ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Vijay Ganesh Singh
Applicant
– and –
Her Majesty the Queen
Respondent
Nancy J. Tourgis and Cameron J. Wetmore, for the Applicant
Jinwon Kim and George Hendry, for the Respondent
HEARD: November 18, 19 and 20, 2013
Ruling on SECTion 462.34(1) application
Boswell J.
Overview
1Mr. Singh is on trial in Oshawa on kidnapping and murder charges. He has also been committed to stand trial on numerous drug and weapons charges. A trial date has yet to be fixed for those charges. Another trial on a further charge of first degree murder has been scheduled to commence in Toronto in late January 2014.
2As one might imagine, Mr. Singh is incurring significant legal fees right now, with a great deal more on the horizon. He claims in this application that he has utilized all of his available assets and resources to fund his defence. He seeks access to funds seized and held by the police as alleged proceeds of crime in order to pay for his ongoing legal fees. The Criminal Code allows for seized funds to be utilized to pay reasonable legal fees in some instances, provided a threshold test is met. The Crown argues that the threshold test has not been met in this case and urges the court to dismiss Mr. Singh’s application.
The Seized Funds
3In May 2009, the Durham Regional Police Service initiated a murder investigation following the discovery of two deceased males in the trunk of an abandoned vehicle in Pickering. The males were Harjinder Singh Sandhu and Puneet Chhina. The police suspected that they were killed as a reprisal for a drug rip-off. Mr. Singh was a principal suspect. He is suspected by the police of being the head of a drug trafficking organization.
4During the course of the murder investigation, the police executed a number of search warrants obtained pursuant to section 487 of the Criminal Code. Significant sums of cash were seized during the execution of the warrants (the “seized funds”). Briefly:
(a) $650,000 was seized from a suitcase located at the Newmarket residence of Mr. Singh’s mother, Lynette Pinto. She claims no interest in the suitcase or its contents;
(b) $13,485 was seized from Mr. Singh’s former residence on Agincourt Drive in Toronto;
(c) $29,980 was seized from a property rented by Mr. Singh in Burnaby, British Columbia; and,
(d) $6,860 was seized from a 2008 Hummer vehicle.
5There is no dispute that the seized funds are the property of Mr. Singh.
The Status of the Outstanding Charges
6Mr. Singh was arrested in Vancouver in February 2010 and charged with, amongst other things, the kidnapping and murder of Mr. Sandhu and Mr. Chhina. A twenty-one day preliminary hearing was conducted on those charges in the fall of 2011. Pre-trial motions commenced in March 2013 and concluded in June 2013. The trial proper commenced in September 2013. The evidentiary portion of the trial has been concluded. I understand that it will go to the jury in early December 2013.
7Mr. Singh deposed in an affidavit that he owes his counsel over $50,000 for the pre-trial applications and, of course, substantially more for the trial. He also requires, he says, a substantial retainer to secure counsel for his murder trial scheduled to commence in Toronto in early 2014.
8On October 13, 2013, Mr. Singh applied to the Ontario Legal Aid Plan for financial assistance with respect to all outstanding charges against him. His applications were refused on the basis that it was open to him to make an application to the court to obtain a release of funds seized by the police.
The Evidentiary Record
9The application proceeded on the basis of the following affidavit evidence:
(a) The affidavit of Mr. Singh, sworn August 28, 2013;
(b) The affidavit of Lynette Pinto, sworn August 20, 2013;
(c) The responding affidavit of Detective Constable Dwayne Johnson, sworn September 9, 2013;
(d) The affidavit of Detective Constable Paul J. Martin, sworn September 23, 2013;
(e) The reply affidavit of Mr. Singh, sworn October 1, 2013;
(f) The supplemental reply affidavit of Mr. Singh, sworn November 4, 2013; and,
(g) The affidavit of Melissa Cunningham, sworn November 12, 2013.
10In addition to the affidavit evidence filed, the court had the benefit of viva voce evidence in the form of the cross-examination of Detective Constable Dwayne Johnson and the cross-examination of Mr. Singh.
11The Crown also sought to cross-examine Lynette Pinto, but Ms. Pinto was not prepared to attend to be cross-examined, unless she was given some assurance that the examination would relate solely to her position that she had no interest in the funds seized from the suitcase found in her home.
The Legal Framework
12Most Canadians will be familiar with the saying, “crime doesn’t pay”. It’s a maxim meant to capture the deterrent effect of the sanctions embodied in the Criminal Code. In other words, it reflects the sentiment that the commission of criminal acts are not worth the risk of detection, and the consequent punishment and moral shame that may go along with such detection. The trouble is, crime can be big business. This is particularly true in the world of international drug smuggling and trafficking. There are potentially huge fortunes to be made – fortunes large enough that, for some individuals, the deterrent effect of the Criminal Code is substantially diluted. By all accounts a penitentiary is not a pleasant place to be. But there are some members of our society that may well consider the risk of a number of years behind bars an acceptable trade-off if a fortune can be socked away in the meantime. To address this growing problem, Parliament enacted Part XII.2 of the Criminal Code.
13Part XII.2 creates a scheme to address the search for, seizure, and detention of proceeds of crime. Justice Doherty of the Court of Appeal described the purpose behind the statutory scheme in R. v. Wilson (1993), 86 O.R. (3d) 464 (C.A.), at paragraph 10, as follows:
The purpose of Part XII.2 is clear. It is intended to give effect to the age old adage that crime does not pay. It is now recognized that some crime is big business, and that massive profits, both direct and indirect, can be made from criminal activity. Part XII.2 is a response to that realization and provides a comprehensive scheme whereby those direct and indirect profits may be located, seized and eventually forfeited to the Crown. (internal citations omitted).
14The seized funds in this case are alleged by the Crown to be proceeds of crime and are being detained pending the resolution of the charges facing Mr. Singh. The Crown’s long-term view is to obtain a forfeiture order regarding the money.
15Following the Crown’s cross-examination of Mr. Singh, it is virtually impossible to reach any reasonable conclusion but that the seized funds are indeed the proceeds of criminal activity. Mr. Singh candidly testified that he made his money primarily from smuggling ketamine and other chemical substances from India to Vietnam, though he also made some money importing illegal substances into Canada.
16Section 462.34(4)(c)(ii) of the Criminal Code allows a person whose property has been seized or restrained, access to that property for the purpose of paying reasonable legal fees. That section provides, specifically, as follows:
462.34(4) On an application made to a judge under paragraph (1)(a) in respect of any property and after hearing the applicant and the Attorney General and any other person to whom notice was given pursuant to paragraph (2)(b), the judge may order that the property or a part thereof be returned to the applicant or, in the case of a restraint order made under subsection 462.33(3), revoke the order, vary the order to exclude the property or any interest in the property or part thereof from the application of the order or make the order subject to such reasonable conditions as the judge thinks fit,
(c) for the purpose of,
(ii) meeting the reasonable business and legal expenses of a person [who was in possession of the property at the time the warrant was executed or the order was made or any person who, in the opinion of the judge, has a valid interest in the property and of the dependents of that person],
if the judge is satisfied that the applicant has no other assets or means available for the purposes set out in this paragraph and that no other person appears to be the lawful owner of or lawfully entitled to possession of the property.
17I refer again to Justice Doherty’s decision in R. v. Wilson, as above, where he expressed that section 462.34 “recognizes that the state should not be allowed to beggar a person who will often need to retain the assistance of counsel in order to defend himself or herself against state action directed at depriving that person of their property and liberty.” (paragraph 42). He further noted that the need for counsel has a constitutional underpinning as part of the right of an accused to make full answer and defence and must be given due weight.
18Counsel were agreed that section 462.34(4) requires the application of a three part test: see R. v. Granger, 2012 ONSC 6169 at paragraph 24. The applicant for an order under that provision must establish, on a balance of probabilities that:
(a) He has an interest in the funds (section 462.34(1));
(b) He has no other assets or means available for the purpose of meeting his reasonable legal expenses (section 462.34(4)(c)); and,
(c) No other person appears to be the lawful owner of or lawfully entitled to possession of the funds (section 462.34(4)(c)).
19The language of section 462.34(4) is permissive. Where the statutory preconditions are met, a judge may grant the order requested, subject to any reasonable conditions the judge considers fit in the circumstances. The discretionary nature of the provision engages the court in a balancing exercise. As I indicated, the purpose of Part XII.2 of the Code is to ensure that offenders convicted of designated offences do not benefit from the proceeds of their illegal activities. On the other hand, when applications are brought under section 462.34(4) the applicant has typically not yet been convicted of an offence and there has been no judicial determination that the funds in issue are indeed proceeds of crime. Moreover, the court must be concerned with the ability of the accused person to obtain legal counsel and to respond effectively to the allegations of the state.
20The balancing exercise was described by Doherty J.A. in R. v. Wilson at paragraph 47 as follows:
In the case of an application under s. 462.34, the judge must balance the applicant’s need for legal assistance against the possibility that property which will turn out to be the proceeds of crime will be used to benefit a person who may be shown to have acquired the property through the commission of a criminal offence.
Discussion
21The first hurdle faced by the applicant is to establish, on a balance of probabilities, that he has an interest in the seized funds. This hurdle is easily cleared in this instance. The Crown concedes that an interest has been established.
22This application turns on the second part of the test: whether Mr. Singh has established, on a balance of probabilities, that apart from the seized funds, he has no other assets or means available for the purpose of meeting his reasonable legal expenses.
23My consideration of this application brought to mind a well-known comment made by former United States Secretary of Defence, Donald Rumsfeld. During a press briefing in February 2002, he was asked about the extent of any evidence linking the Iraqi government with weapons of mass destruction. He famously said,
There are known knowns; there are things we know that we know. There are known unknowns; that is to say, there are things that we now know we don't know. But there are also unknown unknowns – there are things we do not know we don't know.
24Mr. Rumsfeld’s comment is apropos. The assessment of Mr. Singh’s assets and means is a complex matter. He is an admitted smuggler and an importer of illegal substances for the purpose of trafficking in them. He has lived a life of deception and concealment for many years. He has hidden money from the eyes of the authorities and moved it around the world through an underground connection of like-minded individuals and/or organizations.
25There are assets that we know about. Mr. Singh has testified about them and the police have verified them through their investigation.
26There are assets that we know we don’t know about. I will describe these in greater detail momentarily.
27Finally, given Mr. Singh’s modus operandi, there may well be assets that we don’t know that we are unaware of. He admittedly did his best over the years to circulate within a world of unknown unknowns.
28I will comment on the assets that are more or less undisputed (the “known knowns”) only briefly because nothing much turns on them.
29In his August 28, 2013 affidavit, Mr. Singh described his assets and means in ten paragraphs over two pages. He described owning a home in Agincourt, which was sold under power of sale in April 2013. Surplus proceeds of $219,082 were paid into court by the mortgagee. Canada Revenue Agency (CRA) had filed a lien on the property in the sum of $484,520. The claim of CRA remains in dispute and unpaid. The funds are not, under the circumstances, immediately available to Mr. Singh and indeed may never be.
30Mr. Singh continues to own a condominium property on Borough Drive in Toronto. The condo is occupied by his cousin and her family. A market valuation filed as part of the application record indicates its value at just over $300,000. It is subject to a mortgage in the sum of $154,054. CRA’s lien attaches to the condo as well.
31Mr. Singh deposed that he has an interest in a Nissan 240SX but that it is registered to his estranged spouse. He is involved in a matrimonial dispute of some sort with her, and because of it, the vehicle is not available to him. He estimated its value at $10,000.
32He further deposed that he has no bank accounts, investments or other savings. He admitted that he forgot to mention a bank account in Hong Kong with a balance of about $1,000 in it.
33Being incarcerated, he has no means to earn an income, nor is he able to take out a commercial loan.
34Detective Constable Dwayne Johnson submitted an affidavit that essentially outlined the results of the police investigation into Mr. Singh’s assets and means. Mr. Singh appears to be, or to have been, connected as a director and/or officer of the following companies: Imperial Auto Beauty, 208127 Ontario Inc. and 1664356 Ontario Inc. I am satisfied that none of these companies is operating at present in any gainful way. There are good reasons to believe that the companies were, in fact, simply a part of Mr. Singh’s overall lifestyle of artifice.
35There is evidence that Mr. Singh has been, over the past five years or so, associated with a number of automobiles. For the most part, however, the vehicles were leased and do not represent a current asset to Mr. Singh. By way of sample: a leased BMW X6, which had pre-paid lease payments of over $70,000 (the lease has expired); a Mercedes Benz SL65 leased to 1664356 Ontario Inc.; and a leased Mercedes Benz ML55.
36The one asset that Mr. Singh clearly continues to own is a large collection of comic books. There was a period of time when he was, admittedly, spending $1,000 per month on comics. He is a collector. The actual size and value of the collection is unknown. It clearly has value. How much is sentimental value versus realizable value is unclear.
37I am satisfied that Mr. Singh does not have access to the surplus funds from the sale of the Agincourt property, or the equity in the Borough Drive condominium. I am further satisfied that he has no banked savings or legitimate investments that he might call upon to cover his legal fees. Moreover, nothing much, in my view, turns on the fact that he previously had leased a number of expensive vehicles. There is no dispute that Mr. Singh had a very significant cash flow prior to his arrest. Apart from some pre-payments on the leases, the vehicles never did represent a realizable asset to Mr. Singh.
38I will move on now to review what one might reasonable describe as the “known unknowns”. In this case, that means assets that we know something about, but there is some real uncertainty about what became of them. The “known unknowns” consist generally of the following:
(a) The sum of $500,000 returned to Mr. Singh, or his designate, following a failed real estate purchase in British Columbia;
(b) The sum of $500,000 in cash held at the time of Mr. Singh’s arrest by one of his associates, known only as “Steven”;
(c) The sum of about $390,000 that he had entrusted to his good friend, Michael Lopez;
(d) A 5.2 carat diamond ring; and,
(e) The ownership of a 2010 BMW X5.
39Mr. Singh testified about what became of these contentious assets. What conclusions I reach about these assets depends almost entirely on the level of faith I put in Mr. Singh’s evidence. His credibility is squarely in issue. I will discuss his credibility in a moment, but first I will take a moment to set out the evidence regarding these five contentious assets.
(a) The Realty Downpayment
40Not long before his arrest, Mr. Singh entered into an agreement of purchase and sale with respect to a residence in British Columbia in the amount of $2.625 million. More correctly, his mother entered into the agreement, but it is not disputed that it was on his behalf. The use of his mother as a straw purchaser was intended to conceal his ownership interest in the property. In any event, $500,000 in deposits were paid towards the purchase price. They were returned when the transaction fell apart after Mr. Singh was arrested.
41Mr. Singh addressed the return of the deposit funds in paragraphs 14 and 15 of his affidavit, sworn October 1, 2013. He said as follows:
The $100,000 deposit was returned to my mother, Lynette Pinto. She has advised me and I verily believe that $86,000 of these funds was given to Sivaramalingam Suthakaran (“Siva”). My mother gave this money to Siva without my consent or knowledge. Based upon the Crown’s information in paragraph 84 of the Johnson Affidavit, it was paid to 1733073 Ontario Inc. I believe that any balance retained by my mother has been used for my expenses, while I was in custody.
I do not know how or why, but I verily believe that the further deposit of in excess of $400,000 was paid to Siva after my arrest. I cannot recall the name of the lawyer used in British Columbia, and because of my incarceration and that I have had no access to any documentation since February 2010, cannot track these monies. I did not consent to Siva obtaining these monies.
(b) The $500,000 with Steven
42Mr. Singh testified that in his line of business it was necessary to have large sums of cash available on short notice. Obviously the police located a large sum in a suitcase in his mother’s house. Another large sum was, he admits, held by an associate in Vancouver. The amount was $500,000. The associate was named, he said, “Steven”. He said he could not remember Steven’s last name.
43Mr. Singh testified that the entire proceeds held by Steven have been utilized to cover expenses, including legal fees, since he has been incarcerated. Mr. Singh indicated that he was also paying the legal fees of his co-accused, Mr. Le, until he began to run low on funds. He said he paid upwards of $200,000 towards Mr. Le’s legal fees. He also paid legal fees for his father, who was charged as an accessory after the fact. He also paid legal fees for his mother, up to the point of the preliminary inquiry.
(c) The $390,00 with Lopez
44Mr. Singh testified that Michael Lopez, like Steven, held significant sums of money for him. In the case of Mr. Lopez it was $300,000. In addition there was apparently another $90,000 that Mr. Singh said was held somehow jointly by Mr. Lopez and another associate nicknamed “Joker”. According to Mr. Singh, Mr. Lopez ran off with the entire $390,000.
(d) The Diamond Ring
45Mr. Singh purchased a 5.2 carat diamond ring for his girlfriend, Tara Gabriel. The police located an appraisal of the ring for insurance purposes in Mr. Singh’s Burnaby, B.C. apartment after his arrest. The appraisal was for $448,000. Mr. Singh said he paid about $340,000 for the ring. He said he ultimately had Steven sell it for him on the black market. He netted $150,000 which he said he spent on legal fees.
46There was no evidence provided about the ownership of the ring. An assumption seems to have been made that the ring belonged to Mr. Singh. But it was a ladies ring and if it was given to Ms. Gabriel then it became her property. Mr. Singh said he had it sold in January 2012. I’m not sure what to make of that evidence. I gather that he somehow retained the right to the ring, or perhaps no one ever turned their minds to its true ownership.
(e) The BMW X5
47A 2010 BMW X5 was purchased by Mr. Singh in October 2009. The purchase price was $130,897.77. Mr. Singh made a down payment of $91,073.64. He financed the balance over five years.
48The vehicle is now registered to Diem Cuu. Ms. Cuu is the wife of a man Mr. Singh met and befriended in jail. She is now Mr. Singh’s power of attorney for property. It is not clear exactly how the vehicle came to be registered in her name. Mr. Singh testified that he agreed that Ms. Cuu could drive the vehicle. He theorized that she could not get insurance on it unless she transferred it into her name. He testified that he owes her money for her services as his attorney for property and has no means to pay her. The inference is that the car has been transferred to her in lieu of payment for her services.
49In total, the five contentious assets have a value arguably in the range of $1.8 million – more than enough to cover Mr. Singh’s reasonable legal fees. He says, however, that these assets no longer exist. The court is asked to take his word for it. I turn then to an examination of his credibility.
50Mr. Singh is an admitted liar. Indeed, his life prior to his arrest was based on deception, artifice, subterfuge and concealment. For example:
(a) He regularly lied to Canada Border Service Agents about the reasons why he travelled outside of Canada. He further lied to them about his business interests;
(b) He lied to Canada Revenue Agency about his sources and amounts of income;
(c) He submitted fraudulent tax returns to mortgage lenders for the purposes of obtaining mortgage funding for real estate purchases;
(d) He kept large sums of money in cash, rather than deposit it in the bank and risk detection;
(e) He used nominees to hold his cash for him, including his mother, and his friends Steven and Lopez;
(f) He sought to acquire land in British Columbia in his mother’s name, again in an attempt at concealment of the true owner of the property;
(g) He moved substantial sums of money surreptitiously around the world, using an underground network of other nefarious characters;
(h) He set up corporate entities in an attempt to create an appearance of legitimacy;
(i) He is an admitted smuggler and importer of illegal drugs. He described himself as a gangster; and,
(j) He has a prior conviction for forging a credit card and two more convictions for assault.
51Mr. Singh is an unsavory character. His evidence presents a perplexing problem for the court in terms of its assessment. On the one hand, he appeared particularly candid, revealing details of his criminal activity and network of associates. Moreover, the police, after an extensive investigation, did not discover any significant undisclosed assets attributable to Mr. Singh. On the other hand, Mr. Singh is an admitted smuggler, deceiver and liar.
52Mr. Singh’s counsel urged the court to find Mr. Singh to have been a credible witness. What reason, she queried, would he have to reveal prejudicial details about his activities were he not honestly in a desperate situation? I concede there is some attractiveness to that submission.
53Upon further reflection, however, my view is that any prejudice to Mr. Singh is more apparent than real. First, he spoke in generalities. There is little information that he provided that might be harmful to him in a future proceeding, if such information is even admissible in a future proceeding in light of the application of section 13 of the Charter. Second, his memory was conveniently poor when it came to remembering the names of some of his associates.
54At the end of the day, I have to look at Mr. Singh for the type of witness he was. I have no doubt that some of his evidence was candidly given. At the same time, he is an inherently untrustworthy individual. It would be foolish to accept his evidence at face value simply because it has an air of candour to it.
55I am reminded of the eloquent analysis of O’Halloran, J.A. in Faryna v. Chorny [1951], B.C.J. No. 129 (B.C.C.A.), where he described the trial judge’s task in assessing credibility:
The credibility of interested witnesses…cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth.
56Mr. Singh’s evidence simply does not stand up to scrutiny. It is not harmonious with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in the circumstances. Let me explain why.
57First, Mr. Singh operated a very sophisticated and lucrative criminal operation. He generated very large sums of money. He needed those funds to be readily available to him on short notice in order to continue to fund his illicit operations. A man of his sophistication and success would not deposit a half million dollars with a person relatively unknown to him and whom he knew only by the first name, “Steven”. Life just does not work that way. Mr. Singh could not possibly have become successful in his business by acting in such a cavalier manner. A person holding a half million dollars in cash on the other side of the country is a person who is a trusted member of the organization. Full stop. Mr. Singh was not truthful about his relationship with Steven.
58Second, Mr. Singh was evidently the head of a sophisticated criminal organization. Smuggling and drug trafficking are dangerous businesses. I cannot say it is impossible that Mr. Lopez and Siva brazenly stole upwards of $900,000 from Mr. Singh, but it strikes me as improbable. Mr. Singh is on trial for murder. The allegation is that he put a bullet in the heads of each of Mr. Sandhu and Mr. Chhina because they stole cocaine from him. At law Mr. Singh absolutely enjoys the presumption of innocence. The feeling on the street may be different. I cannot accept that Mr. Lopez and Siva would walk off with hundreds of thousands of dollars belonging to Mr. Singh in such an obvious fashion. There is much more going on than Mr. Singh let on.
59Third, it is clear that Mr. Singh’s mother is a trusted person in his life. The notion that he has no idea why she would give Siva the $500,000 deposit he was entitled to from the British Columbia land purchase is not at all credible. Ms. Pinto might have been able to shed some light on this critically important area, but she refused to attend to be cross-examined.
60Fourth, the BMW is a relatively new vehicle. It had low mileage when Mr. Singh was arrested. Now it is registered to the wife of someone Mr. Singh befriended in prison. Again, there is more here than meets the eye. Mr. Singh’s explanation as to why he isn’t justified in insisting on the return of the vehicle has no legs. Insofar as I am concerned, this vehicle remains his.
61Finally, Mr. Singh testified that his primary business operations were conducted overseas between India and Vietnam. His operations required ready funds. He must have had funds in Asia. He could not have conducted his business otherwise. He testified about how his funds were moved around the world, but gave no evidence about what funds he had there, who held funds for him in Asia, or what became of those funds. This is where we find the unknown unknowns. It would not, of course, be proper for me to speculate or make up theories about what assets might exist without evidence to support them. But in my view, there is sufficient evidence in the record to reasonably infer that Mr. Singh very likely had or has funds in Asia that are unaccounted for.
Conclusion
62Close to $2 million in assets are in contention. To find that Mr. Singh is without assets, I must accept his explanations about what happened to the money held by Steven and Mr. Lopez, the money returned to his mother from the real estate deal in British Columbia, the diamond ring, and the BMW.
63For the reasons stated, Mr. Singh’s evidence is not sufficiently fulsome, nor credible, for me to comfortably say that I am satisfied with those explanations. In the result, I find that he has not satisfied me, on a balance of probabilities, that he has no other assets or means available for the purpose of meeting his reasonable legal expenses.
64The failure of Mr. Singh to meet the second branch of the three part test under section 262.34(4), particularly in circumstances where the seized funds, on Mr. Singh’s own evidence, clearly appear to be proceeds of crime, compels me to dismiss his application.
Boswell J.
Released: December 5, 2013