Court File and Parties

Ontario Court of Justice

Date: May 21, 2020

Court File No.: 19-323, 19-324

Between:

Her Majesty the Queen

— AND —

Bhupendra Raja, Ravi Shanker, Gurinder Bedi & Azad Damani

Applicants/Defendants

Before: Justice K.A. Wells

Heard on: January 6, 2020

Reasons for Judgment released on: May 21, 2020

Counsel

Mr. Roy, Mr. Shachter & Mr. Quayat — for the Crown

Mr. Hogan — for the Applicant/Defendant Bhupendra Raja

Mr. Caroline — for the Applicant/Defendant Ravi Shanker

Mr. Zeeh — for the Applicant/Defendant Gurinder Bedi

Mr. Capulli — for the Applicant/Defendant Azad Damani

Ruling #4 – Constitutional Challenge to Section 36 of the Mutual Legal Assistance in Criminal Matters Act

K.A. WELLS J.:

Introduction

[1] The Applicants stand charged with numerous drug and property offences. It is alleged that they, along with others, were involved in a criminal enterprise that bought and re-sold merchandise from stolen tractor trailers. It is further alleged that the stolen goods were stored at a warehouse located at 12-10 Wilkinson Road in Brampton, as well as other locations. The prosecution contends that in addition to trafficking in stolen goods, they also trafficked opium and heroin out of the Wilkinson Road warehouse.

[2] In addition to the various forms of evidence gathered as part of the investigation here in Ontario, the Crown seeks to tender documents from Pakistan pursuant to s. 36 of the Mutual Legal Assistance in Criminal Matters Act ("MLACMA").

[3] The Applicants seek a declaration that s. 36 of the MLACMA is inconsistent with ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms and pursuant to section 52(1) of the Constitution Act, of no force and effect.

[4] For the reasons that follow, I am of the view that s. 36 of the MLACMA violates the ss. 7 and 11(d) Charter rights of the Applicants. As such, I am granting the Application and hereby declare the section to be of no force or effect in accordance with s. 52(1) of the Constitution Act.

Factual Background

[5] Among other offences, the Applicants are jointly charged with importing a controlled substance contrary to section 6(1) of the Controlled Drugs and Substances Act, and conspiracy to import a controlled substance contrary to s. 465(1)(c) of the Criminal Code of Canada.

[6] On July 11, 2018, investigators from Peel Regional Police ("PRP") intercepted Mr. Ravi Shanker ("Shanker") during a phone call with Mr. Azad Damani ("Damani") during which they were believed to be having a drug-related discussion in coded language. On that same day, Shanker and Mr. Bhupendra Raja ("Raja") were seen leaving 10 Wilkinson Road together, and Shanker's cell phone was subsequently tracked to the area of 325 Stirling Avenue South in Kitchener, Ontario. Guru Motors and Auto Service is located at 325 Stirling Avenue South.

[7] On July 12, 2018, Raja drove Shanker to 10 Wilkinson Road. Shortly after entering the premises, Raja was seen leaving in his vehicle with Mr. Gurinder Bedi ("Bedi") and driving to a commercial address in Mississauga. The two men unloaded five garbage bags from the vehicle into a trash bin and then left the area.

[8] Police seized the garbage bags. Inside they located 89 motorcycle gloves with the knuckle plates removed. They also located an air shipping way bill for motorcycle gloves from Zubair Enterprises in Pakistan. The waybill was dated July 9, 2018 and addressed to 325 Stirling Avenue South. On July 19, 2018, Health Canada tested two of the knuckle plates and concluded that heroin was once present. PRP Forensic Identification Services also located Bedi's fingerprint on one of the knuckle plates.

[9] At some point, PRP investigators were advised by the United States Drug Enforcement Agency that two shipments of motorcycle gloves with concealed heroin were seized by the Pakistan Anti-Narcotics Force. The shipments were destined for addresses in Canada associated to the Applicants. One of the shipments was intercepted on July 15, 2018, at a DHL office in Lahore, Pakistan; a total of 72 pairs of motorcycle gloves were seized and found to conceal a total of 1480 grams of heroin. The gloves were addressed to Jaspreet Singh, Guru Motors and Auto Service, 325 Stirling Avenue South, Kitchener. The sender of the shipment was listed as Zubair Enterprises in Pakistan.

[10] The Applicants were arrested on August 30, 2018. On that same date a search warrant was executed at Guru Motors and Auto Service at 325 Stirling Avenue South, Kitchener. During the search a DHL box was found containing 30 pairs of intact motorcycle gloves. Investigators also found a DHL shipment invoice from Zubair Attique, Pakistan to Jaspreet Singh at Guru Motors. During the execution of a search warrant at 10 Wilkinson Road, Unit #12 on the same date, investigators located four motorcycle gloves which had been cut open.

[11] On December 13, 2018, an Official Request was sent to Pakistan on behalf of the Minister of Justice of Canada ("Request for Assistance"). The Request for Assistance was sent pursuant to the terms of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances ("The Convention"). Both Canada and Pakistan are signatories to The Convention, which was created in 1988 with the aim of combating transnational drug crimes.

[12] On April 4, 2019, the Government of Pakistan responded to the Request for Assistance by providing information relating to the seizure of heroin on both May 13, 2018 and July 15, 2018 at DHL offices in Lahore, Pakistan. In each case, heroin was found concealed in motorcycle gloves. In each case, the destination of the gloves was an address with some connection to one or more of the Applicants.

Section 36 of MLACMA & The Pakistan Documents

[13] In conjunction with signing on to The Convention, Parliament enacted the MLACMA to implement Canada's overall treaty obligations to facilitate mutual legal cooperation. Part II of MLACMA is entitled "Admissibility in Canada of Evidence Obtained Abroad Pursuant to an Agreement." Section 36 reads as follows:

Foreign Records

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

Probative Value

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

[Emphasis added]

[14] It is pursuant to this section that the Crown seeks to tender into evidence the series of documents provided by the Government of Pakistan – Ministry of Narcotics Control (the "Pakistan Documents"). Before turning to my analysis of the constitutionality of s. 36, it is appropriate to consider the contents of the Pakistan Documents, particularly in reference to the initial Request for Assistance.

[15] The Request for Assistance is in the form of a letter which provides an overview of the investigation and charges against the Applicants, and details that the following is being sought:

1. A certified true copy of records which would assist in proving evidence of the nature and weight of the substance seized on July 15, 2018, at the DHL shipping office in Lahore, Pakistan. The records sought include, but are not limited to:

   (a) A Certificate of Analysis confirming the nature of the substance;

   (b) A lab report of the analysis;

   (c) Police reports or notes of the person who opened the gloves and found the white powder on July 15th, 2018 in Lahore, Pakistan; and,

   (d) The Evidence Continuity Report or something similar pertaining to the seizure and processing of the white powder seized on July 15th, 2018 in Lahore, Pakistan.

2. The name and designation of the person who conducted the drug analysis mentioned above.

[16] After itemizing the request, the letter goes on to state as follows:

In addition, should it be permissible under Pakistani laws, Canadian authorities request that the certification forms attached as Appendix B, C and D to this request be filled and provided with the records sought. These forms are required in order to permit the introduction into evidence before a Canadian court the evidence they pertain to.

In the event that the laws of Pakistan do not allow for the swearing of affidavits, the attached form may be completed as certificates or statements, stating that the certificates or statements are made in conformity with the laws of Pakistan.

Alternatively, should it not be permissible under Pakistani laws to swear affidavits or complete the above-mentioned certificates or statements, it is requested that only a certified true copy of the records sought be provided.

In particular, Canadian authorities request that:

• Appendix B: Affidavit with respect to copies of original records. This Appendix should be filled by the person who will make the copy of the records sought.

• Appendix C: Affidavit of analyst. This Appendix should be filled by the Analyst.

• Appendix D: Affidavit with respect to continuity. This Appendix should be filled by any person who had the substances in their possession from the moment it was seized to the moment it was analyzed.

[17] In response to the Request for Assistance, the Government of Pakistan provided a letter from the Ministry of Narcotics Control summarizing two seizures of heroin in Pakistan on May 13, 2018 and July 15, 2018 – both seizures took place at DHL offices and involved the secretion of heroin in the knuckle plates of motorcycle gloves. The May seizure was destined for an address in Scarborough, Ontario, and the July seizure was destined for 325 Stirling, Kitchener, Ontario. Appended to the letter are 4 Annexes and then a separate group of documents:

(i) Annexes A and B are described as drug certificates of analysis from the National Institute of Health in Islamabad, Pakistan. Annex A says that a sample received on May 14, 2018 through Constable Mudassar Hameed, with a gross weight of 14.3 grams was identified to contain heroin. Annex B says that a sample received on July 17, 2018, through Constable Sakhi Hussain, with a gross weight of 717.7 grams was identified to contain heroin.

(ii) Annex C is a document handwritten in Urdu which was partially translated into English in "point form" (by a PRP Officer) and is described by Pakistani authorities as a "Police Report" for the May 13, 2018 shipment.

(iii) Annex D is a document handwritten in Urdu which was partially translated into English in "point form" (by a PRP Officer) and is described by Pakistani authorities as a "Police Report" for the July 15, 2018 shipment.

(iv) Under the heading "Evidence Continuity Report" the Pakistan authorities provided the DHL shipping documents in respect of the two shipments together with apparent photocopies of the "Computerized National Identity Cards" of the two purported shippers - Mr. Zubair Attique and Mr. Shamas Iqbal - although the details of the identity cards are barely visible.

[18] None of the Pakistan Documents are certified to be true copies, nor are there any affidavits or attestations whatsoever that the documents are made in conformity with the laws of Pakistan, or that the contents of the documents are indeed true. Furthermore, the documentation purporting to relate to evidence continuity in no way speaks to the continuity of the drugs allegedly seized from the motorcycle gloves on May 13 and July 15, 2018. Indeed, the so-called drug certificates in Annexes A and B contain information that is not reflected in the point-form translations of the police reports. For example, Annex B is a drug certificate for a sample received on July 17, 2018, through a Constable Sakhi Hussain, with a gross weight of the tested substance being 717.7 grams. The police report from July 15, 2018 (Annex D), however, bears only the name of Ali Hassan, indicates the total weight of heroin was 1480 grams, and says nothing about the continuity of evidence after the point of seizure.

[19] The Crown seeks to rely on the Pakistan Documents for the truth of their contents in proving the count of conspiracy to import heroin against the Defendants. According to the prosecution, the intended use of the Pakistan Documents is "limited to proving continuity and the nature of the seized substance as heroin."

Positions of the Parties

[20] The Applicants submit that s. 36 is constitutionally unsound because it lacks the type of safeguards that are found in other statutory exceptions to hearsay (such as s. 30 of the Canada Evidence Act). Given the common law presumption against the admission of hearsay, the Applicants argue that trial fairness requires that a court be able to assess the evidence on the standard established by the Supreme Court of Canada for the principled exception to the hearsay rule.

[21] The Crown's position is that s. 36 of the MLACMA does not violate ss. 7 or 11(d) of the Charter. They argue that the section does not limit a trial judge's discretion to exclude evidence that could compromise the fairness of a trial. It is the Crown's position that s. 36 strikes the appropriate balance between upholding the fair trial rights of citizens, while also ensuring Canada is well-equipped to combat transnational crime through international cooperation.

The Interpretation of s. 36

[22] In R. v. Boyce, 2019 ONCA 828, the Ontario Court of Appeal considered the proper interpretation of s. 36 of the MLACMA. There, the Appellant had been convicted of offences under s. 6(1) of the Controlled Drugs and Substances Act arising from his part in a failed conspiracy to import cocaine from Costa Rica to Toronto. The Ontario Court of Appeal ultimately agreed with the Trial Judge and held at paragraph 12, that:

…s. 36(1) makes relevant tendered evidence admissible without considering either its necessity or threshold reliability. This is consistent with the interpretation of that section recently provided by the British Columbia Court of Appeal in R. v. Rajaratnam, 2019 BCCA 209, 376 C.C.C. (3d) 181, at para. 123:

We agree with the Crown that s. 36 precludes a successful objection to the admissibility of a document solely on the basis that it contains hearsay or an opinion, which is a form of hearsay. We also agree with the Crown that, by reasons of s. 36, a document containing hearsay can be tendered for the truth of its contents without the need to establish the evidence either falls within a recognized common law exception to the hearsay rule or meets the requirements of the principled approach to hearsay.

[23] The Ontario Court of Appeal's ruling in Boyce, supra, confirms that s. 36 of MLACMA means just what it says – hearsay evidence is admissible without any consideration of its necessity or threshold reliability.

Prior Findings of Unconstitutionality

[24] The constitutionality of s. 36 of the MLACMA has only been considered in British Columbia.

[25] In R. v. Christhurajah, 2016 BCSC 2400, Justice Ehrcke of the Supreme Court of British Columbia recognized the necessary role of a trial judge where hearsay evidence is sought to be admitted. After acknowledging the direction from the Supreme Court of Canada in developing a more flexible approach to the admission of hearsay (known as "the principled approach") in the decisions of R. v. Khan, [1990] 2 S.C.R. 531, and R. v. Khelawon, 2006 SCC 57, Ehrcke J. at paragraph 26 stated as follows:

A critical component of the principled approach is the role of the trial judge as a gatekeeper who must make a preliminary finding that the proposed evidence meets a minimum level of threshold reliability before the evidence is admitted to the jury for their assessment of what, if any, probative value they will attach to the evidence.

[26] Justice Ehrcke, at paragraph 27 of his decision, went on to quote the following helpful passage from Madam Justice Charron at paragraph 3 of Khelawon, supra:

The distinction between threshold and ultimate reliability reflects the important difference between admission and reliance. Admissibility is determined by the trial judge based on the governing rules of evidence. Whether the evidence is relied upon to decide the issues in the case is a matter for the ultimate trier of fact to decide in the context of the entirety of the evidence. The failure to respect this distinction would not only result in the undue prolongation of admissibility hearings, it would distort the fact-finding process. In determining the question of threshold reliability, the trial judge must be mindful the hearsay evidence is presumptively inadmissible. The trial judge's function is to guard against the admission of hearsay evidence which is unnecessary in the context of the issue to be decided, or the reliability of which is neither readily apparent from the trustworthiness of its contents, nor capable of being meaningfully tested by the ultimate trier of fact. In the context of a criminal case, the accused's inability to test the evidence may impact on the fairness of the trial, thereby giving the rule a constitutional dimension. Concerns over trial fairness not only permeate the decision on admissibility, but also inform the residual discretion of the trial judge to exclude the evidence even if necessity and reliability can be shown. As in all cases, the trial judge has the discretion to exclude admissible evidence where its prejudicial effect is out of proportion to its probative value. [emphasis added]

[27] Ultimately, Ehrcke J. held that s. 36 of MLACMA to be inconsistent with the rights guaranteed under ss. 7 & 11(d) of the Charter, and pursuant to s. 52(1) of the Constitution Act, 1982, declared the section to be of no force or effect. In reaching this conclusion, Ehrcke J. found that to be constitutionally sound, any provision permitting the admission of hearsay evidence must either preserve a judge's discretion to determine threshold reliability or contain some other feature to ensure that manifestly unreliable evidence will not be put before the trier of fact.

[28] Ehrcke J. identified what he found to be two protections inherent in s. 36 that might be considered as protecting against admission of unreliable evidence. First, he held that since s. 36(1) deals with records provided by another state to the Minister, records from manifestly corrupt and oppressive countries would not be captured "since Canada would be unlikely to have concluded a treaty with such regimes." Second, he acknowledged that s. 36(2) allows for the assessment of ultimate reliability such that a trier of fact can choose to place little or no weight on the hearsay evidence.

[29] Finally, Ehrcke J. held that s. 36(2) was not an adequate substitute to justify the elimination of the trial judge's role as a gatekeeper to assess threshold reliability. He held that the combined effect of ss. 36(1) and 36(2) of the MLACMA infringes an accused's right to a fair trial and to make full answer and defence.

[30] The British Columbia Court of Appeal's decision in R. v. Rajaratnam, supra, was an appeal of Ehrcke J.'s decision in Christhurajah. The Court of Appeal agreed with the trial court's ruling on s. 36 and declared it to be of no force or effect in criminal trials. In doing so the Court stated that "s.36 fundamentally alters the rules governing the admissibility of hearsay in a manner that is inconsistent with an accused's right to a fair trial."

[31] On January 23, 2020, the Supreme Court of Canada refused the Crown's request for leave to appeal in R. v. Rajaratnam, supra, without issuing reasons (see [2019] SCCA No.344).

Conclusion

[32] I agree entirely with Ehrcke J. and the British Columbia Court of Appeal in their respective assessments of s. 36 of the MLACMA. To admit hearsay evidence without any consideration of necessity or threshold liability undermines an accused's right to a fair trial and the ability to make full answer and defence.

[33] Here, the Crown seeks to rely on evidence that lacks even the most basic indicia of trustworthiness. Despite the details sought in the Request for Assistance, the Pakistan Documents are not certified to be true copies or accompanied by any oath or guarantee of truthfulness. If signatory countries to The Convention are truly committed to combating transnational crime, a commitment to effective assistance in prosecuting cases seems obvious. There was no evidence lead to suggest that the Pakistan authorities would be unwilling to testify via video-link for example. Were it the case that any country refused to make witnesses available to testify about documents provided under The Convention, this would call into serious question both their commitment to the cause, and the reliability of the evidence provided.

[34] Combating transnational crime, including global drug trafficking, is an important objective. In many instances, courts will need to be flexible in allowing for the presentation of evidence in different ways, particularly where that evidence is from another part of the world. However, that flexibility cannot extend so far as to allow for the admission of what would otherwise be inadmissible evidence, simply because it comes from another State pursuant to a treaty. It cannot be that officer notes from Pakistan in this case are somehow imbued with reliability (and therefore admissible for their truth), when notes of investigators from PRP could not be so tendered.

[35] Finally, despite the Crown's compelling argument to the contrary, I find that a trial judge's overriding ability to exclude evidence on a prejudice vs. probative analysis cannot save the constitutionality of s. 36. Under s. 36(1) it is not open for a trial judge to deem a record's prejudicial effect to outweigh its probative value if the only reason for so concluding is that the record is hearsay. In the case before me, The Pakistan Documents (if true) are compelling evidence of the Defendants' involvement in international drug trafficking. Without having any way of assessing the reliability of the evidence, I would find that the prejudicial effect outweighs the probative value because they are entirely hearsay which the Defendants' have no opportunity whatsoever to test. Exclusion on this basis, however, is not permitted by s. 36(1) of MLACMA. Trying to characterize the prejudicial effect as being based on some reason other than hearsay would be to engage in intellectual dishonesty.

[36] I find that ss. 36(1) and (2) of the MLACMA are inconsistent with the rights guaranteed under ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms, and pursuant to s. 52(1) of the Constitution Act, 1982, I find ss. 36(1) and (2) are of no force and effect.

May 21, 2020

Signed: Justice K.A. Wells

Footnote

[1] On January 6, 2020, I heard argument on the extant pre-trial Application. On January 13, 2020, the trial began and I indicated I was granting the Application with reasons to follow. These are those reasons.