COURT FILE NO.: CR-18-1074 DATE: 2020 02 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: February 19, 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) and Royal Logistics.

[3] The Crown alleges that Raaman was the owner, operator and controlling mind of GML and Royal. 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.

[5] The Crown alleges that after Global ceased operations, Raaman and others continued to work as freight forwarders under the name of Royal at an office found at 66 Guided Court in Toronto, Ontario.

[6] A search warrant was executed by the CBSA at that address. There were no occupants in the office at the time of the search. The CBSA seized a number of documents from a shredder box located in a closet. The Crown has introduced those documents into evidence as real and tangible evidence found by the CBSA. With the exception two documents (Exhibit P: invoice and emails), counsel for Raaman did not object to the Crown tendering the documents.

[7] At the conclusion of the trial evidence, I heard a voir dire on two issues. First, the admissibility of Exhibit P and the use that can be made of some of the other documents found in the shredder box.

[8] These are my rulings in relation to the issues raised.

Admissibility of Exhibit P

[9] Lettered Exhibit "P" consists of an outstanding invoice of monies owed to a company called ATS by Global, and email exchanges between November 21 to 23, 2011 involving Brian Sonnylal and employees of ATS.

[10] The jury has heard evidence that Sonnylal was in charge of freight transportation with Global and then later with Royal. Sonnylal indicates in the email exchanges that "Raam" (it is not disputed that this is Raaman) is the person to whom to deal with for outstanding payments. Excerpts from the email chain include:

• November 23, 2011 at 9:48 am from Brian Sonnylal to Steve Barr: “Sir, I am sure Raam is paying all the outstanding invoices, I am not sure if it is immediately. Please call him to verify. Brian”
• November 23, 2011 at 11:14 am from Brian Sonnylal to Steve Barr at ATS: “Steve, I will have Raam call you. Brian”
• November 23, 2011 at 10:01 am from Steve Barr at ATS: “Brian, I am tired of calling Ram. You can tell him to call me. The invoices are overdue and need to be paid immediately. Steve”

[11] There is also evidence that has been introduced to the jury that payments were subsequently made to ATS from Global Majestic bank accounts. The payments are found in bank account records ending in 6367. There were three cheques paid to ATS on November 25, 2011, November 29, 2011 and December 15, 2011.

[12] The Crown contends that the invoice and the email chain are admissible as a document found in possession. Counsel for Raaman argues that the invoice and emails are not admissible because the Crown cannot show that Raaman possessed these documents. Furthermore, Raaman argues that he was not a party to the emails and the content of the emails is hearsay.

Document in Possession Rule

[13] Fairburn J.A. in the recent decisions of R. v. Bridgman, 2017 ONCA 940 and Bukshtynov v. McMaster University, 2019 ONCA 1027 has reviewed the documents in possession of rule. As she points out, the rule is designed to permit admission of documents in two different circumstances for two different purposes.

[14] First, documents found in personal, constructive or joint possession of an accused are admitted as original circumstantial evidence of their contents to establish the accused’s knowledge, connection to or complicity in the matter to which the documents relates. If documents are admitted as original circumstantial evidence, they are elicited for a non-hearsay purpose.

[15] Second, if there is evidence that exists that the accused has recognized, adopted or acted upon the documents found in possession, the documents may be admitted as an exception to the hearsay rule because they are admissions allowing the trier of fact to consider them for the truth of their contents. In other words, if the party in possession has recognized, adopted or acted on the document an admission of acceptance of its contents as true may be inferred.

[16] Generally speaking, an adoptive admission is a statement that is usually made by another person in the presence of the accused, where the accused can be said to have adopted the statement. However, the jurisprudence has held that adoptive admissions are not restricted to oral statements. The admissions can be made in writing (see for example the letter in R. v. Turlon (1989), 49 CCC (3d) 186 (C.A.)). What is important is that adoption only occurs where the accused expressly or impliedly assents to the truth of the statement. Adoption can occur by a variety of means, including words, actions, conduct or demeanour.

[17] I now turn to the Crown’s arguments with respect to Exhibit P. The Crown argues that this outstanding ATS invoice and the email exchange is admissible for the dual purposes of circumstantial evidence and for the truth of their contents. The Crown argues that these documents are circumstantial evidence of Raaman's involvement in the overall operations of both Global and Royal, including any services provided by ATS to Global Majestic; and the documents are adoptive admissions because Raaman acted upon the contents of the email and paid the outstanding invoice of ATS, as demonstrated in the cheques.

[18] I am persuaded by the Crown’s argument. I view the ATS invoice as admissible as an adoptive admission. That is because the Crown seeks to show that Raaman acted on the invoice because he paid it as revealed by the three payments that were subsequently made from bank account ending in 6367 (to which Raaman had sole signing authority) after the date of the invoice. By acting on it, it can be inferred that he accepted the truth of the statement in the document (i.e. money is owed by Global to ATS).

[19] I take the same view of the email exchange. Knowledge of the contents of the email is not a condition precedent to the evidentiary value of the email. The Crown’s argument is that Raaman acted upon the contents of the email and paid the outstanding invoice of ATS. Therefore, it can be inferred that he has accepted the contents of the emails. In my view, it would be open to the jury to accept the payment of the cheques to ATS in the days following the email exchange as a form of adoption. In other words, the jury might conclude that the cheques that were paid out to ATS reflected the discussion between Sonnylal and ATS. If the jury accepted this then the evidence could be received as an admission to prove the truth of its contents: see R. v. Turlon, supra.

[20] However, the jury will have to be instructed that before this evidence can have any value for the Crown it must be satisfied that these documents were found in Raaman’s personal, joint or constructive possession. That is because the jurisprudence makes it clear that the rule only applies where the Crown can establish that the document in question was in the possession of Raaman. Possession is defined in s.4(3) of the Criminal Code, R.S.C. 1985, c. C-46. It can be inferred from either direct or circumstantial evidence: see R. v. Black, 2014 BCCA 192.

[21] The jury will have to be told that these documents were found in a shredder box, not in plain view and there is no evidence how or when the documents got into the box. It will be for the jury to decide, based on all of the evidence, whether Raaman was ever in possession of the invoice or the email.

[22] I conclude therefore that Exhibit P is admissible as documents found in possession and can be considered by the jury with the appropriate caution. Exhibit P will now be Exhibit 57 at this trial.

Evidentiary Use of Exhibits 19, 25, 27, 41, 45

[23] Following the same analysis with respect to Exhibit P, I now turn to the dispute about the Crown’s proposed use of five other documents found in the shredder box. Again, I agree with the defence that before the jury can consider this evidence as having any value for the Crown it must be satisfied that Raaman was in possession of the documents.

(i) Exhibit 27, 41 and 45

[24] If the jury is satisfied that Raaman has possession of the documents, based on the analysis with respect to Exhibit P, the jury can consider these three exhibits as adoptive admissions. There is evidence that has been introduced at this trial that cheques were drawn from accounts connected to Raaman for the purpose of paying off 407 bills, outstanding invoices to Parkwood and Cavanaugh and as a gift to Perry Northey. Exhibits 27, 41 and 45 all appear to be connected to these cheques.

(ii) Exhibits 19 and 25

[25] However, I take a different view of the business cards (Exhibit 19), and Royal pricing sheet (Exhibit 25). These documents are not adoptive admissions. There is no evidence that these documents were acted upon. Their only use can be that of circumstantial evidence relating to Raaman’s connection to or complicity in the matter to which the documents relate.

[26] The inference of Raaman’s involvement in Global and Royal does not derive from the truth of the contents of any of these documents. The inference is derived from the location of the documents containing information regarding Global and Royal in a building to which Raaman was connected to. Therefore, the business cards with the name Raam and the pricing sheet are pieces of real or tangible evidence that does not rely on any hearsay. In my view, these documents are analogous to a sign posted outside of the door listing the name of the company and the occupants of the offices with their titles or a large pricing sheet prominently displayed in the office for the public.

[27] However, the jury has to be told that these documents were found in a shredder and not in plain view. Again, they must be instructed that they can not use this evidence unless they are satisfied that Raaman was in possession of these documents.

[28] I make the following findings:

• Exhibit P is admissible as a document in possession because these documents are adoptive admissions
• Exhibit 27, 41 and 45 are admissible as adoptive admissions
• Exhibit 19 and 25 are admissible as circumstantial evidence but not for the truth of their contents

Coroza J. DATE: February 21, 2020