COURT FILE NO.: 1-641541 DATE: 20161006 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – RANDEEP SANDHU, DIMITRI ALEXIOU, PHILPOS KOLLAROS, KULWANT SINGH, WASEEM IQBAL and ASHOK SHARMA Defendants

Counsel: Eric Gilman, David Morlog and Chris DeSa for the Crown (Public Prosecution Service of Canada) Melanie Webb for the Defendant, Randeep Sandhu Hussein Aly for the Defendant, Dimitri Alexiou Jill Makepeace for the Defendant, Philpos Kollaros Parm Prashad for the Defendant, Kulwant Singh Deepak Paradkar for the Defendant, Waseem Iqbal Yoni Rahamim for the Defendant, Ashok Sharma

Heard: April 4-7, 11-15, 18-21, 28, 29, May 2,3,5,6, 10-13, 16-18, 24, June 6-9

REASONS FOR JUDGMENT

J.D. McCombs, J.

Introduction

[1] A police investigation in May of 2013 led to the seizure of drugs worth millions of dollars. The investigation, dubbed "Project Odyssey", led to the seizure on May 6th and 8th, of a total of 71 kilograms of cocaine, 3 kilograms of methamphetamine, 345 grams of a restricted drug known as GHB, and a small quantity of marijuana. Nine individuals were arrested. One person, Ritesh Thakur, died before this trial began. Two others, Gursharan Singh and Chung Fai Mok, are not before the court at this trial.

[2] The remaining six accused were arraigned at this trial. Unfortunately Mr. Kulwant Singh, one of the accused before me in this judge-alone trial, passed away just a few weeks ago, after suffering a heart attack.

[3] These are my reasons for judgment with respect to the five accused persons who are now before the court. For ease of reference I will refer to them as the accused, or by their surnames. In discussing the evidence of the police witnesses, I will also use their surnames.

[4] There were three separate drug seizures. Two occurred on May 6, 2013, and the third on May 10.

[5] The first seizure occurred in downtown Toronto just after 3 p.m. on May 6, 2013. Thirty­ three kilograms of cocaine were contained in three black suitcases in a taxi in which Alexiou was a passenger. Items found on Alexiou's person led police to condominium unit 237 at the nearby King Edward Hotel and Residences, where Kollaros was arrested almost six hours later, at 20:45, when he used a key to attempt to enter the unit. Twenty-eight kilograms of cocaine, three kilograms of methamphetamine, and 345 grams of GHB were later seized from unit 237 pursuant to a search warrant.

[6] The second seizure was on May 10, 2013, when ten kilograms of cocaine was seized from the Richmond Hill residence of Chung Fai Mok.

[7] The indictment contains ten counts. It would be confusing to set out the charges against each accused at this stage of my reasons. I will deal with the charges later after I have set out the evidence in this trial. By dealing with the specific charges later, I think it will be easier to keep track of the allegations relating to each individual accused.

The Motions: Confidential Informant Privilege Motion, and Motion for a Stay of Proceedings

[8] Before turning to a discussion of the evidence and my findings of fact, I will address two preliminary issues.

I. Confidential Informant Privilege Motion

a. Mid-Trial Filing of Confidential Informant Privilege Motion

[9] After twelve days of trial, counsel for Mr. Sandhu unexpectedly filed a Notice of Motion ("the CI privilege motion") for a declaration that the confidential informant ("CI") was either a police agent or a material witness and thus not entitled to identity protection because informer privilege did not apply. The motion also sought an Order staying the proceedings against Sandhu ("the Stay motion"). The motion was supported by an affidavit from Sandhu in which he asserted the basis for his belief that the person described by police as "unknown male 1" was the confidential informant and that he was either a police agent or a material witness to which the confidential informant privilege did not attach.

[10] Although I am satisfied that Mr. Sandhu's counsel acted properly in filing the motion, it should be pointed out that its timing brought the proceedings to a standstill and dramatically impacted the time estimates for the trial.

[11] The Crown sought and was granted several days to gather information and to consider the implications of Mr. Sandhu's CI privilege motion. Eventually it was agreed that the trial could continue until the conclusion of the Crown's case and that the CI privilege motion should be dealt with before the accused would be put to their elections whether to call evidence in their own defence.

[12] When the Crown's case was closed, I turned to the CI privilege motion. I first heard and rejected a Crown motion for summary dismissal of the CI privilege motion and concluded that an in-camera hearing must be conducted.

b. The In Camera Hearing

[13] I heard evidence in camera in the absence of the accused and their counsel. The evidence heard in the in-camera proceedings has been transcribed and sealed by order of this court. A judicial summary of the in-camera proceedings was prepared and flied as exhibit "D" on the CI privilege motion. I ruled that I was satisfied that the CI was not a police agent and that therefore the police agent exception to informant privilege was not engaged.

[14] There remained the issue of whether the CI was a material witness. As noted above, Mr. Sandhu had sworn an affidavit attesting to his belief that unknown male 1 was either a police agent or a material witness. With the agreement of Crown and defence counsel, I heard evidence from Mr. Sandhu in open court, on the understanding that any evidence given on the CI privilege hearing would not be considered by me on the trial proper. Mr. Sandhu's examination was limited to matters raised in his affidavit. The Crown was permitted to examine Mr. Sandhu on the contents of his affidavit that he had sworn in support of the CI privilege motion.

c. The Ruling on the CI Privilege Motion

[15] In written reasons delivered on May 24, 2016 [1], I dismissed the CI privilege motion. I held that the confidential informant was neither a police agent nor a material witness in the sense meant in the jurisprudence concerning confidential informant privilege [2].

[16] After I dismissed the CI privilege motion, the accused were formally put to their election.

[17] Each of the accused elected to call no evidence.

II. Motion for A Stay of Proceedings

Allegations in Support of the Motion for a Stay of Proceedings

[18] On May 26, 2016, counsel for Mr. Alexiou filed a Notice of Application for a stay of proceedings under s. 24(1) of the Charter. The application is based on assertions of police misconduct, including allegations of intentional destruction or non-disclosure of police notes, and perjury.

[19] It was agreed that submissions on the stay motion and submissions on the sufficiency of evidence on the trial proper could be heard together. I directed that counsel file written factums and casebooks.

[20] The case was adjourned for argument to June 6. I heard argument over four days. Because the time estimate for this trial (three weeks) had turned out to be woefully unrealistic, and because I was seized with another complex matter requiring my full attention, judgment was reserved to today, October 6, 2016, with the agreement of all counsel and the accused.

Discussion and Conclusions Respecting the Motion for a Stay of Proceedings

[21] The CI privilege motion has already been heard and dismissed. It does not form a basis for the stay application before me.

[22] Alexiou's stay application is based on two main claims.

[23] Broadly, the assertion is that police have altered or destroyed their notes and lied in court in an attempt to mislead the court.

[24] If true, this would be a very serious matter indeed. However, I find no basis to conclude that anything improper occurred in the preparation and disclosure of police notes in this case or in the testimony of police witnesses.

[25] At trial it emerged during cross-examination of one of the surveillance officers, Sgt. Jason Benoit, that one of the 26 pages of notes he prepared had been written twice. There are two pages for the same time and circumstances. They had been included in the disclosure provided to the defence. Copies of the pages in question were tendered in evidence as ex. 36-a & 36-b. Although there are differences in the two pages, there are no significant differences and certainly nothing that would support the claim that the content was altered in order to mislead the court.

[26] I am satisfied that Benoit's explanation - human error - is the reason that he prepared two pages dealing with the same subject-matter.

[27] In order to explain why I accept Benoit's claim of human error, I will provide a brief overview of the note-taking procedures in the specific circumstances of this case.

[28] Many, if not all of the officers involved in Project Odyssey were operating under difficult and stressful conditions. TPS Major Crimes Drug Squad carries a heavy caseload and has limited resources to keep up with the workload. Project Odyssey was created on short notice. Officers from TPS Major Crimes Drug Squad had to be pulled from other projects to conduct surveillance in this case. At the time, according to Det. Sgt. Daryn Zelany, one of the Project Odyssey supervisors, the Drug Squad had about twenty ongoing major investigations.

[29] It is desirable that each officer involved in an investigation make and keep his or her notes separately, rather than placing reliance on a central note-taker. This approach reinforces trial fairness. If an officer's notes rely on a central note-taker or on other officers' notes, there is a danger that when the officer gives his or her evidence in court, the evidence will be mere hearsay [3].

[30] However, in a case like this one, where a multi-officer, covert, dynamic surveillance operation was conducted spanning many miles and many hours, it is a practical impossibility for each officer to keep notes as the surveillance unfolds.

[31] The evidence at trial showed that the surveillance in this case required focus, skill, patience, and coordination. People involved in high-level drug trafficking are known to take extreme measures to avoid detection. The surveillance team was conducting a well-organized, coordinated operation that ultimately led to the seizure of millions of dollars' worth of cocaine and other drugs. The team's focus had to be squarely on the activities of the targets and the movement of the drugs. Careful note-taking by the surveillance officers in these circumstances was neither practical nor appropriate.

[32] In this case, there were twelve officers involved in the May 6 surveillance. Each officer was in a separate vehicle. Surveillance was, in the words of Det. Sgt. Zelany, "very fluid and very dynamic". To avoid detection, the officers took turns having "eyes" on the targets. They were all in radio contact. The officer with eyes on the target would "call out" the sighting location and actions of the target vehicle or individual. When the targets split up, the team leader would radio instructions about whom to follow and whom to "let run" (i.e., permitted to drive away without being followed by police). Det. Sgt. Zelany testified that his priority was to "stay with the bags".

[33] Sgt. Chad Reid was tasked as the central note-taker. He had the difficult responsibility of keeping track of the activity and observations. He did so by keeping "live scratch notes" that to the best of his ability kept track of the call-outs and times, agent numbers, and "various pieces of information". Often the callouts took place when Reid was in motion. Obviously these factors were not conducive to absolute accuracy.

[34] The procedure in a case like this one is that after the surveillance is complete, the surveillance officers gather for a debriefing session in which they review their notes with the central note-taker. The central note-taker reads from his or her scratch notes and the spin team officers speak up if there are any important inaccuracies.

[35] Once the debriefing is completed, the central note-taker has the responsibility to prepare and sign a typewritten document known as a "Surveillance Report". The report is posted at the major crimes drug squad office and the officers are expected to examine it and "sign off” on it. In doing so, the officers acknowledge that the report is a true and accurate account of each officer's observations and actions at the relevant time.

[36] Reid completed and signed off on the surveillance report on May 13. All but one of the officers, who was off-duty at the time, signed off on the report on May 17.

[37] Benoit prepared his notes after the surveillance report had been completed. The uncontradicted evidence of officer Benoit was that it is common practice to prepare notes after the central notes have been completed. He testified that he would not be able to write his notes without the guidance of the central notes. Benoit's notes are 26 pages in length and were contained in a binder. He estimated that it would take about two uninterrupted hours to prepare the notes. But in the Major Crimes Drug Squad office, there are always interruptions and other duties to hinder focusing on the preparation of the report.

[38] With respect to the duplicate pages in exhibits 36 A & B, Benoit testified that he may have completed that page, then was distracted with interruptions or other duties, and came back to his notes later, forgetting that he had already written that page.

[39] If Benoit had intended to create a separate set of notes or to replace the original page with another page with the intention of misleading the court, I would have expected there to be significant material differences in the two pages. But for all intents and purposes, the pages are very similar, if not identical. Furthermore, any substantial changes in the notes would require complicity on the part of the other officers. There is no basis for any such conclusion.

[40] In all the circumstances, I accept the evidence of officer Benoit. I find the duplicate pages to be the result of human error.

[41] The second basis for the stay application relates to the evidence of Sgt. Reid, the central note-taker. He made minor changes to his scratch notes. He originally testified that he made the changes during the debriefing session in response to information provided by officers in the surveillance team. Reid's evidence was not completed the first day, and when he returned, he corrected himself and testified that upon reflection, he had realized that he had made the minor corrections himself.

[42] Although Reid's changed testimony is concerning, I accept his explanation that he was caught off guard during cross-examination and it was only upon reflection that he realized that he had made a mistake. He came to court, acknowledged his error, and corrected his earlier testimony.

[43] Importantly, even if I were to reject Reid's explanation, changes of the sort he made could not support a finding that they were made with the intent to mislead anyone. Having heard all the evidence, I have no hesitation in concluding that Sgt. Reid's detailed Surveillance Report tendered as exhibit 39 accurately reflects the evidence of the other officers and is consistent with the dozens of photographs and several videos that have been tendered in evidence. I find that Sgt. Reid's Surveillance Report is accurate in every important respect.

[44] In light of my conclusions, it cannot be said that trial fairness has been compromised. There is no basis to grant the application for a stay of proceedings. The application is dismissed.

[45] I turn now to consideration of the merits of the case for the Crown.

Discussion of the Evidence and Conclusions of Fact

[46] The impetus for the investigation was information provided by a confidential informant ("CI") to a police "handler" attached to Toronto Police Intelligence Services. The information provided by the CI was passed on to Toronto Police Service Major Drug Squad officers, and led to the formation, on or before May 2, 2013, of a project they dubbed Project Odyssey. The identity of the CI was not disclosed to anyone in the Major Crimes Drug Squad.

[47] On May 6 and 8, 2013, a Project Odyssey undercover team was detailed to conduct surveillance of various individuals. Their surveillance took them from Toronto to the Canada/U.S. border at Sarnia and back to Toronto.

[48] The movements of the twelve-member undercover surveillance team and the individuals under surveillance were dynamic and fluid.

[49] I will first set out the chronology of the police observations, and the arrests and seizures of the drugs. In doing so, I will restrict myself to a discussion of the matters that I consider relevant to the issues I am required to decide.

[50] It would not be helpful to attempt to describe all of the observations made by the surveillance teams. With the number of individuals observed by police and the variety of vehicles used by them, the evidence was often confusing. However, once all the evidence was heard, it became clear that much of it was not in dispute.

[51] As I will discuss later, the live issues for me to determine have to do with the question of whether the evidence of the activities of the accused before the court displaces the presumption of innocence with proof of their guilt beyond a reasonable doubt. Core issues include whether the circumstantial evidence proves that the accused were in possession of the drugs and whether they had the requisite knowledge and intent.

[52] As I indicated earlier, I will use surnames in this discussion. Two individuals with the same surname figure in the investigation, Kulwant Singh (now deceased), and Gursharan Singh, whose charges have been disposed of. To avoid confusion, I will refer to them as K. Singh and G. Singh.

[53] There were a total of eight vehicles used by individuals associated with the offences. During the trial, the vehicles were referred to by either their make or type, and the last three digits of the vehicle's licence plate. I will refer to them when necessary in these reasons, and for convenience of reference, I set them out here.

(i) The May 6 Vehicles

[54] For May 6, the vehicles of particular interest were:

• Tractor-trailer truck ("Truck 4 PL")
• Toyota Corolla ("Corolla 832")
• Jeep Cherokee ("Jeep 932")
• Jeep Cherokee ("Jeep 576")
• BMW ("BMW 197")
• Blue & White Taxi ("Taxi 098")

(ii) The May 8 Vehicles

[55] For May 8, the vehicles of particular interest were:

• Tractor-trailer truck ("Truck 4 PL") (Note: same vehicle also observed on May 6)
• Jeep Cherokee ("Cherokee 576") (Note: same vehicle also observed on May 6)
• Chrysler-model 300 ("Chrysler 024") (observed only on May 8)
• Hyundai Accent ("Accent 805") (May 8 only)

[56] I turn now to a summary of the relevant evidence and my findings of fact concerning the activities of the accused. I will begin by briefly setting out some relevant events that occurred before May 6.

(a) May 2-Evidence of Association Between Sandhu and Iqbal

[57] At 9:55, Iqbal picked up Sandhu at his residence at 7133 Saint Barbara Blvd. in Mississauga. Iqbal was driving an Odyssey van registered to a family member. Iqbal and Sandhu spent the next five hours together. They first went to a truck yard where they inspected a large white tractor-trailer truck, licence plate number unknown. Sandhu was given some papers from the truck and they drove away. They went to Iqbal's office at 7033 Telford Way, Mississauga, unit 1 for about 40 minutes, then after stopping at various places, returned to the truck yard. At 15:35, they arrived at the Malton Masjid. Iqbal entered the Masjid and Sandhu drove back to unit 1 at 7033 Telford Dr. About 45 minutes later, he returned to the Masjid, picked up Iqbal and returned to 7033 Telford Dr. unit 1.

(b) May 3-Evidence of Association Between Sandhu, Iqbal and Sharma

[58] At 12:14, Sandhu left his residence driving a silver Mercedes with license plate BJDN 838 (this car is registered to Iqbal). He drove to the business unit at 7033 Telford Way, unit 1. Iqbal's Odyssey van was parked out front of unit 1.

[59] A few minutes later, Sandhu exited unit 1 with Sharma. They stood outside the unit in conversation. Shortly afterwards, Iqbal exited the front door of unit 1 and joined them. After a short conversation Iqbal boarded the silver Mercedes and parked it in a garage to the side of unit 1. Iqbal came back out and the three men boarded his Odyssey van.

[60] Between 12:44 and 13:18, Iqbal, Sandhu, and Sharma remained together, driving the van and stopping at various business locations before returning back to unit 1.

[61] At 13:24, Sandhu and Sharma exited the front door of unit 1 and boarded Sharma's Chrysler 300 with license plate BMDZ 024 (Chrysler 024). Sharma was the driver and Sandhu was in the passenger seat.

[62] Sandhu and Sharma drove to a financial services business located at 5799 Yonge Street, unit 410. Sandhu entered the business and exited shortly afterwards carrying a piece of paper in his hand. Both men returned to unit 1 (7033 Telford Way) and entered the building.

(c) May 4- Sandhu Rents the Corolla 832

[63] I find as a fact that Sandhu rented the Corolla 832 on May 4. This vehicle was used by Sandhu and a person identified as unknown male 1 for the trip on May 6 to Sarnia and back. The car was returned at about 4:00 p.m. on May 6. My finding is based on the testimony of Brian Khatri, the manager of the rental car outlet, and on the Rental Agreement marked ex. 41d received as a business record pursuant to s. 30 of the Canada Evidence Act.

[64] Sandhu may or may not have been with someone else when he rented the car.

(d) May 6 - Events Leading to the Initial Seizure of 33 Kilograms of Cocaine and the Subsequent Seizure of 28 Kilograms of Cocaine, 3 Kilograms of Crystal Methamphetamine, and 345 Grams of GHB

i. Surveillance from Toronto to Sarnia and Back

[65] The sequence of observations on May 6 from Toronto to Sarnia and back is not seriously contested by counsel for the accused. Instead, the heart of the defence position for each accused is that the evidence is not capable of displacing the presumption of innocence with proof beyond a reasonable doubt. Put differently, although the evidence as it relates to each of the accused is different, they each share a common position: that the evidence does not establish either possession or the requisite knowledge that the goods being transported were cocaine.

[66] I am satisfied that the May 6 chronology provided in the Crown factum is accurate in all material respects. I have borrowed heavily from it in the following description of the surveillance from Sandhu's home at 4:05 a.m. until the 33 kilos of cocaine in three black suitcases were placed in the trunk of a taxi in Mississauga.

[67] At 2:53 a.m. undercover police set up near Sandhu's home at 7133 Saint Barbara Blvd., Mississauga. He left his home at 4:05 in the rented Corolla 832. Police followed him, lost him at 4:22 and relocated him again at 4:31. At 4:43 he stopped at a Tim Horton's. Police saw an unidentified male described as brown, wearing a white baseball hat, sitting in the front passenger seat. This individual was described as unknown male #1 ("ukm1"), and is the same individual referred to by Sandhu in his affidavit in support of the CI privilege motion brought on his behalf.

[68] At 4:46, a second unidentified male, believed to be Thakur, got in the back seat of the Corolla 832.

[69] From 4:52 to 4:59, the Corolla 832 changed location in the parking lot; Thakur exited the vehicle, had a conversation through its front passenger window, and then returned to the rear passenger seat.

[70] At 5:03, Sandhu drove the car out of the Tim Horton's parking lot to a gas station at Britannia Road West and Mavis Road. At 5:07, ukm1 exited the Corolla 832, entered a phone booth, and made a phone call. At 5:10, ukm1 exited the phone booth and re-boarded the passenger seat of the Corolla 832.

[71] From 5:13 to 5:24, the Corolla 832 entered the parking lot of the Tim Horton's at the northeast comer of Silken Laumann Way and Britannia Road West. The Corolla 832 circled within the parking lot then took a direct route past Iqbal's residence on Lismic Blvd. before returning to the same Tim Horton's parking lot.

[72] At 5:24, the Corolla 832 left the Tim Horton's lot, took the same route to Lismic Blvd, and stopped out front of Iqbal's home at 5372 Lismic Blvd. At 5:28, the lights of the Corolla 832 went off and the car remained parked out front for ten minutes.

[73] At 5:38, Sandhu drove the Corolla 832 away and it was misplaced in the area of Britannia Road West and Lattimore Drive. At 5:46, the police located the Corolla 832 at an Esso gas station at Bancroft Drive and Mavis Road. Sandhu was pumping gas and ukml was seen entering and exiting the cashier's kiosk. Thakur was no longer in the Corolla 832. At 5:48, both Sandhu and ukml boarded the Corolla 832 and drove away; Sandhu was driving. The Corolla 832 travelled west on Highway 401 and north on Highway 6 (Brock Road).

[74] At around 6:10, on the east side of Highway 6 (Brock Road), just north of Highway 401, the Corolla 832 entered the parking lot of a Petro Canada gas station and parked near some phone booths. Sandhu and ukml were the sole occupants in the Corolla 832. At 6:14, ukml exited the Corolla 832 and entered a phone booth. At 6:21, ukml exited the phone booth, re­boarded the front passenger seat of the Corolla 832. The vehicle remained idle. At 6:26, ukml again exited the Corolla 832 and entered the phone booth. At 6:28, ukml exited the phone booth, re-boarded the front passenger seat of the Corolla 832. The Corolla 832 then left the gas station and continued along Highway 401 towards Sarnia.

[75] At 7:20, the Corolla 832 stopped on the shoulder of the 401 near Dorchester Road. Sandhu and ukml switched seats. The Corolla 832 continued travelling on the 401 and arrived at the city of Sarnia at approximately 8:26. They drove to the Holiday Inn located at 1498 Venetian Blvd. and stopped in front of the main entrance. The Holiday Inn faces the truck yard of Canada Customs where commercial vehicles are inspected. Both remained in the car. At 8:28, the Corolla 832 left the Holiday Inn property and travelled to the Waterfront Park.

[76] At 8:33, the Corolla 832 parked in the parking lot beneath the Bluewater Bridge that spans the US-Canada border. Ukml exited the front passenger seat of the Corolla 832. At 8:39, ukml re-boarded the front passenger seat of the Corolla 832.

[77] At 9:04, the Corolla 832 travelled to the nearby Sarnia OLG Casino. The vehicle remained parked in the casino parking lot and both individuals remained in the Corolla 832 for approximately 42 minutes.

[78] At 10:22, the Corolla 832 began travelling back to Toronto. At 11:36, the Corolla 832 pulled into the Woodstock On Route rest stop. Sandhu exited the driver's seat and entered the building, while ukml remained outside the Corolla 832. At 11:51, Sandhu boarded the front passenger seat and ukml boarded the driver seat. The Corolla 832 travelled on Highway 401 and arrived at a Walmart in Milton (1200 Steeles Avenue West) at 12:46.

ii. Purchase of Three Black Suitcases at Milton Walmart

[79] At 12:48, Sandhu and ukml exited the Corolla 832 and entered the Walmart. At 13:01, both Sandhu and ukml exited the Walmart - each was carrying one or two identical black "carry-on" sized suitcases-three in total. The three suitcases appeared to be empty. Sandhu and ukml placed the suitcases into the rear of the Corolla 832. Sandhu boarded the front passenger seat and ukml boarded the driver's seat. The Corolla 832 left the lot and was followed.

[80] The Corolla 832 was followed to Bronte Tire (8420 Regional Road 25, Milton). At 13:08, the Corolla parked near the truck bays. The driver of the tractor trailer (Truck 4 PL) approached the driver’s side of the Corolla 832. At 13:11, after a conversation, the Corolla 832 travelled to the west end of Bronte Tire. At 13:15, the Corolla 832 and Truck 4 PL left Bronte Tire and travelled in tandem.

iii. Surveillance Team Forms the Belief that Drugs Had Been Transferred from Truck 4 PL to the Three Black Suitcases and Placed into the Trunk of the Corolla 832

[81] At 13:40, the Truck 4 PL pulled onto the shoulder of Atlantic Drive at Shawson Drive just past a business called Ultramar Pipeline. The Corolla 832 pulled into the entrance of a parking lot adjacent to the truck. Benoit testified that from his vantage point, he could see the driver's side of Truck 4 PL. He testified that under the trailer, he saw the legs of someone on the passenger side of the trailer walking toward the cab. Shortly afterwards, he saw the legs walking back, and also saw part of a black suitcase that was visible below the trailer as it was being carried.

[82] There is nothing in Benoit's notes about this observation and nothing about this observation in the surveillance notes prepared by Reid. Other than the testimony of Benoit, there is no further evidence that anyone saw the transfer of the drugs from the Truck 4 PL to the suitcases, and then into the Corolla 832.

[83] In the circumstances, I do not rely on Benoit's testimony about seeing someone's legs. However, as will be apparent shortly, it is clear that thirty-three one-kilogram bricks of cocaine were indeed placed in the three black bags that were purchased at the Milton Walmart; and it is also clear that the three black bags containing the drugs were placed into the trunk of the Corolla 832.

[84] At 13:43, the Corolla 832 travelled southbound on Atlantic Drive. The Truck 4 PL remained parked on the shoulder.

[85] The surveillance crew was directed to follow the Corolla 832, because it was believed that the drugs were in its trunk in the three black suitcases purchased at the Milton Walmart. The Truck 4 PL was apparently "let run". There is no evidence of any steps taken to identify the driver of Truck 4 PL on May 6, and K. Singh is not charged in relation to the events of May 6.

iv. Iqbal and Thakur Meet with Sandhu in Canadian Tire at Heartland Town Centre in Mississauga

[86] At 13:54, the Corolla 832 drove to the Walmart parking lot at 800 Matheson Blvd. West, Mississauga. At 13:56, Sandhu exited the Corolla 832 and entered the adjacent Canadian Tire. At this time, ukml drove the Corolla 832 across Plymouth Drive to the parking lot of the Walmart (at 800 Matheson Blvd. West) and remained in the vehicle. Both lots are part of the Heartland Town Centre shopping complex.

[87] At 14:03, Sandhu exited the Canadian Tire store in conversation with Iqbal and Thakur. Thakur was wearing a floral print shirt. Iqbal was dressed in a dark shirt. Sandhu was wearing a red shirt. Iqbal, Sandhu and Thakur boarded a Black Jeep Cherokee (Jeep 932). Thakur was the driver.

v. With Iqbal and Thakur Present, Sandhu Transfers the Three Black Suitcases from the Corolla 832 to the Jeep 932

[88] Thakur drove the Jeep 932 over to the Walmart parking lot and parked behind the Corolla 832 so that the two vehicles were parked "trunk to trunk."

[89] At 14:06, ukm1 remained in the driver's seat of the Corolla 832 while Thakur, Iqbal, and Sandhu exited the Jeep and stood between the two vehicles. The trunks of both vehicles were opened. Iqbal looked and reached into the trunk of the Corolla 832. Sandhu moved the black suitcases (which now appeared weighted) from the Corolla 832 to the rear hatch of the Jeep 932.

[90] At 14:07, while Iqbal, Sandhu, and Thakur remained outside the Jeep 932 and the Corolla 832, Sandhu handed Thakur a cell phone. Thakur looked at it. Iqbal and Thakur were leaning into the passenger side of the Corolla 832, apparently in conversation with ukm1, who was in the driver's seat. Iqbal boarded the front passenger seat of the Corolla 832, reached through the still open door and shook Thakur's hand. Sandhu then boarded the rear passenger side of the Corolla 832. The Corolla 832, containing Iqbal, Sandhu, and the driver, ukm1, drove away. Thakur remained in the parking lot.

[91] The police surveillance team was directed to remain with the Jeep 932.

[92] The Corolla 832 travelled to the Future Shop parking lot of the same complex.

[93] At 14:08, Thakur walked towards the main entrance of the Walmart and stood outside the entrance. He appeared to be looking around and also watching the Jeep 932 that contained the three suitcases.

vi. Arrival of BMW 197 containing G. Singh and Alexiou, driven by Unknown Male 4

[94] At 14:19, a silver BMW with license plate BDEZ 197 (BMW 197) pulled up and parked beside the Jeep 932. While the driver of the BMW remained unidentified (ukm4), the two passengers in the car were later identified as Gursharan Singh (G. Singh) and Dimitri Alexiou (Alexiou).

vii. Alexiou and G. Singh Switch Vehicles-They Enter Jeep 932 Containing the Three Suitcases - Thakur Enters the BMW 197 Driven by UK4

[95] Alexiou and G. Singh got out of the BMW 197 and walked over to the Jeep 932. Alexiou opened the rear hatch and looked into the trunk area before boarding the front passenger seat. G. Singh got into the driver's seat of Jeep 932 while Thakur got into the front passenger seat of the BMW.

viii. Iqbal and Singh Remain in the Area

[96] During this time, at the north end of the Walmart parking lot, Iqbal parked his Jeep 576 next to the Corolla 832.

[97] At 14:24, both the BMW 197 with Thakur as passenger and ukm 4 as driver, and the Jeep 932 containing the three black suitcases, now being driven by G. Singh with Alexiou as passenger, exited the Walmart parking lot and drove to the Pho Mi 99 restaurant located within the same complex at 5955 Latimer Road, Mississauga.

[98] At 14:27, Alexiou, Thakur, G. Singh, and ukm4 (the BMW driver) exited the vehicles and entered the restaurant.

[99] Shortly thereafter Alexiou exited the restaurant, followed by G. Singh and Thakur. G. Singh had a short conversation with Alexiou. Alexiou then followed the two men back into the restaurant, while continuously looking around into the parking lot.

ix. Alexiou Transfers the Three Suitcases from the Jeep 932 to the Taxi 098

[100] At 14:35, all four men came out of the restaurant. Alexiou boarded the Jeep 932 with G. Singh and Thakur. (Ukm4 boarded the BMW197, drove away, and was not followed by police.) G. Singh drove the Jeep 932 back towards the Walmart parking lot. The Jeep circled the lot before pulling up next to a Blue and White taxi (taxi 098), parked in the lot by the Bank of Montreal.

[101] Alexiou got out of the rear passenger seat of the Jeep 932. The taxi driver got out of the driver's seat of his taxi, walked towards the back of his taxi, and opened the hatch. Either G. Singh or Alexiou opened the hatch of the Jeep. Alexiou removed two weighted black suitcases, carried them over to the taxi and placed them in the rear. He then walked back to the hatch of the Jeep and removed the third black suitcase. Alexiou placed it on the ground, closed the rear hatch of the Jeep, then moved the weighted suitcase over to the taxi, and placed it in the rear of the taxi with the other two suitcases. The taxi driver closed the hatch door and returned to the driver's seat of the taxi. Alexiou got into the passenger seat of the taxi 098.

[102] At that point, after over twelve hours of surveillance, investigators believed that Taxi 098 contained the smuggled drugs and one of the traffickers.

[103] The taxi 098, containing Alexiou and the three black suitcases, followed by the Jeep 932 containing G. Singh and Thakur, headed in tandem from the Heartland Centre Mall in Mississauga. The surveillance team followed the vehicles along the Gardiner expressway toward downtown Toronto. As they approached the downtown core, they split up, with the Jeep 932 exiting the Gardiner at the Spadina exit, while the Taxi 098 continued and turned off at next exit, the York/Yonge/Bay exit.

x. The "Take-downs" and the Seizure of 33 Kilograms of Cocaine

[104] The surveillance team was ordered to split, and to "take down" both vehicles. Five officers followed one vehicle, and five followed the other.

[105] Police carried out virtually simultaneous gunpoint takedowns of both vehicles, shortly after 3 p.m.

a. The Take-down on Lower Spadina and the Arrests of Thakur and G. Singh

[106] Police boxed in the Jeep 932 on Lower Spadina Ave. They arrested the two occupants, Ritesh Thakur (who died prior to trial) and Gursharan Singh (who is not before the court at this trial).

b. The Bay Street Take-down of Taxi 098, the Arrest of Alexiou, and the Seizure of 33 Kilograms of Cocaine Contained in the Three Black Suitcases Purchased at the Milton Walmart

[107] Police boxed in Taxi 098 near the intersection of Bay and Harbour Streets, close to the exit off the Gardiner Expressway. Police arrested the passenger, Alexiou. Police seized three suitcases from the trunk. Each suitcase contained 11 kilograms of cocaine packaged in one­ kilogram bricks. The taxi driver told police that Alexiou had given his destination as the area of the intersection of King and Yonge Streets.

xi. Unit 437 of the King Edward Hotel and Residences-Arrest of Kollaros and Discovery of More Drugs

[108] When Alexiou was arrested in Taxi 098 at about 3:00 p.m. (15:00 hrs.) on May 6, he was in possession of a key and an electronic access swipe card. The key had an "Omnia" stamp, and police thought it looked like a hotel key. Close to King and Yonge is the "King Edward Hotel and Residences" at 37 King St. E. At 17:30 Medeiros and Teixeira went to the King Edward. Police learned from someone in security that the Omnia key was for a unit in the Residences, and that the swipe card was associated with unit 437.

[109] In May of 2013, the former King Edward Hotel was in the midst of converting part of the property into condominium residences. The residences had been sold and furnished, and possession taken, but final closing had not yet been completed and work was still being done. The hallways, for example, were not yet carpeted in the condominium area (see exhibit 25), and workers were still periodically entering the units to complete deficiency work.

[110] Exhibits 15 a & b show the layout of the fourth floor. Exhibit 13 shows the layout of unit 437. It is a 670 square foot one-bedroom apartment with one bathroom and an open concept living room and kitchen. The unit has two closets, one in the bedroom and one by the entrance to the bathroom.

[111] Medeiros and Teixeira took the public elevator to the fourth floor of the Residences wing. Using the swipe card seized from Alexiou, they accessed the secure hallway and went to the door of unit 437. They could hear voices from inside the unit and believed people may be inside. They remained outside the unit until officers Zelany, Bachus, Miranda and Reid arrived at 18:08. Believing that people may be inside the unit and that evidence may be destroyed, the six officers entered and cleared the unit. The television was on, but there was no-one inside. Miranda, Medeiros, Teixeira and Reid remained there to await a search warrant. Reid left at 20:35 to get coffee. At 20:41, Teixeira was outside the unit investigating the posted tenant list beside the fourth floor elevators.

[112] At 20:45 Medeiros and Miranda heard a key in the lock of the door to unit 437. They thought it was Reid and Teixeira returning with coffee, but it was not. It was Philpos Kollaros. He made eye contact with Miranda and looked shocked. He turned back down the hall and was immediately arrested. He was wearing shorts, unlaced running shoes and a t-shirt. He had a B.C. driver's licence but no wallet. He was searched incident to his arrest, and police seized $1870 in cash. He did not have a swipe card, and the key to unit 437 was still in the lock.

[113] Police had not heard of Kollaros before his arrest. There is no evidence of any prior association between Kollaros and Alexiou, or with Kollaros and any of the other persons of interest in the investigation.

[114] Unit 437 was later searched under the authority of a search warrant. There were two locked suitcases in the bedroom closet. The larger one had a distinctive wide red stripe. It contained 19 one-kilogram bricks of cocaine. A photograph of the large suitcase with the distinctive red stripe was introduced as exhibit 4, tab 5, photo 101. The smaller one contained 9 one-kilogram bricks of cocaine and two Tupperware containers containing three kilograms of crystal methamphetamine. There were three open, empty suitcases on the floor in the bedroom. On the top shelf above the locked suitcases in the closet, police found and seized a book that appeared to be a drug-related debt list. From the kitchen refrigerator, police seized a bottle containing a clear liquid. The liquid turned out to be 345 grams of GHB. Police also found three digital scales inside closed kitchen drawers.

[115] Police seized two notices of entry that had been on a table in the living room. Both were notices that workers had entered to complete work. One referred to unit 437 and was dated May 2, 2013. The other was dated May 6 and referred to unit 427. A search of unit 427 under authority of a search warrant yielded nothing of interest. King Edward management later confirmed that there was no apparent relationship between the two units.

[116] It seems likely that the notice of entry dated May 6 had mistakenly referred to unit 427, when it should have referred to unit 437. This means that workers were likely in unit 437 on May 6 and earlier on May 2.

[117] Police seized a cellphone on a table in the living room. The bed was unmade and appeared to have been slept in, but the bedclothes were not seized. There was a small amount of clothing in the unit, but it was not seized or examined. A toothbrush in the bathroom was not seized.

[118] The King Edward Hotel and Residences is a high-end property. It is a secure facility with surveillance video cameras. Surveillance footage was potentially a source of valuable evidence. It may well have captured someone bringing the suitcases into the hotel, especially given that one of the suitcases had a distinctive broad red stripe. The footage may well have identified the date and time the suitcases were brought to the hotel, and may well have shed light on the identity of the person or persons carrying them.

[119] Reid was sent by Teixeira to go to the King Edward and obtain the surveillance video for May 6 only. His understanding was that Kollaros was seen on video around the time he was arrested. Significantly, Teixeira did not instruct Reid to look for video of the preceding days or to inquire whether there was video showing someone carrying the distinctive suitcase with the broad red stripe.

[120] Reid attended on May 13, a week after Kollaros' arrest. He spoke briefly to "security" but didn't make a note of the name of the person or the time of the inquiry. He was told it would take "a couple of days" to obtain the security video, and he told the person in security that an officer would pick it up. He did not inquire where the cameras were installed. He apparently did not give any clear direction to security about what police wanted to obtain. Reid simply asked the person in security to provide "whatever they have". Reid reported the outcome of the meeting to Teixeira, but was never tasked to return to pick up the requested surveillance video.

[121] No police officer ever returned to obtain the security video. This was either due to oversight or laxity on the part of investigators.

xii. The "Owner" of Unit 437 and the Rental Arrangement with Kollaros and His Wife

[122] The evidence of Minhe Choi was received in the form of an Agreed Statement of Fact (exhibit 37). She and her husband owned three condominiums in Toronto as investment properties. They had also agreed to purchase unit 437 of the King Edward Residences. It was in the process of being renovated by the developer. Although the unit was not completed, they had taken possession in either November or December of 2012. Possession triggered the obligation to begin monthly payment of fees associated with the unit. The purchase was to close in the summer of 2013. Choi was not legally permitted to rent the unit in the interim.

a) "Sal"

[123] One of their other properties, a condominium at the Four Seasons Residences, was also vacant and so Choi turned to "Sal", described by her in the Agreed Statement of Fact as a local developer and real estate agent with whom she had a business relationship. "Sal" was identified only by his first name. He did not give evidence at trial. Nothing further is known about Sal.

[124] Choi's evidence in the Agreed Statement of Fact is that she told Sal that she was desperate to generate revenue from her vacant property and asked Sal to help her find tenants, even on a short-term basis. Sal later told her he might have tenants for her. A few weeks after that, Sal told Choi that the potential tenants were business people interested in a short-term rental arrangement. Sal told Choi they were in the restaurant business and had bought a condo in Toronto that was not yet ready for occupancy. They were looking to open a restaurant in Toronto and possibly relocating. Ms. Choi appreciated that Kollaros and his wife would not occupy the unit on a full-time basis.

[125] Sal introduced Choi to Kollaros and his wife, Sabrahine (Sabrina) Madhani in January or February, 2013. She first showed them the more expensive unit at the Four Seasons. Kollaros was with his wife Sabrina and their baby. Sabrina said it was too expensive. Ms. Choi later decided to offer them short-term rental of the furnished unit 437 at the King Edward Residences, although she was not legally permitted to rent it.

[126] They settled on $5000 for the three and one-half month period from early March to June 15th. It was a good deal for the tenants but Choi needed the income. There was no written rental agreement for unit 437. Sal gave her an initial $2000 deposit in cash; and around that time, she provided the first key and swipe card. It is not clear from the evidence whether she gave the key and swipe card to Sal or to Kollaros or his wife. Choi kept the second key and swipe card so that she could continue to decorate and furnish the unit.

b) "Toronto Man"

[127] The second cash payment of $3000 was made around the beginning of the rental period by a man who Choi understood to live in the Toronto area and was either a cousin or friend of Kollaros's wife Sabrina. This individual was referred to as "Toronto man". She provided Toronto man with a second key and swipe card. It was a condition of the agreement that one key and swipe card remain with someone in Toronto, because Kollaros and his wife would not be there regularly and Choi wanted to be able to enter the unit if necessary since there were still repairs to be done.

[128] Toronto man did not testify at trial and nothing more is known about him or what he did with the key and swipe card that allowed for access to unit 437, or whether or how often he entered the unit himself.

[129] At some point, the property manager learned of the occupancy of unit 437 and asked Choi about it. Choi, knowing that she was not permitted to rent it, lied and said "it was just a friend". Indeed, Choi had asked Kollaros and his wife that if they were ever questioned, to tell management that they were her friends.

[130] Choi testified that she gained access to the unit on at least two occasions to continue with work on the interior. The first time, she used her own key and swipe card, as she had not yet given it to Toronto man. The second time was in early to mid-April, after she had given the key and swipe card to Toronto man, but she did not gain access through Toronto man. Kollaros and his wife were in town, and they facilitated access to Choi and her husband, and a tradesperson. Kollaros and his wife left them alone in the unit. Choi found nothing suspicious about the unit, she noted no extra luggage, and she had no concerns about Kollaros and his wife as tenants.

[131] Choi testified that she did not know when Kollaros and/or his wife utilized the unit, other than the one occasion in April when they facilitated her access. She testified that Kollaros and his wife never moved in, in the sense of installing their personal items, like clothing or furniture.

[132] Choi was shocked to learn of the drug seizure and arrest of Kollaros, as she never suspected that anything illegal was going on.

(e) May 8, 2013-Allegation of Cocaine Importation and Trafficking

[133] On May 8, police observed Truck 4 PL (the same large white tractor-trailer that carried drugs across the border on May 6) cross the border bridge in Sarnia. The Truck 4 PL drove to Toronto and at 15:18, it stopped at the side of Bellfield Road in front of the Bayer Inc. parking lot. The driver (alleged to be K. Singh) got out, went to the front of the truck, opened the hood and began looking into the engine area.

[134] Meanwhile, Sandhu and Sharma were parked in the black Chrysler 024 in the Bayer parking lot. Iqbal arrived in a separate car, Jeep Cherokee 576. Sandhu entered the truck cab. Goulah saw Sandhu retrieve a weighted bag from the Truck 4 PL. From his vantage point, 75 feet away, he thought the bag was black. He photographed Sandhu both outside and inside the cab of Truck 4 PL, using a camera with a telephoto lens. The photographs are contained in a binder of photos entered as exhibit 5. Sandhu then got back into the passenger seat of the Chrysler 024 with Sharma at the wheel and they exited the Bayer lot and drove in tandem, with Iqbal following in tandem in the Cherokee 576.

[135] The two vehicles then drove to the Heartland Town Centre, and parked beside each other at 15:52 (see exhibit 23, video taken by Sgt. Miranda). Sandhu, in the passenger seat of the Chrysler 024, spoke to Iqbal in the Cherokee 576. Two minutes later, both vehicles drove in tandem a short distance to a parking lot outside the Tandoori Bazaar restaurant at 1010 Terry Fox Way. Sharma parked the Chrysler 024, Sandhu and Sharma got out and entered the Cherokee 576 driven by Iqbal. At 16:02 Iqbal, with Sandhu and Sharma, drove to his nearby home, and Sharma drove the jeep back with Sandhu as the passenger, arriving at 16:06. The Chrysler 024 was unattended for no more than four minutes.

[136] Sandhu and Sharma entered the Tandoori restaurant. The restaurant has large windows and I find that the Chrysler 024 was parked close enough that they could observe the Chrysler 024 from the restaurant (see photos ex. 5 taken by D/C Goulah and video ex. 9 taken by D/C Medeiros).

[137] Sandhu and Sharma came out of the restaurant together after about 20 minutes, at around 16:24. They walked directly to the Chrysler 024, retrieved some bottled water from the passenger side of the car, and both can be seen scanning the area. At 00:41 seconds on the exhibit 9 video, which begins as they leave the restaurant, Sharma, using a key, opens the trunk of the Chrysler 024. At this point, both Sharma and Sandhu are standing at the back of the car. Sharma briefly leans forward looking into the trunk, and then straightens up. At 00:45 Sandhu is seen leaning into the trunk with Sharma standing beside him. For the next 15 seconds, Sandhu, using both hands, is obviously vigorously opening and examining the contents of something in the trunk. Sharma is seen looking into the trunk as Sandhu examines the contents.

[138] I have viewed the exhibit 9 video many times, and in my opinion, the only reasonable inference to be drawn from it is that it captures Sandhu as he opens the bag that he had taken from Truck 4 PL and examines its contents while Sharma looks on.

[139] The exhibit 9 video shows that when Sharma completed his examination of the bag and its contents, Sandhu closes the trunk. Sandhu and Sharma then waited in the parking lot near the Chrysler 024 for about twenty minutes.

[140] At 16:45, Sharma and Sandhu got into the Chrysler 024. Sharma drove back to the Walmart parking lot in the Heartland Town Centre. Walmart surveillance video taken by Sgt. Miranda shows the Chrysler 024 driving around the parking lot, between the parked cars. Eventually, the Chrysler 024 parked next to a grey Hyundai Accent hatchback (Accent 805). Mok was later identified as the driver of the Accent 805. The Walmart security video operated by D/C Miranda captures Sandhu reaching out the passenger window and apparently handing something to the Accent 805 driver. They then drove out of the lot to the adjacent Home Depot parking lot.

[141] At 16:53, the Chrysler 024 containing Sandhu and Sharma, and the Accent 805 driven by Mok parked beside each other. Miranda, Goulah and Benoit observed the transfer of the bag from the Chrysler 024 to the Accent 805. Benoit was able to photograph the transfer. The photographs are exhibits 5-15, 16 & 17.

[142] Sandhu took the bag from the trunk of the Chrysler 024. Sandhu tried to open the hatch of the Accent 805, but was unable to, so he put it in the back seat driver's side. Mok got out and opened the hatch and put the bag in the trunk.

[143] Benoit photographed Mok as he removed the bag from the back seat of the Accent 805 and put it in the trunk. Exhibit 5, photo 18 is the clearest photo of the bag in Mok's hands after he took it out of the back seat of his Accent 805 and before he placed it into the trunk. Close examination of the exhibit shows that the bag is a dark blue or purple gym bag with black straps. In my opinion, it is entirely understandable that officers perceived it as being a black bag.

[144] Police followed Mok's Accent 805 as he left the Heartland Town Centre in Mississauga at around 17:00 (5:00p.m.) and drove back during rush hour to his home at 66 Suncrest Blvd. in Richmond Hill. The Chrysler 024 was "let run".

[145] I pause here to point out that the person described as unknown male #1 (ukm 1) who had been observed with Sandhu on May 6, was not seen at any time on May 8.

[146] Mok was observed as he drove the Accent 805 into the underground parking garage of 66 Suncrest Blvd. 66 Suncrest is part of a group of town homes, each with a separate address. At 17:48, shortly after Mok drove into the underground garage, he came out the front door of 66 Suncrest and boarded the passenger seat of a black Ford Explorer. The Ford Explorer then drove into the underground parking lot. Police observed Mok get out, leave the underground lot, and enter the stairwell leading to his residence. The Ford Explorer then exited the parking garage.

[147] Police thought that the conduct they had observed was consistent with a drug transaction, so the decision was made to stop the Ford Explorer and arrest the driver. The driver identified himself as Peng Yap. Yap had $1400 in cash in his possession, an amount which, according to Teixeira, a very experienced drug investigator, is approximately the purchase price of an ounce of cocaine. Police found no drugs and no bag in Yap's possession. Teixeira had Yap taken to a Scarborough division for investigation.

[148] At 18:57, Mok came out of the front of 66 Suncrest. He had changed from the light blue short-sleeved shirt he had been previously wearing into a black t-shirt and blue jeans. He walked down the driveway to the rear parking lot where he entered a Toyota Matrix which had arrived at the rear of 66 Suncrest. P.C. Janes took photos of Mok as he walked to the rear lot.

[149] Zelany directed the arrest of the occupants of the Toyota Matrix. The driver was Phu­ Diep Luu, and Mok was the passenger. No cocaine was found, only a "dime bag" of MDMA.

[150] Backus was concerned about destruction of evidence and called for an exigent entry of 66 Suncrest pending the issuance of a search warrant. The sole occupant was Mok's mother who was in the kitchen.

[151] In Mok's third floor bedroom Teixeira found a one-kilogram brick of cocaine wrapped in red tape on top of a suitcase, and cash on the bed. The cash was later seized under authority of a search warrant. It totalled $710. The brick of cocaine had a large L-shaped cut in it (photo­ exhibit 6-11). I find that the cut is consistent with Mok having opened it to check to see that it was cocaine.

[152] In Mok's ensuite bathroom, police seized a dark blue and black gym bag containing nine one-kilogram bricks of cocaine also wrapped in red. The drugs in the gym bag were photographed (photo- exhibit 6-10). Comparison of exhibits 6-10 & 6-11 show that the packaging is identical.

[153] Exhibits 6-6, 6-7, and 6-8, are photos of the bag that was seized at Mok's home that contained nine separate one-kilogram bricks of cocaine. I would describe it as a dark blue gym bag with a wide black base and wide black carrying straps, five black zippers, and a black shoulder strap. As noted above, exhibit 5-18 is the photo of Mok carrying the bag just before he placed it in the Accent 805. Close examination of the exhibit shows that the bag is a dark blue or purple gym bag with black straps.

[154] Having repeatedly examined and compared exhibit 5-18 to exhibits 6-6,6-7 & 6-8, I have no doubt whatsoever that they are photos of the same bag.

[155] Having described the evidence in some detail, I turn now to identify the specific charges against the five accused now before the court.

The Charges Against the Five Accused

[156] The five accused face an array of charges in the 10-count indictment before the court. They are accurately summarized in a chart in the Crown’s factum. I have simplified the chart and reproduce it here.

Summary of Charges

May 6, 2013 Count 1: Sandhu & Iqbal- Trafficking in Cocaine (33 kilos in three suitcases seized from taxi 098) Count 2: Alexiou -Trafficking in Cocaine (33 kilos in three suitcases in taxi 098) Count 3: Sandhu & Iqbal- Possession of Cocaine for the Purpose of Trafficking (33 kilos in taxi) Count 4: Alexiou- Possession of Cocaine for the Purpose of Trafficking (33 kilos in three suitcases in taxi) Count 5: Alexiou & Kollaros- Possession of Cocaine for the Purpose of Trafficking (Suite 437) Count 6: Alexiou & Kollaros- Possession of Methamphetamine for the Purpose of Trafficking (Suite 437) Count 7: Alexiou & Kollaros- Possession of GHB for the Purpose of Trafficking (Suite 437)

May 8, 2013 Count 8: K. Singh (deceased), Iqbal & Sandhu- Import Cocaine into Canada Count 9: K. Singh (deceased), Iqbal, Sandhu & Sharma- Trafficking Cocaine Count 10: K. Singh, Iqbal, Sandhu & Sharma- Possession of Cocaine for the Purpose of Trafficking

[157] It will be seen that Kulwant Singh is listed among those facing charges in relation to May 8 only. I have his name in the chart because he was arraigned at this trial and pleaded not guilty.

Legal Principles

A. Presumption of Innocence and Requirement of Proof Beyond a Reasonable Doubt

[158] Each of the accused is entitled to be presumed innocent from the beginning of the trial until the end. The burden of proof rests entirely with the prosecution. The presumption of innocence is not displaced unless the evidence establishes guilt of any of the accused beyond a reasonable doubt. The requirement of proof beyond a reasonable doubt is a much higher standard than proof on a balance of probabilities. Although proof to an absolute certainty is not required, the requirement of proof beyond a reasonable doubt is much closer to absolute certainty than to a balance of probabilities. Reasonable doubt can arise on the evidence, or on the lack of evidence. If the court is left in a state of reasonable doubt with respect to any of the accused, then that individual accused is entitled to be found not guilty of the offence under consideration.

[159] In every criminal case, before guilt can be proved, the prosecution must prove not only that the accused committed the criminal act, but also that he or she had the intent to commit the criminal act.

[160] In this case, the deciding issues relate to whether the Crown has proved that the accused, any or all of them, have been proved to have had the necessary knowledge and the necessary intent to commit the crimes they are accused of.

[161] I turn now to explain what must be proved before guilt can be established against any of the individual accused person before the court.

B. Proof of Possession: Knowledge, Consent, and Control

[162] Possession is an essential element that must be proved beyond a reasonable doubt. Possession includes personal possession, constructive possession, and joint possession [4]. Each form of possession requires proof of knowledge, consent, and some measure of control [5]. The accused need not know the drugs were cocaine; it is sufficient if the prosecution proves knowledge that the drugs were prohibited drugs under Controlled Drugs and Substances Act [6].

[163] Obviously, knowledge is proved when it is established that the accused knew the drugs were controlled drugs. But knowledge is also attributed to the accused if it is proved that he knew of circumstances that made him aware of the need for further inquiries, but deliberately chose not to make those inquiries. In other words, the doctrine of wilful blindness will impute knowledge to the accused if it is proved that in the face of an obvious need for further inquiries, he made a conscious decision to remain ignorant of the true nature of the goods [7].

[164] The element of control need not be direct. Control is established if it is proved that the accused was complicit in the offence, either as a principal, or as a party. To be guilty as a party, the accused must be proved to have either intentionally helped in the commission of the crime, or intentionally encouraged the commission of the crime [8]. Mere presence or passive acquiescence, is insufficient to justify a conviction.

[165] In the circumstances of this case, if knowledge and control are established, it follows that consent has also been established.

C. Trafficking and/or Possession for the Purpose of Trafficking

[166] For the purposes of this case, if possession is proved, then proof that the drugs were knowingly transferred to another person is all that is required to prove trafficking.

[167] With respect to the charges of possession of the drugs for the purpose of trafficking, it is conceded that given the substantial quantities of drugs seized, if possession is proved, it was for the purpose of trafficking.

D. Circumstantial Evidence

[168] As I noted earlier in these reasons, much of the evidence is not in dispute. There were, however, some factual issues that needed to be decided. For example, I have explained that I conclude that the gym bag that was put into Mok’s car is the same gym bag that was found in Mok’s home containing the cocaine.

[169] I have attempted to explain my findings of fact as clearly as I can in the discussion of the evidence portion of these reasons.

[170] In this case, I have the task of determining what inferences may reasonably be drawn from the facts as I have found them. This involves a consideration of circumstantial evidence.

[171] Circumstantial evidence is simply evidence of circumstances from which reasonable inferences may be drawn. The prosecution submits that the only inferences that can reasonably be drawn from the evidence lead inevitably to the conclusion that guilt has been proven against each of the accused. On the other hand, counsel for each of the accused submit that there are other reasonable inferences alternative to guilt that can and should be drawn from the evidence or the lack of evidence, and that their clients must therefore be acquitted.

[172] Before discussing the evidence as it relates to each of the accused persons and explaining my conclusions, I will discuss the approach that must be taken to evaluation of the circumstantial evidence.

[173] I first point out that it is an error to look for rational conclusions alternative to guilt that are based on inferences drawn from proven facts. This principle has been recently reaffirmed by the Supreme Court of Canada in R. v. Villaroman 2016 SCC 33, [2016] S.C.J. No. 33. Speaking for a unanimous court, Cromwell J., at para. 35, pointed out that approaching the evidence in this way has the effect of unfairly shifting the burden of proof to the accused. He stated:

35. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.

[174] Justice Cromwell went on to emphasize that in evaluating circumstantial evidence, reasonable doubt can arise not only from the evidence, but from the lack of evidence. He stated, at paras. 36 & 37:

36. I agree with the respondent's position that a reasonable doubt, or theory alternative to guilt, is not rendered "speculative" by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt "is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence": para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

37. When assessing circumstantial evidence, the trier of fact should consider "other plausible theories" and "other reasonable possibilities" which are inconsistent with guilt. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. (citations omitted)

[175] As I read Villaroman, the guiding principle is that in evaluating circumstantial evidence, the court must never lose sight of the doctrine of reasonable doubt. If there are reasonable alternative inferences to be drawn from the evidence or lack of evidence that are consistent with innocence, then the accused must be found not guilty. On the other hand, irrational or fanciful theories or possibilities cannot form a basis for a finding of reasonable doubt.

[176] Villaroman was released after I received counsel’s written submissions and heard oral argument. If I thought Villaroman represented a change in the law, fairness considerations would had led me to invite further submissions. However, although Villaroman is instructive, it does not depart from the previously-established principles that were dealt with by counsel in their submissions.

[177] With those considerations in mind, I turn now to a discussion of the evidence and my conclusions in relation to each of the accused in turn. I will deal with them in the order in which their names appear on the indictment.

E. Discussion of Evidence and Conclusions Respecting Each of the Accused

I. Randeep Sandhu

[178] Mr. Sandhu is charged in relation to events on both May 6 and May 8.

[179] With respect to May 6, he is charged only in relation to the 33 kilograms of cocaine seized from Taxi 094. He is not charged in relation to the drugs seized from suite 437 of the King Edward Hotel Residences.

a) May 6

[180] I will first deal with the evidence concerning Mr. Sandhu’s involvement on May 6.

[181] I have already set out the facts as I find them. I will repeat some of the more salient facts here. I have italicized the facts that I consider to be the most important.

[182] Sandhu is associated with Iqbal and Sharma. He rented the Corolla 832 on May 4.

[183] On May 6, he left his home at 4:05 a.m.in the Corolla 832. He picked up ukm 1 and Thakur. At 5:03 or thereabouts, he stopped while ukm1 made a phone call from a phone booth. At 5:13 to 5:24 he drove past Iqbal’s residence. Then he turned back and drove again to Iqbal’s residence where the car was parked for ten minutes with the lights off.

[184] At 5:46 the Corolla 832 was seen in a gas station. Ukm 1 paid for the gas. Thakur was no longer with Sandhu and ukm 1.

[185] They headed towards Sarnia. At one point they stopped and ukm 1 made two phone calls from a phone booth.

[186] Then they continued on the 401 towards Sarnia. At 7:20, they stopped at the side of the 401 and switched seats. Ukm1 became the driver.

[187] By 8:33 they were under the Bluewater Bridge that spans the Canada-US border. They waited there in various locations near the bridge for an hour and forty-nine minutes.

[188] At 10:22 they headed back on the 401 toward Toronto, this time with Sandhu driving. About an hour and a quarter later they stopped at a service centre. Fifteen minutes later, they were back on the 401 with ukm 1 driving.

[189] Their next stop, at 12:48, was the Milton Walmart. There, they purchased three black carry-on suitcases and put them in the trunk of the Corolla 832.

[190] Their next stop was to meet up with the driver of truck 4 PL at Bronte Tire in Milton at 13:08. The truck driver went to the driver’s side and had a conversation. Three minutes later, the Corolla 832 drove to the west side of Bronte Tire. Then at 13:15, the Corolla 832 and the Truck 4 PL drove in tandem and stopped on Atlantic Drive near Ultramar Pipeline. The Corolla pulled into a parking lot near the truck.

[191] Eighteen minutes later, at 13:43, the Corolla 832 left. The surveillance team followed the Corolla 832 because police believed (rightly, it turned out) that the drugs were now in the trunk of the Corolla 832, in the three suitcases Sandhu and ukm 1 had bought at the Milton Walmart.

[192] The truck 4 PL was “let run”. I point out here that Mr. K. Singh was not charged in relation to the events of May 6, and there is no evidence that he was the driver of truck 4 PL that day.

[193] Eleven minutes later, the Corolla 832 was seen in Walmart parking lot in Mississauga. It stopped at the Canadian Tire across Plymouth Drive, and At 13:56 Sandhu left the Corolla 832 and went into the Canadian Tire. Ukm 1 drove away across Plymouth Drive to the Walmart parking lot. At 14:03 Sandhu came out of the Canadian Tire with Iqbal and Thakur.

[194] This time, Sandhu did not return to the Corolla 832. Instead, he got in the Jeep 932 with Thakur and Iqbal.

[195] The Jeep 932, with Thakur driving, crossed Plymouth Drive to the Walmart lot and parked trunk to trunk with the Corolla 832 driven by ukm 1. Sandhu Iqbal and Thakur got out. Sandhu moved the three black suitcase from the Corolla 832 to the Jeep 932. Iqbal and Thakur were right there while this was going on. At one point, Iqbal leaned into the open trunk of the Corolla 832 although it is not clear whether this was before or after the bags had been moved into the Jeep 932.

[196] Then Sandhu and Iqbal got in the Corolla 832. Thakur stayed behind. Iqbal shook Thakur’s hand, and the Corolla 832 with ukm 1 driving, left the area. Thakur stayed and kept an eye on the parked Jeep 932 with the suitcases inside.

[197] The Corolla 832 went to the north end of the Walmart. Later, Iqbal was seen in a different Jeep, Jeep 576, parked beside the Corolla 832.

[198] Then the BMW 197 arrived and parked beside the Jeep 932 with the suitcases inside. Alexiou and Singh got in the Jeep 932 and Thakur got into the BMW 197 being driven by ukm 4.

[199] Later the taxi 098 arrived. Alexiou put the suitcases in the taxi and got in. Thakur and Singh got into the Jeep 932. They drove in tandem to downtown Toronto and were arrested.

b) May 8

[200] This time ukm 1 was not present. The truck 4 PL was seen crossing the border in Sarnia. Sandhu and Sharma were seen in a Chrysler 024 in the Bayer Parking lot on Bellfield Road in the GTA. Iqbal was there in his Jeep 576, the same one he was in on May 6. Sandhu got in the cab of the truck and removed a weighted bag. He got back in the Chrysler 024 and Sharma drove away in tandem with Iqbal.

[201] They went to the Heartland Town Centre. They parked the Chrysler 024 at a restaurant a few minutes away and got into the Jeep 576. Iqbal drove to his home two minutes away and Sharma drove the Jeep 576 back to where the Chrysler 024 was parked. The Chrysler was unattended for no more than four minutes.

[202] Sandhu and Sharma went into the restaurant where they could see the Chrysler through the windows. They eventually came out and less than a minute later Sharma opened the trunk of the Chrysler 024. I have found that Sandhu opened the bag taken from the truck 4 PL and examined its contents as Sharma looked on. They then waited around for about 20 minutes then got into the Chrysler 024 and drove back to Heartland Town Centre. They drove around the parking lot and eventually parked beside the Accent 805 driven by Mok. Sandhu gave Mok something (probably a note) and the two vehicles drove to the adjacent Home Depot parking lot. Sandhu moved the bag from the Chrysler 024 to the back seat of the Accent 805. Mok got out and moved the bag to the trunk. The bag, I have found, was the same bag that was later seized at Mok’s Richmond Hill residence that contained nine one-kilogram bricks of cocaine with the other one-kilogram brick out of the bag with an L-shaped cut in it.

c) Discussion and Conclusions Re: Sandhu

[203] Ms. Webb’s position on behalf of Mr. Sandhu is that the Crown’s case is based on conjecture and assumptions. She submits that in order to convict Mr. Sandhu, the court would have to engage in conjectural leaps to fill in the gaps in the Crown’s case.

[204] Ms. Webb started her submission by dealing with May 8, and submitted that it could not reasonably be concluded that the bag taken from the truck 4 PL was the same bag that was later seized at Mok’s residence. She pointed out that the video of Sandhu examining “something” in the trunk of the Chrysler 024 does not assist in determining whether it was the bag that was later found in Mok’s residence containing the large quantity of cocaine. Sandhu could have been examining something else, or there could have been more than one bag in the trunk of the Chrysler 024.

[205] Still with respect to May 8, Ms. Webb submitted in the alternative that if it was the same bag, it cannot be inferred that the drugs were in the bag when Sandhu put it in Mok’s car. In the further alternative, she submitted that it would be conjectural to find that Sandhu knew the bag contained drugs. She submitted that it is a reasonable inference available on the evidence that Sandhu thought it was something else, such as stolen goods. She submitted that it is particularly significant that police failed to search Mok’s Accent 805 even though the search warrant authorized its search. She submitted that the bag Sandhu put in Mok’s car could have been in the trunk and the drugs found in Mok’s home could have come from a different source entirely. She submitted that since Mok was dealing drugs at the time as evidenced by his suspicious behavior while under surveillance, it is entirely reasonable to conclude that there is an alternative inference pointing to the innocence of Mr. Sandhu.

[206] With respect to May 6, Ms. Webb adopted a similar approach. She submitted that a reasonable innocent inference is available on the evidence: that ukm 1 was guilty and Sandhu had no knowledge of the true nature of the transactions that occurred on May 6.

[207] Ms. Webb focussed heavily on the absence, with respect to both May 8 and May 6, of readily-available confirmatory evidence, such as text messages, e-mails, phone records, as well the absence of evidence of video surveillance from inside the Milton Walmart where Sandhu and ukm 1 are alleged to have bought the three black suitcases on May 6, and from the Canadian Tire store where Sandhu met Iqbal and Thakur.

[208] I have given careful consideration to the evidence relating to Sandhu. I am well aware that if there are other reasonable inferences available on the evidence or lack of evidence that are inconsistent with guilt, then Sandhu is entitled to the benefit of the doubt and must be found not guilty. In a circumstantial case such as this, I must remain alert to the possibility of reasonable innocent inferences. As I noted when discussing circumstantial evidence, the Crown is required to negative reasonable possibilities that are inconsistent with guilt, but the Crown is not required to negative fanciful unreasonable conjecture.

[209] With due respect to Ms. Webb who has argued ably and forcefully on behalf of Mr. Sandhu, I find that there are no reasonable inferences available on the evidence or lack of evidence that are capable of raising a reasonable doubt.

[210] The evidence establishes that guilt is the only reasonable inference to be drawn from the evidence. There is nothing to diminish the force of the inferences the Crown asks that I draw.

[211] I find that the evidence proves beyond a reasonable doubt that Mr. Sandhu was an integral part of a carefully orchestrated major operation that led to the seizure of thirty-three kilograms of cocaine on May 6, and 10 kilograms of cocaine on May 8. He knew or was wilfully blind to the fact that he was participating in the trafficking of drugs of very high value.

[212] I turn now to the charge in count 8 of the indictment alleging that Mr. Sandhu imported cocaine into Canada on May 8, 2013. On the importing charge, I find that there are a number of reasonable inferences available on the evidence that are capable of raising a reasonable doubt. On the evidence before me, I find that it is reasonably possible that Sandhu had no involvement in arranging for the importation of the cocaine. The evidence is consistent with him being involved in receiving the drugs after they entered Canada, without having had anything to do with arranging for their importation. Mr. Sandhu is therefore found not guilty on Count 8, the charge of importing.

[213] In the result, I find Mr. Sandhu guilty of counts 1, 3, 9 & 10. The two charges of trafficking and the two charges of possession of cocaine for the purpose of trafficking. By operation of the rule against multiple convictions for the same acts, I enter a stay of proceedings on counts 3, and 10, the charges of possession of cocaine for the purpose of trafficking.

[214] For clarity, Mr. Sandhu stands convicted of counts 1 and 9, the trafficking charges. He is found not guilty on count 8, the importing charge. Counts 3 and 10 are stayed by reason of the rule against multiple convictions for the same acts [9].

II. Dimitri Alexiou

The Facts Relating to Mr. Alexiou

[215] Mr. Alexiou is charged in counts two and four with trafficking and possession for the purpose of trafficking with respect to the 33 kilograms of cocaine seized from the taxi 098. He is also charged in counts 5, 6, & 7 with possession for the purpose of trafficking with respect to the drugs found in unit 437 of the King Edward Residences, that is, the 28 kilograms of cocaine, the 3 kilograms of crystal methamphetamine, and the 345 grams of GHB.

[216] I will deal first with the drugs in the taxi 098. Mr. Aly submitted that reasonable inferences inconsistent with guilt are available on the evidence. He submitted that it is a reasonable inference that Mr. Alexiou was acting as a “blind courier” without knowledge that he was transporting a large quantity of prohibited drugs. He also submitted that the mere fact that Mr. Alexiou was in possession of a key and swipe card that permitted access to unit 437, did not mean that it was unreasonable to consider that he may not have been heading to unit 437.

[217] I cannot accept either argument with respect to the drugs seized in the taxi. Mr. Alexiou’s movements in conjunction with Thakur and Singh clearly were for the purpose of avoiding detection. Significant counter-surveillance measures were taken. Put bluntly, Mr. Alexiou had to know he was carrying drugs of considerable value. Alternatively, he was aware of circumstances that cried out for inquiries about the nature of his cargo. Failure to make inquiries in such circumstances can lead only to the conclusion that he deliberately chose to remain ignorant of the contents. The doctrine of wilful blindness imputes knowledge to Mr. Alexiou.

[218] In my view, however, it is also unreasonably speculative to consider as a plausible theory the possibility that Mr. Alexiou was not intending to go to unit 437. Mr. Aly submitted that it was a reasonable possibility that he was to meet someone and give him or her the drugs and the key and swipe card, but I am unable to accept that scenario as reasonable. I find it speculative and fanciful.

[219] I find that Mr. Alexiou was knowingly in possession of the cocaine in the taxi and that he was transporting it to unit 437. He is therefore guilty on counts two and four. Because count 4 is subsumed in count 2, I enter a stay on that count because of the rule against multiple convictions for the same acts.

[220] I turn now to counts 5, 6, & 7, the counts alleging that Mr. Alexiou was in possession of the drugs found in unit 437.

[221] Although the evidence satisfies me that he was headed to unit 437 and he had a key and swipe card that permitted him access to the unit, I cannot discount the reasonable inference that he was acting as a mere courier and that he had neither knowledge of, nor control over the drugs that were found in unit 437. Apart from the fact that he was in possession of the key and swipe card, there is nothing in the evidence to support the inference that he had ever been in the unit or had any knowledge of its contents.

[222] The evidence raises serious suspicions, but falls short of proof beyond a reasonable doubt. Mr. Alexiou is therefore found not guilty on counts 5, 6, & 7.

[223] In the result, Mr. Alexiou is convicted on count 2. He is found guilty on count 4, but I enter a stay because of the rule against multiple convictions. He is found not guilty on counts 5, 6 & 7.

[224] For clarity, I repeat: Mr. Alexiou stands convicted of a single count in the indictment, count 2: trafficking in the 33 kilograms of cocaine found in the taxi 098.

III. Philpos Kollaros

[225] Mr. Kollaros is charged in counts 5, 6 & 7, with possession for the purpose of trafficking with respect to the drugs found in unit 437.

[226] In paragraphs 108 to 132, I reviewed the evidence relating to unit 437 in considerable detail. The evidence shows that Kollaros and his wife had rented the unit from Ms. Choi on the understanding that they would occupy it only periodically.

[227] There is considerable evidence capable of supporting the conclusion that Kollaros was in possession of the drugs in the unit. The bed was unmade, and appeared to have been slept in. Police assumed, reasonably, that the bed had been recently slept in. The television was on, suggesting that someone had been staying in the unit that day. Kollaros keyed into the unit dressed in clothing consistent with someone who had been inside or, if he went outside, he hadn’t gone very far. He was in possession of a key to the unit, but not a swipe card.

[228] This evidence creates a very strong suspicion that he had been staying there and the discovery of the large cache of drugs in locked suitcases, and a debt list on the shelf in the closet, is consistent with the unit being used as a stash house for the drugs. As well, the fact that Alexiou was headed there with more drugs, further supports the inference that the unit was a stash house.

[229] On the other hand, there is evidence that others may have had access to the unit. The mysterious “Sal” and/or “Toronto man” had been in possession of a key and access card. Kollaros had a key. If there were only two keys, as the evidence of Ms. Choi suggests, then the key in Alexiou’s possession did not come from Kollaros, but from someone else.

[230] There is no way of knowing on the evidence before me who gave Alexiou the key and swipe card. It is entirely possible that it came from “Toronto man”. Ms. Choi understood Toronto man to be a friend or relative of Kollaros and his wife, but there is nothing to confirm her understanding.

[231] The evidence shows that the perpetrators went to extreme lengths to avoid detection. On the other hand, Kollaros apparently did nothing to avoid detection. He used his own name when he rented the unit with his wife. He chose to rent a unit in a development that was still under construction. He had to know that workers would be entering the unit. He turned down a completed apartment in another location - the Four Seasons - that presented none of these problems. The stated reason was that the unit was too expensive at $3000 a month. The drugs found in unit 437 had a value in the millions of dollars. It would make no sense for a cocaine dealer involved in moving millions of dollars of cocaine to choose an unsecure stash house over a more secure one in order to save a few thousand dollars.

[232] In all the circumstances, it is clear that others had access to the unit.

[233] There was a cellphone in the unit that was seized by police. Cellphones can be a rich source of information, about contacts, who was called and when, and where the phone was when it was used. It was never forensically analyzed. The bedding was not seized and no hair samples or other sources of DNA such as the toothbrush in the bathroom were taken and analyzed. Police knew that the King Edward had surveillance cameras. Reid was detailed to get the tapes but never followed up.

[234] The surveillance videos may well have been a valuable, perhaps decisive source of evidence to assist in determining who took the suitcases containing the drugs to unit 437.

[235] The drugs were not in plain view. They were in locked suitcases in the closet.

[236] There are a number of reasonable alternative inferences that are inconsistent with the guilt of Mr. Kollaros.

[237] I have grave suspicions about his guilt, but I am unable to say that the evidence proves his guilt beyond a reasonable doubt. He is therefore found not guilty on counts 5, 6, & 7, the charges he faces in this trial.

IV. Waseem Iqbal

[238] Mr. Iqbal faces the same charges as Mr. Sandhu. With respect to May 6, he is charged with trafficking in relation to the 33 kilograms of cocaine in the three suitcases, and with possession of that cocaine for the purposes of trafficking. With respect to May 8, he is charged with trafficking and possession for the purpose of trafficking in relation to the 10 kilograms of cocaine seized from Mok’s residence. Like Mr. Sandhu, he is also charged with importing the 10 kilograms of cocaine.

[239] I will begin with the importing charge. My analysis with respect to that charge is the same as for Mr. Sandhu. I find that there are a number of reasonable inferences available on the evidence that are capable of raising a reasonable doubt. Although the evidence raises serious suspicions that Mr. Iqbal was involved in a large-scale cocaine importation operation, I find that there are other reasonable possibilities which support alternative inferences that are inconsistent with guilt for importing cocaine. Although there was some evidence to suggest that Sandhu had connections to the trucking business, the evidence lacking in detail. On the evidence before me, I find that it is reasonably possible that Mr. Iqbal had no involvement in arranging for the importation of cocaine. As with Mr. Sandhu, the evidence is consistent with him being involved in receiving the drugs after they entered Canada, without having had anything to do with arranging for their importation. Mr. Iqbal is therefor found not guilty on Count 8, the charge of importing.

[240] I have already set out the facts as I find them that relate to the involvement of Mr. Iqbal in the trafficking of cocaine on May 6 and May 8. I summarized them again when I discussed the evidence against Mr. Sandhu. It is therefore unnecessary to summarize them again in any detail.

[241] I will however point out some of the highlights of the evidence that bear directly on the involvement of Mr. Iqbal in the trafficking on May 6 and May 8.

[242] There is evidence from which it can reasonably be inferred that Sandhu and Sharma worked with Iqbal under his direction.

[243] There is evidence from which it can reasonably be inferred that someone in the Corolla 832 (either Thakur, Sharma or ukm 1) spoke to him at his home in the early hours of May 6 before Sandhu and ukm 1 drove to Sarnia.

[244] At 13:55, the Corolla 832 (containing the three black suitcases Sandhu and ukm 1 bought in the Milton Walmart that now contained the 33 kilogram of cocaine), was seen in the Walmart parking lot in Mississauga. It stopped at the Canadian Tire across Plymouth Drive, and At 13:56 Sandhu left the Corolla 832 and went into the Canadian Tire. Ukm 1 drove away across Plymouth Drive to the Walmart parking lot. At 14:03 Sandhu came out of the Canadian Tire with Iqbal and Thakur.

[245] Sandhu got in the Jeep 932 with Thakur and Iqbal.

[246] The Jeep 932, with Thakur driving, crossed Plymouth Drive to the Walmart lot and parked trunk to trunk with the Corolla 832 driven by ukm 1. Sandhu Iqbal and Thakur got out. Sandhu moved the three black suitcases from the Corolla 832 to the Jeep 932. Iqbal and Thakur were right there while this was going on. At one point, Iqbal leaned into the open trunk of the Corolla 832 although it is not clear whether this was before or after the bags had been moved into the Jeep 932.

[247] Then Sandhu and Iqbal got in the Corolla 832. Thakur stayed behind. Iqbal shook Thakur’s hand, and the Corolla 832 with ukm 1 driving, left the area. Thakur stayed and kept an eye on the parked Jeep 932 with the suitcases inside.

[248] The Corolla 832 went to the north end of the Walmart. Later, Iqbal was seen in a different Jeep, Jeep 576, parked beside the Corolla 832.

[249] Then the BMW 197 arrived and parked beside the Jeep 932 with the suitcases inside. Alexiou and Singh got in the Jeep 932 and Thakur got into the BMW 197 being driven by ukm 4.

[250] Later the taxi 098 arrived. Alexiou put the suitcases in the taxi and got in. Thakur and Singh got into the Jeep 932. They drove in tandem to downtown Toronto and were arrested.

[251] On May 8, the truck 4 PL was seen crossing the border in Sarnia. Sandhu and Sharma were seen in a Chrysler 024 in the Bayer Parking lot on Bellfield Road in the GTA. Iqbal was there in his Jeep 576, the same one he was in on May 6. Sandhu got in the cab of the truck and removed a weighted bag. He got back in the Chrysler 024 and Sharma drove away in tandem with Iqbal.

[252] They went to the Heartland Town Centre. They parked the Chrysler 024 at a restaurant a few minutes away and got into the Jeep 576. Iqbal drove to his home two minutes away and Sharma drove the Jeep 576 back to where the Chrysler 024 was parked. The Chrysler was unattended for no more than four minutes.

[253] Later Sandhu transferred the drugs from the Chrysler 024 to Mok’s Accent 805. Mok was followed and arrested at his home in Richmond Hill. Police seized the bag that Sandhu had taken out of the truck 4 PL and placed in the Chrysler 024 while Iqbal was in the area in his Jeep 576.

[254] Mr. Paradkar, on behalf of Mr. Iqbal, has presented an able and powerful argument supplemented by flow charts. The material was very helpful in understanding the submissions on behalf of Mr. Iqbal. Mr. Paradkar emphasized the fact that Mr. Iqbal did not go to Sarnia on May 6 or May 8. He emphasized the fact that was not present for the trips to Sarnia and he was not present much of the time the drugs were being transported.

[255] Mr. Paradkar concedes that it could not be coincidence that caused Iqbal to turn up at crucial times during the drug transport and transfers. He did however, submit that there are other reasonable inferences inconsistent with guilt. He argues that the evidence goes no further than to show mere presence at relevant times and concedes that it is open to infer that he knew something illegal was going on, but he submits that the evidence does not show that Iqbal knew it was drug-related.

[256] Further, Mr. Paradkar submits that even if the court were to infer that Mr. Iqbal had knowledge or was wilfully blind, his participation amounted to mere “quiescent knowledge”. That is that he was merely present but not engaged in the drug trafficking as a principal, aider or abettor.

[257] Mr. Paradkar placed heavy emphasis on the absence of evidence at what he submitted were crucial moments in the sequence of events. He submitted as well that police failed in their duty to gather all relevant evidence that could assist the court in evaluating the case against his client.

[258] In the end, the heart of Mr. Paradkar’s submission is that in this case, the circumstantial evidence is not capable of supporting a finding of guilt against Mr. Iqbal, because there are other reasonable inferences inconsistent with guilt that are available on the evidence.

[259] I have given careful consideration to the submission. But in the end, I am unable to point to anything in the evidence that is capable of diminishing the force of the inferences that the Crown asks that I draw. With respect to Mr. Paradkar who has done a very able job of marshalling the arguments on behalf of his client, I am forced to conclude that it is fanciful to think that Mr. Iqbal was merely passively acquiescent in the drug trafficking that was taking place. To the contrary, all of the evidence taken together creates a web that envelops Mr. Iqbal.

[260] The evidence of Mr. Iqbal’s active participation in the trafficking of the cocaine on May 6 and may 8 is overwhelming. In the result, he is found guilty on counts 1, 3, 9 & 10. Because of the rule against multiple convictions for the same acts, I enter stays on counts 3 and 10. He has been acquitted of importing in count 8.

[261] In the result, Mr. Iqbal stands convicted of trafficking in cocaine on May 6 and May 8, that is on counts 1 and 9.

V. Ashok Sharma

[262] Mr. Sharma is charged with respect to the events of May 8 only.

[263] Although I have already summarized the evidence involving him, for convenience of reference, I will highlight some of the key events again.

[264] The truck 4 PL was seen crossing the border in Sarnia. Sandhu and Sharma were seen in a Chrysler 024 in the Bayer Parking lot on Bellfield Road in the GTA. Iqbal was there in his Jeep 576. Sandhu got in the cab of the truck and removed a weighted bag. He got back in the Chrysler 024 and Sharma drove away in tandem with Iqbal.

[265] They went to the Heartland Town Centre. They parked the Chrysler 024 at a restaurant a few minutes away and got into the Jeep 576. Iqbal drove to his home two minutes away and Sharma drove the Jeep 576 back to where the Chrysler 024 was parked. The Chrysler was unattended for no more than four minutes.

[266] Sandhu and Sharma went into the restaurant where they could see the Chrysler through the windows. They eventually came out and less than a minute later Sharma opened the trunk of the Chrysler 024. I have found that Sandhu opened the bag taken from the truck 4 PL and examined its contents as Sharma looked on. They then waited around for about 20 minutes then got into the Chrysler 024 and drove back to Heartland Town Centre. They drove around the parking lot and eventually parked beside the Accent 805 driven by Mok. Sandhu gave Mok something (probably a note) and the two vehicles drove to the adjacent Home Depot parking lot. Sandhu moved the bag from the Chrysler 024 to the back seat of the Accent 805. Mok got out and moved the bag to the trunk. The bag, I have found, was the same bag that was later seized at Mok’s Richmond Hill residence that contained nine one-kilogram bricks of cocaine with the other one-kilogram brick out of the bag with an L-shaped cut in it.

[267] The evidence shows that Sharma was with Sandhu when he picked up the bag with the drugs and put it in the Chrysler 024 being driven by Sharma. He was present with Sandhu when Sandhu opened the bag containing the 10 kilograms of cocaine. The video (exhibit 9) shows Sharma looking in as Sandhu examines the contents of the bags. Sharma was aware of the contents of the bags.

[268] Mr. Rahamin has ably argued that the evidence against Mr. Sharma does not prove his guilt beyond a reasonable doubt. He submits that there are reasonable inferences inconsistent with guilt that are available on the evidence and that Mr. Sharma is therefore entitled to be found not guilty. He points to what he calls “assumptions” about what Mr. Sharma was looking at in the trunk of the Chrysler 024, and submits that even if he was looking in a bag, there is no way of knowing whether it was a bag containing drugs.

[269] I am unable to find anything in the evidence that creates a reasonable inference inconsistent with guilt. The evidence establishes overwhelmingly that Sharma knew he was helping in the transportation of cocaine. He is proved to have been a party to the offence.

[270] In the result, I find him guilty on counts 9 and 10. Because of the rule against multiple convictions I stay the charge of possession for the purpose of trafficking contained in count 10.

VI. Summary of Conclusions

[271] Randeep Sandhu: May 6: Counts 1 & 3 - Guilty. Charge stayed on Count 3.

[272] May 8: Counts 9 & 10 - Guilty. Charge stayed on count 10. Not guilty Count 8.

[273] Result: Randeep Sandhu stands convicted of counts 1 and 9 (Trafficking on May 6 and 8, 2013).

[274] Dimitri Alexiou: Guilty Counts 2 & 4. Charges stayed on Count 4. Not guilty on counts 5, 6, & 7.

[275] Result: Dimitri Alexiou stands convicted of count 2 only.

[276] Philpos Kollaros Counts 5, 6, & 7 - Not guilty

[277] Waseem Iqbal: May 6: Counts 1 & 3 – Guilty. Charge stayed on Count 3. May 8. Court 8. Not guilty. Counts 9 and 10 Guilty.

[278] Result: Waseem Iqbal stands convicted of counts 1 and 9. (Trafficking on May 6 and 8, 2013)

[279] Ashok Sharma (May 8 only) Counts 9 & 10 – Guilty. Charge stayed on count 10.

[280] Result: Ashok Sharma stands convicted on count 9 (Trafficking on May 8)

J.D. McCombs J.

Released: October 6, 2016

Footnotes:

[1] R. v. Sandhu et al, 2016 ONSC 3401 [2] R v. Sandhu, supra, at paras. 26-28 [3] See for example: Schaeffer v. Ontario (Provincial Police), 2011 ONCA 716, 2011 O.J. No. 5033 (C.A.) per. Sharpe J.A. at paras. 69 & 70. [4] See s. 2(1) of the Controlled Drugs and Substances Act, and see s. 4 (3) of the Criminal Code. See also, for example: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at paras. 15-17 [5] R. v. Terrence, [1983] 1 S.C.R. 357. [6] R. v. Williams, 95 O.R. (3d) (C.A.), per Blair J.A. at paras. 19-21. [7] R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, per Charron J. at paras. 21-24. [8] See Criminal Code of Canada, ss. 21(1)(a) & (b). [9] See R. v. Kienapple, [1975] 1 S.C.R. 729.