Superior Court of Justice - Ontario

COURT FILE NO.: CR-18-1074 DATE: 2020 03 10

RE: HER MAJESTY THE QUEEN v. RAAMKUMAR RAAMAN

BEFORE: COROZA J.

COUNSEL: C. Zary and G. Zaman, for the Crown R. Pillay, for the Defendant

HEARD: January 23 to March 4, 2020

Trial Rulings Endorsement

[1] Raamkumar Raaman was found not guilty by a jury on March 4, 2020. These are my reasons for rulings previously given with respect to (1) a defence request for a Vetrovec caution and (2) an answer to a jury question during deliberations, both of which arose during the trial of the accused, Raamkumar Raaman.

Overview of the Case

[2] Raamkumar Raaman is charged with one count of fraud over $5,000 for allegedly defrauding the Government of Canada of approximately $1.024 million in duties and taxes.

[3] Between 2007 and 2012, Mr. Raaman provided freight forwarding services through six different Ontario companies, referred to as Global Majestic Logistics Group of Companies (“Global”) and Royal Logistics (“Royal”).

[4] The Crown alleges that Mr. Raaman was the owner, operator and controlling mind of Global and Royal. The companies assisted over 200 commercial importers with over 1,900 importations of goods into Canada. The Crown also alleges that Global had a number of employees. These employees were called as witnesses.

[5] The Crown's theory is that between 2007 and 2012, Mr. Raaman carried out a fraudulent scheme through 356 transactions to import goods into Canada. Mr. Raaman, directly or through his freight forwarding companies, provided the customs broker with false documents for the transactions, either underreporting or undervaluing the goods being imported into Canada. This resulted in an underpayment of duties and taxes to the Government of Canada. However, Mr. Raaman billed his clients for the correct amount of duties and taxes owing. Mr. Raaman allegedly then kept the difference between the billed amount and the falsely reported amount, being approximately $1.024 million, and deposited it into five different bank accounts owned or controlled by him personally.

[6] I provided my final instructions to the jury on March 3, 2020. The jury returned with a verdict of not guilty the next day.

[7] During the trial, in order to keep matters moving, I made several brief rulings and promised to deliver written reasons. Again, these are the reasons for two of those rulings.

Issue 1: Vetrovec Caution

[8] During the pre-charge conference, counsel for Mr. Raaman requested that I provide the jury with a short, sharp warning about the employees who were called by the Crown. Counsel for Mr. Raaman argued these were unsavoury witnesses: see R. v. Vetrovec, [1982] 1 S.C.R. 811.

[9] Counsel submitted that the warning should tell the jury that it is dangerous to accept the employees’ evidence tending to implicate Mr. Raaman in the crime without seeking confirmation of that evidence from an independent source.

[10] The general principles regarding Vetrovec cautions were summarized by Watt J.A. in R. v. Carroll, 2014 ONCA 2, 304 C.C.C. (3d) 252, at paras. 60-67. I will briefly repeat these principles.

[11] First, whether the testimony of a Crown witness should be subject to a Vetrovec caution lies within the discretion of the trial judge.

[12] Second, two factors will often occupy a position of prominence in a trial judge’s decision about whether to include a Vetrovec caution: the credibility of the witness and the importance of the witness’ evidence to the Crown’s case.

[13] Third, where a witness’ evidence occupies a central position in the demonstration of guilt yet may be suspect because of the witness’ disreputable and untrustworthy character, a clear and sharp warning may be appropriate to alert the jury to the risks of adopting the witness’ evidence without more.

[14] Fourth, a Vetrovec caution may not be required where the evidence is important, but not dispositive of guilt, and where the evidence of the witness merely furnishes additional support for the prosecution’s case.

[15] Finally, in assessing the credibility of a Crown witness to determine whether to issue a Vetrovec warning, a trial judge must not slot the witness into a particularized category.

[16] Watt J.A. explains that a trial judge should direct their mind to the circumstances of the case and thoroughly examine the myriad factors that might impair the worth of the witness’ testimony.

[17] After reflecting on the matter, I was persuaded that a Vetrovec caution was required for these witnesses. The reason is simple. In my view, these witnesses were all potential accomplices to the alleged fraud. Indeed, the Crown’s theory was that Mr. Raaman was either a principal of the entire scheme or a joint principal with his own employees. The Crown took the position before the jury that Mr. Raaman was guilty because the money all went into bank accounts directed and controlled by him. However, the Crown also had to acknowledge that there was no direct evidence that he was altering or changing the invoices. Rather, the case was circumstantial, and the Crown argued before the jury that Mr. Raaman could not hide behind these employees.

[18] In the end, the jury would have understood from that position that the employees may very well have been involved in the fraud but that they were acting in concert with Mr. Raaman. Therefore, on the Crown’s theory, these witnesses occupied a central position in the determination of guilt.

[19] As potential accomplices, the employee witnesses were suspect. In my view, the jury should be given a clear and sharp warning to alert them to the risks of adopting the evidence of these witnesses "without more".

[20] That said, a Vetrovec caution is potentially dangerous to the defence because of the necessity of pointing out confirmatory evidence that the jury may wish to examine in their search for an independent source of information in relation to anything incriminatory coming from these witnesses.

[21] I raised the issue with counsel for Mr. Raaman that providing the Vetrovec caution may indeed be prejudicial. Counsel for Mr. Raaman suggested that I could draft an instruction that would not prejudice Mr. Raaman. In the end, I agreed that I would give the warning and simply provide two or three examples of evidence to which the jury could turn in order to confirm the truth of the employees’ evidence. I took this approach so as to ensure that the instruction was not nullified by providing the jury with an exhaustive list of confirmatory evidence and potentially bolstering the Crown’s closing address.

Issue 2: Answer to Jury’s Question During Deliberations

[22] On March 4, before returning their verdict, the jury asked the following question:

“On March 2nd, closing arguments, Crown claims that software used to alter paperwork was found on Raaman Raamkumar’s computer in his home.

Is there evidence as exhibit pertaining to this?”.

[23] After hearing the submissions of counsel, I answered the question in the following way:

“The answer is that there is no evidence at this trial that software or a template used to alter paperwork was found on Mr. Raaman’s computer in his home.

There is no exhibit.”

[24] After reviewing the relevant portion of the Crown’s closing address, my view is that the jury was referring to the Crown’s reference in its closing to the evidence of John Spanjevic, the vice president of Global, about a document referred to as the RB3.

[25] The jury heard evidence that the RB3 was a document generated by Global and sent to the importers with their final invoice. The CBSA does not recognize the RB3. The customs broker used by Global, Parkwood and Cavanaugh also did not recognize the RB3. The Crown theory was that the RB3 was the tool used to perpetrate the fraud. The importers all testified at this trial that they were sent an RB3 by Global which advised them of the amount of duties and taxes owing to the federal government. The jury was told in my final instructions that the RB3 was the vehicle used to advance Global and Royal’s fraudulent activities.

[26] During her closing, Ms. Zaman for the Crown stated that Mr. Spanjevic had testified that the RB3 was created using an Excel template on the computer system at Global that was accessible from Mr. Raaman’s home office or Global’s office.

[27] This was not accurate. During his testimony John Spanjevic provided evidence about the RB3 and an Excel template. First, he testified that the RB3 was either created at Mr. Raaman’s home office or at the Global Office. He did not specifically mention an Excel template being used to create the RB3. Second, Mr. Spanjevic went on to add that there was a template for the RB3 on the Global computer system and that Mr. Raaman had access to that template from his home office. Finally, Mr. Spanjevic testified that duties and taxes owing by the clients were calculated on an Excel software program developed by Mr. Raaman. According to Mr. Spanjevic that program was at the computer in the Global office.

[28] When I first received the question from the jury, I discussed it with counsel. Initially, I was of the view that my answer should consist of the following points. First, there was no evidence that software was seized from Mr. Raaman’s computer. Second, Mr. Spanjevic’s evidence was that the RB3 was created either at Global’s office or at Mr. Raaman’s home office. Third, the Crown’s submission that an Excel template was used to create the RB3 was inaccurate. Finally, there was no Excel program, template, or spreadsheet seized from Global’s office or Mr. Raaman’s home office.

[29] Counsel for Mr. Raaman contended that the jury’s question reflected a misapprehension of the evidence. He submitted that a clear, concise answer that contained a simple direction that no evidence that software or a template to alter paperwork was found on the computer in Mr. Raaman’s home was introduced at this trial was appropriate. Nothing further was required. Counsel objected to any mention of Mr. Spanjevic’s evidence on this point. He submitted that including Mr. Spanjevic’s evidence about the RB3, Excel or the Crown’s closing submission would not be responsive to the jury’s specific question and could be prejudicial to Mr. Raaman because it would simply repeat the Crown’s argument.

[30] For her part, Ms. Zaman for the Crown supported clarification of her closing address and a review of Mr. Spanjevic’s evidence in my answer to the jury’s question. However, she opposed the jury being told that no Excel template or program was seized from the office at Global or Mr. Raaman’s computer at home. She argued that my noting the absence of any evidence of an Excel template or program to the jury would be unfair to the Crown because I would be introducing evidence that was not raised by any of the parties.

[31] The jurisprudence from the Court of Appeal for Ontario and the Supreme Court of Canada is clear that questions from deliberating jurors provide a clear indication of a specific problem that the jurors are confronting and upon which they require help from the trial judge: R. v. W. (D.), [1991] 1 S.C.R. 742, at para. 36; R. v. S. (W.D.), [1994] 3 S.C.R. 521, at paras. 13-15.

[32] Trial judges have an obligation to provide a clear, correct and comprehensive response to the jury's question: W. (D.), at para. 36; S. (W.D.), at paras. 13-18, 31-34; R. v. Ellis, 2013 ONCA 9, 113 O.R. (3d) 641, at paras. 40-42. However, trial judges should generally receive the input of counsel and weigh any potential arguments that the answer could be prejudicial to a party. That is because it has been recognized that answers to questions from a jury can carry influence beyond that given in the main charge and accuracy is therefore of paramount importance: see R. v. Naglik, [1993] 3 S.C.R. 122, at para. 27.

[33] After reading the question several times, I concluded that the question was really one specific factual question prefaced by a preamble.

[34] The preamble anchored the question to the Crown’s closing address. The jury believed that the Crown had claimed in its closing address that software used to alter paperwork was found on the computer at Mr. Raaman’s home. The Crown had not actually advanced that position. However, setting aside the mistaken belief contained in the preamble, the jury had really asked a single question: was there any evidence or an exhibit in relation to this claim?

[35] The simple answer was no; there was no evidence or exhibit related to this claim. I decided to give an answer that was both accurate and concise.

[36] I agreed with the submission by counsel for Mr. Raaman that reviewing the evidence of John Spanjevic could have unnecessarily complicated the answer to the question.

[37] After reflecting on the submissions, I decided to answer the question in the manner suggested by counsel for Mr. Raaman.

[38] In the main charge, the jury was asked to be very specific and detailed in their questions. In hindsight, I agree that my initial answer perhaps reflected some unwarranted concerns. Jurors are presumed to obey final instructions. In the final instructions, I reviewed John Spanjevic’s evidence. I also reminded the jury several times that the closing addresses of counsel were not evidence and it was their memory that counted not the lawyers. Viewed through that lens, there is no suggestion that the jury did not understand the evidence of John Spanjevic, the evidence about the RB3, the evidence of the Excel template, or that the Crown’s closing was not evidence.

[39] The question from the jury was concise. It required an equally concise and accurate response.

Coroza J. DATE: March 10, 2020