IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

R. v. Kandola,

 

2012 BCSC 968

Date: 20120629

Docket: X072997

Registry: New Westminster

Regina

v.

Baljinder Singh Kandola and Shminder Singh Johal

Before: The Honourable Mr. Justice S.R. Romilly

Reasons for Judgment

Counsel for the Crown:

James K. Torrance
Baljinder K. Girn

Counsel for the Accused, Baljinder Singh Kandola:

James I.S. Sutherland
Mark P. Bussanich

Counsel for the Accused, Shminder Singh Johal:

Daniel Markovitz

Place and Date of Trial:

New Westminster, B.C.
June 6-10, 13-17, 21-24, 27-30,
July 25, November 7-10, 14-18,
December 5-9, 2011,
January 16-18, April 17-19
June 5 and 7, 2012

Place and Date of Judgment:

New Westminster, B.C.
June 29, 2012


 

Table of Contents

Paragraph Range

A. THE CHARGES

[1] - [3]

B. OVERVIEW

[4] - [6]

C. GENERAL LEGAL PRINCIPLES

[7] - [52]

Credibility

[7] - [23]

a) Taking motive into consideration in assessment of credibility

[7] - [8]

b) Fact finder can accept all, part, or none of witnesses’ testimony

[9] - [10]

c) Mere disbelief of the accused’s evidence does not satisfy the Crown’s burden of persuasion

[11] - [12]

d) Simple denial by the accused

[13] - [13]

e) The demeanour of the witness while testifying

[14] - [18]

f) Suggested charge to the jury on the issue of credibility

[19] - [23]

Circumstantial Evidence

[24] - [36]

a) Reasonable inference from proven fact as opposed to speculation

[28] - [34]

b) Circumstantial evidence in drug cases

[35] - [36]

The Law of Importing a Controlled Substance

[37] - [42]

a) Knowledge of the controlled substance being imported

[39] - [39]

b) Constructive possession

[40] - [42]

Party Liability – Application of s. 21 to both Conspiracy and the Substantive Counts

[43] - [50]

The Meaning of Reasonable Doubt

[51] - [51]

Offence as Particularized in Charge Must Be Proved

[52] - [52]

D. REVIEW OF EVIDENCE AND FINDINGS OF FACT

[53] - [243]

Dedicated Phones Seized by the Police

[57] - [71]

a) Dedicated cell phone seized from Johal on October 25, 2007 [778-997-0269]

[59] - [59]

b) Dedicated phone seized from Kandola on October 25, 2007 [778-688-0329]

[60] - [60]

c) Dedicated phone seized from Riar on October 25, 2007 [778-688-5489]

[61] - [61]

d) Johal’s use of dedicated cell phone system to communicate with Kandola and Riar

[62] - [64]

e) Who were “Alice” and “Betty” listed on Johal’s “Contacts” in the SIM Card directory of his dedicated phone?

[65] - [66]

f) Source of dedicated cell phones and payment of bill

[67] - [67]

g) The subscriber information for the dedicated phones

[68] - [71]

Communication between Johal and Kandola on the Dedicated Cell Phones

[72] - [72]

Communication between Johal and Riar on the Dedicated Cell Phones

[73] - [73]

Kandola’s employment with the CBSA

[74] - [100]

a) Terms and conditions of Kandola’s employment with the CBSA

[74] - [80]

b) Physical layout of the PHBC

[81] - [81]

c) Scheduling of Kandola’s shifts and procedure to be followed by him at the PHBC

[82] - [88]

d) Flexible Response Team

[89] - [90]

e) The Lookout

[91] - [100]

Source of the Lookout

[93] - [93]

Unauthorized database inquiries made by Kandola with respect to the Lookout and telephone contact with Johal after those inquires were made

[94] - [100]

Kandola’s Knowledge of the CBSA Procedures

[101] - [105]

Provision of Monthly Work Schedules by Kandola to Johal to plan the Crossings

[106] - [106]

Kandola’s use of Dedicated Phones to avoid being Wiretapped

[107] - [107]

The Bribery of a CBSA Official

[108] - [109]

Kandola Took Steps to Ensure Johal and Riar would not be Detected at the Border

[110] - [111]

Meetings between Johal and Kandola

[112] - [114]

Evidence of Benefits provided by Johal to Kandola and Request made by Kandola for Favours from Johal during the Period of the Alleged Conspiracy

[115] - [122]

a) Upgrades to Kandola’s Mini/Payments in relation to Kandola’s Mini

[120] - [120]

b) Potential laptop for Kandola

[121] - [122]

c) Cell phone from Johal to Kandola

[121] - [122]

Kandola’s Persistence in Obtaining Benefits from Johal

[121] - [122]

The July 28, 2007 Crossing

[123] - [128]

a) Summary of findings of fact with respect to the July 28, 2007 crossing

[124] - [128]

The September 6-7, 2007 Crossing

[129] - [130]

a) Some intercepted communications, phone contacts and surveillance of the accused prior to the border crossing of September 6-7, 2007, and immediately thereafter

[130] - [130]

The October 24-25, 2007 Crossing

[130] - [146]

a) Intercepted communication between Johal and unindicted co-conspirator

[131] - [146]

Summary of the evidence pertaining to the phone contact and surveillance of Johal, Riar and Kandola surrounding the October 24-25, 2007 crossing

[133] - [146]

The Arrest of the Accused:  October 24-25, 2007 Crossing

[147] - [165]

a) Evidence seized from Riar’s GMC Yukon with British Columbia Licence Plate #AA9208 on his arrest

[147] - [153]

Three handguns and ammunition seized from Riar’s vehicle at the time of his arrest

[150] - [153]

b) Evidence seized from Johal’s GMC Yukon with British Columbia Licence Plate #D53398 on his arrest

[154] - [158]

c) Evidence seized following a search of Johal’s residence after his arrest on October 25, 2007

[159] - [161]

d) Evidence seized from Kandola after his arrest at the PHBC

[162] - [164]

e) Evidence seized from Kandola’s residence after his arrest

[165] - [165]

The Expert Testimony of Inspector MacDonald

[166] - [184]

a) The structure of a drug importation organization

[169] - [174]

Leader

[169] - [169]

Transporters

[170] - [170]

Overseer

[171] - [172]

Traffickers

[173] - [173]

Facilitators

[174] - [174]

b) Trust

[175] - [176]

c) Operational security

[177] - [177]

d) Cocaine importation

[178] - [183]

e) Cash seized from Johal’s residence

[184] - [184]

The Application of Insp. MacDonald’s Expert Testimony to Some of the Facts of this Case

[185] - [189]

Johal

[190] - [209]

a) Johal’s position

[190] - [193]

b) Johal’s credibility

[194] - [202]

Johal’s testimony about Riar

[198] - [199]

The CAD $223,880 found in Johal’s residence on the morning of his arrest and Johal’s driving behaviour on July 28, 2007

[200] - [201]

Johal’s erratic driving behaviour

[202] - [202]

c) Finding of fact with respect to the role played by Johal in the alleged conspiracy

[203] - [209]

Kandola

[210] - [243]

a) Kandola’s position

[210] - [222]

b) Kandola’s testimony

[223] - [238]

Kandola consistently denied that he asked any questions about Riar

[232] - [238]

c) Kandola’s credibility

[239] - [243]

E. DISCUSSION OF THE COUNTS IN THE INDICTMENT

[244] - [437]

Count 1 – The Conspiracy Charge

[244] - [263]

a) Some legal principles concerning the law of conspiracy

[244] - [262]

Party liability and conspiracy

[247] - [247]

Co-conspirators exception to the hearsay rule

[248] - [248]

Object of the conspiracy – the law

[249] - [259]

Will recklessness suffice?

[256] - [258]

Distinction between wilful blindness and recklessness

[259] - [259]

Probable membership

[260] - [260]

The “In Furtherance” requirement

[261] - [262]

b) The Five-Step Approach Suggested by Doherty J.A.

[263] - [263]

Analysis of the Law and Facts as they apply to Count 1 in the Indictment

[264] - [411]

a) Steps 1 and 2

[265] - [301]

Does the alleged agreement exist?

[265] - [296]

Kandola’s use of the CBSA databases to conduct risk assessments

[270] - [275]

Frequent telephone contact between Kandola and Johal, and Johal and Riar, particularly surrounding the time of the crossings

[276] - [285]

Frequent meetings between Kandola and Johal

[286] - [286]

Discussions of benefits Kandola expected to receive

[287] - [287]

Surveillance of Johal and Riar’s activities before and after the crossings

[288] - [290]

Kandola’s use of his position as a BSO and his knowledge of shift scheduling

[291] - [292]

The separation of roles between the members of the conspiracy

[293] - [294]

Evidence seized on the night of Kandola, Johal and Riar’s arrest

[295] - [296]

Conclusion on Step 2

[297] - [301]

b) Knowledge that cocaine was being imported

[302] - [314]

Johal’s knowledge of the substance being imported

[302] - [308]

Kandola’s knowledge of the substance being imported

[309] - [314]

c) Steps 3, 4 and 5

[315] - [411]

Johal’s probable membership in the alleged conspiracy

[316] - [343]

The arrest of Johal on October 25, 2007

[319] - [320]

Intercepted communications where Johal is a party

[321] - [321]

Johal’s use of dedicated cell phone system to communicate with Kandola and Riar

[322] - [324]

Communication with Kandola on the dedicated cell phone

[325] - [325]

Communication with Riar on the dedicated cell phone

[326] - [326]

Meetings between Johal and Kandola

[327] - [329]

Johal accompanied Riar back to the Canadian border after Riar loaded the shipment of cocaine into his GMC Yukon

[330] - [335]

Johal entered Canada via Kandola’s PIL Booth and accompanied Riar back to Richmond (Johal responsible for Riar)

[336] - [339]

Benefits and payments provided by Johal to Kandola in exchange for Kandola’s role in the conspiracy

[340] - [343]

Kandola’s probable membership in the conspiracy

[344] - [380]

Unauthorized CBSA database queries made by Kandola

[348] - [353]

Telephone contact between Kandola and Johal – July 24 to August 4, 2006

[354] - [356]

Telephone contact between Kandola and Johal – November 17, 2006 to February 15, 2007

[357] - [359]

Telephone contact between Kandola and Johal – February 16 to April 20, 2007

[360] - [360]

Telephone contact between Kandola and Johal – June 24 to July 10, 2007

[361] - [361]

Benefits and payments to Kandola for his role in the agreement to import cocaine

[362] - [364]

Intercepted calls involving Kandola

[365] - [367]

Kandola’s use of the dedicated cell phone to communicate with Johal

[368] - [372]

Kandola’s use of his position as a Border Services Officer in relation to the conspiracy to import cocaine

[373] - [379]

Meetings between Kandola and Johal

[380] - [380]

Riar’s probable membership in the alleged conspiracy

[381] - [395]

Riar’s use of dedicated phone to communicate with Johal

[381] - [381]

Surveillance of Riar and Johal

[382] - [386]

Intercepted communications of Riar

[387] - [392]

Acts and declarations of Riar in furtherance of the alleged conspiracy

[393] - [395]

“Al”’s probable membership in the conspiracy

[396] - [399]

Intercepted phone calls between Johal and “Al”

[396] - [397]

Non-intercepted phone contact between Johal and “Al”

[398] - [399]

Gurjit Johal’s probable membership in the conspiracy

[400] - [405]

Intercepted phone calls and “in furtherance” actions involving Gurjit Johal

[400] - [404]

Surveillance of Gurjit Johal

[405] - [405]

Other Evidence against Johal and Riar, including Statements and Actions of Co-Conspirators in Furtherance of the Conspiracy

[406] - [411]

Decision on Count 1 in the Indictment

[412] - [413]

Analysis of the Law and Facts as they apply to Count 2 in the Indictment

[414] - [417]

a) Johal

[415] - [415]

b) Kandola

[416] - [417]

Decision on Count 2 in the Indictment

[418] - [419]

Analysis of the Law and Facts as they apply to Count 3 in the Indictment

[420] - [421]

Decision on Count 3 in the Indictment

[422] - [422]

Analysis of the Law and Facts as they apply to Count 4 in the Indictment

[423] - [424]

Decision on Count 4 in the Indictment

[425] - [428]

Analysis of the Law and Facts as they apply to Count 5 in the Indictment

[429] - [430]

a) The law concerning breach of trust by public officer

[429] - [430]

Decision on Count 5 in the Indictment

[431] - [431]

Analysis of the Law and Facts as they apply to Count 6 in the Indictment

[432] - [433]

Decision on Count 6 in the Indictment

[434] - [434]

Analysis of the Law and Facts as they apply to Count 7 in the Indictment

[435] - [436]

Decision on Count 7 in the Indictment

[437] - [437]

F. CONCLUSION

[438] - [444]


 

 

A.       THE CHARGES

[1]             Baljinder Singh Kandola and Shminder Singh Johal stand charged that:

Count 1

Baljinder Singh KANDOLA and Shminder Singh JOHAL, between the 1st day of May, 2006 and the 26th day of October, 2007, inclusive, at or near the City of Surrey, in the Province of British Columbia, and elsewhere in British Columbia, and in the State of Washington, United States of America, did unlawfully conspire together with Herman Singh RIAR, the one with the other and others of them, and with a person or persons unknown, to commit the indictable offence of importing a controlled substance, to wit:  Cocaine, into Canada, contrary to Section 6(1) of the Controlled Drugs and Substances Act, and did thereby commit an offence contrary to Section 465(1)(c) of the Criminal Code of Canada.

Count 2

Baljinder Singh KANDOLA and Shminder Singh JOHAL, on or about the 25th day of October, 2007, at or near the City of Surrey, in the Province of British Columbia, did unlawfully import a controlled substance, to wit:  Cocaine, into Canada, contrary to Section 6(1) of the Controlled Drugs and Substances Act.

Count 3

Baljinder Singh KANDOLA and Shminder Singh JOHAL, on or about the 25th day of October, 2007, at or near the City of Surrey, in the Province of British Columbia, did unlawfully import firearms into Canada, to wit:  a .44 Magnum calibre Ruger model Redhawk revolver, a 9 mm calibre Heckler & Koch model USP pistol, and a .45 calibre Heckler & Koch model USP pistol, knowing that he was not authorized to do so under the Firearms Act or any Act of Parliament or any regulations made under any Act of Parliament, contrary to Section 103(1)(a) of the Criminal Code.

Count 4

Baljinder Singh KANDOLA and Shminder Singh JOHAL, on or about the 25th day of October, 2007, at or near the City of Surrey, in the Province of British Columbia, did unlawfully possess a controlled substance, to wit:  Cocaine, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act.

Count 5

Baljinder Singh KANDOLA, between the 1st day of May, 2006 and the 26th day of October, 2007, inclusive, at or near the City of Surrey, in the Province of British Columbia, and elsewhere in British Columbia, did, in connection with his duties as a Border Services Officer with the Canada Border Services Agency, commit a breach of trust by facilitating the importation of Cocaine into Canada, contrary to Section 122 of the Criminal Code.

Count 6

Baljinder Singh KANDOLA, between the 1st day of May, 2006 and the 26th day of October, 2007, inclusive, at or near the City of Surrey, in the Province of British Columbia, and elsewhere in British Columbia, did, while employed as a Border Services Officer with the Canada Border Services Agency, corruptly accept, obtain, agree to accept or attempt to obtain for himself any money or valuable consideration with intent to facilitate the commission of an offence, to wit:  importing Cocaine into Canada contrary to Section 6(1) of the Controlled Drugs and Substances Act, and did thereby commit an offence contrary to Section 120(a) of the Criminal Code.

Count 7

Shminder Singh JOHAL, between the 1st day of May, 2006 to the 26th day of October, 2007, inclusive, at or near the City of Surrey, in the Province of British Columbia, and elsewhere in British Columbia, did corruptly give or offer to give money or valuable consideration to Baljinder Singh Kandola, a Border Services Officer with the Canada Border Services Agency, with the intent that the said Baljinder Singh Kandola would facilitate the commission of an offence, to wit:  importing Cocaine into Canada contrary to Section 6(1) of the Controlled Drugs and Substances Act, and did thereby commit an offence contrary to s. 120(b) of the Criminal Code.

[2]             The accused entered pleas of not guilty to all charges.

[3]             For the reasons stated below:

(1)      I find the accused Baljinder Singh Kandola and Shminder Singh Johal guilty of Count 1 in the indictment;

(2)      I find the accused Baljinder Singh Kandola and Shminder Singh Johal guilty of Count 2 in the indictment;

(3)      I find the accused Shminder Singh Johal guilty of Count 3 in the indictment.  On that count, I find the accused, Baljinder Singh Kandola, not guilty;

(4)      I find the accused Baljinder Singh Kandola not guilty of Count 4; I find the accused Shminder Singh Johal guilty of Count 4, but a conditional stay of proceeding will be entered on this count;

(5)      I find the accused Baljinder Singh Kandola guilty of Count 5 in the indictment;

(6)      I find the accused Baljinder Singh Kandola, guilty of Count 6 in the indictment;

(7)      I find the accused Shminder Singh Johal, guilty of Count 7 in the indictment.

B.       OVERVIEW

[4]             The Crown alleges that Baljinder Singh Kandola (“Kandola”) and Shminder Singh Johal (“Johal”), together with Herman Singh Riar (“Riar”) and other persons unknown, conspired to import cocaine into Canada between May 1, 2006 and October 26, 2007.

[5]             At the outset of this trial, Crown counsel gave me an outline of their case against the accused.  That outline proved to be a succinct summary of the evidence that I heard over the last few weeks of trial.  That outline was filed as an exhibit in these proceedings.  Also filed as an exhibit at the end of the Crown’s case were the Crown’s final submissions and a chronology of events.  These exhibits have been in the hands of the defence for months now.  In dealing with the factual matrix for my decision in this case, I have borrowed heavily from these exhibits in those instances where I find the excerpts accurately reflect a summary of the evidence that I have heard over the past few months.  I accept most of the submissions made by the Crown in this case.

[6]             At this trial, both Kandola and Johal testified on their behalf.  Notwithstanding that, because defence counsel were not ready to make their submissions, I ordered the Crown to proceed with their submissions first.  The trial was then adjourned at defence counsel’s request for a few months before they made their final submissions to me.  Because the accused testified, I will have to deal with the issue of their credibility in this judgment.  Apart from that, the case against Kandola and Johal is purely circumstantial.  Before dealing with a review of the evidence and making my findings of fact, it is therefore prudent for me to articulate certain general principles of law as they relate to circumstantial evidence and credibility.  At the outset, I will also deal with other legal principles that were raised by counsel.  I propose to deal with the legal issues, as they apply to the law of conspiracy, later on in the judgment.

C.       GENERAL LEGAL PRINCIPLES

Credibility

a)  Taking motive into consideration in assessment of credibility

[7]             Just because an accused is interested in the outcome of his case does not mean that his testimony should be rejected.  In R. v. B. (L.) (1993), 13 O.R. (3d) 796, 82 C.C.C. (3d) 189 at 190-191 (C.A.), Arbour J.A. stated:

...The statement made by the trial judge went beyond the common sense consideration that witnesses may have, to different degrees, an interest in the outcome of the proceedings, and that this is a factor, among others, which the trier of fact may take into account in assessing credibility.

There are many ways in which a witness may have an interest in the case which may be viewed as affecting the weight that the trier of fact may want to place on the witness's evidence.  The interest may be pecuniary, as is often the case for both the plaintiff and the defendant in a civil case.  In a criminal case, the accused has an obvious direct interest in the outcome of his or her trial, but other witnesses may have a large stake, be it an emotional, a financial or even a penal interest in the trial in which they are mere witnesses.  The degree to which the presence of an interest in the outcome may affect the assessment of the credibility of a witness varies with the circumstances of each case.

This court held in R. v. Wood, February 26, 1992 (Feb. 26, 1992, unreported), that an accused's interest in the outcome of the trial may be a factor which a jury could legitimately take into account in determining the appropriate weight to place on the accused's testimony.  The court referred to this process as common sense, and said that it was not rendered offensive by the trial judge referring to the accused having a "great interest" in the outcome of his trial.  In Wood, the court observed that the trial judge was careful to warn the jury that, despite the accused's great interest in the outcome of his trial, "that doesn't mean that every accused person's evidence must be necessarily rejected because of an interest in the outcome"...

The impugned passage in the trial judge's reasons in this case, in my opinion, goes beyond the permissible consideration of the accused's interest in being acquitted, as one factor to be taken into account when weighing his testimony.  It falls into the impermissible assumption that the accused will lie to secure his acquittal, simply because, as an accused, his interest in the outcome dictates that course of action.  This flies in the face of the presumption of innocence and creates an almost insurmountable disadvantage for the accused. ...If the trial judge comes to the conclusion that the accused did not tell the truth in his evidence, the accused's interest in securing his acquittal may be the most plausible explanation for the lie.  The explanation for a lie, however, cannot be turned into an assumption that one will occur.

[8]             In R. v. P. (G.F.) (1994), 18 O.R. (3d) 1, 89 C.C.C. (3d) 176, 29 C.R. (4th) 315 at 325-326 (Ont. C.A.) the court held that the emphasis by the trial judge that the accused had “a very strong interest” in the outcome of the case undermined the presumption of innocence and the fairness of the trial.  At 325-26, the court noted:

The trial judge, quite permissibly, told the jury that one factor which they could properly take into account in assessing a witness' evidence was his or her interest in the outcome of the case. 

When he came to deal with the appellant's evidence he said:

The results of this case on conviction are very serious for him - extremely serious.  Because of this, of course, he has an interest in the case, and that is one of the elements that you're entitled to consider in determining whether or not what he says is credible or not.

...

There followed a series of rhetorical questions tending to indicate that she did not have an interest in the outcome - although he said that this was a matter for the jury to consider.  Following this the trial judge then concluded this subject as follows:

As I have indicated to you, the Crown has readily pointed out that [the appellant] has a very strong interest in the outcome of the case.

Having regard to (1) the juxtaposition of this latter passage to the passage respecting the complainant's evidence, (2) its wording, "a very strong interest", and (3) importantly, the repetition of the point, we think that the trial judge over-emphasized the appellant's potential interest in the outcome of the proceeding.  The charge indicated to the jury that they should give the appellant's evidence more careful scrutiny than that of the other witnesses.  We think this undermined the presumption of innocence and the fairness of the trial.

b)  Fact finder can accept all, part, or none of witnesses’ testimony

[9]             In R. v. Mathieu (1994), 90 C.C.C. (3d) 415 (Qué. C.A.), Fish J.A. stated that in determining if the Crown has discharged its burden of proof, the finder of fact could accept all, part or none of witnesses' testimony.  He stated at 430:

In determining whether this burden has been discharged, triers of fact remain free, as they have always been in the past, to accept all, part or none of the evidence of any witness, called by either the prosecution or the Defence.  The evidence of each witness must be considered in the light of all the other evidence.  And the test for conviction is whether, on the whole of the evidence, the trier of fact is satisfied that the prosecution has discharged its burden of establishing guilt beyond a reasonable doubt - not whether the accused, if he or she does testify, has made a plausible Defence or furnished evidence that might reasonably be true.

See also:  R. v. R. (D.), [1996] 2 S.C.R. 291, 107 C.C.C. (3d) 289 at 318 per L’Heureux-Dubé J. (in dissent in the result); R. v. Hunter, [2000] O.J. No. 4089 (C.A.) at para. 5 per curiam; and R. v. Abdallah, [1997] O.J. No. 2055 (C.A.) at paras. 4, 5 per Carthy and Goudge JJ.A.

[10]         Accordingly, a trier of fact is entitled to accept parts of a witness’s evidence and reject other parts, and similarly, the trier can accord different weight to different parts of the evidence that the trier of fact has accepted:  R. v. Howe (2004), 192 C.C.C. (3d) 480 (Ont. C.A.) at para. 44.

c)  Mere disbelief of the accused’s evidence does not satisfy the Crown’s burden of persuasion

[11]         It must be emphasized that mere disbelief of the accused’s evidence does not satisfy the burden of persuasion upon the Crown:  see R. v. W. (D.), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397 at 409.  In other words, to equate disbelief of the accused’s evidence as positive proof of guilt constitutes error:  R. v. H. (S.) (2001), 139 O.A.C. 296 at paras. 4-6 per curiam.  The court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused’s guilt.

[12]         It is an error to infer guilt merely from disbelieving the evidence of the accused:  R. v. To (1992), 16 B.C.A.C. 223 at para. 24; R. v. Moore, 2005 BCCA 85; R. v. Levy (1990), 62 C.C.C. (3d) 97 at 101 (Ont. C.A.); R. v Teskey, 2008 BCCA 288; and R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152.

d)  Simple denial by the accused

[13]         Speaking for the Court, McLachlin C.J.C. said in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, a sexual assault case:

48        The sufficiency of reasons on findings of credibility – the issue in this case – merits specific comment. The Court tackled this issue in Gagnon, setting aside an appellate decision that had ruled that the trial judge's reasons on credibility were deficient. Bastarache and Abella JJ., at para. 20, observed that "[a]ssessing credibility is not a science." They went on to state that it may be difficult for a trial judge "to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events", and warned against appellate courts ignoring the trial judge's unique position to see and hear the witnesses and instead substituting their own assessment of credibility for the trial judge's.

49        While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on a particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize. Furthermore, embellishing why a particular witness's evidence is rejected may involve the judge saying unflattering things about the witness; judges may wish to spare the accused who takes the stand to deny the crime, for example, the indignity of not only rejecting his evidence and convicting him, but adding negative comments about his demeanor. In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization.

50        What constitutes sufficient reasons on issues of credibility may be deduced from Dinardo, where Charron J. held that findings on credibility must be made with regard to the other evidence in the case (para. 23). This may require at least some reference to the contradictory evidence. However, as Dinardo makes clear, what is required is that the reasons show that the judge has seized the substance of the issue. "In a case that turns on credibility ... the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt" (para. 23). Charron J. went on to dispel the suggestion that the trial judge is required to enter into a detailed account of the conflicting evidence: Dinardo, at para. 30.

e)  The demeanour of the witness while testifying

[14]         In R. v. Anderson, 2009 ABCA 67, 243 C.C.C. (3d) 134, the court stated:

51        Evidence of an accused's demeanour is a risky type of evidence. It could be meaningless and prejudicial. The witness Erskine said that the appellant told him he had had a bad sleep. This evidence needed fairly compelling supportive indications of meaning and relevance in order to be of probative value here. Depending on the circumstances, a "demeanour" observation may be the sort of partial evidence that is more prejudicial than probative: R. v. Ferris, [1994] 3 S.C.R. 756. In a real sense, demeanour evidence involves a form of mind reading. Accordingly, such evidence should be approached with circumspection where it is proposed to take it to indicate guilty mind: R. v. Turcotte, [2005] 2 S.C.R. 519, 2005 SCC 50 at paras. 36 to 59.

[15]         It is not the sincerity of the witness, but the reliability of the witness that is important on the issue of credibility.  Where there is a conflict in evidence, a conviction should not be based on solely the demeanour of a witness.  In R. v. S. (W.) (1994), 18 O.R. (3d) 509, 90 C.C.C. (3d) 242 at 250 (C.A.), Finlayson J.A. stated:

The issue, however, is not the sincerity of the witness but the reliability of the witness' testimony.  Demeanour alone should not suffice to found a conviction where there are significant inconsistencies and conflicting evidence on the record: see R. v. Norman (1993), 16 O.R. (3d) 295 at pp. 311-1587 C.C.C. (3d) 153 [at pp.170-74] (C.A.), for a discussion on this subject.

See also:  R. v. Pelletier (1995), 165 A.R. 138 (C.A.).

[16]         Notwithstanding the foregoing, there could be no doubt that the manner of giving evidence may assist the finder of fact in arriving at a just result.  In R. v. Alexis (1994), 35 C.R. (4th) 117 (Ont. Ct. J. (Gen. Div.)), Hill J. stated at 164:

...While it is important not to over-emphasize demeanour evidence, it may be that in the particular circumstances of a given case, of which this is one, the manner of giving evidence assists in determining a just result.  This has been implicitly recognized by the courts: see for example, White v. The King (1947), 89 C.C.C.148 (S.C.C.) per Estey J. at 151; The Queen v. K.G.B. (1993), 70 C.C.C. (3d) 257 (S.C.C.) per Lamer C.J.C. at 292; Regina v. Livermore (1994), 89 C.C.C. (3d) 425 (Ont.C.A) per Galligan J.A. at 428-429; Regina v. Toten (1993), 83 C.C.C. (3d) 5 (Ont.C.A.) at 28 per Doherty J.A.; Regina v. Varga (Ont.C.A.) (C7291), May 25, 1994 at 19 per Doherty J.A.

[17]         Again, in R. v. Ceal, 2012 BCCA 19, D. Smith J.A., for the court, wrote:

[24]      It is trite law that the assessment of credibility involves not only an assessment of the inconsistencies and discrepancies of a witness’s evidence but also includes an assessment of his or her demeanor in the witness stand. In other words it is not just “what was said, but how it was said”: R. v. Howe (2005), 192 C.C.C. (3d) 480 at para. 46 (Ont. C.A.). The opportunity to observe how a witness delivers his or testimony is the “advantage” of the trier of fact and the corresponding  “disadvantage” of the appellate court: see W.(R.) at 131-32; R. v. François, [1994] 2 S.C.R. 827; R. v. Horton, 1999 BCCA 150; and R. v. McLean, 2010 BCCA 341 at para. 51.

[25]      In determining whether a verdict is unreasonable or cannot be supported by the evidence, the focus of the inquiry is on whether there is any evidence to support the trial judge’s findings based on the totality of the evidence before him or her, and whether the verdict logically flows from those findings. An appellate court will not interfere with a trial judge’s assessment of credibility absent palpable and overriding error in the findings that support his or her assessment. As was noted in R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621:

[20]      Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this court decided, most recently, in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.

[18]         In R. v. Lawrence, 2010 NBQB 135, 358 N.B.R. (2d) 159, Morrison J. discussed how the credibility of a witness should be assessed.  He stated:

18        Like most criminal cases, an important if not central component of the outcome is an assessment of witness credibility. In two recent decisions (R. v. Matchett, 2010 NBQB 80; R. v. Storey, 2010 NBQB 86) Justice Fred Ferguson provided an extensive and helpful analysis of the principles to be applied when assessing credibility. After reviewing these principles, Justice Ferguson summarizes the trial judge’s responsibility at paragraph 78 of R. v. Storey (supra):

No longer are judges encouraged to consider demeanour evidence to be a determining or even central tool in credibility assessment. R. v. R.G.L., [2004] O.J. No. 1944 (O.C.A.); R. v. F.(S.), (2007), 223 C.C.C. (3d) 1 (P.E.I.S.C.A.D.) and also R. v. T.E., [2007] O.J. No. 4952 (Ont. C.A.). Rather, the proper approach is to consider the evidence of a particular witness against the backdrop of the rest of the evidence led or other evidence tendered, searching for connectors that may not necessarily rise to the level of legal corroboration between witnesses, the other evidence tendered or a combination of the two in deciding what worth should be attributed to it. In the final analysis it becomes a matter of determining the veracity of the evidence utilizing the age old tools of logic, reason and common sense in measuring the probability, if it is deductible from the evidence, that the witness or witnesses’ honesty on the central issue or issues is assailable.

f)   Suggested charge to the jury on the issue of credibility

[19]         In R. v. W. (D.), Cory J. suggested a model charge to the jury on the issue of credibility.  He stated at 409:

...A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[20]         I adopt Cory J.’s instruction on the determination of credibility and would add the following:

Fourth, if you cannot decide who to believe, you must acquit the accused.

[21]         Care must be taken in giving the third portion of Cory J.’s suggested charge to the jury.  In R. v. Brown (2002), 169 C.C.C. (3d) 449 (Ont. C.A.), the court stated at para. 14:

The trial judge did not instruct the jury that the principle of reasonable doubt applies to credibility, that the evidence called on behalf the appellant could give rise to a reasonable doubt even if not accepted, that it was unnecessary that they resolve conflicting evidence if they felt unable to do so, or that conflict in the evidence is incapable of giving rise to a reasonable doubt.…

[22]         In R. v. Brown, [2007] O.J. No. 1580 (Sup. Ct. J.) [Brown 2007], Hill J. noted at paras. 38-39:

38        A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.) v. The Queen (1991), 63 C.C.C. (3d) 397 (S.C.C.) at 409 per Cory J.; Avetsyan v. The Queen (2000), 149 C.C.C. (3d) 77 (S.C.C.) at 85-87 per Major J. However, as recognized in Regina v. Chittick, [2004] N.S.J. No. 432 (C.A.) at para. 23-25:

It is not an error for a judge to make a finding of credibility as between the complainant and the accused, particularly where they provide the bulk of the evidence as to what happened. This is a necessary part of the judge's duty. While it is not the end of the journey of decision-making, it is a necessary intermediate step along the way. Indeed, the first two elements in a proper jury instruction on this issue as set out in W.(D.) assume that the jury should decide whether or not they believe the exculpatory evidence of the accused. Those first two steps are:

First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Accordingly, it was not an error for the trial judge here to assess the credibility of the accused in relation to that of the complainant.

An error under the W.(D.) principle is committed where the judge treats the matter as concluded once this assessment of credibility has been completed. To do so misses the third and critical step in the application of the burden of proof. As described in W.(D.), that last crucial step is as follows:

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

39        It must be emphasized that mere disbelief of the accused's evidence does not satisfy the burden of persuasion upon the Crown: see W.(D.) v. The Queen, supra at 409. In other words, to use disbelief of the accused's evidence as positive proof of guilt by moving directly from disbelief to a finding of guilt constitutes error: Regina v. H.(S.), [2001] O.J. No. 118 (C.A.) at para. 4-6 per curiam. The court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused's guilt. The obligation of W.(D.) analysis was summarized in Regina v. Minuskin (2004), 181 C.C.C. (3d) 542 (Ont. C.A.) at 550:

It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to this formula. This suggested instruction was intended as assistance to a jury and a trial judge does not commit an error because he or she fails to use this precise form of words. Nor is the trial judge expected to approach the evidence in any particular chronology, for example, looking first at the accused's evidence and then at the rest of the evidence. It should, however, be clear from an examination of the reasons that at the end of the day the trial judge has had regard for the basic principles underlying the W.(D.) instruction. One of those principles is that it is not necessary for the trier of fact to believe or accept the Defence evidence for there to be a reasonable doubt. Even if the trier of fact believes the prosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt. As it was put by Cory J. in W.(D.) at p. 757, the trier of fact must acquit even if he or she does not believe the accused's evidence because they have a reasonable doubt as to the accused's guilt "after considering the accused's evidence in the context of the evidence as a whole".

See also R. v. Turmel, 2004 BCCA 555 at paras. 9-17.

[23]         I now turn to the law surrounding circumstantial evidence.

Circumstantial Evidence

[24]         In R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, Charron J. for the majority noted at para. 33:

33        We have long departed from any legal requirement for a "special instruction" on circumstantial evidence, even where the issue is one of identification: R. v. Cooper, [1978] 1 S.C.R. 860. The essential component of an instruction on circumstantial evidence is to instill in the jury that in order to convict, they must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. Imparting the necessary message to the jury may be achieved in different ways: R. v. Fleet (1997), 120 C.C.C. (3d) 457 (Ont. C.A.), at para. 20. See also R. v. Guiboche, 2004 MBCA 16, 183 C.C.C. (3d) 361, at paras. 108-10; R. v. Tombran (2000), 142 C.C.C. (3d) 380 (Ont. C.A.), at para. 29.

See also R. v. Butler, 2007 BCCA 526 at para. 13.

[25]         In R. v. To, in dealing with a drug case where the evidence at trial was circumstantial, McEachern C.J.B.C. wrote at paras. 19-20:

The first question is whether the evidence permitted the learned trial Judge to conclude beyond a reasonable doubt that knowledge on the part of the accused was the only reasonable inference to be drawn from proven facts: R. v. Cooper, [1977] 1 S.C.R. 860; 14 N.R. 181; 34 C.C.D.(2d) 18 (S.C.C.), per Ritchie J., at p. 33.

In this respect, our function is not to second-guess the trial judge, but merely to examine the evidence, and consider whether the judge correctly applied the all to the facts of the case.

He continued at paras. 40-41:

I have reached the conclusion that it would be legitimate, on the broad facts of this case, to infer beyond a reasonable doubt that the accused knew the plastic bag contained a prohibited drug. In fact, I think that would be the only reasonable inference which could be drawn. I believe that not just because the accused was found in physical control of the drugs, but also because of the highly suspicious circumstances and the immense quantity and value of the drugs. These facts make it so unlikely that such a large quantity of drugs would be entrusted to anyone who did not know what was in the bags that such a possibility may safely be rejected. In addition, his antecedent, highly suspicious conduct, most of which was proven affirmatively before he gave his disbelieved evidence, make it impossible to draw any inferences which would displace the legitimate inference which may be drawn from physical possession that he knew what he was possessing.

[26]         In order to determine whether the Crown has proven its case, the judge is required to assess the body of circumstantial evidence in its totality, and not to consider it piecemeal:  R. v. Munif, 2009 BCCA 451 at para. 10; R. v. Morin, [1988] 2 S.C.R. 345; and R. v. Morin, [1992] 3 S.C.R. 286.

[27]         In Munif, Frankel J.A. wrote:

[10]      In applying that test, it is important to keep in mind that it involves a judicial assessment of “the cumulative effect of all the evidence”, not a “piecemeal evaluation”: R. v. Robinson, 2003 BCCA 353, 176 C.C.C. (3d) 23 at para. 40.

a)  Reasonable inference from proven fact as opposed to speculation

[28]         In R. v. Munoz (2006), 86 O.R. (3d) 134, 205 C.C.C. (3d) 70 at 84 (Ont. Sup. Ct. J.), Ducharme J. (as he then was) discussed the importance of distinguishing between inferences and speculation.  He commented:

...The inference must be one that can be reasonably and logically drawn and, even where difficult; it cannot depend on speculation or conjecture, rather than evidence, to bridge any inferential gaps.

[29]         The court in R. v. Kyd (1957), 120 C.C.C. 178 at 183 (N.W.T. Terr. Ct.), noted that a trier of fact must exercise caution when drawing inferences in criminal cases:

One must be most careful in drawing an inference in a criminal case. It must not be a mere guess or suspicion.  A man is not to be convicted on a guess, however shrewd that guess may be.

[30]         The approach to be applied in cases that are based on circumstantial evidence underscores the need for proven facts from which to draw reasonable inferences in deciding whether the Crown has proved its case beyond a reasonable doubt.  Reasonable inferences to be drawn from proven facts must be distinguished from mere speculation.  Doherty J.A., in R. v. Morrissey (1995), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 (Ont. C.A.) at 209, described the distinction in this fashion:

A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation....

[31]         The British Columbia Court of Appeal considered reasonable inferences as opposed to speculation in the two cases of R. v. Li, R. v. Zheng, 2009 BCCA 21, and R. v. Gauthier, 2009 BCCA 24.  In both cases, the appeal from conviction was dismissed because the only reasonable inference that could be drawn from the proven evidence was the guilt of the accused.  Although the evidence was circumstantial in both cases, there was no innocent explanation provided by the accused.  The only reasonable inference from the accused’s fingerprint being on a beer bottle strewn amongst property that had been gone through in a break and enter in Gauthier was that he committed the break and enter.  Theories of how the fingerprint or the bottle could have gotten there were only speculation.  Similarly, fingerprints on items involved in a marijuana grow op in Li and Zheng, taken with other circumstantial evidence led, in the absence of an innocent explanation, to the only reasonable inference that the accuseds were guilty of the charges.

[32]         In R. v. To, the court considered whether it could be inferred that an accused, charged with possession for the purpose of trafficking, had the requisite knowledge for possession.  In finding that knowledge was the only reasonable inference and was proved beyond a reasonable doubt, McEachern C.J.B.C. held at para. 41:

It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can be reached if there is the slightest competing possibility.  The criminal law requires a very high degree of proof, especially for inferences consistent with guilt, but it does not demand certainty.  I do not think it could properly be said that an inference of knowledge in this case would be unreasonable or unsupported by the evidence.

[33]         In R. v. J. (G.L.), [1997] B.C.J. No. 2994 (C.A.), our Court of Appeal stated at para. 29:

[E]ach individual circumstance cannot be weighed in isolation to see whether or not it supports the guilt of the accused but rather all of the circumstances taken together must be considered to determine whether or not the evidence, as a whole, was reasonably capable of supporting the trial judge's conclusion.

[34]         The trier of fact must consider whether, based on the whole of the evidence, the Crown has proved the guilt of the accused beyond a reasonable doubt.

b)  Circumstantial evidence in drug cases

[35]         In Brown 2007, Hill J., in his usual thorough fashion, wrote at paras. 41-46:

41        Circumstantial evidence is "evidence that tends to prove a factual matter by proving other events or circumstances from which the occurrence of the matter at issue can be reasonably inferred": R. v. Cinous (2002), 162 C.C.C. (3d) 129 (S.C.C.) at 172. Put differently but to the same end, "Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts": Shepherd v. The Queen (1990), 170 C.L.R. 573 (H.C. Aust.) at 579. Accordingly, circumstantial evidence frequently involves proof of a primary fact or facts and the drawing of an intermediate factual conclusion or inference for consideration with the whole of the evidence to determine whether guilt has been established beyond a reasonable doubt.

42        Circumstantial inferences are ones which "can be reasonably and logically drawn from a fact or group of facts established by the evidence": R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.) at 209. Most cases "will involve hiatuses in the evidence which can be filled only by inference": Lameman v. Canada (Attorney General), [2006] A.J. No. 1603 (C.A.) at para. 87. "The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess": U.S.A. v. Huynh (2005), 200 C.C.C. (3d) 305 (Ont. C.A.) at 307. The same point is made in C.P.R. Co. v. Murray, [1932] S.C.R. 112 at 117 in adopting the following dicta from Jones v. Great Western Railway Co. (1930), 47 T.L.R. 39 at 45:

The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference. The cogency of a legal inference of causation may vary in degree between practical certainty and reasonable probability. Where the coincidence of cause and effect is not a matter of actual observation there is necessarily a hiatus in the direct evidence, but this may be legitimately bridged by an inference from the facts actually observed and proved. Indeed, as Lord Shaw said in Marshall v. Owners of SS. Wild Rose [26 T.L.R. 608; [1910] A.C. 486, at 494.]: "The facts in every case may leave here and there a hiatus which only inference can fill."

43        Some inferences are strong and capable of creating practical certainty while others are weaker: Lameman v. Canada (Attorney General), at para. 94. A reasonable and logical inference to be drawn from circumstantial evidence need not be an easy one to draw (R. v. Katwaru (2001), 153 C.C.C. (3d) 433 (Ont. C.A.) at 444) or indeed the most obvious or compelling inference: R. v. Munoz, [2006] O.J. No. 446 (S.C.J.) at para. 21-31. The trier of fact, of course, assesses the evidence "in light of common sense and human experience": U.S.A. v. Huynh, at 307. The court is obliged to consider the cumulative effect of the evidence said to point toward guilt on the part of the accused. Especially in a case premised wholly or in large measure upon circumstantial evidence, it is improper to isolate a particular piece of evidence and to then discuss any probative force flowing therefrom without regard to the context of the totality of the evidence: R. v. Stewart (1976), 31 C.C.C. (2d) 497 (S.C.C.) at 506; The Queen v. Hillier, [2007] H.C.A. 13 at para. 48.

44        The trier of fact cannot be satisfied beyond a reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances: The Queen v. Hillier, at para. 46.

45        In drug possession cases, the value of the illicit drug may contribute circumstantially to evidence pointing toward guilt, as stated in R. v. McIntosh, at para. 45:

The retail value of the drug associated with a person is relevant not only to whether he or she had knowledge the substance was a narcotic (R. v. Blondin (1970), 2 C.C.C. (2d) 118 (B.C. C.A.) at 121 (aff'd. on appeal (1971), [1971] S.C.J. No. 42, 4 C.C.C. (2d) 566n (S.C.C.)) but also to whether the person had knowledge of the substance itself (R. v. Fredericks, [1999] O.J. No. 5549 (C.A.) at para. 3-4).

46        The prosecution may, in appropriate cases, introduce evidence of motive as circumstantial evidence of guilt. Caution must be exercised in drawing an inference that an accused's level of income, standing alone, supports involvement in a for-hire crime as stated in R. v. Mensah (2003), 9 C.R. (6th) 339 (Ont. C.A.) at 342-3 (leave to appeal refused [2003] S.C.C.A. No. 207:

I agree with the general proposition that evidence that an accused person has a certain level of income, or that he is in receipt of a form of government assisted income, is insufficient, in and of itself, to support an inference that the accused has a motive to commit a profit-motivated crime2. I also agree that such evidence should not be used as the basis for a disguised form of propensity reasoning.

[36]         Having dealt with some of the general legal principles with which I have to instruct myself, I now move on to the review of the evidence and the making of my findings of fact.

The Law of Importing a Controlled Substance

[37]         The leading authority on the offence of importing narcotics or causing it to be brought into Canada is Bell v. The Queen, [1983] 2 S.C.R. 471, 8 C.C.C. (3d) 97.  McIntyre J. writing the majority judgment, defined “importing into Canada” in accordance with its ordinary and natural meaning (at 110-11):

… importing a narcotic cannot be a continuing offence. … In my view, since the Narcotic Control Act does not give a special definition of the word, its ordinary meaning should apply and that ordinary meaning is simply to bring into the country or to cause to be brought into the country. With the utmost respect for judges who have taken a different view, I am of the opinion that the characterization of importing a narcotic as a continuing offence is misconceived. The offence is complete when the goods enter the country. Thereafter, the possessor or owner may be guilty of other offences, such as possession, possession for the purpose of trafficking, or even trafficking itself, but the offence of importing has been completed and the importer in keeping or disposing of the drug has embarked on a new criminal venture.

[38]         The British Columbia Court of Appeal in R. v. Miller (1992), 12 C.C.C. (3d) 54 (B.C.C.A.), followed the principles set out in Bell.  Lambert J.A. concluded at 82:

I do not think that I would be justified in concluding that Mr. Justice McIntyre was saying that, in the Bell case, the offence was completed as soon as the aircraft, bound from Jamaica to Canada, passed into Canadian air space; or that any landing in Canada, or any unloading of the goods containing the narcotics, was unnecessary for the completion of the offence. I note, particularly, that Mr. Justice Pennell, in Re Martin and The Queen, said, at p. 228:

It would appear, then, that there was an "importation" or "bringing in" of the marijuana in the ordinary sense of the word, when the stereo speaker crossed the territorial borders of Canada and came to rest in the customs warehouse.

a)  Knowledge of the controlled substance being imported

[39]         The Crown must prove beyond a reasonable doubt that the accused knew that the substance was a controlled one, but not necessarily that he had knowledge of the specific drug.  In R. v. Blondin, 2 C.C.C. (2d) 118 (B.C.C.A.), McFarlane J.A. stated at 122:

I agree with my brother Robertson that the learned trial Judge was wrong in instructing the jury that the Crown must prove beyond reasonable doubt that the respondent knew the substance was cannabis resin. I agree also it would be wrong to instruct the jury that proof of knowledge that the substance was one which it would be unlawful to import is itself sufficient to support a conviction. The offence of smuggling goods which may be imported lawfully on disclosure and payment of customs duty is, for this purpose, I think, essentially different from that of importing a narcotic which Parliament has declared to be a serious offence. I refer to the statement by Cartwright, J., as he then was, in Beaver v. The Queen, 118 C.C.C. 129 at p. 131, [1957] S.C.R. 531, 26 C.R. 193, that Parliament regards dealing in narcotics as conduct "harmful in itself". The importation of narcotics has been forbidden except by license issued under authority of the Governor in Council pursuant to s. 12 of the statute [Narcotic Control Act, 1960-61 (Can.), c. 35].

I therefore agree with my brother Robertson that the jury should have been instructed that the onus on the Crown was to prove beyond a reasonable doubt that the respondent knew the substance was a narcotic, although not necessarily cannabis resin.

b)  Constructive possession

[40]          Section 2 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, adopts the definition of “possession” from s. 4(3) of the Criminal Code, which provides:

      4(3)      For the purposes of this Act,

(a)  a person has anything in possession when he has it in his personal possession or knowingly

(i)   has it in the actual possession or custody of another person, or

(ii)  has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b)  where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

[41]         In R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, Fish J., for the majority, wrote:

[15]      For the purposes of the Criminal Code, "possession" is defined in s. 4(3) to include personal possession, constructive possession, and joint possession. Of these three forms of culpable possession, only the first two are relevant here. It is undisputed that knowledge and control are essential elements common to both.

[16]      On an allegation of 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): Beaver v. The Queen, [1957] S.C.R. 531, at pp. 541-42.

[17]      Constructive possession is established where the accused did not have physical custody of the object in question, but did have it "in the actual possession or custody of another person" or "in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person." (Criminal Code, s. 4(3)(a)). Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his "use or benefit" or that of another person.

[42]         Again, in R. v. Webster, 2008 BCCA 458, Frankel J.A., for the court, wrote at paras. 42-44:

[42]      Turning to “consent and control”, what must be kept in mind is that for a person to be deemed to be “in possession” of an item, he or she need not have in fact exercised power over it; all that is required is an ability to exercise some power.  This is discussed in R. v. Savory (1996), 94 O.A.C. 318, leave refused, [1997] 2 S.C.R. xv, upholding the conviction of a driver of a van in relation to drugs another person had concealed in the vehicle.  Savory was cited with approval by this Court in R. v. Abdel-Malek (1997), 90 B.C.A.C. 147 at para. 10.

[43]      As reproduced in paragraphs 3 and 4 of Savory, the jury in that case asked the following question after deliberating for several hours:

My lady, we, this jury, understand that possession constitutes both knowledge and control.  We would request clarification of what constitutes control.  If Terrell had primary possession of cocaine and Savory (a) knew this and (b) allowed him to remain in his van and drive around, does that constitute control?

And received the following answer:

First of all, you are correct.  Possession requires both knowledge and control.  There must be knowledge that the cocaine is in the van and as I told you this morning, control means that a person could exercise a directing or restraining power over the article, over the cocaine.  So, control means that a person could exercise a directing, guiding or restraining power over the cocaine.  I also explained this morning — it's a long time ago, wasn't it? — to establish actual possession in the case, you will have to find that David Savory knew the cocaine was concealed in the van and that he was able to exercise a directing, guiding or restraining power over it.

In other words, members of the jury, did the accused have a sufficient level of control that you are satisfied beyond a reasonable doubt that he, too, was in possession.

[Emphasis added in Webster.]

[44]      The Court of Appeal, referring to the definition of possession in s. 4(3)(b) of the Code, held that this instruction was sound:

[6]        The appellant submitted that the trial judge erred in her recharge on constructive possession and specifically, in her explanation of the meaning of consent.  Counsel agreed that consent means “some measure of control”, but disagreed that “some measure of control” means that the appellant “could” or “was able to” exercise directing, guiding or restraining power over the drugs.  The appellant submitted that control means that the appellant did in fact exercise control over the drugs or intended to exercise control over the drugs.  Neither mere passive acquiescence to his passenger's possession of drugs, nor merely consorting with the passenger nor having control of the car was sufficient to constitute control.

[7]        Control for the purpose of constructive possession does not require that the accused did in fact exercise control over the object in question. In R. v. Terrence (1980), 47 N.R. 13; 55 C.C.C. (2d) 183 (Ont. C.A.), affd. [1983] 1 S.C.R. 357; 47 N.R. 8; 4 C.C.C. (3d) 193, the Supreme Court accepted that control means power or authority over the object in question.  Similarly, in R. v. Chambers (1985), 9 O.A.C. 228; 20 C.C.C. (3d) 440 (C.A.), the court held that the right to grant or withhold consent to drugs being stored in a bedroom was sufficient to constitute control.  Again, control is established if there is the right to grant or withhold consent. It is not necessary that the consent in fact be granted or withheld.

[9]        The trial judge’s recharge on control was consistent with the above authority.  She correctly asked the jury to determine whether the appellant was able to exercise a directing, guiding or restraining power over the drugs.  It was not necessary for the jury to find that the appellant did in fact exercise a directing, guiding or restraining power over the drugs.

[Emphasis added in Webster.]

See also:  R. v. Black, [1996] B.C.J. No. 3148 (C.A.); R. v. Bauer, 2003 BCCA 138, 180 B.C.A.C. 42 at para. 12; R. v. Singh, 2004 BCCA 428 at para. 10, 188 C.C.C. (3d) 129; R. v. Egresits, 2002 BCCA 163, 165 B.C.A.C. 63; R. v. Chualna, 2003 BCCA 650, 181 C.C.C. (3d) 192; R. v. Li, R. v. Zheng; R. v. Nguyen, 2009 BCCA 89, 243 C.C.C. (3d) 392; R. v. Rong, 2010 BCCA 165, 285 B.C.A.C. 170; and R  v. Ta, 2010 ABCA 145, 487 A.R. 168.

Party Liability – Application of s. 21 to both Conspiracy and the Substantive Counts

[43]         Section 21 of Criminal Code sets out party liability:

      21. (1)  Every one is a party to an offence who

(a)  actually commits it;

(b)  does or omits to do anything for the purpose of aiding any person to commit it; or

(c)  abets any person in committing it.

[44]         The law of parties to an offence has been recently addressed by the Supreme Court of Canada in R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411.  At paras. 13-14 the issue of actus reus was addressed:

[13]      Canadian criminal law does not distinguish between the principal offender and parties to an offence in determining criminal liability. Section 21(1) of the Criminal Code makes perpetrators, aiders, and abettors equally liable:

...

The person who provides the gun, therefore, may be found guilty of the same offence as the one who pulls the trigger. The actus reus and mens rea for aiding or abetting, however, are distinct from those of the principal offence.

[14]      The actus reus of aiding or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence. While it is common to speak of aiding and abetting together, the two concepts are distinct, and liability can flow from either one. Broadly speaking, “[t]o aid under s. 21(1)(b) means to assist or help the actor. . . . To abet within the meaning of s. 21(1)(c) includes encouraging, instigating, promoting or procuring the crime to be committed”: R. v. Greyeyes, [1997] 2 S.C.R. 825, at para. 26. The actus reus is not at issue in this appeal. As noted earlier, the Crown argued at trial that Mr. Briscoe was both an aider and an abettor. The trial judge’s finding that Mr. Briscoe performed the four acts of assistance described above is not disputed.

[45]         The Court then addressed mens rea at paras. 15-18:

[15]      Of course, doing or omitting to do something that resulted in assisting another in committing a crime is not sufficient to attract criminal liability. As the Court of Appeal for Ontario wrote in R. v. F. W. Woolworth Co. (1974), 3 O.R. (2d) 629, “one does not render himself liable by renting or loaning a car for some legitimate business or recreational activity merely because the person to whom it is loaned or rented chooses in the course of his use to transport some stolen goods, or by renting a house for residential purposes to a tenant who surreptitiously uses it to store drugs” (p. 640). The aider or abettor must also have the requisite mental state or mens rea. Specifically, in the words of s. 21(1)(b), the person must have rendered the assistance for the purpose of aiding the principal offender to commit the crime.

[16]      The mens rea requirement reflected in the word “purpose” under s. 21(1)(b) has two components: intent and knowledge. For the intent component, it was settled in R. v. Hibbert, [1995] 2 S.C.R. 973, that “purpose” in s. 21(1)(b) should be understood as essentially synonymous with “intention”. The Crown must prove that the accused intended to assist the principal in the commission of the offence. The Court emphasized that “purpose” should not be interpreted as incorporating the notion of “desire” into the fault requirement for party liability. It is therefore not required that the accused desired that the offence be successfully committed (Hibbert, at para. 35).  The Court held, at para. 32, that the perverse consequences that would flow from a “purpose equals desire” interpretation of s. 21(1)(b) were clearly illustrated by the following hypothetical situation described by Mewett and Manning:

If a man is approached by a friend who tells him that he is going to rob a bank and would like to use his car as the getaway vehicle for which he will pay him $100, when that person is . . . charged under s. 21 for doing something for the purpose of aiding his friend to commit the offence, can he say “My purpose was not to aid the robbery but to make $100”? His argument would be that while he knew that he was helping the robbery, his desire was to obtain $100 and he did not care one way or the other whether the robbery was successful or not.

(W. Mewett and M. Manning, Criminal Law (2nd ed. 1985), at p. 112)

The same rationale applies regardless of the principal offence in question. Even in respect of murder, there is no “additional requirement that an aider or abettor subjectively approve of or desire the victim’s death” (Hibbert, at para. 37 (emphasis deleted)).

[17]      As for knowledge, in order to have the intention to assist in the commission of an offence, the aider must know that the perpetrator intends to commit the crime, although he or she need not know precisely how it will be committed. That sufficient knowledge is a prerequisite for intention is simply a matter of common sense. Doherty J.A. in R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516, provides the following useful explanation of the knowledge requirement which is entirely apposite to this case (at paras. 88-89):

. . . a person who is alleged to have aided in a murder must be shown to have known that the perpetrator had the intent required for murder under s. 229(a): R. v. Kirkness (1990),60 C.C.C. (3d) 97 (S.C.C.) at 127.

The same analysis applies where it is alleged that the accused aided a perpetrator in the commission of a first degree murder that was planned and deliberate. The accused is liable as an aider only if the accused did something to assist the perpetrator in the planned and deliberate murder and if, when the aider rendered the assistance, he did so for the purpose of aiding the perpetrator in the commission of a planned and deliberate murder. Before the aider could be said to have the requisite purpose, the Crown must prove that the aider knew the murder was planned and deliberate. Whether the aider acquired that knowledge through actual involvement in the planning and deliberation or through some other means, is irrelevant to his or her culpability under s. 21(1).

[18]      It is important to note that Doherty J.A., in referring to this Court’s decision in R. v. Kirkness, [1990] 3 S.C.R. 74, rightly states that the aider to a murder must “have known that the perpetrator had the intent required for murder”. While some of the language in Kirkness may be read as requiring that the aider share the murderer’s intention to kill the victim, the case must now be read in the light of the above-noted analysis in Hibbert. The perpetrator’s intention to kill the victim must be known to the aider or abettor; it need not be shared. Kirkness should not be interpreted as requiring that the aider and abettor of a murder have the same mens rea as the actual killer. It is sufficient that he or she, armed with knowledge of the perpetrator’s intention to commit the crime, acts with the intention of assisting the perpetrator in its commission. It is only in this sense that it can be said that the aider and abettor must intend that the principal offence be committed.

[46]         The Court then continued on with an analysis of wilful blindness:

[19]      Having set out the relevant legal principles for assessing the mens rea of a person charged with aiding and abetting murder, I now turn to Mr. Briscoe’s main argument in this appeal: that the doctrine of wilful blindness should find no application in determining the requisite knowledge for murder, either as a principal or as an aider or abettor.

[20]      In essence, Mr. Briscoe argues that wilful blindness is but a heightened form of recklessness which is inconsistent with the very high mens rea standard for murder under s. 229(a) of the Criminal Code. He argues further that allowing fault for murder, as either a principal or party, to be established by wilful blindness could run afoul of the principle that “subjective foresight of death” is the minimum standard of fault for murder under s. 7 of the Canadian Charter of Rights and Freedoms: R. v. Martineau, [1990] 2 S.C.R. 633, at p. 645. The Court of Appeal rejected these arguments and, in my view, rightly so. As I will explain, wilful blindness, correctly delineated, is distinct from recklessness and involves no departure from the subjective inquiry into the accused’s state of mind which must be undertaken to establish an aider or abettor’s knowledge.

[21]      Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. See Sansregret v. The Queen, [1985] 1 S.C.R. 570, and R. v. Jorgensen, [1995] 4 S.C.R. 55. As Sopinka J. succinctly put it in Jorgensen (at para. 103), “[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?”

[22]      Courts and commentators have consistently emphasized that wilful blindness is distinct from recklessness. The emphasis bears repeating. As the Court explained in Sansregret (at p. 584):

. . . while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry.

[Emphasis added in Briscoe.]

[23]      It is important to keep the concepts of recklessness and wilful blindness separate. Glanville Williams explains the key restriction on the doctrine:

The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law. It is, at the same time, an unstable rule, because judges are apt to forget its very limited scope. A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice. Any wider definition would make the doctrine of wilful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge. [Emphasis added in Briscoe.]

(Criminal Law: The General Part (2nd ed. 1961), at p. 159 (cited in Sansregret, at p. 586).)

[24]      Professor Don Stuart makes the useful observation that the expression “deliberate ignorance” seems more descriptive than “wilful blindness”, as it connotes “an actual process of suppressing a suspicion”. Properly understood in this way, “the concept of wilful blindness is of narrow scope and involves no departure from the subjective focus on the workings of the accused’s mind” (Canadian Criminal Law: A Treatise (5th ed. 2007), at p. 241). While a failure to inquire may be evidence of recklessness or criminal negligence, as for example, where a failure to inquire is a marked departure from the conduct expected of a reasonable person, wilful blindness is not simply a failure to inquire but, to repeat Professor Stuart’s words, “deliberate ignorance”.

[47]         This issue was canvassed in R. v. J.F., 2011 ONCA 220, 269 C.C.C. (3d) 258.  At para. 14, the court states that s. 21(1) of the Criminal Code applies to conspiracy to commit a substantive offence.  At para. 16, the court adopted a quote from the decision in R. v. McNamara (No. 1) (1981), 56 C.C.C. (2d) 193 (Ont. C.A.) that an accused could be convicted as a party to a conspiracy “if, at any time before the object of the conspiracy had been attained …they abetted or encouraged any of the conspirators to pursue its object” (emphasis added in J.F.).  At para. 18, the court also referred to R. v. Vucetic (1998), 129 C.C.C. (3d) 178 (Ont. C.A.), as authority for that principle.

[48]         At para. 23 of J.F., the court held that party liability can apply to aiding or abetting a conspiracy:  “[l]iability for aiding a conspiracy would require proof that the accused did or omitted to do something for the specific purpose of aiding another to commit the offence of conspiracy.”

[49]         At para. 21 of J. F., the court refers to the following quote from Vucetic at para. 8 with respect to aiding and abetting as a basis for liability:

However, in order to find him guilty as an aider and abettor, the jury would have to be instructed that the appellant knew the object of the conspiracy and that his assistance was intended to assist the conspirators in attaining their unlawful criminal object.

[50]         Briscoe has been applied by the British Columbia Court of Appeal in R. v. Vu, 2011 BCCA 112 at paras. 58-60, 270 C.C.C. (3d) 546, discussing actus reus and mens rea, and at para. 64 discussing wilful blindness.

The Meaning of Reasonable Doubt

[51]         In R. v. Lifchus, [1997] 3 S.C.R. 320 at 336-37, 118 C.C.C. (3d) 1 at 14, the Supreme Court of Canada proposed a model charge on reasonable doubt.  Later, it held a rehearing and on January 30, 1998, issued an amendment to the last paragraph.  The amended suggested charge reads as follows:

Instructions pertaining to the requisite standard of proof in a criminal trial of proof beyond a reasonable doubt might be given along these lines:

The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty.

      What does the expression "beyond a reasonable doubt" mean?

The term "beyond a reasonable doubt" has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.

On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.

Offence as Particularized in Charge Must Be Proved

[52]         In R. v. Saunders, [1990] 1 S.C.R. 1020, 56 C.C.C. (3d) 220, the accused was charged with conspiracy to import heroin.  At trial the evidence was adduced for conspiracy to import cocaine.  McLachlin J. (as she then was) stated the “fundamental principle of criminal law” at 223:

I am of the view that the appeal must be dismissed. It is a fundamental principle of criminal law that the offence, as particularized in the charge, must be proved. In Morozuk v. The Queen, [1986] 1 S.C.R. 31, at p. 37, this Court decided that once the Crown has particularized the narcotic in a charge, the accused cannot be convicted if a narcotic other than the one specified is proved. The Crown chose to particularize the offence in this case as a conspiracy to import heroin. Having done so, it was obliged to prove the offence thus particularized. To permit the Crown to prove some other offence characterized by different particulars would be to undermine the purpose of providing particulars, which is to permit "the accused to be reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence and a fair trial": R. v. Côté, [1978] 1 S.C.R. 8, at p. 13.

See also R. v. Gauthier (1995), 62 B.C.A.C. 71.

D.       REVIEW OF EVIDENCE AND FINDINGS OF FACT

[53]         In this trial the Crown called 25 witnesses.  The majority were current or former members of the RCMP.  In addition to the police officers, the Crown called three witnesses from the Canadian Border Services Agency (“CBSA”).  In addition, the Crown introduced 140 intercepted communications into evidence at this trial.  Mr. Daniel Markovitz, counsel for Johal, introduced a few more intercepted communications into evidence.

[54]         In the intercepted communications that were introduced into evidence, there were two unique features.  When Johal and Kandola wished to discuss anything they considered to be sensitive they would either speak in Punjabi or, more often, they would make references to using “the other phone” or the “other one”.  I find as a fact that the references to “the other one” or “the other phone” were references to the phones that were supplied by Johal to Kandola and Riar and were not subject to interceptions.  While the dedicated phones were not subject to interception, a few of them were recovered when Riar, Johal and Kandola were arrested on October 25, 2007.  When referring to the evidence in which Kandola, Riar, Johal and Gurjit Johal (Shminder Johal’s brother) speak in Punjabi, such references are indicated by the use of “*...*”.

[55]         With the recovery of some of the cell phones that were not subject to interception (hereinafter referred to as “dedicated phones”) an expert was able to advise the Court of the calls, but not the content of the calls, that were made to and from those phones.  Two other dedicated phones were not recovered and consequently it was impossible for the expert to give an opinion as to who was using these phones when contact was made to the dedicated phones that had been recovered from Kandola, Johal and Riar on their arrest on October 25, 2007.

[56]         Given the nature of the charges and the complexity of the evidence, it is necessary to lay out the details of the intercepted calls, the accuseds’ use of the dedicated phones and the police surveillance.  To give context to each accused’s involvement and show their respective roles in the counts alleged in the indictment, a certain amount of repetition of this evidence is necessary.

Dedicated Phones Seized by the Police

[57]         The dedicated phones (not subject to interception) that were seized by the police included:

Exhibit 13 is a Motorola K1 cell phone.  Seized by Const. Parahoniak from the left front shirt pocket of Baljinder Kandola on his arrest on October 25th, 2007.  The phone number of that cell phone was 778-688-0329.

Exhibit 21 is a Motorola K1 cell phone. It was seized by Const. Molison at 00:45 on October 25, 2007, from the center console of a GMC Yukon, BCLP# AA9208 which belonged to Mr. Riar. The number of this cell phone was 778-688-5489.

Exhibit 24 is a Motorola K1 cell phone.  It was seized by Const. Gliona and Cpl. Sellinger at approximately 04:52 on October 25, 2007, from between the driver’s seat and center console of a GMC Yukon BCLP# D53398 (vehicle driven by Shminder Johal). The phone number of this cell phone was 778-997-0269.

[58]         The intercepted phones that were seized by the police included:

Exhibit 20 is a Nokia 3390 mobile phone.  It was seized by Cst. Molison at 00:45 on October 25, 2007, on the ground beside Mr. Riar on his arrest on October 25, 2007.  The phone number of this mobile was 778-889-3225.

Exhibit 23 is a Samsung SHG-U600 mobile phone.  It was seized by Cst. Gliona and Cpl. Sellinger at approximately 04:50 on October 25, 2007, from the front console of GMC Yukon, BCLP # D53398 driven by Shminder Johal.  The number of the cell phone was 604-724-4949. This phone had a “puk lock” security system attached to it.

Exhibit 26 is a Nokia N95 mobile phone.  It was seized by Cst. Wong from the kitchen counter of Kandola’s residence at 5938-165th Street, Surrey.  The cell number was 604-339-6127.  This phone also had a “puk luck” security system attached to it.

a)  Dedicated cell phone seized from Johal on October 25, 2007 [778-997-0269]

[59]         Four telephone numbers were in the “Contacts” in the SIM card data:

·        778-688-0329 - “Cindy” [Phone number of phone seized from Kandola on October 25, 2007, on his arrest];

·        778-688-5489 – “Jessica” [Phone number of phone seized from Riar on October 25, 2007, on his arrest];

·        778-996-9785 – “Betty” [Johal testified this was Gurjit Johal, his brother];

·        778-997-0495 – “Alice” [Johal testified this was Danny D.].

b)  Dedicated phone seized from Kandola on October 25, 2007 [778-688-0329]

[60]         One telephone number was in the “Contacts” in the SIM card data:

·        778-997-0269 – “Work” [Phone number of phone seized from Johal on October 25, 2007, on his arrest].

c)  Dedicated phone seized from Riar on October 25, 2007 [778-688-5489]

[61]         Six telephone numbers were in the “Contacts” in the SIM card data:

·        The first number was 778-997-0269 – “S” [Phone number of non-intercepted cell phone seized from Johal on October 25, 2007, on his arrest.].

d)  Johal’s use of dedicated cell phone system to communicate with Kandola and Riar

[62]         Johal frequently utilized a dedicated cell phone to communicate with Kandola and Riar.  Johal only had four phone numbers in the “Contacts” of this phone.  Two of these contact numbers were for one of the phones seized from Kandola on his arrest and one of the phones seized from Riar on his arrest.  The phones were used exclusively for communication about matters pertaining to preparations for the crossings into Canada from the U.S.A. and matters pertaining to crossings from Canada into the U.S.A.  Johal had provided phones to Kandola and Riar in May 2007.  In addition, both Kandola and Johal testified that they used a different set of dedicated cell phones from early 2007 until obtaining other phones from Johal in May 2007.

[63]         Although the dedicated cell phones were not subject to interception, the phone records for these cell phones were obtained.  The phone records show that use of the dedicated cell phones was confined to communications between:

·        Johal and Kandola;

·        Johal and Riar;

·        Johal and the other two phone numbers.  As mentioned, the other two numbers were designated on Johal’s SIM card as “Betty” and “Alice”.

[64]         From the evidence, I find that Kandola and Johal had been communicating on dedicated cell phones since January or February 2007.  The purpose of these dedicated phones was to avoid being wiretapped.  Having dedicated cell phones was Johal’s idea.  Kandola and Riar obtained new dedicated cell phones in May 2007.  Kandola’s evidence was that the first dedicated cell phone broke.  Johal’s evidence was that Kandola lost the first dedicated cell phone and since the time was coming up for the cell phones to expire, he thought they better get new phones.  I also find as a fact that the dedicated cell phones were to be used to communicate only with each other in relation to the border crossings.

e)  Who were “Alice” and “Betty” listed on Johal’s “Contacts” in the SIM Card directory of his dedicated phone?

[65]         In cross-examination, Johal was asked a number of times about the identity of “Betty” and “Alice”.  At first his answer was that he had no idea who they were.  After being cross-examined for two days, however, Johal changed his testimony.  He finally testified that after reviewing the records, he was able to say that “Alice” was Danny and “Betty” was Gurjit Johal, Shminder Johal’s brother (hereinafter referred to as “Gurj” or “Gurjit”).

[66]         Like most of his testimony, I reject Johal’s evidence in this regard.  Johal’s testimony was that he gave these two dedicated phones to his employees, Danny and Gurj so that they could contact him about cash sales for cars.  Quite a few of the calls between “Alice” and Johal were, however, made in the middle of the night and usually before and after crossings into Canada by Johal and Riar through Kandola’s Primary Inspection Line (“PIL”) booth at the Pacific Highway Border Crossing (“PHBC”).  Apart from that, Johal testified that “Alice” lived in Surrey and at 57th and Knight Street in Vancouver, yet the cell site for the calls from “Alice” was from a location in Lynn Valley, North Vancouver.  Given the number and timing of these calls from Johal to Alice, there is an irresistible inference that “Alice” was an unnamed member of the alleged conspiracy.  I reject Johal’s testimony that “Alice” was Johal’s employee, Danny.

f)   Source of dedicated cell phones and payment of bill

[67]         In examination-in-chief, Johal testified that he obtained the dedicated phones from “Dustin” who owned a business called “Celluland” on Granville.  Johal would tell Dustin that he needed the phones and Johal would pay the monthly bill in advance.  There was no mention in Johal’s direct testimony about Danny providing phones.  In cross-examination, however, Johal testified that Celluland shut down in 2006 and that Danny (the same person who Johal said was “Alice”) started getting phones for Johal.  Regarding the phone bills and Dustin, Johal testified that he never saw the phone bill – Dustin would say how much it was and he (Johal) would simply pay it.

g)  The subscriber information for the dedicated phones

[68]         The subscriber information for the dedicated phones that the police were able to recover did not list Johal, Dustin or Danny as the subscribers.  The evidence  indicates that subscriber information for Kandola’s dedicated phone ((778) 688-0329) was as follows:

February 1, 2007 - March 10, 2007:

Billing Name: Ms. S.P., (redacted)

User Name: Ms. S.P., (redacted)

User address: (Redacted), Vancouver B.C. (postal code redacted)

May 9, 2007 - October 26, 2007:

Billing Name: D.D.C.

User Name: D.D.C. Ltd

User address:  Attn: T.A., (address redacted), W., Vancouver, B.C.(postal code redacted).

[69]         Similarly, the subscriber information for Johal’s dedicated phone ((778) 997-0269) shows the following:

Billing Name: W.C.

User name: W.C.

User address: Attn: W.C. Inc., (address redacted, Vancouver, B.C. (postal code redacted)

[70]         The subscriber information for Riar’s dedicated phone ((778) 688-5489) shows the following:

February 1, 2007 - March 9, 2007:

Billing Name: Ms. O.A.

User Name: Ms O.A.

User Address: (address redacted), Surrey, B.C.(postal code redacted)

May 9, 2007 - October 26, 2007

Billing Name: W.C.

User name: W.C. Inc.,

User Address: Attn: W.C. Inc, (address redacted, Vancouver, B.C. (postal code redacted)

[71]         There was considerable use of these dedicated phones between Johal and Kandola, between Johal and Riar, and between Johal and “Alice” and “Betty”.  I will refer to these later in the tables that I have prepared below.  However, I now intend to refer to the telephone contacts that were made, or attempted to be made, between Johal and Kandola and Johal and Riar on these dedicated phones.

Communication between Johal and Kandola on the Dedicated Cell Phones

 

Date of call

Time of call and content of Text messages

Duration of call

May, 19th, 2007

§  1:00:24 p.m.

§  1:19:19 p.m.

§  4:40:33 p.m.

§  4:42:47 p.m.

 

(157 seconds)

 (157 seconds)

 (7 seconds)

(256 seconds)

June 25th, 2007

§  2:31:46 p.m.

(112 seconds)

June 26th, 2007

§  10:46:29 a.m.

§  8:54:02 p.m.

§  10:47 p.m.

 

(310 seconds)

 (4 seconds)

 (102 seconds)

July 1, 2007

§  12:17:09 p.m.

(1095 seconds)

July 10, 2007

§  3:09:32 p.m.

§  3:10:51 p.m.

 

(19 seconds)

(114 seconds)

July 23, 2007

§  10:12:49 p.m.

(4 seconds)

July 25, 2007

§  9:06:13 p.m.

§  10:01:01  (see Call 22)

§  10:23:57

 

(4 seconds)

(5 seconds)

 (102 seconds)

July 27, 2007

§  21:05:20

(1 second

July 28, 2007

§  (see Call 24)

§  05:23:19

 

(55 seconds)

August 15, 2007

§  23:13:10 (see call 35)

§  23:33:42

 

(8 seconds)

 (88 seconds)

August 27, 2007

§  16:13

(5 minutes, 25 seconds)

August 3, 2007

§  12:22:08

(4 seconds)

September 4, 2007

§  11:56:00 (see call 51)

§   

§  15:00:00

§  15:01:52

§  16:45:13

§  17:45:50

§  21:20:55

(3 minutes, 33 seconds)

(5 seconds)

(7 seconds)

(6 seconds)

(7 seconds)

(12 seconds)

September 5, 2007

§  06:11 – text message from Kandola “9 or 3”

§  12:27:56

§  (see Call 55)

§  16:40:10

 

 

(11 seconds)

 

(4 minutes, 43 seconds)

September 6, 2007

§  13:18:11

§   

§  23:01 – text message from Kandola: “2 pls” [Evidence of Cpl. Kuan]

§  23:59:28

 

(1 minutes, 52, seconds)

 

 

 

 (9 minutes, 48 seconds)

October 9, 2007

§  (see Call 103)

§  20:16:06

§   

§  20:20:09

 

(1 minute, 23 seconds)

(1 minute, 59 seconds)

October 23, 2007

§  12:40:39 

§  12:42:44 (see Call 126)

§   

(4 seconds)

 (7 minutes, 42 seconds)

 

October 24, 2007

§  (see Call 136)

§  12:30:57

§  series of text messages between Kandola and Johal

§  20:02:39 – Johal to Kandola: Everything cool

§  20:03:40 – Kandola to Johal: Yes

§  20:04:23 – Johal to Kandola: 12

§  20:10:06 – Kandola to Johal: Yes

§  20:10:37 – Johal to Kandola: Ok

 

(29 seconds)

October 25, 2007

§  text message exchange between Kandola and Johal

§  00:03:43 – Kandola to Johal: Aja

§  00:04:25 – Johal to Kandola: Ok

 

 

[72]         Of particular interest in these calls is the timing and frequency of the calls between Johal and Kandola leading up to the border crossings on July 28, September 7 and October 25, 2007.  Also of some interest are the text messages between Kandola and Johal immediately before Johal’s crossing into Canada (in bold).

Communication between Johal and Riar on the Dedicated Cell Phones

 

Date

Time of call and content of Text messages

Duration of call

June 25th, 2007

3:03:26 p.m.

(56 seconds)

June 26th, 2007

§  10:44:35 a.m.

§  11:17:32 a.m.

§  12:36:56 p.m.

§  2:12:57 p.m.

§  2:58:15 p.m.

 

(92 seconds)

13 seconds)

(62 seconds)

(74 seconds)

(74 seconds)

June 27th, 2007

§  12:04:29 a.m.

§  12:13:16 a.m.

 

(357 seconds)

(947 seconds)

July 27th, 2007

§  14:15:13

§  15:03:13

§  15:05:36

§  15:09:27

§  16:15:44 

 

(18 seconds)

(53 seconds)

(10 seconds)

(29 seconds)

(33 seconds)

 

July 28th, 2007

§  06:31:59

(16 minutes, 27 seconds)

September 5th, 2007

§  (see Call 57)

§  17:04:53

§  17:05:47

 

 

(27 seconds)

(5 minutes, 42 seconds)

September 6th, 2007

§  14:21:42

§  14:58:52

§  15:01:02

§  16:03:32

§   

§  16:57:25

§  17:08:41

§   

§  23:31:59

§   

§  23:52:34

 

(52 seconds)

(49 seconds)

(22 seconds)

(1 minute, 38 seconds)

(30 seconds)

(1 minute, 4 seconds)

(1 minute, 39 seconds)

(5 minutes, 31 seconds)

September 7th, 2007

§  00:01:42

§  00:09:30

§  00:10:20

§  00:11:01

§   

§  01:28:15

§   

§  01:41:22

§   

§  01:51:37

§  01:52:19

§  01:52:53

§   

§  02:01:04

§  02:04:37

§   

§  02:17:06

 

(33 seconds)

(41 seconds)

(12 seconds

(2 minutes, 42 seconds)

(4 minutes, 43 seconds)

(2minutes, 58 seconds)

(32 seconds)

(12 seconds)

(1 minute, 26 seconds)

(28 seconds)

(6 minutes, 51 seconds)

1 minute, 15 seconds

October 23rd, 2007

§  19:12:55

(2 minutes, 29 seconds)

October 24th, 2007

§  11:57:43  (see call 133)

§  13:04:05

§  13:42:47

§  13:56:34

§  14:15:30

§   

§  14:21:52

§  15:25:18

§  16:32:55

§  20:17:55

§  20:23:35

§  20:36:03

§  20:49:25

§  22:08:56

§  22:22:40

§  22:38:49

§  23:24:23

§  23:26:28

§  23:31:50

§  23:59:45

 

(57 seconds)

(51 seconds)

(24 seconds)

(24 seconds)

(1 minute, 24 seconds)

(47 seconds)

(56 seconds)

(40 seconds)

(27 seconds)

(19 seconds)

(24 seconds)

(4 seconds)

(18 seconds)

(44 seconds)

(16 seconds)

(17 seconds)

(44 seconds)

(28 seconds)

(20 seconds)

October 25th, 2007

§  00:06:46

§  00:07:20

§  00:11:09

§  00:12:07

§  00:18:36

§  00:19:23

 

(5 seconds)

1 minute, 24 seconds

(33 seconds)

(35 seconds)

(30 seconds)

5 minutes, 29 seconds

 

 

[73]         This review illustrates the numerous contacts between Johal and Kandola and between Johal and Riar immediately prior to the various crossings by Johal and Riar into the U.S. and their return from the U.S. into Canada.  Of particular interest with this table is the timing and frequency of the communications between Johal and Riar, especially when they were in a holding pattern in the U.S. waiting for Kandola to advise them when it was safe to cross the border into Canada through Kandola’s PIL booth.  The above review of calls made on the dedicated phones is related to the surveillance and other intercepted calls in summaries later in the judgment.  What is clear, however, is that there was almost constant contact between Riar and Johal by phone or in person when they were in the U.S. and when they were crossing the border into Canada on September 6-7 and October 24-25, 2007.

Kandola’s employment with the CBSA

a)  Terms and conditions of Kandola’s employment with the CBSA

[74]         Superintendent McDonnell testified regarding the PHBC layout, expectations of a Border Service Officer (“BSO”) and the deployment and scheduling of the Flexible Response Team at the PHBC.

[75]         According to Chief Superintendent Brock, Kandola was offered employment with the CBSA on June 26, 2001.  Chief Brock testified that Kandola was employed by the CBSA between January 2006 and October 26, 2007, as a BSO.

[76]         It was a condition of Kandola’s employment with the CBSA that he certify that he had read the “Conflict of Interest and Post-Employment Code” and that he would observe this Code.  As well, it was a condition that Kandola sign the “Confirmation of Receipt” in a brochure entitled “Standards of Conduct”.  On page 3, Kandola signed the letter thereby accepting the offer.  Kandola also signed, on June 25, 2001, the Confirmation of Receipt confirming that he has read the “Code of Ethics and Conduct” and would abide by the standards set out therein.

[77]         The Code of Conduct that Kandola was supposed to follow as a BSO included:

Mandate and Mission: Ensuring the security and prosperity of Canada by managing the access of people and goods to and from Canada.

Ethical Values: Acting at all times in such a way as to uphold the public trust.

Expected Standards of Conduct

Badges, official identification and officer or office stamps: To be used only for the purposes for which they were intended and in the best interests of the CBSA.

Confidentiality and Disclosure of Information: Refers to the Oath of Office and that the employee will not disclose or make known any matter that comes to your knowledge by reason of your employment:  “You must keep in strict confidence all information you obtain about the CBSA’s clients and all other official information to which the public does not have access.  This includes information about policies, programs, practices and procedures to which the public does not have official access.”

[78]         The Code of Conduct continues:

You may access official information only if authorized and required for work.  Under no circumstances may you use this information for personal use, gain or financial benefit for yourself, your relatives or anyone else.

Conflict of Interest: You cannot use your position to influence or bypass CBSA procedures for personal gain or the benefit of your family, friends, colleagues or anyone else.

Electronic Network Access and Uses: CBSA’s computer systems…are for authorized business purposes only.

[79]         The Oath of Office that was signed by Kandola upon his accepting the employment stated, in part, that “…I will not, without due authority, disclose or make known any matter that comes to my knowledge by reason of such employment.”

[80]         As a BSO, Kandola was responsible for the protection of Canadian society and to streamline the movement of goods and persons across the border.  BSOs deal with over 100 pieces of legislation including the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), the Controlled Drugs and Substances Act and the Criminal Code.  Part of the protection of Canadian society is keeping illegal things out of the country.  BSOs work in three areas at the PHBC:  the long room, secondary examination and the PIL booth.

b)  Physical layout of the PHBC

[81]         There are two components to the PHBC – the Traffic side which is for travellers and the Commercial side which is for truck drivers, commercial goods and small businesses.  All commercial goods are supposed to be processed through the Commercial side.

c)  Scheduling of Kandola’s shifts and procedure to be followed by him at the PHBC

[82]         Superintendent McDonnell dealt with scheduling of BSOs, including the scheduling in the PIL booth.  In 2007, two PIL lanes would be open 16 hours per day with only one PIL lane being open the remaining eight hours.  There are signs that show which lanes to take just before the border on the U.S. side.

[83]         According to Supt. McDonnell, scheduling of the BSOs is done first on a 56 day schedule.  This schedule is posted on a board in the office a minimum of two weeks in advance.  There is then a weekly schedule produced two to three weeks in advance.  This is posted in the Superintendent’s office and is accessible to all employees.  Finally, there is a Daily Roster made from the weekly schedule which assigns duties for a 24 hour period.  The Daily Roster is prepared by the afternoon Superintendent and is generally posted before the Superintendent leaves at 2:00 a.m.

[84]         In the period from May to October 2007, the Daily Roster was left in the Primary Superintendent’s office on the desk and would be sitting there for the next morning’s crew.  It was readily available.  As soon as it was posted, whoever was on shift would have access to it.  A BSO could have access earlier than 2:00 a.m.  If a BSO worked a night shift then they would have access to the Daily Roster for the following night.  The Daily Roster schedule applied from 6:00 a.m. to 6:00 a.m.  The evidence demonstrates that Kandola communicated with Johal to advise Johal of the times that Kandola was scheduled to be in the PIL booth.

[85]         With respect to computer access, every employee has a login identification which is unique to them.  The computer systems available inside the PIL booth include the ACROSS system, Integrated Primary Inspection Line (“IPIL”) system and the Integrated Customs Enforcement System (“ICES”).  The IPIL system is used to run individuals (names/dates of birth).  If a passport is presented, the scanner can capture the name and date of birth.  If it is a driver’s licence, then the name and date of birth would have to be keyed in manually.  The ICES contains “watch for” or “lookout” information.  It is used in the PIL booth to run the licence plates of vehicles.  The licence plate information must be entered manually as, at the time, there was no ability to photograph the licence plate.

[86]         A “watch for” or “lookout” signifies a file, person or vehicle of interest in relation to contraband, drugs or guns.  The computer system does a search and if it is a match then a word such as “drugs” or “warrant” pops up on the screen and a percentage will be given.  A BSO can then refer the vehicle inside for an examination.  A similar process is followed for individuals in the IPIL system.  If a “lookout” or “watch for” appears, a red box pops up and the vehicle and traveller is sent straight to the warehouse for examination.

[87]         On the Commercial side of the PHBC the procedure was that when a vehicle approaches the PIL booth, the BSO is expected to run the licence plate in the ICES system and run the traveller’s identification in IPIL.  The identification would include name (both given names) and date of birth.  The BSO also asks general questions of the vehicle’s occupants about purchases and the trip and processes their documentation.  Ultimately, the BSO makes a decision to “release” (driver is free to go) or “refer” (driver goes inside for further examination).  A driver would be released if there is no “lookout” or “watch for” and the paperwork is clear.  A driver would be referred if there was a “lookout” or “watch for” or there were problems with the documentation.

[88]         Supt. McDonnell testified that a stamp is issued to each officer which allows a BSO to date stamp documents to release them.  Each stamp has its own number.

d)  Flexible Response Team

[89]         The Flexible Response Team (“FRT”) is a team comprised of one superintendent, one dog handler and three to four BSOs.  The FRT members are not assigned to PIL times.  The FRT work primarily at the PHBC and their primary role is to look for contraband.  There are a variety of techniques they might employ, including conducting random examinations, pulling trucks out of the PIL line, entering the PIL booth to listen to the examination conducted by a BSO and watching monitors from locations in the office.  They are primarily looking for prohibited items such as narcotics and guns.  In cross-examination, Supt. McDonnell agreed that the mandate of the FRT included any types of contraband – anything prohibited or any smuggling activity.

[90]         The schedule of the FRT is discernible from the weekly schedule.  Whichever shift Supt. Shelley Stephens appears on, that is the shift the FRT is working.  The weekly schedule is posted in the Superintendent’s office.  The weekly schedule would be underneath the Daily Roster on a clipboard.  The weekly schedule for September 3 to 9, 2007, was marked as Exhibit 88.  The Crown submits, and I agree with their submission, that Kandola was referring to this schedule in Call 46 (August 31 – 13:07, below) with Johal.  Kandola advises Johal, in Punjabi, that “they’re working that same shift I am next week.  They’re not working Monday, they’re working Tuesday, Wednesday, Thursday…*if we have to do it, five o’clock you, do it at five o’clock or four o’clock in the morning, because they don’t work after four o’clock.*”

e)  The Lookout

[91]         On March 30, 2005, Lookout No. 1613-05-0293 (the “Lookout”) was created.  The Lookout named Shminder Johal, his brother Gurjit, and companies Dream Motors & Speedline Auto Sales Ltd., among others.  The Lookout said that Speedline Auto Sales was suspected of smuggling cocaine into Canada from the United States in vehicles.  The Lookout expired on December 1, 2006, but it was placed on silent mode before that date.

[92]         At the time the Lookout was in force, Shminder Johal was the sole Director of Speedline Auto Sales Ltd. and one of two Directors of Dream Motor Cars Ltd.

Source of the Lookout

[93]         There seems to be a conflict in the evidence of Kandola and Johal with respect to the source of the Lookout.  Kandola testified that Johal told him he [Johal] was having a dispute with his wife’s family and her cousin had been calling in tips to the CBSA.  The cousin was an RCMP member in Vancouver.  In contrast, Johal testified that his wife’s cousin told her [Johal’s wife] that someone was calling in tips.

Unauthorized database inquiries made by Kandola with respect to the Lookout and telephone contact with Johal after those inquires were made

[94]         As noted above, Kandola became a BSO with the CBSA in June 2001.  Kandola confirmed that he took an Oath of Office, read the Code of Conduct and received training at the training centre in Rigaud, Québec.  He understood the Oath of Office to mean that what he learned on the job stayed with him and he was not to disclose it.  As a CBSA employee, Kandola was also given a unique computer login identity and was granted access to various computer databases – he acknowledged that he was responsible for queries on the databases made using his login identity.

[95]         On July 24, 2006, Kandola conducted an unauthorized database query on the CBSA computer databases for “Sham Johal”.  Kandola learned that there was a Lookout in place for Speedline Auto Sales Ltd. and Shminder Johal, among others.  Kandola accessed the synopsis of the Lookout and had access to the various “subjects” of the Lookout as well as the suspected illegal activity (smuggling cocaine into Canada in vehicles).  At that point in time, Kandola was aware that Johal’s company was suspected of smuggling cocaine.

[96]         Kandola made numerous further unauthorized inquiries into the CBSA’s databases respecting Johal, his brother or Johal’s companies.  The timing of these unauthorized inquiries corresponds closely to the timing of telephone contact made between Kandola and Johal:

 

Date of inquiry

Name of person or entity inquired

 

The inquiry

Date and time of telephone contact by Kandola with Johal

Status of Lookout

July 24, 2006

Sham Johal

Records show that on July 24, 2006, a query was made at 7:09:41 a.m. (EST) on the ICES database by Kandola (“BXK170”) at the Pacific Highway Border Crossing for an individual named “Sham Johal.”

POE Lookout Interception for the Lookout  shows that Kandola queried the Lookout on ICES on July 24, 2007 at 07:09:52 (EST) at the Pacific Highway Commercial POE.  Kandola accessed the synopsis of this Lookout.  The Subjects of the Lookout included Gurjeet Johal, Shminder Johal, Speedline Auto Sales Ltd. and Dream Motors.

 

 Kandola (604-339-6127) was in telephone contact with Shminder Johal (604-724-4949) on July 24, 2006 as follows:

·        2:34 p.m. (7 seconds)

·        6:57 p.m. (89 seconds)

Kandola (604-339-6127) was in telephone contact with Johal (604-724-4949 and 604-279-5590 on the following days:

·        July 25

·        July 26

·        July 28

·        July 29

·        July 30

·        July 31

 

Active

August 1, 2006

’johal, sham singh”, “johal, gurj singh”, “speedline”, “dream”

Kandola conducted unauthorized database queries for some of the subjects of the Lookout Kandola accessed on July 24.  By this time, the Lookout was “silent”.

·        6:34:49 EST – “johal, sham singh”

·        6:35:23 EST – “johal, gurj singh”

·        6:41:02 EST – “speedline”

·        6:41:06 EST – “dream”

 

Kandola (604-339-6127) was in phone contact with Johal later on this date at 4:34:30 p.m. for 69 seconds

 

Silent

August 2, 2006

“johal, sham singh”

Kandola conducted an unauthorized database query for “johal, sham singh” at 1:03:52 EST.  The Lookout was “silent” [as of July 26, 2006)

 

Kandola(604-339-6127) was in phone contact with Johal later on this date at 1:41:55 p.m. (359 seconds), 6:42:42 p.m. (25 seconds), 9:11:00 p.m. (65 seconds) and 9:53:38 p.m. (13 seconds).

 

Silent

August 4, 2006

 

 

Kandola (604-339-6127) was in phone contact with Johal on this date at 5:58:42 p.m. (58 seconds) and 6:03:58 (39 seconds).

 

Silent

August 13, 2006

“johal”

Kandola conducted an unauthorized database query for “johal” at 21:15:45 EST.  The Lookout was “silent” at this time.

 

 

Silent

August, 14, 2006

“johal”

Kandola conducted an unauthorized database query for “johal” at 6:20:43 EST.  The Lookout was “silent” at this time.

 

 

Silent

September 1, 2006

‘johal, gurj singh”

Kandola conducted an unauthorized database query for “johal, gurj singh” at 17:23:23 EST.  The Lookout was “silent” at this time.

 

 

Silent

September 4, 2006

“johal, gurj singh”

Kandola conducted an unauthorized database query for “johal, gurj singh” at 13:08:57 EST.  The Lookout was “silent” at this time.

 

 

Silent

October 8, 2006

“johal, sham singh”. Aug 21 1973”, “johal, roni parminder Feb 21 1978”

Kandola conducted the following database queries.  The Lookout was “silent” at this time.

·        18:08:24 EST – “johal, sham singh.  Aug 21 1973”

·        18:08:57 EST – “johal, roni parminder Feb 21 1978”

·        18 :09:58 EST –  “johal, roni parminder Feb 21 1978’’

 

 

Silent

November 2006 to February 15, 2007

 

 

Telephone contact (or attempted contacts) between Kandola and Johal on the following days:

·        November 17, 21, 23, 24, 28, 29, 30

·        December 1, 12, 14, 15, 19, 20, 21, 22, 25, 26, 27

·        January 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 16, 18, 19, 21, 22, 23, 24, 26, 27, 28, 29, 30, 31

·        February 1, 3, 6, 7, 8, 9, 14

 

 

 

[97]         The Lookout permanently expired on December 1, 2006.  The Lookout was active, expired or placed on silent during the following times:

March 30 – June 20, 2005:  Active

June 21 – July 12, 2005:  Silent

July 12 – August 2, 2005:  Active

August 2 – 4, 2005:  Expired

August 4 – October 2, 2005:  Active

October 2 – 4, 2005:  Expired

October 4 – January 3, 2006:  Active

January 3, 2006 between 12:30 and 2:20 p.m.:  Expired

January 3, 2006 at 2:20 p.m. – February 28, 2006:  Active

February 28 – May 18, 2006:  Silent

May 18 – July 26, 2006:  Active

July 26 – December 1, 2006:  Silent

[98]         As laid out above, the phone records demonstrate that Kandola was in phone contact with Johal on the following dates, corresponding to days in which he performed unauthorized database checks in relation to Johal, Johal’s companies or Johal’s brother, Gurjit:

a)         July 24, 2006

b)         July 25, 26, 28, 29, 30, 31

c)         August 1, 2006

d)         August 2, 2006

e)         August 4, 2006

[99]         There is an irresistible inference drawn from these communications that Kandola was advising Johal of the results of the unauthorized database queries.  In fact there is evidence that in his conversation with Johal on July 24, 2006, Kandola told Johal that the CBSA, based on a tip from the RCMP of unknown reliability, suspected him and his associates of importing cocaine into Canada.  Kandola was unable to recall the content of the phone discussions with Johal on these dates.  Later in his cross-examination, however, Kandola agreed that he may have told Johal that about the Lookout.  Johal testified, in cross-examination, that he believed he had a face-to-face meeting with Kandola where Kandola told him what was on the database.

[100]     The entirety of the database queries done by Kandola over the course of his employment at the CBSA were attached as Appendices to the affidavit of Alfred Senghor (Ex. 94, 94A and 94B).  This evidence demonstrates that Kandola made numerous database inquiries which would have been consistent with his duties as a BSO.  Yet he made no such inquiries, authorized or unauthorized, of Riar, who he claimed he had first met at his border crossing on July 28, 2007.  This was the case even though Riar came through Kandola’s PIL booth driving a vehicle with tinted windows.

Kandola’s Knowledge of the CBSA Procedures

[101]     Kandola received two commendations for his work with the CBSA, one in 2001 and one in 2003.  Throughout the course of his employment with the CBSA, Kandola worked at the PHBC on the Commercial side.  His duties included working in the PIL booth, working at the counter in the office, doing secondary exams of drivers and vehicles and doing various other duties at the PHBC.  Kandola testified that he developed a “niche” for cars and car parts while working at the PHBC.

[102]     Secondary exams can involve thorough searches of vehicles.  Kandola was involved in approximately six secondary exams per shift while working at the PHBC.  While working in the PIL booth or at the counter, a BSO would be tasked with asking questions and making assessments of each person and vehicle presenting themselves.  Examples of Kandola carrying out these duties include the audio recordings in Calls 62, 89 and 138.  The way in which Kandola questioned each person, with the exception of Johal and Riar, demonstrates that he was fully aware of his responsibilities and duties at the time of his employment.

[103]     Apart from this, Kandola’s telephone conversations with Johal demonstrate a high level of knowledge with respect to the CBSA procedures, requirements and scheduling.  Examples include Calls 9, 33 and 46.  At one point he was involved in a seizure of cocaine of over 100 kilograms from the cab of a truck.  The bricks were concealed in suitcases in the cab of a truck.

[104]     Kandola understood that he was not to do the following:

a.   Make unauthorized database queries.

b.   Advise Johal that there was a Lookout on the CBSA system.

c.   Advise Johal when there was not a Lookout on the CBSA system.

d.   Provide scheduling information to Johal.

e.   Engage in acts of deception when processing Johal and Riar at PHBC.

[105]     All of the evidence demonstrates that Kandola knew what his role was as a BSO.  He knew what his responsibilities were.  He knew what he was and was not allowed to do.

Provision of Monthly Work Schedules by Kandola to Johal to plan the Crossings

[106]     Kandola provided his monthly work schedule to Johal to plan the crossings.  According to Johal, there was little need for planning in relation to picking up car parts.  I also agree with the Crown’s submission that when Johal’s evidence regarding the simplicity involved in picking up car parts is compared with the complexity involved in arranging for the importation of 208 kilograms of cocaine, it is clear why Johal needed Kandola’s monthly work schedule to plan out the crossings.

Kandola’s use of Dedicated Phones to avoid being Wiretapped

[107]     The evidence discloses that Kandola was aware of the risk of detection and that he took steps, along with Johal, to avoid this.  Such steps included changing phones periodically to minimize any breaches in operational security and using Punjabi when discussing sensitive matters.  Kandola testified that, in reference to the dedicated phone seized on his arrest, Johal provided this phone to him.  Johal told Kandola to only use it to communicate with him.  Kandola only knew one number on his dedicated phone (Johal’s) and that was the only person he phoned.  Kandola also testified that he had no concerns about being given this phone by Johal.  Kandola believed that Johal was protecting them to safeguard their conversations.  In cross-examination, Kandola confirmed that Johal was the only person he called and the only person he received calls from on the dedicated phone.

The Bribery of a CBSA Official

[108]     I agree with the Crown’s submission that the bribery of Kandola by Johal is an extraordinary measure given the risks involved.  To do this to save a minimal amount of money and some time at the border makes no sense given the risks to Johal and his car importation business (i.e. being shut down) and to Kandola (i.e. loss of job, pension, etc.).

[109]     On Kandola’s evidence, he received $6,000 cash from Johal (May 31, September 13, and sometime between September 13 and October 25, 2007).  As well, he received benefits in the form of car parts and upgrade work.  The amount of money and benefits that Kandola says he received is inconsistent with the scheme being directed at importation of car parts as, for example, the last $2,000 provided to Kandola exceeds the dollar value of the duties and taxes payable on the car parts imported on October 25.

Kandola Took Steps to Ensure Johal and Riar would not be Detected at the Border

[110]     As mentioned, the evidence reveals that any BSO working the night shift would have access by 2:00 a.m. to the next day’s Daily Roster which would include the scheduled PIL booth times.  Kandola communicated this information to Johal in advance of Kandola’s shift.  As well, on September 6 (“2pls”) and on October 24 and 25 (confirmation of “12” and the command “aja”) Kandola communicated or confirmed his PIL booth time with Johal.  It is significant that on the last crossing, which involved $5 to 6 million of cocaine, there were effectively three checks in place to ensure that Johal had the correct PIL time.  This was a reflection of the significance of the load and the risks to Johal, Kandola and Riar of being caught.

[111]     It may be significant that Kandola ensured that there was no record of either Johal or Riar entering Canada and, therefore, no link to him.  As well, Kandola pretended to stamp documents provided to him by Johal.  Further, Kandola pretended not to know either Johal or Riar in his PIL booth conversations with them.  In addition, it may be significant that Kandola ensured that at least one of the crossings (September 7) occurred at a time when the FRT was not on shift.

Meetings between Johal and Kandola

[112]     Johal met with Kandola on a number of occasions.  The meetings were often in public places although there was some concern expressed in the intercepted calls about being seen together in certain circumstances.   The RCMP observed some of the meetings.  Other meetings can be inferred from the intercepted communications.  Both Johal and Kandola testified that they attempted to meet in circumstances to avoid being seen together.

[113]     Aside from the September 13, 2007 meeting in which Johal gave Kandola $2,000, neither accused had a good recollection about the details of conversations they had at these meetings.

[114]     The following is a list of the meetings between Johal and Kandola and the calls that either imply meetings or corroborate that these meetings took place:

Date

Call #

Where meeting took place

17/5/07

 

Johal and Kandola met in the back corner of a parking lot at a strip mall complex in Surrey.

28/7/07

 

Johal and Kandola met at a 7-11/Petro-Canada after 9:00 p.m.  They departed in Kandola’s Mini with Johal driving.

29/7/07

28-31

Johal and Kandola met outside Johal’s residence

31/7/07

32

Johal is going to drop something off at Kandola’s residence.  Kandola provided the garage code.  

13/9/07

 

Johal and Kandola met at a parking lot at a Wendy’s/Tim Horton’s on Annacis Island.  Johal retrieved something from the trunk of the Mustang he was driving and got into the passenger seat of Kandola’s Mini.  They had a conversation for approximately 10 minutes and then they departed in their respective vehicles.  Johal exited Kandola’s vehicle without anything in his hand.  Johal gave Kandola $2,000 at this meeting.

28/9/07

91  

– Johal met Kandola at Kandola’s residence.  Johal was to access Kandola’s residence via the side door.

9/10/07

101-102

Johal and Kandola met at a Coffee Shop in Surrey

11/10/07

106

Discussion about meeting

16/10/07

116

Johal and Kandola met at the parking lot of Parkside Market located at 17619 – 96 Avenue in Surrey.  Kandola was in the passenger side of Johal’s Acura MDX (BCLP# 243 GMH) in the parking lot.  They met for approximately 20 minutes.  They departed at 14:07.

 

Evidence of Benefits provided by Johal to Kandola and Request made by Kandola for Favours from Johal during the Period of the Alleged Conspiracy

[115]     Over the course of the conspiracy, Johal paid money to Kandola for Kandola to “pass him through customs”.  Johal was also responsible for providing benefits to Kandola as payment for Kandola’s role in three distinct areas.  Kandola’s expectations of Johal in relation to upgrades and payments for Kandola’s Mini, and Johal’s responses, demonstrate the nature of the relationship between Johal and Kandola.

[116]     Both Kandola and Johal testified about the payments and benefits to Kandola from Johal.  Kandola testified that he received three payments of $2,000 (May 31, September 13, and between September 13 and October 25, 2007).  Kandola also testified he received benefits in the form of upgrades to his vehicle, a Mini Cooper.  Kandola estimated the dollar value of benefits provided in 2007 to be approximately $10,000.

[117]     Johal did not have a good recollection of cash payments to Kandola.  The only payment he was able to recall was the $2,000 on September 13, 2007.  Johal also testified that he provided benefits to Kandola.  Johal similarly estimated the dollar value of the benefits at approximately $10,000.

[118]     I find as a fact, however, that Kandola received benefits far in excess of the $10,000 suggested by Johal and Kandola.  In Call 74 (September 12, 2007 at 13:25), Johal received a text message from Kandola:  “Can you pay mini 4 me.  $4k take from myn” – this indicates that there was more money to which Kandola felt he was entitled.  In confirmation of this, there is the evidence of intercepted Call 76 between Johal and “Al”:

Call 76 (September 12) – 16:20 – Johal was complaining to Al that Kandola texted Johal earlier.  Al told Johal to tell the guy to calm down as it is not even the end of the month.

o   Johal replied that “He goes uh, no, you still owe him for last month, what are you talkin’ about man?”

o   Johal continued: “…but he was texting me.  He goes, hey can you do me a favour?  With my money that you owe me, can you go to uh, this retail store, whatever kind of car he drives, and go pay uh, four K for me?...I’m like thanks buddy.”

o   Johal continued: “…make it as quick as possible because I know how this guy is, he doesn’t understand concept, man.  He’s fuckin’ moron, man when it comes to that shit and this is why I get stressed out like, fuck, why would you do that man?  I saved the text for you, don’t worry.  So you can read it.”

o   Al replied: “I think he’s probably just letting you know, like he’s got a four K bill, like, hurry up, can you give me my cheque?”

o   Johal replied: “No, he wants me to go there, pay it.”

[119]     The conversation is, in part, a discussion of Kandola’s request to Johal for the payment of Kandola’s bill at Richmond Mini.  Kandola wants Johal to go and pay $4,000.  Johal discusses the situation with Al.  The discussion of the payment for Kandola is in furtherance of the conspiracy as it relates to ensuring that the agreement can continue to operate.  In my view the conversation between Al and Johal demonstrates that Kandola is receiving a monthly payment for his role in the conspiracy.

a)  Upgrades to Kandola’s Mini/Payments in relation to Kandola’s Mini

[120]     The following evidence relates to upgrades of, or payments in relation to, Kandola’s Mini Cooper:

Date

Call#

Comments

12/7/07

4

Johal was waiting for “the guy” who’s doing the TV.

19/7/07

18

Johal advised that “the guy” called for the system – it’s all booked for Sunday.

22/7/07

21

Johal discussed getting Kandola’s Mini in order for work to be done on it.

 

25/7/07

22

Johal discussed the timing of putting the TV and DVD player into Kandola’s Mini.

27/7/07

23

Johal was picking up some parts for Kandola’s Mini.  Johal will put them in Kandola’s garage.

28/7/07

26

Johal and Kandola discussed Johal’s contact installing an alarm in Kandola’s Mini.

 

29/7/07

27

Johal was going to pick up Kandola’s car.  Johal advises that the guy charged $1,050.  Johal will “square up” with Kandola later.  Johal will leave the car across the street [from Johal’s residence]

29/7/07

28

– Kandola arranged to pick up his car which is parked in the vicinity of Johal’s residence.  Kandola instructed Johal not to park the car in front of Johal’s house.

29/7/07

29-31

Series of calls where Kandola ultimately arrives at Johal’s residence and Johal confirms that he will come outside.

 

31/7/07

32

Johal was going to drop something off at Kandola’s residence but is concerned that Kandola is with someone.  Johal asked for Kandola’s garage code so Johal can place the delivery in the garage.

 

15/8/07

35

Kandola asked if Johal had talked to the stereo guy.  Johal advises that the module is not done for the alarm yet.

.

24/8/07

40

Johal will look into Kandola’s complaint about the stereo that was installed in the Mini.

25/8/07

42

Kandola sent a text message to Johal: “Car and laptop”.

 

25/8/07

43

Kandola asked Johal about a laptop. Then Kandola asked if Johal will pick up Kandola’s car tomorrow.  Kandola wanted Johal to see if the “the guy” can finish the stereo.  Kandola asked Johal about some springs for Kandola’s car Johal will look on-line.

 

6/9/07

61

Kandola asked Johal to “skip the auto-start”. Kandola just wants the regular alarm and stereo.  Kandola also wanted Johal to order some stuff for Kandola’s Mini.  Kandola advised that will be “a little expensive…about three grand” to which Johal says *that is fine*.  Johal asks Kandola to tell him what it is and they will make a list.  Kandola told Johal what he wants.

 

9/9/07

67

Johal received a text message from Kandola: “Need speedometer guys # pls.”

9/9/07

68

Johal provided the name “Avtar” and provided a phone number to Kandola.  Kandola advised that he has a rock chip in his Mini and that he wants to get Johal on the website tonight.

 

10/9/07

69

Kandola asked Johal to order two things for him – coil overs and the rear sway bar.  Johal asked Kandola to text him the website.

 

10/9/07

70

Johal will pick up Kandola’s Mini at a Chevron located at No. 5 Road and Steveston.

10/9/07

71

Johal received a text message from Kandola:” www.altaminiperformance.com 0rder:r56 coilover susp kit $999 r56 rear swaybar $286 thanks bro rush pls.”

 

12/9/07

74

Johal received a text message from Kandola: “Can you pay mini 4 me.  $4k take from myn.”

12/9/07

75

 Kandola asked Johal to do him a favour and go by Mini and pay off Kandola’s bill of $4,000.  Johal said “*I’ll go in the morning.*”    Kandola thinks the Mini will be ready tomorrow night.  Then Kandola asked Johal if he has ordered the stuff.  Johal had not but will do it later today.

 

12/9/07

76

Johal was complaining about Kandola to “Al”.  Johal described Kandola’s demands and that Kandola wanted Johal to go to the Mini dealership to pay “four K”.  The male and Johal discussed the situation and they discussed meeting later that day.

13/9/07

79

Johal told Kandola that he doesn’t want to go to Mini to make the payment in case the Indian person who works there knows who Johal is and connects Johal with Kandola.  Kandola suggested putting “two and two.”

13/9/07

81

Kandola is at Mini and wants to get *two* from Johal.

 

13/9/07

82

Kandola is going to the bank and can pull out two grand on his bank card.  He and Johal arranged to meet on Annacis Island at Wendy’s.

 

13/9/07

83

Kandola advised Johal via text: “Her” (Here). Kandola and Johal met for about 10 minutes in Kandola’s Mini.  After this meeting, Kandola drove to Richmond Mini and paid $4,000 cash for the upgrades to his Mini. (See Invoice from Richmond Mini  Ex. 41, Tab 5, and testimony of Nick Roddam).

 

14/9/07

86

Kandola and Johal discussed the website that Kandola wanted Johal to access.  Johal will go on the website but will talk to Kandola before he orders anything.

19/9/07

88

Kandola left a message for Johal asking if he has ordered that stuff online yet.

2/10/07

92

Kandola left a message for Johal asking what the alarm guy said about the stereo and the alarm.

6/10/07

95

Kandola asked Johal about the alarm guy.  Johal will call him (the alarm guy) when he gets back (from the U.S., where he is shopping with his wife).

 

9/10/07

97

 Kandola left a message for Johal asking about the alarm.

 

9/10/07

99

Johal told Kandola that he talked to the guy about Kandola’s system and he said hopefully this weekend.

20/10/07

121

Kandola asked Johal if he got ahold of the alarm guy.  Johal will phone him.  Later in the call, Kandola asked about a laptop.

 

 

b)  Potential laptop for Kandola

 

Date

Call #

Comments

15/7/07

7

Johal will look into a laptop for Kandola.

16/7/07

8

Johal will let Kandola know if ‘buddy’s got a laptop”.

25/8/07

42

Kandola sent a text message to Johal: “Car and laptop”.

25/8/07

43

Kandola asked Johal about a laptop.  Then Kandola asked if Johal will pick up Kandola’s car tomorrow.  Kandola wanted Johal to see if the “the guy” can finish the stereo.   Kandola asked Johal about some springs for Kandola’s car. Johal will look on-line.

20/10/07

121

Kandola asked Johal if he got ahold of the alarm guy.  Johal will phone him.  Later in the call, Kandola asked about a laptop.

 

c)  Cell phone from Johal to Kandola

 

Date

Call #

Comments

17/7/07

11

Kandola advised Johal that he will take the phone.

17/7/07

12

 Johal will charge the phone for Kandola.

 

18/7/07

13

Johal will make an arrangement with his wife regarding the phone for Kandola.

 

19/7/07

18

Kandola will go to Johal’s residence to pick up the phone from Johal’s wife.

 

19/7/07

19

Kandola advised that he picked up the phone.  Kandola discusses the phone with Johal. Kandola says of the cell phone, “It’s got more features than God.”

 

Kandola’s Persistence in Obtaining Benefits from Johal

[121]     The evidence demonstrates that Kandola was persistent in attempting to obtain benefits from Johal in exchange for Kandola’s role in the conspiracy to guarantee safe passage into Canada for Johal and Riar.  The evidence also demonstrates that Johal made every effort to ensure that Kandola was kept happy.  I agree with the submissions of the Crown when they state that Johal’s actions are those of someone who knows the seriousness of what they are engaged in and knows that the money and benefits he is providing to Kandola are reasonable compensation given the dollar value of the cocaine he is importing.  I also agree with the Crown’s submission that Kandola was also aware of the risks he was taking which is why he consistently asked Johal for cash and benefits as compensation.

[122]     I now propose to move to a consideration of the evidence surrounding the three crossings on July 28, September 7 and October 25, 2007.  In order to get the timing of the various conversations, the use of the dedicated phones and the surveillance evidence, it is necessary for me to repeat the summaries that were prepared for me by Crown counsel.  These summaries have been filed as exhibits in these proceedings.

The July 28, 2007 Crossing

[123]     Under this heading, I propose to lay out some of the intercepted communications, phone contacts and surveillance of the accused both before and immediately after the border crossing on July 28, 2007.  As mentioned above, the use of “*...*” denotes portions of statements spoken in Punjabi.

Date

Time

Call

#

Event

17/5/07

2:37-2:46 p.m.

 

Surveillance by Cpl Powell who noticed Kandola and Johal met in a parking lot of a strip mall located at 6361 – 152 Street, Surrey.

12/7/07

20:39 hrs

4

Johal asks to speak to “Bal.”  Kandola comes on the line.  Kandola asks about an “auxiliary input” in his car. Johal asks if Kandola worked today and says he was there bringing in a Lincoln for a customer.

 

17/7/07

14:38 hrs

 

 

 

 

 

20:33 hrs

 

 

 

20:35 hrs

9

 

 

 

 

 

 

11

 

 

 

 

12

From Kandola to Johal - Kandola talks about a decision in Surrey court in which the judge said customs agents needed a search warrant to search vehicles.   Johal then talks about the bills for duties he keeps getting from Customs for “Speedline Auto Sales” and asks why they are being sent to him at home.  Kandola says “You’re the owner of the company right?”  Kandola advises him to retain a lawyer.

 

Kandola to Johal’s voice mail; then Johal to Kandola.

Kandola calls Johal and gets voicemail saying “you’ve reached Sham of Dream Motor Cars.”  Johal then calls back and they have discussions about a phone.

 

Kandola calls Johal to tell him that he is coming to Richmond to pick up his Mini tomorrow and that he will call him when he comes down there.

 

18/7/0  7

12:55 hrs

 

 

 

13:03 hrs

 

 

15:09

13

 

 

 

 

14

 

 

 

15

Kandola to Johal.

Johal tells Kandola that he is in Surrey. Kandola asks if Johal can pop by. Johal says that he doesn’t have the phone with him.  Johal won’t be back in Richmond for another few hours so he will call Roni (Johal’s wife) to see if she can bring it with her.

Jay (LNU) to Kandola - Jay refers to Kandola as “Bal.”   Jay tells Kandola that his car will be ready tomorrow. Kandola asks that Nick leave a message on his cell of the amount he owes for the upgrades to the Mini so he’ll know how much money to get.

Kandola to Roddam at Richmond Mini - they discuss upgrades to Kandola’s Mini Cooper.  Discuss upgrades to engine that will cost $4000.

 

19/7/07

6:00 hrs

 

12:53 hrs

 

 

19:08

hrs

 

16

 

 

18

 

 

 

19

Kandola to Johal text message- “Comin down around 2”.

 

 

Kandola to Johal then Johal to his wife Roni Johal - Johal tells Kandola that he has Kandola’s phone charged up. After speaking with his wife, Johal calls Kandola and tells him that he can pick up the phone at Johal’s residence.

Kandola to Johal - Johal asks Kandola if he picked up the phone to which Kandola replies that he did.  Johal and Kandola discuss that Johal has to pick up the “shit from Mini.” Johal agrees to do this.  Kandola says “I left some paperwork with your wife.”  Johal says “Okay perfect, yeah good. *This coming week*” to which Kandola says “no problem buddy.” Johal says “*Fine*, okay awesome”.

 

20/7/07

16:03 hrs

20

From Kandola to Johal - They discuss “Speedline Auto Sales”.

 

22/7/07

12:55

Hrs

21

Kandola to Johal - Kandola is going to drop off his car for Johal.  Kandola says that he is working days from Monday to Wednesday (July 23-25).

 

25/7/07

21:06 hrs

 

21:45

 

 

 

22

Phone records – Non-intercepted Phones

 – call made from Kandola’s non-intercepted phone (778-688-0329) to Johal’s non-intercepted phone (778-997-0269)  (duration: 4 seconds).

 Johal to Kandola - Johal says he’s going to “fax you in a little bit” and tells Kandola to “turn your fax machine on.”  Says he will fax Kandola in “about twenty minutes.”  Kandola asks if Johal knows the number.  Johal says “No,*your other phone phone, phone.*”  Johal says “I’ll call you.”  Kandola says he will turn it on in 20 minutes.

 

Phone records – Non-intercepted Phones

At 22:01:05 (10:01:05 pm.) - call made from Kandola’s non-intercepted phone (778-688-0329) to Johal’s non-intercepted phone (778-997-0269) (duration: 5 seconds)

 

At 22:23:57 (10:23:57 pm) – call made from Johal’s non-intercepted phone (778-997-0269) to Kandola’s non-intercepted phone (778-688-0329) (duration: 102 seconds)

 

27/7/07

11:11 hrs

 

 

 

14:15 hrs

 

 

 

15:03 hrs

 

15:05

Hrs

 

15:09 hrs

 

16:12 hrs

 

 

 

 

 

16:15

hrs

 

18:31

hrs

 

21:05

Hrs

23

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

24

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Johal calls Kandola.  They discuss Johal dropping car parts of at Kandola’s residence.   Kandola then asks “And we’re still booked for Sunday right?”  Johal says “*No, it’s tomorrow.  Sunday he’s not here.*”  Kandola meant the stereo.  Kandola tells Johal to call him when Johal is on his way.

Phone Records – Non-Intercepted Phones

27/7/07 at 14:15:13 –  call made from Johal’s non-intercepted phone (778-997-0269) to Riar’s non-intercepted phone (778-688-5489) - (duration: 18 seconds)

 

Call made from Johal’s non-intercepted phone (778-997-0269) to Riar’s non-intercepted phone (778-688-5489) - (duration: 53 seconds)

 

Call made from Johal’s non-intercepted phone (778-997-0269) to Riar’s non-intercepted phone (778-688-5489) - (duration: 10 seconds)

 

Call made from Johal’s non-intercepted phone (778-997-0269) to Riar’s non-intercepted phone (778-688-5489) - (duration: 29 seconds)

 

Call from Kandola to Johal - Johal tells Kandola that he has “just arrived” in “America”. Kandola tells him that he should have gone down at night time but Johal says he didn’t want a “headache.”  Johal asks Kandola what time he was going to call him tomorrow. Kandola said would call Johal the next day around five thirty.

 

Phone Records – Non-Intercepted Phones

Call made from Johal’s non-intercepted phone (778-997-0269) to Riar’s non-intercepted phone (778-688-5489) - (duration: 33 seconds).

 

Call made from Riar’s non-intercepted phone (778-688-5489) to Johal’s non-intercepted phone (778-997-0269) - (duration: 987 seconds).

 

Call from Kandola’s non-intercepted phone (778-688-0329) to Johal’s non-intercepted phone (778-997-0269) -  (Duration: 1 second).

 

28/7/07

05:28

hrs

 

 

 

05:28 hrs

 

 

 

05:38

hrs

 

06:24

hrs

 

06:30 hrs

 

 

 

06:31 hrs

 

 

 

06:37 hrs

 

 

06:38 hrs

 

 

 

06:39 hrs

 

 

06:40 hrs

 

 

06:44

hrs

 

 

06:45

hrs

 

 

06:46

hrs

07:12 hrs

 

07:20 - 07:23 hrs

 

 

07:33 hrs

 

 

 

 

 

 

 

 

 

 

12:01 hrs

 

 

 

 

 

21:24 hrs

 

21:28

hrs

 

 

 

 

21:30 hrs

 

 

 

21:35 hrs

 

 

21:39 hrs

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

26

 

Phone Records - Non-intercepted phones

Call from Kandola’s non-intercepted phone (778-688-0329) to Johal’s non-intercepted phone (778-997-0269) – (Duration: 55 seconds).

 

Surveillance

Kandola’s Mini Cooper (BCL: 257BNX) was seen travelling southbound on 176th Street towards PHBC in Surrey, B.C.  [Cst. Berube; Cst. Grinstead].

 

 

 Kandola entered a Primary Inspection Booth at PHBC.  [Cpl. Bindra].

 

 

A beige GMC Yukon with no front plate approached the border crossing from US side.    [Cst. Grinstead].

 

Johal’s GMC Yukon was in the commercial vehicle line-up behind 3 tractor trailers.   [Cpl. Powell].

 

 

Phone records – non-intercepted phones

Call from Riar’s non-intercepted phone (778-688-5489) to Johal’s non-intercepted phone (778-997-0269). [Duration: 987 seconds].

 

 

Surveillance

Johal pulled up to Kandola’s Booth.  Johal gave his  BCDL and another card to Kandola who looked at them for a few seconds and then gave them back.  [Cpl. Bindra].

 

Johal’s vehicle drove away from Kandola’s PIL Booth and turned northbound onto 176th Street.  Johal was confirmed to be the driver.  Johal was speaking on his cell phone and looking back towards the border.  [Cpl. Powell; Cst. Grinstead]. 

 

 Johal’s vehicle drove into the parking lot of Campbell Grocery Store at 8th Ave. and 176th Street in Surrey.  Rear vehicle plate: D51658.  [Cst. Cutting; Cst. Parahoniak].

 

Another beige GMC Yukon (BCL later confirmed to be AA9208 – registered to Riar) approached the PHBC in the commercial vehicle line-up.    [Cst. Grinstead; Cpl. Powell].

 

 Riar’s Yukon pulled up to Kandola’s booth.  Kandola received a passport, looked at it and then handed it back to the driver (Riar).  [Cpl.  Bindra].

 

Riar’s Yukon drove away from Kandola’s booth and turned onto 176th Street.  Driver was an East Indian male (later identified as Riar). Plate confirmed to be AA9208.   [Cpl. Powell].

 

Both Johal and Riar drove in tandem to Richmond [Cpl. Powell].

 

Both vehicles arrived at a mall parking lot at Cambie and No. 5 Road in Richmond [Cpl. Powell; Cst. Cutting].

 

Johal’s vehicle then drove eastbound on Bridgeport Road and turned southbound on No. 5 Road [Cst. Grinstead]  Johal’s vehicle then stopped in #2 lane on No. 5 Road.  Right signal activated.  Stayed  motionless for 15 seconds before turning.  It then went westbound on Bird Road and stopped in front of Johal’s residence [ Cst. Cutting]

 

Johal’s vehicle (D51658) left Johal’s residence again and went eastbound on Bird Road.  It took a right on No.5 Road and went southbound .  Vehicle then went  westbound on Cambie Road. [Cst. Berube; Cst. Cutting].

- Johal’s vehicle turned northbound on Shell Road and traveled slowly.  Driver of the vehicle was confirmed to be Shminder Johal.  Johal was on his cell phone and appeared to be looking around. [Cpl. Powell].

 

-Johal then travelled eastbound on Bridgeport Road. Johal drove southbound on No.5 Road and then westbound on Bird Road where he  pulled over in front of his residence [Cst. Cutting]

 

 Kandola to Johal - Kandola and Johal discuss further upgrades to the Mini. They agree to meet at a 7-11/Petro Canada on 60th Ave.  Johal says he will see Kandola in five minutes and can drive Kandola back.

 

 

Surveillance:  Johal and Kandola meet at a 7-11 store in Surrey on 28/7/07

 Johal was seen standing inside the 7-11/PetroCan store located at 5994 – 176 Street in Surrey reading a newspaper  [Cpl. Powell].

 

 Kandola arrived in gray Mini Cooper (BC plate - 257BNX) and parked at the gas pumps. Kandola got out of vehicle and walked into 7-11 store. Johal was standing near the cash register area. Kandola approached Johal and appeared to hand him something.  Kandola then walked outside the store and returned to his vehicle.   [Cpl. Powell].

 

 Johal exited the 7-11 and got into driver’s seat of Kandola’s Mini Cooper. Kandola opened rear hatch of vehicle and took a satchel sized parcel out of the rear and then entered into passenger side of his vehicle. Vehicle then departed.  [Cpl. Powell, Cst. Cutting]. 

 

 Kandola’s Mini Cooper with Johal and Kandola inside left  the 7-11 parking lot onto 176 Street and traveled towards Kandola’s residence at 5938-165th Street, Surrey.  [Cst. Cutting; Cst. Parahoniak].

 

 Kandola’s Mini was parked on street near Kandola’s residence at 5938 – 165th  Street with the engine still running.  [Cst. Parahoniak; Cst. Cutting].

 

 

a)  Summary of findings of fact with respect to the July 28, 2007 crossing

[124]     In the days leading up to July 28, Kandola and Johal were in phone contact, both on intercepted lines and on the dedicated phones.  As well, Johal was in communication with Riar on the dedicated phones on July 27.

[125]     On July 28, Kandola began working in the PIL booth at the PHBC shortly before 6:00 a.m.  At approximately 6:38 a.m., Johal drove up to Kandola’s PIL booth in a GMC Yukon.  Johal entered Canada a short time later.  Then, at approximately 6:45 a.m., Riar drove up to Kandola’s PIL booth in a GMC Yukon.  Riar entered Canada a short time later.

[126]     After entering Canada, Johal and Riar drove in tandem back to Johal’s residence in Richmond.  Later that evening, Kandola and Johal arranged to meet at a 7-11/Petro-Canada station in Surrey.  They were subsequently observed meeting there and driving back to the area of Kandola’s residence in Kandola’s Mini Cooper.

[127]     From the evidence adduced, I find as a fact that Kandola was fully aware that Johal was an officer of Dream Motors and Speedline Auto Sales. I find as a fact that the references in their conversations to the “other phone” referred to the more secure phone, the dedicated phone.  In my view, it is no coincidence that one of Johal’s cell phones and one of Kandola’s cell phones each had a “puk lock” security system attached to them.  This was a security system that made it extremely difficult to gain access to the records in those cell phones.

[128]     I find that the use of the dedicated phones by Riar, Johal and Kandola and the counter-surveillance (erratic driving as observed by Cpl. Powell) employed by Johal after leaving the border on July 28 are tactics used by drug traffickers.  In making this finding of fact, I rely on the evidence of the expert, Inspector MacDonald, discussed below.

The September 6-7, 2007 Crossing

[129]     On the basis of the evidence, I have no difficulty finding as fact, based on the Crown’s submission that:

In the weeks leading up to the September 7 crossing, Kandola and Johal were in telephone contact.  For example, on August 15 they spoke on the phone and communicated via the non-intercepted cell phones; they communicated on non-intercepted cell phones on August 27; and, on August 31, Kandola spoke on the phone with Johal about the timing of the next crossing (call 46).

On September 4, Johal spoke to Riar about working (call 52).  This call occurred shortly after Kandola and Johal communicated on the non-intercepted cell phones.  Later that day, Kandola and Johal spoke on the phone and Kandola confirmed with Johal that he did not go.  Johal confirmed that it would not be tomorrow, but the next day.

On September 5, Kandola and Johal spoke briefly and then arranged to speak on the non-intercepted cell phones.  Later that day, Johal spoke with Riar and they arranged to speak on the non-intercepted cell phones.

On September 6, Johal and Riar spoke about when Riar was going to leave for the U.S. and Johal reminded Riar about a “key”.  At approximately 4:30 p.m., Riar attended a Public Storage Locker facility in Bothell, Washington and parked in front of locker 38.  Riar departed a short time later.  Both before and after attending this locker, Riar communicated with Johal on the non-intercepted cell phones.  Riar and Johal were then observed together in several locations in Washington State along the I-5.

That day, September 6, Kandola began his shift at the PHBC at 7:30 p.m.  At approximately 11:00 p.m., Kandola sent a text message from his non-intercepted cell phone to Johal’s non-intercepted phone that said “2pls”.  Subsequently, there were two calls between Johal and Riar on the non-intercepted cell phones (11:31 p.m. and 11:52 p.m.), and then a call between Johal and Kandola (11:59 p.m.).  Between midnight and 2:00 a.m., there were a series of phone calls between Johal and Riar on the non-intercepted cell phones.

At 2:00 a.m. on September 7, Kandola returned to working in the PIL booth at the PHBC after taking a break.  At approximately 2:10 a.m., Johal entered Canada via Kandola’s PIL booth.  They had a brief conversation which was recorded by the PIL booth audio.  Approximately one minute later, Riar entered Canada via Kandola’s PIL booth.  They also had a brief conversation which was recorded by the PIL booth audio.  Kandola did not query either Johal or Riar in the CBSA computer database.

As they did on July 28, Johal and Riar drove to Johal’s residence in tandem.  Shortly before 3:00 a.m., Riar’s vehicle was driven from the area of Johal’s residence to a residence in East Vancouver where it was parked in a garage.

Later that day, Riar sent a text message to Johal at 12:43 p.m. asking Johal about getting his vehicle back.

a)  Some intercepted communications, phone contacts and surveillance of the accused prior to the border crossing of September 6-7, 2007, and immediately thereafter

 

Date

Time

Call

#

Event

24/08/07

12:00 hrs

41

Call from Johal to Kandola:

BK:       *Any work ...*

SJ:       ...-

BK:       -*...?*

SK:       -*I have not got the phone call yet .  ... waiting for it.*

BK:       Okay.

SJ:       -I think, *...* that’s why ....  Yeah. ....

BK:       Yeah, if not, no worries.

SJ:       So, as soon as I know I’ll call you right aways.

BK:       Well, yeah, like I said we got three days.

SJ:       Yeah, no, *I’m waiting for it . He hasn’t called me yet.*

 

27/08/07

16:13

Hrs

 

 Phone Records - Non-Intercepted Phones

Call made from Kandola’s non-intercepted phone (778-688-0329) to Johal’s non-intercepted phone (778-997-0269) – Duration: 5 minutes and 25 seconds

 

30/08/07

23:04

Hrs

44

Text message from Kandola to Johal - “10 only”.

 

31/08/07

10:42 hrs

12:22 hrs

 

13:07 hrs

45

 

 

 

 

46

Text message from Kandola to Johal - “U up?”

 

Phone records - Non-Intercepted Phones

Call made from Kandola’s non-intercepted phone (778-688-0329) to Johal’s non-intercepted phone (778-997-0269) – duration: 4 seconds

From Johal to Kandola - Kandola asks Johal “*do you have the other phone*” and Johal says he does not.  Kandola says “*we have to do it on* Monday”.  Johal asks “*Why?*” Kandola replies “*Because* after Tuesday, they have those other people there again.” 

 

Kandola says “that’s what I found out yesterday, that they’re working that same shift I am next week.  They’re not working Monday, they’re working Tuesday, Wednesday, Thursday…*if we have to do it, five o’clock you, do it at five o’clock or four o’clock in the morning, because they don’t work after four o’clock.*”

 

Johal says he won’t be able to talk to Kandola for the next little while; “*the other* phone *is sitting at home*”.  Johal says “*I will you,* oh, I’ll figure it out. *I’ll phone you tomorrow, in the day, or you* phone *me from there*”.

 

 Kandola says “we’ll try to do it on one of the days if we have to, we’ll just try and pull uh, *or you come empty from the other side, send him*” (emphasis added).

 

1/09/07

11:35

hrs

47

From Johal to Riar - Riar refers to Johal as “Sham.”

 

 

16:34

hrs

19:18

hrs

48

 

49

From Kandola to Johal - Kandola leaves message “Hi need speedo guys # pls.”

Riar to Johal - Johal refers to Riar as “Herman.”

 

 

3/9/07

21:09 hrs

50

From Kandola to Johal - Kandola says he is on “gravies all week 7 to 6”.  Johal to give Kandola a call the next day at noon.

 

4/9/07

11:52 hrs

11:56 hrs

 

 

14:15 hrs

 

 

 

15:00

hrs

 

 

15:01

hrs

 

16:45

hrs

 

17:45

hrs

 

21:20

hrs

 

21:34

hrs

 

 

 

 

 

 

22:48

hrs

 

51

 

 

 

 

 

52

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

53

 

 

 

 

 

 

 

54

 

 

 

From Kandola to Johal - Johal asks Kandola “*will you dial me from the other one…?*”

Phone Records - Non-Intercepted Phones

Call made from Kandola’s non-intercepted phone (778-688-0329) to Johal’s non-intercepted phone (778-997-0269) – duration: 3 minutes, 33 seconds

From Johal to Riar -Johal asks Riar “*If you want to work today...?*”  Riar says “*Yes, today?*”  Riar asks “*what time*”  Johal says “We gotta leave like *quick as possible… we are going to work late.*”  Johal also says “my other buddy’s running the option right now” and is “complainin’ right now about the time”.

Phone records - Non-Intercepted Phones

call made from Kandola’s non-intercepted phone (778-688-0329) to Johal’s non-intercepted phone (778-997-0269) – duration: 5 seconds

 

Call made from Kandola’s non-intercepted phone (778-688-0329) to Johal’s non-intercepted phone (778-997-0269) – duration: 7 seconds

 

Call made from Kandola’s non-intercepted phone (778-688-0329) to Johal’s non-intercepted phone (778-997-0269) – duration: 6 seconds

 

Call made from Kandola’s non-intercepted phone (778-688-0329) to Johal’s non-intercepted phone (778-997-0269) – duration: 7 seconds

 

Call made from Kandola’s non-intercepted phone (778-688-0329) to Johal’s non-intercepted phone (778-997-0269) – duration: 12 seconds

 

From Kandola to Johal -Kandola asks Johal “*Brother, didn’t you go?*”  Johal says “*no…not today.*”  Kandola says “*You idiot, you should have told me … I have been sending you messages.*”  Kandola says “Next time just send me a text message saying no go.”  Johal says he’ll call “tomorrow morning”.  Kandola says “*Tomorrow same time.* So *you get it ready tomorrow and*”   Johal replies, “*No, the next day, next day, next day, next day.*”

 

(604 538 3600 – PHBC phone line) Kandola to Johal (v.m. then Roni then Johal) - Johal’s voicemail says “Sham at Dream Motors.” Roni picks up the phone and says “Bal.”  Kandola to call Johal tomorrow.

5/9/07

6:11 hrs

 

 

12:27

hrs

 

 

16:37

hrs

 

 

16:40

hrs

 

 

16:47

hrs

 

16:54

hrs

 

17:04

hrs

 

 

17:05

hrs

 

 

 

 

 

 

 

 

 

55

 

 

 

 

 

 

 

56

 

 

57

Data Extracted from Non-Intercepted Phones

Text message sent from Kandola’s non-intercepted phone (778-688-0329) to Johal’s non-intercepted phone (778-997-0269) that said “9 or 3”

 

Phone records for Non-Intercepted Phones

Call made from Kandola’s non-intercepted phone (778-688-0329) to Johal’s non-intercepted phone (778-997-0269) – duration:  11 seconds

 

Kandola to Johal - Kandola asks *Not today then?*  Johal replies “I think tomorrow should be *fine.  Call on my other phone*”  Kandola says “well *tomorrow* well okay.  Johal replies “Phone *me quickly* if you can.”

 

Call made from Kandola’s non-intercepted phone (778-688-0329) to Johal’s non-intercepted phone (778-997-0269) – duration:  4 minutes, 43 seconds.

 

From Johal to unknown male - Johal says he is going to the U.S. tomorrow.

 

 

From Johal to Riar - Johal says he is going to the U.S. tomorrow.  Johal asks Riar to fax him “*from the other* phone”.

 

Phone records for Non-Intercepted Phones

Call made from Riar’s non-intercepted phone (778-688-5489) to Johal’s non-intercepted phone (778-997-0269) – duration: 27 seconds

 

Call made from Riar’s non-intercepted phone (778-688-5489) to Johal’s non-intercepted phone (778-997-0269) – duration: 5 minutes, 42 seconds)

 

6/9/07

09:18

hrs

 

12:16

hrs

 

12:27

hrs

 

 

 

12:50

hrs

 

 

 

12:53

hrs

 

 

 

13:18

hrs

 

 

14:21

hrs

 

14:58 hrs

 

15:01

hrs

 

16:03

hrs

 

 

 

 

 

 

 

 

16:43

hrs

 

 

16:46

hrs

 

 

 

16:57

hrs

 

17:08

hrs

 

 

17:14

hrs

 

 

 

 

18:05

hrs

 

 

18:16

hrs

 

 

 

19:30

hrs

 

20:55

hrs

 

20:55

hrs

22:26

hrs

 

23:46

hrs

 

23:01

hrs

 

 

23:31

hrs

 

23:52

hrs

 

23:59

hrs

 

 

 

58

 

 

59

 

 

 

 

 

 

 

60

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

61

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

From Johal to Riar - Johal and Riar discuss when Riar is going to leave.  Riar says around 12-12:30.  Johal will call Riar back at twelve.

 

From Johal to Riar - Johal tells Riar “don’t forget the key” because he doesn’t have another one.  Johal says Riar has the only key and tells him again not to forget the key.

Surveillance - Canada

Johal departed Surrey Car Care at 13160 – 80 Ave, Surrey driving an Acura MDX – BC plate 243GMH - Vehicle registered to Dream Motor Cars Ltd.  [Cst. Nardi]

 

From Johal to Riar - Johal asks “*How’s it going Herman?*” Riar tells Johal that he is leaving about 5 minutes.  Johal reminds Riar not to forget the “*key.*”

 

 

Surveillance

Johal entered US via the Pacific Highway Border Crossing on 176th Street in Surrey. [Cst. Nardi].

 

Phone records for Non-Intercepted Phones

Call made from Johal’s non-intercepted phone (778-997-0269 (Johal) to Kandola’s non-intercepted phone (778-688-0329) – duration: 1 minute, 52 seconds

 

Call made from Johal’s non-intercepted phone (778-997-0239) to Riar’s non-intercepted phone (778-688-5489) – duration: 52 seconds

 

Call made from Riar’s non-intercepted phone (778-688-5489) to Johal’s non-intercepted phone (778-997-0239) – duration: 49 seconds

 

Call made from Johal’s non-intercepted phone 778-997-0239) to Riar’s non-intercepted phone (778-688-5489) – duration: 22 seconds

 

Call made from Johal’s non-intercepted phone (778-997-0239) to Riar’s non-intercepted phone (778-688-5489) – duration: 1 minute, 38 seconds

 

Surveillance U.S. – Riar Goes to Public Storage in Bothell, Washington

– Riar’s vehicle took Exit 405 off the I-5 and drove to Canyon Park Public Storage located at 1715 228 Street SE, Bothell, WA.  His vehicle was backed up to the second storage unit to the east (later determined to be Unit 38).  [S/A Becker].

 

 Riar leaves Canyon Park Public Storage and drives back to the I-5  in the Yukon [S/A Becker].

 

 

From Kandola to Johal -Kandola asks Johal to order some parts for his Mini and that it will cost around $3,000. Johal says “*That is fine.*” Johal then tells Kandola to “phone me on the other phone in a bit.”

 

Phone Records - Non-Intercepted Phones

Call made from Riar’s non-intercepted phone (778-688-5489) to Johal’s non-intercepted phone (778-997-0239) – duration: 30 seconds

 

Call made from Johal’s non-intercepted phone (778-997-0239) to Riar’s non-intercepted phone (778-688-5489) – duration: 1 minute, 4 seconds

 

Surveillance – U.S.

Riar driving GMC Yukon in the parking lot of Quil Ceda Village Mall located @ 8825 34 Avenue NE, Tulalip, WA and parked near Bob’s Burger and Brew. [Cpl. Lee]

Johal’s Acura MDX (License:  243GMH) was parked in east side of same parking lot [Cpl. Lee]

 

 Johal and Riar exited Bob’s Burger and get into their respective vehicles.  They drove to the Seattle Premium Outlet, park their vehicles away from each other and walked into mall together. [Cpl. Lee].

 

Cpl. Lee walked by Riar’s vehicle and observed three boxes in the rear.  Boxes were unopened and taped.  Cpl. Lee also walked by Johal’s vehicle and saw that it was full up to the roof with boxes of various sizes as well as Styrofoam consistent with a vehicle bumper.  [Cpl. Lee]

 

 Kandola begins his shift at PHBC. 

 

Surveillance - US

 Johal and Riar leave the Seattle Premium Outlet with bags and return to vehicles and drive to nearby Walmart [Cpl. Lee]

 

 Johal and Riar observed at Walmart  [Cpl. Lee]

 

Johal and Riar exit Walmart with bags and depart in their respective vehicles. Johal drives to nearby Tulalip Casino and enters Casino.

 

Johal exits Casino and departs in Acura MDX going northbound on I-5.

 

Data Extracted from Non-Intercepted Phones

 Text Message sent from Kandola's non-intercepted phone (778-688-0329) to Johal’s non-intercepted phone (778-997-0269) that reads “2 pls”

 

Phone Records – Non-intercepted Phones

Call made from Johal’s non-intercepted phone (778-997-0239) to Riar’s non-intercepted phone (778-688-5489) – Duration:  1 minute, 39 seconds

 

Call made from Johal’s non-intercepted phone (778-997-0239) to Riar’s non-intercepted phone (778-688-5489) – Duration: 5 minutes, 31 seconds

 

Call made from Kandola’s non-intercepted phone (778-688-0329) to Johal’s non-intercepted phone (778-997-0269) – duration: 9 minutes, 48 seconds

7/9/07

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

7/9/07

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

7/9/07

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

7/9/07

 

00:01hrs

 

 

00:09 hrs

 

00:10 hrs

 

00:11 hrs

 

 

 

01:15 hrs

 

01:23

hrs

 

 

 

 

01:28 hrs

 

 

01:41

hrs

 

 

01:51 hrs

 

01:52 hrs

 

01:52 hrs

 

 

02:00 hrs

 

 

 

02:01 hrs

 

02:04 hrs

 

 

02:05 hrs

 

 

 

02:07 hrs

 

 

02:10 hrs

 

 

02:10 hrs

 

 

 

 

 

 

02:10 hrs

 

 

 

 

 

 

02:10 hrs

 

 

02:11 hrs

 

02:11 hrs

 

 

 

02:11 hrs

 

 

 

 

 

 

 

 

 

02:11 hrs

 

02:17 hrs

 

 

 

02:11 hrs

02:58 hrs

 

 

 

12:43 hrs

 

13:39 hrs

 

 

14:29 hrs

 

 

 

 

15:06 hrs

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

62

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

62

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

63

 

 

 

 

 

 

 

 

 

 

 

 

64

 

Phone Records - Non-Intercepted Phones

Call made from Riar’s non-intercepted phone (778-688-5489) to Johal’s non-intercepted phone (778-997-0239) – duration: 33 seconds

 

Call made from Johal’s non-intercepted phone (778-997-0239) to Riar’s non-intercepted phone (778-688-5489) – duration: 41 seconds

 

Call made from Riar’s non-intercepted phone (778-688-5489) to Johal’s non-intercepted phone (778-997-0239) – duration: 12 seconds

 

Call made from Riar’s non-intercepted phone (778-688-5489) to Johal’s non-intercepted phone (778-997-0239) – duration: 2 minutes, 42 seconds

 

Surveillance – U.S.

Johal and Riar observed inside Skagit Valley Casino, Bow, WA at slot machines

 

Johal and Riar exited the Casino and entered their respective vehicles. Johal leaves first with Riar leaving three minutes later. Both driving  northbound on I-5 Hwy towards Canada.  [Cpl. Lee]

 

 

Phone Records - Non-Intercepted Phones

Call made from Johal’s non-intercepted phone (778-997-0239) to Riar’s non-intercepted phone (778-688-5489) – duration: 4 minutes, 43 seconds.

 

Call made from Johal’s non-intercepted phone (778-997-0239) to Riar’s non-intercepted phone (778-688-5489) – duration: 2 minutes, 58 seconds.

 

Call made from Johal’s non-intercepted phone (778-997-0239) to Riar’s non-intercepted phone (778-688-5489) – duration : 32 seconds.

 

Call made from Riar’s non-intercepted phone (778-688-5489) to Johal’s non-intercepted phone (778-997-0239) – duration: 12 seconds .

 

Call made from Riar’s non-intercepted phone (778-688-5489) to Johal’s non-intercepted phone (778-997-0239) – duration: 1 minute, 26 seconds .

Kandola enters PIL Booth at PHBC

 Kandola entered Primary Inspection Booth for commercial lane.  Kandola removed a cell phone from his left pant pocket, flipped it open and placed it on the desk in front of him. He typed into the cell phone. 

 

Phone Records - Non-Intercepted Phones

Call made from Johal’s non-intercepted phone (778-997-0239) to Riar’s non-intercepted phone (778-688-5489) – 28 seconds .

 

Call made from Johal’s non-intercepted phone (778-997-0239) to Riar’s non-intercepted phone (778-688-5489) – duration:  6 minutes, 51 seconds.

Surveillance – U.S.

 Riar’s vehicle took exit 275 off the I-5 and drove to  Exxon Gas Station at Boblett Street and Hwy 543 in Blaine, WA.

– Johal’s vehicle leaves Exxon gas station and heads northbound on Hwy 543 towards Canadian border.

 

Riar leaves Exxon gas station and heads northbound on Hwy 543 towards Canadian border.

 

Surveillance – Johal enters Canada Via Kandola’s PIL Booth.

Acura MDX drove up to Primary Inspection Booth 2 in commercial lane. Johal was driving.

 

Video Surveillance at Kandola’s PIL Booth

 Kandola received a folded white piece of paper from driver of silver Acura MDX (identified by surveillance team as Johal).   Kandola places the paper on the desk in front of him.  Kandola motions to stamp it but removes it at the last minute and stamps a piece of paper already on his desk and then returns the folded white paper to driver (Johal).

 

At same time the following conversation was intercepted:

 

 (Booth  audio)- Kandola to Johal -

K: …Evenin’.  How long away sir?

J: …four hours

K: Did you buy or receive anything?

J: No.

K: Have a good night.

(stamping sounds)

Surveillance

Johal then drove away from the booth into Canada. 

 

Surveillance- Riar enters Canada via Kandola’s PIL Booth

Riar’s GMC Yukon (license:  AA9208) drove up to Primary Inspection Booth 2

 

RCMP Video Surveillance at PIL Booth

Kandola received a passport from driver of GMC Yukon (confirmed by surveillance to be Riar).  Kandola returned it to the driver three seconds later. 

At same time following conversation was intercepted:

 

 (Booth audio) between Kandola and Riar

K: Why the fuck do all…? (pause) Evenin’

R: Hi there

K: How long away, sir?

R: Oh, about, few hours?

K: Anything personal?

R: Nothing personal.

K: ‘Night.

R: …thank you

K: Goodnight.

Surveillance

 Riar then drove away from the booth in his GMC Yukon.  

 

Phone Records - Non-Intercepted Phones

Call made from Johal’s non-intercepted phone (778-997-0239) to Riar’s non-intercepted phone (778-688-5489) – duration: 1 minute, 15 seconds’

 

Surveillance – Canada

 Riar and Johal drive in tandem towards Johal’s residence in Richmond. 

 

 Riar’s GMC Yukon arrived at a residence in East Vancouver. It was driven into the back lane and backed into double garage located at the rear of the residence. UM closed the garage door and looked up and down the lane.

 

 Text message from Riar to Johal - “Ask buddy if he doesn’t mind drpin trk at my house and wat time do u thnk?”

Surveillance

 A male drove the GMC Yukon (AA9208) out of the garage at a residence in East Vancouver and parked it in the rear alley.  The male then parked a blue BMW (BC plate 538JNK) inside the garage and closed the door. 

 

The same male departed in Riar’s GMC Yukon and drove directly to an address on Bird Road, Richmond.   He parked out front and spoke briefly with someone who appeared to be a neighbour.  The male then parked Riar’s vehicle in front of Johal’s residence and then departed in another vehicle away from the residence.

 

From Kandola to Johal - Johal said he called Kandola back last night but Kandola’s phone was off already. Kandola says he forgot.

 

 

9/9/07

18:29 hrs

68

Call from Kandola to Johal:

BK:       Do you wanna hook up later on or-

SJ:       I don’t, I’m still waiting-

BK:       Okay.

SJ:       -*didn’t get the* phone *call yet.*  So po-, I’ll probably may, maybe today.  If they call me then I’ll call you right away, then I’ll come meet you half way.

BK:       Yeah, let me know as soon as you can.

 

12/9/07

11:30 hrs

13:25 hrs

13:25 hrs

13:29 hrs

 

 

 

16:20 hrs

 

 

 

 

 

 

 

 

 

 

 

 

72

 

73

 

74

 

75

 

 

 

 

76

 

 

 

 

 

 

 

 

 

 

 

 

 

text message from Kandola to Johal - “Am back”

 

 Kandola to Johal (leaves message) Johals voice mail says “You’ve reached Sham of Dream Motor Cars”.

 Text message from Kandola to Johal

Can u pay mini 4 me.  $4k take from myn.”

From Johal to Kandola - Kandola asks Johal “if you haven’t met up with buddy yet … just go by Mini for me and pay off my bill there.”  Johal asks how much it is.  Kandola says “Four K”.   Johal says “*I’ll go in the morning.*”

 

Unknown male to Johal - UM refers to Johal as “Sham.”  Johal says “Dude the guy text me earlier”  UM tells Johal to tell “the guy” to “calm the fuck down, it’s not even the end of the month”. Johal says “No, no.  He goes uh, no, you still owe him for last month.”

Johal continues “but he was texting me.  He goes, hey can you do me a favour.  With my money that you owe me, can you go to this retail store, whatever kind of car he drives and go pay uh, four K for me?” 

The UM later replies “I think he’s probably just letting you know, like he’s got a four K bill, like, hurry up, can you give me my cheque?” Johal says “No, he wants me to go there, pay it.”

 

 

13/9/07

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

13/9/07

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

08:45 hrs

 

10:10 hrs

 

10:13 hrs

 

 

 

10:29 hrs

 

 

 

 

 

15:14 hrs

 

 

15:38 hrs

 

 

15:55 hrs

 

 

 

16:15 hrs

 

 

 

 

 

 

 

 

16:16 hrs

16:30 hrs

 

16:30 hrs

 

16:34 hrs

 

 

16:37 hrs

 

 

16:43 hrs

 

 

17:02 hrs

 

 

 

 

77

 

 

78

 

 

 

 

79

 

 

 

 

 

 

80

 

 

 

 

 

 

 

81

 

 

 

 

82

 

 

 

 

83

 

Surveillance

 Kandola’s Mini Cooper (257BNX) observed in service bay 2 at Richmond Mini at 10700 Cambie Road, Richmond.

 

 Kandola to Johal (voicemail)

Kandola leaves a message:  “Hey buddy, just me, give me a call”.

 

Kandola to Jay LNU at Mini Richmond -

Kandola identifies himself as “Bal”.  They talk about work being done on his Mini.  Kandola says “I’ll get my cousin to come down, drop some money on it for me.”

 

From Johal to Kandola - Kandola asks about meeting up with Johal that night.  Johal tells Kandola “I don’t really want to go to uh, Mini and do that thing, because I don’t know the *East Indian* guy working there too.  You never know man, if the guy knows who I am and who you are, that would be really fucked up, right?”  They discuss the payment Kandola needs to make regarding his Mini.

 

From Kandola to Colin (LNU) at Richmond Mini - Colin says Kandola’s Mini will be ready in 45 minutes.

 

Surveillance

 Kandola is observed arriving at Richmond Mini. He is seen going for a ride in his Mini with a dealership employee and returns a few minutes later.

 

From Kandola to Johal - Kandola tells Johal that he is at Mini and asks “Can you meet me here? *I wanted to get two from you.*”  Johal complains he will get caught in traffic. Johal says he will call Kandola back in 2 minutes. 

 

From Johal to Kandola - Johal and Kandola arrange to meet at the Wendy’s / Tim Hortons on Annacis Island. The following is an excerpt from this call:

BK:       Where...meet?

SJ:       I'll be there in exactly two minutes.

BK:       MacDonald's?

SJ:       Uh, no, across the street, where I always meet you.  Uh, okay, actually, ma-, make it the Wendy's.  Probably less ..., less quieter there.

BK:       Where's the Wendy's?

 

Surveillance:

 Kandola left the Richmond Mini dealership in his vehicle.

 

Text message from Kandola to Johal  -  “Her”.

 

Surveillance at Annacis Island

 Kandola parks his vehicle in parking lot of Tim Horton’s/Wendy’s at 1359 Cliveden Avenue.

 

13/9/07 at 16:34- Johal arrived in blue Ford Mustang (LP#: 143MBB) 

- Johal parked his Ford Mustang next to Kandola’s Mini Cooper in the parking lot .

 

Johal exited his Mustang and opened rear hatch and removed a white package/envelope from the trunk/hatch area. Johal then entered the passenger seat of Kandola’s Mini Cooper. 

 

Johal exited Kandola’s Mini and stood beside his Mustang.  Johal was no longer holding anything. Johal and Kandola left the parking lot in their respective vehicles.

 

 Kandola returned to Mini dealership in Richmond. Kandola paid $4000 cash at Mini dealership for the upgrades to his vehicle.

 

 

20/9/07

09:27 hrs

89

20/9/07 at 09:27 Intercepted Call 89 (audio in PIL Booth) Kandola,  Unknown Male and Unknown Female (Booth audio)

Kandola examines a male and female entering Canada from the United States. They were in the commercial truck lane.  Kandola’s questioning of them was completely different from his questioning on Johal and Riar when they entered Canada in their passenger vehicle through the commercial truck lane.  An excerpt from that call is as follows:

BK:       And what are you two doing today?

UF:       Uh, we’re going to ... Whistler.

BK:       You’re going to Whistler?

UF:       Yeah.

BK:       What’s the commercial goods?

UF:       Huh?

BK:       What do you have-

UF:       (Chuckles) Sorry?

BK:       What do you have for commercial goods?

UF:       Uh, we got two candy things from Duty Free.  Like, ... mint chocolate an’ raspberry thing.

ET 00:03:50

BK:       No.  What do you have-

UF:       ...

BK:       -for commercial goods?  You’re in the commercial lane.

UF:       Oh, sorry.  Nothing.

BK:       Okay.  Did you notice all the trucks?

UF:       Yeah.  Our friend told us that we can go...

BK:       Your friend’s an idiot.

 

 

 

The October 24-25, 2007 Crossing

[130]     Some intercepted communications, phone contact and surveillance of the accused prior to the border crossing of October 24-25, 2007, are as follows:

09/10/07

20:11

hrs

103

Johal asked Kandola “*Can you hit on the other one?*”

    (There are then two calls between Johal and Kandola on the dedicated cell phones of durations of 1 minute, 23 seconds and 1 minute, 59 seconds)

 

16/10/07

12:02 hrs

 

 

13:27

hrs

 

13:47 hrs

 

14:07 hrs

115

 

 

 

116

From Mark McDonnell(CBSA) to Kandola - McDonnell informs  Kandola that he is back on night shift and doesn’t have to work at Huntington. He is back to night shift (at PHBC) for “Monday [Oct. 22] to Thursday [Oct. 25].”

 

From Johal to Kandola - Johal and Kandola arrange to meet at a store at 176th and 96th in Surrey.

Surveillance

 Kandola and Johal met at Parkside Market located at 17619 – 96th Avenue, Surrey. Kandola seen sitting in the passenger seat of Johal’s Acura MDX (243GMH) in the parking lot.

Kandola exited Johal’s vehicle and got into a red and white Mini Cooper.

 

19/10/07

00:31 hrs

 

 

 

 

00:48 hrs

 

00:50 hrs

 

09:47

hrs

117

 

 

 

 

 

118

 

 

119

 

 

120

From Johal to Riar - Johal refers to Riar as “Herman”. Johal asks if Riar remembered “the key” that Johal gave him a long time ago.  Riar says he still has “one”. Johal asks if he has two or one.  Riar says he might have two and that he’ll check.

 

19/10/07 Intercepted call #118 at 00:48 Riar to Johal - Johal needs Riar’s key back.  Johal has to “give somebody the key, they’re gonna make another one for tomorrow.”

 

Riar to Johal - Riar tells Johal that he found the key. Johal tells him to drop it off at his house.  Riar says he’ll do so in the morning.

 

Gurjit Johal to Riar - Riar tells Gurjit that he dropped off an envelope with “the key” at Johal house for “Mr. Shminder Johal”. Gurjit asks “what key”.  Riar says “you know *there*”.  Gurjit then says, “I get it.”

 

22/10/07

13:05 hrs

 

13:11 hrs

 

18:57 hrs

123

 

 

124

 

 

125

 

 

 

Text message from Kandola to Johal -

“Please call me.”

 

From Johal to Kandola - Kandola tells Johal that he is working graveyard shifts all week. Kandola will talk to Johal in the morning.

 

From Johal to Riar - Johal tells Riar he has something to give him so Riar should call when he is coming home.

 

 

 

23/10/07

 

 

 

 

 

 

 

 

23/10/07

 

 

 

 

 

 

 

 

 

12:40 hrs

 

12:41 hrs

 

 

12:42 hrs

15:41 hrs

 

 

 

17:03 hrs

 

19:08 hrs

 

19:12 hrs

 

 

 

 

126

 

 

 

 

 

127

 

 

 

 

128

 

 

129

Phone records - Non-Intercepted Phones

Call made from Kandola’s non-intercepted phone (778-688-0329) to Johal’s non-intercepted phone (778-997-0269) – duration: 4 seconds

 

From Kandola to Johal - Kandola  asks Johal if he has “*the other one with you*” and tells him to “*turn it on.*”

 

Phone records - Non-Intercepted Phones

Call made from Kandola’s non-intercepted phone (778-688-0329) to Johal’s non-intercepted phone (778-997-0269) – duration: 7 minutes, 42 seconds

From  Gurjit Johal to Riar - Gurjit  tells Riar  “You gotta drive truck tomorrow, don’t forget.”  Gurjit says his brother was wondering why Riar hadn’t called him.  Riar says “Just ask him what time we’re gonna head out tomorrow.”  Gurjit says “I’ll come and tell you in person.”  

 

From Gurjit Johal to Riar - Riar says he’ll call “him”.  Gurjit says to call Gurjit and he’ll tell Riar if “he’s home”.

 

From Johal to Riar - Riar asks “What time’s that uh Halloween party tomorrow?”  Johal says “Call me right now *on the other one*”.

Phone records - Non-Intercepted Phones

Call made from Riar’s non-intercepted phone (778-688-5489) to Johal’s non-intercepted phone (778-997-0269) – duration: 2 minutes, 29 seconds

 

24/10/07

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

24/10/07

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

24/10/07

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

24/10/07

10:10 hrs

 

10:25 hrs

 

11:34 hrs

 

11:56 hrs

 

 

11:57 hrs

 

12:02 hrs

 

 

12:03 hrs

 

12:28 hrs

 

 

 

 

12:30 hrs

13:04 hrs

 

13:34 hrs

 

13:42 hrs

13:56 hrs

 

13:57 hrs

 

 

14:12 hrs

14:13 hrs

 

14:15 hrs

 

14:20 hrs

 

 

14:26 hrs

 

14:21 hrs

 

 

 

14:35 - 14:45 hrs

 

15:25 hrs

 

15:55 hrs

 

 

16:01 hrs

 

16:32 hrs

 

16:43 hrs

 

 

 

18:03 hrs

18:14 hrs

 

 

19:30 hrs

 

 

 

 

 

20:02 hrs

 

20:03 hrs

 

20:04 hrs

 

20:10 hrs

 

20:10 hrs

 

 

20:09 hrs

20:12 hrs

20:15 hrs

 

20:17 hrs

20:23 hrs

 

20:30 hrs

 

20:36 hrs

20:49 hrs

 

20:51 hrs

 

21:59 hrs

 

 

 

22:08 hrs

22:22 hrs

 

22:35 hrs

 

 

22:38 hrs

 

23:10 hrs

23:22 hrs

 

23:24 hrs

23:26 hrs

23:31 hrs

23:59 hrs

 

130

 

 

131

 

 

132

 

 

133

 

 

 

 

 

 

134

 

 

 

135

 

 

136

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

137

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

24/10/07 Intercepted Call #130 at 10:10 Johal to Kandola’s voice mail - Voicemail says “You’ve reached Bal Kandola”.   Johal does not leave message

From Johal to Kandola voice mail -  Voicemail message says “you’ve reached the Kandolas”.  Johal does not leave message

 

From Johal to Kandola voice mail -

Voicemail says “You’ve reached Bal Kandola”.  Johal does not leave message.

From Riar to Johal - Riar asks “what’s up”.  Johal says I’ll call you back ..”  Riar says “*On the other one*”.

 

Phone Records - Non-Intercepted Phones

Call made from Johal’s non-intercepted phone (778-997-0269)  to Riar’s non-intercepted phone (778-688-5489) – duration: 57 seconds

 

From Johal to Kandola voice mail -

Voicemail message says “you’ve reached the Kandolas”.  Johal does not leave message

 

From Johal to Kandola voice mail -

Johal hangs up before the voice mail recording finishes.

 

From Kandola to Johal - Johal asks “*did you forget about me*”.  Kandola asks “Did I forget what?  Oh, the text.”  Johal says “yeah *I’ve been waiting for you.*” Kandola says “Um, time, *can I just tell you.*”   Johal tells Kandola “*no, do it on the other one, its* better *right*.”  Kandola says he will call Johal right back.

Phone Records - Non-Intercepted Phones

Call made from Kandola’s non-intercepted phone (778-668-0329) to Johal’s non-intercepted phone (778-997-0269) – duration: 29 seconds

Call made from Johal’s non-intercepted phone (778-997-0269) to Riar’s non-intercepted phone (778-688-5489) – duration: 51 seconds

Surveillance

Riar left his residence at 4360 Dallyn Road, Richmond driving his GMC Yukon (BCLP# AA9208).

Phone Records - Non-Intercepted Phones

Call made from Johal’s non-intercepted hone (778-997-0269) to Riar’s non-intercepted phone (778-688-5489) – duration: 24 seconds

Call made from Johal’s non-intercepted phone (778-997-0269) to Riar’s non-intercepted phone (778-688-5489) – duration: 24 seconds

 

From Gurjit Johal to Riar - Discuss pending trip to U.S.  Riar says “your bro is taking his wife.”  Riar  says “we always spend at least 6 hours together. That’s why it feels fuckin’ uncomfortable for me, now.”

Surveillance

 Riar entered the U.S. via the Peace Arch (Blaine) border crossing driving his GMC Yukon (AA9208).

 Riar drove through Blaine WA southbound on the I-5 Hwy.

 

Phone Records - Non-Intercepted Phones

Call made from Riar’s non-intercepted phone (778-688-5489) to Johal’s non-intercepted phone (778-997-0269) – duration:  1 minute, 24 seconds

Surveillance – U.S.

Riar drove to a Shell gas station located at 3425 Birch Bay / Lynden Road in Custer, WA.  He exited his vehicle and entered the store.  Johal then arrived at the same Shell Station in his GMC Yukon (D53398) with his wife and fuelled his vehicle. 

Riar departed the Shell gas station and headed south on I-5

 

Phone records - Non-Intercepted Phones

Call made from Johal’s non-intercepted phone (778-997-0269) to Riar’s non-intercepted phone (778-688-5489) – duration: 47 seconds

 

Surveillance – U.S.  – Boxes Loaded into Locker 38 at Public Storage in Bothell, Washington

 Unknown Male (later identified as Isaac Parman) arrived at Canyon Park Public Storage locker located at 1715 - 228 Street in Bothell, WA.  The male pulled up to locker #38, removed boxes from his vehicle, and put them inside the locker.  He then left the facility

Phone Records - Non-Intercepted Phones

Call made from Riar’s non-intercepted phone (778-688-5489) to Johal’s non-intercepted phone (778-997-0269) – duration: 56 seconds

Surveillance – Riar goes to Locker 38 and loads boxes

Riar took Exit 228 from Highway 405.  Riar then turned into the Public Storage facility at 1715 - 228 Street in Bothell, WA.  He backed his vehicle up against locker #38 , opened the locked door, and loaded several boxes into his vehicle.

Riar’s vehicle pulled away from the locker and left the Public Storage facility.

Phone Records - Non-Intercepted Phones

Call made from Johal’s non-intercepted phone (778-997-0269) to Riar’s non-intercepted phone (778-688-5489- - duration: 40 seconds

Surveillance – U.S.

Riar parked his vehicle in front of main entrance at Seattle Premium Outlets Mall on the west side of I-5 Hwy.  Riar got out of vehicle and walked into mall.  Cpl. Small walked by Riar’s vehicle – observed several brown cardboard boxes in the rear partially hidden by a roll out cover and one box on the rear seat on the passenger side.

Riar walked out of the mall and returned to his GMC Yukon

 

 Johal (and wife Roni) arrived at the same mall parking lot in Johal’s GMC Yukon.  They walked over to meet up with Riar and all three walked to main entrance of the mall

CBSA Documents

Kandola began his shift at the PHBC.  Kandola was scheduled to work until 06:00 a.m. the next morning. Kandola was scheduled to be in the Primary Inspection Booth for the commercial lane at the following times:

-8:00 to 9:00 p.m. on October 24;

-12:00 to 1:00 a.m. on October 25;

-4:00 to 5:00 a.m. on October 25th

Phone Records - Non-Intercepted Phones (Text Messages – PST )

Text message sent from Johal’s non-intercepted phone (778-997-0269) to Kandola’s non-intercepted phone (778-688-0329)

Text: “Everything cool”

Text message sent from Kandola’s non-intercepted phone (778-668-0329) to Johal’s non-intercepted phone (778-997-0269)

Text: “Yes”

Text message sent from Johal’s non-intercepted phone (778-997-0269) to Kandola’s non-intercepted phone (778-688-0329)

Text:  “12”

Text message sent from Kandola’s non-intercepted phone (778-668-0329) to Johal’s non-intercepted phone (778-997-0269)

Text:  “Yes”

Text message sent from Johal’s non-intercepted phone (778-997-0269) to Kandola’s non-intercepted phone (778-688-0329)

Text:  “Ok”

Surveillance – U.S.

Riar, Johal and Johal’s wife exited the Seattle Premium Outlet mall and drove off in their respective vehicles.

Johal and wife depart parking lot heading northbound on I-5. Riar remained in parking lot with lights on.

 Riar departs and heads northbound on I-5 Hwy.

 

Phone Records - Non-Intercepted Phones

Call made from Johal’s non-intercepted phone (778-997-0269) to Riar’s non-intercepted phone (778-688-5489) – duration: 27 seconds

Call made from Johal’s non-intercepted phone (778-997-0269) to Riar’s non-intercepted phone (778-688-5489) – duration: 19 seconds

Surveillance – U.S.

 Riar turned off the I-5 at Exit 543 and parked his vehicle at the Smoky Point Road Mall, Lakewood, WA.  He then walked into a Target store.

Phone Records - Non-Intercepted Phones

Call made from Riar’s non-intercepted phone (778-688-5489) to Johal’s non-intercepted phone (778-997-0239) – duration: 24 seconds

Call made from Riar’s non-intercepted phone (778-688-5489) to Johal’s non-intercepted phone (778-997-0239) – duration: 24 seconds

Surveillance – U.S.

Johal and his wife arrived at Smoky Point Road Mall and parked near Riar’s vehicle.  They also entered the Target store. 

 

 Riar, Johal and Roni Johal exited the Target store together.  Johal and wife were carrying bags.  Riar was pushing a store cart full of bags and a large white cardboard box. They split up at Riar’s Yukon and then left mall in their respective vehicles.

Phone Records - Non-Intercepted Phones

Call made from Johal’s non-intercepted phone (778-997-0269) to Riar’s non-intercepted phone (778-688-5489) – duration: 18 seconds

Call made from Riar’s non-intercepted phone (778-688-5489) to Johal’s non-intercepted phone (778-997-0239) – duration: 44 seconds

Surveillance – U.S.

Riar’s vehicle left the I-5 Hwy at Exit 236 and parked in Skagit Casino parking lot.

 

Phone Records - Non-Intercepted Phones

Call made from Riar’s non-intercepted phone (778-688-5489) to Johal’s non-intercepted phone (778-997-0239) – duration: 16 seconds

Surveillance – U.S.

 Johal’s vehicle observed parked in the Skagit Casino parking lot

 Johal’s vehicle departed the casino and drove back onto the I-5 via Exit 236.  Riar’s vehicle took same route 4 minutes later at 23:26

Phone Records - Non-Intercepted Phones

Call made from Johal’s non-intercepted phone (778-997-0269) to Riar’s non-intercepted phone (778-688-5489) - Duration: 17 seconds

Call made from Johal’s non-intercepted phone (778-997-0269) to Riar’s non-intercepted phone (778-688-5489) - duration:  44 seconds

Call made from Riar’s non-intercepted phone (778-688-5489) to Johal’s non-intercepted phone (778-997-0239) – duration: 28 seconds

Call made from Johal’s non-intercepted phone (778-997-0269) to Riar’s non-intercepted phone (778-688-5489) - duration: 20 seconds

 

25/10/07

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

25/10/07

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

25/10/07

 

 

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138

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

138

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

140

 

 

 

RCMP Video Surveillance - Kandola enters PIL Booth

25/10/07 at 00:02 (12:02 a.m.) - Kandola entered PIL Booth 2 at the PHBC to start his primary inspection duties in the commercial lane. 

 Kandola removed a cellular phone from his left shirt pocket and placed phone on the desk to left of keyboard that was in front of him. He flipped the phone open and typed into it for more than 30 seconds. When he finished typing, Kandola closed cell phone and left it beside his keyboard 

Phone Records:  Non-Intercepted Phones  (Text Messages – times are PST)

Text message sent from Kandola’s non-intercepted phone (778-688-0329) to Johal’s non-intercepted phone (778-997-0269)

Text:  “aja”  

 Text message sent from Johal’s non-intercepted phone (778-997-0269) to Kandola’s non-intercepted phone (778-688-0239)

 Text: “OK”

RCMP Video Surveillance in Kandola’s PIL Booth

One minute after typing into the phone, the display screen on Kandola’s cell phone lit up  

Phone Records – Non-Intercepted Phones

Call made from Riar’s non-intercepted phone (778-688-5489) to Johal’s non-intercepted phone (778-997-0269) - duration:  5 seconds

Call made from Riar’s non-intercepted phone (778-688-5489) to Johal’s non-intercepted phone (778-997-0239) – duration: 1 minute, 24 seconds

 

Johal and Riar enter Canada via Kandola’s PIL Booth

 Surveillance

Riar’s Yukon pulled into the Exxon gas station off exit 275 in Blaine. As soon as Riar arrived, Johal drove away from the Exxon station and went northbound on Hwy 543 toward Canadian border.

 Johal’s Yukon arrived at the commercial lanes at the PHBC

 

Phone records - Non-Intercepted Phones

 Call made from Riar’s non-intercepted phone (778-688-5489) to Johal’s non-intercepted phone (778-997-0269) – duration: 33 seconds

Call made from Riar’s non-intercepted phone (778-688-5489) to Johal’s non-intercepted phone (778-997-0239) – duration: 35 seconds

 

Surveillance

 Riar’s Yukon arrived in the northbound commercial lane at PHBC

 

Johal’s GMC Yukon (no front licence plate) pulled up to Kandola’s PIL booth in the commercial vehicle lane at PHBC

RCMP Video Surveillance

Driver [Johal]gave a piece of paper and what appeared to be a passport to Kandola.  Kandola took these documents in his left hand and placed them on the desk in front of him.  Using a stamp in his right hand, Kandola stamped a yellow pad of paper that was on the desk and returned the documents back to Johal.

CBSA Surveillance Video (view of traffic in commercial lane from a distance)

( CBSA video time) - Shows Johal’s vehicle arriving at Booth

 At the same time, the following conversation took place:

(audio in PIL Booth) - Johal at Kandola’s inspection booth

 

Kandola: Hi.  How long away?

Driver (Johal): About an hour.

Kandola: Did you buy or receive any goods, sir.

Driver (Johal): No.

(Banging noises)

Kandola: Thank you.

Surveillance

 After a short period of time at the booth, Johal drove away from the Primary Inspection Booth and drove northbound on 176th Street. 

Video Surveillance

 Approximately 30 seconds after Johal departed the booth, Kandola ripped the yellow piece of paper that he stamped from the pad and placed it into a believed garbage bin on the floor to his right.  Kandola then examined another driver.  He then placed the cell phone on the desk back into his left shirt pocket.   

 

Surveillance

 Johal’s Yukon drove northbound on 400 block of 176th Street past a collision scene that had been staged by the RCMP using a marked police car with its emergency lights on.  As Johal drove past, he was observed talking on a cell phone.  Johal then turned eastbound on 8th Avenue and southbound on 172 Street.

Phone Records - Non-Intercepted Phones

Call made from Johal’s non-intercepted phone (778-997-0269) to Riar’s non-intercepted phone (778-688-5489) – duration:  30 seconds

 

Call made from Riar’s non-intercepted phone (778-688-5489) to Johal’s non-intercepted phone (778-997-0269) – duration: 5 minutes, 29 seconds

 

Riar Enters Canada Via Kandola’s PIL Booth

 

Surveillance

 Riar’s Yukon (LP# AA9208) pulled up to Kandola’s booth (Booth 2) in the commercial vehicle lanes at PHBC

 

RCMP Video Surveillance

 Kandola received what appeared to be a passport from the driver (Riar). Kandola appeared to scan the passport on a scanner out of view of the camera to the right side of Kandola.  He then returned the passport back to the driver

CBSA Surveillance Video (view of commercial lane from a distance)

(12:25 a.m. – CBSA video time) - Shows Riar’s vehicle arriving at the booth

 

Audio of Kandola and Riar at Kandola’s PIL Booth

 

Kandola – Evenin

Riar – Hi

Kandola – How long you been gone?

Riar – Oh, about half an hour.

Kandola – Buy anything?

Riar – No, just went for fuel.

(Pause)

Kandola – Thanks

Riar – Cheers

Kandola – Good night

Riar – Bye

 

Surveillance:

 Riar’s Yukon departed from Kandola’s  booth and drove northbound into Canada.

Data Extracted from Non-Intercepted Phones [Cpl. Kuan]

Call made from Johal’s non-intercepted phone (778-997-0269) to Riar’s non-intercepted phone (778-688-5489)

Surveillance

Riar’s Yukon drove northbound on 176th Street from the PHBC.  He then turned westbound onto 4th Avenue from 176 Street just before the location of the RCMP’s staged collision scene.

 

After their arrest Riar and Johal were placed in the back of Const. Ploughman’s car

 Intercepted call #140 (00:34 to 02:45)  @ 12:58:

Johal and Riar recorded in back of Cst. Ploughman’s police car.

Riar asks where “they” came from. Johal says he doesn’t know.

Johal tells Riar not to say anything.

Riar mentions something about “the phone”.

Riar asks if they knew.

Johal says “yes, everything”.

Johal says they got saved because they are in Canada.

 

 

a)  Intercepted communication between Johal and unindicted co-conspirator

[131]     I am acutely aware that this evidence could only be used on the conspiracy count in the indictment.  The evidence to which I refer is the intercepted communication that took place between Johal and an unknown unindicted co-conspirator, “Al”.  In my view, this conversation, during the duration of the conspiracy, gives a true flavour of the benefits that Kandola received for agreeing to waive Johal and Riar through customs without inspection.  I am also aware that this conversation could only be used against Kandola if I find that “Al” was a probable member of the conspiracy.

[132]     The following are the intercepted communications to which I refer:

12/9/07

11:30 hrs

13:25 hrs

13:25 hrs

13:29 hrs

 

 

 

16:20 hrs

 

 

 

 

 

 

 

 

 

72

 

73

 

74

 

75

 

 

 

 

76

 

 

 

 

 

 

 

 

 

 

 

Text message from Kandola to Johal - “Am back”

 

 Kandola to Johal (leaves message) Johals voice mail says “You’ve reach Sham of Dream Motor Cars”.

 Text message from Kandola to Johal

Can u pay mini 4 me.  $4k take from myn”

From Johal to Kandola - Kandola asks Johal “if you haven’t met up with buddy yet … just go by Mini for me and pay off my bill there.”  Johal asks how much it is.  Kandola says “Four K”.   Johal says “*I’ll go in the morning.*”

 

Unknown male to Johal - UM refers to Johal as “Sham.”  Johal says “Dude the guy text me earlier”  UM tells Johal to tell “the guy” to “calm the fuck down, it’s not even the end of the month”. Johal says “No, no.  He goes uh, no, you still owe him for last month.”

Johal continues “but he was texting me.  He goes, hey can you do me a favour.  With my money that you owe me, can you go to this retail store, whatever kind of car he drives and go pay uh, four K for me?” 

The UM later replies “I think he’s probably just letting you know, like he’s got a four K bill, like, hurry up, can you give me my cheque?”.  Johal says “No, he wants me to go there, pay it” (emphasis added).

 

 

 

Summary of the evidence pertaining to the phone contact and surveillance of Johal, Riar and Kandola surrounding the October 24-25, 2007 crossing

[133]     In the two weeks prior to October 25, 2007, Kandola spoke with Johal both on the intercepted phone lines and on the dedicated phones; as noted above, a call occurred on the intercepted phones on October 9 (Call 103), directing Kandola to speak with Johal on the dedicated phone.  As well, they met in a parking lot of a store in Surrey on October 16.

[134]     On October 19, 2007, Johal spoke with Riar about a “key” that Johal needed to give to someone (Calls 117-120).

[135]     On October 23, Kandola and Johal spoke on both the intercepted phone lines and on the dedicated phones (Call 126).  Later that day, Johal spoke with Riar on the intercepted phone lines and then on the dedicated phones (Call 129).

[136]     Around mid-day on October 24, Johal spoke with Riar and with Kandola on both the intercepted phone lines and the dedicated phones.  Johal’s conversation with Kandola was brief and related to a “time” that Kandola wanted to relate to Johal.  Johal, however, suggested that they speak on the “other one” (referring to the dedicated phone), which they did.

[137]     A short time later, in the early afternoon of October 24, 2007, Johal and Riar travelled to Washington State in separate vehicles.  Johal and Riar were in frequent phone contact on the dedicated phones throughout the day.  At approximately 4:00 p.m., Riar attended the same storage locker (#38) at the Public Storage facility in Bothell, Washington, as he had on September 6.  Riar loaded a number of boxes into his GMC Yukon.  After departing, Riar eventually met up with Johal (and Johal’s wife) at a mall complex off of the I-5 Highway.

[138]     Shortly after 8:00 p.m., Johal and Kandola exchanged a series of text messages on the dedicated phones, which confirmed “12” as the crossing time.

[139]     Riar and Johal (or their vehicles) were then observed at a retail store and then a casino.  Again, Johal and Riar were in frequent phone contact on the dedicated phones.

[140]     At midnight, Kandola began working in the PIL booth on the Commercial side of the PHBC.  Kandola removed a cell phone from his left shirt pocket, placed the phone on his desk and then typed into it.  The phone records indicate that Kandola sent Johal a text message on the dedicated phone, which said “*aja*”, meaning “come” in Punjabi.  Johal replied, via text, “ok”.

[141]     Johal and Riar continued to be in communication on their dedicated phones after this time and up to the point of their respective arrests.

[142]     At approximately 12:15 a.m., Johal entered Canada via Kandola’s PIL booth.  They had a brief conversation which was recorded.  At approximately 12:21 a.m., Riar entered Canada via Kandola’s PIL booth.  They also had a brief conversation which was recorded.  Kandola did not query Johal, Riar, or their respective vehicles in the CBSA computer database.

[143]     Shortly after Riar entered Canada, he was arrested by the RCMP.  Two hundred and eight kilograms of cocaine and three firearms were located in eleven cardboard boxes in his GMC Yukon.  These items were all seized from Riar’s vehicle.  As well, both his intercepted cell phone and dedicated phone were seized.

[144]     Johal was arrested in his vehicle a short distance away.  His intercepted cell phone and dedicated phone were also seized from him on his arrest.

[145]     Kandola was arrested in the PIL booth.  His dedicated phone was seized from him on his arrest.

[146]     Because the drugs, guns and ammunition were seized in the last crossing, I propose now to review the evidence seized after the crossing that took place on October 24-25, 2007.

The Arrest of the Accused:  October 24-25, 2007 Crossing

a)  Evidence seized from Riar’s GMC Yukon with British Columbia Licence Plate #AA9208 on his arrest

[147]     On October 25, 2007 at 00:45, while at the arrest scene, Cst. Molison searched Riar’s vehicle incidental to arrest and seized:

Blue Nokia cell phone with phone number 778-889-3225 (intercepted phone). This phone was found lying on the ground beside the rear driver’s side of Riar’s vehicle;

Blue Motorola cell phone with phone number 778-688-5489 (dedicated phone).  This phone was found in center console area.

[148]     On October 25, 2007 at 02:57, Riar’s vehicle was searched incidental to arrest and the following items were seized:

11 boxes with 208 bricks of cocaine – 10 boxes in the rear cargo area; 11th box was on back seat;

Box 1 – 20 bricks

Box 2 – 21 bricks

Box 3 – 20 bricks

Box 4 – 20 bricks

Box 5 – 20 bricks

Box 6 – 20 bricks

Box 7 – 5 bricks (and guns)

Box 8 – 21 bricks

Box 9 – 21 bricks

Box 10 – 20 bricks

Box 11 – 20 bricks

[149]     Each brick was packaged with several layers of plastic with a greasy substance and fabric softeners between the layers.  Some of the bricks were stamped with various letters or images – “TLC”, “VOLVO”; a dolphin image; a mickey mouse image; “Ford”, “972”.  The total number of bricks of cocaine seized from Riar’s vehicle was 208, each weighing approximately one kilogram.

Three handguns and ammunition seized from Riar’s vehicle at the time of his arrest

[150]     Box #7 seized from Riar’s vehicle contained five bricks of white powder.  Underneath the bricks was a white plastic bag containing white sport socks.  The socks contained the following handguns:

·        Heckler & Koch .45 calibre automatic pistol with magazine – serial #25-026749;

·        Heckler & Koch 9 mm semi-automatic pistol with magazine – serial #24-14505;

·        Sturm Ruger Redhawk .44 calibre magnum revolver – serial # 500-98965;

·        40 rounds of .45 calibre ammunition.

[151]     Also seized from Riar’s vehicle at the time of his arrest were:

·        Riar’s Canadian Passport, seized from front console (showing Riar’s DOB: October 16, 1981);

·        Two “Shurgard” keys, seized from front console under the dash. 

[152]     I find as a fact that these “Shurgard” keys were the keys that Johal wanted Riar to make sure that he brought along with him on the trips to the U.S.  I also find as a fact that these were the keys to Locker 38 at the Public Storage facility in Bothell, Washington, from which Riar extracted the 11 boxes of cocaine (208 kilos) and the handguns.

[153]     Also found in Riar’s vehicle was the Insurance Corporation of British Columbia registration for the vehicle – registered owner:  Herman Singh Riar.

b)  Evidence seized from Johal’s GMC Yukon with British Columbia Licence Plate #D53398 on his arrest

[154]     On October 25, 2007 at 00:30, Cpl. Sellinger conducted a cursory search of Johal’s vehicle incidental to arrest and seized the following items:

·        Vehicle Registration – Registered Owner is Dream Motor Cars Ltd., 235 Stewardson Way, New Westminster – plate: “Dealer”  

·        Black Rogers Motorola Cell phone – seized from front console

[155]     At 04:10 a.m., the RCMP searched Johal’s vehicle incidental to arrest [Cpl. Sellinger; Cst. Glionna] and seized:

·        Shminder Johal’s passport, seized from center console (showing Johal’s DOB: August 21, 1973);

·        Blue Samsung cell phone with phone number 604-724-4949 (Johal’s intercepted cell phone).  This phone was seized from the front dash.

[156]     Also seized from his vehicle was a Blue Motorola cell phone with phone number 778-997-0269 (Johal’s dedicated phone).  This phone was seized from between the driver’s seat and centre console of Johal’s vehicle.

[157]     From Johal’s vehicle the police also seized various car parts mostly associated with Mercedes Benz, which appeared to have been recently purchased.  Those car parts took up a good portion of the cargo area of Johal’s SUV.  This evidence is consistent with the surveillance evidence of Special Agent Small of United States Immigration and Customs Enforcement, who observed that on October 24, 2007, at 14:56 hours a vehicle bearing licence plate D53398 was in Blaine, Washington, with Johal loading auto parts into the vehicle from Can-Amer Freight Inc., located at 1160 Yew Avenue, Blaine, Washington, some parts requiring the use of a forklift.

[158]     The motor vehicle parts seized from Johal’s vehicle were:

·        Four Mercedes rims and four nitro NT 555 tubeless tires;

·        One Mercedes-Benz transmission;

·        One Krupp Bilstein right front wheel assembly;

·        One rear end assembly;

·        One 2004 E350 Mercedes-Benz airbag assembly;

·        One Mercedes-Benz headlight assembly;

·        One blue Ford Mustang Saleen trunk assembly;

·        A vehicle dash assembly;

·        Eight pieces of plastic molding for a vehicle;

·        One plastic front grille wrapped in protective packaging;

·        One box that contained 20 wheel nuts and plastic molding for a vehicle.

c)  Evidence seized following a search of Johal’s residence after his arrest on October 25, 2007

[159]     A few hours after his arrest on October 25, 2007, from approximately 2:15 a.m. to 6:03 a.m. on October 25, 2007, the police conducted a search of Johal’s residence in Richmond, British Columbia.  Johal’s residence was described as a very, very large, fairly new house with security cameras all around it.  In one of the sketches prepared for the Court, there is a reference to the house containing 24 rooms, including bathrooms.  One portion of the house was occupied by Johal’s brother and his family.

[160]     In the search of Johal’s portion of the residence the police found some documents including:

·        a mortgage application document; and

·        a bank statement in Johal’s name showing a balance in that account of $60,772.15 as of October 10, 2007.

[161]     In addition, the police found various sums of money in different parts of Johal’s residence, which totalled $223,880 Canadian.  A sketch of Johal’s residence was entered as an exhibit.  Inspector MacDonald, who was qualified as an expert regarding the use, distribution, price, packaging and importation of cocaine (discussed more fully below), opined that the money seized from Johal’s residence was the proceeds of drug trafficking.  The following is a breakdown of the sums of money and their denominations that were found in the following areas of Johal’s residence:

·        CAD $15,500: found in a Nike box in a hall closet in room 5.  This sum was broken down into 275 x $20 and 500 x $20. 

o   Insp. MacDonald testified that the packaging of the money indicates that this money came from the sale of drugs.  The officer opined that the street level trafficker usually ends up with a significant number of small bills.  He opined that most drug organizations have a preponderance of $20 bills.  He testified that the five individual bundles held together with a larger rubber band indicates that the large bundle would be $10,000.00.  The officer testified that he has only seen this method of parceling money in drug trafficking cases.

·        CAD $149,985: found in a blue sports bag under the bed in room 4.  This sum was broken down into 14 bundles with 500 x $20 in each bundle. There was a 15th bundle that had 449 x $20 and 1 x $5. 

o   The officer was of the view that because of the way this money was packaged and because of the large amount of $20’s, this money was from drug trafficking.

·        CAD $50,000: found in a Blackberry box next to the blue sports bag under the bed in room 4.  That sum was broken down into 5 bundles with 100 x $100 in each bundle. 

o   Insp. MacDonald was of the view that this money also came from drug trafficking.  The officer opined that in drug organizations $100 bills are valuable because it allows them to move large amounts of money in a smaller package.  As a result they would remove $100 from their cash and wrap them separately.

·        CAD $4,835: found inside a cheque book in room 1.  This sum was broken down into broken down 15 x $100, 13 x $50.00, 131 x $20, 4 x $10, 5 x $5. 

o   Insp. MacDonald testified that it is common for the money to be removed from the bulk to pay their other costs.  They may have to pay a trafficker or someone who did a job for them.

·        CAD $2,900: found inside a vase in room 4.  This sum was broken down into 14 x $100, 10 x $50, 47 x $20, 1 x $10 and 10 x $5.

·        CAD $660: found in a drawer in room 4.  This sum was broken down into 33 x $20.00.

d)  Evidence seized from Kandola after his arrest at the PHBC

[162]     Shortly after his arrest, at 00:29 hrs on October 25, 2007, Cst. Parahoniak searched Kandola incidental to that arrest and seized a Motorola cell phone with phone number 778-688-0329 (Kandola’s dedicated phone) from his left shirt pocket under soft body armour; at 00:33 hrs on October 25, 2007, Cst. Grinstead also entered Kandola’s PIL booth and seized the CBSA stamp assigned to him.

[163]     At 00:50 hrs, Cst. Grinstead searched the locker assigned to Kandola in the CBSA employee locker room and seized a CBSA Commercial Automated Targeting System Input Sheet naming Speedline Auto Sales and dated April 2, 2002.

[164]     At 00:54 hrs, Cst. Grinstead and Cst. Parahoniak searched Kandola’s Mini Cooper (British Columbia Licence Plate #257BNX) located in the employee parking lot.  The officers seized Kandola’s wallet with identification.

e)  Evidence seized from Kandola’s residence after his arrest

[165]     At 02:06 a.m. on October 25, 2007, an RCMP search team executed a search warrant at Kandola’s residence.  The following items were seized:

·        Nokia N95 cell phone with phone number 604-339-6127 (intercepted phone line). This phone was seized from the kitchen counter.

·        Transport Canada Vehicle Importation form listing Dream Motor Cars c/o Amrjit Dhaliwal as the importer and date stamped July 20, 2006.

·        Various documents found in the master bedroom closet with Kandola’s name and address.

The Expert Testimony of Inspector MacDonald

[166]     Inspector MacDonald was qualified to give expert evidence regarding the use, distribution, price, packaging and importation of cocaine.

[167]     This case involved the importation of 208 kilograms of high-grade cocaine worth between $5 and 6 million dollars at the kilogram level.  Insp. MacDonald testified that the degree of care taken increases with the value of the shipment.

[168]     Insp. MacDonald testified about the division of labour related to an organization importing cocaine and the various roles within that organization.  The purpose of the division of labour is to protect the organization from being found by the police.

a)  The structure of a drug importation organization

Leader

[169]     The leader arranges the purchase, sets the prices, arranges transportation and farms out work to other parts of the organization.  The leader is like a chief executive officer.  The leader is responsible for the payment of funds.  Where payment is not made, there can be retribution.

Transporters

[170]     Transporters move the contraband from point A to B for a set amount of money.

Overseer

[171]     The overseer works closely with the leader and is in charge of ensuring that the transporter gets from point A to B.  The overseer is responsible for following the load.  The overseer may follow in a different vehicle.  The overseer is to advise the leader should there be a police intervention or problem getting through the border.  As well, the overseer advises the leader regarding the progress of the transport.

[172]     The overseer has to have knowledge of the product being imported in order to determine the level of care.  The higher the value of the product being imported, the higher the level of care.

Traffickers

[173]     Once the drugs have been imported, they are then trafficked at various levels until the drugs reach the street level.

Facilitators

[174]     In addition to the four main groups in a drug importation organization mentioned above, there are people that facilitate the actions of the four groups.  This would include bankers, law enforcement, lawyers – any number of groups of people who have a specific task.  In cross-examination, Insp. MacDonald agreed that a BSO would fall into the category of facilitator.  He also agreed that it was in the realm of possibility that a facilitator could be misled about the contraband being imported.

b)  Trust

[175]     Insp. MacDonald indicated that trust is the calling card within an illegal drug organization.  It is built up slowly within a trafficking and importation organization.  This case involved over 200 kilograms of cocaine.  Insp. MacDonald testified that you don’t walk into the streets looking around for 200 kilograms of cocaine.  You have to work your way up.

[176]     Once a leader acquires a large quantity of cocaine, they are on the hook to pay the supplier of the cocaine.  The leader is not going to put a significant amount of money in the hands of someone that the leader does not trust.  The overseer would be trusted as would the transporter.

c)  Operational security

[177]     Insp. MacDonald testified that a drug importation organization will take steps to minimize the theft of the product or police intervention.  This includes the use of multiple cell phones.  This would include phones where only one person knows the phone number.  This phone may be used only on the day of the importation.  If there is any suspicion that the phone has been compromised then it is not used any more.

d)  Cocaine importation

[178]     Insp. MacDonald testified that cocaine comes from South America.  The dollar value of cocaine increases as it moves north.  As it crosses borders, the price goes up.  In 2007, cocaine was $5,000 to $6,000 per kilogram in South America, $12,000 to $13,000 per kilogram in Los Angeles and $25,000 to $30,000 per kilogram in British Columbia.

[179]     Insp. MacDonald testified about the significance of the stamps on the bricks of the cocaine.  When cocaine is produced in South America, there are a number of different producers.  There are also brokers.  Suppliers in South America brand their cocaine.  If there is a problem with the cocaine, the broker knows where it came from.

[180]     The purity levels of the cocaine in the case at bar were very high which indicates the cocaine is closer to the supplier.

[181]     It was Insp. MacDonald’s opinion that the cocaine was not packaged in the same format as the way it was packaged from the source country.  For example, the U-Haul boxes were labelled in English and one would usually see Spanish language documents, including newspapers.  Insp. MacDonald testified that the cocaine was probably taken out of the method of transport and packaged into boxes for further transport.

[182]     Insp. MacDonald testified that people involved in larger scale drug operations are deliberately not informed about any aspect of the scheme they don’t need to know about.  Furthermore, it is possible for people to not even be aware that drugs are the commodity.

[183]     Counsel for Kandola submits that Insp. MacDonald’s evidence on this point is an important response to the Crown’s suggestion that Kandola was aware of Johal’s attempts to insulate himself from detection at the border by driving ahead of Riar.  Or that Kandola did not have contact with Riar to insulate himself.  The Crown attributes a degree of knowledge and sophistication on the part of Kandola that he just didn’t have and which is inconsistent with the workings of a drug organization.

e)  Cash seized from Johal’s residence

[184]     Insp. MacDonald testified about the cash seized from Johal’s residence.  His opinion was that the cash was derived from the sale of drugs.  Insp. MacDonald had only seen the type of bundling ($10,000 with $2,000 subsets) in drug trafficking cases.  As well $100 bills are valuable in a drug trafficking organization as it allows the group to move larger amounts of money in a smaller package.  In cross-examination, Insp. MacDonald testified that the way the money was packed was consistent with drug trafficking – he was only commenting on the physical presence of the money.

The Application of Insp. MacDonald’s Expert Testimony to Some of the Facts of this Case

[185]     The Crown’s position is that Johal was clearly the overseer, Riar was the transporter and Kandola was a facilitator.

[186]     Insp. MacDonald testified that the overseer has to have knowledge of the product in their charge so that they know the level of care needed to protect the load.  The higher the value, the higher the level of care.  According to the testimony of the Inspector, some of the precautions that are usually taken include the use of multiple cellular phones, the use of codes when speaking on the phones, and the use of evasive driving maneuvers.

[187]     Insp. MacDonald opined that the packaging of the money seized from Johal’s residence was consistent with the packaging of money from the proceeds from the sale of drugs like cocaine.

[188]     Under cross-examination, Insp. MacDonald admitted that the more a person knows about the specifics of the importation scheme, the greater the risk of detection.  The officer agreed that there was a less compelling reason for a facilitator, like a border guard, being made aware of the details of the importation scheme.  It is possible that the facilitator would know very little about the object of the importation scheme other than that what is being imported is contraband.

[189]     Mr. Markovitz on behalf of the accused submitted that the evidence of Insp. MacDonald with respect to the source of the money found at Johal’s residence was beyond his scope of expertise and should be excluded.  He submitted that in any event, Insp. MacDonald was not qualified as an expert in the area of the packaging of monies from drug sales.  With respect, I disagree.  This evidence was within the expertise of Insp. MacDonald.

Johal

a)  Johal’s position

[190]     Counsel for Johal takes the position that Johal never conspired to import cocaine from the U.S.A. to Canada.  Johal claims that at all times that he was crossing into Canada from the U.S.A. he was doing so for the purpose of importing cars and car parts.  He testified that he was unaware that Riar was carrying anything other than jerseys, purses, clothing, and cigarettes when he crossed into Canada shortly after he (Johal) did.

[191]     Johal testified that, after meeting Kandola at a restaurant in Langley, they struck up a friendship.  That sometime in the summer of 2006, he and Kandola exchanged phone numbers.  Johal testified that at or near the end of 2006, Kandola agreed to help him bring his cars and car parts through the Canadian Border by waiving him through the border.  Johal testified that at the time he made no offers to Kandola of financial compensation to Kandola for this help but that later he did agree to give Kandola some financial reward as an incentive to help through customs without his having to wait at the border or pay duties on the car parts he was importing into Canada.

[192]     Johal testified that he was not always completely honest with Kandola as to the exact nature of items that Riar was bringing into Canada through Kandola’s PIL booth.  In fact, Johal agrees that he told Kandola that Riar was bringing extra car parts into Canada for him when he believed that Riar was really bringing into Canada, jerseys, purses and cigarettes.

[193]     Johal testified that at no time did he know that Riar was importing drugs, firearms or ammunition.

b)  Johal’s credibility

[194]     Permit me to say that in assessing the credibility of both Johal and Kandola, I have considered the words of my brother Voith J. when he wrote in R. v. Drydgen, 2011 BCSC 393 at para. 65:

[65]      Finally, in expressing this conclusion, I recognize that there were some inconsistencies between the evidence that Mr. Mourtazaliev gave at trial and either his earlier statements to the police or the evidence he gave at the preliminary inquiry. I begin by noting that the events in question occurred more than two years ago. The passage of time is likely to influence memory, particularly as it relates to matters of lesser detail. Still further, inconsistencies on minor matters or questions of detail are normal: R. v. Fillion, [2003] O.J. No 3419 at para. 27 (S.C.J.); R. v. G. (M.) (1994), 93 C.C.C. (3d) 347 at 354, 73 O.A.C. 356. In saying this I also recognize that several minor inconsistencies can, in some cases, influence the reliability of a witness’s evidence....

[195]     Johal’s testimony was replete with answers like, “I can’t recall”, “I can’t remember,” “maybe”.  I found his testimony to be nothing but a tissue of lies.  He made absolutely no attempt to be truthful in his testimony.  I have difficulty accepting anything that he said.

[196]     Call 74 was a text message sent to Johal by Kandola.  It read, “Can u pay mini 4 me.  $4k take from myn”.  When asked what he understood the text to mean, he testified that he thought the word “myn” meant money.  When asked simple questions he tended to equivocate.  During cross-examination he frequently became agitated and argumentative.

[197]     I specifically reject Johal’s evidence that he was only involved in importing cars and car parts and that he was operating independently of Riar.  The level of planning, the small savings on import duties on car parts – between $1,000 to $3,000 per load – militates against the suggestion that this operation was merely to facilitate the importation of car parts.  In fact while this arrangement with Kandola was in effect, Call 4 (July 12), Johal told Kandola that he brought a Lincoln across the border.  In that call he told Kandola that it took him an hour and one-half to get through customs on that occasion but that it usually takes half an hour.  Again, in Call 33 on August 7, 2007, Kandola asks Johal how Gurj (Johal’s brother) is doing.  Johal says that Gurj is stuck at the border.  Kandola says “*…you should have just phoned me.*”  These two calls indicated that, during the duration of his arrangement with Kandola, Johal continued to bring cars and car parts across the border without any problem or delay.  Then, although Johal stated that the reason he got into this arrangement with Kandola was because of the time he wasted at the border crossing while waiting to bring car parts and cars into Canada, on the July 28th crossing, he and Riar were prepared to wait overnight so that he could pass through Kandola’s booth with Riar in tow.

Johal’s testimony about Riar

[198]     Johal testified that Riar had found out about the relationship he had with Kandola so he asked him if he could help him to get Kandola to waive him through customs when he was importing jerseys, purses and cigarettes.  Johal said he mentioned this to Kandola and Kandola agreed to waive Riar through customs.

[199]     On the evidence, I find that the level of planning and communication between Johal and Riar is inconsistent with Riar operating independently of Johal.  It was a simple matter for Johal to make one phone call to Riar to tell him the crossing time.  No further planning was required.  This is inconsistent with the evidence.

The CAD $223,880 found in Johal’s residence on the morning of his arrest and Johal’s driving behaviour on July 28, 2007

[200]     When questioned about the large amount of cash that was found in his home, Johal’s answer was simple.  He stated that for the nine years preceding his arrest, his Dream Motors business (or Speedline Auto previously) had gross sales of between $1.5 million and $4.5 million.  Between 2004 and 2007, his average sales were $200,000 per month.  He also testified that the cash found in his house came from sales to gangsters who preferred to pay cash for their car purchases.  He testified that the large amount of $20 bills bundled into packages of $10,000 was just his way of bundling the large sums of cash that he received from the sale of his vehicles.

[201]     The evidence from Johal as to how he came into possession of this large sum of cash is ludicrous.  I have great difficulty accepting this evidence.  I find that there is an irresistible inference that this large amount of cash came from the sale of drugs and not from the sale of cars.

Johal’s erratic driving behaviour

[202]     In my view, it is no coincidence that after the border crossing of July 28, 2007, Johal was observed to be driving his vehicle in an erratic manner as if to avoid surveillance.  The explanation by Johal that on that occasion he was looking for his dog is also ludicrous.  After being told by Kandola on July 24, 2006, that he was under suspicion for importing cocaine into Canada, one would expect that Johal would undertake the manoeuvres that he did in an effort to see if he was being followed by law enforcement officers.

c)  Finding of fact with respect to the role played by Johal in the alleged conspiracy

[203]     From the evidence adduced at this trial, I find that Johal was clearly the overseer of the agreement to import cocaine.  He was responsible for coordinating the timing of the crossings with Kandola.  He was also responsible for providing benefits and payment to Kandola for his role in the conspiracy including cash and various upgrades to Kandola’s Mini Cooper vehicle.  As well, Johal provided a cell phone to Kandola and attempted to assist Kandola in obtaining a cheap laptop computer.

[204]     I also find that Johal was responsible for making arrangements with Riar to bring his GMC Yukon (British Columbia Licence Plate #AA9208) to the United States to pick up the shipment of cocaine.  Johal travelled to the United States at the same time as Riar, although Johal travelled in a different vehicle.  Johal then met with Riar in the United States after Riar had picked up the shipment of cocaine (as set out in the surveillance of September 6-7 and October 24-25).  While in the United States and after crossing back into Canada, Johal was in constant communication with Riar by way of the non-intercepted cell phones.  On each of July 28, September 7 and October 25, Johal travelled first across the border into Canada via Kandola’s PIL booth and then Riar travelled following Johal (either directly behind or a short time later).  Johal then escorted Riar back to Richmond to ensure that the cocaine was delivered safely.

[205]     On the evidence, I find as a fact that on this crossing, as in the crossings on July 28 and September 6-7, 2007, the modus operandi was the same.  Johal and Riar would go to the U.S.A. in separate vehicles.  Johal would place motor vehicle parts in his vehicle, while Riar would pick up the cocaine.  Both Riar and Johal would be in constant contact by the dedicated phones.  They would meet up in the U.S.A. and cross the border when Johal got the word from Kandola that it was safe to do so.

[206]     I find that on the October 25, 2007 crossing, Johal, having already been alerted by Kandola, on July 24, 2006, that he and his companies were suspected by the CBSA of importing cocaine, decided that he would take extra precautions.  Just in case he was still under suspicion, he decided to take his wife on the trip and he made sure that anyone who was observing him would know that he was loading car parts into his vehicle.  On this occasion he made sure that a forklift was used to load some of the car parts into his vehicle.

[207]     I find as a fact that having been advised by Kandola, on July 24, 2006, that he was suspected of importing cocaine into Canada, Johal used Riar as a transporter.  The use of Riar in this fashion insulated Johal from risk as well as Kandola.  Riar was the only person ever seen with the cocaine.  Johal crossed the border first on each of July 28, September 7 and October 25.  In this fashion, if the plan went awry, then Johal would have been gone from the border by the time Riar was arrested.

[208]     On October 24, 2007, on the day before the final crossing by Riar and Johal, Call 137 was a call from Gurjit Johal to Riar.  In that call they discuss the pending trip to the U.S.  Riar says “your bro is taking his wife”, and then says, “we always spend at least 6 hours together.  That’s why it feels fuckin’ uncomfortable for me, now.”

[209]     There is very strong circumstantial evidence, including the precautions and secrecy with which he conducted his affairs, that Johal was aware of the cocaine and guns that were found in Riar’s vehicle when they were arrested.  In addition to that evidence, there is the statement made by Johal to Riar, in Punjabi, when they were placed in the same police car shortly after their arrest on October 25th, “we got saved, we are in Canada.”

Kandola

a)  Kandola’s position

[210]     Counsel for Kandola submits that this case is about misplaced trust.

[211]     Counsel for Kandola submits that the evidence reveals that Kandola met Johal while working as a BSO at the PHBC.  Kandola worked the Commercial side of the crossing and often dealt with Johal in his capacity as a frequent automobile and automotive parts importer.  It was through their professional encounters at the border that Kandola knew Johal to own and operate automotive businesses.

[212]     Counsel for Kandola further submits that over time Kandola’s relationship with Johal grew to a point where Kandola considered Johal a friend.  Kandola trusted Johal as friends do.  In the fall of 2006, Johal asked Kandola to help him cross the border to avoid frustrations he was experiencing when attempting to cross with his cars and car parts.  Kandola had previously conducted computer database queries that showed that the CBSA had received a tip of unknown reliability in the past that Johal may be smuggling drugs into Canada.  Johal provided Kandola with an explanation for the tip that Kandola believed.  In the ensuing days, multiple checks of the very same database showed that the CBSA was no longer concerned about Johal.  This confirmed Kandola’s belief that the tip was baseless as did his knowledge that Johal had been inspected many times at the border and was never found to be carrying contraband.

[213]     Counsel for Kandola submits that ultimately it was his trust in Johal and the injustice of his friend’s treatment at the border that spurred Kandola to agree to help with his crossings.  He trusted Johal to protect him from the risk of detection.  He trusted Johal to bring in only cars or car parts.  For waiving Johal through the border, Kandola at first expected nothing in return.  Rather, he was prepared to stick his neck out for a friend, as friends often do.  Eventually, Kandola received compensation or benefits that were nominal at best – certainly not consistent with knowingly helping in the importation of millions of dollars of drugs.

[214]     Counsel for Kandola submits that Kandola also knew what he himself had seen of Johal and his employees while working at the border.  Through his work, Kandola conducted numerous secondary examinations of Johal and his vehicles including those he would import.  He was also aware through the CBSA computer database network of secondary examinations performed on Johal or his employees by other CBSA officers.  Kandola was aware that no contraband of any type had ever been found during a secondary search of Johal, his employees, and their vehicles and cargo.  These inspections also gave Kandola confidence that he knew what Johal did for a living.  It is noteworthy, however, that quite a few of these observations were made by Kandola after he had let the cat out of the bag, having told Johal on July 24, 2006, that he was suspected of importing cocaine into Canada.

[215]     Counsel for Kandola submits that the CBSA documents extracted from the CBSA computer databases show Dream Motor Cars to be an importer of vehicles and vehicle parts.  Between 2005 and October 2007, the CBSA records show Dream Motor Cars imported approximately 128 vehicles.  On approximately 147 occasions, Dream declared automobile related goods at the border during that time.  [Admissions: Form 1, B-3, ACROSS tables].  What counsel does not admit is that, thanks to Kandola, on July 24, 2006, Johal was alerted to his being suspected of importing cocaine into Canada.

[216]     Counsel for Kandola submits that Kandola assisted Johal cross the border on a monthly basis beginning in early 2007.  Kandola always observed car parts in Johal’s vehicle during the crossings.  On the last three crossings, Johal and a friend of his, Herman Riar, crossed together but in separate vehicles.  Kandola believed Riar to be carrying extra car parts for Johal.  Although he did not know Riar, Kandola trusted that Johal would not do anything outside of their arrangement.

[217]     Counsel for Kandola submitted that on October 25, 2007, Johal and Riar crossed the border at Kandola’s booth just as Johal had done a number of times before and Riar had done the last couple of times.  Kandola could see car parts in Johal’s vehicle but not Riar’s due to his tinted windows.

[218]     Counsel for Kandola points out that Johal and Riar were arrested minutes after crossing.  A search of Johal’s vehicle revealed car parts just as Kandola had seen and expected.  A search of Riar’s vehicle did not reveal car parts; instead, a large quantity of cocaine was found – a commodity well outside of the scope of Kandola’s arrangement with Johal.  Minutes later Kandola was arrested and charged with the counts in the indictment.

[219]     In Kandola’s counsel’s submission, that Kandola aided Johal and Riar’s crossing into Canada by recommending a time for the crossing and not following CBSA protocol when they crossed, is not in dispute.  Despite the detail and complexity of the evidence and the legal issues involved, the case is at its core a simple one.  It comes down to answering one question:  has the Crown proven beyond a reasonable doubt that Kandola knew Riar was bringing cocaine into Canada when he crossed at his PIL booth?

[220]     Counsel for Kandola submits that the evidence shows Kandola received modest compensation, all things considered – certainly not compensation consistent with knowingly participating in a multi-million dollar drug smuggling endeavour.  He did not live like someone who received more than he testified to, and did not act like it either.

[221]     The Crown suggests that Kandola ought not to be believed partially because he didn’t question Johal about Riar.  Counsel for Kandola submits that, in fact, Kandola’s evidence was vague on this point.  His recollection was, not surprisingly, unclear.  He testified that he may have asked Johal questions about Riar but that he couldn’t recall.  Counsel for Kandola submits that there is a distinction between someone saying they don’t recall and saying they do recall and it didn’t happen.  In any event, he certainly knew Johal would be accompanied by someone else.  Counsel for Kandola further submits that even if Kandola had not questioned Johal about Riar, it does nothing to hurt his credibility.  On the contrary, it corroborates Kandola’s stated belief that he trusted Johal to protect them and import auto parts as he had said.

[222]     Counsel for Kandola submits that when the evidence is applied to the law, the question can only be answered one way – the Crown has not proved beyond a reasonable doubt that Kandola knew that Riar was bringing cocaine into Canada.  Kandola placed his trust where he should not have.  He may have been naive, or he may have lacked imagination or been stupid in doing so, but he cannot be convicted for it.

b)  Kandola’s testimony

[223]     Kandola testified that he is 39 years old, has been married for 11 years and he is a very religious man.  He attends church once a week.  He came to live in Canada when he was 10 years old.

[224]     Kandola testified that he first met Johal at the PHBC in 2002.  He testified that at that time Johal was a frequent importer (two to three times a week).  Johal imported cars, car parts and auto accessories.  During his employment with the CBSA he performed secondary inspection on the items imported by Johal or his employees on at least six occasions.  According to Kandola, these secondary inspections are done by two CBSA employees.  Kandola identified exhibit 11 as a form that was completed in part by him.  This form recorded the results of a secondary search of one of the items being imported by Johal on April 2, 2002.

[225]     Kandola testified that the companies which were associated with Johal’s import business included Speedline Auto, Dream Motors and Dream Limousine.  He testified that when cars were being imported by Johal, they would be driven across the border on a trailer while the car parts were driven over the border in a truck or SUV.

[226]     Kandola testified that his relationship with Johal developed outside of work in late 2005.  He testified that it is normal to see persons with whom they deal at the border outside of work.  He testified that in late 2005 he and his family went to a restaurant where they ran into Johal and his family.  According to Kandola, Johal greeted him and they had a casual conversation during which Johal asked him why they keep harassing him at the border crossing.  Kandola testified that he told Johal that he was just doing his job.  He testified that he also told Johal that he could use the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, to find out the cause.

[227]     Kandola testified that subsequent to this meeting he saw Johal in all three sections in which he worked at the border.  He testified that up to July 2006 he had conducted secondary examinations on Johal or his employees more than six times.

[228]     Kandola was shown a notepad entry in Exhibit 96, tab 76.  He identified that notepad entry as the record of a secondary inspection that he did on one of Johal’s vehicles which was being imported.  He pointed out that on that vehicle and the other vehicles imported by Johal on which he did the secondary inspection, he conducted ion scans on three parts of the vehicle in order to ascertain if there were any traces of narcotics.  These tests all came up negative.  He testified that he also had access to all of the notepad entries on the ICES system and all of those entries indicated that all of the secondary inspections of Johal’s imported vehicles, car parts or accessories came up negative.  In fact, there was nothing suspicious discovered in any of these secondary inspections.

[229]     Kandola testified that after a while his relationship with Johal became “a little more jovial” and he became a “little less scrutinizing” of Johal.  He testified that this was so because he had checked Johal on so many occasions and his paperwork was always in order.  He testified that he had no reason for concern about Johal’s activities.

[230]     Kandola testified that eventually he and Johal exchanged phone numbers.  After they did that he was told by Johal that his wife’s cousin, an RCMP member, was phoning in tips to the CBSA in an effort to interfere with his importing business.  According to Kandola, Johal told him that those tips were false and they were being phoned in to cause problems for him in his importing business.  As a result of receiving this information from Johal in July 2006, Kandola went into the CBSA’s databases of ICES and ITEL and ACROSS to ascertain if this was true.  Kandola testified that on one occasion he found out that there was a “lookout” placed on the system for Johal, his employees and his companies.  The notepad entry of the search that Kandola conducted in May 2005 was also a secondary search that was conducted pursuant to a “lookout”.  Kandola testified that he accepted Johal’s explanation for these “lookouts” being placed by the CBSA because it was so easy to get onto the CBSA’s tip line.  Kandola also testified that he was convinced that Johal’s story was true when he saw that the tip was from the RCMP and that the information was of unknown reliability.

[231]     Kandola testified that after seeing this information he made various inquiries on the CBSA’s databases for Johal, his employees and his companies.  Each one of these searches came up with negative results.  This gave him (Kandola) the impression that the CBSA was no longer interested in Johal, his employees or his companies.  Kandola testified that the relationship between himself and Johal developed from there.  The relationship became more relaxed.  According to Kandola, Johal asked him if he could help him.  Kandola testified that he had noticed that Johal was still being tied up at the border and harassed sometimes for up to six hours at a time.  Kandola testified that after noticing this he made up his mind to help Johal.  He testified that he told Johal how much his job meant to him.  He was the first Sikh to be employed in that position and explained the risk he would be undergoing in trying to help him.  Kandola testified that Johal indicated that he also had a lot at risk because he was a millionaire with a thriving business.  He also told Kandola of the effect the delays at the border had on his business.  Kandola testified that seeing that Johal was just as fearful of the consequences of his “waiving” Johal through at the border, he began to trust Johal.  He began waiving Johal through at the border.  Kandola maintains that even though he was taking a risk at first he was not receiving any benefit from Johal for “waiving” him through the border.  He did agree, however, that Johal did pay for some of the expenses for upgrades on his Mini Cooper.  He testified that he received no more than $10,000 from Johal.

Kandola consistently denied that he asked any questions about Riar

[232]     Kandola’s evidence that he never questioned Johal about Riar is inconsistent with his own efforts in assessing Johal in 2006 when he took the initiative and did queries in the CBSA database.

[233]     Kandola testified in direct examination that the first time he met Riar was when he crossed through Kandola’s PIL booth on July 28, 2007.  Kandola had not seen Riar before that and had never spoken with him prior to that occasion.  Kandola was never in Riar’s company other than at the PIL booth.  Kandola learned Riar’s name when he provided his passport at the PIL booth.  The name meant nothing to Kandola.

[234]     Kandola had a number of opportunities to question Johal regarding Riar after the July 28, 2007 crossing.  Kandola maintained throughout his cross-examination that he did not ask Johal anything about Riar.  His evidence was that he trusted Johal.

[235]     On the evidence before me, although there are no intercepted communications between Kandola and Riar, I am satisfied that the Crown has proved beyond a reasonable doubt that Kandola knew about the role both Johal and Riar played in the importation of cocaine into Canada.  Apart from the mountain of circumstantial evidence to which I have already alluded, there are the intercepted statements between Kandola and Johal where they were planning the time of the next border crossing, partly in Punjabi:

Date

Call #

Intercepted communication

24/08/07

41

Call from Johal to Kandola:

BK:       “*Any work ...*”

SJ:       ...-

SJ:       ...-

BK:       -*...?*

SK:       -“*I have not got the phone call yet .  ... waiting for it.*”

BK:       Okay.

SJ:       -“I think, *...* that’s why ....  Yeah. ....”

BK:       “Yeah, if not, no worries.”

SJ:       “So, as soon as I know I’ll call you right aways.”

BK:       “Well, yeah, like I said we got three days.”

SJ:       “Yeah, no, *I’m waiting for it . He hasn’t called me yet.*”

 

31/8/07

46

From Johal to Kandola - Kandola asks Johal “*do you have the other phone*” and Johal says he does not.  Kandola says “*we have to do it on* Monday”.  Johal asks “*Why?*”  Kandola replies “*Because* after Tuesday, they have those other people there again.” 

 

Kandola says “that’s what I found out yesterday, that they’re working that same shift I am next week.  They’re not working Monday, they’re working Tuesday, Wednesday, Thursday…*if we have to do it, five o’clock you, do it at five o’clock or four o’clock in the morning, because they don’t work after four o’clock.*”

 

Johal says he won’t be able to talk to Kandola for the next little while “*the other* phone *is sitting at home*”.  Johal says “*I will you,* oh, I’ll figure it out. *I’ll phone you tomorrow, in the day, or you* phone *me from there*”.

 

 Kandola says “we’ll try to do it on one of the days if we have to, we’ll just try and pull uh, *or you come empty from the other side, send him*”(Emphasis added).

 

[236]     I agree with the Crown when they submit that in Call 41, Johal tells Kandola he is waiting for a call to determine if there’s “work”; this does not mean that he is waiting for a call about car parts.  I agree with the Crown that this interpretation does not make sense if they are talking about auto parts for pickup at Can-Amer because Johal could have just called Can-Amer to inquire.

[237]     At one point during the cross-examination of Kandola, he testified that he understood the concept of the drug courier and how a drug organizer insulates himself.  He acknowledged that Riar was driving a separate vehicle from Johal, that he did not know Riar, and that he could not see inside Riar’s vehicle.  Furthermore he acknowledged that the crossing had been arranged by Johal.  Later in the cross-examination, Crown counsel suggested that Riar was a “variable” that should have been explored.  In my view this is a very astute observation made by the Crown.  In this case, thanks to Kandola, Johal was aware since July 24, 2006, that he was suspected of cocaine importation.  It is only reasonable to assume that he would take all steps to insulate himself from the drug if it was being imported.  As a result, I find as a fact that Johal used a set modus operandi for the importation of cocaine into Canada.  He went down to the U.S.A. with Riar.  On their way back through Kandola’s PIL booth, he would have car parts in his vehicle and Riar would follow a short time later with cocaine in his vehicle.  Riar and Johal would then drive in tandem to a destination where the drugs would be unloaded.

[238]     Based on the totality of the evidence on this trial, I interpret the emphasized portion of Call 46 to mean that Kandola is telling Johal that he could depart from the usual modus operandi that he and Riar followed.  Johal did not have to bring car parts into Canada, he could just send Riar to pick up the drugs and bring them across the border and he (Johal) could come ahead of Riar through his PIL booth without any car parts in his (Johal’s) vehicle.

c)  Kandola’s credibility

[239]     Under cross-examination, Kandola’s testimony was replete with answers like, “I can’t remember”, I don’t know”, and “I don’t recall”.  This was so especially when asked about what was discussed in calls that took place between himself and Johal on the dedicated phones that were given to him by Johal.  It is fair to say that throughout his testimony Kandola seemed to have a very selective memory of events.

[240]     Like Johal, Kandola was not a very credible witness.  He struck me as being a very articulate and assertive individual who, like Johal, had very sketchy memories of most, if not all, of the conversations that he had with Johal over the dedicated phones.  Some of this testimony was vague and unresponsive.  He too, tended to equivocate when questioned.  He was not a good historian.  Kandola had difficulty recalling the crossings in which he waived Johal through, other than the crossings in which independent evidence was presented.  Kandola had difficulty remembering the cash payments he received from Johal.  I agree with the Crown’s position that his evidence should be rejected as not capable of belief.  I also agree with the submission of Crown counsel that Kandola was wilfully blind as to the nature of what Johal and Riar were importing into Canada.

[241]     Kandola did not disagree with, or take issue with, much of the evidence tendered by the Crown.  Kandola, however, testified that he believed that Johal (and then later Riar) were smuggling car parts.  He did not waiver from that evidence in the course of his testimony.  However, I find that the level of planning and sophistication involved demonstrated that something much more valuable than car parts was being imported.  I agree with the submission of Crown counsel that the evidence of the level of planning involved in this matter demonstrates that this importation scheme clearly had nothing to do with car parts.

[242]     I agree with the Crown’s submission that if Johal or Riar were smuggling car parts and someone other than Kandola was in the PIL, they could simply declare the goods, fill out the paperwork and pay the taxes and duties.  If, however, Johal and Riar were smuggling cocaine, the risks increase significantly.  Johal and Riar would be at risk of secondary examination at which point the cocaine would likely be discovered.

[243]     Having dealt with an overview of the evidence introduced in this case.  I now turn to an analysis of the various counts in the indictment.

E.       DISCUSSION OF THE COUNTS IN THE INDICTMENT

Count 1 – The Conspiracy Charge

a)  Some legal principles concerning the law of conspiracy

[244]     In R. v. Rojas, [1997] O.J. No. 3756 (Ct. J. (Gen. Div.)), Watt J. (as he then was) sets forth the essential elements of criminal conspiracy at paras. 4-8:

4          The essence of criminal conspiracy is proof of agreement. It is the agreement itself which is the gist of the offence. See, R. v. Paradis (1933), 61 C.C.C. 184 (S.C.C.), 186, per Rinfret J.; and, R. v. Cotroni (1979), 45 C.C.C. (2d) 1 (S.C.C.), 17, per Dickson J. The external circumstances or actus reus of the offence is the fact of agreement. See, R. v. Cotroni; and, Director of Public Prosecutions v. Nock, [1978] 3 W.L.R. 57 at 62 (U.K. H.L.), 68. What is important is not what was done in pursuit of the agreement, but whether there was, in fact, a common agreement to which the acts done are referable, and to which all of the alleged confederates were privy. See, R. v. Cotroni, supra, at pp. 17-18, per Dickson J.

5          To convict an accused of conspiracy, the trier of fact must be satisfied beyond a reasonable doubt

i.    that the conspiracy alleged existed; and,

ii.   that the accused was a member of it.

See, R. v. Carter (1982), 67 C.C.C. (2d) 568 (S.C.C.), 575, per McIntyre J.

6          Participation of an accused in a criminal conspiracy may be proven by evidence of the accused's own words and conduct. This evidence is directly admissible against the accused. Prosecutions for the inchoate or preliminary crime of conspiracy do not differ, in this respect, from   prosecutions for substantive offences.

7          In prosecutions for conspiracy and substantive crimes alleged to have been committed by pre-concert, the prosecutor may also rely on evidence of the acts and declarations of other participants, in furtherance of the common unlawful purpose, to complete proof of participation by any individual accused. This hearsay exception is rooted in principles of agency. It may only be invoked in respect of an accused, however, where the trier of fact finds first, from that accused's own acts and declarations, that the accused is probably a member of the conspiracy or common unlawful purpose alleged. See, R. v. Carter, supra, at p. 575, per McIntyre J.

8          The manner in which the trier of fact may use the acts and declarations of others in furtherance of the common unlawful purpose against other accused has been explained in these terms:

... In charging the jury on this question, the trial judge should instruct them to consider whether on all the evidence they are satisfied beyond a reasonable doubt that the conspiracy charged in the indictment existed. If they are not satisfied, then the accused charged with participation in the conspiracy must be acquitted. If, however, they conclude that a conspiracy as alleged did exist, they must then review the evidence and decide whether, on the basis of the evidence directly receivable against the accused, a probability is raised that he was a member of the conspiracy. If this conclusion is reached, they then become entitled to apply the hearsay exception and consider evidence of the acts and declarations performed and made by the co-conspirators in furtherance of the objects of the conspiracy as evidence against the accused  on the issue of his guilt. This evidence, taken with the other evidence, may be sufficient to satisfy the jury beyond a reasonable doubt that the accused was a member of the conspiracy and that he is accordingly guilty.

See, R. v. Carter, supra, at p. 575, per McIntyre J. The standard of proof required to satisfy the threshold, by evidence of an accused's own acts and declarations, is proof on a balance of probabilities.

See also my decisions in R. v. Adam, 2007 BCSC 126; and United States of America v. Akrami, 2001 BCSC 781, 157 C.C.C. (3d) 75.

[245]     In R. v. Alexander (2005), 206 C.C.C. (3d) 233 (Ont. C.A.), Doherty J.A., for the court, wrote that the actus reus of a criminal conspiracy emphasizes the need to establish a meeting of the minds to achieve a mutual criminal objective.  A conspiracy is not established merely by proof of knowledge of the existence of a scheme to commit a crime or by the doing of acts in furtherance of that scheme.  Neither knowledge of, nor participation in, a criminal scheme can be equated with the actus reus of a conspiracy, although knowledge and acts in furtherance of a criminal scheme do provide evidence, particularly where they co-exist, from which the existence of an agreement may be inferred.  He stated at paras. 43 -48:

43        The appellants' submissions on the conspiracy convictions come down to the claim that the Crown failed to produce evidence from which it could be reasonably inferred that either Alexander or Blake agreed with any of the alleged co-conspirators to commit the particular extortions alleged in the conspiracy counts.

44        Blake submits that although there was evidence that he assisted Alexander in enlisting, paying and de-briefing the operatives, there was no evidence that Blake knew, much less agreed to, the plan to use surreptitiously taken videotapes of sexual encounters between the operatives and the targets to extort money from the targets.

45        Alexander submits that while the evidence may demonstrate that he had a plan to surreptitiously record individuals engaged in sexual activity and to use the product of those activities to recover money from the targets, there was no evidence that Blake or Sabourin (count three) or Y.A. (count fifteen) had any knowledge of Alexander's plan, much less had agreed to it with him. Alexander submits that he cannot be convicted of conspiracy absent proof that he agreed with at least one of the alleged co-conspirators to commit the crime alleged in the particular count in the indictment.

46        The appellants' submissions stand on firm legal footing. The actus reus of the crime of conspiracy lies in the formation of an agreement, tacit or express, between two or more individuals, to act together in pursuit of a mutual criminal objective. Co-conspirators share a common goal borne out of a meeting of the minds whereby each agrees to act together with the other to achieve a common goal: G. Williams, Criminal Law: The General Part, 2nd ed. (London: Stevens & Sons, 1961) at 667-68; R. v. Cotroni (1979), 45 C.C.C. (2d) 1 (S.C.C.) at 17-18, 23-24; U.S.A. v. Dynar (1997), 115 C.C.C. (3d) 481 (S.C.C.) at 511-12; R. v. McNamara (1981), 56 C.C.C. (2d) 193 sub nom. R. v. Canadian Dredge & Dock Co. Ltd. (Ont. C.A.) at 452-55, aff'd without reference to this point (1985), 19 C.C.C. (3d) 1 (S.C.C.); P. MacKinnon, "Developments in the Law of Criminal  Conspiracy" (1981), 59 Can. Bar Rev. 301 at 308; M.R. Goode, Criminal Conspiracy in Canada (Toronto: Carswell Toronto, 1975) at 6-18.

47        It follows from the mutuality of objective requirement of the actus reus that a conspiracy is not established merely by proof of knowledge of the existence of a scheme to commit a crime or by the doing of acts in furtherance of that scheme. Neither knowledge of nor participation in a criminal scheme can be equated with the actus reus of a conspiracy: see R. v. Lamontagne (1999), 142 C.C.C. (3d) 561 (Que. C.A.) at 575-76; R. v. Cotroni, supra, at pp. 17-8. Knowledge and acts in furtherance of a criminal scheme do, however, provide evidence, particularly where they co-exist, from which the existence of an agreement may be inferred.

48        The actus reus of the crime emphasizes the need to establish a meeting of the minds to achieve a mutual criminal objective. This emphasis on the need for a consensus reflects the rationale justifying the existence of a separate inchoate crime of conspiracy. Confederacies bent upon the commission of criminal acts pose a powerful threat to the security of the community. The threat posed by a true agreement to jointly bring about a criminal end justifies a preemptive strike by the criminal law as soon as the agreement exists, even if it is far from fruition. However, absent a true consensus to achieve a mutual criminal objective, the rationale for the crime of conspiracy cannot justify criminalizing joint conduct that falls short of an attempt to commit the substantive crime: see I.H. Dennis, "The Rationale of Criminal Conspiracy" (1977), 93 Law Q. Rev. 39; P. Gillies, The Law of Criminal Conspiracy (Sydney, Australia: Law Book Co. Ltd., 1981) at 327.

[246]     A few years after the decision in Alexander, Watt J.A. again canvassed the principles involved in the law of conspiracy.  In R. v. Root, 2008 ONCA 869, 241 C.C.C. (3d) 125, Watt J.A., for the court, wrote:

65        It is elementary that the gist of the preliminary crime of conspiracy is the agreement. The actus reus of the offence is the fact of the agreement. Papalia v. R.; R. v. Cotroni, [1979] 2 S.C.R. 256, at p. 276. In conspiracy cases, a distinction exists between an intention to agree, on the one hand, and an agreement, on the other. On its own, an intention to agree is not sufficient to establish the actus reus of conspiracy. R. v. O'Brien, [1954] S.C.R. 666 at pp. 668-9.

66        For there to be a conspiracy, the prosecutor must prove beyond a reasonable doubt:

i.    an intention to agree;

ii.   completion of the agreement; and

iii.   a common (unlawful) design

United States of America v. Dynar, [1997] 2 S.C.R. 462, at para. 86 at p. 511. Further, there must exist an intention to put the common (unlawful) design into effect. Dynar, at para. 86; O'Brien at p. 668.

67        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] 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.

68        It is trite that 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), 67 C.C.C. (2d) 554 (Ont. C.A.) at pp. 565-6. Each conspirator does not have to commit or intend to commit personally the offence the conspirators have agreed to commit. R. v. Genser (1986), 27 C.C.C. (3d) 264 (Man. C.A.) at p. 268 affirmed 1987 39 C.C.C. (3d) 576 (S.C.C.).

69        Where, as here, an indictment alleges that named persons conspired together and with other unknown persons, proof of participation of all named conspirators is not essential. R. v. Paterson (1985), 44 C.R. (3d) 150 (Ont. C.A.) at pp. 156-7. Further, where the evidence establishes the conspiracy alleged between a named person and a person or persons unknown, the fact that the evidence fails to establish another named person's complicity does not entitle the first named to an acquittal. Paterson at p. 156.

70        The fact that an agreement to commit a crime is conditional on the occurrence or non-occurrence of some event does not necessarily mean that there is no unlawful agreement. However, 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 so 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.); Smith and Hogan, at pp. 363 and 371; Glanville Williams, Textbook of Criminal Law, 2nd ed. (London: Steven & Sons, Ltd., 1983) at p. 351; and R. v. Walker, [1962] Crim. L. R. 458 (C.C.A.). Indeed every agreement about future conduct is hedged about with conditions, for example, to burgle premises if the owner is not home, or to steal something if anything of value can be found. But in each case, there is nonetheless an unlawful agreement despite conditions attached to its execution.

71        Conspiracy, like attempt, is a crime of intention. Its factual element or actus reus is established upon proof of the agreement to commit the predicate offence, for example to possess or launder the proceeds of crime. The factual element in the conspiracy need not correspond with the factual elements of the substantive offence that is the object of the conspiracy. 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 launder money is the belief that the money has illegitimate origins. Dynar at para. 108.

72        Among the preliminary or inchoate crimes, conspiracy, although requiring two or more genuine participants, is more "preliminary" than an attempt: Dynar at para. 87. Conspiracy is also a continuing offence.

Party liability and conspiracy

[247]     In R. v. Roach (2003), 192 C.C.C. (3d) 557 (Ont. C.A.), respecting aiding and abetting, the Ontario Court of Appeal held that the aider does not have to know all of the details of the crime aided.  However, Borins J.A. added that the aider must be aware of the “type of crime” to be committed and know the circumstances necessary to constitute the crime he or she is accused of aiding (at para. 44).  See also:  R. v. J.F. at paras. 14-27 per Rosenberg J.A., for the court; and Briscoe.

Co-conspirators exception to the hearsay rule

[248]     In R. v. Wu, 2010 ABCA 337, 266 C.C.C. (3d) 482, the court dealt with the issue of the co-conspirator’s exception to the hearsay rule.  It stated:

39        As noted above, the test in Carter applies to the admission of evidence of acts and statements in furtherance of conspiracy by persons alleged to have been party to that conspiracy as against other persons also alleged to have been party to that conspiracy even though those acts and statements in furtherance are done in the absence of those other persons. As a concept of evidence, the Carter rule is arguably not exclusively an exception to the presumptive inadmissibility of hearsay even if it withstands analysis on hearsay principles: see e.g. Mapara [2005 SCC 23, [2005] 1 S.C.R. 358, 195 C.C.C. (3d) 225]. But it is a concept of evidence, and does not re-define party liability in conspiracy.

40        In order to justify admission of acts and statements in furtherance of conspiracy as against persons not present and not otherwise proven to have adopted such acts and statements when making the final decision on guilt, the court must first determine: (1) whether the conspiracy existed (based on all the evidence but proven beyond a reasonable doubt); and (2) if so, whether the accused is a member of that conspiracy (based only on evidence receivable against the specific accused, and proven on a balance of probabilities). Given this hybrid burden of proof, Carter allowed (procedurally) for provisional admission of all the evidence and that the court could then at the end of the Crown's case determine whether acts or declarations made by a co-conspirator in furtherance of the conspiracy could be used as evidence against any other alleged co-conspirator.

Object of the conspiracy – the law

[249]     As stated above, the mens rea of conspiracy is the knowledge of the objective of the agreement and the intention to carry out the agreement.

[250]     Each member of the conspiracy must know the object of the agreement, i.e. the substantive offence to be undertaken.  Recklessness as to any of the substantial elements of the offence will not suffice.  If in the indictment the accused is charged with conspiracy to commit arson of a particular property, his joining the agreement must be with knowledge that the property is to be burned down:  R. v. Lessard, (1982), 10 C.C.C. (3d) 61 (Qué. C.A.).  Although the Crown must prove knowledge of the nature and scope of the agreement, it is not necessary that the accused be knowledgeable of all of the details or the identities of his co-conspirators:  McNamara (No. 1); R. v. Longworth (1982), 38 O.R. (2d) 367, 67 C.C.C. (2d) 554 (C.A.); and R. v. Paterson, Ackworth, and Kovach (1985), 18 C.C.C. (3d) 137 (Ont. C.A.).

[251]     The Crown must prove that at least two of the parties to the agreement had the intention of carrying it out; otherwise there has been no agreement.  If “B” contends that he only went along with “A”’s plan to humour him but never had any intention of going through with it, and “B”’s evidence is accepted, then neither “A” nor “B” can be found guilty of conspiracy.  Although “A” would have the requisite mens rea, the actus reus would not be complete; there was no true agreement to carry out the substantive offence:  R. v. O’Brien, [1954] S.C.R. 666, 110 C.C.C. 1.

[252]     In O’Brien, the accused had been convicted of conspiracy to kidnap.  At the trial, the accused’s co-conspirator testified that although he had in fact agreed with the accused to commit the offence, he had no intention of carrying out the agreement.  The trial judge instructed the jury that the offence of conspiracy was complete if they were to find that the agreement had been reached.

[253]     Taschereau J. held that if the co-conspirator’s evidence were to be believed, the accused could not be convicted of conspiracy.  To be guilty of conspiracy, one or more of the parties to the agreement must also have had the co-existent intent to effect that design.  If the only other party had no such intention then he would not be a participant to the conspiracy and consequently neither could the accused, for no one can conspire with himself.

[254]     In the example given above, “A” could not be found guilty of attempted conspiracy despite having devised the plan to commit the substantive offence and having entered into an agreement with the intention of carrying out the plan:  R. v. Dungey (1979), 51 C.C.C. (2d) 86 (Ont. C.A.).  There, the Ontario Court of Appeal held that one cannot be found guilty, in essence, of an attempt to attempt to commit a criminal offence.

[255]     Obviously, if there are several parties to the agreement, the fact that one of them did not have the intention to carry through with the common design does not affect the validity of the agreement as against the others.  The evidence need only demonstrate that at least one other party, whether that person be a co-accused or an unindicted co-conspirator had the co-existent intention of achieving the object of the agreement.

Will recklessness suffice?

[256]     As opposed to the culpability required for many substantive offences, recklessness is probably not sufficient to satisfy the mens rea requirement in a conspiracy.  In Lessard, the Québec Court of Appeal rejected the notion that one could become a party to a conspiracy to commit a criminal offence simply by agreeing to a course of conduct which included a number of options, one of which might be that criminal offence.  In that case, the accused was president of a local labour union.  During the course of a bitter labour dispute, Lessard, along with others agreed that “something” must be done to speed up negotiations.  A number of alternative measures were discussed only some of which were illegal.  One of the illegal options was to burn down company property.  The trial judge had instructed the jury that the charge was made out if the Crown proved that the accused had agreed to a course of conduct and was reckless as to whether the conduct undertaken would be criminal or otherwise.

[257]     Bisson J.A. (for the court) held that mere recklessness with respect to the object of the agreement is not sufficient where the evidence indicates that a variety of possible courses of action were being considered, only some of which were illegal.  He held however, at 83, that although the agreement must include all the substantial elements of the offence, recklessness may be applied with respect to the method of the execution of the agreement.  If the accused and his co-conspirators agreed to burn down company property, the actual offence to be committed by someone other than the accused, it would not be necessary for the accused to know by which method the arson would be performed.

[258]     Mere knowledge of, discussion or negotiations of, or passive acquiescence in a plan of criminal conduct will not constitute the requisite mens rea.  In R. v. Randall and Weir (1983), 7 C.C.C. (3d) 363 (N.S.C.A.), it was held that a drug trafficker who had purchased narcotics from an importer knowing that they were imported could not be found guilty of conspiracy to import.  His mere knowledge of and discussion of the imported narcotics with his supplier did not prove membership in the conspiracy.

Distinction between wilful blindness and recklessness

[259]     For wilful blindness to be established, the Crown need only prove that the failure to inquire was motivated or informed by a desire to avoid the truth, or knowledge on the part of the accused that avoiding an inquiry will shield his eyes and ears from the guilty truth:  R. v. Lagace (2003), 181 C.C.C. (3d) 12 at para. 28 (Ont. C.A.).

See discussion in Briscoe.

Probable membership

[260]     In an article written by David Frankel Q.C.(as he then was) for an education seminar for the Court of Queen’s Bench of Alberta on November 5, 1999, he dealt with the issue of “probable membership” at 14:

Although the question of “probable membership” is determined on the basis of the evidence directly admissible against an accused, this assessment is not made in isolation, but against the background of the other evidence.  As previously discussed, it is unclear as to whether this “context” is limited to the “acts” of other alleged conspirators (parties), or may also include their “declarations” [citations omitted].

A trial Judge should point out to the jury the “direct” evidence they are entitled to consider with respect to each alleged conspirator (party) [citations omitted].

“Probable membership” must be determined not only with respect to each accused but, as well, for anyone else alleged to have been a party to the conspiracy, or common design.  This is because only the “in furtherance” acts and declarations of such persons can be taken into consideration on stage three [citation omitted].

The “In Furtherance” requirement

[261]     In the same article, Mr. Frankel (as he then was) dealt with the “in furtherance” issue, at 7-9:

Not everything said or done by a co-conspirator (or party) will be admissible against others.  To be admissible, an act or declaration which would otherwise be “hearsay” must fall into the category of having been “in furtherance” of the conspiracy, or common design.  Evidence which does not meet this test is admissible only against the actor/declarant.

In R. v. Lynch, Malone & King (1978), 40 C.C.C. (2d) 7 at 23 (Ont. C.A.) Martin J.A. rejected a submission that to be admissible statements must be found to have “necessarily in furtherance of the conspiracy” or “necessary to be done in furtherance of the conspiracy”.  Rather, His Lordship opined (at p. 24) that:

The “in furtherance” requirement implies that the declaration of one conspirator is admissible against a co-conspirator only if it is made for the purpose of advancing the objects of the conspiracy, or constitutes a step in furtherance of the common design, as distinct from a mere statement about the conspiracy made by a conspirator during the course of the conspiracy [citations omitted].

In many cases the acts or statements of others will have a direct relationship to the carrying out of the crime in issue.  A recurring fact pattern in drug prosecutions is one in which the accused is alleged to be the actual supplier, but the sale is made by an intermediary (usually to an undercover police officer or civilian agent).  Often, the seller will refer to the supplier, and may even mention his or her name.  The physical act of trafficking and the seller’s statements have been used, together with other evidence (e.g., surveillance), to prove the supplier’s involvement in the transaction [citations omitted].

Other declarations which have been held to fall within the “in furtherance” category include:

(a)   Statements made for the purpose of recruiting someone to join a criminal organization: R. v. Dass (1979), 47 C.C.C. (2d) 194 at 202;

(b)   statements made to enhance the credibility of a criminal organization (e.g., its ability to provide substantial quantities of drugs, or money [citations omitted];

(c)   Warning others that the plan has gone awry (e.g., a drug courier has been arrested) [citation omitted]; and

(d)   reporting on recent events to another alleged member of the common design [citations omitted].

Purely narrative statements (i.e., ones unconnected to advancing the criminal object) fall outside the rule, and are admissible only against the maker.  For example, when one of the conspirators discusses with a friend the criminal activity she and others are engaged in, the testimony of the friend is not admissible against the others: R. v. Hook (1975) 22 C.C.C. (2d) 118 (Alta. S.C. App. Div.).

Post-arrest statements (i.e., confessions are similarly admissible only against the maker [citations omitted].

Documents made or kept “in furtherance” of a common design found in the possession of a co-conspirator (party) are admissible [citations omitted], even when the author of the writing is unknown [citations omitted].

[262]     In his article, Mr. Frankel (as he then was) gave some helpful examples of documents made or kept in furtherance of a common design found in the possession of a co-conspirator.  These included telexes, a note showing the financial breakdown and distribution of a drug shipment, records of division of proceeds, coded diary entries relating to drug transactions, and records of drug transactions.

b)  The Five-Step Approach Suggested by Doherty J.A.

[263]     In his paper entitled Conspiracies and Attempts (July 1990) Doherty J. (as he then was ) wrote that Carter and Barrow would seem to lend support to the following five-step format to be used in instructing the trier of fact in conspiracy cases.  He stated:

Step One

The trial judge should instruct the jury that there are two issues:

-       -Did the agreement alleged in the indictment exist?

-       -If it did, as regards each accused separately, has the Crown proved beyond a reasonable doubt that she was a party to the conspiracy alleged?

Step Two

The trial judge should direct the jury to consider first the question of the existence of the agreement alleged.  In doing so, they should be told to look at all of the evidence both inculpatory and exculpatory which is relevant to that issue.  If they conclude on the basis of all of that evidence beyond a reasonable doubt that the alleged agreement existed, they should then proceed to consider the question of who were parties to that agreement.  If they are not satisfied beyond a reasonable doubt then they should acquit all accused.  It is important at this stage of the instruction that the trial judge clearly instruct the jury as to the nature of the agreement alleged.  He must make clear to them what the object of the agreement is, since, in this phase of their deliberation, the jury must determine whether they are satisfied beyond a reasonable doubt that the Crown has proved the existence of the specific agreement alleged.

Step Three

If the jury have not acquitted all accused at the end of step two, they should be told to look at each accused individually, and to decide on the basis of evidence which is directly relevant to, and admissible against the accused, whether the accused was probably a member of the conspiracy.  This requires that the trier of fact determine whether it is more likely than not that an accused was a member of the conspiracy.  If the jury are not so satisfied with respect to one or more of the accused, they should acquit each accused with regard to whom they are not satisfied.  In this phase of the instruction, the trial judge should outline to the jury all of the acts and declarations which are potentially admissible against being accused on this issue.  This should be done separately for each accused.  He should also outline to the jury any evidence which might exist which is exculpatory on this point.  Finally, he should direct the jury that they can consider these acts and declarations done by a particular accused in the context of all of the evidence including acts and declarations of others to determine what inference should be drawn from the accused’s acts and declarations.

Step Four

The jury should then be instructed to repeat step 3 with respect to any of the named but unindicted co-conspirators against whom the trial judge has concluded that there is some evidence from which a reasonable trier of fact properly instructed could conclude that the person was a conspirator.  If there is no such evidence, then the trial judge should direct the jury as a matter of law that the particular alleged co-conspirators are not co-conspirators, and he should in fact remove from the jury’s consideration acts and declarations done by that alleged co-conspirator.  In this phase of the instruction, the trial judge should also deal with any allegation that a person or persons unknown were parties to the conspiracy.  If there is no evidence to support the finding of unnamed co-conspirators, the jury should be instructed to ignore that part of the allegation.  If there is evidence of acts and declarations done by unnamed co-conspirators, the trial judge should direct the jury to determine whether based on those acts and declarations, the unnamed persons were probably parties to the conspiracy.

Step Five

The jury should then be instructed  to consider the case against each accused who remains after step 3 taking into account evidence which is directly admissible against that accused and also the evidence of acts and declarations done in furtherance of the agreement by any other individual who the jury has decided in steps 3 and 4 were probably co-conspirators.  The jury should be told that to decide based on all of that evidence whether they are satisfied beyond a reasonable doubt that a particular accused was party to the agreement.  It must be made clear to the jury that a finding of probable participation at stage 3 does not necessitate a conviction, and that a conviction can flow only if based on all of the evidence admissible in step 5, they are satisfied beyond a reasonable doubt of the accused’s participation.  During this phase of the instruction, the trial judge should tell the jury that acts and declarations are capable of being furtherance of the conspiracy.  He should define the in furtherance requirement for them and tell them that it is for them to determine whether a particular act or declaration was in furtherance of the conspiracy.  If there are acts and declarations of co-conspirators which are clearly not in furtherance of the agreement and which may have some potential prejudice to an accused (e.g., a confession by a co-conspirator) the trial judge should tell the jury that such evidence is not capable of being viewed as in furtherance of the agreement.

Analysis of the Law and Facts as they apply to Count 1 in the Indictment

[264]     In the analysis of Count 1, I propose to follow the five steps that Doherty J. (as he then was) suggested that I should follow.  I begin with steps 1 and 2.

a)  Steps 1 and 2

Does the alleged agreement exist?

[265]     The Crown alleges that Kandola and Johal, along with Riar and other unknown persons, conspired to import cocaine into Canada between May 1, 2006 and October 26, 2007.  The majority of the evidence is comprised of acts or declarations of either Kandola or Johal.  This includes the majority of the intercepted private communications between Johal and Kandola.  It also includes communication between Johal and Kandola on the dedicated cell phones.

[266]     The evidence reveals that the only person that Kandola had contact with in planning the crossings and receiving benefits was Johal (aside from Kandola’s interactions with Riar during the actual crossings).  Johal, however, had contact with the transporter, Riar, both on the intercepted telephones and on the dedicated cell phones, as well as in person.  This is consistent with Johal’s role as the overseer in this importation scheme.

[267]     There are several intercepts between Riar and Johal’s brother, Gurjit.  I agree with Crown counsel that some of these intercepts contain “in furtherance” statements.  These conversations also provide evidence that the conspiracy existed.

[268]     In addition, there are a number of pieces of evidence that, when viewed in their totality, demonstrate that an agreement to import cocaine existed.

[269]     On the arrest of Johal, Riar and Kandola on October 25, 2007, 208 kilograms of cocaine were seized from the vehicle Riar had just driven, via Kandola’s PIL booth, into Canada.  This cocaine had a value at that time of between $5 to $6 million.  The dollar value of cocaine is significant as it explains the level of care taken by Kandola and Johal in the planning of the importation.

Kandola’s use of the CBSA databases to conduct risk assessments

[270]     Johal and Kandola met in 2005 and exchanged phone numbers, including Johal’s home number, sometime prior to July 24, 2006.

[271]     On July 24, 2006, Kandola conducted an unauthorized database query on the CBSA computer databases for “Sham Johal”.  Kandola learned that there was a Lookout in place for Speedline Auto Sales Ltd. and Shminder Johal, among others.  Kandola accessed the synopsis of the Lookout and had access to the various “subjects” of the Lookout as well as the suspected illegal activity (smuggling cocaine into Canada in vehicles).  At that point in time, Kandola was aware that Johal’s company was suspected of smuggling cocaine.  I agree with Crown counsel that Kandola’s subsequent actions should be viewed with this as a backdrop.  Kandola testified that he subsequently concluded that the Lookout was not an issue given the “due diligence” he performed.  I agree with Crown counsel’s submissions that Kandola’s “due diligence” did not detract from this specific piece of knowledge when all of the circumstances are considered in their totality.

[272]     On July 24, 2006, after accessing the CBSA database and reviewing the Lookout, Kandola had telephone contact with Johal.  An inference can be drawn from the phone records that Kandola communicated the details of the Lookout to Johal.  In fact Kandola admitted that he relayed the Lookout information to Johal.  I agree with the Crown’s submission that Kandola’s access of the Lookout was a risk assessment that Kandola conducted for Johal, using Kandola’s status as a BSO.

[273]     On August 1, 2006, Kandola conducted further unauthorized database queries on the CBSA databases for:  “johal, sham singh”; “johal, gurj singh”; “speedline”; and “dream”.  These four entities were all subjects of the Lookout that Kandola viewed on July 24, 2006.  Therefore, Kandola was doing a second check to determine the status of the Lookout for the various subjects that he had observed on July 24.  At this time, the Lookout was “silent” so it would not have appeared to Kandola.  I agree with Crown counsel that this does not detract from the fact that Kandola previously observed the suspicion of smuggling cocaine, particularly when viewed in conjunction with Kandola’s subsequent actions.

[274]     On August 1, 2006, Kandola again had telephone contact with Johal.  An inference can be drawn from the phone records that Kandola communicated to Johal the absence of the Lookout.  This is part of Kandola’s role as he is conducting a risk assessment for Johal of potential difficulties in crossing the border into Canada for Johal or his companies.

[275]     Kandola conducted further unauthorized CBSA database queries on August 2 (“johal, sham singh”); August 13 (“johal”); August 14 (“johal”); September 1 (“johal, gurj singh”); and September 4 (“johal, gurj singh”).  The Lookout continued to be “silent” on these dates and therefore nothing would have appeared on Kandola’s computer screen.  Again, I agree with Crown counsel that what these queries demonstrate is an ongoing effort by Kandola to use his position as a BSO to conduct risk assessment for Johal.

Frequent telephone contact between Kandola and Johal, and Johal and Riar, particularly surrounding the time of the crossings

[276]     Telephone records demonstrate an ongoing association between Kandola and Johal.  There was frequent telephone contact between Kandola and Johal between November 17, 2006 and February 15, 2007.

[277]     From the evidence, it would appear that starting in January 2007, Johal was making monthly crossings in which Kandola was waving Johal through his PIL booth.

[278]     On February 10, 2007, Kandola communicated via text message with Johal using the same Punjabi word (“aja”) as Kandola used with Johal on October 25, 2007, the day of their arrest.  The CBSA database records show that Kandola was on shift at the PHBC at the time these text messages were exchanged.  Despite the fact that there was no surveillance of Johal or Kandola at this time (February 10), the fact that a text message using the identical command to that used eight months later to coordinate a border crossing demonstrates an ongoing pattern of communication between Kandola and Johal.

[279]     Telephone records demonstrate further telephone or text message contact between Kandola and Johal between February 17 and April 19, 2007.

[280]     Telephone records demonstrate telephone contact between Johal and Riar between February 17 and April 20, 2007.  This establishes an association between Johal and Riar.

[281]     As noted above, upon their arrests on October 25, 2007, cell phones that were not subject to interceptions were seized from each of Kandola, Johal and Riar.  Telephone records were obtained for these cell phones.  I agree with the Crown’s submission that the phone records demonstrate that the phones were used exclusively for the importation scheme.  I also agree with the Crown’s submission that the use of these phones is very significant as it demonstrates a need for and interest in operational security that is commensurate with the level of risk present in importing cocaine.  In other words, because of the risk of importing cocaine, the conspirators needed phones that would not be subject to interception as only the group of conspirators knew the phone numbers.  Kandola, Johal and Riar refer to these phones when speaking on the phones which are being intercepted.  When they want to speak about something that they don’t want intercepted, they switch to the other, dedicated phone.

[282]     Both Johal and Kandola testified that they utilized a different set of dedicated phones in early 2007.  I also agree with the Crown’s submission that changing dedicated phones in May 2007 demonstrates a further concern with operational security.

[283]     The use of the dedicated cell phones coincides with two instances (May 19-20 and June 25-27) in which Kandola is working at the PHBC.  Again, the pattern of use of the dedicated cell phones on these two occasions coincides with the pattern of use of the dedicated phones in relation to crossings on July 28, September 7 and October 25.  In his evidence, Kandola could not recall these crossings and Johal had a limited recollection about these crossings.

[284]     Beginning with the intercepted communications on July 12, Kandola and Johal spoke on the phone frequently up to the point of their arrest on October 25.  On occasion, they discuss Kandola’s upcoming shift schedule at the PHBC.  However, when discussing specifics as far as Kandola’s schedule in the PIL booth, those discussions are reserved for the dedicated cell phones (with the exception of Call 46).  Again, the caution exercised by Johal and Kandola in this regard is significant when viewed in conjunction with all of the other evidence – it is a reflection of the serious risk and dollar value of the object of the conspiracy.

[285]     Furthermore, Kandola and Johal spoke almost exclusively in English when conversing on the telephone.  They switched to Punjabi from time to time.  Generally speaking, they only appeared to do so when they wanted to minimize or avoid detection.  (Both Johal and Kandola denied that this was the case.)  Examples of this are as follows:

a.   Call 22 – July 25 - 20:45

b.   Call 24 – July 27 – 16:12

c.   Call 35 – August 15 – 22:30 – page 3

d.   Call 41 – August 24 – 12:00 – page 2

e.   Call 46 – August 31 – 13:07 – page 2-3

f.    Call 51 – September 4 – 11:52

g.   Call 52 – September 4 – 14:15 (p.1-2)

h.   Call 53 – September 4 – 21:34

i.    Call 55 – September 5 – 16:37

j.    Call 57 – September 5 – 16:54

k.   Call 59 – September 6 – 12:16

l.    Call 91 – September 28 – 18:01

m.  Call 103 – October 9 – 20:11

n.   Call 126 – October 23 – 12:41

o.   Call 129 – October 23 – 19:08

p.   Call 133 – October 24 – 11:56

q.   Call 136 – October 24 – 12:28

r.    October 25 – 00:03:43 – “Aja”

s.   Call 140 – October 25

Frequent meetings between Kandola and Johal

[286]     Kandola and Johal met in a number of different places.  These meetings were conducted in a somewhat covert fashion in various locations and demonstrate their concerns with operational security and being seen together.  In addition, both Johal and Kandola agreed that they met in circumstances to minimize detection:

a.   May 17 – parking lot in Surrey

b.   July 28 – 7-11 in Surrey

c.   July 29 – near Johal’s residence (see Calls 27-31)

d.   July 31 – Kandola’s residence (See Call 32)

e.   September 13 – Annacis Island

f.    September 28 – Kandola’s residence (see Call 91)

g.   October 9 – Sikh temple in Surrey (see Calls 101-102)

h.   October 11 – discussion about meeting (see Call 106)

i.    October 16 – convenience store parking lot in Surrey (see Call 116)

Discussions of benefits Kandola expected to receive

[287]     The intercepted calls between Kandola and Johal also involve matters such as upgrades to Kandola’s Mini Cooper (and Johal’s assistance with those).  Johal’s payments to Kandola demonstrate the significance of Kandola’s role in the conspiracy and Kandola’s value to the organization.  Kandola clearly expects Johal to be providing him with these benefits.  This is consistent with Kandola’s knowledge of the level of risk that he is exposing himself to in facilitating safe passage of the cocaine into Canada.

Surveillance of Johal and Riar’s activities before and after the crossings

[288]     Johal coordinated the transport of the cocaine from the United States with Riar.  Johal was responsible for ensuring that Riar, and the cocaine, made it across the border into Canada safely.  On the two occasions when surveillance was conducted in the United States (September 6-7 and October 24-25), Johal was in constant telephone contact with Riar (via the dedicated cell phones) and was with Riar from shortly after Riar had retrieved the cocaine from the storage locker to the time they crossed into Canada.

[289]     Prior to the September 7 crossing, Johal confirmed that Riar had “the key”.  Prior to the October 25 crossing, Johal again spoke with Riar about “the key”.  A key seized from Riar’s vehicle on his arrest opened the lock for the storage locker #38 in Bothell, Washington.  The logical inference, when the calls are viewed in conjunction with all of the evidence, is that they were discussing the key for the storage locker.  In my view, Johal’s assertion that references to the key were in relation to his limousine business are not consistent with the totality of the evidence.

[290]     On July 28 and September 7, after Johal and Riar had crossed into Canada they drove in tandem back to Richmond.  On July 28, Johal was observed conducting counter-surveillance in Richmond.  On September 7, Riar’s truck was taken, by someone other than Riar, to a residence in East Vancouver.  On both of these occasions, it was clear that Johal was in charge of ensuring that the cocaine being transported by Riar was imported and delivered as planned.  Again, the measures taken by Johal demonstrate the risks being taken by Johal, Riar and Kandola in this importation scheme involving cocaine and not car parts.

Kandola’s use of his position as a BSO and his knowledge of shift scheduling

[291]     Kandola used his position as a BSO to access the shift schedule for the PIL booth as it was available by 2:00 a.m. the night before.  Kandola then communicated to Johal the time that Kandola was scheduled to be in the PIL booth.

[292]     On the importations carried out on September 6-7 and October 24-25, there were checks in place to ensure that the plan could proceed as scheduled.  In particular, Johal and Kandola needed to ensure that Kandola was in the PIL booth at the scheduled time.  For example, on September 6, using the dedicated cell phones, Kandola sent the text message “2pls” to Johal to confirm that Johal and Riar were to cross at 2:00 a.m. on September 7.  On October 24, Johal and Kandola exchanged text messages on the dedicated cell phones shortly after 8:00 p.m.  Johal confirmed the crossing time was “12”.  On October 25, just after midnight, Kandola commanded Johal to “aja” (the Punjabi word for “come”).  This was done on the dedicated cell phone.  This was another procedure in place to ensure that Kandola was in the PIL booth when Johal and Riar crossed into Canada.

The separation of roles between the members of the conspiracy

[293]     As discussed above, Insp. MacDonald testified about the various roles in a cocaine importation organization including the roles of leader, overseer and transporter.  As well, facilitators assist the individuals in carrying out their responsibilities.  The Crown’s position is that Johal was the overseer in this organization.  He was responsible for making arrangements with both Kandola and Riar and for ensuring the cocaine made it across the border safely.  He was also responsible for providing benefits and payments to Kandola.  Kandola was clearly a facilitator as he held the key role at the border, ensuring safe passage of Johal, Riar and the cocaine into Canada.

[294]     I agree with the Crown’s submission that the use of Riar as a transporter insulated Johal as well as Kandola from risk.  Riar was the only person ever seen with the cocaine.  Johal crossed the border first on each of July 28, September 7 and October 25.  In this fashion, if the plan went awry, then Johal would have been gone from the border by the time Riar was arrested.  Kandola’s only communication was with Johal (other than when dealing with Riar at the PIL booth).  Therefore, Kandola would also be insulated from law enforcement from his lack of contact with Riar.  Again, this level of insulation is warranted by the level of risk involved in importing a large quantity of cocaine.

Evidence seized on the night of Kandola, Johal and Riar’s arrest

[295]     The night of Johal’s arrest, a search warrant was executed at his residence.  A significant quantity of Canadian cash was seized ($223,880).  The expert, Insp. MacDonald, testified that most of this money was bundled in a manner consistent with drug trafficking.  The presence of this cash in Johal’s residence is evidence of the ongoing nature of the conspiracy.

[296]     Insp. MacDonald also testified about “trust” being the calling card in a drug importation organization.  It is clear from the Crown’s evidence that Johal and Kandola trusted each other and that Johal and Riar trusted each other.  It is also clear from Kandola’s evidence that he trusted Johal.  It is clear from Johal’s evidence that he trusted Kandola and Riar.

Conclusion on Step 2

[297]     The evidence demonstrates that an agreement between Johal, Kandola and Riar existed beyond a reasonable doubt.  Kandola, Johal and Riar’s ongoing course of conduct, including the use of the dedicated cell phones and the Punjabi language to ensure operational security, Kandola and Johal’s concern with being seen together and their conduct of surreptitious meetings, Kandola’s continuing risk assessment using the CBSA databases after discovering that Johal or his companies were suspected of smuggling cocaine, Kandola’s communication to Johal of the status of the Lookouts as well as the safest times to cross the border based on the shift schedule, and the surveillance and confirmation via telephone records of Johal and Riar’s ongoing intentions to enter the U.S. to retrieve the contraband, all provide evidence of the agreement.  The seizure of 208 kilograms of cocaine on October 25, 2007, is compelling confirmatory evidence of the conspiracy.

[298]     I am satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence to which I have alluded so far is that the Crown has proved beyond a reasonable doubt that there was an agreement between Johal, Kandola and Riar to import cocaine into Canada during the dates referred to in the indictment.  The Crown has also proved beyond a reasonable doubt that Johal, Kandola and Riar, separately, were parties to the conspiracy alleged in Count 1 of the indictment.

[299]     In making this finding, I have already alluded to my rejection of the evidence of Johal and Kandola that the agreement was for the importation of car parts.  I have already referred to the fact that the relatively small cost of the import duties that were avoided on the car parts being imported did not warrant the type of planning that took place during the time stipulated in Count 1 of the indictment.  I have already alluded to the fact that if the agreement was for the importation of car parts, it would not have been necessary for Kandola, in Call 46, to warn Johal of the dates and times that the FRT was in operation.  In fact, if all that they were importing were car parts, it would have been a simple matter for Johal and Riar to pay the import duties on the car parts if they were discovered by the FRT teams.

[300]     With respect to the submission that Kandola wanted to save Johal from long delays that he and his staff were suffering at the border, there is evidence that the delays experienced by Johal were not that long.  There is also evidence that Johal’s employees were bringing car parts through the border during the time period listed in Count 1 in the indictment.  In Call 4 (July 12), Johal told Kandola that he brought a Lincoln across the border.  In that call he told Kandola that it took him an hour and a half to get through customs on that occasion but that it usually takes half an hour.  Furthermore, in Call 33 on August 7, 2007, Kandola asks Johal how Gurj (Johal’s brother) is doing.  Johal says that Gurj is stuck at the border. Kandola says “*…you should have just phoned me.*”  On the July 28 crossing, Kandola and Riar were prepared to wait overnight so that they could come through Kandola’s PIL booth at the border.

[301]     At this stage, and indeed throughout this judgment, I wish to reiterate that I am acutely aware of the law to which I have previously referred in this judgment:

It must be emphasized that mere disbelief of the accused’s evidence does not satisfy the burden of persuasion upon the Crown:  see W.(D.) v. The Queen, supra at 409.  In other words, to use disbelief of the accused’s evidence as positive proof of guilt by moving directly from disbelief to a finding of guilt constitutes error:  Regina v. H.(S.), [2001] O.J. No. 118 (C.A.) at para. 4-6 per curiam.  The court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused’s guilt.

It is an error to infer guilt merely from disbelieving the evidence of the accused:  R. v. To (1992), 16 B.C.A.C. 223 ¶ 24; R. v. Moore, 2005 BCCA 85; R. v. Levy (1991), 62 C.C.C. (3d) 97 at 101 (Ont. C.A.); R. v Teskey 2008 BCCA 288.

b)  Knowledge that cocaine was being imported

Johal’s knowledge of the substance being imported

[302]     I find as a fact that the evidence establishes that Johal was the overseer of the agreement between himself, Kandola and Riar to import cocaine.  From the circumstantial evidence adduced at this trial, there is an irresistible inference that Johal, Riar and Kandola knew that it was cocaine and not only car parts that was being imported by them.

[303]     As noted above, I find that Johal was responsible for coordinating the timing of the crossings with Kandola.  He was also responsible for providing benefits and payment to Kandola for his role in the conspiracy including cash and various upgrades to Kandola’s Mini Cooper vehicle.  As well, Johal provided a cell phone to Kandola and attempted to assist Kandola in obtaining a cheap laptop computer.

[304]     I also find that Johal was responsible for making arrangements with Riar to bring his GMC Yukon (British Columbia Licence Plate #AA9208) to the United States to pick up the shipment of cocaine.  Johal travelled to the United States at the same time as Riar, although Johal travelled in a different vehicle.  Johal then met with Riar in the United States after Riar had picked up the shipment of cocaine (as set out in the surveillance of September 6-7 and October 24-25).  While in the United States and after crossing back into Canada, Johal was in constant communication with Riar by way of the dedicated phones.  On each of July 28, September 7 and October 25, 2007, Johal travelled first across the border into Canada via Kandola’s PIL booth and then Riar travelled following Johal (either directly behind or a short time later).  Johal then escorted Riar back to Richmond to ensure that the cocaine was delivered safely.

[305]     It was Johal who was responsible for giving the dedicated phones to Riar, Kandola, and the persons designated on Johal’s SIM card as “Betty” and “Alice”.

[306]     The July 28, 2007 crossing caught the police “flat footed”.  They simply did not know that it was taking place until Cpl. Bindra, who speaks Punjabi, found out through an intercept that Johal told Kandola, in Punjabi, that he was in America.  As a result, the police were not able to set up the usual surveillance in the U.S.A.  There is evidence, however, that Johal and Riar entered Canada the same way as they did in the September and October crossings.  Johal entered Canada through Kandola’s PIL booth first and then Riar entered through Kandola’s PIL booth shortly after and they both proceeded in tandem to Richmond.  The anti-surveillance manoeuvres by Johal when he got to Richmond is one piece of circumstantial evidence that proves knowledge of the cargo that he and Riar had imported into Canada on that day.

[307]     The following pieces of circumstantial evidence are only some of the evidence that satisfies me that the Crown has proved beyond a reasonable doubt that there was an agreement between Johal and Riar to import cocaine not car parts into Canada during the dates referred to in the indictment:

1.         The clandestine meetings between Kandola and Johal;

2.         the speaking in Punjabi when they were discussing “sensitive matters”;

3.         the use of dedicated or “non-intercepted” cell phones registered to strangers;

4.         the speaking in code (“2pls”; Riar asking when is the “Halloween Party”);

5.         the benefits paid by Johal to Kandola;

6.         the finding of $223,880 packaged in a manner consistent with that of drug dealers;

7.         the statement by Johal on arrest telling Riar that, “we got saved, we’re in Canada”.

[308]     The Crown has also proved beyond a reasonable doubt that Johal, Kandola and Riar, separately, were parties to the agreement alleged in Count 1 of the indictment.

Kandola’s knowledge of the substance being imported

[309]     With respect to the evidence surrounding Kandola:

1.         He supplied Johal with his monthly work schedules;

2.         he supplied Johal with his daily scheduling information to plan the crossings;

3.         he accepted bribes from Johal for his services;

4.         he warned Johal as to whether the FRT was working at the time of the crossings;

5.         he took steps to ensure Johal and Riar would not be detected at the border;

6.         he ensured that there was no record of either Johal or Riar entering Canada;

7.         he spoke in code on the designated phone to avoid intercepts of his communications with Johal;

8.         he spoke in Punjabi when he was discussing sensitive matters on the undesignated phones;

9.         he had many surreptitious meetings with Johal during the period covered in the indictment.

[310]     Apart from all of this, Kandola made unauthorized entries into the CBSA’s databases.  In the first of these searches, made by him on July 24, 2006, Kandola discovered that there was a Lookout in effect for Gurjit Johal, Shminder Johal, Speedline Auto Sales Ltd. and Dream Motors for importation of cocaine into Canada.  Kandola, contrary to the policy of the CBSA, communicated this fact to Johal.  There can be no doubt that Kandola was aware as of July 24, 2006, that Johal or his companies were suspected of importing cocaine into Canada.  The evidence reveals that Kandola accepted the explanation of Johal that the Lookout was all a mistake, placed there maliciously by some cousin of his who was a member of the RCMP.  Kandola chose to believe Johal and also advised Johal of the removal of the Lookout from the CBSA’s database after conducting further unauthorized queries into the databases.

[311]     With respect to Riar, Kandola testified that the first time that he met Riar was at the time of the crossing on July 28.  He testified that he never checked to see if there were any Lookouts in effect for him.  Kandola simply accepted Johal’s statement that Riar was helping him to import some extra car parts.  On the basis of a simple assurance from Johal, Kandola allowed Riar into Canada without checking him, even though every time Riar crossed the border through Kandola’s PIL booth, he did so in a van into which Kandola could not see because the windows were tinted.

[312]     I find the behaviour of Kandola in his dealing with Riar and Johal was not mere recklessness, but wilful blindness.  Kandola testified that the first time he met Riar was on the July 28 crossing.  His suspicion should have been aroused when Riar’s vehicle showed up at his PIL booth with tinted windows.  In my view of all of the evidence adduced at this trial, I am satisfied that Kandola saw the need for further inquiries of Riar, but deliberately chose not to make those inquiries.

[313]     Apart from all of that, I do not accept Kandola’s evidence that he did not know about Riar’s part in this conspiracy.  The evidence reveals that on each of the crossings on July 28, September 7 and October 25, 2007, Johal would come across the border through Kandola’s PIL booth with car parts, after being told by Kandola of the safest time to do so, and he was followed a few minutes later by Riar.  There is an irresistible inference that Riar was in possession of cocaine on at least two of those crossings, the September 7 and October 25 crossings.

[314]     As I noted previously, I find that Call 46 clearly indicates that Kandola was aware of the modus operandi for the importation of cocaine into Canada by Johal and Riar.  I interpret the last part of the conversation to mean that Johal does not have to come across the border with car parts; he can come across the border with his vehicle empty.  “Send him” refers to sending Riar across the border with the cocaine, indicating Kandola’s knowledge that Riar was coming after Johal with something other than car parts.

c)  Steps 3, 4 and 5

[315]     In dealing with steps 3, 4 and 5, I adopt the Crown’s submissions in total.

Johal’s probable membership in the alleged conspiracy

[316]     In dealing with whether Johal was a probable member of the conspiracy, I adopt in total the Crown’s submissions on this issue.

[317]     I agree with Crown counsel’s submission that the evidence establishes that Johal was the overseer of the agreement to import cocaine.  He was responsible for coordinating the timing of the crossings with Kandola.  He was also responsible for providing benefits and payment to Kandola for his role in the conspiracy including cash and various upgrades to Kandola’s Mini Cooper.  As well, Johal provided a cell phone to Kandola and attempted to assist Kandola in obtaining a cheap laptop computer.

[318]     Johal was responsible for making arrangements with Riar to bring his GMC Yukon (British Columbia Licence Plate #AA9208) to the United States to pick up the shipment of cocaine.  Johal travelled to the United States at the same time as Riar, although Johal travelled in a different vehicle.  Johal then met with Riar in the United States after Riar had picked up the shipment of cocaine (as set out in the surveillance of September 6-7 and October 24-25).  While in the United States and after crossing back into Canada, Johal was in constant communication with Riar by way of the non-intercepted cell phones.  On each of July 28, September 7 and October 25, Johal travelled first across the border into Canada via Kandola’s PIL booth and then Riar travelled following Johal (either directly behind or a short time later).  Johal then escorted Riar back to Richmond to ensure that the cocaine was delivered safely.

The arrest of Johal on October 25, 2007

[319]     Johal was arrested at 12:28 a.m. on October 25, 2007.  Johal was arrested while driving northbound on 172nd Street after having doubled back to look for Riar (who ultimately was arrested on 4th Avenue, just west of 176th Street).  I agree with Crown counsel’s submission that Johal’s actions in looking for Riar on October 25 are evidence of his role as the overseer in the importation conspiracy and his responsibility for the cocaine shipment.

[320]     As noted above, the following were seized from Johal’s vehicle, a GMC Yukon with British Columbia Licence Plate #D53398 on his arrest:

·        Samsung cell phone with number 604-724-4949 (Ex. 23) – seized from the front dash.  This phone was subject to interception;

·        Blue Motorola cell phone with number 778-997-0269 (Ex. 24) – seized from between the driver’s seat and center console.  This phone was a dedicated phone dedicated to the conspiracy;

·        A number of car parts.

Intercepted communications where Johal is a party

[321]     The evidence relating to the conspiracy that is directly admissible against Johal includes a number of intercepted calls in which Johal is a party:

·        Call 4 (July 12) – Discussion with Kandola regarding an upgrade to Kandola’s Mini.  Johal brought a Lincoln across the border.

·        Call 6 (July 13) – Received a text message from Kandola where Kandola advised Johal “no car”.

·        Call 7 (July 15) – Kandola asked Johal about a laptop.  Johal will call Kandola the next day.

·        Call 8 (July 15) – Johal advised Kandola that he will let Kandola know if Johal’s “buddy” has a laptop.

·        Call 9 (July 17) – Kandola and Johal discussed a recent court decision from Surrey and Kandola’s ability to carry out his duties at PHBC.  Johal told Kandola about his bills for Customs duties regarding “Speedline”.  Kandola will assist Johal with this.

·        Call 11 (July 17) – Kandola told Johal that he will take the phone.

·        Call 12 (July 17) – discussed with Kandola the phone that Johal will be giving to Kandola.  Kandola was coming to Richmond to pick up his Mini tomorrow.

·        Call 13 (July 18) – discussed with Kandola making arrangements with Johal’s wife regarding the phone.

·        Call 16 (July 19) – received a text message from Kandola: “Comin down around 2”.

·        Call 18 (July 19) – Kandola lost Johal’s “papers” until the coming September.  Kandola is to come to Johal’s house to pick up the phone.  Johal has not heard anything about the laptop.  Johal told Kandola that the person who is installing the “system” in the Mini is booked for Sunday.

·        Call 19 (July 19) – Kandola advised that he picked up the phone.  Kandola needs some items picked up by Johal from the Mini dealership.  Kandola left some paperwork with Johal’s wife.

o   Johal said to Kandola, in Punjabi, “*This coming week*” to which Kandola replies “Yeah, no problem buddy.”

o   They confirmed that they will get together on the weekend.

·        Call 20 (July 20) – Johal told Kandola about a problem he has with Customs regarding “Speedline”.  Kandola will assist Johal with this.

·        Call 21 (July 22) – Johal discussed with Kandola getting Kandola’s Mini in order for work to be done on it (upgrades).

·        Call 22 (July 25) – discussed Kandola’s Mini with him. 

o   Johal tells Kandola that he is “gonna fax you in a little bit, too.  Could you just turn your fax machine on?”  There is some miscommunication with Kandola but Johal confirms, in Punjabi, “*your other phone*”.

o   (Johal and Kandola then spoke on the dedicated cell phones for 102 seconds.)

·        Call 23 (July 27) – Johal was picking up some parts for Kandola’s Mini.  He will put the parts in Kandola’s garage.

o   Kandola asked if they are booked for Sunday.

o   Johal replied, in Punjabi: “*No, it’s tomorrow.  Sunday he’s not here*”.

o   Kandola then clarified he meant t the stereo being installed in his Mini.

·        July 27 – 14:50:48 - Phone Records – Text message from Riar to Johal: “We nr u gona leave”.

·        Call 24 (July 27 – 16:12) – Johal advised Kandola, in Punjabi, “*I just arrived here*”.  Kandola asked if Johal is at home, but Johal replied he is in America.

o   Kandola told Johal, in Punjabi, that he “*should have gone through at night time quickly*”… “*Now your day will finish but it won’t end all night*”

o   Johal says “don’t worry” and Kandola replies “…well I’m gonna see you tomorrow night anyway when I come drop the car off.”

o   Johal asks Kandola what time Kandola will call him tomorrow and Kandola replies, in Punjabi, “*around five thirty*”.

·        Call 25 (July 28 – 20:18) – Johal received a text message from Kandola: “What’s up?”

·        Call 26 (July 28) – 21:01 – Johal discussed with Kandola picking up Kandola’s Mini.  They discussed Johal’s contact installing an alarm.  Johal advised Kandola about what upgrades are being done to Kandola’s Mini.

o   They arranged to meet at a 7-11/Petro-Canada station on 60th Avenue in Surrey.

·        Call 27 (July 29) – Johal is going to pick up Kandola’s car for him.  Johal advised Kandola of what the person charged and he will “square up” with Kandola later.

·        Call 28 (July 29) – Kandola arranged to pick up his car which is parked in the vicinity of Johal’s residence.  Kandola instructs Johal to not park Kandola’s Mini right in front of Johal’s house.

·        Calls 29-31 (July 29) – Series of calls where Kandola ultimately arrived at Johal’s residence and Johal confirmed that he will come outside.

·        Call 32 (July 31) – Johal was going to drop something off at Kandola’s residence but is concerned that Kandola is with someone.  Johal asked for Kandola’s garage code so Johal can place the delivery in the garage.  Kandola provided the garage code.

·        Call 33 (August 7) – Kandola asked Johal about Johal’s brother “Gurj” as he was bringing a car across the border.  Kandola told Johal that he should have just phoned Kandola.

·        Call 34 (August 7) 16:36 – Johal advised Kandola that his brother made it through the border. 

·        Call 35 (August 15) – 22:30 - Johal discussed upgrades to Kandola’s Mini with Kandola.  They made arrangements to speak on the other phone.

o   (They then spoke twice on the dedicated cell phones for 8 seconds, and 88 seconds)

·        Call 38 (August 21) – Shminder Johal identified himself on the phone.

·        Call 39 (August 22) – Johal received a text message from Kandola asking him to call.

·        Call 40 (August 24) – Johal will look into Kandola’s complaint about the stereo that was installed in the Mini.

·        Call 41 (August 24) – follow up on Call 40.  Kandola asked Johal, in Punjabi, “*Any work*”, to which Johal replied, in Punjabi, “*I have not got the phone call yet…waiting for it*”  Johal continued “as soon as I know I’ll call you right aways”.

o   Kandola replied: “Well, yeah, like I said we got three days.”

o   Johal, in Punjabi, “*I’m waiting for it.  He hasn’t called me yet*”.

·        Call 42 (August 25) – Johal received a text message from Kandola: “Car and laptop”.

·        Call 43 (August 25) – Kandola asked Johal about finding a laptop.  Kandola asked Johal about finding some springs for Kandola’s Mini.  Johal will look on-line.

·        Call 44 (August 30) – Johal received a text message from Kandola “10 only”.

·        Call 45 (August 31) – Johal received a text message from Kandola “U up?”

·        Call 46 (August 31) – Kandola, in Punjabi, asked Johal if he had the other phone.  Johal replied that he doesn’t.  They discussed the timing of the next importation.

o   Kandola, in Punjabi, said “*Even next week, next week, uncle, we will have to do it*” Monday.

o   Johal asks “Why?”

o   Kandola: “Because after Tuesday, they’ve got those other people there again.  I found out yesterday.  Oh, uh, Tuesday, uh, Tuesday night no, they’re also working Tuesday, Wednesday, Thursday, Friday”

o   Kandola: “So, I wanted to say, can we do it…?”

o   Johal: “But at night time too?  But night, night, …day…too?”

o   Johal told Kandola that he won’t be able to talk to him for the “the next little while *the other* phone *is sitting at home*”.  Johal said “*I’ll phone you tomorrow, in the day, or you* phone *me from there.*”

o   Kandola said that “we’ll just try and pull uh, *or you come empty from the other side, send him*”, to which Johal replied “*You give it,…I will call you after*”.

·        Call 47 (September 1) – Johal spoke with Riar who referred to Johal as “Sham”. 

·        Call 48 (September 1) – Johal received a text message from Kandola: “Hi need speedo guys # pls.”

·        Call 49 (September 1) – Herman Riar phoned Johal.  Johal referred to Riar as “Herman”.

·        Call 50 (September 3) – Kandola told Johal he is working the graveyard shift all week, 7 to 6.  Kandola will call Johal when he gets up.

·        Call 51 (September 4) – Johal asked Kandola, in Punjabi, “*will you dial me from the other one*”.

o   (They then spoke for 3 minutes, 33 seconds on the dedicated cell phones)

·        Call 52 (September 4) – Johal asked Riar, in Punjabi, “*If you want to work today…?*”.  Riar asked what time and Johal says “We gotta leave like, *quick as possible*”

o   Johal said, “my other buddy’s running the option right now, you know what I mean?” and, is “complainin’ right now about the time.”

o   Johal said “I’ll call you back within five to let you know…if we, if we’re allowed to or not.”

·        Call 53 (September 4) – 21:34 – Kandola asked Johal, in Punjabi “*brother, didn’t you go?*”, to which Johal replies “Oh, how’s it going brother?  No not today.”

o   Kandola said: “…you should have told me.”

o   Johal said he phoned Kandola twice.  Kandola said he had been sending Johal messages.

o   They then discussed when the importation is to take place.

o   Johal: “Okay, *tomorrow, are they going to come the same tomorrow or the next day as well?*”

o   Kandola; “Same *tomorrow same time.*  So *you get it ready tomorrow and*”

o   Johal: “*no, the next day, next day, next day, next day.*”

·        Call 54 (September 4) – 22:48 – Kandola will phone Johal tomorrow.

·        Call 55 (September 5) – 16:37 – Kandola asks “*Not today then?*” to which Johal replies “*Today* fuck no, but I think tomorrow should be *fine.  Call on my other phone.*”

o   Kandola: “Um, well *tomorrow* well okay.”

o   Johal: “Phone *me quickly* if you can.”

o   Kandola: “*It’s upstairs.*”

o   Johal: “…*in two minutes, for one minute, if you can right now.*”

o   (They then spoke for 4 minutes, 43 seconds on the dedicated phones)

·        Call 56 (September 5) – Johal advised an unknown male that he will leave [for the United States] around 12:30 or 1:00 the next day.

·        Call 57 (September 5:16:54) – Johal asked Riar if he can “fax me from the fax machine” and clarifies “Can you fax me *from the other* phone?”

o   (There are then two calls between Johal and Riar on the dedicated cell phones of 27 seconds and 5 minutes, 42 seconds)

·        Call 58 (September 6) – 9:18 – Riar is at the dock.  Johal asked Riar what time he is getting out.  Johal asked Riar to try for twelve to get out.  Johal will call Riar back at twelve.

·        Call 59 (September 6) – 12:16 – It will be half an hour before Riar can be on his way home.  Johal asked if Riar will be ready to “hit the road in forty five minutes”, to which Riar said “yeah”.

o   Johal reminded Riar “*don’t forget the key*” and Riar replied “yeah, I know.”

o   Johal said “*I don’t have another key either, so you got the only key.*”  Johal again told Riar “do not forget the key at all.”

·        Call 60 (September 6) – 12:50 – Johal called Riar “Herman”.  Riar is leaving downtown in about five minutes so it is on schedule. Johal reminds Riar “don’t forget the *key* then.”

·        Call 61 (September 6) – 16:46 – Kandola wanted Johal to order some stuff for Kandola’s Mini.  Kandola told Johal that it will be about “three grand” to which Johal replied “*That is fine.*”  Johal says they will make a list. 

o   The call concluded with Johal telling Kandola to “phone me on the other phone in a bit.”

·        Call 62 (September 7) – approximately 02:10 a.m. – Johal and Kandola have a very brief conversation as Kandola “processed” Johal’s entry into Canada from the United States. 

·        Call 63 (September 7) – 12:43 – Johal received a text message from Riar: “Ask buddy if he doesn’t mind drpn trk at my house and wat time do u thnk?”

·        Call 64 (September 7) – 15:06 – Johal told Kandola that he phoned him back last night but Kandola’s phone was off already.

·        Call 65 (September 9) – 13:41 – Johal received a text message from Kandola: “Please call me.”

·        Call 67 (September 9) – 18:25 – Johal received a text message from Kandola: “Need speedometer guys # pls.”

·        Call 68 (September 9) – 18:29 – Johal provided the name “Avtar” to Kandola.  Kandola wanted Johal to get a website that night regarding Kandola’s Mini.

·        Call 69 (September 10) – 10:20 – Kandola asked Johal to order things that Kandola is waiting for in order to drop his Mini off.  Johal asked Kandola to put him into the ‘link” [website].  Kandola will write it in the message.

·        Call 70 (September 10) – 11:26 – Johal will pick up Kandola’s Mini at a Chevron located at No. 5 Road and Steveston.

·        Call 71 (September 10) – 12:23 – Johal received a text message from Kandola: “www.altaminiperformance.com 0rder:r56 coilover susp kit $999 r56 rear swaybar $286 thanks bro rush pls.”

·        Call 72 (September 12) – 11:30 – Johal received a text message from Kandola “Am back”.

·        Call 74 (September 12) – 13:25 – Johal received a text message from Kandola: “Can you pay mini 4 me.  $4k take from myn.”

·        Call 75 (September 12) – 13:29 – Kandola asked Johal to do him a favour and go by Mini and pay off Kandola’s bill of $4,000.  Johal said “*I’ll go in the morning.*”  Kandola thinks that the Mini will be ready by tomorrow night.

·        Call 76 (September 12) – 16:20 – Johal was complaining to an Al that Kandola texted Johal earlier.  Al told Johal to tell the guy to calm down as it is not even the end of the month. 

o   Johal replied that “He goes uh, no, you still owe him for last month, what are you talkin’ about man?”

o   Johal continued: “…but he was texting me.  He goes, hey can you do me a favour?  With my money that you owe me, can you go to uh, this retail store, whatever kind of car he drives, and go pay uh, four K for me?...I’m like thanks buddy.”

o   Johal continued: “…make it as quick as possible because I know how this guy is, he doesn’t understand concept, man.  He’s fuckin’ moron, man when it comes to that shit and this is why I get stressed out like, fuck, why would you do that man?  I saved the text for you, don’t worry.  So you can read it.”

o   Al replied: “I think he’s probably just letting you know, like he’s got a four K bill, like, hurry up, can you give me my cheque?”

o   Johal replied: “No, he wants me to go there, pay it.”

·        Call 77 (September 13) – 10:10 – Kandola wanted Johal to give him a call.

·        Call 79 (September 13) – 10:29 – Kandola asked Johal if he is going to meet him tonight when Kandola goes to Mini. 

o   Johal does not want to go to Mini because he doesn’t know the “*East Indian*” guy working there.  “You never know man, if the guy knows who I am and who you are, that would be really fucked up, right?”

o   Kandola suggested that Johal put the payment on his credit card to which Johal replies “*Are you crazy?*”

o   Johal and Kandola discussed putting two [thousand] plus two [thousand] as payment.

·        Call 81 (September 13) – 15:55 – Kandola told Johal that he is at Mini.  Kandola wanted to get “two” [two thousand] from Johal.

·        Call 82 (September 13) – 16:15 – Johal told Kandola that last time Kandola called [Call 81] someone was with Johal so he couldn’t say anything.  Johal was concerned because the guy he was with heard Kandola say “Mini”.

o   Kandola is going to the bank and can take out $2,000.

o   Johal suggested meeting “Where I always meet you”.

o   Kandola and Johal arranged to meet on Annacis Island at the Tim Horton’s/Wendy’s.

·        Call 83 (September 13) – 16:30 – Johal received a text message from Kandola: “Her”.

·        Call 84 (September 13) – Kandola left a message for Johal.

·        Call 85 (September 13) – Kandola sent a text message to Johal: “Book alarm”.

·        Call 86 (September 14) – Johal and Kandola discussed the website that Kandola wanted Johal to access.  Johal will go on the website but will talk to Johal before he orders anything.  Johal asked Kandola how the car goes now [referring to the recent engine upgrade to the Mini] and Kandola replied “you can totally tell” [referring to the power available in the Mini].

·        Call 87 (September 17) – Johal received a phone message from Kandola that there has been a change in schedule.

·        Call 88 (September 19) – Johal received a phone message from Kandola asking if Johal has ordered that stuff on-line yet.

·        Call 90 (September 21) – Johal received a text message from Kandola: “Please call me.”

·        Call 91 (September 28) – Part way through the conversation with Johal, Kandola asked “*Do you have the other one*”.

o   Johal replies “No”.

o   Kandola said “*When you get home*”.

o   Johal: “*I’m by your house.*”

o   Kandola: You wanna pop by?

o   Johal: “Okay *open the garage door from the side*”.

o   Kandola confirmed that he will open the side door.

·        Call 92 (October 2) – 17:44 – Johal received a message from Kandola regarding the stereo and the alarm [for Kandola’s Mini].

·        Call 93 (October 2) – Kandola told Johal about his firearms and first aid training.  Kandola then asked about the “alarm guy”.  Johal will phone the alarm guy on Thursday.  Then Johal said he will call the alarm guy tomorrow [Wednesday].

·        Call 94 (October 5) – Riar wanted to borrow one of Johal’s vehicles to attend a wedding.

·        Call 95 (October 6) – Johal was in the States shopping with Roni [Johal’s wife].  Kandola asked if Johal has heard from the “alarm guy”.  Johal will call him [the alarm guy] when he gets back.

·        Call 96 (October 7) – Johal received a text message from Kandola: “U available.”

·        Call 97 (October 9) – 11:53 - Johal received a phone message from Johal regarding the alarm.

·        Call 98 (October 9) – 12:18 – Johal received a text message from Kandola: “Please call me.”

·        Call 99 (October 9) – 13:25 – Johal and Kandola discussed when the work will be performed on Kandola’s Mini [that Johal is arranging].

·        Call 101 (October 9) – 16:31 – Johal and Kandola arranged to meet in Surrey.

·        Call 102 (October 9) – 16:46 – This is a second call regarding meeting at a Sikh temple in Surrey.

·        Call 103 (October 9) – 20:11 – Johal asked Kandola “*Can you hit on the other one?*”

o   (There are then two calls between Johal and Kandola on the dedicated cell phones of durations of 1 minute, 23 seconds and 1 minute, 59 seconds)

·        Call 104 (October 10) – 15:48 – Johal received a text message from Kandola: “U available.”

·        Call 105 (October 11) – 13:21 – Johal received a text message from Kandola: “Please call me.”

·        Call 106 (October 11) – 17:53 – Johal and Kandola discussed meeting later on that day.

·        Call 108 (October 12) – 14:03 – Johal wanted to get together with Kandola as Johal was in Kandola’s neighbourhood.  Kandola was at work and was not off until 4:30.  Johal asked Kandola to call him later.

·        Call 109 (October 13) – 11:16 – Johal will see Kandola after the hockey game.

·        Call 111 (October 16) – 10:16 – Johal received a phone message from Kandola.

·        Call 112 (October 16) – 11:02 – Kandola is going to “pop by” Johal’s residence.

·        Call 113 (October 16) – 11:29 – Johal will call Kandola when he gets home – Johal has to talk to Kandola.

·        Call 114 (October 16) – 11:30 – Johal will call Kandola from a payphone on his way back from Abbotsford.

·        Call 116 (October 16) – Johal and Kandola arranged to meet at a store at 96 and 176 [in Surrey].

·        Call 117 (October 19) – 00:31 – Johal referred to Riar as “Herman”.  Johal asked him about “the key” that Johal gave him a long time ago. Riar still has one.  Johal needs the other one back because he has to give it to somebody.  That person just called him.

·        Call 118 (October 19) – 00:48 – This is a further discussion with Riar about the key.  Riar put his key somewhere and doesn’t know where he put it.  Johal said “I need yours back the, cause I, I gotta give somebody the key, they’re gonna make another one for tomorrow.”

·        Call 119 (October 19) – 00:50 – Riar just found the key.  Johal instructed Riar to put the key in an envelope and drop it off at Johal’s house.  Riar confirmed that he will do that in the morning.

·        Call 121 (October 20) – Kandola and Johal discussed the alarm guy.  Johal said that if the alarm guy gives them the run-around then he may find another place. 

·        Call 122 (October 21) – Kandola phoned Johal.  Johal was with somebody and will call Kandola back as soon as he is done.

·        Call 123 (October 22) – 13:05 – Johal received a text message from Kandola: “Please call me.”

·        Call 124 (October 22) – 13:11 – Johal offered to assist Kandola in bringing in a car for Kandola’s mother-in-law.  Kandola advised that he is working “graveyards” all week.  Kandola will talk to Johal in the morning.

·        Call 125 (October 23) – 18:57 – Johal has something he has to give to Riar so he wanted Riar to call him when he’s coming home.

·        Call 126 (October 23) – 12:41 – Kandola asked Johal, in Punjabi, “*Do you have the other one with you?*”  Johal replied “Yeah”.  Kandola said, in Punjabi “*Turn it on*”.  Johal replied “Okay, bye.”

o   (There is then a call between Kandola and Johal on the dedicated cell phones for 7 minutes, 42 seconds)

·        Call 129 (October 23) – 19:08 – Johal said that Riar didn’t call him yesterday and Riar replied that he was sick.  Riar asked “What time’s that uh, Halloween party tomorrow?” and Johal replied “Call me right now, *on the other one.*”

o   (There is then a call between Johal and Riar on the dedicated cell phones for 2 minutes, 29 seconds)

·        Calls 130-132 (October 24) – 10:10, 10:25, 11:34 – Johal attempted to phone Kandola.

·        Call 133 (October 24) – 11:56 – Johal phoned Riar and says “I’ll call you back on…” and Riar replied “Oh, *on the other one*, okay.”

o   (There is then a call between Johal and Riar on the dedicated cell phones for 57 seconds)

·        Calls 134 and 135 (October 24) – 12:02 and 12:03 – Johal attempted to phone Kandola.

·        Call 136 (October 24) – 12:28 – Johal spoke with Kandola.

o   Johal: “*Did you forget about me?*”

o   Kandola: “Huh?”

o   Johal: “*Did you forget?*”

o   Kandola: “What?”

o   Johal: “*What?*”

o   Kandola: “Did I forget what?  Oh, the text.”

o   Johal: “Yeah *I’ve been waiting for you.*”

o   Kandola: “Fuck, okay, Um, um, time *can I just tell you?*”

o   Johal: “Um, *no, do it on the other one, it’s* better *right.*”

o   Kandola: “Okay, I’ll call – “

o   Johal: “*Do it now.*”

o   Kandola: “I’ll call you right back.”

o   (There is then a call between Kandola and Johal on the dedicated cell phones for 29 seconds)

·        Call 138 (October 25) – approximately 12:15 a.m.

o   Kandola: Hi.  How long away?

o   Johal: About an hour.

o   Kandola.  Did you buy or receive any goods, sir.

o   Johal: No.

o   (Banging noises)

o   Kandola: Thank you.

·        Call 140 (October 25) – Johal and Riar had a conversation, in Punjabi, about the arrest while in the back of a marked RCMP vehicle.

Johal’s use of dedicated cell phone system to communicate with Kandola and Riar

[322]     Johal frequently utilized a dedicated cell phone to communicate with Kandola and Riar.  Johal only had four phone numbers in the “Contacts” of this phone.  Two of these contact numbers were for the phone seized from Kandola on his arrest and one of the phones seized from Riar on his arrest.  The phones were used exclusively for communication about matters pertaining to the conspiracy to import cocaine.  Johal had provided phones to Kandola and Riar in May 2007.  In addition, both Kandola and Johal testified that they used a different set of dedicated cell phones from early 2007 until obtaining the phones in May 2007.

[323]     These dedicated cell phones were not subject to interception.  However, the phone records for these cell phones were obtained.  The phone records show that the use of the cell phones was confined to communications between:

·        Johal and Kandola;

·        Johal and Riar;

·        Johal and the other two phone numbers were designated a “Betty” and “Alice” on his SIM card directory.

[324]     There were references in the intercepted calls to calling the other party on “the other one” or requests to turn the other phone on.  An analysis of the phone records of the dedicated cell phones in these situations demonstrates that the dedicated phones seized on the arrest of each of Johal, Kandola and Riar were, in fact, the phones referred to in the intercepted calls.  As well, the use of these cell phones between Johal, Kandola and Riar is evidence of the conspiracy; the use by Johal is direct evidence against him.  In addition, each communication on these cell phones is an act in furtherance of the conspiracy.

Communication with Kandola on the dedicated cell phone

[325]     As further evidence of his probable involvement in the conspiracy, Johal communicated, or made an attempt to communicate, with Kandola on the dedicated cell phones on the following dates and times:

o   May 19

§  1:00:24 p.m. (157 seconds)

§  1:19:19 p.m. (157 seconds)

§  4:40:33 p.m. (7 seconds)

§  4:42:47 p.m. (256 seconds)

o   June 25

§  2:31:46 p.m. (112 seconds)

o   June 26

§  10:46:29 a.m. (310 seconds)

§  8:54:02 p.m. (4 seconds)

§  10:47 p.m. (102 seconds)

o   July 1

§  12:17:09 p.m. (1095 seconds)

o   July 10

§  3:09:32 p.m.(19 seconds)

§  3:10:51 p.m. (114 seconds)

o   July 23

§  10:12:49 p.m. (4 seconds)

o   July 25

§  9:06:13 p.m. (4 seconds)

§  10:01:01 (5 seconds) (see Call 22)

§  10:23:57 (102 seconds)

o   July 27

§  21:05:20 (1 second)

o   July 28 (see Call 24)

§  05:23:19 (55 seconds)

o   August 15 (see Call 35)

§  23:13:10 (8 seconds)

§  23:33:42 (88 seconds)

o   August 27

§  16:13 (5 minutes, 25 seconds)

o   August 31

§  12:22:08 (4 seconds)

o   September 4 (see Call 51)

§  11:56:00 (3 minutes, 33 seconds)

§  15:00:00 (5 seconds)

§  15:01:52 (7 seconds)

§  16:45:13 (6 seconds)

§  17:45:50 (7 seconds)

§  21:20:55 (12 seconds)

o   September 5

§  06:11 – text message from Kandola “9 or 3”

§  12:27:56 (11 seconds)

o   September 5 (see Call 55)

§  16:40:10 (4 minutes, 43 seconds)

o   September 6

§  13:18:11 (1 minutes, 52, seconds)

§  23:01 – text message from Kandola: “2 pls” [Evidence of Cpl. Kuan]

§  23:59:28 (9 minutes, 48 seconds)

o   October 9 (see Call 103)

§  20:16:06 (1 minute, 23 seconds)

§  20:20:09 (1 minute, 59 seconds)

o   October 23

§  12:40:39 (4 seconds)

§  12:42:44 (7 minutes, 42 seconds) (see Call 126)

o   October 24 (see Call 136)

§  12:30:57 (29 seconds)

o   October 24 – series of text messages between Kandola and Johal

§  20:02:39 – Johal to Kandola: Everything cool

§  20:03:40 – Kandola to Johal: Yes

§  20:04:23 – Johal to Kandola: 12

§  20:10:06 – Kandola to Johal: Yes

§  20:10:37 – Johal to Kandola: Ok

o   October 25 – text message exchange between Kandola and Johal

§  00:03:43 – Kandola to Johal: Aja

§  00:04:25 – Johal to Kandola: Ok

Communication with Riar on the dedicated cell phone

[326]     As further evidence of his probable involvement in the conspiracy, Johal communicated, or made an attempt to communicate, with Riar on the dedicated cell phones on the following dates and times:

o   June 25

§  3:03:26 p.m. (56 seconds)

o   June 26

§  10:44:35 a.m. (92 seconds)

§  11:17:32 a.m. (13 seconds)

§  12:36:56 p.m. (62 seconds)

§  2:12:57 p.m. (74 seconds)

§  2:58:15 p.m. (74 seconds)

o   June 27

§  12:04:29 a.m. (357 seconds)

§  12:13:16 a.m. (947 seconds)

o   July 27

§  14:15:13 (18 seconds)

§  15:03:13 (53 seconds)

§  15:05:36 (10 seconds)

§  15:09:27 (29 seconds)

§  16:15:44  (33 seconds)

o   July 28

§  06:31:59 (16 minutes, 27 seconds)

o   September 5 (see Call 57)

§  17:04:53 (27 seconds)

§  17:05:47 (5 minutes, 42 seconds)

o   September 6

§  14:21:42 (52 seconds)

§  14:58:52 (49 seconds)

§  15:01:02 (22 seconds)

§  16:03:32 (1 minutes, 38 seconds)

§  16:57:25 (30 seconds)

§  17:08:41 (1 minute, 4 seconds)

§  23:31:59 (1 minute, 39 seconds)

§  23:52:34 (5 minutes, 31 seconds)

o   September 7

§  00:01:42 (33 seconds)

§  00:09:30 (41 seconds)

§  00:10:20 (12 seconds)

§  00:11:01 (2 minutes, 42 seconds)

§  01:28:15 (4 minutes, 43 seconds)

§  01:41:22 (2 minutes, 58 seconds)

§  01:51:37 (32 seconds)

§  01:52:19 (12 seconds)

§  01:52:53 (1 minutes, 26 seconds)

§  02:01:04 (28 seconds)

§  02:04:37 (6 minutes, 51 seconds)

§  02:17:06 (1 minute, 15 seconds)

o   October 23 (see Call 129)

§  19:12:55 (2 minutes, 29 seconds)

o   October 24 (see Call 133)

§  11:57:43 (57 seconds) (see call 133)

§  13:04:05 (51 seconds)

§  13:42:47 (24 seconds)

§  13:56:34 (24 seconds)

§  14:15:30 (1 minute, 24 seconds)

§  14:21:52 (47 seconds)

§  15:25:18 (56 seconds)

§  16:32:55 (40 seconds)

§  20:17:55 (27 seconds)

§  20:23:35 (19 seconds)

§  20:36:03 (24 seconds)

§  20:49:25 (4 seconds)

§  22:08:56 (18 seconds)

§  22:22:40 (44 seconds)

§  22:38:49 (16 seconds)

§  23:24:23 (17 seconds)

§  23:26:28 (44 seconds)

§  23:31:50 (28 seconds)

§  23:59:45 (20 seconds)

o   October 25

§  00:06:46 (5 seconds)

§  00:07:20 (1 minute, 24 seconds)

§  00:11:09 (33 seconds)

§  00:12:07 (35 seconds)

§  00:18:36 (30 seconds)

§  00:19:23 (5 minutes, 29 seconds)

Meetings between Johal and Kandola

[327]     Johal met with Kandola on a number of occasions.  The meetings were often in public places, although there was some concern expressed in the intercepted calls about being seen together in certain circumstances.  Both Johal and Kandola testified that they attempted to meet in circumstances to avoid being seen together.  The RCMP observed some of the meetings.  Other meetings can be inferred from the intercepted communications.

[328]     I agree with Crown counsel that when viewed in the context of the evidence, these meetings are acts in furtherance of the conspiracy.  Aside from the September 13, 2007 meeting in which Johal gave Kandola $2,000, neither accused had a good recollection about the details of conversations they had at these meetings.

[329]     From surveillance and intercepted and dedicated phone record analysis, the following meetings took place between Johal and Kandola:

a.   May 17 – Johal and Kandola met in the back corner of a parking lot at a strip mall complex in Surrey.

b.   July 28 – Johal and Kandola met at a 7-11/Petro-Canada after 9:00 p.m.  They departed in Kandola’s Mini with Johal driving.

c.   July 29 – Johal and Kandola met outside Johal’s residence.  (Calls 28-31)

d.   July 31 – Johal is going to drop something off at Kandola’s residence.  Kandola provided the garage code. (Call 32)

e.   September 13 – Johal and Kandola met at a parking lot at a Wendy’s/Tim Horton’s on Annacis Island.  Johal retrieved something from the trunk of the Mustang he was driving and got into the passenger seat of Kandola’s Mini.  They had a conversation for approximately 10 minutes and then they departed in their respective vehicles.  Johal exited Kandola’s vehicle without anything in his hand.  Johal gave Kandola $2,000 at this meeting.

f.    September 28 – Johal met Kandola at Kandola’s residence.  Johal was to access Kandola’s residence via the side door. (Call 91)

g.   October 9 – Johal and Kandola met at a Coffee Shop in Surrey. (Calls 101 and 102)

h.   October 16 – 13:47 - Johal and Kandola met at the parking lot of Parkside Market located at 17619 – 96 Avenue in Surrey.  Kandola was in the passenger side of Johal’s Acura MDX (243 GMH) in the parking lot.  They met for approximately 20 minutes.  They departed at 14:07. (Call 116)

Johal accompanied Riar back to the Canadian border after Riar loaded the shipment of cocaine into his GMC Yukon

[330]     I agree with Crown counsel’s submission that as part of Johal’s overseer function in the conspiracy, Johal accompanied Riar from the United States to Canada once Riar had obtained the cocaine from the storage locker.  Johal was ultimately responsible for the cocaine so he took measures to ensure the security of the shipment and to ensure that Riar crossed the border into Canada undetected.

[331]     The RCMP conducted surveillance of Johal and Riar on two occasions while they were in the United States:  September 6-7 and October 24-25.  I also agree with Crown counsel’s submission that Johal’s actions while in the United States and Canada are direct evidence against him and were also done in furtherance of the conspiracy in his role as the overseer.

[332]     The surveillance evidence speaks for itself.  In summary, on September 6, Johal travelled to the United States in an Acura MDX.  After Riar attended locker number 38 at the storage facility in Bothell, Washington, he and Johal met at a restaurant at about 5:15 p.m. and then went to a mall complex.  While Riar’s GMC Yukon was parked, three boxes were observed in the back of Riar’s Yukon by Cpl. Lee of the RCMP.  Johal and Riar then spent the next eight hours either in the same physical space or in communication via the dedicated cell phones.

[333]     At 2:05 a.m. on September 7, Johal departed an Exxon gas station just south of the Canadian border just after Riar arrived at the gas station.  Johal then crossed into Canada via Kandola’s PIL booth.  Riar entered Canada shortly after Johal.  They then drove in tandem to Richmond.

[334]     On October 24, Johal was observed at the same Shell gas station as Riar at approximately 2:20 p.m.  This was prior to Riar’s attendance at storage locker number 38 in Bothell, Washington.  At about 6:15 p.m., after Riar had retrieved the boxes of cocaine from locker number 38, Johal (and his wife) met up with Riar at a mall.  They then spent the next several hours either physically in the same place or in communication via the dedicated cell phones.

[335]     At approximately 12:08 a.m. on October 25, Johal departed the same Exxon gas station as on September 7, just after Riar arrived at the gas station.  Johal then drove to the PHBC and entered Canada via Kandola’s PIL booth at approximately 12:15 a.m.  Riar also entered Canada via Kandola’s PIL booth at approximately 12:21 a.m.

Johal entered Canada via Kandola’s PIL Booth and accompanied Riar back to Richmond (Johal responsible for Riar)

[336]     I agree with Crown’s submission that Johal’s actions accompanying Riar on July 28, September 6-7 and October 25, 2007, are direct evidence against Johal and constitute acts in furtherance of the conspiracy.

[337]     On July 28 at 06:38, Johal stops at Kandola’s PIL booth.  Johal’s vehicle moves ahead slowly out of the border and then turns north on 176th Street, after which the following actions took place:

·        Johal then drove in tandem with Riar from the area of the PHBC to Johal’s residence in Richmond, B.C.

·        Shortly after arriving at his residence, Johal drove in a circular fashion on the streets around his residence, clearly conducting counter-surveillance.

·        Riar’s vehicle (BCLP# AA9208) was parked at Johal’s residence.

[338]     On September 7 at 02:13 to 02:37 a.m., Johal and Riar drove in tandem from the PHBC to Richmond.  At 2:58 a.m., Riar’s GMC Yukon was seen in a garage at the rear of a residence in East Vancouver.

[339]     Again, I agree with the Crown’s submission that Johal’s actions in attempting to locate Riar on October 25 after Johal crossed the border are direct evidence against Johal and constitute acts in furtherance of the conspiracy.  Johal took the following route after crossing the border into Canada:

·        12:15 a.m. – Johal drove northbound on 176th Street;

·        12:17 a.m. – Johal drove past the RCMP’s staged collision scene;

·        Johal then drove:

o   North on 176th Street

o   West on 8th Avenue

o   South on 172nd Street

o   East on 4th Avenue

o   West on 4th Avenue

o   North on 172nd Street

o   Spike belt/Arrested.

Benefits and payments provided by Johal to Kandola in exchange for Kandola’s role in the conspiracy

[340]     Over the course of the conspiracy, Johal paid money to Kandola for Kandola’s role in the conspiracy.  Johal was also responsible for providing benefits to Kandola as payment for Kandola’s role in three distinct areas:  cash payments, upgrades to his Mini Cooper, and a new phone and laptop.  Kandola’s expectations of Johal in relation to upgrades and payments for Kandola’s Mini and the electronics, in combination with Johal’s responses, demonstrate the nature of the relationship between Johal and Kandola.  I agree with Crown counsel’s submission that Kandola’s expectations of Johal are a reflection of the risk that Kandola had taken ensuring safe passage for Johal and Riar to bring cocaine into Canada.  Kandola expected to be paid and expected Johal to provide benefits to him.

[341]     Both Kandola and Johal testified about the payments and benefits to Kandola from Johal.  Kandola testified that he received three payments of $2,000 (May 31, September 13, and between September 13 and October 25, 2007).  Kandola also testified he received benefits in the form of upgrades to his vehicle, a Mini Cooper.  Kandola estimated the dollar value of benefits provided in 2007 to be approximately $10,000.

[342]     Johal did not have a good recollection of cash payments to Kandola.  The only payment he was able to recall was the $2,000 on September 13.  Johal also testified that he provided benefits to Kandola.  Johal estimated the dollar value of benefits at approximately $10,000.

[343]     The evidence of Kandola’s expectation of payment and Johal’s doing so is more fully laid out above.

Kandola’s probable membership in the conspiracy

[344]     I agree with the Crown’s submission that the evidence establishes that Kandola’s responsibility in the conspiracy was to ensure that the cocaine shipment crossed into Canada without being detected or seized by Canadian border authorities.  Kandola communicated with Johal to advise Johal of the appropriate time for Johal and Riar to cross the Canada-U.S. border via the PIL booth that Kandola was operating.  Kandola utilized his position as a BSO to access the schedule for the PIL booth for the relevant times that the crossings were to take place.

[345]     Kandola also ensured that there was no record in the CBSA database of Johal, Riar, or their vehicles entering Canada.  In other words, Kandola made no CBSA database queries on either the ICES or IPIL systems when Johal and Riar entered Canada via Kandola’s PIL booth on July 28, September 7 and October 25, 2007.

[346]     Kandola received various benefits and payment from Johal for his role in the conspiracy.  Most of these benefits related to upgrades to his Mini Cooper vehicle or cash payments related to this.

[347]     As mentioned, I agree with the Crown’s submission that the evidence establishes that Kandola was a probable member of the conspiracy with Johal and Riar and that he knew that the conspiracy was to import cocaine from the United States into Canada.  The seriousness of the conduct and the potential risks are reflected in the various measures taken by the group to avoid detection and ensure that the importations were carried out without intercession by law enforcement.

Unauthorized CBSA database queries made by Kandola

[348]     As noted, upon commencing employment with the CBSA, Kandola was given a computer access code – “BXK 170” – which was to be used for accessing various CBSA databases.  It was to be used for purposes of employment only.

[349]     Filed as an exhibit are the records of every database query in the ICES and IPIL systems made by Kandola (Ex. 94, 94A, 94B).

[350]     There is a procedure in place for scanning identification presented to the BSO in the PIL booth but, at the time of the conspiracy, there was no system for recording licence plates of vehicles in commercial lanes at the PHBC.  Database records disclosed that Kandola made several database queries of individuals who were not present at the PIL booth.  This is determined by the fact that there are no dates of birth associated with the individual.  Therefore, there was no identification being referred to by Kandola when he made the queries.

[351]     On July 24, 2006, at 7:09:41 a.m. (EST), Kandola performed a query on the ICES database for an individual named “Sham Johal”.  No date of birth was entered.  (Ex. 94B, p. 886)

[352]     On the same date at 7:09:52 a.m. (EST), Kandola accessed the Lookout Synopsis for Lookout number 1613-05-0293 (Ex. 95).  Shminder Johal was one of the subjects of the Lookout.  As well, two of Shminder Johal’s companies, Dream Motor Cars and Speedline Auto Sales, were also subjects.  The Lookout stated that Speedline Auto Sales Ltd. was suspected of being involved with smuggling cocaine into Canada from the United States.

[353]     Kandola’s actions in accessing the Lookout are direct evidence against him.  I agree with the submissions of Crown counsel to the effect that, as well, they are acts in furtherance of the conspiracy as they relate to risk assessment for the group.  Kandola’s subsequent checks in the CBSA database in relation to Shminder Johal, Gurjit Johal, Speedline and Dream Motors demonstrate that Kandola wanted to follow up in his risk assessment for the group.  The fact that the Lookout went from “active” to “silent” does not detract from Kandola’s knowledge that the person who he was entering into a conspiracy with had been suspected of smuggling cocaine using his company Speedline.

Telephone contact between Kandola and Johal – July 24 to August 4, 2006

[354]     Kandola was in telephone contact with Johal between July 24 and August 4, 2006 as follows:

July 24 – 6:57:58 p.m. – Kandola phoned Johal’s cell phone.  (89 seconds)

This was the same day that Kandola accessed the Lookout that indicated that Johal was suspected of smuggling cocaine.

July 25 – 3:03:40 p.m. – Kandola phoned Johal’s cell phone. (5 seconds)
July 25 – 6:39:03 p.m. – Kandola phoned Johal’s cell phone. (6 seconds)

July 26 – 2:07:47 pm. – Kandola phoned Johal’s cell phone. (9 seconds)

July 26 – 2:50:20 p.m. – Johal phoned Kandola’s cell phone. (6 seconds)

July 26 – 3:37:57 p.m. – Kandola phoned Johal’s cell phone. (75 seconds)

[355]     There was further phone contact on the following days between Kandola and Johal:

July 26, 28, 29, 30, 31 and August 1, 2, 4, 2006.

[356]     I agree with the submission of Crown counsel that the significance of the telephone contact on these days is that it coincides with Kandola’s access of the Lookout on July 24, 2006, and his subsequent queries of the subjects of the Lookout on August 1 and 2, 2006.

Telephone contact between Kandola and Johal – November 17, 2006 to February 15, 2007

[357]     Kandola was in telephone contact with Johal on the following days (phone or text message) which is evidence of association between Johal and Kandola:

November 2006:   17, 21, 23, 24, 25, 28, 39, 30

December 2006:   1, 12, 13, 14, 15, 20, 21, 22, 25, 26, 27

January 2007:       2, 3, 4, 5, 6, 7, 8, 11, 12, 13, 14, 16, 18, 19, 21, 22, 23, 24, 26, 27, 28, 29, 30, 31

February 2007:      1, 3, 6, 7, 8, 9, 10, 12, 13, 14

[358]     Kandola was in communication with Johal via text message on February 10, 2007.  Kandola used the Punjabi command “aja” (come) in a text message to Johal.  This was the same command used in a text message from Kandola to Johal on October 25, 2007, the day of their arrest.

[359]     The key text messages on February 10, 2007 are as follows:

01:29:33 – Feb 15 16 changed to [Kandola to Johal]

01:35:10 – K [Johal to Kandola]

03:03:23 – Aja [Kandola to Johal]

04:37:22 – 7-11 tomorrow [Kandola to Johal]

Telephone contact between Kandola and Johal – February 16 to April 20, 2007

[360]     Kandola was in telephone contact with Johal on the following days (phone or text message) which again demonstrates association between Johal and Kandola:

February 2007:  17, 19

March 2007:  5, 7, 9, 11, 22, 24, 26, 28

April 2, 3, 4, 9, 10, 11, 15, 18, 19

Telephone contact between Kandola and Johal – June 24 to July 10, 2007

[361]     Kandola was in telephone contact with Johal on the following days (phone or text message) which is further evidence of association between Johal and Kandola:

June 2007:  25, 28, 30

July 2007:  1, 3, 4, 5, 6, 7, 10

Benefits and payments to Kandola for his role in the agreement to import cocaine

[362]     The various benefits provided to Kandola by Johal for Kandola’s role in the conspiracy are further evidence of the existence of the conspiracy.  These benefits centred around upgrades to Kandola’s Mini Cooper automobile as well as cash payments and Johal’s provision of a cell phone and a laptop computer.  Kandola and Johal confirm that Johal provided Kandola with a cash payment of $2,000 on September 13.  As well, Johal offered to pick up car parts worth $3,000 on September 6 (see Call 61).  In addition, Johal made arrangements for Kandola’s Mini to have a stereo and TVs installed.  Kandola sought Johal’s assistance regarding an alarm and someone to work on the speedometer.  Johal also provided a phone to Kandola and Kandola sought to have Johal provide him with a laptop computer.

[363]     As set out previously, Kandola testified that he received three cash payments from Johal of $2,000 each.  Though Johal professed not to have a specific memory of more than one $2,000 payment, both he and Kandola estimated that the total benefits provided to Kandola by Johal were approximately $10,000.

[364]     The benefits and attempted benefits are set out more fully in the section above dealing with benefits provided by Johal.

Intercepted calls involving Kandola

[365]     The evidence related to the conspiracy directly admissible against Kandola includes a number of calls in which Kandola is a party.  The vast majority of these calls are with Shminder Johal and are set out above in the section entitled “Johal’s probable membership in the conspiracy”.

[366]     The tab numbers of the calls or text messages between Kandola and Johal are as follows:

4, 6, 7, 8, 9, 11, 12, 13, 16,  18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 39, 40, 41, 42, 43, 44, 45, 46, 48, 50, 51, 53, 54, 55, 61, 62, 64, 65, 67, 68, 69, 70, 72, 72, 74, 75, 77, 79, 81, 82, 83, 84, 85, 86, 87, 88, 90, 91, 92, 93, 95, 96, 97, 98, 99, 101, 102, 103, 104, 105, 106, 108, 109, 111, 112, 113, 114, 116, 121, 122, 123, 124, 126, 130, 131, 132, 134, 135, 136, 138

[367]     There are some additional intercepts involving Kandola as follows:

·        Call 1 (July 11) – Kandola advised Nick Roddam that he was on his way to Richmond Mini.

·        Call 2 (July 11) – Kandola advised his brother that he has a loaner and he talks about the upgrades to his Mini.

·        Call 5 (July 13) – Kandola spoke with Nick Roddam from Richmond Mini.  Kandola thanks Roddam for the “loaner”.

·        Call 10 (July 17) – Kandola provided his phone number to Richmond Mini.

·        Call 14 (July 18) – Kandola asked “Jay” when his car would be available from Richmond Mini.

·        Call 15 (July 18) – Discussed JCW kit with Nick Roddam.  Kandola wanted a lower price on the work being done to his Mini.

·        Call 17 (July 19) – Kandola confirmed with Nick Roddam that his car was ready.

·        Call 36 (August 17) – Kandola spoke with Mark McDonnell at PHBC. 

·        Call 37 (August 20) – CIBC left a message for “Bal Kandola” on 604-339-6127.

·        Call 80 (September 13) – 15:14 – “Colin” of Mini Richmond advised Kandola that Kandola’s Mini will be ready in 45 minutes.

·        Call 115 (October 16) – 12:02 – Kandola spoke with Mark McDonnell of PHBC.  McDonnell advises that Kandola is longer scheduled to go to Huntington [border crossing] and Kandola is back on nights.  Kandola’s response was “Awesome.”

·        Call 138 (October 25) – at approximately 12:21 a.m. -  Kandola “processed” Riar.

Kandola’s use of the dedicated cell phone to communicate with Johal

[368]     According to Kandola and Johal, in early 2007 Johal provided a dedicated cell phone to Kandola.  A second dedicated cell phone was provided by Johal to Kandola in May 2007.

[369]     The phone records demonstrate that Kandola frequently utilized this second dedicated cell phone to communicate with Johal.  This cell phone was not subject to interception.  Each communication on this cell phone is evidence of the conspiracy and is an act in furtherance of the conspiracy.  It should be noted that Kandola only communicated with one person on this phone:  Shminder Johal.  This demonstrates how careful he was when communicating about the conspiracy.  It is evidence of Kandola’s knowledge of the object of the conspiracy and the need for operational security.  The only contact listed on Kandola’s dedicated cell phone is “work” and the corresponding number is that of Johal’s dedicated cell phone.

[370]     References are made in the intercepted calls about speaking to either Kandola or Riar on “the other one” or “the other phone”.

[371]     Kandola first used the dedicated cell phone on May 19, 2007, having been made aware on July 24, 2006, that there was, at one time, a Lookout which said that Johal’s company, Speedline Auto Sales, was suspected of smuggling cocaine into Canada.

[372]     Johal communicated with Kandola on the dedicated cell phones on the following dates and times.

o   May 19

§  1:00:24 p.m. (157 seconds)

§  1:19:19 p.m. (157 seconds)

§  4:40:33 p.m. (7 seconds)

§  4:42:47 p.m. (256 seconds)

o   June 25

§  2:31:46 p.m. (112 seconds)

o   June 26

§  10:46:29 a.m. (310 seconds)

§  8:54:02 p.m. (4 seconds)

§  10:47 p.m. (102 seconds)

o   July 1

§  12:17:09 p.m. (1095 seconds)

o   July 10

§  3:09:32 (19 seconds)

§  3:10:51 (114 seconds)

o   July 23

§  10:12:49 p.m. (4 seconds)

o   July 25

§  9:06:13 p.m. (4 seconds)

§  10:01:01 (5 seconds) (see Call 22)

§  10:23:57 (102 seconds)

o   July 27

§  21:05:20 (1 second)

o   July 28 (see Call 24)

§  05:23:19 (55 seconds)

o   August 15 (see call 35)

§  23:13:10 (8 seconds)

§  23:33:42 (88 seconds)

o   August 27

§  16:13 (5 minutes, 25 seconds)

o   August 31

§  12:22:08 (4 seconds)

o   September 4 (see call 51)

§  11:56:00 (3 minutes, 33 seconds)

§  15:00:00 (5 seconds)

§  15:01:52 (7 seconds)

§  16:45:13 (6 seconds)

§  17:45:50 (7 seconds)

§  21:20:55 (12 seconds)

o   September 5

§  06:11 – text message from Kandola “9 or 3”

§  12:27:56 (11 seconds)

o   September 5 (see Call 55)

§  16:40:10 (4 minutes, 43 seconds)

o   September 6

§  13:18:11 (1 minutes, 52, seconds)

§  23:01 – text message from Kandola: “2 pls” [Evidence of Cpl. Kuan]

§  23:59:28 (9 minutes, 48 seconds)

o   October 9 (see Call 103)

§  20:16:06 (1 minute, 23 seconds)

§  20:20:09 (1 minute, 59 seconds)

o   October 23

§  12:40:39 (4 seconds)

§  12:42:44 (7 minutes, 42 seconds) (see Call 126)

o   October 24 (see Call 136)

§  12:30:57 (29 seconds)

o   October 24 – series of text messages between Kandola and Johal

§  20:02:39 – Johal to Kandola: Everything cool

§  20:03:40 – Kandola to Johal: Yes

§  20:04:23 – Johal to Kandola: 12

§  20:10:06 – Kandola to Johal: Yes

§  20:10:37 – Johal to Kandola: Ok

o   October 25 – text message exchange between Kandola and Johal

§  00:03:43 – Kandola to Johal: Aja

§  00:04:25 – Johal to Kandola: Ok

Kandola’s use of his position as a Border Services Officer in relation to the conspiracy to import cocaine

[373]     As set out above, Kandola had access to the CBSA computer databases.  Kandola received an access code when he began working as a BSO.  This, along with a password, gave Kandola access to the CBSA databases including ICES and IPIL.  All of the database queries conducted by Kandola during his employment with the CBSA are contained in Exhibits 94A and 94B.  It is clear from this exhibit that Kandola made thousands of queries in the course of his employment.  As set out in the Chronology of Evidence, Kandola made a number of unauthorized database queries of Shminder Johal, Gurjit Johal, Speedline and Dream.  The inference from the phone records between July 24 and August 4, 2006, is that Kandola communicated the results of those queries to Shminder Johal.

[374]     Kandola had knowledge of the scheduling procedures for the PIL booth at the commercial lanes of the PHBC.  The scheduling of BSOs and their various roles at the PHBC would be done on a daily basis by a Superintendent on a document referred to as a Daily Roster.  This Daily Roster would be available by 2:00 a.m. for the 24 hour period commencing at 6:00 a.m.  Therefore, if a BSO was working a night shift then he or she would have access to the schedule showing where they would be stationed on the following night’s shift.

[375]     Kandola used this information to plan the timing of the crossings with Johal.  For example, the sequence of events on October 24-25 demonstrates this.  On October 24, Johal made several attempts to reach Kandola via telephone (See Calls 130, 131, 132, 134, 135).  Once Johal was able to speak with Kandola (Call 136), Kandola wanted to tell Johal the time of the crossing.  Johal wanted Kandola to tell him on the dedicated cell phone.  As a result, they then spoke briefly on the dedicated cell phone.  Kandola had worked the previous night shift, getting off work at 6:00 a.m. on October 24.  As a result, he would have known the schedule for the next 24 hours, including when he would be working in the PIL booth.

[376]     Kandola used his knowledge of procedures at the PHBC to mitigate potential risks in the conspiracy.  As the PHBC was a commercial crossing, it tended to be busier in the day and on weekdays.  As a result, at night there would only be one PIL booth open.  Kandola’s knowledge of this was key to the successful completion of the conspiracy as there could be no risk of someone other than Kandola examining Johal and Riar on their entry into Canada.

[377]     Kandola also referred to the FRT in Call 46.  Kandola wanted to ensure that Johal and Riar did not attempt to cross via Kandola’s PIL booth at a time when the FRT was scheduled to work, as the team added risk given their mandate to interdict contraband and the various techniques they would employ.  Supt. McDonnell testified that the FRT’s primary mandate is to look for contraband such as drugs and guns.

[378]     Kandola was engaged in acts of deception in the PIL booth when “processing” the entry of Johal and Riar and their vehicles into Canada.  First of all, he made no record in the CBSA databases of either Johal or Riar, or their vehicles, entering Canada on July 28, September 7 or October 25, 2007.  This was a deliberate omission by Kandola in order to minimize the risk of detection.  Further, on September 7, 2007, Kandola pretended to stamp a document presented to him by Johal.  However, the document stamped by Kandola was not the document presented to him by Johal.  Similarly, on October 25, 2007, Kandola pretended to stamp a document presented to him by Johal.  However, the document stamped was a piece of yellow paper which Kandola then tore up and threw in the garbage.  As well, the conversations with Johal and Riar while Kandola was “processing” them were clearly intended to deceive anyone listening.

[379]     On October 25, Kandola pretended to scan the identification presented to him by Riar (a passport).  However, it is clear from the database records that Riar’s passport was, in fact, not scanned in.  On October 25, while in the PIL booth, Kandola utilized his dedicated cell phone to communicate with Johal.  It is clear from the overhead video that Kandola typed into the cell phone.  This coincides with the timing of the message to Johal of “aja”.

Meetings between Kandola and Johal

[380]     The meetings between Kandola and Johal during the timeframe of the conspiracy are set out above in the section on Johal’s probable membership in the conspiracy.

Riar’s probable membership in the alleged conspiracy

Riar’s use of dedicated phone to communicate with Johal

[381]     One day prior to the crossing on July 28, on July 27 at 14:15, Johal communicated with Riar on the dedicated cell phones.  Approximately 35 minutes later at 14:50, Riar sent a text message to Johal asking him “Wen r u gona leave”.  There were further calls between Johal and Riar on the dedicated cell phones (15:03, 15:05 and 15:09).  This pattern of communication and use of the dedicated cell phones between Johal and Riar was consistent for all three crossings.  The only rational inference is that they are discussing the logistics and timing of the crossing.

Surveillance of Riar and Johal

[382]     The evidence establishes that Riar’s role was as the transporter of the cocaine.  He was responsible for retrieving the cocaine from the storage locker in Bothell, Washington, and then driving the cocaine across the border into Canada via Kandola’s PIL booth.  The evidence demonstrates that this is what, in fact, Riar did on September 6-7 and October 24-25.  The surveillance evidence on July 28 commenced at the PHBC reveals that Riar and Johal were observed to drive in tandem back to Richmond.

[383]     Surveillance evidence introduced in this trial shows that on September 6, Johal travelled to the United States in an Acura MDX.  After Riar attended locker number 38 at the storage facility in Bothell, Washington, he and Johal met at a restaurant at about 5:15 p.m. and then went to a mall complex.  While Riar’s GMC Yukon was parked, three boxes were observed in the back of Riar’s Yukon by Cpl. Lee of the RCMP.  Johal and Riar then spent the next eight hours either in the same physical space or in communication via the dedicated cell phones.

[384]     At 2:05 a.m. on September 7, Johal departed an Exxon gas station just south of the Canadian border just after Riar arrived at the gas station.  Johal then crossed into Canada via Kandola’s PIL booth.  Riar entered Canada shortly after Johal.  They then drove in tandem to Richmond.

[385]     On October 24, Johal was observed at the same Shell gas station as Riar at approximately 2:20 p.m.  This was prior to Riar’s attendance at storage locker number 38 in Bothell, Washington.  At about 6:15 p.m., after Riar had retrieved the boxes of cocaine from locker number 38, Johal (and his wife) met up with Riar at a mall.  They then spent the next several hours either physically in the same place or in communication via the dedicated cell phones.

[386]     At approximately 12:08 a.m. on October 25, Johal departed the same Exxon gas station as on September 7, just after Riar arrived at the gas station.  Johal then drove to the PHBC and entered Canada via Kandola’s PIL booth at approximately 12:15 a.m.  Riar also entered Canada via Kandola’s PIL booth at approximately 12:21 a.m.

Intercepted communications of Riar

[387]     The following intercepts are between Riar and Gurjit Johal (Johal’s brother):

o   Call 120 (October 19) – 09:47 – Riar advised Gurjit Johal that he dropped an envelope at “your house for uh, Mr. Shminder there…That’s the, the key.  I guess someone lost theirs?...Someone lost theirs and uh, they needed it or something.  That’s what he was saying to me.

·        Gurjit Johal asks “What key?”

·        Riar replies: “You know *there*”

·        Gurjit Johal says “Oh, okay.  I get it, yeah.”

·        Riar says he was being funny – he wrote it to Mr. Shminder Johal.

[388]     The intercept on Call 120 relates to Calls 117-119 between Johal and Riar in which Johal was asking Riar for a key.

[389]     There are also the additional intercepted calls showing Riar’s involvement in the agreement:

o   Call 127 (October 23) – 15:41 – Gurjit Johal confirmed with Riar that Riar was driving truck tomorrow.  Gurjit’s brother was wondering why Riar hadn’t called him.  Riar asked Gurjit to ask him [Johal] what time we’re gonna head out tomorrow.  Gurjit will come by and tell Riar in person.

o   Call 128 (October 23) – 17:03 – Gurjit told Riar to stop by the place and not to phone.

o   Call 137 (October 24) – 13:57 – Riar spoke with Gurjit Johal.  Riar told Gurjit that his brother was taking his wife.  Gurjit said that’s weird and Riar agreed as “we always spend at least six hours together.  That’s why it felt fuckin’ uncomfortable for me, now.” (p.2)

o   Riar says “Okay, I’m coming up here now” and they end the conversation.

[390]     On September 7 (Call 62), Kandola “processed” Riar at the PIL booth at the PHBC at approximately 2:11 a.m.  They had a brief conversation.

[391]     On October 25 (Call 138), Kandola “processed” Riar at the PIL booth at the PHBC at approximately 12:21 a.m.  They had a brief conversation:

Kandola: Evenin’

Riar: Hi.

Kandola: How long you been gone?

Riar: Oh, about half an hour.

Kandola: Buy anything?

Riar: No, just went for fuel.

(Pause)

Kandola: Thanks.

Riar: Cheers.

Kandola: Good night.

Riar: Goodnight.

[392]     On July 28, September 7 and October 25, Kandola appeared to receive identification from Riar.  However, Kandola did not create a record in the CBSA computer database of Riar’s entry into Canada.

Acts and declarations of Riar in furtherance of the alleged conspiracy

[393]     I have already alluded to some of the acts of Riar in furtherance of the conspiracy.  I now wish to refer to a declaration by Riar in furtherance of the conspiracy.  In Call 137 which was made shortly before Johal and Riar left Canada for the U.S. on October 24, 2007:

From Gurjit Johal to Riar - Discuss pending trip to U.S.  Riar says “your bro is taking his wife.”  Riar  says “we always spend at least 6 hours together. That’s why it feels fuckin’ uncomfortable for me, now.”

[394]     This shows that Riar was uncomfortable with Johal’s wife accompanying him and Johal, knowing the quantity of cocaine they were intending to bring into Canada; this is further evidence that establishes that Riar was a probable member of the conspiracy alleged in Count 1 of the indictment.

[395]     From the evidence adduced at this trial the Crown has proved beyond a reasonable doubt that Riar was a member of the conspiracy alleged in Count 1 of the indictment.

“Al”’s probable membership in the conspiracy

Intercepted phone calls between Johal and “Al”

[396]     Call 76 is an intercept between Johal and “Al”.  The conversation is in part a discussion of Kandola’s request to Johal for the payment of Kandola’s bill at Richmond Mini.  Kandola wants Johal to go and pay $4,000.  Johal discusses the situation with Al.  The discussion of the payment of Kandola is in furtherance of the conspiracy as it relates to ensuring that the agreement can continue to operate.  It is the Crown’s position that the conversation between Al and Johal demonstrates that Kandola is receiving a monthly payment for his role in the conspiracy.  I agree with that submission.

[397]     The direct evidence to establish Al’s probable membership in the conspiracy is the evidence in Call 76.  Johal would only discuss a sensitive matter such as this with a co-conspirator.  Al indicates that he understands Johal’s position and offers a suggestion to Johal of what to do.  Al also suggests to Johal what Kandola’s position is.

Non-intercepted phone contact between Johal and “Al”

[398]     This call was intercepted on Johal’s cell phone (604-724-4949) and the number for “Al” was 604-841-8880.  There is evidence of phone contact between Johal and his phone number as follows (Ex. 58, Tab 5):

2007:

June 25              16:01:39

June 27              13:54:44

June 27              14:01:10

June 27              14:06:24

June 27              17:34:58

June 27              17:51:35

June 27              18:19:10

June 27              21:20:33

June 27              21:39:32

June 27              21:39:58

June 27              21:52:52

June 28              14:48:19

June 28              15:40:48

June 29              17:02:19

June 29              17:09:19

June 29              17:13:28

June 29              17:38:29

June 29              19:20:02

June 29              19:24:52

June 30              18:50:05

June 30              21:04:49

July 3                  16:48:04

July 3                  21:49:53

July 4                  00.02.52

July 4                  09.48.53

July 4                  13:18:25

July 4                  17:16:49

July 4                  17:21:21

July 4                  18:28:56

July 5                  13:44:03

July 5                  18:20:09

July 5                  18:29:20

July 5                  20:02:53

July 6                  13:18:42

July 6                  13:24:43

July 6                  15;15:14

July 7                  16;05:33

July 9                  13:23:11

July 10                12:40:31

July 10                18:29:06

July 10                19:03:40

July 10                19:25:44

July 10                21:58:55

July 10                21:59:32

July 10                22:24:37

July 10                22:25:30

July 12                16:16:06

July 12                17:38:02

July 12                18:00:14

July 16                15:19:19

July 16                15:23:31

July 17                15:37:18

July 17                18:42:05

July 17                18:44:18

July 20                17:13:54

July 21                15:19:05

July 21                18:13:23

July 21                18:13:30

July 21                18:35:40

July 21                19:03:03

July 25                14:35:49

July 25                15:22:54

July 25                15:31:02

July 25                15:44:28

July 25                15:49:43

July 25                18:19:25

July 25                18:20:27

July 25                18:45:49

July 26                01:09:08

July 28                15:09:11

July 28                15:09:25

July 30                15:44:42

July 30                17:54:29

July 31                16:47:44

July 31

August 1             18:33:16

August 4             18:42:16

August 4             19:17:20

August 4             19:23:57

August 7             15:52:36

August 8             16:10:15

August 12           12:14:00

August 14           16:24:12

August 14           16:46:25

[399]     On the evidence adduced at trial, the Crown has established on a balance of probabilities that “Al” is a probable member of the conspiracy alleged in Count 1.

Gurjit Johal’s probable membership in the conspiracy

Intercepted phone calls and “in furtherance” actions involving Gurjit Johal

[400]     Gurjit Johal is intercepted speaking to Riar in Calls 120, 127, 128 and 137.  These calls contain “in furtherance” statements and also establish the probable membership of Gurjit Johal in the conspiracy.  Gurjit knows about the conspiracy; he speaks with Riar (who is the transporter) to ensure that the conspiracy operates smoothly.  As well, Gurjit and Riar discuss operational security.

[401]     Call 120 (October 19 – 09:47):  The “in furtherance” portion of this call is in respect to Riar telling Gurjit that he dropped off a key at the Johal residence (Gurjit and Johal live in the same house).  When Gurjit asks “What key?”  Riar replies “You know “there” to which Gurjit replies “Oh, okay.  I get it yeah.”  This demonstrates that Gurjit knows of the existence of the conspiracy and this call relates to the key that is required to access the storage locker.  This discussion relates to the security of that key.  This call is related to Calls 117,118 and 119 which were between Riar and Johal.

[402]     Call 127 (October 23 – 15:41):  In the “in furtherance” portion of this call, Gurjit is reminding Riar that he has to “drive truck tomorrow”.  Gurjit’s brother [Shminder Johal] was wondering why Riar had not called him [Shminder Johal].  Riar asked Gurjit to ask him [Shminder Johal] “what time we’re gonna head out tomorrow” to which Gurjit replied “I’ll come and tell you in person.”  Gurjit is communicating with Riar to ensure that the conspiracy can operate smoothly and is reminding Riar about the trip to the United States the next day.

[403]     Call 128 (October 23 – 17:03):  In the “in furtherance” portion of this call the Crown’s position is that this portion is a discussion regarding Riar speaking with Shminder Johal.  At line 34, Riar suggests that he will call him but Gurjit tells Riar to not phone, but to just call Gurjit and he will tell Riar if he [Shminder Johal] is home.  Again, this conversation is in furtherance of the conspiracy as it relates to communications regarding the upcoming trip to the United States.  It also demonstrates Gurjit’s awareness of the need for operational security.

[404]     Call 137 (October 24 – 13:57):  The “in furtherance” portion of this call is a discussion related to the operational security in the conspiracy as Riar is expressing concern that Gurjit’s brother [Shminder Johal] is bringing his wife.  Riar says “cause we always spend at least six hours together.”  Riar’s concern is about the presence of Shminder Johal’s wife in the United States given that he and Shminder Johal will be importing a large quantity of cocaine.

Surveillance of Gurjit Johal

[405]     Gurjit Johal was observed on the following dates and times either with Shminder Johal or in the same location (See Ex. 101A – Surveillance Admissions):

Para. 10 – September 18, 2007

·       14:27 – Dream Motor Cars

Para. 13 – October 5, 2007

·       10:15 – in same vehicle

·       10:20 – at a business complex

·       10:28 – in same vehicle

·       11:28 – in same vehicle

·       11:37 – at a business (ICBC Salvage)

·       12:21 – in same vehicle and then at a business (Surrey Car Care)

·       12:38 – in same vehicle

Para 16 – October 22, 2007

·       17:53 – Dream Motor Cars – Shminder Johal walking in the lot speaking with Gurjeet Johal and Amrjit Dhaliwal

·       18:06 – Dream Motor Cars – Shminder Johal, Amrij Dhaliwal, Gurjeet Johal and an unknown male were talking by a vehicle.

Other Evidence against Johal and Riar, including Statements and Actions of Co-Conspirators in Furtherance of the Conspiracy

[406]     Riar’s activities are further evidence of the conspiracy and provide further evidence against Johal and Kandola.

[407]     I agree with the Crown’s submissions that Riar’s actions on July 28 of driving in tandem with Johal back to Richmond are evidence of both roles:  Riar as transporter and Johal as overseer.

[408]     I agree with the Crown’s submissions that Riar’s actions on September 6 of travelling to storage locker number 38 in Bothell, Washington, and then spending the next number of hours with Johal pending the crossing into Canada demonstrate Riar’s role as transporter and Johal’s role as overseer.  His actions with Johal correspond to the telephone records of dedicated cell phones as they appear to be in phone contact on the dedicated phones when they are not physically together.

[409]     I also agree with the Crown’s submission that Riar’s actions on September 7 in driving in tandem with Johal back to Richmond again demonstrate their respective roles as well as the association between Johal and Riar.

[410]     I also agree with the Crown’s submission that Riar’s attendance on October 24, at storage locker number 38 in Bothell, Washington, to load the boxes containing the cocaine and firearms again demonstrates his role as transporter.  His actions with Johal correspond to the telephone records of dedicated cell phones as they appear to be in phone contact on the dedicated phones when they are not physically together.

[411]     I also agree with the Crown’s submission that the arrest of Riar on October 25, moments after he crossed the Canadian border via Kandola’s PIL booth, and the subsequent seizure of the 208 kilograms of cocaine and three firearms from his vehicle, demonstrate Riar’s role as transporter and Johal’s role as overseer (given that Johal turned back to find Riar).  The presence of the drugs in Riar’s vehicle explains the actions of Johal throughout the timeframe of the conspiracy.

Decision on Count 1 in the Indictment

[412]     Needless to say, I have instructed myself generally on the law reproduced above.  I have also instructed myself specifically on the law of conspiracy enunciated above.  After applying that law to my findings of fact, I am satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence led at this trial is that the accused, Kandola and Johal, are both guilty of Count 1.

[413]