Truck driver had knowledge and control of cocaine in truck: Ontario Court of Appeal

Trial judge's weighing of evidence and decision were reasonable; no miscarriage of justice

Truck driver had knowledge and control of cocaine in truck: Ontario Court of Appeal

The Ontario Court of Appeal has upheld a trial judge’s decision in which the cumulative evidence led to the only reasonable inference that the appellant had knowledge and control of drugs.

The appellant in R. v. Knezevic, 2022 ONCA 721 was a truck driver who crossed the Canadian border while towing a trailer loaded with raspberries in 2011. Agents from the Canada Border Services Agency (CBSA) opened the trailer, saw two suitcases on top of the raspberries, and found 39 bricks of cocaine inside.

At trial, the issue was whether the appellant was aware that there was cocaine in the trailer. The trial judge determined that the appellant was not a credible witness and the only reasonable inference was that the appellant knew about the cocaine. He recognized that the Crown’s case was entirely circumstantial.

The circumstantial evidence included the following:

  • the cocaine bricks in the suitcases in the trailer
  • a box of nitrile gloves behind the driver’s seat
  • a note on a pad on the passenger seat with numbers appearing to correspond to the bricks in the suitcases
  • handwritten directions to two locations outside the driving route
  • a receipt for a phone bought in California shortly after the loading of the raspberries, which allowed the inference that a phone was purchased and thrown to facilitate untraceable communications
  • the fact that the cocaine was worth around $3.9 million, which permitted an inference that such a quantity of drugs would only be entrusted to someone aware of its presence.

Following a retrial, the appellant appealed his convictions for one count each of importing cocaine and possession of cocaine for the purpose of trafficking under the Controlled Drugs and Substances Act.

Verdict reasonable: appeal court

The Ontario Court of Appeal dismissed the appeal.

First, the appellate court ruled that the verdict of guilt was reasonable and was one that a properly instructed jury, acting judicially, could have rendered. The trial judge’s finding that it was possible to load and unload the drugs without the appellant’s knowledge did not render unreasonable his conclusion that the only reasonable inference, when considering the totality of the evidence, was that the appellant knew about the cocaine, the appellate court said.

Second, the Court of Appeal held that the trial judge made no errors in his approach to the circumstantial evidence and to the burden of proof beyond a reasonable doubt. The judge did not fail to weigh gaps in the evidence in making his overall assessment of whether the Crown met its burden to prove the appellant’s knowledge of the drugs beyond a reasonable doubt, the appellate court said.

Third, the appellate court determined that the trial judge properly applied the principles in R. v. W.(D)., [1991] 1 S.C.R. 742. The judge made detailed reasons showing that he correctly understood and applied the burden of proof and explaining why he did not believe the appellant’s evidence in the context of the evidence as a whole, the appellate court added.

Fourth, the Court of Appeal addressed the appellant’s argument that the trial judge misapprehended the evidence relating to the gloves and incorrectly said that all the CBSA officers stated that they had never seen gloves like that in a truck cab and they did not know of any use for them. The appellate court disagreed and concluded that there were no material misapprehensions of evidence resulting in a miscarriage of justice.

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