ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-23-00
DATE: 20140311
B E T W E E N:
HER MAJESTY THE QUEEN
P. Larmondon and K. Park, for the Crown
- and -
MATTHEW JOHN BLEWITT, ATALA KHALILI, MURRAY JOHN ROSS and MANDIP SINGH
C. Bottomley, for the defendant, Matthew John Blewitt
A. Schreck, for the defendant, Atala Khalili
H. Pringle, for the defendant, Murray John Ross
K. Wells, for the defendant, Mandip Singh
HEARD: January 13, 14, 15, 16, 20, 21 and 23, 2014 at Brampton
REASONS FOR JUDGMENT
André J.
[1] On December 6, 2011, Canada Border Services officers intercepted three 20-foot containers loaded with chromium ore, which had been shipped from Karachi, Pakistan, to a company called Wolf Steel Limited (“Wolf Steel”) in Barrie, Ontario. One container had 313 cardboard boxes, 102 of which contained packages of cannabis resin, weighing approximately 4.6 metric tons. The containers were shipped to Toronto without the illegal drugs. The RCMP arranged for a controlled delivery of a sample to the intended destination. On January 31 and February 1, 2012, a truck from a delivery company picked up the pallets with boxes of chromium ore and one with the controlled sample of cannabis and transported them to 40 Crockford Road in Toronto, a storage warehouse owned by Mr. Khalili. On February 1, 2012, the RCMP arrested the four accused after they exited the warehouse where the boxes of chromium ore had been delivered.
[2] I must therefore decide whether or not the Crown has proven beyond a reasonable doubt that the four accused were in possession of a controlled substance for the purpose of trafficking pursuant to s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c.19.
SUMMARY OF EVIDENCE
[3] Documents recovered by the RCMP revealed that a company called United Enterprises shipped the three containers from Karachi to Canada. The documents indicated that the consignee was Wolf Steel. An employee of that company testified that Wolf Steel did not order the product in the containers.
[4] Upon arrival in Halifax, a freight forwarding company called Blue Arrow received the shipment’s documents from an associate company in Karachi called Combined Freight. The documents listed Wolf Steel as the consignee. Kevin Ablacksingh, the owner of Blue Arrow, contacted a representative of Wolf Steel two to three times but was told they were not the importer.
[5] A few days later, another freight forwarding company, Time World Express Ltd. (“Time World”), contacted Blue Arrow and advised them that they would be handling the shipment on behalf of the consignee. The representative from Time World indicated that they were in possession of the original shipping documents and that the shipment’s consignee was a person named Michael Sharma. Mr. Ablacksingh called Mr. Sharma’s telephone number. A male with a heavy East Indian accent answered the phone but indicated that he did not know anyone by that name. Days later, a courier dropped off a money order at Blue Arrow to cover the company’s fees for processing the paperwork and releasing the containers. This male, who is named Nicholas Venditello, later told the police that a male at a pool hall had paid him to drop off the money order at Blue Arrow. On February 22, 2012, the police showed Mr. Venditello a photo lineup which contained photographs of the accused. He did not identify any of them.
[6] In January 2012, a male called Mang Tung Suen, contacted Mr. Adam Mak, the owner of Time World, and asked him for his assistance to clear some goods that had been shipped to Canada. Mr. Mak had known Mr. Suen for 12 to 13 years who, on previous occasions, had retained Mr. Mak to ship products to and from Canada. Mr. Mak considered Mr. Suen to be a friend. The latter only spoke Chinese and Mandarin. Mr. Mak was adamant that Mr. Suen did not speak Punjabi.
[7] The original Bills of Lading which Mr. Mak received from Mr. Suen indicated that the product shipped was chromium ore with the consignee being Wolf Steel. Mr. Mak received an Authorization Letter from Mr. Suen which had been signed by Michael Sharma. It indicated that one of the containers was to be shipped to a company called Over The Road, located at 191 Superior Boulevard in Mississauga. The other two containers were to be shipped to an address on Shepherd Avenue and Tapscott Road in Toronto. Mr. Mak, who never saw any of the three containers, was later advised by Mr. Suen that the latter two containers were refused because of damage to the cartons in the first container and the contents were later transported to the dump.
[8] The Authorization Letter given to Mr. Mak by Mr. Suen contained Mr. Sharma’s telephone number. Mr. Suen gave Mr. Mak a second number for Mr. Sharma but no one answered when Mr. Mak called this number. Mr. Mak found this to be unusual since Mr. Suen told him that he regularly spoke to Mr. Sharma. Mr. Mak however, testified that the name Sharma sounded like an East Indian name and that he knew that Mr. Suen did not speak any other language but Chinese and Mandarin. Mr. Suen paid Mr. Mak approximately $27,000 in one hundred dollar bills for his services.
[9] Blue Arrow Ltd. shipped the containers to Over The Road in Mississauga. In mid-December 2011, the owner of Over The Road, Richard Myers, sent his operations manager, Manuel Corona, to a meeting. Mr. Corona met a gentleman who identified himself as Michael Sharma. Mr. Corona testified that Mr. Sharma was approximately 5’10”, medium build, clean-cut and was a South Asian man.
[10] Mr. Sharma called Mr. Corona around the Christmas holidays and inquired about prices to handle containers.
[11] Mr. Corona later received a faxed copy of a Bill of Lading from this male which listed chromium ore as the imported product. Mr. Sharma advised that the freight was destined for Wolf Steel in Barrie.
[12] On January 16, 2012, the first container arrived at 191 Superior Boulevard in Mississauga. Ninety-five percent of the contents were damaged. Mr. Myers told Mr. Corona that the RCMP were interested in the container’s contents. An RCMP officer later advised Mr. Corona to carry on business as usual. An officer positioned himself in an office in the company’s warehouse.
[13] A male, who turned out to be Mr. Singh, attended at Over The Road on January 16, 2012. Mr. Singh presented a paper authorizing him to pick up the freight on behalf of Wolf Steel.
[14] Mr. Corona informed Mr. Myers of Mr. Singh’s presence. It appeared to Mr. Corona that Mr. Singh had no idea what he was doing. His English was very limited. Mr. Singh advised him that he had received the document from someone at the Bramalea City Centre.
[15] Mr. Singh then phoned another man and spoke to him in a South Asian language. A telephone number on the document presented by Mr. Singh was the same number that Mr. Corona had earlier received from the South Asian male who identified himself as Mr. Sharma. Mr. Singh left the document with Mr. Corona who, along with Mr. Myers, followed Mr. Singh for a short distance until told by an RCMP officer to back off.
[16] Two RCMP officers followed Mr. Singh to a location where he took a bus to a local mall in Brampton. One officer recalled that Mr. Singh kept looking around, presumably to see if he was being followed. They observed him on the phone for a long time. He took another bus to the Bramalea City Centre. One of the officers followed Mr. Singh on foot but lost him in an electronics store.
[17] Mr. Myers did not accept the second container that arrived at his warehouse.
[18] Towards the end of January, 2012, a male with an East Asian accent, called Jimmy, contacted Mr. Corona on behalf of someone called Benny Chung, to clear the container. Mr. Corona called Time World and spoke to Adam Mak. Mr. Corona advised Mr. Mak of his company’s fees for their work on the shipment.
[19] A couple days later, Jimmy called Mr. Corona and said that someone would come to pay Over The Road for its work. Within minutes, an East Asian male attended the warehouse and gave Mr. Corona a red envelope with 40 $100 bills. The man left in a beige Corolla car with two other men. This man turned out to be an East Asian male called Kwan Cheung. Mr. Cheung later told the police that he had been hired by two men to go to Over The Road and give the envelope to the male at the warehouse.
[20] Mr. Corona then received a call from a company called Husky movers which made two trips, on January 31, 2012 and February 1, 2012, to transport the pallets to 40 Crockford Road, Toronto.
[21] Police officers carried out surveillance of 40 Crockford Road on January 31 and February 1, 2012. They observed Mr. Khalili, Mr. Blewitt and Mr. Ross on the premises on January 31, 2012 and all four accused on February 1, 2012. They witnessed a male, who they believed to be Mr. Ross, directing the Husky truck on January 31, 2012. They saw the four enter Mr. Khalili’s warehouse on February 1, 2012, after the Husky truck arrived at the warehouse. The police arrested the accused after they exited 40 Crockford Road after 2:00 p.m. on February 1, 2012. A subsequent check of the warehouse revealed that some of the boxes had been opened although the box with the controlled drug sample was intact. The police also found the fingerprints of Mr. Singh and Mr. Khalili on two packages within a carton.
[22] The police found three cellphones in Mr. Singh’s possession. One of the phones had the address of 40 Crockford Road in Toronto. Mr. Singh’s travel documents were found in a hotel room. One of the documents had the phrase “chrome puwder” [sic].
[23] The Crown and defence submitted, on consent, an Agreed Statement of Facts, marked as Exhibit 25, which contained the following admissions:
- Mang Tung Suen’s business partner is a male called Xing Hang Feng. Mr. Feng told Mr. Suen that a common acquaintance called “Brother Vic” or “Silly Vic” paid him $2,000 to arrange customs clearance of the shipment.
- Mr. Feng would testify that the shipment belonged to “Silly Vic”.
- Both Mr. Suen and Mr. Feng denied any knowledge of the contraband in one of the containers.
- The police authorities identified “Brother Vic” or “Silly Vic” as a male called Ricky Tat-Choi Leung, but were unable to locate him.
CROWN’S SUBMISSIONS
[24] The Crown submits that the circumstantial evidence supports an inference that all the accused had knowledge and control of the illegal substance and should therefore be convicted as charged.
[25] The Crown relies on the following evidence against the accused:
(1) Mr. Singh’s attendance at Over The Road on January 16, 2012, to take possession of the shipment.
(2) Mr. Singh’s information regarding the destination of the shipment and his suspicious behaviour after he left 191 Superior Boulevard.
(3) The delivery of the shipment to Mr. Khalili’s warehouse.
(4) The suspicious behaviour of all accused following the arrival of the containers at 40 Crockford Road.
(5) The manner in which Mr. Blewitt operated his car on February 1, 2012, by repeatedly driving around the neighbourhood in a clear attempt to evade any officers who may have had his vehicle under surveillance.
(6) The fact that only the four accused were seen to have entered Mr. Khalili’s warehouse before they were arrested.
(7) The fact that the boxes on the pallets delivered by the Husky truck had been opened in an apparent search for the contraband which had been removed by the RCMP.
(8) The unlikelihood that some person or persons would deliver 4.6 tons of cannabis, worth millions of dollars, to total strangers or persons who had no knowledge of the contents of the boxes.
DEFENCE SUBMISSIONS
[26] The defence suggests that there is little or no evidence before this court that any of the accused had knowledge of the illegal substance that was delivered to Mr. Khalili’s warehouse. They submit that:
(1) There is no evidence linking any of the accused to the importing of the substance.
(2) There is no evidence indicating that any of the accused knew of the presence of marijuana in the containers.
(3) Evidence of Mr. Singh acting suspiciously and of the accused trying to find out, on February 1, 2012, if they were under police surveillance, is weak and unreliable.
(4) The evidence points to the fact that persons other than the accused were responsible for the drugs shipped to Canada.
(5) None of the telephone numbers of Mr. Sharma were linked to any accused.
(6) There is no evidence linking any of the accused to Mr. Sharma.
(7) Mere presence at Mr. Khalili’s warehouse is insufficient for a finding of guilt beyond a reasonable doubt.
(8) The fingerprint evidence is incapable of supporting an inference of knowledge in this case.
(9) There are other rational inferences, pointing to innocence, that can be drawn from the evidence called by the Crown.
APPLICABLE LAW
[27] For a finding of guilty, the Crown must prove the essential elements of the offence beyond a reasonable doubt.
[28] The essential elements of the charge of possession of a controlled substance for the purpose of trafficking are:
(1) that the accused were in possession of a controlled substance
(2) that the substance was marijuana
(3) that the accused knew that the substance was marijuana
(4) that the accused had possession of the marijuana for the purpose of trafficking.
[29] A person or persons who has/have physical control of a substance by knowingly having it on his or her person or property has that substance in his or her possession: s.4(3)(a) of the Criminal Code, R.S.C. 1985, c. C-46.
[30] A person who knowingly has anything in the actual possession or custody of another person, or has it in any place, whether or not that place belongs to or is occupied by him; for the use or benefit of himself or another person, has possession of the thing in question: s. 4(3)(a)(i) and (ii) of the Criminal Code.
[31] Where one of two or more persons, with the knowledge and consent of the others, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them: s. 4(3)(b) of the Criminal Code.
[32] Circumstantial evidence requires facts for which guilt is the only rational inference. If innocence is an equally rational inference, there is no proof of guilty at all: R. v. John, 1970 199 (SCC), [1971] S.C.R. 781, at p. 804; R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42.
ANALYSIS
[33] The Crown submits that all the accused had knowledge and control of the drugs in question and that accordingly, they are all guilty of the offence charged. The Crown further submits that the only rational conclusion to be drawn from the circumstantial evidence is that the accused are all guilty of the offence.
[34] I must however, analyze the evidence as it relates to each of the accused to determine whether the Crown has established his guilt beyond a reasonable doubt.
(Decision continues exactly as provided above through paragraph [117] and the concluding release lines.)
André J.
Released: March 11, 2014
COURT FILE NO.: CR-13-23-00
DATE: 20140311
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
MATTHEW JOHN BLEWITT, ATALA KHALILI, MURRAY JOHN ROSS and MANDIP SINGH
REASONS FOR JUDGMENT
André J.
Released: March 11, 2014