CITATION: R. v. Kanagasivam, 2016 ONSC 2548

COURT FILE NO.: CRIM J (P) 697/13

DATE: 2016-08-30

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

RULING: SIMILAR FACT EVIDENCE

Fairburn J.

A. 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. By the end of trial, 4 accused remained the subject of prosecution and the jury returned 61 verdicts.

[2] The crimes were said to have been committed on 11 separate dates, 7 of them involving kidnappings. Each kidnapping count was accompanied by a robbery count and 4 of them were accompanied by imitation firearm counts. In addition, one of the robbery counts was particularized as having been committed with the use of a firearm.

[3] The kidnapping complainants were either truck drivers or security guards who worked at truck and storage yards. Each of the complainants said that they were kidnapped and robbed by a group of men.

[4] At the outset of trial, the Crown filed a similar fact evidence application that focussed on the 7 alleged kidnappings and their corresponding robbery and firearm counts. The Crown asked that the jury be permitted to consider all of the evidence concerning these events in determining the identity of the perpetrators in relation to each of the events. In other words, the Crown asked for the cross-count application of evidence pertaining to the kidnapping counts and their corresponding robbery and firearm counts.[^1]

[5] As the Crown's application related to conduct intrinsic to the indictment, argument was heard after the Crown closed its case. The jury was released for a number of days while the motion was argued. In order to keep the trial moving, and get the jury back as quickly as possible, an oral ruling was given with written reasons to follow. These are the written reasons for granting the application in the limited form it was allowed.

B. General Outline of the Case

[6] The accused were charged with groups of offences alleged to have been committed on 11 separate dates. The kidnapping offences that formed the backdrop of the similar fact evidence application were committed on 7 of these dates.[^2] In every instance, the Crown alleged that the offences were committed as part of a joint enterprise crime. There was little dispute at trial that the offences occurred. What was largely in dispute was the issue of identity: who committed the offences?[^3]

[7] While the Crown alleged that the same group committed all of the kidnapping offences, it was acknowledged that membership in the group rotated from crime-to-crime. Indeed, the changing constitution of the group was reflected on the face of indictment, showing the accused charged in different combinations and permutations throughout.

[8] The following chart sets out only those offences that were the subject of the similar fact evidence motion and the accused charged in relation to each.

Date of Offence	Complainant	Counts	Accused Charged
May 2, 2009	Kamlesh Dave	7-8: kidnapping, robbery	Mr. Kanagasivam Mr. Pathmanathan
July 2, 2009	Kulbir Aulakh	11-13: kidnapping, robbery, imitation firearm	Mr. Kanthasamy Mr. Pathmanathan
July 6, 2009	Rajender Gill	14-16: kidnapping, robbery, imitation firearm	Mr. Baskaran
July 21, 2009	Gary Hughes	17-19: kidnapping, robbery, imitation firearm	Mr. Baskaran Mr. Kanthasamy Mr. Pathmanathan
July 25, 2009	Kamran Warraich	20-21: kidnapping, robbery with a firearm	Mr. Baskaran Mr. Kanthasamy Mr. Pathmanathan
July 28, 2009	William Latham	22-24: kidnapping, robbery, imitation firearm	Mr. Baskaran Mr. Kanthasamy Mr. Pathmanathan
August 27, 2009	William Chandler	26-27: kidnapping, robbery	Mr. Kanagasivam Mr. Baskaran Mr. Pathmanathan

C. Prior Assessments of the Similar Fact Issue in this Case

[9] This is not the first time that the similar fact evidence issue has been considered in relation to this case. Following the preliminary inquiry, Mr. Pathmanathan and Mr. Kanthasamy were discharged in relation to one of the kidnapping matters: the July 2, 2009 kidnapping of Kulbir Aulakh. The Crown brought a certiorari application seeking the committal of the accused on the Kulbir Aulakh counts, claiming that the preliminary inquiry judge had exceeded his jurisdiction in failing to consider similar fact evidence.

[10] What follows is a brief review of the two decisions that followed. I recognize that these decisions are not binding on my determination of the issue at trial. I also recognize that the trial record, against which the issue is to be determined, is different than the factual record emerging from the preliminary inquiry. Nonetheless, and as I return to later in these reasons, the decisions provide helpful guideposts in terms of the importance of certain facts in the admissibility analysis.

[11] Justice Ricchetti conducted a similar fact analysis of the kidnapping counts (and related offences) with which Mr. Kanthasamy was charged in combination with Mr. Pathmanathan. These offences were committed on four different dates: (1) the July 2 kidnapping of Kulbir Aulakh; (2) the July 21 kidnapping of Gary Hughes; (3) the July 25 kidnapping of Kamran Warraich; and (4) the July 28 kidnapping of William Latham.

[12] Justice Ricchetti concluded that the offences had a high degree of similarity, such that the objective improbability of coincidence regarding the "commonality of the perpetrators" had been established on a balance of probabilities: R. v. Pathmanathan, 2014 ONSC 5814, 124 W.C.B. (2d) 490 at paras. 58-59. To set the legal framework for analysis, heavy emphasis was placed on R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, and R. v. MacCormack, 2009 ONCA 72, 241 C.C.C. (3d) 516. The discharge was quashed and Mr. Kanthasamy and Mr. Pathmanathan were directed back to the preliminary inquiry judge for committal on the July 2, 2009 offences.

[13] Mr. Pathmanathan and Mr. Kanthasamy appealed from the ruling. Despite the outstanding appeal, on the responsible agreement of counsel, the pre-trial motions commenced without the July 2, 2009 offences reflected on the indictment. It was agreed that the pre-trial motions would apply to the July 2 counts and, depending on the outcome of the appeal, a new consolidated indictment would be lodged if necessary. This was eventually done.

[14] The Court of Appeal concluded that the July offences considered by Ricchetti J. "shared significant similarities leaving available an inference that the same group, of which the appellants were members, committed those robberies": R. v. Kanthasamy, 2015 ONCA 719, at para. 5. The court observed that a group similar fact analysis under R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228 had effectively been undertaken when the motions judge considered the evidence linking the appellants to the robberies: Kanthasamy, at para. 4. The appeal was dismissed. A new indictment containing the July 2, 2009 counts was lodged and the trial continued.

D. The Principles Governing the Admission of Similar Fact Evidence

(i) Overview

[15] Similar fact evidence jurisprudence is rich with cases explaining the principles to be applied when considering crimes committed by individuals. When it comes to crimes committed by groups, particularly where the involved members of the group rotate from crime-to-crime, the jurisprudence from which the principles can be drawn is a little thinner. This case involves a rotating group.

[16] The parties take strikingly different positions as to the legal principles applicable to the admission of similar fact evidence where a non-static group commits the acts.[^4] In reconciling these differences, and arriving upon the correct admissibility test, I have found it helpful to first situate the principles related to the admissibility of single perpetrator similar fact. By doing so, it is easier to consider whether and, if so, how the principles should be adapted in a rotating group environment.

(ii) General Principles Applicable to Admitting Similar Fact Evidence

[17] By its very nature, similar fact evidence is propensity evidence and is subject to a general exclusionary rule: Handy, at paras. 31-36, 59-68; Arp, at para. 40; B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, at pp. 731-732; R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475 at para. 31. The presumptive inadmissibility of this evidence is rooted in the recognized danger that it carries two types of prejudice: moral and reasoning prejudice.

[18] Moral prejudice relates to the danger that a verdict will be based on a forbidden chain of reasoning, that the accused has a propensity to commit an offence, or that he should be convicted simply because he is a bad person: Handy, at paras. 31, 139; Arp, at para. 40. While all cases involving similar fact evidence carry a risk of moral prejudice, the risk is somewhat attenuated in circumstances where the jury has already heard the evidence because it is intrinsic to the indictment: MacCormack, at para. 68; R. v. B. (T.), 2009 ONCA 177, 243 C.C.C. (3d) 158, at para. 27.

[19] Reasoning prejudice may arise where the trier of fact is distracted from a proper focus on the offences charged. An imbalance may be created by an excessive amount of time spent on the admissibility of evidence of the similar acts and confusion may emerge where the jury is asked to consider a multiplicity of incidents: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 64; Handy, at paras. 144-146. The concern over an undue consumption of time arising from the admission of evidence is somewhat softened when similar acts are intrinsic to the indictment. Nonetheless, the complexity of a case can still be increased by the cross-count application of evidence.

[20] The presumptive inadmissibility of propensity evidence is only overcome where the Crown satisfies the trial judge, on a balance of probabilities, that in the context of the case as a whole, the probative value of the evidence is so cogent to a relevant issue at trial that it outweighs its potential for prejudice: MacCormack, at para. 48; Arp, at para. 42; Handy, at paras. 41-42, 55; B. (C.R.), at p. 735. The probative value of evidence cannot be considered in the "abstract" and must be assessed against the facts sought to be established by the impugned evidence. As such, it is critical to identify the issue to which the evidence is relevant: Handy, at paras. 69, 73-74; Arp, at para. 48; R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239, at para. 72; R. v. Johnson, 2010 ONCA 646, 262 C.C.C. (3d) 404, at para. 92. The identity of the perpetrators is the critical issue in this case and it is the issue to which the similar fact application is directed.

[21] Where identity is the issue to which the evidence relates, there must be a "high degree of similarity" or a "significant degree of distinctiveness" between the acts, such that it is objectively improbable that the acts would have been committed by different people: Perrier, paras. 21-23; Handy, at paras. 41, 45; Shearing, at paras. 48-50; Arp, at para. 43; MacCormack, at para. 50. Any inferences drawn from the evidence must be rooted in common sense and "intuitive notions of probability and the unlikelihood of coincidence": Handy, at para. 42. As a distinct pattern of similarities between acts emerges, the probative value of the evidence pointing toward identity rises because of the improbability of coincidence that an accused will be implicated in more than one similar act: Arp, at para. 43. See also: Shearing, at para. 40.

[22] While a signature or trademark seen across acts may rise to the level of required similarity, a "series of significant similarities" will also suffice: Arp, at paras. 44-45, 50. As Watt J.A. put it in MacCormack, while "striking similarity sponsors admission … a signature is not required in every case." Instead, "[a] number of significant similarities in combination may, by their cumulative effect, warrant admission": MacCormack, at paras. 51, 61. The key is to determine whether there is such a high degree of similarity between the acts that it is likely that they were committed by the same person: Arp, at paras. 45, 48. Ultimately, where the trial judge is satisfied that the acts in question are strikingly or significantly similar, such that the court determines on a balance of probabilities that they were likely committed by the same person, then the evidence will typically have sufficient probative value to outweigh its prejudicial effect: Arp, at paras. 48, 50.

[23] Where the trial judge is satisfied that this threshold has been met, she or he must then determine whether there is a link between the accused and the alleged similar acts: Arp, at para. 54. As a precondition to admissibility, the trial judge must conclude that there is "some evidence" upon which the trier of fact can find that the similar acts are those of the accused: R. v. Sweitzer, 1982 CanLII 23 (SCC), [1982] 1 S.C.R. 949, at p. 954; Arp, at para. 54; R. v. Johnson, at para. 91. The linkage evidence must consist of more than evidence of a mere opportunity to commit the acts: MacCormack, at para. 59; Arp, at paras. 54, 57. In R. v. Jesse, 2012 SCC 21, [2012] 1 S.C.R. 716, at para. 63, Justice Moldaver referred to the "some evidence" threshold as a low one.

[24] Assuming that the trial judge concludes that there is "some evidence" linking the accused to the acts, a final balance between the probative value and prejudicial effect of the evidence should be performed. While Arp suggests that acts likely committed by the same person will ordinarily have sufficient probative force to outweigh any corresponding prejudicial effect, this is only a general rule: Arp, at para. 50. See also: Handy, at paras. 54-55. There will be times when, despite the probative force of the evidence, its prejudicial impact will remain the dominant factor. As such, the final question on any admissibility inquiry is whether the probative value of the evidence outstrips its prejudicial impact. Admissibility will only flow where this balance weighs more heavily on the side of probity.

E. Positions of the Parties

(i) The Crown Position

[25] The Crown acknowledges that each of the acts that formed the subject of the similar fact application were group crimes and that the constitution of the group changed from crime-to-crime. In this context, the Crown argues that a two-step test is applicable when considering the admission of similar fact evidence.

[26] The first step is to establish on a balance of probabilities that the same group likely committed the offences in question. The Crown encourages the court to apply what is referred to as the Arp test, applying a striking or significant similarity test across acts.

[27] As for the second step, the Crown maintains that consideration must be given to whether there is "some evidence" linking each individual to the crimes with which he is charged. It is argued that, provided there is some evidence linking the accused to the group acts with which he is charged, then all of the group acts that qualify as likely having been committed by the same group may be used to determine the issue of identity.

[28] The Crown says that there are strong similarities between the kidnapping offences that form the subject of this application, making it objectively improbable that different groups committed them. In addition, the Crown maintains that there is independent evidence linking each accused to each of the kidnapping offences with which he is charged. As such, the probative value of the evidence outweighs its prejudicial effect and the jury should be invited to consider all of the kidnapping acts committed by the group in determining the issue of identity of each accused in relation to each of the kidnapping offences.

(ii) The Defence Position

[29] Ms. Martell took the lead for the defence on the law applicable to group similar fact evidence. With few exceptions, all defence counsel adopted her legal submissions.[^5] As such, and where appropriate, I will refer to it as the "defence position."

[30] The defence maintain that there is a fundamental difference between the admissibility tests for individual and group similar fact evidence. The primary difference lies in the second precondition to admissibility.

[31] As for the first precondition relating to similarity, the defence argue that when the evidence is relevant to the issue of identity, the Arp standard of striking similarity between acts is required. In considering potential similarities, the defence maintain that the trial judge is prohibited from looking at anything outside of the "manner of commission" of the offences. As such, the trial judge is specifically precluded from looking at things going on in and around the crime scene. In particular, the defence maintain that the accused's phone activity and the location of that activity relative to the locations of the crimes should not form any part of the similarity analysis. Nor should the associations between the accused be used to consider similarities between crimes.

[32] Having regard to the evidence that is available for consideration, the defence say that the kidnappings are not strikingly similar. At most, the similarities are generic in nature and there are numerous dissimilarities. It is not likely that the same group committed the acts.

[33] Even if I am satisfied that the same group likely committed the acts, the defence argue that a second precondition to admissibility must be considered. Like the Arp context, it has to do with linkage evidence. Unlike the Arp context, and unlike the Crown position, the defence argue that the threshold test for linkage well exceeds "some evidence." While it is acknowledged that the independent evidence does not have to link the accused with the group act beyond a reasonable doubt, the defence describe the threshold test as a near "conclusiveness test." The defence take the view that, as a precondition to admissibility of similar acts in a rotating group environment, the evidence linking the accused to the acts must be nearly conclusive of guilt.

[34] The defence draw upon Perrier as support for this proposition. It is said that some passages in Perrier, as well as the court's application of the law to the facts in Perrier, reveal a much higher linkage test in a group context than the "some evidence" test. The defence also rely upon some academic commentary as support for the advancement of a higher threshold test for admission in the group crime environment: Lou Strezos, "Perrier and Chan: Closing the Door to the Admissibility of Similar Act Evidence to Prove Identity in Gang Offences" (2004) 22 C.R. (6th) 222.

[35] The defence maintain that as this was a rotating group, there is insufficient evidence linking the accused to the subject acts. Indeed, with few exceptions, the defence argue that, to the extent there was linkage evidence, it is nothing more than evidence of opportunity to commit the crimes and opportunity alone cannot form a proper foundation upon which to find the accused are linked to the crimes. As well, the defence argue that it is inappropriate to consider what was described as "association evidence" when determining the link between an accused and an act. The accused must be looked at individually and not in relation to who they know.

[36] Finally, the defence argue that the Crown is wrong about the application of group acts to individual accused. Even where cross-count application of similar acts is permitted to prove identity, it is only those acts with which an accused is charged that can be used in determining the case against him. The defence maintain that the Crown position, that all of the group's similar acts may be used to identify the accused as long as he is shown to be linked to some of those acts, is contrary to Perrier.

F. The Principles Governing the Admission of Similar Fact Evidence in the Context of a Rotating Group

(i) Overview

[37] There is a gulf between the parties' positions in terms of how to approach group similar fact evidence. In the end, and with respect, I find that neither position is entirely right. The correct legal approach arises from an understanding of Perrier and its relationship with other similar fact jurisprudence.

(ii) Interpreting R. v. Perrier

• Overview

[38] Mr. Perrier and his co-accused Chan were convicted of a number of home invasions committed by a group. A man posing as a mail carrier would knock at the door of a home. When the door opened, a number of men would enter the home and dominate the victim. Others would scour the home for valuables. Three of these offences occurred over a four-week period. Like this case, the constitution of the group changed from crime-to-crime.

[39] A similar fact instruction was given with respect to all three home invasions.[^6] The accused were convicted and appealed.[^7] The issue before the Supreme Court of Canada was whether the trial judge had erred in permitting the jury to consider the evidence of the group's crimes in determining whether the accused, members of the group, committed the crimes with which they were charged.

[40] The court reviewed the well-settled jurisprudence requiring a high degree of similarity between acts to permit the inference of an improbability of coincidence that an accused would be implicated in more than one act: Perrier, at paras. 19-21, citing Arp, at para. 45 and Handy, at para. 91. Using the criteria set out at para. 82 of Handy as a starting point, the court must consider whether there is a sufficiently high degree of similarity between the acts to be sure on a balance of probabilities that the same group likely committed the acts in question: Perrier, at paras. 20-21.

[41] There is nothing in Perrier to suggest that a higher or different threshold test has been adopted for purposes of analysing similar acts within a group context. Nor have the parties suggested a different test. While the defence characterize it as a "striking similarity" test, they acknowledge that Arp applies.

[42] The fundamental legal dispute between the parties in this case relates to two issues that are said to arise in the context of a rotating group that commits crimes: (1) how much evidence is required to link an individual accused to the similar acts; and (2) what are the similar acts that the accused must be linked to before the evidence may be used for purposes of proving identity?

• How much evidence is required to link an individual accused to the similar acts in a rotating group context?

[43] While similar fact evidence of group activities may be admissible to identify a group responsible for crimes, it can only be used to identify an individual acting within the group when that individual can be specifically linked to the conduct in question. As noted in Perrier, just because an accused acts with a group on one occasion, does not mean he acts with the group on another occasion. As such, finding evidence that links the accused to the similar acts is "particularly important" in the group context: Perrier, at para. 25.

[44] Links to individuals acting within groups can be made in a few different ways. In circumstances where the constitution of the group remains static, and the group does not act without all members present and participating, then the signature of the group can become the signature of the accused: Perrier, at para. 25.

[45] In a rotating group environment, there is a risk that simply by virtue of membership in the group, the accused will become implicated in crimes he did not commit. To assuage this concern, Perrier instructs that a specific evidentiary connection must be drawn between the accused and the similar acts of the group. This link can be made in one of two ways: (a) through evidence that the accused played a distinctive role in the crimes; or (b) by "other independent evidence": Perrier, at para. 25.

[46] There is no suggestion in Perrier, and there is no suggestion in this case, that any of the accused played distinctive roles. As such, for purposes of this case, the link between the accused and the group's similar acts must be made through independent evidence. While the term "independent evidence" is not defined within Perrier, I take this to mean evidence of something other than simply membership in the group. After all, if simple membership in the group could be considered independent evidence linking the individual to the group's crimes, then the matter would become circular, as the similar crimes would then become admissible on the basis of group membership. Such an approach would be antithetical to the very danger that Perrier points toward, allowing simple membership in a group to become a gateway for the admission of group similar fact evidence to establish the identity of an individual.

[47] The question is how much independent evidence linking an accused to a group act is required as a prerequisite to admissibility in a rotating group environment? As above, the defence argue that the evidence must verge on conclusively establishing the accused's guilt in respect to an act before it will support admission. For the reasons that follow, I find that the some evidence threshold from Sweitzer, and adopted in Arp, is the correct test for admissibility.

[48] I start with the observation that there is nothing in Perrier that explicitly suggests a higher threshold test for linking an accused to the similar acts in a rotating group context. Indeed, in discussing the need for linkage evidence, Major J. specifically adverts to and, in fact, quotes from Sweitzer. He sets out the passage containing the requirement for "some evidence" of linkage as a prerequisite to admissibility and the threshold is referred to as a "not particularly high" one: Perrier, at paras. 23-24.

[49] Notably absent from the court's discussion of linkage evidence is any suggestion that the Sweitzer threshold falls short of the task at hand in the group context. The court's silence on the issue speaks loudly. If the court had intended to impose a more robust test, particularly after reviewing the "some evidence" threshold from Sweitzer, the court would have explicitly done so.

[50] As well, I see no compelling rationale for why a higher linkage test should be imposed in this context. Perrier acts as an important reminder that individuals, and not groups, are before the court being prosecuted. As such, in a situation like this case, when the issue is identity, it is the individual who must be linked to the conduct. While Perrier serves as a critical reminder to trial judges on this point, the reminder does not carry with it a higher threshold test and there is no reason why it should. Whether an individual acts alone or in a group, it is the link between him and the act that is important.[^8] I can see no compelling reason why the individual needs to be more heavily linked to the acts simply because he is alleged to have acted with others.

[51] The next reason for rejecting the suggestion of a higher threshold test rests in the court's specific consideration and rejection of a conclusiveness test in Handy, decided just two years prior to Perrier. In Handy, the court was asked to impose a "conclusiveness" test, meaning that the probative value of the evidence had to be so high "as to be virtually conclusive of guilt" before admission could be granted: Handy, at paras. 94-97. While engaging the term in a slightly different context than the defence do in this application, the comments of the court in Handy are nonetheless instructive. As Binnie J. noted, this type of threshold test would take "the trial judge's 'gatekeeper' function too far into the domain of the trier of fact": Handy, at para. 97. I find that this is equally true in the group crime context.

[52] Moreover, having decided this issue in 2002, the court was no stranger to the potential for fluctuating tests for the admission of similar fact evidence, including the concept of a conclusiveness test, or even a near conclusiveness test. Despite its familiarity with the potential for a more vigorous test as a prerequisite to admission, the court did not articulate one in Perrier. Again, the court's silence on the issue speaks loudly. If the court had intended to depart from the timeworn Sweitzer some evidence test, and replace it with a near conclusiveness test, the court would have said it was doing that.

[53] I find that having quoted from Sweitzer and discussed the some evidence threshold in Perrier, and having rejected a conclusiveness test in Handy, Perrier must be read as imposing the pre-existing Sweitzer threshold for admission. While trial judges are reminded to look for "independent evidence" linking the accused to the group's crimes, there need be no more than some independent evidence in this regard. By reinforcing this standard, the gatekeeper's role is sure not to enter the domain of the trier of fact.

[54] As for the suggestion that certain comments made by Major J. reveal that he implicitly imposed a linkage test exceeding the some evidence requirement, I do not agree. When these comments are considered in their correct context, with respect, they do not support the proposition put forward.

[55] The comments relied upon include the court's suggestion that "[i]dentifying the group will not likely facilitate prosecution where membership in the group was not constant" unless the role said to be played by an accused is distinct: Perrier, at para. 33. The defence also rely upon the following comment:

Where, as in this appeal, membership in the group varied, and the roles played by a particular accused were not distinctive, similar fact evidence may only be introduced against this accused once he has been linked to each individual crime. By that point, the utility of the inference may have dissipated, but any other approach generates too much potential prejudice and invites wrongful convictions. (See Perrier, at para. 34)

[56] Importantly, these comments do not appear in the part of the judgment dealing with principles of "Admissibility of Similar Fact Evidence for the Purpose of Identification". Rather, they are located within the part of the judgment dealing with the "Application of Similar Fact Evidence to Crimes Committed by Groups".

[57] In this latter part of the judgment, the court provides guidance in terms of how the "trier of fact" should go about the task of "using" similar fact evidence in a group crime context. The court discusses a two-stage test. At the "first stage", where the group is being identified, the Arp test will be used to determine whether "one group activity can be used to identify the group responsible for another": Perrier, at para. 31. Assuming the first stage is passed, the "trier of fact should be permitted to draw an inference that the same gang committed the acts": Perrier, at para. 31.

[58] Where the evidence is to be used to identify an individual accused, and not just the group, a "second step" is required: "[o]nce the trier of fact has determined that the same group was involved, a second step or assessment is needed in order to determine if the evidence has enough probative value with regard to the individual accused to outweigh the prejudice it will cause [emphasis added]": Perrier, at para. 31. In a rotating group environment, where no group member is said to play a distinctive role, this second step requires that the trier of fact find a "sufficient connection between the individual and the crimes of the group" by locating "independent evidence linking the accused to each crime": Perrier, at para. 32.

[59] The two prerequisite approach in Perrier is different than that engaged by the trier of fact in a non-group environment. Indeed, in Arp, the court was asked to impose a requirement on the trier of fact that the accused be found guilty of one act beyond a reasonable doubt before that act could be used as similar fact evidence in relation to another act. This was referred to as an "anchor" approach to similar fact evidence. In rejecting this requirement, Cory J. observed that while a reasonable doubt may exist in relation to each similar act in isolation, two or more similar acts may support one another to arrive upon proof beyond a reasonable doubt in relation to each of the acts: Arp, at para. 66. It was ultimately determined that the trier of fact should be instructed that "they may find from the evidence … that the manner of the commission of the offences is so similar that it is likely they were committed by the same person". If the trier of fact arrives upon this conclusion, "then the evidence on each of those counts may assist them in deciding whether the accused committed the other similar count or counts": Arp, at para. 80. Notably absent from the recommended instruction is any reference to linkage evidence.[^9]

[60] While I agree with the defence that Perrier injects something new into the rotating group similar fact context, it largely rests in the second safety valve imposed on the trier of fact when considering group similar fact evidence; the need to first find independent evidence linking the accused to the acts before the evidence can be used to identify the accused (as distinct from the group).

[61] As before, the defence rely upon certain passages in Perrier to suggest that a higher threshold test than the one set out in Sweitzer has been imposed as part of the admissibility test: Perrier, at paras. 33-34. Importantly, the passages relied upon by the defence follow upon the court's discussion of the two-step test to be conducted by the trier of fact before rotating gang similar fact evidence can be used to identify an individual. The court's comments must be read in light of these preceding passages.

[62] I read the comments in Perrier, set out at para. [55] of this ruling, as the court making practical observations arising from the two-step test imposed on the trier of fact. The court's comment that "[i]dentifying the group will not likely facilitate prosecution where membership in the group was not constant", is a different way of stating the usage rule. The reality is that identifying the group will not typically facilitate prosecution unless the trier of fact also finds independent evidence linking the accused to the group's acts. Moreover, once the linkage evidence if found, "the utility of the inference may have dissipated" because, by the time that the trier of fact has linked the accused to each of the acts, the trier of fact will already be some way down the path to identifying the accused as a participant in those acts. I do not read these comments as support for the proposition that Perrier imposed a higher or more robust admissibility test.

[63] As for the defence argument that the application of the law to the facts in Perrier supports the view that the court implicitly imposed a higher threshold test for linkage evidence, I do not agree.

[64] The three home invasion offences that formed the subject of the similar fact evidence in Perrier were committed on December 15, 1997, January 2 and 14, 1998. Mr. Perrier was convicted of the January 14th offence prior to his trial resulting in the appeal. There was strong evidence linking him to that crime.

[65] As for the January 2nd offence, some of the stolen property was located in an apartment in which Perrier and two other men lived. The other men were also alleged to be involved in the robberies. The stolen property was found in a room containing Perrier and another man's identification. Justice Major considered the non-exclusive use of the apartment "important".

[66] The other independent evidence linking Perrier to the January 2 and December 15 crimes came from a witness named Wang. Mr. Wang had been convicted in relation to two of the home invasions, been sentenced to a long period of custody, and had been placed in the witness protection program. He had also been promised assistance with the parole and immigration authorities. On any account, Wang was a concerning Vetrovec witness.[^10]

[67] The only other evidence in respect to Perrier were call records that showed Wang and Perrier's phones in communication before and after each of the incidents. There was no evidence as to where the phones were located at the time or what was said. As well, there was one intercepted phone call between Perrier and Wang that Ryan J.A., in the court below, said could be interpreted as expressing a concern about a "snitch".

[68] Justice Major described the evidence available to link Perrier to the crimes as follows:

Aside from the testimony of the accomplice (Mr. Wang), the only evidence against the appellant was that related to the Fraserview incident, for which he had previously been convicted, the telephone calls to the accomplice and stolen property from the Osler Street incident found in an apartment he shared with two other alleged perpetrators of these crimes. (Perrier, at para. 39)

[69] The fact that Mr. Perrier was a member of the group during the January 14th incident (the one for which he was convicted), could not be used to suggest that he acted as a member of the group on other occasions: Perrier, at para. 40. He had to be linked by independent evidence to each of the similar acts.

[70] The "independent evidence" linking him to the December 15 and January 2nd acts was insufficient to achieve this purpose. In arriving at this conclusion, it appears that the court heavily discounted, if not altogether ignored the Vetrovec evidence for which there was little to no corroboration. Given the known and obvious dangers associated with Vetrovec evidence, it is unsurprising that the court concluded as it did. To rely upon uncorroborated Vetrovec evidence as the means by which to link Perrier to the group acts, would have the effect of permitting dangerous evidence to support the admission of propensity evidence. This is counterintuitive.

[71] Removing Wang from the equation, the court was left with some phone contact, the non-exclusive possession of stolen property, and a potential "snitch" call. Other than the final home invasion for which Perrier had already been convicted, there was a dearth of independent evidence linking him to the other two crimes. As such, I do not accept the submission that the application of the law to the facts in Perrier reveals the imposition of a near conclusiveness test. Indeed, the facts in Perrier could be easily said to fall well short of the requirement of some evidence of linkage.

[72] In the end, and for all of the reasons above, I find that the admissibility test for linking an accused to the similar acts of a rotating group is "some evidence." The evidence must be comprised of something other than simple membership in the group.

• What similar acts must the accused be linked to before the evidence may be used for purposes of identity?

[73] As above, the Crown takes the position that as long as the accused is linked by independent evidence to the similar acts with which he has been charged, then all similar acts of the group may be used to establish identity. Largely for reasons already discussed, I disagree.

[74] The Crown position on this point runs contrary to Perrier and the dangers inherent in group similar fact evidence. The position has the effect of inviting the jury to invoke a syllogism specifically warned against by Major J. in Perrier, at para. 35:

All the offences were carried out by X gang. A was a member of X gang. Therefore A was a party to all the offences.

[75] The whole point of Perrier is to ensure that gang activity is not used to identify an accused in relation to the gang's acts, unless the accused is specifically linked to those acts. Individuals are prosecuted and not groups. Similar fact evidence should not be used to identify an individual as having taken part in a crime simply because he belongs to a group that committed the crime. As such, in a rotating group environment, with no specific roles having been played, only those similar crimes to which the accused is linked may be used to identify his involvement in crimes.

G. Analysis: Application of the Law to the Facts

(i) Overview

[76] I will first assess the similarity between the acts, then consider linkage evidence, and finally weigh the probative value of the evidence against its prejudicial impact.

(ii) Is there a sufficiently high degree of similarity between the acts to be sure on a balance of probabilities that the same group likely committed the acts in question?

(a) Review of the seven incidents

[77] The defence argue that there are insufficient similarities between the acts to permit a finding that the same group likely committed them. It is argued that to the extent there are similarities, they largely attach to generic facts that would appear in any offences of this nature. The defence also maintain that there are numerous dissimilarities between the events.

[78] To orient these reasons in relation to the 7 groupings of kidnapping, robbery and firearm offences, I provide a brief factual overview of the offences and then compare and contrast in accordance with the categories suggested by Cory J. in Handy, at para. 82 and adopted by Major J. in Perrier, at para. 22. For ease of reference, I will refer to the 7 pockets of offences by the surname of the victim.

• Dave Counts: kidnapping and robbery

[79] On May 2, 2009, Mr. Dave was working as a security guard at Sameday Worldwide located at 6975 Menkes Drive, Brampton. Large trailers, full of valuable contents, were stored on this property. Large transport trucks, known as tractors, would drop off and pick up the trailers from this location.[^11]

[80] At around 3:25 a.m., a tractor pulled into the property, close to Mr. Dave's guardhouse. Mr. Dave approached the driver's side of the vehicle. Video surveillance shows two assailants approaching Mr. Dave from behind and pushing him into the passenger's side of the truck. He was forced into the back sleeper area of the truck and made to lie down.

[81] Mr. Dave told the police that the assailants had masks on their faces and gloves on their hands. The two assailants stayed with him in the back and a third man drove the truck. His wrists were bound in front of him with plastic ties. The men threatened to shoot him if he did not obey their instructions. He could hear a trailer being joined with the tractor. It then left the property and drove.

[82] The video actually shows 3 tractors entering the property without trailers and then 3 tractors leaving with trailers about 10 minutes later. The tractors had all been stolen earlier in the evening (counts 4-6 on the indictment). The total value of the property taken from Sameday Worldwide, the trailers and contents, was $170,447.52. The trailers contained auto parts.

[83] Some of Mr. Dave's identification was stolen from his wallet. Mr. Dave said that the men did not use a "Canadian" or "American" "pronouncement". He could not understand the language being spoken. They drove for about 40-45 minutes after which Mr. Dave could hear the trailer being detached. The tractor then drove again. It eventually came to a stop and Mr. Dave was told to lie down and not move. He was told that in an hour someone would come to release him. After about 15-20 minutes, he started to work on getting released. He eventually got out of the truck and made it to a McDonald's where the ties were cut loose from his hands. He had been abandoned at Lodestar and Rimrock Road, North York.

• Aulakh Counts: kidnapping, robbery and use of imitation firearm

[84] 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. They were worth $186,000.

[85] It was between 1:00 and 2:00 p.m. He had the door to his truck open when a van pulled up and a man with a gun, wearing gloves and a mask, rushed into his truck. The man pointed a gun at Mr. Aulakh and pushed him into the back sleeper area of the truck. A cap was placed over Mr. Aulakh's head and face. His hands and legs were tied with tape. He was forced to lie down. 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. He knew this language because of a factory he used to work at where some of his co-workers spoke the language.

[86] The truck drove for what he thought was about 90 minutes before stopping. Mr. Aulakh heard the contents of the truck being unloaded. The truck drove again for about 20-25 minutes and then stopped. Mr. Aulakh was told to have a "nice day" and that if he called the police he would be shot.

[87] He was left abandoned in his truck. He was able to break free. He found himself 2-3 minutes from the Salem Road entrance to Highway 401 in Whitby. He drove west on the 401. The police eventually located him around 4:00 p.m. close to the Yonge St. exit from the 401.

[88] While it was put to Mr. Aulakh that he told the police that one of the men was "white", he insisted that he meant "one guy" and not "white guy".

• Gill Counts: kidnapping, robbery and use of imitation firearm

[89] On July 6, 2009, Mr. Gill was driving a truck with a trailer full of beer. He left the warehouse at 755 Passmore Avenue, Scarborough at what he thought was just after 10:00 p.m. He drove east on the 401 and stopped by Quinte West to sleep. He woke up to the sound of his window being broken and a man entering the trailer.

[90] The man pointed a gun at Mr. Gill's forehead and told him to get onto his bed and raise his hands. The man's face was covered with a scarf from the nose area down. He was not white and had an athletic build. While he was described as not being as black as a court robe, he was black. Jalani Daley, who started the trial as a fifth accused, eventually pled guilty in another court. He later testified in this trial that he was the man with the gun.

[91] Mr. Gill was forced to lie on the bed in the sleeper compartment. He had to lie on his belly and close his eyes. His hands were tied with a scarf. He was then covered with a blanket. Two men stayed with him in the sleeper compartment. One held a gun to his back and, at one point, scratched it over his head.

[92] A third man drove the vehicle and there was possibly a fourth person in the front passenger's seat. The truck eventually stopped and the trailer was unloaded.

[93] When Mr. Gill asked them not to take his personal stuff, he heard the top portion of the pistol being pulled toward the shooter. He was told that if he wanted something, they had a "gift" for him. He was told that they knew where he lived. His laptop, Indian passport, permanent resident card and other cards were stolen.

[94] After the unloading, the truck drove again and eventually stopped. He was told not to move or he would be shot in the leg. Then the passenger and driver's side doors opened and then closed. Mr. Gill was able to remove the scarf binding from his hands and he left the truck. He called 911 with the use of a person's cell phone. He had been left at Lodestar and Rimrock Roads, North York.

[95] Mr. Gill could hear some speaking during the journey. He speaks English, Hindi, Punjabi and a bit of Urdu. It was not these languages. He could not understand it. The men holding him in the back shared the accents of the other men. He originally told the police that he thought that the men sounded Indian, Pakistani or Sri Lankan. During his second interview he qualified this statement, removing the Sri Lankan language. He testified that his memory was freshest during the first interview and testified that the language was Indian, Pakistani or Sri Lankan.

• Hughes Counts: kidnapping, robbery and use of imitation firearm

[96] On July 21, 2009, Gary Hughes picked up a load of chicken feet at 556 Southdown Road, Mississauga. He left around 7:00 p.m. He stopped to sleep by the Quinte Mall in Belleville at around 10:00 or 10:30 p.m. He thinks he locked his door before going to bed, but second-guessed himself because he awoke with a person in the cab of his truck. The window was not smashed. The man was pointing a gun at him and told him to "shut up" or he would be shot. He was told to roll over. He was then taped up and his head was put to the wall of the bunk.

[97] His wrists were taped in front of him. A cord from his C.B. radio was also wrapped around his legs and feet. A towel was also used to wrap him. Then a pillow was placed over his head. Mr. Hughes believes that the things used to tie him up were already in the truck.

[98] He thinks that there were at least three men in the truck. Because it was pitch black, he could not describe the man with the gun. He could tell he was wearing a hoodie. He looked tall, but as Mr. Hughes observed, everyone looks tall when you are lying on a bunk. He thought that the man may have had gloves on, but he was not sure.

[99] The men were speaking in a "different language" that he could not understand. He thought that the man with a hoodie may have had an "African accent".

[100] When the truck started to move, it felt as though there were two men in the back with him, one right beside him and one by his feet. The gun was held to his back. He did not have a good sense of timing, but after a while he felt that the truck was backing up and the chassis was being disconnected.

[101] Mr. Hughes was asked if he had electronics or money. They took his debit card and asked for his PIN number, which he provided. His CIBC card and money from his wallet were gone, as were his electronic devices. His CIBC card was later used to access his bank account.

[102] Eventually, after the truck stopped moving, the men told him not to move. He heard them leave and a vehicle pull away. He freed himself and found he was in Markham. He called 911 with the use of another person's phone.

• Warraich Counts: kidnapping and robbery with a firearm

[103] On July 25, 2009, Mr. Warraich was working as a security guard at Thomson Terminals at 2 Bramkay Street, Brampton. Like Sameday Worldwide, where Mr. Dave worked, Thompson Terminals stores large trailers containing valuable contents.

[104] Mr. Warraich testified that at about 8:15 or 8:30 p.m., as he was finishing his dinner in his guardhouse, two men approached and pointed a gun at him. He was told he would be shot if he made a noise. Mr. Warraich came out of the building and the men entered and took his wallet and phone.

[105] The man with the gun was 6' tall and muscular. He was black. He had a baseball cap and hoodie on. Mr. Warraich testified that the second man was a Sri Lankan guy who was about 5'6'' or 5'5''. He looked to be between 20 and 25. This man had short hair.

[106] A gun was placed in Mr. Warraich's rib area and Mr. Warraich was instructed to pull his hat down and look at his feet. A tractor then arrived in the yard and a man came from the passenger's side. This was a third man. Mr. Warraich said that he was another Sri Lankan man who was skinny, about 25 years old and 5'10''. This man also had short hair. It was suggested that at the preliminary inquiry, Mr. Warraich said this man was 5'6''.

[107] As for the driver, according to Mr. Warraich, he was a fourth person. In cross-examination, it was suggested to Mr. Warraich that he had not mentioned a fourth person to the police. He said that he may have forgotten to mention the fourth person. In re-examination he testified that he did not know if the police had asked him about the driver of the vehicle. The driver was about 30 years old. Mr. Warraich did not notice his hair.

[108] While Mr. Warraich said that he believed three of the men were Sri Lankan, he said in cross-examination that he had not seen them well and had been guessing when he gave his descriptions. When shown a picture of a few of the accused, as they appeared about a month after this kidnapping and robbery, clearly showing long hair, Mr. Warraich said that he did not see the faces of the men and testified that he could not provide "exact" descriptions. While he originally testified that two of the Sri Lankan men had short hair, he later said that he had been guessing about the hair, but that the men were Sri Lankan. He could not say if their hair was long, short, or "big" or whether their bodies were big.

[109] Mr. Warraich testified that he was placed in the sleeper compartment of the truck, told to face the back wall and try not to look at his assailants. Two men stayed back there with him. His hands were wrapped in a "cloth rope". The men were speaking Sri Lankan. Mr. Warraich said that he recognized the Sri Lankan language because when he was taking English as a Second Language, there were Sri Lankan men in his class.

[110] Once in the sleeper compartment, he was told to turn his head to the wall, which he did. The truck drove and he could hear a trailer being attached. The gun was kept in his rib area. He said that a round was chambered in the gun. Mr. Warraich testified that he was asked which trailer had pampers in it. He did not know. The truck was then attached to a trailer and driven away.

[111] His assailants asked him about his bank account and whether he had money in it. He provided his PIN number to the robbers. He testified that he was still with the men when they stopped at the bank and accessed his account. He knew this because he heard them speaking about it.

[112] At one point it sounded as if the trailer was unhooked. They then drove back to Thomson Terminals. Mr. Warraich was left locked in an empty trailer. The truck was attached to another trailer and drove away. It was hard for Mr. Warraich to breathe in the trailer in which he was locked. Eventually his colleague came on shift and let him out.

[113] A video at Thomson Terminals captured some of the Warraich incident. The truck, which was stolen from another location earlier that evening, entered the property at 20:17. It did not have a trailer attached. It left the property at 20:31 with a Yanke trailer attached. The truck returned at 21:06 without a Werner trailer attached. The video captures Mr. Warraich being removed from the truck and taken elsewhere. The truck then left with another trailer at 21:17. The two trailers contained sanitary napkins, diapers, Depends, and toilet paper. The property inside of the trailers had an approximate value of $45,886.

• Latham Counts: kidnapping, robbery and use of imitation firearm

[114] Mr. Latham drove a regular route between Whitby and Ottawa, moving alcohol for Rosedale Group. On July 27, 2009, he set out on his route just shortly before 7:00 p.m., starting at Boundary Road in Whitby. He arrived in Ottawa just after 11:19 p.m. A video captured his truck entering the parking lot of the LCBO at 1980 Bank Street at that time.

[115] Mr. Latham believes he locked his driver's side door and went to sleep in his sleeper compartment. He woke up when someone rushed into the cab of the truck. He does not know how they entered. He saw what he believed to be the silver barrel of a gun, but it could have been a cell phone pointing at him. He did not see his assailant as it was dark.

[116] He was pushed back into the sleeper area and the man who had rushed in on him put duct tape over his eyes. The man then sat on the bunk beside him. Mr. Latham heard a driver enter the truck. He did not hear anyone else enter the truck.

[117] The truck was captured on video leaving the LCBO at 12:22:16 a.m. Mr. Latham was asked how to get to Montreal and he provided directions to take HWY 417. He was required to lie on the bunk and, once the journey started, his hands were taped in front of him with his wrists together. Eventually the truck came to a stop and he heard the trailer being detached from the truck.

[118] He heard the two men, the one sitting beside him and the driver, speaking in a language other than English. Mr. Latham was a security guard 10 or 12 years ago and thought that the language may have been Jamaican. He had bank cards taken. More tape was placed around his body before the driver and the man in the back left the truck. They told Mr. Latham not to say anything and then they disappeared. He managed to remove the tape and the police were called. Mr. Latham and his truck were located by the police on HWY 20 outside of Montreal.

• Chandler Counts: kidnapping and robbery

[119] Mr. Chandler picked up a load of cigarettes in Indianapolis, Indiana on August 26, 2009. He arrived at his destination, 30 Pedigree Court, Brampton, around 1:00 a.m. on August 27, 2009. He parked his vehicle outside of the gate for a scheduled 7:00 a.m. delivery. He had cigarettes with a retail value of $1.6 million on board.

[120] Mr. Chandler thinks he fell asleep around 2:00 a.m. and awoke when the window on his truck was smashed. He does not know what time this happened. He jumped out of his bunk and yelled, but was pushed back into his sleeper area and was told to lay down with his face to the wall. He complied. The only man he saw looked like he had a baseball cap on with a winter coat pulled right up. He could not see his face.

[121] Two men got into the back with him, one holding his shoulders and the other his legs. He was asked what he was hauling. He had to tell the men how to unlock the air cuff, which was something used to secure high value loads. He was also asked if there was a satellite on the truck. He later discovered that the wires were cut. The man driving was grinding the gears and seemed in a hurry. He was driving so fast at first that Mr. Chandler was worried the truck may flip.

[122] After what felt like about 30 minutes, the driver got out and sounded like he was talking to someone. The men were speaking in a language that Mr. Chandler could not understand. The man in the back, holding his shoulders, spoke in broken English. The men outside were not speaking in English at all.

[123] The cigarettes were removed from the trailer. It took approximately 10-15 minutes. Eventually the driver got back in and told the men in the back to tie up Mr. Chandler. The truck started to move again. He was tied in "twiner" and with his belt. His hands were tied behind him. His legs were wrapped in his belt. He was told by one of the men that his hands would be tied loosely so he could free himself when they were done. He had $60 in US currency taken from his wallet.

[124] When the truck stopped, he was told not to move for an hour or two. He was told there was a building straight ahead and he would be watched. They would know if he got out of the truck any sooner. He later freed himself and got assistance. He was at 155 Champagne Drive, Toronto.

(b) Applying the Handy criteria

• Proximity in time and place between events

[125] The seven kidnappings and robberies took place over less than a four month period in 2009: (1) May 2, Dave counts; (2) July 2, Aulakh counts; (3) July 6, Gill counts; (4) July 21, Hughes counts; (5) July 25, Warraich counts; (6) July 27-28, Latham counts; and (7) August 27, Chandler counts.

[126] All of the counts have a connection to the Toronto or Greater Toronto Area. With one exception, the kidnappings started and or ended in Toronto or the GTA. With respect to the exception, the Latham counts, the stolen load of alcohol started its failed journey in the GTA.

• Similarity in detail and circumstances surrounding or relating the acts

[127] There are very strong similarities between the kidnappings. They include the following:

• Each of the offences was accomplished with the theft of a truck, either one already attached to the trailer of goods or one stolen for the purpose of taking a trailer.

• Each of the offences involved the theft of at least one trailer that contained a load. The Dave counts involved the theft of three trucks and three trailers. The Warraich counts involved the theft of one truck and two trailers.

• All of the kidnapping victims were placed in the back sleeper compartments of the trucks.

• With one exception, 2 men got into the back sleeper areas of the trucks with each of the victims. As for the exception, Mr. Latham testified that he awoke to see what he believed was a gun, but he could not see the man with the gun. It was too dark. He was immediately shoved to the back and tape was placed over his eyes. He only had knowledge of one man in the back with him and the driver.

• The victims were driven around in the sleeper compartment areas of the trucks. They were each in the sleeper compartments when the trailers were being unloaded or disconnected.

• Except for Mr. Latham, each of the kidnapping victims provided specific evidence about 3 to 4 people having been inside of the trucks: (i) Dave counts involved 3 people; (ii) Aulakh counts involved 4 people; (iii) Gill counts involved 3 and possibly 4 people; (iv) Hughes counts involved 3 and possibly 4 people; (v) Warraich counts involved 4 people; and (vii) Chandler counts involved 3 people.

• Each of the incidents involved assailants using a language other than English: (i) Mr. Dave said the assailants did not use what he described as a Canadian or American "pronouncement"; (ii) Mr. Aulakh testified that they were speaking Sri Lankan; (iii) Mr. Gill testified that when they talked, it was audible, but not understandable and that he felt they had accents that were Indian, Pakistani or Sri Lankan; (iv) Mr. Hughes testified that they were speaking a "different language" that he did not understand and one of the men may have had an "African accent"; (v) Mr. Warraich testified that they spoke Sri Lankan; (vi) Mr. Latham testified that they spoke a language that he did not understand and that it was possibly Jamaican; and (7) Mr. Chandler testified that they were speaking a language that he could not understand and that the man holding his shoulders spoke in broken English.

• Each of the kidnapping victims were bound in some fashion: (i) Mr. Dave had plastic ties placed around his wrists; (ii) Mr. Aulakh's hands and legs were tied with tape; (iii) Mr. Gill's hands were tied with a scarf; (iv) Mr. Hughes' wrists and legs were bound with tape, a towel and cord; (v) Mr. Warraich's hands were bound with what he described as a "cloth rope"; (vi) Mr. Latham's hands, legs and chest were bound with duct tape; and (vii) Mr. Chandler's hands and feet were bound with twine and a belt. William Chandler was only bound after his load had been removed and while he was being transported to his final destination.

• Each victim was bound in the sleeper areas of the trucks when they were abandoned, except Mr. Warraich, who was left locked inside of an empty trailer.

• With two exceptions, each victim was the driver of the truck that was stolen. The exceptions are Kamran Warraich and Kamlesh Dave, both of whom were security guards working at truck and trailer storage yards.

• While there was some evidence to suggest that in a few of the incidents the driver of the trucks ground the gears (Hughes, Warraich, Chandler) and took corners too fast (Chandler), each of the incidents involved a driver who clearly knew how to handle a large transport truck.

• While Rajender Gill and Kamran Warraich testified that they were hit with the gun, none of the victims were seriously injured by the assailants.

• All of the victims, except William Chandler, provided evidence about a gun. In Mr. Dave's case, he was told he would be shot if he did not comply. As for the rest of the victims, other than Mr. Chandler, each had a gun pointed at them. As above, in cross-examination William Latham acknowledged that it was dark and it could have been a cell phone.

• With the exception of Kulbir Aulakh, each of the victims had personal property taken from them: (i) identification was taken from Mr. Dave's wallet; (ii) Mr. Gill had his passport, permanent resident card, cards and laptop taken; (iii) Mr. Hughes had cash, a cell phone and bank card stolen; (iv) Mr. Warraich's bank card was taken; (v) Mr. Latham had his bank cards taken; and (vi) Mr. Chandler had $60 in US currency taken.

• With the exception of Kulbir Aulakh, each of the kidnapping victims was taken during the evening. In Kamran Warraich's case, it was just after dinner time and as it was getting dark out.

• In each case an effort was made to obstruct the victims from seeing their assailants: (i) the men who approached Mr. Dave outside of the truck had masks on their faces and gloves on their hands; (ii) the man who first got into the truck with Mr. Aulakh had a mask on his face and gloves on his hands and a cap was then placed over Mr. Aulakh's head and face, as he was forced to lie down and face the back wall; (iii) the man who pointed the gun at Mr. Gill had a scarf covering the lower part of his face and Mr. Gill was forced to lie on his belly with his eyes closed and he was covered with a blanket; (iv) the man who pointed a gun at Mr. Hughes was wearing a hoodie and Mr. Hughes' head was put to the back wall of the bunk and a pillow was placed over it; (v) the man who first approach Mr. Warraich with the gun had a hoodie and a hat on, Mr. Warraich was told to pull his own hat down and to look down at the ground, and once inside of the truck he was told to face the back wall and not look at his assailants; (vi) Mr. Latham could not see his assailants because it was so dark, but his face was pushed toward the wall and duct tape was placed over his eyes; (vii) the only assailant Mr. Chandler saw was wearing a baseball cap and a winter coat pulled right up and Mr. Chandler was told to lie down and face the wall.

• The loads taken were all different, but valuable: (i) Dave counts involved automobile parts; (ii) Aulakh counts involved LG televisions; (iii) Gill counts involved beer; (iv) Hughes counts involved chicken feet; (v) Warraich counts involved sanitary napkins, diapers, Depends and toilet paper; (vi) Latham counts involved alcohol; (vii) Chandler counts involved cigarettes.

• The number of occurrences

[128] There were seven occurrences in total. The defence rely upon the evidence of Shawn Hamilton, a witness who worked for Ryder Logistics, and Michael Proska who is the President of Burloak Investigative Services to suggest that the offences are commonplace.

[129] The witnesses were called by the Crown to provide evidence regarding specific incidents. They were cross-examined about their knowledge as to the frequency of cargo thefts. In 2015, Mr. Proska's company was involved in investigating about 100 cargo thefts. In 2009, he would have been involved in the investigation of between 25-50. As for Mr. Hamilton, he agreed that Ryder Logistics would have had about the same number of cargo thefts in 2015.

[130] The witnesses were not asked about whether any of these thefts involved the kidnapping and robbery of drivers and security guards. They provided evidence about thefts. There is a substantial difference between the theft of cargo and the kidnapping and robbery of a person, at gunpoint, to obtain cargo.

• Any distinctive features unifying the incidents

[131] The Crown argues that a distinctive unifying feature of the incidents involves the fact that cell phones associated to the accused use towers in proximity to locations relevant to the crime scenes at times when the crimes occur. The defence argue that while this evidence may be considered on a linkage analysis, it cannot inform the similarity inquiry.

[132] When determining the degree of similarity between events, as a general rule, the focus should be on the acts themselves and not on the accused's involvement in the acts: Arp, at para. 49. See also Perrier, at para. 21. However, it is not always easy to compartmentalize these concepts. As Cronk J.A. held in R. v. Woodcock (2003), 2003 CanLII 6311 (ON CA), 177 C.C.C. (3d) 346 (Ont. C.A.), at paras. 80-81, avoiding consideration of the accused's acts when determining similarity between events is not a "rigid rule." Justice Watt reinforced this idea in MacCormack where he said that an "unyielding" or "invariable" rule, precluding assessment of an accused's acts when determining the degree of similarity between acts, would be "unduly antiseptic": MacCormack, at paras. 57-58, 81-82.

[133] There is undoubtedly a similarity between each of these joint enterprise offences, in the sense that the cell phones associated to the accused move in symmetrical patterns relative to one another and relative to the times and locations of the offences. If there was evidence that at each location from where an individual was kidnapped, men were seen speaking on distinct cell phones just before the kidnapping occurred, this could constitute a distinctive piece of evidence unifying the events. Arguably, this is precisely what the cell phone records reveal in this case. The accused's phones were using towers proximate to where crimes occurred, at times that they occurred. Notwithstanding this fact, I have declined the Crown's request to consider the cell phone evidence pertaining to the accused in relation to the similarity analysis. It is unnecessary to do so.

[134] At the same time, I do consider the unifying fact that there is evidence connecting Mohamed Mashood to all but one of the seven incidents.[^12] Part of the evidence rests in cell phone records. In each incident, except the one involving William Chandler, a cell phone related to Mashood is in geographical proximity to either or both the commencement or completion of the offence.

[135] While I do not intend to review the evidence associating Mashood to the three phones said to be used by him, I am content that there is ample evidence upon which to infer that he carried these phones.

[136] Some of the evidence connecting Mashood to the subject acts, constituting a distinctive unifying feature between the acts, includes the following:

(i) Dave counts – Sivalingam Amarasingam, who took responsibility for part of the Dave incident, testified that Mashood was involved in the Dave events and had, in fact, directed them. Prithiviraja Rajathurai, a Vetrovec witness called by the Crown, who also took responsibility for part of the Dave incident, also testified that Mashood was involved.

A phone associated to Mashood used towers proximate in time and location to where the trucks were stolen and proximate to where Mr. Dave was kidnapped from. Another phone associated to Mashood used a tower proximate to where one of the trailers were later found. He used it at a time that coordinates to the offences.

(ii) Aulakh counts – A phone associated to Mashood used a tower close to where Mr. Aulakh was kidnapped a few hours before the kidnapping occurred. The same phone used another tower close by the scene of the kidnapping around when it happened. Recall that Mr. Aulakh said that he was attacked somewhere between 1 and 2 p.m. Mr. Mashood's phone was in the area of the LG Warehouse at 1:41 p.m. In addition, Mr. Mashood's phone used two towers close to where Mr. Aulakh was abandoned, at the time that he was abandoned. The kidnapping and abandonment sites are not close.

(iii) Gill counts – Jalani Daley testified that Mashood was involved in this kidnapping and robbery. He drove Mr. Daley to the location where Mr. Gill's truck was parked. A phone associated to Mashood travelled eastbound along the 401 and was in the location of the kidnapping site (Quinte West) by 12:34:39 a.m. This corresponds to the time that Mr. Gill could have been taken and is a location by where he was taken. It is nowhere close to Mr. Mashood's home.

(iv) Hughes counts – Mr. Daley again testified about Mashood's involvement in this offence. Mashood drove Mr. Daley to the Quinte Mall, from which the tractor-trailer was taken. The phone records support Mashood's involvement. His phone moves eastbound along the 401, stopping in Belleville, very close to where Mr. Hughes was taken from, at around the time that he could have been taken.

(v) Warraich counts – The video evidence shows Mr. Warraich being approached just after 8:15 p.m. A phone associated to Mashood used a tower covering the location of Thomson Terminals at 8:29:48 p.m. This is nowhere close to Mr. Mashood's home. According to the video, the truck into which Mr. Warraich was placed pulled out of Thomson Terminals at 8:31 p.m.

(vi) Chandler counts – A phone associated to Mashood used a tower close to where Mr. Chandler was taken from at 2:40:57 a.m. This is nowhere close to Mr. Mashood's home. Mr. Mashood's phone later used a tower close to where Mr. Chandler's cigarette load was recovered. Mashood was also found sitting parked in a motor vehicle close to that location on August 27, 2009. He was also arrested outside of the location where the cigarettes were located on August 28, 2009.

[137] I find that Mr. Mashood's connection to six of the seven kidnappings reveals a clear unifying feature across counts. While I find that it is legally appropriate to consider this unifying feature as going to the similarity between acts, even without this factor taken into consideration, I would have found the crimes are highly similar in nature.

• Intervening events

[138] There are no intervening events.

• Any other factor that tends to support or rebut the underlying unity of the acts

[139] Ms. Martell argues that the similar features between the offences are largely generic in nature. For instance, whenever a truck is stolen, a driver is required. Whenever a load is stolen, it requires a load. Whenever a person is kidnapped, it will require that they be placed somewhere.

[140] Ms. Martell encourages the court to drill down and look at the more microscopic details and, in doing so, consider the many dissimilarities that emerge. For instance, while the victims testified about having been bound, they were tied with different things and in different ways. Some had their hands tied in the front and others in the back. The offences happened at different times. Some of the victims said that the drivers were good and others said that they ground the gears. The victims were taken from and taken back to different locations.

[141] Some of the victims were threatened and others were not. In two cases a gun was not seen. The victims were taken at different times and the loads stolen varied. There was no consistency in the type of disguises worn, if any, and sometimes the victim's faces were not covered. Sometimes personal items were taken and sometimes they were not. There was also no consistency as to whether the trailer was taken or just the load. In some cases the GPS on the trucks were cut and in other cases they were not.

[142] As for Mr. Warraich, the defence argue that his offence is entirely different. Not only was he a security guard (which only matches the Dave counts), but he was the only victim returned to the location of the original abduction.

[143] I am encouraged by the defence to place heavy emphasis on the dissimilarities. By doing so, it is said that the crimes cannot be viewed as highly similar in nature.

(c) Conclusion on Similarities

[144] Justice Watt held in MacCormack that while a unique trademark common to all incidents sponsors admission, so too do a number of significant similarities in combination which, "by their cumulative effect, warrant admission": MacCormack, at paras. 51, 61; see also, Arp, at para. 45; Perrier, at para. 21. Despite the dissimilarities between some of the events, I find that when all of the similarities are added together, these crimes are highly similar in nature and I am well satisfied that they were committed by the same group.

[145] For the most part, the similarities across counts are striking in nature. For instance, groups of men got into the tractors, they did not speak English (particularly as their first language), the victims were placed in the sleeper areas, the victims were bound, the victims were told they would be shot or threatened with guns, the trucks were driven, loads were stolen, victims were left bound, disguises were used, personal items were taken, and so on.

[146] I do not find that the evidence of either Mr. Proska or Mr. Hamilton dilutes the strength of the similarities in this case. In effect, the defence say that there are so many cargo thefts that these seven pockets of offences cannot be seen as unique. This position does not take into account the fact that Mr. Proska and Mr. Hamilton testified about thefts, not kidnappings and robberies, what I consider to be a wholly different matter.

[147] While there was no evidence about how uncommon or common the kidnapping and robbery of truck drivers and security guards are, given the brazen and very serious nature of them, one could quite easily imagine that they are not nearly as common as cargo thefts. Indeed, the taking of the drivers and security guards in the context of stealing the loads, seems to be an entirely unifying and important feature of these offences.

[148] While the defence placed heavy emphasis on the difference between security guards and drivers having been taken, I am not troubled by this fact. The unifying feature is that in each case, in order to accomplish the thefts, the group had to and did neutralize a person for a period of time. Moreover, I also derive comfort from the fact that the Warraich counts were considered in the certiorari ruling, upheld in the Court of Appeal, as being highly similar to the Aulakh, Latham and Hughes counts.

[149] While it is argued that there are many distinguishing features between the counts, with respect, I find that to consider these facts would require too microscopic of an approach. I have regard to the fact that this exercise is not to take on the markings of a mathematical one: R. v. W. (J.), 2013 ONCA 89, 106 W.C.B. (2d) 417, at para. 49. A trial judge is not simply to "add up similarities and dissimilarities and then, like an accountant, derive a net balance": Shearing, at para. 60. As Binnie J. observed in Shearing, when approaching the task with a microscope, it is always possible to exaggerate and multiply dissimilarities. Such microscopic assessments can result in a distortion based on minute differences of no particular moment.

[150] While I also have regard to the fact that at a "macroscopic level of generality", similarities between events may be "too facile" or generic in nature, I do not find this to be the case here: Shearing at para. 60. See also: R. v. Fiorino, 2008 ONCA 568, 233 C.C.C. (3d) 293, at paras. 64-70; R. v. Blake (2003), 2003 CanLII 13682 (ON CA), 181 C.C.C. (3d) 169 (Ont. C.A.), at para. 64, aff'd 2004 SCC 69, [2004] 3 S.C.R. 503. While I have given careful consideration to dissimilarities, I am not troubled by them. For the most part, I find that they are likely the product of different members of the group playing different roles on different occasions. The fact remains that there are numerous, distinctive similarities across the counts.

[151] I find a few things particularly striking. The fact that each and every victim said that the men spoke a language other than English. The fact that each man was taken. The fact that each man was placed in the sleeper area and bound in some fashion. Except Mr. Latham, the fact that they were bound despite two assailants being in the back with them. The fact that the trucks travelled long distances with the men in them, making them particularly brazen offences. The fact that all but one man had personal property taken from him.

[152] This latter fact is particularly striking in the context of such large-scale robberies. For instance, one is left wondering why Mr. Chandler's $60 US cash was taken, when $1.6 million dollars in cigarettes were also taken. Why was Mr. Gill's laptop taken when a trailer full of valuable beer was taken? Why was Mr. Latham's bank card taken when a trailer full of valuable alcohol was taken? And so on. It is striking that these serious robberies, accompanied by the thefts of highly valuable loads, were accompanied by such small thefts. This is also a striking and unifying feature.

[153] In the end, I am satisfied on a balance of probabilities that the acts are all so highly, indeed, strikingly similar, that they were committed by the same group.

(iii) Is there evidence linking the accused to the crimes with which they are charged?

(a) Overview

[154] There is a great deal of cell phone evidence that links the accused to the crimes. The defence argue that Perrier demands that when this evidence is considered, each accused must be considered in a silo. The defence maintain that Perrier precludes any consideration of relationships between the accused and how these relationships may inform whether there is evidence linking them to the offences. The defence say that when approaching each accused in their necessary evidentiary silo, the evidence linking each accused to the crimes becomes nothing more than evidence of opportunity to commit the crimes and this is insufficient to form a link for purposes of the second prong of the similar act analysis.

[155] As discussed earlier in this ruling, Perrier clearly precludes evidence of simple membership in a group from being considered as evidence linking an accused to the group's acts. This does not mean, though, that connections or associations between people who belong to a group, however loosely formed, are always precluded from consideration when conducting a linkage exercise.

[156] As discussed in another ruling relating to association evidence, R. v. Kanagasivam, 2016 ONSC 2796, 129 W.C.B. (2d) 575, there is no prohibition against using association evidence provided it connects to a live issue in dispute. Association evidence is relevant in this case because it informs the issue of identity. This is not because the accused are alleged to associate with those who commit crimes. Nor is it because they are alleged to be members of a group that commits crimes. It is because there is evidence that the accused, who know one another, share patterns of movement at times and locations proximate to the crimes, crimes committed by groups of men working in tandem.

[157] The likelihood that a person's phone will use a cell tower proximate to a crime as it is occurring could be considered a matter of unfortunate coincidence. In some circumstances it could be considered simple evidence of opportunity, which could not, standing on its own, furnish a sufficient link to the acts: Arp, at paras. 54, 57; MacCormack, at para. 59.

[158] In the context of joint enterprise crimes, though, the potential for coincidence decreases, and the probative value of the evidence increases, as the phones of other people known to the accused share the exact same coincidences. For example, the fact that X, Y and Z all know each other, and their phones are close to where a victim is kidnapped from at the time he is kidnapped, and close to where the same victim is abandoned at the time he is abandoned, is probative evidence of identity in the context of joint enterprise crimes. In other words, where multiple men are alleged to have committed a crime, and their phones move in symmetrical patterns consistent with the commission of the crime, the cell phone evidence is probative on the issue of identity.

[159] I will now go through the relevant linkage evidence respecting each of the acts, with a particular focus on the accused charged with those acts.

[160] I am not going to discuss the evidence that connects each person to the phones said to be used by them. In most cases the accused and others were the registered users of the phones. In other situations, searches of phones seized incident to arrest revealed information about who is associated to what number. In other situations there was evidence from co-accomplices that assigned certain individuals to phones. In the end, I am satisfied that there is ample evidence associating the phone numbers to the people suggested. As a result, and for ease of reference, I will refer to them as the individual's phone.

[161] In addition, I recognize that just because an individual's phone uses a tower, it does not mean that the individual was necessarily using the phone at the time. Nonetheless, a reasonable inference can be drawn that the person associated to the phone was using the phone when it accessed the tower.

[162] I also recognize that there is no way of knowing exactly where a phone is when it utilizes a tower. All that can be known is that the phone is in the radius covered by the tower and sometimes a particular sector of a tower. Some towers cover larger zones than others. For the most part, I do not intend to go through the minutiae of the evidence regarding exactly where towers are relative to the crime scenes and what sectors cover these areas. This would require a microscopic approach to details that took days of trial time to cover.

[163] For purposes of this ruling, I intend to simply describe locations in a more general fashion. Suffice to say that when I reference a phone being close to a location, I have had regard to the maps filed and evidence given on the point and am satisfied as to the proximity of these locations to one another.

(b) Reviewing the Individual Counts

• May 2, 2009: Counts 7-8, Kamlesh Dave

Mr. Kanagasivam and Mr. Pathmanathan

[164] All three of the trucks used to steal trailers from the Sameday Worldwide lot were stolen earlier in the evening. Both Mr. Amarasingam and Mr. Rajathurai testified about the events that led to the thefts of these trucks and what occurred afterwards. Mr. Amarasingam testified that he was taking directions from Mohamed Mashood. As for Mr. Rajathurai, at first he said that he was taking directions from Mashood.

[165] He later testified that on May 2, 2009, Mashood and Mr. Pathmanathan spoke to him about stealing a truck. He said that they spoke at Mr. Pathmanathan's truck yard. He testified that Mr. Pathmanathan and Mashood told him "that we would do it this way". Mr. Rajathurai said that he travelled with Mr. Pathmanathan and Mashood to the location where he stole the truck. He said that he saw Mr. Pathmanathan climb into another truck. He was working according to Mr. Pathmanathan and Mr. Mashood's direction.

[166] I keep in mind that Mr. Rajathurai is a Vetrovec witness. With that said, there is strong corroborating evidence to support his claim that, at a minimum, Mr. Pathmanathan was involved in these offences. The confirmatory evidence lies in the cell phone records.

[167] Two of the trucks were taken from an address on Columbus Road, Mississauga. Mr. Dave was transported and abandoned in one of these trucks. One of the trucks contained a GPS system that showed movement at 2:54:19 a.m. In addition, a surveillance video shows movement in the truck yard starting at around 2:30 a.m. The truck with GPS travelled to Menkes Drive, Mississauga. Mr. Dave was working at 6975 Menkes Drive. A number of hours later the GPS showed the truck at a location on Compass Court, Scarborough.

[168] The third truck came from 1116 Midway Blvd, Mississauga.

[169] Video from the Menkes Drive Sameday Worldwide address, where Mr. Dave was working, shows him being attacked at about 3:25 a.m. After he is attacked, 3 trucks pull in without trailers and leave about 10 minutes later with trailers.

[170] The truck with Mr. Dave in it was recovered at Lodestar and Rimrock Roads, North York. Mr. Dave said that it took him some time to get out of the vehicle because he could not figure out how to get the door opened. He even tried to break the window to get out. Eventually he emerged, got to the McDonald's and a 9-1-1 call was made before 7:00 a.m.

[171] A second truck was recovered on May 4, 2009 at 11 Canadian Road, Scarborough. The third truck was recovered on May 4, 2009 at 455 Steelcase Road East, Markham.

[172] On May 2, 2009, starting at 1:20:36 a.m., Mr. Pathmanathan's phone connected with Mr. Rajathurai, Mr. Kanagasivam and Mr. Mashood's phones. His phone repeatedly connected with the others until the next morning. Mr. Kanagasivam's phone also had contact with Mr. Rajathurai and Mr. Mashood's phones.

[173] The phone records show Mr. Kanagasivam, Mr. Pathmanathan, Mr. Rajathurai, Mr. Amarasingam, and Mr. Mashood's phones using towers proximate in time and location to two of the trucks being taken from their original location. All of the phones then moved to using towers proximate to the Sameday Worldwide location from where Mr. Dave was taken. Indeed, Mr. Kanagasivam and Mr. Pathmanathan's phones were not only using the same cell tower that covers that location, but the same sector of the cell tower that covers the location, at the exact same time that the events were unfolding.

[174] Their phones then moved to towers proximate to where one of the trucks was later found at 455 Steelcase Road, Scarborough. So too did the phones of Mr. Rajathurai and Mr. Amarasingam.

[175] Then, just before 5:00 a.m., Mr. Pathmanthan and Mr. Kanagasivam's phones relocated to a tower providing service to Lodestar and Rimrock Road, North York, where Mr. Dave was left abandoned. Indeed, during the last calls when these phones connected to the tower, they used sector 3, which covers the precise area where Mr. Dave was abandoned.

[176] Mr. Kanagasivam's phone also used a tower in proximity to 34 Compass Court, close-by where the truck with the GPS had registered.

[177] There was clear evidence that these men knew one another. For instance:

a. Mr. Rajathurai testified he knows Mr. Kanagasivam from Mr. Pathmanathan's truck yard.

b. Mr. Rajathurai used to work for Mr. Pathmanathan.

c. Mr. Kanagasivam's phone had contact with Mr. Mashood's phone on a few occasions.

d. Mr. Kanagasivam had Mr. Pathmanathan's number stored in his phone.

e. Mr. Rajathurai had Mr. Kanagasivam's number stored in his phone.

f. Mr. Rajathurai and Mr. Kanagasivam's numbers were in Mr. Pathmanathan's phone.

g. Mr. Amarasingam testified that he is Mr. Pathmanathan's uncle.

h. Surveillance captured Mr. Pathmanthan and Mr. Mashood together.

i. Mr. Mashood and Mr. Pathmanathan's phones had numerous contacts.

j. Mr. Amarasingam's phone had one of Mr. Mashood's numbers in it.

k. Mr. Rajathurai and Mr. Amarasingam testified that they knew Mr. Mashood.

[178] Coincidence could explain one person being in one place at the wrong time. Maybe even two or three places at the wrong time. Evidence of cell phone usage close by a crime scene could also be characterized as mere evidence of opportunity. But characterizing the evidence in any of these ways is to miss its probative force. The probative value of the evidence, and why it provides a linkage to identity, comes from the fact that Mr. Pathmanathan, Mr. Kanagasivam and other acquaintances share symmetry of movement with one another and with the unfolding of this joint enterprise crime.

[179] I find that there is a strong link between the accused and the Dave counts, well beyond the "some evidence" required to establish that link. As for Mr. Pathmanathan, there is the additional evidence from Mr. Rajathurai. While Mr. Rajathurai is a Vetrovec witness, given that the cell phone evidence lends significant corroboration to his account, he stands in a much different position than Mr. Wang did in Perrier.

• July 2, 2009: Counts 11-13, Kulbir Aulakh

Mr. Kanthasamy and Mr. Pathmanathan

[180] The LG Warehouse from where Mr. Aulakh was kidnapped at what he thought was between 1:00 and 2:00 p.m. is located at 550 Matheson Blvd., Mississauga. Mr. Aulakh testified that the truck drove for 60 to 90 minutes, after which the load was removed. Then the truck drove for another 20-25 minutes, then stopped and the men left. Mr. Aulakh was able to free himself and found that he was close-by the Salem Road entrance to the 401. He got onto the 401 and started driving westbound, after which he called the police and got assistance. An officer was dispatched to assist at 4:00 p.m.

[181] There were 3 active phones that day, each of which show proximity to locations and times relevant to the offence. Mr. Pathmanathan's phone used a tower very close to the LG Warehouse after 11:15 a.m. that morning. It used the same tower at 1:12 and 1:13 p.m. Mr. Kanthasamy's phone used two towers right in that location as well: 1:14:10 and 1:34:12 p.m. The call at 1:34:12 p.m. used the tower closest to the LG Warehouse. This is in the exact time zone that Mr. Aulakh was kidnapped.

[182] As for Mr. Mashood's phone, it also used a tower close-by the LG Warehouse at 10:40 a.m. His phone used another very close-by tower at 1:41 p.m.

[183] After 1:20:23 p.m., Mr. Pathmanathan's phone went to voicemail for over 90 minutes. When it started receiving and sending calls again, the phone had moved out of Mississauga and was now well east on the 401, using a tower at Kingston Road and Church Street in Whitby at 3:23:33 p.m. This is not far west of the Salem and 401 exchange.

[184] Like Mr. Pathmanathan, Mr. Kanthasamy's phone also moved out of Mississauga and into the Whitby area. At 3:24:12 p.m., it used a tower at HWY 401 & Harwood, a tower that specifically covers the 401 & Salem exit where Mr. Aulakh was left abandoned. Indeed, Mr. Kanthasamy's phone is in the very sector of the tower that cloaks the area of Salem and the 401. His phone was in direct communication with Mr. Mashood's phone while Mashood's phone was also using a tower very close-by. This would have been around the time that Mr. Aulakh would have been abandoned in that area.

[185] As such, like Mr. Pathmanathan's phone, Mr. Kanthasamy's phone travelled from Mississauga to Whitby in the same time period that Mr. Aulakh was taken from Mississauga to Whitby. Mr. Mashood's phone shows a similar pattern.

[186] At 3:49:29 p.m., Mr. Kanthasamy's phone used a tower just to the west of his home which is north of the 401, north of Rossland Road, and to the west of Salem Road.

[187] Evidence was also led that a number subscribed to by "Prez Obama", a pre-paid account, shows significant symmetry of movement with the other phones and the crime. This evidence was elicited by the defence through cross-examination of a witness from Rogers. There is no evidence as to who was using this phone.

[188] I have already dealt with evidence linking Mashood to Mr. Pathmanathan. As for Mr. Kanthasamy, there was ample evidence that he knows Mr. Pathmanathan and Mr. Mashood. The evidence includes:

a. Mr. Mashood, Mr. Pathmanathan and Mr. Kanthasamy's vehicles were captured by surveillance parked in the same parking lot. On another occasion, Mr. Pathmanathan and Mr. Kanthasamy were seen separately approaching Mr. Mashood's car, in the same parking lot, at around the same time.

b. Mr. Kanthasamy was seated in Mr. Mashood's car when they were approached by the police the day before the arrests occurred.

c. There is phone contact between Mr. Pathmanthan and Mr. Kanthasamy's phones. There is phone contact between Mr. Kanthasamy's phone and two of Mr. Mashood's phones.

[189] In the end, much for the same reasons I gave in relation to the Dave kidnapping, there is significant evidence linking Mr. Pathmanathan and Mr. Kanthasamy to the Aulakh counts. Mr. Aulakh was kidnapped by a number of men. A number of men who knew one another were in the area from which Mr. Aulakh was kidnapped at the time he was kidnapped. Those same men were in the area Mr. Aulakh was abandoned, around the time he was abandoned. This is not simply evidence of opportunity. Combined with the joint enterprise nature of the crime, and the connections between these men, and their symmetry of movement, which corresponds exactly with Mr. Aulakh's movement, this is significant evidence linking the men to these counts.

[190] I find that there is more than some evidence linking them to the counts.

• July 6, 2009: Counts 14-16, Rajender Gill

Mr. Baskaran

[191] Mr. Baskaran is charged alone on these counts.

[192] Mr. Gill testified that he left a warehouse at 755 Passmore Avenue, Scarborough around 10:00 p.m. He stopped by Quinte West to sleep at 11:35 p.m. He awoke to his window being smashed. He only knows that this happened after he had fallen asleep. He was driven a long distance, the load was taken off, and he was driven again and eventually abandoned. When he freed himself from the truck he was at Lodestar and Rimrock Road. The 9-1-1 call came in at 5:37 a.m.

[193] Mr. Daley testified about the events surrounding this offence. He said that he was involved with two people, Mr. Mashood and someone Mr. Daley referred to as Big T. They met at an address on Crow Trail to discuss the robbery and then went east to Quinte West.

[194] He said that he drove with Mashood and Big T. Mr. Daley testified that they were speaking "Sri Lankan". Mr. Daley testified that Big T smashed the truck window with a rock. Daley assumed responsibility for holding the gun. There were others at the scene of the kidnapping, but he could not see who they were.

[195] While he acknowledged that he is friends with Mr. Baskaran, Daley did not say that Mr. Baskaran was involved in the Gill kidnapping.

[196] Around 9:30 p.m., the phone associated to Mr. Baskaran used a tower by a home referred to in the trial as the "Crow Trail" address. Mr. Daley testified that he had his meeting with Mashood and Big T at Crow Trail and then they departed to Quinte West. Mr. Daley referred to the Crow Trail house as a place where Sri Lankan males would hangout. Mr. Mashood's phone also used a tower close-by the Crow Trail address at just after 9:45 p.m.

[197] Earlier that day, at 10:20 a.m., Mr. Baskaran's phone connected with Mr. Mashood's phone for a 93 second call. Both Mr. Baskaran and Mr. Daley's phones used a tower proximate to the place where Mr. Gill started his journey. While Mr. Gill thought he left the warehouse with the beer on board at around 10:00 p.m., Mr. Baskaran's phone used the cell tower right by that location starting at 10:35:34 p.m. His final use of that tower was at 10:51:18 p.m. Importantly, there was evidence that Mr. Baskaran also lived close to that location. As for Mr. Daley, he used the same tower at 9:18:21 and then about 20 minutes later.

[198] Mr. Daley and Mr. Baskaran's phones then started repositioning themselves. At 11:31:56 p.m., Mr. Baskaran's phone was moving steadily eastbound along the 401, first hitting the Bowmanville tower, then Cobourg, then Grafton and then Trenton. The Trenton tower was used by Mr. Baskaran's phone at 12:37 and 1:10 a.m. Mr. Gill was parked just to the west of Trenton, along the 401. Mr. Baskaran's phone is then seen travelling back westbound, using towers at Brighton, Cobourg and, finally, at 2:51:26 a.m., using the tower by the Crow Trail address.

[199] Mr. Daley's phone also went eastbound during the same period of time, using the Newtonville tower site at around 11:38 p.m. and then the Brighton site by 12:19 a.m.

[200] As for Mashood's phone, it used the tower close to the Crow Trail address at just after 9:45 p.m. Like the others, it also started moving eastbound along the 401, using the Cobourg tower at 11:12:125 p.m. and the Trenear Road tower (to the east of the Cobourg tower) over 30 minutes later. At 12:34:39 a.m., it used the Quinte West tower.

[201] For the reasons previously given, there is significant evidence that Mr. Baskaran was involved in the Gill offences. His phone connected to Mashood's phone for a 93 second call earlier in the day.

[202] Mr. Daley testified that Mashood elicited his assistance and drove him to Quinte West where Mr. Gill was parked. All of their phones were in the Crow Trail area before Mr. Gill departed. Mr. Baskaran and Mr. Daley's phones were in the area of the warehouse around the time that Mr. Gill's load departed. Of course, I have kept in mind that the tower close to the warehouse from which Mr. Gill left is also positioned very close to Mr. Baskaran's home.

[203] Then all three phones travel eastbound at around the same time, taking the same route. The furthest east the phones make it is close to where Mr. Gill was sleeping for the night, and at a period of time when his truck could have been entered. The phones then travel westbound again. Needless to say, Quinte West is a long way from Scarborough.

[204] In short, in the context of this joint enterprise offence, these three men who knew each other enjoyed symmetry of movement between themselves and symmetry of movement with Mr. Gill's movement. This provides ample evidence linking Mr. Baskaran to the Gill counts.

• July 21, 2009: Counts 17-19, Gary Hughes

Mr. Pathmanathan, Mr. Baskaran, Mr. Kanthasamy

[205] Mr. Hughes left Mississauga with his load on July 21, 2009 at 7:00 p.m. He stopped at the Quinte Mall at around 10 to 10:30 p.m. He went to sleep and awoke to find a man pointing a gun at him, telling him to shut up or he would be shot.

[206] He was abandoned around Elgin Mills in Markham and managed to get free and make a 9-1-1 call just prior to 3:00 a.m. His bank card was used at a CIBC branch at 2904 Sheppard Ave. East, Toronto. A $500 withdrawal was made at 2:40 a.m. Mr. Hughes' chassis was found on July 27, 2009. It was located at a place east of Dixie Road in Mississauga.

[207] Mr. Daley testified about his involvement in the July 21 robbery and kidnapping of Gary Hughes. Daley testified that he was not happy with being assigned to hold the gun during the Rajender Gill robbery. When Mashood and Big T asked him to attend this one, he agreed, but said that he would not hold the weapon this time.

[208] Mr. Daley testified that he went to the Quinte Mall in a vehicle with Big T, Mashood and a man with a burn on his face, like a "slash". Daley did not know this third man and, according to Daley, the man sat in the back seat behind him.

[209] Mr. Daley testified that he fell asleep on route to Belleville. Once they got there they waited awhile. Then Big T and Mashood ran to the truck with 2 other people that he thought may have come from behind the truck. They smashed the window. While Daley said that he likely had contact with Mr. Baskaran earlier in the day, it was prior to Mashood and Big T arranging with Daley to drive out east and commit the robbery.

[210] There is coordinated movement between Daley and Mr. Baskaran's phones preceding the events of that evening. Earlier in the day, their phones were in communication with each other. By just before 7:30 p.m., both phones used the same tower in Toronto, by Bloor and Russett Streets, west of Yonge Street. Their phones communicated again before 9:00 p.m. and then both started to move northeast and then eastbound along the 401.

[211] By 10:00 p.m., Mr. Baskaran's phone was at the Newtonville tower and then Grafton, Quinte Heights and Belleville, showing a complete easterly trajectory. It first used the Belleville tower, close to the Quinte Mall, at just after 11:00 p.m. It then used the Belleville and Belleville downtown towers interchangeably, between just after 11:00 p.m. and just prior to midnight. Both towers are very close to the Quinte Mall where Mr. Hughes was asleep in his truck. At just before midnight, Mr. Baskaran's phone started to show movement westbound, back toward the GTA.

[212] After the call with Mr. Baskaran's phone before 9:00 p.m., Daley's phone also started moving northeast out of Toronto. Like Mr. Baskaran's phone, Daley's phone can be seen using towers suggesting an easterly movement along the 401. His phone used the Newtonville tower by just after 10:00 p.m., less than 2 minutes after Mr. Baskaran's phone connected to that tower. Recall that Mr. Daley places himself at the scene of Mr. Hughes' kidnapping.

[213] As for Mr. Pathmanathan's phone, it was using the tower close to the Crow Trail location after 8:30 p.m. It then started moving and by just after 9:30 his phone was using the Newcastle tower and then onto Newtonville by 9:37 p.m. His phone continued to use that tower until 9:49 p.m. and then moved eastbound again, including to Port Hope, then Cobourg, then Belleville and Belleville downtown. Mr. Pathmanathan's phone was on the Belleville tower by 11:52 p.m. His call just prior to midnight started on the Belleville downtown tower, again, very close to where Mr. Hughes had parked for the night. Like Mr. Baskaran's phone, Mr. Pathmanathan's last phone call ended on a tower that suggested a westerly movement back toward the GTA.

[214] Mr. Mashood's phone also showed an easterly movement along the 401, during the same period of time. He was using the Whitby tower around 9:45 p.m. and then Thornton, and onto Belleville. His phone was in Belleville by at least 11:52 p.m. That particular communication ended on the Belleville downtown tower. Both towers are very close to where Mr. Hughes parked. Like Mr. Pathmanathan and Mr. Baskaran's phones, by just before midnight, Mr. Mashood's phone showed movement westbound.

[215] As for Mr. Kanthasamy's phone, it used a tower very close to his home in Whitby at just before 6:30 p.m. By just after 8:00 p.m., it started to move eastbound along the 401. It used the Bowmanville tower at 9:15, the Port Hope tower at after 10:00 p.m. and the Brighton tower at 10:39:57 p.m. That call ended on the Trenton tower. This suggests his phone was still moving easterly during that call. This is the last entry for this phone record on July 21, 2009. Unlike the others, Mr. Kanthasamy's phone did not register on the Belleville tower. The Trenton tower sits to the west of Belleville and the Quinte Mall. During the motion, it was suggested that this is at least 20 km and perhaps more from Belleville. In addition, it was suggested that the times of the calls made from Mr. Kanthasamy's phone show that he was not travelling with the other accused. I am prepared to accept this fact.

[216] While I have already addressed some evidence about connections between the various accused, there is also evidence that Mr. Baskaran had Mr. Kanthasamy's number stored in his phone under the name "Appu", suggesting a connection between them. As well, on one occasion, surveillance observed a vehicle registered to Mr. Baskaran in what appeared to be what the officer called a "meet" with a vehicle used by Mr. Mashood.

[217] For the reasons provided earlier, I find that the symmetry in movement between the phones associated to Mr. Pathmanathan, Mr. Kanthasamy and Mr. Baskaran, Mr. Daley and Mr. Mashood demonstrate a commonality between them. At generally the same time, the phones move toward where Mr. Hughes had come to rest for the night. This was a long distance from where the phones started their journeys. Then, just before midnight, they started moving back toward the GTA. Mr. Hughes was dropped in Markham and his phone card was used in Toronto just less than 3 hours after the phones were in Belleville and starting to move westward.

[218] In the context of this joint enterprise crime, there is compelling evidence linking the accused to the Hughes' offences. While the last registered use of Mr. Kanthasamy's phone was Trenton, it does not sit far to the west of Belleville. His phone's last communication suggests the phone was still moving eastbound toward Belleville at that time. He was a long way from home. Bearing in mind the joint nature of the Hughes' offences, Mr. Kanthasamy's associations to the others, and bearing in mind his very specific trajectory eastbound in what looks like coordinated movement with the others, there is some evidence linking Mr. Kanthasamy to these offences.

[219] In relation to the others, there is significantly more than some linkage evidence.

• July 21, 2009: Counts 20-21, Kamran Warraich

Mr. Pathmanathan, Mr. Baskaran, Mr. Kanthasamy

[220] Mr. Warraich was working at Thomson Terminals located at 2 Bramkay Street in Brampton. The truck used to steal the trailers, and into which Mr. Warraich was placed, was stolen from a location at 119 East Street, Brampton. The truck's GPS showed movement for the first time at 5:30 p.m.

[221] The video at Thomson Terminals shows the truck entering the property at 8:17 p.m. and leaving with the first load at 8:31 p.m. It returned to 2 Bramkay at 9:06 p.m. and leaves again at 9:17 p.m. Mr. Warraich's bankcard was used just before 10:00 p.m. on July 25, 2009. Mr. Warraich testified that he was still in the truck when the assailants used the card.

[222] The defence took great issue with Mr. Warraich's credibility. The defence also said that his evidence was confusing at best. Among other things, they point to the fact that he provided different descriptions for his assailants, he claimed at trial to be attacked by more people than what he told the police, he testified about short hair when the accused had long hair, and he said that he was in the truck when his bank card was used. In fact, the defence argue, he could not have been in the truck when his bank account was accessed because the video surveillance from Thomson Terminals shows that he had already been returned to the property by the time his account was accessed.

[223] As for Mr. Warraich's credibility, for purposes of this application, I am satisfied that what I saw was a witness who appeared to be trying to tell the truth. His evidence was undoubtedly confusing at times, but it was clear that he was struggling with a language barrier. He appeared to be highly traumatized by what had occurred. It would be understandable if he forgot to tell the police something when he was interviewed, particularly if he was not asked direct questions about the matters. As well, there was a significant language barrier between Mr. Warraich and his assailants, something that could easily explain why he may have misunderstood things said by them.

[224] I find that the bank records speak for themselves. His account was clearly accessed by someone who did not have much knowledge about how much was in the account. Multiple attempts were made to withdraw amounts that were in excess of what was available. This goes some distance to rebutting the suggestion that Mr. Warraich, who would know how much was in his account, was part of an inside job. In the end, for purposes of the admissibility inquiry, and to the extent necessary, I find that he was a credible witness.

[225] The two trailers taken from Thomson Terminals had multiple products in them, some of which were ultimately located at a truck yard rented by Mr. Pathmanathan. The second trailer removed from the Thomson Terminals location was also located at Mr. Pathmanathan's yard.

[226] As for the cell phone evidence, there are 4 locations that are relevant to these counts. The first relates to the towers that surround the location from where the truck was stolen. Mr. Pathmanathan's phone used these towers between about 5:00 and just before 5:30 p.m. Recall that the truck's GPS first shows movement around 5:30 p.m.

[227] As for the Thomson Terminals site, where Mr. Warraich was taken from, there is a very close-by tower that was referred to at trial as the "Woodhill" tower. Mr. Mashood, Mr. Pathmanathan, Mr. Baskaran and Mr. Kanthasamy's phones all used this tower on multiple occasions in and around the time that Mr. Warraich was kidnapped. Mr. Pathmanathan's and Mr. Kanthasamy's phones used the tower starting at about 5:30 p.m. The others' phones started using the tower just after 8:00 p.m. Mr. Mashood's last use of the tower is 8:45:16 p.m., Mr. Kanthasamy's is 8:28:18 p.m., Mr. Baskaran's is 8:37:15 p.m. and Mr. Pathmanathan's is at 8:34:33 p.m. Recall that the video shows the truck pulling in just after 8:15 p.m. and out just after 8:31 p.m.

[228] Mr. Baskaran and Mr. Kanthasamy's phones then receded to a Highway 27 and Albion Road tower. Mr. Mashood's phone stopped communicating. Mr. Pathmanathan's phone used a tower at 9:56:56 p.m., very close to 1670 McCowan Road, Toronto, the address of the bank where Mr. Warraich's bankcard was used, at a time it was used. Mr. Pathmanathan's phone then used a tower at 10:50:25 p.m., which is close to 17 Provost Drive, where the stolen truck was discovered the next day. A good deal of the stolen property was located in another trailer on Mr. Pathmanathan's property, a trailer unrelated to the Warraich counts.

[229] Bearing in mind the joint enterprise nature of the crime, the group of men who kidnapped Mr. Warraich, the associations between the accused, and the symmetry between the time and location of the offence and times and locations phone usage, I find that there is significant evidence linking the accused to the counts.

[230] As it relates to Mr. Pathmanathan, there is an abundance of evidence linking him to the crimes.

• July 21, 2009: Counts 22-24, William Latham

Mr. Pathmanathan, Mr. Baskaran, Mr. Kanthasamy

[231] Recall that Mr. Latham departed from an LCBO outlet on July 27, 2009 at just after 6:53 p.m. The LCBO is located at Boundary Road in Whitby. The GPS on Mr. Latham's truck shows it travelling eastbound on the 401, registering just west of Kingston at 9:00 p.m. Mr. Latham arrived at his LCBO location in Ottawa at just after 11:19 p.m. He took HWY 416, east of Kingston and west of Cornwall, up into Ottawa. He went to sleep. He awoke to find someone in his truck. His truck is seen leaving the LCBO at 12:22:16 a.m.

[232] Mr. Latham was asked how to get to Montreal and he told his assailants to take HWY 417. The truck came to a stop and he could feel the trailer being unhooked. The truck then drove again and he was eventually abandoned by an exit off of HWY 20 west of Montreal. The empty trailer was found a few days later at 430 Rue Deslaurier, Ville St. Laurent. It was agreed by counsel that the location of the empty trailer is 6 km from a Rogers' tower referred to in the trial as the Côte de Liesse tower. This tower is located near a highway that goes to the airport and there are a number of hotels along the highway.

[233] Mr. Pathmanathan and Mr. Kanthasamy's phones were in touch during the mid-afternoon of July 27, 2009, before Mr. Latham departed toward Ottawa. Mr. Pathmanathan's phone used a tower close by Mr. Kanthasamy's home at 6:01 p.m. Mr. Kanthasamy's phone used the same tower at 5:51 p.m. This tower does not provide service as far south as the 401.

[234] At 6:46 p.m., a few minutes before Mr. Latham started his journey, Mr. Pathmanathan's phone used the Whitby Downtown tower. The terminating site for that call was the Oshawa GM tower, a tower that sits very close to the LCBO warehouse from where Mr. Latham set out minutes later.

[235] Mr. Pathmanathan's phone then moved onto the Newcastle tower as it started to proceed eastbound. By 7:27 p.m. it used the Newtonville tower and then Cobourg, and then Colborne, all showing an easterly trajectory. At 8:04 p.m., it used a tower in Quinte Heights. Between 8:04 and 8:06 p.m. Mr. Pathmanathan's phone had events using the Quinte Heights tower. Mr. Kanthasamy's phone used this exact same tower at 8:05 p.m. This is well east of where the phones had been in Whitby and a long way from Mr. Kanthasamy's home. While Mr. Kanthasamy's counsel accepted that the evidence may show that Mr. Pathmanathan and Mr. Kanthasamy were travelling together, he took the position that there is insufficient evidence putting Mr. Kanthasamy close to Ottawa.

[236] Mr. Pathmanathan's phone then moved east again, using a few other towers until it reached a Kingston Mills tower at 8:48 p.m., west of the HWY 416 cut off to Ottawa. The next phone entry using a tower was at 8:16 a.m. the following morning. By then, Mr. Pathmanathan's phone was using the Côte de Liesse tower, 6 km from where Mr. Latham's empty trailer was found. It used this tower repeatedly up to 11:39 a.m.

[237] As for Mr. Kanthasamy's phone, it connected with Mr. Pathmanathan's phone on July 27, 2009, prior to 3:00 p.m. While it used the tower by his home at 5:51 p.m., by 8:02 p.m. the phone had travelled east on the 401 and was using a tower in Trenton. That call ended on a Quinte Heights tower, further east again. Another call was then made from that tower. The last entry for Mr. Kanthasamy's phone showed more movement to the east, when he used the Gananoque tower at 9:00:23 p.m., a tower that sits to the west of the HWY 416 cut off to Ottawa. The distance between Kingston and Gananoque is 34.4 km. At 9:00 p.m., the Latham truck registered a GPS coordinate along the 401. At that time, the location of the truck was west of Kingston, although precisely how far west is unknown.

[238] Regardless of the precise distance, it appears that Mr. Kanthasamy's phone was well ahead of Mr. Latham's truck. Mr. Kanthasamy's phone was not used again until 5:31:11 a.m., when it used the Côte de Liesse tower in Montreal, the same one used by Mr. Pathmanathan and, as it turned out, Mr. Baskaran. It used this tower until 11:31 a.m.

[239] As for Mr. Baskaran, his phone left the area of Crow Trail after 7:00 p.m. and, like the others, started to proceed eastbound along the 401. At 8:36 p.m. the phone used the Brighton tower. It then moved to a Trenton tower at 8:42 p.m. Then a few of the towers it used were Belleville and Napanee, showing a steady trajectory eastbound. It then started to use towers showing a movement up into Ottawa and came to rest on a tower right by the LCBO where Mr. Latham had come to rest for the night. The phone used the Ottawa Airport tower by 11:09 p.m. Mr. Baskaran's phone's last communication on that tower was at 11:33 p.m. Recall that Mr. Latham pulled into that location at 11:19 p.m.

[240] The next communication using a tower was at 1:43 a.m., when the phone used the HWY 417 at Casselman tower. Recall that this is the highway that Mr. Latham told his assailants to take in order to get into Montreal. At 4:11 a.m. the phone used a tower at Dorion by HWY 20, right by the exit where Mr. Latham was abandoned. The phone then used the Côte de Liesse tower at 4:33 a.m. and then headed back toward Scarborough. By 9:47 a.m., Mr. Baskaran's phone was back in the area of Crow Trail.

[241] Mr. Baskaran tracks Mr. Latham's movements almost with exact precision. Combined with the joint enterprise nature of the crime and the movement of others, I am satisfied that there is an abundance of evidence linking Mr. Baskaran to these crimes.

[242] As for Mr. Pathmanathan and Mr. Kanthasamy, the evidence is not as strong. Nonetheless, this was a group crime. Like the others, and perhaps even more, it required significant coordination. Mr. Latham was clear that when the trailer was detached, the man guarding him remained with him. He was also clear that after he heard the trailer detached, the truck drove again for some time. This means that a trailer full of valuable alcohol was left behind. It is a reasonable inference that others, beyond the driver and man guarding Mr. Latham, had to have been involved. This is particularly so given that Mr. Baskaran seems to have headed back to Scarborough shortly after Mr. Latham was abandoned.

[243] As well, bearing in mind where Mr. Latham was abandoned, out on HWY 20, the assailants would have needed some means by which to leave the scene. It is a reasonable inference that someone picked them up. This is equally true with respect to almost all of the scenes were the kidnapping victims were abandoned. This adds to the joint nature of the enterprises.

[244] While it may be that Mr. Kanthasamy, and even Mr. Pathmanathan, were travelling ahead of Mr. Latham's truck, this does not detract from the group nature of the crime. Indeed, it may well be that in a crime of this nature, some in the group would travel ahead of the targeted truck, acting as a lookout and checking for police presence ahead. Mr. Latham was on his regular route, which he repeatedly drove. Anyone who may know about that regular route could confidently drive ahead of the truck, knowing what its ultimate destination would be.

[245] In addition, while there is no direct evidence taking Mr. Pathmanathan and Mr. Kanthasamy up into Ottawa, there is no evidence suggesting that they did not go up into Ottawa. Their phones went silent west of the highway up into Ottawa. At the time the phones went silent, they were still showing an easterly trajectory along the 401 toward the HWY 416 cut off into Ottawa.

[246] As before, there is evidence that Mr. Baskaran knew Mr. Kanthasamy. There is evidence that Mr. Pathmanathan knew Mr. Kanthasamy. After Mr. Baskaran's journey, involving a joint enterprise crime that is reasonable to infer took more than 2 people to accomplish, Mr. Kanthasamy, Mr. Baskaran and Mr. Pathmanathan all end up using the same cell phone tower 6 km from where the empty trailer was ultimately found. This was a long way from home.

[247] In the end, I conclude that there is clear evidence linking each of the accused to the crimes, exceeding the necessary some evidence threshold. In Mr. Baskaran's case, it well exceeds that threshold.

• July 27, 2009: Counts 25-26, William Chandler

Mr. Pathmanathan, Mr. Baskaran, Mr. Kanagasivam

[248] Mr. Chandler arrived at 30 Pedigree Court, Brampton at around 1:00 a.m. on August 27, 2009. He had a full load of cigarettes on board and was scheduled to make his delivery at 7:00 a.m. He parked his truck outside of the gates of 30 Pedigree and went to sleep around 2:00 a.m. He does not know how long he was asleep before he awoke to what he thought was a bad dream. A window was smashed, a man entered, and he was pushed into his bunk.

[249] He felt that he was driven for about 30 minutes or a little more. The truck was then backed up to a dock and bolt cutters were used to get the seals off of the truck. It took about 10-15 minutes to unload the vehicle. Then the truck was driven again and he was abandoned. Mr. Chandler laid still for about an hour. He eventually got out and 9-1-1 was called at before 9:10 a.m. Mr. Chandler had been abandoned at 155 Champagne Drive, Toronto.

[250] Mr. Chandler's truck had Imperial Tobacco products on board. The next day, August 28, 2009, a number of men, including Mr. Pathmanathan, Mr. Baskaran, Mr. Kanthasamy, and Mr. Mashood were arrested at 130 Melford Drive, Scarborough. Contained in unit 5 were boxes of cigarettes, the codes of which matched those taken from the Chandler truck. Mr. Pathmanathan was arrested as he was backing up a cube truck to the loading dock area of the unit where the cigarettes were stored.

[251] As for Mr. Baskaran, he was seen emerging from the front of unit 5. He ran from the unit and entered his BMW, parked out front. He was arrested in that location.

[252] As for Mr. Kanthasamy (who is not charged with the Chandler counts), he was arrested close by the back of unit 5, 130 Melford Drive. He was in a van with a few people, including Mr. Mashood. He had earlier been observed meeting in a parking lot with Mashood. Similar observations were made in respect to Mr. Pathmanathan. In addition, later in the day after Mr. Chandler had been abandoned, Mr. Kanthasamy was observed in Mashood's black Mercedes. They were parked close-by the 130 Melford Drive address.

[253] As for the cell phone evidence, the Steeles & Airport tower covers 30 Pedigree Court. There was a good deal of evidence pertaining to the specific sectors of the tower covering and close to the 30 Pedigree address.

[254] Mr. Pathmanathan's phone was in communication with Mr. Kanagasivam's phone at 2:25 and 2:27 a.m. Mr. Pathmanathan's phone appears to have been moving westward along the 401, toward Brampton, at the time of the calls. After the 2:27 a.m. call with Mr. Kanagasivam's phone, Mr. Pathmanathan's phone did not contact Mr. Kanagasivam's phone again until 7:53 a.m. At this time, Mr. Pathmanathan's phone was at Sheppard and McCowan, Scarborough.

[255] As for Mr. Kanagasivam's phone, when it received the original calls from Mr. Pathmanathan's phone, it was using towers at Kipling & Steeles and HWY 27 & Albion. There was evidence at trial that these towers are close to where Mr. Kanagasivam lived at 194 Cabernet Circle. After the calls with Mr. Pathmanathan's phone, Mr. Kanagasivam's phone moved to the Steeles & Airport Rd. tower, starting after 3:00 a.m. This tower, cloaking 30 Pedigree Court, is 7.5 km from Mr. Kanagasivam's home address.

[256] The time that Mr. Kanagasivam's phone was using 30 Pedigree Court corresponds with the time after which Mr. Chandler had gone to sleep. Mr. Kanagasivam's phone continued to use that tower until just before 4:30 a.m. By just before 5:30 a.m., the phone used the Sheppard & McCowan tower and continued to use it on a number of occasions, including some calls with Mr. Pathmanathan's phone.

[257] On August 27, 2009, Mr. Baskaran's phone was in communication with a phone registered to someone referred to in the trial as "George". There was no evidence about who George is, or his actual identity. What the evidence revealed, though, is that a "George" with the same number Mr. Baskaran called, rented 130 Melford Drive, unit 5.

[258] It is this number that Mr. Baskaran's phone connected to on a few occasions starting before 1:00 a.m. and ending around 4:30 a.m. Mr. Baskaran's phone also used the Airport & Steeles tower starting at 4:09 a.m., the last call being at 4:32 a.m. It used different sectors of this tower. At 5:39 a.m. it used the Sheppard & McCowan tower in Scarborough, the one that Mr. Kanagasivam's and Mr. Pathmanathan's phones retreated to.

[259] The 710 phone registered to Farhan M. Mashood used a Malton tower, not far from 30 Pedigree Court at 2:40 am.

[260] Each of the phones used by Mr. Kanagasivam, Mr. Pathmanathan, Mr. Baskaran and Mr. Mashood, then end up using the Neilson & Wingarden tower. This tower is close to the Crow Trail and 130 Melford Drive addresses.

[261] Bearing in mind the joint enterprise nature of the Chandler counts, the evidence of association, the cell phone evidence corresponding in time and place to the events, and the connection of Mr. Pathmanathan and Mr. Baskaran to the property stolen from Mr. Chandler, I find that there is more than some evidence linking each of the accused to these crimes.

(c) Conclusion on Linkage Evidence

[262] In the end, I am satisfied that there is ample evidence, for the most part significantly exceeding the required some evidence threshold, linking each of the accused to the crimes with which they are charged.

(iv) A Final Balancing of Probative Value and Prejudicial Effect

[263] As a "general rule", if the similarity between the acts is such that it is "likely that they were committed by the same person", then the similar fact evidence will "ordinarily" have sufficient probative force to outweigh its prejudicial effect and it will be admitted: Arp, at para. 50. While this is only a general rule, having regard to all of the facts in this case, I find that the probative force of the similar fact evidence outweighs its prejudicial impact.

[264] As for its probative force, I have regard to the fact that this case is largely about identity. The similar acts are highly telling on this issue. The cell phone patterning evidence in this case invokes the comments of Binnie J. in Handy. He reminded that a criminal trial is about a search for the truth and fairness to the accused. The search for truth can be addressed by evidence that reveals an unlikelihood of coincidence.

[265] In this case, the accused experience many coincidences, some even more than others. As Binnie J. put it at para. 45, "[c]oincidence, as an explanation, has its limitations." The limitations in this case mount as the accuseds' phones find themselves close to one another and close to highly similar kidnappings and robberies, all of which occur in the context of joint enterprise crimes.

[266] There is a direct and compelling inference between the similar acts and the question as to who committed the crimes.

[267] As for the prejudicial impact of the evidence, it is critical to keep in mind that prejudice does not arise from the risk of a conviction. Just because evidence is highly probative of identity, or any issue in dispute, does not mean it is necessarily prejudicial in nature. Rather, prejudice arises from the risk that an accused will receive an unfair trial that will result in a wrongful conviction: Handy, at para. 139. An unfair trial can result where the trier of fact becomes unfocussed and or engages in a forbidden chain of reasoning, inferring guilt from the accused's general disposition: Handy, at para. 139.

[268] Importantly, in this case, the similar acts are all intrinsic to the indictment. This is not a case where the jury hears about extrinsic acts alleged to be committed by an accused, where those acts would not otherwise form part of the trial. Rather, this application is strictly about the cross-count application of evidence the jury has already heard and evidence that the jury needs to consider in the resolution of the various charges before the court. The sole question is whether the jury may consider the evidence on one count in relation to another. In this kind of case, while the risk of moral prejudice remains an important consideration, it is attenuated: MacCormack, at para. 68; R. v. B. (T.), 2009 ONCA 177, 243 C.C.C. (3d) 158, at para. 27.

[269] As for reasoning prejudice, no additional time has to be spent leading evidence that the jury would not otherwise hear. As I see it, the major issue pertaining to prejudice arises from the complexities created by the nature of the indictment, the number of accused and the manner in which they have been charged.

[270] As above, there are two prerequisites to the jury's consideration of similar fact evidence in a rotating group environment: (1) similarities between offences; and (2) independent linkage evidence. The accused are charged in different combinations and permutations throughout the indictment. The structure of the indictment follows the linkage evidence. In other words, the accused are charged in relation to those offences with which there exists linkage evidence.

[271] Mr. Kanagasivam is charged with the Dave and Chandler counts. Mr. Kanthasamy is charged with the Aulakh, Hughes, Warraich and Latham counts. Mr. Baskaran is charged with the Gill, Hughes, Warraich, Latham and Chandler counts. Mr. Pathmanathan is charged with the Dave, Aulakh, Hughes, Warraich, Latham and Chandler counts.

[272] Adding to the complication is the fact that the seven kidnappings that form the subject of this application do not represent all of the offences on the indictment. There are others, including some serious thefts, a robbery at gunpoint that was aborted partway through, and possession counts. The similar fact issue is separate and apart from these counts.

[273] While I am aware that admitting the similar fact evidence adds a clear level of complexity to the jury instructions and to the jury's deliberations, I am satisfied that an instruction can be crafted that is both faithful to Perrier and assists the jury in their deliberation process. By remaining faithful to Perrier, fairness to the accused will be ensured.

[274] In the end, I am satisfied on a balance of probabilities that in the context of this case, the probative value of the similar fact evidence relating to the issue of identity outweighs the potential prejudicial impact of considering the evidence across counts: Arp, at paras. 42, 51; MacCormack, at para. 48; Handy, at para. 55.

[275] For the reasons given, the similar fact evidence is admissible across counts.

Fairburn J.

Released: August 30, 2016

CITATION: R. v. Kanagasivam, 2016 ONSC 2548

COURT FILE NO.: CRIM J (P) 697/13

DATE: 2016-08-29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty The Queen

• and –

Jananthan Kanagasivam, Majurathan Baskaran, Thirumal Kanthasamy and Srimoorthy Pathmanathan

RULING: SIMILAR ACT EVIDENCE

Fairburn J.

Released: August 30, 2016

[^1]: While the Crown also asked for the cross-count application of evidence to establish the actus reus of any kidnapping offences that the accused may suggest did not occur, this request was ultimately withdrawn. As such, these reasons only address the similar fact evidence issue as it relates to the issue of identity.

[^2]: Reference to the kidnapping counts in these reasons should be understood to include their related robbery and, where applicable, firearm counts.

[^3]: Counts 20-21 on the indictment constituted an exception to the general agreement that the offences occurred.

[^4]: As this is a similar fact application directed at the cross-count application of evidence, the word "admission" should be understood to mean admission of evidence across counts.

[^5]: While there was one important point of disagreement between counsel on a legal matter pertaining to what evidence may be considered as part of the "linkage" analysis, in the end, all defence counsel came to a meeting of the minds on this point. These reasons address the position of counsel in its final form.

[^6]: Perrier had already been convicted of the final home invasion prior to his trial with Chan.

[^7]: Separate judgments were released for each appellant. The legal principles are set out in the Perrier judgment. The principles are then applied to the facts in R. v. Chan, 2004 SCC 57, [2004] 3 S.C.R. 245.

[^8]: I am not referring to cases involving allegations of participating in the activities of certain organizations, such as offences under s. 467.11 of the Criminal Code.

[^9]: The recommended jury instruction from Arp has been largely adopted in model charges: D. Watt, Watt's Manual of Criminal Jury Instructions, 2nd Ed., (Toronto: Thomson Reuters Canada Ltd., 2015), Finals 28-A, 28-B; CJC Model Jury Instructions, Model Charge 11.15. The exception rests in the CJC Model Jury Instructions, Model Charge11.16, where the instruction adds a reference to linkage evidence: "You must decide whether the Crown has proved that (NOA) likely committed these other acts. If the Crown has not proved this, you must disregard this evidence in reaching your verdict."

[^10]: R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811.

[^11]: Mr. Dave was not available to testify at trial. His evidence was received through the video statement he provided to the police shortly after the events.

[^12]: Mr. Mashood pled guilty and was deported from the country not long after his plea some years ago. The agreed statement of fact from his guilty plea was excluded from evidence at trial.