Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2024 03 28 COURT FILE No.: Peel Region 998 23 31109016

BETWEEN:

HIS MAJESTY THE KING

— AND —

UPKARAN SANDHU

Before: Justice D. F. McLeod

Heard on: December 7, 8, 2023, January 17, 2024, February 6, 2024, March 22, 2024

Reasons for Judgment released on: March 28, 2024

Counsel: M. Bedini............................................................................................... counsel for the Crown P. Locke .................................................................. Counsel for the defendant U. Sandhu

D. F. McLeod J.:

[1] At the outset to the trial before me Mr. Sandhu plead guilty to counts 1, 3 and 4 of the information. For the purposes of this judgment those counts will not be addressed.

[2] Mr. Sandhu did enter a plea of not guilty to counts 5 and 6 dealing with the unlawful possession of the Ontario licence plates. The crown called no evidence regarding these matters, as such those counts will not be addressed in this judgment and acquittals will be entered on both counts.

[3] The main count under contention in this matter is with respect to the count of possession for the purpose of trafficking Mr. Sandhu entered a plea of not guilty and that forms the substance of the judgment to be delivered today.

I. Relevant Evidence

[4] Mr. Sandhu has been in Canada since 2019, is married and is currently a permanent resident.

[5] At the material time of this alleged occurrence Mr. Sandhu was unemployed and living with his sister. He was receiving some sort of stipend from his sister which in large measure covered his accommodations. Mr. Sandhu was also living off the residue of his mother’s estate. Mr. Sandhu’s mother had passed away in 2021.

[6] An insurance policy was proffered to the court and made an exhibit. The policy named Mr. Sandhu as the beneficiary. The monies from the police were deposited into Mr. Sandhu’s sisters account which allowed both he and his sister access to the proceeds. The value of the remaining funds was $200,000.00 Cdn.

[7] Mr. Sandhu was an admitted heroin addict who at this point used about 6 times a day and would consume the drug by various means including smoking it with the aid of a pipe and a lighter.

[8] The amount of heroin that Mr. Sandhu would use at one time would be in and around .5 grams. Mr. Sandhu that this amount was an estimation of the total weight as he did not use a scale when he was using. All amounts were in essence an approximation.

[9] Mr. Sandhu did not have a preference for where or when he would use drugs. Mr. Sandhu testified that he would consume heroin in his car, with friends in the garage or even in his home.

[10] Mr. Sandhu gave evidence with respect to the amounts that he would buy at one time as well the amount of time that it would take for the stash to run its course. Generally, Mr. Sandhu would purchase an ounce of heroin at one time which would last him anywhere from 2 to two and a half weeks.

[11] Mr. Sandhu would pay anywhere from $1950.00 – 2000.00. The funds used to purchase the drugs would be taken from the proceeds of the life insurance policy. Mr. Sandhu would not advise his sister he was going to purchase drugs with the monies from the account.

[12] Mr. Sandhu would use the car to go to retrieve his drugs and would frequently leave his car in order to purchase the drugs from a dealer. Mr. Sandhu gave evidence that he did not sell drugs but used about 2 – 3 dealers with whom he would purchase his product.

[13] Two days before his arrest Mr. Sandhu had gone to purchase more drugs from his dealer. He paid $1950.00 and from the time of his purchase to the time of arrest he had consumed 3 g of what he had received.

[14] On the day of the arrest Mr. Sandhu was going to a friend’s home when he was making a U-turn and was stopped and eventually detained.

[15] When asked whether or not Mr. Sandhu had ever sold or received proceeds as a result of this illegal activity the accused maintained that he had never been involved in such activities.

II. Analysis of Credibility and W.D.

[16] It is clear to this Court that the criminal justice system stands on at least two critical pillars. The first is the presumption of innocence. The second is that the burden of proving all of the elements of the offence beyond a reasonable doubt remains on the Crown throughout. There is no onus on the accused to prove anything and the burden of proof never shifts to the accused: R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152 at paras. 9.

[17] The Supreme Court of Canada has determined the legal framework to be applied when determining credibility cases such as this one. In R v. W. (D.), [1991] 1 S.C.R. 742 at para. 28, the Supreme Court of Canada said that trial judges and juries should use a three-step process as follows:

(i) First, if you believe the accused, you must acquit;

(ii) Second, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit; and

(iii) Third, even if you are not left with a reasonable doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt of the guilt of the accused.

[18] It is important to recognize the following further points:

[19] In a judge alone case, the Court doesn’t need to consider the evidence in any particular order such as the evidence of the defendant first and then the rest of the evidence: see R. v. Minuskin (2003), 68 O.R. (3d) 577. The key point which must be followed is that the trial judge must decide whether the Crown has proved the guilt of the accused beyond a reasonable doubt: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 at para. 23.

[20] In undertaking steps 1 and 2 of the WD framework, the Court must consider all of the evidence, not the accused’s version of events in isolation: R. v. Hoohing (2007), 2007 ONCA 577, 74 W.C.B. (2d) 676 (Ont. C.A.) at para 15.

[21] The second step of the WD analysis needs to be carefully considered. As Justice Binnie for a unanimous Supreme Court has pointed out, a trier of fact may wonder if they believe none of the evidence of the accused how could such evidence raise a reasonable doubt. Justice Binnie for the Court explained this issue as follows: (i) even if an accused is disbelieved in part, parts of his or her testimony may be accepted and raise a reasonable doubt; or (ii) the trier of fact may simply conclude that they don’t know whether to believe the accused’s testimony or not. In this circumstance, the accused is entitled to an acquittal: R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152 at paras. 11.

[22] Even if the accused is entirely disbelieved and the trier of fact is not left in a reasonable doubt by the evidence of the accused (or other conflicting evidence), in order for there to be a finding of guilt the trier of fact must still be persuaded beyond a reasonable doubt by the evidence that is accepted that the accused is guilty.

[23] The WD analysis applies wherever there is conflicting evidence called by the defence or arising out of evidence favourable to the defence in the crown’s case. This may include a statement of the accused adduced in the Crown’s case. The conflicting evidence may be believed, or, even if not believed, may leave the Court in a state a reasonable doubt as to the accused’s guilt and if so the Court must acquit (see Sopinka, Lederman, Bryant and Fuerst, The Law of Evidence in Canada (fourth edition) at para 5.99 citing R. v. D.(B.) (2011), 2011 ONCA 51, 266 C. C. C. (3rd) 197 (Ont. C.A.). See also David Watt, Watt’s Manual of Criminal Jury Instructions (second edition) at page 271.

[24] Inconsistencies on minor matters or matters of detail are to be expected. If there is an inconsistency on a material matter about which an honest witness is unlikely to be mistaken, it can demonstrate a carelessness with the truth: R. v. M.G., [1994] O.J. No. 2086 (C.A.) at para. 27. The Court should consider the explanation for the inconsistency: R. v. M.(A.) (2014), 2014 ONCA 769, 123 O.R. (3d) 536 (C.A.) at para 26.

[25] The British Columbia Court of Appeal stated the demeanor of a witness may be considered when judging the credibility of a witness but that the “real test of the truth of the story of a witness.… must be its harmony with the preponderance of probabilities which a practical and informed person would recognize as reasonable”: Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) at paras. 10-11. Notwithstanding the reference in the previous passage to the “preponderance of probabilities”, I repeat the point made above that in a criminal case it is a fundamental requirement that all of the elements of an offence must be proved by the Crown beyond a reasonable doubt.

The Meaning of Reasonable Doubt

[26] The Supreme Court of Canada has made it clear that absolute certainty is not required. Having said that the Supreme Court has said that proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities: R. v. Layton (2009), 2009 SCC 36, 244 C.C.C. (3d) 417 at para. 36 and R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 at para. 242.

III. Analysis

[27] This court has heard the evidence of Mr. Sandhu and to be frank. I believe his evidence.

[28] Mr. Sandhu was not phased in cross examination, nor were there any real inconsistencies that were unearthed as a result of the questions being posed. His evidence was clear, concise, and made common sense.

[29] When this court assessed the relevant evidence, it was clear that Mr. Sandhu was an admitted heroin addict who was able to support his habit with a large injection of cash left to him as a result of his mother’s passing.

[30] Further, when this court takes stock of the actions of Mr. Sandhu as well as the paraphernalia that would have been located in his presence at the time of the arrest this court is unable to conclude beyond a reasonable doubt that he is a drug trafficker. I come to this conclusion based on the following evidence:

(a) Mr. Sandhu did not have a cell phone on him at the time of his arrest. (b) Mr. Sandhu was not in possession of a large amount of cash (c) Mr. Sandhu did not have any scales on his person at the time of arrest (d) There were no baggies located in the car that he was driving (e) No folding papers were located in the vehicle (f) There are no observations of constant pedestrian interaction/traffic between Mr. Sandhu anyone else

[31] This court finds as a fact that Mr. Sandhu was addicted to heroin at the time of this incident. His evidence indicated that he was consuming between 2 – 2.5g daily.

[32] When analyzing the contents of the vehicle Mr. Sandhu was found in without the aid of the finding that he is in fact a drug addict this court would have been of the opinion that Mr. Sandhu was in fact trafficking heroin for his own personal financial gain. However, when the narrative that this court finds as a fact is introduced as it relates to Mr. Sandhu his addiction and his access to large sums of cash; the purpose behind the paraphernalia and monies located in the vehicle become somewhat compromised where guilt is concerned.

[33] This Court for reasons articulated in my previous judgment did not accept the expertise of PC Erik Grant as it related to consumption rates, as well as methods and practices associated with use and trafficking with respect to heroin. This finding allowed the court, to take into consideration the evidence of Mr. Sandhu as it related to his drug use, consumption rates and practices as it related to his proclivities where drug use is concerned.

[34] Armed with the understanding of who Mr. Sandhu was when he was using drugs left this court in reasonable doubt with respect to the ultimate charge of trafficking. The added evidence of his use and financial wherewithal made it difficult for this court to reconcile the amount of drugs and the paraphernalia located at the time of his arrest to be simply for trafficking as opposed to for personal use.

[35] In light of the above findings this court is of the opinion that the crown has not proven the case of trafficking against Mr. Sandhu beyond a reasonable doubt.

Released: March 28, 2024