R. v. Mejia
Between
Her Majesty the Queen, and
Natividad Jesus Mejia
Natividad Jesus Mejia
[2012] O.J. No. 4234
2012 ONCJ 571
St. Catharines Court File No. 2111-998-11-N1040-00
Ontario Court of Justice
J.S. Nadel J.
Heard: February 7, April 17 and June 26, 2012.
Judgment: September 11, 2012.
St. Catharines Court File No. 2111-998-11-N1040-00
Ontario Court of Justice
J.S. Nadel J.
Heard: February 7, April 17 and June 26, 2012.
Judgment: September 11, 2012.
(56 paras.)
REASONS FOR JUDGMENT
J.S. NADEL J.:--
Introduction
1 Mr.
Mejia is the pastor of a Spanish Pentecostal Church in London, Ontario. On
March 11, 2011 at about 11:00 p.m., Mr. Mejia drove into Canada across the
Rainbow Bridge leading to Niagara Falls, Ontario. He appeared to be alone.
Mejia told Shelly Kurgan, a Canada Border Services Officer, that he was
returning to Canada after dropping off his wife at the Buffalo airport. He declared
that he had purchased some pillows and coffee whitener. An inspection blitz was
being conducted that night and an immediate secondary inspection took place at
her border control booth. The secondary inspector, Darrell Blu, opened Mejia's
rear driver's side door and discovered Adan Samuel Rubio hiding in the footwell
behind Mejia's seat. Rubio was wedged into the space with his hands on his
head, covered by a jacket and two pillows.
2 The
discovery of Rubio resulted in Mejia being charged with two offences: [i]
withholding the material fact that Rubio was concealed in his vehicle while
Mejia attempted to enter Canada, contrary to s. 127(a) of the Immigration and Refugee Protection Act,
(punishable under s. 128); and, [ii] attempting to aid and abet Rubio to
contravene s. 124(1)(a), which requires an appearance for examination upon
entry into Canada, (punishable under s. 131).
3 Mr.
Mejia does not deny that he lied; but, he submits that he acted under duress
being exercised against him by Rubio so that he should be found not guilty.
Further, Mr. Mejia submits that any offence committed by him under duress was
completed at the booth at the border and anything else he may have said or
neglected to say cannot ground any finding of guilt on these charges. The Crown
submits that there is no air of reality to the defence of duress but that it is
not made out on the facts, in any event.
The Investigative Evidence
4 At
11:02 p.m., Shelly Kurgan, a primary booth inspector, watched Mejia pull up to
her booth in a small four-door Toyota that did not have tinted windows. She saw
"a bunch" of pillows piled up in the back seat but no one other than
the driver was visible. Kurgan asked Mejia for his identification and he
presented her with his "Nexus" card. Then, in answer to her questions
he told Kurgan that:
he lived in London,
Ontario;
he had been away from
Canada for a few hours;
he had dropped his wife
off at the airport;
he presented a receipt
for $31.00 worth of merchandise from Sam's Club;
he was not carrying
more than $10,000.00 in currency or monetary instruments;
he had no commercial
goods in the vehicle;
he had not received any
gifts;
he had no firearms or
weapons in the vehicle; and,
he had no alcohol or
tobacco products and had not stopped at the duty free store.
Kurgan determined that she was going to refer
Mejia for a secondary examination.
5 A
secondary examination officer, Darrell Blu, was standing outside Kurgan's booth
on the driver's side of Mejia's car as he waited for Kurgan to complete her
primary examination questions. He noted a male driver in the vehicle and some
pillows and some jars of "Coffee Mate" on the rear seat. At Kurgan's
signal Blu commenced a secondary examination by opening up the driver's side
rear door.
6 Blu
saw two pillows abutting the back of the driver's seat and seemingly suspended
on something. He moved them away and saw a jacket beneath them. He moved the
jacket and saw a pair of hands on top of a head of hair. He immediately closed
the door, advised Kurgan there was a person in the back and told the driver to
turn off his vehicle and hand over the keys. Mejia complied.
7 Blu
then re-opened the rear door and instructed the person to get out of the car.
The person, (Rubio,) was wedged in and unable to push off against any part of
the car. Since Blu wanted to be able to keep Rubio's hands in view he assisted
Rubio in getting out of the vehicle.
8 Blu
estimated Rubio to be about 5'8" to 5'10" tall. He described the
vehicle as being a "smallish" car, something between a compact and a
midsize vehicle. Counsel agree that the dimensions of each of the two pillows
were approximately 30" x 18" x 4".
9 Once
Rubio was discovered the two men were detained, lodged in adjacent cells and
questioned. Brian Eden, a criminal investigator with Canada Border Services,
interrogated Mejia as follows:
Are you aware you are
still under caution?
Yes.
Who was the person in
your car?
A young boy I met at
church.
Church, where?
Texas.
Why is he with
you?
He told me his story
and asked how to come to Canada. I told him he could come as a refugee but he
said he wasn't allowed.
Why is he not allowed,
is it because of the safe third country agreement?
No.
It is because he
doesn't have an anchor relative?
Yeah he has no
relatives so he can't be a refugee.
Did he pay you to
smuggle him over the border?
No I wouldn't have
taken any money for that.
Adan Samuel Rubio's Evidence
10 Adan
Rubio is a citizen of Honduras. He had lived in Texas for five years without
having any permanent legal status. When he was ordered to appear at an
immigration hearing he feared that he would be deported to Honduras so he
failed to appear at the hearing and decided to try to get to Canada. He
believed that if he was deported he would be forced to join a violent drug gang
called Mara Salvatrucha that
operates in many countries including Honduras. He believed that, if he refused
to join, the gang would kill him as he had been beaten by gang members on
several occasions before escaping to the United States.
11 In
June of 2010 Rubio attended a church in Houston, Texas where he heard Mejia
preach a sermon as a guest pastor. Rubio obtained Mejia's contact information
from the pastor of the Texas church and he spoke with Mejia by telephone two or
three times prior to March 11, 2011. Rubio said that he called Mejia in
December of 2011 and explained how he knew of him and how he had been able to
contact him. He told Mejia that he had been touched by Mejia's sermon and
sought spiritual guidance from him. Mejia urged him to reach out to a local
pastor in Texas. Rubio called Mejia again in January of 2011 and told him,
among other things, that he wanted to join his church in London, Ontario. Once
again Mejia urged Rubio to find a congregation in Houston.
12 Rubio
persisted in seeking to join Mejia's congregation and in seeking his guidance.
He told Mejia that he would be flying into the Buffalo airport and that he
would contact Mejia on his arrival there on March 11, 2011. He told Mejia that
he would be flying into Buffalo because it was less expensive than flying
directly to Canada. He arranged for Mejia to pick him up at the airport but he
called Mejia prior to their rendezvous and directed Mejia to meet him near the
airport at a gas and coffee bar.
13 Rubio
said that he had a friend drive him to New York State from Texas in March of
2011. Once in the State of New York, he telephoned Mejia and asked him to drive
to Buffalo and pick him up at a gas station. He also told Mejia that he wanted
his help with his spiritual life and to avoid drugs.
14 Rubio
said that he never discussed his desire to make a refugee claim in Canada with
Mejia. He also said that he never told Mejia that he did not have appropriate
documentation to enter Canada. According to Rubio, when he entered Mejia's car,
he understood that he would be entering Canada and as a result he felt
desperate and frightened since he had no documents to allow his entry. Rubio
said that he had led Mejia to believe he "had [his] papers" and would
therefore be eligible to be admitted to Canada.
15 As
they approached the border control booths Mejia asked Rubio for his
documentation and Rubio said that he did not have any. Mejia told Rubio that he
could not do anything for him. At that point Rubio moved into the back seat and
became agitated, loud and threatening. He threatened Mejia telling him that
"if they caught [him] and deported [him] then [Mejia's] family down there
in El Salvador were going to pay for him." He expanded on that saying
"if [Rubio] was going to tell the people in the booths that [he] was there
and if [he] was deported, then [Rubio's] family was going to pay in the United
States and El Salvador, no in El Salvador."
16 In
a cross-examination that amounted to a series of slow-pitch
lobbed suggestions Rubio said that he also threatened
Mejia but no specific threat was adduced. Rubio testified that while he was in
the back seat he took off his jacket and hid under the jacket and the pillows
without Mejia's consent or help. While he was hiding under the pillows Mejia
told him "to get off (sic) and just sit."
17 Rubio
admitted that he knew nothing about Mejia's family or even if he had a family
but then said he knew Mejia had family in Canada and in El Salvador. The
evidence does not disclose when Rubio obtained that knowledge but subsequent to
his apprehension, and despite the threats he said he made to Mejia, Rubio
became a member of Mejia's congregation. He testified that his evidence was
truthful and that he was repentful (sic) of what he had put the pastor through.
Natividad Jesus Mejia's Evidence
18 Mr.
Mejia was born in El Salvador. He came to Canada in June of 1997 and is a Canadian
citizen. His main occupation is pastoring to the Spanish Pentecostal Church in
London, Ontario. Mejia has been a pastor for 22 years. In addition to
ministering to his congregation he also works five hours a day at a foundry.
19 Mejia
annually attends a three-day seminary in Texas that is usually held in Houston.
In June of 2010 he was invited to preach at a Houston church where Rubio
apparently heard his sermon, which he delivered in Spanish, the language
usually used in his church in London, Ontario.
20 In
December of 2010 Mejia received a telephone call from Rubio placed to Mejia's
church office in London. Rubio told him that his June sermon had moved him and
he was interested in knowing more about Mejia's ministry. Mejia told him that
he should attend the churches around Houston.
21 Rubio
told Mejia that he needed help and that he was desperate. Mejia felt Rubio was
confused and he sensed that Rubio was in trouble and was searching for
something. Mejia did not know the cause of Rubio's troubles but he knew Rubio
was alone and needed help.
22 Rubio
communicated with Mejia again in late January of 2011. Rubio told Mejia that he
had been thinking about their prior talk and that he wanted to be engaged in
and enjoy the fellowship of young people from Mejia's church. Mejia continued
to urge Rubio to attend a congregation in Texas but Rubio resisted that advice.
He told Mejia that he wanted to come to Canada. Despite Rubio's insistence
Mejia said that he did not really think much about Rubio.
23 Rubio
did not contact Mejia again until a few days prior to March 11, 2011, when he
called and told Mejia that he wanted to come to London via Buffalo and he
needed to leave as soon as possible. Mejia's evidence was that Rubio did not
tell him how he would be travelling to Buffalo but Rubio asked Mejia to pick
him up on March 11, 2011.
24 Mejia
said that he was motivated to help Rubio because he habitually sought to help
young people. He apparently felt some sympathy for Rubio because Rubio had told
him he had once been beaten by a group of men in Texas and he was in danger of
falling into a life of drugs.
25 Mejia
testified that he had arranged to pick up Rubio at the Buffalo airport at 9:00
p.m. on March 11, 2011.1 Mejia crossed into New York via the
Queenston Bridge at about 6:30 or 7:00 p.m. and drove toward the Buffalo
airport but stopped first to do some shopping at a discounter where he bought
two pillows and some coffee whitener for $31.00. He also got gas and had
something to eat. As he continued on to the airport Rubio called him to say he
was at a gas and coffee bar near the airport, which is where Mejia picked him
up. This was the first time Mejia had knowingly laid eyes on Rubio. Rubio had a
bag which Mejia put in the trunk. Then Rubio got into the front passenger seat
and asked to see Niagara Falls, So, Mejia drove to the falls and stopped for a
short time before proceeding to the bridge to Canada.
26 As
they entered the bridge he asked Rubio to get his "papers" ready.
That is when Rubio told him that he did not have any. Mejia asked how he was
going to cross. At that Rubio got into the back seat saying "you're going
to get me there" and he became a different person.2
27 Mejia
said that Rubio threatened his family. In addition Mejia's flight from war-torn
El Salvador came to mind. With Rubio behind him telling him not to turn around
and telling him that nothing was going to happen and to keep driving, Mejia
became quite distressed. He did not know what Rubio was doing and they were approaching
the inspection booths, so that by the time he pulled up to await his turn at
the inspection booth he was terrified.
28 Mejia
testified that he was frightened for his own safety because he did not know
whether Rubio was armed and did not know what he was capable of doing but he
was aware that atrocities had been committed by very young men in El Salvador.
29 Mejia
was interrogated by Kurgan, as she said, and Rubio was discovered by Blu, as he
said. When asked by his counsel why, once Rubio was discovered, he did not tell
the Border Services Officers everything he had said in his direct examination,
Mejia said he remained frightened because his aged parents and other relatives
were still in El Salvador.
The Defence Submissions
30 Mr.
Etienne submits that:
Mr. Mejia was credible
and ought to be believed;
he was not part of any
plan to smuggle Rubio into Canada;
Rubio led him to
believe that he had the status and the documentation necessary to enter
Canada;
Mejia's first knowledge
that Rubio was undocumented and inadmissible occurred on the bridge into
Canada;
that is when Rubio
threatened his family and him;
at that point there was
no place to stop or turn around so Mejia was obliged to continue onward;
any culpability for
deception or omission terminated when Rubio was discovered;
Mejia acted under
duress so that his actions are excused and do not attract criminal
censure;
Mejia's subjective fear
was objectively reasonable;
given Rubio's presence
behind him and given Rubio's orders to not turn around and keep going, Mejia
had no choice but to comply;
put otherwise, he had
no safe avenue of escape despite the presence of Kurgan and Blu;
the detention of Rubio
in a cell next to Mejia's promoted a continuing and reasonably apprehended fear
of him by Mejia;
Mejia's evidence is
corroborated by Rubio's evidence;
Rubio's personal
circumstances are consistent with his independent actions;
the circumstances of
two small pillows and a small car lend support to the event being
unplanned;
Mejia's purchases were
an innocent coincidence and not part of a plan;
declaring purchases
could have prompted a referral to secondary, which is inconsistent with a plan
to smuggle;
the defendant relies on
paragraph [86] of R. v. Ruzic,
[2001] 1 S.C.R. 687, and paragraph [28] of R. v. Li, CanLII 18077 (ON CA) that threats of future harm could be
sufficient to invoke the defence of duress;
Mejia is not part of a
criminal conspiracy or gang where the prospect of being coerced by gang or
conspiracy members is reasonably foreseeable;
when the
objective-subjective test for a safe avenue of escape is considered, it must be
remembered that Mejia is a pastor and not a police officer.
The Crown Submissions
31 Mr.
Anger submitted that:
there is no air of
reality to the claim of duress;
the defence being
proffered is a fabrication created after the events to account for the failed
smuggling attempt;
this is made apparent by
looking at all of the events narrated by the witnesses as well as what Mejia
did and said;
the court should find
that Mejia knew of Rubio's status before they drove onto the bridge, which
completely undermines the defence;
Rubio was wedged in so
tightly that he needed to be assisted to get out;
Rubio was covered first
by a jacket and then by two pillows that had to be placed against the back of
the driver's seat - Rubio could not have gotten into that position without
Mejia's assistance;
Mejia's use of a
"Nexus" card for identification should be seen as a piece of
circumstantial evidence supporting his involvement in this attempted
smuggling;
Mejia's statement to
Eden only makes sense as an acknowledgment that he knew of Rubio's illegal
status before Rubio got into his car, which explains why Rubio was hiding
behind Mejia's seat;
Mejia's statement to
Eden contradicts the evidence he gave at trial and seriously discredits his
story;
Alternatively, if the
court finds a threat was made, that threat was so contingent as not to ground
the defence of duress, especially given that Rubio had no knowledge of Mejia's
family.
Duress
32 Duress
is a particular application of the doctrine of necessity,3 where the necessitous circumstance is caused by wrongful threats.4 The defence operates to excuse criminal conduct despite both the actus reus and the mens
rea having been proved.56 An accused charged
as a principal is entitled to
claim the statutorily defined defence of duress as authorized by s. 17 of the Code. An accused liable as a party to a crime may claim the common
law defence of duress that is preserved by s. 8(3) of the Code.7
33 Mr.
Mejia is charged as a principal on the first count and as a party on the second
count. As a result, the application of both s. 17 and the common law principles
of duress need to be described and applied.
34 In
R. v. Hibbert, [1995] 2 S.C.R.
973 the Supreme Court of Canada dealt with the common law defence of duress.
The issue in the judgment was whether the mens rea requirement for party liability contained in s. 21(1)(b) and s.
21(2) was of the sort that could be "negated" by coercion.
35 Dealing
first with the mens rea
stipulated for s. 21(1)(b) [doing or omitting to do anything for the purpose of aiding any person to
commit an offence] the Court held that, as used in this section, purpose
denotes "intention" as opposed to "desire".8 By defining for the purpose as intention, the
decision holds that "it does not make any difference to the existence of
intent whether the accused wants those consequences to follow or merely knows
that they will follow, without necessarily desiring them to do so." (Hibbert at [29])
36 Hibbert therefore holds that the expression
'for the purpose of aiding' in s. 21(1)(b), does not require that an accused
actively view the commission of an offence that he is aiding as desirable in
and of itself. Accordingly, the mens rea for aiding under s. 21(1)(b) is not susceptible of being
"negated" by duress." (Hibbert at [39])
37 Applying
similar reasoning, Hibbert
holds that the words "an intention in common" in s. 21(2) of the Code9 do not denote or equate with the concept of "desire" so
that being subjected to duress does not negate mens rea, although if the defence applies the crime committed will be
excused.
38 The
extensive analysis and discussion of these issues is summarized at paragraph
[45] in Hibbert in the
following fashion:
The fact that a person
who commits a criminal act does so as a result of threats of death or bodily
harm can in some instances be relevant to the question of whether he or she
possessed the mens rea necessary to commit an offence. Whether or not this is
so will depend, among other things, on the structure of the particular offence
in question -- that is, on whether or not the mental state specified by
Parliament in its definition of the offence is such that the presence of
coercion can, as a matter of logic, have a bearing on the existence of mens
rea. If the offence is one where the presence of duress is of potential
relevance to the existence of mens rea, the accused is entitled to point to the
presence of threats when arguing that the Crown has not proven beyond a
reasonable doubt that he or she possessed the mental state required for
liability.
A person who commits a
criminal act under threats of death or bodily harm may also be able to invoke
an excuse-based defence (either the statutory defence set out in s. 17 or the
common law defence of duress, depending on whether the accused is charged as a
principal or as a party). This is so regardless of whether or not the offence
at issue is one where the presence of coercion also has a bearing on the
existence of mens rea.
The mental states
specified in ss. 21(1)(b) and 21(2) of the Criminal Code are not susceptible to
being "negated" by duress. Consequently, it is not open to persons
charged under these sections to argue that because their acts were coerced by
threats they lacked the requisite mens rea. Such persons may, however, seek to
have their conduct excused through the operation of the common law defence of
duress.
· ...the holding in the present case is based on an interpretation of
the particular terms of ... ss. 21(1)(b) and 21(2) of the Criminal Code. The
question of whether other offences can be found, either in the Code or in some
other statute, that are defined in such a way that the presence of coercion is
relevant to the existence of mens rea remains open."
39 The
other major holdings of Hibbert
deal first with what effect the availability of a safe avenue of escape has on
the claim of duress and second whether the test for the existence of a safe
avenue of escape is an objective test, i.e. what the circumstances actually
are, or whether the test is subjective, i.e. what the accused perceived and
believed about the situation.
40 While
the discussion of these issues in Hibbert was learned it is the Court's conclusions that need to be applied
here. Those conclusions were summarized at paragraph [62] in these terms:
· An accused person cannot rely on the common law defence of duress if
he or she had an opportunity to safely extricate himself or herself from the
situation of duress. The rationale for this rule is simply that in such
circumstances the condition of "normative involuntariness" that
provides the theoretical basis for both the defences of duress and necessity is
absent -- if the accused had the chance to take action that would have allowed
him or her to avoid committing an offence, it cannot be said that he or she had
no real choice when deciding whether or not to break the law. Furthermore, I
believe that the internal logic of the excuse-based defence, which has
theoretical underpinnings directly analogous to those that support the defence
of necessity (as set out in Perka, supra), suggests that the question of
whether or not a safe avenue of escape existed is to be determined according to
an objective standard. When considering the perceptions of a "reasonable
person", however, the personal circumstances of the accused are relevant
and important, and should be taken into account.
41 The
other major judgment on the law of duress is R. v.
Ruzic, [2001] 1 S.C.R. 687. It holds, inter alia, that s. 17 of the Code, which controls the defence of duress
for principals, infringes s. 7 of the Charter. It does so because it limits the defence to situations where there
is a threat of immediate death or bodily harm from a person who is present when
the offence is committed. These strictures permit morally involuntary conduct
to be culpable. The Court therefore ruled that those limitations on the
availability of the statutory defence are of no force and do not apply to that
defence.
42 In
addition, the Court confirmed that s. 17 does not preclude access to the
defence of duress when the threat in question is directed to a third party.
43 Further,
after an extensive review of jurisprudence from common law jurisdictions, the
court confirmed that a constituent element of the defence of duress, in either
of its guises, requires an appropriate interpretation of the
"immediacy" component of the defence. "[T]he immediacy test is
interpreted as a requirement of a close connection in time, between the threat
and its execution in such a manner that the accused loses the ability to act
freely. A threat that would not meet those conditions, because, for example, it
is too far removed in time, would cast doubt on the seriousness of the threat
and, more particularly, on claims of an absence of a safe avenue of
escape." (Ruzic at [65])10
44 Ruzic confirms the continuing application of
the traditional burden of proof when duress is in play. "The accused must
certainly raise the defence and introduce some evidence about it. Once this is
done, the burden of proof shifts to the Crown under the general rule of
criminal evidence. It must be shown, beyond a reasonable doubt, that the
accused did not act under duress." (Ruzic at [100])
45 Finally,
Ruzic acknowledges that the
defence of duress is likely to be susceptible to "practical risks and
problems relating to evidence" given that "proof of the defence may
rest on little more than [an] accused's own evidence. Verification of a
spurious claim of duress may prove difficult." As a result, the Supreme
Court of Canada urges court to "be alive to the need to apply reasonable,
but strict standards for the application of the defence" which is
essentially dependant on the fact finder's evaluation of the evidence and the
application of the appropriate legal principles. (Ruzic at [59])
Reasons for Judgment
46 The
Crown's submission that there is no air of reality to the defence of duress
must be rejected. "In applying the air of reality test, a trial judge
considers the totality of the evidence, and assumes the evidence relied upon by
the accused to be true. ... The question for the trial judge is whether the
evidence discloses a real issue to be decided by the jury, and not how the jury
should ultimately decide the issue." (R. v. Cinous (2002), 162 C.C.C. (3d) 129 (S.C.C.) at [52/53/54]) The test is
"whether there is (1) evidence (2) upon which a properly instructed jury
acting reasonably could acquit if it believed the evidence to be true" (Cinous, at [65]).
47 Notwithstanding
that I reject that submission
of the Crown, I find Mr. Mejia guilty. The defence of duress fails because the
alleged threat of harm to Mr. Mejia's parents is a threat of harm so remote as
not to amount to a threat of immediate harm. Whether as a principal or as a
party, a threat that is alleged to make an accused's actions morally
involuntary must be sufficiently proximate, in a temporal sense, so as to
preclude an accused from having any safe avenue of escape.
48 On
the facts as alleged by Mejia and Rubio, Rubio's threat to harm Mejia's parents
is contingent on future events and contingent on knowledge of Mejia's parents
that Rubio concedes he did not have. In my view, the alleged threat of harm to
Mejia's parents lacks the close temporal connection required to meet even the
most expansive connotation of "immediacy".11
49 I
appreciate that the defence also alleges an immediate threat of physical harm
to Mejia from Rubio but I reject that evidence for a number of reasons. The
alleged physical threat to Mejia was amorphous and undefined. Rubio did not
testify to making any physical threat to Mejia in his direct examination.
Similarly, Mr. Mejia never testified that Rubio threatened him with any
physical harm. While the defendant did testify that he was frightened, his
fears were not the product of any express threat of physical harm made to him
by Rubio. Rather, Mr. Mejia testified that Rubio was behind him and told him not
to turn around and that nothing was going to happen and to keep driving. The
defendant's professed fears did not result from any threat made against his
physical safety. Rather, they were the product of Mejia's lack of knowledge of
Rubio. Mejia said that he was worried about whether Rubio was armed and
further, that he did not know what Rubio was capable of doing. That is to say
his fears for his immediate safety and physical security were not the product
of any threat made to him by Rubio.
50 While
those are the reasons for my findings of guilt I also note that the story that
Mr. Mejia and Mr. Rubio told is improbable and incredible for the following
reasons.
51 Mr.
Mejia concedes that he knew Rubio was a troubled young man who had once been
beaten by a group of men in Texas and who was in danger of falling into a life
of drugs. He was prepared to allow Rubio to join his congregation and enjoy the
fellowship of the younger members of his church. He knew that Rubio had
rejected his advice to seek pastoral services from the many local churches
available to him in Houston, Texas. Given this background, I find it incredible
that Mr. Mejia would not have asked Rubio more about himself , his personal
circumstances and his plans before agreeing to assist him to come to Canada;
questions such as How long are you planning to spend in Canada? Where will you
live and with whom? How will you support yourself? Are you eligible to come to
Canada? Will you be able to work in Canada? What is your citizenship? What is your
legal status in the U.S.A.? How long have you been in the U.S.A.? When and how
did you get there? I find it hard to believe that Mr. Mejia knew as little
about Mr. Rubio as he testified to.
52 My
incredulity increases exponentially when I consider the evidence that each man
gave respecting their rendezvous in Buffalo. Rubio testified that he told Mejia
that he would be flying into the Buffalo airport and he arranged for Mejia to
pick him up at the airport. However, he says that he called Mejia prior to
their rendezvous and directed Mejia to meet him near the airport at a gas and
coffee bar. In my view, that evidence is unbelievable. If that evidence had any
substance to it, Rubio would have had an airline carrier, a flight number and
an arrival time. These are matters that the defendant would have asked about
and likely checked to ensure the flight was not delayed and still scheduled to
arrive as planned. Had there really been a planned pickup at the airport and
had such a change in plans been communicated by Rubio to Mejia surely the first
thing Mejia would have asked is why Rubio left the airport? Had Rubio really
changed the rendezvous from an airport pickup to some spot outside the airport
Mejia would have had overwhelming cause to be wary of Rubio and to have made
inquiries about this ostensible change in plans. Mejia's own evidence about the
planned pickup, quoted at footnote 1 above, is equally fraught with weakness. I
simply do not believe their evidence about a planned airport pickup.
53 According
to Rubio, when he entered Mejia's car, he understood that he would be entering
Canada and as a result he felt desperate and frightened since he had no
documents to allow his entry. Yet he requested that Mejia take him to see
Niagara Falls for a sight-seeing foray. That request seems quite incongruous
given Rubio's professed feelings of desperation and fear.
54 Another
segment of the evidence that causes me to disbelieve the story told by the
defendant and Rubio is their testimony that Rubio secreted himself in the rear
of the car without Mejia's knowledge, consent or assistance. I find that highly
improbable given Officer Blu's description of what he observed. Blu said that
he saw the two pillows apparently being supported on something; that he removed
the pillows and found a jacket beneath them; that he moved the jacket and saw a
pair of hands on top of a head of hair. Ultimately, Blu instructed the person
to get out of the car but that person (Rubio) was wedged in so tightly that he
was unable to extricate himself without Blu's assistance.
55 I
appreciate that no photos or measurements of Rubio in
situ were taken. Still, it strikes me as highly
improbable that Rubio could have been able to wedge himself into the small
space and still be able to manipulate first his jacket over his head and then
place the pillows on top of the jacket without Mejia's assistance.
56 In
the result, for the reasons stated above at paragraphs [47] to [49], inclusive,
I find the defendant guilty of both charges.
J.S. NADEL J.
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