Court File and Parties
COURT FILE NO.: CR-18-1074 DATE: 2020 02 05
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: February 5, 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, Mr. 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 Mr. 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, 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 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, 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, that being approximately $1.024 million, depositing it into five different bank accounts owned or controlled by him personally.
[5] In an earlier ruling, I have permitted the Crown to introduce that Mr. Raaman filed income tax and what the amount of gross income he declared in those returns. I also ruled that the Crown could introduce the same information in relation to Yogeswary Raaman and Sivarajah Raaman. The Crown alleges that Yogeswary is Mr. Raaman’s wife and Sivarajah is Mr. Raaman’s son.
[6] In the course of argument during the admissibility voir dire, counsel for Mr. Raaman argued that the income tax returns of Yogeswary and Sivarajah were being tendered as hearsay. I did not address this argument in my reasons. This morning, counsel requested clarification on my ruling. I heard from both parties this afternoon and I promised I would clarify my ruling.
[7] I have reconsidered my ruling after hearing from counsel. I am not persuaded by counsel for Mr. Raaman’s argument regarding hearsay and my earlier ruling is affirmed.
[8] Counsel for Mr. Raaman contends that while the Income Tax records belonging to Sivarajah and Yogeswary may be admissible under s. 30 of the Canada Evidence Act, R.S.C. 1985, c. C-5 or, alternatively, at common law they are nevertheless inadmissible because they constitute double hearsay.
[9] The Crown relies on the governing provision of s. 30(1) of the Canada Evidence Act that reads:
Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this section in the legal proceeding on production of the record.
[10] There is no dispute that the records are accompanied by an affidavit from an employee of the CRA and that appropriate notice relating to admissibility was provided to the defence. It cannot be seriously disputed that the records fall within the parameters of s. 30(1) such that they can be properly characterized as business records.
[11] Counsel for Raaman does not dispute that the purpose of s.30 is to admit documents that are routinely prepared by employees, under circumstances where there is no motivation to misrepresent the facts being recorded, and are viewed as being inherently reliable. However, counsel argues that what the Crown is really attempting to place before the jury are third party “statements” of Yogeswary and Sivarajah to the CRA.
[12] Counsel for Raaman says that if I were to permit the information to be introduced in this manner, it would leave him no effective way of cross-examining Yogeswary or Sivarajah. The Crown does not intend on calling these parties as witnesses. Therefore, counsel argues that this visits an unfairness on Mr. Raaman in confronting the inferences that the Crown seeks to establish from this evidence.
[13] I cannot accept this argument. When dealing with s. 30 of the Canada Evidence Act, the Court of Appeal for Ontario has noted that the weight of authority is against the argument made by Mr. Raaman (see R. v. Lukacko (2002), 164 C.C.C. (3d) 550 (Ont. C.A.)).
[14] As Lukacko points out, there are leading appellate authorities from different provinces that suggest that double hearsay contained in business records is admissible under s.30 of the CEA. In R. v. Martin, [1997] 6 W.W.R. 62 (Sask. C.A.) the Court addressed the admissibility of Statistics Canada crop production and yield tables pursuant to s. 30. Jackson J.A., after reviewing the cases on point and holding double hearsay does not preclude admissibility stated at paragraph 48:
48 The opening words of s. 30(6) appear to permit a consideration of weight to be made when the court considers admissibility. But if this means a court must reject a record because it contains double hearsay, it places documents prepared in the ordinary course of business in a fundamentally different category than documents admitted pursuant to the common law business duty exception. As indicated in Ares, weight is an issue to be addressed after the document is accepted as evidence. The circumstances in which the information was gathered or the record produced, or the lack of such evidence, may affect the weight to be given to it by the trier of fact, but it does not affect its admissibility.
[15] Jackson J.A. also reinforces a point that the Crown, Ms. Zary, has made in her submissions. The Crown argues that if counsel for Mr. Raaman is correct, then no business record could be admissible under s.30 because most records contain double or triple hearsay. Jackson J.A. put it this way:
Section 30 would have accomplished little if the author of the data contained in a business record had to be called to testify. The complexity of modern business demands that most records will be composed of information gleaned by the maker from others. (see also; R. v. Gregoire (1999), 130 C.C.C. (3d) 65 (Man. C.A.) [underlining is mine].
[16] In BL v Saskatchewan (Social Services), 2012 SKCA 38 the court summarized the approach that most courts have taken to s. 30 of the CEA. The court held that business records are considered inherently reliable because they are created in a context where they are systematically stored, produced and relied on. They are made in circumstances of regularity and continuity which produce habits of precision. The court concluded that where the record complies with the statutory prerequisites, it is sufficiently credible and trustworthy to be admissible and it matters little whether the record contains double or triple hearsay. What to make of “hearsay” in the record, whether it is double- or third-party hearsay, is left to weight and the discretion of the judge and not admissibility.
[17] In my view, the information contained in the tax records belonging to Yogeswary and Sivarajah is admissible. What inferences the jury is prepared to draw about the reporting or non-reporting of income will be for them. This is a question of weight and not admissibility.
[18] Nor do I accept that admitting this information will visit unfairness to Mr. Raaman. First, the jury will be told that it is not conducting a trial on tax evasion. Second, the jury will be told that Sivarajah and Yogeswary are not on trial and that the purpose of this evidence is not to demonstrate that Mr. Raaman is a bad person because his wife or son did not file income tax and/or underreported income. Third, the jury will be told that if they find that Yogeswary or Sivarajah did not file income tax and/or that they underreported income it must not automatically jump to the conclusion that the Crown has proven its case beyond a reasonable doubt. Fourth, no crown witness is permitted to provide an opinion that Sivarajah and Yogeswary were evading taxes. Finally, I agree with the Crown that it is always open for the defence to call Sivarajah and Yogeswary.
[19] The information is admissible. The purpose of this evidence is to complete the Crown’s tracing of funds from the business accounts of Global to these recipients. As I set out in my earlier ruling, the significance of this evidence will depend on any evidence about the relationship between Mr. Raaman, Sivarajah and Yogeswary.
[20] The Crown is permitted to introduce before the jury evidence that Sivarajah and Yogeswary did or did not file tax returns for specific years. Furthermore, the Crown is permitted to introduce the reported gross income on the tax returns that were filed.
Coroza J. DATE: February 5, 2020
Earlier Endorsement
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