Court File and Parties
COURT FILE NO.: CR-23-90000489 DATE: 20231023
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – NIRANKAR SANDHU Accused
Counsel: Elisa Mastrorillo, Counsel for the Crown Maurizio Stellato, Counsel for Nirankar Sandhu
HEARD: October 11, 18, and 23, 2023
M.A. CODE J. – (ORALLY)
Reasons for judgement
A. OVERVIEW
1The accused Nirankar Sandhu (hereinafter Sandhu) was charged in a three count Indictment with possession of heroin for the purpose of trafficking, possession of a prohibited weapon (a spring-loaded knife), and possession of proceeds of crime. The three offences were all alleged to have taken place in Toronto on March 7, 2021. All three offences related to items found in Sandhu’s admitted possession when he was arrested for “stunt driving” and searched incident to arrest.
2Sandhu elected trial by judge alone in this Court. I heard the Crown’s evidence on October 11, 2023. I heard the defence evidence on October 18, 2023, and then reserved judgment after closing submissions. These are my Reasons for Judgement.
3The trial was conducted quickly and efficiently in two days. A substantial Agreed Statement of Fact was entered as Exhibit 1 at the start of trial. Sandhu had filed a Charter motion in advance of trial, alleging that the search incident to his Highway Traffic Act arrest violated s. 8 and seeking to exclude all the seized evidence pursuant to s. 24(2). The Charter motion proceeded at the same time as the trial. At the conclusion of the Crown’s case, Mr. Stellato wisely abandoned the Charter motion. See: R. v. Tuduce (2014), 2014 ONCA 547 , 314 C.C.C. (3d) 429 (Ont. C.A.); R. v. Caslake (1998), 121 C.C.C. (3d) 97 (S.C.C.). Once this Charter issue was resolved, the only disputed issues at trial were whether the heroin in Sandhu’s admitted possession was for the purpose of trafficking and whether the money in Sandhu’s admitted possession was proceeds of trafficking.
B. FACTS
4The most important agreed facts set out in Exhibit 1, in my view, were the following:
- First, that Sandhu was the driver of a black Dodge Ram pickup truck driving southbound on Highway 400 near Sheppard Avenue in Toronto on March 7, 2021;
- Second, two OPP officers made a traffic stop and arrested Sandhu for “stunt driving”, pursuant to ss. 172 and 217(2) of the Highway Traffic Act. The grounds for the traffic stop and arrest were that the LIDAR laser device operated by the officers and directed at Sandhu’s truck had produced a reading of 166 km/hr, that is 66 km/hr over the speed limit;
- Third, the police seized five items as a result of searching Sandhu’s person: first, a clear plastic bag containing 51 grams of a heroin and caffeine mixture that was located in Sandhu’s jacket pocket; second, a small black leather pouch (also in Sandhu’s jacket pocket) containing four separate items of some significance in the case, namely, a “dime bag” within another “dime bag” containing .2 grams of a mixture of heroin, caffeine, and dimethylsulphone, a separate “dime bag” containing 1.9 grams of crystal methamphetamine, a number of unused empty “dime bags”, and several pieces of tin foil; third, $1,090 of Canadian money sorted by denomination and held with a bull clip; fourth, a spring-assisted knife clipped to Sandhu’s pants pocket; and fifth, two cell phones;
- Fourth, the police seized two further items as a result of searching the Dodge Ram truck (which was registered in Sandhu’s name): first, $3,050 of Canadian money sorted by denomination which was located under the front passenger seat; and second, a digital scale located in the glove box on the front passenger side of the truck;
- Fifth, Sandhu was in possession of all the seized drugs, all the money, and the knife; and
- Sixth, the knife is a prohibited device and Sandhu was not the holder of a license that would allow him to possess the knife.
5At the close of the Crown’s case, one further agreed fact was added orally. It was admitted that there was a passenger in the truck with Sandhu at the time of the traffic stop and arrest. The presence of this passenger eventually became significant.
6I need not summarize the evidence of the arresting officer, P.C. Tran, in any detail as it related mainly to the Charter issue that was eventually abandoned. Furthermore, much of P.C. Tran’s evidence simply established the agreed facts already set out above. The only additional facts that emerged from his evidence were the following: in addition to speeding, Sandhu was not wearing a seat belt; the time of the arrest was at 11:10 p.m., that is, shortly before midnight; the several pieces of tin foil in the black leather pouch seized from Sandhu’s person included one piece with burn marks on it; the small baggie in the leather pouch that contained crystal methamphetamine had duct tape around it; another somewhat larger baggie in the leather pouch also had duct tape around it and it contained a small amount of beige powder (that was apparently not weighed or tested); and there were a significant number of small unused ziplock baggies in the leather pouch, although P.C. Tran was not asked whether he counted them. Perhaps the most important part of P.C. Tran’s evidence was that he took photographs of all the seized items (Exhibit 2). These photographs were used extensively during the testimony of the Crown’s drug expert and during Sandhu’s testimony.
7Sandhu was arrested for both CDSA and Criminal Code offences, as a result of the above seizures. He was initially taken to the police station. He was in some kind of medical distress and was taken to the hospital at some point.
8Detective Quinn was qualified as an expert witness and was allowed to give opinion evidence about use, tolerance, consumption, distribution, pricing, and modus operandi of traffickers, all in relation to both heroin and methamphetamine. There was no challenge to Detective Quinn’s expertise in these areas. He had been a Toronto police officer for 21 years, including over ten years with the Drug Squad from 2011 to 2021. He became a Sergeant in 2021 and a Detective in 2022. He presently supervises investigative units at 32 Division, including in drug cases. He has been involved in about 1000 drug investigations, has taken numerous relevant courses, and has attended symposiums related to drug investigations and expert testimony related to such investigations. He has authored over 60 expert reports in drug cases and he has testified on a number of occasions as a drug expert, including in relation to both heroin and methamphetamine. He had no involvement in the present OPP investigation.
9Much of Detective Quinn’s testimony involved generalized descriptions of the drug trade, the usual behaviour of drug traffickers, and the usual behaviour of drug users and addicts. The generalizations about these kinds of usual behaviour that were most relevant to the present case were as follows:
- Heroin users either inhale or inject the drug. A user who inhales would place the heroin on a piece of tin foil, heat it, and then inhale the smoke (typically with a small straw);
- Drug users who are also trafficking typically possess the paraphernalia of a user (like that described above) as well as a digital scale, cash, and pre-packaging (which are indicia of trafficking);
- Heroin addicts can rely on heroin exclusively but many will combine the heroin with a stimulant, such as cocaine or crystal methamphetamine. The effect of heroin is instant euphoria followed by longer sedation. The reason for combining heroin with a stimulant is either to prolong the initial euphoria or to keep the user awake during the longer period of sedation;
- Addicts typically do not use a scale. They generally purchase a specific amount and they are experienced enough to know how much to use. However, a scale would be useful to a purchaser buying a larger amount, like an ounce, in order to confirm the amount purchased. Traffickers typically carry a scale and they typically carry a weapon;
- The amount that an addict will use in a single “hit” of heroin is subjective, depending on the user’s tolerance and the strength/purity of the heroin. However, a “hit” is typically .02 grams. A “heavy” or experienced user of heroin can use as much as .5 grams a day;
- A “heavy” or experienced user of heroin would likely have a supply on hand of more than 2 or 3 grams. They will typically buy as much as they can afford, because buying by the ounce is less expensive than buying by the gram. However, buying larger amounts increases the risk of being caught or being “ripped off” and it increases the temptation to consume more;
- Non-functioning addicts, who are living on the margins of society, typically possess no more than 1 gram of heroin. However, this generalization does not apply to a functioning addict who holds down a job, drives a car, and otherwise lives a normal life. These functioning addicts could possess larger amounts, especially if the heroin was cut with a stimulant like caffeine, in order to reduce its potency and keep the user awake while at work.
10Turning to the specific facts of Sandhu’s case, various hypotheticals based on the facts of the case were put to Detective Quinn. In examination-in-chief, he testified that the 51.2 gram total amount of heroin, the unused small “dime” baggies, the Canadian cash, the digital scale, and the knife all admittedly possessed by Sandhu suggested trafficking. On the other hand, the piece of tin foil with burn marks also possessed by Sandhu suggested he was a user. The value of the 51.2 grams (or 1.82 ounces) to a seller was between about $3,600 and $10,200, depending on whether the heroin was sold at the street level in less than gram amounts or was sold at the ounce level. Conversely, the cost of the 51.2 grams to a buyer would vary by the same amounts, depending on the gram or ounce level at which it was bought. A trafficker would use a cutting agent in order to increase the amount. The fact that the heroin was divided between a large bag containing 51 grams and a small “dime” baggie containing .2 grams tended to indicate to Detective Quinn that the smaller amount had been prepared for distribution. However, he testified in-chief that he could not say whether the different mixtures of heroin and cutting agent in the two amounts possessed by Sandhu had any significance. He testified that caffeine is a typical cutting agent whereas dimethysulphone is seen less frequently. The fact that there were a lot of $20 bills in the money possessed by Sandhu was typical of street level traffickers who sold a “point” of heroin (.1 of a gram) for $20. However, Detective Quinn acknowledged that these street level traffickers would usually posses only a few crumpled $20 bills, whereas Sandhu possessed a large number of clean $20 bills. Similarly, traffickers typically possess multiple cell phones but others also possess two cell phones to keep their work and personal matters separate (as Detective Quinn did himself).
11In cross-examination, Detective Quinn agreed that knives also have innocent uses. More importantly, he agreed that the different mixtures of heroin and cutting agent found in the large 51 gram bag and the small .2 gram “dime” baggie possessed by Sandhu may suggest that they came from different sources of supply. He further agreed that the empty unused “dime” baggies could indicate that a user intended to keep a larger bulk amount in one place and smaller amounts in another place. For example, a functioning addict could intend to keep the larger bulk amount at home and carry smaller amounts to use at work. In terms of the 51.2 gram total quantity of heroin possessed by Sandhu, Detective Quinn agreed that the certificate of analysis in the present case did not indicate the percentage of this amount that was cutting agent. Finally, Detective Quinn agreed that a functioning addict who had a lot of cash and who was on his way to buy heroin in a bulk amount of one or two ounces, because it is cheaper in a bulk amount, would be carrying a large amount of cash. However, if such an addict was coming from buying a bulk amount, it was less likely this functioning addict would still have large amounts of cash, although it was possible.
12The only defence witness was the accused Sandhu. He testified that he was born in India on December 9, 1979, so he would now be 43 years old. He came to Canada in 1999, at age 20, and he is a permanent resident. He is married and has two children, age 14 and three-and-a-half. He lives in a house in Woodbridge that he owns with his parents.
13Sandhu has worked as a licensed mechanic since he came to Canada. At the time of the present offence, in March 2021, he was working for Midas. More recently, he worked for Landmark Bus but he was laid off in 2023. He had previously worked in his own mechanic’s shop for about three years, before he started working for Midas. As a result, he had customers of his own. He would do “side jobs” for these customers in the evenings, after he finished work at his Midas “day job”. It was a mobile service, because he no longer had his own shop. He would drive to these jobs and work on a car in the customer’s driveway, or sometimes he would bring the car to a friend’s shop, if he needed a hoist. He loved his work as a mechanic and he worked at these “side jobs” every day after finishing work at his “day job”. He was always paid in cash for the “side jobs”. His customers were mainly in Brampton.
14Sandhu testified in examination-in-chief that he had used heroin for eight or nine years. He burned his feet badly when he was young, at age seven. As a result of this injury, he experienced a lot of pain when he was working long hours at his mechanic’s shop. A friend introduced him to heroin and he started using it with crystal methamphetamine. He was about 30 or 32 years old, eight or nine years ago, when he started using these drugs. After using heroin and crystal methamphetamine for about two or three years, he went home to India in order to get treatment. In examination-in-chief, he testified that he thought it was in 2012 that he went home to India for treatment. In cross-examination, he reflected further and testified that he thought it was in 2014 or 2015, but he was not sure. When he came back to Canada from getting treatment in India, he was “clean”. But he started using drugs again because he was doing mobile jobs with his truck and he found that his performance was not good. He was getting tired and was feeling pain. He testified that heroin takes away the pain and he feels awake because he mixes the heroin with crystal methamphetamine.
15Sandhu testified that he only used two or three “points” a day (that is, .2 or .3 grams) when he first started using heroin. As he used it longer, he began to use more. He was using about a gram a day at the time of his arrest in March 2021. His wife knows that he uses drugs and she asked him to quit. She also knows that he keeps drugs at home but he keeps them in the garage. His two children have no access to the garage. His parents also know about his drug use.
16Sandhu has never injected heroin. He puts a small amount of heroin and methamphetamine on a piece of foil, without weighing it, and heats it with a lighter under the foil. He then inhales the smoke with a pipe, although in cross-examination he partially changed this account and testified that he used a paper straw to inhale the smoke in his truck, and he kept the metal pipe at home. He does this three times a day; once in the morning at home, before going to work; once on his lunch break at work; and once in the evening when he returns home. The total amount of these three daily uses is about one gram. He would carry the amount for use at work in a small baggie and would leave the larger amount at home. He would drive to and from work in about 10 minutes.
17Sandhu testified that he tries to purchase heroin in bulk. He works long hours and he cannot go back and forth to buy small quantities every day. It is also cheaper to buy in bulk. In cross-examination, Sandhu added that buying in small quantities is also riskier because you can get caught by frequently going back and forth to a supplier. You can also get poor quality heroin on occasion if you buy in small quantities. He felt that it was better to buy a larger quantity of good quality heroin.
18At the time of his arrest in March 2021, Sandhu had just sold his Harley-Davidson motorcycle, about three days before his arrest. A man from Bolton paid him $7,000 in cash. Sandhu had bought the motorcycle, thinking that he could get a motorcycle license. However, he had been convicted of impaired driving in 2006 and again in 2009. He was also convicted of simple possession of heroin in 2018. He had a license to drive his truck but only with ignition interlock. He could not get a motorcycle license and so he sold the Harley-Davidson. At this time, he also had a couple of hundred dollars in cash from his mobile mechanic jobs. The total amount of cash that he had at the time of the relevant events in March 2021 was about $7,500.
19On the date of his arrest, Sandhu had arranged to buy heroin from his supplier. Sandhu’s “link” to the supplier was a man who he only knew by the name “M.” Sandhu had been introduced to “M” by another man he knew named Pagat, who was also a user. It was M’s brother who was Sandhu’s supplier. Sandhu drove from his home to Jane and Highway 400, where he picked up “M.” This was about a 15 minute drive. Sandhu then drove with “M” to a building at Keele and Steeles, where M.’s brother was located. Sandhu had never met M.’s brother. Sandhu gave “M” $3,000 cash to buy heroin from the brother. “M” got out of the truck and went into the building. After awhile, “M” returned and gave Sandhu the bag of heroin that is depicted in Exhibit 2 (at p. 1). “M” also brought Sandhu what was described in examination-in-chief as a “sample”. It is depicted in Exhibit 2 (at p. 3) – the small baggie in the middle of the photo with beige powder inside. Sandhu testified that he “checked” this “sample” by putting a small amount, together with some of his crystal meth, on a piece of tin foil, heating it, and inhaling it while sitting in the truck. He identified the crystal meth that he carried in Exhibit 2 (at p. 4) and the burned piece of tin foil (at p. 3). He testified that he would mix crystal meth with heroin so as not to get drowsy.
20All of the above items were seized by the police on Sandhu’s arrest. He testified in examination-in-chief that he “keeps everything” in the black pouch, referring specifically in his testimony to the tin foil, the crystal methamphetamine, and the small plastic baggies that he used to take small amounts of heroin to work. In cross-examination, he clarified that he also used a lighter and pipe to inhale heroin but these items were too big to keep in the pouch. He also had a scale that he used to weigh the heroin that he had purchased, so that he would know the quantity that he paid for. Finally, he carried a knife which he used at work to “peel wires”, as he put it.
21Crown counsel’s questions brought out a number of additional details about the above March 7, 2021 events. These details came out for the first time during cross-examination. In particular, Sandhu testified that he first met “M” in January 2021 and he had bought heroin from M’s brother on two prior occasions at the same location, in January and in February 2021. On both occasions he bought one ounce. Sandhu still had a small amount of heroin left from the last purchase in February 2021. This can be seen in the somewhat larger baggie with duct tape around it depicted in Exhibit 2 at p. 3 and p. 5. Sandhu wanted to buy more heroin before he ran out. He was always working at this time and he needed heroin when he was working. He had a conversation with “M” a “couple of hours” before the transaction on March 7, 2021. “M” told Sandhu that M’s brother would not have the heroin that Sandhu had been buying anymore but that he still had 51 grams. “M” suggested that Sandhu “take all of it”. “M” quoted a price of $60 per gram and asked for $3,000. Sandhu agreed and said, “go ahead, buy it”. This was a good price because heroin normally sells for about $100 a gram. Sandhu testified that he was not buying two ounces, although he referred to the amount on occasion during his testimony as two ounces. It was “around two ounces” or “close to two ounces”, according to Sandhu. He testified that M’s brother did not sell by the gram. You had to buy an ounce or more and so Sandhu bought all that M’s brother had left. “M” also told Sandhu that M’s brother would give Sandhu a “sample” of the drug that he would be selling in future. It was a new product that was different and Sandhu could test it in order to see if it was good for him.
22When “M” returned to Sandhu’s truck with the $3,000 bag of heroin and with the “sample” Sandhu weighed the heroin on his scale. He had “no issues” with the weight and did not think that 51 grams was “short”. He denied having bought a full two ounces (56 grams) and having already sold five grams prior to his arrest. Sandhu also tested the “sample” and he did not like it. He used a paper straw to inhale the smoke in his truck and then threw out the straw. Sandhu agreed that he brought about $7,500 with him in the truck, although he knew that he only needed $3,000 to pay for the heroin. He had the extra money in order to pay for his household expenses. He took the $3,000 from the $7,000 that he kept in a bull clip because it was too much money to put in his wallet. He kept this money in the clip in the centre console of the truck and he kept the money from his side jobs in his wallet (contrary to what was stated in Exhibit 1, the ASF).
23Sandhu testified that he had never trafficked in drugs. He would not know how. He denied having any customers who bought drugs from him and stated, “you can check my phone”. He had no time to sell drugs as he was always working. He had two cell phones because one phone was paid for on his wife’s account. She would sometimes fail to pay the account and it would be suspended. So he bought a Chatr pre-paid phone for his “side” business as a mobile mechanic.
24When Sandhu was stopped by police and arrested on March 7, 2021, it was 11:10 p.m. at night. He agreed that he was speeding and he was not wearing a seat belt. He acknowledged being afraid of being caught with drugs in his truck. He agreed that this conduct was risky. However, he was in a hurry as he had to drop off “M” at Jane and Wilson and he was then going on to a job in Brampton. He sometimes worked late at night at mobile mechanic jobs until midnight.
25There was a considerable amount of cross-examination of Sandhu on issues that went only to credibility. I will not summarize these areas of cross-examination in any detail. For example, Sandhu testified about his annual income, about his accountant and his tax returns, about his bank account, and about how he paid for his household expenses and his mortgage. He also testified about the various addresses where he registered his truck with the MTO. Finally, he testified about the various heroin suppliers he had used, prior to meeting “M” in January 2021. There were a number of inconsistencies in Sandhu’s testimony in these areas, as well as an acknowledgement of a certain amount of dishonesty in relation to money matters.
C. ANALYSIS
26As stated at the beginning of these reasons, the only disputed issues are whether the heroin was possessed for the purpose of trafficking (on Count 1) and whether the money possessed was proceeds of trafficking (on Count 3). These two issues are closely interrelated in that a reasonable doubt on the Count 1 issue would inevitably lead to a reasonable doubt on the Count 3 issue.
27There is no defence to Count 2 as Sandhu acknowledged in his testimony that he knew the knife had a spring-assisted mechanism, which is the characteristic that makes it prohibited. It is admitted in Exhibit 1 that Sandhu did not have a license to possess this kind of weapon. As a result, it is conceded that there should be a conviction on Count 2.
28The Crown has a reasonably strong prima facie case on the Count 1 issue of whether the heroin was possessed for the purpose of trafficking. The almost two ounce quantity of the drug, the over $4,100 quantity of cash, and the multiple unused “dime’ ziplock baggies are all indicia of trafficking. In my view, the digital scale, the knife, and the two cell phones are less probative of an intent to traffick, as Detective Quinn fairly acknowledged in his testimony.
29However, the Crown’s prima facie case is weakened by the following:
- first, the one piece of tin foil with burn marks in Sandhu’s black leather pouch is unambiguous evidence that he was a user of heroin. The Crown fairly acknowledged this;
- second, the fact that there were multiple pieces of unused tin foil in Sandhu’s black leather pouch is evidence of an ongoing intention to use heroin multiple times, consistent with addiction;
- third, the fact that there was also crystal methamphetamine in Sandhu’s black leather pouch is evidence of a user who combined heroin with a stimulant. This is consistent with a functioning addict who uses heroin daily but who also drives a vehicle and goes to work and needs to counteract the sedating effect of heroin;
- fourth, the heroin was cut with caffeine, which is another stimulant. This too is consistent with a functioning addict who uses heroin daily because the caffeine both cuts the heroin, reducing its potency, while also counteracting the sedating effect of the heroin. In this regard, it is significant that the Certificate of Analysis does not indicate the percentage of the 51 gram amount that was pure heroin and the percentage that was caffeine. This reduces the probative value of the 51 gram quantity as one of the indicia of trafficking;
- fifth, the small “dime” baggie containing .2 grams of heroin and cutting agent was a different mixture from the heroin and cutting agent in the 51 gram larger plastic bag. As Detective Quinn fairly acknowledged, this may suggest that the small amount came from a different source of supply than the larger amount. This undermines the Crown’s theory that the smaller amount had been pre-packaged by Sandhu from his bulk amount for the purpose of distribution to a purchaser;
- sixth, the crystal methamphetamine and the small amount of beige powder that was not tested (depicted in Exhibit 2 at pp. 3, 4, and 5) were being stored in two baggies that had been reinforced with duct tape. Once again, this is consistent with ongoing use as opposed to distribution in the unused smaller “dime” baggies; and
- seventh, there are some gaps in the Crown’s case. No search warrant was ever executed at Sandhu’s home and no search warrant was ever executed on his seized cell phones. As a result, there is no evidence that he was in possession of the various cutting agents being used in the two different amounts of heroin, no evidence of debt lists, no evidence of customers, and no evidence of sales. See: R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.); R. v. Bero (2000), 151 C.C.C. (3d) 545 (Ont. C.A.); R. v. Villaroman (2016), 2016 SCC 33 , 338 C.C.C. (3d) 1 (S.C.C.); R. v. Bruzzese, 2023 ONCA 10, 167 O.R. (3d) 81 (C.A.).
30In addition to the above seven circumstantial weaknesses in the Crown’s case, there is the accused Sandhu’s direct evidence denying any intent to traffick and advancing innocent explanations for the incriminating circumstances. There were undoubtedly a number of weaknesses in Sandhu’s testimony. The fact that so many important details in his account emerged for the first time in cross-examination is troubling. Some of the inconsistencies in his account were also of concern, although I accept that he has a poor memory and some confusion for obvious reasons. In spite of these difficulties with Sandhu’s testimony, the substance or core of his account is not disputed by the Crown, namely, that he is a heroin addict. I also accept that he is a functioning addict who has held down jobs, who works as a licensed mechanic, and who has a wife, a home, and children. In all the above circumstances, I cannot completely accept all of his account nor can I completely reject it. Accordingly, there is reasonable doubt on this basis. See: R. v. Nimchuk (1977), 33 C.C.C. (2d) 209 (Ont. C.A.); R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.); R. v. Morin (1988), 44 C.C.C. (3d) 193 (S.C.C.); R. v. J.H.S. (2008), 2008 SCC 30 , 231 C.C.C. (3d) 302 (S.C.C.).
31In light of the circumstantial weaknesses in the Crown’s case and in light of the accused Sandhu’s testimony, as analysed above, I am satisfied that Sandhu is not guilty on Counts 1 and 3 as charged. However, he is admittedly guilty of the lesser included offence of simple possession of heroin on Count 1.
D. CONCLUSION
32For all the reasons set out above, the three verdicts on the Indictment are as follows:
- on Count 1, not guilty as charged but guilty of the lesser included offence of simple possession of heroin;
- on Count 2, guilty as charged of possession of a prohibited weapon; and
- on Count 3, not guilty.
33I would like to thank both counsel for the efficient and professional way in which they have conducted this trial.
M.A. Code J.
Released orally : October 23, 2023