R. v. Wybyran, 2014 ONCJ 52

Information No. S12 – 3402 Citation: R. v. Wybyran , 2014 ONCJ 52 ONTARIO COURT OF JUSTICE Central South Region (at St. Catharines, Ontario) B E T W E E N: HER MAJESTY THE QUEEN - and - DAVID WYBYRAN Mr. P. Wenglowski for the Federal Crown Mr. S. Swarts for David Wybyran Reasons for Judgment NADEL, J.: Introduction [ 1 ] On Thursday, August 2, 2012, at about 12:30 a.m., David Wybyran was stopped by investigators from the Ministry of Transportation (MTO) as he was hauling a trailer full of unstamped manufactured tobacco [1] . That load was worth $1,285,920.

Section 32(1) of the Excise Tax Act, 2001 makes it an offence to possess a tobacco product unless it is stamped. “Stamped” means that an excise stamp, and all prescribed information in a prescribed format, are stamped, impressed, printed or marked on, indented into or affixed to the product or its container in the prescribed manner to indicate that duty … has been paid on the product. [ 2 ] The defence contends that while Wybyran was hauling a load he was not in possession of tobacco because he did not know that the trailer he was hauling contained tobacco.

Wybyran’s boss, who testified, told him to pick up a trailer of wooden pallets and to bring them back to the truck yard and that is what Wybyran thought he was doing. The Evidence [ 3 ] All of the following was admitted: • Wybyran was driving a 1998 International Eagle truck with Ontario plates; • The truck was owned by G.W. Squires Transport Ltd., located in Walsingham, Ontario; • Wybyran was pulling a 2003 Manc 53-foot trailer with an Ontario plate; • The trailer was owned by 104735 Ontario Limited, (Encore Transportation,) of Langton, Ontario;

• The required annual safety inspection of the trailer had expired; • The unit had some modest mechanical defects; • The driver’s daily log had not been updated to show a change of duty status; • The last entry showed Wybyran to be on duty but not driving in Walsingham, Ontario at 9:00 p.m. on August 1, 2012 and he was stopped in the Town of Lincoln on August 2, 2012 at about 12:30 a.m.; • Wybyran was returning to Walsingham after picking up the trailer at the Husky Truck Stop in Niagara-On-The-Lake; • Wybyran did not have any documentation relating to the load; • The trailer was padlocked and Wybyran did not have a key for the padlock; • Upon inspection the trailer was found to contain 126 boxes of fine cut tobacco; • Each box of tobacco weighed 250 pounds. [ 4 ] The first witness was Sean Doussept, an enforcement supervisor for the MTO, who was assigned to the truck inspection station on the westbound lanes of the QEW in the Town of Lincoln.

That truck inspection station is west of the exit to Victoria Avenue. One kilometre to the east of that inspection station there is a warning sign alerting truckers to the upcoming inspection station. Taking the Victoria Avenue exit allows truckers to avoid passing the truck inspection station, which was in operation. Wybyran took the Victoria Avenue exit, rather than continuing to drive west on the QEW.

Had he continued past the Victoria Avenue exit he would have been obliged to enter the inspection station and would have been subjected to an inspection. [ 5 ] When the inspection station is operating, a second sign augmented by flashing lights directs commercial truck traffic to enter the inspection station. This is a standard sign used by the MTO to inform and direct commercial traffic to enter for inspection.

While this second sign is well west of the Victoria Avenue exit its flashing lights are visible to westbound commercial traffic east of the Victoria Avenue exit. [ 6 ] In order to intercept truckers trying to avoid inspections Doussept and his colleague, Daniel Lamothe, parked in a lot adjacent to the Victoria Avenue exit to watch for and stop truckers that they suspected were trying to avoid being inspected.

While trucks are allowed to take the Victoria Avenue exit, there is little truck traffic along Victoria Avenue at 12:30 a.m. so Doussept and Lamothe decided to investigate when they saw Wybyran’s tractor-trailer combination take the Victoria Avenue exit. [ 7 ] Doussept stopped Wybyran and asked him where he was going and what he was doing. Wybyran told Doussept that he was going back to his home terminal although he may have said his home yard.

Doussept then asked Wybyran what was in the trailer that Wybyran was hauling and in answer to that question Wybyran said he picked up the trailer at the Husky Truck Stop located off the highway at Niagara-On-The-Lake. [ 8 ] The Husky Truck Stop is not a transport-trailer depot or terminal. It is a large parking lot. The owners allow drivers to park their rigs while having a meal and while taking a break. It has some pavement but it’s mostly a gravel lot with some lighting. [ 9 ] Doussept did not make contemporaneous or verbatim notes of his interaction with Wybyran.

Rather, he made his notes by relying upon THE usual “script” that he follows and made the notes some time after the questioning had occurred.

Typically he would ask: “where are you going, where are you coming from and what do you have on the truck?” In chief he testified that when he asked, “Where are you going?” he believes (sic) Wybyran answered, “Delhi.” When he asked, “Where are you coming from?” Wybyran said, “The Husky Truck Stop.” To the third question, “What do you have on the truck?” Wybyran answered, “Wooden pallets.” [ 10 ] Doussept demanded the paperwork for the load so that he could determine if the driver was in compliance with various pieces of legislation dealing with the transport of dangerous goods and the security of the load.

Wybyran told him that he did not have any paperwork. Subsequently, back at the inspection station when he was asked for paperwork again, Wybyran said that it was in the trailer or perhaps he said “it may be” in the trailer. The MTO investigators failed to make verbatim notes of what they asked Wybyran and what he said in response to their questions. [ 11 ] Doussept noted that the mandatory yearly safety inspection sticker for the trailer had expired on July 31, 2012 and that the rear doors of the trailer were padlocked. Doussept requested the key to the padlock from Wybyran who said that he did not have it.

In the result, Wybyran was directed to drive to the inspection station that he had avoided by taking the Victoria Avenue exit. [ 12 ] MTO Officer Richard Robinson, the most experienced mechanical investigator present, conducted an inspection of the tractor- trailer and of Wybyran’s log book, while Lamothe used bolt cutters to remove the padlock. The trailer was completely filled with large boxes on skids packed two across and three high. Each box was about five feet square and contained a plastic bag filled with manufactured tobacco.

Once the doors to the trailer were opened a pungent tobacco odour was obvious. [ 13 ] Wybyran was qualified to operate this tractor-trailer combination but he had failed to complete his log book correctly by failing to fill in the particulars of the trailer that he was hauling and by failing to document that he had done an inspection of the trailer before hauling it. He was given a POA HTA ticket for that and the truck company that Wybyran worked for, G.W. Squires Transportation Ltd., was ticketed for running a trailer without a currently validated safety sticker.

At the inspection station Doussept once again asked Wybyran what was in the trailer and Wybyran said he thought that it contained pallets. [ 14 ] Lamothe generally confirmed Doussept’s evidence; viz, Wybyran said he had wooden pallets on the trailer and that he picked them up at the Husky Truck Stop on the east side of the Garden City Skyway Bridge.

[ 15 ] Wybyran’s boss, Gregory Squires, the principle of G.W. Squires Transportation Ltd. testified for the defence. While his testimony is outlined in substantial detail below, he described the nature of the Husky Truck Stop, which may conveniently be set out here. He described it as a parking lot for trucks. He said that the Husky Truck Stop is full of trucks and that one need not obtain any permission to park there or drop off a trailer there.

Moreover, he said that people don’t steal trailers left at that lot and further that one need not pay any rent or fees to leave a trailer there, even for weeks at a time. [ 16 ] Wybyran’s daily log showed that he came on duty at approximately 8:30 p.m. in Walsingham on August 1, 2012 and that he was on duty and not driving until 9:00 p.m.

Wybyran had not updated his log thereafter so that he did not log that he was on duty driving from Walsingham to where he picked up the trailer at the Husky Truck Stop and he did not show that he was on duty but not driving as he hooked up the trailer and he did not show that he had done the required trailer inspection and that he had begun to drive thereafter. All of those entries were required by HTA regulations. [ 17 ] Wybyran’s incomplete log was filed as Exhibit 3.

Notwithstanding these omissions Robinson elected not to ticket Wybyran for failing to comply with the daily log book requirements as Robinson estimated that Wybyran’s trip from Walsingham to the Husky Truck Stop may have been within 160 kilometres of his home terminal and if that was the case then a driver is exempted from being obliged to make certain log book entries. [ 18 ] Robinson testified that the safety inspections that a driver ought to conduct before hauling a trailer do not require the driver to look into the interior of the trailer. [ 19 ] O.P.P.

Officer Peter Tucker attended the inspection station at the behest of the MTO investigators. He then contacted the Ministry of Finance and the R.C.M.P. In addition, he recorded an interview conducted by an O.P.P. Sergeant with Wybyran. Unfortunately, Tucker did not record the questions asked or the answers given.

Rather, he produced a narrative of the information that he said was elicited in that interview, which was, inter alia , that, as instructed by his boss, Wybyran had just picked up a load of skids by “bobtailing” down to the Husky Truck Stop at Glendale and the QEW and hooked them up to take them back to Squires’ yard. He was told the paperwork would be in the trailer and the trailer was locked when he picked it up. He had done two loads similar to this which he took to Simcoe Leaf for Squires and there was no paperwork for those loads either. [ 20 ] That is the narrative substance of what Tucker recorded.

Unfortunately, as demonstrated by Mr. Swarts’ cross-examination that evidence is of very limited value because it requires the Court to guess the questions that elicited those “answers”.

Worse, the “answers” are not the words of the defendant. [ 21 ] So, for example, while Tucker, in-chief, said that Wybyran admitted to doing two similar loads for Squires to Simcoe Leaf, in cross-examination he agreed that the question that may have elicited Tucker’s version of an answer may have been, “Have you ever hauled tobacco in the past for this company?” [ 22 ] The last witness for the Crown was the OIC, Corporal Pemberton of the R.C.M.P., who counted and warehoused the 126 boxes of tobacco being hauled by Wybyran. Each of those 126 boxes was pasted with a dated and bar-coded label.

The date on the labels on the boxes was June 20, 2012. Pemberton said the cardboard boxes were expensive and reusable. Despite the fact of that date and of a bar code having been pasted to each of these 126 boxes no admissible evidence was elicited to identify the provenance of the boxes or their labels or the significance of the bar codes.

Pemberton had to use a fork-lift to move each of the 126 boxes on their skids, as each box of tobacco weighed 250 pounds. [ 23 ] In cross-examination Pemberton conceded that he interviewed Wybyran and his employer and that Wybyran provided a “full statement” under caution to him although the substance of that statement was not adduced. Further, Pemberton conceded that no forensic evidence linked Wybyran to the tobacco: no fingerprints, no DNA, no relationship to the boxes in which the tobacco was stored.

Moreover, while Pemberton obtained a production order to view Wybyran’s telephone records they only disclosed that he had called his place of employment, (presumably on finding the trailer at the Husky Truck Stop, although the evidence of when that call was made was not clarified.) [ 24 ] The defence called Gregory Squires, the principle of G.W. Squires Transport Ltd. He testified to the following story. Squires has operated G.W. Squires Transport Ltd. for almost six years. He operates out of his yard in Walsingham, Ontario, which is between Tillsonberg and Simcoe.

He has 12 trucks, 14 drivers and about 80 customers, 70 of whom are farmers, so that he hauls agricultural products for the most part. Other than the Yellow Pages he obtains business through “word of mouth”. He also farms soybeans and corn and used to farm tobacco. [ 25 ] About two weeks before August 2, 2012 a man came into his yard but not into his shop at a time when Squires was working outside of the shop. The man identified himself as John Knellson, a farmer from the Langton area, (a nearby town). Knellson is a Mexican Mennonite name and John Knellson is a very common name in that part of Ontario.

Knellson asked if Squires did van and truck work and Squires confirmed that he did all types of agricultural products. The man said he had a little project going around collecting used pallets from farmers. He told Squires that he had a collection crew in the Niagara area and that he needed a trailer to fill and haul back to Walsingham. He said that he would advise Squires when the trailer was full and that they would “straighten up”, i.e., pay for the use and rental of the trailer then.

Squires said that he struck a bargain with Knellson for the sum of $500 to take a trailer down to the Husky Truck Stop where he would leave it unlocked and empty with the doors accessible in a middle aisle. The rental fee for the trailer would probably (sic) be a further $50 per day. Squires said that he priced out his trucks at between $100 and $125 per hour of use and that on this deal he was absorbing the approximately two hours of “bobtailing” time coming home from the drop-off as well as the two hours of “bobtailing” time for the pick-up.

The trailer was left for at least (sic) 12 days. [ 26 ] Squires did not have an available trailer at the time that he made this deal so he borrowed one, at no cost, from Todd Menary, a friend in the scrap tire business with whom he had previously swapped equipment. Menary told him to help himself to a “Walker” trailer in his yard, identifiable by a blue stripe on it. Squires did so and drove it down to the Husky Truck Stop about two weeks prior to August 2, 2012 because none of his other drivers were available.

Squires called it a quick run – about two hours down, an hour to drop off the trailer and then about two hours back. Having done so, he waited for Knellson to instruct him when to bring it back with his pallets.

[27] Squires was unable to be exact about the date when he met Knellson. Further, Squires said that while he rarely drove himself,and usually only during harvest season, he drove the trailer down and dropped it off personally because he did not have a driveravailable. [28] Squires had never met Knellson before, had never done business with him before and had no reference to him from any priorclient.

Further, he had no contact information to get hold of Knellson other than a telephone number, which Squires said Knellson leftwith him, a number through which Squires was unable to make contact with him subsequently. [29] There was no paperwork of any sort prepared to document their bargain. The contract was just a handshake.

Moreover, Squirestestified that Knellson told him that he (Knellson) would have the trailer locked to prevent anyone from pilfering his pallets and Squiressaid that was not a problem for him even though no second key to that lock was left for him. [30] Squires testified that nothing in this arrangement seemed unusual to him and he had no concerns about these arrangements.

He said that he did that, i.e., drop a trailer off and then subsequently haul it away, all the time.[2] [31] Having dropped the trailer off as instructed, Squires made no attempts over the succeeding weeks to contact Knellson and simplywaited for Knellson to approach him. That approach happened on August 1, 2012.

According to Squires, he was out by a road irrigating one of his fields on August 1st, when Knellson came along, pulled up and, having recognized each othe, they greeted one another andKnellson said, “Everything is loaded up so you can bring them in the morning or whatever.” [32] Squires “figured” that when he brought the trailer back to the yard Knellson would ‘disperse the pallets out to his friends orwhatever or use them himself.’ He thought Knellson would come and get them or give him further instructions when he returned withthe trailer of pallets.

Knellson said, “just go and get it” and Squires said, “yup that was no problem”. This conversation occurred duringthe middle of the day.

When he went back to the shop he found Wybyran, who did both body and paint work as well as driving, workingin the shop. [33] At this point Squires’ testimony was, “I said Dave do you want to go and pick up that, pick up that, there’s a trailer down at theHusky just go and pick it up and just bring it back to the yard.” He told Wybyran the load would be locked. [34] In cross-examination, inter alia, Squires testified that he thought that if someone needed to get into the locked trailer they wouldhave bolt cutters so that being locked would not be a concern whatsoever but that he did not give any bolt cutters to Wybyran because hedid not have any but even if he did, he would not have given a set to Wybyran. [35] When asked why he did not go himself he responded, “Why take their work.

I only really drive during harvest season.” [36] Squires insisted that he had no reason to have any issues with this deal, particularly because he hauls a variety of agriculturalproducts that do not get documented until he takes the load to a weigh station and gets his “weigh slip” which he uses to bill the clienthe’s hauling for.

He testified that hauling goods without documentation was not uncommon and he had no concerns up to this point. [37] Further, he testified Wybyran had not been involved in the transaction in any way up to the point where he asked him if hewanted to do the run down to the Husky Truck Stop to pick up this loaded trailer. Wybyran agreed to do the run and asked what time and Squires told him anytime.

So Wybyran left after completing some body work, getting cleaned up and having a bite to eat.[3] Squiresalso volunteered that he gave this task to Wybyran because Wybyran was going on holidays and could use the overtime pay. Moreover,he asked Wybyran to do the job because he was the only person in the shop when he came back in after his impromptu meeting withKnellson. [38] Squires heard Wybyran leave the yard to pick up the trailer at about 8:30 p.m. He said he first learned the trailer did not containpallets when Wybyran called him at 3:00 a.m.

He spoke with an O.P.P. officer and later with the R.C.M.P. corporal. He cooperated withthe police and gave them the phone number Knellson had given to him. According to Squires, he suggested to the police that since thecustomer wanted the trailer brought back to his yard, they should allow him to drive it there and catch Knellson when he came for hisload.

However, the plates had been removed from the trailer by them and no policing official responded to his suggestion of taking the trailer back to Walsingham to catch Knellson.[4] [39] Squires testified that he has had no contact from Knellson since August the 1st, 2012 and while he tried to do some investigatingto locate that man he had been unsuccessful, especially since the name was so common in the local Mennonite community. Defence Submissions [40] Mr. Swarts made submissions to the following effect. The Crown’s case founders on the second prong of R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742.[5] From the evidence called by the Crown of Wybyran’s statements, he had no knowledge of thecontents of the trailer other than that it contained pallets. Beyond being told by his boss to bring the trailer back to his boss’ yard he hadno connection to the load. While he had control of the trailer he had no knowledge that it contained unstamped tobacco. Further, hisanswers to policing authorities were corroborated by Squires. [41] Moreover, there is absolutely no forensic evidence connecting him to the contents of the trailer.

Indeed the only piece ofevidence that might point to knowledge of the contents comes from the route he took to Walsingham. By taking Victoria Avenue theCrown asks that an inference be drawn that the defendant was trying to avoid the inspection station. That is not a necessary inference todraw because there is no evidence that using Victoria Avenue was an improbable route to take.

More significantly, since it is agreed thatWybyran was ticketed for an improperly documented log book and since his employer was ticketed for a stale-dated safety certificatethere were two non-culpable reasons why Wybyran might want to avoid being inspected, if that is an inference the Court saw fit to draw, pace Arcangioli.[6]

[42] At worst, according to the defence, Wybyran was an unwitting mule. Mr. Swarts sought to draw an analogy with a FedEx deliveryman unwittingly ferrying a package of cocaine.[7] [43] Finally, Mr. Swarts submitted that if the evidence discloses any wrongdoing it suggests the wrong person was charged. TheCourt can believe everything Squires said and, if so, it must acquit Wybyran or the Court can reject everything Squires said and it muststill acquit Wybyran. If there is a guilty party revealed on this evidence it is not Wybyran.

In sum, the evidence called cannot meet theCrown’s burden of proof beyond a reasonable doubt. Crown Submissions [44] The Crown, in substance, made the following submissions. Mr. Wenglowski, for the Federal Crown, relies upon the principle ofwilful blindness and says the Court ought to impute knowledge of the tobacco to Wybyran. Further, the evidence called demonstrates tothe exclusion of any reasonable doubt that Wybyran knew he was hauling tobacco. He was hauling a load without any paperwork tosupport the cargo he was pulling.

He was hauling a load that was locked against prying eyes and that he purported not to be able toaccess. He was hauling a load of contraband and so seeing that theinspection station was operating and that he was obliged to enter itwith his contraband he detoured and deviated from the only reasonable route back to Walsingham to avoid being inspected and foundout. [45] So far as the second prong of W.(D.) is concerned, the Crown submits that Wybyran’s evidence and Squires’ evidence ought tobe rejected because Squires’ evidence is incredible. Mr.

Wenglowski submits that no one would deal with a cargo valued at almost $1.3million so nonchalantly or frivolously. No one would leave a cargo of that value unattended and vulnerable to theft or mechanicalbreakdown. Likewise, no boss would entrust a cargo of that value to a driver without giving him knowledge of the nature of his cargo. The only inference to draw from Wybyran taking Victoria Avenue was that he had to avoid being inspected because he knew he washauling unstamped tobacco.

Indeed, the fact that he is hauling a locked trailer without documentation of the load in and of itselfdemonstrates his wilful blindness to the fact that he was hauling contraband. [46] In sum, the evidence of the defendant and of Squires is incredible and ought to be rejected. Once it is rejected a conviction oughtto follow. Discussion Possession [47] The elements of possession are “knowledge of and control over the contraband in question.” (R. v. Bryan, 2013 ONCA 97, [2013] O.J. No. 673 (C.A.) at [5]) The contraband in question has been particularized as “a tobacco product, to wit:manufactured tobacco”.

The parties agree that Wybyran had control over the load of unstamped manufactured tobacco that he washauling. They disagree over whether he knew that he was hauling a load of tobacco. In that regard, R. v. Saunders, (SCC), [1990] 1 S.C.R. 1020 at [5] provides that “[i]t is a fundamental principle of criminal law that the offence, as particularized in thecharge, must be proved.” It is not enough that the Crown demonstrate that Wybyran acted as if he was hauling some type ofcontraband. The Crown undertook to prove that Wybyran knew he was hauling unstamped manufactured tobacco.

Wilful Blindness [48] The doctrine of wilful blindness applies when suspicion in an accused’s mind is aroused but the accused purposely closes hismind in order to be able to deny knowledge. (see R. v. Callejas, 2011 ONCA 393 , [2011] O.J. No. 2232 (C.A.) at [8]) Notbeing in a position to call any direct evidence that Wybyran had knowledge of the contents of the trailer the Crown submits that he mustbe imputed with knowledge of its contents on the basis of wilful blindness.

However, the Crown does not point to any physicalproperties of the load, per se, such as smell or weight or other unusual physical properties to raise the accused’s suspicions as occurred inR. v. Rashidi-Alavije, [2007] O.J. No. 4005 (C.A.). [49] Moreover, as O’Connor J. stated at paragraph [2] in R. v Chahine-Badr, (ON SC), [2006] O.J. No. 405 (SCO):“…[W]hether raised by the crown or the court during the trial, the concept of wilful blindness is not an alternative theory of culpability.It is inherent in the concept of knowledge.

As with any criminal offence, the crown must prove beyond a reasonable doubt the accusedhad the necessary knowledge of his wrongdoing and the intent to carry it out, i.e. the mens rea, to commit the offence. In R. v.

Harding(2001), (ON CA), 160 C.C.C. (3d) 225 (OCA), Weiler J.A. said at paragraph 66 that "Criminal law treats wilfulblindness as equivalent to actual knowledge because the accused 'knew or strongly suspected' that inquiry on his part respecting theconsequences of his acts would fix him with the actual knowledge he wished to avoid." Thus the requisite knowledge of wrongdoing canbe either actual or inferred through wilful blindness.” [50] Nevertheless, it is important to recall that “[w]here wilful blindness is in issue, the question is not whether the accused shouldhave been suspicious, but whether the accused was in fact suspicious.” (see R. v.

Malfara, (ON CA), [2006] O.J. No.2069 (C.A.) at [2]). “A court can properly find wilful blindness only where it can almost be said that the defendant actually knew, hesuspected the fact, realized its probability but he refrained from obtaining the final confirmation because he wanted in the event to beable to deny knowledge.” (Malfara at [3]) [51] The Crown submits that the Court can find Wybyran was wilfully blind about the nature of his cargo from its nature and value. Ido not accept that submission.

While the nature and value of contraband may allow an inference of knowledge to be drawn, thatinference derives from common sense and human experience and not from an actual suspicion to which one is being wilfully blind. [52] In my view, the doctrine of wilful blindness does not apply on the evidence called. As Justice Doherty noted in paragraph [26] ofR. v. Lagace, (ON CA), [2003] O.J.

No. 4328 (C.A.) there is “no need to quantify the level of suspicion beyondrecognition that it must a real suspicion in the mind of the accused that causes the accused to see the need for inquiry.” In this case thereis no direct evidence by way of admission from Wybyran that he was suspicious that the cargo he was hauling was contraband. The

inference of knowledge that may be drawn from the route that he took, the lack of documentation for the load and the lock on the trailerspeak, if at all, to actual knowledge and will be dealt with subsequently. Inferring Knowledge [53] Omitting the citations, Hill J. in R. v. McIntosh, [2003] O.J. No. 1267 (SCO) at [43], said: “In crimes of unlawful possession, itis not necessary for the prosecution to prove the required knowledge by direct evidence ... it [can] be inferred from the surroundingcircumstances.

Frequently … such cases are proven by circumstantial evidence.” There are a great many cases dealing with allegationsof possession of drugs or guns where, as here, the Crown submits that knowledge of the contraband can and should be inferred from thecircumstances, including the accused’s control over the contraband and the value of the contraband. [54] I shall review some of that case law and begin by reminding myself of the instruction from the Court of Appeal at paragraph [3]of R. v. Lincoln, 2012 ONCA 542 , [2012] O.J.

No. 3872 (C.A.) that “[n]o rebuttable presumption of knowledge and control forpurposes of determining possession, based solely on the fact that a person is the operator with control of the vehicle, exists at commonlaw or under the Controlled Drugs and Substances Act, S.C. 1996, c. 19. To give effect to such a premise would constitute animpermissible transfer of the Crown’s burden of proof to the accused.

While the fact that a person is the operator with control of thevehicle, together with other evidence, may enable a trial judge to infer knowledge and control in appropriate cases, it cannot, standingalone, create such a rebuttable presumption.” [55] Further along the spectrum of circumstances are cases where the proffered proof does no more than raise the cloud of suspicionof possession of contraband. R. v. Freeman, [2006] O.J.

No. 1021 (C.A.) is one such case where the Court quashed a conviction forpossession of a firearm as being unreasonable because the appellant did not have exclusive use of the vehicle in which the gun wasfound. Further, the trial judge did not indicate what evidence he was relying upon to make the finding that the appellant had the requisiteknowledge that the gun was underneath the front passenger seat of the car when the appellant was in possession of that car.

Aside frombeing one of several communal users of the vehicle, there were some other pieces of circumstantial evidence that merely raised asuspicion of possession but could not exclude reasonable doubt; viz: • the appellant was the primary user of the car at the relevant time; • that he was driving it on the day in question, and; • that he had over $3,000 on his person, although it is conceded the money was to be used to buy a "new used car" and was notconnected to any crime; (though what fact this has to do with possession is far from clear.) Accordingly, the Court held that while the evidence relied upon by the Crown may give rise to a high degree of suspicion, (emphasisadded,) it cannot reasonably support an inference that the appellant had the requisite knowledge, that is, that the gun was located underthe passenger seat in the car he was driving. [56] Freeman can be usefully compared to R. v.

Ali, [2008] O.J. No. 4232 (C.A.) where the sole issue was the adequacy of theCrown’s proof of the accused’s knowledge of the presence of a sawed-off shotgun under the driver’s seat of the car that he was driving.Ali’s appeal against conviction was dismissed because of the cumulative force of several items of circumstantial evidence thatestablished his knowledge beyond a reasonable doubt.

That cumulative force was exerted by a consideration of, inter alia, the followingcircumstances: • the location of the contraband relative to the accused; • the access to the contraband by the accused; • the exclusivity of control over the contraband exercised by the accused; • the inherent improbability that someone other than the accused would secrete the contraband in that spot in the vehicle. The Circumstantial Value of Value [57] The value of the contraband at issue has been repeatedly identified as a particularly telling circumstance from which knowledgecan be inferred. Hill J. in R. v.

McIntosh, [2003] O.J. No. 1267 (SCO) at paragraph [45] identifies and discusses the significance ofvalue (with his references omitted): “The retail value of the drug associated with a person is relevant not only to whether he or she hadknowledge the substance was a narcotic but also to whether the person had knowledge of the substance itself.” He continues atparagraph [46] in the following vein: “… The value of the illicit drug … suggests the asset is one the owner would not risk losing.

Inother words, a drug dealer, as a person with business interests in mind, is unlikely to expose cargo of this value to the risk of discovery orloss by relinquishing to another possession of the receptacle concealing the asset.” [58] The rationale for inferring “knowledge” from the value is made explicit by the B.C. Court of Appeal in R. v. Rai, 2011 BCCA341 , [2011] B.C.J.

No. 1530 at paragraph [10] where the panel approvingly quotes the trial judge’s observation that “…Theaccused was obviously trusted by the others involved in this transaction, otherwise he would not have been involved to the extent he was.With that trust comes knowledge.

The suggestion that the accused was an innocent receiver … is completely unbelievable, given theaccused's level of involvement. … An innocent receiver's role would be limited as much as possible in order to ensure knowledge is notobtained because obtaining that knowledge creates unwanted risks for those involved that the transaction or operation will beuncovered.”

[59] A similar point was made by Quinn J. and accepted by the Court of Appeal in R. v. Bryan, 2013 ONCA 97 , [2013] O.J.No. 673 at paragraph [11]: “… the trial judge observed that the quantity and value of the seized drugs made it inconceivable that thedrugs would be casually entrusted, by an admitted drug dealer, to someone who did not know what was in the vehicle. We agree.” [60] And finally, in R. v. Plaha, [2008] O.J.

No. 433 (C.A.) the court found it would not be unreasonable to infer knowledge of thecontraband from its presence in a trailer on the basis that it is unlikely a trafficker would entrust a large quantity of drugs to people who were unaware of their presence.[8] Judgment [61] I reject the evidence of Squires as a tissue of lies.[9] The tale he tells is completely incredible for many reasons.

Some of thosereasons, in no particular order, include, but are not limited to the following: • that he was unable to be specific about the date when he first dealt with the chimera he named Knellson; • that he was unable to be specific about the number of days the trailer was allegedly left at the Husky Truck Stop; • that despite testifying that he rarely drove himself and usually only during harvest season, he alleged: (

i) that he drove a trailer that he had to borrow, (ii) to effect a money losing bargain, (given that as he described it the job entailed about four hours of profitless driving), (iii) at a time when there was no urgency requiring him to do the driving; and, (iv) with no timeline set for this alleged deal to be completed; • that he effected a money losing bargain, without any paper work and without any set schedule; • that he allowed this alleged new client to lock his (i.e.

Squires’) trailer without providing Squires with a key to the lock; • that even if he did own a set of bolt cutters he would not have given it to his driver to defeat the lock that he was told would be onthe trailer; • that he met with Knellson on only two occasions when no one else was apparently present to witness and attest to the existence ofKnellson, (the first time being outside of Squires’ office and the second time a chance meeting by a field Squires was irrigating); • that Squires had a business telephone yet “Knellson” travelled to Walsingham, in person, on each occasion without a prior call toensure Squires was in; • that Knellson could not be reached through the number he allegedly gave to Squires; • that Squires sent Wybyran to pick up the trailer because Wybyran was about to go on vacation and could use the “overtime”,which amounted to about $45 based upon a five-hour trip at a base regular hourly rate of $18 an hour; • that Squires would pay overtime for a job that was, on his explanation of it, a money losing proposition, (given about four hoursof driving time without recompense,) and further, that Squires would pay overtime wages to a driver for a load for which there was nourgency; • that Squires made no attempts to contact Knellson for about two weeks despite have no deposit, no contract and no priorinvolvement with Knellson; • that nothing that Squires described as having been a similar mode of conduct in his trucking business bore any real resemblance tothe scheme he alleged he was carrying out for Knellson; • that the alleged scheme required the trailer to be loaded while parked at a truck stop and not at a cartage terminal or other secureyard; and, • finally, that Squires testified that he never heard from Knellson again, despite the confiscation and destruction of almost 1.3million dollars’ worth of manufactured tobacco that Squires alleged was Knellson’s.

I do not believe Squires’ testimony about a pallet project or about the existence of John Knellson and I reject that testimony completely. The Crown’s Case [62] The Crown’s submissions against Wybyran comes down to this: at his employer’s instruction, in the dark of night, he picked up aloaded trailer that he could not personally check because it was locked, and without being given a key for the lock or a bill of lading orany documentation for the load. Then, he took a route back to his employer’s yard, in the dark of night that avoided passing aninspection station. The load was very valuable.

It was 126 boxes of unstamped manufactured tobacco worth $1,285.920. No one wouldentrust such a valuable cargo to anyone without first alerting that person to what he was being entrusted with. Therefore Wybyran musthave known what he was hauling. Moreover, Wybyran’s conduct in taking Victoria Avenue to avoid the inspection station proves thathe knew what he was hauling since that route makes no economic or strategic sense unless one’s purpose is to avoid inspection. [63] Those submissions are compelling and, after some anxious consideration, I find Wybyran guilty as charged. I reject as

unbelievable his statements, which were adduced through Crown witnesses, that he thought he was hauling skids. Having rejected thosestatements for reasons that I shall explain, the inference of knowledge is the only reasonable one and I am, accordingly, left with no reasonable doubt about his guilt. (see R. v. Bryan, 2013 ONCA 97 , [2013] O.J. No. 673 (C.A.) at [6], [8] and [9][10]) [64] I reject Wybyran’s statements that he thought he was hauling wooden pallets because of his action in taking Victoria Avenue. Ifind that he did so to avoid being inspected.

A trailer full of skids or wooden pallets is a cargo that could easily withstand inspection. Ifhe genuinely believed that is what he was hauling he would have had no cause to take Victoria Avenue. Yet, despite alleging that hethought he was hauling an innocuous load he took a route that would allow him to avoid being inspected. His actions belied his words. [65] Moreover, I am of the view that there was no other innocent explanation for taking Victoria Avenue at 12:30 a.m. in Augustrather than submitting to an MTO inspection.

It must be recalled that the lighted sign denoting that the inspection station was open,operating and directing commercial traffic in for inspections was visible well east of the Victoria Avenue exit. Moreover, taking theQEW to the Lincoln Alexander Parkway and then to Highway No. 6 is the fastest and most direct route home to Walsingham. Yet,Wybyran took an exit that would be less direct and slower but would avoid an inspection. [66] Mr. Swarts urges that the ratio in Arcangioli precludes any culpable

interpretation of Wybyran’s detour because his log book wasincompletely filled out and that, the defence submits, is a complete answer to the impugned detour. Moreover, in addition to the logbook problem, the trailer had a stale-dated safety certificate, which is another POA offence and equally may well explain Wybyran’sattempt to avoid inspection. The answer to both submissions is that there is no evidence that Wybyran knew of or adverted to eitherconcern.

Further, the ratio in Arcangioli only applies “where an accused’s conduct may be equally explained by reference toconsciousness of guilt of two or more offences, and where an accused has admitted culpability in respect of one or more of theseoffences.” (see footnote 6, paragraph [43] of Arcangioli at page 11, above.) There are no such admissions in the evidence before me.

The fact that some time subsequent to August 2, 2012 Squires paid both POA tickets, the first issued to Wybyran personally for notdocumenting that he completed an inspection of the trailer he was hauling before he commenced to haul it, and the second issued toG.W. Squires Transport Ltd. for operating a trailer without a currently dated safety certificate do not implicate the rationale of Arcangiolion August 2, 2012.

There is simply no evidence from or attributable to Wybyran that either potential POA infractions motivated hisbehaviour in any way that night. [67] Another point not expressly made but one with which I struggled, notwithstanding, is that if Wybyran knew what he was haulingwhy would he not avoid the risk of inspection by detouring south off the QEW at one of the many exits well prior to the inspectionstation that were available to him, particularly at Highway 406? The answer appears to be a lack of thoughtful preparation.

I infer that hehoped the inspection station would not be operating at that late hour and when he saw that it was he took Victoria Avenue to avoid itthen. Equally, why fill out a log book at all if this was to be an undocumented and secret run?

Again, I cannot be sure but neitherunanswered question raises a reasonable doubt about Wybyran’s guilt in my mind given the constellation of other factors; viz the lockedtrailer, the lack of a key for the lock; the late night timing of the trailer pick-up and drop-off; the lack of documentation for the load, thevalue and nature of the load and the effort made to avoid inspection. [68] There is another point that I feel the need to document.

There is a contradiction between the evidence of Squires and ofWybyran, with respect to what Wybyran was doing on August 1, 2012 prior to leaving Walsingham and bobtailing down to the HuskyTruck Stop. Squires testified Wybyran was doing shop work and he offered Wybyran overtime to do this run. However, Exhibit 3,Wybyran’s log book, shows him to be “Off Duty” as opposed to “On Duty (Not Driving)”. Their stories don’t jibe. Likewise, Squiresmaintains this pallet project was completely undocumented.

Possibly other than a telephone number that reached no one, there was not atittle of paper documenting this alleged load of pallets. Therefore Squires would not have had any cause or reason to tell Wybyran thathe should expect to receive or find any paperwork respecting this trailer hook-up. Yet, Wybyran is reputed to have told the O.P.P. thatthe paperwork for the load might be in the trailer. I merely note and do not stress this anomaly because none of the investigating orpolicing agencies involved with Wybyran recorded his utterances in a verbatim fashion.

Other Matters Considered [69] In arriving at my judgment I have not forgotten that there is no forensic evidence to tie Wybyran to the tobacco. Wybyran was, ineffect, a courier but that limited involvement is still captured by s. 32(1) of the Excise Tax Act, 2001. Additionally, I note, and indeedwas struck by Robinson’s testimony, that a driver is not obliged to check the interior of a trailer before commencing a trip.

Neither ofthese matters has caused me to have a reasonable doubt about Wybyran’s guilt, given the evidence adduced and the facts as I have foundthem. [70] In brief compass, on the evidence that I have accepted, the only rational conclusion in all of these circumstances is that Wybyranhad knowledge of what he was hauling and hence was in possession of the load of unstamped manufactured tobacco contrary to s. 32 ofthe Excise Tax Act, 2001. Dated at St. Catharines this 23rd day of January 2014 __________________________ J.S. Nadel (O.C.J.)

[2] However, the examples Squires gave of doing “that kind of thing” all of the time were nothing like this bargain. “We do that all thetime it’s not unusual for pallets. We did quite a bit of work for Turtle Island, Ernie Such. He’s a watermelon producer. We’d get a loadof melons to Toronto and stop in at Shep Pallet, pick up pallets and bring them back to his farm. They would unload them or whatever.

I’d leave trailer overnight if I got back late so his crew would unload.” [5] 27 In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to thatissue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically,the trial judge is required to instruct the jury that they must acquit the accused in two situations.

First, if they believe the accused.Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused'sevidence in the context of the evidence as a whole. See R. v. Challice (1979), (ON CA), 45 C.C.C. (2d) 546 (Ont.C.A.), approved in R. v.

Morin, supra, at p. 357. 28 Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge.A trial judge might well instruct the jury on the question of credibility along these lines: • First, if you believe the evidence of the accused, obviously you must acquit. • Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. • Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. 41 In this case, the jury was clearly told that people sometimes flee in panic from the scene of a crime, even if they are entirelyinnocent.

However, in some circumstances, the direction provided in Gudmondson will be inadequate, and the jury ought to be givenfurther instruction. That is true in the present case. The appellant admitted to committing one offence, common assault, but deniedhaving committed another, aggravated assault. The issue is whether the evidence of flight could support an inference of guilt with respectto the latter rather than the former. 42 A similar situation arose in United States v. Myers, 550 F.2d 1036 (5th Cir. 1977). The accused was wanted for two robberies; onewas committed in Pennsylvania and the other in Florida.

The reported decision concerns the latter. There was evidence that the accusedfled when approached by FBI agents.

Clark J. canvassed the law, adopted the view expressed in McCormick on Evidence (2nd ed. 1972),sec. 271, at p. 655, and concluded that the proper approach determines whether there is sufficient evidence in support of drawing fourinferences: (1) from the accused's behavior to flight, (2) from flight to consciousness of guilt, (3) from consciousness of guilt to consciousness of guilt concerning the offence in question, (4) from consciousness of guilt of the offence in question to actual guilt of the offence in question. Clark J. held that the third inference could not be drawn.

Since the accused knew that he was wanted for a robbery committed inPennsylvania, the possibility existed that he fled solely out of consciousness of guilt with respect to it, rather than the Florida robbery. Tobe useful, flight must give rise to an inference of consciousness of guilt in regard to a specific offence. 43 The test articulated in Myers provides helpful guidance on the inferences that may be drawn from evidence of an accused's flight (orother possible indicia of consciousness of guilt, such as lying).

Such evidence can serve the function of indicating consciousness of guiltonly if it relates to a particular offence. Consequently, where an accused's conduct may be equally explained by reference toconsciousness of guilt of two or more offences, and where an accused has admitted culpability in respect of one or more of theseoffences, a trial judge should instruct a jury that such evidence has no probative value with respect to any particular offence. 44 Those principles can be applied to the facts of this appeal.

The trial judge simply told the jury that people often flee the scene of acrime even if they are entirely innocent.

Having said what she did upon this matter, she also should have told the jury that because theappellant's flight was equally consistent with both common assault and aggravated assault, it could not be evidence of guilt of the latter.Any inference to be drawn from flight disappears when an explanation for such flight is available, as it is here. [8] However, this was an appeal from a non-suit ruling at the close of the Crown’s case and so while the matter was remitted for trial,the Court at paragraphs [7] and [8] stressed that “[t]here is much to be said for the respondents' argument that this inference cannot be drawn in this case.

The drugs were well hidden inthe trailer in locked bags to which the respondents did not have keys. The documentary evidence establishes that the respondents did nothave access to the trailer during the loading operations. Moreover, the bags themselves contained mostly fake bricks of cocaine. It couldwell be argued that whoever placed the drugs in the trailer was not placing any trust in the respondents. On the other hand, the trailer was unlocked and therefore the respondents, who had exclusive control of it except during the loadingoperations, had access to the contents of the trailer.

We cannot say that the inference sought to be drawn by the Crown is unreasonable.”

[9] A 'tissue of lies' is a complex, interwoven series of lies, not a flimsy and unconvincing one. [10] [6] The appellant did not testify at trial. In aid of his defence, he called one witness … who essentially testified that the drugs and money seized by the police belonged to him and that he had temporarily loaned his rental car to the appellant … while, unbeknownst to the appellant, the drugs and money were in the vehicle. [8] As the trial judge observed, on rejection of the critical features of Mr.

Kulom’s testimony, there was “no evidence before the court as to why the accused was in a motor vehicle possessed with drugs and proceeds of crime.” [9 ] Having rejected the salient aspects of Mr. Kulom’s evidence and having concluded that it did not raise a reasonable doubt, the trial judge reviewed the evidence relied on by the Crown, concluding that it “admit[ted] of nothing other than the culpability of the accused” and that it was “inconsistent with any other finding”.