COURT FILE NO.: CR-21-90000568
DATE: 20231013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
RAVI SHANKER, HAVINDER SINGH
AND SUKHSIMRAT PAWAR
Accused
Christina Malezis, Ashli Pinnock,
for the Crown
Alan D. Gold, Ellen C. Williams,
for Ravi Shanker;
Brennan Smart, for Havinder Singh
Angelo Musitano, Michael DelGobbo,
for Sukhsimrat Pawar
HEARD: March 6, 7, 8, 9, 10, 13, 14, 16, 17, 20, 22, 23, April 28 and October 13, 2023
B.A. Allen J.
REASONS FOR JUDGMENT
BRIEF BACKGROUND AND PROCEDURE
[1] In 2020 the RCMP conducted a major drug investigation named "Project O'Swordtail. The RCMP sought and received authorization to intercept private communications over telephone calls and an audio probe placed in a warehouse office space. The RCMP alleges they learned through those modalities that the defendants trafficked over 30 kilos of cocaine to undercover officers. The allegations are that on July 3, 2020, the defendants supplied one kilo of cocaine to an associate, John Palumbo (“Palumbo”). Palumbo sold the cocaine to an undercover officer for $76,000.00. It is further alleged that on July 11, 2020, the defendants intended to deliver 30 kilos of cocaine to Palumbo that was purportedly to be exported to Australia. This did not come to fruition.
[2] Palumbo has pleaded guilty to trafficking cocaine and possession of proceeds of crime.
[3] There were two undercover officers involved in this case. The Crown brought applications under sections 486(1), 486.3(1), and 486.5(1) of the Criminal Code for orders to exclude the public from the body of the court and to prohibit disclosure and publication of undercover police officers' names, which applications were unopposed. The Crown also requested that the officers be allowed to use pseudonyms during their testimonies and that the public be allowed to hear their evidence in a separate room by audio conferencing during the officers' testimonies. I granted the requested orders.
[4] The trial proceeded on re-election to be heard by a judge alone. The Crown called 16 police witnesses either members of the RCMP or officers seconded from other police services to work with the RCMP on this investigation. The investigation was conducted by officers working with the RCMP's Combined Forces Special Enforcement Unit (“CFSEU”). As is their constitutional right, Shanker and Pawar did not testify at the trial. Ravinder Singh testified on his own behalf.
CHARGES BEFORE THE COURT
[5] The relevant period of the investigation is from January 28, 2020, and July 11, 2020. The main charge is an allegation of a conspiracy by Ravi Shanker (“Shanker”), Sukhsimrat Pawar (“Pawar”), and Havinder Singh (“Singh”) to traffick cocaine.
[6] The charges against the respective defendants are as follows:
• Count 1: against Shanker, Singh, Pawar - January 28th – July 11th, conspiracy, (s. 465 CC) to traffic in cocaine (s. 5(1) CDSA) (trafficking Sch. I substance), sentence not exceeding 7 years if convicted under s. 465)
• Count 2: against Shanker, Pawar - July 3rd, trafficking in cocaine, (s. 5(1) CDSA)
• Count 3: against Shanker, Pawar - July 3rd, 4th, possession of proceeds of crime, (s. 354(1) CC)
• Count 4: against Shanker, Singh - July 11th, trafficking cocaine, (s. 5(1) CDSA)
• Count 5: against Shanker, Singh - July 11th, possession cocaine for the purpose of trafficking, (s. 5(2) CDSA)
• Count 6: against Shanker - July 11th, possession of proceeds of crime, (s. 354(1) CC)
• Count 7: against Pawar - July 11th, possession of opium (Sched. I substance) for the purpose of trafficking, (s. 5(2) CDSA)
• Count 8: against Pawar - July 11th, possession of proceeds of crime, (s. 354(1) CC)
THE ISSUES
a) Did Shanker, Pawar and Singh conspire to traffic 30 kilograms of cocaine on July 11, 2020 (count 1)?
b) Did Shanker and Pawar traffic 1 kilogram of cocaine on July 3, 2020 and possess $76,000.00 from the proceeds of crime (counts 2 and 3)?
c) Did Shanker and Singh possess 30 kilograms of cocaine on July 11, 2020 for the purpose of trafficking (counts 4 and 5)?
d) Did Shanker possess $6,000.00 from the proceeds of crime at his residence at 57 Valleycreek Drive, Brampton, on July 11, 2020 (count 6)?
e) Did Pawar possess 214 grams of opium at his residence for the purpose of trafficking, at his residence at 31 Fenchurch Drive, Brampton, on July 11, 2020 (count 7)?
[7] On count 7, Pawar has conceded possession of opium for the purpose of trafficking.
[8] The central issue in this case is identification. The issue arises in connection to identifying voices heard on intercepted private communications captured via an audio probe and a wiretap on Palumbo’s cellphone and in relation to images of persons recorded on video surveillance outside the warehouse.
[9] It is the Crown’s position that the police accurately identified Shanker’s voice conspiring with Palumbo to traffick cocaine. The defence’s view is that the police officers’ identification evidence is not reliable owing to the inherent frailties of voice identification evidence and, in particular, the fact that the voice in question has a Punjabi accent. The defendants do not dispute that they are captured on video surveillance.
THE PERTINENT AREAS OF LAW
The Law of Possession
[10] Possession of drugs and proceeds of crime by the defendants is at issue in this trial. The essential elements of possession are knowledge and control which the Crown has the burden to prove beyond a reasonable doubt. Possession can be proved by direct or circumstantial evidence or by a combination of direct and circumstantial evidence to be established on the totality of the evidence: [R v. Pham, 2005 CanLII 44671 (ONCA), at para. 18. The Criminal Code defines “possession” in s. 4(3) to include personal or actual possession, constructive possession, and joint possession.
[11] With personal possession, the requirement of knowledge comprises two elements: the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with an act of control (outside of public duty): [R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 16)].
[12] Constructive possession is established where the accused: (a) has knowledge of the character of the object, (b) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (c) intends to have the object in the particular place for his “use or benefit” or that of another person: R. v. Morelli, at para. [17].
[13] Where the subject matter the accused is alleged to be in possession of is a controlled substance of significant value, it may be open to a trier of fact to infer not only knowledge of the nature of the subject but also knowledge of the substance itself. It is a reasonable inference that a “valuable amount of drugs would not be entrusted to anyone who did not know about them or where they were located”: R. v. Bains, [2015 ONCA 677](https://www.canlii.org/en/on/onca/doc/2015/2015onca677/2015onca677.html), at para. [157](https://www.canlii.org/en/on/onca/doc/2015/2015onca677/2015onca677.html#par157); R v. Bryan, [2013 ONCA 97](https://www.canlii.org/en/on/onca/doc/2013/2013onca97/2013onca97.html), at para. [11].
[14] Joint possession involves a form of possession where multiple people can be deemed to be in possession or custody of the object. Custody and possession of a second party is deemed where, with the knowledge and consent of the rest, has anything in their custody or possession. [R. v Terrence, 1983 CanLII 51 (SCC), [1983] 1 SCR 357, at p. 358)].
The Law of Conspiracy
[15] Section 465(1) provides:
465 (1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy
(c) every one who conspires with any one to commit an indictable offence not provided for in paragraph (a) or (b) is guilty of an indictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, be liable;
[16] The essential elements of conspiracy required to be proven by the Crown beyond a reasonable doubt are:
a) an intention to agree;
b) completion of the agreement; and
c) a common (unlawful) design
[17] The factors of agreement and an unlawful common design are pivotal to the crime. The following common law principles provide useful guidance:
a) The gist of the preliminary crime of conspiracy is the agreement. The actus reus of the offence is the fact of the agreement. R v. Papalia, 1979 CanLII 38 (SCC), [1979] 2 SCR 256; R. v. Cotroni, [1979] 2 S.C.R. 256, at p. 276.
b) An intention to agree on its own is not sufficient to establish the actus reus of conspiracy. R. v. O’Brien, 1954 CanLII 42 (SCC), [1954] S.C.R. 666, at pp. 668 - 669.
c) A police agent cannot be regarded as part of a conspiracy if the only two people involved are the suspect and the police agent (who has no intention to put the common design into effect). R. v. O'Brien, at p. 687; see also United States v. Dynar. 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462, at para. 88.
d) There must be an intention to put the common (unlawful) design into effect. United States of America v. Dynar, at para. 86; R. v. O’Brien, at p. 668.
e) To establish an accused's liability, it is necessary for the Crown to establish beyond a reasonable doubt that the defendant conspired with at least one other person to commit the substantive offence alleged in the count. It is not necessary for the prosecution to prove that the parties included all of the defendants. It is enough if the evidence "demonstrates that the conspiracy proven included some of the accused". R v. Cook (1984), 1984 CanLII 5688 (ON CA), 39 CR (3d) 300; aff'd in1986 CanLII 47 (SCC), [1986] 1 SCR 144.
f) The focus of the inquiry is on whether and, if so, on what was agreed, not on what was done, although what was done in furtherance may help to establish the core element of conspiracy – the agreement. R. v. Douglas, 1991 CanLII 81 (SCC), [1991] 1 S.C.R. 301, at para. 48.
g) The roles of individual conspirators may differ widely. The participants need not know each other, nor need they communicate directly with one another. Each need not know the details of the common scheme, though each must be aware of the general nature of the common design and be an adherent to it. R. v. Longworth (1982), 1982 CanLII 3764 (ON CA), 67 C.C.C. (2d) 554 (Ont. C.A.) at pp. 565-566.
h) Each conspirator does not have to commit or intend to commit personally the offence the conspirators have agreed to commit. R. v. Genser (1986), 1986 CanLII 4729 (MB CA), 27 C.C.C. (3d) 264 (Man. C.A.) at p. 268; affirmed 1987 CanLII 5 (SCC), 1987 39 C.C.C. (3d) 576 (S.C.C.).
i) Any degree of assistance in the furtherance of the unlawful object can lead to a finding of membership as long as agreement to a common plan can be inferred and the requisite mental state has been established. Involvement in only part of a whole plan can also result in a finding of guilt: [R. v. Genser, at p. 268].
j) Negotiations alone will not suffice, and sometimes it may be very difficult to determine whether the parties are merely negotiating or have agreed to do something if it is possible or propitious to do so. R. v. Mills (1962), 47 Cr. App. R. 49, at pp. 54-55 (C.C.A.); R. v. Saik, [2007] 1 A.C. 18, at para. 5 (H.L.).
k) Whether an agreement has been reached between the parties to the alleged conspiracy or whether it is still in the stage of discussion and negotiations is a question of fact to be determined by the trier of fact. R. v. Root, 2008 ONCA 869, at para. 70.
l) The goal of the agreement, the commission of the substantive offence, is part of the mental element or mens rea of the offence of conspiracy. Dynar, at para. 103. Where the goal of a conspiracy involves the commission of a substantive offence of which knowledge of certain circumstances is an essential element, the mental element is belief. The subjective state of mind of anyone who conspires with others to, for instance, launder money is the belief that the money has illegitimate origins. Dynar, at para. 108.
m) An acquittal on conspiracy does not vitiate a conviction on the substantive offence or give rise to any substantial wrong or miscarriage of justice. Koury v. The Queen, 1964 CanLII 2 (SCC), [1964] SCR 212, at p. 218.
[18] A finding of whether or not there is a conspiracy is the first step in the analysis before a determination of whom the parties might be.
[19] If a finding of conspiracy is made out, there is an intermediate or second step requiring the trier of fact first to satisfy themselves, based upon the accused’s own acts and declarations, that the accused on a balance of probabilities is probably a member of the conspiracy: [R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938; [1982] S.C.J. No. 47]. A third step follows once the second step is satisfied.
[20] In sum, the Carterinstruction requires the trier of fact first to be satisfied beyond a reasonable doubt that there is an agreement or plan to commit an indictable offence. Then, at the second step, they must decide if the accused was on a balance of probabilities a participant in a plan based on all of the direct evidence that is admissible. Then, if step two has been satisfied, at the third step, the trier of fact can use evidence of the acts and declarations of the other member(s) of the conspiracy against the accused to decide if the person is guilty beyond a reasonable doubt: R. v. Dawkins, [2021 ONCA 113](https://www.canlii.org/en/on/onca/doc/2021/2021onca113/2021onca113.html), at paras. [38 - 42]. This third step has been coined “the co-conspirator’s exception to hearsay.”
[21] A recent decision of the Ontario Court of Appeal looked at an obverse application of the Carter rule observing that:
The trier of fact must keep in mind that “where, at the end of the trial, the evidence directly admissible against the accused was insufficient to establish his or her membership in the conspiracy, the acts and declarations of co-conspirators could not be considered as evidence against the accused.
R. v. Burgess, [2022 ONCA 577](https://www.minicounsel.ca/onca/2022/577), at para [20]
The Law of Circumstantial Evidence
[22] The law governing circumstantial evidence is relevant to assessing the evidence in relation to both possession of the drugs and proceeds and to determining whether a conspiracy existed.
[23] The police did not find any of the defendants in actual possession of the cocaine or what they alleged were proceeds of crime. In these circumstances, possession must be inferred from circumstantial evidence on the totality of the evidence. Mere proximity to a thing is not a sufficient basis upon which to find that the elements of knowledge and control, essential to a finding of constructive possession of the thing, have been established, although proximity is a circumstance worthy of consideration in assessing the adequacy of the evidence as a whole to establish guilt: R. v. Smith, [2016 ONCA 25](https://www.canlii.org/en/on/onca/doc/2016/2016onca25/2016onca25.html), at para. [85].
[24] It is rarely the case that conspiracy can be proved by direct evidence. This is because the very nature of a conspiracy involves an offence that operates clandestinely, in secrecy. An early Supreme Court of Canada case offered this insight:
Conspiracy, like all other crimes, may be established by inference from the conduct of the parties. No doubt the agreement between them is the gist of the offence, but only in very rare cases will it be possible to prove it by direct evidence. Ordinarily the evidence must proceed by steps. The actual agreement must be gathered from “several isolated doings”, (Kenny—“Outlines of Criminal Law”, p. 294)":
[R. v. Paradis, 1933 CanLII 75 (SCC), [1934] SCR 165, at p. 168, (S.C.C.)].
[25] The following principles offer guidance in evaluating whether circumstantial evidence meets the standard of proof:
• The trier of fact must be satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference to be drawn from the evidence as a whole: R. v Villaroman, 2016 SCC 33, at para. 20.
• It is the cumulative effect of all the evidence that must satisfy the criminal standard of proof, not each individual item which is merely a link in the chain of proof: R. v. Morin,1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p. 361; R. v. Smith, 2016 ONCA 25, at paras. 81 - 82.
• Inferences consistent with innocence need not arise from proven facts. They may arise from a lack of evidence: R. v. Villaroman, at para. 35.
• A trier of fact must consider other plausible theories or reasonable possibilities inconsistent with guilt as long as these theories and possibilities are grounded in logic and experience. They must not amount to fevered imaginings or speculation: R. v. Lights, 2020 ONCA 128, at para. 38.
• While the Crown must negate these reasonable possibilities, it need not negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with an accused’s innocence: R. v. Villaroman, at paras. 37 - 38; R. v. Lights, at para. 38.
IDENTIFICATION
Video Surveillance
[26] The main location of the alleged conspiracy was 115 Drumlin Circle in Vaughan, Ontario which housed a business owned by Palumbo who was considered to be an associate of Shanker. Palumbo's business office was situated in Unit 3 and he occupied a large storage space at the rear of the warehouse where he stored a wide variety of products.
[27] The RCMP installed a pole camera outside the front of the warehouse to capture the activities of persons outside on the parking lot and attending Unit 3. The Crown entered as evidence several days of video recordings taken outside the front of the warehouse during the relevant period. There was no operational camera out back. Shanker, Pawar and Singh were each seen at the premises at various times during the relevant period. As noted earlier, the three accused do not deny they were captured on the video recordings.
Intercepted Communications
[28] The RCMP obtained authorization under s. 186 of the Criminal Code to intercept private communications in Unit 3 at 115 Drumlin. As noted, the police placed an audio probe in Unit 3 to capture conversations Palumbo and others in his office were having and a wiretap on Palumbo’s cellphone.
[29] Some of the pitfalls in the use of electronic audio techniques as means of generating audio identity evidence are under scrutiny particularly, in this case, as they concern English-speaking officers seeking to identify crime suspects speaking with foreign accents unfamiliar to the officers.
Voice Identification Evidence
[30] The Crown alleges that Shanker is Palumbo’s supplier, “his guy”, that it is Shanker’s voice captured on both the audio probe and telephone calls intercepted from Palumbo’s cellphone. The Crown alleges the communications disclose conversations between Palumbo and Shanker about cocaine transactions. This evidence, the Crown contends, is identification evidence from which an inference can be drawn that it was Shanker conspiring with Palumbo to traffic in cocaine.
[31] The further allegation is that Shanker, by his activities captured on video surveillance at 115 Drumlin, and by his association with Pawar and Singh at that location, is further circumstantial evidence that, in addition to or apart from the voice identification, establishes Shanker as a conspirator.
[32] The obvious central concern is whether evidence of identity, be it direct or circumstantial, satisfies the trier of fact that the person who committed the offence is actually the accused person on trial. The fear of course is a wrongful conviction. Much has been spoken of and written about the frailties of eyewitness evidence. But not so for voice identification evidence. In cross-examination of officers and in argument Shanker’s counsel raised the issue of voice identification particularly in relation to persons who may be speaking with a foreign accent unfamiliar to the wiretap investigators.
[33] Christopher Sherrin in his scholarly research observed that little consideration has been given to the reliability of voice identification, or what he calls “earwitness evidence”, even though such evidence has been tendered in several wrongful conviction cases in Canada: [Christopher Sherrin, “Earwitness Evidence: The Reliability of Voice Identifications”, Osgoode Hall Law Journal, Volume 52, Issue 3 (Summer 2015).
[34] Voice identification evidence need not be given by expert witnesses. “[Earwitness] evidence is admissible in Canadian courts under the general rules of admissibility. When tendered through a lay witness, it is not considered opinion evidence and there are no special preconditions to admissibility”: [R. v. Webber, 2010 ONCA 4, at para. 1, 194 ACWS (3d) 873].
[35] Sherrin reviews scientifically generated empirical works on the reliability of earwitness evidence. He correlates the results of these studies with some of the factors considered by Canadian criminal courts in assessing earwitness testimony. His overriding conclusion is that earwitness evidence is frequently unreliable, a consideration Canadian courts have not always recognized.
[36] Earwitness evidence is no doubt pivotal in conspiracy and other investigations where the Crown relies on intercepted voice communications. Electronic interception is a prevalent and indispensable investigative tool relied on by police. But if the evidence is not properly assessed due to a flawed voice identification process a miscarriage of justice is likely to be the dreadful fallout. Sherrin cites as an example a familiar yet notorious case in Canadian criminal history, a case that was decided in Ontario that resulted in a wrongful conviction:
At Guy Paul Morin’s second trial, the victim’s mother identified Morin’s voice as the one that uttered “Help me, help me, Oh God, help me” on the night of the victim’s funeral— testimony that the prosecution used as evidence of consciousness of guilt. The Commissioner examining Morin’s wrongful conviction concluded that the voice identification evidence was patently unreliable.
[Sherrin, at p. 823]
[37] Studies on the accuracy and reliability of earwitness identification evidence have frequently demonstrated low accuracy rates. One study revealed that only 9% of the test subjects were able to correctly recognize a voice they had previously heard (the target voice) from among a group of other voices in a voice lineup: [Sherrin, at p. 823].
[38] In R. v. Dodd, the Ontario Court of Appeal cautioned that: “Voice identification evidence is even more fraught with dangers than eyewitness identification evidence. It ought to be treated with extreme caution”: R. v. Dodd, [2015 ONCA 286](https://www.canlii.org/en/on/onca/doc/2015/2015onca286/2015onca286.html), at para. [79](https://www.canlii.org/en/on/onca/doc/2015/2015onca286/2015onca286.html#par79); see also R. v. Cloutier, [2012 ONCA 636](https://www.canlii.org/en/on/onca/doc/2012/2012onca636/2012onca636.html), at para. [19]. Studies have shown that earwitness evidence is even less reliable than eyewitness evidence. It must therefore be treated with greater caution than eyewitness evidence, not with the same amount: [R. v. Pinch, 2011 ONSC 5484, at para. 76, 97 WCB (2d) 618].
[39] Sherrin makes the following cautionary observations drawn from the research:
• It is important not to assume that familiarity necessarily imports accuracy. Familiar voices can be misidentified, sometimes at significant rates. One study obtained a 10% misidentification rate from members of a close social network who had known each other for almost two years and who currently or recently lived in the same residence. [p. 830]
• Care must be taken not to generalize from experience with familiar voices in everyday situations to assumptions about identification accuracy with less familiar voices in other contexts. Indeed, one should not even assume that the identification of familiar voices is inevitably accurate. [at pp. 823 and 825]
• There is the issue of expectation. People tend to hear who they expect to hear. An “elementary principle of psychology is that context and expectations influence an individual’s perceptions and interpretations of what he observes.” When circumstances lead people to expect some fact, they tend to perceive that fact in the face of ambiguous information. This can lead to error biased in the direction of the expectation. This phenomenon of expectancy bias happens naturally and quite unconsciously, but it can be powerful. Some courts have recognized that expectation is a factor that should be taken into account in assessing earwitness testimony. [at p. 833]
• When an officer familiar with a voice on intercepted communications is asked to listen only to the accused to see if it is the same voice, the identification process is tantamount to a “showup” as in the eyewitness context where a witness is generally shown the photo of one person rather than a group of people. [at p. 834]
[40] Sherrin addresses a further factor pertinent to this case. The evidence is that Shanker is believed to have a Punjabi accent although I, understandably, did not hear his voice as a witness in court as he exercised his constitutional right to silence. My focus is on the police and whether they accurately and reliably identified the voice as that of Shanker in the audio probes and phone interceptions.
[41] Many are the circumstances where witnesses are asked to identify the voice of a suspect who speaks with an accent or a foreign language. As pointed out by Sherrin, some courts have recognized this type of voice identification as being fraught with an even greater degree of unreliability than the identification of a voice with an accent familiar to investigators. The Manitoba Court of Appeal recognized the capacity for error in these circumstances in observing, “the danger, where the accused has an accent, that the witness is identifying the accent rather than the particular voice of the accused.”: R. v. Willis, [2002 MBCA 138](https://www.canlii.org/en/mb/mbca/doc/2002/2002mbca138/2002mbca138.html), at para. [24]. It is affirmed by empirical research that people may not be able to readily distinguish between voices speaking in a manner that is unfamiliar to the witness: [Sherrin, at p. 848].
[42] Assertions by a witness that a voice is distinctive can also be a source of misidentification. This is particularly the case when a witness is asked to identify the voice of a person with an accent. A voice might seem distinctive to a witness for the simple fact that it is unfamiliar to the witness although many people may have similar voices.
Someone hearing a voice with a particular accent, for example, may not realize that the accent is common to a whole group of people. Indeed, in some cases, a witness may perceive a voice to be distinctive because the witness is not aware of the fact that he or she cannot distinguish it from other voices (including the accused’s voice).
It is only when a court is told what it is that allegedly distinguishes a voice that the court has any chance of assessing whether the voice truly is more readily identified.
[Sherrin, at p. 853, parentheses by the author]
[43] Similar to unfamiliarity with foreign accents, issues have emerged when a witness is unfamiliar with the physical attributes of a race different from the witness. Concern was raised in a decision I made in an eyewitness case where police officers, viewing a video recording in a cross-racial context, identified, as a participant in a jewelry store robbery, a male of ambiguous non-white racial identity. The officers based their perceptions on what they referred to as the physical distinctiveness or uniqueness of the male. I made the following observations:
The officers found olive skin, dark eyes and black hair to be unique, to be Asian or Indigenous in appearance. What is unique in facial and other features depends on the racial perspective from which one is viewing the features. The descriptors the officers highlighted are unique when viewed in the context of an identifier from, for instance, the white race as the officers were.
However, those characteristics, as I pointed out earlier, are common to certain peoples such as those from Asian, Indigenous and Latin American backgrounds. This means that many people in the very racially diverse communities of Canada would have those features. They are not so unique from that perspective. What this shows is that identification must be approached with extra caution when being considered across races and ethnic backgrounds. In other words, what may be a unique or distinctive characteristic in the race of the identifying witness may be a very common feature in another race or ethnic group.
[44] While voice identity may be a central issue in determining whether evidence satisfies the standard of proof, it is not an essential element of an offence. The Ontario Court of Appeal made the following observations in a case dealing with the accuracy of voice identification and the accuracy of translations from Jamaican Patois to English:
The voice identification evidence and the evidence of P.C. Williams respecting the accuracy of the translations were pivotal to the case. While not essential elements of the offences charged – were sufficiently central to the determination of the case that they were, for practical purposes, almost the same as essential elements on this record.
The jurors were not told clearly that they must consider the voice identification evidence and the evidence respecting the accuracy of the translation – together with all of the other evidence – in determining whether that evidence or any of the other evidence, raised a reasonable doubt about the appellant’s guilt.
Case law makes it clear that jurors are not to address the evidence piecemeal and seek to apply the criminal standard to separate pieces of evidence before doing so to the evidence as a whole (see R. v. Morin (1988), 1988 CanLII 8 (SCC), 44 C.C.C. (3d) 193, at 210-211 (S.C.C.)
[R. v. Quidley, 2008 ONCA 50, at paras. 26, 27 and 30]
[45] The voice identification evidence alleged to be connected to Shanker must not be viewed singularly, but rather on the totality of the evidence. As R. v. Morin explained: “it is the cumulative effect of all the evidence that must satisfy the criminal standard of proof, not each individual item which is merely a link in the chain of proof”: R. v. Morin, at paras. [81 - 82].
THE EVIDENCE
AGREED STATEMENT OF FACTS
[46] The following areas of evidence are admitted:
a) the jurisdiction, dates, and times of the offences;
b) the accused before the court are the same persons arrested;
c) continuity of all items seized from the three premises;
d) all photographs;
e) videos taken at the three searched premises;
f) the nature and weight of controlled substances seized;
g) the CV of the expert and his expert fingerprint report;
h) the amounts of cash seized and its continuity:
i) the 214 grams of opium were possessed for the purpose of trafficking as conceded by counsel for Pawar in his closing submissions;
j) the intercepted verbal telephone calls and text conversations;
k) the audio recording from the audio probe installed at Unit 3, 115 Drumlin;
l) the transcripts containing the dates, places, and phone numbers for the persons intercepted and containing text messages and intercepted communications, subject to corrections made at trial;
m) the identification of Palumbo's voice on the probe in his office;
n) the affidavits from the Ministry of Transportation and Bell Canada and their contents;
o) the identification of Shanker, Pawar, Singh, and Palumbo on the recordings from the pole cameras outside 115 Drumlin;
p) the black 2012 BMW X5, CJBF 023 parked in the parking lot at 115 Drumlin is registered to Singh, and on his arrest, he had the keys to that vehicle on his person.
ACTIVITIES IN THE INVESTIGATION INVOLVING UC ERIC AND PALUMBO
Before Discussion of Price of Drugs
[47] At the time of the O’Swordtail Project, UC Eric had been an undercover operator with the RCMP for nine years. His role required him to liaise with his investigative unit cover officer, DC Rook-Green, from whom he learned in July 2019 that Palumbo was selling Fentanyl in the form of fake Percocet pills. UC Eric was directed to purchase Fentanyl from Palumbo. He first met Palumbo in December 2019 at which time he discussed purchasing pills.
[48] Palumbo operated a warehouses during the relevant period, first at Unit 4, 615 Bowes Road in Vaughan, and then at Unit 3, 115 Drumlin Circle in Vaughan. The evidence is that he stored for sale large amounts of many products other than contraband such as champagne, palettes of products like PPE (“personal protective equipment”), sanitizers, fabrics, Viagra, Cialis and edible marijuana. He sold UC Eric a projector and screen. It appears from video surveillance recordings there was a considerable traffic of people of various races and genders entering and leaving Unit 3 some carrying boxes of goods from the warehouse during the relevant period.
[49] UC Eric had developed a good rapport with Palumbo by June 8, 2020. He had by that time purchased pills a few times and had purchased a kilo of cocaine in February 2020, the drugs being purchased by UC Eric under the pretext they would be sent in a shipment container or “sea can” to be sold in Australia. There was a lapse in activity between Palumbo and UC Eric for several months because of the pandemic.
[50] On June 8, 2020, UC Eric calls Palumbo to ask about purchasing more cocaine. In his drug operation conversations with UC Eric, Palumbo refers to his supplier as “his guy”. He tells UC Eric he has not been in contact with his guy but says he will speak to him when he comes to the warehouse.
[51] The Crown takes the position that the “guy” UC Eric is referring to throughout his testimony is Shanker.
[52] On June 12th, UC Eric calls Palumbo again to inquire about the further cocaine and Palumbo says he will speak to his guy when he comes to see him the following day. UC Eric stresses to Palumbo that he wants to get the sea can in the water by the end of July 2020.
[53] On June 15th,UC Eric calls Palumbo at 10:16 a.m. with no response and Palumbo calls him back at 10:20 a.m. Palumbo tells UC Eric that his guy might be in the next day and that he has been at his cottage. UC Eric's evidence is that the supplier does not show up at the warehouse on June 15th or June 16th.
[54] UC Eric next speaks to Palumbo on June 18th at 2:48 p.m. The supplier was supposed to go to the warehouse on that day but he again does not show up.
[55] Palumbo and UC Eric agree that UC Eric will go to the warehouse on June 19th (Friday) to discuss purchasing PPE. That meeting occurs on that day at 3:00 p.m. at Palumbo’s new business address at Unit 3, 115 Drumlin. The supplier had still not contacted Palumbo by that day. Palumbo then takes out his cellphone to show UC Eric a thread of WhatsApp messages, one saying, “I’ll see you after the weekend.” UC Eric sees the name, “Gord Broadhead” on the phone’s screen. Palumbo tells UC Eric he guessed his supplier was not getting back to him because he did not have the cocaine as yet.
[56] On June 24th,UC Eric calls Palumbo at 10:00 a.m. and Palumbo tells him he is waiting on “labels” for sanitizers which UC Eric thinks might be coded language. UC Eric says he does not believe the reference was to sanitizer because they planned to meet on June 25th about drugs.
From the Time of Discussion of the Price of Drugs
[57] On June 25th at 1:52 p.m., UC Eric meets with Palumbo in his office at the warehouse. Palumbo speaks in a guarded whispering voice saying he spoke to his supplier who told him the “powder”, understood to be cocaine, will cost $75,000.00 per kilo. Palumbo tells UC Eric that his supplier will be coming to the warehouse to speak to him that day at 2:00 p.m.
[58] Palumbo asks UC Eric what he wants to do and he replies that he would like first to get a kilo sample of cocaine to test it, and depending on the results, he will buy at least 20 kilos. Palumbo says he might be able to get a one-kilo sample by Saturday (June 27th) and he will speak to his guy. UC Eric asks Palumbo to ask his guy about a bulk deal based on the size of the order. Palumbo tells UC Eric that the cost will be $75,000.00 plus his cut of $1,000.00 per kilo. That day they also speak of UC Eric purchasing pills in bunches of 1000 which they will call “jugs”.
[59] On June 25th, Palumbo calls UC Eric at 8:57 p.m. and says he will have the “thing” they talked about the next day. He calls Palumbo back at 9:01 p.m. to confirm that the “thing” he referred to is “the thing for 76” and Palumbo replies the thing for 76 and the jugs will both be in.
[60] On June 26th at 1:04 p.m.,UC Eric texts Palumbo to see if he heard from his guy and there is no reply.
[61] On June 29th, UC Eric follows up. He calls Palumbo again at 9:59 a.m. and asks if the pills and “the other thing” are in yet. Palumbo says he has to call “both guys” and get back to UC Eric. At 12:48 p.m., UC Eric calls Palumbo again and is told the pills will be available in a couple of days and he is not sure about the kilo. At 6:57 p.m., Palumbo calls UC Eric back and tells him the pills will be available in two days and the kilo might be available the next day. UC Eric does not hear from Palumbo on June 30th.
[62] On July 3rd,Palumbo calls UC Eric at 2:53 p.m. to say that the “skid”, which was understood to be the kilo of cocaine that UC Eric was waiting for, would be available that day. At 3:16 p.m., Palumbo calls UC Eric to say the kilo is available. UC Eric tells Palumbo that he will have the one kilo of cocaine tested that day and if it tests well he will buy a larger amount.
[63] On July 3rd, Sgt Chris Rook-Green, an investigator with the CFSEU, was in charge of sensitive funds, the money that is issued to undercover officers. These funds are tracked by a Currency Reading and Tracing System (“CRATS”) which records the serial numbers on each bill and houses the records in a database system. Sgt Rook-Green is tasked on July 3rd with providing $76,000.00 in CRATS funds to UC Eric for the one kilo of cocaine.
[64] On July 3rd at 5:15 p.m., Sgt Rook-Green gives UC Eric the $76,000.00 inside a banker’s box. UC Eric describes the banker’s box as being brown cardboard, with a black and red label with the lettering “Offix”, and decorative red squares surrounded by black and red bordering stripes.
[65] At 5:50 p.m., UC Eric meets Palumbo at the warehouse and giveshim the banker’s box containing the $76,000.00 which Palumbo places under his desk saying he will count the money the next day. Palumbo then leaves his office and goes to the rear of the warehouse to retrieve the cocaine. He returns to his office and gives UC Eric a black fabric bag. Inside that bag is a light-colored plastic bag. UC Eric squeezes the bag and feels something consistent with pressed cocaine.
[66] UC Eric takes the bag with the cocaine and leaves the warehouse. The one-kilo deal is completed.
[67] On July 4th, UC Eric returns to the warehouse at 9:47 a.m. He tells Palumbo the cocaine is good enough and asks for another 20 kilos. Palumbo makes a phone call which UC Eric overhears. Palumbo says to the recipient of the call that he has room for another 20 skids which UC Eric understands to mean 20 kilos.
[68] Also on July 4th, Palumbo tells UC Eric that his guy will be able to get at least 20 kilos of cocaine by the end of July and that he will have an answer on the afternoon of July 4th. At 11:59 a.m. that day, Palumbo tells him his guy needs seven days to get the 20 kilos together. UC Eric calls Palumbo back at 12:05 p.m. to say he is good for 30 kilos next weekend (July 11th or July 12th). Palumbo says he will talk to his guy and figure it out.
[69] On July 6th, Palumbo calls UC Eric to say the “thing” they talked about, which UC Eric understands to refer to 30 kilos, will be ready on Thursday or Friday (July 9th or July 10th). There are negotiations back and forth about how the cocaine will be delivered. His guy wants to deliver it in 10-kilo instalments and UC Eric says he prefers to receive the cocaine all at once which Palumbo says will be fine. Palumbo then calls UC Eric back to say his guy wants the delivery to be in two instalments in the space of a couple of hours. UC Eric says they could work something out. In the end, UC Eric agrees to the delivery of the cocaine in two instalments. Between phone calls, they agree to meet on Saturday, July 11th.
[70] Also on July 6th, there are several communications throughout the day. There is a discussion about who will deliver the shipment container. Palumbo mentions a person named Mahmoud who he says he trusts to carry the container without him knowing he is carrying contraband. Palumbo says Mahmoud knows nothing and does not even need to know anything. UC Eric also discusses with Palumbo adjusting the price down if he buys the drugs in bulk. Palumbo tells UC Eric that his guy wants a face-to-face meeting the next day, July 7th.
[71] On July 7th,UC Eric meets Palumbo at his office. UC Eric engages Palumbo in a video call with UC Alex where UC Eric asks UC Alex how packing the shipment container was progressing. For Palumbo’s viewing, UC Alex directs his phone at a container containing items they bought from Palumbo. UC Eric asks UC Alex to put aside the $30,000.00 for Palumbo’s cut of the deal and UC Alex shows Palumbo a quantity of money which appears to excite Palumbo.
[72] Also on July 7th,Palumbo says his guy will agree to two deliveries of 15,000 kilos each. UC Eric confirms the price once again which Palumbo says will remain the same at $76,000.00, $75,000.00 per kilo, plus $1,000.00 per kilo as his guy’s cut. Palumbo says his guy will be picking up the cocaine on Wednesday (July 8th) or Thursday (July 9th). The arrangement to meet on the afternoon of July 11th is confirmed.
[73] UC Eric calls Palumbo at 7:58 p.m. on July 8th to once again confirm whether Saturday afternoon (July 11th) is still good which Palumbo confirms. Palumbo says he will be meeting with his guy on Friday (July 10th).
[74] On July 10th at 12:20 p.m., Sgt Rook-Green gives Staff Sgt Tillo $30,000.00 to be given to UC Eric for the supplier’s cut of the 30-kilo deal. The $30,000.00 is issued to UC Eric on July 11th.
[75] At 3:00 p.m. on July 11th, UC Alex arrives at the parking lot at 115 Drumlin to leave a van there where the $30,000.00 was to be secreted. UC Eric instructs UC Alex to pay Palumbo his portion. At about 3:18 p.m., UC Alex retrieves $30,000.00 from the vehicle assigned to him, goes to the warehouse and gives it to Palumbo. Palumbo places a red and white Saputo bag containing the money under a couch in the front lobby.
[76] On July 11th, UC Eric calls Palumbo at 1:59 p.m. UC Eric indicates that UC Alex will be at 115 Drumlin at 3:00 p.m. At 3:07 p.m., Palumbo calls to tell UC Eric that he will have to bring the money to the warehouse. UC Eric says he does not want to carry $1.1 million before he sees that the drugs are there first. UC Eric says he will ask UC Alex to go to the warehouse first to verify that the 15 kilos are there and then he will bring the money. Palumbo calls UC Eric at 3:17 p.m. and says he does not think his guy will agree to this. Palumbo calls his guy and confirms with him that he will not bring the drugs without the money being there first.
[77] UC Eric does not attend the warehouse on July 11th and the deal for the 30 kilos of cocaine is not completed.
SIGHTINGS OF DEFENDANTS AT 115 DRUMLIN
[78] As noted earlier, none of Shanker, Pawar or Singh dispute their identification on the surveillance during this investigation.
On March 26th
[79] On July 5th, Sgt Dury, a co-primary investigator with the RCMP CFSEU, went back and reviewed video surveillance recorded on March 26th, 2020. The officer testified that at 2:29 p.m., the recording depicts a white sedan in the parking lot at 115 Drumlin parked in front of the entrance to Unit 3. Nearby, a passenger wearing a brown bomber jacket with a fur collar and black pants, who is identified by the officer as Shanker, gets out of a grey Mazda, licence CJEB 606, and enters Unit 3. At 2:30 p.m., Shanker returns to the grey Mazda. At 4:08 p.m., Shanker, carrying a green bag under his arm, gets back into the Mazda. The driver does not leave the car and is not identified by the officer. The vehicle drives away at 4:09 p.m.
On April 7th
[80] Corp Michael DiIorio, an investigator with the CFSEU, viewed several video-recorded activities outside of 115 Drumlin. He was tasked with keeping a list of vehicles in the parking lot, their owners, makes and models and licence plate numbers.
[81] At 1:03 p.m. on April 7th, Corp DiIorio observes Pawar, Shanker, and Palumbo outside 115 Drumlin. He sees Pawar at 1:46 p.m. enter Unit 3, and minutes later, walks to a black Infiniti, registered to Pawar, licence EXPY 322, and a short time later he enters Unit 3 and walks back to the black Infiniti.
[82] The officer also observes Shanker on the sidewalk outside Unit 3 talking to Palumbo and Pawar. Pawar and Shanker remain on the sidewalk talking to a third unknown male. At 2:40 p.m., Shanker gets into the black Infiniti.
On June 15th
[83] On June 16th,Sgt Dury advises Corp Jenkins, the primary investigator with the CFSEU, that on June 16th he reviewed the June 15th surveillance from the pole camera outside the front of 115 Drumlin. The surveillance was recorded at 3:52 p.m. and, according to the officer, corresponds with the time of audio probe sessions # 85 - 87 intercepted at approximately 3:30 p.m. in Palumbo's office. Sgt Dury observes on the surveillance two males arrive at the parking lot at 115 Drumlin in a grey Toyota Camry, licence CLDK 955.
[84] Corp Jenkins prepared a surveillance report detailing the live and recorded sessions of the June 15th surveillance which contained photo stills of Shanker and Pawar and the Toyota Camry.
[85] The June 15th surveillance depicts two males, both South Asian, departing the Toyota and entering Unit 3 of the warehouse. The passenger, described as shorter, middle-aged, who is identified by Corp Jenkins and Sgt Dury as Shanker, leaves the warehouse at about 4:03 p.m.; and the driver, who is described as younger, thinner and taller with a mustache, who is identified by Corp Jenkins as Pawar, stands near the vehicle texting on his cellphone. Shanker and Pawar stand speaking to a third unknown male briefly. At 4:09 p.m., Pawar, as driver, and Shanker as passenger, get into the Toyota and drive away.
[86] Sgt Dury prepared an Investigative Action Report (an “IAR”) in which he summarizes observations on the June 15th surveillance recording and the information about the two males, later provided by DC Dawson on June 17th, as discussed below, as to whom the two males are. Sgt Dury also reviews the surveillance report prepared by Corp Jenkins.
On June 25th
[87] On June 25th at 2:33 p.m., Corp DiIorio, assigned to the Toronto division of the CFSEU, observes a grey Hyundai Elantra, licence CMHH 465, near the front door of 115 Drumlin. Shanker exits the passenger seat, takes something out of the trunk and walks toward 115 Drumlin. Pawar exits the driver’s seat and stays near the vehicle. At 2:53 p.m., the officer observes Shanker walk back to the vehicle, retrieve something from the trunk and return to 115 Drumlin. The officer is able to identify Shanker that day from a personal profile sheet.
On June 26th
[88] On June 26th at 3:59, Corp DiIorio sees a grey Hyundai Elantra, licence CMHH 465 leave the parking lot at 115 Drumlin.
On July 3rd
[89] On July 5th, Sgt Dury reviews the July 3rd surveillance for the period from 1:46 p.m. to 5:00 p.m. He sees a dark-coloured sedan in the parking lot of 115 Drumlin but he does not observe the licence plate number. At 2:24 p.m., he observes a white Honda, licence CDED 826, known to be associated with Shanker, park in the parking lot at 115 Drumlin. Shanker enters Unit 3 at 2:28 p.m. At 3:02 p.m., Shanker walks toward the white Honda appearing to be carrying something.
[90] Sgt Dury testified he does not see Pawar on that day or a black Infiniti, associated with Pawar, on the lot that day. He notes that at 3:14 p.m., he sees a dark sedan but does not see a licence plate number or any other features of that vehicle. When Sgt Dury views the July 3rd video again on July 6th, he notes that at 1:15 p.m. he sees a dark sedan leaving the parking lot at 115 Drumlin and the licence plate is not visible. Corp DiIorio also says he observed, on July 3rd at 3:14 p.m., what he believed to be the black Infiniti but neither does he see the licence plate. He thought the vehicle was similar to the one he saw at 115 Drumlin on April 7th registered to Pawar.
On July 4th
[91] On July 4th, DC Steven MacNeil, an investigator with the CFSEU, is tasked to attend 115 Drumlin to conduct surveillance on Palumbo. He receives information from other officers.
[92] DC MacNeil is informed that at 11:57 a.m. a grey Toyota Camry, licence CLDK 955, arrived at 115 Drumlin driven by a male identified as Pawar. He is described as brown, with dark hair and a beard, wearing shorts and a white top.
[93] DC MacNeil receives information that Pawar exited 115 Drumlin at 12:03 p.m. carrying a banker’s box and a black bag which he places in the trunk of the Toyota Camry. He is observed moving things around in the trunk. At 12:05 p.m., DC MacNeil receives information that the Toyota leaves the parking lot. Corp DiIorio makes similar observations of Pawar.
[94] DC MacNeil makes his own observations from 12:56 p.m. He observes the Toyota Camry drive into a plaza on Sheppard East and park. At 1:08 p.m., he sees an Asian male walk to the plaza wearing a black t-shirt with a white panda design, wearing a black COVID mask, and his hair in a bun, carrying what appears to be an empty black bag. He gets into the rear of the Toyota behind the driver. At 3:13 p.m., the officer sees the male exit the vehicle with the black bag that now appears to be weighted. The male proceeds on foot.
[95] On July 4th at 12:03 p.m., Corp DiIorio observes Pawar driving a grey Toyota Camry, licence CLDK 955, walking from the area of Unit 3 to the trunk of the Toyota Camry, opening the trunk, moving things around and placing a banker’s box inside. At 12:07 p.m., the Toyota Camry drives away.
[96] On cross-examination of Corp DiIorio by Pawar’s counsel, the officer conceded he did not see Pawar enter Unit 3 because of a large white trailer blocking his view. He also agreed he did not see the black Infiniti on July 4th. On further cross-examination by Pawar’s counsel, Corp DiIorio stated that the registered owner of the black Infiniti as of July 2, 2020 was Ramandeep Singh. The registration was inactive and became active on about September 9, 2020. The current owner is Ameena Mohamed. The officer conceded Pawar was not the registered owner of the black Infiniti on July 3, 2020.
[97] On cross-examination by Singh’s counsel, Corp DiIorio acknowledged Singh did not come to the attention of the police, was not a person of interest until July 11th and his blue BMW, licence CJBF 023, does not appear on any list of vehicles in this investigation.
[98] On July 4th, PC Derek McCormick, an officer with the CFSEU, is tasked with calling out over the radio to other officers his observations. He also conducts surveillance on Pawar while he is at 115 Drumlin. He follows Pawar who is driving the Toyota Camry from 115 Drumlin to his home at 31 Fenchurch.
[99] PC McCormick observes Pawar pull into the driveway at 31 Fenchurch at 1:55 p.m., exit the vehicle, open the trunk, search deeper into the trunk, move things around and place some items into the banker’s box. PC McCormick then sees Pawar place the banker’s box on the ground behind the trunk, remove a green plastic bag with handles from the trunk and take it and the banker’s box into his home. PC McCormick documents this by taking a video of that activity which was played in court. He believes it was the same banker’s box he saw Pawar put into the trunk at 115 Drumlin earlier that day at 12:06 p.m.
[100] On cross-examination by Pawar’s counsel, PC McCormick acknowledged that he could not see inside the trunk and that he only saw one banker’s box in the trunk.
On July 8th
[101] On July 8th, DC MacNeil is tasked with observing Shanker’s home at 57 Valley Creek in Brampton. He learned that Shanker had left 115 Drumlin at 1:15 p.m. At 3:15 p.m., the officer observes the target vehicle, a blue Land Rover, licence CEAR 105, pull into the driveway and observes Shanker pause briefly before opening the front door of the house. The Land Rover was registered to Harpreet Sidhu and driven by her on that day. At 3:18 p.m., he is seen exiting the front door and entering the passenger’s seat of the Land Rover.
On July 11th
Havinder Singh
[102] Of the three defendants only Singh testified. By way of his background, he is 45 years of age. He immigrated to Canada from India several years ago. He is a Canadian citizen of Sikh background and does not have a criminal record. At the relevant time Singh was residing in Cambridge, Ontario. He and his family have built a successful mechanics business and long-haul trucking enterprise operating 18 tractor-trailers that transport goods within Canada and across the Canada-US border.
[103] From March 2020, the government imposed restrictions due to the COVID-19 pandemic. However, this did not adversely affect Singh’s business because trucking was considered an essential service so his trucks could continue to operate. However, PPE was mandated for local truckers and those crossing the border. Singh required a source for masks, hand sanitizers and gloves.
[104] Singh said that by July 2020, PPE was not easy to access. He contacted Shanker, who was known in the Punjabi community as a liquidator and a resourceful guy who operated a liquidation business in Brampton. Singh inquired with him about obtaining some PPE for his truckers. He called Shanker on about July 9th (Thursday) and Shanker agreed to help him obtain PPE and asked Singh to call him on Saturday morning (July11th).
[105] Singh called Shanker around 10:30 a.m. on July 11th and Shanker asked him to pick him up at his home in Brampton and they would go together in Singh’s vehicle, a blue 2012 BMW X5, licence CJBF 023. Singh picked up Shanker in Brampton at about 1:30 p.m. Singh said his brother would also be meeting him at 115 Drumlin in his vehicle, a grey Lexus, licence CDKJ 767, so they could load up two vehicles with PPE.
[106] The quest to buy PPE from Palumbo was what Singh claims brought him to 115 Drumlin at 2:15 p.m. on July 11th.
PC Rene Kuhn
[107] At 12:04 p.m., PC Rene Kuhn, an officer with the RCMP Emergency Response Team, was tasked as a sniper to assist with the takedown. He was stationed covertly at the rear of 115 Drumlin with his partner.
[108] At 2:31 p.m., PC Kuhn observes a black Honda Civic, partial licence CLHP, arrive at the rear of the warehouse and back up to the loading dock. PC Kuhn’s partner takes a video of this observation. A male wearing a light t-shirt and blue jeans exits the passenger door of the vehicle and takes two blue, what he first described as bins, from the trunk and places them on the loading dock. When shown the video at trial he corrected what he saw to be two blue duffel bags, not bins. At 2:34 p.m., the Honda drives away.
[109] At 3:35 p.m., PC Kuhn observes a brown male he describes as heavy set, with a mustache, wearing a lavender golf shirt and grey dress pants, jump out of the loading dock door and run towards some bushes while looking back at the warehouse. He recognizes him as Shanker from the profile information he had received.
Corp DiIorio
[110] At 2:16 p.m., Corp DiIorio observes a black 2012 BMW X5, licence CJBF 023 parked at 115 Drumlin. He sees Shanker get out of the front passenger seat and observes Singh exit the driver’s seat. Singh walks toward Unit 3. Corp DiIorio identifies Singh as the owner of the BMW through a search of the MTO database. That is the first occasion Singh is seen during this investigation.
[111] Corp DiIorio sees Singh at 2:29 p.m. walk from the area of 115 Drumlin back to the parking lot where there is a black Honda, licence CLHP 631 parked. Singh briefly speaks to the driver and then enters the front passenger seat of the Honda.
[112] Singh offered an innocent explanation for his presence at 115 Drumlin on July 11th.
[113] Singh testified that when he and Shanker arrived at 115 Drumlin they entered together. He speaks with Palumbo in the warehouse area about purchasing PPE. Palumbo shows him the PPE he had and agrees to sell it to Singh. Palumbo tells Singh he is busy that day and asks him to come back Monday (July 13th) to get the PPE. Singh testified that he asked Palumbo if he could pick up the PPE that day (July 11th) and Palumbo asks him to wait because he was busy at the moment.
[114] Singh said Palumbo asked him to assist with a delivery coming in. He said a guy in a black Honda was parked on the front lot and asks Singh to bring the vehicle to the loading dock at the rear of the warehouse. Singh then leaves Unit 3 and gets into the passenger’s seat of the Honda. The vehicle was driven by an unknown male who backs the vehicle up to the loading dock. The driver pops the trunk open and Singh sees two blue duffel bags which he removes from the trunk and places on the loading dock.
[115] Palumbo had directed Singh to unload the Honda and then return to his vehicle on the front lot and wait for the PPE. Singh then walks back to his vehicle and gets into the driver’s seat.
[116] Singh testified he had no idea what was in the duffel bags. He thought the bags would contain legitimate products like those he saw in the warehouse. He said he had no reason to be suspicious because Palumbo appeared to be running a legitimate business.
[117] Singh’s activity is captured by pole camera surveillance at the front of the parking lot and by the video recording made at the rear of the warehouse by PC Kuhn’s partner.
[118] At 3:25 p.m., Corp DiIorio sees Shanker walk from the area of Unit 3. He gets into the front passenger seat of a grey Lexus, licence CDKJ 767, Singh’s brother's vehicle, which leaves the area. That vehicle returns two minutes later.
[119] Corp DiIorio sees the Lexus leave the parking lot again and at 2:37 p.m., return and park in the parking lot. Shanker gets out of the Lexus and walks toward the door of Unit 3. At 2:51 p.m., the Lexus backs out of the parking lot, drives north, and returns to the parking lot at 3:06 p.m. Shaker then exits the front passenger seat and walks towards Unit 3 again.
[120] On cross-examination by Shanker’s lawyer, Corp DiIorio conceded he did not review the entirety of the videos that captured Shanker at 115 Drumlin. The officer acknowledged that Shanker attended the premises on many more occasions than recorded on the videos adduced by the Crown.
[121] Replaying the surveillance from April 7th and July 3rd, Shanker’s counsel questioned Corp DiIorio about people of various racial backgrounds, including South Asians, coming and going from the parking lot and 115 Drumlin, entering and exiting vehicles, carrying packages to and from Unit 3, the suggestion being that there were many people on the parking lot unknown to the officer, among them, some who were persons of interest and others who were not. The officer agreed.
[122] On cross-examination by Pawar’s counsel, Corp DiIorio confirmed he did not see Pawar or the black Infiniti at 115 Drumlin on July 11th.
Intercepted Communications
Audio Probes and Telephone Interceptions from Palumbo’s Office
[123] The audio probes from Palumbo’s office and telephone interceptions from Palumbo’s phone adduced by the Crown were transcribed and collectively made an exhibit at trial. The defendants admit the transcripts containing the dates, places and phone numbers for the persons intercepted and containing text messages and intercepted communications. They admit Palumbo’s voice is heard on the probes and interceptions. But do not admit Shanker’s voice is heard.
[124] Corp Jenkins reviewed the June 15th audio probe, sessions # 85 - 87, intercepted from Palumbo's office. He asks for that communication be transcribed as well as others. The officer believes he hears a male speaking with an Asian accent and Palumbo say, “Raji”, “Rob” or “Robbie”. He says at the end of the recording that he hears Palumbo say “Ravi”. He concludes that the reference is to Ravi Shanker.
[125] In answer to the question as to how he came to that conclusion, Corp Jenkins stated that he had contact with Shanker as an officer with the Peel Regional Police Service, Intelligence and Organized Crime unit.
[126] Corp Jenkins testified that sessions # 85 - 87 were recorded on June 15th and that there was a sighting on that day of two males in a vehicle pulling into the parking lot, one identified as Shanker. He stated that his reason for looking at the June 15th video surveillance after listening to the June 15th audio probe was because audio probes are time-stamped. This would allow the investigators in the wire room (where interceptions were monitored by investigators) to review the video surveillance taken at the same time the audio probe was intercepted so the police could identify who was pulling into the parking lot at a particular time.
[127] Corp Jenkins stated that this correlation was done in relation to Shanker and he became a person of interest on June 15th. Pawar became a person of interest on June 15th as well. Pawar was identified by observing him on the June 15th surveillance and through an MTO check on the Toyota Camry, licence CLDK 955, which was registered to a female with the surname “Pawar”. A search on “Pawar” on the police database turned up a photo of Sukhsimrat Pawar which was then compared to a photo of Pawar on the MTO database.
[128] On July 4th, DC Tyler Freeman, also an investigator with the CFSEU, is assigned to the wire room where he listens on that day to both a voice on the intercepted phone call, # 4517, that was made at 10:40 a.m. on Palumbo’s phone, number, 647-866-2277, and an telephone number of the other person on the intercepted call was 416-708-8077. The subscriber for that number was Modern Mattress Industries which company Sgt Dury was not familiar with at the time. The audio probe was recorded on July 3rd at 2:58 p.m.
[129] DC Freeman concludes after listening to both interception media that the person speaking on the audio probe is the same person speaking to Palumbo on the intercepted telephone call. He observes that the person had an East Indian accent.
[130] Together with PC Kevin Sales and DC Freeman in the wire room, Sgt Dury compares the voice on the audio probe with the voice on the intercepted phone call. Both audio probe # 1542 and the intercepted phone call # 4517 were played in court and are included in the series of transcripts that were made an exhibit. The Shanker defence does not contest the interpretation of the communications as contained in transcripts. There is disagreement on whose voices are heard. According to Sgt Dury, on the # 1542 probe, a voice is heard to say, and the transcript states: “If you say okay Ravi then I'll go ahead.” The officer concludes that it is Shanker’s voice and Shanker who is being referred to in both the audio probe and the telephone interception.
[131] Shanker’s defence counsel raised questions with DC Freeman about the iPhone, said to be Shanker’s, that during the search was found in Shanker’s home. DC Freeman said it came as a surprise to the police that the subscriber of that phone was Modern Mattress Industries. Shanker’s defence counsel pointed to the phone number provided on December 2018 bail documents connected to Shanker's brother, Ravinder Paul and Modern Mattress Industries.
[132] Counsel suggested that the number was 416-708-8077 while the phone number provided for Shanker on a June 29, 2020 authorization for tracking Shanker was 647-518-9990. DC Freeman indicated he did not know Shanker had a brother named Ravinder Paul. He agreed that the intercepted phone call # 4517 was a call from Modern Mattress Industries’ phone to John Palumbo’s phone.
[133] Defence counsel suggested to DC Freeman that Shanker was not using his brother’s phone. He further suggested that because the police did not investigate Ravinder Paul they did not know whether it was Ravinder Paul speaking to Palumbo on the audio probes and telephone interceptions. DC Freeman agreed that when he compared the July 3rd audio probe with the July 4th telephone interception this was simply to confirm, or in effect to rubber stamp, that the voices were Shanker’s.
[134] Defence counsel asked DC Freeman if he knew what confirmation bias refers to, to which the officer responded that he did not. It was also put to DC Freeman that when he compared the audio probe to the telephone interception he just automatically concluded the unknown voice on the telephone interception was the same person on the probe. DC Freeman responded that he was confident it was Shanker on the audio probe because he listened to the recording multiple times and heard Shanker self-identify on audio probe # 1542, at line 108 of the transcript. He contended he was in turn sure it was the same voice on the telephone interception.
Identification Evidence
DC Gary Dawson
[135] DC Gary Dawson, an officer with the Peel Regional Police Service, Intelligence and Organized Crime unit was asked to assist the investigation on one day, June 17th, for the purpose of identifying a voice on audio probes and telephone calls intercepted from Palumbo’s office. He met with Corp Jenkins. Corp Jenkins presented DC Dawson with the June 15th probe, sessions # 85 - 87 and the surveillance report from June 15th.
[136] DC Dawson listened to probe sessions # 85 - 87 and identified the male Palumbo was speaking to as Shanker. Corp Jenkins added the information to the surveillance report for June 15th that the two males observed were Shanker and Pawar. Corp Jenkins stated that this information motivated the police to look at earlier surveillance to identify persons at 115 Drumlin.
[137] DC Dawson explained how he was able to recognize Shanker’s voice on the audio probes.
[138] DC Dawson indicated he had been involved with Peel Regional Police in 2018 with a project called Project Terminal. One of the video probes in that investigation involved a covert camera directed at Shanker in his office. As the primary investigator, DC Dawson reviewed surveillance and audio recordings. Because there was a combined audio and video probe above Shanker’s desk, DC Dawson was able to view video surveillance and audio recordings of Shanker at the same time. He indicated that during all of July and August 2018, he was in the monitoring room reviewing sessions deemed important.
[139] DC Dawson also indicated that he attended about eight days of Shanker’s trial and had brief interactions with him outside the courtroom exchanging greetings and comments. He would also overhear his voice when Shanker was talking to others.
[140] Those experiences with Shanker persuaded DC Dawson, and in turn, persuaded Corp Jenkins and other investigators, it was Shanker speaking to Palumbo on probe sessions # 85 - 87.
[141] DC Dawson was evasive in answering a question about the method of his identification. Shanker’s counsel had to repeat the question several times about whether DC Dawson had ever picked out Shanker’s voice from among several other people speaking with South Asian accents. The officer eventually responded that circumstance “had never come up in the past”.
[142] DC Dawson maintained, nonetheless, that Shanker’s voice was distinctive. The officer testified he had difficulty explaining how his voice was distinctive apart from saying he had a South Asian accent and it was “very monotone”. The officer acknowledged that he was shown only one photo of Shanker and listened to three probe sessions and an intercepted conversation purportedly involving Shanker and Palumbo.
Sgt Ben Dury
[143] Sgt Dury listened to the June 15th probe session # 86 on June 16th. His evidence was that on the recording at 3:52 p.m., he heard a reference to a person named “Robbie”. To verify who the male was on the audio probe the officer testified that he also reviewed the June 15th video surveillance where he saw Shanker and Pawar arrive at 115 Drumlin at about 4:00 p.m. in a grey Toyota Camry, licence CLDK 955.
DC Tyler Freeman
[144] As noted above, DC Freeman stated that he identified Shanker's voice and a reference to him on audio probe # 1542 and the intercepted phone call # 4517. He believed Shanker self-identified as "Ravi" on the audio probe (at line 108 of the transcript) and concluded it was Shanker on both the probe and the telephone interception. He pointed to the fact the voices on both media had an “East Indian” accent. He admitted, however, that he had heard Shanker’s name but had never had any interactions with Shanker during the investigation.
[145] Shanker’s counsel put to the officer that the accent was the only distinguishing feature in the unknown male’s voice speaking to Palumbo on the telephone interception. DC Freeman disagreed, saying that the totality of the voice and the conversation has to be considered.
[146] When asked about the features of sameness in the voices, DC Freeman stated that the pitch, the speed of the conversation, and the overall sound of the voice were identical. He described the accent as Southeast or South Indian. On further questioning, he admitted he did not do an investigation of East Indian male voices of similar age groups to see if the features he described were common for that group. He admitted he had no special knowledge or exposure to East Indian people.
[147] Shanker’s defence counsel also posed to DC Freeman that identification in a cross-racial context presents risks for police officers because of unfamiliarity with the features of people of different races. DC Freeman stated he was aware of the challenges and said this did not occur to him in this case because he believed the voices were from the same person.
PC Kevin Sales
[148] Working in the wire room, PC Kevin Sales reviews sessions # 85 - 87 on the audio probe in Palumbo’s office. He is asked to try to identify Shanker's voice on the probe that had previously been identified by DC Dawson. On June 17th, he listens to the probe and finds that the voice is Shanker’s. PC Sales testified that he used the voice on the probe as a control or known session which he would utilize as a comparison voice when listening to other voices.
[149] On July 4th, PC Sales listens to probe session # 1542 recorded on July 3rd and the telephone call interception # 4517 that happened on July 4th between Palumbo and an unknown male. On the probe, there is a conversation about delivering sanitizer and Palumbo asks for “1000 out of it”. He PC Sales testified that to determine it was Shanker's voice he compared the voice on the # 1542 probe to the sample voice DC Dawson had identified as Shanker's and found it to be a match.
[150] PC Sales testified the unknown male was talking to Palumbo’s cellphone number 647-866-2277 and was using the cellphone registered to Modern Mattress Industries 416-708-8077. PC Sales thought the voice sounded similar to Shanker’s. He said when he first listened to the voice he did not recognize it as Shanker’s. He testified he revisited the unknown voice on the telephone call and found that the voice on the call coincided with the voice on some of the probes.
[151] PC Sales spoke of how he compared the voice on the probes to the voice on the telephone call. He explained that the technology in the wire room allowed investigators to move back and forth, not simultaneously, listening to two conversations. He found, using the known sample voice, that it was the same voice on the telephone call as on the probe. PC Sales testified he repeatedly tested the similarity of the voices on the probes and telephone interceptions against the control sample for each probe session and telephone call and came to the same conclusion that it was Shanker’s voice.
[152] In answer to a request for PC Sales to describe Shanker’s voice, he said it was difficult. The officer said Shanker’s voice was not so clear on the probe but could be heard clearly on the telephone call. PC Sales explained that the probes are not as clear because the mic in Palumbo’s office could be at a distance from the person speaking whereas with the telephone calls speakers are talking directly into the mic. He also mentioned the problem of music, static and other noises and voices in the background.
[153] PC Sales said he found Shanker’s voice unique, that it had a certain dialect or tone, but he did not recognize the accent. He focused on certain words used by the male that were heard on both a probe and a telephone call. He compared those words and the vocabulary and greetings to the control sample and concluded the voices on the probe and telephone call were the same as the voice identified by DC Dawson. PC Sales pointed to such words as “Okay, thank you”, from probe session # 1542 and, “come by”, from intercepted call # 4517. He also thought the way the male said “John” was unique.
[154] The Crown took PC Sales through the transcripts of several audio probes and intercepted telephone calls where, in the police's estimation, Shanker’s voice is heard or he is referred to by another speaker. I will refer to some of these.
[155] Looking at probe session # 87, recorded on June 15th from 2:57 p.m. to 4:02 p.m., PC Sales stated he heard Palumbo’s and Shanker’s voices, according to DC Dawson's voice identification, and possibly an unknown third male in the background. The officer indicated that at line 117 of the transcript of session # 87, the names “Ravi” and “John” are mentioned.
[156] PC Sales also said that on June 24th, on probe session # 921, at line 117 of the transcript of the probe, he heard the words “Ravi at Johns”. At line 176 the officer said he heard the name “Ravi Shanker”. At the end of the recording, he believed he heard Risley (another person of interest) introduce Shanker to someone named Tina.
[157] On an intercepted telephone call on June 24th at 5:26 p.m., Palumbo called UC Eric to set up a face-to-face meeting on June 25th. On June 26th, on audio probe # 1105 at 4:02 p.m. PC Sales said he heard Palumbo and Shanker speaking. He came to that conclusion because the voice was the same as the known control sample.
[158] On July 4th, PC Sales identified an incoming call at 10:40 a.m. from Modern Mattress Industries, phone number 416-708-8077, to Palumbo’s phone number 647-866-2277. PC Sales said he believed it was Shanker and Palumbo speaking on the call. There is a text message at 12:14 p.m. from 416-708-8077 to Palumbo’s phone saying, “Thank you, sir.” Then two minutes later, a text from 416-708-8077 to Palumbo saying, “Got the invoices”.
[159] On probe session # 1711, recorded on July 6th, at 3:59 p.m., PC Sales also indicated that Palumbo and Shanker are speaking and he said he believes that because he thought the voice at issue was the same as the known control voice. He believed at the end of the conversation he heard Palumbo tell Ravi to hold on. On probe session # 1271 at 4:49 p.m. on July 6th, PC Sales testified he heard Palumbo and Shanker speaking and a third person close by saying he had to plug in his phone. Later, on July 6th at 5:19 p.m., on probe session # 1727, PC Sales heard Palumbo and two unknown males speaking, and toward the end of the conversation he heard an unknown male say “Ravi.”
[160] On probe session # 281, recorded on July 11th at 2:43 p.m., according to PC Sales, at line 82, Palumbo identified the male as “Ravi.” Also on July 11th, on probe session # 287 at 3:13 p.m., PC Sales said he heard a conversation between Palumbo and UC Eric and also between Palumbo and Shanker. He recognized Shanker's voice by again matching it with the control sample voice.
[161] On cross-examination by Shanker’s counsel, PC Sales repeated that he did not know what accent Shanker had, but said he was sure it was Shanker speaking to Palumbo on the probes and intercepted telephone calls. He conceded however that he had never spoken to Shanker and did not know whether he had an accent. PC Sales contended that he could identify Shanker’s voice because he relied on DC Dawson’s voice identification sample. He conceded that Corp Jenkins told him about DC Dawson’s voice identification information and acknowledged that he did not personally communicate with DC Dawson directly or receive any means by which to assess DC Dawson's conclusions.
[162] In answer to a question about the clarity of the probes and intercepted telephone calls, PC Sales said that probe sessions # 85 - 87 are “descent”, and under cross-examination, he said the probes were “not very good”. He pointed to the noise in the background as a detracting factor. PC Sales indicated that some communications are “indiscernible” and that, while at times he could not hear the words that were spoken, that did not impede him from identifying the voice. Defence counsel pointed out, and PC Sales agreed, that just because a speaker on a probe or interception might say Ravi Shanker’s name, does not mean Ravi Shanker is involved in the conversation.
[163] Defence counsel pointed out concerns with the fact there are some 5,000 interceptions in this case and that the Crown only relies on 22 of them to which PC Sales agreed. Counsel suggested, and the officer did not dispute, that the police had a narrow focus on probes with the voice they believed was Shanker’s to the exclusion of voices of others communicating over probes with Palumbo in his office during the relevant period.
[164] On cross-examination, Pawar’s counsel posed to PC Sales that there were probe conversations and intercepted calls between Palumbo and persons other than Shanker that did not result in arrests. He cited as an example probe session # 2341 where Palumbo is speaking to Allan Ede who was flagged as a suspect but is not facing charges in this case. PC Sales agreed.
Searches and Seizures on July 11th
The Warehouse
[165] Det Sgt Robert Johnston, an investigator with CFSEU, is assigned to attend at 115 Drumlin to assist with the search of the warehouse. He is directed at 3:35 p.m. to take custody of two people who were not involved in the case before this court.
[166] At 3:46 p.m., Det Sgt Johnston is also asked to attend a further location on Petrolia Dr., about 800 metres from the warehouse. At 3:50 p.m., he observes a male whom he identified as Ravi Shanker by an Ontario identification card he had on his person. The officer arrests him and gives him his rights to counsel. Det Sgt Johnston indicated Shanker did not have his cellphone with him and that Shanker told him he did not know the whereabouts of his cellphone. After Shanker is escorted away, Det Sgt Johnston searches the area for Shanker's cellphone but does not locate it.
[167] Det Sgt Johnston returns to the warehouse. He assists other officers with moving a large couch in the vestibule. Under the couch, they find a plastic bag containing three large bundles of $20 bills. The cash totalled $30,000.00. These are the only funds seized in this investigation that are found to be registered in the CRATS database.
[168] Sgt Ezra Zugehoer arrives at 115 Drumlin at 3:53 p.m. and observes a large police presence. He is accompanied by a drug-detection dog. At 4:33 p.m., he is asked to search the warehouse on both sides. At 6:25 p.m., the dog detects drugs among the pallets and scaffolding in two teal-coloured duffel bags. He alerts the investigating officers on the scene.
[169] Corp Asadullah Wahidie was assigned as the exhibits officer on July 11th. At 5:50 p.m., after the takedown, he enters 115 Drumlin. He arrests Singh, asks for his name, reads him his rights to counsel and does a pat-down search. He also arrests Palumbo. He seizes a Samsung cellphone from Palumbo and calls PC Sales in the wire room to have him call the phone. PC Sales calls the phone number associated with Palumbo's phone, 647-866-2277, and it rings.
Shanker's Home, 57 Valley Creek Drive, Brampton
[170] Shanker and his family resided at 57 Valley Creek Drive in Brampton at the relevant time. There is no dispute about that.
[171] On July 11th, DC Freeman assists with the search of Shanker's home. He searches a small bedroom on the second floor. On the bed, he locates three cellphones, (a) an iPhone not described by the witness, (b) an iPhone 11 X Pro, and (c) a Blackberry. Sgt Dury contacts the wire room and requests PC Sales call iPhone (a) using the number the police believe is Shanker's phone number, 416-708-8077. iPhone (a) rings displaying a blocked number and the police contend this confirms the phone number related to the phone was 416-708-8077. According to DC Freeman, the phone was proved to be Shanker’s phone.
[172] On cross-examination, Shanker’s counsel pointed to DC Freeman’s notes where he indicates he provided Shanker's phone number for iPhone (a) to PC Sales. His notes do not contain a contact number. DC Freeman explained that he did not have to provide a contact number to the wire room because the officers there would already have Shanker's number. Based on the belief that Shanker used Modern Mattress Industries’ phone, the officer stated that he believed he directed PC Sales to call the Modern Mattress phone number, and iPhone (a) began to ring with a blocked number which Sgt Sales did not answer.
[173] On re-examination, DC Freeman’s memory about which number he asked PC Sales to call was refreshed by looking at the TDR report. The report shows that the RCMP (PC Sales), calling from 416-278-1224, called the number 647-518-9990, the number provided for Shanker on the tracking authorization. The officer's memory was refreshed that he asked PC Sales to call Modern Mattress Industries and it happened that he actually called 647-518-9990.
[174] DC Freeman also locates a receipt for $80,000.00 from Harpreet Singh to John Palumbo in the bottom drawer of a dresser in the bedroom he searched.
[175] PC Ryan Haggett, of the Peel Regional Police Service, is tasked with assisting with the search of 57 Valley Creek. He enters at 3:38 p.m. and, at 4:30 p.m., begins searching a bedroom on the second floor. He finds on a couch, in a grey Tupperware container, a several-inch thick stack of $20 bills. Shanker conceded in the Agreed Statement of Facts that the $20 bills amounted to $6,000.00. Also found is a money counter. There are also two notebooks and documents bearing Shanker’s name. There are two cheques, one for $30,000.00 and another for $1,000.00, and a government cheque. Nothing is found in the other rooms he searched.
Pawar's Home, 31 Fenchurch Drive, Brampton
[176] Pawar and his family resided at 31 Fenchurch Drive in Brampton at the relevant time. This is not disputed.
[177] On July 11th, PC Derek McCormick conducts surveillance on Pawar’s home. Pawar is observed in the garage of his home between 11:25 a.m. and 12:45 p.m. with two other males. The males enter the residence before the warrant is executed at 3:32 p.m.
[178] PC McCormick enters the home through the garage door and observes three males running out of the house toward the backyard. He locates the males and arrests Pawar within a minute after the search warrant is executed. He cuffs him and locates two cellphones on his person, an iPhone and a Blackberry.
[179] On July 11th, DC MacNeil is also tasked with executing search warrants on Pawar's home and two vehicles, a grey Toyota Camry, licence CLDK 955, and a black Infiniti, licence EXPY 322.
[180] DC MacNeil first conducts surveillance before the search. He observes Pawar at 1:51 p.m. leaving the area of his home in the grey Toyota Camry. He meets a blue tractor trailer that pulls out of a school parking lot which the Toyota followed to two different addresses. Pawar then returns home at 3:10 p.m.
[181] The warrant is executed at 3:22 p.m. DC MacNeil searches the office on the first floor of the home where nothing is seized. He then searches the master bedroom on the second floor. In a dresser drawer, he seizes three vials containing black pellets found to be opium and a small ball of the same substance wrapped in plastic along with $440.00 in currency. He also finds banking documents, and a SIN card in Pawar's name that were photographed but not seized, all admitted in the Agreed Statement of Facts.
[182] DC McCormick testified that at 6:03 p.m. on July 11th, he searched one room. There is no evidence whether he seized anything. On cross-examination by Pawar's counsel, the officer said he was not aware of any officer recovering the banker's box or the green bag with the handles that Pawar was observed carrying into the home on July 4th.
DRUG EXPERT, CORP RODNEY MACINTYRE
[183] The defendants do not dispute the evidence of the Crown’s expert witness. Corp MacIntyre has 23 years of experience with the RCMP and has been qualified as an expert on controlled substances on numerous occasions. I accept his expertise in the areas he seeks to testify on: the nature of cocaine and opium; the use and dosage of cocaine and opium; their pricing and distribution; drug paraphernalia; the indicia of drug trafficking and proceeds of crime.
[184] Cocaine is purchased and sold for distribution by commercial traffickers usually at the kilo level or more. It is generally a cash business and more recently at higher-level operations, cryptocurrency is used. Corp MacIntyre testified that because drug trafficking is heavily a cash business, it is not uncommon for a successful drug trafficker to have a large amount of cash in the proximity of drugs.
[185] It was also the officer’s opinion that drug traffickers often have multiple cellphones in their possession. This they do to prevent being detected by law enforcement by switching cellphones and SIM cards. It is common for drug traffickers to have separate cellphones for personal business and their drug enterprise. A money counter is not unusual in a cash drug business.
[186] On cross-examination, Corp MacIntyre acknowledged there are legitimate businesses where large amounts of cash are present and that multiple cellphones are not necessarily a sign of a drug operation. Many people other than drug traffickers can own more than one cellphone.
ANALYSIS ON CONSPIRACY
Background to Trafficking Deals
[187] On the conspiracy charge at count 1 on the indictment the court is asked to determine whether Shanker, Pawar and Singh conspired to traffic 30 kilos of cocaine on July 11, 2020. The pivotal element in a conspiracy is an agreement. The agreement is the actus reus of the offence without which there is no conspiracy. Section 265(1) of the Criminal Code provides that the essential elements that must be proven by the Crown beyond a reasonable doubt are an intention to agree, the completion of the agreement and a common unlawful design.
[188] There is little doubt there was an agreement and a common unlawful plan among Palumbo, UC Eric and the supplier. They had been involved in a plan to traffic cocaine from early 2020. By June 2020 they had developed a trusting relationship. After purchasing one kilo of cocaine from Palumbo in February 2020, UC Eric approached Palumbo on June 8, 2020 to purchase more cocaine which over the ensuing weeks went from 20 kilos to 30 kilos, the plan being that Palumbo would first get from his supplier one kilo for UC Eric to test for quality.
[189] Palumbo and UC Eric communicated by phone and in person back and forth, and Palumbo with his supplier throughout June discussing price, amounts and delivery times. On June 25th, UC Eric agreed with the supplier’s price of one kilo at $76,000.00, $75,000.00 plus the supplier’s cut at $1,000.00 per kilo. The one-kilo deal was completed on July 3rd at 5:50 p.m. with UC Eric delivering the $76,000.00 to Palumbo at the warehouse in exchange for the one kilo of cocaine.
[190] On July 4th, UC Eric told Palumbo the cocaine was “good enough” and he wanted to purchase 30 more kilos. After several phone calls and attempted phone calls between Palumbo and UC Eric, Palumbo informed UC Eric that his supplier told him he could provide 30 kilos by the weekend. On July 7th, the price was confirmed at $75,000.00 per kilo with an additional $1,000.00 per kilo or $30,000.00 for the supplier's cut which was to be paid upfront.
[191] After some back-and-forth telephone calls and calls by Palumbo to the supplier, on July 7th UC Eric and Palumbo settled on meeting on July 11th at the warehouse to complete the 30-kilo deal. The plan was for UC Alex to attend the warehouse at 3:00 p.m. on July 11th with the supplier’s $30,000.00 cut. At 3:18 p.m., UC Alex retrieved $30,000.00 from a vehicle in the parking lot at 115 Drumlin where the funds were secreted. He carried the funds into the warehouse and gave them to Palumbo. This completed the part of the deal involving the supplier’s up-front cut.
[192] There was a disagreement on how the balance of money and drugs would be delivered. Palumbo, UC Eric and the supplier agreed that the drugs could be delivered in two instalments of 15 kilos each on July 11th startingat3:00 p.m., spaced apart by several hours. UC Eric insisted he did not want to carry $1.1 million to the warehouse if he was not assured the cocaine would be there. However, Palumbo said the supplier wanted the money to be at the warehouse before he would bring the drugs. They were at loggerheads.
[193] The final and most substantial part of the cocaine deal did not materialize, the exchange of the 30 kilos of cocaine and the $1.1 million payment. Because the final plan to traffic the cocaine was not completed does this mean there was no agreement? For an answer to that query, I take some guidance from the Ontario Court of Appeal in R. v. Root which cites leading cases from the Supreme Court of Canada.
In conspiracy cases, the important inquiry is not about the acts done in pursuit of the agreement, but whether there was, in fact, a common agreement in the first place to which the acts are referable and to which the alleged conspirators were privy. Papalia, at pp. 276-277; O’Brien at p. 668; Dynar at para. 87; R. v. Douglas, 1991 CanLII 81 (SCC), [1991] 1 S.C.R. 301 at p. 316. Said somewhat differently, the focus of the inquiry is on whether and, if so, on what was agreed, not on what was done, although what was done in furtherance may help to establish the core element of conspiracy – the agreement. Douglas at p. 40; David Omerod, ed., Smith and Hogan Criminal Law,11th ed. (New York: Oxford University Press, 2005) at p. 374.
[194] I find there was an agreement among Palumbo, UC Eric and the supplier regarding the quantity of cocaine, the price, an instalment plan for delivery and the time and location of the exchange of the money and cocaine. Although the completion of the 30-kilo transaction did not materialize, there was an agreement. There was execution and hence completion of the one-kilo part of the plan.
[195] What I am faced with is a determination of whether the Crown has proven beyond a reasonable doubt that at least one of the defendants conspired with at least one other person to commit the offence alleged in the conspiracy count. The prosecution is not required to prove that the parties to the conspiracy included all of the defendants: [R. v. Cook, at p. 204 (Ont. C.A.); aff'd in 1986 CanLII 47 (SCC), [1986], 1 SCR 144].
[196] Again, it is the Crown’s position that Shanker is the defendant who was Palumbo’s supplier of the cocaine, who formed the agreement with Palumbo and UC Eric and set up a plan for the sale of cocaine unwittingly to an undercover police officer.
[197] As I find later, the Crown failed to establish that the voice of the supplier was that of Shanker. In this circumstance, while there may be an agreement, no conspiracy exists if the only persons involved are an unknown suspect, a known suspect who is not a defendant and the police agent (who has no intention to put the common design into effect): R. v. O’Brien, at p. 687; see also United States v. Dynar, at para. [88].
Shanker and Earwitness Evidence
[198] Central to the determination of whether Shanker was the supplier Palumbo was communicating with is a decision as to whether it is Shanker’s voice on the audio probes and telephone interceptions. This determination however must not be considered in isolation. “[I]t is the cumulative effect of all the evidence that must satisfy the criminal standard of proof, not each individual item which is merely a link in the chain of proof”: R. v. Morin, at paras. [81 - 82].
[199] The Crown’s first position is that it is Shanker’s voice on the audio probes and telephone interceptions. Failing success on that position, the Crown takes the alternate position that there is sufficient other circumstantial evidence to establish Shanker was the supplier and a participant in the conspiracy with Palumbo and the other defendants to traffic in cocaine.
[200] The defence takes the position that voice identification is in the nature of an essential element of the conspiracy offence. The defence finds support in the Ontario Court of Appeal’s observation that, while voice identification evidence is not an essential element of conspiracy, it is sufficiently central to the determination of the case that it was for practical purposes almost the same as an essential element on the record: [R. v. Quidley, at para. 26].
[201] The defence, particularly Shanker’s counsel, takes comfort in the view that on the totality of the evidence inferences can be drawn that are inconsistent with a finding of guilt of conspiracy. The defence asserts inferences can be drawn that the police developed tunnel vision that biased their investigation in the direction of confirming Shanker’s guilt.
[202] As I discussed earlier, jurisprudence and empirical studies as reviewed by Christopher Sherrin in his scholarly piece raise cautions about the frailty and unreliability of earwitness evidence. Studies show, and Canadian courts have warned, that voice identification evidence is even more risky to rely on than eyewitness identification and must be treated with the utmost caution. It must therefore be treated with greater caution than eyewitness evidence, not with the same amount: R. v. Dodd, at para. [79]; R. v. Cloutier, at para. 19 and; R v. Pinch, at para. [76]](https://www.canlii.org/en/on/onsc/doc/2011/2011onsc5484/2011onsc5484.html#par76). The danger here of course is that a miscarriage of justice from a wrongful conviction can be the grim consequence of indiscriminate reliance on voice identification evidence.
[203] Sherrin addresses concerns about a witness’s claim of familiarity with a person’s voice. He cites a study where there was a 10% misidentification rate from people who were members of a close social network who had known each other for nearly two years and had recently resided together: [Sherrin, at p. 830]. Sherrin warns that even with familiar voices one should not assume that identification of the voice is accurate: [Sherrin, at p. 825].
[204] I believe that concern materialized in this case as well.
[205] DC Dawson had some exposure to Shanker from a 2018 investigation in Brampton and claimed familiarity with Shanker's voice. He listened to audio probe # 1472, sessions # 85 - 87, and telephone interception # 4517 and identified the voice as Shanker’s. He based his conclusion on what I regard as very limited experiences hearing Shanker’s voice in the context of his trial in 2018.
[206] DC Dawson’s claim to familiarity is based on hearing Shanker’s voice during eight days at his trial in Brampton and during quick interactions with him outside the courtroom exchanging greetings and brief repartée and from reviewing audio and video recordings of Shanker. He said he would also overhear Shanker’s voice when Shanker was talking to others. According to the research, misidentification occurs involving people with much greater contact with a subject than DC Dawson had with Shanker.
[207] There is also the issue of a witness claiming familiarity when the witness is provided with one voice sample to identify and is not required to identify the voice at issue among other voices. This is tantamount in a photo identification context to being asked to identify a suspect while not being shown the suspect’s photo among an array of photos of other people. This approach is known to produce unreliable identification evidence.
[208] That is what occurred in this case.
[209] DC Dawson conceded that in identifying Shankar’s voice he only listened to his voice on the audio probe sessions and the telephone interceptions. He admitted he had never been required to pick out Shanker’s voice from among several other people speaking with South Asian accents.
[210] Then there is the further looming issue That is the matter of cross-racial/cross-linguistic identification of a voice by a witness of a race/different linguistic background than the witness where the person under investigation has an accent and the witness claims the voice is distinctive. As Sherrin points out, assertions by a witness that a voice is distinctive can be a source of misidentification. As Sherrin also observes, a voice might seem distinctive to a witness simply because they are unfamiliar with it although many people might have similar voices: [Sherrin, at p. 853]
[211] That is an issue in this case.
[212] DC Dawson’s evidence is that he had difficulty explaining how Shanker’s voice was distinctive except to say he has a South Asian accent and it was very monotone. He said he did not have broad experience with South Asian people. Nonetheless, DC Dawson maintained that Shanker’s voice was distinctive.
[213] PC Sales said he found Shanker’s voice unique, that it had a certain dialect or tone, but he did not recognize the accent. He referred to such commonly used words as “Okay, thank you” “Come by” and “John” as unique and, in comparing those words to DC Dawson’s control sample, concluded the voices on the probes and telephone interceptions were the same as the voice identified by DC Dawson.
[214] DC Freeman described the accent as East Indian or South Indian but acknowledged he did not do his own investigation of South Indian male voices of similar age groups to see if the features he described were common for that group. He admitted he had no special knowledge or exposure to East Indian people and that he had heard Shanker’s name but had never had any interactions with him during the investigation.
[215] Sherrin also speaks of the dangers of error bias in the direction of expectation, of the reality that people tend to hear what they expect to hear. Context and expectations can influence perceptions and interpretations of what a person observes. “This phenomenon of expectancy bias happens naturally and quite unconsciously, but it can be powerful”: [Sherrin, at p. 833].
[216] I believe that phenomenon was in operation in the case at hand.
[217] The voice identification concern in this case originates with DC Dawson setting up the voice on probe # 1472, sessions # 85 - 87, and the intercepted call # 4517 as a control sample against which voices on other probes and interceptions were to be compared. Other officers did just that. They identified Shanker’s voice on various probes and interceptions using DC Dawson’s control sample.
[218] And what in effect occurred is that identifying Shanker’s voice became somewhat of a self-fulfilling prophecy, a foregone conclusion that cascaded into Corp Jenkins, DC Freeman, PC Sales and Sgt Dury, and perhaps others, relying on DC Dawson’s ill-conceived voice identification. It is self-evident that a multiplicity of common observations built on a common but flawed foundation is actually not proof of anything - certainly not the type of evidence to establish a finding of guilt.
[219] This is where expectation bias sets in and misguides the identification process. This is nothing short of a manifestation of tunnel vision. In operation is an assumption by other investigators that DC Dawson’s voice identification was accurate. Officers did not perform their own independent assessments of Shanker’s voice. They heard what they expected to hear when listening to the audio probes and telephone interceptions. Like DC Dawson, the other officers lacked a sound basis to formulate their identification of Shanker’s voice and bias slipped in to fill the evidentiary void. Take for instance, DC Freeman’s evidence that he was aware of possible challenges with cross-racial voice identification but that this did not occur to him in this case because he believed the voices were from the same person and that was Shanker.
[220] There is also the added concern about the quality of the recordings.
[221] I listened to the audio probes and telephone interceptions as they were played in court and in the process of writing this Judgment. I agree with PC Sales that the quality of the probes was not very good. While the telephone interceptions were somewhat clearer, there were often other voices, static or music in the background that made some of the communications on both media modalities difficult to comprehend. And for that reason the context for some of the words said, like purported references to Shanker, was often lost.
[222] Although the defence does not challenge the interpretations of the conversations on the transcripts, I actually at times could not discern from the recordings everything that was written in the transcripts or always appreciate the context in which words were spoken.
[223] A further confounding factor is that the phone number, 416-708-8077, that contacted Palumbo at his phone number, 647-866-2277, was owned by Shanker's brother’s company, Modern Mattress Industries. The police were not aware Shanker had a brother. They thought Shanker was using the Modern Mattress Industries phone. The calls to Palumbo were not made from the known phone number 647-518-9990 registered to Shanker.
CONCLUSION ON VOICE IDENTIFICATION
[224] Under the circumstances, it would be dangerous for me to conclude it is Shanker’s voice on the probes and interceptions in communications with Palumbo where the plan for a drug trafficking operation was being formulated. And, as will be seen, I find no other evidence outside of the voice identification inquiry that proves beyond a reasonable doubt it was Shanker’s voice on the audio recordings.
[225] I cannot confidently find that it was Shanker’s voice and there is no evidence that either Pawar or Singh was heard on the recordings. I do not purport to know more than the police about their investigative techniques. But perhaps had the police employed the technology used in Shanker’s 2018 Brampton case which combined audio with video recording in one medium, there might not have been a mystery voice talking to Palumbo. But perhaps there was a good reason unknown to me why the police chose the technology they did.
[226] This finding does not end the inquiry on whether there was a conspiracy. But it is strong evidence pointing away from a conspiracy if none of the defendants can be found to be a party to the agreement with Palumbo and UC Eric to traffic cocaine. As R. v. Quidley held, voice identification is for practical purposes, almost the same as an essential element.
Is There Other Evidence that Establishes a Conspiracy?
[227] Criminals do not declare their involvement in a conspiracy. And police understandably do not divulge their investigative tactics. Conspiracies are hatched by criminals in subterfuge and exposed by covert police in surreptitious operations. It is in the world of circumstantial evidence that conspiracy is found or not. I am reminded of the words in R. v. Paradis, as cited earlier, that conspiracy is a crime most often proved by circumstantial evidence, rarely possible to be proven by direct evidence. “Ordinarily the evidence must proceed by steps. The actual agreement must be gathered from ‘several isolated doings’”: [R v. Paradis, at p. 168].
[228] Given the strength of the finding that Shanker was not the person communicating with Palumbo, other circumstantial evidence of a conspiracy must be of a rather compelling quality. Shanker being the person who entered the agreement with Palumbo and UC Eric is out of the equation. So, there must be other circumstantial evidence sufficient to meet the weighty standard of proof. There must be proof beyond a reasonable doubt that an agreement existed involving one or more of the defendants. I must on the totality of the evidence find an agreement.
[229] The Crown takes the position that video recordings of Shanker, Pawar and Singh, together with other evidence, contain evidence of a conspiracy to traffic cocaine. Again, the defendants do not deny they are recorded on the surveillance. The Crown points to the comings and goings and interactions of the defendants with each other and others at 115 Drumlin at various times and on days during the period cited on the indictment. There are also the police officers’ personal observations of the defendants and the video recording by PC Kuhn’s partner of the rear of 115 Drumlin on July 11th.
[230] What in practical terms the Crown is relying on are activities, that is, what was done by the three defendants. I am reminded by R. v. Root that the focus of the inquiry must be “on what was agreed, not on what was done, although what was done in furtherance may help to establish the core element of conspiracy – the agreement”: R. v. Root, at para. [70].
[231] There are dates, times and activities when Shanker and/or Pawar and/or Singh appear on surveillance at 115 Drumlin that seem to correspond with dates and times discussed among UC Eric, Palumbo and the supplier that appear to correspond with dates and times contained in audio probes and interceptions. I cite the following examples.
On June 15th
[232] On June 15th, audio probe sessions # 86 and #87 were recorded from 3:52 p.m. to 4:02 p.m. and, at 115 Drumlin Sgt Dury observes the Toyota Camry, licence CLDK 955, associated with Pawar, occupied by two males. Shanker was identified as the driver and Pawar as the passenger. The Toyota pulled out of the parking lot at 4:02 p.m. However, UC Eric’s evidence from a discussion with Palumbo on June 15th is that his supplier did not show up at the warehouse that day.
On June 25th
[233] Probe session # 3341 was recorded on June 25th at 4:08 p.m., at which time UC Eric meets Palumbo in his office at 115 Drumlin where they speak in coded language about the packaging and shipping of something. UC Eric states that at an earlier time that day, Palumbo indicated his supplier would be coming to see him that day at 2:00 p.m. On June 25th, at 2:33 p.m., Corp DiIorio sees Shanker at 115 Drumlin exit the passenger side of the grey Hyundai Elantra, licence CMHH 465, and sees Pawar exit the driver’s side. Shanker walks toward the entrance to Unit 3 and back to the vehicle to retrieve something and returns to 115 Drumlin while Pawar remains standing at the vehicle.
On July 3rd
[234] UC Eric indicates that on July 3rd he speaks to Palumbo at 2:53 p.m. and Palumbo tells him the “skid”, possibly meaning the cocaine, would be available that day. Probe session # 1542 is recorded on July 3rd at 2:58 p.m. and contains a conversation between Palumbo and the male thought to be Shanker. At line 108, the male says, “... if you say okay Ravi, then I’ll come by and see you, all right?”. At 2:24 p.m. on July 3rd, Sgt Dury sees Shanker exit the white Honda Civic, licence CDED, parked at 115 Drumlin and enter Unit 3 at 2:28 p.m. At 3:02 p.m., Shanker walks toward the Honda appearing to be carrying something. Pawar was not observed at 115 Drumlin that day.
On July 4th
[235] UC Eric notes that on July 4th he attended Palumbo’s office at 9:47 a.m. to inform Palumbo the cocaine was good enough and to ask for 20 further kilos. Probe session # 4517 is recorded at 10:40 a.m. on July 4th and contains a conversation between Palumbo and the male thought to be Shanker. They speak in coded language and the male says his cousin, who dropped off the “sanitizer”, possibly meaning cocaine, is coming to see him (Palumbo).
[236] On July 4th, DC MacNeil learns Pawar has arrived at 115 Drumlin in the grey Toyota Camry at 11:57 a.m. and that he exits 115 Drumlin at 12:03 p.m. carrying a banker’s box and a black bag which he places in the trunk of the Toyota Camry. Pawar drives from the parking lot at 12:05 p.m. Corp DiIorio makes similar observations. At 1:55 p.m., DC MacNeil observes and records Pawar at his home unloading a banker’s box and a green bag from the trunk of the Toyota and carrying them into his home. DC MacNeil believes it was the same banker's box he saw earlier that day in Pawar's possession at 115 Drumlin.
On July 11th
[237] UC Eric notes that he called Palumbo at 1:59 p.m. on July 11th and told him UC Alex will be at 115 Drumlin at 3:00 p.m. that day which is confirmed in audio probe # 05714 recorded at 2:24 p.m. Audio probe # 281, recorded at 2:43 p.m., contains a discussion between Palumbo and the male thought to be Shanker in which Palumbo tells the male that one guy is going to drop off the truck and another guy will drop off the money. They talk about the guy dropping off the money in 15 minutes and Palumbo taking his cut.
[238] On July 11th, UC Alex arrives at 115 Drumlin at 3:00 p.m. and leaves a van where the $30,000.00 upfront payment to the supplier would be secreted. UC Eric indicates that the deal for the 30 kilos of cocaine broke down between 3:07 p.m. and 3:17 p.m. over an inability of himself, Palumbo, and the supplier to agree on how and when the money for the 30 kilos will be exchanged that day.
[239] On July 11th at2:16 p.m., Corp DiIorio observes Singh arrive at the parking lot at 115 Drumlin driving a blue 2012 BMW X5, licence CJBF 023, and walk toward Unit 3. He sees Shanker exit the passenger seat of the BMW and observes Singh walk toward 115 Drumlin. At 2:29 p.m., Corp DiIorio observes Singh walk toward a black Honda parked on the lot and get into the passenger’s seat. The officer sees a grey Lexus, licence CDKJ 767, driven by Singh’s brother, make a few brief trips in and out of the parking lot between 2:37 p.m. and 2:51 p.m. At 3:07 p.m., Corp DiIorio sees Shanker walk toward Unit 3, and at 3:25 p.m., the officer sees Shanker get into the front passenger seat of the Lexus.
[240] PC Kuhn is stationed as a sniper at the rear of the warehouse. At 2:31 p.m., the officer sees a black Honda arrive at the rear parking lot and back up to the loading dock. The officer’s partner video-records the observations. PC Kuhn observes Singh depart the passenger's seat, take two blue duffel bags from the trunk of the Honda, and place them on the loading dock. The Honda drives away at 2:34 p.m. At 3:35 p.m., PC Kuhn sees a brown male he describes as heavy-set jump out of the loading dock door and run towards some bushes. The officer recognizes him as Shanker from the profile information he received.
CONCLUSION ON OTHER EVIDENCE OF CONSPIRACY
[241] Again, I must find an agreement in the circumstantial evidence I reviewed of Shanker’s, Pawar’s and Singh’s activities at 115 Drumlin and, with regard to Pawar, at his home.
[242] For the following reasons, looking at the three defendants’ activities in the context of the evidence as a whole, I ultimately cannot find on that evidence an agreement among one or more of the defendants with Palumbo and UC Eric.
[243] Shanker being the male voice with a South Asian accent scheming with Palumbo is the lynchpin of the Crown’s case for conspiracy. On that theory Shanker was the connecting link between Palumbo and UC Eric and the activities of the other defendants. With my finding, that nexus does not exist. Unlike audio media, video media has no sound. One cannot hear what the defendants are talking about among themselves or with Palumbo and others outside 115 Drumlin.
[244] The question is whether a conspiracy, an agreement, can be inferred from the defendants’ activities.
[245] I find that even though there is some coincidence or correspondence in dates and times of arrivals and attendances at 115 Drumlin with times arranged by UC Eric and Palumbo and discussed on the audio media, this in my view is insufficient to meet the required standard of proof of establishing an agreement with respect to a coordinated plan to traffic cocaine.
[246] The Crown contends the evidence of Singh’s brother’s Lexus with Shanker as a passenger, entering and leaving the warehouse parking lot on July 11th on several occasions within a short time span just before the takedown is inculpatory evidence of countersurveillance. I do not accept that in the total context of my findings there is sufficient evidence to draw that as a reasonable conclusion.
[247] I must be satisfied beyond a reasonable doubt that the defendants’ guilt of conspiracy is the only reasonable inference to be drawn from the evidence as a whole: R. v Villaroman, at para. [20]. I must consider “other plausible theories or reasonable possibilities inconsistent with guilt as long as these theories and possibilities are grounded on logic and experience. They must not amount to fevered imaginings or speculation.”: R v. Lights, at para. [38].
[248] When Shanker’s role as a conspirator with Palumbo and UC Eric is removed from the conspiracy calculus it is reasonably possible on the facts I accept to conclude from viewing the defendants’ movements that the defendants were involved in separate non-criminal activities without being party to an agreement, without being actors in a scheme or design larger than whatever roles they are seen playing on the video surveillance.
[249] And then there is the possibility that it was Shanker’s brother’s voice captured on the audio media. It was his phone that was communicating with Palumbo’s phone which the police were not always aware of. There is also the contention that the word “Ravi” is mentioned in the recordings often when the context is not clear. It is worth pointing out the obvious here that the mere mention of Shanker’s name does not necessarily lead to the conclusion that he was the male with the South Asian accent communicating with Palumbo.
[250] Looking at the defendants’ activities from a broader contextual perspective, the defendants did not stand alone in attending 115 Drumlin on numerous days. They were present among many other people of various racial backgrounds and genders going into and out of the warehouse, carrying things into and out of the premises, unloading and loading vehicles with products, some persons of interest and some not. Palumbo was in the business of selling a broad variety of liquidated goods so the human traffic on the parking lot occurred in the normal course.
[251] As I alluded to earlier, there is nothing in the evidence of the defendants’ activities that assists with the Crown’s contention that it is Shanker’s voice on the recordings.
[252] For all the reasons cited, I do not find the Crown has met its burden to prove a conspiracy. Accordingly, I find Ravi Shanker, Sukhsimrat Pawar and Havinder Singh not guilty of conspiring to traffic cocaine.
[253] This is not to say that the defendants’ activities cannot be considered in deciding the substantive offences they face - trafficking in cocaine, possession of cocaine for the purpose of trafficking, possession of opium for the purpose of trafficking and possession of proceeds of crime. As cited earlier, an acquittal on conspiracy does not vitiate a conviction on the substantive offence or give rise to any substantial wrong or miscarriage of justice: [Koury v. The Queen, at p. 218].
[254] No agreement is found. This completes a finding on step one of the Carter instruction. I need not go on to decide the second and third steps.
THE DRUGS AND PROCEEDS OF CRIME CHARGES
Shanker
Did Shanker Traffic Cocaine on July 3rd and July 11th, 2020? Did Shanker Possess Cocaine for the Purpose of Trafficking on July 11th?
[255] Shanker’s drug-related charges are largely contingent on the court finding he was the male with the South Asian accent scheming with Palumbo, leading up to the July 3rd one-kilo and the July 11th 30-kilo deals. Absent Shanker being found to be a conspirator with Palumbo, there is little circumstantial evidence that connects him to trafficking in and possession of cocaine for the purpose of trafficking on July 3rd and July 11th.
[256] Shanker was present at 115 Drumlin on July 3rd and July 11th and on the days leading up to those days. He is seen with and talking to Pawar, Palumbo and other persons of interest on the parking lot at 115 Drumlin. He is observed entering and exiting 115 Drumlin on several occasions sometimes carrying products into and out of Unit 3. But many people are seen on the surveillance recordings doing that.
[257] There are plausible explanations for that activity that are inconsistent with guilt. Absent a finding that Shanker was conspiring with Palumbo, his activities on their own do not reasonably point to complicity in drug trafficking. There is no evidence of him being in possession of or delivering cocaine and no evidence from which that could be reasonably inferred. There is the evidence that on July 11th he jumped off the loading dock and ran when the police arrived. But there is evidence on the record that he would be in jeopardy for another reason since he was in violation of his bail conditions at the time. This is a reasonable explanation for his actions other than guilt for drug trafficking.
[258] Accordingly, I find Shanker not guilty of trafficking cocaine on July 3rd and July 11th, 2020, and not guilty of possession of cocaine for the purpose of trafficking on July 11th.
Did Shanker Possess Proceeds of Crime on July 3rd, July 4th and July 11th, 2020?
[259] Section 462.3(1) of the Criminal Code defines proceeds obtained by crime as any property obtained or derived directly or indirectly as a result of the commission of a designated offence.
[260] Any inference that Shanker might have been in possession of proceeds of the July 3rd one-kilo deal and the July 11th 30-kilo deal would stem from a finding that he was the male with the South Asian accent negotiating with Palumbo about the price of the drugs and the delivery and pick up times for the drugs and money. Otherwise, there is no evidence from which it can reasonably be concluded that he was in possession of the $30,000.00 or the $76,000.00 proceeds.
[261] When the police entered Shanker’s home on July 11th,they seized $6,000.00 in $20 bills from a grey Tupperware container on a couch in a bedroom. There is a reasonable explanation other than guilt for Shanker having that amount of money in his home. As the Crown’s drug expert, Corp MacIntyre stated, and is common knowledge, the illicit drug business is not the only cash-based business. Many other legitimate businesses operate in cash. There is evidence from Singh and UC Eric that Shanker ran a liquidation business in Brampton which business often operate on a cash basis. I do not find the funds to have been proceeds of crime.
[262] Accordingly, I find Shanker not guilty of possession of proceeds of crime on July 3rd, July 4th, and July 11th.
Pawar
Did Pawar Traffic Cocaine on July 3rd, and July 11th, 2020?
[263] Sgt Dury testified he did not see Pawar on July 3rd or the black Infiniti associated with Pawar on the lot that day. Further, Corp DiIorio testified he believed he saw a black Infiniti leave 115 Drumlin at 3:14 p.m. on July 3rd, but he admitted he could not see the licence plate number. Corp DiIorio acknowledged that he was not sure it was an Infiniti he saw and that he could not identify the driver. Further, the evidence from the MTO database was that Pawar was no longer the registered owner of the Infiniti as of July 2nd. There is no evidence Pawar trafficked cocaine on July 3rd.
[264] There is also no evidence that on July 11th Pawar trafficked cocaine. Guilt cannot be reasonably inferred from Pawar’s attendance at Palumbo’s business on several occasions, including on July 11th, that he trafficked cocaine on any of those occasions. Again, his voice was not the subject of voice identification on any of the audio recordings.
[265] The fact that Pawar ran out of his house when the police arrived is not sufficient circumstantial evidence of his guilt of trafficking cocaine. There are other reasons he might have fled his house besides guilt for the offences he is charged with. Fear of multiple, presumably armed, police officers suddenly and unexpectedly entering his home is a possible alternate explanation.
[266] Accordingly, I find Pawar not guilty of trafficking cocaine on July 11th.
[267] There is simply no evidence that Pawar was present at 115 Drumlin on July 3rd to traffic cocaine. Accordingly, I find Pawar not guilty of trafficking cocaine on July 3rd.
Did Pawar Possess Proceeds of Crime on July 3rd, July 4th, and July 11th, 2020?
[268] Again, s. 462.3(1) of the Criminal Code defines proceeds of crime as any property obtained or derived directly or indirectly as a result of the commission of a designated offence.
[269] I must consider plausible theories or reasonable possibilities inconsistent with guilt as long as these theories and possibilities are grounded in logic and experience. They must not amount to fevered imaginings or speculation: R v. Lights, at para. [38].
[270] Pawar concedes that on July 4th he arrived at 115 Drumlin at 11:57 a.m. in a grey Toyota CLDK 955. PC McCormick saw him enter 115 Drumlin but he did not see which unit he entered. DC MacNeil received information that Pawar exited the address at 12:03 p.m. PC McCormick and DC MacNeil saw Pawar carrying a banker’s box and placing it in his trunk. The officers saw Pawar depart 115 Drumlin at around 12:05 p.m. The surveillance team followed Pawar to his residence arriving at around 1:55 p.m. They observed him take the banker’s box and a green bag from his trunk and enter his house.
[271] The charge arises from the Crown’s position that the banker’s box Pawar picked up contained the $30,000.00 proceeds for the one-kilo deal of July 3rd, arranged between Palumbo and UC Eric. That view, in my estimation, lacks a sound foundation in the evidence.
[272] The Crown has to prove beyond a reasonable doubt that Pawar had knowledge and control of the contents of the banker’s box. Both elements must be proved. Apart from speculation on the part of the police, there is nothing in the evidence that establishes Pawar was picking up proceeds from the one-kilo deal.
[273] The Crown relies on the case R. v. Bains, 2015 ONCA 677, at para. 157, which advances the proposition that valuable items would not be entrusted to anyone who did not know about them or where they were located. However, there is no evidence that anyone had entrusted Pawar with the large amount of funds from the one-kilo deal. An alternate and reasonable possibility is that Pawar was picking up legitimate goods from some uncertain unit at 115 Drumlin.
[274] The presence of Pawar at 115 Drumlin with Shanker on several occasions before July 4th does not logically lead to a conclusion that Pawar was picking up drug proceeds on July 4th. There are no connecting facts. There is no voice recognition evidence of Pawar’s voice given by any witness. There is an unknown male’s voice heard but that person was not established to be that of Pawar. There is no audio evidence of Pawar communicating with Palumbo or Shanker. So, any communications that might sound incriminatory cannot be attributed to Pawar.
[275] The same applies to July 11th. There is no evidence that Pawar was in possession of proceeds on that day. The $440.00 in currency found at his home was not registered in the CRATS database. The obvious alternate explanation for the funds is that they were funds people might commonly keep in their homes. They are not indicative of a commercial drug operation.
[276] Further, concerning the banker’s box, Pawar’s counsel clarified on cross-examination of DC McCormick that on the search of Pawar’s home, and wherever else was searched, no officer located the banker’s box Pawar took into his home on July 4th thatthe police thought contained proceeds of the one-kilo deal.
[277] Accordingly, I find Pawar not guilty of possessing proceeds of crime on July 4th and July 11th and he was not present at the warehouse on July 3rd.
Did Pawar Possess Opium for the Purpose of Trafficking on July 11th, 2020?
[278] Pawar concedes possession of opium for the purpose of trafficking and accordingly, I find him guilty of that offence.
Singh
Did Singh Traffic in Cocaine on July 11th, 2020, and Possess it for the Purpose of Trafficking?
[279] I will first deal with the charge of possession for the purpose of trafficking. Again, the essential elements that have to be proven beyond a reasonable doubt are that Singh had knowledge and control of the cocaine in the blue duffel bags.
[280] Singh only appeared on the scene at 115 Drumlin once and that was on July 11th, the day of the takedown. There is nothing in the context of the evidence that makes Singh complicit in the activities leading up to the police recovering the drugs at the warehouse. What I have to consider is the plausibility of the context Singh provided for his presence. He provided what I found to be a reasonable explanation for his presence at 115 Drumlin that is inconsistent with guilt.
[281] The pandemic was at its peak in July 2020 and Singh needed PPE as required by the government for his truck drivers. One knows from the evidence of UC Eric that Palumbo had PPE for sale in his warehouse. Singh knew Shanker in the Punjabi community in Brampton to be a liquidator and a resourceful person who could put him in touch with the PPE he required.
[282] Singh picked Shanker up at his home on July 11th at Shanker’s request and arrived with him at the warehouse at 2:16 p.m. and asked Palumbo about purchasing PPE. Palumbo agreed and asked him to wait because he was busy. Palumbo inquired whether Singh could do him a favour of unloading onto the loading dock a delivery from the Honda parked in the lot.
[283] Singh did Palumbo the favour and loaded the duffel bags onto the loading dock. I believe Singh that he did not know what was in the bags. There is no evidence he did. He did not own the Honda that carried the drugs. He was in that vehicle and had the bags in his hands only momentarily. I do not find that constitutes control of the drugs. I do not find in the circumstances that putting the bags on the dock constituted trafficking. And Palumbo is no stranger to asking people to handle products for him when they are unaware they are carrying contraband. This is what he was planning to enlist Mahmoud to do, to unwittingly carry the cocaine to the sea container.
[284] Accordingly, I find Singh not guilty of possession of cocaine for the purpose of trafficking and not guilty of trafficking cocaine on July 11th.
VERDICTS
[285] I find Ravi Shanker not guilty on counts 1, 2, 3, 4, 5 and 6 on the indictment and acquittals will be registered accordingly.
[286] I find Sukhsimrat Pawar guilty on count 7 on the indictment and a conviction will be registered accordingly.
[287] I find Sukhsimrat Pawar not guilty on counts 1, 2, 3 and 8 on the indictment and acquittals will be registered accordingly.
[288] I find Ravinder Singh not guilty on counts 4 and 5 on the indictment and acquittals will be registered accordingly.
Allen J.
Released: October 13, 2023