R. v. Subramaniam, 2023 BCSC 637

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Subramaniam, 2023 BCSC 637 Date: 20230404 Docket: 80597-2 Registry: New Westminster Rex v. Rajkumar Subramaniam Before: The Honourable Justice Winteringham Oral Reasons for Judgment Counsel for the Crown: S.F. Paulson X. Zheng Counsel for the Accused: C.L. Senini C.W. Tam R. Laskin Place and Date of Hearing: New Westminster, B.C. January 30-31, February 1, 3, 6-8 and March 8, 2023 Place and Date of Judgment: New Westminster, B.C. April 4, 2023 Table of Contents I. OVERVIEW ... 4 II. ISSUES .. 5 III. LEGAL FRAMEWORK .. 6 A.

The Presumption of Innocence, Burden of Proof and Credibility . 6 B. Circumstantial Evidence . 10 C. Offences – Importation and PPT . 11 1. Importation – s. 6(1) of the CDSA .. 11 2. Possession for the purpose of trafficking – s. 5(2) of the CDSA .. 13 3. Alternate suspect defence . 13 4. Blind Courier Cases . 14 IV. EVIDENCE .. 15 A. The Uncontroverted Facts . 15 1. Border Crossing and Documents Seized . 16 2. Methamphetamine found in the Montero . 18 3. Fingerprints . 18 4. Robert Riego’s evidence . 19

5. CBSA Intelligence Officer Paul Vogt 21 6. CFSEU Investigation, Rohen Sharma and Zeeman Chaudhry . 23 B. Accused’s Evidence Pre-Events of July 1, 2014 . 25 1. Background . 26 2. The Montero . 28 C. Evidence Connected to the July 1, 2014 Offence . 30 1. Events of June 30, 2014 . 30 2. Travel to the U.S. and Activities . 31 3. Re-entry to Canada – Dealings with the CBSA officers . 34 4. Expert Evidence – Domestic and Cross-Border Trafficking of Methamphetamine 43 V. ANALYSIS .. 45 1. Evidence Regarding the Montero . 47 2. Evidence of Events Leading up to the Re-Entry . 51 3. BSO Hui evidence and Mr.

Subramaniam .. 53 4. Observations of BSOs of the Montero, including the visibility of the compartment, the DroneMobile device, the after-market carpet and other after-market wiring . 55 5. Other Forensic Evidence . 59 VI. CONCLUSION .. 60 [ 1 ] The reasons were delivered orally. They have since been edited for distribution. I. OVERVIEW [ 2 ] Rajkumar Subramanian is charged with importation and possession for the purpose of trafficking of 14.59 kilograms of methamphetamine. [ 3 ] On July 1, 2014, Mr. Subramaniam entered Canada from the U.S. at the Pacific Highway border crossing.

He was driving a Mitsubishi Montero (“Montero”). The border services officer from the Canada Border Services Agency (“CBSA”) referred him to secondary examination. Upon searching the Montero, the CBSA officers located a hidden compartment. Unable to open the compartment, the CBSA officers pried it open and found wrapped Tupperware containers filled with methamphetamine. [ 4 ] The CBSA officers also located a DroneMobile Device concealed in the dashboard of the Montero (“DroneMobile Device”). The DroneMobile Device could be tracked by GPS and remotely activated to open and close the hidden compartment. [ 5 ] Mr.

Subramaniam was subsequently charged with unlawful importation and possession of a controlled substance for the purpose of trafficking, contrary to ss. 5(2) and 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 [ CDSA ]. [ 6 ] The Crown says that the body of evidence tendered, circumstantial in nature, proves the essential elements of the offences beyond a reasonable doubt. [ 7 ] Mr. Subramaniam testified. [ 8 ] He told the court that he did not know about the hidden compartment in the Montero nor did he know there was methamphetamine in it.

He submits he was neither a party or principal to the offences. He submits that others with admitted drug trafficking histories and with connection to the Montero and/or the DroneMobile Device, were the likely perpetrators. He contends the Crown has failed to prove beyond a reasonable doubt that he knew about the drugs, or that he was wilfully blind about the drugs in the Montero, or that he participated or aided and abetted anyone in any way in the offences. [ 9 ] I will first provide an overview of the issues as presented.

I will then set out the legal framework and engage briefly with the governing principles in a criminal trial, including the presumption of innocence, credibility and circumstantial evidence. I will then turn to an overview of the evidence tendered. I will conclude with my analysis of the evidence in light of the legal principles at play. II. ISSUES

[10] The Crown states the issue to be determined is whether it has been proven beyond a reasonable doubt that Mr. Subramaniamcommitted the offences with which he is charged. The Crown contends that the Court must be wary of the alternative suspect defencesuggested here, because importation and drug trafficking offences involve a number of roles and players. So the question is not whetherothers were involved, since that would not preclude Mr. Subramaniam’s involvement. Rather, the real question is whether the accusedhere knowingly played his part.

The Crown submits that the only rational inference, based on the totality of the circumstantial evidencepresented, is that Mr. Subramaniam knew he had a controlled substance hidden in the Montero when he presented himself to the borderofficer. In the alternative, the Crown submits, Mr. Subramaniam was wilfully blind about the controlled substances in the Montero andshould thus be convicted of both offences. [11] Mr. Subramaniam argues as follows:

a) his testimony should be believed;

b) the Crown has not proven knowledge or wilful blindness beyond a reasonable doubt; and

c) the evidence supports the alternative suspect and blind courier defences. [12] With respect to credibility, Mr. Subramaniam says he should be believed or, at the very least, his evidence should raise areasonable doubt. He submits that he was credible and reliable and his testimony was corroborated by other evidence. He testified that hewent to the U.S. on July 1, 2014 to go shopping, and that is what he did. When returning to Canada, he presented his shopping receipts tothe border services officer.

Those receipts were presented in evidence and he says those records corroborate his description of the eventsthat day, including the timing of his activities. [13] Mr. Subramaniam testified that he did not know about the hidden compartment in the Montero and did not know there weredrugs in it. [14] There is some evidence presented that links the Montero to Zeeman Chaudry and the DroneMobile Device to Rohen Sharma.According to the submissions, both have drug trafficking histories relevant to what occurred on July 1, 2014.

It is this evidence, submitsthe defence, that provides a basis for the alternative suspect and blind courier submissions. III. LEGAL FRAMEWORK [15] Before analyzing the evidence, I will review a number of guiding principles that I have applied in conducting my assessment. A. The Presumption of Innocence, Burden of Proof and Credibility [16] I must be mindful throughout my analysis that Mr. Subramaniam is presumed to be innocent. The onus is on the Crown to provehis guilt beyond a reasonable doubt. It would not be enough for me to find that Mr. Subramaniam probably had knowledge about thedrugs in his car.

In a case involving circumstantial evidence, that does not displace the burden of proof on the Crown, nor does it reducethe weight of that burden. [17] The presumption of innocence is a cornerstone of our criminal justice system, originally embedded in our common law traditionand now guaranteed as a fundamental legal right under s. 11(

d) of the Charter. [18] The presumption of innocence and the standard of proof beyond a reasonable doubt are important safeguards to ensure that noinnocent person is convicted of an offence and deprived of their liberty. Without these protections, there would be a serious risk ofwrongful convictions—an outcome that cannot be accepted in a free and democratic society. [19] The concept of proof beyond a reasonable doubt is not an easy one to define. It is clearly more rigorous than the balance ofprobabilities standard applied in civil cases. In the landmark decision R. v.

Lifchus, (SCC), [1997] 3 S.C.R. 320, 997CanLII 319 at para. 39, the Supreme Court of Canada held that the following definition would be an appropriate instruction for acriminal jury: [39] […] A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it isbased 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 benefitof 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 notrequired 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 thisdemonstrates that you are satisfied of his guilt beyond a reasonable doubt. [20] This instruction, with very little modification, is now the standard instruction on reasonable doubt given to criminal juriesthroughout Canada. The same standard is applied by judges sitting without a jury on criminal trials. [21] Furthermore, the formula set out by the Supreme Court of Canada in R. v.

W.(D.), [1991] 1 S.C.R. 742, ,addresses the relationship between the assessment of credibility and the Crown’s ultimate burden to prove the guilt of the accusedbeyond a reasonable doubt. The W.(D.) formula requires the trial judge to instruct the jury that:

a) if they believe the evidence of the accused, they must acquit;

b) if they do not believe the testimony of the accused but are left in reasonable doubt by it, they must acquit;

c) even if not left in doubt by the evidence of the accused, they still must ask themselves whether they are convinced beyond areasonable doubt of the guilt of the accused on the basis of the balance of the evidence which they do accept. [22] In R. v. J.H.S., 2008 SCC 30 at paras. 10–11, Justice Binnie discussed the test as formulated in the W.(D.) instruction. JusticeBinnie commented on another formulation of what could be described as the third step.

In so doing, he stated this at paras. 12–13: [12] The third question, again, is taken by some critics as failing to contemplate a jury’s acceptance of inculpatory bits of the evidenceof an accused but not the exculpatory elements.

In light of these possible sources of difficulty, Wood J.A. in H. (C.W.) suggested anadditional instruction: I would add one more instruction in such cases, which logically ought to be second in the order, namely: “If, after a careful considerationof all the evidence, you are unable to decide whom to believe, you must acquit.” [p. 155] [13] In short the W. (D.) questions should not have attributed to them a level of sanctity or immutable perfection that their authornever claimed for them.

W. (D.)’s message that it must be made crystal clear to the jury that the burden never shifts from the Crown toprove every element of the offence beyond a reasonable doubt is of fundamental importance but its application should not result in atriumph of form over substance. In R. v. S. (W.D.), (SCC), [1994] 3 S.C.R. 521, Cory J. reiterated that the W.(D.) instructions need not be given “word for word as some magic incantation” (p. 533). In R. v.

Avetysan, [2000] 2 S.C.R. 745, 2000SCC 56, Major J. for the majority pointed out that in any case where credibility is important “[t]he question is really whether, insubstance, the trial judge’s instructions left the jury with the impression that it had to choose between the two versions of events”(para. 19).

The main point is that lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond areasonable doubt. [23] While rigid adherence to the W.(D.) formula is unnecessary, particularly so in reasons for judgment in a judge-alone trial, it isnevertheless essential that the substance of the W.(D.) instruction be respected in a trial court’s reasons: R. v. Dinardo, 2008 SCC 24 atpara. 23. [24] In R. v.

K.B., 2015 ONSC 3410, Justice Hill neatly summarized the relationship between credibility assessment and the standardof proof beyond a reasonable doubt to the whole of the evidence in circumstances where the accused does not testify. Justice Hill stated,at paras. 30–31: [30] Without an accused testifying, evidence favourable to the defence may be grounded in evidence called by the defence or throughthe testimony of prosecution witnesses. Such evidence may engage the trier of fact in important credibility determinations respectingcontradictory evidence. At paras. 37 and 39 of R. v.

Smits, 2012 ONCA 524, the court stated: There is now no doubt that in light of this court's decision in R. v. D.(B.), 2011 ONCA 51 , at para. 114, that, even if an accuseddoes not testify or call any evidence, where there are credibility findings on a vital issue to be made between conflicting evidence arisingout of evidence favourable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to thosecredibility findings.

The trial judge must do so in a way that makes it clear that it is not necessary for the trier of fact to believe theevidence favourable to the defence on that trial issue. Rather, it is sufficient if, viewed in the context of all the evidence, the conflictingevidence leaves the trier of fact in a state of reasonable doubt as to the accused's guilt. In that event, the trier of fact must acquit. […] [31] Accordingly, the W.(D.) instruction, or its functional equivalent has application "to other exculpatory evidence that emergesduring trial proceedings: R. v.

B.D., 2011 ONCA 51...at paras. 113-114 and a trier of fact need not accept the evidence favourable to thedefence in order to acquit if it is found capable of raising a reasonable doubt: R. v. Cyr, 2012 ONCA 919, at paras. 50, 58; R. v. Burnie,2013 ONCA 112, at paras. 47-48; R. v. King, 2013 ONCA 417, at paras. 13-14; R. v. Dayes, 2013 ONCA 614, at paras. 51, 55-59;J.M.M., at para. 74; R. v. Grant, 2013 MBCA 95, at paras. 31-32, affd 2015 SCC 9; R. v.

B.D. 2011 ONCA 51, at paras. 105, 113-114. [25] K.B. is a good reminder about recognizing that evidence favourable to the defence may be grounded in evidence called by thedefence or through the testimony of prosecution witnesses. B. Circumstantial Evidence [26] The Crown’s case is entirely circumstantial. [27] The Supreme Court of Canada discussed the approach to be taken to circumstantial evidence in R. v.

Villaroman, 2016 SCC 33.Justice Cromwell, at para. 30, explained how juries should be instructed with respect to this type of evidence: [30] [I]n a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, itwill generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt.

No particular language is required.Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidencepermits will often be a succinct and accurate way of helping the jury to guard against the risk of “fill in the blanks” by too quicklyoverlooking reasonable alternative inferences. […] [28] In considering whether the circumstantial evidence gives rise to reasonable inferences other than guilt, Cromwell J. cautionedthat those alternative inferences need not be based on proven facts and may be based on “other plausible theories” and “other reasonablepossibilities” which are inconsistent with guilt, provided that they are rooted in logic and human experience applied to the evidence or

the absence of evidence: Villaroman at paras. 35–37. [29] That said, the Crown is not required to “negate every possible conjecture, no matter how fanciful or irritational, which might beconsistent with the innocence of the accused”: Villaroman at para. 37. [30] With respect to circumstantial evidence presented, I have considered R. v. Duong, 2019 BCCA 299 at paras. 61–62, 64: [61] In cases based entirely on circumstantial evidence, the issue is the range of reasonable inferences that may be drawn from it:Villaroman at para. 35.

A reasonable doubt, or a theory alternative to guilt, may arise from the lack of evidence and is not required toarise from proven facts: Villaroman at para. 35.

Thus, a gap in evidence may result in inferences other than guilt, “[b]ut those inferencesmust be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and commonsense”: Villaroman at para. 36. [62] While the Crown must negative reasonable inferences inconsistent with guilt, it does not need to “negative every possibleconjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: Villaroman at para. 37,citing R. v. Bagshaw, (SCC), [1972] S.C.R. 2 at 8.

The ultimate question is whether the circumstantial evidence,“viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused isguilty”: Villaroman at para. 38. […] [64] In reviewing inferences drawn from circumstantial evidence, the evidence must be assessed cumulatively and not in a piecemealfashion: R. v. Tahirsylaj, 2015 BCCA 7 at paras. 29, 38.

Thus, although individual pieces of circumstantial evidence may be “reasonablyor rationally explained away”, the ultimate question is whether, on the whole of the evidence, the Crown has proven that the accused’sguilt is the only reasonable inference: Tahirsylaj at para. 38. Individual items of evidence are “links in the chain of ultimate proof” andmust not be examined separately and in isolation: Uhrig at para. 13, citing R. v.

Morin, [1988] 2 S.C.R. 346 at 361. [31] Ultimately, the issue is whether there is any other reasonable way of looking at the case as a whole such that there is a doubtabout the accused’s guilt, when assessed logically and in light of human experience: R. v. Choudhury, 2021 ONCA 560 at para. 19. C. Offences – Importation and PPT 1. Importation – s. 6(1) of the CDSA [32] To prove importation contrary to s. 6(1) of the CDSA, the Crown must prove beyond a reasonable doubt the following essentialelements of the offence:

a) that the accused brought into Canada;

b) a controlled substance; and,

c) the accused did so knowingly. See R. v. Peal, 2017 BCSC 623 at paras. 106–108. [33] Knowledge can be established based on actual knowledge or wilful blindness: R. v. Onyedinefu, 2018 ONCA 795 at para. 10 andPeal at para. 107. [34] The Crown’s primary theory is that Mr. Subramaniam had actual knowledge of the controlled substance in the Montero.

Wilfulblindness is relied on by the Crown in the alternative. [35] To convict on the basis of wilful blindness, the Crown must prove, beyond a reasonable doubt, that the accused had a“heightened” or “strong” level of suspicion of the impugned facts and then deliberately chose not to make inquiries so as to remainignorant. [36] In R. v. Stephens, 2020 BCSC 1737 at para. 98, Justice Crossin provided a helpful description of wilful blindness: [98] It follows from the foregoing discussion that wilful blindness requires a heightened suspicion of a material fact on the part of theaccused.

A mere suspicion is not sufficient but suspicion that the fact is probably true will in most cases be too high. A heightenedsuspicion (or “strong suspicion” in the language of Jorgensen and Briscoe) means that the accused’s suspicion is aroused to the pointwhere he sees the need for further inquiries. The deliberate choice to then not make those inquiries so as to be able to deny knowledge ofthe truth is what grounds liability as wilful blindness.

The standard is met where the accused “shut his eyes because he knew or stronglysuspected that looking would fix him with knowledge” (Jorgensen) or because he became “aware of the need for some inquiry [yet]decline[d] to make the inquiry because he [did] not wish to know the truth” (Sansregret), as cited in Farmer. [37] In R. v. Brown, 2018 ONCA 481 at para. 59, the Court noted that the strong suspicion of the accused must be assessed on asubjective, and not an objective, standard.

The question is whether the accused was in fact highly suspicious, not whether he should havebeen suspicious. [38] Wilful blindness should only be considered as a route to liability where it has a reasonable basis in the evidence. As stated inBrown, the fact that knowledge is in issue does not put wilful blindness in issue as a matter of course.

Where there is no evidence tosupport a reasonable finding that the accused had a heightened suspicion of the impugned facts, as opposed to actual knowledge or a lackof knowledge, this option for liability should not be considered by the trier of fact: Brown at paras. 53–60.

2. Possession for the purpose of trafficking – s. 5(2) of the CDSA [ 39 ] Pursuant to s. 5(2) of the CDSA , to prove possession for the purpose of trafficking, the Crown must prove the accused:

a) possessed the prohibited substance,

b) had knowledge that the substance was a drug, and

c) possessed the substance for the purpose of trafficking. [ 40 ] Again, knowledge can be established based on actual knowledge or wilful blindness. [ 41 ] A person’s status as the driver of a vehicle does not create a legal presumption that the person had knowledge and control of contraband in the vehicle. As the Ontario Court of Appeal held in R. v.

Lincoln , 2012 ONCA 542 at para. 3 : [3] […] No rebuttable presumption of knowledge and control for purposes of determining possession, based solely on the fact that a person is the operator with control of the vehicle, exists at common law or under the Controlled Drugs and Substances Act , S.C. 1996, c. 19 . To give effect to such a premise would constitute an impermissible transfer of the Crown’s burden of proof to the accused. […] [ 42 ] In R. v. Ian Wilson , 2015 ONSC 3836 , Justice Allen considered drawing inferences of knowledge where an item is hidden.

At para. 20, they wrote: [20] The element of knowledge can be inferred if there is evidence of actual possession. But drawing inferences to establish knowledge becomes more difficult if the contraband is hidden or not otherwise in plain sight. So, the Crown must adduce either direct evidence of knowledge or indirect evidence from which knowledge can be inferred. Inferences must be based on evidence, not on mere conjecture or surmise. […] 3. Alternate suspect defence [ 43 ] The Charter right of an accused to make full answer and defence entitles them to lead evidence about alternate suspects: R. v.

Grant , 2015 SCC 9 at paras. 3 , 53. An accused can adduce evidence suggesting that a known alternate suspect (or suspects) committed the offence for which the accused is charged. To do so, the evidence must be relevant and sufficiently probative to warrant its reception: R. v. Grandinetti , 2005 SCC 5 at para. 46 . To satisfy those elements, the evidence must be able to show that each alternate suspect, also referred to as third-party suspects, is sufficiently connected by other circumstances, such as propensity or opportunity, to the alleged offence: Grandinetti at paras. 47–49 ; R. v.

Hudson , 2021 ONCA 772 at paras. 188–189 , 192. [ 44 ] The evidential burden on the defence is low and does not require the accused to prove the connection on a balance of probabilities: Grant at para. 34. The connection between the alternate suspect and the offence may be inferential, but the inferences must be reasonable, based on the actual evidence, and not amount to speculation.

In Grant at para. 24, the Supreme Court stated the sufficient connection will often be established by evidence that the alternate suspect had the “motive, the means or the propensity to commit the crime.” [ 45 ] As stated in Grandinetti at para. 49 , an accused may rely upon the different aspects related to the alternate suspect in support of such a defence. Disposition and propensity evidence are commonly used.

The disposition or propensity of an alternate suspect to commit such a crime as the one at bar is probative and admissible if there is other evidence that connects the alternate suspect with the commission of the offence. Evidence of opportunity and motive may be relied upon to give probative value to disposition evidence. A record of one or several cognate criminal convictions can establish disposition or propensity evidence: Hudson at para. 192 . 4. Blind Courier Cases [ 46 ] Here, Mr.

Subramaniam asks the Court to consider recent BC jurisprudence addressing other cases involving individuals characterized in the jurisprudence as “blind couriers”. These cases are important, submits defence counsel, because they are recent examples where this Court has evaluated whether the Crown has proven the accused’s knowledge of the presence of drugs in their vehicle when crossing the border. In particular, I have considered R. v. Mand , 2021 BCSC 611 (Sharma J.); R. v. Gausal , 2017 BCSC 1194 (Weatherill J.); R. v. Shergill , 2018 BCSC 1432 (Branch J.).

Each of these cases is obviously based on its own unique circumstances and an evidentiary record different from the one before me. However, I have had a chance to review each of these cases and the analysis by each of the trial judges as they considered the body of circumstantial evidence and the viability of the accused’s position that the Crown had failed to prove knowledge or wilful blindness. [ 47 ] In Mand at para. 159 , Sharma J. makes clear that each of these cases must be decided on their own facts and the whole of the admissible evidence must be assessed.

Also, at para. 167, she addressed evidence of concealment in the cases and reviewed how the trial judges in Gausal and Shergill assessed that evidence. The important point from these cases is that each case will turn on its own unique facts. [ 48 ] With those legal principles in mind, I turn to the evidence presented. IV. EVIDENCE [ 49 ] The bulk of the evidence tendered by the Crown was from border services officers, investigators from the RCMP and expert witnesses. [ 50 ] Mr. Subramaniam testified.

[ 51 ] The evidence in this case can be conveniently grouped into three categories:

a) uncontroverted facts;

b) police and forensic evidence; and

c) testimony Mr. Subramaniam. A. The Uncontroverted Facts [ 52 ] The Crown presented a significant body of evidence, including an Agreed Statements of Fact. Much of that evidence is not disputed. I will deal with the disputed evidence after setting out that which is uncontroverted. 1. Border Crossing and Documents Seized [ 53 ] Mr. Subramaniam entered into the United States on July 1, 2014 at 11:03 a.m. PST in the Montero. [ 54 ] On his return to Canada, Mr. Subramaniam told the border services officers that his current address was 8108 French Street, Vancouver, and he told them he had lived there for 1.5 years.

He presented his Canadian passport to the border services officers. [ 55 ] The border services officers located ICBC documents for the Montero. The ICBC documents stated the owner of the Montero to be Starlite Films Inc. (address: 12-22800 Windsor Crt., Richmond, V6V2X6) and the declared principal operator to be Mr. Subramaniam. [ 56 ] The Vehicle Transfer documents for the Montero were located as follows:

a) Vehicle Transfer Form for Shahid Chaudhry’s purchase of the Montero, dated July 16, 2010;

b) Vehicle Transfer Form related to the purchase of the Montero by Purestylez Homes Inc. from Shahid Chaudry, dated April 26, 2013; and

c) Vehicle Transfer Form related to the purchase of the Montero by Starlite Films Inc. from Purestylez Homes Inc., dated May 2, 2013. [ 57 ] Ownership of the Montero was transferred from Shahid Chaudhry to Purestylez Homes Inc. on April 26, 2013 and from Purestylez Homes Inc. to Starlite Films Inc. on May 2, 2013. [ 58 ] The parties tendered the following corporate documents for Purestylez Homes:

a) An 8-page certified package of documents including the Notice of Articles and Incorporation Application for Purestylez Homes Inc. showing that on February 29, 2012, the director of the company was Lucky Subramaniam; and

b) The BC Company

Summary for Purestylez Homes Inc. dated July 30, 2014, showing that as of May 20, 2014, Lucky was still the director of the company. [ 59 ] The parties tendered the following corporate documents for Starlite Films Inc.:

a) An 8-page certified package of documents including the Notice of Articles and Incorporation Application for Starlite Films Inc. showing that on January 17, 2013, the director of Starlite Films Inc. was Melka-Rushani Vijayasingham, Mr. Subramaniam’s sister-in- law; and

b) The BC Company

Summary for Starlite Films Inc. dated August 27, 2014, showing that as of May 20, 2014, Melka-Rushani Vijayasingham was still the director of that company. [ 60 ] When he returned to Canada, Mr. Subramaniam provided Border Services Officer Jordan Hui (“BSO Hui”) with three receipts: two from the Gap and one from Walmart. BSO Hui gave the receipts back to Mr. Subramaniam before he proceeded to secondary inspection. [ 61 ] Mr. Subramaniam’s interaction with BSO Hui was captured by video-recording. The video-recording depicted an interaction that lasted for just over five minutes. Mr.

Subramaniam can be observed in the driver’s seat of the Montero. There is no audio. [ 62 ] Mr. Subramaniam provided Border Services Officer Raj Sangha (“BSO Sangha”) with the receipts and a gas receipt at the secondary inspection counter with the following information: Vendor Location Amount Time of Transaction Gap Factory Tulalip, Washington $45.05 2:38:36 Gap Factory Tulalip, Washington $23.46 3:38:59 Walmart Tulalip, Washington $205.42 17:09:58 USA Gasoline Marysville, Washington $75.00 16:59 [ 63 ] BSO Hui referred Mr. Subramaniam to secondary inspection. He completed a Form E67.

The parties disagree about when BSO

Hui completed the Form E67. [ 64 ] The border services officers located a Fed Ex envelope in the Montero. Inside of the Fed Ex envelope they located an envelope from Cineplex Entertainment containing various documents related to Starlite Films Inc. [ 65 ] Mr. Subramaniam provided his BC driver’s license to BSO Sangha at secondary examination. The drivers license had the following address: 8108 French St., Vancouver. The photocopy appears to depict a partially peeled sticker. 2.

Methamphetamine found in the Montero [ 66 ] Samples of the substance located inside the 33 containers found concealed in a secret compartment of the Montero were analyzed by Health Canada and determined to be methamphetamine (three samples of the methamphetamine were confirmed to be 98% pure, 98% pure and 100% pure). The total weight of the methamphetamine (without packaging) was 14.59 kilograms. [ 67 ] The parties agree that the methamphetamine would have been possessed for the purpose of trafficking. 3.

Fingerprints [ 68 ] Forensic examination was conducted on the Montero and no fingerprints were located in the metal area and back side of the carpet of the driver’s side rear floor; the instrument panel on the driver’s side dash and behind panel; and, the access panel under the rear passenger side seat. [ 69 ] Fingerprint examination was conducted of the 33 containers (including the plastic container, its lid, the plastic heat seal wrapping, and the brown packing tape) found concealed in the secret compartment of the Montero and of the DroneMobile Device. The RCMP Forensic Identification

Section found six fingerprints—one on the brown packaging tape and five from the exterior of four different Tupperware containers. The fingerprints were forwarded to the BC Automated Fingerprint Identification System for comparison. None of the fingerprints matched Mr. Subramaniam’s fingerprints, nor have the fingerprints been matched to any known offender. 4. Robert Riego’s evidence [ 70 ] Robert Riego is the systems director of Firstech LLC. Since 2010, Firstech LLC owned and operated a brand known as DroneMobile.

DroneMobile provides convenience and security features that allow users to control their vehicle via a smart phone application and/or a website interface. [ 71 ] There are no records of where the DroneMobile Device was purchased or who installed it. [ 72 ] A user can create a DroneMobile account using any name. There is no process for verifying the identity of the DroneMobile Device account user or creator. Upon creating a DroneMobile account, the user can choose the basic subscription plan or upgrade to a premium subscription plan.

To upgrade to the premium plan, the account user must enter their payment information. [ 73 ] The person paying for the subscription plan for the DroneMobile Device must have access to the DroneMobile user account information. [ 74 ] The DroneMobile Device could be programmed to remotely access any compartment or component in a vehicle that it is hardwired to using a hardwire harness, including aftermarket components. [ 75 ] Mr. Riego searched and located records connected to the DroneMobile Device:

a) The DroneMobile Device is registered to customer Rajkumar Subramaniam.

b) Rajkumar Subramaniam’s address is listed as 8108 French Street, Vancouver, BC, V5K 2K3; his phone number is listed as 604-771-4474, and his email is listed as propertyrentals604@gmail.com.

c) The account holder entered into a three-year premium service subscription plan with Firstech LLC beginning on May 7, 2013 and scheduled to end on May 7, 2016.

d) The DroneMobile Device has a 3-year premium plan that was paid at time of activation on May 7, 2013 at a cost of $299.99 US drawn on PayPal.com transaction ID: #13C26762NA685590W. The transaction was associated with the name Rohen Sharma and email address solopromotionsltd@gmail.com.

e) The premium service plan associated with the DroneMobile Device enabled the customer/subscriber to lock, unlock, remote start, open trunk, and GPS track their vehicle via iOS, Android, and Blackberry smartphone applications and/or website interface. The features require professional installation by an authorized and qualified DroneMobile dealer.

f) Mr. Subramaniam’s premium service plan shows that on July 2, 2014 at 6:53:37 a.m. a GPS tracking event was reported from the unit to the DroneMobile server. This is the last known DroneMobile event. There has been no other activity since then.

g) As at January 28, 2016, Mr. Subramaniam’s premium service plan was paid in full, still active and scheduled to expire on May 7, 2016. [ 76 ] A GPS tracking event is only registered when someone that is logged into the DroneMobile Device user account requests that information. A tracking request can only be made by someone who has the access information to the DroneMobile Device user account.

[ 77 ] The DroneMobile Device generated reports summarized by Mr. Riego as: a) “LRAction Status” means “Last Reported Action Status”; b) “Live track Started-GPS not current” under the heading “LR Action Status” means the last time a request was made to the DroneMobile Device from the DroneMobile user account was for the GPS location of the device; c) “LRDateTime” means “Last Reported Date and Time”; d) “CM-6XXX” under the heading “HardwareInstall” is a remote start model, which means the DroneMobile Device had remote starting capabilities. 5.

CBSA Intelligence Officer Paul Vogt [ 78 ] Paul Vogt (“IO Vogt”) is an intelligence officer with the CBSA, qualified to provide opinion evidence about aftermarket compartments and components. He examined the Montero on July 16, 2014 and provided an opinion about his observations of the aftermarket compartment and components in the Montero:

a) The rear cargo area had been re-covered in after-market carpet similar to the type of carpet stereo installers use. The aftermarket compartment was secured/locked using two trunk lock mechanisms that were affixed to the body of the vehicle. Weld marks were located underneath the vehicle that affixed the locks to the body of the vehicle. On the access panel “Trap Door” the fabricator had secured two “Eye Hooks” to the medium density fibre board that would latch into the trunk locks.

This locking mechanism makes the after-market compartments very secure and difficult to gain access without knowing the sequence to articulate as it is intended by the fabricator of the after-market compartment. During the examination by the CBSA, they could not determine this sequence and therefore applied force with a pry bar to gain entry to the after-market compartment.

b) The wiring from the locks ran through the rocker panel of the Montero on the driver’s side. The fabricator went to great lengths to attempt to disguise this wiring by secreting it underneath the factory wiring loom. The after-market wires were further traced to the driver compartment, behind the driver’s side air vent bezel and the instrument cluster in the dash. Once the air vent bezel was removed, IO Vogt observed numerous after-market electronic devices: i. Wires from the trunk lock mechanisms ran into an after-market vehicle “Relay”.

This device is used as a switch and is an integral component in the articulation of the after-market compartment; ii. From the relay, wires were traced to another electronic module, a “PAC-AUDIO TR7”, designed to interface with vehicle audio-video components. Its main design function is to allow non-factory DVD players to be operated during vehicle operation. This module is programmable to perform several other functions such as articulating locks or actuators. iii. Two wires were traced from this module which was affixed to the heated seat switch cluster located in the centre console of the dash.

It is believed that the heated seat switches would be part of the sequencing form the fabricator to articulate the after-market compartments. iv. The other wires ran to a harness which would have powered an after-market GPS device manufactured by “CompuStar” called “DroneMobile”. This device allows you to track your vehicle through a paid subscription. The Drone module also performs functions such a remote starting of the vehicle, and remotely unlocking the vehicle. These outputs are believed to be integral in the operation of this after-market compartment.

These functions could be performed from an application on a smartphone. This module had been removed from the Montero at the time of the examination.

c) IO Vogt was able to by-pass the sequencing of this after-market compartment by applying an alternate 12V source to the relay located behind the air vent bezel. This by-pass locked and unlocked the after-market compartment. [ 79 ] IO Vogt’s opinion was that this after-market compartment is very high calibre and would involve a great deal of fabrication and knowledge of vehicle electronics. These after-market compartments usually have an in-depth process to unlock to deter law enforcement from articulating/opening the after-market compartments.

These after-market compartments would normally go undetected by law enforcement without specialized training. These after-market compartments and its in-depth process to open is a safety concern to law enforcement and the general public, as it allows hidden contraband and weapons to go undetected. 6.

CFSEU Investigation, Rohen Sharma and Zeeman Chaudhry [ 80 ] In May 2013, the Combined Forces Special Enforcement Unit (“CFSEU”) began an investigation into the drug trafficking activities of Zeeman Chaudhry and his associates in relation to police file no. 2013-830 (“CFSEU Investigation”). [ 81 ] The CFSEU conducted surveillance of Zeeman Chaudhry and Alvinder Sekhon and observed them conducting hand-to-hand transactions in and around their vehicles and attending a drug stash house, consistent with a dial-a-dope drug trafficking operation. [ 82 ] The CFSEU Investigation resulted in seizures of various drugs at the gram level; the largest seizure was 876.7 grams of fentanyl.

CFSEU also seized a money counter, electronic scales, packaging materials and score sheets, significant amounts of cash, nine cellphones, a GPS jammer, and two GPS trackers. [ 83 ] In the CFSEU Investigation, the CFSEU executed search warrants and seized a white 2007 Honda Accord, a brown 2009 Nissan Altima and a white 2000 Jeep Cherokee. [ 84 ] CFSEU investigators believed Mr. Sekhon used or was associated with the Nissan Altima.

[ 85 ] CFSEU investigators believed Mr. Chaudhry used or was associated with the Honda Accord. [ 86 ] The Honda Accord was registered to Mr. Chaudhry’s brother, Ferhaan Chaudhry. [ 87 ] For the CFSEU investigation, IO Vogt assisted in the examination of the Honda Accord, Nissan Altima and Jeep Cherokee. IO Vogt discovered after-market compartment and wiring in the Honda Accord and Jeep Cherokee.

IO Vogt did not locate after-market compartments in the Nissan Altima. [ 88 ] During the CFSEU Investigation, the police became aware of Rohen Sharma (born in 1983 and had a criminal record for possession of a scheduled substance for the purpose of trafficking from June 28, 2005) and Zeeman Chaudhry (born in 1987 and had a criminal record for: possession for the purpose of trafficking from May 29, 2008, failing to comply with an undertaking from January 12, 2016, and assault from December 12, 2016). While reviewing the ownership of the Montero, Cst.

Rasumussen noted that Shaid Shaudhry had a son, Zeeman Chaudhry, who was known to the police. [ 89 ] July 17, 2014, the police attended the Chaudhrys’ residence to interview Shahid Chaudhry and his wife. Zeeman Chaudhry was present during this interview and positioned himself nearby in the kitchen. Cst. Rasmussen described Zeeman Chaudhry as “lurking” in the background and seeming to monitor the interview. At one point during the interview, Zeeman Chaudhry asked: “there any problems here?” [ 90 ] Following the interview, the police conducted an operational deconfliction search of Zeeman Chaudhry.

As a result of information received by a CFSEU officer, Cst.

Rasmussen did not conduct further research into Rohen Sharma or Zeeman Chaudhry. [ 91 ] By information sworn December 23, 2013, Zeeman Chaudhry was charged with ten offences alleged to have occurred on June 25, 2013, including possession for the purposes of trafficking (cocaine, heroin, methamphetamine, ecstasy, opium, fentanyl, cannabis) and firearms offences (possession of a .40 calibre Taurus semi-automatic pistol, possession of a prohibited high-capacity magazine). [ 92 ] On June 25, 2018, Rohen Sharma pleaded guilty in the United States to seven offences including: conspiring to distribute more than 500 grams of methamphetamine; proceeds of crime from distributing methamphetamine; and, conspiracy to import methamphetamine.

He was sentenced on February 24, 2023 for his involvement in those offences. [ 93 ] On May 15, 2012, Rohen Sharma and Lucky Subramaniam returned to Canada through Vancouver International Airport after travelling together to Mexico. B. Accused’s Evidence Pre-Events of July 1, 2014 [ 94 ] I will next address the evidence regarding the events prior to Mr. Subramaniam’s border crossing, including his purchase of the Montero, his previous travel to the U.S. and his association with others connected, tangentially or otherwise, to this investigation. 1. Background [ 95 ] Mr.

Subramaniam was born in Sri Lanka on April 11, 1971 and was 43 at the time of the offence. He arrived in Canada as a refugee in 1991 and obtained Canadian citizenship in 1995. [ 96 ] Mr. Subramaniam has six siblings – three brothers and three sisters. His mother, older brother, younger sister, and younger brother (Lucky) live in the Lower Mainland. Lucky was born in 1981 and was 33 years old at the time of the offence. Mr. Subramaniam testified that in 2014, he and Lucky did not have a close relationship.

However, they would often see and speak with each other at their mother’s house at family lunches and dinners. Lucky owned PureStylez Homes Inc. [ 97 ] Mr. Subramaniam separated from his spouse, Nishani, in 2011. They have two sons, who were nine and 13 at the time of the offence. After their separation, Mr. Subramaniam lived part-time in the family home with Nishani, their two children, and his then sister- in-law, Melka-Rushani Vijayasingham at Unit 12-22800 Windsor Court in Richmond. The family moved to 5900 Muir Drive in November 2013. [ 98 ] Mr.

Subramaniam also lived part-time at his mother’s house at 8108 French Street in Vancouver. He changed the address on his driver’s licence to his mother’s address at 8108 French Street. Once Mr. Subramaniam purchased the Montero, he testified he would often park it on the street outside his mother’s house. [ 99 ] In 2016 or 2017, Mr. Subramaniam became romantically involved with Melka. [ 100 ] Mr. Subramaniam completed the equivalent of a grade 12 education in Ontario. He had worked in the hotel and restaurant business. He eventually moved to the Lower Mainland.

In 2003, he started a business purchasing movies from India. This company partnered with Cineplex and Famous Players to play Tamil and Hindi movies in Canada. In 2008, he opened Dolphin Theatre in Vancouver. His telephone number for Dolphin Theatre and his film company was 604-771-4474. Mr. Subramaniam testified that when he sold Dolphin Theatre the purchasers wanted the telephone number as part of the purchase of Dolphin Theatres.

He said he thus stopped using the telephone number when he sold Dolphin Theatres and did not receive telephone calls on it thereafter. [ 101 ] He used the 604-771-4474 telephone number until August 2013 when the Dolphin Theatre was sold. He sold Dolphin Theatre for $300,000. As a result of that sale, he shut down his first film company and incorporated a new film distribution company called Starlite Films. He incorporated that company on January 17, 2013. Melka is the director of Starlite Films. [ 102 ] Mr.

Subramaniam testified that he often travelled alone internationally – both for leisure and for film distribution. He had travelled to the U.S. by vehicle alone and with his family. Before the offence, he testified he had travelled to the casino in Tulalip, two to three times. Before the offence, he had travelled to the Seattle harbourfront and to the Seattle Premium Outlets with his family.

[ 103 ] During his cross-examination, he was asked about a trip he took to the U.S. on May 8, 2013 with his family. While he did not recall the exact date, he explained he went to the U.S. with his ex-wife, his two sons, and Melka on that occasion. [ 104 ] He was asked about the timing of this trip to the U.S. considering the DroneMobile device had just been activated the day previous.

When it was suggested to him that he took the trip to the U.S. because he wanted to test the DroneMobile device, he responded by stating: I am not sure what is meant by testing the drone because I didn’t even have the knowledge of its existence. [ 105 ] He denied knowing about the DroneMobile Device and denied he went on this trip to test it. When he was asked about his solo trip to the Tulalip casino in 2014, he explained how on that occasion, he went to the U.S. in the afternoon and returned to Canada between 1:00 to 2:00 the following morning. [ 106 ] Mr.

Subramaniam travelled by himself by air in his role as a film distributor and for personal reasons. He admitted that he returned to Canada through the Vancouver International Airport on: August 21, 2013; September 26, 2013; January 19, 2014; and May 3, 2014. He believed one of those instances was when he travelled to Sri Lanka with his mother, sister, niece, and Lucky to find a spouse for Lucky. Mr. Subramaniam paid for his family to take that trip. [ 107 ] Mr. Subramaniam was cross-examined about his criminal record, which he admitted.

He has two prior convictions for fraud under $5,000, one conviction was registered in 1997 and the second in 1998. 2. The Montero [ 108 ] Mr. Subramaniam testified Lucky recommended that he purchase the Montero. He testified he wanted to buy a bigger vehicle for reasons connected to Starlite Films and the need to transport large metal cases of film. He believed he had talked about looking for a new vehicle at family lunches and dinners at his mother’s house and Lucky was present. Two to three weeks later, Lucky showed him an online advertisement for the Montero. Lucky arranged for him to view the Montero.

Lucky went with Mr. Subramaniam to view it. He also went to two meetings with the seller of the Montero. [ 109 ] The first meeting took place at the Fruiticana parking lot in Surrey. Mr. Subramaniam and Lucky met with three people. Mr. Subramaniam described them to be of “Indian origin,” between the ages of 29 to 32. Mr. Subramaniam thought Lucky may have known them based on the way he interacted with them. For example, he observed a fist bump and shoulder bump, followed by “what’s up bro?” Mr.

Subramaniam liked the colour of the Montero and thought it was a “good looking vehicle.” [ 110 ] The posted price for the Montero was $6,000. Mr. Subramaniam noticed an oil leak when he looked under the hood. He was able to get the seller to agree to a reduction in the sale price to $4,000. Later, Mr. Subramaniam repaired the oil leak. He produced an invoice for $1,125.51 from S A Auto Stock in Delta dated May 22, 2014. The invoice itemized parts and labour for an oil change and a valve cover repair, among other items. [ 111 ] At this first meeting, Mr.

Subramaniam paid a $1,000 cash deposit to secure the Montero. [ 112 ] A second meeting was arranged for a week later to sign the Vehicle Transfer Form. This meeting took place at the parking lot of a London Drugs and Starbucks. Lucky also accompanied him to this meeting. Mr. Subramaniam witnessed the seller, who presented himself as “Shahid Chaudhry”, fill out the vehicle declaration and seller information sections of the Vehicle Transfer Form and sign it. Mr. Subramaniam received these forms and paid another $2,000 in cash for the Mitsubishi. The seller took a photo of Mr.

Subramaniam’s driver’s licence, which had part of the address sticker rubbed off. This was the same driver’s licence that was presented to the CBSA on July 1, 2014, for which the postal code had been rubbed off. While cross-examined on this point, Mr. Subramaniam maintained he had the same sticker on his driver’s license when he purchased the Montero in 2013 and when he provided his driver’s license to BSO Hui on July 1, 2014.

He explained that he had gone to ICBC to request the address change to prevent his ex-spouse from examining his mail, stating that she had a tendency to open mail that went to her home in order to, he believed, see how much money he was making. [ 113 ] Mr. Subramaniam testified about the events following the second meeting. Mr. Subramaniam signed the Vehicle Transfer Form but did not complete the purchaser information section. He gave the form to Lucky and asked him to take it to the insurance broker. When Mr.

Subramaniam arranged to pick up the license plates, he became aware that the Montero was transferred from Shahid Chaudhry to Lucky’s company, PureStylez Homes Inc. Mr. Subramaniam organized another transfer so that the vehicle ownership would be listed as Starlite Films instead. He signed the Vehicle Transfer Form, as the insurance broker requested, and left it with her to complete. At that time, he picked up the licence plates for the Montero. [ 114 ] During the first week of May, Mr. Subramaniam and Lucky met with “Shahid Chaudhry” for the third time at the Riverport Banquet Hall. Mr.

Subramaniam paid the remaining $1,000, was given one set of keys, and took the Montero home. [ 115 ] During cross-examination, Mr. Subramaniam was questioned about why he purchased the Montero. Particularly since he had purchased another car, a Mercedes, only about one year prior. He responded by saying that he wanted a larger vehicle for business purposes (to transport film reels connected to his film business) and for traveling with his family. [ 116 ] Mr. Subramaniam testified that his only association with Shahid Chaudhry and/or Zeeman Chaudhry was connected solely to his purchase of the Montero. C.

Evidence Connected to the July 1, 2014 Offence [ 117 ] I turn to the evidence relevant to the time period surrounding the July 1, 2014 offences, including:

a) the events of June 30, 2014;

b) Mr. Subramaniam’s travel to the U.S. and his activities while he was there;

c) his re-entry to Canada and his dealings with BSOs Hui and Sangha ;

d) the search of the Montero; and

e) subsequent steps taken by the RCMP investigators assigned to the investigation. 1. Events of June 30, 2014 [ 118 ] The only evidence surrounding Mr. Subramaniam’s actions on June 30, 2014 comes from his testimony. He testified that he received a telephone call from Lucky asking if he could borrow his car so he could do some shopping with their mother. At that point, Mr. Subramaniam testified that he told Lucky he would like to join them for the trip. [ 119 ] Lucky was not called as a witness at the trial. In my view, Mr.

Subramaniam’s testimony about his telephone conversations with Lucky constitute hearsay and are inadmissible for the truth of Lucky’s substantive statements. [ 120 ] Whether Lucky’s statements are true or not, I do not decide. However, Mr. Subramaniam testified about steps he took thereafter and the reasons for doing taking those steps. Mr. Subramaniam testified that he informed members of his immediate family that he intended to go to the U.S. and received a list of shopping requests from his family.

He testified that his brother called him at about 6:30 a.m. on July 1, 2014 to let him know that he was no longer able to go to the U.S. Mr. Subramaniam testified that he decided he would go nonetheless. [ 121 ] Again, the statements attributed to Lucky constitute inadmissible hearsay and I do not rely on them for the truth. [ 122 ] Mr. Subramaniam was cross-examined about the scenario that Lucky had instigated the trip to the U.S. and then backed out.

In particular, he was cross-examined about a difference with his statement from his previous trial where he had testified that he did not know the reason his brother was traveling to the U.S. In his cross-examination, he testified that he believed Lucky wanted his car so he could take their mother to the U.S. to go shopping. [ 123 ] I agree that there was an inconsistency in Mr. Subramaniam’s testimony from his earlier statements. I will say more about this inconsistency later in the analysis. 2. Travel to the U.S. and Activities [ 124 ] Mr.

Subramaniam testified about July 1, 2014, addressing his activities from the time he awoke to the time of his arrest later that evening. [ 125 ] He testified that after he received the telephone call from Lucky, he continued with his plans to go to the U.S., departing from the French St. residence at about 8:00 a.m. – alone. [ 126 ] He testified that he then went to the Muir St. address (where his children resided in Richmond) and that his two sons, ex-wife and Melka were present when he arrived. He retrieved a shopping list for grocery and clothing requests.

He testified that he was to take one of his sons to St. Thomas College (in Burnaby) for Canada Day activities and that is where he went next. He testified that, next, he got some gas (about $40 worth) and then went to the Tim Horton’s at 49 th and Oak where he had some breakfast. He estimated this occurred at about 10:00 a.m. From there, he testified that he went to the U.S., crossing the border at about 11:00 a.m. he believed. And the admissions have him entering at 11:03 a.m. [ 127 ] Mr.

Subramaniam testified he went directly to the Seattle Premium Outlet, where he spent approximately 15 minutes looking for parking. He described going to a number of stores, including Tommy Hilfiger, Calvin Klein, Fossil, Under Armour, and Adidas. There was some testimony about his disappointment that there were not any sales, later realizing that July 1 was not a holiday in the U.S. [ 128 ] He testified that he went to the Starbucks after about 45 minutes to one hour after he arrived at the outlet mall. [ 129 ] He then testified about his activities at the Gap store.

Here, he located some sale items and made his first purchase. [ 130 ] The Gap receipt, entered as an exhibit, confirms that at 2:38 p.m. on July 1, 2014, he purchased two women’s items at a 50% discount. Mr. Subramaniam paid for these items with his debit card. Mr. Subramaniam testified that he went back to the Gap store after he had a discussion with Melka. He made the second purchase (for two women’s items from this store at a 70% discount) at 3:38 p.m. Mr.

Subramaniam paid for these items with his debit card. [ 131 ] He knew to keep the receipts because the CBSA officers would require them when he returned to Canada and for tax reasons. [ 132 ] Next, Mr. Subramaniam testified he went to Walmart to buy groceries on the shopping list. He stated he purchased toilet paper, cereals, and other items for his children, spending just over $200.00 on these items. The receipt shows he purchased these items at 5:09 p.m. A video-recording was tendered showing Mr.

Subramaniam entering the Walmart in Tulalip with something in his hand and he stated this was his shopping list. [ 133 ] Mr. Subramaniam also paid for these items with his debit card. He kept his receipt again, because he knew that border officers would ask whether he purchased anything. [ 134 ] Next, he went to a gas station and to McDonald’s for food before making his way back to Canada. Mr. Subramaniam recalled it

being busy and taking about an hour and 45 minutes to get to the border. He arrived at the border at about 7:00 p.m. [ 135 ] Mr. Subramaniam testified that he did not stop anywhere on the way back to Canada. [ 136 ] He denied loading, or allowing anyone to load, drugs into the Montero. He also denied any knowledge of the methamphetamine at the time he crossed the border. [ 137 ] He was cross-examined about his stops in the U.S. and, particularly, the likelihood (or unlikelihood) of someone loading drugs into the Montero without his knowledge. [ 138 ] In response to this line of questioning, Mr.

Subramaniam stated that when he returned to start the vehicle [in the parking lot], it was just normal – He testified, “I wasn’t paying attention to anything and had no reason to suspect anything.” [ 139 ] He denied that he received a phone call commanding him to stay in the mall longer and that’s the reason he went to the Gap for the second purchase. [ 140 ] He also denied that he had any knowledge of anyone moving or accessing his vehicle so that drugs could be loaded. He agreed that he only left the Montero twice while in the U.S., once to go into the outlet mall and once to go into Walmart.

He was cross-examined about his observations when he returned to the Montero on both occasions. He stated that he did not notice anything unusual either time. [ 141 ] Mr. Subramaniam denied that he knew the Montero had been filled with drugs at any point during his time in the U.S. 3. Re-entry to Canada – Dealings with the CBSA officers [ 142 ] Mr. Subramaniam reached the Pacific Highway Border Crossing just after 7:00 p.m. He drove the Montero into the primary inspection lane. When he reached the booth, BSO Hui commenced the primary inspection inquiry. [ 143 ] BSO Hui and Mr.

Subramaniam disagree about the inquiry. They do not agree about the questions asked nor the answers given. [ 144 ] Though the interaction between the two was captured on a video-recording, the inquiry was not simultaneously audio-recorded. [ 145 ] The video-recording shows an interaction that lasts just over five minutes. The video depicts Mr. Subramaniam in the Montero. He can be seen providing what I believe to be his passport and later in the interaction, shopping receipts. About three minutes into the interaction, BSO Hui is observed going around the vehicle.

He testified that he looked into the back of the Montero as well as the passenger side. [ 146 ] At one point, another officer is depicted on the passenger side of the vehicle, observing the interaction. This person was later identified to be BSO Bengco. [ 147 ] I will set out both versions of the verbal exchange. [ 148 ] BSO Hui testified that he wrote notes about the conversation about four hours after it occurred and he testified after refreshing his memory from these notes.

What follows is a recitation of the conversation as described by BSO Hui: Q: where do you live A; Vancouver Q: why did you travel to the U.S. A: for shopping Q: when did you cross A: this morning Q: what time did you go A: around 8:00 a.m. Q: where did you go shopping A: Bellingham premium outlets and Walmart Q: [BSO Hui tried to correct him] – seattle premium outlets A: I didn’t go to Seattle -- one before in Burlington Q: So you went to Burlington A: Yes Q: What was the value of the goods A: $250

Q: What kind of goods A: Groceries and clothes for wife Q: Any alcohol or tobacco A: No Q: What time go to the US A: [slight pause] At 8:00 Q: What time get to mall A: Around 10 Q: how long at mall A: [Slight pause] Around 4 – 5 hours Q: At the mall entire time by self A: Yes Q: Where went after mall A: Walmart in Bellingham Q: [asked for receipts – provided 2 Gap receipts and gas receipt from Seattle premium outlets] So you did go to Seattle premium outlet that’s in Tulalip Q: Where’s wife A: At work Q: What does she do A: Tim Hortons Q: What location A: 49 th and Oak Q: What do you do A: Movies Q: Any firearms… A: no [ 149 ] BSO Hui testified that he believed Mr.

Subramaniam was nervous during this exchange. He described observing sweat on his forehead that was not there when he began interacting with him. He testified that he also had a cough that was indicative of nervousness. He described two quick coughs and then a later deeper cough that indicated to him, based on his years of experience, that Mr. Subramaniam was becoming increasingly nervous. [ 150 ] Mr. Subramaniam agreed with portions of BSO Hui’s description of the conversation. Mr. Subramaniam testified that he recalled telling BSO Hui that he went shopping in the U.S. and that he had gone down that day. Mr.

Subramaniam declared he was bringing $250 worth of goods and provided BSO Hui with the receipts for those purchases. BSO Hui asked him what goods he was bringing back, and Mr. Subramaniam responded he brought back groceries and clothing. BSO Hui reviewed the receipts in relation to the purchases. When he looked in the trunk of the Montero, he observed shopping and grocery bags. He examined the bags “really quick”, but he did not search each bag. Mr.

Subramaniam was asked whether he had anything from duty free, whether he was bringing in tobacco or alcohol, and whether he was returning with commercial goods or gifts. He responded “no” to all these questions. [ 151 ] Mr. Subramaniam disputes telling BSO Hui that he went to Bellingham or to the Burlington Outlet Mall. He also disputes BSO Hui’s evidence about timing. He denied telling BSO Hui that he went to the U.S. at 8:00 a.m. [ 152 ] During cross-examination, Mr. Subramaniam was adamant that he told BSO Hui that he had gone to the “Seattle outlet mall”. [ 153 ] Mr.

Subramaniam was also cross-examined about the timing BSO Hui described. Mr. Subramaniam denied that he told BSO Hui that he crossed into the U.S. at 8:00 a.m. or that he got to the mall at 10:00 a.m. He testified that in fact those questions were not asked, at

least by BSO Hui, and he did not give those answers. [ 154 ] Mr. Subramaniam also disagreed with the suggestion that he was nervous during his dealing with BSO Hui. He testified, “I was not nervous. I was not confused. I gave him the answers. I did what they asked me to do.” [ 155 ] BSO Hui determined that he would refer Mr. Subramaniam to secondary inspection. To that end, he completed an E67 form and referred him to Counter A in the secondary examination area. [ 156 ] BSO Hui interpreted the information that was recorded on the E67 as follows:

a) length of absence as “A”, meaning he was out of the country for under 24 hours;

b) bringing in $250 worth of goods, meaning the value of the goods was over the daily limit for this length of visit;

c) The coding “01” selective referral as meaning “contraband.” [ 157 ] BSO Hui testified that his direct dealings with Mr. Subramaniam ended after he was referred to secondary examination. During cross-examination, he remembered that he had some limited further interaction regarding access to counsel. [ 158 ] When Mr. Subramaniam was referred to secondary examination, he went inside the CBSA office to Counter A. [ 159 ] BSO Sangha testified about their interaction thereafter. [ 160 ] Mr. Subramaniam provided BSO Sangha with his passport and receipts.

I agree that there are certain portions of this conversation that are not in dispute. However, Mr. Subramaniam does not agree that he was asked the “twenty questions” referred to by BSO Sangha. In his testimony about the conversation, BSO Sangha refreshed his memory from notes he had made several hours after the conversation occurred. [ 161 ] I do not find it necessary to resolve the dispute about who’s version is accurate. I accept that BSO Sangha, with the benefit of his typed narrative, likely asked more questions than Mr. Subramaniam recalled. [ 162 ] After this initial conversation, BSO Sangha told Mr.

Subramaniam to take a seat, and then he examined the Montero in the open secondary examination area. He went to the trunk of the Montero, removed the grocery and shopping bags, and placed them on the cement counter. His evidence was that the bags were consistent with the receipts, though he did not look inside them. [ 163 ] After removing the bags from the Montero, BSO Sangha described his observations of the black carpet in the rear of the Montero.

He testified that the “black carpet seemed like it wasn’t original – it seemed a little different and the texture appeared different…it didn’t look like original factory carpet.” BSO Sangha testified that it appeared to be “subwoofer carpet – thin and easily pliable.” [ 164 ] BSO Sangha next described the seating in the vehicle.

He described the second row seating and in particular, the handle for the seats: “When you open the door – typically used to move seat forward – to get access to third row seat – It didn’t work.” [ 165 ] After making the observation about the second row seating, BSO Sangha testified that he went back to the rear of the Montero. [ 166 ] As he looked at the compartment, he testified that “it didn’t make sense to me.” He testified that it “was not typical for what I’ve seen in different vehicles – it was not big enough to house typical things you would see (for eg, car jack) – it didn’t seem to have a purpose.” So he went underneath of the vehicle and looked.

He noticed a large compartment, larger than what he could see from above. [ 167 ] He performed a “tap test” in the rear area of the Montero. He interpreted the results of the tap test to be indicative of a “void” and that further examination was required. [ 168 ] He called in BSO Bengco for help. BSO Sangha asked him to look at the Montero, including the carpet. BSO Bengco used an upholstery tool to lift the rear floorboard to look inside the suspected void or compartment in the rear of the Montero. [ 169 ] BSO Sangha testified that he saw something inside of the compartment.

BSOs Sangha and Bengco moved the Montero to the secure examination bay. [ 170 ] BSO Sangha called for the assistance of Supt. Hainsworth and Supt. Gill. [ 171 ] At 1959 hrs, BSO Sangha, in BSO Bengco’s presence, told Mr. Subramaniam he was being detained for suspicion of smuggling narcotics into Canada. At this point, BSO Sangha saw for the first time that Mr. Subramaniam was physically trembling. [ 172 ] At 20:05, BSO Sangha conducted a frisk search of him in the presence of BSO Bengco. Both officers testified that Mr. Subramaniam then spontaneously asked, “is it in the groceries?”.

According to BSO Bengco, he made this statement between 20:05 and 20:12. [ 173 ] BSO Sangha seized Mr. Subramaniam’s wallet, containing American, Canadian, and Sri Lankan currency. [ 174 ] Defence counsel submitted that it is notable there were never any gloves located on Mr. Subramaniam or in the Montero. Despite a strip search conducted, the officers did not locate any other item connecting Mr. Subramaniam to the secret compartment, the DroneMobile Device or the illicit substances. [ 175 ] BSO Sangha, BSO Bengco, and Supt.

Hainsworth testified about their involvement in examining the Montero in the secure examination bay. BSO Sangha conducted ion swabs to determine if there was residue of illegal substances on the plastic strip near the hidden compartment, the steering wheel, and the alarm key fob he received from Mr. Subramaniam. No residue was located on any of

these areas. [ 176 ] BSOs Sangha and Bengco assisted Supt. Hainsworth to locate and access the compartment. The three all agreed that the hidden compartment and components were not visible without removing various panels and components of the Montero. [ 177 ] Supt.

Hainsworth was qualified to provide opinion evidence on: the identification, construction, and operation of aftermarket compartments and components within a motor vehicle; the detection and indications of vehicle concealment techniques, including aftermarket compartments to conceal contraband; construction techniques used and related functionalities; and the costs associated with after-market secret compartments with a particular focus on cross-border transportation of contraband.

He was qualified as an expert in this area, in part because of his vast experience working as a BSO and superintendent with the CBSA for 23 years and his testimony that he had conducted searches of thousands of vehicles and acts as a trainer for others in conducting searches. [ 178 ] Supt. Hainsworth testified that the hidden compartment and other aftermarket components of the Montero were designed to look as if nothing was out of order, as they were well-concealed in a sophisticated manner.

After locating the hidden compartment, he and the other officers removed panels from the Montero and traced the wiring attached to the hidden compartment’s locks to the dashboard area. [ 179 ] The officers removed portions of the dashboard, including the air vents beside the steering wheel, with force using an upholstery tool. It was at that point they were they able to see the PAC TR 7, the DroneMobile Device, the Relay and the alarm. Visible in the middle of the dashboard was a small radar detector, which Supt. Hainsworth agreed could be purchased at the store Best Buy. [ 180 ] In Supt.

Hainsworth’s opinion, the hidden compartment could likely be opened through an electronic sequence or by applying an external electrical source (i.e., a bypass). However, he was unable to open the hidden compartment using a bypass after about two hours of trying. [ 181 ] The CBSA officers thus decided to pry it open. BSOs Sangha and Bengco assisted in prying open the compartment, which led to the discovery of several packages taped together with brown paper. BSO Sangha was responsible for later weighing and processing the drugs with the assistance of BSO Bengco. [ 182 ] Supt.

Hainsworth testified that he did not notice the carpet in the rear trunk area of the Montero was aftermarket until a later search. He testified that he is aware of another Mitsubishi Montero that also had two-toned carpets. While Supt. Hainsworth noticed air fresheners in the Montero, he did not notice any overwhelming smells in it, including when he opened the hidden compartment. [ 183 ] Later, Supt. Hainsworth examined the Montero again. He tried to figure out the electronic sequence to open the hidden compartment. However, he was never able to identify the sequence.

During cross-examination, he agreed that the sequence was likely complex and difficult to detect by someone unless they had significant experience with after-market items. [ 184 ] Supt. Hainsworth was not able to operate the hidden compartment through a sequence, but there was some evidence presented about how it could be opened by the Relay, the PAC TR7 and the DroneMobile Device. [ 185 ] Supt.

Hainsworth testified that there were wires that ran from the locks attached to the hidden compartment to the Relay. [ 186 ] Defence counsel summarized this evidence in their written submission as follows: The Relay was attached to the other aftermarket components such that they were all integral to opening the hidden compartment. This conclusion is supported not only by Supt. Hainsworth’s evidence but also by the report from Intelligence Officer Paul Vogt (“IO Vogt”), a qualified expert who provided an opinion with respect to the hidden compartment and components of the Mitsubishi in this case.

In this structure, Supt. Hainsworth, and IO Vogt confirmed the PAC TR7 was integral to the operation of the hidden compartment found in the Mitsubishi, and was programmable to perform several “functions such as articulating locks of actuators.” It was affixed to the heated seat switch cluster that was located in the centre console of the dash and had two wires running from it. The first wire was attached to the aftermarket Relay in the Mitsubishi which is used as a switch and is an integral component of the aftermarket compartment.

The second wire “ran to a harness which would have powered” the DroneMobile Device. The DroneMobile Device was capable of constantly transmitting and receiving small packets of cellular data so that it could be tracked via GPS. It could also be programmed to lock and unlock the doors, open the trunk, and remote start the vehicle.

If hardwired using a hardwire harness, such as in this case, it could be programmed to remotely access any compartment or component in a vehicle that it is hardwired to, including aftermarket components. [ 187 ] Robert Riego deposed that the DroneMobile Device’s 20-digit serial number could only be associated with one account holder’s email address at any given time. It could not be controlled by multiple accounts. However, there was no control over who has access to the user’s email address and password. [ 188 ] Mr.

Subramaniam submits, based on the operation of the DroneMobile device and the evidence regarding email account holders, a user of the DroneMobile Device with access to the email address for the account holder could access their account via iOS, Android or Blackberry smart phone applications and/or website interface. [ 189 ] According to IO Vogt, the DroneMobile Device’s “outputs” were “integral in the operation of this after-market compartment.” [ 190 ] Staff Sergeant Shane Parsons (“S/Sgt. Parsons”), the assigned exhibits officer, dealt with the items found in the Montero.

There were 33 Tupperware containers located in the hidden compartment. 21 of the 33 containers had the label “hecho en Mexico” on them. [ 191 ] There were fingerprints found on the 33 Tupperware containers that concealed the methamphetamine in the hidden compartment. [ 192 ] Mr. Subramaniam’s fingerprints did not match any of those recovered from the forensic examination.

4. Expert Evidence – Domestic and Cross-Border Trafficking of Methamphetamine [ 193 ] S/Sgt.

Rettie was qualified as an expert to provide opinion evidence on the production of methamphetamine, including the source country for methamphetamine; the pricing of methamphetamine in British Columbia and Washington State; and the domestic and cross- border trafficking of methamphetamine, including packaging, distribution routes, chains of distribution, means of transportation, and methods of concealment. [ 194 ] He provided opinion evidence regarding leaders of high-level drug organizations and conduct that could be expected of such leaders, including taking steps to insulate themselves from detection. S/Sgt.

Rettie agreed that some of the information provided to him about Rohen Sharma suggested that Mr. Sharma would be considered the leader of a high-level drug trafficking organization. He also agreed that based on the information he was provided, Mr. Sharma likely had contacts in southern California and Mexico. Further, it is likely that he imports the drugs from Mexico, warehouses them in California, and then transports them to Seattle. He would assume that Mr. Sharma would have stash sites in Washington State.

Drug traffickers were more likely to store large amounts of methamphetamine at the kilogram or multi-kilogram level in stash houses and he had witnessed almost 50 kg stored at one such stash house. [ 195 ] With respect to high-level drug trafficking organizations, S/Sgt Rettie offered the opinion that such organizations would have the funds to make sure that any narcotics they transported were well-hidden, including using hidden compartments.

Given their financial interest in the narcotics being transported, such organizations might use GPS tracking devices to monitor their loads throughout transport, including to get their load back on track should a transport person take them off track.

He also agreed they might use devices that could remotely lock and unlock a vehicle, such as a key fob. [ 196 ] Based on his years of experience investigating highly sophisticated organized crime operations, S/Sgt Rettie was able to provide valuable insight into what would be anticipated from an individual tasked with transporting drugs and the risk presented to such a person. He made several points poignant to this Court’s analysis:

a) The transporter holds a position of high risk in a drug trafficking organization, particularly in a cross-border operation. The leader of such an organization is likely to distance themselves from the transporter.

b) A knowing transport person would take steps to avoid detection in order to mitigate the risk of getting caught, including having a ready cover story to explain their trip across a border. A knowing transport person would also typically be aware of daily limits on goods so as to avoid having to make declarations that could lead to a search.

c) The risks to the drug organization if they transported drugs across the border with a transport person who was unaware of his/her cargo – the “blind courier.” The risks of using a blind courier were considerable and included: i. losing control over the cargo; ii. no control over when the person travelled or crossed the border; iii. losing the cargo; and iv. losing the location of the cargo.

d) That said, S/Sgt. Rettie agreed that the risks of using an unknown transporter could be mitigated if there was an operational tracking device to track the cargo, and if the drugs were hidden in the vehicle.

e) He also noted that using a blind courier might be beneficial because the transporter may appear less nervous because they would be unawa

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