COURT FILE NO.: CRIMJ(F) 916/18 DATE: 20200610

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN R. Johnston, for the Crown

- and -

BILL KASTANIS J. Navarrete, for the defence

HEARD: February 3, 2020 at Brampton

REASONS FOR JUDGMENT

André J.

[1] On October 13, 2015, undercover Royal Canadian Mounted Police (“RCMP”) officers arrested Mr. Kastanis as he was about to enter an elevator in a hotel, after they had received information from the United States Drug Enforcement Agency (“DEA”) concerning a drug delivery in Toronto. When arrested, Mr. Kastanis carried two black bags which were found to contain 15 kilograms of cocaine valued between $536,000 and $1,498,000. The RCMP charged Mr. Kastanis with four drug-related offences but only proceeded on the charge of possession of cocaine for the purpose of trafficking. Mr. Kastanis has denied knowledge of the contents of the bags.

SUMMARY OF THE EVIDENCE

[2] The defence conceded the Crown’s case against Mr. Kastanis and agreed that the following facts may be accepted as having been proven beyond a reasonable doubt:

(1) On or about October 13, 2015, members of the Los Angeles DEA (“LA DEA”) were conducting an investigation of the Sinola, Mexico Drug Cartel.

(2) This investigation included the judicially authorized interception of communications of high-ranking members of the Cartel.

(3) During the interception of those communications, the LA DEA learned that an exchange of 15 kilograms of cocaine had been arranged to occur on October 13, 2015, at the Radisson Hotel, 175 Derry Road East, Suite 414, in Mississauga, Ontario, Canada, between an unknown occupant of Room 414 and an unknown Canadian runner.

(4) LA DEA officers provided this information to the United States Drug Enforcement Agency, Ottawa Country Office, who in turn contacted the RCMP, passing on this information for the appropriate actions.

(5) Upon receipt of this information, at approximately 2:30 p.m., the RCMP dispatched multiple officers to the Radisson Hotel, setting up surveillance of the hotel generally, the 4th floor, and specifically Room 414 by occupying a room directly across the hall.

(6) At 6:28 p.m. RCMP officers observed a male identified as Omar Munoz-Gomez (an AeroMexico Flight Attendant) arrive at the hotel and take residency in Room 414.

(7) At 8:05 p.m. RCMP officers observed a male, later identified as Bill Kastanis, arrive at the hotel in an All-Star Taxi and make his way to Room 414, where he knocked upon the door and was granted entry. Upon entering Room 414, Mr. Kastanis was observed to be carrying nothing in his hands.

(8) At 9:00 p.m. Mr. Kastanis exited Room 414, at this time carrying two medium-sized black bags, and proceeded to walk towards the elevators.

(9) RCMP Constables Burris and Viera arrested Mr. Kastanis at the elevator bank on the 4th floor, seized the two black bags, and observed that they contained what appeared to the officers to be bricks of cocaine, and which were later confirmed to be bricks of cocaine.

(10) The officers advised Mr. Kastanis of the reason for his arrest, cautioned him, and provided his rights to counsel, all of which he indicated that he understood.

(11) RCMP officers attended Room 414 and arrested Mr. Munoz-Gomez as well. The room was secured pending the obtaining of a Search Warrant. Both arrested persons were processed.

(12) Mr. Kastanis was put in contact with the counsel of his choosing and, after having spoken with counsel, was interviewed by RCMP officers.

(13) Prior to the RCMP arresting Mr. Munoz-Gomez and Mr. Kastanis, the RCMP had no knowledge of their specific identities nor, for that matter, who might attend at Room 414.

(14) In total, 15 bricks of cocaine weighing 14.987 kgs were found within the two black bags, with purity samples being 71%, 93% and 95%, and having a street value of between $536,000.00 and $1,498,000.00.

(15) The exterior and interior wrapping of the 15 bricks of cocaine were analysed for fingerprints. Neither Mr. Munoz-Gomez’s prints nor Mr. Kastanis’s prints were found on either the exterior or the interior wrappings.

(16) On October 14, 2015, Mr. Kastanis provided a cautioned interview to Constable Walter Vierra of the RCMP after having spoken with counsel.

(17) The accused before the court, Bill Kastanis, is the same person arrested by the RCMP on October 13, 2015.

(18) The jurisdiction of this court to try this matter is not in question.

(19) Continuity of the seized drugs is not in issue.

(20) Voluntariness of statements made to police is not in issue.

(21) All Notices of Intention to adduce the Certificates of Analysis were properly served.

(22) All Notices of Intention to adduce expert evidence and provision of the Expert Report and curriculum vitae were properly served and are accepted as accurate.

(23) If proven that the cocaine was knowingly possessed by Mr. Kastanis, 14.987 kilograms of cocaine would be of sufficient quantity in and of itself to be deemed to be possessed for the purpose of trafficking.

(24) Constable Rodney MacIntyre #53488 of the RCMP has sufficient experience as a police officer in the area of cocaine use, production, distribution, valuation, transportation, possession and trafficking to be deemed an expert in these areas and able to provide an expert opinion concerning the cocaine seized in this matter.

(25) Photograph images adduced by the Crown portray accurate images of the items seized by RCMP during the investigation.

SUMMARY OF MR. KASTANIS’ EVIDENCE

[3] Mr. Kastanis testified that he did not know he was picking up cocaine at the hotel where the RCMP arrested him. He maintained that he believed that he was picking up a shipment of gold for a Mexican friend he had met in the Dominican Republic many years previously.

[4] Mr. Kastanis operated a janitorial service cleaning small businesses and dental offices all over Toronto. He also bought and sold gold on the internet and at the time of his arrest, had done so for 15 years. He sold gold to both shops and individuals.

[5] He travelled to the Dominican Republic in 2010 where he met a Mexican national at a pool bar. The male identified himself as Carlos and advised Mr. Kastanis that he bought and sold gold. Mr. Kastanis spoke to Carlos on a few occasions between 2010 and 2014 about investments.

[6] Mr. Kastanis started to collect money for Carlos in Toronto about a year prior to his arrest. He picked up money for Carlos on four occasions and sent it to him. He believed that the money was payment for gold Carlos had sold.

[7] Six months prior to his arrest, Mr. Kastanis picked up gold for Carlos at the Radisson Hotel located at 175 Derry Road East in Mississauga. He brought the gold to Kingston, Ontario, and gave it to an unknown male. They unwrapped the package and confirmed that it contained gold. The male gave him some gold as payment for the delivery. Mr. Kastanis sold this gold to a pawn shop.

[8] On the date of Mr. Kastanis’s arrest, Carlos asked him to pick up gold again at the hotel. Carlos threatened to kill his child. Mr. Kastanis therefore decided to do as Carlos requested. He took a cab to the hotel because he had earlier had a few drinks. He went to the hotel room and knocked on the door. Mr. Munoz-Gomez opened the door, went into a room, and returned with the two bags. Mr. Munoz-Gomez then opened one of the bags and showed Mr. Kastanis the inside. Mr. Kastanis asked if the contents were gold. Mr. Munoz-Gomez replied yes. Mr. Kastanis asked about the contents because there were two bags rather than one.

[9] Mr. Kastanis reiterated that he never knew that the two bags contained cocaine. Had he known that, he would have called the police right away.

ANALYSIS

[10] There is no direct evidence in this trial that Mr. Kastanis had knowledge that the two black bags contained cocaine; however, such evidence is not necessary for the prosecution to prove its case: R. v. Aiello (1979), 38 C.C.C. (2d) 485 (Ont. C.A.), at para. 8; R. v. Anderson, at paras. 15-16. The Crown can prove this essential element of the offence by circumstantial evidence: R. v. Meggo, [1998] O.J. No. 2564 (C.A.), at para. 1. However, Mr. Kastanis can only be found guilty of the offence based on circumstantial evidence if his guilt is the only reasonable inference to be drawn from the evidence.

[11] There are numerous inconsistencies between Mr. Kastanis’s testimony and his statement to the police on the date of his arrest which raise serious questions about his credibility. First, Mr. Kastanis testified that Mr. Munoz-Gomez opened one of the bags, showed him the contents and said that the bag contained gold. However, Mr. Kastanis told the police that:

I … just don’t open it up. I don’t even open it, you know? I don’t even wanna look at what it was.

[12] Second, Mr. Kastanis testified that Carlos threatened to kill his child if he did not do what Carlos asked him to do. Mr. Kastanis testified that he did not take the threat seriously at the time. However, he told the police that: “I was forced to do it”. He stated specifically:

You know, when they tell ya you’re gonna kill my kid, what do you want me to do?

[13] He also told the police:

But when he threatened me tonight … that’s it. Like, then I say “Okay. Somethings up, this is serious shit now. That not a joke.”

[14] Additionally, Mr. Kastanis testified that when Carlos asked him to pick up the gold, he did not want to do it and he hung up the phone. Carlos then called him back and cautioned him that he did not want something to happen to his wife and child.

[15] Third, Mr. Kastanis testified that he received a bag of gold from the male in Kingston after he had delivered gold to him. However, Mr. Kastanis told the police that he was paid $2,500 for his service. Asked about this apparent discrepancy, Mr. Kastanis testified that he meant that he was paid $2,500 in gold.

[16] I do not accept this explanation. Mr. Kastanis, who has his own business, knows the difference between money and gold. In any event, Mr. Kastanis told the police the following:

The last time they gave me, uh, $2,500 and … this time I told him, “ I don’t want no money ”.

[17] Fourth, Mr. Kastanis told the police that he asked Carlos: “Are you sure its gold?”

[18] Even if I find that Mr. Kastanis asked Carlos this question, it would still constitute evidence, that at the very minimum, Mr. Kastanis was wilfully blind to the fact that the bags contained an illegal substance. This question, in addition to Mr. Kastanis’s statement to the police that “I don’t even wanna look at what it was”, suggests that Mr. Kastanis had suspicions about what Carlos had asked him to pick up and that he was wilfully blind in that his suspicion was sufficiently aroused to a point where he had to make further inquiries but deliberately chose not to do so: see Sansregret v. The Queen, [1985] 1 S.C.R. 570; R. v. Jorgensen, [1995] 4 S.C.R. 55.

[19] Mr. Kastanis’s explanation regarding what he was thinking when he claimed to have asked this question makes no sense. He testified that he did not think or suspect that the bags contained drugs. Rather, he suspected that the contents could have been platinum or palladium, which were more valuable than gold. He was concerned that being in possession of either of these precious metals would increase the likelihood that he would be robbed.

[20] I do not believe Mr. Kastanis’ evidence concerning his suspicions about the contents of the bag. He had never been asked to pick up platinum or palladium. He had never seen either in a bag he picked up for Carlos. It makes little sense that he would believe that transporting platinum or palladium, as opposed to over three pounds of gold, would increase the likelihood of him being robbed.

[21] Further, Mr. Kastanis claimed that he was threatened that his child would be killed if he did not pick up the bags. I have no difficulty finding as a fact that Mr. Kastanis, at the very minimum, shut his eyes because he knew or suspected that the bags contained cocaine. Significantly, Mr. Kastanis told the police the following:

So, I’m like – when I looked at it, I said, “Oh, I don’t even wanna know”, I just put it down.

Indeed, Mr. Kastanis agreed that at the time of the incident, gold was valued at $1,200 per ounce. If it had been 15 kilograms of gold in the two bags, the contents therefore would have been worth approximately $2.88 million. Surely, Mr. Kastanis would have been concerned about being robbed if he believed that there was gold in the bags. In my view, his failure to inquire or inspect the packages was motivated either by a) his knowledge of the contents of the packages; or b) his desire to avoid the truth.

[22] Fifth, Mr. Kastanis testified that he did not inspect the contents of the bag that Mr. Gomez opened, but he told the police that his fingerprints would be on the packages within the bag because he had inspected them.

[23] Given these inconsistencies, I disbelieve Mr. Kastanis’ testimony and find that it does not raise a reasonable doubt in the Crown’s case. I find, based on the evidence I accept, that Mr. Kastanis knew the contents of the two bags he was found to be in possession.

[24] There is additional circumstantial evidence I can consider in deciding whether or not Mr. Kastanis’s knowledge of the contents of the bags is the only reasonable inference I can draw from the evidence. The uncontested evidence is that a great amount of cocaine was entrusted to a flight attendant to deliver it to a third party who turned out to be Mr. Kastanis. In my view, the amount of the cocaine and its value are factors to be considered, along with the other factors outlined above, in deciding whether the Crown has proven this essential element of the offence beyond a reasonable doubt. As noted by Hill J. in R. v. McIntosh, at para. 45:

The retail value of the drug associated with a person is relevant not only to whether he or she had knowledge the substance was a narcotic (R. v. Blondin (1970), 2 C.C.C. (2d) 118 (B.C.C.A.) at 121 (aff’d on appeal (1971), 4 C.C.C. (2d) 566n (S.C.C.)) but also to whether the person had knowledge of the substance itself (R. v. Fredericks, [1999] O.J. No. 5549 (C.A.) at para. 3-4).

[25] In my view, the Crown has proven beyond a reasonable doubt that Mr. Kastanis had knowledge that the bags he received contained cocaine. Accordingly, Mr. Kastanis is found guilty of the offence of possession of a Schedule I controlled substance for the purpose of trafficking (count no. 2 on the indictment).

[26] Mr. Kastanis is remanded out of custody, to September 14, 2020 at 10:00 a.m. before me.

OTHER COUNTS

[27] Counts 1, 3 and 4 are marked as withdrawn at the request of the Crown.

André J

Released: June 10, 2020

COURT FILE NO.: CRIMJ(F) 916/18 DATE: 20200610 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and - BILL KASTANIS REASONS FOR JUDGMENT André J. Released: June 10, 2020