COURT FILE NO.: CR-21-90000223-0000
DATE: 20220722
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RAJAMUDESH AMUTHAN AND ARUN NAGARATNAM
Counsel:
S. Malik, for the Crown
R. Timol, for Mr. Amuthan
D. Freudman, for Mr. Nagaratnam
HEARD: 4-5 July 2022
BEFORE: S.A.Q. AKHTAR J.
Background Facts
[1] On 8 March 2020 at approximately 12:33 am, police were called out to an incident reported to be a robbery with a firearm taking place at Ionview Public School Park. They were provided with information that the incident was taking place in a black Honda Civic. Reports indicated that the victim was wearing a red hat.
[2] As they turned into the parking lot, police turned on their emergency lights and observed a black Honda Civic bearing the licence plate that they had been provided with.
[3] Police parked in front of the Civic. As they did so, the driver, Mr. Amuthan, put it into reverse and made to leave before being ordered to stop.
[4] What happened next was captured by the in-car camera located inside the police cruiser.
[5] Police exited their vehicle and drew their firearms, commanding the occupants of the car to raise their hands and stay seated.
[6] There were three occupants in the Civic: Rajamudesh Amuthan, sat in the driver’s seat, Arun Nagaratnam, in the front passenger seat, and another male, Tristan Tenn was situated in the rear of the car.
[7] All three were removed from the car. Subsequently, police discovered two vacuum sealed packages containing a white substance. One was found behind the driver’s seat (Bag 1) and the second under the front passenger seat (Bag 2).
[8] All parties at this trial agreed that the white substance was cocaine and that Bag 1 contained 236.81 g of the drug whilst Bag 2 held 234.39 g. The total weight of the cocaine amounted to 471.20 grams. The police also discovered $5,890 in open view in the driver’s side pocket of the door of the Civic, and a steak knife on the driver’s seat.
[9] Police also seized $540 from Mr. Amuthan; $2700 from Mr. Nagaratnam; and $505 from Mr. Tenn.
[10] The parties jointly tendered an Agreed Statement of Facts that disclosed the street value of the cocaine ranged between $22,560 and $24,910 if sold wholesale and between $42,417 and $51,845 if sold by the gram.
[11] Mr. Amuthan and Mr. Nagaratnam stand charged with three counts on the indictment[^1]: one joint count of possession of cocaine for the purpose of trafficking; possession of proceeds of crime over $5000 (Mr. Amuthan); and possession of proceeds of crime under $5000 (Mr. Nagaratnam).
[12] As noted, the parties commendably agreed on non-controversial facts saving valuable court time.
[13] As a result, both parties acknowledge the sole question before this court is whether either or both of the accused had knowledge and control of the cocaine found in the car.
Legal Principles: Circumstantial Evidence
[14] As this is an entirely circumstantial case, the principles enunciated in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, apply. The trier of fact, taking the evidence as a whole, must be satisfied that the only reasonable inference to be drawn from the evidence is guilt: Villaroman, at paras. 30, 32-34; R. v. Gibson, 2021 ONCA 530, 157 O.R. (3d) 597, at para. 77.
[15] Inferences inconsistent with guilt do not need to be based on proven facts but may arise because of a lack of evidence: Villaroman, at paras. 35-36; R. v. Megill, 2021 ONCA 253, 405 C.C.C. (3d) 477.
[16] However, the Villaroman test is not to be applied to each individual piece of circumstantial evidence but to the entire body of circumstantial evidence: R. v. Khalid, 2022 ONCA 501, at para. 23; Gibson, at para. 79.
[17] Whilst a trier of fact is obliged to consider alternative inferences, those must be reasonable, based on common sense and “viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty”: Villaroman, at para. 37; Megill, at para. 42.
[18] It is also clear that a trier of fact is not required to negate every possible conjecture consistent with innocence: Villaroman, at para. 37; R. v. R.M., 2020 ONCA 231, 150 O.R. (3d) 369, at para. 16; R. v. Onyedinefu, 2018 ONCA 795, at para. 12; R. v. Magdales, 2019 ONCA 572, at para. 6.
[19] Finally, it is clear “that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible”: Villaroman, at para. 42.
[20] Here, the defence is correct that there is no evidence of what transpired before the police arrived at approximately 12:35 am.
Is Mr. Amuthan Guilty of Counts 1 and 2?
[21] Mr. Amuthan stands charged with possession for the purpose of trafficking cocaine and possession of proceeds of crime over $5000.
[22] The Crown argues this was a joint enterprise between Mr. Amuthan and Mr. Nagaratnam in their business of drug dealing.
[23] The evidence shows that Mr. Amuthan was in the driver’s seat of the car which was registered to an older female at his home address. There is therefore clearly a link between Mr. Amuthan and the car.
[24] There is no doubting that the key pieces of evidence are the drugs and money found in the Civic and the money seized from Mr. Amuthan after his arrest.
[25] The amount of cash, made up largely of $20 bills, along with a smaller number of $50 bills, is an excessive amount of money to be kept loose and in plain view to anybody in the driver’s side pocket.
[26] Moreover, Mr. Amuthan, was the person to whom the car was linked, who was in the driver’s seat and situated right next to the cash which sat unconcealed. In my view, he had knowledge and control of the money.
[27] However, that is not enough. There is no crime in possessing a large amount of money. It is only if I am satisfied beyond a reasonable doubt that the money came from the sale of drugs that Mr. Amuthan can be found guilty of Count 2 on the indictment.
[28] In many ways, this evidence is directly related to Count 1 on the indictment. If Mr. Amuthan had knowledge and control of the drugs found in the car, then the irresistible inference to be drawn from the substantial amount of cash found in the driver’s side pocket is that it was obtained through the sale of drugs.
[29] What then, is the evidence that Mr. Amuthan had knowledge and control of the drugs in the Civic?
[30] PC Christine Konkle testified that Bag 1 was found behind the driver’s seat. She pointed this out to PC Andrew Court who also observed Bag 1 and testified that the driver’s seat was reclined in such a position that it was almost touching the back seat. PC Court said that he picked up Bag 1 to examine it but returned it to the position in which he had found it. The seat and Bag 1 were then photographed by the Scenes of Crime Officer (SOCO).
[31] Mr. Timol, on behalf of Mr. Amuthan, submits that there are a variety of scenarios which could apply to Bag 1, one of which is that Mr. Tenn could have brought both packages to the car in an attempt to sell them to Mr. Amuthan and/or Mr. Nagaratnam.
[32] It is not disputed that Mr. Tenn arrived in a separate car, a white Honda Civic, parked nearby at 90 Ionview Road. The key which opened that Civic was found on the back seat of the black Civic near where Mr. Tenn was sitting when the police arrived. In addition, Mr. Tenn’s driving licence was found on the ground underneath the pillar between the driver and rear passenger side doors of the black Civic. Mr. Tenn’s seated location, the car key found in and around that location and the presence of his driving licence outside the black Civic indicate that he drove the white Civic to the location.
[33] It might well be the case that Mr. Tenn brought the drugs although I find it unlikely that he would do so without any form of concealment or baggage as none was found in the car.
[34] The more likely scenario is that Mr. Amuthan was selling Mr. Tenn the drugs given that the two separate bags were in different places in the vehicle.
[35] However, that question is a red herring. The real issue is not who brought the drugs but whether, at the time of the allegation, Mr. Amuthan had knowledge and control of them.
[36] The critical point in this case is what happens when the police arrive.
[37] First, Mr. Amuthan, appeared to reverse the car and try to drive away even when it is apparent that the police cruiser has parked directly in front of his Civic.
[38] When the police stepped out of their car and drew their guns they ordered Mr. Amuthan to raise his hands. He seemed to initially comply. However, the in-car camera recorded his left arm emerge from the window in compliance with the police demand but then repeatedly drop to his side. Moments later, his body appeared to move backwards as if he were reclining.
[39] This matches the photographs taken by the SOCO officer and the evidence of PC Court who said the driver’s seat was so far reclined it was almost in contact with the back seat.
[40] Mr. Timol submits that the seat was already reclined when the police arrived on scene and that this is apparent from the video. He says that Mr. Amuthan was simply leaning forward when driving the car and first seen on camera but leaned backwards into the already reclined chair during the interaction with the police.
[41] On the other hand, Ms. Malik, for the Crown, says that the seat can be seen upright when the police first arrive and is then pushed back by Mr. Amuthan as the police issue their commands.
[42] I have repeatedly viewed the video and cannot, with any degree of certainty, determine the initial position of the seat. However, I note that it would be very unusual for someone to drive a car with the seat reclined in the position that it was found.
[43] Nonetheless, what can be seen on the video is Mr. Amuthan’s behaviour when ordered by the police, at gunpoint, to raise his hands.
[44] As I have already described, Mr. Amuthan initially complies with the demand but repeatedly drops his left arm even though the video shows police yelling at him to keep it raised. It is somewhat bizarre that Mr. Amuthan would risk doing this when faced with armed police aiming their guns at him.
[45] The Crown’s position is that Mr. Amuthan is surreptitiously pushing the lever on the side of his seat to recline it in order to best conceal Bag 1.
[46] The video shows that after dropping and raising his hands repeatedly, Mr. Amuthan leans back and his body appears to smoothly move in a backwards motion as if he is leaning backwards as the seat is reclining.
[47] From my viewing, it seems clear that the evidence taken together shows that Mr. Amuthan did reach down and pull the seat lever to recline the seat after the police stopped the car. There would be no other reason to do this in the circumstances described other than to try and conceal Bag 1. I find that this is exactly what he was trying to do.
[48] This evidence along with the substantial amount of money found in the driver’s side door next to Mr. Amuthan and the funds found upon his person lead me to conclude that the only reasonable inference available is that Mr. Amuthan had knowledge and control of both the drugs and money found in the car.
[49] It may well be, as Mr. Timol says, that the money was obtained by other legal actions: Mr. Amuthan could have won the lottery; he could have sold something of high value and kept the money in plain view in the driver’s side door; or maybe Mr. Tenn put the money there for safekeeping.
[50] As I have said, the trier of fact must examine all alternative inferences but they must be reasonable, “not just possible”. These alternatives, in light of the constellation of evidence I have described, simply defy belief.
[51] There is also the presence of the steak knife found on Mr. Amuthan’s seat.
[52] Again, on its own, this would mean very little. Combined with the other evidence I have reviewed, there is a compelling inference that this was to be used as a weapon in case of trouble or as a cutting agent to divide the drugs.
[53] It is unusual to find a steak knife in a car. Mr. Timol argues that its presence may be explained by the possibility that Mr. Amuthan was eating in the car. However, it seems strange that the knife was the only eating utensil found: there were no spoons or forks accompanying the knife which tends to weigh against its use to consume comestibles.
[54] The presence of the drugs with the money, the location of the money (right next to Mr. Amuthan), its significant value and denominations all lead to only one reasonable inference: the money was obtained through the sale of drugs.
[55] For these reasons, I find that the Crown has proven the allegations against Mr. Amuthan beyond a reasonable doubt and I find him guilty on Counts 1 and 2.
Is Mr. Nagaratnam Guilty of Counts 1 and 3?
[56] Turning to Mr. Nagaratnam, the question of whether he had knowledge or possession of the cocaine found in the car centres on the location of Bag 2 found beneath the passenger seat where he sat.
[57] There was some controversy about the location of Bag 2.
[58] PC Konkle testified that when she saw Bag 2, it was clearly visible in the footwell and in the location photographed by SOCO. This, however, was incorrect. Detective Joseph Capizzo told the court that once had had been given information that PC Konkle had seen Bag 2, he investigated. Detective Capizzo located the bag and pulled it out from under the seat before placing it into the centre of the footwell. He testified that he mistakenly left it there when the SOCO photographs were taken.
[59] Detective Capizzo also stated that before he pulled it out, only an inch of Bag 2 could be seen protruding from beneath the seat but the substance - an “inch of white” - could be seen from his angle using a flashlight.
[60] Detective Capizzo admitted to another error: he moved the front passenger seat when looking for Bag 2 and was unable to recall if he moved it back before it was photographed by SOCO.
[61] Both Mr. Freudman and Mr. Timol cast doubt on PC Konkle’s credibility, saying that she could not have seen Bag 2 beneath the seat especially when a plain clothes officer can be seen on the video looking in with a flashlight and does not appear to report finding any items.
[62] However, the video evidence is clear: after finding Bag 1, PC Konkle can be seen moving over to the passenger side door and informing the other officers that “there is some more cocaine up here” directing them to Bag 2. I find that PC Konkle did see Bag 2 from her viewing angle outside the car even though other officers had missed it.
[63] Mr. Freudman maintains that even if PC Konkle had sight of Bag 2 from her viewing angle, it would have been impossible for Mr. Nagaratnam to see it. He also points out, similar to Mr. Timol, that there are no additional indicia of drug trafficking such as scales, debt lists or other paraphernalia.
[64] Whether Mr. Nagaratnam could see Bag 2 is another red herring: the Crown’s case is that Mr. Nagaratnam knew of Bag 2 because he had hidden it under the passenger seat to avoid detection. This, along with the significant amount of money found on his person, says the Crown, leads only to one conclusion: that Mr. Nagaratnam was also involved in the drug trade and had possession of Bag 2 for that purpose.
[65] Again, the video is instructive. When the police order Mr. Nagaratnam to raise his hands he can be seen, at least four times, to glance downwards in the direction of his feet as if he is looking for something. One inference to be drawn from this act is that he is checking to see if Bag 2 can be seen or whether it is out of sight.
[66] When assessing the entirety of the evidence, including the money found on his person, the location of the drugs, his behaviour in the car, the time of the incident, and the finding of other drugs in the vehicle, it leads me to conclude that there is only one reasonable inference to be drawn and that is Mr. Nagaratnam knew of and possessed the cocaine package found beneath his seat. This evidence also leads to the only other reasonable inference regarding the money, which is significant in value and consists of small denominations: that it was obtained through drug deals.
[67] Accordingly, I find that the Crown has discharged its onus of proving Mr. Nagaratnam’s guilt on Counts 1 and 3 beyond a reasonable doubt.
[68] Although I have evaluated the evidence of the packages and money separately against each of the accused, I would also add that that the presence of the drugs and money in a small vehicle indicates that both men knew of both Bags 1 and 2. Moreover, the large amount of cash in the driver’s side door would be clearly visible to anyone sitting in the passenger seat.
[69] The circumstances of the event, including the time and location, in my view, lead to the only reasonable inference that both men knew of both packages and that their presence in the parking lot that night was to deal in cocaine. In other words, both accused were in possession of all of the drugs found in the vehicle on the night of 8 March 2020.
[70] Accordingly, I find Mr. Amuthan guilty of counts 1 and 2 on the indictment. I find Mr. Nagaratnam guilty of counts 1 and 3 on the indictment.
S.A.Q. Akhtar J.
Released: 22 July 2022
COURT FILE NO.: CR-21-90000223-0000
DATE: 20220722
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RAJAMUDESH AMUTHAN AND ARUN NAGARATNAM
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.
[^1]: Mr. Nagaratnam was also initially charged with three counts of failing to comply with a release order and one count of failing to comply with probation but those counts were dismissed at the request of the Crown because of lack of proper documentation.