R. v. Nijjer, 2022 BCSC 2473

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Nijjer, 2022 BCSC 2473 Date: 20221130 Docket: 33556 Registry: Cranbrook Rex v. Varinderpal Singh Nijjer Before: The Honourable Madam Justice Forth Oral Reasons for Judgment Re: Jury Viewing Counsel for the Crown: D. Singhal C. Coulson Counsel for the Accused: I. Donaldson, K.C. C. Armitage Place and Date of Application: Vancouver, B.C. November 29, 2022 Place and Date of Judgment: Vancouver, B.C.

November 30, 2022 Introduction [ 1 ] Varinderpal Nijjer is charged with one count of importing cocaine into Canada contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 [ CDSA ] and one count of possessing cocaine for the purpose of trafficking contrary to s. 5(2) of the CDSA , arising from a single incident on January 20, 2019. [ 2 ] Mr. Nijjer admits that on January 20, 2019, he crossed into Canada via the Kingsgate Port of Entry, located near Creston, British Columbia (BC), while driving a white 2015 Freightliner Cascadia (the “Freightliner”) with an attached shipping trailer.

Canadian Border officers searched the Freightliner and, after several searches, discovered a total of 44 packages of cocaine stored in after-market hidden compartments installed in the interior of the Freightliner’s cab. [ 3 ] Mr. Nijjer brings an application pursuant to s. 652 of the Criminal Code, R.S.C. 1985, c. C-46 and seeks an order to have the jury take a view of the interior of a similar, but not identical, 2015 Freightliner Cascadia. [ 4 ] Counsel for the Crown opposes the application. [ 5 ] For the reasons that follow, the defence’s application to take a view is dismissed. Positions’ of the Parties Mr.

Nijjer [ 6 ] Mr. Nijjer seeks an order for the jury and the Court to take a view of a 2015 Freightliner Cascadia. He proposes to park a 2015 Freightliner Cascadia in the vicinity of the courthouse to provide the jury with an opportunity to view the freightliner, and enter if they choose. [ 7 ] Counsel for Mr. Nijjer submits that it is important for the jury to view a similar freightliner, since a full appreciation of its interior cannot be conveyed by photographs, videos, or descriptions from witnesses alone.

He argues that a view of a similar freightliner would enable to jurors to draw their own conclusions as to the size of the cab within the Freightliner. [ 8 ] Much of the Crown’s evidence as to Mr. Nijjer’s knowledge that controlled substances were inside the Freightliner relates to the

visibility of alterations and abnormalities in the interior of the Freightliner, which would have reasonably alerted the driver to the possibility that it had been tampered with. He argues that, without a full appreciation of the interior of the Freightliner, the jury will be unable to make a proper determination as to what Mr. Nijjer might have seen. [ 9 ] Mr. Nijjer concedes that a view of the seized Freightliner at issue in this case is not possible, since it remains near the Kingsgate Port of Entry and has suffered damage due to the investigation. He proposes a view of a similar freightliner.

While this proposed freightliner is not identical to the Freightliner at issue, he says it is substantially similar. Mr. Nijjer also concedes that the hidden compartments that were present in the Freightliner at issue in this case will not be present in the freightliner viewed by the jury. The Crown [ 10 ] Crown opposes the application and submits that a view is not in the interest of justice. Crown argues that there is ample evidence before the jury of this specific Freightliner at issue.

In light of this evidence, viewing a different freightliner would not provide relevant evidence and therefore has no probative value.

Summary of the Law [ 11 ]

Section 652 of the Criminal Code provides a trial judge with the authority to order a viewing by the jury of a place, thing, or person.

Section 652 states: View 652

(1) The judge may, where it appears to be in the interests of justice, at any time after the jury has been sworn and before it gives its verdict, direct the jury to have a view of any place, thing or person, and shall give directions respecting the manner in which, and the persons by whom, the place, thing or person shall be shown to the jury, and may for that purpose adjourn the trial. Directions to prevent communication

(2) Where a view is ordered under subsection (1), the judge shall give any directions that he considers necessary for the purpose of preventing undue communication by any person with members of the jury, but failure to comply with any directions given under this subsection does not affect the validity of the proceedings. Who shall attend

(3) Where a view is ordered under subsection (1), the accused and the judge shall attend. [ 12 ] In R. v. Singh Nagra and Singh, 2018 ONSC 846 at paras. 24–25 , [ Singh ] the Court canvases the caselaw and sets out the following relevant factors a court should consider in a s. 652 application:

a) Logistical problems associated with either the scene or the view, including safety issues, the likelihood of public attention to the process, and the disruption to normal day-to-day activities in the area where the view is to take place.

b) Security issues at the scene where the view is to take place.

c) The importance to an issue to be decided of the information that may be obtained by taking a view.

d) The extent to which information has been or could be obtained from other sources including maps, diagrams, models, photographs or videotapes.

e) The nature of the evidence that the view is directed at helping the jury understand.

f) The extent to which the place, person or thing to be viewed has changed in appearance since the material time, and the consequent danger that the view may mislead. [ 13 ] In R. v. Johnson, 2010 ONSC 5189 at para. 5 , the Court notes that the “unusual step” of a view requires more than showing it be “helpful” to the party seeking it: The degree of assistance that a view will provide to the jury should be fairly high, in order to warrant the taking of that unusual step.

The reality is that the taking of a view might, by itself, be helpful in every case, if one applied a very loose or broad definition of that term. However, since the governing criterion is that the taking of a view must be in the interests of justice, it suggests that the person seeking to have the jury take a view must go much further than simply showing that it would be helpful in the most superficial meaning of that word. [ 14 ] I will now address each of the Singh factors as they relate to this application. Analysis Are there logistical problems associated with the view? [ 15 ] Mr.

Nijjer proposes to park a 2015 Freightliner Cascadia in the vicinity of the courthouse to facilitate the view. The proximity of

the freightliner means that the view could be reasonable accommodated. Though his proposal would require coordination, cause some disruption, and potentially draw some degree of public attention, I agree that it poses minimal logistical problems and disruption to the area. The view would not be logistically difficult. Are there security issues associated with the view? [ 16 ] I also agree that security is not a significant issue due to the proximity to the courthouse and that security can be reasonably addressed with the support of the Sheriffs.

What is the importance to the issue to be decided of the information that may be obtained by taking a view? [ 17 ] Mr. Nijjer argues that observing the size within the interior of a freightliner is superior to viewing photographs, videos, and schematics, and hearing the testimony of witnesses. He argues that the jury needs to experience being in the cab of a freightliner in order appreciate what a driver might reasonably notice while operating it. He says that the view will contextualize the evidence of any abnormalities in the Freightliner led by the Crown. [ 18 ] I disagree. Mr.

Nijjer proposes a view of a different freightliner, which he concedes is not identical to the Freightliner at issue. As I outline below, the jury has a substantial amount of evidence before them relating the specific Freightliner at issue. I find that the information obtained from the view would not provide evidence important to the issue to be decided. To what extent could the information be obtained from other sources? [ 19 ] Crown has led ample evidence that provides the jury with information as to the size, layout and visibility of the interior of the specific Freightliner at issue in this case.

The jury have before them the following evidence:

a) The VACIS scan of the Freightliner, completed on January 19, 2019 [Exhibit 12];

b) A schematic of a freightliner [Exhibit 6];

c) Extensive photographs of the Freightliner, including: i. Photographs taken by Border Security Officer Sally Watson on January 20 and 22, 2019, showing the exterior and interior of the Freightliner from multiple angles [Exhibit 3, Tab 1–2]; and ii. Photographs taken by Corporal Robert Fletcher depicting the interior, and exterior of the Freightliner [Exhibit 3, Tab 4]; and iii. A compilation of photographs depicting the cab of the Freightliner, including a rebuild of the secret compartments made by Corporeal Fletcher [Exhibit 18].

d) A video recording taken by Constable Cadwallader on January 22, 2019 of the interior, including the cab, and exterior of the Freightliner [Exhibit 13];

e) Testimony from Border Security Officers Watson and Barrie, as to what they observed upon entering the Freightliner cab during the secondary inspection; and

f) Testimony of Corporal Fletcher of his descriptions of the interior of the cab of the Freightliner. [ 20 ] From this evidence, the jury will be able to make an independent assessment as to the size, layout and visibility within the Freightliner to inform their decision as to what Mr. Nijjer observed while being in the Freightliner. [ 21 ] If Mr.

Nijjer would like to put further evidence before the jury, including dimensions, diagrams, photographs or video recordings that, in his opinion, provide a more fulsome depiction of the space within the Freightliner, he may do so. [ 22 ] In light of all of the evidence, and the other reasonable sources that could provide the information, I am not persuaded that a view of a similar freightliner provides information that could not be obtained through other evidence.

What is the nature of the evidence that the view is directed at helping the jury understand? [ 23 ] The nature of the evidence that the view is directed at helping the jury understand is the space inside the Freightliner. This is evidence that is amenable to explanation by witnesses through viva voce evidence, along with photographs, videos, and schematics. [ 24 ] I note that s. 652 orders are relatively uncommon. Crimes take place within a wide array of vehicles, dwellings, businesses, and public places. The specifics of those locations are often at issue.

However, criminal matters are routinely decided by juries who never visit those locations. Instead, their decisions are based on evidence not dissimilar to the evidence at this trial. I am not persuaded that the physical space at issue here is so extraordinary or unique as for a view to be in the interests of justice. To what extent has the subject of the view changed?

[ 25 ] Finally, rather than consider whether the subject of the view has changed, I must note that Mr. Nijjer proposes to view an entirely different freightliner than the one at issue in this trial. This freightliner may not have the same specifications of the one at issue and will also lack the after-market compartments. Rather than providing the jury with assistance, it may introduce unnecessary confusion.

Given the evidence available relating to the Freightliner at issue, it is inappropriate to take a view of a different freightliner. [ 26 ] I have further concerns on the potential risks that such a view could entail. For example, if one or more of the jurors opts not to enter the freightliner, some jurors will have different information than others. There is also the potential that a juror will see something in this other freightliner that is different from the Freightliner that Mr. Nijjer was driving. A juror might notice something in the cab and another may not.

This may lead to discussions in the jury room about what was seen and the relevance to their deliberations. It could mean the accused, Crown and defence are not aware of what particular item was notice. The same issue does not arise with the videos, diagrams, and photographs marked as exhibits, since all of the jurors have been provided with exactly the same information as presented by the Crown and defence. Conclusion [ 27 ] The probative value of the view is limited, there are potential risks, and there are other sources of evidence that are available on this case.

The defence has the opportunity to present additional evidence that can accomplish the same end. I find that a view would not assist the jury and it not in the interests of justice. [ 28 ] Mr. Nijjer’s s. 652 application is dismissed. “Forth J.”