COURT FILE NO.: CR-18-1074
DATE: 2020 01 21
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN v. RAAMKUMAR RAAMAN
BEFORE: COROZA J.
COUNSEL: C. Zary and G. Zaman, for the Crown
R. Pillay, for the Accused
HEARD: November 18, 2019 and January 8, 2020
ENDORSEMENT
Overview of the Case
[1] The accused, 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.
[2] Between 2007 and 2012, Raaman provided freight forwarding services through six different Ontario companies, referred to as Global Majestic Logistics Group of Companies (GML).
[3] The Crown alleges that Raaman was the owner, operator and controlling mind of GML. The companies assisted over 200 commercial importers with over 1900 importations of goods into Canada.
[4] The Crown's theory is that between 2007 and 2012, Raaman carried out a fraudulent scheme through 356 transactions to import goods into Canada. Raaman, directly or through his freight forwarding companies, provided the Customers Broker with false documents for the transactions, either underreporting or undervaluing the goods being imported into Canada. This resulted in less duties and taxes owing and being paid to the Government of Canada. However, Raaman billed his clients for the correct amount of duties and taxes owing. Raaman allegedly then kept the difference between the billed amount and the falsely reported amount, that being approximately $1.024 million, depositing it into five different bank accounts owned or controlled by him personally.
Pre-Trial Motion #1: Admission of Alternate Suspect Evidence
[5] Raaman seeks an order allowing him to advance evidence that five employees of GML (Spanjevic, Gomes, Sonnylal, Carreira and Pimentel) were involved in the commission of the offence.
[6] At the outset of the motion, the Crown conceded that the application should be granted for Spanjevic, Gomes and Sonnylal but it opposed the order being granted for Carreira and Pimentel.
[7] The Crown also asserts that Pimentel is now deceased. It has also brought an application to admit Pimentel's prior police statement as part of the Crown's case. I will deal with that application below.
The Law
[8] Evidence of the potential involvement of a third party in the commission of an offence is admissible provided it meets the test of relevancy and has sufficient probative value to justify its reception: see R v. Grandinetti, 2005 SCC 5 ("Grandinetti") and R. v. Grant, 2015 SCC 9 ("Grant").
[9] The Supreme Court of Canada in the decisions of Grandinetti and Grant has emphasized that a sufficient connection between the third party and the crime is essential to the application. Without this link, the third-party evidence is neither relevant nor probative. The evidence may be inferential, but the inferences must be reasonable, based on the evidence, and not amount to speculation.
[10] Counsel for Raaman, highlights that the Crown will be calling Carreira and other witnesses to describe the day to day operations of GML. These witnesses will also describe what role each employee performed on a daily basis. Counsel points out that once this factual matrix underlying the charge is introduced to the jury, it naturally gives rise to other suspects.
[11] The Crown argues that the defence theory is speculative. For example, the Crown suggests that Carreira had limited responsibility as an employee and worked for the company for only one year. The Crown also asserts that Pimentel was nothing more than a dispatcher.
[12] All Raaman must show is that there is some basis upon which a reasonable, properly instructed trier of fact could acquit based on the defence. He need not establish that the defence is somewhat likely, likely, or very likely to succeed. It is necessary only that the inferences that the defence seek to rely on are available and reasonable and not based on speculation.
There is a Sufficient Connection
[13] In my view, Raaman has established that the evidence to be introduced is relevant and probative. There is sufficient evidence connecting Carreira and Pimentel to the crime, both directly and inferentially, to justify the granting of leave to adduce third party suspect evidence. I say this for the following three reasons.
[14] First, there is no dispute that both men worked at GML. Both men provided police statements that outline their involvement with the company and the role that the others played. GML is not a large corporation. There were a few employees.
[15] Second, Carreira and Pimentel were involved with other employees in the day to day operations of GML. I am satisfied that both men were aware of the billing practices of the other employees. This case is primarily about those billing practices.
[16] Third, I am also satisfied that there is some evidence that both men are sufficiently connected to the invoicing practices of the company. There is some evidence that Pimentel would occasionally handle the invoices. There is also evidence that Carreira actually kept a copy of the invoices.
[17] I recognize that at this stage of the proceedings, I do not have the complete picture. On the one hand, both Carreira and Pimentel denied involvement with the crime. On the other hand, there is considerable force to the Crown’s submission that the other statements provided by the other employees suggest that Carreira and Pimentel were not involved with billing and invoicing. If the jury accepts the evidence of these Crown witnesses, the inferences suggested by Raaman about Carreira and Pimentel may turn out to be very weak.
[18] However, at this point, the defence only has to demonstrate that the suggestion that Carreira and Pimentel were involved has an air of reality. As I see it, at this point of the proceedings, it is not unreasonable to suggest that it was the employees of GML that were potentially involved in the handling and manipulation of documents that form the basis for the fraud. Carreira and Pimentel were employees.
[19] Finally, I am also not persuaded that there will be any undue prejudice to the trial by permitting counsel for Raaman to advance evidence to these specific employees. Indeed, as counsel for Raaman points out, the Crown will be calling Carreira and other employees as part of the Crown’s case and the advancement of the defence is likely to flow naturally from questions asked during cross-examination.
[20] The application for leave to adduce third party suspect evidence is granted.
Pre-Trial Motion #2: Admission of Videotaped Statement of Deceased Witness
[21] The Crown seeks an order allowing it to tender the videotaped statement of Pimentel as evidence during this trial.
[22] During oral argument, the Crown submitted that the Crown would only put the following portions of the statement before the jury:
• First, Pimentel was only employed as a dispatcher and that he did not do anything else for GML;
• Second, Pimentel understood that Raaman was the owner of GML; and
• Third, Spanjevic as the general manager of GML distributed cheques that Pimentel had received from Raaman.
[23] The Canada Border Services Agency (CBSA) interviewed Pimentel on November 27, 2015. The statement was videotaped and later transcribed. Pimentel was subpoenaed to testify at the preliminary inquiry. However, on May 30, 2018, Raaman conceded committal to trial. In preparation for trial, the CBSA learned that Pimentel died on November 29, 2018.
[24] The Crown submits that the videotaped statement meets the criterion for reliability and necessity and should be admissible.
[25] The Crown argues that in order to respond to the defence position that Pimentel was involved in the commission of the crime, the jury needs to hear his statement to understand Pimentel’s position about his role with GML.
[26] Counsel for Raaman argues that there are significant concerns surrounding the reliability of the statement. Furthermore, the defence argues that the probative value of this statement is outweighed by its prejudicial impact. Counsel points out that the statement was not under oath and that Pimentel was not cross-examined.
[27] In my view, it would be appropriate to defer this issue until the end of the Crown's case. I say this because if the Crown’s purpose for the application is to ensure that the jury is given a balanced picture about Pimentel’s role, then respectfully the application is premature.
[28] I recognize that I have ruled that the defence can advance an alternate suspect defence. However, many of the points that the Crown wishes to elicit from Pimentel’s statement will likely come from the examination of other witnesses. If the sole purpose for the Crown’s application is to ensure that the jury has a balanced view of Pimentel’s role, then this evidence may come from other witnesses.
[29] Moreover, experience suggests that as the trial progresses, issues raised at the outset of the proceedings have a tendency to either disappear or get resolved. Those that remain outstanding are likely to be brought into much sharper focus as the evidence unfolds. (See: R. v. Harris 1997 CanLII 6317 (ON CA), [1997] OJ No 3560 (C.A.) per Moldaver J.A. (as he then was))
[30] As I see it, it is necessary for me to have the full picture before I can determine the potential probative value of the statement and whether it is outweighed by any prejudicial impact. This is one of those applications that requires a “wait and see” approach.
[31] The application is dismissed, without prejudice to the Crown to renew it before the close of its case.
Coroza J.
DATE: January 21, 2020
COURT FILE NO.: CR-18-1074
DATE: 2020 01 21
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN v. RAAMKUMAR RAAMAN
BEFORE: COROZA J.
COUNSEL: C. Zary and G. Zaman, for the Crown
R. Pillay, for the Accused
ENDORSEMENT
COROZA J.
DATE: January 21, 2020