Court File and Parties
Court File No.: Region of Durham: 998 10 25055
Date: 2012-10-12
Ontario Court of Justice
Between:
Her Majesty the Queen
— And —
Rajitha Kanagarajah, Ramanan Kenegarajah, Anantha Neeranjan, Hariharan Nesarajah, and Kuhen Neshan
Before: Justice J. De Filippis
Heard on: May 10, 12, 17, June 7, 9, July 25, October 14, November 1, 7-9, 18, 25, 28-30, December 1, 5-9, 2011; March 2, 9, 16, 22, July 25, 26, 2012
Reasons for Judgment released on: October 12, 2012
Counsel:
- Mr. M. Flagg for the Crown
- Ms J. Rekai for the accused Rajitha Kanagarajah
- Mr. R. Pillay for the accused Ramanan Kenegarajah
- Mr. D. Basile for the accused Anantha Neeranjan
- Mr. D. Santoro for the accused Hariharan Nesarajah
- Mr. B. Olmstead for the accused Kuhen Neshan
De Filippis, J.:
1. Introduction
[1] The five defendants were tried on an Information containing over 100 fraud related counts in a hearing that lasted 28 days over a period of about 18 months. The Crown called 47 witnesses and tendered 134 exhibits, including six books of documents. The defendants elected not to call evidence. During the trial I ruled on the admissibility of certain records contained in the six books of documents. I entertained and dismissed an application for bail brought by the two defendants who are in custody. I also conducted a voir dire and found that three police officers had breached my order not to discuss their evidence with each other.
[2] It will be helpful to begin by setting out the relationship among the defendants, a summary of the charges, and the position of the parties. Ramanan Kenegarajah (whose surname once was Kanagarajah) is the brother of Rajitha Kanagarajah. The latter is married to Hariharan Nesarajah. Kuhen Neshan is married to Anantha Neeranjan.
[3] There are several counts that implicate some or all defendants in offences over many years: Count 1 - all defendants, between 2001 and 2010- fraud on the public, over $5,000.00, Count 2 - all defendants, during this same nine year period - conspiracy to commit fraud through the use of fraudulent credit cards; Counts 3 to 10 - Neshan and Kenegarajah, during this same nine year period - fraud with respect to eight specific financial institutions; Count 64 - Neshan and Kenegarajah, during this same nine year period - Personation; Count 92 - all defendants, between 1997 and 2010 - Money Laundering; Count 54 - all defendants, between 2005 and 2010 - being a member of a criminal organization; Count 94 - Neshan, Kenegarajah, and Neeranjan, between 2009 and 2010 - fraud on Avis (car rental); Count 95- Neshan and Kenegarajah, during this same two year period - unlawful possession of a credit card in the name of Decruz (from Sears).
[4] There are numerous counts that allege offences on March 3, 2010: Counts 11 to 53 - Neshan and Kenegarajah - possession of 43 specific credit cards obtained by the commission of an offence; Count 55 - Neshan, Kenegarajah, and Neeranjan - possession of property by crime (furniture, electronics, and appliances); Count 56 - Neshan and Kenegarajah - possession of property by crime (furniture, electronics, and appliances); Count 57 - Neshan, Kenegarajah, and Neeranjan - possession of property by crime (money); Count 58 - Neshan and Kenegarajah - possession of property by crime (money); Count 61- Neshan and Kenegarajah - possession of identification information for use as fraud; Count 65 – Balan, Neshan and Kenegarajah – unlawful possession of possession credit card data; Counts 66 to 72 – all defendants - fraud over $5,000.00 on seven institutions. Counts 73-91: Neshan and Kenegarajah - possession of credit card data with respect to nine persons and various institutions.
[5] In addition, Nesarajah is charged that on February 3, 2010, he failed to comply with a court order (count 93) and obstructed a police officer, by using post office boxes as his home addresses to prevent identification. Balan, Neshan, Neeranjan, and Kanagarajah are charged with similarly obstructing justice on March 3, 2010. Neshan is also charged with obstructing police on February 24, 2010.
[6] The Crown submits that the five co-defendants, as members of an extended family group, together with Jeya Balan engaged in fraudulent activity over a decade that resulted in the loss of hundreds of thousands of dollars. It is alleged that Neshan and Kenegarajah were the leaders and that all defendants contributed to the enterprise and benefited by it.
[7] Neshan and Kenegarajah put the Crown to the strict proof of the counts related to the specific offences in 2009 to 2010 but make no further submissions. They, and the other defendants, object that the Crown made this "simple" case complicated by reaching back to 2001 with related conspiracy counts. They argue that there is no evidence of a broad conspiracy or criminal organization. In any event, Neshan and Kenegarajah submit that the charges are compromised because of evidence of multiple conspiracies and jurisdictional problems.
[8] Nesarajah argues that there is no proof he is part of a conspiracy with Neshan and Kenegarajah. Moreover, he claims that given the evidence implicating those co-accused, as well as their access to his home, there must be a reasonable doubt about his guilt on all charges, notwithstanding the evidence seized from his apartment. In any event, he seeks to exclude that evidence because the police violated his Charter rights. Nesarajah's wife, Kanagarajah, joins her husband in the Charter motion and pleads ignorance of the items found in her home and the activities of all do-accused. Neeranjan, the wife of Neshan, submits that there is no proof she had knowledge of her the activities of the co-accused, including her husband.
[9] It is important to point out at the outset that, for the most part, the credibility and reliability of the evidence tendered by the Crown is not in issue. This applies, in particular, to the voluminous documentary evidence and the "real" evidence seized upon arrests or pursuant to search warrants. Defence counsel unsuccessfully challenged the admissibility of the documents but otherwise rarely question them. The six books of documents filed as exhibits at this trial contain the invoices, receipts, credit card statements, home purchase agreements, vehicle leases, tax statements, letters, and other records that will be reference in the summary of evidence below. Similarly, apart from the credibility of officers involved in the breach of the court order, Defence counsel did not seriously or successfully challenge most of the witnesses called by the Crown. Consequently, this is not a case in which the quality of the evidence is a significant factor; instead, the issues to be decided concern inferences to be drawn from that evidence and the application of established legal principles, including Charter challenges. Accordingly, in what follows, I have not considered it necessary to attributed all the evidence to particular witnesses and documents.
2. The Case for the Prosecution
2.1. Initial Suspicions About "Bust Out" Frauds: 2001
[10] In November 2001, Rick Neals, then the Manager of Security for American Express discovered two credit card accounts with high balances that had recent address changes made to them and for which the balances owed had not been paid. It was determined that these accounts represented "bust out" frauds. The losses were $4,463.00 and $18,857.61 respectively.
[11] A "bust out" fraud typically involves the following: An account and a credit profile is created with a low credit limit. In the short term, the cardholder makes small purchases and small payments, followed eventually by large purchases and cash advances. The "cardholder," who was either a fictitious person or a real individual whose personal information had been stolen, or alternatively the financial institution, would be left with a large unpaid balance and no recourse to collect the debt. Collection efforts are rendered pointless because the "cardholder's" address was invariably a post office box, which itself had been rented in one of the fictitious names.
[12] Neals testified that he spoke to two employees in the corporate division who he believed could have tampered with the accounts; Kugan Neshan and Kelly Natola. Natola reported to him, and testified at trial, that she had no knowledge of the events in question and explained how the password for her access to the Card Member Inquiry File could have been misappropriated: She had previously attended a two-week training course with about fifteen other employees. One of them, Neshan, had distributed a document he created so that everyone could use it to record their passwords and identification numbers. Natola stated that she had no idea that her password and identification had been used to access the delinquent accounts. Neals stated that he accepted this explanation because on two occasions when the compromised accounts had been viewed, Natola had not been at work (the accounts cannot be accessed off-site).
[13] Neals testified that he investigated the identification number and password belonging to Neshan and identified 21 credit card accounts that had been accessed by him. Fourteen of these accounts resulted in unpaid balances that totalled $236,460.08. One of them (3733 113871 21007) had been used to purchase three airline tickets for international travel at a cost of $17,975.02. Neshan's name was on one of the tickets and the other two were for his spouse, Anantha Neeranjan and their child. All 21 cards had been sent to one of five Toronto addresses: 15521-265 Port Union Road ; 219-2671A Eglinton Avenue East ; 554-230 Markham Road ; 21 Rockport Drive and 3950 Lawrence Avenue East.
[14] Neals reported his findings to police. On December 21, 2001, a search warrant was executed at 21 Rockport Drive. The door to this home was opened by a woman who identified herself with a valid Ontario Driver's Licence as Rajitha Kanagarajah (the wife of Nesarajah and sister of Kenegarajah). A new Mercedes Benz was parked at the house. The motor vehicle had been leased by the Rajitha Kanagarajah with one of the 21 suspicious accounts. Among the items seized at the home was gold and silver Jewellery, a rolex watch, gift certificates from various retailers totalling $2,641.65, identification in the name of Kushen and Neeranjan, and financial records pertaining to several bank accounts that contained over $200,000.00 in cash or Guanteed Income Certificates.
[15] The police made inquiries about Neshan in connection with the execution of the search warrant. Several weeks later, a man purporting to be Neshan turned himself in at 41 Division of the Toronto Police Service. It was soon learned that his true identity was Kanagaramanan Kanagarajah (now known as Ramanan Kenegarajah - because later legally changed his name). Kenegarajah later pleaded guilty to personation and attempt to obstruct justice.
[16] It appears no further attempts were made by police to locate Neshan. However, his name came up again four years later, in 2005, in respect of an investigation unrelated to the present trial. As a result of that investigation, he was seen at a gas station at 962 Simcoe Street North in Oshawa. Selvanathan Premkumar, who is a cousin of both Neshan and his wife, Neeranjan, testified that he was the owner of the gas station. When asked why Neeranjan's name was also on title to the franchise, he explained that "put her name on it," but she never worked there, did not have anything to do with the business, and did not receive any income from it. As will be discussed later in these reasons, the Crown points to this gas station as one means by which Neshan laundered money.
2.2. Events in British Columbia: 2007-2008
[17] In July 2007, the RCMP in Burnaby, British Columbia, looked into reports that two men, known as "Kugen" and "Ramanan, were involved in financial impropriety at a Hindu temple. Cst. Royce testified that he eventually concluded they were Kugen Neshan and Kanagaramanan Kanagarjah. Before positively identifying the latter, however, he conducted a search of government records and found a driver's licence with a photo of Kanagarajah (now Kenegarajah) and the name of his brother in law, Hariharan Nesarajah. That is an exhibit in this proceeding. Cst. Royce searched the land titles registry and found three homes owned by Neeranjan, Neshan's wife. The officer located the men and maintained surveillance on them.
[18] On April 24, 2008, Cpl Royce, together with another officer, followed Kenegarajah from a home that was under surveillance. Kenegarajah drove a Volvo for 40 kilometres to a shopping mall in Vancouver. He was followed into the mall and observed to make two cash withdrawals from a Scotiabank ATM machine. He then returned to his vehicle and drove in the direction of Richmond. En route, Kenegarajah began to make erratic driving manoeuvres that appeared, to the officers following him, to be counter surveillance measures. Kenegarajah was stopped for making "unsafe turns. While speaking to him, Cst. Royce observed a large number of twenty dollar bills in Kenegarajah's left front pocket and ABM receipts protruding from the other shirt pocket. Kenegarajah produced a driver's licence with the name Kanag Kanagaraj and an address of 11753 Sheppard Avenue.
[19] Cst. Royce, believing a fraud had taken place, arrested Kenegarajah. He seized six credit cards in other persons' names from Kenegarajah's wallet as well as $1,960 in twenty dollar bills from his shirt pocket. Cst. Royce testified that the Crown in British Columbia ultimately did not prosecute the Kenegarajah for the offences.
2.3. Durham Regional Police Investigate the Defendants: 2009 - 2010
[20] On November 24, 2009, Dr. Wayne Niou, from Burnaby, British Columbia, contacted JP Morgan Chase to advise that three credit card accounts had been opened in his name without his consent; a Marriott Visa account, a Sears MasterCard, and a Sears "private label" store card. The latter had been used at Active Green & Ross Tire and Auto Centre, 5803 Highway 7 in Markham, Ontario, on August 21, 2009. Investigators obtained the receipt in question and it shows that the tire service had been billed to a "Sri Spuvanes" of 230 Markham Road, Scarborough on a 2008 Land Rover with Ontario licence plates BDKW 739.
[21] Det. Caplan of the Durham Regional Police Service had by this time begun to look into the "bust out" frauds in Durham Region. When the complaint by Dr. Niou was brought to his attention he looked into the Land Rover and determined, by checking the Ministry of Transportation databases, that it was leased to Rajitha Kanagarajah at 75 Bayly Street West, Ajax. He found the latter to be a post office box at a commercial plaza. The vehicle also was associated with 265 Port Union Road, Toronto, also a post office box at a Shoppers Drug Mart. Det. Caplan also learned that another vehicle was registered to Kanagarajah - a 2001 Audi A6, Ontario licence plate AZVM 679 at the same Port Union Road post office box. Subsequently, police observed Neshan and Kenegarajah operating the Land Rover on many occasions and Nesarajah and, his wife, Kanagarajah were seen to operate the Audi.
[22] Det. Caplan entered details about these motor vehicles and the names of Rajitha Kanagarajah, Kuhen Neshan, Rajitha Kanagarajah, and Hariharan Nesarajah into a police data bank for Ontario with the request that he be advised if any officer comes into contact with them. At this time it was also learned that Ramanan Kanagarajah had legally changed his surname to Kenegarajah.
[23] On February 3, 2010 one of the target vehicles was found. Cst. Gillman testified that he had been on general patrol at 2:30 a.m. in the area of the "Harp and Crown" pub in Pickering and the Audi (AZVM 679) in the parking lot. When he "ran" the licence plate on his police computer, he saw the "flag" that had been previously posted by Det. Caplan. He contacted Det. Caplan and was told to stop the vehicle and ascertain the identity of the driver. The officer did so and learned that the driver was Hariharan Nesarajah. Nesarajah was later followed in the motor vehicle to a condominium building at 11753 Sheppard Ave., East.
[24] On February 8, the Land Rover was followed to a gas station at 9501 Sheppard Avenue East. Neshan put $92.09 worth of gas into the vehicle and paid for the transaction using a credit card at the pump. Det. Caplan testified that immediately afterward, he went to the same pump and put $.20 worth of into his own vehicle in order to "mark" the transaction. On this basis, it was determined that Neshan had used a Sears MasterCard to purchase the gas. The invoice shows that the card belonged to Arvind Darshan, 660 Eglinton Avenue East, Unit 50102, East York. Following the gas transaction, surveillance followed the vehicle to 87 Portelli Crescent and 30 Bissland Drive, both recently built homes in new subdivisions, separated by about 900 metres. The subjects were observed parking the Land Rover in the garage at 30 Bissland and leaving in a Buick Enclave with Ontario licence plate BBLM 239. The credit card that had been used by Neshan to purchase gas was later seized by police at 30 Bissland Drive.
[25] The Buick Enclave had been renewed on a monthly rental by "Kanag Kanagaraj with an address of 311-11753 Sheppard Ave., East, using a JP Morgan Chase Sears MasterCard #6281 8109 1874 7378. The customer later requested an address change to 1640 Pennel Drive, Oshawa and added another authorized user by the name of "Kan Kenegaraj". In fact, this belonged to a man named Johnson DECRUZ. It was eventually seized by Cst. Edgar during the execution of a search warrant at Bissland Drive, Ajax (see count 52).
[26] Land Registry and other documents filed as exhibits reveal the following information about the aforementioned residences: 87 Portelli Crescent was owned by Sri Gnanasundram. The property was purchased in 2007 for $355,636.22 with monthly mortgage payments in the amount of $1,805.45. 30 Bissland Drive was purchased in 2007 Vivehy Vigneswaran, Thavanesan Rasiah, and Rakjumar Rasiah. These three individuals obtained the property through the assignment the Agreement of Purchase and Sale between the builder and the original purchaser, Sri Gnanasundram. The purchase price was $599,863.43. 1640 Pennel Drive was owned by Rajitha Kanagarajah and purchased in 2008 for $360,076.00 Mortgage with monthly mortgage payments in the amount of $1,882.22.
[27] Avery Broderick was a tenant at 87 Portelli beginning in November 2007 at a monthly rent of $1,795. Broderick testified that he frequently received mail for "Sri" with last name "something like Ganasundram." The landlord had asked Broderick to put aside such mail and give to his "rep" when he came to visit two or three times a year. When asked if he saw this representative in court, Broderick pointed to Ramanan Kenegarajah.
[28] The real estate transaction for 30 Bissland Drive was handled by a lawyer named Thangavel Kesevan. The latter testified that he has since been disbarred for his role making false and misleading misrepresentations to mortgage lenders in twelve other real estate transactions. Kesavan also stated that he only met one of the "purchasers", Vigneswaran. The latter testified that he paid $2,200 a month on the mortgage by making a cash deposit into someone else's bank. He confirmed the house was obtained from Sri Gnanasundram (who also owned the nearby home at 87 Portelli Cres). Vigneswaran identified this person as the aunt of Kuhen Neshan. He stated he has known Neshan since he was a boy as they grew up in the same village in Sri Lanka. Vigneswaran testified that Neshan became a tenant in the home and paid the $2,075 monthly by depositing cash directly into Vigenswaran's account at a TD Canada Trust.
[29] Vigneswaran said his portion of the $137,000 down payment toward the house was $110,000. He testified that he saved this money from his $60,000 per year job at Canada BreadVigneswaran said that he did not retain a copy of the purchase documents for 30 Bissland. Police later found them at the home when a search warrant was executed. The Rasiah brothers testified that they each gave $10,000 to Vigneswaran as part of the purchase price. They also stated that they had never been to the house, did not know where it was, or what it looked like. Thavanesan Rasiah claimed an annual income of $41,141 as a restaurant cook. Rajkumar Rasiah claimed an annual income of $11,952 as a machine operator.
[30] In support of her successful application for the $334,800 mortgage on 1640 Pennel Drive, Rajitha Kanagarajah presented a letter confirming she earned $118,000 annually as the operations manager of a company called World Golden Stone Inc. This letter was signed by "President Richard Frank". Kirupananthan Nagarajah testified that he is the owner of World Golden Stone Inc. and that he has never heard of a President Richard Frank. He also stated that he does not know and has never employed Rajitha Kanagarajah.
[31] Bill Aivalis was a tenant at 1640 Pennel Drive and paid $1,500 monthly rent plus utilities. This was arranged through a real estate agent. He was told the owner was Rajitha. He testified that he had never met this person – who he believed to be a man. He also stated that he had paid the rent on several occasions to a woman he believed to be the owner's sister. He identified that person in court and pointed to Rajitha Kanagarajah. He said he would meet her at a McDonald's restaurant near Highway 401 and Port Union Road. This is within walking distance of the condominium associated with Kanagarajah and her husband, Nesarajah, namely11753 Sheppard Avenue. Aivalis testified that he paid her by cheque four times, by cash up front once and a sixth time he met his real estate agent to give her a cheque at Victoria Park and Eglinton Avenue. A cheque from Aivalis was found under a mattress in unit 311 at the condominium when a search warrant was executed.
[32] Later in the investigation, Durham Regional Police found two other properties associated with the defendants: 47 Portelli Crescent, Ajax was purchased in 2007 by Neshan's wife, Neeranjan, at a price $425,185.93 and a mortgage of $392,616.27. Kumar Sriskanda testified that he also facilitated this transaction and identified Neeranjan as the person he dealt with as the purchaser. As part of her mortgage application, Neeranjan provided a letter from her "employer", which she stated was "Appropriate Inc. and earned $68,000.00 per year. In addition, a part of the $42,000 down payment was a "gift" of $15,000. The Declaration of Gift records that the money came from her "brother" "Kugan Neeranjan. 24 Steamer Drive, Whitby was purchased by David Bodley from Rajitha Kanagarajah on January 15, 2010 for $290,000.
2.4. Surveillance: A Pattern Emerges
[33] After reviewing the land registry documents and files for certain dormant investigations, the Durham Regional Police Service instituted a surveillance program with respect to the defendants, especially, Kenegarajah and Neshan. This program was aided by GPS tracking devices that had been installed on the Land Rover and Audi motor vehicles. Regular surveillance in the two months preceding the arrests on March 3, 2010 quickly revealed a pattern of activity by Neshan and Kenegarajah. On a number of weekday mornings, the two men, operating the Land Rover or Buick Enclave departed 30 Bissland Drive in Ajax and dropped off a child at a Montessori school in Markham. They then travelled to various banks and retail stores in the Greater Toronto Area, stopping throughout the day at the condo building at 11753 Sheppard, at 30 Bissland and other residences. The two men were never observed to go to work and earn income from a legitimate place of employment or business. In addition to these observations, the police obtained other evidence during the course of surveillance. As a result of this surveillance activity, the police uncovered a pattern of conduct consistent with bust out frauds; visits to numerous post office boxes and banks, use of credit cards in other people's names to purchase items and withdraw cash at automated banking machines, and the payment of small amounts on account of those credit cards.
[34] On February 10, 2010, Neshan and Kenegarajah left 30 Bissland at 8:15 AM. During the next several hours they were followed to a TD Bank branch at 375 Kingston Road in Pickering. Constables Edgar and Shaddick testified they saw Neshan conduct a transaction at a ATM. He then went across the street to a CIBC branch and conducted another ATM transaction. The two men then returned to 30 Bissland and switched vehicles to the Buick Enclave. They left the residence at about 10:15 a.m., with a woman, and were followed to 8600 Dufferin (Greenpark Homes). In the afternoon, the motor vehicle was followed to the Montessori School on Dennison Street in Markham. The woman left the car, went into the school, and returned with a child. The next day the two men were followed from 30 Bissland to a gas station. Gas was put into the vehicle they operated. This transaction was marked by police and documents produced at trial reveal that $61.34 in gas was purchased using a JP Morgan Chase Sears MasterCard in the name of Arun Venkateswara, of 87 Portelli Crescent. This balance was never paid (see count 20).
[35] On February 5 at 1 PM, Neshan, Kenegarajah, a woman, and two children were followed to a Milestone's Restaurant, Neshan was observed to pay for the meal with a credit card. Cst. Chapman obtained a copy of the receipt from the restaurant manager. It was a JP Morgan Chase Visa Marriott Rewards card in the name of "Kulbir Singh" at an address was shown to be a post office box in a Main Drug Mart. (see count 91). JP Morgan Chase wrote off $544.66 as a fraud loss on the card.
[36] The next morning, after dropping off a child at the Montessori school, Neshan and Kenegarajah travelled to several banks. Kenegarajah was seen to enter the ICICI bank at Middlefield Road and Steeles Avenue. At about 10:30 a.m., he and Neshan attended the TD Bank at the Pacific Mall (7077 Kennedy Road) in Markham. Photographs from the bank surveillance camera show that Kenegarajah conducted transactions with a teller. The two men went to Active Green & Ross Auto Care Centre at 3505 Kenney Road in Toronto. The Land Rover was observed in the air being serviced. Det. Caplan spoke to the counter person right after the two targets had done so and asked about snow tires. The officer looked at the business computer and saw the last vehicle to be serviced was the 2008 Land Rover under the customer name of "Sri Puvaneswaran". At 12:06 p.m., Neshan and Kenegarajah went to the TD Bank at Kennedy Commons and conducted the following transactions: A $96.00 payment on BMO MasterCard 5191 2301 2228 8070 in the name "Kulim Dosangh". This credit card was seized from Kenegarajah on his arrest (see count 42); Kenegarajah made $10.00 payments on four other BMO MasterCards (see count 38) and a $20.00 payment on a CIBC Visa. While Kenegarajah was inside the bank, a man later identified as Balan met with Neshan and handed him a white envelope.
[37] After Kenegarajah exited the bank and returned to the motor vehicle, he and Neshan travelled to the Sears store at the Woodbine Centre Mall. At 2:47 PM they were observed inside talking to a store clerk about a range they previously purchased but never picked and obtained a return of the purchase price. The Sears invoice shows that this range had been purchased with JP Morgan Chase Sears MasterCard and the last four digits "9886," under the name "Sai Puvaneswaran" with an address in Toronto. At two page document later seized from the Land Rover at the time Neshan and Kenegarajah were arrested provides details of a refund obtained for the purchase of this range in the name of Sai Puvaneswaran on August 26, 2009. JP Morgan eventually wrote off the loss of $5,214.02 . Later in the day the two men went to another bank where $10.00 payments were made to each of three BMO MasterCard credit cards: (1) 5191 2301 3216 9542 in the name of Malai Malagee ; (2) 5191 2301 2748 5542 with no contact information available; and (3) 5191 2301 2802 1764 in the name of Varathan Kumar. Neshan and Kenegarajah then returned to 30 Bissland Drive.
[38] On February 17, after dropping off a child at the Montessori school and stopping at a bank, Neshan and Kenegarajah travelled to 8600 Dufferin Street. At 12:36 p.m., Neshan then filled up with gas at an Esso station and then and went to lunch at a restaurant. A JP Morgan Chase Marriott Visa card was used to pay for his meal. Police obtained a copy of the credit card transaction from the manager; it reveals that the card was in the name of Kulbir Singh (see count 91). At 7:15 PM, after surveillance ended a JP Morgan Chase Sears MasterCard was used to purchase $84.21 of gas at a Petro Canada station in Whitby. The invoice shows that the card in the name of Balaji Raman, with an address that turned out to be a shopping centre. Biographical information about this person is contained in one of the ledgers seized from the Land Rover when Neshan and Kenegarajah were arrested.
[39] On February 18, Neshan and Kenegarajah were followed in the Land Rover to a TD Bank in Markham, arriving at 9:41 AM. Neshan entered the bank and made three $10.00 payments to three BMO MasterCard credit card accounts in names of Navin Pillai, Arul Chand, and Ram Roshan. Immediately after these transactions were completed, the two men went to the Sears store at the where paid $10.00 on each of two credit card accounts in the names of Gilbert Wong and Johnson DeCruz (see count 52).
[40] The next day, Neshan and Kenegarajah departed from 30 Bissland Drive and went to a business in Markham that rents post office boxes. Kenegarajah entered the establishment and on his return to the motor vehicle a few minutes later was observed carrying mail. Immediately after, the parties travelled to another plaza. Kenegarajah went inside the Shoppers Drug Mart store at that plaza and renewed the rental of post office box #55401. At 1:20 p.m., the two men arrived at a third plaza, "Milliken Crossing", and Kenegarajah entered the Shoppers Drug Mart and a prescription filled at a cost of $97.85. He used the BMO MasterCard (5191 2301 2228 8070) in the name of Kulim Dosangh to pay for the prescription. On leaving the drug store Kenegarajah threw papers into a garbage can. These were retrieved by one of the surveillance officers, Cst. Edgar. The documents seized show following:
BMO Gold Air Miles MasterCard Rejection Letter dated February 11, 2010 in the name of Nirmalan Singh at an address in Markham. This card was later seized from Kenegarajah (see count 76)
Canadian Tire MasterCard statement dated January 17, 2010 (5446 1221 9930 2459) in the name of Peter Tharmakumar at a Newmarket address that turned out to be a post office box at a Shoppers Drug Mart) with a balance of $7,212.23 (see count 27). This card seized was later seized at 30 Bissland
BMO MasterCard statement dated January 23, 2010 (2010 5191 2301 2387 2138) in the name of Peter Tharmakumar at an address in Newmarket, with a balance of $10,041.67 (see count 83)
Sears MasterCard statement dated January 12, 2010 (5307 8525 5932 6015) in the name of Nagapalani Sri at an address that turned out to be a post office box with a balance of $2,479.00 (see count 45)
Sears MasterCard statement dated December 17, 2009 (6281 8106 1512 7585) in the name of Nasir Khan at an address in Newmarket, with $26.24 Credit Limit: $3,000.00. This card was later seized at 30 Bissland
BMO Gold Air Miles MasterCard Rejection Letter dated February 11, 2010 in the name of Nirmalan Singh at an address in Markham. This card was later seized from Kenegarajah (see count 76)
[41] On February 22, Neshan and Kenegarajah left 30 Bissland and dropped off at the Montessori school, returning at the end of the school day to pick up the child and travel back to the Bissland home. Between these two events the men were followed to several locations, including residences, and were seen in the company of Neshan's wife, Neeranjan. As was the case in previous surveillance, the two men were not seen to go anywhere at which they were employed or carrying on a business. The following day, the two men were followed to a number of places, one of which was a grocery store. They exited with Kenegarajah carrying bags. Groceries, at a cost of $138.32, had been purchased with the credit card in the name of Kulbir Singh (see count 91).
[42] On February 24 Neshan and Kenegarajah were followed to Toronto and seen to meet with Balan. Neshan entered Balan's motor vehicle, a Honda. Afterwards, Cst. Fardell of the Toronto Police stopped this vehicle and obtained identification from the occupants. The officer testified that the the driver identified himself as Balan and the passenger as Salvanathan Premkumar with an address in Scarborough. The men were allowed to go on their way and followed by the surveillance team a bank, which Neshan entered. Cst. Mitchell had assisted in this traffic stop. When asked if the man who identified himself as Premkumar was in court, he pointed to Neshan (see count 60).
[43] Later the same day, Neshan was once again seen with Kenegarajah. They went to a La-Z-Boy store in Markham. Cst. Edgar obtained a copy of the receipt for purchases they made. The receipt records a total expenditure for furnishings in the amount of $1,694.97, paid on a visa card in the name of Sli Anugam (see count 78). The two men were observed to load the items purchased into Buick Enclave. This vehicle then went to the Fairview Mall in Scarborough and Kenegarajah was followed into "La Swiss" jewellery store. He bought a Breitling watch at a cost of $8440.54, paying for it with $2,740.54 in cash and the balance, 5,700.00 on a Visa credit card in the name of Kanagaraj Kanag. This card was later found at 30 Bissland. Visa wrote off the loss. The Buick Enclave was followed from the Mall to the condominium at 11753 Sheppard Avenue East and then back to 30 Bissland Drive, arriving at 2 PM. Neshan and Kenegarajah were observed to unload items from the vehicle and carry them into the house.
[44] On February 25, after the usual morning trip to the Montessori school, Neshan and Kenegarajah were followed to 11753 Sheppard Avenue East. Neshan ran to the front door and into the building. Kenegarajah remained in the vehicle. The parties were later seen at mall on Finch Avenue. Kenegarajah and Neshan went into the mall. Neshan purchased a jacket at a cost of $110.74 a MasterCard (5307 8524 5819 5743) in the name of Sli Anugam.
[45] On the morning of March 1, Neshan and Kenegarajah were observed to drop off the child at the Montessori school, traveling in the Land Rover. They then went to a TD Bank on Markham Road. At 10:01, Kenegarajah was observed to exit the bank and return to the vehicle. At 10:27 the Land Rover pulled into the Kennedy Commons plaza and stopped at another TD Bank. This time, Neshan entered the bank and returned to the vehicle 10 minutes later. When the two men were arrested on March 3, ledgers found in the Land Rover included two receipts for transactions at the first TD Bank on Markham Road. The first receipt reflects a deposit of $1,500 cash (75 x 20.00 bills) into account #1882-3293261 in the name of Kanag R. This is a Line of Credit. About six weeks earlier, the proceeds of the sale of 24 Steamer Drive, from Rajitha Kanagarajah were put into this account. It is also the account from which Kanagarajah borrowed funds to buy property in British Columbia from Anantha Neeranjan. The second receipt reflects a deposit of $3,380 cash (169 x 20.00 bills) into account #9725-6283513 in the name of Grounder.
[46] On March 2, at the La-Z-Boy Gallery in Markham, Neshan and Kenegarajah were observed to purchase additional furnishings at a cost of $1,497.99 with a MasterCard with the last four digits 5743. This receipt shows that the card used in this transaction is the same as the one used at the La-Z-Boy one week earlier; namely, Sli Anugam at an address in Pickering.
2.5. Arrests and Incidental Searches
[47] The police decided to conclude this investigation on March 3, 2010 and search warrants were obtained for several residences. After the usual trip to the Montessori school, Neshan and Kenegarajah were followed to two banks, CIBC and ICICI and then to the home builders at 8600 Dufferin Street, arriving at about 10:20 a.m. Neshan and Kenegarajah were arrested at this location. Among the items seized from Neshan are these:
- Two BlackBerry smart phones
- $700 cash
- CIBC ATM receipt from earlier that morning
- Cheque payable to Sri Gnanasundram
- CIBC Debit Card, PC Debit Card, and MBNA MasterCard
- Two MasterCard gift cards (total: $150.00)
- Purchase Agreements in the name of Balan (to purchase the home from Desert Fox Properties)
- Photocopies of three cheques from Balan to Dessert Fox Property Inc; February 19, 2010 in the amount of $25,000 (BMO), March 1, 2010 in the amount of $15,000 (TD Bank), and March 3, 2010 in the amount of $10,000 ( ICICI Bank)
- Sears appliance documents
[48] Among the items seized from Kenegarajah are these:
- A bundle of U.S. cash
- a Breitling wrist watch
- British Columbia Lottery Corp. Lotto Super 7 "Quick Pic" ticket (January 28, 2005)
- A medallion for a Temple in Vancouver
- Personal information for "Sli Anugam"
- ICICI Bank "Transfer of Funds" slip from earlier that morning in the amount of $10,000 payable to Desert Fox Property Inc.
- Six credit cards issued by several banks in the following names: Kirupaneshan Thavaraj (Count 73), Kulim Dosangh (Count 74), Kulim Dosangh (Count 75), Nirmalan Singh (Count 76), Sam Sivalingam (Count 77), Sli Anugam (Count 78)
[49] Among the items seized from the Land Rover are these:
- Several bags or sets of keys (with about 50 keys) for cars, post office boxes and homes (including one labelled 47 Steamer)
- Woman's "Guess" watch with receipt in pink "heart" box and receipt from The Bay ($160 + tax) using credit card in the name of Kulim Dosangh)
- Ontario driver's licence in the name Subasikaran Ponnampalan with an address in Scarborough
- Two iPhones and two BlackBerry smart phones
- Five Sears Gift Cards
- 4 CIBC business cheques in the name of Franklin Haulage and Movers
- Bag containing registration documents for the 2008 Land Rover/Ranger Rover in the name of Rajitha Kanagarajah
- Two ledger books
[50] The two aforementioned ledger books that were seized from the Land Rover contain the handwritten names, addresses, employment information, phone numbers, credit card numbers, credit limits, expiry dates, bank/credit card company system access passwords and similar data for dozens of individuals. The names of the individuals and associated credit card are reproduced below:
- Sivan Sivalingam: BMO Mastercard. This card was later found at 30 Bissland (count 37)
- Arun Venkatesawar: Sears Mastercard. This card seized was later found at 30 Bissland (count 20)
- Aswin Venkatesawar: JP Morgan Chase Visa. This card was later found at 30 (count 90)
- Yesan D'Souza: Sears Mastercard. This card seized was later found at 30 Bissland (count 34)
- Ravi Pillai: Rogers: BMO Mastercard. This card was later found at 30 Bissland (count 80)
- Sai Pulaneswaran: BMO Mastercard
- Kris Perumal: BMO Mastercard
- Babu Sethi: BMO Mastercard
- Toni Sri: CIBC Classic Visa, JP Morgan Chase Marriott Visa, and Canadian Tire Mastercard. Latter two cards were later found at 30 Bissland (counts 26 and 41)
- Kanmani Muraga: BMO Mastercard with the same address as Nesarajah/Kanagarajah
- Dr. Vishnu Gounder: Classic Visa
- Phusyanth Murugan: JP Morgan Chase Sears Mastercard, Sears Mastercard, and MBNA MasterCard
- Sli Anugam: JP Morgan Chase Marriott Visa and Capital One Mastercard. These cards were later found at 30 Bissland (counts 11-13)
- Gilbert Wong: JP Morgan Chase Cancer Society Mastercard. This card was later found at 30 Bissland. (counts 28 and 30)
- Thuryanth Srimurugan: Capital One Mastercard. This card was later found at 30 Bissland (count 36)
- Mike Rajan: MBNA Mastercard
- Manohar Singh: CIBC Visa. This card was later found at 30 Bissland (count 81)
- Tony Pen: CIBC Visa. This card was later found at 30 Bissland (count 46)
- Johnson Decruz: JP Morgan Chase Sears Mastercard (count 52)
- Vasanth Vikash: MBNA Mastercard
- Sai Pulaneswaran: Sears Mastercard. This card was later found at 30 Bissland
- Sam Anban: BMO Mastercard. This card was later found at 30 Bissland (count 84)
- Amir Samji: IBM: Capital One Mastercard. This card was later found at 30 Bissland (count 47)
- Sam Sivalingam: Canadian Tire Mastercard, HBC Mastercard, and BMO Mastercard. The first two cards were found at 30 Bissland. The third one was seized from Kenegarajah as an incident of arrest. (counts 24, 77, and 86)
- Nagapalani Sri: JP Morgan Chase Sears. This card was later found at 30 Bissland (count 45)
- Pronto Carakudi: JP Morgan Chase Sears, Capital One Mastercard, JP Morgan Chase Sears Mastercard, JP Morgan Chase Cancer Society Mastercard, and American Express These cards were later found at 30 Bissland. (counts 14, 21, 22, and 29)
- Nirmalan Singh: Two JP Morgan Chase Sears Mastercards. Both cards were later found at 30 Bissland. (counts 48 and 76)
- Arun Darshan: Capital One Mastercard. This card was later found at 30 Bissland. (count 43)
- Velu Marathandava: Two JP Morgan Chase Sears Mastercards and Capital One Mastercard. These cards were later found at 30 Bissland. (counts 35 and 38)
- Peter Tharmakumar: Two Canadian Tire Mastercards and JP Morgan Chase Marriott Visa. These cards were later found at 30 Bissland. (counts 27 and 83)
- Rajpaul Nanda: JP Morgan Chase Sears Mastercard. This card was later found at 30 Bissland (count 25)
- Wayne Niou: JP Morgan Chase Sears Mastercard
[51] Among the other items seized from the Land Rover are these:
- TD Canada Trust receipts (7670 Markham Road) to account of "Rasiah T" - $2,300 from cash
- Letter from "Serbjit Singh, Onex Granite Inc., to advise Rajitha Kanagaraja "is employed with our company as a Field Operations Manager" and earns $87,750.00 annually
- Equifax Credit Report for Kris Perumal
- Capital One Account Statement – Mike Rajan
- Ramanan Kenegarajah Franchise Application – for "Prime Ribs" Restaurant
- Letter from Nathalie Lacroix to "Tony and Thavanesah Rasiah" regarding application for A&W franchise and attached Business Model Worksheet (January 22, 2009)
- Purchaser's Estimate Request & Request to Amend the Agreement of Purchase and Sale between Jeya Balan and Desert Fox Properties Inc. re: lot #160, Plan 65M-3976 - $60,445.00 in extras added (Sept. 2, 2009)
[52] Following the arrest of Jeya Balan, a black leather ledger book inside of which were pages of handwritten identity information and credit card information with the date "Jan/Feb 2010." The information included BMO Mastercard account numbers in the names of the following (real or fictitious) people; Sivan Kumeran, Balan Ram, Maran Mathandavar, Nesaruban Devaraj, Padmakar Singh, and Prem Adas. Also found were transaction records and statements for several credit cards (none of which are in the name, Jeya Balan).
[53] Among the items seized from the Audi motor vehicle after the arrest of Hariharan Nesarajah are these: Letter, dated September 24, 2009, from a law firm to Hariharan Nesarajah at 311-11753 Sheppard Avenue East; Canadian Tire Receipt, dated December 27, 2009 for a purchase on the Mastercard account of Siva Rajan; Work Order re the Audi to Rajitha Kanagarajah; Handwritten piece of paper with names, addresses, phone numbers, and email addresses for Hari Ganesh and Siva Rajan.
2.6. Search Warrant at 311-11753 Sheppard Avenue, Scarborough
[54] A search warrant was executed at 311-11753 Sheppard Avenue East at noon. Hariharan Nesarajah and Rajitha Kanagarajah object to the manner in which the warrant was executed. That issue will be dealt with later in these reasons. For the present purposes, it will suffice to note some of the items seized. These items were seized by individual officers and turned over to one exhibits officer who confirmed and recorded who seized what from where. Each of these officers testified about their activities.
[55] From the master bedroom, Det. McKay seized the following: Nine receipts in a brown TD envelope; two handwritten lists (withdrawal and bank drafts, cash); List with money amounts; Two brown and one white envelopes containing cash, including nine one hundred dollar bills and several hundred dollars in five, ten, and twenty dollar denominations - all in Canadian currency - and an assortment of American and British currency in small denominations; Receipt Banu Jewellery ($450.00); and an Esquire Swiss watch in a container.
[56] From the master bedroom, Det. Capener seized these items: BlackBerry Pearl smart phone; iPhone ; Samsumg phone; pawn shop receipts; TD VISA 4500 8800 0151 080; TD transaction receipt in the amount of $86,149.06; ICICI Bank deposit slips (found under the mattress); Two credit cards, a Social Insurance Card and other government identification, all in the name of "Siva Rajan."
[57] From the living room, Cst. Stone seized a BlackBerry smart phone and Det. Capener seized these items; Motorola "Razr" phone; Motorola cell phone; Samsung phone; iPhone; and a BlackBerry smart phone. From an analysis of the cell phone records related to one of the Motorola phones, it was determined that the following financial institutions had been contacted:
- 800-263-2263 BMO MasterCard 440 times
- 800-265-3675 Sears Financial (Chase) 288 times
- 800-387-1616 Citi MasterCard (now CIBC) 173 times
- 800-459-6415 Canadian Tire Financial 132 times
- 800-465-4653 CIBC Card Services 47 times
- 800-481-3239 Capital One MasterCard 24 times
- 888-242-2100 Citizenship and Immigration 37 times
- 888-876-6262 MBNA Canada 485 times
[58] From the dining room, officers found change of name documentation for Hariharan Nesarajah, a "Vancouver" key chain, Nokia cell phone and charger, Prada sunglasses, and social services documents. In the second bedroom, another three Blackberry smart phones were seized, along with Silver "Fossil" watch (black face with diamond); Computer equipment; and an envelope with bundles of $20 bills
2.7. Search Warrant at 30 Bissland Drive, Ajax
[59] As is the case with respect to the residence of Nesarajah and Kanagarajah, I heard from the individual officers and exhibits officer involved in the search of 30 Bissland Drive. The police seized much of the furnishings and electronics in the home as evidence of and proceeds of crime, including, living room and bedroom furniture, eight trees, kitchen appliances, a piano, television sets, BluRay players, exercise equipment, multiple computers and printers, brand new photocopiers, lawn equipment, motorized bikes for children, in-sink garbage disposal units, luggage, liquor, cameras and camcorders.
[60] From "bedroom # 1", Sgt. Cousens seized these items: Approximately $8,000.00 in cash in various denominations, some of which was covered with mildew; banking documents, credit cards and credit card documentation; nine watches; three mens' rings; eight post-dated cheques in the amount of $1,895 each (rent from tenants at 47 Portelli Crescent, Ajax); a BlackBerry smart phone. The credit cards set out below were also found in this bedroom. The signatures on the back of most of these credit cards are almost identical and similar to those on the cards seize from Kenegarajah as an incident of his arrest.
| Card Number | Name | Issuer | Count |
|---|---|---|---|
| 5491 9809 2027 7884 | Sanjeev Sethi | MBNA MC | 79 |
| 5307 8526 3956 6341 | Ravi Pillai | Chase Sears MC | 80 |
| 5191 2301 2220 5983 | Manohar Singh | BMO MC | 81 |
| 5307 8522 3338 4927 | Fatehali Charania | Chase Sears MC | 82 |
| 5191 2301 2387 2138 | Peter Tharmakumar | BMO MC | 83 |
| 5191 2301 2359 9301 | Sam Anban | BMO MC | 84 |
| 5452 4000 4031 0058 | Navpreet Chahal | MBNA MC | 85 |
| 6002 9321 0579 9490 | Sam Sivalingam | HBC MC | 86 |
| 5491 9812 8751 6641 | M Thavarajah | MBNA MC | 87 |
| 5446 1220 7930 4393 | Yesan Dsouza | Can Tire MC | 88 |
| 5243 3711 0327 3943 | Peter Tharmakumar | HBC MC | 89 |
| 4349 1202 1544 7887 | Aswin Venkateswar | Chase Marriott Visa | 90 |
| 4349 1202 3774 8510 | Kulbir Singh | Chase Marriott Visa | 91 |
[61] From "bedroom # 2", Cst. Levy seized photographs of Kenegarajah holding bundles of money. Det. Garcia found the following items: Framed photographs of Kenegarajah with children; $2,440.00 (122 x $20.00); banking documents; Hindu Temple Tax receipt in the name of Kugen Vaishnevi; La-Z-Boy receipt dated March 2, 2010 in the name of Sli Anugam; La Swiss Business Card (Vicky Kevorkian); various mortgage documents, post office box rentals for locations in Markham, Willowdale, and Toronto – all of which Neshan and Kenegarajah were seen to visit while under surveillance; credit applications; blank TD cheques in the name of Rajitha Kanagarajah; Rogers Mobility Stick, three Sears credit cards in the name of Ramanan Pillai; Movado watch; credit card application forms for many of the credit cards seized in the home and elsewhere; mortgage documents; immigration documents (permanent residence card) to Kanagaraamanan Kanagarajah, 11753 Sheppard Ave. E, Unit 311.
[62] From a suitcase in "bedroom #2", Cst. Hoover found the following: Numerous Sears credit cards in various names; Watches and rings; a new camera; Earnings statement for Vivehy Vigneswaran (Canada Bread); Letter from "Mr. Lincoln , Managing Director" of A Great Toronto Truck Driving School, dated July 2008, to "Whom Ever it may concern" to state that Kanagaramanan Kanagarajah is employed as a classified driving instructor and who is "very honest … and hardworking" and earns $48,000 per annum; activation papers and account statements for Canadian Tire MasterCard in name of Peter Tharmakumar, expired boarding pass for Kenegarajah for flight to Vancouver in 2008; Agreement of Purchase and Sale Constable between purchaser Sri Gnanasundram and Imagination Community Inc. for 30 Bissland Drive.
[63] The credit cards referred above that were seized from bedroom # 2 are as follows:
| Card Number | Name | Issuer | Count# |
|---|---|---|---|
| 4349 1208 7912 1091 | Sli Anugan | Chase Marriott Visa | 11 |
| 5457 5675 3036 1810 | Sli Anugan | Capital One MC | 12 |
| 5446 1226 2604 3106 | Sli Anugan | Can Tire MC | 13 |
| 6281 8102 2995 1099 | Pronto Carakudi | Chase Sears MC | 14 |
| 4349 1206 4264 9340 | Kana Kanagaraj | Chase Marriott Visa | 15 |
| 6281 8109 8072 4297 | Richard Singh | Chase Sears MC | 16 |
| 6002 9321 0570 0221 | Rajan Karuda | HBC MC | 17 |
| 6281 8104 3582 8990 | Quing Min | Chase Sears MC | 18 |
| 6281 8105 0754 2867 | Ramanan Pillai | Chase Sears MC | 19 |
| 6281 8107 9172 4411 | Arun Venkateswara | Chase Sears MC | 20 |
| 5457 5694 6249 9618 | Pronto Carakudi | Capital One MC | 21 |
| 5307 8528 4218 2522 | Pronto Carakudi | Chase Sears MC | 22 |
| 4349 1200 5177 4410 | Pronto Carakudi | Chase Marriott Visa | 23 |
| 5446 1221 1164 5340 | Sam Sivalingam | Can Tire MC | 24 |
| 5307 8528 7540 4116 | Rajpaul Nanda | Chase Sears MC | 25 |
| 5446 1221 8893 0343 | Tony Sri | Can Tire MC | 26 |
| 5446 1221 9930 2459 | Peter Tharmakumar | Can Tire MC | 27 |
| 5307 8525 7931 6285 | Gilbert Wong | Chase Sears MC | 28 |
| 5220 1316 2530 5129 | Pronto Carakudi | Chase Can Soc. MC | 29 |
| 5220 1317 5682 9046 | Gilbert Wong | Chase Can Soc. MC | 30 |
| 5446 1228 6303 2390 | Rupini Kuhen | Can Tire MC | 31 |
| 5307 8525 7714 0950 | K Thavarajah | Chase Sears MC | 32 |
| 5446 1228 4862 2224 | Gilbert Wong | Can Tire MC | 33 |
| 5307 8526 8033 1454 | Yesan Dsouza | Chase Sears MC | 34 |
| 5307 8526 9392 1770 | Velo Marathandava | Chase Sears MC | 35 |
| 5457 4950 1489 7507 | Thuryanth Srimurwgan | Capital One MC | 36 |
| 5191 2301 2171 1551 | Sivan Sivalingam | BMO MC | 37 |
| 5457 5691 2400 8583 | Velo Marathandava | Capital One MC | 38 |
| 5307 8527 3038 2564 | Primal Gopal | Chase Sears MC | 39 |
| 5452 4004 1729 1584 | Rupini Kuhen | MBNA MC | 40 |
| 4349 1202 3556 9249 | Tony Sri | Chase Marriott Visa | 41 |
| 4349 1201 9929 5302 | Navpreet Chahal | Chase Marriott Visa | 42 |
| 5457 5685 6506 0582 | Arun Darshan | Capital One MC | 43 |
| 5446 1226 8579 3427 | Manohar Singh | Can Tire MC | 44 |
| 5307 8525 5932 6015 | Nagapalani Sri | Chase Sears MC | 45 |
| 5307 8521 2241 2383 | Tony Pen | Chase Sears MC | 46 |
| 5457 5687 9841 8383 | Amir Samji | Capital One MC | 47 |
| 5307 8525 4694 2908 | Nirmalan Singh | Chase Sears MC | 48 |
| 3746 178045 31001 | Pronto Carakudi | American Express | 49 |
| 5307 8521 3456 9006 | Navpreet Chahal | Chase Sears MC | 50 |
[64] From "bedrooms # 4/5", Cst. Levy seized these items: Bank documents in various names from the desk including bank applications including a CIBC Account Summary for Nesaruban Devaraj dated Oct. 7, 2008; BMO MasterCard online application for "Avtar Ahmad" dated Dec. 11, 2008; Handwritten sheets of paper containing biographical, financial and banking information for "Dominic Francis"; "Bentong Yang"; "Avtar Ahmad"; "Balan Ram"; "Daniel Mohan"; and "Sivan Kumaran"; BlackBerry smart phone USB with Bluetooth from desk (still in the package); White envelope – "To My Loving Wife Rupini – Kuhen"; new Esquire Swiss watch in box with Sears tag - $395.00; Jewellery box containing a gold necklace with diamonds and rubies; Two ladies' dress watches; Designer sunglasses ("Ray-Ban"; "D&G"; "Gucci" (all in original cases); Canon camcorder; Minolta camera.
[65] In the Armoire in bedrooms # 4/5,Cst. Hilliard found: Photocopies of Documents in the name of Anantha Rupini Neeranjan ( a Malaysia Passport and Permanent Resident Card); BMO MasterCard and banking documents in the name of Anantha Neeranjan; Ontario Health Card in the name of Kuhen Vaishnevi; B.C. Health Card in the name of Kuhen Pranaven.
[66] In the top drawer of the bedside table in bedrooms # 4/5, Cst. Hoover found: "Ashok Jewellers" box containing gold and diamond necklace; gold bracelet; gold necklace; Bundle of Canadian currency on a plate in top drawer in the amount of $1,890 in various denominations; Brown purse containing $1,066 Canadian currency in various denominations; Brown wallet inside purse containing $1,055 Canadian currency in various denominations; €300; A driver's licence in the name of Anantha Neeranjan as well as her Sears Card MasterCard; Health Card; CitiBank Card; VanCity Card; BMO Card; BNS Scotia Card; In the top drawer of the other bedside table the officer found: Bag of banking documents and cash in various denominations for a total of $7,620.00CDN, $1,100.00 US, €700, £820 UK, 900 (Swiss); Gold jewellery.
[67] In the walk-in closet attached to "room # 8, Cst. Vibert seized these items: Purchase Agreement dated June 2, 2003 in the name of Anantha Neeranjan with respect to 671A Eglinton Ave. E. #102, Scarborough, (Great Gulf Homes). In the basement this officer also found and seized 12 bottles of Cognac, scotch and brandy, HP Colour Laser Jet Photocopier (brand new in box); Two "Insinkerator" garbage disposal units (brand new in boxes)
[68] In the kitchen/wet-bar area, Cst. Hoover documentation with respect to Town Centre Montessori Private Schools for Vaishnevi Kuhen (grade 4). The document provides the following parental information with respect to the student: Father – Kuhen NESHAN, a "businessman" with A&W; Mother – A. Rupini N. Kuhen, a "housewife". In case of emergency, the school was told to contact Kanag Kanagaraj, an uncle, Jeya Balan, a cousin, or Rajitha Kanagarajah, an aunt.
[69] On top of the wet bar found, Cst. Woolley found a CIBC cheque book in the name of "A. Anthonypillai" 1100 Ellesmere Road, Scarborough and cash in various denominations for a total of - $950.00 CDN, £20 (UK), and 20 (Malaysian). In a cupboard over the bar area, he also found: Agreement of Purchase and Sale in the name of Vicky Vigneswaran for 19 Alai Circle, Markham in the amount of $1.65 million with a closing date of Februar1, 2010.
[70] Other officers found money in other areas of 30 Bissland Drive. In total, the police seized approximately $110,000 in cash in various denominations, currencies, and packaging.
2.8. Tax Records
[71] Records obtained from the Canada Revenue Agency show the following:
Neshan Kuhen (husband of Anantha Neeranjan)
- 2001 – Total income: $40,852 at American Express, with an address in Toronto that was, in fact, a post office box
- 2002 - Total income: $594
- 2003 – Total income: zero
- 2004 - Total income: $15
- 2005 - Total income: $1,115.00
- 2006 – Total income: zero
- 2007 to 2009 – no assessment information found
Ramanan Kenegarajah (brother of Rajitha Kanagarajah)
- 2001- No assessment information found
- 2002 – Total income, from social assistance: $6,123
- 2003 – Total income, from social assistance: $6, 123
- 2004 to 2009 – no assessment information found
Anantha Neeranjan (wife of Kuhen Neshan)
- 2001 to 2003 – total income: zero
- 2004 - Total income: $410
- 2005- total income: $70,419.00, with an address in British Columbia
- 2006 – Total income: $59,789
- 2007 – Total income: $78,872, with an address British Columbia
- 2008 to 2009 – no assessment found
Hariharan Nesarajah (husband of Rajitha Kanagarajah)
- 2001- Total income: $17,027
- 2002 - Total income: $24,089
- 2003 - Total income: $20,511
- 2004 - Total income: zero
- 2005- Total income, from social assistance: $10,254
- 2006 – Total income, from social assistance: $11,202
- 2007 – Total income: $12,059
- 2008 – Total income: $ 10,998
- 2009 – No assessment found
Rajitha Kanagaraha (wife of Nesarajah and sister of Kenegarajah)
- 2001 - Total income: one dollar
- 200 - Total income: one dollar
- 2003 - Total income: zero
- 20045 to 2005: no assessment information found
- 2006 – Total income: zero
- 2007 – Total income: $17,535
- 2008 to 2009: no assessment information found
2.9. Breach of Order Excluding Witnesses
[72] As noted at the outset, most of the evidence in this case is not controversial. Where the Crown and Defence differ is with respect to the inferences that might be drawn from some of the facts and the application of certain legal principles. However, there are three Crown witnesses that were the subject of significant challenge. These witnesses breached my order not to discuss their evidence with each other. The defendants argue that their testimony is tainted and one seeks a stay of proceedings because of what occurred.
[73] At about the mid-point of this trial, a lawyer unconnected with this case, Mr. Tom Hicks, reported to one of the Defence counsel that he had overheard police witnesses in this case apparently discussing their evidence. When this was brought to my attention, I conducted a voir dire to determine if my order had been breached. The officers involved in this matter are Constables Beamer, Shaddick and McKay.
[74] Mr. Hicks testified that on November 9, 2011, he was outside the courtroom and he heard one officer talking to the other two officers about his cross-examination. There is no dispute that the officer in question is Beamer and that he was discussing his cross-examination by Mr. Basile. I also note that Shaddick and McKay had not yet testified in the trial. According to Mr. Hicks, Beamer mentioned "Neshan" and "Shopper's Drug Mart" and said that he had been asked three times if the person he saw was, in fact, Neshan. Beamer added that the questions were ridiculous and that the trial judge felt the same way. Mr. Hicks testified that at this point one of the officers – he could not say which one – saw him and something to the effect "be careful, that guy is a defence counsel".
[75] When called to testy on the voir dire , each of the three officers in question stated that they were not specifically aware that an order excluding witnesses was in effect but that, given their experience that such orders are routine in criminal trials, they ought to have known about it. Each officer expressed great regret about having made the "mistake" of discussing the trial evidence.
[76] Mr. Pillay, on behalf of Kenegarajah, submits that orders excluding witnesses are imposed to ensure the fairness of the proceedings. Police officers regularly encounter such orders. All of the police officers involved in the breach of the order in this case were familiar with such orders and, in fact, expected that such an order would be in place in this trial. Mr. Pillay claims t he breach of court order was flagrant and amounts to a clear attempt to circumvent the fairness of the proceedings. Such a brazen violation of a court order by a police officer, it is submitted, is an affront to the defendant's section 7 Charter right and to a fair trial and justifies a stay of proceedings.
[77] The Crown submits that the officers' conduct was foolish but not wilful or engineered to harm the fairness of the proceedings. The exclusion of the evidence of any of these officers, it is submitted, would be an inappropriate reaction to whatever harm was caused as a consequence to the defendants' fair trial rights.
[78] There is no doubt that my order was breached. The police knew or ought to have known of the witness exclusion order. I cannot say that it was done in a deliberate attempt to undermine these proceedings. It is more likely that Beamer was frustrated and vented at his colleagues. He should have known better. Similarly, Shaddick and McKay should have declined to participate in the discussion. All acted unprofessionally. That said, this discussion was a few minutes in length in the midst of a 28 day trial. Even if the discussion concerned material and controversial issues, a stay of proceedings would be a disproportionate response. This is not one of those exceptional cases in which such a remedy is warranted.
[79] I have scrutinized the evidence of the three officers. They played a relatively minor role in this case and their actions and observations are usually confirmed by others. In the few instances where it is not confirmed I have chosen to ignore their testimony. In addition, I forwarded a transcript of the voir dire to the Crown Attorney for this Region for whatever action he deems appropriate.
[80] As an officer of the court, Mr. Hicks did the right thing in bringing matter to the attention of the court.
3. The Position of the Defence
3.1 Ramanan Kenegarajah
[81] Mr. Pillay, on behalf of Ramanan Kenegarajah, while not conceding any count, made submissions with respect to only some of them. In particular, no argument was presented with respect to the many substantive counts arising from the evidence uncovered by the Durham Regional Police Service through surveillance and search and seizure.
[82] The arguments presented by Mr. Pillay concern the following charges:
- Count 1 - all defendants, between 2001 and 2010- fraud on the public, over $5,000.00
- Count 2 - all defendants, during this same nine year period - conspiracy to commit fraud through the use of fraudulent credit cards
- Counts 3 to 10 - Neshan and Kenegarajah, during this same nine year period - fraud with respect to eight specific financial institutions
- Count 54 - all defendants, between 2005 and 2010 - being a member of a criminal organization
- Count 64 - Neshan and Kenegarajah, during this same nine year period - Personation
- Count 92 - all defendants, between 1997 and 2010 - Money Laundering
[83] It is submitted that, apart from count 2, the aforementioned charges violate the single transaction rule in that they allege many separate and distinct offences over a nine-year period. It is also asserted that while each of these counts names all of the defendants as accused, many of the transactions to which they relate involve only one or two of the defendants. As such it is argued that the counts are invalid and cannot form the basis of convictions.
[84] Count 2 alleges a nine year conspiracy commencing January 1 st 2001 and ending March 3 rd 2010 and names all defendants as conspirators. Mr. Pillay submits that that Kenegarajah does not surface until 2008 when he was arrested by Cpl. Royce in British Columbia and that there is no evidence about him, Neeranjan, and Nesarajah until the resumption of the investigation in 2010. It is argued that this evidence fails to prove the conspiracy alleged. In this regard, it argued that the presence of Rajitha Kanagarajah at 21 Rockport Drive in 2001 when a warrant to search the premises was executed is not evidence of her knowledge or participation in criminal activity. Similarly, it is claimed that the numerous financial instruments in the name of Anantha Neeranjan, seized at the time, do not implicate her as a party to a conspiracy.
[85] Mr. Pillay submits that the Crown has not proven the criminal organization charge (count 54) because it failed to establish that three or more persons were involved. It is submitted that while there are financial instruments and real estate holdings in the names of Rajitha Kanagarajah and Anantha Neeranjan, there is no evidence of their participation in these transactions or their knowledge that their names were used in these transactions. With respect to Nesarajah, it is suggested that while there is evidence he may have engaged in fraud, it is insufficient evidence to establish that he is part of a criminal organization. Similarly, it is argued that Balan's activities with Neshan and Kenegarajah was "for the immediate commission of a single offence", not an ongoing criminal enterprise.
[86] Mr. Pillay points out that all of the offences are alleged to have been committed in Ontario and there is no mention of British Columbia in the Information and, citing section 478(1) of the Criminal Code , submits that to the extent any of the offences were committed entirely in British Columbia, the defendant must be acquitted. Moreover, it is argued that the evidence uncovered by Cpl. Royce in 2008 in British Columbia should be excluded because it was obtained in violation of Kenegarajah's Charter rights. The evidence in question is six credit cards and a TD debit card (none of which were in the defendant's name) and a quantity of currency. Mr. Pillay argues that Cpl. Royce unlawfully detained and searched his client.
3.2. Kuhen Neshan
[87] Mr. Olmstead, on behalf of Kuhen Neshan, adopted the submissions of Mr. Pillay and added the following: "In general, it is asserted that the whole prosecution against Mr. Neshan was over-broad, and the only 'valid' charges relate to the alleged fraudulent activity that took place in Ontario between the fall of 2009 and March 2010. The defence makes no submission with respect to the various fraudulent use/possession of credit card/money laundering offences during this period, but puts the Crown to the strict proof thereof."
[88] In furtherance of this general submission, Mr. Olmstead noted that Natola testified that at an American Express training seminar in 2001, Neshan handed out the piece of paper to collect passwords and acknowledged this was it was done openly and with the knowledge of the instructor. It is argued that Neshan's actions were not surreptitious and the Crown "has not proved the 'Amex' allegations beyond a reasonable doubt". In any event, Mr. Olmstead submits that the only evidence – which he calls "narrative" – about Neshan's whereabouts from 2001 to 2009, is that he was under constant surveillance by the RCMP in British Columbia. There is no evidence putting Neshan in Ontario during this period. Accordingly, any criminal activity by Neshan in British Columbia during this period is outside the jurisdiction of the court.
[89] Mr. Olmstead also asserts that there is no evidence that Neshan was acting in concert with anyone at this time and "hence there is no evidence of conspiracy in 2001". In this regard, it is noted that a conspiracy cannot be founded simply between a husband and wife: R. v. Rowbothan (1998), 41 C.C.C. 3d 1 (Ont. C.A.) . With respect to the activities of the defendants in Ontario in 2009-2010 "the question is whether the offence charged is the same conspiracy that the Crown has tried to prove. Here, there is no evidence or agreement, save and except inferences to be drawn from substantive acts. Mere knowledge of criminal conduct does not make someone a co-conspirator."
[90] With respect to the criminal organization count, Mr. Olmstead repeats his colleague's point that three or more people are required and adds that assuming Neshan and Kenegarajah were involved in a credit card conspiracy, "this does not make them automatically members of a criminal organization. …all the accused are related by blood or marriage so normal contact is to be expected. Mr. Balan's involvement was no more than de minimus conduct, and the two wives played no overt role in any criminal organization…that leaves Mr. Nesarajah as the only possible third member [and]. ….he was only seen in contact with Mr. Neshan and Mr. Kenegarajah one time, at the hospital".
3.3 Anantha Neeranjan
[91] Mr. Basile, on behalf of Anantha Neeranjan, argues that even assuming his client knew about the criminal activity of the other defendants, she "could not be said to be guilty of conspiracy, as conspiracy is not established by mere proof of knowledge of the existence of a scheme to commit a crime, or by merely doing various acts in furtherance of that scheme. Proof of a criminal conspiracy requires proof of an intention to agree, the completion of an agreement to do an unlawful act or to do a lawful act by unlawful means and a common design". In this regard, it is pointed out that although the searches by the Durham Regional "yielded a substantial amount of credit and debit cards, statements of account, receipts, etc., and the bust-out ledger (in the Rover)…. none of these items were linked to Ms Neeranjan".
[92] Count 67 alleges that Neeranjan defrauded Maple Trust of an amount exceeding $5000 dollars by inducing the institution to release mortgage funds to purchase 47 Portelli Crescent by means of a falsified employment letter as well as a document enumerating a gift of $15,000. It is submitted that the Crown "has not led any evidence to suggest that Ms Neeranjan was not so employed and remunerated at that rate or that in fact it was Ms. Neeranjan's who tendered the employment letter, nor has it provided any evidence to refute the existence of a gift in the above amount". In addition, it is asserted that there is no evidence Neeranjan "ever set foot" inside 47 Portelli or "was or could have been aware of it being used as a potential mail drop location".
[93] With respect to the search and seizure of 30 Bissland Drive, Mr. Basile submits that the evidence does not clearly establish who lived at the residence and what rooms any such people occupied. Moreover, there is "no evidence of Ms Neeranjan knowing that the credit cards were…fraudulent… [or] knew the cash was there. It is noteworthy that most of the cash found…was in a room that someone else occupied, not Ms Neeranjan( only 6 to 7 thousand dollars was found in a room that the police have described as the Master bedroom)…. there is a complete lack of evidence linking stolen items or criminal activity to Ms Neeranjan [and] no evidence against Ms Neeranjan pertaining to count 94 (Fraud Over $5000 in relation to Avis Car Rentals)". Mr. Basile adds that it has not been shown that Neeranjan knew that furnishings and other property at 30 Bissland was proceeds of crime (count 92) or that she attempted to obstruct justice by using post office boxes to conceal where she lived and what she did (count 59).
3.4. Hariharan Nesarajah
[94] Mr. Santoro, on behalf of Hariharan Nesarajah, "accepts that the evidence presented by the Crown discloses a conspiracy to defraud credit card companies perpetrated by Kuhen Neshan and Ramanan Kenegarajah. The evidence does not implicate Hariharan Nesarajah as a member of this conspiracy… [or]…. in any criminal organization offences arising from the fraudulent credit card related activities….the Crown is asking this Court to draw inferences of guilt against Mr. Nesarajah from evidence seized from Apartment 311-11753 Sheppard Avenue East in Toronto". Mr. Santoro submits that the evidence in this case, including the seizures made at 311-11357 Sheppard Ave, does not establish his client's knowledge and/or participation in criminal activity. In any event, it is argued that the evidence obtained by police at the condominium unit should be excluded because police breached section 8 of the Charter.
[95] The search uncovered forged government-issued identification (a SIN card and Canadian Citizenship Card, the latter with Nesarajah's picture on it) and credit cards in the name of "Siva Rajan". These seizures, Mr. Santoro states, form the crux of the Crown's case against Nesarajah and adds that "on the evidence presented, this court is entitled to draw the inference that the Siva Rajan cards were obtained and used by Mr. Ramanan Kenegarajah and/or Mr. Kuhen Neshan with neither the knowledge nor the consent of Mr. Nesarajah. Since this inference is consistent with Mr. Nesarajah's innocence, the rule in Hodge's Case demands an acquittal."
[96] According to Mr. Santoro, the innocent inference can be drawn from the following facts:
- Kenegarajah used Apartment 311-11753 Sheppard as a residence
- Kenegarajah has listed this apartment as his own home address in documents filed with the Canada Revenue Agency
- When stopped by police on April 24, 2008 Kanagarajah stated this was his address
- The Siva Rajan cards were apparently last used in 2008 i.e. when Kanagarajah told police he was living in the apartment in question
- Neshan and Kenegarajah were observed attending the building on several occasions Neshan is the owner of the apartment unit
- Mr. Kenegarajah appropriated Mr. Hariharan Nesarajah's identity (including name and birthday) solely for his own benefit and without his consent. He obtained a BC Drivers' License in Mr. Nesarajah's name. Furthermore, in December of 2001, Kenegarajah was arrested at Pearson Airport by the Toronto Police Service and identified himself as Hariharan Nesarajah
- Kenegarajah clearly has criminal use for forged government issued identification with the pictures of persons other than themselves. There is evidence before this court that Kenegarajah used a false Ontario Driver's License with another person's name and picture to get a fraudulent credit card. Therefore despite the fact that the one of the cards has Mr. Nesarajah's picture on it, Kenegarajah would himself have had a criminal use for this identification
- The cards were not found in plain view, but in a wallet on a shelf in a closet in a bedroom, increasing the likelihood that Nesarajah was not aware of their existence
[97] Mr. Santoro suggests that there is not evidence that Nesarajah made hundreds of calls from any cell phone found in his apartment. Counsel also objects to the Crown's assertion that Nesarajah is linked to the Siva Rajan credit cards because of a Canadian Tire receipt and hand written notes found in the Audi motor vehicle he was observed to drive. Mr. Santoro claims the receipt does not contain the name "Siva Rajan" and that the notepaper records "Sivarajan" (one word).
[98] Mr. Santoro seeks the exclusion of evidence seized at his client's condominium unit. He does not challenge the validity of the search warrant but objects to the manner in which it was executed. He claims that the police seized items without reference to the terms of the warrant and the resulting over-seizure taints everything.
3.5. Rajitha Kanagarajah
[99] Ms Rekai, on behalf of Rajitha Kanagarajah, adopts the Charter argument presented by Mr. Santoro with respect to the search of the condominium unit she shared with her husband. Moreover, she "does not contest the evidence, presented by the Crown that purports to disclose an enterprise in common between Kuhen Neshan and Ramanan Kenegarajah, to defraud credit card providing companies". Ms Rekai maintains that it has not been proven that her client knew about or participated in these activities. In this regard, Ms Rekai makes the following points:
- Neshan is the registered owner of 11753 Sheppard Avenue East #311 with her husband and daughter
- There is no evidence that Kanagarajah had any knowledge of the employment letter submitted with her mortgage application for 1640 Pennel Drive – "The witness brought by the Crown admitted in cross-examination that this document was never reviewed with Ms. Kanagarajah"
- The lease of the "Land Rover" in Kanagarajah's and the payment of the lease by her "does not evidence any criminal behaviour on the part of Rajitha Kanagarajah"
- There is no evidence that the gift by Neeranjan to Kanagarajah of her interest in a British Columbia property, dated 23 July 2009, would be "relied upon by mortgage lenders in the process of deciding whether (and how much) to extend credit to Rajitha Kanagarajah"
- Mr. Aivalis identified Kanagarajah as receiving rent cheques and mail with respect to the Pennel Drive address but there is "no evidence that Ms. Kanagarajah had any knowledge of the contents of those letters or used them in any unlawful way"
- "The Crown alleges that the finding of documentation regarding the sale of 24 Steamer Drive Whitby in the premises of 30 Bissland Drive in Ajax is indicative of a relationship between the illegal activities of Ramanan Kenegarajah and his sister Rajitha Kanagarajah. The find of certain documentation belonging to one sibling in the possession of another sibling is equally indicative of an innocent sibling relationship as anything else"
- A number of credit cards or notations in the ledger books seized by from the Land Rover are connected to 311-11753 Sheppard Ave "but were never found in the possession of Rajitha Kanagarajah… [and] here is no evidence that Ms. Kanagarajah had any knowledge or control of any of these documents"
4. Applicable Legal Principles
4.1. Criminal Law Standard of Proof
[100] The defendants are presumed to be innocent. That presumption remains until such time as the Crown has shown them to be guilty. This must be proven beyond a reasonable doubt and applies to each element of each offence.
4.2. Fraud
[101] Fraud is alleged in count 1 (main charge), counts 3-10 (financial institutions), counts 66-69 (financial institutions re mortgages/real estate transactions), and count 94 (Avis); Fraud has two elements - dishonest act and deprivation. The dishonest act is established by proof of deceit, falsehood or other fraudulent means; and deprivation is established by proof of detriment, prejudice, or risk of prejudice to the economic interests of the victim, caused by the dishonest act. The mens rea is the subjective awareness that one was undertaking a prohibited act (the deceit, falsehood or other dishonest act) which could cause deprivation in the sense of depriving another of property or putting that property at risk. See R. v. Théroux, [1993] 2 S.C.R. 5
4.3. Money Laundering
[102] Count 92 on the Information alleges that:
Between the 1 st day of January in the year 1997 and the 3 rd day of March in the year 2010 … in the Province of Ontario … [the co-defendants] … did use certain property or proceeds of property, namely currency, with intent to conceal or convert that property or those proceeds, knowing or believing that all or a part of same had been obtained or derived directly or indirectly as a result of the commission in Canada of a designated offence, namely section 380 [fraud] of the Criminal Code of Canada , contrary to section 462.31 , subsection (1) , clause (a) of the Criminal Code of Canada.
[103] The Crown is required to prove that: (1) The defendant(s) dealt with property or proceeds of property (e.g. currency); (2) The property (or proceeds) was (were) obtained by crime (in this case fraud); (3) The defendant(s) knew or believed that the property (proceeds of property) had been obtained by fraud; and (4) The defendant(s) intended to conceal or convert the property (or proceeds). As the Supreme Court of Canada has stated, Parliament intended "to forbid 'conversion' pure and simple, thereby ensuring that those who convert property they know or believe to have illicit origins, regardless of whether they try to conceal it or not, do not profit from it": R. v. Daoust (2004), 2004 SCC 6, 180 C.C.C. (3d) 449 at 473-74 (S.C.C.)
4.4. Identity Theft
[104] Counts 61 and 63 allege that Neshan and Kenegarajah engaged in identity theft. This relatively new offence (s. 402.2) defines "identity information" as any information, including biographical or physiological information, of a type that is commonly used, alone or in combination with other information, to identify or purport to identify an individual".
[105] Section 402.1 (which also applies to s. 402.2) gives examples of identity information: Name; Address; Date of birth; Written, electronic or digital signature; Social Insurance Number; health insurance or driver's licence number; Credit or debit card number; Number of an account at a financial institution; Passport number; User code; Password; Fingerprint or voice print; Retina or iris image; DNA profile;
[106] The Crown must prove the defendants obtained or possessed another person's identity information in circumstances giving rise to a reasonable inference that the information was intended to be used to commit an indictable offence that includes deceit or falsehood as an element of the offence.
4.5. Similar Fact Evidence
[107] The Crown relies on the similar fact evidence rule. Mr. Flagg argues that, given the manner in which the evidence was called in this case, at large, over the entire length of the period covered in the Information, and dealing with the alleged conduct of all of the co-defendants, the Crown asks that the evidence on each count be considered as "similar fact" evidence across counts on the multi-count Information(s). The evidence, from the first allegations that arose in 2001, through the "takedown" of Project Morgan on March 2, 2010, dealt with one interconnected series of events, the Crown submits, which spans the entire time covered by the Information(s).
[108] Some of the alleged specific offences occurred on specific dates and it will be for this Court to determine whether the Crown has proved each of those offences beyond a reasonable doubt (e.g., whether certain defendants possessed certain credit cards on March 3, 2010). But the balance of the allegations covers a much lengthier span of time, locations and circumstances. Mr. Flagg argues that the only reasonable basis upon which to assess whether those offences have been made out is to do so by considering the evidence in its total context.
[109] Similar fact evidence is presumptively inadmissible. Ultimately, it may be admitted if its probative value outweighs any prejudicial effect. The assessment of prejudicial and probative value is measured by identifying the issue in question and the cogency of the evidence in relation to that question: See R. v. Handy, 2002 SCC 56.
[110] In the context of the present case, the comments of Watt J.A. in R . v. MacCormack, 2009 ONCA 72, [2009] O.J. No. 302 (C.A.) are relevant:
This case involves the invocation of similar act principles across counts in a multi-count indictment. The evidence relating to each count is relevant to and admissible in proof of the allegation contained in that count. Each incident is of equivalent gravity and of minimal inflammatory potential. This is not a case, in other words, in which conduct extrinsic to the crimes alleged in the indictment is enlisted as evidence of similar acts to prove what is alleged, and lugs with it inflammatory claims of greater gravity or moral depravity.
In large measure, the practical realities of a trial by judge sitting alone in a case in which the allegedly similar acts do not extend beyond the counts of a multi-count indictment reduce significantly, if not to the vanishing point, the virus of reasoning prejudice. The judge is less likely than a jury to be distracted by a focus on similar acts. No additional time is required to adduce the evidence of similar acts because they are co-extensive with the evidence that is relevant, material and properly admissible on the individual counts. The only additional time required is that needed for the argument on admissibility at the end of the trial. The conduct relied upon as evidence of similar acts was not contested, although the appellant's participation and the legal characterization of the crimes committed were controversial.
[111] With respect to the cogency of the evidence in this case, the comments of Doherty J (as he then was) in R. v. Sahaidak, [1990] O.J. No. 3228, are also instructive:
In most cases where a multi-count indictment is before the Court, evidence adduced on one count is not admissible for or against an accused on the other counts. Where, however, the events underlying the various counts are part of an ongoing course of dealings, and where those events are interwoven and interrelated so that as a matter of logic and common sense, the events underlying one count also enlighten and assist the trier of fact in understanding and assessing the evidence on the other counts, then evidence directly relevant to one count is admissible on the other counts as well.
[112] I accept the Crown's submission with respect to the similar fact evidence rule.
4.6. Circumstantial Evidence
[113] Mr. Santoro, and Ms Rekai in adopting his submissions, invoke the "Rule in Hodges Case" with respect to circumstantial evidence. In considering their submissions, I am mindful of the comments of Doherty, J in Sahaidak, supra - "Circumstantial evidence must … be viewed cumulatively and reasonable inferences drawn from the totality of the relevant circumstantial evidence" - and also those of Code, J in R. v. Adeyokunno, [2011] O.J. NO. 5356 – "The first step, in a circumstantial case, is to determine what primary facts have been proved. The second step is to determine what rational non-speculative inferences flow from the primary facts."
4.7. Single Transaction Rule
[114] Mr. Pillay and Mr. Olmstead contend that many of the charges in this matter violate the single transaction rule and that the counts are invalid and cannot form the basis of convictions. The single transaction principle is set out in section 581(1) of the Criminal Code ; "Each count in an indictment shall in general apply to a single transaction and shall contain in substance a statement that the accused or defendant committed an offence therein specified". In R. v. Rafael [1972] O.J. No. 1842 (O.C.A.) , Arnup J.A., reviewed section 510(1) of the Criminal Code (now section 581(1) ), and concluded:
The real test is whether either the count itself or the evidence adduced by the Crown in support of it can fairly be said to simply be occurrences within a single transaction. Since we are of the opinion that the events here proven cannot be so regarded it follows in our opinion the indictment did not conform with s. 510(1) of the Criminal Code and was bad.
We have not, of course, overlooked the provisions of s. 529(1) of the Criminal Code , which provides that an objection to an indictment for a defect apparent on the face thereof shall be taken by motion to quash the indictment or count before the accused has pleaded and thereafter only by leave of the Court or Judge before whom the trial takes place.
Without dealing in depth with the cases which have been decided under this and its predecessor sections….it is sufficient to say that the Courts have not permitted s. 529(1) to stand as an answer to an allegation which turns out to be correct that an indictment is wholly void for failure to comply with s. 510. It has been held that duplicity is not a "defect apparent on the face" of the indictment.
[115] Count 1 charges all of the defendants with one general count of fraud over a nine year period and count 92 charges them with money laundering over a 13 year period. Defence counsel point out that to prove these charges the Crown relies on many incidents, some of which involve Neshan and/or Kenegarajah and some are alleged to have involved them and one or more of the other defendants. The offences are said to have involved many victims and financial institutions at numerous places. Counsel complains that counts 1 and 92 are multifarious and offends the single transaction rule. It is thus invalid and must be quashed. The same argument is made with respect to counts 3 – 10. Each of these counts relates to a separate financial institution but it is asserted that the many individuals and places covered by each count over the nine years makes each one multifarious. Similarly, count 64 alleges that during this same period Neshan and Kenegarajah fraudulently impersonated numerous victims.
[116] The Defence submits that the single transaction rule can also be violated in a count alleging an offence committed on one day. Count 55 charges that on March 3 rd 2010, Neshan and Kenegarajah possessed property "namely furniture, electronics, appliances and household articles … knowing that the said property had been obtained by an offence …." Objection is taken that "this count as framed is an affront to the requisites of section 581(1) and given the magnitude of the items seized from 30 Bissland, potentially applies to many separate and distinct transactions. It is submitted that this count ought to be quashed".
[117] The Crown submits that the counts complained of are not multifarious and that the defendants could have asked for particulars or severance at the commencement of trial. In addition, Mr. Flagg points out that s. 586 of the Criminal Code provides that, "No count that alleges … fraud or an attempt or conspiracy by fraudulent means is insufficient by reason only that it does not set out in detail the nature of the … fraud or fraudulent means." Moreover, Mr. Flagg suggests that s. 581(1) gives rise to exceptions, given the use of the phrase "in general" and points to the comments of Kelly J.A. in R. v. Hulan, [1970] 1 C.C.C. 36 at 46-47 (Ont. C.A.) a case involving sexual misconduct against a young girl that allegedly took place a number of times over a span of many months:
The framers of the Criminal Code by referring to the general practice to be followed, have left some latitude for exceptional cases: and if there are to be exceptions to the general practice I would be strongly of the opinion that a case such as the one now before us is one of those to which the room for exception contained in this section was directed. As I will discuss later, no prejudice to the appellant is present in this case; if the procedural exactness were to be required the ends of justice would be frustrated not promoted….. there is a practical advantage to the appellant flowing from the Crown's election to treat all of these offences as one transaction.
[118] I understand Hulan to mean that "transaction" is a flexible concept. This is made clear in R. v. Canavan and Busby, [1970] 5 C.C.C. (Ont. C.A.):
Transaction" is a word of quite comprehensive import…..The word has been interpreted as the justice of each case demanded rather than by any abstract definition…..[and] in its broadest sense expresses the concept of driving, doing, or acting as denoted by the Latin word trans-agere from which it is derived.
A "transaction" may and frequently does include a series of occurrences extending over a length of time. …
The words "in general" appearing in [s. 581(1)] would appear to indicate a permissible relaxation of its terms extending to exceptional cases in which a number of acts each in itself constituting an offence is capable of being treated as one transaction. This is implicit in the provisions of s. 500(3) [now s. 590(3)] of the Code which empowers the Court, where it is satisfied that the ends of justice require it, to order that a count be amended or divided into two or more counts. This indicates that a number of acts, in themselves capable of constituting an offence, may be before the Court in one count and a trial on that count can proceed unless the Court is satisfied that a division is required.
[119] Similarly, in R. v. Monk, [1988] O.J. No. 94, the Ontario Court of Appeal noted that, "A single transaction may include separate incidents that in and of themselves may be separate offences, if the offences are inextricably bound up with one another and the trial of them as one count causes no prejudice to the accused". And in R. v. Barnes, (1975), 26 C.C.C. (2d) 112, the Nova Scotia Court of Appeal upheld the validity of a count of fraud alleging a doctor continuously defrauded the provincial health insurance plan over six months on the ground that that "a number of occurrences or acts taking place over a period of time may properly be characterized in one count as one continuing offence or transaction."
[120] The defendants did not seek particulars, severance or other remedy with respect to the counts complained of so that they could properly defend themselves. Indeed, nobody has claimed they are prejudiced by the wording of these counts, the Crown's theory in prosecuting them, or the evidence tendered in support thereof. The Defence asserts that such considerations are irrelevant if a count violates the single transaction rule. Mr. Pillay and Mr. Olmstead are correct in stating that the Crown relies on many instances of allegedly fraudulent activity involving several financial institutions and dozens of individuals (real and imaginary). It is also clear that the Crown alleges that the means of doing so was consistent throughout the periods in question and represents a continued course of conduct that effectively amounts to a global operation. Mr. Flagg submits that the enterprise fraud commenced with Neshan's insider access to credit card data at American Express and included in later years the significant contribution by Kenegarajah and the other defendants, to varying degrees, by facilitating or participating in the operation.
[121] I am satisfied, on the authority of Hulan , Carnavan, and Monk, that each of the impugned counts alleges a single transaction and complies with s. 581(1) .
4.8 Conspiracy
[122] Count 2 alleges a conspiracy over a nine year period beginning in January 2001 involving all five defendants. The Defence argues that the Crown has failed to prove the conspiracy charged and that if the evidence suggests anything, it is a different conspiracy or multiple conspiracies. I agree that these are important distinctions. In R. v. Papalia, (1979), 45 C.C.C. (2d) (S.C.C.), it was stated that,
A distinction must be drawn between a conspiracy count which charges the accused with two or more conspiracies, and a count which charges one conspiracy only but is supported by proof during trial of more than one conspiracy. The former gives rise to questions of duplicity. The latter raises the question of whether the Crown has proven the conspiracy charged against two or more of the accused notwithstanding evidence of a second conspiracy.
[123] It is the position of the Defence that whatever Neshan may have done in 2001, apart from his wife, there is no direct evidence of involvement by other defendants until many years later. Moreover, it is asserted that whatever this subsequent conduct amounts to, it is not evidence of participation in the conspiracy with which they are charged. Accordingly, at most, the Crown has proven an agreement between Neshan and his wife and this, in law, is not a conspiracy.
[124] The law of conspiracy is well settled and there is no dispute between Crown and Defence in this case with respect to the applicable principles. A conspiracy is an agreement between two or more persons to commit an illegal act or to achieve something lawful by illegal means. The basic elements of conspiracy are (i) an intention to agree; (ii) the completion of the agreement; and (iii) a common unlawful object. In a conspiracy case, the offence is complete upon the agreement being made. Acts in furtherance of the conspiracy need be proven but it must be shown the intended to act upon the agreement. Nevertheless, acts in furtherance may provide circumstantial evidence of the agreement. See: United States of America v. Dynar (1997), 115 C.C.C. (3d) 481 (S.C.C.).
[125] A conspiracy is a continuing offence that terminates when the unlawful object is achieved, abandoned, or frustrated. Provided there is a continuing overall, dominant plan, there may be changes in methods of operation and personnel with varying degrees of involvement, or in proposed victims, without bringing the conspiracy to an end. The important inquiry is not as to the acts done in furtherance of the agreement, but whether there was, in fact, a common agreement to which the acts are referable and to which the accused are privy. See: Papalia, supra. Moreover, it is not necessary for the Crown to prove that each member of the conspiracy knows the details of the common scheme as long as each one is aware of its general nature and adheres to it: R. v. Root, (2005) 2008 ONCA 869, 241 C.C.C. (3d) 125 (OCA) at 141 (para. 68 ).
[126] In R. v. Paterson (1985), 18 C.C.C. (3d) 137 at 143-44 (Ont. C.A.) , Martin J.A., said:
A single conspiracy may have more than one illegal object and it is proper to allege in one count a conspiracy to commit several crimes. If the prosecution proves a conspiracy to do any one of the prohibited acts alleged in the indictment as the objects of the conspiracy that is sufficient to support a conviction….
The prosecution must prove the conspiracy alleged. Where the count alleges that the accused conspired together for a common purpose but the prosecution proves only that some of those accused had conspired with one of their number for their own purposes, no common purpose such as that alleged has been established......
Where the evidence establishes the conspiracy alleged against two or more accused (or against one accused and an unknown person where the indictment alleges that the accused conspired together with persons unknown), it is immaterial that the evidence also discloses another and wider conspiracy to which the accused or some of them were also parties….
[127] A conspiracy is not often proven by direct evidence of an agreement among the parties but, rather, is usually established by their conduct. The actual agreement must be gathered from several isolated doings having possibly little value in themselves but in their cumulative effect, properly interpreted, in the light of all surrounding circumstances, may show a concerted purpose that points to the existence of the unlawful agreement. R. v. Paradis (1931), 61 C.C.C. (S.C.C.).
[128] The classic statement about proof of a conspiracy is R. v. Carter (1982), 67 C.C.C. (2d) 568 (S.C.C.), in which set out a three-stage process:
At the first stage, the Crown must establish the existence of the conspiracy charged—irrespective of membership—beyond a reasonable doubt.
At the second stage, the Crown must establish the probable membership in the conspiracy of each accused, on the basis of evidence directly admissible against him (in other words, without resort to the co-conspirators' exception to the hearsay rule), as viewed against the overall context.
At the third stage, the Crown must establish membership beyond a reasonable doubt. At this stage, the Crown may rely upon the co-conspirators' exception to the hearsay rule, which, based on the principle of agency, permits the words and acts in furtherance of the conspiracy of each probable member to be used against all probable members in determining whether membership has been established beyond a reasonable doubt.
[129] In R. v. Baron and Wertram (1976), 31 C.C.C. (2d) 525 (Ont. C.A.), Martin J.A, stated:
The governing rule of evidence is not in doubt, although its application in a particular case often raises questions of great difficulty. The rule is based upon a principle of agency. If A and B have agreed to achieve a common unlawful purpose, then by their agreement each has made the other his agent to achieve that purpose, with the result that the acts and declarations of A in furtherance of the common design are not only A's acts and declarations but, in law, are also B's acts and declarations….It only comes into play, however, where there is evidence fit to be considered by the jury that the conspiracy between A and B exists. It is clear that where the fact in issue to be proved is whether a conspiracy exists between A and B, A's acts, or declarations implicating B cannot be used to prove that B was a party to the conspiracy, in the absence of some other evidence admissible against B to bring him within the conspiracy.
[130] The law with respect to proof of a conspiracy applies to the prosecution of all offences where it is alleged that two or more people are engaged in a common design; it is not necessary that they be charged with conspiracy: R v Koufis (1941), 76 C.C.C. 161 (S.C.C.).
4.9 Participation in a Criminal Organization
[131] Count 54 alleges the defendants participated in a criminal organization. Section 467.11(1) of the Criminal Code criminalizes the knowing participation or contribution to a criminal organization's legal or illicit activities. It does not require a criminal act itself and the accused do not need to be a member of the organization. In R. v. Atkins et al ., 2010 ONCJ 262, it was held that:
Any reasonable interpretation of the statute would suggest that a criminal organization is at minimum, nothing more than: any three persons, however organized, who associate for more than offence, to commit serious offences for the benefit of at least one person in that group. … Maximum flexibility is achieved by the use of the words "however organized." There are no requirements for (a) formally defined roles; (b) continuity of association; or (c) a developed structure. While it is helpful if the group obligingly adopts a name associated with some notoriety, or dresses in a certain manner with coloured accessories or "patches," or establishes a territory, the fact is that no particular group structure or organization is actually required. Nonetheless, the persons who constitute "the group, however organized" are only associates of a criminal organization to the extent they share its criminal objectives.
[132] I agree, on the basis of Atkins, that in this case the Crown must prove that:(a) a criminal organization existed during the period February 1, 2005 and March 3, 2010; (b) each defendant participated in the group or contributed to its activities; and (c) each defendant had knowledge that the group he or she associated with had as one of its main criminal purposes the facilitation of the offences of credit card fraud and identity theft and knowledge that his or her involvement in this activity would likely result in a direct or indirect benefit to the group or any person in the group.
[133] Counsel on behalf of Mr. Neshan and Mr. Kenegarajah both submit that the Crown has failed to prove the existence of a criminal organization, in part because of the manner in which the Crown responded to the defence application for particulars of that count at the commencement of this trial. They argue that the amendment to the count, which added the words "of which they are members" prior to the word "contrary" means that the Crown is required to prove that each of the defendants, including Mr. Balan, against whom this charge was withdrawn after he pleaded guilty. I do not accept this submission. The Crown is not required to establish the existence of all of the members of the organization, provided there are at least three members. If so, the three or more members so identified may be convicted.
4.10. Provincial Jurisdiction
[134] Where an offence is committed entirely in one province, a court in another province has no jurisdiction to try the offence. However, s. 476 (b) of the Criminal Code provides that where an offence was commenced within one territorial division and completed within another, the offence shall be deemed to have been committed in any of the territorial divisions. In this regard, "territorial division" includes a province: s. 2 of the Criminal Code .
[135] In Re Bigelow, 69 C.C.C. (2d) 204, the Ontario Court of Appeal at 208-09 (Ont. C.A.) in which the Court of Appeal held that in matters of interprovincial jurisdiction, the courts have adopted a broad and flexible approach and noted that,
It would be imprudent to attempt a rigid and exclusionary categorization of cases where such jurisdiction has been or may be assumed. There are, however, three categories relevant to this case. They are offences where the province claiming jurisdiction can establish, first, a continuity of operation extending from that province to other provinces, secondly, the commission of an overt act in that province, or thirdly, the registration of effects in that province from acts committed in other provinces.
[136] In the present case, there is abundant evidence that financial institutions in Ontario suffered losses for transactions in British Columbia. Indeed, Paul Morgan of CIBC testified that all that bank's credit card transactions are processed through a facility in Toronto. On this basis the Crown submits that any credit card transaction from any province would constitute a continuity of operation extending from that province to Ontario. If so, that would also apply to transactions involving American Express, JP Morgan Chase and MBNA. Mr. Flagg argues that, in any event, "in any situation in which a transaction 'occurred' in British Columbia, for example, but involved the account of a person (real or not) who was said to be in Ontario, then such a transaction also would constitute the registration of effects in Ontario from acts committed in British Columbia". By way of example, the Crown cites the evidence that Neshan and Kenegarajah used a credit card in the name of Dr Niou, a real person from Burnaby, B.C, to commit fraud in Ontario. These were overt acts committed in Ontario that had effects in British Columbia, therby conferring jurisdiction on both provinces.
[137] I agree with the Crown's submissions about the meaning of s. 476(b). It is consistent with the broad and flexible approach in Re Bigelow and is particularly relevant in light of modern technology in which virtually all financial transactions occur electronically and over large distances. Accordingly, I accept that the evidence in this case, with respect to the "continuing offences" (counts 1, 2, 3-10, 54, 64, 92) and some of the other fraud counts (66. 67, 68, 69), have significant interprovincial aspects that mean they can be prosecuted in Ontario or British Columbia.
4.11. Wilful Blindness
[138] Counsel for Neshan's wife, Neeranjan, as well as the husband and wife team of Nesarajah and Kanagarajah in accepting that there is compelling evidence against Neshan and Kenegarajah argue that there is no proof that their clients had knowledge of these criminal activities. The Crown submits that, at the very least, these three defendants were wilfully blind.
[139] In R. v. Sansregret (1985), 18 C.C.C. (3d) 223, the Supreme Court of Canada approved of the following comments by Glanville Williams in Criminal Law: The General Part , 2 nd ed., 1961, at pp. 157-60:
Knowledge, then, means either personal knowledge or (in the license cases) imputed knowledge. In either event there is someone with actual knowledge. To the requirement of actual knowledge there is one strictly limited exception. Men readily regard their suspicions as unworthy of them when it is to their advantage to do so. To meet this, the rule is that if a party has his suspicions aroused but then deliberately omits to make further inquiries, because he wishes to remain in ignorance, he is deemed to have knowledge. ...
In other words, there is a suspicion which the defendant deliberately omits to turn into certain knowledge. This is frequently expressed by saying that he "shut his eyes" to the fact, or that he was "wilfully blind."
5. The Charter Applications
5.1 Detention and Search of Kenegarajah in 2008
[140] Kenegarajah's Charter application to exclude evidence relies heavily on the cross-examination of Cpl. Royce by Mr. Olmsted, during which the officer stated that:
- When he arrested the defendant on April 24th 2008, he did so for terrorist financing
- The initial complaint that triggered his investigation was that committee members of a Hindu temple believed that two males were trying to control the temple to raise funds for the Tamil Tigers
- He did not know whether the complainant had firsthand knowledge that the two males were trying to raise fund for the Tamil Tigers or not
- The complainant was reluctant to talk with him about the complaint. There was not a lot of information provided about the complaint
- There was a dispute at the temple between two factions when the complaint arose
- The initial complaint of terrorist financing was not corroborated by his investigation
- Following his detention for terrorist financing, the defendant was searched "for officer safety" and his wallet was removed from his pocket. Following the removal of the defendant's wallet, the officer observed credit cards in another person's name
[141] Mr. Pillay submits that the detention of Kenegarajah was unlawful and in breach of his section 9 Charter rights as there were no reasonable and probable grounds to stop or detain the defendant for terrorist financing. He claims the breach is flagrant and serious because Cpl. Royce knew there was no evidence of the defendant's involvement in terrorist financing sufficient to result in any charges. It is said that this is shown by the fact that the officer did not release Kenegarajah in relation to charges of terrorist financing; that is, he "simply had no grounds to arrest for terrorist financing and he knew it".
[142] Mr. Pillay has fairly summarized the cross-examination of conducted by Mr. Olmstead. However, Cpl. Royce also testified that his investigation of Neshan and Kenegarajah about possible terrorist financing at a temple caused him to inquire about the involvement of the two men in financial crimes. This included a review Vancouver Police and RCMP reports from previous years involving alleged thefts of mail and diversion of mail to post office boxes. He was also aware that Neshan had been investigated for alleged "account takeovers" involving CIBC corporate security in 2005. By 2007, Cpl. Royce had come to suspect that that fraud was the basis by which Neshan and his wife, Neeranjan, had acquired large real estate holdings in the Vancouver area. Thus, the inquiry into allegations of terrorist financing had assumed the character of a fraud investigation.
[143] The testimony given by Cpl. Royce about the nature of his investigation was not successfully challenged and there is no evidence to the contrary. This can also be said about the officer's account of Kenegarajah's detention on April 24, 2008. On this day, Kenegarajah was observed to drive 40 kilometres, go to an ABM machine, and drive back in the direction of his home. To travel such a great distance to conduct a simple transaction that could, without doubt, have been done closer to home is obviously suspicious. As police officers followed Kenegarajah, he engaged in activity consistent with counter-surveillance measures by driving erratically and hazardously. As a result, Kenegarajah was stopped. In speaking to him, Cpl Royce observed a large amount of twenty dollar bills and ABM receipts in plain view. Kenegarajah gave a false name and an address on River Road in Richmond B.C. that the officer knew was not his residence. After being arrested and searched, police seized $1,960.00 and credit cards in other people's names.
[144] I am satisfied that the police were entitled to stop, detain, and search Kenegarajah based on the totality of their observations on April 24, 2008. In this regard I am not troubled by the fact that he was arrested for terrorist financing. That investigation may have changed its colour to become one involving fraud, but it had not been abandoned. In any event, the two purposes for the traffic stop – unsafe driving and fraudulent activity – were both justifiable in this case. The fact that police may have used one as a reason to uncover evidence of the other does not offend the Charter . See: R. v. Nolet (2010), 2010 SCC 24, 256 C.C.C. (3d) 1 (S.C.C.)
5.2. Execution of Search Warrant at 311-11753 Sheppard Ave., Scarborough
[145] As already indicated, Mr. Santoro, seeks the exclusion of evidence seized at Nesarajah's condominium unit because of the manner in which the search warrant was executed on March 3, 2010. That warrant authorized the seizure of many things: Credit cards; Identity documents including but not limited to federal and provincially-issued government identification cards and documents; Banking documents including but not limited to credit card statements, mortgage statements and bank account statements; Tax records; Credit card receipts for purchases; Property obtained by use of fraudulent credit cards including but not limited to furniture, appliances, electronics and other home furnishings; Documents pertaining to post office box rentals; Currency.
[146] Mr. Santoro points out that only "property obtained by fraudulent credit cards, not any property, could be seized from Apartment 311". Instead, he claims, officers appeared to believe they were authorized to seize anything of value and anything electronic item containing information which could prove fruitful for the investigation if subjected to further search and this is not authorized by the warrant. It is submitted that 44 of the 90 items listed on the exhibit list were unlawfully seized, as set out below:
Items of Value: Sony T.V.; Nikon D90 Camera and Nissin Flash; Walkie Talkie and charger; Pen Set; Remote Rogers; Key Chain from Vancouver;Porcelain set; DVDs; Picture frame; DVD Players; Fossil Wristwatch; Nikkon Camera; Sharp TV; Canon Pixma M1560 Printer ;GPS; Queen of Hearts picture frame; King of Clubs picture frame; Game - Nintendo DS; Nintendo WI; Prada Sunglasses; Prada Sunglasses and Necklace; Men Watch Esquire; Picture of Sports; Samsung Monitor; Brother Printer / Scanner; Kid bicycle - white
Items Containing Information: Black Razor phone; Red Motorola phone; Black Samsung phone; Black Iphone; Grey Blackberry; Black Rogers Blackberry; Black Rogers Blackberry and Black Rogers Pearl; Red Blackberry; Black Iphone; Black Nokia Cell phone and charger; Black Rogers Samsung Phone; Computer Tower; Computer think drives; Blackberry; Flash Drive; Computer laptop and bag; Clearnet phone; Black Rogers Pearl
[147] Mr. Santoro argues that the officers who seized the above items had virtually no personal knowledge of the investigation, and were not able to form reasonable grounds that any of these items were obtained using fraudulent credit cards. They were not given any direction by the officer in charge, Det. Caplan or the officer he designated to supervise the search, Cst. McKay. It is submitted that in situations of over-seizure, where the police do not make a good faith attempt to stay within the boundaries of a warrant, the improper search taints the entire seizure, not just the items seized without authorization. Finally, it is argued that in all the circumstances, the application of the "three Grant factors" mandates exclusion of all evidence pursuant to s. 24(2) of the Charter.
[148] The officers involved in the execution of the search warrant in question were McKay, Stone, Capener, Smith, and Chambers. These officers had played little role in the investigation before March 3, 2010. The officer in charge, Det. Caplan, did not actively supervise this search as he was involved in the execution of a warrant at 30 Bissland. Defence counsel submits this absence of supervision along with the officers' admitted lack of knowledge about the investigation caused them to seize anything they personally believed might be relevant. I do not accept this submission. The officers testified they seized anything of value that could have been purchased with fraudulent credit cards. This was an appropriate approach having regard to the broad scope of the search warrant. Almost all of the items seized by police, as listed above, can reasonably be said to be authorized by the search warrant.
[149] The leading case on point is R. v. Church of Scientology of Toronto, [1991] O.J. No. 3759 (QL) (Gen. Div) . The trial judge found that police grossly over-seized hundreds of files containing personal and confidential information about individuals in the Scientology movement. The warrant only authorized the seizure of such files relating to "members of the guardian office staff, or former members of the guardian office staff" (a particular group of individuals). The officers who conducted the search never received a list of the "guardian office staff members" and would have had no way of knowing what persons were or had been members of the guardian office staff. This over-seizure resulted in the exclusion from evidence of everything that had been seized.
[150] The conduct of the officers this case cannot be compared to that in Scientology. The former stated they understood that the warrant allowed them to seize "property obtained by use of fraudulent credit cards including but not limited to furniture, appliances, electronics and other home furnishings" and they governed themselves accordingly. The difficulty Mr. Santoro faces in this Charter application is not the conduct of the officers in executing the warrant but its broadly worded term in question. The significance of Scientology is that it appears to support such a term. Mr. Santoro concedes this and that is why he did not challenge the validity of the warrant.
[151] I find that the police did not violate s. 8 of the Charter as alleged by the Defence. The motion to exclude is dismissed.
6. Conclusions
[152] In most trials, the determination of whether the Crown has proven guilt beyond a reasonable doubt will turn on an assessment of the credibility and reliability of the evidence. That is not this case; for the most part, the quality of the evidence is not controversial. Unless otherwise expressly noted, I am confident in accepting the preceding summary of evidence as fact. In deciding the legal implications of these facts, including permissible and appropriate inferences, I will deal with the counts in this order: (1) Those involving Neshan and Kenegarajah; (2) Those in which these two men are jointly charged with one of the two women; (3) Those in which all five defendants are jointly charged.
[153] Neshan and Kenegarajah are jointly charged with many offences. I will group them by date, beginning with the most recent allegations:
- Counts 11 – 53: Possession of specific credit cards, obtained by the commission of an offence, on March 3, 2010
- Counts 56 and 58: Possession of property and money, obtained by the commission of an offence, on March 3, 2010
- Count 61: Possession of identification information intended to be used in a fraudulent manner, on March 3, 20 10
- Count 65: Fraudulent passions of credit card data that enables the use of credit cards, on March 3, 20 10
- Counts 73-91: Fraudulent possession of credit card data, with specific names and financial institutions, on March 3, 2010
- Count 95: Possession of a Sears credit card in the name of Decruz, obtained by the commission of an offence, between September 9, 2009 and March 1, 2010
- Count 66: Fraud against TD on September 30, 2008
- Count 69: Fraud against MCAP on May 23, 2007
- Counts 3 – 10: Fraud against specific financial institutions between 2001 and 2010
- Count: 72: Fraud against Citibank between 2001 and 2010
- Count 64: Personation, between 2001 and 2010
- Count 70: Fraud against CIBC December 15, 2000
[154] Counsel of Neshan and Kenegarajah, while insisting that the Crown discharge its burden of proof with respect to all offences, did not make submissions with respect to many charges. In particular, no argument was presented with respect to the substantive counts arising directly from the evidence uncovered by the Durham Regional Police during surveillance, arrests, and the execution of search warrants. This is not surprising – there is nothing that could be said in the face of such voluminous and compelling evidence. The most pertinent facts with respect to these charges are set out in paragraphs 34, 36, 40, 39, 45, 48 - 50, 52, 60 - 63, 62, 67, and 70 of this judgment. It would be pointless to review these facts again. The evidence in support was not seriously or successfully challenged or undermined. Suffice it to say that Neshan and Kenegarajah were occupied full time in the operation of a large and sophisticated "bust out" fraud scheme. This involved the creation of false identities and theft of other people's identity, the use of numerous post office boxes to hinder authorities from tacking their activity, building credit limit slowly, and changing address on the cards, making small purchases and payments, until the inevitable "bust out" before the card is abandoned; that is, after the purchase of high priced property and/or withdrawal of large amounts of money. This required daily visits to retail outlets and banks. The sheer scale of this operation is evidenced by the ledgers seized from the Land Rover and property seized upon arrest and pursuant to search warrants. Among the material seized was personal data with respect to dozens of individuals and financial institutions, more than 50 credit cards, over $100,000.00 cash, about 80 cell phones, as well as electronics and luxury items.
[155] In considering the case against Neshan and Kenegarajah one is drawn irresistibly to the conclusion that the defendants are guilty. Moreover, I am convinced that the evidence uncovered by the Durham Regional Police Service is simply a snap shot of the activity of these two men. It reveals the tip of an iceberg that stretches back in time. It is inconceivable that Neshan and Kenegarajah could have abruptly started the scheme that was discovered. This must have entailed years of effort, beginning with minor frauds and building upon their experience, to create an extraordinary enterprise. Apart for counts 51 and 70, about which no evidence was tendered, I find Neshan and Kenegarajah guilty of all charges listed above.
[156] Neshan is also charged alone (count 60) with obstructing a peace officer. This relevant evidence is set out in paragraph 42 of these reasons and relates to events on February 24, 2010 when Neshan provided a false name to Cst. Mitchell. There is no doubt Neshan is guilty of this charge.
[157] Neshan and Kenegarajah are also jointly charged with each of the two female defendants: Rajitha Kanagarajah is Kenegarajah's sister (and the wife of Nesarajah) and Anantha Neeranjan is the wife of Neshan. It is conceded that Rajitha Kanagarajah and her husband resided at the Sheppard Ave. condominium unit. Police observed Neshan and Kenegarajah visit this building several times and the actual unit is owned by Neshan. The two men were often seen coming and going from 30 Bissland Drive and there can be no doubt they lived there with Neshan's wife. Two of the joint charges relate to homes that the Crown claims were purchased to launder the proceeds of the extensive frauds previously described.
[158] Kenegarajah, Neshan, and the latter's wife, Anantha Neeranjan are charged with possession of property by crime, namely furniture, electronics, and appliances (count 55) and money (count 57) on March 3, 2010. Counsel for Neeranjan submits there is no proof that she knew about her husband's activities. The uncontradicted evidence belies this submission. The most important relevant paragraphs are 60, 62, 64, 67 and 70 with respect to the search warrant at 30 Bissland Drive. The home was filled with the proceeds of crime, including furnishings, credit cards, cell phones and money stashed in various places. All items would be in plain view or accessible to the woman of the household. There is nothing to suggest Neeranjan could reasonably believe the two men were lawfully employed. There is nothing to suggest she could reasonable believe the property was legitimately purchased or that there was some plausible explanation for why over $100,000.00 was strewn about, rather than deposited in a bank. Indeed, the evidence points to her knowledge of the criminal conduct of Neshan and Kenegarajah. At best, she was wilfully blind. In any event, I have no doubt all are guilty.
[159] Neshan, Kenegarajah, and Neeranjan are also charged with a fraud against Maple Trust on June 18, 2007 (count 67). The relevant facts are set out in paragraph 32 and concerns the purchase of a home at 47 Portelli Crescent by Neeranjan, at a price $425,185.93 and a mortgage of $392,616.27. Kumar Sriskanda testified that he also facilitated this transaction and identified Neeranjan as the person he dealt with as the purchaser. As part of her mortgage application, Neeranjan provided a letter from her "employer", which she stated was "Appropriate Inc. and earned $68,000.00 per year. In addition, a part of the $42,000 down payment was a "gift" of $15,000. The Declaration of Gift records that the money came from her "brother" "Kugan Neeranjan. The Crown argued that the employment letter and gift are both a sham. Mr. Basile submits that there is insufficient proof that either document is false. I accept this submission and find the three defendants not guilty. Similarly, I accept Mr. Basile's submission that there is insufficient proof that Neeranjan was a party to the fraud by Neshan and Kenegarajah on Avis Rent a Car (count 94)
[160] Neshan and Kenegarajah are also jointly charged with the latter's sister, Rajitha Kanagarajah with fraud against Home Trust on December 3, 2008 (count 68). The relevant paragraphs are 21, 26, and 30 – 32 and concern the purchase of a home at 1640 Pennell Drive, in the name of Rajitha Kanagarajah. A mortgage on the property was later obtained from Home Trust on the strength of a letter confirming she earned $118,000 annually as the operations manager of a company called World Golden Stone Inc. This letter was signed by "President Richard Frank". Kirupananthan Nagarajah testified that he is the owner of World Golden Stone Inc. and that he has never heard of a President Richard Frank. He also stated that he does not know and has never employed Rajitha Kanagarajah. Moreover, Bill Aivalis, tenant at 1640 Pennel Drive identified Rajitha Kanagarajah as a person to whom he delivered rent cheques. One such cheque was found under the mattress of a bed at the condominium unit Rajitha Kanagarajah shared with her husband. Having regard to this evidence I am convinced that Rajitha Kanagarajah tendered or knowingly allowed Neshan and Kenegarajah to tender the letter in question. I find all three guilty of the offence.
[161] The two women are also jointly charged with the two men that they obstructed justice by using post office boxes to conceal their true address and identity and thereby continue with their fraudulent scheme (count 59). Some of thee boxes, were rented in the name of the women. There is no doubt Neshan and Kenegarajah are guilty of the offence as they were seen frequenting such locations and found in possession of relevant documentation. Those considerations do not apply to the two women and I cannot discount the possibility that the post offices were opened in their names by the two men. I find the two women not guilty.
[162] The Crown concedes that there is no evidence against Nesarajah with respect to counts 71 and 93 (failure to comply with probation). He is also charged with obstructing a peace officer on February 3, 2020 (count 109). The evidence on point (paragraph 23) shows that Nesarajah is not guilty of this offence.
[163] There are four counts that name all defendants and cover a long period of time: Count 1 charges fraud on the public, over $5,000.00, between 2001 and 2010; Count 2 alleges conspiracy to commit fraud through the use of fraudulent credit cards during this same nine year period; Count 54 charges the defendants with participating in a criminal organization between 2005 and 2010; Count 92 alleges money laundering between 1997 and 2010.
[164] These four global counts share much evidence in common, including that which informs the aforementioned conclusions. Also relevant is that the accused are members of an extended family. As already noted, the scale of the operation conducted by Neshan and Kenegarajah must have been years in the making. The evidence uncovered by the Durham Regional Police investigation in 2010 Ontario mirrors past activity. This can be seen in the actions of Kenegarajah in 2008 in British Columbia as reported by Cpl. Royce. The defendant had withdrawn a large amount of money with a fraudulently obtained credit card and was in possession of five other such cards. Moreover the acquisition of various homes points to fraudulent activity well before 2008, even if, contrary to the Crown' submission it does not go back as far as 2001 with the execution of the search warrant at 21 Rockport. The purchase of residences in 2007 and 2008 indicates a mature scheme.
[165] The properties purchased in Ontario includes 311-11753 Sheppard Ave., 30 Bissland Drive, 47 Portelli, 87 Portelli, and1640 Pennell. The condominium unit was legally owned by Neshan and I find that the others were functionally owned by Neshan and Kenegarajah, through proxies. 30 Bissland was "purchased" by three people who could not afford it, two of whom had never seen it. Title to the Portelli properties was in Anantha Neeranjan's name. Pennell Drive was in the name of Rajitha Kanagarajah. The tenant at that address paid rent to her – and he did so by meeting her at a restaurant to deliver the cheques. The tenant at 87 Portelli testified he gave mail that had arrived there for "Sri" to Kenegarajah. I am satisfied that these properties were a means to launder money. It is also obvious that Neshan and Kenegarajah, assisted by Balan, intended to acquire additional property. The meetings among these three men in February and March 2010, the visits by the Neshan and Kenegarajah to Greenpark Homes, where they were ultimately arrested, as well as the documents seized from them as incidents of arrest attest to this fact. Those documents include cheques and an agreement of purchase and sale in the name of Balan.
[166] The Crown submits there is evidence of ill gotten gains and money laundering as early as 2001. In that year, a search warrant was executed at 21 Rockport Drive. Police encountered Rajitha Kanagarajah inside. A new Mercedes Benz that was parked at the house had been leased, in Rajitha Kanagarajah's name, with a compromised credit account that had been accessed by Neshan at American Express. Inside the home, police found gold and silver Jewellery, a rolex watch, gift certificates from various retailers totalling $2,641.65, identification in the name of Kushen and Neeranjan, and financial records pertaining to several bank accounts that contained over $200,000.00 in cash or Guanteed Income Certificates. This evidence appears suspicious but without more, it is insufficient to support the Crown's claim. Of greater evidentiary significance is Anantha Neeranjan's title to a gas station in 2005. Her cousin testified that he was the owner and operator of the station and that Anantha Neeranjan did not work there or earn income from it. I accept the Crown's submission that the explanation for this is contained in Neeranjan's tax records for the years 2005 to 2007. It is reasonable to conclude her reported "other income" of about $203,000 is related to her title to the gas station and was a means to launder money.
[167] Of particular relevance to the global counts as against Nesarajah and Rajitha Kanagarajah is the seizure on March 3, 2010 of a BlackBerry smart phone which revealed that over 1000 calls had been placed to six financial institutions that provide credit cards. Moreover, among the items seized from the Audi motor vehicle after the arrest of Hariharan Nesarajah was a Canadian Tire Receipt, dated December 27, 2009 for a purchase on the Mastercard account in the name of SivaRajan for work on the car ordered by Rajitha Kanagarajah and a handwritten piece of paper with names, addresses, phone numbers, and email addresses for Hari Ganesh and SivaRajan.
[168] The material seized from the residence and automobile belonging to Rajitha Kanagarajah and Hariharan Nesarajah potentially implicates both individuals. I reject the suggestion that the evidence of the telephone calls to credit card companies cannot be linked to the two defendants because others (i.e. Neshan and Kanagarajah) had access to the condominium. In the absence of any evidence to the contrary I draw the logical inference that the phone, and other property, found in that unit was used by the people who lived there, or used by others with their consent. Similarly, I reject the suggestion that the seized records pertaining to "Sivarajan" refers to a person other than the "Siva Rajan" used by Neshan and Kenegarajah to facilitate frauds. They are obviously one and the same. Having regard to the other evidence implicating Rajitha Kanagarajah in mortgage fraud and lending her name as titleholder to a home used to launder money, I am confident in linking her to the incriminating evidence seized at her home and in her car. That cannot be said with respect to Nesarajah. I appreciate he had the same access to home and car. I am also mindful that Kanagarjah had identification in Nesarajah's name in British Columbia. However, these facts do not necessarily implicate him and, unlike his wife, he has not been shown to commit any overt acts with respect to any of the charges before the court.
[169] Counsel for Neshan and Kenegarajah argue that the Crown has failed to prove the conspiracy alleged and may have proven subsidiary conspiracies. Counsel for the other defendants add that the Crown failed to articulate a theory to prove their clients' involvement in a global conspiracy. I would not reject the Crown's submissions on that ground; the Crown made clear that it intended to prove that Neshan and Kenegarajah, assisted by the other defendants, conspired to commit fraud through the use of fraudulent credit cards over a ten year period. However, I agree with the Defence that the Crown has failed to prove this. There is no question that Neshan and Knagarajah, for a period of several years, conspired to commit fraud. The Crown has produced overwhelming evidence of this. However, that is a different conspiracy. Count 2 alleges that the five defendants conspired to commit fraud over a ten year period. I accept that changes in operation and personell are not fatal to a conspiracy charge. Nor is it necessary for all members to know the details of the common scheme. However, they must understand the general nature of the plan and adhere to it. The Crown has not established this: in particular, the evidence before 2005 is speculative and limited. I am not persuaded that the defendants entered in the common agreement, as described in Paterson, supra and Papalia, supra. This charge is dismissed.
[170] Different considerations apply with respect to the criminal organization count. Having regard to all my conclusions, I have no doubt that a criminal organization existed between 2005 and 2010. Neshan and Kenegarajah were the leaders of this group. Neshan's wife, Neeranjan, and Kenegarajah's sister, Kanagarajah, participated in the group and contributed to its activities, as set out above. All four individuals knew the group had as its criminal purpose the facilitation of credit card fraud and identity theft and each one benefited to a greater or lesser extent. This meets the criteria provided for in s. 467.1 of the Code. For reasons already stated, I am not confident that these observations apply to Nesarajah. Accordingly all but Nesarajah are found guilty of this offence.
[171] I need not say much about the two remaining global counts – the allegation of a ten year fraud upon the public and a 13 year money laundering scheme (as I have referred to the offence in s. 462.31(1) of the Code ). It is beyond doubt that Neshan and Kenegarajah are guilty of these offences. The conclusions I have reached explain this result. This cannot be said about the other defendants. The few offences for which two of them have been found guilty, including the criminal oraization count, do not justify a conviction on the two remaining global charges. Specifically, it has not been established that they engaged in the prolonged course of conduct that is alleged. With respect to Neshan and Kenegarajah, I am not troubled by the fact that the Crown has failed to prove beyond a reasonable doubt that the fraud and money laundering in question existed for the period alleged. I am of the view that this is not necessary in the circumstances of this case, including my finding that the crimes lasted several years preceding the arrests. Nor am I concerned that not all defendants have been found guilty. These charges, unlike the conspiracy count, do not depend on a meeting of the minds.
7. Result
[172] The conspiracy charge is dismissed as against all defendants. Kenegarajah and Neshan are found guilty of the global charges of fraud, money laundering, and participating in a criminal organization as well as most of the other substantive counts. Neeranjan and Kanagarajah are found guilty of participating in a criminal organization and a few substantive counts. Nesarajah is acquitted of all charges.
[173] The four defendants found guilty are convicted as follows:
- Kenegarajah: Counts 2, 3 – 50, 52 – 59, 61, 65 – 66, 69, 72 – 91, 94 – 95
- Neshan: All of the above as well as count 60
- Neeranjan: Counts 54 – 55, 57
- Kanagarajah: Counts 54, 68
[174] I am grateful for the assistance given to me by all counsel in this case.
Released: October 12, 2012
Signed: "Justice J. De Filippis"
