ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
TEJINDER KAHLON
Before Justice of the Peace S. Butany-Goyal
Heard on September 27 and 29, 2021
Oral Reasons for Judgment given on September 29, 2021
Written Reasons released on October 5, 2021
Trevor Pellerin counsel for the Crown
Ravin Pillay counsel for the defendant Tejinder Kahlon
Butany-Goyal, Justice of the Peace:
1Tejinder Kahlon comes before this Court facing a number of charges under both the Criminal Code of Canada and the Controlled Drugs and Substances Act. This bail hearing was held over 2 days, on September 27 and 29, 2021, with the assistance of a Punjabi interpreter.
2Mr. Kahlon comes before this Court with no criminal record and no outstanding charges. The nature of the charges renders this bail hearing a reverse onus, so Mr. Kahlon bears the burden on demonstrating to the Court why his release from custody is justified.
3In this matter, the Crown seeks Mr. Kahlon’s detention on the primary, secondary and tertiary grounds. Counsel for Mr. Kahlon asks the Court to consider a plan of release with surety supervision.
4Mr. Kahlon is presumed to be innocent of these charges and has a constitutional right not to be denied bail unless the circumstances justify it.
The Allegations
5The charges Mr. Kahlon faces relate to the importation of drugs across a land border between Canada and the United States, particularly the Ambassador Bridge in Windsor, Ontario. Gurinder Singh transported cocaine to Canada from the United States, while working as a truck driver for JK Hunt Trucking, a business based in Milton, Ontario. On more than one occasion Mr. Singh was observed, via a “pole cam”, to be removing duffle bags from his trailer and passing them to people, who would then put them in their respective vehicles. These duffle bags are suspected to contain cocaine.
6On July 11, 2019, the accused Mr. Kahlon attended at JK Hunt Trucking in a Dodge Ram pickup truck. He was observed on the pole cam to load 3 black duffle bags into the covered tonneau of the pickup. These bags are suspected to contain 80kg of cocaine, with a street value of between 2.8-8 million dollars.
7On July 30, 2019, Mr. Singh was apprehended at the Canada-US border in Windsor and was arrested for possession of cocaine for the purpose of trafficking and importing. Mr. Singh provided a statement to the authorities, in which he identified Mr. Kahlon, Jaskaran Mangat and Harkamaljit Sanghera. He advised police that Kahlon and Mangat are the owners of JK Hunt Trucking and that he was transporting drugs across the border at their instruction, to settle a debt that he owed them. He said once the debt had been satisfied, he expected to receive between 25 000 and 30 000 for each trip. Mr. Kahlon’s telephone number was found in Mr. Singh’s telephone as well.
8The Court was further advised that the only identification of Tejinder Kahlon was by Mr. Singh, who has since pleaded guilty to his charges and is awaiting sentencing. In addition, the Dodge Ram allegedly driven by Mr. Kahlon is owned by JK Hunt Trucking, which is a business jointly owned by Jaskaran Mangat and Tejinder Kahlon.
9On the basis of the foregoing, Tejinder Kahlon was charged with conspiracy to commit the indictable offence of importing cocaine and conspiracy to commit the indictable offence of trafficking, contrary to section 465 (1)(c) of the Criminal Code, as well as possession of cocaine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act, and finally importing a Schedule 1 substance (cocaine), contrary to section 6(1) of the Controlled Drugs and Substances Act.
10The Crown expressed concern on the primary ground, that detention is necessary to ensure the accused’s attendance at court, the secondary ground, that there is a substantial likelihood that the accused will, if released, commit further offence or interfere with the administration of justice, and the tertiary ground, that detention is necessary to maintain confidence in the administration of justice, having particular regard to the enumerated grounds. Defence counsel asks the Court to consider a plan of release, including surety supervision and a substantial financial promise.
11I note that the co-accused Mr. Sanghera was released on a residential surety release order last week. Certainly it is fair to say that each case must be considered on its own merits, and the level of Mr. Sanghera’s involvement does not reach that of Mr. Kahlon. Accordingly, release of one does not automatically result in release of the other, especially when the level of culpability is different for the two.
The Primary Ground
12Turning first to the primary ground, the Court must first consider whether the accused have ties to Canada or another jurisdiction. I understand that Mr. Kahlon’s wife and family reside in Brampton and he operates a business in Halton region. Mr. Kahlon is also a Canadian citizen. Though the allegations suggest a business with significant ties to the United States, I do not find that he lacks connection to Canada.
13Next, whether the accused has a criminal record or any history of failing to appear, which he does not.
14The Court must then consider the nature of the allegations, and whether he might be inclined to leave the jurisdiction as a result of them. In this case, the allegations are of such a nature that the accused might be inclined to flee, particularly with in mind the lengthy custodial disposition he may face if convicted.
15Finally, the Court must consider whether the plan reduces the risk of non-attendance in court. I am satisfied that by depositing his passport with the RCMP and reporting to the RCMP on a bi-weekly basis, Mr. Kahlon can address the Court’s primary ground concerns.
16Accordingly, Mr. Kahlon has met his onus on the primary ground.
The Secondary Ground
17Turning then to the secondary ground, the Court must consider whether the proposed plan reduces the substantial likelihood of the commission of further offence or interference with the administration of justice, with a mind to the protection and safety of the public. To this end, Defence Counsel Mr. Pillay proposed 3 sureties to the Court in support of the release plan.
18The first proposed surety was Ms. Manjinder Bhangu, She is 43 years old and a long-time family friend of Mr. Kahlon. Ms. Bhangu owns a commercial cleaning company and earns approximately 120 000 per year. She owns a house and has approximately 400 000 in equity in the home. She lives with her husband and children in Brampton. She offers the sum of 100 000 to secure Mr. Kahlon’s release.
19Ms. Bhangu explained that she has known Mr. Kahlon for a number of years, that their fathers are close friends. Her father, Mr. Aujla, also proposes himself as a surety, but that will be addressed later. Ms. Bhangu’s role in the plan is to assist her father in supervising Mr. Kahlon in his home during the day, before she leaves for work. When she is not at the residence she will have access to images of the cameras around her father’s house.
20A number of conditions were reviewed with her and she confirmed her willingness to enforce them, and that she has already taken steps to acquire Mr. Kahlon’s documents for surrender to the RCMP.
21The Court was made aware that Ms. Bhangu’s husband, Mr. Choot Singh, is aware of this plan and supports it. The Court was further advised that Mr. Singh has been employed as a long haul truck driver with JK Hunt Towing, the site of the alleged importation, for the last year.
22This employment relationship suggests a level of dependence on Mr. Kahlon for some of the family’s income. I understand that the business continues to run without Mr. Kahlon and Ms. Bhangu made some suggestion that her husband might not work there for too much longer. In addition, Ms. Bhangu was steadfast in her testimony that Mr. Singh is not working there as a result of her family’s personal relationship but rather that this employment was a coincidence. I do find it unusual that she would not know the name of the business owned by a close friend, but not beyond the realm of possibility. More relevant, however, is the fact that Mr. Chatoo Singh has worked there for the last year and there have been no charges related to this period. Further, it is Ms. Bhangu, not Mr. Singh, who is proposed as the surety, and Ms. Bhangu, as the operator of her own business, has an independent source of income and is not solely reliant on JK Hunt.
23I found Ms. Bhangu’s testimony to be forthright and clear. It is obvious that she understands the responsibilities of a surety and the obligation that she is taking on. She is aware of the length of the commitment and the seriousness of the charges Mr. Kahlon faces. I recognize that Ms. Bhangu is not the architect of this plan, but she is ready and willing to give it effect. I regard her role as one of support her father, who I will consider next.
24The second surety proposed was Mr. Aujla, Ms. Bhangu’s father. In some ways, Mr. Aujla is proposed as the primary surety, though he was the second to testify. He will be the one offering supervision in his home. Mr. Aujla testified to the close relationship he shares with Mr. Kahlon’s father, a relationship that originated in India. I understand that Mr. Aujla has known Mr. Kahlon senior for some 40 years, and that there have been numerous marriages between their families. They share an almost familial relationship. Mr. Aujla proposes himself as surety at the request of Mr. Kahlon senior.
25Mr. Aujla testifies that he is the one who arranged this release plan with Mr. Kahlon’s wife and offers himself as the main supervisor. He is prepared to have Mr. Kahlon reside in his home with him and his own wife, and to enforce the Court’s conditions. Mr. Aujla explained to the Court what the role of a surety is, and that he and his wife of 46 years are prepared to open their home to the accused Mr. Kahlon.
26Mr. Aujla has been in Canada for 20 years and retired from his renovation company 5 years ago. He proposes full-time, uninterrupted supervision and the sum of one hundred thousand dollars to secure Mr. Kahlon’s release. Mr. Aujla testified that he understands surety supervision to be a 24/7 responsibility, and he is willing to enforce any plan of release, including house arrest.
27Mr. Aujla testified that he had confidence in Mr. Kahlon’s ability to comply, but that he would not hesitate to contact the police if he had any concerns about compliance. He also confirmed that he has cameras around the perimeter of his home that can be viewed on the internet.
28In my view, Mr. Aujla’s testimony was clear and straightforward. There was no confusion or ambiguity. He acknowledged that his son in law is currently employed with JK Hunt, but echoed Ms. Bhangu’s comments about this being coincidental. In order to assist his friend’s son, he proposes himself as surety along with a significant financial promise, with a hope to securing Mr. Kahlon’s release. He was unwavering about his ability to supervise and to notify the police if required.
29The third surety proposed was Gurpreet Kukreja. He is 45 years old and lives in Mississauga with his family. He is employed as a licensed Immigration Consultant and runs his own consultancy firm. He has been acquainted with Mr. Kahlon since 2013. Over the years, their relationship has evolved into one of friendship.
30Mr. Kukreja offers surety support in terms of a promise of 100 000 dollars, as well as a commitment to keeping in touch with both Mr. Aujla and Ms. Bhangu, as well as the accused Mr. Kahlon. He will attend at Mr. Aujla’s house as often as he can and will call in any breach that is made aware of.
31I found Mr. Kukreja’s testimony to be straightforward and candid. He was not acquainted with the other sureties prior to being asked by Mrs. Kahlon to assist. The Court had questions about what assistance he brings to this release plan, since he lives some distance away and is not well acquainted with the other two proposed sureties.
32The Crown characterized the sureties as “naïve”. That may well be true. It is likely the case that they have never encountered these types of charges or been in this type of situation. The role of the Court, however, is to assess risk, and to determine whether the proposed sureties will be able to satisfy their obligations to the Court, whether they are credible and can be relied on to fulfill the commitments they offer.
33To make this assessment, the Court must look at the plan of release from two sides- first, whether the plan itself is sufficient to address the Court’s concerns, and second, whether the accused is able or willing to abide by the plan. In the circumstances before me, the plan proposed requires Mr. Kahlon to surrender his travel documents, to report to the RCMP at regular interval, to remain in his residence at all times or otherwise as determined by the Court, and to be subject to round the clock supervision, with the strength of a significant financial promise. The plan is, on its face, sufficient to address the Court’s concerns about supervision.
34The others side, however, is to consider whether the accused is himself prepared to follow the conditions. I understand from the testimony that the proposed terms have been discussed with Mr. Kahlon, and he has agreed to them. Considering that Mr. Kahlon has no prior criminal record and no outstanding charges, and no history of failing to comply with court conditions, there is nothing before this Court to suggest that he will not comply. He is aware that what is being proposed is the highest form of release, short of detention in custody and he has agreed to these terms. With that, the Court is satisfied that a release plan can be crafted to reduce the substantial likelihood of the commission of further offence.
35Turning then to the tertiary ground, the Court must consider whether the detention of the accused is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including the four non-exhaustive, enumerated grounds.
36In assessing the strength of the Crown’s case, the Court is required to undertake an “authentic appraisal of the Crown’s case”1. This involves a detailed review of the evidence relied on by the Crown. The charges Mr. Kahlon faces, taken at their highest, are incredibly serious. However, further review of the Crown’s case demonstrates that the offences date back to 2019 but charges were not laid until September 2021. There is no allegation of offences having occurred between July 2019 and the present, as it relates to Mr. Kahlon, despite the presence of the pole camera”. In addition, the case against Mr. Kahlon relies very heavily on the evidence provided to the Crown in relation to his own plea agreement. The only identification of Mr. Kahlon on the pole camera video, and the only articulation of Mr. Kahlon’s role in the operation were provided by Mr. Singh. There is no independent identification, no correspondence or text messages, and no forensic evidence to support these claims at this time.
37The Court must consider the Dang decision, which states that the delay of two years in laying a charge speaks directly to section 515(10)(c)(1), which is the strength of the Crown’s case.2 In addition, I am mindful of the comments of Justice Wagner in the Yuvarajah decision at paragraph 64, in relation to statements made by an accomplice or co-accused. The Court says, “the administration of justice would not be enhanced in permitting admissions made by a co-accused in his own interest, as part of a plea bargain for a conviction of a lesser crime and favourable sentence, to be used against a co-accused, in circumstances where the reliability of the statements cannot be adequately tested”3.
38In a bail hearing there is no opportunity to test the quality or the reliability of the statements made by Mr. Singh. The Court is right to be suspect of the quality and reliability of these statements, especially since they were made in the face of his own guilty plea, likely in cooperation with the Crown for some sort of inducement. The lack of independent identification or other sources of evidence against Mr. Kahlon calls into question the strength of the Crown’s case. The charges faced by Mr. Kahlon, including those relating to the allegations of conspiracy, are, at this point, based largely circumstantial evidence.
39Second, looking to the gravity of the offence, I share the Crown’s submission that the gravity of these offences should not be understated. I recognize that there were no firearms used, but the allegations are most serious in nature. Importation of drugs into Canada is an affront to the safety and security of our society. It is, in its nature, a violent act.
40Third, the circumstances surrounding the commission of the offence, including whether a firearm was used. Again, I find that the offences, taken at their highest are very concerning. These offences represent a deliberate and calculated cross-border effort to evade detection and import millions of dollars of illegal substances into Canada. While I may have concerns about the strength of the Crown’s case, there can be no question about the high-level and premeditated nature of these offences.
41This, of course, must be balanced against Mr. Kahlon’s lack of criminal record or outstanding charges.
42Fourth, the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involved, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. I understand that the minimum sentence is two years imprisonment upon conviction for the importation of more than 1 kilogram of a Schedule 1 substance, with a potential for lifetime imprisonment. It goes without saying that the accused Mr. Kahlon would face a lengthy term of custody if convicted.
43And finally, whether the plan of release is capable of maintaining public confidence in the administration of justice. It is at this point that I also consider the issues that arise in relation to the current health crisis we are facing. I understand that Mr. Kahlon has been in custody since the 8 of September, just over 3 weeks. In addition, there is more than abundant caselaw to stand for either proposition, that being detention or release in the fact of the pandemic. My view is this: on a tertiary ground analysis, it can be persuasive and can push in favour of release but does not displace the requirements for release as set out in the Criminal Code. If these requirements are not satisfied, the existence of a pandemic does not in and of itself provide a sufficient basis to secure release.
44As stated in the often cited Rajan4 decision from 2020 at paragraph 74, the global pandemic is it is not a “get out of jail free” card. The custodial institutions have done an exceptional job of keeping infection numbers low, but the reality remains that physical distancing is simply not possible in a custodial facility and the institutions have had mixed success with vaccinating inmates. Having said that, I have found that the accused has met his onus on the secondary ground, and the ongoing nature of the pandemic, including the fourth wave that we appear to be experiencing now does push in favour of release.
45In my view, a reasonable member of the community would lose confidence in the administration of justice if an accused was released from custody where not justified, but also if that accused was detained where an appropriate plan of release was available. In the circumstances before me, the latter is the case. There is an appropriate plan of release and I do not find that the proposed plan would be of concern to a reasonably informed member of the public. To detain a person in the face of a strong plan of supervision, in a situation with no prior criminal record and concerns about the strength of the Crown’s case, and no history of non-compliance would itself diminish confidence in the administration of justice.
46Further, this act would be contrary to the direction given by higher courts, most recently in the Zora5 decision, which directs lower courts to regard release as the default, not the exception. To detain an accused when what is being proposed is the highest form of release short of detention, with a plan of supervision, reporting and a significant financial promise would not serve the public interest. As a result, I find that the accused Mr. Kahlon has met his onus on the tertiary ground and a release order will be put in place.
Released: October 5, 2021
Signed: Justice of the Peace S. Butany-Goyal
Footnotes
- R. v. St. Cloud 2015 SCC 27, [2015] S.C.J. No. 27 at para. 58
- R. v. Dang 2015 ONSC 4254, 2015 O.J. No 3552, at para 55
- R v. Yuvarajah 2013 SCC 41 at para 64.
- R v. Rajan 2020 ONSC 2118
- R. v. Zora 2020 SCC 14, [2020] SCJ No. 14