His Majesty the King v. Ali Lalji, 2023 ONCJ 45

DATE: January 27, 2023 ONTARIO COURT OF JUSTICE Old City Hall - Toronto

BETWEEN: HIS MAJESTY THE KING — AND — ALI LALJI

For the Crown: F.A. Alibhai and K. Yeh For the Defendant: R. Pillay and D. Paradkar Heard: January 22, February 17, August 11, 2021; May 9-13 and 18, 2022; November 1, 2022

REASONS for JUDGMENT

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] Mr. Lalji is charged in a single count information with conspiracy to import cocaine into Australia between November 1 and December 31, 2015. The information alleges that he and Yaroslav Pastukhov conspired with each other and/or other unnamed persons.

[2] On December 22, 2015, Robert Wang, Porscha Wade, Kutiba Senusi, Jordan Gardner and Nathaniel Carty arrived in Australia with approximately 40 kilograms of cocaine secreted in suitcases they were given by unknown third parties in Las Vegas.

[3] The five were arrested by Australian authorities and the cellular telephones of all five individuals were seized by the Australian Border Force and ultimately provided to Canadian authorities.

[4] These devices were examined by the RCMP, revealing what is alleged by the Crown to be evidence demonstrating that Mr. Lalji and Mr. Pastukhov, in league with unidentified people in Las Vegas, were responsible for recruiting Robert Wang and Porscha Wade to import cocaine into Australia on December 22, 2015.

[5] Mr. Pastukhov pleaded guilty to this information in September of 2019. He was called as a witness by the Crown.

[6] The defence called no evidence.

B. THE APPLICATION PURSUANT TO S.36 OF THE MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS ACT (MLACMA)

[7] Well before the calling of evidence the Crown served notice of its intention to rely on s. 36 of the Mutual Legal Assistance in Criminal Matters Act (MLACMA) which provides:

36 (1) In a proceeding with respect to which Parliament has jurisdiction, a record or a copy of the record and any affidavit, certificate or other statement pertaining to the record made by a person who has custody or knowledge of the record, sent to the Minister by a state or entity in accordance with a Canadian request, is not inadmissible in evidence by reason only that a statement contained in the record, copy, affidavit, certificate or other statement is hearsay or a statement of opinion.

(2) For the purpose of determining the probative value of a record or a copy of a record admitted in evidence under this Act, the trier of fact may examine the record or copy, receive evidence orally or by affidavit, or by a certificate or other statement pertaining to the record in which a person attests that the certificate or statement is made in conformity with the laws that apply to a state or entity, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the state or entity, including evidence as to the circumstances in which the data contained in the record or copy was written, stored or reproduced, and draw any reasonable inference from the form or content of the record or copy.

[8] The Crown’s Notice of Intention listed 91 separate documents. The categories of evidence were broadly cast to include “notes, will says, affidavit, transcripts, certificates, exhibit reports, reports, spreadsheets and all associated photographs, audio files, video files as records or copies of records received from Australia pursuant to a Mutual Legal Assistance Request.” Mr. Lalji brought an application for a ruling that s.36 was unconstitutional.

[9] On February 27, 2021, after hearing argument, I emailed the parties as follows:

I rule that section 36 of the Mutual Legal Assistance in Criminal Matters Act (MLACMA) is unconstitutional on the basis that it violates sections 7 and 12 of the Canadian Charter of Rights and Freedoms. It is of no force and effect in this trial. I shall issue reasons in due course.

[10] I ruled as such for precisely the reasons expressed by the B.C. Court of Appeal in R. v. Rajaratnam, 2019 BCCA 209 at paras. 128-131, and by Wells J. in R. v. Raja, 2020 ONCJ 250 at paras. 32-36. The Court in Rajaratnam put it this way:

It is, therefore, clear the Crown cannot tender hearsay evidence at a criminal trial under a common law exception unless that exception is consonant with the principled approach. By parity of reasoning, the Crown cannot rely on a statutory provision to secure the admission of hearsay evidence at a criminal trial unless: (a) the provision is consonant with the principled approach; or (b) when not consonant with that approach, the provision can be justified under s. 1 of the Charter.

In this case, the Crown does not seek to justify s. 36 of the MLACMA under s. 1 of the Charter. Rather, the Crown argues s. 36 does not infringe the Charter because trial judges have the residual discretion to exclude admissible hearsay when its prejudicial effects exceeds its probative value.

This argument ignores the fact that the issue of whether to exclude hearsay evidence under the residual discretion only arises after the evidence has been found to be otherwise admissible: Khelawon at para. 49; Bradshaw at para. 24. Necessity and reliability are the touchstones of any application by the Crown to tender hearsay evidence at a criminal trial; the Crown bears the burden of establishing those criteria are met. However, under s. 36, those criteria have no application. To defeat an accused's objection to the admission of a foreign document containing hearsay tendered under s. 36 the Crown need only establish the document was obtained in response to a mutual legal assistance request. The burden then shifts to the accused to establish the prejudicial effects of the evidence exceeds its probative value.

We disagree with the Crown that s. 36 does no more than "relax ... the rigid grip of Canada's hearsay law on the admissibility of foreign evidence." To the contrary, s. 36 fundamentally alters the rules governing the admissibility of hearsay in a manner that is inconsistent with an accused's right to a fair trial.

[11] The Crown subsequently brought an application to have their Australian witnesses testify remotely, which was granted.

C. THE LAW OF CONSPIRACY AND ITS APPLICATION TO THIS CASE

[12] The offence of conspiracy is complete upon the agreement of two or more persons to commit an offence. No overt act is required. The accused need not be aware of all the details of the conspiracy but must know the general nature of the criminal scheme and intend to adhere to it. The existence of an agreement may be inferred from knowledge of, and participation in, a crime. R. v. Cotroni; U.S.A. v. Dynar; R. v. Longworth; R. v. Alexander.

[13] Where the Crown specifies a particular purpose of the alleged agreement in the charging document, the Crown bears the burden of proving beyond a reasonable doubt that the accused had knowledge of the alleged purpose. In the case at bar, even if the Crown succeeds in proving that Mr. Lalji agreed with Mr. Pastukhov and/or others to import contraband into Australia, the prosecution will nonetheless fail unless the Crown proves beyond a reasonable doubt that Mr. Lalji knew that the importation of cocaine was the goal. R. v. Saunders; R. v. Clyke[^1].

[14] This knowledge may be proved through evidence of direct knowledge or through proof of wilful blindness. R. v. Briscoe, 2010 SCC 13 at para. 21; Sansregret v. The Queen; R. v. Cedeno, 2010 QCCA 2290; R. v. Henareh, 2014 ONSC 2588.

D. THE CO-CONSPIRATOR’S EXCEPTION TO THE HEARSAY RULE

[15] Where the trier of fact is convinced beyond a reasonable doubt of the existence of a particular conspiracy and the evidence admissible against the accused proves on a balance of probability that the accused is a member of that conspiracy, any acts and declarations of any member of the conspiracy, made in furtherance of the conspiracy, are admissible against the accused. Koufis v. The King; R. v. Bogiatzis, 2010 ONCA 902; R. v. Carter.

E. FINDINGS OF FACT

(a) The admitted facts

[16] The five importers sought, among them, to import into Australia approximately 40 kilos of cocaine with a street value of approximately $22 million.

[17] Continuity of the cell phones seized by Australian authorities from the five importers was conceded as was the fact that Mr. Lalji was the subscriber to phone number 647-500-7786.

(b) The Cellebrite data

[18] Thomas Dueck was, at the time of his dealings with this case, a forensic computer analyst for the RCMP. He and his colleagues extracted all the data from the cell phones, including Robert Wang’s, and Porscha Wade’s. They used a software program called Cellebrite, which is an Israeli program used by the RCMP and other law enforcement agencies to extract data from cell phones. Just how Cellebrite works is a closely guarded trade secret and though Mr. Dueck could not explain how Cellebrite works, he testified that he and the RCMP, as well as many other police agencies throughout the world have been using it for many years and that it is known as the best such program available. He has never seen it “create data that isn’t there”.

[19] Applying the law as set out in R. v. C.B., 2019 ONCA 380, at paras. 66-72 and R. v. Hamilton, 2011 ONCA 399, at paras. 259, 268 and 282, I am satisfied as to the reliability and authenticity of the Cellebrite extractions. Cellebrite has a history of reliability. Most of the data extracted on Wang’s phone is identical to data found on Wade’s phone and the phones of the other importers. The data matches other independent evidence, such as the details of the trip to Australia through Las Vegas, the dates of critical events, the identity of the importers, Lalji’s phone number and some of Pastukhov’s testimony that I accept (see below).

[20] One step employed by the RCMP to assist in authenticating any Cellebrite extraction is to compare the results of the extraction with the content on the phone, as revealed by a manual/visual examination of the device itself. This step is referred to as verification.

[21] Despite the fact that Mr. Dueck was not able to perform as extensive a verification of the Cellebrite extraction as he would have liked, I am satisfied that what verification he did perform, along with the independent corroboration referred to above support a finding of authenticity.

[22] The Cellebrite extraction of the phones, especially Mr. Wang’s phone, revealed a wealth of data describing the conspiracy to import cocaine into Australia as well as a wealth of information implicating Mr. Lalji as a member of the conspiracy. This data includes email correspondence, text messages, phone records and two tape recorded meetings between Mr. Pastukhov, Mr. Wang, and other unidentified parties.

[23] In particular, the extraction made clear the extent of Mr. Lalji’s role in the conspiracy. It proves that:

a. Lalji attempted on December 2, 2015 to convince Robert Wang to proceed with the trip to Australia by having “an opportunity to sweeten this deal for you”; b. Lalji paid for Robert Wang and Porscha Wade’s airline tickets departing on December 17, 2017; c. Lalji was an active participant in the Whatsapp chat group that oversaw the trip and ensured that Robert Wang and Porscha Wade reached their destination safely. He kept abreast of their trip to the Pearson International Airport and directed Wang to let Pastukhov and himself know when they had checked in; d. Lalji was privy to the steps taken to securely receive the luggage in Las Vegas including the use of a serial number for a $1 bill; and e. Lalji admonished Porscha Wade and Robert Wang to clean their phones.

[24] Direct evidence against Mr. Lalji found in the Cellebrite extraction provides ample support for the conclusion that the Crown has proved, at least on a balance of probabilities, that Mr. Lalji was a member of the conspiracy alleged and proven, thus opening the door to the hearsay exception set out above.

[25] Indeed, in my opinion, Mr. Lalji’s membership in the conspiracy is made out beyond a reasonable doubt on the non-hearsay evidence against him. If I am wrong about this, the acts and declarations of Pastukhov and the other co-conspirators in furtherance of the conspiracy further solidify the proof of Mr. Lalji’s membership and further serve to make clear the significant extent of his role.

(c) The testimony of Mr. Pastukhov

[26] Mr. Pastukhov was an extremely reluctant witness. When being questioned by the Crown he professed a lack of memory that was not credible. When responding to defence counsel’s extremely leading questions, he was more than willing to accept almost every proposition put to him. His testimony was also rife with inconsistencies. In one breath he said that he had indeed conspired with Mr. Lalji to import cocaine into Australia, and in another he denied it, and then professed not to recall.

[27] I thus reject the bulk of his evidence. I only accept portions of his evidence where that evidence is independently corroborated.

[28] Mr. Pastukhov’s evidence adds little to the extraction evidence, but I do make the following findings arising out of his testimony:

(a) He knew that the object of the conspiracy was the importation of cocaine. His admitted plea of guilty constitutes an admission to this effect; (b) He is the person who convened, hosted, and led the discussions that were recorded and found on Mr. Wang’s phone. Mr. Wang was a participant in these discussions, as well as other possible recruits; (c) Mr. Pastukhov and Mr. Lalji were co-workers and friends at the material time.

(d) The recorded conversations

[29] The recordings found on Mr. Wang’s phone offer significant insights into the nature of the conspiracy and Mr. Lalji’s role. First, I find that the declarations of Mr. Pastukhov and Mr. Wang in those recordings are in furtherance of the conspiracy and I find, as a result of the match between the dates and delays referred to by the speakers and the extraction evidence that these meetings took place very shortly before the December 2015 trip in question in this trial.

(e) The details of the conspiracy and Mr. Lalji’s role in it

[30] I find on all the evidence that Mr. Lalji was, in effect, Mr. Pastukhov’s deputy in Canada. Their job was to recruit friends willing to fly to Las Vegas, meet other co-conspirators there, swap their suitcases for suitcases filled with cocaine and then travel on to Australia. These recruits were paid $10,000 each, over and above the all-expenses-paid trip to Australia.

[31] According to the discussion between Pastukhov and the recruits just prior to the December 2015 trip, Mr. Lalji and Mr. Pastukhov had made the trip themselves on a prior occasion.

[32] As referred to above, the evidence demonstrates that Mr. Lalji was entrusted by Pastukhov with important oversight responsibilities in the conspiracy. Mr. Lalji was in a position to convince the Las Vegas members to increase Mr. Wang’s remuneration. He had a close enough relationship with the Las Vegas crew such that he felt comfortable spending his own money on Wang and Wade’s airline tickets, knowing he would be re-imbursed.

(f) Did Mr. Lalji know that the object of the conspiracy was the importation of cocaine?

[33] As referred to above, the law stipulates that the Crown must not only prove the existence of the alleged conspiracy and that Mr. Lalji was a member of it. Because of the precise wording of the charging information, the Crown must also prove beyond a reasonable doubt that Mr. Lalji knew the substance to be imported was indeed cocaine. Supra at para. 13.

[34] This knowledge need not be actual knowledge. Proof of wilful blindness will suffice. The trier of fact need only be convinced beyond a reasonable doubt of knowledge. He need not be convinced as to whether it was actual knowledge or wilful blindness. If he is satisfied beyond a reasonable doubt that it is either one or the other, proof of knowledge is achieved. The Crown must prove all essential elements, such as knowledge, beyond a reasonable doubt, but need not prove the particular route to such a finding beyond a reasonable doubt. R. v. Pickton, 2010 SCC 32; R. v. Thatcher.

[35] The state of mind that is wilful blindness is most recently described by the Supreme Court in R. v. Briscoe, 2010 SCC 13 at paras. 21-24 as follows:

Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. See Sansregret v. The Queen, and R. v. Jorgensen at para. 103. As Sopinka J. succinctly put it in Jorgensen (at para. 103), "[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?"

Courts and commentators have consistently emphasized that wilful blindness is distinct from recklessness. The emphasis bears repeating. As the Court explained in Sansregret (at p. 584):

... while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry. [Emphasis added.]

It is important to keep the concepts of recklessness and wilful blindness separate. Glanville Williams explains the key restriction on the doctrine:

The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law. It is, at the same time, an unstable rule, because judges are apt to forget its very limited scope. A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice. Any wider definition would make the doctrine of wilful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge. [Emphasis added.]

(Criminal Law: The General Part (2nd ed. 1961), at p. 159 (cited in Sansregret at p. 586.)

Professor Don Stuart makes the useful observation that the expression "deliberate ignorance" seems more descriptive than "wilful blindness", as it connotes "an actual process of suppressing a suspicion". Properly understood in this way, "the concept of wilful blindness is of narrow scope and involves no departure from the subjective focus on the workings of the accused's mind" (Canadian Criminal Law: A Treatise (5th ed. 2007), at p. 241). While a failure to inquire may be evidence of recklessness or criminal negligence, as for example, where a failure to inquire is a marked departure from the conduct expected of a reasonable person, wilful blindness is not simply a failure to inquire but, to repeat Professor Stuart's words, "deliberate ignorance". (emphasis added)

[36] I am convinced beyond a reasonable doubt that Mr. Lalji either actually knew that the suitcases would contain cocaine or was wilfully blind to that fact.

[37] Either Mr. Lalji enquired of Mr. Pastukhov and his Las Vegas cohorts or he didn’t. It must be one or the other. I am convinced that if he did ask, he would have been told that the suitcases would contain cocaine. Mr. Pastukhov knew it was cocaine as did the Las Vegas members of the conspiracy who were supplying the cocaine to the recruits. Mr. Lalji was highly placed in the conspiracy and was relatively close to Mr. Pastukhov. Had Mr. Lalji asked any of them I find they would have informed him.

[38] If, on the other hand, he did not ask, I find that he chose not to do so purposely to avoid actual knowledge. He would certainly have suspected that cocaine could well have been the contraband in question. Any reasonable person would. His suspicion need not have been confined to cocaine. One can be suspicious of more than one thing at once. R. v. MacKenzie, 2013 SCC 50; R. v. Chehil, 2013 SCC 49; R. v. Kang-Brown, 2008 SCC 18.

[39] I have no doubt that if Mr. Lalji chose not to enquire, his failure to enquire was fueled by an intention to remain ignorant.

E. CONCLUSION

[40] In the result I find Mr. Lalji guilty as charged.

Released on January 27, 2023

Justice Russell Silverstein

Footnotes

[^1]: In my opinion, the Court of Appeal in Clyke goes too far in its interpretation of Saunders. Saunders involved two distinct conspiracies, one involving cocaine and one involving heroin (the charged conspiracy). Moreover, the following dicta of McLachlin J. in Saunders, emphasizing the need for particulars and notice to an accused, in my respectful view, do not support the ruling in Clyke:

“The purpose of specifying the narcotic in a case such as this is to identify the transaction which is the basis of the alleged conspiracy. The fundamental requirement that the charge must provide sufficient particulars to reasonably permit the accused to identify the specific transaction may be met in a variety of ways. Where the Crown has evidence of the particular drug involved, this may properly be required to be provided as a particular identifying the transaction. But where the Crown is uncertain as to the particular drug which was the subject of the conspiracy, it may properly decline to give particulars of the drug. The charge may nevertheless stand, provided that it sufficiently clearly identifies the alleged conspiracy in some other way. There must be a new trial in this case, not because a conviction for conspiracy to import a narcotic cannot be supported without proof of the type of narcotic involved, but rather because the Crown chose in this case to particularize the drug involved and failed to prove the conspiracy thus particularized.” *Saunders*, supra at para. 6. (emphasis added)

I apply the rule in *Clyke* because I am bound by *stare decisis* to follow our Court of Appeal’s interpretation of *Saunders*.