R. v. Kang

2009 BCSC 1826 R. v. Kang

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Kang, 2009 BCSC 1826 Date: 20091009 Docket: X070480 Registry: New Westminster Regina v. Ajmer Singh Kang Before: The Honourable Mr. Justice Schultes Oral Reasons for Judgment Counsel for the Crown: C. Hough Counsel for the Accused: D. Albert & M. Stern Place and Date of Trial: New Westminster, B.C. September 14-17, September 21-22, 2009 Place and Date of Judgment: New Westminster, B.C. October 9, 2009 1. OVERVIEW [1] The accused Ajmer Singh Kang is charged with importing cocaine into Canada, contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996 c. 19 and possession of cocaine for the purposes of trafficking, contrary to s. 5(2) of the same Act. [2] The charges result from an incident on January 15, 2007 in which a truck-trailer unit driven by the accused re-entered Canada at the Pacific Highway crossing and was found to have significant amounts of cocaine hidden in its load of lemons. [3] The issue in this case is whether the Crown has proven beyond a reasonable doubt that the accused had knowledge of the presence of this cocaine in his trailer. If he did, it is common ground that his actions in bringing the cocaine into Canada and the degree of control that he would have exercised over it, would otherwise be sufficient to support his convictions for these offences.

2. THE BORDER SEARCH [4] At about 8:10 on the evening of January 15, the accused pulled his truck and trailer up to an inspection booth at the Pacific Highway border crossing into Canada. His manner of answering certain standard questions that were posed to him there by Border Services Officer Prange caused her to refer him for what is known as a secondary inspection. During this initial questioning, the accused told Officer Prang in response to one of her questions that he had observed the trailer being loaded. [5] A secondary inspection involves a driver backing his trailer into a designated bay within the Border Services facility and potentially having its contents unloaded for a detailed inspection. Such an inspection can tie a truck and its contents up at the border for two or three hours. [6] As directed, the accused backed his trailer into an inspection bay. [7] When the accused's trailer doors were first opened at the start of the secondary inspection, Officer Dunlop noticed that chains, of the kind that are normally placed on a truck's tires to give traction in snowy conditions, were piled in front of the load of lemons on the left side at the rear of the trailer with two cardboard boxes on top of them. [8] These chains, which Officer Dunlop said likely weighed more than 100 pounds, are normally kept in "jockey boxes" on the outside of the vehicle. Officer Dunlop said

they would have had to have been moved to permit the lemons to be unloaded. [9] The contents of the trailer were unloaded by Tom Martin, a forklift operator. Among other kinds of produce in the trailer, the load of lemons was made up of six pallets bearing stacked boxes. [10] These pallets of lemons were unloaded in the same order in which they were placed in the truck. Officer Prosser, who supervised the search, assigned numbers to them - pallet number 1 being the one closest to the doors of the trailer and continuing until number 6 which was the farthest back within the trailer. [11] I infer from the photographs and the loading sheet that were entered in evidence that each pallet bore approximately 54 cardboard boxes of lemons, stacked six rows high with nine boxes per row. [12] Each box had a cardboard lid that was meant to fit over its top and sides. [13] Each pallet had white cardboard corners running from the pallet surface to above the height of the top row of boxes. These corners and the overall shape of the stack were held in place by narrow, clear packing tape that was wrapped around the entire structure. [14] All of the pallets of which there are photographs (numbers 1 through 5) also had yellow banding strapping wrapped around them, except for pallet number 2 which had the banding strapping wrapped tightly around boxes, in two horizontal rows inside the cardboard

corner. The other pallets had a single observable row of this banding strapping, which appears to have been wrapped more loosely and outside the cardboard corners. Officer Prosser testified that the strapping is usually tight if all of a load is the same. [15] Some of the boxes on pallets 1, 3, 4 and 5 appear to have been slightly disturbed. The lids of the top row of boxes in pallet number 1 appear to be raised. On pallet 3 the middle box in the top row appears to have its lid halfway off. On pallet 4, the middle box on the top row is flipped upside down and on pallet 5 the box on the right side of the top row was slightly crushed. [16] Cocaine was found in pallets 4 and 5. It consisted of a total of 100 individually-wrapped, brick-shaped packages of cocaine, each weighing approximately one kilogram. [17] During the inspection of the pallets after they had been unloaded, Officer Prosser had observed plastic through the holes in one of the boxes on pallet 4. These holes are normally kept clear to ensure air circulation within the boxes. [18] Closer examination revealed that five boxes on pallet 4 contained cocaine, with 14 bricks in each box. These boxes were in the second and third rows from the top of the stack of boxes. Four of the boxes were an outside layer, all on the same side of the pallet. [19] When pallet 5 was examined, three boxes were found to contain cocaine with

two bricks in one box and 14 each in the other two. One of these boxes was in the middle of the second row and another was in the middle of the third row. Officer Prosser could not recall exactly where the third box containing cocaine was located within the stack. [20] The wrapping in which the cocaine was held was searched for fingerprints by the police. Only one useable fingerprint was found and it was not of the accused. This print also did not match anyone in the fingerprint databases. [21] The other four pallets of lemons were also examined and no cocaine was found in them. [22] The accused consented to a search of the cab of his truck unit. Inside, the officers found yellow banding strapping of the kind that was wrapped around the pallets of lemons. They also found the accused's trip logs, a notebook in which he kept trip information and three cell phones. [23] With respect to the banding strapping, Officer Prosser said she had seen this type of strapping in truck cabs only infrequently in her truck inspections before and after this incident. [24] The accused did not display signs of nervousness during any of his dealings with Border Services officers. In response to a question from Officer Dunlop about whether he owned his truck, the accused said words to the effect that he was "just an employee." 3. AMAR TRUCKING [25] At the time of the border search the accused was

driving as an independent contractor for Amar Trucking. Its proprietor, Amar Johal, said that the accused had begun driving for him in 2003 and, after working for a short time for another company in Abbotsford, had returned in 2006. [26] Mr. Johal co-signed the loan to allow the accused to re-finance the truck that he had purchased in 2006. The truck was insured in Mr. Johal's name because of the rate that was available to his company. [27] Mr. Johal described the process by which drivers working for him take loads of produce from British Columbia down to California and, once they are there, pick up California produce that is returning to British Columbia. The drivers are paid a flat fee less eight percent and the cost of their fuel. [28] On the trip in question, the accused was transporting a load of beets from Delta to Arvin, California. Once he was in California, he would have spoken to Mr. Johal by phone to find out what items he was to pick up and from where. All of the produce in this case was ultimately bound for Pacific Produce in Vancouver, for which Amar Trucking delivered regularly. [29] The produce for pickup (all from different locations in California) was potatoes, carrots, watercress, a Chinese vegetable known as yu choy sum, and the lemons. [30] Mr. Johal explained the accused's trip logs, which all commercial truckers are required to keep for their trips.

Because of the legal requirement that truckers sleep a certain number of hours in relation to their hours on the road, ten hours each respectively in 2007, there is a tendency for them to under-report their time spent engaged in certain activities, so that they are able to drive longer and thereby return home sooner. It appeared to Mr. Johal that the accused had done that in his logs leading up to the border search, by the use of uniform 15-minute periods to describe various trip-related activities. [31] Mr. Johal said that the drivers are supposed to watch their trailers being loaded or else they could be liable for deficiencies, but he also conceded that many drivers do not do so - preferring to sleep, have coffee, or go for lunch. It would also not be unusual for truckers not to lock their trailers if they had only a load of produce. [32] Mr. Johal did not believe that the yellow banding strapping was carried in his trucks but he agreed that if a driver had a problem with a load it would come in handy. He thought, however, that it was the shippers who would make such adjustments to a pallet. [33] He was not troubled by the apparent disturbance to the boxes in the top row as on pallets 3 and 4, in terms of a driver accepting it from a shipper in his load. His only concern would be if a box was actually broken. [34] He gave evidence that trucks are not permitted to unload at

Pacific Produce until 10:00 o'clock each night. If a driver crosses the border with time to spare before 10:00 p.m., he would go and line up at Pacific Produce and wait to unload, although Mr. Johal would have no control over what the driver actually did. [35] If a load transported to Pacific Produce comes up short in terms of its contents, Pacific Produce will advise his company and the cost will be deducted from the driver's cheque.

4. PACIFIC PRODUCE [36] The Crown called various employees of the Pacific Produce warehouse, where the accused's produce load was headed, for the purposes of demonstrating the unlikelihood of the cocaine shipment being unloaded from the accused's truck there without being detected. This was in turn intended to support the inference that the drugs were to be unloaded between the border crossing and Pacific Produce, a process that, in the Crown's submission, would inevitably have required the knowledge and cooperation of the driver. [37] Gary Fung, a long-time employee who works in purchasing, described the receiving process at the company's warehouse which is on Malkin Avenue in Vancouver. [38] Delivery of produce purchased from California is arranged by faxing a load sheet to the trucking company indicating the pickup points. [39] There are five employees working in the receiving department at night. After a driver backs his trailer into the loading bay, the load is taken into the warehouse with a forklift. A "piece count" is performed to ascertain whether the load is complete and a quality control examination is also carried out on the produce. If the night shift has time to deal with any loads that turn out to have quality control problems, its employees will do it, but if not the load will be isolated for the day shift employees to handle. [40] Mr. Fung was shown the photos

of pallets 1 to 5 that were taken by the Border Services officers. Except for pallet 2, which looked fine, the disturbances in the boxes on the other pallets would have caused his employees to examine several boxes in each load to ensure that the contents were in good shape. The apparent obstruction of the air holes of a box would also have been a concern. [41] Sean Durand, who is the assistant night manager, agreed with this requirement for further inspections of the pallets showing disturbances to the boxes, as did Wai-Ho Kong, the night shift manager. Mr. Durand agreed with Mr. Fung that the pallets with boxes showing disturbances would be pushed aside for the day shift to deal with. [42] Mr. Durand also described the general quality control process for all incoming loads - checking the air holes to ensure proper circulation of air and checking the pulp temperature of the fruit. [43] Mr. Durand observed that the yellow banding strapping is normally put on the pallets of lemon boxes inside the cardboard corners, to support the weight of the load while travelling. Putting the banding strapping on the outside would defeat that purpose, in his view. He described pallet 2 as a standard pallet in that regard. [44] Mr. Khan, on the other hand, thought it was normal for the banding to be around the outside of the corner. [45] With respect to the suggestion that some loads would

simply be moved to other trucks for onward shipping without any inspection, Mr. Durand stated that every pallet had "to hit the floor" at least once and that Pacific Produce would not want to ship a "shorted" load, that is, a load that contained an insufficient amount of product. [46] Two other nightshift employees in receiving who were called by the Crown, Wilfred Silango and Kent Nguyen, were not able to provide as much assistance on these issues. [47] Mr. Nguyen had convictions for three counts of trafficking in cocaine, as a result of sales of the drug that he had made to undercover police officers in 2006 and 2007. This period included the time that he was working at Pacific Produce. He was arrested in 2007. He denied any involvement in the offence with which the accused is charged and denied representing to undercover officers during his case that he had spoken to them about being able to deliver cocaine in the amounts of a pound. He recalled speaking to the officers about ounce levels of cocaine. [48] Mr. Silango described his duties in a very basic way and denied the suggestion that some loads were put directly on outgoing trucks without further examination. [49] Ghulam Khan was the night security guard at Pacific Produce at the time of this alleged offence. He described how employees are required to sign in and out of the warehouse and to provide an invoice to prove

their purchase of any produce items from within the warehouse. Mr. Khan was also required to search any backpacks that employees had with them. He had never seen an employee leave with more than a box or two of produce. He acknowledged, however, that he simply examined the invoices that employees provided and did not look inside boxes. His work was also on the opposite side of the building from where the unloading of the trailers took place.

5. EXPERT EVIDENCE OF STAFF SERGEANT MacDONALD [50] Crown called Staff Sergeant MacDonald of the RCMP as an expert witness to give his opinion about certain aspects of cocaine trafficking. The majority of these aspect, having to do with the manner in which cocaine is imported to British Columbia, the organizational structure of cocaine importing organizations, and the value of the cocaine found in the accused's trailer, were not controversial. [51] However, counsel for the accused took strong exception to the Crown's request to qualify Staff Sergeant MacDonald to give an opinion on the practicability of importing a load like the one in this case using a courier who is unaware of its presence or, as Crown counsel termed it, a "blind courier". After hearing submissions, I ruled that evidence could also be given in this disputed area. [52] Staff Sergeant MacDonald is a 30-year RCMP member with extensive experience in all aspects of drug investigation. Although much of his experience has been in the context of investigating the importation of narcotics from Asia, he also has experience in the importation of cocaine from the U.S. into Canada using commercial vehicles. He estimated the value of the cocaine found in the accused's trailer, if sold at the multi-kilogram level, to be in the range of $2.5 to $3 million. [53] By way of background, he testified that cocaine is produced in

South America and then shipped to the United States, where further arrangements have to be made for onward shipment into Canada. [54] Great pains are taken within drug importing organizations, he said, to isolate the head of the organization from exposure, in the event that any problems occur. An overseer would be delegated the task of making arrangements with the person who would actually do the transporting of the cocaine. [55] Cocaine is often hidden within legitimate loads of imported goods such as produce. The legitimate load will be picked up first and then the cocaine will be inserted into it. The location of the cocaine within the load will be identified in some manner. [56] A significant amount of trust would have to be earned with the U.S. organization selling the cocaine before a load of this size could be obtained for importing to Canada. [57] Staff Sergeant MacDonald believes that using a blind courier for the type of load found in the accused's trailer would be impracticable. In essence, it would expose the load to an unacceptable risk of loss if the unwitting transporter engaged in activities that attracted the attention of the police or in other activities that could not be controlled by the overseer. In his opinion, the primary objective is to preserve the load at all costs, since if it is lost the head of the organization is liable for millions of dollars to

replace it. [58] Counsel for the accused put the alternative scenario to Staff Sergeant MacDonald in cross-examination that the primary objective of the organization's head could actually be insulating himself from subordinate members being caught and then turning on him in exchange for a reduced sentence. This type of plea bargaining was acknowledged by Staff Sergeant MacDonald to be a common feature of drug investigations in the United States. In this scenario, the loss of a load, if the blind courier did something to jeopardize it would be a financial expense only, one that would be infinitely preferable to a lengthy prison sentence for the head of the organization. [59] Staff Sergeant MacDonald maintained his position that the risks of such a scenario, including the possibility, for example, of staging a carjacking of the unwitting driver once he had crossed into Canada, were too great for it to be practicable.

6. THE EVIDENCE OF THE ACCUSED [60] The accused described his work for Amar Trucking. In a typical trip, he would call Mr. Johal after unloading his Canadian produce in California and find out where to go for pickup. The accused would note the pickup locations and details in the notebook that was later seized by the Border Services officers. [61] Just as Mr. Johal explained, the accused indicated that his trip logs were not accurate, because if he had completed them according to regulations he would have had to sleep longer, which in turn would have delayed his return to Canada. He agreed that in 2007 the required proportions were ten hours driving and ten hours sleeping. He said that both the recorded times and some of the places at which he said he had slept were inaccurate. He advised that this was common practice in the trucking industry. [62] He described delivering his load of beets and then calling Mr. Johal to see where he was going next. He received information on a series of pickups, culminating with the load of lemons from Ventura, California. [63] The accused repeatedly indicated that his practice with respect to observing the loading of his trailer was that if the process was going to take any more than five minutes, he would go back into his truck and wait. He did not recall if he observed any of the loading on this trip, but said he told Officer Prange at the

border that he had observed it because he did not want to risk a secondary search and a three-hour delay to his delivery. [64] He admitted that the yellow strapping found in his truck was his and said that he sometimes used it when doing multiple pickups, if pallets fell back and he had to restack them. It was an alternative to using the load bars, which is another device in his vehicle, if the pallets fell back and the strapping broke. He did not use the yellow banding strapping on this trip. [65] Despite the fact that loads fell over only about every three months, he said he still felt it necessary to have the strapping in the cab with him. It was not sufficient in his view simply to rely on the shippers in the places he picked up from having it available. [66] He reviewed the photos of the pallets of lemons in this case and said nothing about the way they were stacked and held would have caused him any concerns. [67] He did not recall whether he engaged the locking mechanism on the trailer after the last load. [68] With respect to the tire chains in the trailer, he said that he did not have time to hang them up and so just threw them in the back of the trailer at the start of his trip. It would have taken him about 45 minutes to put them in their proper place. He maintained that the chains did not get in anyone's way during the loading in his trip and that no one said

anything to him about that. [69] Of the three cell phones found in his cab, he said that one was his personal phone, the second was one he used for calling family in India, and the third he had found at a truck stop. He was going to use the third one to call India, presumably until its legitimate owner had it disconnected. [70] The accused said that he could not recall who "Manny" and "Kalvin" were which were - two names with accompanying phone numbers that he had written in his notebook - or when he had written their names there. [71] He also described a period of time during which he took his own truck off the road because it consumed too much fuel and began to drive the truck of an associate, Mr. Sidhu, while the latter was in India. [72] It was put to him in cross-examination that this arrangement made no sense economically because the result would be that both he and Mr. Sidhu would be paying for trucks that neither one of them was driving. He said that he was only concerned about his own truck payments.

7. CIRCUMSTANTIAL EVIDENCE TO PROVE KNOWLEDGE -

ESSENTIAL PRINCIPLES [73] Although this decision rests primarily on an analysis of the facts and the inferences that can be drawn from them, it is useful to emphasize certain essential principles that inform this process. [74] Obviously, before a conviction can result from circumstantial evidence, the guilt of the accused beyond a reasonable doubt must be the only rational inference to be drawn from the evidence. [75] Other rational inferences need only be sufficient to raise a reasonable doubt. There is no onus on the accused to advance or develop alternative theories. For a good analysis of this, see the reasons of Madam Justice Charron in R. v. Griffin, [2009] S.C.J. No. 28. [76] Before an inference can be drawn, there must be proven facts which logically give rise to the facts sought to be inferred. Otherwise, the process is one of impermissible speculation. The classic reference for this is Caswell v. Powell Dufferin Associated Collieries Ltd., [1940] A.C. 152. [77] It is the cumulative weight of the facts that must prove the accused guilty beyond a reasonable doubt and not each individual fact: R. v. Morin (1988), 44 C.C.C. (3d) 193 (S.C.C.).

8. DISCUSSION [78] I turn first to the evidence of the accused, because if I believe that evidence or am left in a reasonable doubt by it, I must find him not guilty and that of course ends the matter. [79] I should begin by saying that I do not agree with the Crown's submissions about certain aspects of the accused's evidence that are said to undermine his credibility. [80] While the falsification of the trip logs is a regrettable practice, and while it does indeed have the effect of masking the accused's actual movements in California to some extent, I accept Mr. Johal's evidence that the reason truckers engage in it is to enable them to complete their trips more quickly with less sleeping time. [81] The same analysis applies to the accused's deceptive statement to Officer Prange about having watched the trailer being loaded. While hardly praiseworthy, the practice of lying about this may be as referable to avoiding the delay of an inspection as to any awareness of contraband on board. [82] The accused's statement to Officer Dunlop that he was "only an employee" is not really deceptive in context, given the unusual basis on which his truck was insured in Amar Trucking's name and a lay person's limited understanding of the status of an independent contractor. [83] As for driving his friend's truck while taking his own off the road, my understanding of this evidence was that

Mr. Sidhu received some amount of money for the use of the truck and the accused was paid to some extent for driving it, so while there would be a shortfall to both, I cannot characterize the arrangement as being so inherently implausible as to adversely affect the accused's credibility. [84] The accused's act of petty dishonesty in seeking to use the cell phone that he had found to call India is somewhat troubling, but his relatively straightforward admission of that purpose tends to counterbalance the concerns that would otherwise arise. [85] However, when I consider the other features of the accused's evidence, I must conclude that I do not believe him and that I am not left in any state of reasonable doubt by his evidence. [86] In assessing the accused's evidence, I am taking into account his apparent lack of sophistication and the stress that would inevitably be placed on someone testifying in his position. Even allowing for those factors, however, I found his evidence to be unsatisfactory. [87] It made no sense that he could not recall the nature of the entries in his notebook for Kalvin and Manny, even in a general way, given the relatively small number of overall entries and his apparent recall of other entries that were put to him. While the Crown has offered no evidence about these names or the associated phone numbers that would make them inculpatory in its case

against the accused, his unexplained efforts to distance himself from them is a factor telling against his credibility. [88] The accused's professed practice of simply choosing pages in a notebook to write in at random, or as he has put it to "just start anywhere," sometimes from the back, rather than progressing through the pages, also seems unbelievable, particularly since the purpose of the notebook was to provide him with important information on his journey. [89] In addition, it makes no sense that the accused would put the chains in the vehicle in an area that Officer Dunlop said, and I accept, would interfere with unloading, in order to save a mere 45 minutes at the start of his trip, given the significant length of time that he would be on the road and the inconvenience that would result to the shippers in California. [90] It struck a further false note, in my estimation, that the accused claimed that no one mentioned anything to him about the chains being a problem, when his repeated claim in relation to the loading was that if it was going to take more than five minutes, he would go back to his truck. If the position of the chains did not emerge as a loading problem in the first five minutes after the trailer was opened, one wonders when it would arise. [91] Finally, I could not understand why the accused would need the yellow banding strapping, given the relative

infrequency of his stated need for it, when it was generally available to the shippers with whom he dealt, placed, as he indicated, on the back of forklifts. Again, leaving aside for the moment the inculpatory weight of the banding strapping, this seemed a clear effort on his part to distance himself from any use of it in relation to the pallets containing cocaine. I note in this regard Mr. Johal's evidence that truckers do not use it and that Officer Prosser's evidence of the infrequency of its presence being noted during her inspections. [92] My overall impression based on these issues was of the accused working backwards from a need to explain away potentially damaging pieces of evidence, rather than of testifying truthfully to actual events as he experienced them. [93] However, even though I have rejected the evidence of the accused and am not left in a reasonable doubt by it, that does not end the matter. I must still consider the whole of the evidence in determining whether the Crown has met its burden of proof beyond a reasonable doubt. [94] My first finding in that regard is that it would have been extremely difficult for the cocaine to have been unloaded successfully at Pacific Produce. The number of employees involved in receiving and the resulting need to corrupt the very one out of that group who would be in a position to take control of the load, the likelihood

that the condition of the boxes would have led to a detailed inspection (albeit most likely by the day shift) and the difficulty of passing off the bricks of cocaine as legitimate "employee purchased" products, all lead me to this conclusion. In this regard, I accept the evidence of Mr. Durand that all shipments, even those headed elsewhere, were to "hit the floor" once, in his words, in terms of an inspection. [95] I have considered the drug-selling activity of Mr. Nguyen while he was a Pacific Produce employee on this point, but there being no evidence to suggest his involvement in this importation scheme, and given the relatively low level of the trafficking for which he has been convicted, it does not detract from my finding. [96] Of course, nothing is impossible, but the difficulty in unloading the cocaine at Pacific Produce that I have identified is a piece of circumstantial evidence that weighs against the unloading being arranged without the complicity of the driver. [97] However, on that issue I have decided that I cannot give any weight to the opinion of Staff Sergeant MacDonald. While he is a very knowledgeable witness who testified candidly and fairly, the weight of his opinion that the use of blind couriers is impracticable for a drug importing organization is undermined by the limitations on law enforcement's ability to obtain accurate information about the drug

trade. Drug importation in essence a clandestine activity, whose outlines are sketched only through intermittently successful investigation and intelligence gathering, and, while Staff Sergeant MacDonald's view of the primacy of preserving drug shipments from detection is a reasonable one, I cannot feel confident that it describes everything that may be going on in that milieu. I admitted this evidence in the expectation that it would assist me on this issue, but having heard it I find that I am unable to make use of it. [98] With respect to the chains, I can draw no other inference than that they were placed in their position in front of the lemons by the accused in hopes of deterring to some extent any examination of those pallets. Given their obvious interference with the loading process, I find that they must have been placed there by the accused some time after the lemons (which were his last load) were taken on. [99] With respect to the banding strapping around the lemons, I accept the evidence of Sean Durand and Officer Prosser that pallet 2 is an example of a properly packed pallet, with the strapping on tightly underneath the cardboard corners. I was particularly impressed by the knowledge of the packing process and the attention to detail displayed by Mr. Durand in this regard. As a result, I am satisfied that the loosened banding observed on the other pallets

reflects various degrees of interference with them after they were loaded onto the accused's trailer by the shipper. [100] Given my finding that it made no sense to carry the banding strapping in his vehicle, I draw the inference that the accused carried it on this occasion because he had used it to re-secure some of the pallets of lemons after he had disturbed them following their loading into the trailer. The accused specifically denied re-securing this load so there is no other explanation for his having handled it. In my view, this strapping links the accused to the handling of the pallets during the crucial time in which the drugs would have been hidden there. [101] In drawing this inference, I am mindful of the fact that boxes were also disturbed and the banding appears to have been loosened on pallets that did not contain cocaine. I do not think the possibility that the accused handled the other pallets in this process is inconsistent with the inferences I have drawn. Given the position of pallets 4 and 5, which contained the drugs, within the trailer, it may have been necessary to move the other pallets, or there may have been consideration given to placing the cocaine in more pallets than were ultimately settled on. [102] Finally, it seems to me inconceivable that this cocaine could have been placed on the trailer without the accused's knowledge, because he did not

receive his instructions from Mr. Johal about where to do his pickups until he was already in California. To get the lemons onto his truck with the cocaine already packed in them would require the complicity of Pacific Produce and the lemon shipper and detailed coordination between them. Having found that a successful unloading of the cocaine at Pacific Produce was extremely unlikely, its combination with an equivalent degree of corruption at the California end begins to edge into the realm of impossibility. These circumstances support an additional strong inference in favour of the knowledge of the accused of the trailer's actual contents.

9. CONCLUSION [103] For these reasons, I am satisfied that the accused's knowledge that his trailer contained a significant quantity of cocaine at the time he entered Canada is the only rational inference to be drawn from the evidence and accordingly that his guilt has been proven by the Crown beyond a reasonable doubt. "Schultes J."