R. v. Sandhu Date:, 2016 BCPC 397

Citation: R. v. Sandhu Date: 20161102 2016 BCPC 397 File No: 209650-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. RAJBINDER SINGH SANDHU REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. WOLF Counsel for the Crown: J.M. Whiting Counsel for the Accused: M.N. Stern & R. Bal Place of Hearing: Surrey , B.C. Date of Hearing: August 30 & 31, September 1 & 2, October 5, 2016 Date of Judgment: November 2, 2016

Introduction [ 1 ] Mr. Sandhu is before the Court on Information 209650-1. There are two counts. The first count is importing cocaine, contrary to s. 6(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (“ CDSA ”). The second count is possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the CDSA . These charges arose from an incident on June 18, 2014 at the Pacific Highway Border Crossing in Surrey, BC, commonly known as the “Truck Crossing”. [ 2 ] Mr.

Sandhu was arrested after Canada Border Services Agency (“CBSA”) officers found 17 bricks of cocaine in the “belly box” of the tractor-trailer he was driving. [ 3 ] Mr. Sandhu admitted through counsel that he was the driver of an Ocean Blue Trucking Ltd. tractor-trailer which entered Canada at the Truck Crossing at approximately 20:11 on that day. It was also admitted that the substance found was cocaine and, if possession is found by the Court, that such possession was for the purpose of trafficking. Issue [ 4 ] Given that Mr.

Sandhu was driving the tractor-trailer which entered Canada, it is accepted as a matter of fact that he brought cocaine into the country, and thus he certainly had physical control over the cocaine. The remaining element to be proven by the Crown on both counts is actual knowledge of, or wilful blindness to, the presence of the cocaine. Background [ 5 ] Most of the findings of fact are straightforward, as much of the background of Mr. Sandhu is not in dispute . Mr. Sandhu is a 33 year old truck driver who lives in Surrey with his wife, parents, and two daughters.

He is a Canadian Citizen, and has been working as a trucker since 2004. [ 6 ] It was not his own trailer that he was hauling that day. He does own his own tractor, and in early 2014 he purchased his own trailer. He generally hauls his own trailer, as this results in increased earnings. However, on the day in question, Mr. Sandhu was instead scheduled to haul a company trailer. The owner of the trailer, and one of the owners of the company provided evidence to the court with respect to this fact. [ 7 ] There was an adjustment done to Mr. Sandhu’s

schedule on the day in question. Mr. Sandhu testified that he had requested a shift change approximately a week before the incident. He told the court this was so he would be free to attend his wife’s birthday party on June 18th. It was his intention to do the trip and then go to his home where some relatives were gathering for a birthday dinner. A second reason for his request for a shift change was that he had received a ticket and wanted to dispute it in Skagit County Traffic Court on June 27, 2014. If he did not put in ‘an extra shift’ then he would not have the time off to travel and dispute his ticket.

In the end, he did not attend court. On this point, his wife testified that he did not go to court, or work for a very long time after the charges. Her evidence was that he was depressed as a result of the charge. As a result, he was scheduled to haul the company trailer to and from the United States on June 18th.

This ‘change in the schedule’ was argued to be significant, as it was impressed upon the court that it is open for the court to essentially find that he ‘chose’ this particular run, implicitly to pick up the drugs. [ 8 ] This tractor-trailer pairing has two storage compartments: a “jockey box” underneath the bunk in the tractor, and a “belly box” which is an external storage compartment underneath the right side of the trailer about halfway between the sets of tires. [ 9 ] The belly box has a lock, but the evidence from both Mr.

Sandhu and his employer was that the keys had been lost, and thus it is kept unlocked at all times. There was also evidence provided to the court that it is not unusual for truckers to keep these storage compartments unlocked as a matter of habit. [ 10 ] On June 17th, the day before the incident, Mr. Sandhu left his trailer in the company trucking yard after hooking up the company trailer, which was already loaded. While hooking up the trailer he conducted a brief inspection, including checking the tires and ensuring the load straps were tight. Mr. Sandhu found no issues with the load and left the yard.

Date of the Incident [ 11 ] The following is Mr. Sandhu’s testimony regarding the day of the incident. His wife dropped him off at the yard at around 6:00 AM, which is an open, unlocked area. Mr. Sandhu started his tractor and conducted the pre-trip inspection, finding no problems. He left the yard at around 6:30 to 6:45 AM and drove straight for the border, arriving around 7:15 AM at the Pacific Highway Border Crossing to Blaine, Washington. [ 12 ] Mr. Sandhu successfully crossed the border at around 8:45 AM, and proceeded to Kent, Washington. He arrived at Conway Building Supplies around 11:30 AM.

A note inside the cab of the tractor was found to have a rough drawing of directions to this yard. The court was told that it was directions were asked because he had not been to this loading bay before. His trailer was unloaded between 11:30 AM and noon. At some point during this time interval, Mr. Sandhu testified that he wore his coveralls and safety footwear, which he does not wear while driving for comfort reasons. After the load was removed, he stored the load straps in the belly box. [ 13 ] Mr.

Sandhu left Kent at around noon, and drove directly to PCC Logistics in Tacoma, Washington, arriving around 12:45 PM. He then went into the PCC office to check in for the load of shingles he was to pick up. From 1:00 PM to 2:30 PM he waited for the

load, and from 2:30 PM to 3:00 PM it was loaded onto his truck via forklifts. Mr. Sandhu took the straps from the belly box, his load bar from the jockey box, and strapped in the load. He put his load bar back into the jockey box and his safety wear in the belly box. He testified that at this stage he went into the office to have papers sent off to his dispatch and he waited for the ‘okay’ to start his trip. The truck was in the loading bay at this point. He was inside. [ 14 ] I note that the Crown extensively cross-examined Mr. Sandhu on the use of his own load bar, versus one that was found in the belly box.

Mr. Sandhu was not able to provide any ‘exact’ differences as to size and weight of his load bar versus the one in the belly box. Crown relied on this lack of descriptive testimony as being an indicator of a lack of credibility. [ 15 ] Mr. Sandhu left PCC at 3:00 PM, driving directly to Arlington Fuel Stop in Arlington, Washington, and arrived at 5:15 PM. He used the washroom and bought a coffee and six beers. Mr. Sandhu did not refuel his truck because he had heard from other truckers that the fuel there wasn’t very good.

During this time, his vehicle was parked in the commercial area, which was not visible from the inside of the Fuel Stop. This is another time period that he was not able to visually see his truck. [ 16 ] At 5:30 PM, Mr. Sandhu left the Fuel Stop and drove directly to Pilot, a fuelling station in Ferndale, Washington. He drove up to the pump, fuelled his tank, and then pulled his truck into the parking area. Mr. Sandhu went inside the station to get his receipt and use the washroom. Page 28 of Exhibit 4 is a receipt from Pilot, dated 18 June 2014, with no time stamp.

It shows a purchase of 75.523 gallons of diesel fuel. [ 17 ] After obtaining his receipt, Mr. Sandhu walked to a nearby McDonalds, which took 4 to 5 minutes. Also tendered as an exhibit is a receipt from McDonalds at showing a purchase of a Filet-O-Fish at 7:15 PM. He then headed back to his vehicle, leaving Ferndale at around 7:30 PM, and proceeded directly to the Truck Crossing. Once more, he was away from his tractor and trailer for a short time period. [ 18 ] Border Services Officer (“BSO”) Maurice Caron was working in the booth of the border line that Mr. Sandhu was in.

At some moment before coming up to the inspection booth, Mr. Sandhu advised his wife that he would not be much longer, as he was passing through the border. [ 19 ] As Mr. Sandhu approached the booth, BSO Caron received a phone call from CBSA Superintendent Shelly Stephens. Supt Stephens testified that she had seen him on a video camera and did not recognize Mr. Sandhu or his tractor-trailer, so she asked BSO Caron to send him to secondary screening. Supt Stephens testified that she had no other reason to pull the truck over for a secondary inspection.

Between the inspection booth and the secondary inspection loading bay, Mr. Sandhu contacted his wife and said in essence ‘he would be a little longer as he was getting a secondary inspection’. His wife Sandhip Sandhu testified that she had been texting him and in her last communication with him he was at the secondary inspection and “will call when he is finished.” [ 20 ] Supt Stephens went into the secondary inspection warehouse and saw Mr. Sandhu backing up to the dock of his assigned bay. She noted that Mr.

Sandhu had to return to his vehicle twice to gather the proper documentation: the first time in the warehouse, he only had his passport and referral slip. The second time he had also forgotten some essential paperwork. Interestingly, Supt Stephens pointed out in her testimony that she thought this would be unusual for an experienced driver. It was her view an experienced driver would have instinctively known exactly what documentation to bring out of the vehicle. It is my impression that the Crown would have the court rely on this act as an indication of guilt, or at least nervousness.

However, on this point, it is important to note that while it was apparent by the evidence of Mr. Sandhu and his employer that he had crossed this border many times, perhaps in the hundreds, he was never asked on cross-examination if he had ever had a secondary inspection. So, while it is easy for me to find that Mr. Sandhu was an experienced driver, it is difficult for me to determine whether he knew of the secondary inspection protocols. [ 21 ] The Crown emphasized in submissions a point regarding Mr. Sandhu’s timesheet. Mr.

Sandhu admitted that a portion of it was falsified to reflect a later start time than was accurate. He testified that truckers do this because they are only allowed to work for a certain number of hours per day, so this falsification allows them to work extra hours. In response to questions put to him on this topic, he kept replying he falsified them ‘to make them legal’. [ 22 ] Supt Stephens asked Mr. Sandhu approximately twenty routine questions regarding the type of load he was carrying, whether he loaded it himself, and other standard questions. There were no answers out of the ordinary.

A voir dire regarding voluntariness was done out of caution. However, there were no voluntariness concerns raised by counsel, and ultimately his answers to the questions were all found to be voluntary. [ 23 ] The search commenced and was very brief. Supt Stephens enlisted the help of BSO Trevor Olsen of the Flexible Response Team to search the tractor-trailer systematically with her. [ 24 ] BSO Olsen testified that he opened the belly box and immediately saw two new duffle bags visible at the front of the compartment. He could feel a brick inside.

He unzipped the bags, found 17 bricks of cocaine inside, and promptly informed Supt Stephens. Supt Stephens called for a dog handler via radio. BSO Olsen arrested Mr. Sandhu for smuggling, then chartered and warned him from his card. He testified that these bags were immediately visible when the belly box was opened. There was no attempt to conceal them. [ 25 ] BSO Thomas Byhre then arrived with Bounce, a dog trained in narcotics and firearm detection. Bounce indicated on the bags at least twice with a “sit response”, although she was much more interested in the belly box instead of the bags.

Other evidence confirmed the nature of the substance and provided the court with details of packaging and quantity. The Law [ 26 ] The Criminal Code , RSC 1985, c C-46, s 4(3) (“ Criminal Code ”) definition of “possession” is included in the CDSA by s. 2(1) of the CDSA . Subsection 4(3) of the Criminal Code states: For the purposes of this Act,

(

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

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

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall bedeemed to be in the custody and possession of each and all of them. [27] The Crown cited paragraph 51 of R. v. Ngo, 2009 BCCA 301 (“Ngo”) for the proposition that, to prove an allegation ofpossession for the purpose of trafficking, both knowledge and control of the illicit substance must be proven. They also cited R. v.

Lee,2012 BCSC 1489 at paragraph 48 to show that constructive possession requires “knowledge beyond mere quiescent knowledge”, andsome measure of control over the item. [28] The Crown also cited paragraphs 53-55 of Ngo for the treatment of cases involving circumstantial evidence. Offences can beproven through either direct or circumstantial evidence, or a combination of both. I accept the proposition that to convict the accused, Imust be satisfied beyond a reasonable doubt that the only reasonable inference to be drawn from the facts is the guilt of the accused.

Imust examine all of the evidence together and decide whether it both establishes the guilt of the accused and is inconsistent with anyother rational conclusion. I must also keep in mind that the slightest competing possibility should not bar a conviction. [29] R. v. Vu, 2002 BCCA 659 is also a Crown authority for the proposition that, in the absence of a credible explanation, aninference of knowledge may properly be drawn from the circumstantial evidence in some cases. This paragraph cites R. v.

To (W.H.)(1992), (BCCA) (“To”), where McEachern CJA dismissed a conviction appeal, holding that the possibility of theappellant having been entrusted with heroin worth 1.35 million dollars without being told what it is “could safely be rejected”. Thisupheld the Trial Judge’s finding that it was exceedingly unlikely that someone would be entrusted with the key to a growing 1.4 milliondollar operation without knowing about the drugs. In my view, this case may be applicable to true ‘blind courier’ cases.

It is my view,as will be discussed, that this argument is not helpful to the case at bar. [30] In To, the accused had been living in an apartment owned by his friend. He testified to being asked by a friend of his landlord,whom he had only met once, to take a plastic bag from a cupboard by the washing machine to the vehicle, and to leave the keys in theignition. The accused claimed to not have looked in the bag nor realized what it was.

At paragraph 12, McEachern CJBC held: I find it unbelievable that a drug trafficker would leave 1.3 million dollars worth of heroin in an apartment unattended, then ask a virtualstranger to transport them to a car and leave them there so they can be picked up later. The trafficker would have to assume that Towould not look into the bag and that To would do exactly as he was told. This all seems incredible to me, considering that To had onlymet Big Head once two or three months earlier. Mr. Zipp suggested that the explanation is that Big Head was relying on the innocenceand naiveté of To.

I do not think that makes sense. Big Head had only met him once two or three months earlier. How could he knowanything about To's personality. [31] R. v. Bi, 2011 BCCA 10 was also a Crown authority. Specifically, I have been referred to para 20 for the proposition that a trialjudge does not have to determine which of a principal, aider, or abettor an offender is in order to convict. If the evidence establishesbeyond a reasonable doubt that an accused is one of the three, this is sufficient for conviction. [32] Crown also called my attention to paragraphs 10 and 11 of R. v.

Budd for the proposition that, in order to convict oncircumstantial evidence, absolute certainty is not required. The trier of fact does not necessarily have to rule out all conceivablepossibilities, particularly if there are no proven facts on which to base these other possibilities. [33] I find the Supreme Court of Canada case R. v. Villaroman, 2016 SCC 33, very helpful when considering circumstantialevidence.

Cromwell J, writing for the court, held: [37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonablepossibilities” which are inconsistent with guilt: R. v. Comba, (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, perMiddleton J.A., aff’d (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28 , 335 B.C.A.C. 11, at para. 20;R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35.

I agree with the appellant that the Crown thus may need to negative thesereasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, whichmight be consistent with the innocence of the accused”: R. v. Bagshaw, (SCC), [1972] S.C.R. 2, at p. 8. “Other plausibletheories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence,not on speculation. [38] Of course, the line between a “plausible theory” and “speculation” is not always easy to draw.

But the basic question is whetherthe circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference otherthan that the accused is guilty. [39] I have found two particularly useful statements of this principle. [40] The first is from an old Australian case, Martin v. Osborne, 55 C.L.R. 367, at p. 375: In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that,according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be

accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. [Emphasis added.] [41] While this language is not appropriate for a jury instruction, I find the idea expressed in this passage — that to justify aconviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonablealternative — a helpful way of describing the line between plausible theories and speculation. [42] The second is from R. v. Dipnarine, 2014 ABCA 328 , 584 A.R. 138, at paras. 22 and 24-25.

The court stated that“[c]ircumstantial evidence does not have to totally exclude other conceivable inferences;” that the trier of fact should not act onalternative

interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable,not just possible. [43] Where the line is to be drawn between speculation and reasonable inferences in a particular case cannot be described with greaterclarity than it is in these passages. [34] The Crown cited paragraph 52 of R. v. Huang, 2013 BCSC 2237 regarding the necessity of some evidence to support analternative inference if it is asserted.

In addition, I am entitled to apply ordinary human experience and common sense in my assessmentof the evidence; however I should not apply speculative reasoning. I fully agree with this proposition of law. To be clear, if I do not findsome evidence to support an alternative inference, I should not consider that alternative as a rationale or reasonable possibility. [35] Crown also directed my attention to paragraph 35 of R. v.

Fisher, 2005 BCCA 444, where the BC Court of Appeal upheld theTrial Judge’s finding that the circumstantial evidence led to a rational inference that the appellant knew of the presence of cocaine in adrawer. [36] R. v. Briscoe, 2010 SCC 13 was a final authority of the Crown tendered for its helpful guidance on the doctrine of wilfulblindness.

I was directed to the proposition that knowledge is a component of the mens rea for an offence, wilful blindness will imputesaid knowledge when an accused’s suspicion is aroused to the point where they see the need for further inquiries, but deliberately choosenot to make such inquiries.

I recognize that this is different from recklessness, which only requires persistence in the face of a knowndanger or risk – wilful blindness arises where an accused declines to make an inquiry because they do not wish to know the truth, andwould prefer to remain ignorant. [37] I have also had the benefit of many authorities provided by Defence Counsel. R. v. W.(D)., (SCC), [1991]S.C.J. No. 26 (“W.D.”) and R. v. Ay, (BC CA), [1994] B.C.J. No. 2024 (BCCA) are tendered as legal authority forthe application of the reasonable doubt standard to the issue of credibility.

The onus is on the Crown to prove its case beyond areasonable doubt. Such a doubt must be both based on the evidence and rational, not mere speculation or guessing. [38] Defence Counsel also relies upon R. v. Iturriaga, (BC CA), [1993] B.C.J. No. 2901 (BCCA) (“Iturriaga”),which was an appeal of a conviction for possession and possession for the purpose of trafficking. The appeal was successful on thegrounds that the evidence could not possibly establish knowledge of the drugs beyond a reasonable doubt. In that case, cocaine wasfound under the passenger seat of a car, wrapped in a co-accused’s shirt.

The Crown stated that there were multiple pieces of evidencefrom which the jury could infer knowledge, including: the appellant slowing down the vehicle upon seeing the police, the appellant’snervousness when being approached by the police, the fact that the drugs were within arm’s reach of the appellant, and the fact that theappellant was driving the car. The BC Court of Appeal stated that it is common for people to be nervous when pulled over by the police.

The Court held that this evidence alone cannot establish knowledge of the drugs, given their concealment, and noted that they were notaware of any cases where a conviction was entered on such slim evidence. The appellant was acquitted on both counts. [39] R. v. Anderson, (BC CA), [1995] B.C.J. No. 2655 (BCCA) (“Anderson”) is another case cited by theDefence. It restates the principles of the offence: both knowledge and control must be proven, and the two must have existedsimultaneously at some point.

Knowledge is an essential element of possession, which must be proven for the offence of possession forthe purpose of trafficking. In Anderson, the appellant was arrested after police executed a search warrant on a van he was driving, andfound both marijuana and cocaine. The appellant had not been a target of the undercover operation which resulted in the warrant. Although a considerable amount of narcotics was found, and they were close enough to be accessible for the appellant, they were notvisible without opening the gym bags they were contained in.

Additionally, no fingerprints were found on the narcotics packaging. TheCourt held that there were other rational conclusions that could be drawn from the evidence, such as the appellant’s brother, who ownedthe van, having placed the drugs in the vehicle without the appellant’s knowledge. As such, they allowed the appeal and enteredacquittals on all counts. [40] Both Crown and Defence referred to R. v. Tsang, 2014 BCSC 1055 (“Tsang”). The accused was stopped at a roadblock, wherea police officer noted that he was not displaying his new driver’s sign, and directed him to pull over.

The officer checked the accused,and found that he had breached his bail conditions by driving a car. The officer searched the accused, a black canvas bag on the driver’sseat, and the glove compartment incident to arrest. He found $1,665 in the accused’s right shorts pocket and a further $1,325 in theblack bag. In the glove compartment, he found a mini M&Ms candy tube, inside of which were 44 small substances which appeared tobe drugs. [41] In Tsang, there was no evidence of the accused accessing the glove compartment, as opposed to at the case at bar where Mr.Sandhu repeatedly accessed the belly box.

At paragraph 43, the Court cited R. v. McIntosh, [2003] OTC 246 (ONSC), stating: Not everyone who drives or rides in a car containing concealed illegal objects necessarily knows the presence or nature of thoseobjects…where the prohibited item is concealed or not readily visible in a vehicle driven by the accused, the courts have generallyrequired more than simply evidence of the proximity of the accused and the item : R. v. Green and Rawlins (1993), 5 M.V.R. (3d) 280(Ont. C.A.) at 281; R. v. Bauer, 2003 BCCA 138 , [2003] B.C.J. No. 505 (C.A.) at para. 18; R. v. Anderson, supra at para. 26;R. v.

Iturriaga, (BC CA), [1993] B.C.J. No. 2901 (C.A.) at para. 9.

[ 42 ] At paragraphs 54-55 in Tsang , the Court cited R. v. Amado (1996), 32 W.C.B. (2d) 156 (BCSC) where the Court reviewed the law as well as circumstances which were similar to those in Tsang , and noted that there was no direct evidence that the accused knew of the drugs. There was circumstantial evidence from which one could argue that they had knowledge of the drugs, however this was insufficient to prove knowledge beyond a reasonable doubt.

Applying the above quote to the facts of the case, the Court in Tsang stated at point 4 of paragraph 55: Not everyone who drives or rides in a car containing concealed illegal objects necessarily knows the nature of those objects. If there is to be a conviction for possession of such objects based on the knowledge of the occupants of the car, the evidence relating to their knowledge must rise above mere suspicion. [ 43 ] R. v. Agnew , 2012 BCSC 1161 (“ Agnew ”) is also a defence authority. In that case the accused was arrested after a police officer smelled marijuana during a routine traffic stop.

The vehicle was registered in Alberta to another person. The police found three bags in the trunk containing a total of over 10 kilograms of marijuana. There was no physical evidence linking the accused to the bags or the packages of marijuana inside, no evidence of his ownership of the marijuana, and no evidence of any other items inside the trunk being linked to him. The Court noted that knowledge was required for possession.

Mentioning Anderson , as discussed above, the Court ultimately concluded that it was distinctly possible for the marijuana to have been placed by some other person, and thus the accused’s knowledge was not the only rational conclusion that could be drawn. [ 44 ] Crown noted that, in Agnew , there were no contents in the trunk that could be linked to the accused. This contrasts with our matter, where Mr. Sandhu’s belongings were in the belly box, and his evidence is that he accessed it multiple times that day. [ 45 ] R. v.

Dusanjh , 2010 BCSC 1579 (“ Dusanjh ”), is a defence case where the accused had crossed the border with cocaine hidden in boxes of lemons on a pallet within his trailer. At paragraph 55, the Court noted that the accused appeared evasive, distancing himself from anything possibly connecting him to the drugs to the point of defying logic and common sense. As such, the Court rejected the accused’s evidence, and thus had to consider the strength of the Crown’s evidence. The Court noted that, in its previous case of R. v.

Kang , 2009 BCSC 1826 , the Crown had made efforts to rule out the complicity of any other employees of the accused’s company. In Kang , the Defence also failed to suggest involvement on the part of the trucking company’s owner, foreclosing that possibility as an alternate inference. I will discuss how Mr. Sandhu’s circumstances are substantially different to the circumstances of this case. [ 46 ] The Court in Dusanjh noted the difficulty that a cocaine importer would have faced in trying to insert the cocaine into the accused’s cargo load without drawing his attention or that of passers-by or the police.

This, along with the great risk to exposing such valuable cargo in an insecure setting, supported the inference of the accused’s knowledge of the cocaine. However, while this was the most likely conclusion, the Court was unable to conclude that it was the only rational one beyond a reasonable doubt. Thus, the Court acquitted Mr. Dusanjh. [ 47 ] There is an important distinction between the Dusanjh case and Mr. Sandhu’s circumstances. In contrast to Dusanjh , a previous employee of Mr. Sandhu’s trucking company had been recently charged with the same offence of importing cocaine into the country.

This is all the court knows. I have no information regarding whether the substance was packaged the same way. I have heard no evidence regarding potential involvement from warehouse personnel other than Mr. Bahia’s testimony that he did not know anything about the cocaine. He is only one of the owners. I have not heard from any of the other owners of which by Mr. Bahia’s testimony there were at least two others. Specifically, I must say that I am not satisfied with the quality of information that I received regarding these other charges against a different individual in the company. [ 48 ] R. v.

King , 2011 BCSC 1878 (“ King ”) at paragraph 89 , that case notes that the falsification of driver logs is an “ongoing practice of some drivers who intend merely to fit their actual driving within the allotted hours.” The Judge thus found that log falsification does not necessarily support an inference of knowledge of drugs. Similarly, I am being asked to consider the falsification of the logs as an indicator of how Mr. Sandhu is not to be believed. [ 49 ] At paragraph 90, King summarizes circumstances quite similar to the case at bar: the Crown’s case that Mr.

King had knowledge of the cocaine rested primarily on inferences regarding the difficulties of inserting the drugs without his knowledge, if not cooperation. Paragraph 93 underscored the central question which is identical in Mr. Sandhu’s case: is there another rational, non- speculative inference arising from the logistics of inserting the cocaine, or is this solely consistent with Mr.

Sandhu’s knowledge of the cocaine beyond a reasonable doubt? [ 50 ] At paragraph 96 of King , the Court recognized that brief absences of drivers from their truck will be generally necessary for eating and hygiene purposes at the least. The process for inserting the cocaine in that case was not lengthy, just as in our case where the location of the drugs was readily accessible by anyone. Although the Court had rejected Mr. King’s evidence, it nevertheless acquitted Mr. King on both counts because guilt was not the only rational inference to be drawn from the evidence. [ 51 ] Finally, Defence Counsel cited R. v.

Narwal , 2013 BCSC 382 (“ Narwal ”) for the proposition that a “blind courier” scenario where the driver does not know about the drugs is possible. At paragraphs 125 and 126, the Court noted that, although it is improbable for a drug operation mastermind to entrust drugs to an innocent driver as opposed to a trusted one with knowledge, it is not impossible. Such a scheme would eliminate the risk of a knowing driver absconding with the load or telling the authorities about their boss. There was expert evidence in our case.

However, by my recollection, the phrase ‘blind courier’ was never even used. [ 52 ] At paragraph 135 of Narwal , the Court found that the accused had no knowledge of the cocaine, and whomever loaded the cocaine did it this way to avoid the accused appearing nervous at the border or disappearing with the drugs. However, the Court also notes that the drugs were hidden in a refrigeration unit which the accused apparently had no tools to access, thus lessening the likelihood of them being found.

Argument [ 53 ] Mr. Sandhu denies any knowledge of the drugs. Defence Counsel argues that I am not in a position to reject Mr. Sandhu’s evidence, given that he gave his evidence in a frank credible manner, he was unshaken on cross-examination, and there were no internal or external inconsistencies. Mr. Sandhu showed himself to be trustworthy by admitting to have accessed the belly box, identifying his boots and describing how he used the straps inside.

When I consider this behaviour in the context of the authorities provided, this is much different from Dusanjh , where the accused was acting evasive and refusing to admit anything to the point of defying logic. [ 54 ] Defence argues that there is no evidence of Mr. Sandhu meeting with anyone on his route, and there is no evidence of untoward activity on Mr. Sandhu’s cell phone. In fact, when CBSA officers asked for the password to his phone, he provided it right away – the act of a person with nothing to hide. [ 55 ] The defence argues that not only does Mr.

Sandhu deny any knowledge but also asks me to consider the fact that there is no forensic evidence such as fingerprints or DNA linking Mr. Sandhu to the cocaine that was found. The evidence points in the other direction: Mr. Sandhu appeared stunned when he was arrested, and kept asking why he was being arrested. It is argued that all of these observations and statements are admissible because of King . [ 56 ] Defence Counsel also pointed out that the yard that Mr.

Sandhu stores his truck in is unsecured, and so anyone who knew that the belly box could not be locked would have easy access once the truck was parked for the night. Further, regarding the unlocked nature of the belly box, it would not make sense for Mr. Sandhu to leave his vehicle unattended to go to McDonalds if he knew that he were leaving such expensive cargo exposed. It does appear to go a bit against human nature that if you had such a huge dollar amount of drugs in an open storage unit that you would just walk away from it and put the cargo at risk of being stolen. [ 57 ] Defence Counsel submits that Mr.

Sandhu’s evidence should, at the very least, raise some doubt, but even if his evidence is rejected, there are other rational inferences which could be drawn from the Crown’s evidence. [ 58 ] Crown noted that Mr. Sandhu repeatedly accessed the belly box, and submitted that, since anyone who saw the truck would know Mr. Sandhu repeatedly accesses the box; it would not make sense for the drugs to be placed there without his knowledge, due to the extreme risk of Mr. Sandhu discovering them. Thus, whoever hid the drugs had zero concerns for secrecy from Mr.

Sandhu. [ 59 ] The Crown further submitted that there were four areas which raise concerns of Mr. Sandhu’s credibility: the last-minute shift change, his lack of eventual attendance in traffic court, his falsification of the log and his responses on this in Court, and his evasive responses regarding the load bar. [ 60 ] To be clear, I believe that Mr. Sandhu provided more than adequate explanations for these points. For example, he openly admitted that he falsified his driver logs for an entirely different purpose. He is only allowed to drive a certain amount of time without taking breaks.

The logs were created in such a manner as to allow him to drive for a longer period of time. Yes, they were falsified. Yes, that is improper and against the law. However, I do not find that the ‘tampering’ of the logs would have assisted him in the act of importation in any way. I should point out, as it will not be otherwise apparent in these reasons, that Mr. Sandhu’s extensive examination on ‘doctoring documents to make them legal’ was, in my view, a result of a language barrier. Mr. Sandhu’s testimony was in Punjabi, through the assistance of an interpreter.

It is my experience that sometimes the translation of certain questions and their answers can be lost in translation. [ 61 ] I also find it entirely reasonable that a person charged with such a serious crime might simply skip going to traffic court a week later and pay the ticket. I accept Mr. Sandhu’s evidence that “I did not go because I was not feeling well; I was really scared of the situation of my arrest”. When testifying about the stress of the charges, he was very emotional.

In any event, although no border security officers were asked about this, I have some doubts as to whether he would have even been allowed to cross the border with these outstanding charges. [ 62 ] The Crown argued that, for someone to plant the cocaine in the belly box without Mr. Sandhu’s knowledge, they would have to do it just before he crossed the border. They argue that nobody else knew where Mr. Sandhu’s last stop would be other than Mr. Sandhu. [ 63 ] The Crown argued that, for someone to place the cocaine without Mr.

Sandhu’s knowledge in these circumstances would be reckless beyond reasonableness. [ 64 ] In

summary, the Crown submits that I should be satisfied beyond a reasonable doubt that Mr. Sandhu had knowledge of the cocaine, and thus possessed it for the purpose of trafficking and imported it, either as the principal or a party. If he did not know the details of this, it was by choice, and thus wilful blindness will impute knowledge. Analysis [ 65 ] As Mr. Sandhu testified to his innocence, I will apply the W.D. analysis where credibility is in doubt as it appeared in Ay . [ 66 ] First, if I believe the accused, I must acquit. [ 67 ] Mr. Sandhu asked for a very recent shift-change.

While this could be consistent with setting up a drug pickup, it could also very well have been to attend his wife’s birthday and traffic court. It is clear from the evidence that Mr. Sandhu was dispatched. He did not ‘choose’ where to go. In fact, there is evidence to support a finding that he had never been to one of his stops before. [ 68 ] While Mr. Sandhu did not eventually attend traffic court, this is quite understandable as that date was after his arrest. Indeed, given the arrest, it is unclear whether he would have even been allowed into the US to attend the hearing. [ 69 ] Mr.

Sandhu falsified his logbook. He freely admitted to this in his testimony, and as cited above in King , this is a common

practice to allow truck drivers to work longer than they are allowed to. The Crown emphasized that Mr. Sandhu appeared to indicate that, by falsifying the document, that made it “legal” and this meant that he does not understand what is illegal. I do not think this is what Mr. Sandhu meant by his testimony. When he testified that recording the later start time made the document “legal”, he was likely attempting to say that this would make the document appear legal by anyone who would inspect it. This is a reasonable explanation, and does not lead me to seriously doubt Mr.

Sandhu’s credibility. [ 70 ] Finally, the Crown submitted that Mr. Sandhu had been evasive regarding the load bar. Mr. Sandhu testified that he used his own personal load bar from his jockey box, and not the other bar that was present in the belly box. The Crown submitted that this did not make sense. If Mr. Sandhu was already taking his straps and safety footwear from the belly box, why would he use the load bar from his jockey box instead? Mr. Sandhu testified that his was smaller and lighter, although the measurements did not sound significantly so.

Nevertheless, it does make sense for a trucker to wish to use his own tools, even if they are similar to ones in the company trailer. [ 71 ] There are also the communications between he and his wife. If he knew the drugs were in the belly box, he most certainly must have known without a doubt they would be located in a secondary inspection. The belly box is an obvious place to search. The bags were immediately apparent. There was no attempt to hide them. As such, he would have no reason to tell his wife he was going to be slightly more delayed. In point of fact, he would, as he was, be detained and arrested.

His communication to his wife does not make sense unless it is consistent with the actions of an innocent person. I suppose the farfetched alternative is that he was ‘creating’ an alibi like situation. However, Mr. Sandhu did not come across as an overly sophisticated individual. His testimony was somewhat flat and subdued throughout. He was almost, for the most part, emotionless. But I did not find him to be unbelievable. [ 72 ] To put it in more clear terms. I believed Mr. Sandhu. [ 73 ] Even if I did not believe Mr.

Sandhu, I still believe the remainder of the evidence when considered in its totality raises a reasonable doubt. I do not know who loaded his truck. There was no evidence about anyone else who may have had access to the belly box at the last loading dock. [ 74 ] I appreciate that I am not able to speculate that someone else in the company might have put these drugs there. In my view, this is not what might be considered a typical ‘blind courier’ situation. There is no evidence that supports that some stranger to Mr. Sandhu simply used his trailer as a mule to transport drugs.

This is not a case of a single driver alleged to be involved in an importation scheme. Mr. Sandhu was scheduled to go somewhere by his company. He was to return back to Canada and leave his trailer in an open field parking lot where anyone would have access to it. His company knew that this was to take place. Lastly, there is evidence that an individual by the name of Ranjit Sherbo, an employee of the same company, was also recently charged with the importation of cocaine.

I find that there is beyond ‘some’ evidence upon which I can rely that supports the very real and rational possibility that someone else may have put the drugs in this open belly box. The trailer was owned by the company. The company had dispatched Mr. Sandhu to and from a particular place. They knew that trailer would be stored in an open field overnight. We know that this company’s employees had recently been alleged to be involved in similar drug importation activities.

To distinguish this case from other typical ‘blind courier cases’, I find there is a very real possibility that someone else associated with the company may have planted these drugs in the trailer without Mr. Sandhu’s knowledge. Conclusion [ 75 ] In conclusion, I am not satisfied beyond a reasonable doubt that the Crown has proven the element of actual knowledge of, or wilful blindness to, the presence of the cocaine and as a result I acquit Mr. Sandhu of the charges. The Honourable Judge A.M. Wolf Provincial Court of British Columbia