’s travels prior to the seizure, I will first outline the evidence discovered in theseizure, then evidence from his employer, Reef Trucking, followed by the accused’s travels prior to the seizure, other significantevidence, and lastly, the expert evidence. I.

The Seizure [19] At approximately 9:30 p.m. on Wednesday June 26, 2013, the accused, driving a large transport truck towing a trailer, enteredCanada from the United States of America at the Pacific Highway Commercial Border Crossing. He was the sole occupant of the truck. [20] He was questioned by Canada Border Services Officer (“BSO”) Phillips at the Primary Inspection Line booth.

BSO Phillipsreferred the accused for a secondary inspection to ensure the paperwork he had from his pick ups matched that provided by the customsbroker in the cargo pre-clearance process. [21] The secondary inspection took place in a Canada Border Services warehouse at the border crossing. The accused’s cargo wascontained on approximately 18 pallets that were unloaded from the trailer. Each pallet had numerous cardboard boxes containingvarious food products stacked in rows on top of one another.

The cargo was all headed to Horizonte Imports and Distributors, animporter and distributor of Latin food based in Surrey, B.C. [22] A number of the pallets came from Goya Foods of Industry California near Los Angeles. Two of the Goya pallets containedboxes of cocaine. These pallets were in the middle of the trailer with pallets in front and behind. The pallets containing boxes of cocainewere marked in paperwork by Goya Foods prior to loading as Pallets 3 and 4. [23] Pallet 4 contained approximately four rows of boxes of food items from Goya with multiple boxes in each row.

The four rowswere shrink wrapped in cellophane, as was a Goya Pallet Listing document, outlining the products and number of boxes on the pallet. On top of the four rows were five boxes that were loose, in that they were not shrink wrapped with the other boxes. Three of the boxeswere brown cardboard and two were white cardboard. Inside the three brown boxes was cocaine. [24] The three brown boxes had the Goya insignia printed on them with a product number and a yellow sticker describing theircontents.

Two of the boxes had a product code of “2662” with contents described as “yellow rice mix” and the other, a product code of“2660” described as “paella dinner kit.” These two products were listed in the Pallet Listing document shrink wrapped in the pallet. ThePallet Listing indicated that two boxes of each of these products was part of the pallet. [25] There is no evidence whether the boxes of cocaine (described on the box as legitimate product) were part of the composition ofthe pallet as created and listed, or additional to it.

For example, whether the two “yellow rice mix” boxes containing cocaine brought thetotal number of “yellow rice mix” boxes on the pallet to four or two (as noted in the Pallet Listing). [26] Pallet 3 contained eight rows of products that were secured with shrink wrap, except on top. The two Goya boxes containingcocaine were on top of the eighth row. One of the boxes had shrink wrap about ¼ of the way up the side.

The two boxes containingcocaine do not resemble any of the other boxes on the pallet, but one resembles the three Goya boxes containing cocaine on Pallet 4. [27] The Pallet Listing attached to Pallet 3 shows it contained three products, including three boxes of “La Lechonera Mojo Criollo”. One of the boxes of cocaine had marked on the box, “MOJO LECHONERA”, but a sticker attached read, “Mojo Criollo”, with a barcode underneath. This box does not match in appearance the other four boxes containing cocaine. Furthermore, it was taped shut in ahaphazard manner.

Like Pallet 4, there is no evidence whether this box was one of the three in the Pallet Listing or an additional one. [28] The other box containing cocaine on Pallet 3 was in a Goya box marked with product number “2660”. The Pallet Listing does

not show a product with that number to be part of the pallet. The Shipping Receipt from Goya for the whole shipment states two boxes of product 2660 were in the shipment. I note one of the boxes containing cocaine on Pallet 4 was for the same product. [ 29 ] There appears to be at least one other pallet where Goya boxes are loosely placed on top of the other boxes secured on the pallet by shrink wrap. These boxes did not contain contraband, nor did the two white boxes on top of Pallet 4. [ 30 ] In the end, five boxes of cocaine were discovered, distributed over two pallets.

Combined, the boxes contained 56 “bricks” of cocaine weighing approximately 56 kilograms. All boxes containing cocaine were taped shut with clear duct tape. They were all listed in the Pallet Listings, although one box of product 2660 that was to be on Pallet 4 was found on Pallet 3. Further, a comparison to see if the contents of the cargo matched the paperwork for the cargo was never completed. II. Reef Trucking [ 31 ] Reef Trucking Enterprises (“Reef Trucking”) is a long haul trucking company.

Three witnesses testified from Reef Trucking as to the accused’s employment, work habits, the company’s standard protocols, and dispatch practices. [ 32 ] The accused was hired by Reef Trucking as a long haul truck driver in October, 2012, about nine months before the trip in question. Reef Trucking provided him with a truck and trailer for his use.

He had exclusive use of the truck and trailer he was driving during the trip leading to the discovery of the cocaine. [ 33 ] In late January - early February 2013, he made a trip to Houston Texas and followed an off route path through the Los Angeles area, without permission, on his way back to Canada. Crown counsel argues that he did so to transport cocaine back to Canada. I will address this argument now. The accused was never charged, let alone convicted of doing so. He is presumed innocent of doing so, unless and until proven guilty.

There are no proven facts from which it can comfortably be inferred that he committed an offence on this occasion. This assertion by the Crown, on its own or in conjunction with the other evidence, is conjecture. [ 34 ] After this trip the accused asked to only drive California trips, as he had a young family at home. His wish was granted on the understanding that the California trips would only be every two weeks. In other words, he had a load to transport every two weeks. [ 35 ] Only Paul Gunderson, Dunko Grgas, and Sanja Rudan did dispatch for Reef Trucking.

Typically, Reef Trucking would receive an order from Horizonte that would specify what needed to be picked up and where. The accused would do the pick up. Because he had a regular travel route to the Los Angeles area, he would know the area he was travelling to, but the precise place of pick up would not be known until determined by Reef Trucking, based on orders received.

According to Sanja Rudan, driver’s often do not know where they will be delivering and picking up from, one week in advance and sometimes shorter notice than that. [ 36 ] According to Paul Gunderson, a former long term employee of Reef Trucking, Horizonte was a regular customer. If a driver arrived after Horizonte had closed, the driver was to take the truck and trailer to the fully fenced, gated, and locked Reef Trucking compound in Surrey. Reef Trucking employees and drivers knew where they could find a hidden key to open the gate.

Reef Trucking hours were variable, but typically there would be nobody there after 9:00 p.m. on a Wednesday. The trailer was to remain attached to the truck and Paul Gunderson or Dunko Grgas would deliver the load to Horizonte the next day. [ 37 ] Gunderson sometimes assisted in offloading the cargo at Horizonte if they needed help. If he saw anything unusual he would notify Horizonte. Mr. Gunderson identified the Goya box containing cocaine but marked “Mojo Criollo” as unusually sealed and testified that if he noticed it, he would have opened it to see if the contents had been tampered with.

If he found cocaine, he would have notified the police. He did not think any of the other boxes appeared tampered with. [ 38 ] If frozen goods were being picked up, as some of the Goya cargo was, then the frozen goods were to be picked up and loaded first followed by dry goods. [ 39 ] Mr. Gunderson and BSO Phillips testified about an incident where, according to Mr. Gunderson, he was used as what was referred to in the trial as a “blind courier”.

On the 4 th of May, 2002, he and a co-driver were crossing the Canadian border in a Reef truck when CBSA officers discovered $90,000.00 in undeclared currency contained in an envelope on a pallet among the cargo he was carrying. He testified that he was unaware of the money and understood his co-driver was also unaware. Neither were charged with an offence. Mr. Gunderson theorized that the money was surreptitiously placed amongst his cargo in the loading process. If one accepts Mr. Gunderson’s evidence, it, combined with the evidence of S/Sgt.

Murphy, establishes that blind couriers exist. [ 40 ] The accused’s log book from the trip at issue shows he logged 13¾ hours in the sleeper of the truck at Lost Hills California. According to Dunko Grgas, the president of Reef Trucking, this was odd because it was 3¾ hours more than required, which was inconsistent with the accused’s habit of not wasting any time on the road. However, Mr. Gunderson testified that caution must be taken when interpreting drivers log books, because it is common practice to “fudge” log books despite penalties for doing so.

Documents presented in evidence show the accused had his truck and trailer washed, that he attended a truck scale, and faxed Reef Trucking while in his sleeper at Lost Hills. III. The Accused’s Activities Prior to the Seizure [ 41 ] The accused dropped off cargo at two locations and picked up cargo at three others in the greater Los Angeles area on June 24, 2013, prior to arriving at the Pacific Highway Border Crossing on June 26, 2013. Drop Offs [ 42 ] On June 24, 2013 the accused dropped off a load of 14 pallets at Reliable Cold Storage at Anaheim California.

Mario Andrade, the owner/operator of Reliable Cold Storage, testified that he physically entered the trailer and off loaded pallets of refrigerated milk products. The next drop off was at Ocean Green Seafood in Vernon, California. One hundred cases of frozen tuna were unloaded from the accused’s trailer by the warehouse manager, Rudy Reyes Jr. Mr. Reyes testified that the driver (whom I find to be the accused),

entered the trailer, pulled out the cargo and Mr. Reyes off loaded it from there. There is no evidence that the cocaine was placed in the trailer during these off loads. Pick Ups

a) Goya Foods [ 43 ] The first place the accused picked up cargo was at Goya Foods, arriving at approximately 10:19 a.m. Approximately 10 pallets of cargo were picked up. [ 44 ] Two witnesses from Goya Foods testified. Alfredo De Leon, the Operations manager who oversees warehouse operations, and Alfredo Acuna, the shipper whom it is believed loaded the products onto the accused’s truck on June 24, 2013.

Their evidence leads to the following findings. [ 45 ] Horizonte picks up products from Goya’s warehouse, about one to two times per month. [ 46 ] The standard protocol for loading pallets into a truck is the shipper receives the paperwork for a load from a Goya employee at Goya’s “traffic desk”. He verifies the customer, products, and invoice numbers match, ensures the number of pallets match, and that there is no visible damage to the cargo. [ 47 ] The pallets are already shrink wrapped by the time the shipper starts loading. He does not do the shrink wrapping. According to Mr.

Acuna, he has seen pallets with loose boxes on top of the shrink wrapped pallet. As a general rule, there are about 100 boxes per pallet. [ 48 ] The shipper then loads the pallets into the trailer with a forklift according to where the driver wants them placed. When the cargo is loaded the driver is typically beside the truck watching to confirm no damage is done to the cargo and to advise how he wants the cargo arranged. This is normal, but it is not a Goya policy for the driver to watch.

There is no evidence of whether the accused watched this loading. [ 49 ] Once the loading is complete, the shipper gives a copy of the invoices to the driver who must sign every invoice and bill of lading to confirm they have received the products noted. The driver also certifies by signature on a “Short Form” bill of lading that the Goya products were as described in the paperwork and in proper condition for transporting. This protocol was followed June 24, 2013, as shown by the accused’s signature on the documents. [ 50 ] There is just one shipper and one receiver working at any given time.

The shipper loads the trucks, but sometimes the receiver may help. [ 51 ] The products ordinarily contained in the boxes that contained cocaine are produced and packaged out of State. Products 2660 and 2662 are packaged in New Jersey, U.S.A. Boxes of La Lechonera Mojo Crioll (as written in the Goya invoice) are packaged in Florida. [ 52 ] When examining the photos of the boxes containing cocaine, both Goya witnesses thought the boxes appeared tampered with compared with how Goya usually receives them and ships them out.

In particular, product 2660 and 2662 boxes come with the top flaps meeting each other and glued shut. The boxes containing the cocaine were taped closed and the flaps did not meet. Boxes of La Lechonera Mojo Criollo are always secured with a single strand of tape at the top and bottom, but on the box in question, the top flaps did not meet and more tape than normal was used. [ 53 ] Each pallet has a Pallet Listing attached to it that records what products are on the pallet. The Pallet Listings for the pallets containing boxes of cocaine were created by a Goya “night checker” at the warehouse named M. Verduzco.

The Pallet Listing for Pallet 4 shows it was created June 23, 2013 and printed at 8:05 p.m. The time and date the Pallet Listing was created for Pallet 3 was not in evidence. [ 54 ] The number “4” was written in black felt marker on one of the loose boxes containing cocaine on top of Pallet 4. According to Mr. Acuna, sometimes a number will be written on a box to show which pallet the box is to go on prior to being put on the pallet. Not all boxes in a pallet have a number written on it, only a few such as a loose box on top of a pallet.

The number would have been written by someone working the nightshift. [ 55 ] Mr. Acuna testified he will not open any boxes unless instructed to do so by a superior and confirmed that he has never been asked to open a box that was about to be shipped. Rather, the only time he has opened a box was earlier in the process prior to the shipment being palletized to ensure the contents were not damaged. In that case, Mr. Acuna said he would try to seal it up the way it came, glued or taped. He could not say whether other Goya employees would do the same. Mr.

De Leon testified that he has never asked an employee to open a box prior to it being placed on a pallet or shipped. Rather, if a box looks damaged, it gets sent to a repackaging centre outside of the Goya facility. [ 56 ] Neither M. Verduzco; the person who put together Pallets 3 or 4; or the person who wrote the number 4 on one of the boxes of cocaine, if different from M. Verduzco, testified at trial.

b) Best Mexican Foods [ 57 ] Four of the pallets of cargo destined for Horizonte Imports were picked up from Best Mexican Foods (“BMF”). BMF is a food distributor based in Vernon, California. The four pallets originated from MesoAmerica Foods, a food manufacturer based in Mexico and Guatemala. BMF received and held the MesoAmerica pallets as a favour to Horizonte Imports. According to Trinidad Casillas, the President and owner of BMF, BMF had been holding the MesoAmerica cargo for Horizonte for about four to five days prior to being picked up by the accused.

[ 58 ] Moises Herrera, is the warehouse manager and thus the person in charge of shipping and receiving at BMF. He testified about the normal cargo loading protocol in place in June 2013. Ordinarily he loads the pallets onto the truck with a forklift and then the driver arranges them in the trailer using a pallet jack. It is company policy not to enter the trailer unless the driver needs help using the pallet jack. Mr. Herrera testified that he loaded the four pallets, but could not recall whether he entered the trailer to assist in arranging the pallets.

c) Insa Foods [ 59 ] Insa Foods was the third place the accused picked up cargo on June 24, 2013. Insa wholesales food from Central America. It is based in Santa Fe Springs, California. Jose Bojorquez, the Owner and operator of Insa, and his uncle Jesus Bojorquez testified. They are the only two employees of Insa. [ 60 ] Their evidence establishes they were holding cargo from Fierro’s Distributor Food Service as a favour to their long time customer Horizonte. When they do this, they typically hold the cargo for approximately three days to a week until Horizonte arranges for a truck to pick it up.

The cargo picked up June 24, 2013 had an invoice from Fierro’s dated June 20, 2013. Horizonte picked up goods from their warehouse approximately every two months. [ 61 ] Trucks are loaded at Insa by forklift operated by one of the Bojorquez’s. According to Jesus Bojorquez, he does not go into the trailer unless the driver asks. [ 62 ] The cargo picked up June 24, 2013 was on four pallets. After loading the pallets the accused had the truck weighed at a weigh station. He returned to have a pallet removed as the truck was overweight.

The pallet was placed at the edge of the trailer by the accused and removed by Jesus Bojorquez with a forklift. The trailer was full of cargo when it left Insa. Horizonte Imports [ 63 ] Mr. Menendez, the President and owner of Horizonte Foods testified at trial. His evidence established the following. [ 64 ] Horizonte is an importer and wholesaler of food products from Latin America that has been in business for 25 years. They have worked with Goya for the past 22 years, BMF, the past four to five years, and Insa, the past 20 years. [ 65 ] According to Mr.

Menendez, all of the products picked up from Goya, BMF, and Insa were products he personally ordered for Horizonte. The legitimate products that were to be in the Goya boxes that ultimately contained cocaine were products he regularly ordered and sold. [ 66 ] Mr. Menendez contracted with Reef Trucking to pick up the products and deliver them to his warehouse in Surrey, B.C. Horizonte warehouse hours are 8:00 a.m. - 4:30 p.m. They will accept delivery of products during those hours. A truck arriving at the border after hours will have to deliver the products the next day.

Typically it would be Paul Gunderson or Dunko Grgas who would deliver the products the next day. [ 67 ] Mr. Menendez established the pick up order and conveyed it to Reef. The pick up at Goya was to take place first, because there were frozen goods involved. [ 68 ] When a shipment comes in, usually it is Mr. Menendes or his brother who receives it. Horizonte has two other employees who can off load cargo and sign for it. If they are busy, on occasion Gunderson or Grgas may help with the off load. The pallets are usually shrink wrapped on their sides but not on top.

Sometimes there are loose boxes on top, like the boxes containing cocaine were in this shipment. [ 69 ] Once the cargo is unloaded at Horizonte, the pallets are unwrapped, but the boxes of products remain sealed in the condition they arrived. No one at Horizonte opens the boxes. They are placed on a shelf at Horizonte until sold. Being wholesalers, they sell the products in bulk in the closed box. [ 70 ] The Goya boxes containing products numbered 2660 and 2662 usually come in boxes sealed with glue or tape, but not both.

The boxes containing the cocaine with these product numbers originally appear to have been glued and then taped. All of the boxes containing cocaine appear to have been tampered with except possibly two. [ 71 ] The Goya box with cocaine marked La Lechonera Mojo Criollo is the normal box for this product and it is usually taped closed. When shown a photo of the box in the condition it was discovered by CBSA, Mr. Menendez said he would have opened this box had he seen it, as it was not sealed properly and possibly damaged. He has never received damaged dry goods from Goya in the past. [ 72 ] Mr.

Menendez testified that they did not compare the cargo received with the paperwork showing what they had ordered, or do an inventory of what they received. He testified that he did not know whether the boxes of drugs were part of the order from Goya or added to it. IV. Other Evidence [ 73 ] Goya had the type of packing tape found on the boxes of cocaine at their warehouse. [ 74 ] The wrappings on the cocaine and the cardboard boxes with tape containing the cocaine were analyzed for forensic evidence.

Four fingerprint impressions were found on these items; however, none belonged to the accused. [ 75 ] Upon arrest, the accused was polite and cooperative with police and did not seem overly nervous. [ 76 ] There is no evidence that the cargo was locked at any time after loading.

[ 77 ] None of the Crown witnesses claimed to be involved in this or any other shipment of cocaine. V. Expert Evidence [ 78 ] S/Sgt. P.K. Murphy testified as an expert in the importation of cocaine into Canada and the trafficking and possession of cocaine in the Lower Mainland of British Columbia, including distribution routes, chains of distribution, means of transportation, methods of concealment, packaging, values, cost and profit margins, usage patterns and rates of consumption. [ 79 ] S/Sgt. Murphy testified that Columbia and its neighbouring South American countries are source countries of cocaine.

It is not indigenous to Canada, consequently, it has to be transported here. When transported by land to Canada, it typically moves from the source country to Mexico, the United States and then Canada. [ 80 ] Cocaine that ends up in Vancouver is typically transported up Highway I 5 which runs from Mexico to Vancouver. Along that route are “hub” cities – cities which by virtue of their geographical location are a hub for transportation. This makes them advantageous for staging cocaine transportation within or outside the country or district where the city is located.

Los Angeles and Vancouver are considered hub cities. [ 81 ] Cocaine leaves the source country typically in one kilogram wrapped “bricks.” Prices for a one kilogram brick increase as it moves further from the source country. A brick of cocaine in Columbia will be cheaper than in Los Angeles, which will be cheaper than in Vancouver. This is because of the incremental increase in labour and risk in transporting it over distances. According to S/Sgt.

Murphy, in 2013, the year the accused was charged, a kilogram brick of cocaine cost $2,000 - $2,500 in a source country, $20,000 - $28,000 in Los Angeles, and $27,000 - $50,000 in Vancouver. The price range depends on purity, risk, whether it is bought in bulk, and other factors. [ 82 ] S/Sgt. Murphy estimated that the approximately 56 kilograms of cocaine seized from the trailer the accused was driving would be worth $1.512 - $1.96 million if sold at the kilogram level in Vancouver.

At the ounce level it would be worth $2.37 million; and at the street, or gram level, it could be worth up to $4.48 million. [ 83 ] Given the size of the load here, S/Sgt. Murphy postulated that the cocaine could be from one importer, or a consortium of importers. [ 84 ] S/Sgt. Murphy testified that importing networks often have a division of roles. Those roles include supplier of the drugs, broker, importer, and what the Crown alleges the accused was, a courier who transports the drugs to or on behalf of the importer. [ 85 ] S/Sgt.

Murphy testified that couriers who know they are carrying cocaine are typically people who are part of the importation group, or are third parties recruited by the group, specifically to transport the drugs for payment, like a contractor. Characteristics of an acceptable courier are people who do not have previous drug convictions, and have an established and unblemished border crossing history and profile, among others. [ 86 ] S/Sgt. Murphy testified that it is possible for couriers not to have knowledge of the cocaine they are carrying. This courier is sometimes referred to as a “blind courier”.

The characteristics of an acceptable blind courier are the same as a courier with knowledge, with the addition that the blind courier will not likely discover the drugs. A truck driver with a full load, and with no particular reason to stop and examine the load before arriving at their destination, would be an example. [ 87 ] The advantages of an organization having a blind courier are: i. It provides the importers with insulation from detection if the load is discovered by law enforcement agencies. The courier cannot identify those responsible for the importation; ii.

It prevents the courier from intentionally disclosing the presence of the drugs because they don’t know they have them; and iii. The organization saves money by not having to pay the courier. [ 88 ] On the other hand, S/Sgt. Murphy testified that with a blind courier: i. The organization loses control over the actions of the courier. It leaves the organization susceptible to the courier’s schedule, the courier discovering the drugs and contacting the police, discarding them, or stealing them. The blind courier could also inadvertently draw police attention through carelessness or an unrelated transgression.

In any of these scenarios a valuable commodity is lost; ii. Loading and removing the drugs from the courier’s possession becomes cumbersome, as it is attempted without the courier’s assistance and knowledge. [ 89 ] S/Sgt. Murphy testified that loss of control over the actions of the blind courier can be minimized by choosing a blind courier with a regular pattern of travel. [ 90 ] Despite S/Sgt Murphy’s expert evidence, it is ultimately up to the court to draw the necessary inferences of what the accused knew or did not know.

ANALYSIS [ 91 ] No intercepted communications, surveillance evidence, or co-conspirator evidence was tendered at trial. It appears on the evidence that the cocaine in the accused’s cargo was unanticipated by the CBSA and police. Consequently, investigators likely worked backwards from the seizure to trace the accused’s alleged involvement. This is how the Crown’s case was presented.

[ 92 ] Much of the evidence of the accused’s movements during his trip to and from California was to establish the accused’s knowledge of the cocaine through a process of elimination. Witnesses were called who had access to the cargo in the accused’s truck. In essence, many witnesses represented a chain of access, and therefore, opportunity. These witnesses testified to the extent of their access and to confirm that they had nothing to do with the cocaine.

In the end, it is asserted that this evidence, combined with the rest, leaves just the accused having knowledge and opportunity to commit the crimes. [ 93 ] One link of the chain is missing, however. There is no evidence of how the pallets containing the cocaine were put together and who put them together. Were the Goya boxes containing the cocaine on the pallets when they were loaded onto the accused’s trailer at Goya, or were they subsequently added on?

If on the pallets, when they were loaded into the accused’s truck, then it is likely someone at Goya was at least responsible for the boxes being on the accused’s truck. [ 94 ] All five boxes containing the cocaine were Goya boxes. They were found on pallets that exclusively contained Goya products. The pallets would have been hard to access once cargo from other warehouses had been loaded into the trailer.

Given this evidence, combined with the evidence of the witnesses from the other warehouses, I am of the view that the cocaine was most likely loaded into the accused truck either at the Goya stop, or at least before the next stop at Best Mexican Foods. [ 95 ] Goya employees, beyond those who testified, had the opportunity to have the boxes of cocaine placed into the accused’s truck; for example, the person who put the pallets together, or the night checker who probably wrote the number 4 on one of the boxes of cocaine.

It makes the absence of evidence of how the pallets containing the cocaine were put together, who put them together, and the night checkers involvement with them more significant. Related to this point is the absence of an inventory being performed on the seized cargo. [ 96 ] As mentioned, no inventory was conducted by the CBSA or Horizonte Foods to determine whether the cargo, minus the boxes of seized cocaine, matched in product and quantity what Horizonte ordered.

The relevance of the absence of this evidence is that if Horizonte received everything they had ordered as reflected in the shipping documents, it suggests the boxes of cocaine were added to the legitimate cargo. If Horizonte was short the legitimate products that were to be in the boxes containing cocaine, the boxes of cocaine were included in the order and reflected in the paperwork when the pallets were put together for the Horizonte order. A third possibility is that boxes of legitimate cargo were emptied and replaced with the cocaine.

In the first and last scenario, it must be considered where this could have taken place. In the middle scenario, it suggests a Goya associate was involved. [ 97 ] One aspect of the evidence pointing away from a Goya employee being responsible, or the cocaine being placed among the Goya cargo at the Goya warehouse, is that the boxes containing the cocaine were sealed abnormally. According to Mr. De Leon and Mr. Acuna, this would have made them stand out at the Goya warehouse and risk being opened to check for damage, or sent to a repackaging facility.

I accept the evidence of this increased risk and have considered the Crown’s assertion that the only reasonable inference is that the cocaine was not loaded at Goya by a Goya employee. Indeed this evidence has led to anxious deliberation, as one would think a complicit Goya employee would ensure the boxes containing cocaine would not stand out in any way.

The Crown goes further to assert that the accused was the only person who could load it after the Goya stop. [ 98 ] Balanced against this inference is the absence of evidence, direct or circumstantial, that the accused ever handled the boxes other than that they were among the likely hundreds of boxes in his truck. There is no forensic evidence linking the accused to the cocaine, cocaine packaging, boxes, or tape on the boxes. There is no evidence the accused had access to empty Goya boxes to put the cocaine inside unless he dumped the legitimate cargo out of some to make room for the cocaine.

However, there is no evidence that happened. All boxes were taped shut with clear duct tape, but no clear duct tape was found in the accused truck or otherwise in his possession. There is no evidence he ever possessed clear duct tape to seal the boxes at the material time. [ 99 ] Once in the trailer, the accused had exclusive control and responsibility over the cargo loaded inside. As pointed out by the Crown, he certified with his signature on the Short Form bill of lading that the Goya products were as described in the paperwork and in proper condition for transporting.

Part of his responsibility, it is argued, was having knowledge of the contents of the boxes. Furthermore, it is argued, he had the opportunity to inspect the cargo. [ 100 ] For proper context to this argument it is important to bear in mind that the Goya cargo was approximately 10 pallets worth. No precise number was given, but according to Mr. Acuna, the general rule is 100 boxes per pallet. The accused was a long haul truck driver, not a food importer for Goya Foods.

While his signature may have certified the character of the products, it would be a stretch to infer that he inspected the individual boxes of cargo before signing the paperwork and that even if he had, he would have been able to properly identify what the products were. Experience shows that many people simply sign where told without paying heed to what exactly they are signing for. Finally, there is no evidence he did inspect the cargo other than his signature. [ 101 ] Perhaps the accused ought to have inspected the cargo.

But it was what the accused knew and did rather than what he ought to have known and done that is important. Further, one has to wonder what the effect would be of him having the pallets disassembled, opening all the boxes, inspecting the cargo, resealing the boxes in the condition they were in before opening them, re-palletizing the cargo and have it loaded onto the trailer. Based on the evidence, I cannot conclude this would be industry standard. [ 102 ] The significance of the accused stay at Lost Hills, California, as described in his logbook is difficult to measure.

Drivers log books are often inaccurate to some degree according to Paul Gunderson. For example, while his log book showed him to be in the sleeper of his truck at Lost Hills, receipts show he had his truck washed and weighed, and faxed Reef Trucking. [ 103 ] If the accused had not spent the extra time at Lost Hills, it is uncertain he would have made it to Horizonte before closing.

If the accused had not spent the extra 3½ hours recorded as being in his sleeper, and left Lost Hills after the required minimum 10 hours, he still would have arrived after Horizonte was closed rendering the cargo undeliverable that night. The cargo could have been extracted later in the evening, provided entry could be gained into the secured Reef Trucking compound once Reef Trucking was closed. Not an insurmountable obstacle to a well-resourced organization. [ 104 ] The expert evidence of S/Sgt. Murphy establishes that the seized cocaine is a valuable and illegal commodity.

It would be very risky for a presumably money driven enterprise to relinquish control over such a valuable asset to a blind courier. However, there is

logic to doing so primarily in the form of insulation from detection and, although likely a much smaller concern, some cost saving. It would be speculative to infer the result of any cost-benefit analysis conducted by the organization between these logical alternatives.

CONCLUSION [ 105 ] In conclusion, I have carefully considered the evidence in light of the submissions made by counsel and the case law they have provided, all of which I have read. [ 106 ] I find that the totality of the circumstantial evidence in this case raises a high level of suspicion to the point where I believe the accused is probably guilty of the offences. But the evidence, and lack thereof, also allows for a reasonable alternative other than that the accused knew of the cocaine in his trailer, and thus the guilt of the accused.

For example, that it was loaded at the Goya warehouse without his knowledge. From my earlier comment, it should be obvious that I do not say this is the most likely or probable alternative, but it is nevertheless a reasonable one based on the totality of the evidence, the absence of evidence, logic, and human experience. [ 107 ] I conclude the charges against the accused have not been proven beyond a reasonable doubt. I therefore find Mr. Dhillon not guilty of both charges. The Honourable Judge J.I.S. Sutherland Provincial Court of British Columbia