CITATION: R. v. Jainarayan, 2017 ONSC 3440
COURT FILE NO.: CR-16-10000441-0000
DATE: 20170605
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MOONESHWAR JAINARAYAN
Defendant
Christopher Ponesse, for the Crown
Edward Willshick, for the Defendant
HEARD: May 30-June 1, 2017 at Toronto, Ontario
Michael G. Quigley J.
Reasons for Judgment
Introduction and Overview
[1] Between December 18, 2014 and January 15, 2015, the Royal Bank of Canada (“RBC”) suffered a loss of 46 computers from its computer hardware storage room located on the P1 level of its new operations centre located at 88 Queens Quay in Toronto. At the time of the loss, this was a brand-new building, and construction had not completely finished. Nevertheless it was occupied and the principal tenant was the bank. The building is owned and managed by Oxford Developments. The storage room in which the computer equipment had been located had been used for that sole purpose from the time when RBC first took occupancy of its space in the building in September 2014.
[2] The loss was first reported early in January 2015 when David Panyan, the head of computer asset management at that building, realized that certain of the laptop computers listed on the inventory that should have been present in the storage room on level P1 at 88 Queens Quay were missing. Items had been noted missing before, but it had been attributed to being in the possession of technicians in the process of rolling out new equipment to employees in the building. Nothing of this scale had happened before. On December 19, he and his staff performed an inventory of the computer hardware equipment located in the storage room, after the lock and key on the storage room had been changed. He went down to the storage room but found that his key did not work. He had to be admitted by the security guards who had the new keys. RBC did not have the new keys then, and did not get them for some weeks. Neither did IBM, the supplier of the Lenovo Thinkpad T440 laptops that were the backbone of the computers supplied by RBC to its employees, and that were to be deployed as part of a refresh of all employees’ computers as businesses do regularly as technology progresses.
[3] On December 28, Mr. Panyan went down to the storage room again, again accompanied by one of the security guards from Paragon Security since Mr. Panyan still had not received a key. Paragon was responsible for the security of the building. The security guard opened the storage room for him. When they entered, he observed that there were some empty computer boxes. This surprised him, because when new computers were deployed to staff, they were typically brought in the box up to a lab located elsewhere in the building, and given to staff only after RBC proprietary programs were installed.
[4] It was when he went down again to the storage room on January 8, 2015 that the extent of the missing computer equipment became apparent to him. He still at that point did not have a new key to the storage room, and again had to be accompanied by the security guards. He knew from the computer inventory spreadsheets exchanged between Lenovo, RBC’s computer hardware supplier, and the bank that computer assets that he believed had been delivered and deposited in the storage room in November 2014 were missing.
[5] He decided to do a little investigation on his own. He went on to the Kijiji website where he determined that there was a Lenovo T440 computer being offered for sale. It appeared from the listing and the serial number attributed to the computer to be one of the computers that was supposed to be in the bank’s inventory located in that storage room. He reported this, and was instructed by his supervisors to prepare a report for the police. He communicated with Detective Constable Cheung. He made a screen print of the Kijiji computer listing. The particular computer he saw showed information that indicated that it was subject to the warranty that Lenovo granted contractually in favour of RBC. When he cross-referenced this particular machine to RBC’s records, it made clear to him that a seller on Kijiji was offering to the public what appeared to be a Lenovo T440 computer that was listed in the inventory and that therefore belonged to RBC.
[6] That precipitated another trip to the storage room on January 8, both to take delivery of equipment, and to take further inventory, and then he went back to the storage room on January 14. That was when cross-referencing of the equipment in the storage room and what was reflected in the inventory that ought to have been present in that room, showed that there was a very substantial number of computers that were missing. Initially, he was aware on January 12 that four computers were missing. However they investigated further and were notified on January 13 by installers of further equipment intended to be deployed to employees that was also missing from the storage room. He verified the missing assets on January 14. It consisted of some 46 laptop computers.
[7] Mr. Panyon then communicated with Matthew Holla, the security officer for RBC at the 88 Queens Quay building at the time. Mr. Holla went to talk to the security guards, and indicated that he wanted to do a review of the video surveillance footage for the P1 level of the building, specifically the camera located directly outside RBC’s storage room. There are cameras throughout the building, but when they reviewed the video footage for the hallway outside of RBC’s storage room for December 31, 2014, the surveillance footage revealed a security guard going into the RBC storage room, and then emerging from that room carrying four boxes, transporting them across the hall to the employee change room, and then leaving the location. Further review of video surveillance footage for that day showed an individual who appeared to be the same security guard getting into an elevator later the same evening, after his shift would have ended, going up to the ground level and then leaving the building well after ordinary business hours, carrying a large tote bag, like a big bag of laundry in front of him in his arms, that appeared to contain boxes of what were believed to be some of the missing computers.
[8] The final important piece of video surveillance footage showed that for a period of 24-25 hours from just before 8:00 pm on January 9 until after 8:30 on January 10, the surveillance camera located directly outside of the RBC computer hardware storage room had been obscured. The second last person seen walking towards that camera just a minute or so before it was obscured and who, oddly, looks directly at it as he is walking in that direction, was one of the Paragon security guards. When the obstruction was removed from the camera the next day, the first person recorded walking away from the camera after a minute passes is that same security guard.
[9] When the matter was reported to the Toronto Police Service, Detective Constable Cheung pursued a number of different leads, obtained information from Kijiji, printed screenshots of the ads for 46 different computers, all Lenovo T440 computers, and one special Carbon X1 computer, all listed for sale on Kijiji and all being sold by the same seller. The contact phone number listed in most of those ads for that seller was the same phone number that the employment records of Paragon Security indicated was associated with one of their guards. Detective Constable Cheung did quite a bit of other creative and diligent police work to establish further connections between that security guard, the photographs of the equipment that was for sale on the Kijiji site, photographs on that security guard’s private Facebook page, and using other sources, to ultimately reach the conclusion that the person who was responsible for the removal of the computers and who had been selling them on Kijiji was this accused, Mooneshwar Jainarayan.
[10] Detective Constable Chueng actually prepared an information to obtain a search warrant. That warrant was issued by a Justice of the Peace, but when they went to execute it, they decided not to break down the door of the residence on Gwynne Avenue that was authorized to be searched. Coincidentally, although Mooneshwar Jainarayan, was required to reside at his father’s residence as one of the terms of a recognizance for other charges that were pending against him at the same time, the address authorized to be searched by that warrant was his mother’s address. How he could have been a security guard at a time when he was clearly involved in matters before the court and on a recognizance is astonishing, but for others to consider. That residential address for Mooneshwar Jainarayan’s mother was located less than a two minute walk from the Starbucks at the corner of Dufferin and King Streets which, coincidentally, appears to have been the meeting spot where the Kijiji seller told potential purchasers that they could pick up their brand-new, never powered on, Lenovo T440 computers.
[11] Mooneshwar Jainarayan turned himself into the Toronto Police on Sunday, February 1, 2015 at 14 Division of the Toronto Police Service.
[12] Mooneshwar Jainarayan is charged with seven offences in connection with these missing computers. He is charged with breaking and entering on December 31, 2014, stealing and being in possession of stolen property having a value of less than $5,000, possession of property derived from the commission of an indictable offence in Canada, namely the computers, a January 9, 2015 charge of breaking and entering, and a charge on the same day of mischief relating to the obstruction of the video camera outside the RBC computer storage room. Finally, he was also charged between January 9 and January 14, 2015 with breaking and entering and committing theft of further computers, and with having stolen property having a value exceeding $5,000. The dates of the last offence on the indictment were amended by me on submission of the Crown since the evidence at trial established that the correct period should have been between December 18, 2014 and January 15, 2015.
[13] The accused re-elected to be tried by me sitting as judge alone, and the evidence of the Crown, including numerous documents, photographs, the surveillance footage, and items described above and later in these reasons, were entered as exhibits. However, none of the computers have ever been found. Their value is just short of $80,000. At the end of the Crown's case, the defence called no evidence.
[14] So the question for me, given the almost entirely circumstantial nature of the evidence that is present in this case, is whether Crown counsel has proven and I am satisfied to the criminal standard that the accused, Mooneshwar Jainarayan, alone or perhaps with others, was the perpetrator of these offences.
Principles of Analysis
[15] Mr. Jainarayan is presumed to be innocent. That presumption is only displaced if the Crown proves his guilt beyond a reasonable doubt on one or more offences. I understand well that it is not the responsibility of Mr. Jainarayan to establish that he is not guilty. It is the Crown who must prove beyond a reasonable doubt that Mr. Jainarayan is guilty of one or more of the offences charged before he can be convicted. I would be required to find Mr. Jainarayan not guilty of the offences charged unless Crown counsel has satisfied me beyond a reasonable doubt that he is guilty of one or more of them.
[16] I have also reminded myself of the reasonable doubt standard of proof. A reasonable doubt is not a far-fetched or frivolous doubt, a doubt based on sympathy or prejudice, but one based on reason and common sense that logically arises from the evidence, or the lack of evidence about an essential element of the offence charged. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.
[17] However, I have also reminded myself that Crown counsel is not required to prove the offences to an absolute certainty, although looked at on a continuum, proof beyond a reasonable doubt is closer to “absolute certainty” than it is to mere “probability.” I have asked myself, at the end of the day after considering all the evidence or the lack of evidence, whether I am sure that Mr. Jainarayan committed one or more of the offences charged. If yes, he must be convicted. If no, he must be acquitted.
[18] I have also reminded myself of the principles that apply in circumstantial cases. Circumstantial evidence is evidence that may or may not prove a fact from which the inference of another fact may be drawn. As we all know, an “inference” is a conclusion of fact that may logically and reasonably be drawn from another fact or group of facts, direct or circumstantial, that are found or otherwise established by the evidence in these proceedings. An “inference” is a conclusion that I may draw, but not a conclusion that I necessarily must draw. It is a deduction that is reasonably and logically available from another fact or group of facts that are established by the evidence.
[19] To ensure the accused understands this process, I will repeat the example I provide to juries in jury trials on the drawing of inferences. I usually provide the following seasonal example:
In the winter, you shovel your driveway and then go to bed. When you get up in the morning, there is 15 cm of snow on your driveway and there is a 1 meter pile across the end of your driveway. The street itself is clear of snow. You did not see it snowing. You did not see or hear a snow plough while you slept. Yet you can confidently conclude both that it snowed and that the snowplough passed down your street sometime in the night, while you slept. And you know you have to shovel out the end of your driveway.
[20] All of us regularly draw inferences from the range of circumstantial evidence that presents itself to us every day of our lives, and we all understand and accept that certain facts are known to lead to certain results. On this trial, however, I may only draw inferences based on the evidence. As such I have reminded myself that the inferences I draw must not be based on conjecture or speculation, but founded in the evidence.
[21] I have also reminded myself (i) that it is the cumulative effect of all of the evidence, that must meet the standard of proof beyond a reasonable doubt, not each individual item of evidence, (ii) that the Crown is not required to prove individual items of evidence beyond a reasonable doubt, and (iii) that I must weigh all of the evidence cumulatively, and not in isolation or individually.
[22] Finally, where proof of guilt is entirely or wholly dependent upon the inferences that are drawn from circumstantial evidence, as in this case, I have reminded myself that guilt may only be found where it is the only reasonable inference that can be drawn from the evidence as a whole.
Analysis
[23] The starting point for this analysis, since it is uncontested, is the agreed statement of facts entered as an exhibit on this trial. That agreed statement of facts establishes four important points:
(i) Between April 5, 2013 and April 11, 2015, Mr. Jainarayan ’s cell phone number was 647-922-0431.
(ii) Between the dates of December 1, 2014 and January 31, 2015, Mr. Jainarayan ’s mother’s address was 15 Gwynne Avenue, Unit 5, Toronto, Ontario M6K 2C2. Mr. Jainarayan was required under the terms of a recognizance that then bound him to live with his father at another address and was bound by a curfew.
(iii) The book of documents entitled "Kijiji Advertisements" entered as an exhibit contains records provided by a former Kijiji employee, Joe Azzouggagh, to Detective Constable Christopher Cheung on January 15, 2015. These records contain “advertisements” and “replies” associated with the email address Kijijisaless@hotmail.com. These records, originally stored in Kijiji “databases” are no longer retrievable.
(iv) Between January 15 and January 19, 2015, Detective Constable Smissen had occasion to fingerprint the scene and around the RBC storage room on the P1 level at 88 Queens Quay as well as the camera that was obscured between January 9 and 10 2015. DC Smissen was only able to develop one fingerprint left on one of the open boxes in the storage room. This print did not come back to matching Mr. Jainarayan.
[24] What is also undisputed, although the reasons are disputed, is that approximately 46 Lenovo laptop computers had gone missing between the dates of about December 18, 2014 and January 15 of 2015. They were Lenovo ThinkPad laptop computers, mostly model T440, but also with one more expensive model called a Carbon X1. As I noted, the value of that missing computer hardware is estimated to be just less than $80,000 (Exhibit 5).
[25] The evidence also establishes, as made plain by Exhibits 14 and 15, that a number of Lenovo T440 laptop computers, and one Lenovo Carbon X1, were being sold on Kijiji by a seller at the same time as the RBC computers went missing. Those computers were all advertised on Kijiji. All of the advertisements for those computers reflect the same postal code for the seller, M6K 2C2, although there are different IP addresses reflected in the different advertisements. The photographs reflected on Kijiji showing the computers that were for sale show that the seller had at least one of the RBC laptops, and indeed, one of the advertisements makes plain from a single photograph that the seller had at least four of those same laptops in his or her possession at the time they were being offered for sale.
[26] The cross-reference work done by Mr. Panyan, referencing serial numbers for the T440 laptops listed on Kijiji that he found and its warranty information, shows that that one particular laptop being sold on Kijiji was an asset in the inventory belonging to RBC. This is established by Mr. Panyon’s evidence and Exhibits 1, 2, 3 and 4. When Mr. Panyon went on to the Kijiji website, he had noted a serial number that was contained within the specific advertisement as well as the warranty specifications which seemed identical to the warranties on the computers that RBC deployed to its own employees.
[27] Mr. Panyan took that serial number and he put it into the IBM website to find out that in fact, that particular computer being sold on Kijiji was a computer that had been earmarked and was destined to be deployed soon thereafter to a specific named RBC employee (Exhibit 4). The information contained in Exhibits 3 and 4 and the information evident from the Lenovo warranty website, as well as the screenshot of the serial number for the particular asset as reflected in the Kijiji ad, make all of this indisputable.
[28] But as their further inquiries revealed, there was not just one Lenovo T440 computer missing, but a substantially greater number, more than 40. Yet, coincidentally and curiously, there was also not just one ad on Kijiji associated to the Kijijisaless@hotmail.com seller, but over 40 postings on Kijiji for exactly the same kind of computer, plus one posting for a special Lenovo X1 Carbon computer.
[29] It is also curious, an astonishing coincidence one would certainly say, that the number of ads on Kijiji placed by that seller increased during the period of time leading up to January 15, 2015, coincident with dates that Mr. Jainarayan was working as a security guard at the Queens Quay building. All of those further ads were also associated with that same Kijiji seller. They show that from the date that inventory was taken on December 19, through to Thursday, January 15, 2015, a total of 46 Kijiji ads for the sale of Lenovo T440 computers were placed by the same seller. Plainly, that seller had a lot of brand-new, never powered on Lenovo T440 computers available to sell.
[30] During this same period, the open computer boxes were found in RBC’s storage room on Monday, December 29, Mr. Jainarayan was captured on camera removing items from that storage room on December 31, 2014, and then from the evening of Friday, January 9 through to Saturday, January 10, a period of 24 to 25 hours, the very security camera that was meant to monitor the hallway outside of RBC’s storage room was blocked out by an obstruction. When the final inventory was taken and the extent of the loss was determined on Wednesday, January 14 and Thursday, January 15, 2015, there were 41 missing computer assets. During all of the dates when those Kijiji ads were posted, Mr. Jainarayan was working as a security guard at the Queens Quay building.
[31] As I mentioned, it is also significant that in addition to the Lenovo T440 laptop computers, there is a listing for the Lenovo X1 Carbon laptop on page 7 of Exhibit 14. The presence of that unique laptop for sale by the same seller along with all of the other T440 laptops, combined with the fact that there was only one X1 Carbon laptop in the RBC storage room that was missing, along with a lot of the T440 laptops, provides a strong connecting link between the missing laptops and the Kijiji seller.
[32] What anchors that link and the inference that inescapably arises from it, is the fact that the Kijiji seller is unquestionably Mr. Jainarayan, and Mr. Jainarayan is the same person who was working as a security guard at the RBC Queen’s Quay building during the period of time when the missing computers disappeared, and when they were suddenly offered for sale on Kijiji. As well, during that very same period of time, Mr. Jainarayan is actually observed on surveillance video going into the RBC storage room with no apparent authorization, emerging with an arm full of what appear to be computer boxes, taking them into the employee change room, and then is later seen on a different set of surveillance cameras taking those boxes and seemingly others from the size of the container he is carrying, up the elevator and out through the lobby onto Queens Quay.
[33] So, what inferences can reasonably be drawn from all of this?
[34] Certainly there is a Kijiji seller who was selling multiple Lenovo laptops. They are all the same brand, same model, all brand-new, all still in their packaging, and the seller indicates that none of them has ever been powered on. There is at least the four laptops unquestionably associated with the Kijiji seller because one of the photos shows those four distinct laptops in one of the Kijiji photographs. However, but when you combine that photograph of four laptops together with the surveillance video as I discuss below, to my mind that demonstrates that Mr. Jainarayan was carrying five or six boxes out of the building on December 31, a great New Year’s Eve gig. It directs the connection towards him. This follows particularly since the phone number listed on every one of those Kijiji ads is the cell phone number that he provided to Paragon Security, his employer, as his particular phone number, and combined with the fact that each of those Kijiji ads includes exactly the same postal code that is attributable to the Gwynne Avenue address where his mother lives, located a two-minute walk from the Starbucks at King St. and Dufferin St. That was the scheduled rendezvous point for any purchasers who wanted to acquire any of these T440 computers from the Kijiji seller.
[35] There is more very detailed police investigative work done by Detective Cheung in his review of the Kijiji site and his investigation into Mr. Jainarayan’s Facebook account and Facebook page that provides compelling connecting links to this accused. The photos in the Kijiji ads all show the Lenovo laptops resting on top of an extremely unique blanket featuring a yellow and deep blue sun and moon motif or configuration, with white dots, probably meant to represent stars. There are also the photos of the four laptops shown resting on top of a ubiquitous black table in the Kijiji ad. However, that unremarkable black table is sitting on top of a hardwood floor in a parquet design, partially completed, and partially torn up. Very unique. Not at all common. Moreover, the Kijiji ads permit one to see a sofa in the corner of the photos, a sofa with a very unique pattern design.
[36] So still the question arises, how does all of this tie to Mr. Jainarayan?
[37] The first way relates to the Kijiji sales. A potential purchaser of any of the T440 laptops or the Carbon X1 laptop was instructed to contact the Kijiji seller, Kijijisaless@hotmail.com by calling the phone number. That phone number, 647-922-0431, was the phone number the seller provided. That phone number is inextricably and directly linked to Mr. Jainarayan. It is his phone number. Strong inference number 1.
[38] Secondly, Mr. Jainarayan is associated with the address of 15A Gwynne Avenue located only 200m from the intersection of King and Dufferin Streets. His mother lives there. That’s also the location, by the way, where he wants the renovation work done that is evident from his messages posted on Facebook. Very convenient for him to pop around the corner from his mother’s house to meet up with potential purchasers at the Starbucks or the Burger King located at King and Dufferin Streets, and he could even grab a latte or a Whopper at the same time if he was so inclined.
[39] Then there is Mr. Jainarayan’s Facebook page. It is interesting on its own entirely apart from these matters, but there is certainly no doubt in my mind looking at the photographs that are posted on that Facebook page that the individual to whom that Facebook page belongs is unquestionably Mr. Jainarayan.
[40] Crown counsel modestly described the individual pictured on that Facebook page as bearing a “strong resemblance” to Mr. Jainarayan. I disagree. It doesn’t bear a strong resemblance at all. It is an exact match. It is simply him. Indeed the name that he adopts for himself on the Facebook page also corroborates that the person pictured is him. He adopts the name “Moon Mjolnir” as his Facebook page moniker. It’s pretty easy to infer that the name “Moon” is a nickname or short-form version of his own first name, which is Mooneshwar. That is enough to establish the connection, but I would be remiss if I didn’t note that the second name he adopts as part of his moniker, “Mjolnir”, I learned is the name of the mythical hammer of the mythical Marvel comics character, Thor. A hammer that always comes back to its owner. How ironic.
[41] Equally importantly, however, are the photographs on that Facebook page that show the renovation work to his bedroom in progress. One can see detail of the blanket at the end of the bed that bares an exact correlation to the design on the blanket that was underneath the Lenovo laptop computers as they appear in the photographs posted to the Kijiji sales site associated with the seller, Kijijisaless@hotmail.com, with all of the ads recording Mr. Jainarayan’s telephone number and the postal code of the Gwynne Avenue address.
[42] Further, Exhibit 15, a blowup of the photo in Exhibit 9A and 9B, shows that the parquet floor in the room “Moon” is renovating, has the same parquet floor as is reflected in the Kijiji photos, and again there is a black coffee table which looks pretty much identical to the one in the Kijiji photos with the parquet floor underneath, while acknowledging that black coffee tables are probably ubiquitous. But it is the very unique colouring and motif on the blanket that is common to both and that establishes a powerful connection between Mr. Jainarayan’s Facebook page and the photographs evident on Kijiji showing numerous Lenovo T440 computers for sale.
[43] To add even further weight to the strength of this inference, there is the YouTube posting in Exhibit 17. In that video, one can see a black coffee table present, seemingly very similar to the one that appears in the Kijiji photos, and that appears on Mr. Jainarayan’s Facebook page, but as well, the unique pattern of the sofa on which Mr. Jainaryan’s friends are seated is the exact same pattern as that shown on the sofa located in the Kijiji photos. All of this evidence, when tied together, creates a very reasonable and powerful, compelling inference that the common element to all of these things, and that ties Mr. Jainarayan to the missing Lenovo laptops, is himself and those details.
[44] All of that is even before we got to the video surveillance footage from Queens Quay. Mr. Jainarayan is employed as a security guard, a position of trust, at that location, the exact location from which the laptops have been taken. He was scheduled to work on the days where the thefts were occurring. He was not permitted to be in that storage room except in an emergency. On December 31, the video surveillance footage captures Mr. Jainarayan entering the RBC storage room. The evidence showed he would not have had permission to go into that room without there being some kind of an emergency. If there was such an emergency, it would need to have been recorded in the security company’s log of security incidents relating to the building, and the person who should have created that log reporting an emergency that justified entry to that room was the person who “investigated” such a supposed incident, Mr. Jainarayan.
[45] But the video surveillance shows that there is certainly no sense of urgency or emergency evident in Mr. Jainarayan’s manner as he saunters, in a nonchalant manner, up to the doors of the RBC storage room, uses his key to unlock the door, and is seen some minutes later leaving with an arm full of boxes. The photographic evidence shows that there was nothing in that storage room except computer boxes so the obvious and necessary inference is that the boxes Mr. Jainarayan was carrying were boxes containing computers. He walks across the hall with them, and deposits them in the employee change room.
[46] Later that day, in the early hours of New Year’s Day, when he has no business being in the building since the shift is completed, and when the New Year’s Eve holiday makes it plain that the downtown Toronto office towers will be empty of everybody except the odd workaholic and security guards, video surveillance footage captures him carrying a large seemingly fabric tote bag containing numerous boxes, up the elevator from the vacant P1 level to the vacant lobby of the building, and then exiting the building onto the vacant street beyond. The load he is carrying is obviously hefty. It requires both of his arms outstretched in front of him grasping around the large package he is carrying. One can see that he actually is leaning back a little bit as he walks, obviously demonstrating that there was some weight to the package he was carrying that required some counterbalance.
[47] But there is more I would note about the surveillance footage. I spent several hours very carefully and thoroughly reviewing and re-reviewing the surveillance video footage. There were instances during the trial when Crown counsel slowed down the video surveillance footage as it was replayed to draw attention to the conduct of Mr. Jainarayan. I went further. I spent a lot of time zooming in to focus very precisely, as best as the quality of the video footage permitted, on particular actions of Mr. Jainarayan, on what he was holding in his hands, and on what was in the tote bag that he was carrying out of the building.
[48] The video surveillance footage of Mr. Jainarayan walking out of the RBC storage room shows that he is carrying four identically-sized boxes stacked on top of each other. If one zooms in carefully, particularly at 9:26:59:199 PM, one can see that the boxes have green and red-coloured areas of colour on their ends. Mr. Jainarayan stands holding the boxes in his left arm while using his right to swipe the entry into the employee dressing room, and then enter sideways with the boxes in front of him, obviously because they are wider on the front and easier to carry with him entering that doorway sideways. Again, as I have noted, one can see the arch of his back as he supports the weight of the four boxes he is carrying while trying to use his swipe card to gain access to that room.
[49] In the video footage of Mr. Jainarayan departing from the building, after he has gone up the elevator, a zoom into what he is carrying shows that he is carrying five or six boxes in a tote type of carry bag but not being carried by handles, but with both of his arms around the package and from underneath to support its weight. It is a full wide armful, similar to the image one conjures up of a person trying to carry an arm-full consisting of three or four very full and heavy grocery bags into their house, or like carrying a big hamper of laundry.
[50] Once again, while it is far from clear I acknowledge, if one zooms into the boxes that are contained within the bag that he is carrying, it looks like the green or red markings on those boxes are the same green and red markings that are on the boxes of the Lenovo computers in the RBC storage room as seen in the Exhibit 12D and 12E photos from the trial.
[51] I also found it interesting to note that Mr. Jainarayan plainly knows where all of the surveillance video cameras are located. As he is standing on level P1 at 1:53:00 through 1:53:57 on New Year’s Eve, again with his back slightly arched as he supports the weight of the package he is carrying in front of him and presses the button to call the elevator, he makes certain that he always keeps his back to the surveillance video camera doing his best to prevent it from identifying him.
[52] Relative to the charge of mischief of having obstructed the surveillance video camera located outside of the RBC storage room, it is suggested by defence counsel that one simply cannot conclude beyond a reasonable doubt that Mr. Jainarayan took steps to obstruct that camera by himself. I accept that proposition. He may have acted by himself or there may have been others who are unknown and who were parties with him to all of these actions.
[53] However, what the video surveillance does make plain is that at 7:24:26 as Mr. Jainarayan walks down the hallway towards the video surveillance camera, past RBC’s storage room, he is not walking in a normal manner. He is not striding as one normally would. Instead, he has both hands in front of him just below his chest and it is plain from a zoom in of the video surveillance footage that he is carrying something in his two hands that are clasped in front of him as he walks towards the camera.
[54] None of us when we walk along the hallway bother to pay much attention to video surveillance cameras. They are ubiquitous as well, just like black coffee tables, and have become part of our day-to-day lives. But the video surveillance footage shows that Mr. Jainarayan is looking very intently at the video surveillance camera that is on the ceiling in front of him, while he continues to clasp his hands together. Zoom in of that footage indicated to me that Mr. Jainarayan was carrying a white substance cradled and clasped between his two hands in order to avoid having that substance being seen.
[55] That would not be enough to be persuasive were it not for the other bookend to this particular point. On January 10, 2015, the obstruction was removed from the surveillance camera at 8:45:20. No one was in the hallway. Yet the video displays that an unknown person appears to remove the obstruction by cleaning or wiping the ceiling dome where the video camera is located. At 8:47:12, seconds later, Mr. Jainarayan is seen walking away from the camera. He is the first person captured after that video camera goes back into service unobstructed. But that itself is not the only telling feature that ties him to the initial obstruction of the camera. It is also the action of his hands and his arms as he walks away from the camera.
[56] The action of his arms as he walks away is like he is holding something in his hands in front of him, similar to the manner in which he appeared as he walked towards the camera before it was obstructed and then his arms move in a manner which suggests that he is scrunching something up into a ball in his hands, if one visualizes the way one’s arms move in conducting that action. Then at 8:47:16, his right hand goes down to his side, but if one zooms in carefully one can see an object being held in his hand. It is white and it is scrunched up into a small ball-like shape. It appeared to me as best as I could discern it, to be a white plastic like substance, very similar to what Mr. Jainarayan appeared to have in his hands as he approached the camera 24 hours before. The very clearest view of this can be found on that piece of video surveillance footage at 8:47:24:305 PM. He then goes into the employee change room, and when he returns into the hallway, he turns left and heads further away from the camera and out of view, and there is nothing in his right hand except keys or a swipe card or something similar that he is swinging as one would a set of keys.
[57] I cannot say that Mr. Jainarayan acted on his own in obstructing that camera. He is not a tall person. He would not likely have been able to reach the dome where the video surveillance camera was located without a ladder or assistance from somebody. However, in the context of the circumstances of all of the evidence of this case, and in particular the record of possibly five missing Lenovo laptop computers having been added to Kijiji during the 24-hour period the camera was blacked out, it simply makes no sense to suggest, given his obvious implication in these thefts, that he was not involved as a party to the obstruction of that video surveillance camera. He either put a substance up in the dome to obscure the lens of the camera on his own, or he had someone else help him, but I have no doubt whatsoever that he perpetrated that mischief. He did so to make sure that the video surveillance camera would not be able to capture whatever thievery he had planned for that 24-hour period on January 9 and 10, 2015, which I note, again relative to the likelihood of others being in the vicinity, was late on a Friday night and on a Saturday early in January before business activities have gotten back up to full swing from the Christmas holiday season.
[58] Defence counsel certainly represented Mr. Jainarayan as forcefully as he could against this barrage of evidence. He put forward several lines of argument to resist the very strong circumstantial evidence and the powerful inferences that the Crown has advanced in this case.
[59] First he attacked the inventory system of RBC and suggested that one cannot be certain at all that any of RBC’s Lenovo laptop computers were taken out of that storage room because RBC’s computer asset inventory maintenance system and the supervision of its inventory was particularly lax. I acknowledge there was no day-to-day personal and physical supervision being applied to the contents of RBC’s computer asset storage room located on P1 at the Queens Quay building. However, I also accept that there were contractual relations present between IBM and RBC that involved the regular delivery of inventory, the sending of spreadsheets reflecting the inventory that IBM had delivered to RBC, even if through an intermediary delivery agent engaged in the computer industry, but this case is not about RBC’s inventory supervision standards. I accept without reservation, that there were specific contractual relations that existed between them, including the provision of particular warranty terms that were applicable to RBC’s deliveries of Lenovo computers, and that the records put forward in Exhibits 1 and 2 relative to the stock of inventory RBC was meant to have at that storage room and that IBM believed it had delivered to them and that RBC believed was located in that storage room, and which was double-checked on December 9, 2014 and again on January 15, 2015, establish beyond doubt that the loss of between 41 and 46 computer laptops experienced by RBC during that one-month period was not due to intermediaries. RBC had every right to expect that all of the inventory reflected in the communications that passed between it and IBM would be located in that storage room, or could be accounted for, even if there might be occasions where two or three computers might appear to have gone missing because they were in the possession of technicians. I accept RBC’s quantification of the loss in Exhibit 5, a loss of computers that properly belonged to RBC, but that were taken from its storage room without its consent and without lawful authority.
[60] A second suggestion from defence counsel was that Mr. Jainarayan had the right as a security guard to go into that room in the case of an emergency. I accept that proposition as well but the evidence denies that any such emergency occurred that would have given Mr. Jainarayan the right to go into that storage room on December 31, 2014. The very manner of his conduct, nonchalant and leisurely walking up to the door and opening it and going into that room, belies any suggestion of an emergency. Moreover, if such an emergency had occurred, it would have been Mr. Jainarayan’s obligation to make a note of that in the security logs for Paragon Security by whom he was employed, as part of his duties as a security guard. He made no such entries, and there is nothing in his manner that could possibly support a suggestion that he was in that room that evening because of an emergency situation.
[61] Finally, and least tenuous of all, was a suggestion that Mr. Jainarayan was simply removing empty boxes from the RBC storage room and taking them to the garbage. This was a proposition that is hardly worth responding to. Mr. Jainarayan had no authority to be in that room except in particular circumstances. It was not his responsibility to take out the garbage. Moreover, the videotape totally undermines that suggestion given that it plainly shows that he was carrying a weight with him as he carried those four boxes out of that room, hardly the weight one would expect if one was carrying four empty boxes to take out to the garbage.
[62] Neither is there any question here that the person who is involved in all of these actions is this accused, Mr. Jainarayan. He was plainly identified in court by Mr. Fullerton, his employer at Paragon Security, but it is also obvious that Mr. Jainarayan is the perpetrator, not only from the video surveillance footage, but from the Facebook page and the YouTube video, and from observing Mr. Jainarayan in court in front of me during this trial. It was indeed this accused, Mr. Jainarayan, who is plainly identified based on recognition as a person who would have been present in those circumstances, given his employment, and who was the person seen on the video surveillance footage. Mr. Fullerton saw Mr. Jainarayan on a daily basis. He is plainly able to identify him as he did based on recognition.
[63] Crown counsel suggested in his argument that there could well have been some one or more other persons involved with Mr. Jainarayan to perpetrate these actions, and if such a person or persons existed, and they may well have, their identity remains unknown. But the existence of an unknown accused who was a party to offences does not lessen Mr. Jainarayan’s involvement as a party to the offences with which he is clearly identified.
[64] Turning finally to the question of the quantum and whether the Crown has successfully proven fraud over $5,000, I am more than satisfied that that has been proven to the criminal standard. Mr. Jainarayan is seen leaving the storage room with four computer boxes. He is then seen leaving the building with a bundle of boxes that appears to my eye to be five or six. The increased difficulty he has walking as he carries that larger package leaving the building suggests that there is more than just the four boxes, and a zoom into the video of him as he departs from the building leaves me with no hesitation to infer that there were at least five or six boxes of computers in that bundle as he departed the building that evening.
[65] Interestingly, however, those boxes were taken out of the building on December 31 but unless I misunderstand the Kijiji ads, it appears that the four Lenovo laptop computers that are shown together in a single ad had already been listed on Kijiji before that time. The ad suggests that the particular advertisement for those four computers was removed from the site on January 3, 2015, only three days after Mr. Jainarayan walked out of the building with an additional five or six computers.
[66] In total, the evidence shows that the Kijiji seller, who was unquestionably Mr. Jainarayan, offered some 41 computers for sale on Kijiji. There may have been some repeat ads but it is utter nonsense to suggest with the volume of product being dealt with here that there were not at least six or seven Lenovo computers being offered for sale by this accused on Kijiji which would have had a total value of in excess of $5,000.
[67] This is plain regardless of the IP addresses from which those Kijiji ads were placed, and I note in that regard that Mr. Jainarayan had no shortage of computers in his possession which would have had different IP addresses which could have accounted for the different IP addresses found in some of the Kijiji advertisements, even though the postal code and telephone number for the Kijiji seller was the same in all of the ads. In this regard I refer to the statutory declaration of Kent Sikstrom who is the community relations manager contracted to Kijiji Canada Limited, who indicates at paragraph four of his statement that “every computer connected to the Internet is assigned a unique Internet protocol address or ‘IP address’”. He notes that Kijiji’s records of individual ads placed on Kijiji include the IP addresses from which ads were posted. The fact that there were different computers used for the purposes of posting ads to Kijiji in these circumstances does not direct culpability away from Mr. Jainarayan because regardless of those IP addresses, each of the ads contains the same telephone number and the same postal code.
[68] As I indicated previously, in a circumstantial case, which relies on inferences drawn from findings of fact, a finding of guilt on any charge can only be made where the inference of guilt is the only reasonable inference that can be drawn from the entirety of the factual evidence that informs the question. While Mr. Jainarayan sat smirking at the counsel table over the two days of this trial, probably thinking that there was no way all of the dots could be connected, he is mistaken in that view. I consider the evidence in this case to be overwhelming and taken in its entirety, as a constellation, I am satisfied beyond a reasonable doubt that the only reasonable inference that can be drawn from the entirety of this evidence is the guilt of this accused and that the offences charged against Mr. Jainarayan are proven beyond a reasonable doubt. The entirety of that evidence leaves me sure and in no doubt whatsoever that Mr. Jainarayan is guilty of each of the offences with which he is charged. He will be convicted on all counts.
Michael G. Quigley J.
Released: June 5, 2017
CITATION: R. v. Jainarayan, 2017 ONSC 3440
COURT FILE NO.: CR-16-10000441-0000
DATE: 20170605
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MOONESHWAR JAINARAYAN
Defendant
REASONS FOR JUDGMENT
Michael G. Quigley J.
Released: June 5, 2017