



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Dhaliwal,







2006 
          BCCA 43



Date: 20060123





Docket: CA033587

Between:

Regina

Respondent



And

Jagpal 
    Singh Dhaliwal

Appellant














Before:


The 
          Honourable Madam Justice Saunders




(In 
          Chambers)



Oral Reasons for Judgment




D. 
          Markovitz


Counsel for the Appellant




P. 
          Eccles


Counsel for the (Crown) Respondent




Place 
          and Date:


Vancouver, British Columbia




23 January 2006





[1]

SAUNDERS, J.A.
:  Mr. Dhaliwal applies for judicial interim 
    release pursuant to s. 679 of the
Criminal Code
pending his 
    appeal from conviction and sentence.  On 25 June 2005 Mr. Justice Romilly, 
    sitting alone, convicted Mr. Dhaliwal of importing cocaine and possession 
    of cocaine for the purpose of trafficking.  On 7 November 2005 he entered 
    a conditional stay on the possession count and sentenced Mr. Dhaliwal to incarceration 
    for a term of six years on the importation count.

[2]

Section 679(3) of the
Criminal Code
establishes the criteria 
    an applicant must meet to attain release pending the determination of his 
    appeal:

. . .  the judge of the court of appeal may 
    order that the appellant be released pending the determination of his appeal 
    if the appellant establishes that

(
a
) the appeal or application for 
    leave to appeal is not frivolous;

(
b
) he will surrender himself into 
    custody in accordance with the terms of the order; and

(
c
) 
    his detention is not necessary in the public interest.

[3]

Mr. Justice Romilly concisely set out the circumstances of the offence 
    in his reasons on sentencing:

[4] 
     The accused is the owner operator of a transport truck and at the material 
    time he was operating under an agreement to haul goods to and from the United 
    States of America on September 20, 2003, at the Canada-U.S. border, Canada 
    Customs officials found six kilograms of cocaine secreted in a hidden compartment 
    in the cab of his truck.  The cocaine was between 82% and 91% pure and was 
    valued at between $192,000 and $210,000.

[4]

In his reasons for conviction there is more detail:

[3] 
     At all material times, the accused was the owner/operator of a transport 
    truck.  He entered into an agreement with Spady Transport Ltd (Spady) to 
    haul goods to and from the Unites States of America.  Under the agreement 
    with Spady, the truck was registered in the name of Spady for the sole purpose 
    of obtaining the benefit of their fleet insurance.  The agreement also stated 
    that the accused was not allowed to carry any passengers unless they had a 
    signed waiver.

[4] 
     On September 20, 2003, the accused passed through the Pacific Highway Border 
    Truck crossing into the United States of America.  At the border crossing 
    his truck was stopped by U.S Customs and searched.  The search was conducted 
    by Inspector Schmidt, an officer with U.S. Customs.  Inspector Schmidt testified 
    that when checking the cab area of the accuseds truck he noticed that the 
    bunk did not lift up as it normally does in the hundreds of trucks that he 
    examines each day.  He noticed three hidden compartments covered by a piece 
    of sheet metal with some loose screws around the sheet metal door.  He testified 
    that this was certainly not something that was constructed by the manufacturer 
    of the truck, Kenworth.  The officer also noted duct tape in the area of the 
    sheet metal door.  He was of the view that it was the type of duct tape that 
    is commonly available in hardware stores.  Officer Schmidt took a photograph 
    of the area at the request of the R.C.M.P.

[5] 
     On September 27, 2003, Inspector Schmidt again noticed the truck come through 
    the border crossing.  During his inspection of the truck on that occasion 
    he took the opportunity to again look at the area of the cab of the truck 
    where he had noticed the three hidden compartments on September 20, 2003.  
    On this occasion he noticed that the screws which held the sheet metal door 
    in place were no longer loose and instead they were in place holding the sheet 
    metal door closed.

[6] 
     Inspector Schmidt testified that on neither of these occasions did he mention 
    anything about his suspicions to the accused driver of the truck.  He did, 
    however, enter a report of his suspicions onto the computer system and on 
    October 1, 2003, he advised Canadian Customs of his observations.

[7] 
     As a result of the information they received from Inspector Schmidt, Canadian 
    Customs put the truck on a watch for list.  At approximately 2:25 a.m. on 
    October 10, 2003, the truck was searched by Canadian Customs on its return 
    trip from the United States of America.  In a search of the cab area of the 
    truck the Customs officials found approximately six kilograms of cocaine in 
    a Nike bag in the secret compartment of the cab area that was previously observed 
    by Inspector Schmidt.  The sheet metal door that covered this secret compartment 
    was screwed into place.  The cocaine was between 82% to 91% pure and was valued 
    at between $192,000.00 and $210,000.00.  No identifiable fingerprints were 
    found on the seized cocaine.  There was no access to the seized drugs from 
    the outside of the truck.

[8] 
     In the cab of the truck the Customs officers also found a cordless drill 
    together with some drill bits.

[5]

The case, thus, was, on the issue of knowledge, purely circumstantial.

[6]

Mr. Justice Romilly set out the relevant principles as to the burden 
    of proving knowledge and regarding proof through use of circumstantial evidence.  
    He found there is an irresistible inference that Mr. Dhaliwal had the requisite 
    knowledge and control.  He then referred at some length to
R. v. Jenner
, 
    [2005] MBCA 44, discussing the circumstances and conclusions in that case 
    and ending with:

[28] 
     Similarly, in the case at bar no reasonable explanation was offered to rebut 
    the irresistible inference that the accused had knowledge and control of the 
    cocaine found in his truck. . . .

He found no rational inference consistent with innocence.

[7]

On behalf of Mr. Dhaliwal it is said that this treatment of the circumstantial 
    evidence and the conclusion that there was an irresistible inference of knowledge 
    is an error that is likely to succeed on a conviction appeal.  On behalf of 
    the Crown it is said that the circumstantial evidence easily supported the 
    conviction, and that the appeal is without merit.

[8]

I am satisfied that the ground of appeal meets the relatively low threshold 
    of s. 679(3)(a), that is, I am satisfied that the appeal is not frivolous.

[9]

The second criteria is the issue of compliance with the surrender requirement.  
    Mr. Dhaliwal is 40 years old.  He has resided in Canada since 1986 when he 
    and his parents came to Canada under sponsorship of his brother.  He is married 
    and has two children aged 9 and 12.  He has no previous criminal record, and 
    he has complied with all reporting and surrender requirements of previous 
    court orders.  Although he now stands convicted of the offences for which 
    he was charged, and in this the circumstances before me differ from those 
    before the trial court making the previous orders, the circumstances persuade 
    me that Mr. Dhaliwal has met the burden under s. 679(b).

[10]

This leaves for consideration s. 679(3)(c), consideration of the public 
    interest.  The objectives of s. 679(3)(c) were discussed in this Courts decision 
    in
R. v. Mapara
, 2001 BCCA 508, which in turn applied
R. 
    v. Farinaccii
, (1993) 86 C.C.C. (3d) 32 Ont. C.A. and
R. v. 
    Baltovich
, 470 O.R. (3d) 761.  Madam Justice Ryan, in
Mapara
, 
    recognized that the competing principles are enforceability and reviewability.  
    She cited with approval the discussion of public interest from
Farinacci
and Mr. Justice Rosenbergs  statement in
Baltovich
that the matter that is most influential on the question of the public interest 
    is the strength of the grounds of appeal, and said:

[35]      In
Demyen
when Culliton C.J.S. speaks of the necessity for the 
    appellant to show "something more" than the requirements of paragraphs 
    (a) and (b) of s. 679(3) to establish that his detention is not necessary 
    in the public interest, he must be referring to the necessity for the appellant 
    to show that the principle of enforceability is outweighed by that of reviewability.  
    In my view the strength of the interest of reviewability must primarily be 
    measured by examining the likelihood of the success of the appeal.  Very strong 
    grounds will tip the scale in favour of reviewability.

[36]      Depending 
    on the demonstrated strength of the grounds, other factors, such as the circumstances 
    of the offence - for example, pre-meditated violence  and, inordinate delay 
    will be matters to weigh in the balance.  The essential question, however, 
    will be whether the appellant has been able to establish that enforceability 
    is outweighed by reviewability.

[11]

In this case I have only the reasons for judgment of the learned trial 
    judge from which to assess as best I can, the strength of the appeal.  Knowing 
    only that, and accompanied by Mr. Markovitzs explanation of the ground of 
    appeal, I cannot say that it reaches at the strength referred to by Madam 
    Justice Ryan as tipping the scale in favour of reviewability.

[12]

The conviction in this case was of importing cocaine through use of 
    Mr. Dhaliwals commercial vehicle that crossed the border as part of the normal 
    trade between Canada and the United States of America.  The substance carried 
    into Canada is illicit and does untold damage.  Importation is a vital link 
    in the chain from production to retail trafficking, and necessarily engages 
    others in criminal activity at both ends of the trip.  That is, the offence 
    is part of a criminal enterprise, unlike some of the one of cases I was 
    referred to, such as
R. v. OGrady
, 1999 BCCA 711.  In this 
    case, and given my view of the merits of the appeal, and notwithstanding Mr. 
    Markovitzs strong submissions on behalf of Mr. DhaliwalI as to his personal 
    circumstances, I am of the view that public confidence in the administration 
    of justice does not favour the application.  That is, I am not satisfied that 
    Mr. Dhaliwals detetention is not necessary in the public interest.

[13]

The trial of this case was not long.  The issue described is discreet.  
    Hearing dates this spring are available.  The principle of reviewability and 
    the interests of the public, in my view, will be best served by this case 
    proceeding with dispatch.  To the extent that my comments may assist in having 
    this appeal brought before a panel of this Court as soon as reasonably practicable, 
    I would ask the registry to accommodate Mr. Markovitz, on behalf of Mr. Dhaliwal, 
    with an early hearing date when the appeal is ripe for that step.

[14]

The application is dismissed.

The 
    Honourable Madam Justice Saunders



Correction:
10 February 2006

In reasons for judgment dated January 23, 
    2006
, the following change 
    should be noted:



The list of Counsel has been corrected and 
    should read as follows:




D. 
          Markovitz


Counsel for the Appellant




P. 
          Eccles




Counsel for the (Crown) Respondent










