Her Majesty the Queen v. Baskaran Her Majesty the Queen v. Kanthasamy Her Majesty the Queen v. Kanagasivam Her Majesty the Queen v. Pathmanathan

[Indexed as: R. v. Baskaran]

Ontario Reports Court of Appeal for Ontario Hoy A.C.J.O., Lauwers and Nordheimer JJ.A. January 17, 2020 149 O.R. (3d) 409 | 2020 ONCA 25

Case Summary

Charter of Rights and Freedoms — Exclusion of evidence — Search and seizure — Police obtaining two sets of production orders for cellphone records — Second set obtained based on searches of cellphones following accused's arrest that Crown conceded violated their s. 8 rights — Trial judge not excluding information obtained from second set under s. 24(2) of the Charter — Trial judge's analysis not flawed as admission of evidence obtained not breaching anonymity and revealing only appellants' location in public place at particular time — Appellants having lowered expectation of privacy in such information as contrasted with evidence revealing appellants' activities within their homes — Canadian Charter of Rights and Freedoms, ss. 8, 24(2).

Charter of Rights and Freedoms — Search and seizure — Production order — Police obtaining production orders for "tower dump" of cellphone records to track appellants following a tractor trailer to target for robbery — Appellants claiming that orders were based merely on speculation and overbroad — Orders properly issued as it was a reasonable inference that appellants used cellphones to communicate while following vehicle — Orders tailored to protect privacy of innocent persons — Canadian Charter of Rights and Freedoms, ss. 8, 24(2).

Criminal law — Appeal — Sentence appeals — Four accused convicted of various property offences and kidnapping — Three accused appealing sentences — Trial judge erred by comparing robberies to home invasions, resulting in unduly high total sentence — Trucker robbed while sleeping in truck cab not analogous to robbery of persons in sanctity of their homes — Court of Appeal replacing each unfit sentence with a sentence it considered appropriate.

Criminal law — Trial — Charge to jury — Similar act evidence — Four accused charged with multiple offences arising from series of robberies — Trial judge instructing jury that in deciding on a particular count they could use evidence in other counts to assist them — No error in the count to count similar act ruling — Many of the similarities were sufficiently unusual to reasonably infer that the alleged similar acts were committed by the same group — Trial judge correctly considering similarities globally rather than each in isolation.

A number of thefts and robberies of tractor trailers occurred over the course of six months. Many of the incidents involved confinement of a truck driver or security guard. The theory of the Crown was that the robberies were committed by the same criminal group. Police investigating one of the robberies believed that the perpetrators used cellphones to stay in touch with each other while following a truck targeted for robbery. Consequently, the police sought and obtained two production orders for cell phone records from certain cell towers along the route the truck had taken. Two of the appellants were arrested and their cellphones seized and improperly searched by police. Police obtained two further production orders obtained in part based on improper searches of the cellphones, causing the Crown to concede that the latter two orders were issued in violation of s. 8 of the Canadian Charter of Rights and Freedoms. The trial judge chose not to exclude from evidence the information obtained from those orders under s. 24(2) of the Charter. In concluding that it was likely that the same group carried out each of the offences, the trial judge outlined for the jury 17 items of similarity. The judge further instructed the jury that they could, in deciding a particular count under which a particular appellant was charged, use the evidence on other counts with which that appellant was also charged to assist them. The four appellants were convicted on various counts of theft over $5,000, robbery, kidnapping, use imitation firearm and possession of stolen property. They all appealed those convictions, one appealed his conviction on two counts of possession of property obtained by crime, and the other three appealed their sentences.

Held, the conviction appeals should be dismissed; the sentence appeals should be allowed.

The first two production orders were properly issued. The appellants contended that the police had nothing more than speculation that the unknown robbers used cellphones to keep track of the truck, but the trial judge found the use of cellphones to be an available common sense inference arising from the facts. Therefore, there were sufficient grounds to grant the production orders. The appellants further contended that the production orders were overbroad in that they captured the private information of many innocent persons. The orders were not overbroad. Although with the benefit of hindsight the orders could have been more carefully drafted, they were narrow as to time and made efforts to reduce the invasion of privacy of innocent persons.

The trial judge made no error in her count to count similar act ruling. Some of the listed similarities were generic, but others were more unusual such that the objective probability of coincidence was low. Thus, it was permissible to infer that, viewed collectively, the alleged similar acts were, more likely than not, committed by the same group. It was not an error to make the determination globally rather than consider the similarity for each individual appellant.

The trial judge's s. 24(2) analysis of the admissibility of the evidence obtained by the second set of production orders was not flawed. The appellants argued that the judge took too narrow a view of the information obtained by the flawed production orders and underestimated the impact on their rights arising from the information revealed to the police. Using a customer's name, address and telephone information to reveal the location of the appellants out in public at a particular point in time did not give rise to a breach of anonymity and the appellants had a reduced expectation of privacy in such information.

The trial judge erred in finding these robberies as being on a par with home invasion robberies, leading her to impose an unduly high sentence of five years for each of the offences of theft over $5,000, thereby affecting the total sentence. One appellant, who had no record and expressed remorse but whose role was very much on par with that of the ringleader and who had a greater involvement than any of the other appellants, had his sentence reduced from 16 years to 12 years. That resulted in a reduction of sentence from 11 years to nine years for a second appellant, and a reduction from four years and two months to three years for the third appellant, who was a young man, had no criminal record and was only involved in two of the robberies.

R. v. Mahmood, 2008 ONSC 51774; R. v. Spencer, 2014 SCC 43, distd

R. v. Thompson, 1990 SCC 43, consd

R. v. Grant, 2009 SCC 32, apld

Other cases referred to

R. v. Durant, 2019 ONCA 74; R. v. Handy, 2002 SCC 56; R. v. Kanagasivam, 2016 ONSC 2548; R. v. Kanagasivam, 2016 ONSC 2545; R. v. Lacasse, 2015 SCC 64; R. v. Mahmood, 2011 ONCA 693 [Leave to appeal to S.C.C. refused [2012] S.C.C.A. No. 111]; R. v. Perrier, 2004 SCC 56; R. v. Vu, 2013 SCC 60

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 8, 24(2) Criminal Code, R.S.C. 1985, c. C-46, s. 492.2 [as am.]

APPEALS by the accused from the convictions entered by Fairburn J. of the Superior Court of Justice, sitting with a jury, on March 18, 2016 and from the sentences imposed on September 6, 2016.

Daisy McCabe-Lokos, for appellant Majurathan Baskaran. Cate Martell, for appellant Thirumal Kanthasamy. Michael Dineen, for appellant Jananthan Kanagasivam. Frank Addario and Julia Kindrachuk, for appellant Srimoorthy Pathmanathan. Holly Loubert and Kathleen Doherty, for respondent.

The judgment of the court was delivered by

NORDHEIMER J.A. : —

A. Overview

[1] These appeals arise from convictions that stem from a series of tractor trailer thefts and robberies spanning a period of six months. Majurathan Baskaran, Thirumal Kanthasamy, Jananthan Kanagasivam and Srimoorthy Pathmanathan appeal from their convictions on various counts of theft over $5,000, robbery, kidnapping, use imitation firearm and possession of stolen property. All four appellants challenge the trial judge's ruling respecting a production order for cell phone tower records and her ruling permitting count to count similar act evidence. Mr. Baskaran and Mr. Kanthasamy challenge the trial judge's s. 24(2) analysis with respect to two separate production orders that the Crown conceded had breached their rights under s. 8 of the Canadian Charter of Rights and Freedoms. Mr. Kanthasamy also challenges his convictions on two counts of possession of property obtained by crime. Finally, Mr. Baskaran, Mr. Kanagasivam and Mr. Pathmanathan seek leave to appeal the sentences imposed on them.

[2] I would dismiss the conviction appeals. The trial judge made no reviewable error in her ruling respecting the production order for the cell phone tower data. Nor did the trial judge err in her similar act evidence ruling or in her s. 24(2) analysis. The guilty verdicts rendered by the jury against Mr. Kanthasamy in respect of the possession charges were not unreasonable and this ground of appeal also fails.

[3] I would grant leave to appeal sentence to Mr. Baskaran, Mr. Kanagasivam and Mr. Pathmanathan, and would allow their sentence appeals. The trial judge erred in her comparison of these offences to home invasion robberies and, in the case of Mr. Pathmanathan, erred in her application of the parity principle. Their sentences must be reduced as a consequence.

B. Background

[4] The offences arise out of a number of thefts and robberies of tractor trailers that occurred between March 2009 and August 2009. The robberies involved a group of men who stole loaded trailers containing valuable products of different types. During many of the robberies, either the driver of the truck connected to the trailer, or a security guard working at the yard where the trailer was located, was confined and held. The theory of the Crown was that all of these robberies were committed by the same criminal group, although membership in the group varied from robbery to robbery.

[5] The first theft occurred on March 13, 2009. A second occurred on May 2, 2009, this time involving kidnapping and robbery, followed by a robbery on May 12, 2009. The police investigating the May 12, 2009 robbery believed that the driver of the truck that was stolen had been followed for some time before he was confronted, held and his truck stolen. Based on video footage, the police believed that there were at least two vehicles and five men involved in following the truck and in the resulting robbery. The police further believed that these individuals likely used cellphones to stay in touch with each other as they followed the truck. Con-sequently, the police sought a production order for cellphone records from certain cell towers that were along the route that the truck had taken. Put simply, they sought a so-called "tower dump" order.

[6] Specifically, the police sought an order in the following terms:

All records pertaining to cellular calls through the cellular tower #27111 and tower #27217 of Rogers Communications Inc. during the time period 6:15 am on May 12, 2009 and 6:55 am on May 12, 2009.

All records pertaining to cellular calls through the cellular tower #26952 and tower #26958 of Rogers Communications Inc. during the time period 7:25 am on May 12, 2009 and 7:35 am on May 12, 2009.

All records pertaining to cellular calls through the cellular tower #38993 and tower #38999 of Rogers Communications Inc. during the time period 8:25 am on May 12, 2009 and 8:40 am on May 12, 2009.

All records pertaining to cellular calls through the cellular tower #38993 and tower #38999 of Rogers Communications Inc. during the time period 8:30 am on May 5, 2009 and 8:50 am on May 5, 2009.

[7] The order specified that the "sought records shall include all subscriber records relevant during the time period of the requested records, including start or initiation of service and end or termination of service dates when the currently registered subscriber is different from the subscriber registered during the requested time period".

[8] The police obtained this order on June 7, 2009 (the "June production order"). As a result of information received from the June production order, the police were able to identify Mr. Pathmanathan, along with others, as possibly being involved in the May 12, 2009 robbery. The police sought and obtained a further production order in August 2009 relating to three phone numbers identified from the June production order.

[9] Mr. Kanthasamy and Mr. Baskaran, along with others, were arrested on August 28, 2009. Cellphones were seized from Mr. Kanthasamy and Mr. Baskaran incident to their arrests. After the arrests, the police obtained two further production orders -- one in September 2009 and one in November 2009. These production orders were obtained, at least in part, based on improper searches conducted by a police officer of the phones seized from Mr. Kanthasamy and Mr. Baskaran. The Crown conceded that, once the improperly obtained information was excised from the information to obtain ("ITO") for the September and November production orders, those orders could not have properly issued. The question then became whether the information obtained from those orders should be excluded from the evidence, pursuant to s. 24(2) of the Charter. The trial judge found that it should not be excluded.

[10] The trial proceeded before a jury over a period of approximately 60 days from late 2015 into early 2016. The jury eventually returned with 61 verdicts. Prior to trial, four other accused pleaded guilty to their involvement in the robberies. Three of them testified at the trial.

C. Analysis

[11] The appellants raise two common grounds of appeal. One is with respect to the June production order and the other is with respect to the count to count similar act ruling. I will deal with the June production order first.

(1) The June production order

[12] The appellants say that the June production order should not have issued because (i) there were insufficient grounds for it to be granted, and (ii) the order was overbroad. As a result, the seizure of the records infringed s. 8 of the Charter. The trial judge rejected both of these arguments. I do as well.

(a) There were sufficient grounds to grant the June production order

[13] The trial judge gave detailed reasons for her conclusions. The appellants have failed to establish any error in those reasons. The appellants contend that the police had nothing more than speculation that cell phones were being used by the perpetrators in their efforts to follow the truck and that speculation was insufficient to provide a proper foundation for the granting of the June production order. In contrast, the trial judge found that it was "an available common sense inference" arising from the facts that cell-phones were likely being used so that the perpetrators could keep in contact with each other. That common sense inference provided the necessary foundation, along with other evidence, for the June production order to be issued.

[14] There can be no realistic challenge to the trial judge's conclusion on this point. Given that there were multiple persons keeping an eye on this truck in order to determine its route, so that they could subsequently confront the driver and steal the truck, the practical reality is that the perpetrators would need to keep in contact with each other. While the appellants suggest that they could have used two-way radios, even in 2009 it would be much more common for persons to have, and to use, cellphones for this purpose. I note, on that point, that in a case just two years later that, on its facts, is very similar to this one, this court referred to cell phone use as "ubiquitous": R. v. Mahmood, 2011 ONCA 693 ("Mahmood (CA)"), at para. 1, leave to appeal to S.C.C. refused [2012] S.C.C.A. No. 111.

[15] In any event, the mere possibility that the perpetrators could have used two-way radios does not negate the possibility that cellphones were used. The issue is whether the use of cellphones was a common sense inference. The trial judge found that it was. I agree. The appellants point to the fact that the trial judge in Mahmood reached a contrary conclusion: R. v. Mahmood, 2008 ONSC 51774 ("Mahmood (SCJ)"), at paras. 90, 91. This court is not bound by that decision, but, in any event, the fact that two judges reached different conclusions on this issue does not, in and of itself, establish that one of the decisions is wrong. The trial judge in Mahmood (SCJ) was faced with a very different factual situation than was the trial judge here.

[16] The appellants also quarrel with the trial judge's reliance on the evidence of a police surveillance officer, contained within the ITO, regarding his surveillance experience. In fact, it is not clear that the trial judge placed any significant reliance on this evidence, other than to mention it. In any event, all that evidence did was confirm what would be a common sense understanding, that is, if multiple people in different vehicles are attempting to follow someone, there is a need for them to keep in touch with each other in furtherance of their objective. The police do this to maintain surveillance. The perpetrators were engaged in the same exercise.

[17] In the end result, there were ample grounds for the June production order to issue.

(b) The June production order was not overbroad

[18] The appellants also challenge the June production order on the basis that it was overbroad. They say that, by its terms, the order captured the private information of a great many innocent persons. The appellants say that the capture of all of this information cannot be justified. It involved too great an invasion of the privacy of innocent members of the public and con-stituted an unreasonable search or seizure. Consequently, the order resulted in an infringement of s. 8 of the Charter.

[19] As the trial judge identified, there is a fatal flaw with this challenge to the seizure of records pursuant to the June production order. The actual information obtained by the police, pursuant to the order, was never placed in evidence before the trial judge. It was therefore impossible for the trial judge to evaluate how much information was actually obtained by the police, and the extent of that information. This court is left at the same disadvantage.

[20] For example, in argument, the appellants contended that the police obtained financial information for everyone whose phone numbers appeared in the records. I do not know that to be the case because I do not have either the information that was actually produced or evidence about the information actually produced. Further, it is not clear that "[a]ll records pertaining to cellular calls through" the specified cell towers during the specified times that were "relevant" would have been interpreted, by the telco that received the production order, as including financial records, and, if so, what financial records. But this should not be a matter of speculation. If the appellants wished to advance the overbreadth argument on that basis, they bore the burden of putting before the trial judge the actual information that was produced to the police as the evidentiary foundation for their position. This they failed to do. Consequently, there was no basis for the trial judge to properly determine whether this had occurred. It follows that there is no basis for this court to make that determination either.

[21] On this point, the appellants submit that the production order is overbroad on its face. I do not agree. The production order is narrow in its scope. It requires records from six towers, and covers only two dates. The order is narrowly circumscribed by time depending on the towers involved: 40 minutes, ten minutes, 15 minutes and 20 minutes, respectively. The police were responsible by limiting their request in an effort to avoid overbreadth. That said, it is inevitable, when an order of this nature is sought, that some information of innocent persons will be captured by any order that is ultimately granted. The task for the issuing justice is to limit that collection. In my view, the police took a responsible approach to that issue in terms of the order that they sought in this case.

[22] On this point, the appellants place great reliance on the decision in R. v. Thompson, 1990 SCC 43. In my view, that decision does not assist the appellants' position. Indeed, that decision recognizes the reality that I have just noted, that is, that authorizations will inevitably intrude on the privacy interests of innocent persons. As Sopinka J. said, at pp. 1143-44 S.C.R.:

In any authorization there is the possibility of invasion of privacy of innocent third parties. For instance, a wiretap placed on the home telephone of a target will record communications by other members of the household. This is an unfortunate cost of electronic surveillance. But it is one which Parliament has obviously judged is justified in appropriate circumstances in the investigation of serious crime.

[23] The issue is whether that inevitable intrusion has been limited to an acceptable degree. Put another way, is the search no more intrusive than is reasonably necessary to achieve its objective: R. v. Vu, 2013 SCC 60, at para. 22. As I have said, I agree with the trial judge that the June production order was carefully limited in this case. I also agree with the trial judge that the appellants bore the onus of establishing their overbreadth challenge to the production order. Their failure to put before the court the actual information that was obtained was fatal to that challenge.

[24] I therefore reject the overbreadth ground of attack on the June production order.

[25] Nevertheless, I accept, admittedly with the benefit of hindsight, that the production order itself could have been more carefully drafted. In particular, the records requested could have been more clearly defined. It would be a better practice, in the future, for any production order to outline specifically the records being sought so that there is no confusion between what the police seek, and what the recipient provides. The issuing justice should ensure that this is done.

(c) The challenge to the August production order also fails

[26] The appellants' challenge to the August production order stands or falls based on the result respecting the June production order. Given my conclusion on the June production order, the challenge to the August production order also fails.

(d) The records would not be excluded pursuant to s. 24(2)

[27] The appellants also take issue with the trial judge's s. 24(2) analysis. It is technically not necessary to address this issue in light of my conclusion rejecting the challenge to the June production order. However, like the trial judge, I address it in the interests of completeness.

[28] The seriousness of the Charter-infringing state conduct was not high. The police obtained a judicial authorization to obtain the information. They acted in good faith. They had a reasonable belief that cellphones had been used by the perpetrators, and they made reasonable efforts to minimize the production of private information of innocent parties, to which I have referred above.

[29] The impact of the breach on the Charter-protected interests of the accused, while not insignificant, was moderate, given both the information that was obtained and the information that it, in turn, revealed. The impact was certainly not as high as it might be where other private information is obtained by the police. In addition, this court has recognized that the privacy interests in cellphone records is "one that is significantly reduced": Mahmood (CA), 2011 ONCA 693, at para. 131.

[30] I reiterate, however, that this evaluation depends on the precise nature of the information obtained and the corresponding information that is revealed. In the absence of the actual records produced pursuant to the production order, there is no basis to distinguish the records in this case from the usual cellphone records. In light of my conclusion, it is unnecessary to address the respondent's argument that the records might have been obtainable under s. 492.2 of the Criminal Code, R.S.C. 1985, c. C-46, that carries a reduced threshold.

[31] The information obtained pursuant to the June production order was "real evidence" that was central to the investigation, and the identification of the persons involved. It was central to the prosecution of these serious offences. Society has a clear interest in the adjudication of this case on its merits.

[32] In my view, the first and third factors from R. v. Grant, 2009 SCC 32, at para. 61, weigh strongly in favour of admission. The second factor weighs against admission but only weakly. A proper weighing of the factors as a whole supports the conclusion that the evidence should not have been excluded. Again, I agree with the trial judge's conclusion on this point.

(2) Count to count similar Act ruling

[33] The appellants' second joint ground of appeal is their challenge to the trial judge's ruling that the jury could, in deciding a particular count under which a particular appellant was charged, use the evidence on other counts with which that appellant was also charged to assist them. This ruling, reported as R. v. Kanagasivam, 2016 ONSC 2548 ("Kanagasivam II"), was limited to certain counts related to kidnapping, robbery and use imitation firearm on seven of the 11 offence dates.

[34] The central issue in this case was identity. As stated by Watt J.A. in R. v. Durant, 2019 ONCA 74, at para. 90, the use of similar act evidence to establish identity generally requires an analysis of the similarities between the acts:

In the usual course where evidence of similar acts is proposed for admission in proof of a perpetrator's identity, the trial judge should review the manner in which the similar acts were committed, that is to say, whether the allegedly similar acts involve a unique trademark or reveal a number of significant similarities. This review enables the trial judge to determine whether the alleged similar acts were likely all committed by the same person.

[35] The appellants argue that the trial judge erred in concluding that it was likely that the same group carried out each of the offences. In her reasons on this issue, the trial judge outlined 17 items of similarity, at para. 127:

• The offences were accomplished with the theft of a truck.
• The offences involved the theft of at least one trailer and load.
• The kidnapping victims were all placed in the back sleeper areas of the trucks.
• With one exception, two men got into the back sleeper areas of the trucks with each of the victims.
• The victims were driven around in the back sleeper areas of the trucks.
• With one exception, three or four people were inside the trucks.
• The assailants used a language other than English.
• The kidnapping victims were bound.
• With one exception, each victim was bound in the sleeper areas of the trucks when they were abandoned.
• With two exceptions, each kidnapping victim was the driver of the truck that was stolen.
• The drivers in each incident generally knew how to operate a large truck.
• There were no serious injuries.
• With one exception, the kidnapping victims testified to the use or threatened use of a gun.
• With one exception, the kidnapping victims had personal property taken from them.
• The kidnapping victims were taken during the evening or as it was getting dark out.
• In each case an effort was made to obstruct the kidnapping victims from seeing the assailants.
• The loads that were taken were valuable.

[36] I accept the appellants' point that some of these similar-ities are generic, that is, they would be present in any case where these offences are committed. For example, the fact that the goods stolen are valuable. It is unlikely that robbers would steal worthless items. Another is the fact that a truck was stolen in each case. It is, of course, difficult to steal a transport trailer without a truck to move it.

[37] However, there were other similarities that were more unique. These included that the perpetrators spoke in a language other than English. Another was that drivers or security guards were kidnapped and driven around during the course of the robberies. Yet another was that the drivers or security guards were all robbed of personal effects. Further, a gun was used, or its use was intimated, in all but one robbery. Lastly, all but one of the acts were linked to the same individual -- the "ringleader".

[38] The overall point of this exercise is to show that the objective probability of coincidence, given all of the items of similarity, together with the connections among the individuals, is low. Thus, it is permissible to infer that the same group committed the acts: R. v. Perrier, 2004 SCC 56, at para. 31.

[39] On this point, when considering similar act evidence in a context such as this, one should avoid placing too much emphasis on some of the language used, in various authorities, to describe the requisite degree of similarity, such as "signature" or "fingerprints". What is required is that the trial judge be satisfied that there is the high degree of similarity needed to reach the necessary conclusion that the alleged similar acts were, more likely than not, all committed by the same group: Perrier, 2004 SCC 56, at para. 21. That sufficient degree is often characterized in different language. For example, it is sometimes characterized as "striking". But the use of such adjectives does not change the nature of the inquiry. Using a word such as "striking" simply means that the circumstances stand out to an independent observer.

[40] In my view, the trial judge was correct in concluding that the various robberies were sufficiently similar, based on the items of similarity that the trial judge mentioned, and which I have set out above. While some of those items can be challenged individually in terms of whether their similarity would suggest conduct by the same actors, that is not the proper approach. The proper approach is whether the similarities, viewed collectively, are sufficient to establish on a balance of probabilities that they are the product of the same actors. I have no difficulty in agreeing with the trial judge that, in this case, they are. The likelihood that these robberies occurred randomly at the instance of entirely different individuals, or groups of individuals, is remote. As Binnie J. noted in R. v. Handy, 2002 SCC 56, at para. 45: "Coincidence, as an explanation, has its limitations."

[41] The appellants also complain that the trial judge failed to consider for each appellant whether there was sufficient similarity between the offences with which that specific appellant was charged, and instead made this determination globally. This argument fails. The trial judge was not required to lay out her analysis in the manner suggested by the appellants. It is clear from her reasons that she was satisfied that each offence for which the Crown sought to admit count to count similar act evidence was committed by the same group. I note, in particular, that many of the similarities identified, including those identified by the trial judge as being the most striking, were present in all occurrences. Further, her jury charge, with which the appellants take no objection, made it clear to the jury that they were to assess similarity accused by accused. I see no error here.

[42] Accordingly, I do not see any error in the trial judge's analysis and this ground of appeal fails.

(3) The September and November production orders

[43] I now turn to the two individual grounds of appeal. The first of those is the appeal by Mr. Baskaran and Mr. Kanthasamy regarding the trial judge's decision to admit the evidence gathered under the September and November production orders. Those orders were obtained based on an illegal search of the cellphones of Mr. Baskaran and Mr. Kanthasamy after the two had been arrested.

[44] These appellants say that the trial judge took too narrow a view of the information obtained by those production orders and this resulted in her engaging in a flawed s. 24(2) analysis. In particular, these appellants complain that the trial judge underestimated the impact on their rights arising from the information that was revealed to the police as a consequence of the information that they obtained from the flawed production orders. I do not agree.

[45] Central to these appellants' complaint is their reliance on the decision in R. v. Spencer, 2014 SCC 43, which, they contend, ought to have caused the trial judge to take a more serious view of the information obtained through the flawed orders and thus reach a different conclusion on the Grant factors. On this point, I agree with the Crown that the privacy interest arising from a customer's name, address and telephone number information ("CNA") is not unidimensional. It depends on the context in which the CNA is obtained, the use to which it will be put, and the information it reveals.

[46] The multidimensional nature of the privacy interests associated with CNA is the reason why the interests engaged in this case are not comparable to the interests that were engaged in Spencer and why these two cases do not direct similar results. This distinction was noted by Cromwell J. in Spencer, 2014 SCC 43, at para. 47:

In my view, the identity of a person linked to their use of the Internet must be recognized as giving rise to a privacy interest beyond that inherent in the person's name, address and telephone number found in the subscriber information.

[47] There was no corresponding invasion of any individual's anonymity in this case of the type that was involved in Spencer. The CNA here carried with it a reduced expectation of privacy -- a fact that the trial judge also relied upon. The fact that the CNA revealed the location of these appellants out in the public at a particular point in time does not give rise to the type of breach of anonymity involved by the accused in Spencer regarding his activities in his own home. The infringement of privacy is of an entirely different, and lesser, magnitude.

[48] The trial judge properly considered the impact and reached the same conclusion. I do not see any error in her conclusion on the proper application of s. 24(2).

(4) Possession of property convictions

[49] Mr. Kanthasamy appeals his convictions on two counts of possession of property obtained by crime. These convictions relate to the discovery in a warehouse of a load of LG appliances stolen on August 11, 2009 and a load of cigarettes stolen on August 27, 2009. Mr. Kanthasamy was not connected to the actual robberies of these goods. Rather, he was connected to the possession of them by his presence outside of the warehouse when the appellants and others were arrested, his presence at the warehouse the previous evening in the company of the "ringleader" of the robberies, and the presence of certain phone calls between him and the person who had rented the warehouse space in which the stolen goods were located.

[50] Mr. Kanthasamy says that the evidence showed that the ringleader of these robberies would hire people, such as Mr. Kanthasamy, on an ad hoc basis to assist in committing the robberies. He says that the evidence in this case shows nothing more than that he may have been hired to help move these stolen goods. There appears to be no dispute that this was the reason why all of these persons were present at the warehouse that particular evening when the arrests occurred. The evidence revealed that they had to move the stolen goods to another location.

[51] In his submissions, Mr. Kanthasamy ignores the salient fact that this was a trial before a jury. It was the jury's job to decide whether they were satisfied, on the evidence and beyond a reasonable doubt, that Mr. Kanthasamy was guilty of these offences. No issue is taken with the instructions that the trial judge gave with respect to these offences -- or otherwise for that matter.

[52] In light of that reality, Mr. Kanthasamy's argument has to rise to the level of saying that the verdicts were unreasonable. To that end, he would have to establish that there was no evidence upon which this properly instructed jury, acting judicially, could reasonably have rendered these verdicts.

[53] I note that this was an issue upon which Mr. Kanthasamy brought a directed verdict application. That application was dismissed, with reasons reported at R. v. Kanagasivam, 2016 ONSC 2545 ("Kanagasivam I"). In dismissing the application, the trial judge referred to the above evidence and concluded, at para. 106:

The jury could infer from all of this evidence that the men who had met earlier, who were in the van that had passed by the address earlier, and who parked where they could observe a moving van come into the area, were there because they were in joint or constructive possession of the property that they were about to move. For Mr. Kanthasamy, this inference is only bolstered by his presence in the area the night before and his contact with [the person who rented the warehouse space] the night before.

[54] The same analysis and conclusion apply to the argument in this court. There was evidence upon which the jury could conclude that Mr. Kanthasamy's presence at the warehouse was the result of him being more than just a hired hand. For example, if he was just a hired hand being used to move the goods, why was he communicating with the person who rented the warehouse space, and why was he outside the warehouse the night before?

[55] It was up to the jury to evaluate all of the evidence and decide whether it proved that Mr. Kanthasamy had possession of the stolen property. They reached the conclusion that he did. That was a verdict that was open to the jury on the evidence. This ground of appeal fails.

(5) The sentence appeals

[56] Each of Mr. Baskaran, Mr. Kanagasivam and Mr. Pathmanathan seek leave to appeal the sentences imposed on them by the trial judge. I would grant them leave and allow the appeals.

[57] I will begin by explaining the approach that the trial judge took to imposing sentences on these four appellants, and the error that I find that she made in reaching the conclusions that she did.

[58] The trial judge first determined the appropriate sentence for each offence. For example, she determined that the counts of theft over $5,000 would attract a five year sentence, the robbery and kidnapping counts would attract a three year sentence (save for one robbery where a three and one-half year sentence was imposed), and the use imitation firearm counts would attract a one year sentence. The trial judge also concluded that sentences on the robbery and kidnapping counts should be concurrent in each occurrence, but that the sentence on the imitation firearm counts should be consecutive.

[59] The trial judge also concluded that the sentences for the offences for each occurrence should be consecutive to each other. This conclusion invariably led to very high total sentences. For example, on this approach, the total sentence for Mr. Pathmanathan amounted to 26 1/2 years. Recognizing the problem that consecutive sentences led to, the trial judge applied the principle of totality and reduced the sentences accordingly. In Mr. Pathmanathan's case, the 26 1/2 year sentence was reduced to 16 years.

[60] In fashioning each of the ultimate sentences imposed, the trial judge also considered the principle of parity. She recognized that the sentences had to reflect the varying degrees of involvement of each of the appellants in this series of occurrences, both in relation to each other and in relation to others who had earlier pleaded guilty. Of the appellants, Mr. Pathmanathan was the most heavily involved. It would follow that Mr. Pathmanathan would receive the highest sentence.

[61] The appellants first submit that the trial judge erred in imposing the same sentence on each appellant with respect to each robbery/theft from occurrence to occurrence. They submit that this approach failed to distinguish between the varying roles that each of the appellants played in carrying out these robberies/thefts.

[62] I accept that, if one looks at the sentence starting point that the trial judge used, it would appear that there was a failure to distinguish between the levels of involvement of the various players. However, this isolated viewpoint fails to take into account the trial judge's recognition, and application, of the parity principle in arriving at the ultimate sentence. For example, Mr. Pathmanathan, who was the person most heavily involved in all of these occurrences, received a much higher sentence than did the others. This reflects the very different role that he played.

[63] That said, as I shall explain, I do find an error in the trial judge's analysis. It is an error that drove the sentences that she imposed across the board and thus contributed to the problem that the totality principle attempted to address. The particular error has to do with the comparison of these offences to home invasion robberies.

[64] In identifying this error, I am conscious of the fact that the trial judge was not provided with any authority that purported to establish a range of sentence for these types of offences in these circumstances. The trial judge was, therefore, very much dealing with a matter of first instance.

[65] On this point, the trial judge said that she agreed with Crown counsel "that it is appropriate to compare tractor trailer robberies and kidnappings to carjackings and home invasions". I do not agree. I appreciate that, because of the nature of their work, drivers of tractor trailers may be required to sleep in their vehicles. That is the nature of long-haul truck transport. However, com-paring that aspect of their employment to the nature of a person's intimate connection to their personal home space overstates any relationship that there may be between the two. It would also exaggerate the relative impact of the offence.

[66] In considering this issue, I am mindful of the fact that people like to believe that they should be safe in a variety of different locations: walking down a residential street, sitting in the back of a cab, staying in a hotel room, riding on a bus or train and in many other places. The fact is that people should be safe in all of those locations, but the unfortunate reality is that they are, too often, not. This is due in part to the fact that these places are easily accessible by other people. In contrast, private homes are special places. They are not easily accessible to others. Homes take on a special significance as a consequence of that physical reality, coupled with the mental state that accompanies it. Simply put, the sleeping cab of a truck cannot be properly analogized to the sanctity of a home.

[67] I agree that it was appropriate for the trial judge to take into account that the victims of these occurrences were vulnerable persons arising from the nature of their work. However, she overemphasized that vulnerability, in terms of sentencing, in drawing comparisons with sentences imposed in home invasion robberies. It was an error for the trial judge to do so and this error impacted the sentences that she imposed.

[68] In particular, this comparison led her to impose a five-year sentence on each of the offences of theft over $5,000. The circumstances surrounding these offences would not have warranted that high a sentence for those offences. Had the comparison not been drawn, a more moderate sentence would have been imposed, the total sentence would have been reduced, and the application of the totality principle would then have reduced the sentences further, certainly below those that the trial judge settled on.

(a) Srimoorthy Pathmanathan

[69] The error, to which I have just referred, impacted the sentences imposed on each of these accused persons. It thus falls to this court to "inquire into the fitness of the sentence and replace it with the sentence it considers appropriate": R. v. Lacasse, 2015 SCC 64, at para. 43.

[70] Admittedly, Mr. Pathmanathan was involved in all of these many occurrences. At the same time, the occurrences took place over a relatively short period of time. Further, Mr. Pathmanathan was a person with no criminal record and who expressed remorse for his actions. A sentence of 16 years fails to adequately reflect those salient mitigating factors.

[71] Further, in terms of parity, the trial judge found that Mr. Pathmanathan's role was "very much on par with" that of the ringleader. The ringleader had pleaded guilty five years earlier. He pleaded guilty, however, to only some of the occurrences, fewer than the ones in relation to which Mr. Pathmanathan was convicted. In addition to his guilty plea, the ringleader was going to be deported after he completed his sentence. This was another distinguishing feature from Mr. Pathmanathan. The ringleader received a sentence of seven years. The trial judge characterized this sentence as "extremely light".

[72] When one views the sentence imposed on Mr. Pathmanathan contrasted with the one imposed on the ringleader, in my view, it reveals a serious problem in terms of parity. I accept that the ringleader pleaded guilty to offences in a lesser number of occurrences, but I also observe that the facts relating to some of the other occurrences were read in as part of his sentencing. Further, his plea to lesser counts does not change the fact, acknowledged by the trial judge, that he was the orchestrating mind behind all of these occurrences.

[73] Further, the "discounts" that the ringleader received on his sentence because of his guilty plea, and because of the deportation factor, cannot, in my view, justify imposing on Mr. Pathmanathan, as the trial judge did, a sentence that is almost two and one-half times as great as that imposed on the ringleader.

[74] In the end result, in light of the mitigating factors that I have mentioned, and the principle of parity, an appropriate sentence for Mr. Pathmanathan would be 12 years (before credit for pre-sentence custody).

(b) Majurathan Baskaran

[75] Using the same approach that I set out above, the trial judge imposed a sentence of 19 years on Mr. Baskaran, which she reduced to 11 years applying the totality principle.

[76] I do not accept Mr. Baskaran's submissions that the level of his involvement in the offences was "minor". The trial judge considered all of the relevant factors in determining Mr. Baskaran's sentence. She noted that he had been convicted of a large number of offences. She also noted that he had a criminal record. At the same time, the trial judge was fully aware that Mr. Baskaran was a young man who had expressed sincere remorse for his actions.

[77] There is, however, a cascading effect to the error that I earlier identified in the trial judge's approach. Because I have reduced the sentence for Mr. Pathmanathan, who had a greater involvement in these occurrences than did any of the other appellants, parity requires that Mr. Baskaran's sentence be reduced. At the same time, that same principle suggests that Mr. Baskaran's sentence should be higher than that imposed on Mr. Kanthasamy (who did not appeal his sentence) of eight and one-half years. Mr. Kanthasamy was convicted of a lesser number of offences than was Mr. Baskaran.

[78] In the end result, I would reduce Mr. Baskaran's sentence to nine years (before credit for pre-sentence custody).

(c) Jananthan Kanagasivam

[79] Mr. Kanagasivam received the lowest sentence of the four appellants. He was convicted of offences relating to only two of the occurrences. The trial judge sentenced him to six years, which was reduced to four years and two months after the application of the totality principle.

[80] As noted by the trial judge, Mr. Kanagasivam was a young man with no criminal record. However, he was heavily involved in one of the kidnappings. He also participated in two separate occurrences that were almost four months apart. The nature of his conduct warranted a penitentiary term of imprisonment, even though this was a first offence for him.

[81] Again, however, because of the cascading effect that I mentioned, and to maintain parity with the other sentences, including those in relation to other offenders who pleaded guilty and who were similarly situated to Mr. Kanagasivam (and to which the trial judge made reference), I would reduce his sentence to three years (prior to credit for pre-sentence custody).

D. Conclusion

[82] I would dismiss the conviction appeals. I would grant leave to appeal sentence to Mr. Baskaran, Mr. Kanagasivam and Mr. Pathmanathan, allow their sentence appeals and reduce their sentences as set out above.

Appeals from conviction dismissed and from sentence allowed.