



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Knezevic, 2016 ONCA 914

DATE: 20161202

DOCKET: C60193

Laskin, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Drago Knezevic

Respondent

Thomas Lemon and Sam Siew, for the appellant

James Lockyer and Alexander Ostroff, for the respondent

Heard: September 26, 2016

On appeal from the acquittal entered on February 27, 2015
    by Justice Thomas Carey of the Superior Court of Justice, sitting without a
    jury.

Gillese J.A.:

[1]

Mr. Knezevic (the respondent)
drove a
    transport truck loaded with raspberries from Oxnard, California to an intended
    destination of Etobicoke, Ontario.  When Canada Border Services Agency (CBSA)
    officers opened the trailer of the respondents truck at the Ambassador Bridge
    border crossing in Windsor, Ontario, they immediately saw two suitcases on top
    of the skids of raspberries.  Together, the suitcases contained 39 kilograms of
    cocaine.

[2]

The respondent was charged with importing and possessing cocaine for the
    purpose of trafficking.

[3]

At a judge-alone trial, the respondent testified.  The defence position
    was that the respondent was a blind courier.  He was acquitted.

[4]

The Crown appeals.

[5]

For the reasons that follow, I would allow the appeal and order a new
    trial.

BACKGROUND IN BRIEF

[6]

The respondent arrived at the Ambassador Bridge border crossing in
    Windsor on June 10, 2011, with 39 kilograms of cocaine in the trailer of his
    truck.  The cocaine was in two suitcases that were atop of skids of raspberries
    that he was transporting.

[7]

He was the sole occupant and driver of the truck.

[8]

The respondent was processed at the border starting at about 4:00 p.m.  He
    declared that he had been away for ten days and that he had one carton of
    cigarettes.  His shipment was randomly selected by the computer for a secondary
    inspection.  He was directed to a secondary on-site inspection area.

[9]

When the CBSA officer searched the cab of the respondents truck, she found
    two cartons of cigarettes.  This caused the officer searching the truck to be
    suspicious of the respondent.  So, too, did the fact that there was clothing in
    the cab of the truck in transparent plastic bags, which was something out of
    the ordinary.  When the officer questioned the respondent about his apparently
    false declaration of one carton of cigarettes, he appeared very nervous.  The
    officer directed the respondent to the off-site secondary inspection area.

[10]

At the off-site inspection area, the respondent spoke with a different CBSA
    officer and confirmed that he had placed the seal on the doors of his truck.

[11]

Under the supervision of several CBSA officers, the respondent backed
    his truck up to the loading dock, cut the seal and opened the trailer doors.  When
    the doors of the truck were opened, the officers immediately saw the luggage
    atop of the skids of raspberries.

[12]

When questioned by the CBSA officers, the respondent said the luggage
    was not his.  He said that he had put the seal on the trailer at the
    shippers but that he didnt look up.  One of the two load bars was in
    place but the other was adjacent to the suitcases, which was inappropriate
    because it could damage the berries.

[13]

The appellant was arrested and the truck was searched.  In the truck
    cab, a CBSA officer found two unused seals from the company for which the
    appellant worked, one of which appeared to have been tampered with.  The
    officer also found a notepad with the notation 18 + 21 = 39 on its face.  Those
    figures correspond exactly to the number of bricks of cocaine found in each
    piece of luggage  18 bricks of cocaine (17.86 kg) were in one suitcase and 21 bricks
    of cocaine (20.96 kg) were in the other, for a total of 39 bricks of cocaine.

[14]

The search of the truck cab revealed a receipt from Ontario, California,
    dated June 6, 2011, in the name of Jesus Gonzalez and a box of disposable nitrile
    gloves.

[15]

At trial, evidence was led that showed that, in his log books, the
    respondent had considerably underreported the length of the stop he made in
    Ontario, California.

[16]

The Crown also led evidence which suggested that it would have been
    unlikely that the luggage was loaded on the truck at the same time as the
    berries.

[17]

The berries were loaded at a facility of Western Pre-Cooling in Oxnard,
    California.  Although video footage from cameras in the loading area was
    created, it was not available at trial because by the time the United States
    Drug Enforcement Administration requested it, on behalf of the RCMP, the video
    footage had already been erased.

[18]

The respondent testified at trial. He said that while the berries were
    being loaded onto his truck, he watched part of the procedure but left for
    about 15 minutes to put on warmer clothes.  When he returned, the truck was
    loaded and he opened the loading dock door to place the load bars.  He said
    that he put one of the two load bars on top of the load, but not positioned as the
    Windsor officers found it.  He denied seeing the luggage on the load when he
    put on the load bars.  After affixing the load bars, the respondent said that
    he went to an office to do paperwork for about 20 minutes.  After that, he drove
    the truck away from the dock, got out and closed the trailer doors, and placed
    the seal on the doors.  He denied seeing the luggage while doing this.

[19]

Evidence from the respondents employer indicated that drivers were
    supposed to check the temperature of the product with a pulp meter.  The
    respondent denied that he checked the temperature of the product, even though
    he had sent a pulp temperature reading to his employer.  The respondent said
    that he merely repeated the temperature listed on the bill of lading.

[20]

The respondent said the first time he ever saw the luggage in the trailer
    was at the secondary inspection site in Windsor.  He said that the notation 18
    + 21 = 39 on the notepad in the cab of his truck referred to toll amounts that
    he had paid on a prior trip and that he used nitrile gloves when he handled food.

[21]

When asked about the receipt in the name of Jesus Gonzalez, found in the
    cab of his truck, the respondent denied that he had met with anyone in Ontario,
    California before leaving for Oxnard.

[22]

The respondent brought a
Charter

application in which he
    sought a stay of proceedings.  He argued that the RCMP was negligent in
    requesting the video camera evidence from the Western Pre-Cooling warehouse in
    Oxnard.  He also sought to exclude the evidence of Mike Thompson, the
    operations manager at Western Pre-Cooling in California responsible for
    reviewing the security camera footage on a daily basis.

[23]

The sole issue at trial was whether the respondent knowingly imported
    the cocaine.  The defence position was that the respondent was a blind
    courier.

[24]

The trial judge acquitted the respondent and, consequently, found it
    unnecessary to deal with the
Charter

application.  However, he went
    on to find that there had been no fault on the part of the RCMP in their
    handling of the request for the video.

THE ISSUES

[25]

The Crown submits that the trial judge erred by:

1.

making findings of fact for which there was no evidence; and

2.

failing to consider the evidence as a whole to determine whether guilt
    had been proved beyond a reasonable doubt.

ISSUE #1    FINDINGS OF FACT FOR WHICH THERE WAS NO EVIDENCE


[26]

In my view, the trial judge erred by making findings of fact based on
    speculation.  As I would order a new trial in this matter, I will point to but a
    single example of this.

[27]

In his reasons for judgment, the trial judge stated:

Given the frequency of car and [truck-jackings] in North
    America, the easily ascertainable route that this truck would  take and the
    likelihood of stops on the way, I cannot conclude that only [the respondent]
    would be in a position to retrieve the drugs.

[28]

There was no evidence before the trial judge of the frequency of car and
    truck hijackings in North America.  Nor was there evidence that the route the
    truck would take from California to the warehouse in Etobicoke was easily
    ascertainable.  Accordingly, those findings were speculative.  It is an error
    of law to make a finding of fact for which there is no supporting evidence:
R.
    v. J.M.H.
, 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 25.

[29]

The trial judge relied on these findings of fact for his conclusion that
    the respondent was not the only person who would be in a position to retrieve
    the drugs.  The significance of that conclusion to the trial judges ultimate
    determination is readily apparent when considered in the context of the defence
    advanced at trial, namely, that the respondent was a blind courier.

ISSUE #2  FAILING TO CONSIDER THE EVIDENCE AS A WHOLE

[30]

The Crown submits that the trial judge erred by failing to consider all
    of the evidence in relation to the ultimate issue of guilt by using a piecemeal
    approach.

[31]

I agree.  This, too, is an error of law that warrants appellate
    intervention at the instance of the Crown:
J.M.H.
, at para. 31.

[32]

By considering, in turn, whether each of the respondents exculpatory
    explanations for a particular piece of Crown evidence could reasonably be true,
    the trial judge effectively required the Crown to prove each individual piece
    of evidence beyond a reasonable doubt.  It is an error of law to subject
    individual pieces of evidence to the standard of proof beyond a reasonable
    doubt:
J.M.H.
, at para. 31; and
R. v. Morin
, [1988] 2 S.C.R.
    345, at p. 359.

[33]

In paragraph 63 of the Crowns factum, several
    examples of this in the trial judges reasons are set out.  The following draws
    heavily from that.  The emphasis in the quotations are those of the Crown.

While at first blush the numbers 18 and 21
    equals 39 on a sheet in plain view in the cab seems an unlikely coincidence,
    [the respondents] explanation that the number relates to tolls is supported by
    the writing beside it (tools for tolls) and a previous receipt for $18 from the
    Kansas Turnpike.

I don't reject his evidence
because he has no receipts given the disorganization of the cab at
    the time it was searched.



I
cannot
    rule out
, on the evidence before me, that [the luggage
    filled with cocaine was] placed there at the Western refrigeration warehouse. I
    do not accept the Crowns assertion that this happening was a near
    impossibility.

I do not think it was likely that this cocaine
    was destined to be unloaded at the Metro warehouse in Toronto, but
I cannot dismiss as completely unlikely
that the opening of the truck and removal of the bags without the
    accused drivers consent or knowledge or both would be
beyond any reasonable possibility.

.

Given the frequency of car and
    [truck-jackings] in North America, the easily ascertainable route that this
    truck would take and the likelihood of stops on the way,
I cannot conclude that only
Mr. Knezevic would be in a position to retrieve the drugs.

I cannot conclude
that the presence of the latex gloves were out of the ordinary or
only consistent with
an
    intent by the accused to hide his fingerprints.

[34]

While
it was appropriate for the trial
    judge to consider each piece of evidence individually, he also had to consider
    the cumulative effect of the evidence as a whole.
Although the
    trial judge twice
stated that he was considering the evidence as a whole,
    on a full and fair reading of his reasons, I do not see that was ever done.  This
    was legal error:
J.M.H.
, at para. 31.

DISPOSITION

[35]

It is clear that the trial judges legal errors affected his verdict of acquittal. 
    Accordingly,
I would allow the appeal and order a new trial.

Released: December 2, 2016 (E.E.G.)

E.E. Gillese
    J.A.

I agree. John Laskin J.A.

I agree. David Watt J.A.


