ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RAVI SHANKER
Christina Malezis, for the Crown
Alan Gold and Madeline Ross, for Mr. Shanker
HEARD: April 29, 2021
R.F. GOLDSTEIN J.
REASONS FOR JUDGMENT on Application To Vary Bail
1The Crown alleges that Mr. Shanker is a major drug trafficker. The police arrested him in 2018 at the completion of a major drug investigation called Project Terminal. He was charged with multiple serious drug trafficking offences. He was released on bail. The police arrested him again in 2020 in relation to another major drug investigation. That one was called Project OSwordtail. Mr. Shanker was charged with further very serious drug trafficking offences. The allegations in both projects involve kilo-level amounts of heroin and cocaine, among other substances.
2The Crown sought to detail Mr. Shanker after his arrest in relation to Project OSwordtail. The Crown also sought to revoke his Project Terminal bail. A lengthy bail hearing was held before Justice Porter of the Ontario Court of Justice. Justice Porter found that Mr. Shanker met his onus on the secondary and tertiary grounds and agreed to release him on very strict terms on one global bail. The terms include living with his surety and a strict house arrest with GPS monitoring.
3Mr. Shanker now wishes to vary his bail. He requests the following:
That he be permitted to telephone his mother while he is in the presence of his surety;
That his residential surety be changed;
That he be permitted to go to his warehouse to operate his liquidation business.
4The Crown consents to the first variation and it is not an issue on this bail hearing. That variation is granted. The Crown also agrees that there has been a material change of circumstance in relation to the residential surety but argues that the surety should not be changed. The Crown argues that there is no material change in circumstance justifying permitting Mr. Shanker to attend his warehouse.
5I make the following findings:
I agree that there has been a material change of circumstances in relation to the residential surety.
The application to vary the surety is dismissed.
There has not been a material change of circumstances in relation to Mr. Shanker’s liquidation business or attendance at his warehouse.
Even if there were a material change of circumstances, I would not grant the liquidation business variation.
6What follows are my reasons.
BACKGROUND:
7Project Terminal was an investigation into major drug trafficking. Mr. Shanker faces 15 counts in relation to that case. The most serious allegations are that Mr. Shanker was party to the trafficking of 1.4 kilograms of heroin; and that he possessed proceeds of crime valued at approximately $1 million. The Crown also alleges that Mr. Shanker possessed, respectively, 492 grams of opium for the purpose of trafficking (April 16, 2018), possession of 1012.64 grams of opium for the purpose of trafficking (July 13, 2018); possession of 1 kilogram of opium for the purpose of trafficking (August 2018) and trafficking 350 grams of opium (also August 2018).
8After Mr. Shanker’s arrest in 2018 he was released on a $400,000 bail. The sureties were his ex-wife and his brother, Ravinder Paul. Mr. Shanker’s ex-wife and Mr. Paul and were also sureties on Mr. Shanker’s 2010 extradition bail.
9Project OSwordtail was another major drug investigation. The investigation took place largely in 2020. The Crown also alleges that Mr. Shanker was part of a conspiracy to provide cocaine and pills (either fentanyl or heroin) for export to Australia. He faces 8 counts. On July 3-4 an associate of Mr. Shanker’s, one Palumbo sold one kilogram of cocaine to an undercover officer for $76,000.00. The Crown alleges that Mr. Shanker was a supplier. A few days later, on July 11, 2020, Mr. Shanker and another associate allegedly delivered 30 kilograms of cocaine to Mr. Palumbo as part of the export scheme.
THE BAIL HEARING
10Mr. Shanker’s bail hearing took place over several days. The Crown sought to cancel Mr. Shanker’s earlier bail and have him detained on all charges.
11Justice Porter described the Crown’s case as strong but found that Mr. Shanker had met his onus on the secondary and tertiary grounds. He made that finding primarily because he found that Mr. Shanker’s current surety, Dalbir Sidhu, was suitable. He was impressed with Mr. Sidhu. Mr. Sidhu has known Mr. Shanker for 40 years. He found Mr. Sidhu to be honest and straightforward.
12Justice Porter released Mr. Shanker on very strict terms, including the following:
He is to reside with Mr. Sidhu;
He is to wear a GPS ankle monitor provided by Recovery Science Corporation;
Mr. Shanker is to remain within his residence 24 hours per day, 7 days a week. He is permitted to leave the house in the company of Mr. Sidhu only for the purpose of travelling to court; for medical purposes; to meet his lawyer; and once per week for three hours shopping for personal necessities;
Mr. Shanker is not to possess or access a cell phone or any device that can access the internet or communicate remotely;
Mr. Shanker is to have no visitors other than his children or such other person who is known or approved by Mr. Sidhu. Any such visit must be monitored by Mr. Sidhu.
ISSUES:
(a) Has there been a material change of circumstances in relation to the residential surety condition?
(b) Should the variation in relation to the residential surety condition be granted?
(c) Has there been a material change of circumstances in relation to the liquidation business condition?
(d) Should the variation in relation to the liquidation business be granted?
ANALYSIS
(a) Has there been a material change of circumstances in relation to the residential surety condition?
13Since the bail hearing three of Mr. Sidhu’s grandchildren have moved in with him. Apparently, this is causing crowding in the Sidhu home. The Crown accepts that Mr. Sidhu’s circumstances constitute a material change of circumstances.
(b) Should the variation in relation to the residential surety condition be granted?
14The defence argues that there is no basis upon which to deny the application. It is a simple matter of space in the Sidhu household. Mr. Sidhu needs to be able to accommodate his grandchildren, and the situation is untenable with Mr. Shanker present. Ms. Hundal, the proposed surety, has known Mr. Shanker for many years, and is a perfectly acceptable surety.
15With respect, I cannot agree. I find that Ms. Hundal, while an honest person, is not up to the challenging task of supervising Mr. Shanker.
16The onus rests upon Mr. Shanker to show that the bail variation should be granted: Criminal Code, s. 520(7)(e). It bears repeating that based on the charges, it is Mr. Shanker’s onus to show that the plan continues to meet the onus on the secondary and tertiary grounds. I think that Justice Porter’s comments about Mr. Sidhu (in relation to the secondary ground) bear quoting:
I was very impressed with the common sense, non-nonsense approach of the proposed surety, Delbir Sidhu, who I accept would diligently supervise Mr. Shanker and testified that, if an order was made requiring Mr. Shanker to live with Mr. Sidhu, and remain in the residence, with very limited exceptions, he was prepared to be a surety under those terms.
17One thing that was not explored by counsel was geography. In my view, geography is a factor in this application. Ms. Hundal lives at 10 Clarke Haven Road, in Brampton. Mr. Shanker’s original bail in relation to Project Terminal required him to live at 15 Clarke Haven Road in Brampton. The two residences are obviously in very close proximity. Mr. Paul is Mr. Shanker’s brother and former surety. Although it is not entirely clear from the material before me, it appears that 15 Clarke Haven Road is Mr. Paul’s residence. Mr. Shanker was, allegedly, using his brother’s car and cell phone while on bail from Project Terminal to commit serious drug offences in relation to Project OSwordtail. In the bail hearing before Justice Porter, Mr. Paul insisted he properly supervised Mr. Shanker. He also insisted that he properly supervised Mr. Shanker in relation to an older extradition matter. It is fairly obvious that not only did he fail as a surety (no doubt the reason he has not been proposed now) but it seems as if he may have been negligently facilitating his brother’s illegal activities, even if unknowingly.
18Although it is not a decisive factor that Mr. Paul appears to reside only a few houses from Ms. Hundal, it is a factor. If Mr. Paul once again lends Mr. Shanker his car, or his phone – which he could easily do given their geographical proximity – he will be under no obligation to report his brother’s violation to the police. He certainly does not stand to lose any money.
19Another geographical factor is the distance from Mississauga to Kitchener. Mr. Sidhu lives in Kitchener. It is unclear to me how Mr. Sidhu is going to continue to supervise Mr. Shanker from that distance. Justice Porter’s decision was premised on Mr. Sidhu’s close supervision of Mr. Shanker. To repeat, Mr. Shanker requires the closest possible supervision from a surety. Even if Mr. Sidhu remains a surety, he cannot provide the kind of supervision that Mr. Shanker undoubtedly requires. That is especially so while this province is under an emergency stay-at-home order due to the Covid-19 pandemic.
20Regrettably, I do not accept that Ms. Hundal can provide that kind of supervision. While she appears to be well-meaning, she is not equipped to properly monitor him. The current plan would leave in place the condition that Mr. Shanker cannot receive visits from anyone other than his children and people approved of by his surety. The current plan would also permit Mr. Shanker to use the phone for work purposes. Ms. Hundal’s English is limited. She would have no way of monitoring Mr. Shanker’s conversations in English. I agree with Mr. Gold that the fact that Ms. Hundal is Mr. Shanker’s former landlord is not determinative. That said, while the two of them have known each other a long time, she does not know him that well. Ms. Hundal would have no way of determining whether one of Mr. Shanker’s visitors was a friend or a drug associate. As the plan currently stands, that condition is less a prohibition than a loophole – one that a drunken sailor could steer a battleship through.
(c ) Has there been a material change of circumstances in relation to the liquidation business condition?
21The defence argues that Mr. Shanker has complied with his bail over the past eight months. It is not clear to me when the trials will start, but Mr. Gold stated that it is “over the horizon”. Mr. Shanker should have the opportunity to go back to work.
22I do not agree that simply observing bail conditions for eight months in the context of this case constitutes a material change of circumstances.
23A reviewing judge may vary an initial bail decision if the evidence shows that there has been a relevant and material change in circumstances: R. v. St-Cloud, 2015 SCC 27 at para. 121. A judge may consider the bail transcripts; any exhibits filed at the initial bail hearing; and additional evidence that may be tendered by the accused or the prosecutor: Criminal Code, s. 520(7).
24In his book The Law Of Bail In Canada (3d Ed), Justice Trotter observed that the courts have looked upon a material change of circumstances in the following way:
As with errors of law, not any material change of circumstances sufficed in terms of "showing cause" why the order being reviewed should be changed. Generally speaking, the courts recognized material changes of circumstances involving some event that has occurred between the bail hearing and the review hearing (or between review hearings).
25Whether new evidence should be received in relation to a material change of circumstances is governed by the Palmer criteria: R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759; St-Cloud at paras. 128-129.
26Justice Trotter went on to describe the types of situations that will constitute a material change of circumstances:
Not all bail review applications that assert a material change in circumstances will engage the Court's fresh evidence framework, at least not in the classic sense. Many claims of changed circumstances involve events in the criminal trial process, of which a reviewing judge may take judicial notice. Other changes will require that the applicant adduce evidence, the admissibility of which may be contested. This is illustrated in the following examples of asserted material changes in circumstances (most of which pre-date St-Cloud):
the withdrawal of outstanding charges or the discharge on certain counts at the preliminary inquiry;
a reduction in the strength of the Crown's case since the bail hearing;
the availability of disclosure that was not available at the original bail hearing or on a prior bail review;
new psychiatric or medical evidence;
the development of a new plan of release; and
the passage of a significant amount of time spent in pre-trial custody (in relation to the appropriate range of sentence).
The categories are not closed and depend upon the specific circumstances of the case.
27I do not doubt that there are some cases where an accused person has demonstrated compliance it may constitute a material change of circumstances. Mr. Shanker’s desire to go back to work as a liquidator is not one of them.
28The eight months of compliance cannot overcome the much longer history of bail breaches. In 2010 Mr. Shanker was committed for extradition to the United States. He was ultimately extradited (the charges against him were withdrawn in 2012). During the course of the extradition proceedings, Justice MacDonnell found that Mr. Shanker had deliberately breached his bail on three occasions. Mr. Shanker applied for bail pending appeal. Justice Cronk dismissed the application. She relied on Justice MacDonnell’s finding. She found that a $1.1 million bail was no deterrent at all to Mr. Shanker.
29Mr. Gold argued, both before Justice Porter and before me, that the findings of Justice Cronk and Justice MacDonnell were simply opinions and had no weight. Mr. Shanker has never been convicted of a bail offence; and no forfeiture hearings were taken against the sureties on the extradition bail. The findings were, therefore, irrelevant.
30Justice Porter did not accept this argument and neither do I. Although I do not have evidence one way or the other, I have no doubt that the Crown chose not to prosecute the fail to comply charges (and thereby estreat the bail) for an obviously pragmatic reason: it would have delayed Mr. Shanker’s extradition. It would have been pointless to lay relatively minor breach charges against a person facing extradition. The fact that the Crown chose not to prosecute and estreat bail does not let Mr. Shanker (or his brother or ex-wife, his sureties at the time) off the hook for their failures. It also does not let Mr. Shanker off the hook for his breaches as found by Justice MacDonnell.
31As well, Mr. Shanker is alleged to have seriously breached his Project Terminal bail, as I have already outlined.
32I also find that the Palmer criteria have not been met. At his original bail hearing, Mr. Shanker proposed working at two jobs: one job was for his brother at his mattress business; the other was a part-time job at a banquet hall. Justice Porter rejected those employment opportunities. He found that the risk of re-offending while at work was simply too high.
33Mr. Shanker testified before me that he had originally run a liquidation business. He would buy up product, show samples to customers, and arrange for shipment. Mr. Shanker testified that he was in this business prior to his arrest and he wanted to go back to it. At the original bail hearing there was no mention made of a liquidation business.
34New evidence may be admitted under the Palmer criteria where it meets the following requirements:
The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial. ...
The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
The evidence must be credible in the sense that it is reasonably capable of belief, and
It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
35I do not see how Mr. Shanker’s evidence meets any of the Palmer criteria, except, perhaps, the third:
The evidence about the liquidation business could easily could have been admitted at trial;
Had the liquidation business evidence been introduced at the bail hearing it would have made no difference to a decisive or potentially decisive issue;
I am quite certain that Justice Porter would not have permitted Mr. Shanker to leave his residence or use the telephone to conduct his liquidation business even if that evidence had been before him.
36I find, therefore, that there has not been a material change of circumstances.
(d) Should the variation in relation to the liquidation business be granted?
37Even if I were to have found a material change of circumstances, I would definitely not grant the proposed variation, for reasons that I will explain.
38Mr. Shanker allegedly made use of warehouses for the purposes of facilitating drug trafficking, both as a place to store drugs and as a place to deliver drugs. As I understand the liquidation business, Mr. Shanker sources products (he says he can sell anything) and delivers samples to customers. Mr. Shanker must use the telephone, travel to other businesses to show samples, and arrange for the shipment of items. That is not unlike what commercial drug traffickers do, and what Mr. Shanker was specifically alleged to have done in this case.
39Moreover, even if a surety were monitoring Mr. Shanker, it is well-established that drug traffickers regularly use coded language. How is Mr. Sidhu, or Ms. Hundal, to know that a conversation about “30 cases of hand sanitizer” isn’t, in fact, a conversation about 30 kilograms of cocaine or 30 ounces of heroin? Such a scenario is not far-fetched; that is what drug dealers do and it is what Mr. Shanker is alleged to have done in this case.
40Justice Porter, who had the benefit of very fulsome evidence and written submissions, refused to allow Mr. Shanker to be employed while on bail. He said the following:
In my opinion, the risk of Mr. Shanker re-offending is substantial if he were to work at Modern Mattress and Sofa as proposed. The proposed employment would have him interacting with the public in the company showroom which, in light of the current charges, and the breaches noted by Cronk J.A. in the extradition appeal, creates an unacceptable risk of re-offence.
Similarly, the proposed employment at Chandi Victoria Hall on weekends, under the supervision of Pradeep Sharma, would have him potentially interacting with numerous other employees, with whom he could converse in English, which Mr. Sharma acknowledges he may not fully understand. This too creates an unacceptable substantial risk of re-offence.
41Those words apply with even more force to the proposal for Mr. Shanker to go into the liquidation business.
42At the end of the day, I think it is obvious from Justice Porter’s decision that Mr. Shanker achieved bail by the skin of his teeth. He allegedly circumvented the Project Terminal bail conditions (cleverly, in the Crown’s characterization) and continued in his high-level drug business. I see no reason why he would not continue to do so if given even the slightest opportunity. He should not be given that opportunity. I would dismiss this part of the application on the secondary grounds. I would also dismiss it on the tertiary grounds. I have no doubt that a reasonable person, informed of the principles of bail, Charter values, and the circumstances of the case, would find it very difficult to understand how someone in Mr. Shanker’s circumstances was granted the proposed variation. That is especially so given the current stay-at-home order.
DISPOSITION
43The application is dismissed.
Released: May 3, 2021
COURT FILE NO.: CR-21-10000128-00BR
DATE: 20210503
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RAVI SHANKER
REASONS FOR JUDGMENT ON APPLICATION TO VARY BAIL
R.F. Goldstein J.