R v Shams, 2017 MBCA 116

Citation: R v Shams, 2017 MBCA 116 Date: 20171128 Docket: AR17-30-08879 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Marc M. Monnin Mr. Justice Christopher J. Mainella BETWEEN: ) R. T. Amy andHER MAJESTY THE QUEEN ) C. L. Mahoney ) for the AppellantRespondent) ) S. C. Cawley and- and - ) H. D. P.

Crawley ) for the Respondentqamer shams ) ) Appeal heard and(Accused) Appellant) Decision pronounced: ) November 28, 2017 On appeal from R v Shams et al, 2017 MBQB 33 MAINELLA JA (for the Court): [1] The accused was convicted after trial by judge alone of possession of 388 pounds of marihuana for the purpose oftrafficking. The drugs were discovered during an inspection of a semi-trailer on the outskirts of Winnipeg.

Inside the semi-trailer, thedrugs were in boxes and hockey bags stashed amongst a shipment of electronics that the accused and another man were transporting fromDelta, British Columbia to Toronto, Ontario. The sole issue at the trial was whether the accused had the requisite knowledge. [2] The accused testified and was disbelieved as to not knowing about the marihuana.

He does not challenge the trialjudge’s negative credibility finding; rather, he argues that the verdict is unreasonable because there is an evidentiary gap as the person(s)who actually loaded the semi-trailer in the warehouse in Delta did not testify. He says this absence of evidence means that guilt was notthe only reasonable conclusion available on the totality of the evidence as it was possible that the loader(

s) may have planted the drugswithout his knowledge as part of a smuggling scheme where he was a dupe (see R v Villaroman, 2016 SCC 33 at paras 35-43). [3] The trial judge properly instructed himself on the applicable legal principles as to drawing the inference ofknowledge given the Crown’s case was entirely circumstantial (see R v Oddleifson (JN), 2010 MBCA 44 at para 25, leave to appeal toSCC refused 2010 CarswellMan 606).

The standard of review of his decision is “whether the trier of fact, acting judicially, couldreasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence” (Villaromanat para 55). [4] The trial judge concluded that there was no reasonable alternative inference on the whole of the record other thanguilt. We would not interfere with that conclusion. [5] In our view, the theory that the accused was a dupe in a smuggling scheme of others amounts to speculation. Whilethere is a gap in the evidence as the loader(

s) of the vehicle did not testify, the Court heard standard business practice evidence which isacceptable to support the drawing of a reasonable inference (see R v Thompson (2001), (ON CA), 151 CCC (3d) 339at para 9 (Ont CA); Gerelus v Lim et al, 2008 MBCA 89 at para 64; R v Ashmore, 2011 BCCA 18 at para 61, leave to appeal to SCCrefused 2012 CarswellBC 179; and S Casey Hill, Louis P Strezos & David M Tanovich, Canadian Criminal Evidence, 5th ed (Toronto: Thomson Reuters Canada, 2013) (loose-leaf updated 2017, release 2)

Part VI at ch 31:60.50 (online: WestlawNextCanada). Accordingto witnesses from the shipping company in Delta, the standard practice of loading was followed, making it improbable for ninecontainers of marihuana, visually different than the legitimate cargo, to have made their way onto the semi-trailer without being noticed.

[ 6 ] There is also a constellation of other facts which undermine the reasonableness of the alternative inference asserted by the accused. The witnesses from the shipping company testified that the configuration of the cargo later found by police was not typical because it was not secure and would have exposed the company to liability for any damage to the electronics during transport. Next, the logs of the vehicle show an unexplained gap of seven hours in Richmond after the electronics had been placed in the vehicle, providing an opportunity for the marihuana to be loaded.

Leaving aside the inherent risks involved in shipping one million dollars’ worth of drugs across Canada by vehicle without supervision, the theory of a smuggling scheme using a dupe is premised on the unloader(

s) in Toronto being corrupt. This was unlikely. It was an agreed fact that the unloading would have occurred under video surveillance in a secure facility such that the unloader(

s) would have been filmed carrying hockey bags full of marihuana off a vehicle supposedly carrying only electronics. Finally, according to the Crown’s expert witness, the semi-trailer, which the accused had bought new, had two post-factory modifications designed to facilitate the smuggling of contraband: a hidden compartment and an altered door latch that opened in such a way so as to not break any seal that a shipper would place on the door to the cargo area of the semi-trailer, allowing for the clandestine loading of the semi-trailer. [ 7 ] In our view, the verdict was entirely reasonable in the circumstances. Accordingly, the appeal is dismissed. JA JA JA