Monday, 24 November 2014

REASONABLE DOUBT:  Its meaning                         

This is the standard used in courts to determine the guilt or innocence of a defendant who is charged with a crime. To be found guilty, the defendant must be proved guilty beyond any reasonable doubt of his innocence. If there is reasonable doubt about the defendant’s guilt, then he must be acquitted of the crime he was charged with. The doubt of his guilt must be determined by what a reasonable man or woman would arrive at after hearing all the evidence. It cannot be fanciful doubt or imagined doubt. The doubt must be real and an honest doubt.

Sometimes it is difficult for judges and juries alike to arrive at a decision as to whether or not a defendant is guilty or innocent because the evidence they hear can be confusing or at opposite ends of the evidential spectrum. But they have to make a decision and in criminal courts and that decision is based on the evidence they hear and see in the court room and only that evidence.                    

What follows in this article is a case where the judge hearing the case had to make a decision as to whether or not the defendant was guilty or innocent of the crime he was charged with. His decision had to be based on the premise of reasonable doubt as to whether or not he was guilty or innocent of the crime he was charged with.

On March 19, 2009, Baldev Singh drove his tractor trailer into Canada, crossing from Detroit into Windsor via the Ambassador Bridge. His trailer contained 54 bins of oranges from Woodlake California, destined for a Metro warehouse near Toronto.  His trailer also contained 69 kilograms of cocaine, (worth many million) discovered by border officers during a dog training exercise.  This discovery led Mr. Singh to be charged with one count of unlawfully importing cocaine into Canada, and one count of possession of cocaine for the purpose of trafficking. If convicted; he could be sent to prison for life for either conviction however the sentences could not be consecutive.             

The central issue to be determined at trial was whether Mr. Singh knew about the cocaine hidden in two bins of oranges in the back of his trailer. It is recognized that, if he knew of the cocaine being in his trailer, he would be guilty on both counts before the court.  If he did not know of the cocaine being in his trailer and there was a reasonable doubt as to his knowledge of the cocaine being in his trailer, then he would be acquitted on both counts.

As I said more or less at the beginning of this article, his decision would have to be reasonably arrived at after hearing all the evidence and the arguments presented by the defendant’s lawyer and the prosecutor.               

Mr. Singh was presumed to be innocent and that presumption could only displaced if and when the Crown (prosecutor) proves the essential elements of the offences beyond a reasonable doubt. This principle rests at the very heart of our criminal justice system.  Further, the burden remains on the Crown throughout the proceedings to prove guilt beyond a reasonable doubt. There is no obligation on the defendant to prove anything. In assessing whether the Crown has discharged its onus, the judge must not simply compare the evidence of Crown witnesses to the evidence of defence witnesses and decide which evidence he prefers. Rather, the decision is made after viewing the evidence as a whole and then determining as to whether or not the Crown has discharged its burden of proving guilt beyond a reasonable doubt. 

Mr. Singh testified in his own defence, and denied having any knowledge of the contraband found in the trailer of his truck  After the evidence was heard, the Crown argued that, given the evidence presented to the court by the Crown, the defendant had to have known that the cocaine was hidden in his trailer.  The defence on the other hand argued that the Crown had failed to prove that the defendant had knowledge or control of the cocaine beyond a reasonable doubt. 

Now just because the cocaine was in his trailer isn’t by itself positive proof that he knew that it was there. Someone else could have put it there unless of course it was established during the trial that only he was in the trailer when the oranges were being loaded.

Mr. Singh testified that he began working as a truck driver for a man named Prem Thandi in 2008.  In March 2009, Thandi contacted him and told him that there was a load to be picked up in Southern California. The defendant said that did not know what the load was, or precisely where it was, but he agreed to pick it up.  He attended at the yard in Mississauga where he kept his truck, and hooked up Thandi’s trailer, which was also parked in the yard. He said that the trailer was empty.  He began the trip to California on March 8, 2009.

He crossed the border from Windsor into Michigan and drove through various states. As he approached California, he called Thandi to report on his progress and find out more about the load.  According to Mr. Singh, Thandi told him to call back in an hour and to keep driving. He drove toward Los Angeles, saying that most loads in California were from that area.  He spoke to Thandi again and was told that the load due for pick-up had been cancelled. Thandi told the accused that he was looking for another load that the accused could pick up, and that the accused should keep driving into California. 

There was no documentary or any other evidence presented in court to confirm the Mr. Singh’s claim that the initial load was cancelled. The defendant did not say anything about a cancelled load when he was later questioned by Canadian Customs officers, even though that would have explained his extended absence from Canada. One is forced to conclude that he made up that story after he was arrested.

Mr. Singh drove to Fontana California, close to Los Angeles.  He later claimed that Fontana was within the area that Thandi told him to drive to.  He acknowledged in cross-examination that Fontana was not an agricultural location, but he said that he had picked up loads in this area before.  That statement must have raise the judge’s eyebrows because if the location Mr. Singh claimed he was driving to isn’t an agricultural location, then why would he had driven there in the first place?  There is however a food warehouse in Fontana but he didn’t mention going there in his testimony.

On March 12, 2009, the defendant called Thandi to find out whether there was a new load to be picked up. Thandi told him that nothing had yet been arranged.  During subsequent calls, Mr. Singh was told that there was still no load. He remained in Fontana overnight, sleeping in his truck at a truck stop.

On March 13, 2009, a Friday, the defendant was again told by Thandi that there was no load.  He remained in Fontana for the weekend. On Monday, March 16th, Thandi told him that a load was ready for pick-up.  Thandi gave the accused the company name, the company phone number and the purchase order details. The accused drove to the Visalia facility in Woodlake California to pick up a load of oranges.  When the load was ready, he backed his trailer up to the dock and opened the doors. The trailer was empty but for a tire and a load bar. While a forklift driver loaded the trailer, the accused retired to the cab of his truck.  The defendant acknowledged that he could have watched the trailer being loaded, but that he chose not to.

There is nothing unusual about not watching what is loaded into a driver’s trailer. For example, sometimes, the driver has to go inside the warehouse to use the toilet.

It took over two hours to load the trailer.  Mr. Singh claimed that, during this time, he had a meal in the cab of his truck, followed by a brief nap.  When he woke up, the trailer was still being loaded.   When the loading was complete, he got the paperwork and then closed the trailer doors.  He looked inside the trailer before closing the doors.  He saw the double stacked bins.  He did not see any loose bags of oranges in the trailer or anything else that seemed unusual.   

His lawyer could argue that the cocaine was hidden from a cursory view from the back of the trailer.  That would be a reasonable argument.     

According to his testimony, after closing the doors, Mr. Singh decided to throw away the bag of scraps from his meal. He walked over to the garbage bin and saw that it was full up to the top. He walked around to the other side and saw three suitcases lying near the garbage. He picked them up, opened them, and saw that they were empty. He took the empty suitcases to his truck and placed his clothes inside them. He then left the Woodlake facility.    

When asked why he would take the suitcases for his own use, he testified that he liked them, and that he could use them when he travelled to India. Now the police may not have been initially suspicious when he explained how he got the suitcases and why he wanted to use them but the judge certainly was.

The judge had heard testimony that Mr. Singh was in desperate need of money. Mr. Singh owed $50,000 on a line of credit.  On March 1, 2009, he leased a new truck, which involved 36 monthly payments of $2,815.  He acknowledged in cross-examination that he was in financial difficulty at the time the truck was leased. He did not provide any real explanation for how he was able to afford this expenditure.  Considering his financial problem, how could he then go to India? His statement of wanting to go to India was a dumb statement to make because it had an effect on his credibility—something the judge didn’t miss.

In his testimony, Mr. Singh insisted that he did not know that cocaine was in the trailer. He said that he did not know how the drug had come to be planted in the bins of oranges.

Mr. Singh was supposed to be paid $7,000 for picking up the load in Westlake California. He was never paid by Thandi and has never tried to collect the money from him. That raises an interesting question, “Why didn’t he want to get the money owed to him by Mr. Thandi?” I don’t know the answer to that question either. However, it raises another question. “If he initially believed that he would get $7,000 for that trip from the Woodlake Facility, then why would he grab three used suitcases from a garbage bin?” Was it his intention to transfer the cocaine from inside the suitcases to the two orange bins?

The question that must have been on the judge’s mind at that time was, “How do I go about assessing the credibility of the defendant’s account of what really happened?”

He was aware that the credibility of the various witnesses, particularly in cases where there is a conflict of evidence, cannot be gauged solely by the test of whether the personal demeanor of a particular witness carried conviction of the truth. The test must reasonably subject the defendant’s story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. 

The credibility of testimony is checked against the logic of ordinary human experience. While common sense is not always as common as it may seem, credibility assessment is invariably affected by the trier’s perception of how the world works. The judge probably had this in his mind when he was considering the evidence he was hearing.

For example, the physical evidence consisted of impressions seen on one of the cardboard lids of several bins of oranges in the defendant’s trailer. Those impressions were identical to the wheels of one of the suitcases found in the cab of the defendant’s truck. There were accidental characteristics resulting from wear and tear and therefore unique to one of the suitcases. This was critical evidence. The impressions stood as silent witness to the placement of the cocaine in the bins of oranges.  The evidence showed the judge that at least one of the suitcases found in the cab of the accused’s truck was pulled across the top of the bins of oranges. The inference to draw is that the suitcase was used to haul bricks of cocaine to the bins at the forward end of the trailer where the drugs were hidden. Now we know why Mr. Singh suitcases in his truck. The judge found the officer’s evidence, together with the photographic exhibits, to be compelling evidence. He accepted the validity of Corporal Rigby, the investigating officer’s analysis.  

The analysis suggests that the cocaine was placed after, and not before the bins were loaded on the trailer. Prior to loading, there would be no need to pull a suitcase across the boxes. The cocaine could have been placed in two bins, and those bins placed at the forward end of the trailer. The bins were capable of supporting a person’s weight without difficulty and without significant damage.  Based on the height of the double stacked bins within the trailer, there was room for a person to walk or crawl along the tops of the bins from the doors to the forward end of the vehicle. The marks, dents and tears observed on some of the lids would suggest that a degree of pressure had been applied to them.  Most of the top bin lids were observed to have some damage. It was obvious to the judge that the suitcase examined by Corporal Rigby was pulled across the tops of the bins after they had been loaded in the trailer.

This evidence would clearly rule out any suggestion that the people in the warehouse had loaded the drugs into the truck while he was in the cab of his truck sleeping.

During its case, the Crown sought to demonstrate that all 69 bricks of cocaine could fit neatly into the three suitcases. Constable Jovanovic was asked to pack all of the seized bricks into the suitcases seized from the cab of the truck. This was not a simple task.  It took breathless exertion and assistance from Crown counsel, before the officer could fit all of the bricks into the bags. The danger of physical demonstrations; be they with a suitcase or, as in one famous case, a glove—is that they may not yield the evidence that is sought.  

You may remember the famous case in which O.J. Simpson was asked by his lawyer to place his hand in the glove handed to him. It appeared that he couldn't. His lawyer said, “You must acquit if it does not fit.” The reason why it didn’t fit was that it had been soaked in the rain and had shrunk.  

am convinced that the police had probably placed the drugs into the suitcases previously to see if they all fitted and when they realized that they did fit, they were confident that the drugs would fit a second time while in the court room. 

The judge said after the suitcases were filled in the court room, “Allowing for variations in size, I find that all 69 bricks would have fit neatly into the three suitcases at the time of the offence. I find, as a fact, that all three suitcases were used to move the cocaine to the bins at the forward end of the trailer.  It is logical to think that the person placing the cocaine would want to move as efficiently as possible. Using three suitcases would be far quicker than using one suitcase, packed and unpacked three separate times.” unquote

It must be obvious to anyone reading this article as to what the judge was thinking.  Mr. Singh had admitted in his testimony that he had grabbed the suitcases next to a garbage bin which meant that only then he would have placed the 69 bricks of cocaine into the suitcases. The defence on the other hand argued that the cocaine could have been planted by someone working at the Woodlake facility. It is difficult to imagine that a person at the Woodlake facility dragged those three suitcases across the top of the load in plain view of others at the loading dock, placed the cocaine, and then dumped the suitcases in the garbage area, all before the accused left his truck. The use of the suitcases would attract the attention of other workers, be caught on videotape, and possibly seen by the driver who had every right to watch the bins being loaded. This clearly implicates the accused in the placement of the cocaine.

Nor is it plausible to suggest that someone, working independently of the accused, placed the cocaine after the truck left the Woodlake facility. On Mr. Singh’s own evidence, the truck and trailer were, at all times, under this control. He did not leave them unlocked or otherwise vulnerable to break-in.  He did not open the doors of the trailer between the time he left California and the time he arrived at the Ambassador Bridge. Further, he did not tell anyone in Mr. Thandi’s company where he was, but only that he was on his way. It would have been impossible for any third party to know where the trailer was at any given point in time. In short, it is not reasonably possible that someone could have planted the cocaine in the boxes without Mr. Singh’s participation or awareness.   

Mr. Singh must have been involved in the plan to unload the cocaine. The shipping documents stated that the oranges were destined for the Metro Ontario warehouse in Etobicoke. If the oranges had been delivered to Metro, it would have been difficult, if not impossible, for someone to off-load the cocaine in a controlled fashion. First, this suggestion implies conspiracy between someone in the Metro warehouse and someone in the Westlake facility. This seems unlikely for the following reason.

Given the randomness with which loading docks and personnel were assigned to unload incoming trailers, it would be difficult for an employee to access a particular load.  The presence of surveillance cameras would make it difficult to conceal suspicious activity. Finally, the presence of loose bags of oranges in the trailer suggests that the cocaine was to be off-loaded before arriving at Metro.

Mr. Singh testified that he was not going to deliver the load to the Metro warehouse, but rather, that he was going to leave it in the truck yard, for someone else to deliver. The judge rejected that statement. On the defendant’s account, perishable goods were to be left in a truck yard in an unlocked trailer, with the refrigerator unit operating, until someone else arrived at some later time to deliver it to Metro. This does not make sense. When the accused crossed the border, the delivery to Metro was already late. It was to be at Metro at 8:00 a.m. and the accused crossed the border at 9:20 a.m. Mr. Singh testified about the importance of getting loads delivered on time, saying that this was why he drove more than the allowable hours. Why, then, would he leave a load at the yard, creating even further delay. The account becomes even less credible when one considers that the Metro warehouse was only about 12 kilometres, or 15 minutes, away from the truck yard.

The official documentation listed Mr. Singh’s destination as the Metro warehouse. No document referred to the truck yard. The judge found, as a fact, that Mr. Singh was intending to take the load to the Metro warehouse, albeit after he had off-loaded the cocaine from the trailer. The judge concluded that Mr. Singh had fabricated his evidence about the yard to make it look like an unknown third party was going to collect the cocaine.

The judge in his decision said;

“The defendant’s testimony does not correspond to the physical evidence in the case.  It cannot be reconciled with the objectively discernable facts. I do not accept the defendant’s evidence. Nor, having regard to the evidence as a whole is it capable of raising a reasonable doubt (of his guilt). I find that the evidence, as a whole, proves beyond a reasonable doubt that the accused participated in, or had knowledge of, the loading of cocaine into the bins of oranges for importation into Canada. I find that he possessed the cocaine and imported it into Canada for the purpose of trafficking. I find that Baldev Singh is guilty on counts 1 and 2 on the indictment.”  unquote

Mr. Singh obviously was a stupid man. He certainly didn’t plan his explanations very well. They were so ridiculous, even a child could see his explanations as being a farce.

Incidentally, another man, named Antarpal Singh was also charged with importing Cocaine and was convicted in 2012 of that crime. The police found 59 kg of cocaine in the back of his truck when he crossed into Canada via the Bluer Water Bridge at Sarnia. The cocaine was worth $4 million dollars. The judge sentenced Mr. Singh to 12 years in prison but on appeal, the Ontario Court of Appeal reduced the sentence to eight years and eight months. The court was sympathetic because he was 29 when he committed the crime, had behaved himself while he was on bail and has a wife and two small children.

I wonder if Baldev Singh will also get a sympathetic sentence.

I am waiting to hear what his sentence will be. When I learn what it is, I will put at the end of this article as an UPDATE. 

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