Court File and Parties

COURT FILE NO.: CRIM J (P) 697/13 DATE: 2016-04-11

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty The Queen Colin Henderson and Jacob Sone for the Crown

- and -

Jananthan Kanagasivam, Majurathan Baskaran, Thirumal Kanthasamy and Srimoorthy Pathmanathan Stephen Morris for Jananthan Kanagasivam Andrew Vaughan for Majurathan Baskaran Peter Zaduk and Cate Martell for Thirumal Kanthasamy Christopher Assie for Srimoorthy Pathmanathan

DIRECTED VERDICT RULING

Fairburn J.

Overview

[1] This case involved a 29-count indictment with theft, kidnapping, robbery, use of imitation firearm, and possession of property obtained by crime charges. There were four accused. The jury returned 61 verdicts on March 18, 2016.

[2] At the close of the Crown’s case, each accused brought directed verdict applications. While Mr. Kanthasamy sought directed verdicts with respect to each of the counts he faced, the other accused focussed on select counts. I dismissed the applications with written reasons to follow. These are my reasons.

General Overview of the Case

[3] Central to this case was an allegation that a group of men were involved in stealing tractors and trailers, sometimes containing highly valuable loads. The contents of the loads ranged in variety from alcohol to cigarettes and beyond. The most valuable load contained cigarettes and had a retail value of $1.6 million.

[4] The offences were alleged to have been committed on 11 separate dates over 5.5 months in 2009. On 7 occasions truck drivers or security guards were kidnapped and robbed. The Crown maintained that each crime was committed by a group of men. The testimony of the complainants supported this position. The Crown contended that while the specific individuals involved in committing the offences changed from time-to-time, they functioned within the same general group. The Crown argued that the accused were part of the group.

[5] With few exceptions, the accused did not challenge whether the offences occurred. Rather, the main issue in dispute between the parties was identity. The Crown maintained that the accused were principals, joint principals or aiders to the crimes with which they were charged.

The Legal Test Applicable to a Directed Verdict

Positions of Counsel

[6] Mr. Kanthasamy took the lead with respect to arguing what was said to be the correct legal test to apply when determining whether a verdict should be directed in a largely, if not exclusively, circumstantial case. He argued that where the Crown’s case relies on circumstantial evidence, a verdict of acquittal must be directed unless the trial judge is satisfied that the evidence is consistent with guilt and inconsistent with any other explanation. Mr. Kanthasamy maintained that for the Crown to survive a directed verdict application in a purely, or almost purely, circumstantial case there must be no rational explanation for the facts arising from the circumstantial evidence other than guilt.

[7] Mr. Kanthasamy relied upon a few authorities for this proposition, including R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 29. In particular, he relied upon McLachlin C.J.’s comments about a preliminary inquiry judge’s task when engaging in a limited weighing of evidence: “the judge must engage in a limited weighing of the whole of the evidence … to determine whether a reasonable jury properly instructed could return a verdict of guilty”. Mr. Kanthasamy argued that the same approach applies on a directed verdict application. He maintained that this approach involves the trial judge holding the evidence up and asking whether there is an explanation other than guilt. If an explanation other than guilt exists, he argued that verdicts of acquittal must be directed.

[8] The Crown argued that that Arcuri stands for a different proposition. The Crown maintained that the trial judge would fall into error by engaging in the weighing as suggested by the defence. The Crown’s position was that when it comes to circumstantial evidence, provided that the evidence is capable of supporting the inference sought by the Crown, the sole question is whether the evidence, taken as a whole, could reasonably support a verdict of guilty.

The Legal Test to Apply

[9] The standard that a judge applies on a directed verdict application is the same as that applied when a judge decides whether to order committal following a preliminary inquiry. The ultimate question is whether there is any evidence upon which a properly instructed jury that is acting reasonably could return a verdict of guilty: Arcuri, at para. 21; United States of America v. Shephard, [1977] 2 S.C.R. 1067, at p. 1080; R. v. Monteleone, [1987] 2 S.C.R. 154, at p. 160. There must be evidence, direct or circumstantial, that is capable of proving each element of the offence.

[10] While the trial judge must engage in a limited weighing of evidence when considering a directed verdict application, it is not of the sort contemplated by the defence. As McLachlin C.J. noted in Arcuri, where the Crown relies upon circumstantial evidence to prove an element of an offence, the judge’s task is more nuanced and a “limited weighing” of the evidence is required. The weighing, though, involves determining whether the evidence is reasonably capable of supporting the inference that the Crown asks be drawn: “[t]he 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”: Arcuri, at para. 23; R. v. Pannu, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 159.

[11] The very nature of circumstantial evidence is that it will often furnish more than one inference, some that point toward and some that point away from guilt. On a directed verdict application, the judge is not to draw an inference or ask whether she or he would draw the inference suggested by the parties. Where the evidence supporting an essential element of the offence is “entirely circumstantial”, the trial judge’s task is simply to determine whether the evidence, is “reasonably capable of supporting the inference the Crown seeks to have the trier of fact draw about that essential element”: Pannu, at para. 159. If the evidence, considered as a whole, could reasonably support an inference of guilt, then a directed verdict motion must fail: Pannu, at para. 160.

The trial judge does not have to be satisfied that the evidence is consistent with guilt and inconsistent with any other explanation. Indeed, engaging in such reasoning would be in error. I decline to do so.

Assessing the Applications

The Counts Subject to Directed Verdict Applications

[12] Mr. Kanthasamy asked for directed verdicts on all counts he faced, what I will refer to as the Aulakh, Hughes, Warraich, and Latham kidnapping related offences and the possession counts.

[13] Mr. Pathmanathan acknowledged there was enough evidence to allow the counts related to the March 13 and May 2, 2009 thefts, the May 12, 2009 Luis Santana-Rivera robbery, and the Dave and Warraich kidnappings and related offences to go to the jury. He asked for directed verdicts on the counts related to the Aulakh, Hughes, Latham, and Chandler kidnappings and related offences, the theft of LG appliances on August 11, 2009 and the possession counts.

[14] Mr. Baskaran acknowledged there was enough evidence to allow the counts related to the Gill, Hughes, Latham and Chandler kidnappings and related offences and the possession counts to go to the jury. He asked for a directed verdict on the counts related to the Warraich kidnapping.

[15] Mr. Kanagasivam acknowledged there was enough evidence to allow the counts related to the thefts on May 2, 2009 and the Dave kidnapping and related offences to go to the jury. He asked for a directed verdict related to the Chandler kidnapping counts.

[16] For the most part, the defence did not take issue with the fact that the offences occurred. Rather, the core issue on the directed verdict applications was one of identity, whether there was evidence from which it could be inferred that the accused were principals, joint principals or aiders to the crimes.

[17] The defence argued that the Crown’s case rested almost exclusively upon cell phone evidence. In respect to the challenged counts, in general, the defence position was that while the cell phones registered to the various accused were sometimes in locations close to where offences occurred, the inference that could be taken from the evidence was nothing more than that the accused might have been at or near the location of a crime. The accused argued that even if they were using their phones, this was not enough evidence for the Crown to get by a directed verdict application.

[18] While I generally agree with the overall proposition put by the defence, with respect, bearing in mind the entire context for the cell phone evidence in this case, it was capable of supporting inferences beyond the benign one suggested by the defence. The cell phone evidence had to be considered in context and along with all of the evidence.

[19] These were joint enterprise allegations. Indeed, the kidnapping complainants testified that 2, 3, and sometimes 4 men were directly involved in their kidnappings. Against the backdrop of joint enterprise crimes, the cell phone evidence was capable of establishing symmetry of movement between various accused and former accused, symmetry of movement that corresponded with the locations and times of crimes. There was also evidence that the accused and former accused were associated to one another. In the context of joint enterprise allegations, the evidence of association between people proximate to the locations where the crimes occurred, at times they occurred, was also some evidence of identity.

[20] There was also other evidence upon which the jury could rely in finding the accused were involved as principals, joint principals or aiders to the crimes. For instance, I made a similar act ruling, making it possible for the jury to consider the evidence in respect to some counts in relation to other counts: 2016 ONSC 2548.

[21] As the evidence varied from accused-to-accused and crime-to-crime, I find it necessary to review the evidence in respect to each challenged count. What follows is a non-exhaustive review of the salient evidence upon which a properly instructed jury, acting reasonably, could return verdicts of guilty. A more detailed review of the evidence is found in the similar act ruling.

(i) Mr. Kanthasamy and Mr. Pathmanathan: Counts 11-12

The Kulbir Aulakh robbery, kidnapping and use of imitation firearm charges

[22] On July 2, 2009, Mr. Aulakh was in his truck at 550 Matheson Blvd. in Mississauga, an LG warehouse. He had LG televisions on board. It was between 1:00 and 2:00 p.m. He had the door to his truck open when a man with a gun rushed into his truck, put a cap over Mr. Aulakh’s face and pushed him into the sleeper compartment. Two men sat on the bed with him, a third man drove and a fourth sat in the front passenger’s seat. Mr. Aulakh testified that the men were speaking Sri Lankan.

[23] The truck drove, after which Mr. Aulakh heard the contents of the truck being unloaded. The truck drove again and then Mr. Aulakh was left abandoned in his truck. He was able to break free. He found himself close to the Salem Road entrance to Highway 401 in Whitby. He drove west. The police eventually located him around 4:00 p.m. close to the Yonge St. exit from the 401.

[24] Three former accused testified: Prithiviraja Rajathurai, Sivalingam Amarasingam and Jalani Daley. Mr. Rajathurai and Mr. Amarasingam testified that they were originally from Sri Lanka and spoke Tamil. Both testified with the assistance of a Tamil interpreter. Both testified that Mr. Pathmanathan knows how to drive trucks. Mr. Amarasingam said that he is the uncle of Mr. Pathmanathan. As for Mr. Daley, he testified that Mohamed Mashood, an individual who the jury heard was linked to a number of the offences, spoke in a language he did not understand. As well, Mr. Pathmanathan gave a statement to the police.

[25] As for the phone evidence, it was detailed and somewhat microscopic in nature. I do not intend to go through it in detail in respect to any of the counts.

[26] In very brief compass, the Crown led cell phone evidence placing phones registered to Mr. Kanthasamy and Mr. Pathmanathan very close to 550 Matheson Blvd. in the time frame that Mr. Aulakh testified that he was kidnapped. Indeed, Mr. Kanthasamy’s registered phone used the tower closest to the LG warehouse at 1:34:12 p.m. Both Mr. Pathmanathan and Mr. Kanthasamy’s phones were then inactive for the same general period of time. The silence started in the window when Mr. Aulakh and his truck were taken.

[27] The phones then started using towers again after 3:00 p.m. At this point, they had left Mississauga and were now in the Whitby area. Mr. Kanthasamy’s phone registered on a tower covering the Salem Road and Highway 401 intersection at 3:24:12 p.m. This was the general area where Mr. Aulakh was abandoned and the general time that he was abandoned. At this point, Mr. Kanthasamy’s phone was in contact with a phone registered to Vijay Kallepally.

[28] The Crown led evidence from which the jury could infer that “Vijay Kallepally” was Mohamed Mashood. The Kallepally phone was close to Salem Road and the 401 during this call. The Kallepally phone also used towers close to the location where Mr. Aulakh was kidnapped from, around the time that he was kidnapped.

[29] The jury heard and saw surveillance evidence from which they could infer that Mr. Kanthasamy, Mr. Mashood and Mr. Pathmanathan all knew one another. There was also phone evidence from which this inference could be taken.

[30] The above evidence reveals the phones moving in concert, one with the other, at times and at locations corresponding to the offences that occurred. Mr. Aulakh testified that 4 men were involved in his kidnapping. The accused were associated with each other and with Mr. Mashood. One man drove the truck and Mr. Pathmanathan can drive a truck. This is all evidence from which the jury could infer that Mr. Kanthasamy and Mr. Pathmanathan were involved as principals, joint principals or aiders to the crimes.

[31] The probative value of the cell phone evidence arose from the improbability of coincidence that 3 men who were associated to each other would be close to the site from where the complainant was originally kidnapped by multiple men at the time he was kidnapped by the men. (There was evidence upon which the jury could infer that the accused and Mashood were using the cell phones ascribed to them by the Crown.) The improbability of coincidence is increased when one considers that the 3 men were in general proximity to where the complainant was abandoned, at the time when he was abandoned.

[32] The improbability of coincidence is again increased when one considers the evidence of potential similar acts. For Mr. Kanthasamy, these acts involved the July 21, 25 and 28 kidnappings and related allegations. As for Mr. Pathmanathan, these acts involved the May 2, July 21, 25, 28 and August 27 allegations. (Mr. Pathmanathan did not request a directed verdict on the May 2 or July 25 counts.)

[33] As set out in my corresponding similar act ruling, there was evidence upon which the jury could find that the acts were so similar that the same group likely committed some or all of them. There was also independent evidence upon which the jury could find that each accused was linked to the similar acts with which he was charged. Based on my admissibility ruling, in accordance with my instructions to them, it was open to the jury to consider the evidence of potential similar acts on the issue of identity. As such, I have taken the similar act evidence into account on the directed verdict application.

[34] While Mr. Kanthasamy argued that his home was in Whitby and he had an innocent explanation for being on the cell tower by Salem and the 401, I simply note that the tower does not cover where his residence is in Whitby. Most importantly, though, it was for the jury to decide what inference to take from Mr. Kanthasamy’s phone’s use of a cell tower in Whitby while in communication with Mr. Mashood’s phone, generally at the time when Mr. Aulakh was being released. My task is not to draw an inference. It is to weigh the evidence and locate the field of potential inferences available. An available inference is that Mr. Kanthasamy’s phone used the Salem and 401 tower around the time that Mr. Aulakh was being abandoned because he was involved in that offence. This inference was strengthened when considering all of the evidence in context.

[35] I find that when all of the evidence is considered, a properly instructed jury, acting reasonably, could find Mr. Kanthasamy and Mr. Pathmanathan guilty in relation to the Aulakh offences.

(ii) Mr. Kanthasamy and Mr. Pathmanathan: Counts 17-19

The Gary Hughes robbery, kidnapping and use of imitation firearm charges

[36] On July 21, 2009, Mr. Hughes left from Mississauga with a load of chicken feet and drove to the Quinte Mall in Belleville, where he stopped around 10:00 or 10:30 p.m. to get some sleep. Once asleep, a person with a gun broke into the cab of his truck. Mr. Hughes’ was pushed toward the back wall and bound. He believes that there were at least three men in the truck. They were speaking a “different language”.

[37] The truck drove some distance, after which Mr. Hughes could hear the chassis being disconnected. His bank card was taken and he provided the men with his PIN number. His card was used to access his bank account. He was eventually abandoned in his truck. He freed himself and called the police.

[38] Jalani Daley testified that Mr. Mashood and “Big T” solicited his assistance in this kidnapping and robbery. He testified that he travelled to the Quinte Mall in Belleville with them and another man. He saw Mr. Mashood and Big T run toward the truck with two other people and smash the window. Mr. Mashood and Big T eventually returned to the vehicle where Daley and the other man were waiting.

[39] Mr. Daley testified that he likely had contact with Mr. Baskaran that day, but it would have been before he left for Belleville. He did not testify that he saw any of the accused in Belleville or that they were involved in the offence.

[40] As for the phone evidence, the Crown relied upon the records from five phones: those registered to Mr. Baskaran, Mr. Kanthasamy, Mr. Pathmanathan, Mr. Mashood, and a phone registered to Gerrald Newmen. Mr. Daley agreed that the Newmen phone was his.

[41] There was symmetrical movement between Mr. Daley’s and Mr. Baskaran’s phones. They were in contact in the late-afternoon and into the early evening. While both in the same general area of Toronto, the phones communicated around 9:00 p.m. and then started to use towers on a trajectory eastbound on the 401. While the Daley phone records do not show his phone making it all of the way to Belleville, we know from Daley that he was there. As for the phone attributed to Mr. Baskaran, it started using phone towers in Belleville prior to midnight, at a time after which Mr. Hughes said he had gone to sleep. At 11:59 p.m. the phone started to move westbound on the 401, consistent with the movement of Mr. Hughes.

[42] As for Mr. Pathmanathan’s phone, it followed a similar trajectory, moving eastbound on the 401 in the same time frame, using a Port Hope tower a few times just prior to and after 10:09 p.m. The use of this tower, at this time, was consistent with Mr. Kanthasamy’s phone using the same tower at around the same time. Both phones then used towers revealing an easterly trajectory from Port Hope toward Belleville. While Mr. Kanthasamy’s phone use stopped prior to Belleville, the last phone entry for the evening suggests that the phone was still moving eastbound on the 401, using a tower to the west of Belleville.

[43] Mr. Pathmanathan’s phone made it into Belleville, using towers just prior to midnight and then showing a westerly movement a few minutes before midnight. This is consistent with Mr. Baskaran’s phone records and also consistent with Mr. Mashood’s phone records. The Mashood phone was present in Belleville prior to midnight and suggested a westerly movement back toward the GTA just minutes before midnight.

[44] Aside from the association evidence already covered, there is some phone evidence linking Mr. Baskaran to Mr. Mashood and Mr. Kanthasamy.

[45] There is also evidence of potential similar acts. I have already reviewed those acts in respect to Mr. Kanthasamy and Mr. Pathmanathan.

[46] While Mr. Kanthasamy is correct when he argues that the Crown did not have evidence of his presence in Belleville that night, the phone evidence cannot be approached in this isolated fashion, independent of the other phone activity. Like Mr. Daley, his phone did not register in Belleville, but this did not mean that it was impossible for him to have been there. He was associated with those whose phones did register in Belleville. Mr. Kanthasamy’s phone registered on towers showing a trajectory toward Belleville, where Mr. Hughes was asleep in his truck. The movement of his phone corresponds with the phones of other men he was associated with. The movement is similar to other crimes with which he was charged and available to the jury for consideration as possible similar acts.

[47] As for Mr. Pathmanathan, he argued that the presence of his phone on the critical towers in question was not incriminating, as his device had used those towers on previous occasions. Counsel was able to point to August 6, 2009 entries in his phone records as an example of this use. While this is a matter that the jury could be asked to consider when drawing appropriate inferences, I find that it does not undermine the fact that a possible inference is that Mr. Pathmanathan, a truck driver, was involved in the Hughes kidnapping and related offences. Of course, the evidence of potential similar acts was also available for the jury’s consideration.

(iii) Mr. Kanthasamy and Mr. Baskaran: Counts 20-21

The Kamran Warraich robbery and kidnapping charges

[48] Mr. Warraich was a security guard for Thomson Terminals located at 2 Bramkay St. in Brampton. He was in his guard booth when two men with a gun approached him. He was taken from the booth and told to pull his hat down and look at his feet. A truck entered the location and stopped close to where they were standing. He was placed into the back of the truck. This was all caught on videotape.

[49] There were four men in the truck. Mr. Warraich testified that two of the men had short hair, but in cross-examination qualified this evidence saying that he could not say whether they had “long hair, short hair, big hair, big body”. The truck was attached to a trailer and left. He testified that after the truck drove for a while, he could hear a sound as if the trailer was being detached from the truck. He was then driven back to Thomson Terminals and placed in an empty trailer.

[50] The video shows the truck originally pulling in at 8:17 p.m. and leaving with a trailer at 8:31 p.m. It returned at 9:06 p.m. Mr. Warraich is seen being taken from the truck. The truck is then seen pulling out with another trailer at 9:17 p.m. Mr. Warraich testified that the men were speaking Sri Lankan. His bank card was taken by the men and he provided them with his PIN number.

[51] The Crown alleged that the truck was taken from 119 East Street at around 5:30 p.m. A GPS device in the truck showed movement around that time. The truck was later found 17 Provost Drive in Toronto. It had one of the stolen trailers attached. The other trailer was found on a property rented by a Jagjit Brar to a man identified as “Sri”, who had a number matching that subscribed to Mr. Pathmanathan. As well, the jury heard evidence that Mr. Pathmanathan was known as “Sri”. The contents of some of the things stolen from Thomson Terminals were also located on the property rented by “Sri”.

[52] As for the phone evidence, phones registered to Mr. Mashood, Mr. Pathmanathan, Mr. Baskaran and Mr. Kanthasamy used the “Woodhill” tower around 8:30 p.m. This is the tower that is closest to the Thomson Terminals location at 2 Bramkay Street.

[53] As for Mr. Warraich’s bank card, it was used at 1670 McCowan Road just before 10:00 p.m. A tower in direct proximity to this location was used by Mr. Pathmanathan’s phone at about the same time. About an hour later, Mr. Pathmanathan’s phone also used a tower in direct proximity to 17 Provost Drive, where the stolen truck was later found.

[54] Mr. Baskaran, Mr. Pathmanathan and Mr. Kanthasamy’s phones all retreat to the Highway 27 and Albion Road area later in the evening.

[55] While Mr. Pathmanathan did not ask for a directed verdict in respect to these counts, Mr. Kanthasamy and Mr. Baskaran did.

[56] Among others, Mr. Kanthasamy argued that the case of R. v. Wills, 2014 ONCA 178, 308 C.C.C. (3d) 109, aff’d 2014 SCC 73, [2014] 3 S.C.R. 612, was informative. In particular, he relied upon the comments of Doherty J.A. relating to an accused’s DNA located on a bandana found close to the crime scene. In the context of assessing the reasonableness of the verdicts, Doherty J.A. held that the DNA evidence “alone could not support the inference that the appellant was one of the perpetrators” (at para. 36). Mr. Kanthasamy argued that the cell tower evidence, placing his phone on the Woodhill tower by 2 Bramkay Street, was merely “one anchor” and alone could not support the inference he was involved in the Warraich related matters. He analogized the phone evidence to the bandana evidence. He threaded this argument through all of his submissions for the directed verdicts.

[57] Leaving aside the very different tasks involved in assessing evidence for purposes of a directed verdict application and evidence for purposes of an assessment of the reasonableness of a verdict, I find that there is more than “one anchor” available on the evidence in respect to these and the other counts. In Wills, the timing for the deposit of the DNA could not be established. Here, the whole point of the cell tower evidence is that it corresponds in time, date and general location to the offence. And it shows symmetry of movement between people who are associated, one with the other.

[58] While Mr. Baskaran took the position that his association to Mr. Mashood was too ephemeral, having only one phone contact with the Kallepally phone on one occasion for 93 seconds, this was a matter for the jury’s consideration. Moreover, despite his argument that the frequency of his phone usage was inconsistent with being involved in the offences, this was also a matter for the jury to consider and determine what inferences to draw from this fact.

[59] Finally, it was open to the jury to consider the evidence from potential similar acts as evidence of identification. Those acts have already been set out for Mr. Kanthasamy. As for Mr. Baskaran, the acts included the July 6, 21, 25, 28 and August 27 offences. Of these, the only one he sought a directed verdict on was the July 25th offences.

[60] Like the others, I find that a properly instructed jury, acting reasonably, could find the accused guilty in respect to these counts.

(iv) Mr. Kanthasamy and Mr. Pathmanathan: counts 22-24

The William Latham robbery, kidnapping and use imitation firearm charges

[61] Mr. Latham drove for Rosedale Group, a company that transports alcohol for the LCBO. He left a Whitby LCBO on July 27, 2009 and drove to an Ottawa LCBO. He parked his truck and went to sleep, after which he awoke to find a man pointing what he believed to be a gun at him. Duct tape was placed over his eyes. He was bound and kept in the sleeper area. The man with the gun sat beside him and another drove. Mr. Latham did not hear anyone else. Mr. Latham was asked for directions to Montreal. The men were speaking a language other than English and it may have been “Jamaican”.

[62] The truck was driven for some time. Eventually he heard his trailer being detached. It was found empty a few days later 430 Rue Deslauriers, Ville St. Laurent, Montreal. The truck was then driven again and Mr. Latham was eventually abandoned at the Chemin St. Emmanuel exit of Highway 20, not far outside of Montreal. He managed to unbind himself and the police were called.

[63] The phones registered to Mr. Pathmanathan and Mr. Kanthasamy used a tower by Mr. Kanthasamy’s home in Whitby around 6:00 p.m. The tower was to the north of the 401 and its coverage area did not include the 401. Before 7:00 p.m., Mr. Pathmanathan’s phone used a tower that was directly proximate to the Whitby LCBO warehouse from where Mr. Latham started his journey shortly after.

[64] Mr. Kanthasamy and Mr. Pathmanathan’s phones then used towers showing a trajectory eastbound on the 401, the phones hitting locations like Cobourg, Colborne, Shannonville, Kingston Mills and so on. Both of their phones used the Quinte Heights tower just after 8:00 p.m.

[65] Eventually, both of Mr. Kanthasamy and Mr. Pathmanathan’s phones went silent. They did this before midnight, west of the exit from the 401 to Ottawa. Neither phone was used again until the next morning. Mr. Kanthasamy’s phone next showed activity using the Côte de Liesse tower in Montreal at 5:31:11 a.m. Mr. Pathmanathan’s phone used that same tower a few hours later. It was agreed that this tower was about 6 km from where Mr. Latham’s empty trailer was located a few days later. Their phones used this tower on multiple occasions.

[66] Mr. Baskaran’s phone used towers showing movement from Scarborough, east on the 401 and eventually up to Ottawa, coming to rest on a tower directly proximate to the Ottawa LCBO, at a time after Mr. Latham’s truck was seen arriving at that location. After Mr. Latham’s truck is seen on video leaving the LCBO parking lot, and he had been asked for directions to Montreal, Mr. Baskaran’s phone started using towers on route toward Montreal.

[67] Mr. Baskaran’s phone used a tower directly proximate to the Chemin St. Emmanuel exit, where Mr. Latham was abandoned, at 4:11 a.m. His phone also used the Côte de Liesse tower at 4:33 a.m., the same tower used by Mr. Kanthasamy and Mr. Pathmanathan’s phones later that morning. Mr. Baskaran’s phone then used towers suggesting a direct route back to the Scarborough area.

[68] Mr. Kanthasamy and Mr. Pathmanathan argued that there was no evidence linking them to the Latham related offences. As for Mr. Kanthasamy, he placed heavy emphasis on the fact that his cell tower usage established he was a great distance away from the Latham truck. He said that it was nothing but the merest of coincidence that Mr. Baskaran’s phone used the Côte de Liesse tower shortly before Mr. Kanthasamy’s phone. I note that Mr. Kanthasamy’s phone number was registered in Mr. Baskaran’s phone under the name “Appu”. Mr. Kanthasamy argued that there was “no anchor” in respect to the Latham counts.

[69] As for Mr. Pathmanathan, among other things, he argued that he had no association to Mr. Baskaran. Moreover, his phone records established that he had been in Montreal on a prior occasion and so it was not unusual for him to be there on the July 28.

[70] I find that when all of the phone evidence is considered together, in the context of a joint enterprise crime, there is sufficient evidence from which a jury could infer that the accused were involved in the offences. Despite Mr. Kanthasamy and Mr. Pathmanathan’s phones going silent, they did so west of the cut-off on the 401 to Ottawa. As such, they were not precluded from travelling to Ottawa. They next used a tower close to where the empty trailer was found, a long distance from Ottawa and an even longer distance from Whitby. They are associated to one another and Mr. Kanthasamy is associated to Mr. Baskaran.

[71] As well, the jury could consider the potential similar acts that I have previously reviewed. In the context of a joint enterprise allegation, this provided sufficient evidence to overcome the directed verdict application in respect to these counts.

(v) Mr. Pathmanathan: Count 25

The theft of a trailer with LG appliances

[72] There was a trailer full of LG appliances stored at 1 Hereford St. in Mississauga. This is the location of D&B Shanker, a distributor of large-scale merchandise. Robert Brace was a regional manager for the company. He testified that on August 11, 2009, he received a call at 5:05 p.m., alerting him to the fact that the trailer was missing. It had been present during the previous yard check at 2:30 p.m. Dishwashers, washers, dryers, microwaves and other appliances were contained within the stolen trailer. These items were located on August 28, 2009 at 130 Melford Drive, unit 5.

[73] The owner of the Melford Drive address, Mr. Morris Joseph, testified that it was a Cricket Club. He rented it to a “George” a few weeks prior to the August 28th date. Mr. Joseph testified about the number that he used to contact George.

[74] On August 11, 2009, the day the LG appliances were stolen, Mr. Pathmanathan’s phone connected to the “George” number on three occasions. On August 28, 2009, Mr. Pathmanathan was seen by the police backing a cube truck up to the loading dock for 130 Melford Drive, unit 5.

[75] Jalani Daley was asked if he was involved in the theft of the LG appliances and he testified “I don’t believe so”.

[76] After 1:00 p.m. the phone registered to Mr. Pathmanathan used towers in the general area of 1 Hereford Drive. At 3:16 p.m. it used a tower that covered 1 Hereford Drive. Mr. Daley’s phone records revealed a similar pattern. Mohamed Mashood’s phone also used towers close to 1 Hereford Drive. All three phones later used a tower in proximity to where the empty trailer was found.

[77] There was evidence linking Mr. Mashood and Mr. Daley. There was evidence linking Mr. Mashood and Mr. Pathmanathan. It is reasonable to infer that the theft of the trailer, committed during the day and while business was operating, would take more than one person.

[78] Mr. Pathmanathan was directly linked to the property by virtue of his contact with “George” on the very day it was stolen. The property was found at George’s rental unit. Mr. Pathmanathan was backing a cube truck up to the unit when he was arrested. This provided ample evidence from which the jury could infer that Mr. Pathmanathan was a principal, joint principal or aider to the crime.

(vi) Mr. Pathmanathan and Mr. Kanagasivam: Counts 26-27

The William Chandler robbery, kidnapping and use of imitation firearm charges

[79] Mr. Chandler was a truck driver. On August 27, 2009 he had a load of cigarettes and was parked outside of 30 Pedigree Court in Brampton. He was asleep, waiting for his delivery location to open in the morning. He fell asleep sometime after 2:00 a.m. He awoke to find a man in his truck. Two men held him and a gun was placed at this back. Another man drove.

[80] After a while, he heard the contents of the trailer being removed. The driver got out of the vehicle and spoke to someone else. After the trailer was unloaded, the driver got back in and the men in the back were told to tie him up. The truck was then driven again and Mr. Chandler was eventually abandoned. Once he freed himself, the police were called. The men were speaking a language that Mr. Chandler did not understand.

[81] As for the cigarettes, they were located along with the LG appliances at 130 Melford Drive, unit 5. This is the location that Mr. Pathmanathan was found backing a cube truck up to on August 28, 2009, the day following the Chandler offences.

[82] Around the same time that Mr. Pathmanathan was being arrested out back of unit 5, Mr. Baskaran was seen emerging from the front of unit 5. He ran toward and entered his vehicle. He was then told to exit the vehicle and was arrested. While Mr. Kanthasamy is not charged with the Chandler related counts, he was also at the scene of the arrests that took place at 130 Melford Drive. Along with Mohamed Mashood, Mr. Kanthasamy was inside of a van, parked out back of unit 5, when the arrests took place.

[83] As for the cell tower evidence, Mr. Pathmanathan’s registered phone was in communication with Mr. Kanagasivam’s registered phone after 2:00 a.m. At that time, Mr. Pathmanathan’s phone was using towers suggesting a westerly movement along the 401.

[84] When in communication with Mr. Pathmanathan’s phone, Mr. Kanagasivam’s phone used towers in proximity to his own home. Mr. Kanagasivam’s phone then repositioned itself onto a tower proximate to 30 Pedigree Court. It stayed in this area, using this tower, for some time. Mr. Baskaran’s phone also used the same tower at the same general time. The Mashood phone also used a tower close to that address.

[85] By just before 7:00 a.m., the Mashood phone repositioned itself to the Scarborough area and was in touch with Mr. Kanthasamy’s phone. Mr. Pathmanathan and Mr. Kanagasivam’s phones also repositioned themselves to the Scarborough area and used the same towers around the same times.

[86] As for Mr. Baskaran and Mr. Kanagasivam’s phones, the records show symmetry of movement following their multiple uses of the tower that covered the area where Mr. Chandler’s truck was parked when he went to sleep. Mr. Baskaran’s phone was in touch with the “George” number (George being the renter of 130 Melford Drive, unit 5) in the early morning hours of August 27, 2009.

[87] Only Mr. Pathmanathan and Mr. Kanagasivam brought applications for directed verdicts in respect to these counts. As this was Mr. Kanagasivam’s only directed verdict application, it is important to recall that he was also the subject of a similar act instruction, the potential similar act being the Kamlesh Dave kidnapping counts (that he did not seek a directed verdict on).

[88] For all of the reasons articulated earlier, I find that in the context of this joint enterprise crime, a properly instructed jury, acting reasonably, could infer from all of this evidence that the accused were principals, joint principals or aiders to the Chandler related crimes.

(vii) Mr. Kanthasamy and Mr. Pathmanathan: Counts 28-29

The possession of property obtained by crime charges

[89] As noted above, the LG appliances stolen on August 11 and the cigarettes taken from Mr. Chandler’s truck on August 27, 2009, were located at 130 Melford Drive, unit 5, on August 28, 2009. There is no dispute about the origin of this property.

[90] The police approached a parked Mercedes on August 27, 2009 at around 6:25 p.m. It was located behind a building just to the west of 130 Melford Drive. Mr. Mashood and Mr. Kanthasamy were in the vehicle. They provided their identification to the police. The officer described the interaction as compliant and cordial throughout.

[91] After the police left, Mr. Kanthasamy’s phone connected to the “George” phone three times in a row at 6:34, 6:52 and 7:19 p.m. Recall that the “George” number was provided by Mr. Joseph, the owner of unit 5, as the number of the man who rented the Cricket Club from him.

[92] Mr. Yu Chen also testified. He rented warehouse space to “Rick” and “Three”. The Crown maintained that “Three” was “Sri” (Mr. Pathmanathan). Mr. Chen rented his cube truck to the men. It is Mr. Chen’s cube truck that Mr. Pathmanathan was backing up to the loading dock for unit 5 when he was arrested.

[93] On August 28, 2009, the police were conducting surveillance. They made numerous observations, including Mr. Mashood driving his Mercedes to a Holiday Inn located in Scarborough. Mr. Mashood met with men in a blue Dodge Caravan that belonged to a Mr. Kanagaswaran. The Mercedes and van parked close to each other. Mr. Kanthasamy and Mr. Pathmanathan were observed moving between the van and the Mercedes.

[94] The vehicles were involved in further meets that day. Mr. Mashood eventually got into the van which was then observed driving by the Melford Drive address. After passing by, it left the parking lot. It returned later and again drove through the parking lot of the Melford Drive address. This time it backed up, facing south so that anyone in the van could see the street and the loading dock of unit 5. Mr. Chen’s cube van then drove into the same area and reversed into the loading dock area of unit 5.

[95] The police made arrests. Mr. Pathmanathan was driving the cube van. Mr. Kanthasamy, Mr. Mashood and Mr. Kanagaswaran were found in the blue Dodge Caravan. As above, Mr. Baskaran was found emerging from the front of unit 5. A search incident to arrest revealed that Mr. Mashood had documents in his wallet which, among other things, listed numerous appliances and contained reference to Mr. Pathmanathan’s number.

[96] Mr. Kanthasamy and Mr. Pathmanathan argued that there was insufficient evidence for a jury acting reasonably to find the accused guilty of possession of property obtained by crime. Mr. Kanthasamy said there was no evidence of possession or control. He was not involved in either the August 11 or 27 offences from which the appliances and cigarettes were obtained. He said that his proximity to the location during the evening of August 27 was not evidence of possession and control. While it may have been evidence of a desire to possess, it was nothing more.

[97] As for Mr. Pathmanathan, he said there was no evidence that he knew the contents of unit 5 were stolen. He argued that it is not particularly unusual to back a cube truck up to a location and that, even if he thought he was moving things, there is no evidence he knew the things were stolen.

[98] Respectfully, I disagree with both accused.

[99] Possession is defined in s. 4(3) of the Criminal Code. There are three forms of possession: personal possession, constructive possession, and joint possession. Knowledge and control are essential elements of possession.

[100] Personal possession occurs when the accused knowingly has physical control of the thing possessed. He must be aware that he is in possession of the thing and know what the thing is. As Fish J. held in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 16, both elements must co-exist with an act of control. See also: R. v. Tyrell, 2014 ONCA 617, 123 O.R. (3d) 109, at para. 29.

[101] Constructive possession occurs where the accused knowingly has a thing in “the actual possession or custody of another person” or “in any place whether or not that place belongs to or is occupied by him, for the benefit of himself or of another person”: Criminal Code, s. 4(3)(a); Morelli, at para. 17. As Fish J. held in Morelli, at para. 17, constructive possession requires that the accused: “(1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his ‘use or benefit’ or that of another person”. See also: Tyrell, at paras. 29-30.

[102] As for joint possession, it may occur where several people, including the accused, have custody of the thing at the same time. Where one of two or more people, with the agreement of the others, has something in his custody, each of them is in possession of the thing, provided each has a measure of control over the thing. Knowledge and agreement and some measure of control by the people who are not in physical possession of the thing is essential to the joint possession.

[103] There is evidence upon which a properly instructed jury could find that both Mr. Kanthasamy and Mr. Pathmanathan were in possession and control, in one of the three forms of possession. As for Mr. Pathmanathan, there is evidence upon which the jury could infer that he was involved in both crimes resulting in the stolen property being at unit 5. While he was not located within the premises, he was seen under surveillance, meeting with others prior to attending at the location. There is evidence that some of the others were involved in the offences resulting in the property being stolen. He was in phone contact with George, the renter of the premises. He was driving a cube van, presumably with the intent of moving some of the stolen property.

[104] At a minimum, this is evidence from which the jury could infer that the elements of constructive and joint possession had been proven.

[105] As for Mr. Kanthasamy, similar considerations apply. He had been in touch with George the night previous to the arrest. He called George almost immediately after being approached by the officer, while sitting in a car with Mr. Mashood outside the building to the west of 130 Melford Drive. The evidence tied Mr. Mashood to both of the offences that resulted in the stolen property. Mr. Kanthasamy was observed meeting with a group of men prior to attending at 130 Melford Drive. He was in the vehicle with Mr. Mashood when he was arrested, in circumstances where the van had parked so that the loading dock area of unit 5 could be observed.

[106] The jury could infer from all of this evidence that the men who had met earlier, who were in the van that had passed by the address earlier, and who parked where they could observe a moving van come into the area, were there because they were in joint or constructive possession of the property that they were about to move. For Mr. Kanthasamy, this inference is only bolstered by his presence in the area the night before and his contact with George the night before.

[107] Based on all of the evidence, the jury could infer that Mr. Kanthasamy was also in possession of the property in unit 5.

Conclusion

[108] In the end, and considered as a whole, I find that the evidence led by the Crown could reasonably support an inference of guilt in respect to each count. The directed verdict applications are dismissed.

Fairburn J.

Released: April 11, 2016