ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(F) 643/13
DATE: 2014-12-05
B E T W E E N:
HER MAJESTY THE QUEEN
H. Akin and P. Larmondin, for the Respondent
Respondent
- and -
SEAN HUSSAIN
M. MacGregor, for Sean Hussain
GARY RAMOUTAR
A. Morrisson, for Gary Ramoutar
Applicants
HEARD: November 14, 2014
RULING – APPLICATIONS TO QUASH COMMITTAL FOR TRIAL
An order was made on August 20, 2013, pursuant to s. 539 of the Criminal Code, directing that the evidence taken at the preliminary inquiry in this matter shall not be published in any document or broadcast or transmitted in any way before such time as the trial has ended.
Sproat, J.
INTRODUCTION
[1] Sean Hussain applies to quash his committal for trial by Nelson J. on charges of conspiracy to import cocaine, importing cocaine for the purpose of trafficking and possession of cocaine for the purpose of trafficking.
[2] Gary Ramoutar applies to quash his committal for trial by Nelson J. on the charge of possession of cocaine for the purpose of trafficking.
THE EVIDENCE
[3] In May 2012, the RCMP discovered 112 kilos of cocaine hidden inside the boards of wooden pallets in a 20 foot cargo container that arrived in New Brunswick. The container was destined for Moe’s Island Grocery in Mississauga. The RCMP arranged for a controlled delivery after removing virtually all of the cocaine. The container was then sent to the CN Yard in Toronto which was consistent with delivery in the normal course.
[4] A co-accused Mr. Dalloo, arranged for the container to be delivered to a public storage facility on The Queensway in Mississauga. Mr. Dalloo and another co-accused Mr. Buttazzoni attended in June 13, 2012, when the container arrived. The driver who brought the container to the public storage facility on June 13, offered to open the container but Messrs. Dalloo and Buttazzoni declined and they did not open it themselves.
[5] On June 14, Mr. Dalloo called Mr. Hussain and, without further explanation, asked him to bring “the cutters and the dolly”. Messrs. Dalloo, Hussain, Buttazzoni and Ramlall (another co-accused) attended and all four were involved in opening the container with bolt cutters.
[6] It was Mr. Hussain that was ultimately successful in opening the container with the bolt cutters. Messrs. Buttazzoni and Hussain then left the area. A white van arrived and transported the pallets to Whitby, where they were put in Mr. Ramlall’s garage.
[7] In the meantime Mr. Dalloo, with Messrs. Hussain and Buttazzoni who had by then returned to the storage facility, unloaded grocery items from the container.
[8] Mr. Hussain was one of two directors of Moe’s Island Grocery.
[9] On June 15, Mr. Ramoutar went to Mr. Ramlall’s home and both went into the garage. The pallets had microphones to alert the RCMP if the pallets were broken open. Within approximately ten minutes, upon hearing breaking sounds, the RCMP moved in and arrested Mr. Ramlall and Mr. Ramoutar.
[10] Mr. Hussain lived in a large home with his mother and father, his sister, brother-in-law and their child as well as Mr. Dalloo.
[11] The approximate street value of the cocaine seized was $4,000,000.
[12] The arguments on the application to quash focused on whether there was any evidence that Mr. Hussain and Mr. Ramoutar had knowledge of the cocaine such that a reasonable jury properly instructed could find them guilty.
THE LAW
[13] In Quebec (Attorney General) v. Cohen, 1979 223 (SCC), [1979] 2 S.C.R. 305, at pages 4-5, the court states:
Certiorari lies only for a lack of jurisdiction and a decision concerning the admissibility of evidence, even if erroneous does not affect jurisdiction.
[14] It follows that if an error in admitting evidence does not affect jurisdiction neither does an error in appreciating the evidence.
[15] As stated in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828:
23 [ . . . ] The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.
- In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge’s task is to determine whether, if the Crown’s evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of “limited weighing” never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.
[16] R. v. Munoz, 2006 3269 (ON SC), [2006] O.J. No. 446 (S.C.J.), Justice Ducharme stated:
- This limited weighing means that inferences to be drawn from circumstantial evidence need not be "compelling" or even "easily drawn" in order to be reasonable. If there are competing inferences, these are for the trier of fact to resolve. A preliminary inquiry judge commits jurisdictional error where he weighs competing inferences or chooses among them. If the trier of fact could reasonably draw an inference based on the evidence, then the matter should be left for their determination. As Major J. put it in R. v. Sazant, 2004 SCC 77 at para. 18, "where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered." Thus, if a reasonable inference in favour of the Crown is available to be drawn, then, regardless of its strength, a judge conducting a preliminary inquiry is required to draw it.
[17] The Ontario Specimen Jury Instruction states:
You are entitled to come to common sense conclusions based on the evidence that you do accept. You must not speculate, however, about what evidence there might have been or permit yourself to make up theories without evidence to support them.
[18] In R. v. MacIntosh, [2003] O.J. No. 1267 (S.C.J) Hill J. stated:
[45] The retail value of the drug associated with a person is relevant not only to whether he or she had knowledge the substance was a narcotic (R. v. Blondin (1970), 1970 1006 (BC CA), 2 C.C.C. (2d) 118 (B.C.C.A.) at 121 (aff’d on appeal (1971), reflex, 1971 1411 (SCC), 4 C.C.C. (2d) 566n (S.C.C.)) but also to whether the person had knowledge of the substance itself (R. v. Fredericks, [1999] O.J. No. 5549 (C.A.) at para. 3-4).
[46] The quantity of crack cocaine is clearly for the purpose of trafficking. The value of the illicit drug, thousands of dollars worth from retail sales, suggests the asset is one the owner would not risk losing. In other words, a drug dealer, as a person with business interests in mind, is unlikely to expose cargo of this value to the risk of discovery or loss by relinquishing to another possession of the receptacle concealing the asset.
ANALYSIS
[19] Mr. MacGregor, on behalf of Mr. Hussain, argued that while there was evidence of his knowledge of the container there was no evidence that would permit a reasonable jury properly instructed to conclude beyond a reasonable doubt that Mr. Hussain had knowledge of the cocaine.
[20] At paragraph 24 of his factum, Mr. MacGregor lists aspects of the evidence that might be regarded as exculpatory and suggests that Nelson J. should have incorporated this evidence in considering the totality of the circumstances relevant to knowledge and participation. I do not agree. Effectively this would amount to weighing competing inferences which the preliminary inquiry judge is not allowed to do. Further, in my view the arguably exculpatory aspects of the evidence pale in significance compared to the evidence from which guilt can be inferred.
[21] At paragraph 25 of his factum, Mr. MacGregor sets out seven areas in which he suggests that Nelson J. engaged in speculation being:
(a) a drug dealer would not risk entrusting the shipment to someone who did not know the contents.
(b) Mr. Hussain would not have been allowed to open the container and look inside, given that skids might have broken in transit, unless he was part of the plan.
(c) that Mr. Hussain could have overheard the conversation between Mr. Dalloo and Mr. Buttazzoni, testified to by Officer Johnstone, given that he was closer than the officer.
(d) Mr. Dalloo and Mr. Buttazzoni would not have risked Mr. Hussain hearing unless he was part of the plan.
(e) given the value, each member of the conspiracy would be anxious about others having independent dealings with the cocaine.
(f) a drug dealer would not want someone unaware of the plan to be present when the pallets were opened.
(g) Messrs. Buttazzoni and Hussain might have left the area to avoid the risk the driver of the white van picking up the pallets could identify them.
[22] In my opinion, (a), (b), (e), (f) are not speculation but represent common sense conclusions that the jury might well reach based on the evidence. On the reasoning of Hill J. in MacIntosh there is a strong inference that a person in possession of cocaine $4,000,000 would not take the risk of allowing an uninvolved person to see or have anything to do with the cocaine. While (g) is not as clearly rooted in the evidence but certainly common sense indicates that persons engaged in criminal activity would like to minimize or eliminate being observed by third parties.
[23] With respect to (c) and (d) the evidence did not make clear where Mr. Hussain was at the time Officer Johnstone overheard the conversation as he was concealing himself at the time. Even assuming that these inferences would require speculation, the other common sense inferences are rooted in the evidence and could not just reasonably, but readily, support an inference of guilt beyond a reasonable doubt.
[24] Turning to Mr. Ramoutar, he went in the garage and in short order sounds consistent with breaking the pallets open were detected. The police entered and a number of pallet boards had been pried open. Mr. Ramoutar’s cell phone was charging near the broken pallets.
[25] Justice Nelson analyzed this evidence and stated:
[61] Mr. Ramoutar submits that it is speculation and not inference that he knew what was inside the wooden pallets. He may have suspected illegal contraband was being imported but it would be speculation to presume he knew that the contraband was cocaine. The problem with this submission is that it ignores the fact that the pallets originally contained some $4,000,000 worth of cocaine. A drug importer or trafficker would not open the pallets in the company of someone who was unaware of the contents. Such behaviour would defy common sense. Thus, there is an inference of knowledge.
[62] Further, the fact that Mr. Ramoutar was present when the skids were opened gives rise to an inference that he had an interest in the contents. After all, Mr. Ramlall would not have allowed him to be present if Mr. Ramoutar did not have a vested interest in the cocaine. Further, there is some evidence that Mr. Ramoutar brought a hammer to Mr. Ramlall’s home, which supports the inference that he had prior knowledge that such a tool would be required. The fact that he was charging his cell phone in Mr. Ramlall’s garage gives rise to an inference that he expected to be at that location for some time. This is consistent with an inference that Mr. Ramoutar expected to be kept busy dismantling the many wooden skids in order to extract the cocaine he expected to find inside. Thus, a trier of fact could conclude that Mr. Ramoutar exercised control over the cocaine.
[63] At the very least there is an inference of joint possession. The evidence would permit a trier of fact to conclude that even if Mr. Ramoutar was not planning to traffic in the large amount of cocaine he believed to be present in the skids, there is evidence that he was assisting Mr. Ramlall to do so. Thus, it would be open to a trier of fact to find that Mr. Ramoutar was either a principal or a party to the offence of possession of cocaine for the purpose of trafficking.
[26] It appeared to have been the common understanding at the preliminary inquiry that Mr. Ramoutar brought a hammer to the garage. While the written submissions made at the conclusion of the preliminary inquiry were not before me, Ms. Akin recalled the Crown submission was that Mr. Ramoutar brought a hammer to the garage. The factum filed on behalf of Mr. Ramoutar does not take issue with that fact. This was significant given that a hammer would be useful in dismantling a pallet. Mr. Morrisson, however, submitted in argument that Mr. Ramoutar did not have a hammer. Ms. Akin acknowledges that, on review, there was no evidence that Mr. Ramoutar had a hammer.
[27] In paragraph 14 of Mr. Ramoutar’s factum it is submitted that:
… being in the vicinity of the pallets and breaking the pallets to look inside is not itself suspicious.
[28] I disagree. Common sense and experience, tools that jurors are instructed to use, suggest that no one breaks open a pallet without having prior knowledge there is something to find. If the something is $4,000,000 in cocaine its existence is almost certainly a closely guarded secret not shared with persons not party to the criminal scheme.
[29] I am easily satisfied that, even excluding consideration of the hammer evidence, a reasonable jury properly instructed could be satisfied beyond a reasonable doubt that Mr. Ramoutar had knowledge of the cocaine and was in joint possession of it. We instruct juries that they need not be satisfied of anything to an absolute certainty. I can easily see that a jury could be sure that Mr. Ramoutar would not have been allowed in the garage, when the process of dismantling the pallets was beginning, unless he had knowledge of the cocaine and was a party to the criminal scheme. Put differently there is a strong inference that Mr. Ramoutar would only have been allowed in the garage in order to be an active participant in removing the cocaine from the pallets.
CONCLUSIONS
[30] The applications by Mr. Hussain and Mr. Ramoutar to quash their committals for trial are, therefore, dismissed.
Sproat, J.
Released: December 05, 2014
COURT FILE NO.: CRIMJ(F) 643/13
DATE: 2014-12-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
SEAN HUSSAIN
GARY RAMOUTAR
Applicants
RULING – APPLICATIONS TO QUASH COMMITTAL FOR TRIAL
Sproat, J.
Released: December 05, 2014