COURT FILE NO.: CRIM J (P) 697/13 DATE: 2016-04-25

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: ASSOCIATION EVIDENCE

Fairburn J.

Overview

[1] This case involved a 29-count indictment with theft, kidnapping, robbery, use of imitation firearm, and possession of property obtained by crime charges. By the end of trial, 4 accused remained the subject of prosecution. The jury returned 61 verdicts on March 18, 2016.

[2] Central to the case was an allegation that a group of men were involved in stealing tractors and trailers, sometimes containing highly valuable loads. The offences were alleged to have been committed on 11 separate dates over 5.5 months in 2009. On 7 occasions truck drivers or security guards were kidnapped and robbed. The Crown maintained that each crime, including the 7 kidnappings, was committed by a group of men and that, although the specific individuals involved in the offences changed from time-to-time, they functioned within the same general group. The Crown argued that the accused were part of the group.

[3] At the end of its case, the Crown sought a few rulings, including that the jury be permitted to consider evidence of association between the accused and others as circumstantial evidence of identity. The accused opposed the application. To keep the trial moving, I gave a brief oral ruling permitting the use of some evidence of association for a limited purpose. These are my written reasons for doing so.

General Outline of the Case

[4] The accused were charged with 29 offences alleged to have been committed on 11 separate dates. In every instance, the Crown alleged that more than one person committed the offence as part of a joint enterprise.

[5] The accused were charged in different combinations and permutations. For instance, Mr. Pathmanathan was charged with offences on 10 dates, whereas Mr. Baskaran was charged with offences on 6 dates, Mr. Kanthasamy on 5 dates, and Mr. Kanagasivam on 2 dates. With few exceptions, the accused did not challenge whether the offences occurred. The main issue in dispute between the parties was identity: who committed the crimes?

Evidence of Association Between the Accused and Others

[6] This was a largely circumstantial case. There was almost no evidence directly linking any of the accused to the crimes.

[7] To establish identity, the Crown heavily relied upon cell phone evidence and, in particular, the location of cell phones at times and locations proximate to offences. In general, the Crown focussed on phone records that showed different combinations of phones using cell towers in geographical proximity to locations related to the different offences, at times that the offences were taking place.

[8] Certain phone numbers were attributed to certain accused and former accused. In every instance where an accused was charged, there were phone records said to link his phone, by time and geography, to the alleged offence. The records were also said to establish that the phones of other accused and former accused moved in similar patterns.

[9] The jury heard direct evidence that multiple men were involved in most of the offences. For instance, each of the 7 kidnapping complainants provided evidence that two or more men were directly involved in their kidnappings and robberies. In the context of these joint enterprise crimes, the Crown focussed on patterns of phone movement coincident in time and location to the offences.

Positions of the Parties

[10] The Crown argued that the jury should be permitted to consider evidence that the accused and others were associated with each other as circumstantial evidence of identity. The Crown said that the evidence revealing associations between the accused and others, all of whose phones were in close proximity to offences when they took place, made it more likely that they were part of coordinated activity during joint enterprise offences. The Crown argued that there were 6 categories of evidence from which the jury could find that the accused and others were associated to each other:

a. phone contact between alleged co-actors; b. contact information catalogued in the phones of alleged co-actors; c. surveillance evidence connecting various co-actors together; d. viva voce evidence of alleged co-actors acknowledging various associations; e. mirrored phone movements between the phones attributed to accused; and f. information surrounding the arrests of the accused on August 28, 2009.

[11] The accused argued that the jury should not be permitted to consider the evidence linking the accused to others for any purpose. The central complaint was rooted in a concern over “guilt by association”. As Mr. Pathmanathan put it, allowing the jury to take association evidence into account would be to permit the trier of fact to import others’ bad acts to each accused.

[12] The accused argued that the fact that people who know each other might be close to where a joint enterprise offence is committed, around the same time it is committed, is irrelevant to the question of identity. Mr. Kanthasamy argued that association evidence could only be taken into account if there was evidence that already linked the accused to the crimes in question. To take the association evidence into account on the question of identity, without first finding that the accused and others were linked to the offences, was said to offend the principles set out in the group similar fact evidence context. Mr. Kanthasamy relied upon R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228 as support for this position. [1]

Ruling on Association Evidence

[13] It is a fundamental principal of criminal law that an accused cannot be found guilty simply by virtue of his association to others. Albeit in a different context, engaging principles of international criminal law and one’s ability to obtain refugee status, LeBel and Fish JJ. commented in Ezokola v. Canada (Minister of Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678, at para. 82 that “guilt by association violates the principle of individual criminal responsibility”.

[14] The relevance of evidence often arises from the context in which it is advanced: R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 31. While someone cannot be found criminally responsible simply by virtue of who they know or who they befriend, bearing in mind the context for the evidence, there are times when one’s association to another or others will be relevant to establishing a fact in issue. For instance, evidence of a prior association between an accused and deceased will sometimes have relevance to a fact in issue, such as motive or state of mind: R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at paras. 61-63; R. v. K.C., 2015 ONCA 39, at paras. 48-49.

[15] Another example of relevant association evidence arises in the drug context where the association between the accused and other drug users, traffickers, importers and the like has been considered relevant and admissible: R. v. Goldhar (1957), 117 C.C.C. 404 (Ont. C.A.), at para. 10; R. v. MacDonald (1959), 124 C.C.C. 278 (Ont. C.A.), at para. 10, aff’d , [1960] S.C.R. 186; R. v. Douglas (1977), 33 C.C.C. (2d) 395 (Ont. C.A.), at para. 29; R. v. Ejiofor (2002), 156 O.A.C. 147 (C.A.), at para. 7. The purpose of the association evidence in the drug context has to do with the fact that the drug culture is well known for a string of common participants, ranging from importers, to dealers, to users and beyond. It is for this reason that “appellate courts have for decades ruled association evidence of this type relevant and admissible”: Drug Offences in Canada, B. MacFarlane et al., eds., (Toronto: Canada Law Book, 2015) (looseleaf), at s. 5:40.120.40.100.

[16] While there is a prohibition against reasoning to guilt by association, there is no prohibition against using association evidence to prove a live issue in dispute: McWilliams’ Canadian Criminal Evidence, 5th ed., S.C. Hill et al., eds. (Toronto: Canada Law Book, 2013) (looseleaf), vol. 2, at s. 31:160.30 – Association. Like all evidence, it must be relevant to a fact in issue before it is admitted. Its admissibility and use will be governed by its relevance to the fact in issue. Determining the relevance of evidence requires the court to determine whether “as a matter of human experience and logic the existence of ‘Fact A’ makes the existence or non-existence of ‘Fact B’ more probable than it would be without the existence of ‘Fact A’”: R. v. Watson (1996), 108 C.C.C. (3d) 310 (Ont. C.A.), at para. 33.

[17] In the context of this case, the question is not about whether the evidence of association is admissible. The evidence was relevant and streamed into the trial, without objection, through various witnesses and sources. The jury heard witnesses testifying about relationships between people, saw cell phone records from which connections between people could be gleaned, heard surveillance officers testify about their observations involving meetings between people and so on. As such, the question in this case was not whether the evidence was admissible, it was what use the jury could make of the evidence.

[18] The central issue in this case was identity: were the accused principals or aiders to the crimes? Using the Watson approach to relevance, as a matter of logic and experience, did the fact that the accused and others were associated to each other make it more likely that they were involved as principals or aiders to the crimes? Measured against the factual matrix of this case, the answer to this question is yes.

[19] Coming back to the evidence pointing to identity, much of the Crown’s case focussed on what could be described as the improbability of coincidence when it came to patterns of cell phone usage. While the “improbability of coincidence” language is borrowed from the similar fact evidence context, it accurately describes the cell phone evidence in this case and its intersection with the issue of identity: R. v. Handy, 2002 SCC 56; [2002] 2 S.C.R. 908, at paras. 63, 110. In short, 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 coincidence. In the context of crimes committed by more than one person, the potential for coincidence decreases as the phones of other people known to the first person share the same or close-by towers at the same time. The cell phone evidence that reveals proximity in time and location to crimes, combined with the association between people who are connected to the phones, is some evidence of identity in the context of joint enterprise crimes.

[20] In R. v. Shilon (2006), 240 C.C.C. (3d) 401 (C.A.), at paras. 60-66, Gillese J.A. commented on the fact that the respondent was a known associate of another person involved in an offence involving 2 people as constituting some evidence upon which committal to trial could flow. See also: R. v. Braumberger, 1967 CarswellBC 143 (C.A.). While the mere association between an accused and another or an “identified perpetrator” may not be enough to permit an inference to be drawn, the circumstances here went beyond mere association: R. v. Clark (1997), 86 B.C.A.C. 72, at para. 22 (C.A.). It is the association between people whose phones all experience the same improbability of coincidence in terms of their proximity to offences committed by groups of men at times that they occur that is relevant.

[21] In the circumstances of this case, I am satisfied that the association evidence, when considered against the cell phone evidence, is relevant to the issue of identity. It is not similar fact evidence and the rules related to similar fact do not apply.

[22] As the evidence was already part of the trial, the question was what evidence the jury should be permitted to take into account when considering whether associations between people had been established. While the 6 categories of evidence sought to be relied upon by the Crown were already part of the trial record, when combined with the cell phone evidence, I found that only 4 of the categories had sufficient probative value to outweigh any prejudicial effect that could arise from permitting the jury to use the evidence of association for purposes of identity: (1) cellular phone contact between devices; (b) contact information located within a phone; (c) observations made by surveillance officers; and (d) testimony of various witnesses who gave evidence about the connection between people. These categories of evidence were capable of supporting inferences that the accused and others knew one another. They are the types of association evidence that could have been led even if the counts had been severed and proceeded upon on an individual basis.

[23] In order to minimize any potential prejudicial impact arising from the association evidence, particularly as it related to accused who had already pled guilty, the jury needed to be instructed about how to use and how not to use the evidence including that:

a. They must not reason that just because an accused may be associated with someone who has admitted to committing a crime (or who they find committed a crime), that the accused is more likely to have committed the crime. In the circumstances of this case, and bearing in mind the balance between probative value and prejudicial effect, reasoning in this way could engage improper “guilt by association”. The jury needed to receive an instruction that they must not engage in this reasoning. b. That a person cannot be held to account for the company they keep and the acquaintances they make or the people they communicate with. c. If the jury finds that there is evidence of association between people, they may only use this evidence for the limited purpose of considering the cell phone patterns. To the extent that an offence is said to be committed by a group of people in the context of a joint enterprise crime, and people who know each other are in proximity to where the crime occurs, when the crime occurs, the link between these individuals may provide some evidence of the identity of the perpetrators of the crime.

[24] The Crown argued that there were two other forms of association evidence that the jury should be able to consider. First, the Crown said that the jury should be able to reach beyond an individual count and consider all of the “mirrored phone movements” between the phones attributed to the accused and others on each of the offence dates. The Crown argued that this would demonstrate repeated patterns of movement between phones on various dates and thereby establish that the individuals are associated. Such an approach would run the risk of breaking down all boundaries between the counts and invite the jury to consider the evidence on one count in relation to another. The prejudicial impact of such an approach outweighs any probative value to be gleaned from the evidence. The Crown is precluded from doing so.

[25] The Crown also asked for an instruction that the jury be permitted to consider the circumstances surrounding the collective arrests of Mr. Kanthasamy, Mr. Baskaran and Mr. Pathmanathan on August 28, 2009, as evidence of association. They were arrested at the same time around 130 Melford Drive in Scarborough.

[26] The probative value of this evidence was outweighed by its prejudicial effect of having the jury repeatedly focussed on the circumstances surrounding their arrests. This was particularly true in the context of Mr. Baskaran who was arrested on a different side of the industrial building from where the others were located when the take-down was called. This evidence was insufficiently probative of the question of association.

Conclusion

Considered along with the cell phone patterning evidence, the evidence of association between the accused and others is relevant to the question of identity. Accompanied by careful instructions to the jury, the probative value of the evidence outweighs its prejudicial effect.

Fairburn J. Released: April 25, 2016

Footnotes

[1] The Crown also sought the admission of similar fact evidence. This is the subject of another ruling in the case.