COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Singh, 2014 ONCA 791

DATE: 20141110

DOCKET: C56314

Laskin, Cronk and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Antarpal Singh

Applicant/Appellant

Paul Burstein, for the appellant

Kevin Wilson, for the respondent

Heard: June 17 and 18, 2014

On appeal from the convictions entered on June 27, 2012 and
    the sentence imposed on December 3, 2012 by Justice Joseph M. Donohue of the
    Superior Court of Justice, sitting without a jury.

Cronk J.A.:

A.      Introduction

[1]

In December 2009, officials of the Canada Border Services in Sarnia,
    Ontario discovered approximately 53 kilograms of cocaine concealed in a load of
    electronic games contained in a commercial trailer driven by the appellant, a
    long-haul truck driver.  The appellant was arrested and charged with importing
    cocaine and possession of cocaine for the purpose of trafficking.  After a
    trial by judge alone, he was convicted of both offences.  He was sentenced to
    12 years imprisonment, less four months credit for pre-sentence custody.

[2]

The appellant appeals from his convictions, seeks leave to appeal
    sentence and, if leave is granted, appeals against his sentence.

B.      Background

(1)

The Arrest

[3]

On December 3, 2009, the appellant drove a load of salt from Ontario to
    Michigan.  The next day, he picked up a load of electronic games in Redford,
    Michigan.  He drove to the Canada/United States border, arriving that evening
    at the Blue Water Bridge near Sarnia for entry into Canada.

[4]

Canadian border officials conducted an x-ray examination of the
    appellants load, which revealed an anomaly in the contents of the appellants
    trailer.  The appellant was directed to open the trailer and did so by breaking
    a metal seal on the trailers unlocked rear doors.  On physical inspection of
    the interior of the trailer, approximately 53 kilograms of cocaine were
    discovered in two boxes secreted among the games pallets in the trailer.
    Border officials also found footprints on the games packages and fingerprints
    on the drug packaging, none of which matched those of the appellant.  The
    appellant was arrested and charged with importing cocaine and possession of
    cocaine for the purpose of trafficking.

(2)

The Trial

[5]

At trial, the central issue was whether the appellant knew the cocaine
    was in the trailer.  Also in dispute were the circumstances of the loading of
    the trailer in Redford, the appellants actions between Redford and the border,
    the circumstances surrounding the unsealing of the trailer, the admissibility
    of statements allegedly made by the appellant to a Canadian border official on
    arrest, and the appellants conduct on arrest.

[6]

There is no dispute that the appellants trailer was fully loaded in
    Redford by 2:30 p.m. and that he arrived at the border about four hours later,
    at approximately 6:35 p.m., on the evening of December 4th.

[7]

The Blue Water Bridge is located about 75 miles from Redford.  The Crown
    led evidence at trial that the estimated travel time between Redford and the
    Bridge was either one hour and ten minutes or one hour and forty-eight minutes,
    depending on the chosen travel route.  The appellants log and various shipping
    documents were seized at the border.  According to his log entries, he crossed
    the Bridge approximately three and one-half hours after departing from Redford.

[8]

The Crown tendered two expert police reports at trial, in lieu of
    calling the experts to testify.  The first report concerned the estimated value
    of the seized cocaine.  The appellant does not challenge the admission of this
    report or the trial judges treatment of it.

[9]

The second report, authored by Sergeant Robert Ruiters of the Royal
    Canadian Mounted Police (the RCMP), addressed the use of commercial vehicles for
    the transportation of contraband, including drugs (the Ruiters Report).  The
    propriety of the trial judges reliance on certain of the opinions expressed in
    this report is the main issue on appeal.

[10]

The
    appellant testified at trial.  He denied any knowledge of the cocaine in his
    trailer.  He claimed that he did not observe the loading of his truck in
    Redford, that he remained in the cab of his truck during the loading and did
    not count the load, that an unidentified man placed the seal on the trailer in
    Redford after it was loaded, and that he signed various shipping documents on
    request at Redford without looking into the trailer.

[11]

The
    appellant also testified about his activities between the time his trailer was
    fully loaded in Redford, at 2:30 p.m., and his arrival at the Blue Water Bridge,
    at approximately 6:35 p.m., on December 4th.  He admitted that he had falsified
    his log entries during this critical period, concerning both the number and
    length of times he was out of his truck prior to arriving at the border.

[12]

The
    appellant also said that, after breaking the seal on his trailer doors for
    customs officials at the Blue Water Bridge, he discarded the broken seal by
    throwing it to the ground.  He could not account for the whereabouts of the
    broken seal, or for the fact that a seal found by customs officials inside his
    truck bore a different number than the discarded seal from the rear doors of
    the trailer.

[13]

The
    trial judge disbelieved the appellants account of events and his professed
    ignorance of the presence of the cocaine in his trailer.  He identified
    numerous concerns with the appellants testimony and, based on the cumulative
    effect of these concerns, concluded that the appellant was not credible and
    that his evidence did not lead to a reasonable doubt about his culpability.  On
    the evidence that he did accept, including Sgt. Ruiters opinion evidence, the
    trial judge was satisfied as to the appellants guilt beyond a reasonable doubt
    on both charges.

[14]

Accordingly,
    the trial judge convicted the appellant of both offences and sentenced him to
    12 years imprisonment, less four months credit for pre-sentence custody.

C.      Conviction Appeal

[15]

The
    appellant raises several grounds in support of his conviction appeal.  In my view,
    it is necessary to address only one of those grounds for the disposition of
    this appeal, namely, the appellants contention that the trial judge erred by
    failing to confine his use of Sgt. Ruiters opinion evidence to the proper limits
    of that evidence.

(1)

The Expert Evidence

[16]

Sergeant
    Ruiters is the National Program Manager and Co-ordinator of a national highway
    criminal interdiction and contraband seizure program operated by the RCMP and
    other Canadian law enforcement agencies.  His report was admitted at trial without
    objection by the defence on the basis that the appellant intended to testify
    and, as defence counsel put it, would [present] evidence in due course in
    order to address some of the factual premises laid out  within the report.  Sergeant
    Ruiters qualifications to offer the opinions contained in the Ruiters Report
    were accepted by the defence.  Sergeant Ruiters did not testify and was not
    cross-examined on the contents of the Ruiters Report.

(a)

The General Expert Evidence

[17]

In
    his report, Sgt. Ruiters offered several opinions of a general nature about the
    overland transportation of illegal commodities.  In particular, the Ruiters Report
    detailed Sgt. Ruiters opinions concerning: 1) the use of commercial vehicles
    by organized criminal groups to transport large amounts of contraband,
    particularly drugs; 2) the role of drug couriers used by such groups to
    facilitate the transportation and delivery of contraband; and 3) what Sgt.
    Ruiters described as normal trucking industry practices.

[18]

With
    respect to the involvement of organized criminal groups in the transportation
    of contraband, Sgt. Ruiters stated:

-

the
    movement of contraband is a business  albeit an illegal business.  Therefore,
    criminal organized groups usually do not entrust valuable commodities to
    someone who is unproven or unreliable  just as a major legitimate business
    would not trust valuable commodities to someone unproven or with no experience
    of previously displayed skills.

-

the
    movement of 53+ kgs. of contraband (cocaine) is significant and believed to be
    tied to an organized criminal group.

[19]

As
    to the participation of drug couriers in the movement of contraband on behalf
    of organized criminal groups, Sgt. Ruiters said:

-

the
    drug courier needs to be someone whom [
sic
] is considered reliable and
    trustworthy by the organization to ensure safe and on-time delivery of the
    contraband.

.

-

an
    organized criminal group would not usually trust someone with a load of 53 kg of
    cocaine unless they have proven themselves reliable or trustworthy.  Most
    commonly, this reliability would likely have been proven by making previous
    deliveries of smaller amounts and/or previous criminality within the group.

-

all
    members involved in criminal groups have roles and responsibilities within the
    group and are held accountable within this group.  Therefore, the person who
    recruits/hires the actual drug courier needs to know that this person will
    deliver the contraband on-time and therefore must establish control of this
    courier.  This control comes by clear instruction of delivery and understanding
    of risks of failure to follow these directions.  Therefore in order for there
    to be control over the driver, the driver must have knowledge of the duties
    expected of him/her.  The drug courier is also held accountable for the
    contraband load and its delivery.

-

the
    drug courier would have knowledge of the contraband aboard the vehicle so that
    he would know to retrieve or safeguard the drugs should the vehicle break down
    or be involved in a collision.

.

-

in
    order for a commercial vehicle to be loaded with contraband after the
    legitimate load, the driver must stop after legitimate loading and, either be
    the one to load the vehicle with contraband or, entrust the vehicle to someone
    else who then facilitates the loading of contraband.

[20]

With
    respect to normal trucking industry practices, Sgt. Ruiters evidence included
    the following:

-

the
    normal trucking industry practices however show that once a
legitimate load
is loaded that the driver has an
    expectation upon them to
immediately leave for their
    destination
point for their legitimate delivery.  The legitimate driver
    accepts responsibility to deliver this legitimate freight to its destination.

-

[a]ll
legitimate truck drivers would not, therefore,
    surrender

their

vehicle,

after

loading,

to

someone

else, even temporarily.  This is
    inconsistent with normal practices and goes against the normal truckers
    responsibility of ensuring proper transportation of the legitimate load.
    Should a driver surrender his/her vehicle to someone else temporarily (that is
    not the normal legitimate shipper for a legitimate load) he/she would have
    known, or ought to have known, that it was being loaded with illegal cargo.

-

as the contraband must be removed prior to the off-loading of the
    legitimate load, the driver must stop or deviate from the normal expected
    destination of the legitimate load to enable the contraband off-loading.  In
    order for this to occur the driver must have knowledge of the contraband
    aboard.

[Emphasis in original.]

(b)

The Case-Specific Expert Evidence

[21]

As
    I have said, the opinions described above were general in nature.  Although
    they touched in part on a commercial truck drivers suggested knowledge of the
    contents of cargo loaded in his or her vehicle and, hence, on the likelihood of
    the drivers knowledge of any illegal contraband contained in his or her loaded
    cargo, they were not directed at the actual circumstances of the appellants
    case or his alleged knowledge of the drugs ultimately found in his vehicle.

[22]

However,
    Sgt. Ruiters also offered several case-specific opinions, some of which bore
    directly on the appellants credibility and his alleged knowledge of the
    cocaine in his vehicle.

[23]

First,
    Sgt. Ruiters expressed the view that the appellants account of his activities
    between the time of the loading of his vehicle in Redford and his arrival at
    the border, which ostensibly accounted for the lapse of approximately four
    hours, was both inconsistent with normal industry trucking practices and based
    on falsified log entries.  In this regard, Sgt. Ruiters stated:

The time in between is not accounted for.  This is
extremely inconsistent with normal trucking practices

and
    very consistent with someone who was waiting for contraband to transport after
    having legitimate cargo loaded
.
His log books in this case are
    nonsensical, inaccurate and falsified
.  [Underlined emphasis in original;
    italicized emphasis added.]

[24]

Sergeant
    Ruiters also offered the following key opinions:

-

[i]n
    this case,
the driver claims that the shipper placed a lock and a seal on
    the rear doors of the trailer
.  However, at the time of inspection at the [Port
    of Entry],
no lock was noted nor was the seal the same as was placed on by
    the shipper
.
This is further evidence that the trailer had been
    opened
after being loaded with the legitimate load of electronics.

-

[f]urther,
    in this case,
had the driver truly been unaware that the trailer had been
    entered after being loaded in Redford, he would have expressed concerns
    immediately to the CBSA officials
once he realized that there was no
    longer a lock or company seal on his trailer when asked to open the trailer at
    the port.
He did not do so thus indicating he was aware that it had been
    entered
.

-

it
    is my opinion in this case that the driver, who was transporting a significant
    amount of contraband, has ties to an organized criminal group and had knowledge
    of the contraband aboard the trailer
.

-

it
    is also my opinion that this driver arranged a legitimate load pickup with a
    purpose of having the appearance of normal transportation of cargo; or
    attempts to legitimize his real intent, which was the pick up and
    transportation of the cocaine
.

[Emphasis added.]

(2)

The Parties Positions

[25]

At
    the appeal hearing, the appellants main argument was that the trial judge
    erred by relying on Sgt. Ruiters evidence to test the appellants version of
    events and to determine the ultimate issue whether the appellant knew of the
    cocaine found in his vehicle.  As set out in his factum, the appellant maintained
    that Sgt. Ruiters opinions on these issues relied upon speculative
    associations to organized crime, objective standards of
mens rea
and
    reversals of the burden of proof.  According to the appellant, rather than
    cautioning himself against the use of these inadmissible opinions, the trial
    judge relied upon them, both to reject the appellants evidence and to support
    the Crowns case.

[26]

The
    Crown argues that the Supreme Court of Canadas recent decision in
R. v.
    Sekhon
, 2014 SCC 15, [2014] 1 S.C.R. 272 is a full answer to these
    complaints.  The Crown maintains that the impugned opinions in the Ruiters
    Report are similar to certain of the expert evidence addressed, and accepted,
    in
Sekhon
.

[27]

Moreover,
    and in any event, the Crown submits that the trial judge did not rely on or
    defer to Sgt. Ruiters evidence on the question of the appellants knowledge of
    the cocaine.  Rather, the trial judge independently assessed the evidence concerning
    the appellants knowledge of the cocaine and, having done so, concluded that he
    agreed with Sgt. Ruiters opinion that the appellant knew of the presence of
    the cocaine when he entered Canada at the Sarnia border crossing.

(3)

Discussion

[28]

I
    agree with the appellant that the trial judge erred in his treatment of certain
    of Sgt. Ruiters evidence, in particular, by relying on Sgt. Ruiters case-specific
    opinions concerning the appellants credibility and the key question of the
    appellants knowledge of the presence of cocaine in his vehicle.  In so doing,
    in my opinion, the trial judge fatally erred by failing to restrict his use of Sgt.
    Ruiters expert evidence to its proper limits.

[29]

To
    begin, I emphasize that while defence counsel at trial did not object to the
    admission of the Ruiters Report, she also did not admit, as fact, the
    statements contained in it.  To the contrary, in agreeing to the admission of
    the Ruiters Report, defence counsel expressly indicated that she anticipated
    leading evidence to challenge the factual underpinnings of Sgt. Ruiters
    opinions.  As the trial unfolded, she in fact did so, at least to some extent.
    In these circumstances, no formal admission of the facts in the Ruiters Report
    having been made within the meaning of s. 655 of the
Criminal Code
,
    R.S.C. 1985, c. C-46, it was not open to the trial judge to rely on the Ruiters
    Report for the truth of its contents.

[30]

The
    criteria for the admission of expert evidence  1) relevance; 2) necessity in
    assisting the trier of fact; 3) the absence of any exclusionary rule; and 4) a
    properly qualified expert  are well-established:
R. v. Mohan
, [1994]
    2 S.C.R. 9, at pp. 20-23;
R. v. J.-L.J.
, 2000 SCC 51, [2000] 2 S.C.R.
    600;
R. v. D.D.
, 2000 SCC 43, [2000] 2 S.C.R. 275.  It falls to the
    trial judge to determine whether these criteria are met in a given case.

[31]

It
    is important not to lose sight of the scope of a trial judges gate-keeping
    function in relation to expert evidence.  A ruling in favour of the admission
    of expert evidence does not discharge the trial judges obligation to protect
    against the misuse of such evidence.  In
R. v. Abbey
, 2009 ONCA 624,
    97 O.R. (3d) 330, at para. 62, Doherty J.A. of this court warned:

A cautious delineation of the scope of the proposed expert
    evidence and strict adherence to those boundaries, if the evidence is admitted,
    are essential.  The case law demonstrates that overreaching by expert witnesses
    is probably the most common fault leading to reversals on appeal. [Citations
    omitted.]

[32]

More
    recently, in affirming the importance of the
Abbey
caution and the
    oversight role of a trial judge concerning expert evidence, Moldaver J. of the
    Supreme Court, writing for the majority, stressed in
Sekhon
, at paras.
    46 and 47:

Given the concerns about the impact expert evidence can have on
    a trial  including the possibility that experts may usurp the role of the
    trier of fact  trial judges must be vigilant in monitoring and enforcing the
    proper scope of expert evidence.  While these concerns are perhaps more
    pronounced in jury trials, all trial judges  including those in judge-alone
    trials  have an ongoing duty to ensure that expert evidence remains within its
    proper scope.
It is not enough to simply consider the Mohan criteria at
    the outset of the experts testimony and make an initial ruling as to the
    admissibility of the evidence.  The trial judge must do his or her best to
    ensure that, throughout the experts testimony, the testimony remains within
    the proper boundaries of expert evidence
.

The trial judge must both ensure that an expert stays
    within the proper bounds of his or her expertise and that the content of the
    evidence itself is properly the subject of expert evidence
.  [Citations
    omitted; emphasis added.]

[33]

Justice
    Moldaver continued, at para. 48, by noting that trial judges are accustomed to
    disabusing their minds of inadmissible evidence.  Nonetheless, he emphasized:

It goes without saying that where the expert evidence strays
    beyond its proper scope, it is imperative that the trial judge not assign any
    weight to the inadmissible parts.

[34]

In
    light of these foundational principles, there are two critical issues with respect
    to the Ruiters Report: 1) did the content of the report, in whole or in part, exceed
    the proper scope of expert evidence? and 2) if so, did the trial judge err by
    assigning weight to the inadmissible parts of this evidence?  I will address
    these questions in turn.

(a)     The Inadmissible Evidence

[35]

Sergeant
    Ruiters general opinions, described above, addressed the likely association
    between an organized criminal group involved in the commercial transportation
    of contraband and the driver of a vehicle containing such contraband, as well
    as the likely knowledge by the driver of the presence of contraband found in
    his or her vehicle.  Inferentially, at least, some of Sgt. Ruiters statements
    concerning these matters came close to the expression of opinions on the
    appellants criminal culpability.  Nonetheless, the general statements in the
    Ruiters Report bearing on these issues did not include any explicit commentary
    on the appellants activities, or on his alleged knowledge of the cocaine
    discovered in his vehicle.

[36]

As
    a result, in my view, Sgt. Ruiters general opinions concerning the involvement
    and activities of organized criminal groups and drug couriers in the illegal
    transportation of contraband, as well as his opinions regarding normal trucking
    industry practices, detailed above, were admissible given his unchallenged and
    extensive qualifications to offer expert testimony on the overland transportation
    of illegal commodities.

[37]

However,
    these general opinions stand in stark contrast to the case-specific opinions
    expressed by Sgt. Ruiters, quoted earlier in these reasons.  In my opinion, his
    case-specific opinions on: 1) the appellants alleged association with
    organized criminal elements; 2) his knowledge of the cocaine in his trailer;
    and 3) his credibility, strayed beyond the proper scope of expert evidence.
    These opinions were inadmissible and highly prejudicial to the appellant.

[38]

Recall,
    for example, Sgt. Ruiters opinions that the appellant had ties to an organized
    criminal group and that he knew about the cocaine in his trailer; that the
    appellants actions (including his failure to express concerns to border
    officials when he learned that there was no lock or seal on his trailer), in
    effect, refuted his claim that he was unaware that his trailer had been opened
    after being loaded with its legitimate cargo of electronic games; that, as a
    courier, the appellant had to have knowledge of the contraband aboard his
    vehicle in order to retrieve or safeguard it in the event that his vehicle
    broke down or was involved in a collision; that the appellants real intent was
    to pick up and transport cocaine;  and that the appellants account of his
    activities, as recorded in his log entries, was nonsensical, inaccurate and
    falsified.

[39]

These
    opinions concerned the core, indeed the pivotal, questions before the trial
    judge: whether, on the whole of the evidence, the Crown had established that
    the appellant knew of the cocaine and whether the appellants testimony,
    including his denial of such knowledge, was credible.  As with the impugned
    expert evidence in
Sekhon
, Sgt. Ruiters personal opinions on these
    issues were not necessary.  The determination whether the appellant knew about
    the cocaine and whether his account of his activities was credible were not
    beyond the knowledge and experience of the trial judge.  Nor were they technical
    or scientific matters requiring the assistance of an expert:
Sekhon
at
    para. 49.  Indeed, the determination of these questions was squarely within the
    trial judges expertise and domain.  As the majority stated in
Sekhon
,
    at para. 45:

As for the necessity criterion,
Mohan
holds that
    [i]f on the proven facts a judge or jury can form their own conclusions
    without help, then the opinion of [an] expert is unnecessary.  The [
Mohan
]
    Court went on to note that the concern inherent in the application of this
    criterion [is] that experts not be permitted to usurp the functions of the
    trier of fact.  [Citations omitted.]

[40]

Justice
    LeBel, writing in dissent in
Sekhon
on other grounds, agreed.  He put
    it this way, at paras. 75-76:

[T]his court has repeatedly cautioned that expert evidence must
    not be allowed to usurp the role of the trier of fact.  The trier of fact,
    whether a judge or a jury, is responsible for deciding the questions in issue
    at trial.  Judges must be especially cautious where the testimony of police
    expert witnesses is concerned, as such evidence could amount to nothing more
    than the Crowns theory of the case cloaked with an aura of expertise.  The
    courts have clearly recognized the risk that expert evidence could usurp the
    role of the trier of fact in the assessment of credibility, and even in the
    decision on the ultimate issue of guilt or innocence.  I see no reason to
    believe that this danger is less real where the evidence is given by a state
    agent like a police officer rather than by a scientific expert.

The
Mohan
requirement of necessity is the primary
    safeguard against the inappropriate proliferation of expert evidence.  But even
    where the experts evidence is broadly necessary, as in this case, it should be
    assessed with special scrutiny as it approaches the ultimate issue:
Mohan
,
    at p. 24;
R. v. J.-L.J.
, 2000 SCC 51, [2000] 2 S.C.R. 600, at para.
    37.  The decision to qualify an expert witness does not end the need for
    scrutiny of the experts evidence.  A properly qualified expert could stray
    into expressing inadmissible opinions about the guilt of an accused, and the
    trial judge must ensure that the experts testimony stays within the proper
    boundaries of such evidence and maintain the integrity and independence of his
    or her own fact-finding function as regards the credibility of witnesses and
    the guilt or innocence of the accused.

[41]

In
    this case, the Crown conceded in oral argument before this court that at least two
    parts of the Ruiters Report were inadmissible.  The parts in question, set out
    above and repeated here for convenience, read as follows:

-

it
    is my opinion in this case that the driver, who was transporting a significant
    amount of contraband, has ties to an organized criminal group and had knowledge
    of the contraband aboard the trailer.

[42]

I
    agree with the Crowns concession.  Sergeant Ruiters first statement  that
    the appellant has ties to an organized criminal group  is supposition only,
    based merely on the quantity of cocaine found in his trailer.  This opinion is
    an inferential extrapolation from Sgt. Ruiters general opinion that no blind
    courier would be entrusted by an organized criminal group to transport a
    quantity of cocaine as large as that seized in this case.  I see no necessity
    within the meaning of the
Mohan
criteria for the admission of an
    unsupported opinion of this kind.  The flaw in Sgt. Ruiters second opinion
    that the appellant had knowledge of the contraband aboard the trailer  is
    self-evident.  This opinion purported to answer the central question at trial
    whether the appellant knew of the presence of the cocaine.  This was a
    determination to be made by the trial judge.

(b)     The Trial Judges Reliance on the Inadmissible
    Evidence

[43]

The
    more difficult question in this case is whether, as the appellant contends, the
    trial judge relied on the inadmissible parts of the Ruiters Report in evaluating
    the appellants credibility and determining his guilt or innocence.  In my view,
    the suggestion that the trial judge did not rely on Sgt. Ruiters inadmissible evidence
    must be rejected.  The trial judges reasons undercut this claim.  The reasons
    are replete with references, direct and indirect, to Sgt. Ruiters case-specific
    opinions, including, especially, those pertaining to the likelihood that the
    appellant knew of the presence of the cocaine in his vehicle and his
    credibility.

[44]

The
    following examples suffice to make this point.  First, the trial judge
    expressly indicated in his reasons: I test the version of the accused about
    what happened to him against the opinion of Sergeant Ruiters.  This statement
    was unqualified.  The trial judge then said: In my view, the accuseds version
    of how he was taken advantage of is highly improbable.  One cannot get away
    from the fact that this cocaine in round figures was worth somewhere between
    two million and six million Canadian dollars.

[45]

The
    trial judge next outlined several reasons for his conclusions that the
    appellant was not credible and that the appellants evidence did not give rise
    to a reasonable doubt.  Several of these reasons were unrelated to Sgt.
    Ruiters case-specific opinion evidence
e.g.
, the discrepancy
    between the seal on the rear doors of the appellants trailer and the seal
    placed on the vehicle by officials in Michigan.

[46]

However,
    in embarking on his assessment of the appellants credibility, the trial judge
    expressly indicated that he regarded the Ruiters Report as the benchmark
    against which the appellants testimony was to be tested.  The trial judges
    reasons afford no certainty that in evaluating the appellants credibility, the
    trial judge placed no reliance on the inadmissible parts of Sgt. Ruiters
    evidence.

[47]

Second,
    and more problematic still in my view, is the trial judges approach to the key
    issue of the appellants knowledge of the presence of the cocaine.    Having explained
    why he concluded that the appellant was not credible, and why the appellants evidence
    did not leave him with a reasonable doubt, the trial judge next directed
    himself to examine whether the evidence that he did accept proved the
    appellants knowledge of the cocaine in his trailer beyond a reasonable doubt.
    He stated:

It is highly improbable that [the appellant] would be allowed
    to transport cocaine worth between two million and six million dollars without
    knowing anything about it, and without any control upon his movements.

[48]

In
    the same vein, the trial judge indicated:

I accept the view by Sergeant Ruiters that criminals would not
    usually trust someone with a load of 53 kilograms of cocaine without some
    proven track record for reliability.

[49]

These
    findings are coloured by Sgt. Ruiters case-specific opinions, specifically, his
    opinions that the fact of the appellants transportation of a significant
    amount of cocaine established that his reliability and trustworthiness as a
    drug courier had been tested and accepted by an organized criminal group and
    that he knew of the contraband aboard the trailer.  In other words, that the
    appellant was not a blind but, rather, a knowing courier who was acting in
    association with and for the benefit of organized criminal groups.

[50]

Invoking
Sekhon
, the Crown submits that Sgt. Ruiters opinion regarding the
    implications of the use of a courier to transport a large load of contraband
i.e.
that an organized criminal group would not trust an untested or blind courier
    to transport approximately 53 kilograms of cocaine  is unobjectionable.  Crown
    counsel points out that in
Sekhon
, a somewhat factually similar case,
    the Supreme Court did not reject or otherwise criticize a police experts
    evidence, at para. 19:

[T]hat the recruitment of a drug courier takes time and that an
    organization will not typically entrust a first-time courier with a large
    shipment.  Instead, the couriers reliability will be tested with smaller
    shipments.

[51]

In
    my view, the Crown misreads
Sekhon
.
Sekhon
affords no
    authority for the proposition that the trial judge was free to rely on the type
    of inadmissible, case-specific evidence offered by Sgt. Ruiters in this case.

[52]

It
    is true that the above-quoted extract from the expert evidence in
Sekhon
is substantially similar to one of Sgt. Ruiters opinions in this case.  It is
    also true that the quoted excerpt met with no adverse comment from the
Sekhon
court.  However, it also formed no part of the impugned expert evidence in
Sekhon
.
    Rather, the
Sekhon
courts focus, and apparently that of the parties,
    was on the police experts testimony that he had not had any personal historical
    experience or encounter with a blind courier.  The
Sekhon
court
    noted, but did not address, that part of the police experts opinion in
Sekhon
that corresponds to the counterpart opinion by Sgt. Ruiters that the Crown
    relies on in this case.

[53]

If
    there were any doubt that the trial judge relied on inadmissible parts of Sgt. Ruiters
    evidence in concluding that the appellant knew of the cocaine in his vehicle,
    that doubt is put to rest by the trial judges additional comments in his
    reasons.  Later in his reasons he said, with reference to Sgt. Ruiters
    evidence:

Those features of his opinion that appealed to me are the
    following: The unlikelihood that criminals would trust this large a load to a
    blind courier.  The obvious point that a courier would have knowledge of the
    contraband aboard his vehicle so that he would know to retrieve or safeguard it
    in the event of a breakdown or a collision
.  The fact that there would be
    no reason for the shippers to leave footprints on top of the cartons of the legitimate
    load.  That load was loaded on pallets by way of a forklift.  As I have stated,
    I agree and find as a fact that the truck was entered and the legitimate load
    was climbed upon at the time that the cocaine was loaded.  This is entirely
    consistent with the finding of the footprints on the boxes.  I agree that
    normal trucking industry practice places an expectation upon a driver that once
    a legitimate load is loaded he is to immediately leave for his destination and
    not leave his load unattended for anything other than brief washroom or
    nourishment stops.  What [the appellant] did on this occasion does not comply
    with that normal practice.  As I had stated,
it was also part of Sergeant
    Ruiters circumstances that he considered in coming to his opinion, whereas a
    driver should leave immediately for his destination, a destination at the
    border, which in this case was an hour or so from the loading point.  The very
    fact here that it took four hours or so for [the appellant] to get to the
    border is extremely inconsistent with normal trucking practices, and consistent
    with someone who was waiting for contraband to be loaded with his legitimate
    cargo
.  [Emphasis added.]

[54]

Against
    the backdrop of these findings, the trial judge concluded:

Accordingly, considering all of these circumstances, I agree
    with the opinion of Sergeant Ruiters that the [appellant] had knowledge of the
    cocaine when he brought his truck across the border.

On the basis of the evidence which I do accept, I am satisfied
    beyond a reasonable doubt that [the appellant] knew that the cocaine was in his
    truck upon entry into Canada.

[55]

In
    fairness to the trial judge, before describing those features of Sgt. Ruiters
    evidence that appealed to him, the trial judge noted that his evidence was
    unchallenged by any cross-examination and stated, His opinion carries some
    weight, but of course the finding in this case is for me.  The Crown submits
    that this statement, coupled with the trial judges concluding comment, quoted
    above, that he agree[d] with Sgt. Ruiters opinion that the appellant knew of
    the cocaine in his vehicle confirm that the trial judge did not rely on Sgt.
    Ruiters opinion but, rather, independently concluded that he agreed with it.

[56]

I
    cannot accept this submission.  The features of Sgt. Ruiters evidence
    identified by the trial judge in the above-quoted passage formed the basis for
    Sgt. Ruiters opinion that the appellant knew of the cocaine in his vehicle.
    The opinion referred to by the trial judge was Sgt. Ruiters opinion that the
    appellant knew about, and was intentionally complicit in the transportation of,
    the cocaine.  This was not merely a general opinion based on the normal
    practices of long-haul truck drivers.  It was an inadmissible opinion specific
    to the appellants conduct and state of mind.

[57]

The
    trial judges reasons must be read in this context.  They indicate that in
    assessing the Crowns case against the appellant, the trial judge relied on
    Sgt. Ruiters case-specific opinions that: 1) the amount of cocaine transported
    by the appellant rendered it unlikely that he was unaware of its presence; 2)
    the appellant had to know of the cocaine in order to safeguard or retrieve it
    in the event of an unanticipated breakdown or collision; and 3) the appellants
    actions in delaying his departure from Michigan after his truck was loaded and
    the time taken by him to reach the border were consistent with the conduct of
    someone waiting for contraband to be loaded.

[58]

In
    my view, therefore, when the trial judges reasons are read as a whole, they reveal
    that he did rely on the inadmissible parts of Sgt. Ruiters evidence  namely, his
    opinion about the appellants knowledge of the cocaine in his vehicle.  To the
    extent that the trial judges finding that the appellant knew of the cocaine
    rested on the inadmissible parts of Sgt. Ruiters evidence, described above,
    the trial judge fell into reversible error.

[59]

There
    is also an additional, significant difficulty, as I see it.  As I read the
    record, including the reasons, both at the time the Ruiters Report was admitted
    into evidence and during the remainder of the trial, the trial judge failed to
    lend his mind to whether the content of Sgt. Ruiters evidence was properly the
    subject of expert evidence, that is, whether parts of the Ruiters Report
    exceeded the proper bounds of expert evidence.  Given the absence of a defence
    objection to the admission of the Ruiters Report, the trial judge appears to
    have simply accepted that it was admissible in its entirety.  At no point
    thereafter does it appear that he revisited the issue of the proper scope of
    Sgt. Ruiters evidence.  By failing to address this critical question, the
    trial judge ran afoul of the
Abbey
and
Sekhon
principles.

(4)

The Use of the Curative Proviso is Inappropriate

[60]

I
    have concluded that parts of Sgt. Ruiters evidence were inadmissible and that
    the trial judge fatally erred by relying on the inadmissible evidence.  In the
    circumstances of this case, this was not an inconsequential error.

[61]

This
    is not an appropriate case for application of the curative proviso under s.
    686(1)(b)(iii) of the
Criminal Code
.  The trial judges reliance on
    the impugned evidence permeates his reasons.  While there was other evidence in
    this case, apart from Sgt. Ruiters inadmissible evidence, that may have
    supported the convictions, I am not persuaded that the Crowns circumstantial
    case was so overwhelming that, notwithstanding the trial judges serious error,
    the trier of fact would inevitably convict: see
Sekhon
at paras.
    52-53.  I note that Crown counsel did not press the case for the application of
    the curative proviso during the appeal hearing.

D.      Sentence Appeal

[62]

I
    conclude that the appellants convictions must be set aside and a new trial
    ordered.  Accordingly, I do not reach the appellants sentence appeal.

E.      Disposition

[63]

For the reasons given, I would allow the conviction appeal and order a
    new trial.

E.A.
    Cronk J.A.

I
    agree R.A. Blair J.A.

Laskin J.A. (Dissenting):

[64]

I
    have read the reasons of Cronk J.A., and I am unable to agree with them or with
    her conclusion that the conviction appeal should be allowed. I would dismiss
    the conviction appeal, but allow the sentence appeal.

A.

Introduction

[65]

The
    appellant, Antarpal Singh, was a long-haul commercial truck driver. He was
    convicted of importing 53 kg
[1]
of cocaine into Canada and of possession of cocaine for the purpose of
    trafficking. He was sentenced to 12 years in prison.

[66]

The
    appellant picked up a load of electronic games at Redford, Michigan, and
    crossed into Canada at the Blue Water Bridge near Sarnia. Border officers
    discovered the cocaine hidden in the trailer of the truck the appellant was
    driving.

[67]

The
    central issue at trial was knowledge: did the appellant know that the cocaine
    was in his truck? The appellant testified and denied that he knew. The trial
    judge rejected his evidence and concluded that it did not raise a reasonable
    doubt. The trial judge then concluded that the Crown had proved the appellant
    knew he was carrying cocaine when he crossed the border into Canada.

[68]

The
    appellant argues four grounds of appeal against his conviction:

(1)

the trial judge relied on the
    inadmissible portion of Sgt. Ruiters expert opinion to reject the appellants
    evidence and to find that the appellant had knowledge of the cocaine;

(2)

the trial judge failed to hold a
voir
    dire
into the admissibility of the appellants statements to border agent
    Arjan Bos at the time of his arrest;

(3)

the trial judge failed to conduct
    a
voir dire
into the qualifications of the second interpreter; and

(4)

the trial judge inappropriately
    relied on the appellants demeanour as a primary basis to reject his evidence.

[69]

On
    his sentence appeal, the appellant submits that a 12-year sentence is
    unreasonable, outside an acceptable range.

[70]

My
    colleague deals only with the first ground of appeal against conviction. She
    concludes that the trial judge relied on inadmissible parts of Sgt. Ruiters
    opinion, both to reject the appellants evidence and to find that the Crown had
    proved the appellants knowledge of the cocaine. On this ground alone, she
    would allow the appeal and order a new trial.

[71]

I
    disagree with Cronk J.A.s conclusion on this first ground of appeal. The trial
    judge gave a lengthy list of reasons for rejecting the appellants evidence.
    Only one of those reasons relied in any way on the admissible portion of Sgt.
    Ruiters opinion. Not one of the trial judges reasons relied on the
    inadmissible portion of his opinion. Similarly, the trial judge gave several reasons
    for his conclusion that the Crown had proved knowledge. In part, the trial
    judge relied on Sgt. Ruiters opinion for his conclusion, but only on the
    admissible portion of that opinion. In finding the appellant guilty, the trial
    judge did not rely on the inadmissible part of Sgt. Ruiters opinion.

[72]

Thus
    I would not give effect to the appellants first ground of appeal. Nor would I
    give effect to any of the other grounds of appeal against conviction. I would
    therefore dismiss the appellants appeal against his conviction. I would,
    however, allow his sentence appeal and reduce his sentence from 12 years to
    nine years in prison, less four months credit for presentence custody, in
    other words to a sentence of eight years and eight months imprisonment.

B.

The
    conviction appeal

(I)

Did the trial judge rely on the inadmissible portion of Sgt.
    Ruiters expert opinion?

[73]

In
    her reasons, my colleague thoroughly sets out the factual background giving
    rise to this appeal. I need not repeat it here. Cronk J.A. divides Sgt.
    Ruiters opinion into two parts: his general expert opinion, and his
    case-specific expert opinion, which the Crown concedes is inadmissible. I
    attach as Appendix A to these reasons Sgt. Ruiters four-and-a-half page
    written expert opinion.

[74]

I
    accept my colleagues division. The first four pages of Sgt. Ruiters report
    contain general opinion evidence, which is admissible, though I feel compelled
    to add that much of what Sgt. Ruiters says in these pages seems to be common
    sense. In the admissible portion of his opinion, Sgt. Ruiters discusses
    criminal organizations use of commercial trucks to transport large amounts of
    drugs, the role of drug couriers in the transportation of drugs, and normal
    trucking industry practices.

[75]

Sgt.
    Ruiters case-specific opinion on the appellants culpability is in the last
    half-page of his report, and Cronk J.A. reproduces it at paras. 23-24 of her
    reasons. This part of his opinion is inadmissible because the trier of fact,
    not an expert, must decide the appellants guilt or innocence.

[76]

The
    question under this ground of appeal is whether the trial judge relied on Sgt.
    Ruiters inadmissible case-specific opinion to reject the appellants evidence
    or to find that the Crown had proved the appellants knowledge of the cocaine.
    Cronk J.A. says that he did and I answer that he did not.

[77]

To
    put my answer in context, I make four preliminary points. First, Sgt. Ruiters
    opinion was admitted in evidence on consent and was not challenged by the
    defence in cross-examination. The trial judge can therefore, perhaps, be
    somewhat excused for not performing his gatekeeper role over the admissibility of
    this opinion evidence.

[78]

Second,
    this was not a jury trial. It was a judge-alone trial, and as Moldaver J. said
    in
R. v. Sekhon
, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 48, judges
    are accustomed to disabusing their minds of inadmissible evidence.

[79]

Third,
    the trial judge expressly cautioned himself about relying too heavily on Sgt.
    Ruiters opinion. He said: His opinion carries some weight, but of course the
    finding in this case is for me.

[80]

Fourth,
    an appellate court gives significant deference to a trial judges credibility
    findings.

(a)

The trial judge did not rely on the inadmissible portion of Sgt.
    Ruiters opinion to reject the appellants evidence

[81]

The
    trial judge gave a lengthy list of reasons why he did not believe the
    appellants evidence or find that it raised a reasonable doubt. None of these
    reasons relied on Sgt. Ruiters opinion. They included:

·

The appellant admitted that he did
    not watch the load being placed in his truck, contrary to the shippers policy.

·

The appellant left Redford at 2:30
    p.m. He gave an estimated time of arrival at the border of 5:00 p.m. Yet the
    distance between Redford and the border is only about 75 miles, with an
    estimated travel time of between one hour and 10 minutes and one hour and 48
    minutes. The trial judge concluded that in the light of the appellants driving
    experience, his answer to the question at trial about his estimated arrival
    time did not make much sense.

·

The appellant claimed that he
    stopped at a truck stop just before the border to clear his load with customs
    officials. According to the appellant, he was at the truck stop between 4:00
    and 6:00 p.m. to fax his paperwork to the officials. The trial judge found his
    explanation for the amount of time out of the truck unbelievable. Leaving a
    truck unattended for that amount of time, the trial judge said, does not
    accord with normal practices of responsible drivers. Overall, the appellants
    explanation for what happened at the truck stop was improbable in the
    extreme.

·

The appellant admitted that he
    falsified his log sheet to show he was in the truck. He said that he did so
    because he did not want to be ticketed for being away from his load. The trial
    judge found his explanation completely incredible. In so finding, the trial
    judge noted that the appellant falsified his log at a critical time: just
    before he was to arrive at the border.

·

The appellant broke the seal on
    the trailer door and claimed he threw the seal on the ground. He claimed he did
    so because the border services officer was rushing him. The trial judge
    rejected the appellants explanation. Instead, he found that throwing the seal
    on the ground was completely incredible considering the appellants
    experience as a trucker crossing the border. Later in his reasons, the trial
    judge added: I cannot believe that an experienced trucker would honestly do
    that with a seal, realizing how critically it is connected to the papers and
    the load that he is carrying.

·

One of the border agents retrieved
    a seal numbered 273944 from the floor of the trailer. It did not match the seal
    number on the paperwork from Redford. When the appellant was shown the
    discrepancy, he injected a self-serving lie into testimony. He claimed the
    seal in the trailer was from the load he had taken into the United States. But
    that claim was shown to be false.

·

[M]aking full allowance for
    cultural and linguistic differences, the trial judge found that the appellant
    was a furtive witness, not frank and open in the stand. To the trial judge,
    the appellant projected the appearance of a witness who was trying to hide the
    truth.

[82]

In
    rejecting the appellants evidence and finding that it did not raise a
    reasonable doubt, the trial judge referred to Sgt. Ruiters opinion only once.
    He said, I test the version of the accused about what happened to him against
    the opinion of Sergeant Ruiters. Cronk J.A. relies on this statement. She says
    it is unqualified. Thus, in her view, [t]he trial judges reasons afford no
    certainty that in evaluating the appellants credibility, the trial judge
    placed no reliance on the inadmissible parts of Sergeant Ruiters evidence.

[83]

Respectfully,
    I disagree for two reasons. The first and main reason is that the trial judges
    statement must be read in context. The entire paragraph in which it appears is
    as follows:

In this trial, Mr. Robb has put
    forward the opinion of Sergeant Ruiters about the nature of couriers and the
    whole illegal process of bringing cocaine into Canada. I test the version of
    the accused about what happened to him against the opinion of Sergeant Ruiters.
    In my view, the accuseds version of how he was taken advantage of is highly
    improbable. One cannot get away from the fact that this cocaine in round
    figures was worth somewhere between two million and six million Canadian
    dollars.

[84]

The
    first sentence of this paragraph shows that the trial judges statement is not
    unqualified at all. He is testing the appellants evidence against the
    nature of couriers and the whole illegal process of bringing cocaine into
    Canada  in other words, against the portion of Sgt. Ruiters opinion conceded
    by my colleague at para. 36 of her reasons to be admissible. The last part of
    the paragraph simply refers to the dollar value of the cocaine, which comes
    from the report of the expert Sgt. Kowalczyk admitted on consent, and as a
    matter of common sense is undoubtedly a relevant consideration. I therefore
    conclude that in rejecting the appellants evidence, the trial judge did not
    rely on any inadmissible opinion evidence of Sgt. Ruiters.

[85]

The
    second reason for my disagreement is that the trial judge gave a compelling and
    lengthy list of reasons for disbelieving the appellants account. And none of
    those reasons in any way relied on Sgt. Ruiters opinion. In my view, even
    without Sgt. Ruiters evidence, the trial judge undoubtedly would have
    disbelieved the appellants evidence.

(b)

The trial judge did not rely on the inadmissible portion of Sgt.
    Ruiters opinion to find that the Crown had proved the appellant had knowledge
    of the cocaine.

[86]

Having
    rejected the appellants evidence, the trial judge then turned to consider
    whether the Crown had proved beyond a reasonable doubt that the appellant knew
    he was transporting cocaine. He concluded that the Crown had done so. In
    reaching that conclusion, the trial judge relied on four considerations, none
    of which depended on Sgt. Ruiters evidence:

·

The seals in this case are
    critical evidence. I find as a fact that there was a different seal on the rear
    doors of the truck trailer than the one which was placed on it by the officials
    at Redford, Michigan. The seal that was recovered just inside the doors was
    certainly not the seal that was placed on the truck by the officials at
    Redford, Michigan. The numbers were different. I cannot accept that the accused
    would allow his trailer to be sealed by a seal that did not match his
    paperwork, or that he would allow the proper seal that supported his innocence
    to be treated like a piece of garbage. Along with all the other evidence, the
    evidence of the seal determines his fate.

·

The appellant falsified his log
    about his whereabouts and activities at a critical time: just before he crossed
    the border.

·

The appellant took an inordinate
    length of time to get from Redford to the border  roughly four hours, more
    than twice the time needed. The trial judge did not accept the appellants
    explanation for the delay  his problems with getting clearance.  Instead,
    the trial judge found that this whole explanation of the long delay is simply
    a dodge to hide the fact that the time was required to make a connection to
    have the cocaine loaded.

·

A circumstance that is telling here
    are the reactions of Mr. Singh on being referred to secondary at Canada Customs
    and his reaction upon being placed under arrest. Particularly at the time of
    his arrest, he has no real explanation for why he dropped to his knees. One
    inference that can be made is that he realized that in slang terms the jig was
    up.

[87]

It
    seems to me these cogent considerations alone may have proved the Crowns case.
    But the trial judge also relied on Sgt. Ruiters opinion. Cronk J.A. says he
    relied on Sgt. Ruiters inadmissible case-specific opinion. I disagree. She
    points to three passages in her reasons.

[88]

The
    first two passages are similar and can be dealt with together. The trial judge
    said:

It is highly improbable that he
    would be allowed to transport cocaine worth between two million and six million
    dollars without knowing anything about it, and without any control upon his
    movements.

I accept the view by Sergeant
    Ruiters that criminals would not usually trust someone with a load of 53
    kilograms of cocaine without some proven track record for reliability.

[89]

According
    to Cronk J.A., These findings are coloured by Sergeant Ruiters case-specific
    opinions. In fact, these findings are based on Sgt. Ruiters general opinion
    evidence, as my colleague seems to acknowledge at paras. 19, 21 and 36 of her
    reasons. Indeed, Sgt. Ruiters says in the admissible part of his opinion:

An organized criminal group would
    not usually trust someone with a load of 53kg cocaine unless they have proven
    themselves reliable or trustworthy. Most commonly this reliability would likely
    have been proven by making previous deliveries of smaller amounts and/or
    previous criminality within the group.

[90]

The
    third passage of the trial judges reasons that my colleague points to and
    reproduces in full at para. 53 of her reasons is the following:

Those features of his opinion
    that appealed to me are the following: The unlikelihood that criminals would
    trust this large a load to a blind courier. The obvious point that a courier
    would have knowledge of the contraband aboard his vehicle so that he would know
    to retrieve or safeguard it in the event of a breakdown or a collision. The
    fact that there would be no reason for the shippers to leave footprints on top
    of the cartons of the legitimate load.  I agree that normal trucking industry
    practice places an expectation upon a driver that once a legitimate load is
    loaded he is to immediately leave for his destination and not leave his load
    unattended for anything other than brief washroom or nourishment stops. What Mr.
    Singh did on this occasion does not comply with that normal practice.  The
    very fact here that it took four hours or so for Mr. Singh to get to the border
    is extremely inconsistent with normal trucking practices, and consistent with
    someone who was waiting for contraband to be loaded with his legitimate cargo.

[91]

Cronk
    J.A. says that in this passage, the trial judge relied on inadmissible opinions
    specific to the appellants conduct and state of mind. I do not read this
    passage in that way at all.

[92]

The
    specific features of Sgt. Ruiters opinion that appealed to the trial judge
    all came from Sgt. Ruiters general opinion evidence, accepted by my colleague
    to be admissible, and, again, acknowledged to be so at paras. 19, 21 and 36 of
    her reasons. Nowhere in this passage does the trial judge rely on any
    inadmissible opinion evidence.

[93]

Perhaps
    the closest the trial judge comes is the concluding sentence in the passage,
    which comes from the inadmissible portion of the report: The very fact here
    that it took four hours or so for Mr. Singh to get to the border is extremely
    inconsistent with normal trucking practices, and consistent with someone who
    was waiting for contraband to be loaded with his legitimate cargo. The trial
    judge, however, had already made the same finding earlier in his reasons,
    relying on the amount of time the appellant took to reach the border and his
    rejection of the appellants explanation for the delay.
[2]

[94]

The
    trial judge concludes his reasons by stating:

Accordingly, considering all of
    these circumstances, I agree with the opinion of Sergeant Ruiters that the
    accused, Mr. Singh had knowledge of the cocaine when he brought his truck
    across the border.

[95]

Agree
    is different from rely. In finding the appellant knew the cocaine was in the
    trailer, the trial judge did not rely on the inadmissible portion of Sgt.
    Ruiters opinion.

[96]

I
    would thus not give effect to this ground of appeal.

(II)     Did the trial judge err by failing to hold a
voir
    dire
into the admissibility of the appellants statements to border agent
    Bos at the time of his arrest?

[97]

After
    the cocaine was discovered, one of the border agents, Bos, was instructed to
    arrest the truck driver. He was not sure who that was. The appellant then came
    to the counter in the customs office. Bos took him aside and had a brief
    conversation with him to find out if he was the right person. The appellant
    gave Bos some basic information about where he got his load, how long it took
    to load the truck and a few other details. Bos was then satisfied that the
    appellant was the truck driver.

[98]

Defence
    counsel objected to Bos evidence and asked for a
voir dire
. Bos was
    then examined and cross-examined to determine if a
voir dire
was
    necessary. The trial judge ruled:

I am going to allow the answers
    to the questions that preceded the arrest. In my view, they were simply
    questions made and answers received with respect to ensuring the identity of
    the individual that he was dealing with.

[99]

The
    appellant submits that the trial judge erred by failing to hold a
voir dire
into the voluntariness of his responses to Bos. In my view, even if the trial
    judge erred by failing to hold a
voir dire
, the error was harmless. The
    appellants evidence at trial was essentially consistent with the responses he
    gave Bos. More important, in his reasons, the trial judge did not rely on any
    of the appellants statements to Bos; he relied only on the appellants trial
    testimony.

[100]

Therefore I
    would not give effect to this ground of appeal.

(III)    Did the trial judge err by failing to hold a
voir
    dire
into the qualifications of the second interpreter?

[101]

The appellants
    native language is Punjabi. He required an interpreter throughout the trial.
    Two interpreters were used. The trial judge held a
voir dire
into the
    qualifications of the first interpreter and found him to be qualified. This
    interpreter translated the English proceedings into Punjabi through to the end
    of the first week of the trial. No one raised any concern about his
    translation.

[102]

The first
    interpreter was unavailable at the start of the second week of the trial. A
    second interpreter, Syed Ahmed, took over part way through the appellants
    examination-in-chief, and continued to interpret for the rest of the
    appellants examination-in-chief and for his cross-examination. The trial judge
    did not hold a
voir dire
into the second interpreters qualifications
    because defence counsel, Ms. Brandon, said

it was unnecessary.

THE COURT:        Is there any
    question about the qualifications of Mr. Ahmed?

MS. BRANDON:    Im familiar with
    this gentleman and I have no issues unless something has changed with respect
    to his status. Theres

THE COURT:        All right.

MS. BRANDON:    nothing that Im
    aware of.

THE COURT:        All right.

MR. ROBB:           I confirmed

THE COURT:        Yes?

MR. ROBB:           with Mr.
    Ahmed prior to court commencing this morning, Your Honour, when Mr. Ahmed
    arrived that he is now fully accredited by the Vancouver Community College
    through the Ontario Government program.

[103]

Soon after the
    appellants examination-in-chief resumed, defence counsel raised a concern
    about the second interpreter. She claimed he was having difficulty interpreting
    some of the appellants answers. In his factum, the appellant points to a
    passage where he was being questioned about the source of the money he used to
    buy a home in Brampton. He said that it was dowr or daw, which the
    interpreter initially interpreted incorrectly as alimony. A few questions
    later, however, the appellant clarified that he received the money from his
    in-laws.

[104]

Soon after the
    appellants cross-examination began, defence counsel renewed her concern about
    the second interpreter. She said the appellant told her that at times he was
    having difficulty understanding what the interpreter was saying. She noted the
    difficulty may have been attributable to differences in dialect: the appellant
    is from India and the interpreter is from Pakistan. In response to defence
    counsels concerns, the trial judge ruled that a
voir dire
into the
    second interpreters qualifications was unnecessary:

At the outset of this week, it
    was placed on record that Mr. Ahmed, the interpreter, was accredited in
    Ontario. Defence expressed its satisfaction with his qualifications. I have not
    detected any significant confusion on the part of Mr. Singh beyond what would
    normally be expected between an inexperienced witness and a veteran
    interpreter.

We are going to proceed on with
    the signal to Mr. Singh that if there is any interpretation which he does not
    understand, he should ask to have it repeated.

[105]

The appellant
    submits that the trial judge erred by failing to hold a
voir dire
into
    the qualifications of the second interpreter. He contends that the trial judge
    equated accreditation with competence, and that the two are not the same. He
    submits that the trial judges failure to hold a
voir dire
deprived him
    of a fair trial. In support of his submission, he seeks to introduce fresh
    evidence. The fresh evidence consists of an affidavit from a professional
    interpreter skilled in English-Punjabi translation who reviewed the transcript
    of the appellants examination.

[106]

The appellants
    submission has merit, but having reviewed the examination and cross-examination
    of the appellant together with the fresh evidence, I am not persuaded that the
    trial judge erred by failing to hold a
voir dire
.

[107]

Section 14 of
    the
Canadian Charter of Rights and Freedoms
guarantees the assistance of
    an interpreter for an accused who does not understand or speak the language in
    which the proceedings are conducted. In this case, the appellant was
    undoubtedly entitled to the assistance of an interpreter.

[108]

Yet it is not
    enough that an interpreter be provided; the interpreter must be competent
    enough to ensure both that justice is done and that it is seen to be done.
    Where there is legitimate reason to doubt the interpreters competence, the
    trial judge should conduct an inquiry into the interpreters qualifications.
    But where, as in this case, the challenge is to the quality of interpretation,
    the standard is adequacy, not perfection. Minor inconsistencies revealed on a
    microscopic examination of the record will not signify the quality of the
    interpretation is inadequate. See
R. v. Tran
, [1994] 2 S.C.R. 951, at
    pp. 987-88.

[109]

In this case, I
    agree with the appellants contention that simply because an interpreter is
    properly accredited  as was the second interpreter  does not automatically
    mean the interpreter is competent to interpret the proceedings in any given
    case: see
R. v. Rybak
, 2008 ONCA 354, 90 O.R. (3d) 81, leave to appeal
    to S.C.C. refused, [2008] S.C.C.A. No. 311, at para. 84. Nonetheless, the trial
    judge did not err in failing to hold a
voir dire
into the second
    interpreters qualifications because there was no legitimate reason to doubt
    the interpreters competence.

[110]

Indeed, the
    record shows that the second interpreters interpretation of the appellants
    evidence was at least adequate. The one area of confusion the appellant points
    to  about what he meant by dowr or daw  was quickly cleared up. No other
    misunderstandings are apparent on the record. The appellant seems to have
    adequately understood and have been understood as if he were conversant in
    English.

[111]

The fresh
    evidence affidavit confirms the second interpreters competence. The affidavit
    states that most of the interpretation was adequate. It points to eight
    misstatements  English statements the second interpreter made that did not
    accurately reflect what the appellant had said in Punjabi. Two of these
    misstatements relate to confusion over the words dowr and daw. The other
    six are at best very minor inconsistencies on peripheral matters.

[112]

Accordingly I
    would not give effect to this ground of appeal.

(IV)    Did the trial judge inappropriately rely on the
    appellants demeanour as a primary basis to reject his evidence?

[113]

Among his
    catalogue of reasons for finding the appellants evidence not credible and
    finding him guilty, the trial judge referred to the appellants demeanour four
    times:

When the accused
    was testifying about the completion of the load at Redford, and the attachment
    of the PARS sticker, I noted that he seemed to be rushing ahead of the question
    he was asked in an apparent anxiety to get his defence in.

I am going to
    comment on the accuseds demeanour in the stand making due allowance for
    cultural and language differences. I was concerned about his style of answering
    questions. He seemed to be having an intimate discussion with the interpreter.
    He was not facing counsel who was asking him the questions when giving his
    answers, and the whole impression was unfavourable. I say this while giving
    full allowance for a different cultural background and any possible language
    difficulties.

I am going to
    comment on the accuseds demeanour in the stand, again making full allowance
    for cultural and linguistic differences. The best characterization observed by
    me is that he was a furtive witness. He was not frank and open in the stand. To
    me he projected the appearance of a witness who was trying to hide the truth.

A circumstance
    that is telling here are the reactions of Mr. Singh on being referred to
    secondary at Canada Customs and his reaction upon being placed under arrest.
    Particularly at the time of his arrest, he has no real explanation for why he
    dropped to his knees. One inference that can be made is that he realized that
    in slang terms the jig was up. There are other interpretations of why he did
    that. It is one circumstance.

[114]

The appellant
    argues that the trial judges reliance on demeanour was inappropriate, yet was
    a primary basis to reject his evidence and infer guilty knowledge. In support
    of his argument, he makes three points. First, this court has repeatedly said
    demeanour evidence is of little, if any, probative value in assessing a
    witness credibility.

[115]

Second, although
    the trial judge cautioned himself about cultural and linguistic differences,
    he had no evidence to assist him in understanding these differences. Third, the
    trial judge should not have relied on the appellants emotional response to
    being arrested  falling to his knees  as it was unsafe for the trial judge to
    do so.

[116]

I do not accept
    the appellants argument. On his first point, though this court has often
    questioned the value of demeanour evidence, many recent Supreme Court of Canada
    decisions have continued to assert its relevance in assessing a witness
    credibility: see
R. v. N.S.
, 2012 SCC 72, [2012] 3 S.C.R. 726, at paras.
    25-26;
R. v. D.A.I
.
, 2012 SCC 5, [2012] 1 S.C.R. 149, at paras.
    18, 72; and
R. v. François
, [1994] 2 S.C.R. 827, at pp. 836-37.

[117]

On the
    appellants second point, the trial judges self-caution at least showed his
    sensitivity to the concern that specific cultural and linguistic
    characteristics might be mistaken for troubling demeanour. I am not convinced
    the trial judge required evidence before relying on the appellants demeanour.
    Certainly, that the appellant testified through an interpreter could not
    justifiably shield him from an assessment of his demeanour: see
R. v. Davis
(1995), 165 A.R. 243, at para. 19 (C.A.).

[118]

On the
    appellants third point, I agree that any conclusion drawn from an accuseds
    reaction to a stressful situation is of dubious value. See
R. v. Perlett
(2006), 82 O.R. (3d) 89, at paras. 84-85. The trial judge, however, recognized
    that other inferences for the appellants reaction were available, and that it
    was but one circumstance.

[119]

Still, the main
    reason I would not give effect to the appellants argument on demeanour rests
    on the lengthy and compelling list of considerations unrelated to his demeanour
    that the trial judge relied on to reject his evidence. I have summarized most
    of these considerations in my discussion of the first ground of appeal. In the
    light of this compelling list, I agree with the Crown that even if the trial
    judge erred in his reliance on the appellants demeanour, it is not plausible
    to conclude the trial judge would have made a different credibility finding had
    he not erred. The appellants demeanour was not at all the primary basis for
    rejecting his evidence. I would therefore not give effect to this ground of
    appeal.

[120]

Accordingly, I
    would dismiss the appellants appeal against his convictions.

C.

The
    sentence appeal

[121]

The trial judge
    sentenced the appellant to 12 years in prison, less four months credit for
    presentence custody, or an overall sentence of 11 years and eight months. In
    doing so, he did not commit any error in principle, or fail to consider the
    relevant sentencing goals or aggravating and mitigating circumstances. The
    appellant does not assert otherwise.

[122]

The trial judge
    recognized the two important sentencing goals of denunciation and general deterrence.
    He referred to
R. v. Smith
, [1987] 1 S.C.R. 1045, where, in an often
    cited passage on the evils of the importation of hard drugs, Lamer J.
    commented, at p. 1053:

Those who import and market hard
    drugs for lucre are responsible for the gradual but inexorable degeneration of
    many of their fellow human beings as a result of their becoming drug addicts.
    Such persons, with few exceptions , should, upon conviction, in my respectful
    view, be sentenced to and actually serve long periods of penal servitude.

[123]

Numerous
    judgments across Canada  both at trial and on appeal  have echoed Lamer J.s
    comments. In
R. v. Cunningham
(1996), 27 O.R. (3d) 786 (C.A.), for
    instance, this court repeated Lamer J.s remarks and added, at p. 791:

There can be no doubt that
    commercial traffickers rely heavily on couriers to facilitate their deadly
    trade. That being so, it falls to the courts to warn would-be couriers, in no
    uncertain terms, that they will pay a heavy price for choosing to import large
    quantities of hard drugs for quick personal gain.

[124]

The trial judge
    also referred to several mitigating considerations on which the appellant could
    rely. He concluded his reasons with the following apt observation:

I am faced with, on the one hand,
    the tragic consequences caused to Mr. Singhs wife and children by jailing
    their husband and father. On the other hand, I am faced with the horrific
    social chaos that is caused by the arrival of 53 kilograms of high quality
    cocaine into Canada.

[125]

He decided that
    a 12-year sentence was fit.

[126]

I cannot in any
    way fault the trial judges approach to the sentencing of the appellant. I
    disagree solely with the length of the sentence he imposed. Because of the
    appellants personal circumstances, in my view, justice would be done by
    imposing a nine-year sentence (less the agreed four months credit).

[127]

The appellants
    sympathetic personal circumstances support a relatively lenient sentence: he is
    a first offender; he was but 29 years old at the time of sentencing; since
    arriving in Canada in his teenage years, he has worked steadily to support his
    wife, small children and extended family; his sole involvement in this case was
    as a courier; he received a very positive presentence report; and he has been
    on bail for about four years without a hint of trouble.

[128]

In
Cunningham
,
    at p. 790, this court said that absent exceptional or extenuating
    circumstances, the range of sentence for first-offender couriers who smuggle
    large amounts of cocaine into Canada for personal gain should be six to eight
    years in the penitentiary. In
Cunningham
itself, the accused imported
    just more than five kilograms of cocaine into Canada. The appellant imported
    ten times that amount. Decisions in this province after
Cunningham
, both
    at trial and in this court, have imposed sentences higher than the
    six-to-eight-year range where larger amounts of cocaine have been imported.
    See, for example,
R. v. Couture
, 2009 ONCJ 655; and
R. v. Niemi
,
    2012 ONCA 133, affg [2008] O.J. No. 5830.

[129]

As is invariably
    the case, there is no one right sentence. As we have said many times, including
    in
Cunningham
, at p. 790, sentencing is not an exact science. Trial
    courts  and, I would argue, this court, too  must retain the necessary
    degree of flexibility to do justice in individual cases:
Cunningham
, at
    p. 790.

[130]

Here, though I
    recognize the gravity of the appellants crime, taking into account his
    personal circumstances, I would sentence him to eight years and eight months in
    prison  in other words, nine years less four months credit for presentence
    custody.

D.

Conclusion

[131]

I would dismiss
    the appellants conviction appeal. I would allow his sentence appeal and reduce
    his sentence to eight years, eight months in prison.

Released:

NOV 10 2014                                             John
    Laskin J.A.

JL

APPENDIX A

[1]
Although the trial judge refers to a load of 53 kg, the unchallenged expert
    report of Sgt. Kowalczyk refers to 49 kg.

[2]
See above at paragraph 23, bullet point three.


WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smith, 2014 ONCA 815

DATE: 20141117

DOCKET: C55895

Feldman, Simmons and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adrian Anthony Smith

Appellant

Brian Snell, for the appellant

Jason A. Gorda, for the respondent

Heard: November 14, 2014

On appeal from the sentence imposed on June 29, 2012 by
    Justice Gisele M. Miller of the Superior Court of Justice, sitting without a
    jury.

APPEAL BOOK ENDORSEMENT

[1]

We grant leave to appeal sentence only on the issue of credit for
    pretrial custody.  The trial judge gave enhanced credit of 1 month for the 44
    lock-down days during the 20 months of pretrial custody.

[2]

Since the Supreme Court of Canada decision in
Summers
, it is
    clear that the loss of eligibility for early release or parole is a factor that
    applies generally subject to certain described exceptions, to allow a trial
    judge to give credit of 1.5 to 1 for pretrial custody.  As that factor was not
    considered by the trial judge in this trial which took place before the Court
    of Appeal decision in
Summers
, we would allow the appeal and apply the
    1.5 to 1 credit for the 20 months of pretrial custody.

[3]

Leave to appeal sentence is granted, the appeal is allowed to
    reduce the sentence to that extent.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sosnowski, 2014 ONCA 837

DATE: 20141126

DOCKET: C54629

Feldman, Simmons and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Les Sosnowski

Appellant

Ian R. Smith and Amy J. Ohler, for the appellant

Matthew Asma, for the respondent

Heard: November 13, 2014

On appeal from the convictions entered on August 15, 2011
    and the sentence imposed on October 26, 2011 by Justice Charles D. Anderson of
    the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of six counts of fraud and theft. He was a
    fuel delivery truck driver. The allegations were that he was delivering fuel to
    a third party while purporting to deliver to customers of his employer.

[2]

The evidence consisted of a number of GPS and Geocoder records regarding
    the location of the appellants delivery truck at certain times, plus other
    machine-generated delivery slips/invoices, as well as charts prepared from
    those records, which purported to show that the appellants truck was
    delivering fuel to the third party at times when customers of the employer were
    being invoiced.

[3]

These records were introduced by two witnesses who were employees of the
    fuel company but who had no expertise regarding the records or the systems that
    generated them, and no knowledge of the specific impugned events. There was no
    evidence from the allegedly defrauded customers or from the alleged third party,
    nor any observations of the appellant at the relevant times.

[4]

The appellant appeals on the basis of errors of law, unreasonable
    verdict and ineffective assistance of counsel, as well as lost evidence on the
    appeal. In our view, it is unnecessary to deal with the latter two grounds. We
    would allow the appeal based on errors of law and unreasonable verdict.

[5]

There are a number of errors of law that undermine the safety of the
    verdict. One was that the trial judge failed to explain why potentially
    exculpatory evidence did not raise a reasonable doubt. This evidence included
    signed delivery acknowledgements from the customers for deliveries at the
    relevant times. At page 18 of the reasons, the trial judge stated:

Finally, the accused argues that neither Howard Bus, nor
    Tackaberry noticed or became aware of the fraud.  In the case of Tackaberry,
    the delivery slips acknowledging the receipt of fuel were, in fact, signed.
    Again, in my view, this is of little assistance. There is no evidence that the
    person signing the receipt, in fact, witnessed the delivery. The signature is
    equally consistent with an office employee trusting that a delivery has, in
    fact, been made.

[6]

We observe that if the signatures were equally consistent with guilt
    and innocence, the trial judge had to explain why they did not raise a reasonable
    doubt.

[7]

Second, when the Crown at trial conceded that exhibit 7 did not, as had
    been originally suggested, support a particular fraudulent delivery, the trial
    judge accepted the concession but found that he would have found the matter
    proved as a continuing event, based on all the evidence, without explaining why
    the evidence in exhibit 7 did not taint the reliability of all the rest of the
    similar evidence.

[8]

The trial judge also did not advert to many other inconsistencies and
    discrepancies in the documents tendered, which raised questions about the
    reliability of the evidence and which he did not address.

[9]

Key among those was the failure of the Crown to prove that the GPS and
    the machinegenerated delivery slip system were time synchronized. This was a
    critical factor on which the Crowns case for conviction was based. While the
    trial judge acknowledged that the devices were not checked daily (in fact the
    evidence was that they were not checked at all during the relevant period), he
    concluded that the records themselves, without more, provided confirmation
    that they were sufficiently in sync, the one with the other to establish their
    accuracy. He based that conclusion on the finding, based on statements by the
    witnesses, that on all but the impugned deliveries, the times corresponded.

[10]

However,
    the witnesses did not testify that they personally checked the records of all
    the other deliveries. Moreover, the Crown did not tender all the other records,
    which in fact had been lost by the employer before trial.

[11]

Absent
    direct evidence which could be tested by the appellant of the accuracy and
    reliability of the records relied on by the Crown to prove the case, the
    convictions cannot be sustained. The verdicts must be set aside and acquittals
    entered.

K. Feldman J.A.

J. Simmons J.A.

S.E. Pepall J.A.