WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.—

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2016-05-04

Durham Region: Court File No.: 998 15 25163

Parties

Between:

Her Majesty the Queen

— and —

Akshay Prasad

Before

Justice J. De Filippis

Reasons for Judgment released on May 4, 2016

Counsel:

• Mr. J. Wakely & Ms. M. Insanic — counsel for the Crown
• Mr. D. Paradkar — counsel for the accused

Decision

De Filippis J.:

[1] The defendant is one of a number of individuals arrested in an investigation by the name of "Project Keystorm". This investigation lasted many months, relied heavily on the interception of private communications, and concluded with the execution of search warrants at a number of homes and businesses. A substantial amount of illicit drugs, especially cocaine, was seized. During the course of a preliminary hearing before me, the cases against seven of the thirteen defendants were resolved by way of guilty pleas and withdrawal of charges. As a result of the present decision, Mr. Prasad will join five others to face trial in the Superior Court of Justice.

[2] The evidence at this preliminary hearing was heard over seven days between November 12, 2015 and February 12, 2016. To accommodate various Defence counsel I heard submissions on February 22, 23 and March 30, 2016. However, Defence counsel in the present matter, Mr. Paradkar, was not available until April 11. The matter did not proceed on that day because Mr. Paradkar had to deal with an unforeseen family matter. The case was adjourned to May 3 and counsel agreed to exchange and file written submissions. Those submissions reveal a dispute about what the parties agreed to with respect to a critical item of evidence.

[3] The defendant was charged with trafficking in cocaine on March 19, 2015 (Count 22). He argues that the evidence does not justify an order to stand trial. Pursuant to s. 548 of the Criminal Code, the Crown also seeks an order to stand trial for trafficking in cocaine on April 9, 2015. The defendant concedes the evidence suffices to warrant a committal to stand trial on this second charge.

[4] The parties have provided me with the applicable law about the test at a preliminary inquiry, assessing evidence, and drawing inferences. They are correct statements of law and I appreciate the assistance. However, with respect to the test I must apply, I can do no better than to quote from a recent decision of the Court of Appeal for Ontario. In R v. Wilson, 2016 ONCA 235, Justice Benotto speaking for Chief Justice Strathy and Justice Lauwers stated:

[21] The test for committal is well settled: is there any evidence on which a reasonable jury properly instructed could return a guilty verdict? A preliminary inquiry judge must commit the accused to stand trial "in any case in which there is admissible evidence which could, if it were believed, result in a conviction": United States of America v. Shephard, [1977] 2 S.C.R. 1067, at p. 1080.

[22] The test is the same whether the evidence is direct or circumstantial. However, with circumstantial evidence, there is an inferential gap between the evidence and the matter to be established. The question becomes whether the elements of the offence to which the Crown has not advanced direct evidence may reasonably be inferred from the circumstantial evidence.

[23] The preliminary inquiry judge must therefore engage in a limited weighing of the evidence to assess whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This does not entail considering whether he or she would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. Rather, the preliminary inquiry judge asks whether the evidence, if believed, could reasonably support an inference of guilt: R v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at paras. 1 and 23.

[24] Any reasonable interpretation or permissible inference from the evidence, beyond conjecture or speculation, is to be resolved in the prosecution's favour. At the preliminary inquiry stage, if more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered: R v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18. To weigh competing inferences is to usurp the function of the trier of fact: R v. Clarke, 159 O.A.C. 221, at para. 4.

[5] The Crown theory is that on March 18, 2015 the defendant agreed to sell cocaine to Mr. Zhou and that he delivered it to the latter's runner the next day. The Crown also alleges that on April 9, the defendant was intercepted offering cocaine to Mr. Zhou. As noted, the Defence concedes committal for trial with respect to the events of April 9.

[6] Surveillance evidence shows that on March 19, the defendant and Leung arrived in separate cars at a plaza parking lot. The defendant entered Mr. Leung's car at 7:03 PM. The surveillance officers could only see the defendant from the waist up and cannot say if he carried anything. At 7:26 PM, the defendant returned to his car and both vehicles left the plaza. An audio probe in the Leung vehicle recorded the conversation between the two men. This is the evidence that is the subject of the disputed agreement. Soon after Leung left the plaza, he was intercepted in conversation with Zhou, by means of a room probe at the latter's home. Leung is heard to open a package and discuss cocaine.

[7] The Defence submits that the car probe in the Leung car does not reveal any evidence of trafficking in cocaine. The Defence also argues that the conversation between Leung and Zhou immediately after – a conversation that is clearly about cocaine – cannot be used as evidence against Mr. Prasad. This submission is based on the fact that the co-conspirators exception to the hearsay rule (the so-called "step three in Carter") does not arise at a preliminary hearing; committal for trial is dependent on the first two steps, namely, whether there is some evidence of a conspiracy and some evidence of individual membership.

[8] The Crown argues that the transcript of the car probe involving the defendant and Leung meets the test for committal for trial. In the alternative, it is argued the room probe involving Leung and Zhou is credible and admissible pursuant to section 540(7) of the Code and that this justifies an order to stand trial.

[9] The car probe between the defendant and Leung is difficult to follow. The Defence objected to its admissibility during the preliminary hearing (December 2, 2015). Some portions are readily ascertainable, others must be replayed several times to be understood, and some words cannot be heard at all. On the last day of evidence (February 12, 2016), the original transcript of this conversation was "enhanced" and a "corrected" version was filed. This was done on consent, without examination of the witness who prepared it. That is, the parties agreed to cancel the attendance of the person scheduled to testify.

[10] Given a conflict in submissions about this point, it is important to set out what was said at the time by counsel on February 12, 2016:

MR. WAKELY [Crown]: And that is the event that involves Mr. Prasad. Um, Mr. Paradkar has advised that he has reviewed those transcripts, and also some, some sort of last minute corrections that were made by Miss Sulski, and he's content, for the purpose of the preliminary inquiry, that they are accurate and that the, um, question of committal or discharge be decided based upon those transcripts.

THE COURT: Okay.

MR. PARADKAR [Defence]: That's correct, Your Honour.

THE COURT: Okay. Thank you.

[11] Crown counsel asserts that the aforementioned passage reflects an agreement that the transcript be considered as accurate evidence of what the defendant and Leung discussed in the car on March 18, 2015. The Defence disagrees:

The Crown asserts at para. 10 of his submissions, that the defense conceded the accuracy of the transcript of the March 18, 2015 intercept. It is absolutely clear that the defense objected to the admissibility of the transcript when the matter was up in court on December 2, 2015. There was a strong objection to the admissibility of the transcript. It was submitted to the Court that it should not use the transcript at all even as an aid. It was further submitted that the actual recording was the evidence and not the transcript. Your Honour ruled against the defence submission and ruled that the transcript could be used as an aid.

When the defence conceded the accuracy of the transcript it did not in any way concede that the transcript could be used as evidence. The defense maintains its position set out in paragraph 17 of its initial submissions.

The defense disputes the assertion made in para. 10 of the Crown's submission that the concession as to the accuracy of the transcript is a concession as to its admissibility. The defense in no way conceded that the transcript could be used as evidence at the preliminary inquiry as was made clear in the objection raised on December 2, 2015. It is submitted that your Honour cannot discern what the parties are saying in the vehicle probe of March 18, 2015. The defence relies again upon paragraphs 18 – 21 of the original submissions.

[12] I cannot accept the Defence position. What was said on February 12 about the transcript in question is clear. It is an agreement between the parties. The transcript is the evidence and is taken to be accurate for the purposes of the preliminary hearing. I treat it as such.

[13] The Crown has set out a summary of the transcript of the car probe, cross-referenced to other relevant evidence (in italics). It is a fair summary and I reproduce it verbatim:

Zhou is buying something from Prasad.

Prasad wants to be paid at least 20,000 up front, and the balance later.

Zhou still has some of the stuff left. Prasad describes it as "it's so shiny, it's so nice". 10 [Det. Connolly's expert report says that "shine" is often used to describe quality cocaine]

Zhou says tomorrow he can give maybe 10,000. Zhou says he has unpaid debts.

Zhou says he has 36 ounces and a half brick left. Prasad describes 36 ounces as "one full one".12 [36 ounces is a kilogram and a "half brick" is common parlance for a half kilogram of cocaine]

Zhou talks about his customers. Prasad asks if they're gonna buy it. Zhou says they will buy, he has a lot of new customers.

Zhou says he will collect on his outstanding debts every day. Tomorrow he will give Prasad ten. The next day he will give Prasad whatever money he collected on his outstanding debts.

Prasad says "I have two different ones, India and Dolphin". Zhou ask which one is good.

Zhou says his friend said Dolphin is good.

Prasad says Dolphin comes from one guy, India from another. Prasad says take a Dolphin. Zhou agrees.

Zhou says he'll take 30 a month, but one at a time rather than all at once.

Prasad asks "how much are you gonna give me for the Dolphin if I get it for you?"

Zhou says fifty-two. Prasad asks for more and assures Zhou "the Dolphin's very good".

Prasad asks if Zhou can pay him 53. Zhou agrees.21 [Connolly's expert report says kilos of cocaine were selling for $45-55,000 at this time. Furthermore, six weeks earlier (February 5, 2015) Zhou offered to sell a half kilo to the UC for $27,000 to $28,000: see Keystorm 540(7) summary – Event #2, p.20]

Prasad says "I'll get you the key so don't worry".

Prasad asks what time they should meet tomorrow. Prasad says he does not want to meet at Brian [3 Brian Avenue] because "it's too hot". Zhou says he'll send a guy, "Anthony", to pick up. [Anthony Leung met with Prasad the next day at the Latina Plaza]

Prasad says the stuff being picked up is sealed, "It's always sealed", "it's sealed three times". [large quantities of cocaine are typically vacuum sealed in plastic]

Prasad says "pay me what you can…try to get me something tomorrow, even ten fifteen thousand". Zhou says 10,000 for sure. Prasad says every day you collect, repay me.

The sound of a message being typed onto a mobile phone can be heard. 26 Prasad then says "Okay, so I arrange for you for tomorrow, so try to get some money and then I see you, okay." Zhou replies "okay, I try to give you some tomorrow for sure. I give you some money."

Prasad and Zhou discuss an associate who was held at gunpoint and threatened for his failure to repay his debt.

[14] At the very least the conversation between the defendant and Leung is evidence upon which a reasonable jury properly instructed could conclude that the defendant offered to sell cocaine. In this regard, the jury might also reasonably conclude that the meeting in a car in a plaza parking lot was clandestine in nature.

[15] In any event, I accept the Crown's alternative argument about the application of section 540(7) to the wiretap involving Leung and Zhou. That section allows me to receive evidence that would be inadmissible at trial provided it is credible and trustworthy. The conversation between Leung and Zhou meets this test. It is an interception of a private communication in a home. The parties are able to feel confident and be candid with one another. The conversation is recorded. These features are marks of reliability. The discussion is significant because it occurs so soon after the arguably clandestine meeting between the defendant and Leung. It can support the reasonable inference that the parties are talking about cocaine that Leung had just received from the defendant.

[16] I direct that the defendant stand trial for two counts of trafficking in cocaine, on March 19 and April 9, 2015.

Released: May 4, 2016

Signed: "Justice J. De Filippis"