A man who was convicted by a jury of smuggling illegal drugs into Canada at the Pacific Border Crossing will have a new trial after the Court of Appeal for British Columbia in Vancouver set aside his convictions.
Rajkumar Subramaniam was convicted on Oct. 19, 2019 in B.C. Supreme Court in New Westminster of unlawfully importing a controlled substance and possession for the purpose of trafficking following an eight-day jury trial. He was sentenced to eight years in prison.
The court heard he was trying to cross into Canada in a Mitsubishi Montero on July 1, 2014, was sent for a secondary inspection where Canada Border Services Agency officers spotted carpeting in the rear cargo area that seemed newer than other carpeting in the vehicle, and lifted the floor to find several packages wrapped in tape.
They arrested Subramaniam after seizing 33 packages containing 14.98 kilograms of methamphetamine valued at $375,000 wholesale or about $1.5 million on the street.
Justice Patrice Abrioux noted in his April 19 reasons for judgment that the “key issue” at trial was whether Subramaniam knew about the secret compartment and whether it contained the drugs. He testified he did not and his defence lawyer argued that he had “unwittingly trafficked” the meth across the border after someone else put it there.
Subramaniam appealed his convictions on grounds the trial judge erred by “leaving wilful blindness with the jury,” requiring it to “convert all probable evidence into findings of fact,” and also erred in his instructions concerning the “control element of possession of a controlled substance.”
Abrioux rejected the first and third claim, but found the appeal turned on the trial judge’s instructions to the jury about fact-finding.
“The thrust of the appellant’s submission on this ground is that the judge erred in his instructions on the fact-finding process by telling the jury that it ‘must’ convert the evidence they found to be ‘probably true’ into proof of that fact,” Abrioux noted. “Mr. Subramaniam says that this instruction usurped the fact-finding independence of the jury, and created a real risk that the jury would convict the appellant on a standard of probability.”
Abrioux found that the trial judge’s charge to the jury “as a whole was confusing and it cannot be concluded that the jury was not left with the possibility of convicting the appellant based on a finding of probable guilt.”
Justices Harvey Groberman and Gregory Fitch concurred.