COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sandhu, 2020 ONCA 479

DATE: 20200722

DOCKET: C62953, C62960, C63063 & C63092

Watt, Pardu and Roberts JJ.A.

DOCKET: C62953

BETWEEN

Her Majesty the Queen

Respondent

and

Randeep Sandhu

Appellant

DOCKET: C62960

AND BETWEEN

Her Majesty the Queen

Respondent

and

Waseem Iqbal

Appellant

DOCKET: C63063

AND BETWEEN

Her Majesty the Queen

Respondent

and

Ashok Sharma

Appellant

DOCKET: C63092

AND BETWEEN

Her Majesty the Queen

Respondent

and

Dimitri Alexiou

Appellant

Faisal Mirza, for the appellant Randeep Sandhu (C62953)

Ravin Pillay, for the appellant Waseem Iqbal (C62960)

Lance Beechner, for the appellant Ashok Sharma (C63063)

Breana Vandebeek, for the appellant Dimitri Alexiou (C63092)

Jeremy Streeter, Marina Elias and Amanda Karen Webb, for the respondent

Heard: February 27, 2020

On appeal from the convictions entered on October 6, 2016 and the sentences imposed on December 16, 2016 by Justice J. David McCombs of the Superior Court of Justice.

By the Court:

[1] After a lengthy trial before a judge of the Superior Court of Justice sitting without a jury, the appellants were found guilty of trafficking and of possession for the purpose of trafficking in cocaine. The trial judge entered convictions on the counts of trafficking and interim stays on the preliminary offence of possession of cocaine for the purpose of trafficking. He then imposed sentences of between 6 and 12 years in the penitentiary.

[2] The appellants appeal their convictions. The appellants Sandhu and Alexiou also applied for leave to appeal sentence, but did not pursue those appeals in their factums or during oral argument.

[3] At the conclusion of oral argument, we dismissed the appeals. We said we would provide reasons for our conclusion. Those reasons follow.

The Background Facts

[4] As a result of information provided by a confidential informant (CI), members of the Toronto Police Service (TPS) began an investigation of the appellant Sandhu, designated “Project Odyssey”. The CI provided information to a member of TPS’s Intelligence Services Unit. The CI’s handler passed on this information, but not the identity of its source, to TPS’s Major Drug Squad.

[5] Project Odyssey involved about a dozen officers who conducted surveillance on a number of individuals, principally (but not exclusively) the appellants. The activities observed occurred at various places between the GTA and the Bluewater Bridge border crossing at Sarnia. Police observed and photographed several individuals and vehicles. Drivers switched vehicles. Meeting places included parking lots. Brief conversations took place. Exchanges occurred. Bags were purchased, loaded, put into the trunk of one vehicle, then transferred to another.

[6] These observations took place over about a week and resulted in the arrest of nine individuals, six of whom (including the four appellants) were tried jointly.

[7] On two separate days, seizures at three different locations yielded 71 kilograms of cocaine, 3 kilograms of methamphetamine, 345 grams of GHB and a small amount of marijuana.

[8] The principal evidence adduced at trial consisted of testimony from surveillance officers who described the observations they made and identified photographs they took during Project Odyssey.

[9] None of the appellants testified or called any evidence at trial.

[10] The issue for the trial judge to decide was whether the cumulative effect of the evidence and reasonable inferences available from that evidence established the elements of the offences charged with the required degree of certainty.

The Initial Observations

[11] During the first few days of Project Odyssey – in early May, 2013 – surveillance officers observed various activities among the appellants Sandhu, Iqbal and Sharma. Attendance at trucking facilities. Observations of tractor-trailer units. The use and interchange of different vehicles. Attendance at various places with papers in hand. Brief conversations.

The Activities of May 6

[12] On May 6, 2013, surveillance of Sandhu’s residence began in the early morning. At first, Sandhu was alone in his vehicle. Within an hour, he was joined at different times by two other men – one believed to be Thakur and the other unknown to investigators. They drove around to several places. Stopped at parking lots. At a Tim Hortons outlet. At gas stations. The unknown passenger made some telephone calls from phone booths. Shortly thereafter, Sandhu drove the vehicle to Iqbal’s house, where he parked outside with the lights off for about ten minutes. At some point thereafter, Thakur left the vehicle.

[13] Sandhu and his unknown passenger drove to Sarnia. En route, they stopped at a gas station where the passenger made two calls from a phone booth. After one change of drivers, they arrived at the Holiday Inn in Sarnia, a property that faces the inspection area of the Canada Customs yard adjacent to the Bluewater Bridge. Over the next two hours, the vehicle remained in Sarnia at different parking lots.

[14] Around 10:20 a.m., Sandhu and his passenger left Sarnia and drove eastbound towards Toronto. They changed drivers once before arriving at a Walmart in Milton. They entered the store. Minutes later they returned to their vehicle with three black carry-on suitcases. The suitcases appeared to be empty. The men put the suitcases into the back of their vehicle, then drove to a tire company where they parked. The driver of a tractor-trailer that had been observed at the Canada Customs yard in Sarnia approached the driver’s side of Sandhu’s vehicle. The vehicles left the tire company together and travelled in tandem to an area near a pipeline business.

[15] Surveillance officers saw what appeared to be feet and a portion of a black suitcase along the side of the truck. Sandhu and his passenger left the area in the same vehicle. The truck remained on the shoulder of the road.

[16] Sandhu’s vehicle proceeded to a different Walmart, this time in Mississauga. Sandhu went into an adjacent Canadian Tire store and emerged a few moments later along with Thakur and the appellant Iqbal. All three men boarded a different vehicle, a Jeep, which Thakur drove to the Walmart parking lot and parked directly beside Sandhu’s vehicle.

[17] The men exited the Jeep. The trunks of both vehicles were opened. Iqbal looked and then reached into the trunk of Sandhu’s vehicle. Sandhu took the three black suitcases – which now appeared weighted – out of the trunk of his vehicle and put them in the Jeep.

[18] Sandhu handed Thakur a cell phone. Iqbal shook Thakur’s hand. Sandhu and Iqbal got into Sandhu’s vehicle with the unknown man who had travelled to Sarnia that morning, and drove to another parking lot in the same complex. Thakur remained in the parking lot and appeared to be keeping watch on his own vehicle, which contained the suitcases but no occupants.

[19] About ten minutes later, another vehicle arrived and parked behind and beside Thakur’s vehicle. The vehicle had three occupants: the driver (a man unknown to police) and two passengers. One passenger was the appellant Alexiou, who had arrived earlier that morning on a flight from Montréal. The other was a man later identified as Gursharan Singh.

[20] Alexiou exited the vehicle and walked over to the Jeep. After opening its rear hatch and looking inside, Alexiou boarded the Jeep. Singh joined him. Thakur got into the vehicle in which Alexiou and Singh had arrived. Both vehicles left the Walmart lot and drove to a restaurant in the same shopping complex. Meanwhile, Iqbal arrived at the Walmart lot, in yet another vehicle, and parked next to Sandhu.

[21] Four men then entered the restaurant: Alexiou, Thakur, Singh and the driver of the car in which Alexiou and Singh had arrived. Alexiou soon came back out, followed by Singh and Thakur. After a brief conversation, they re-entered the restaurant.

[22] A few minutes later, all four men emerged. The unknown driver returned to the car in which he had arrived and drove off. Alexiou, Thakur and Singh boarded the Jeep. They drove back towards the Walmart lot and circled it before pulling up beside a taxi parked near a bank in the same complex.

[23] Alexiou removed the three black suitcases from their vehicle and put them in the trunk of the taxi. Alexiou got into the taxi, on the passenger’s side. The two vehicles then travelled in tandem towards downtown Toronto.

[24] As the taxi headed downtown, police officers boxed in the vehicle, arrested Alexiou and seized the three black suitcases he had put into the trunk. One bag bore a Walmart store label and price tag. Each bag contained 11 one-kilogram bricks of cocaine, for a total of 33 kilograms.

[25] When police searched Alexiou incident to his arrest, they found a key marked “OMNIA” and a white swipe card. These items were quickly linked to the King Edward Hotel and Residences, in particular, to Unit 437. A search of the apartment yielded 28 kilograms of cocaine, 3 kilograms of methamphetamine and 345 grams of GHB. Officers also located a debt list and three digital scales.

The Events of May 8

[26] Around noon two days later, police saw the same truck they had seen on May 6 crossing the Bluewater Bridge at Sarnia. After clearing Customs, the driver drove east until he reached the parking lot of Bayer Inc. on Belfield Road. The appellants Sandhu and Sharma were already there, waiting in Sharma’s vehicle.

[27] The truck driver got out, opened the hood of his truck and looked into the engine compartment. While he remained by the hood area, Iqbal pulled into the lot and parked next to Sandhu and Sharma. He was driving the same vehicle as on May 6.

[28] Sandhu left Sharma’s vehicle, walked to the passenger side of the truck and opened the door. He reached into the cab of the truck while the driver remained in the driver’s seat. Sandhu removed a bag that appeared to be weighted, stepped down from the truck and walked towards the vehicle in which he had arrived.

[29] When the trunk of the vehicle popped open, Sandhu put the bag in the trunk and got into the passenger side of the vehicle. This vehicle and that driven by Iqbal proceeded in tandem to the same shopping complex in which they had parked two days earlier. The drivers parked their vehicles side-by-side, remained there for a couple of minutes, then drove in tandem to a nearby restaurant. There, Sandhu and Sharma got into Iqbal’s vehicle and all three drove to Iqbal’s home, located a few minutes away. Iqbal left the others and entered his house.

[30] The appellants Sharma and Sandhu then drove back to the restaurant and went inside. Twenty minutes later, they came back outside and walked over to the vehicle in which they had originally driven to the parking lot at Bayer Inc. They stood around for another 20 minutes. During this time officers observed Sharma open the trunk and Sandhu reach inside, appearing to rummage through the contents of something. Sharma was seen looking into the trunk as he did so.

[31] Sharma and Sandhu returned to the Walmart parking lot. They drove up and down the rows of vehicles, eventually parking beside a vehicle driven by a man later identified as Chung Mok. The vehicles drove in tandem to an adjacent lot where Sandhu retrieved the bag he had removed from the truck earlier. The bag appeared heavy. Sandhu put it in the back seat of Mok’s vehicle. After moving the bag from the back seat to the trunk, Mok drove away.

[32] About two hours later, police arrested Mok as he left his home. A warranted search of his home revealed ten one-kilogram bricks of cocaine. One brick appeared to have been cut open, as if to test its contents. Nine of the bricks were found in a gym bag which looked similar to the bag handled by Sandhu and Mok earlier that day.

The Grounds of Appeal

[33] The appellants advance three grounds of appeal. They say the trial judge erred:

i. in the procedure followed and conclusion reached on an application by Sandhu for a determination that CI privilege did not apply to a particular individual, with the result that the Crown should have been required to call or produce that individual to give evidence at trial;

ii. in declining to stay the proceedings on the basis of alleged police misconduct; and

iii. in entering findings of guilt and convictions that were unreasonable.

Ground #1: The CI Issues

[34] Trial counsel for Sandhu (not counsel on appeal) raised this issue on the twelfth day of trial. The Crown had not yet completed its case. After discussion with counsel, the trial judge directed that the issue should await the close of the Crown’s case. He ruled that he would decide the issue before putting the defence to their election about calling evidence.

The Background Facts

[35] As noted, the catalyst for Project Odyssey was a tip, provided to TPS by a CI, that Sandhu was about to receive a large shipment of cocaine.

The Application at Trial

[36] Trial counsel for Sandhu sought a declaration that a person, whom Sandhu identified by name and who had been described throughout the surveillance evidence as “U/KM1”, was either a police agent or a material witness and thus was not entitled to CI privilege. This person’s evidence, Sandhu claimed, was essential to demonstrate his genuine belief that the contraband involved was not cocaine, but electronic equipment.

[37] The Crown invoked s. 37(1) of the Canada Evidence Act, R.S.C., 1985, c. C-5, to resist the disclosure of any information that might tend to identify the CI and sought summary dismissal of the application based on an affidavit from the CI’s handler at TPS’s Intelligence Services. The Crown contended there was no air of reality to Sandhu’s claim that “U/KM1” was the CI, much less that the CI privilege did not apply because the person was a police agent or met the innocence at stake exception.

[38] The trial judge rejected the Crown’s application for summary dismissal of Sandhu’s motion.

The Procedure Followed

[39] With the agreement of counsel, the trial judge conducted an in camera and ex parte hearing to determine whether the CI was a police agent. Before the hearing, trial counsel for Sandhu was permitted to file an application record, a book of authorities and written submissions outlining Sandhu’s position on the issues and the outcome of the hearing. Counsel provided the judge with a list of 77 questions to be put to the CI’s handler about the CI’s identity, relationship with the police, background, motives and potential role in the commission of the offences. The trial judge, during a hearing that lasted one and one-half days, conducted a “vigorous cross-examination” of the handler, including all areas suggested by trial counsel’s questions.

[40] Counsel for the appellants did not ask the trial judge:

i. to appoint amicus for the in camera, ex parte hearing;

ii. to prepare a summary or provide a redacted transcript of the hearing; or

iii. to permit oral submissions at the conclusion of the hearing on the issue of whether the CI was a police agent.

[41] Trial counsel for the Crown prepared a summary of the evidence adduced at the in camera, ex parte hearing. The trial judge, who described the Crown’s summary as accurate and complete, permitted counsel for Sandhu to review the summary prior to making her reply submissions on Sandhu’s innocence at stake motion. Counsel did not seek an expansion of the summary, nor make any meaningful reference to it in her submissions.

[42] The appellant Sandhu gave evidence on the hearing, held in open court, to determine whether the innocence at stake exception applied. Sandhu alleged that the CI, whom he named, was a material witness to the relevant events. This evidence could support Sandhu’s assertion that he believed the contents of the suitcases were merely electronics, not drugs.

The Reasons of the Trial Judge

[43] The trial judge was satisfied that CI privilege applied to the CI in this case. The CI was not a police agent or a material witness whose testimony was essential to demonstrate Sandhu’s innocence.

[44] The trial judge rejected Sandhu’s testimony on the innocence at stake/material witness motion. His evidence was simply not believable. Deficient in detail. Selective in recall. Inconsistent when confronted with contradictory evidence. And limited to the events of May 6, as “U/KM1” was not present for the May 8 trip to Sarnia.

The Arguments on Appeal

[45] As we understand it, Sandhu contends that the trial judge erred in several respects, not only in his conduct of the in camera, ex parte hearing, but also in his supervision of the in-court innocence at stake/material witness inquiry and his subsequent use of the evidence given there in determining whether Sandhu’s guilt had been proven beyond a reasonable doubt.[^1]

[46] Sandhu alleges several specific errors, the cumulative impact of which, he submits, requires a new trial. He says the trial judge erred in conducting the in camera, ex parte hearing to determine the CI’s status as a police agent by:

i. failing to appoint amicus or a special advocate to protect the appellants’ interests at the hearing;

ii. failing to prepare a judicial summary or a redacted transcript of the proceedings to facilitate informed argument by defence counsel on both applications made at trial; and

iii. failing to provide reasons sufficient to permit meaningful appellate review of his conclusion that the CI was not a police agent.

[47] In this court, Sandhu also seeks an order under s. 683(1)(a) of the Criminal Code that we prepare a judicial summary or redacted transcript of the in camera, ex parte hearing to facilitate argument of this ground of appeal.

[48] In connection with the open court innocence at stake/material witness hearing, Sandhu says the trial judge erred in three respects:

i. by permitting Crown counsel to cross-examine Sandhu at large, rather than confining cross-examination to issues directly relevant to the voir dire;

ii. by using evidence given on the voir dire to determine whether the Crown had proven the appellants’ guilt at trial; and

iii. by failing to provide reasons sufficient to permit meaningful appellate review of the ruling made at the conclusion of the innocence at stake/material witness voir dire.

Discussion

[49] This issue arose when trial counsel for Sandhu applied for a declaration that the CI was either a police agent or a material witness. When the trial Crown objected, it fell to the trial judge to determine whether the CI privilege barred disclosure of the CI’s identity.

[50] A hearing to determine the applicability of the CI privilege proceeds on the basis that the privilege does, in fact, apply: R. v. Durham Region Crime Stoppers Inc., 2017 SCC 45, [2017] 2 S.C.R. 157, at para. 35; R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389, at para. 44; and Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, at para. 47. No one outside the circle of privilege – the police, the Crown and the court – may access information over which the privilege is claimed until the presiding judge has decided that the privilege does not exist or that the single exception – innocence at stake – applies: Durham Regional, at para. 35; Basi, at paras. 43-44.

[51] At this first stage hearing, participation is limited to those within the circle of privilege. The hearing is conducted in camera and ex parte: Basi, at paras. 38, 44 and 53; Named Person, at paras. 41, 46 and 49.

[52] As we will explain, we are satisfied that the trial judge did not err in the procedure he used to conduct the first stage hearing.

[53] First, the procedure followed – an in camera, ex parte hearing, including only those within the circle of privilege – is consistent with the governing authorities. It was also the procedure proposed by trial counsel for Sandhu, the party asserting the inapplicability of the privilege. Provided an evidentiary basis exists upon which the applicability of the privilege may be determined, there is no per se rule that the CI must testify on the hearing.

[54] Second, prior to the hearing, the trial judge permitted defence counsel to file written submissions outlining their position and the result they sought.

[55] Third, also prior to the hearing, the trial judge invited and received questions formulated by defence counsel to be put to the CI handler. During the hearing, which lasted one and one-half days, the trial judge covered all areas contemplated in these questions through what he called a “vigorous cross-examination”. Among other subjects, the questions related to the CI’s identity, relationship with the police, background, motivation and potential role in the commission of the advances charged.

[56] Fourth, the procedure adopted to protect the interests of accused, despite their absence from the hearing, falls within and is best left to the discretion of the trial judge: Basi, at paras. 55, 58. Like other exercises of discretionary authority, the choices made by the trial judge are subject to substantial deference in this court.

[57] In this case, the appellants now say the trial judge erred in failing to appoint amicus or special advocate to represent their interests at the in camera, ex parte hearing and should have provided them with a judicial summary or redacted transcript of the evidence given.

[58] None of the measures now said to have fatally wounded the procedural fairness of the in camera, ex parte hearing were sought at trial. Not amicus. Not a special advocate. Not a judicial summary of the evidence adduced. Not a redacted transcript.

[59] The appellants have no unqualified right to any of these measures. Each is a matter for the trial judge who is in a better position than an appellate court confined to a lifeless transcript to decide how best to mitigate any potential unfairness arising from the in camera and ex parte nature of the proceedings: Basi, at para. 58.

[60] It is worth repetition that this is not a case in which the trial judge undertook no evaluative measures. Pre-hearing submissions about the scope of the inquiry and the conclusion that should be reached. Solicitation of questions for the CI handler. Cross-examination based on those questions. Access to a Crown summary described as accurate and complete prior to final argument.

[61] Absent a request for a judicial summary or redacted transcript at trial, combined with our conclusion that the failure to do so does not reflect error, we do not consider it in the interests of justice to compose such a summary or order production of a redacted transcript to facilitate argument of the appeal under s. 683(1)(a) of the Criminal Code.

[62] Once the trial judge determined that CI privilege applied, it fell to the appellant Sandhu to establish that the disclosure sought fell within the innocence at stake exception to the CI privilege rule.

[63] It is uncontroversial that the standard to be met to pierce CI privilege – the innocence at stake test – is onerous. Infringement should only be permitted where core “issues going to the guilt of the accused are involved and there is a risk of a wrongful conviction”: R. v. Brassington, 2018 SCC 37, [2018] 2 S.C.R. 617, at para. 36; R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, at para. 47.

[64] To engage the innocence at stake exception, an accused must establish that the privileged information is not available from any other source and that there is no other way for them to raise a reasonable doubt about their guilt: Brassington, at para. 37; Named Person, at para. 27. The accused must furnish a solid evidentiary basis; speculation will not do: Named Person, at para. 27; R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, at para. 34; and R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281, at para. 21.

[65] The CI privilege rule does not permit an exception for the right to make full answer and defence, nor does it permit any balancing of interests: Named Person, at paras. 28, 49; Leipert, at para. 12; Barros, at para. 35; and Durham Regional, at paras. 14-15.

[66] In this case, the appellant Sandhu testified in support of his application to invoke the innocence at stake exception. The trial judge, for cogent reasons, did not believe him. Even if believed, it is debatable whether Sandhu’s testimony would have warranted breach of the privilege.

[67] Crown counsel was entitled to cross-examine Sandhu on the voir dire, to challenge his credibility and the reliability of his evidence. Trial counsel for Sandhu acknowledged this much and made no complaint about the fairness or scope of the Crown’s cross-examination of her client. Nor do we.

[68] Further, we cannot conclude that the trial judge relied on any evidence given on the voir dire in making his findings of guilt at the conclusion of the trial. As the application was proceeding, he made it clear that the evidence given by Sandhu could not and would not be available for consideration on the trial proper.

Ground #2: Failure to Stay Proceedings for Police Misconduct

[69] The appellant Alexiou reinvigorates an argument he advanced at trial. He sought a stay of proceedings based on alleged police misconduct. Perjury. Fabrication of notes. Collusion and testimonial corrections. Improper note-taking procedures.

[70] Several reasons persuaded us that this ground of appeal was unavailing.

[71] First, the nature of the decision under review.

[72] This application was brought at trial. It required the trial judge to make findings of fact about certain events. To do so, it was necessary for the trial judge to make findings about the credibility of various police witnesses and the reliability of their evidence on these and related issues. As an ear and eye witness to their testimony, he did so. Those findings were open to him. We are unable to discern any palpable or overriding error or any material misapprehension of evidence in those findings. Nor are they unreasonable. They are subject to significant deference in this court: R. v. Donnelly, 2016 ONCA 988, at para. 44.

[73] Second, the remedy sought.

[74] A stay of proceedings is the most drastic remedy a criminal court can order. It permanently halts a prosecution: R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 53; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 30. Nonetheless, there are rare occasions – the “clearest of cases” – where a stay of proceedings for an abuse of process will be warranted. These cases generally fall into two categories:

i. where state conduct compromises the fairness of the trial; and

ii. where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process.

See Babos, at para. 31; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at paras. 68, 73.

[75] For both categories, the test for whether a stay of proceedings is warranted consists of three requirements:

i. prejudice to the accused’s right to a fair trial or to the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial or its outcome;

ii. no alternative remedy capable of redressing prejudice; and

iii. where uncertainty remains after the first two steps have been taken, whether the balance of interests in favour of a stay, such as denouncing misconduct and preserving the integrity of the justice system, outweighs the interest of society and having a final determination on the merits.

See Babos, at para. 32; Regan, at paras. 54, 57.

[76] Alexiou’s abuse of process claim at trial was focused on allegations of state misconduct, specifically by TPS officers. Based on the evidence before him, the trial judge made certain findings of fact about the police officers’ conduct. These findings led the trial judge to conclude that continuing the proceedings would not cause prejudice to any accused’s right to a fair trial, nor to the integrity of the justice system.

[77] We see no reason to interfere with this conclusion. No misdirection in law. No reviewable error of fact. To the contrary, the judge’s factual findings were amply supported by the record. His ultimate conclusion flowed inevitably from these findings.

[78] Consequently, this ground of appeal fails.

Ground #3: Unreasonable Verdict

[79] The final ground of appeal alleges that the findings of guilt entered at trial were unreasonable.

[80] We do not agree.

[81] A verdict or a finding of guilt may be unreasonable in either or both of two ways:

i. the verdict may be one that no properly instructed jury or trier of fact, acting judicially, could reasonably have rendered; or

ii. the verdict represents inferences drawn or findings of fact made that are plainly contradicted by evidence relied upon by the judge for that purpose, or are demonstrably incompatible with evidence not otherwise contradicted or rejected by the trial judge.

See R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 9.

[82] The evidence in this case was entirely circumstantial. The task for the trial judge was to consider the cumulative effect of the evidence as a whole to determine whether it met the requisite standard of proof. The trial judge was not assigned to examine each piece of evidence separately and in isolation, and then to cast it aside if the ultimate inference sought did not follow from each individual item alone. Frequently, individual items of evidence, examined separately, are of limited probative value. But all the evidence must be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that must be adjudged against the standard of proof required to sustain a conviction: R. v. Button, 2019 ONCA 1024, at para. 9.

[83] This case, reduced to its essence, turned on the inferences the trial judge would draw from the conduct of the various appellants as it was observed, noted and, in many cases, photographed by the surveillance officers. It was plain and obvious that cocaine was entering Ontario by truck at Sarnia. The truck was driven towards Toronto, the cocaine removed from the truck and put in different vehicles for transport to other locations. It beggars belief that the appellants knew not what they were about. The irresistible inferences available were not the subject of any contrary evidence. None of the appellants testified.

[84] This ground of appeal fails.

Disposition

[85] As we explained at the conclusion of oral argument, the appeals from conviction are dismissed. The sentence appeals of Sandhu and Alexiou, which were not pursued at the hearing, are dismissed as abandoned. All victim surcharges imposed at trial are set aside.

Released: “DW” July 22, 2020

“David Watt J.A.”

“G.Pardu J.A.”

“L.B. Roberts J.A.”

[^1]: The other appellants adopt Sandhu’s position on this ground of appeal, to the extent it applies to their cases.