R. v. Kandola, 2018 BCPC 325

Citation: R. v. Kandola 2018 BCPC 325 Date: 20181001 File No: 214779-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. KIRPAL SINGH KANDOLA REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. JETTÉ Counsel for the Crown: C. Stanley Counsel for the Defendant: M. Stern Place of Hearing: Surrey , B.C. Dates of Hearing: June 11,12,13; August 22, 2018 Date of Judgment: October 1, 2018

[ 1 ] Kirpal Singh Kandola is charged with two counts of trafficking opium contrary to section 5(1) of the Controlled Drugs and Substances Act (“CDSA”). Introduction [ 2 ] Mr. Kandola is the 68-year-old patriarch of a family owned business called Herbalex, which he operates from a storefront on King George Boulevard in Surrey, B.C. From that location he markets and sells natural herbal products and remedies of various types, some of which are manufactured under his direction and packaged under the Herbalex brand, and others which are obtained from suppliers.

The business has operated in one form or another and at different locations since 2001; it has been operating from the Surrey location since 2006. In 2005, Mr. Kandola travelled to India and received training in a form of traditional Indian medicine called Ayurvedic. His storefront advertises Herbalex as an Ayurvedic center. I infer from what I have heard that most, if not all, of his customers are Indian or Indo-Canadian. [ 3 ] On 19 February 2015 and again on 31 March 2015, RCMP Inspector Jagdeep Dhot entered the Herbalex store in an undercover capacity and purchased on each occasion four pills from Mr.

Kandola. The pills were held out to be an Indian herbal product called Kamini. Following each transaction one of the four pills was sent for analysis and was found to contain opium. [ 4 ] The only live issue in this case is proof of the mens rea for the offence of trafficking contrary to the CDSA . Has the Crown proved beyond a reasonable doubt that Mr. Kandola knew these pills contained a prohibited drug, or that he was reckless about their nature? In the further alternative, has Crown counsel proved beyond a reasonable doubt that Mr.

Kandola is deemed to have known that the pills contained a prohibited drug by operation of the doctrine of willful blindness? Synopsis [ 5 ] Inspector Dhot testified about his two encounters with Mr. Kandola. Constable Bleker testified regarding cash found on Mr. Kandola’s person when he was arrested following the second purchase on 31 March 2015, and cash register records seized during execution of a search warrant at the store. Mr. Kandola was the sole defence witness.

He testified that he had no idea that the items he sold to Inspector Dhot contained opium, and that he believed the products were Kamini, an Indian herbal remedy employed for pain relief. a. 19 February 2015 [ 6 ] Inspector Dhot is an experienced undercover operator and had worked as a UCO in numerous drug investigations. He had never come across a substance called Kamini in any of those previous cases, most of which were related to cocaine trafficking. [ 7 ] Drug investigators directed Inspector Dhot to attend at Mr. Kandola’s Herbalex store and attempt to purchase either Doda or a pill called Kamini.

He was given $100 to make the purchase, but had no idea how much either product might cost. [ 8 ] Inspector Dhot testified that when he entered the store at about 1:30 p.m., Mr. Kandola came out from a back office to greet him. The conversation which followed was in the Punjabi language. Inspector Dhot told Mr. Kandola that he needed a pain killer for his back, and asked specifically for a pill called Kamini, which he mispronounced as “Kameeni”. After correcting the Inspector’s pronunciation, Mr.

Kandola went behind the counter at the front of the store (which is the public area where customers enter to view the products which are for sale), pulled open a drawer and opened a Ziploc bag. The Inspector estimated that there were about 20 pills in the bag. Mr. Kandola asked how many he wanted and the Inspector asked how much the pills cost; he was told they were $5 each and he then asked for $20 worth or four pills. The Inspector testified that Mr. Kandola told him to take one pill with milk in the morning, and that it would help with back pain as well as his sex life.

In cross-examination, Inspector Dhot testified that he believed that $20 for a gram of opium was well below market value. [ 9 ] Inspector Dhot asked Mr. Kandola about the availability of a product called Doda. Mr. Kandola said he did not have Doda, but that the Kamini pills were stronger than Doda and contained opium. Later during his examination-in-chief the Inspector was asked whether Mr. Kandola made a gesture of any kind when referring to the Kamini pills during this part of their discussion. He said that Mr.

Kandola raised his hand as he was talking about the pills and pointed to them, and that it was clear to him that Mr., Kandola was talking about the Kamini when he mentioned opium. [ 10 ] Inspector Dhot told Mr. Kandola that he used to take Doda in India for back pain and that he believed that it was readily available in Surrey. Mr. Kandola said the government had initiated a crackdown on Doda and that it was no longer available. [ 11 ] Mr. Kandola then put the four pills into a Ziplock baggie and the Inspector gave him $20, which Mr. Kandola placed into the cash register.

The Inspector left the store and handed the pills to another officer to be logged as exhibits. The four pills together weighed approximately one gram. One pill was analyzed and found to contain opium, but I have not been told how much opium was in that pill. [ 12 ] Inspector Dhot consulted his notes to refresh his memory while testifying in-chief and during cross-examination. He made those notes about three hours after his encounter with Mr. Kandola, regarding an event that took place well over three years ago. When making the notes, the Inspector translated the Punjabi into English.

He agreed in cross-examination that the notes are not a verbatim account of his conversation with Mr. Kandola. In cross-examination, defence counsel suggested that when Mr. Kandola used the Punjabi word for opium he was referring to Doda, not Kamini. Inspector Dhot testified that it was clear to him that Mr. Kandola was referring to the Kamini pills. He also agreed that he made no note of Mr. Kandola making a physical gesture toward the Kamini pills when he used the Punjabi word for opium, and that he had not given much thought to this encounter with Mr.

Kandola until he began to prepare for the trial. b. 31 March 2015 [ 13 ] On this date, Inspector Dhot was again told to enter the Herbalex store and attempt to purchase Kamini.

[14] The Inspector entered the store and spoke with Mr. Kandola, once again in the public area of the store. He reminded Mr.Kandola of his earlier purchase and said he wanted to purchase another $20 worth of Kamini pills. Mr. Kandola pulled out from thesame drawer a bag of pills which looked like the pills purchased in February; he paid $20 which Mr. Kandola put in the cash register till,and he was given four Kamini pills in a Ziplock baggie. After completing this transaction, the Inspector asked Mr. Kandola if he hadanything stronger for back pain. Mr.

Kandola said that these were the strongest he had, but he was waiting for delivery of Proxy, whichwould be available the next day. Then Mr. Kandola gave the Inspector a small sample bottle of pills labelled “Holy Basil” andsuggested he try those as well. Mr. Kandola testified that Holy Basil is a natural herb used to treat inflammation and joint pain. [15] One of the four pills was submitted for analysis and was found to contain an unknown quantity of opium. All four pills togetherweighed approximately one gram. [16] Police executed a search warrant at the Herbalex store early on the afternoon of 1 April 2015.

Mr. Kandola had $595 in cash inhis wallet; that cash included the buy money for the undercover purchase on 31 March. In cross-examination, Mr. Kandola testified thatcash proceeds are put in a pouch and deposited to the bank, but that this may happen as infrequently as once per week. c. Mr. Kandola’s Evidence [17] Mr. Kandola testified that he obtained 65 to 70 Kamini pills from a customer who was known to him. The customer told himthat the pills are usually sold for $5 each. He agreed to sell the pills and split the proceeds with that customer. Mr.

Kandola testifiedthat he recognized the pills as being Kamini, which he had seen before in India. He testified that he knows Kamini to be a naturalAyurvedic medicine made of herbs. He said that he believed that it is Doda, not Kamini, which contains opium. [18] Mr. Kandola could not remember what he said to Inspector Dhot on 19 February about opium, but testified that if he did sayanything about opium it would have been with reference to Doda, not Kamini. He testified that he did not know that the Kamini he soldto Inspector Dhot in February, and again in March contained opium. [19] Mr.

Kandola said that the products he sold in his store came from a number of different sources, and that some products aremanufactured and sold under the Herbalex brand. The business also employs a scientist who is consulted to ensure that the products hesells complies with Health Canada standards. In cross-examination he agreed that the scientist is there to make sure that the productsthey manufacture and sell are legal and will not harm the customers. He testified that the Kamini pills were not analyzed by the scientistbefore they were sold because the scientist did not have time to do it.

He also testified that he knew they were Kamini because theylooked the same as Kamini pills he had seen in India, and he knew that Kamini is an Ayurvedic herbal medicine which is not harmful. The Law [20] The applicable law is relatively straightforward. [21] As was stated long ago by Cartwright J. in Beaver v.

The Queen (SCC), [1957] S.C.R. 531 at p. 541, “(T)heessence of the crime is the possession of the forbidden substance and in a criminal case there is no possession without knowledge of thecharacter of the forbidden substance.” [22] In attempting to show that the accused had knowledge of the character of the forbidden substance here, the Crown need onlyprove the defendant knew that the product he sold to Inspector Dhot contained a controlled substance, not specifically that the substancewas opium: R. v.

Blondin (1971), (BC CA), 2 C.C.C. (2d) 118 (BCCA) at paras. 7, 9 and 43. [23] Given the circumstances of the case at bar, it is also important to note that it is not enough for the Crown to prove only that Mr.Kandola knew or was reckless as to whether there was something in the products he sold which was illegal: Blondin, supra, at paras. 16and 44. [24] Mens rea in this circumstance may be derived from proof of actual knowledge, recklessness, or deemed knowledge byapplication of the doctrine of willful blindness. [25] Recklessness as a basis for criminal liability is to be distinguished from negligence: “…recklessness, to form a part of the criminal mens rea, must have an element of the subjective.

It is found in the attitude of one who,aware that there is a danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite therisk. It is, in other words, the conduct of one who sees the risk and who takes the chance.” R. v. Sansregret, [1985] S.C.R. 570 at para. 18 [26] Intention or recklessness must be proved beyond a reasonable doubt, and either may be negated by the defence of mistake offact: Sansregret, supra, at para. 15. In the circumstances of the case at bar, Mr.

Kandola’s honest but mistaken belief that the productshe sold did not contain a controlled substance, even if unreasonably held, will support the defence of mistake of fact: Sansreget, supra, atpara. 21. The doctrine of willful blindness presumes knowledge, thus negating the defence of mistake of fact.

The basis for itsapplication is distinct from recklessness: …recklessness involves knowledge of a danger or risk, and persistence in a course of conduct which creates a risk that the prohibitedresult will occur, willful blindness arises where a person who has become aware of the need for some inquiry declines to make theinquiry because he does not wish to know the truth. He would prefer to remain ignorant.

The culpability in recklessness is justified byconsciousness of the risk and by proceeding in the face of it, while in willful blindness it is justified by the accused’s fault in deliberatelyfailing to inquire when he knows there is reason for inquiry.” Sansregret, supra, at para. 22.

[27] The courts have cautioned that the doctrine of willful blindness is of “very limited scope. A court can properly find willfulblindness where it can almost be said that the defendant actually knew”: Sansregret, supra at para. 22, quoting with approval a passagefrom Glanville Williams at p. 159. [28] The Supreme Court of Canada returned to the doctrine of willful blindness in R. v.

Jorgensen, [1995] 4 S.C.R , where Sopinka J.held at paragraph 103 that “a finding of willful blindness involves an affirmative answer to the question: Did the accused shut his eyesbecause he knew or strongly suspected that looking would fix him with knowledge?” [29] In R. v. Briscoe, 2010 SCC 13, the court grappled with the application of the doctrine of wilful blindness to party liability formurder.

At paragraph 24 of that judgment the court adopted Professor Don Stuart’s characterization of willful blindness as “deliberateignorance”, which Stuart described further as “an actual process of suppressing suspicion.” Analysis [30] In this case, the Crown argues that Mr. Kandola’s statement that the pills he sold to the Inspector contained opium is directevidence that he knew the nature of the substance he was selling on both 19 February and 31 March. In the alternative, Crown submitsthat Mr.

Kandola was reckless as to the nature of the substance, or that by operation of the doctrine of willful blindness, he is deemed tohave known that the pills contained a controlled substance. In support of her submission that the court find at least recklessness here, orthat Mr. Kandola assumed a posture of deliberate ignorance in an attempt to insulate himself from criminal liability, she points to hisevidence that he failed to test the pills for safety and compliance with Health Canada guidelines before making them available for sale.

In addition to the cases already referred to here, the Crown relies on the decision of our Court of Appeal in R. v. Schepannek, 2012BCCA 368. [31] Defence counsel reminds that I must apply the reasoning in R. v. W.D. (SCC), [1991] 1 S.C.R. 742 given thatMr. Kandola has testified and denied that he knew the pills contained opium. Defence counsel relies in part on Mr. Kandola’s prior goodcharacter and lack of a criminal record, and questions the very premise that this man would have knowingly engaged in the sale of acontrolled substance from the storefront of his long established family business.

The defence argues that I should accept Mr. Kandola’sevidence that he would not have said that Kamini contained opium, as well as his testimony that he knew from his own knowledge andexperience that the pills he purchased from his customer were an herbal product called Kamini.

Defence counsel also submits that Mr.Kandola had no reason to suspect that the pills contained a controlled substance; at most, the failure to test the pills might be a regulatorymatter, but it is not evidence that he was put on notice that an inquiry was needed to determine whether the pills contained a substanceprohibited under the CDSA. [32] I have carefully considered Inspector Dhot’s evidence of his conversation with Mr. Kandola on 19 February, as well as Mr.Kandola’s testimony that he would not have said that the Kamini pills contained opium.

This is the only direct evidence capable ofsupporting a finding that Mr. Kandola actually knew that he was selling an opium product. The Inspector is a trained UCO, but his noteswere made three hours after his meeting with Mr. Kandola. In that conversation, the two of them discussed both Doda and Kamini ataround the same time. Inspector Dhot’s notes are not a verbatim record, and they make no mention of a physical gesture whichconfirmed for the Inspector that Mr. Kandola was saying that the Kamini pills contained opium.

I would expect that something asimportant as that would have found its way into the Inspector’s notebook. That evidence appears to be a more recent reconstruction ofthe event, and for that reason it lacks reliability. I cannot find that there is sufficient reliable evidence that Mr.

Kandola said that thepills contained opium. [33] Turning to the question of criminal liability premised on recklessness, it is useful to return to the definition set down by theSupreme Court of Canada in Sansregret at paragraphs 18 and 22: “recklessness involves knowledge of a danger or risk, and persistencein a course of conduct which creates a risk that the prohibited result will occur. It is, in other words, the conduct of one who sees therisk and who takes the chance.” [34] The Crown argues that Mr.

Kandola saw the risk that the Kamini pills might contain an illegal substance which in turn mightcause harm, yet he chose to sell the pills without putting them through the vetting process he employed for other products that he sold. Standing against that proposition is Mr. Kandola’s evidence that he knew the pills were Kamini and that they were safe. I understandthat Mr. Kandola was aware of certain Health Canada standards which applied to his products, but there is no evidence before me that hehad ever felt the need to vet natural herbal products for the presence of a substance prohibited by the CDSA.

The risk that Mr. Kandolaadverted to was the risk that the pills might possibly run afoul of regulatory rules which governed his business. I accept his evidence thathe subjectively believed that the pills were an Indian herbal supplement called Kamini, which he believed to be a safe product. I alsoaccept his evidence that he never considered that the Kamini might contain a prohibited drug like opium. On this analysis, Mr. Kandolais also entitled to the benefit of the defence of mistake of fact.

I find that in this case he honestly believed that the pills he sold to theInspector were a safe herbal supplement and nothing more. [35] It is useful to consider and distinguish the facts in R. v. Schepannek, where the accused was convicted at trial of traffickinghashish and marijuana. Ms. Schepannek’s husband was housed in a Provincial remand facility. He asked her to bring him a package oftobacco, which she knew to be against the rules which prohibit the bringing of contraband into Provincial jails. He told her she wouldreceive a phone call from a man who would meet with her and pass along the package.

She later received the call and met him in avehicle where she was given the package, which she then left unopened on top of her fridge before bringing it to the jail. She testifiedthat she believed the package contained tobacco, and she did not know that it contained drugs. The trial judge rejected her evidence thatshe believed she was only delivering tobacco, but also found that the Crown had not proved actual knowledge. The court went on toconclude that Ms.

Schepannek was reckless as to the nature of the substance inside the package, citing her evidence in cross-examinationthat she knew cocaine or even a weapon might be in the package but chose not to look inside, that she knew nothing of the man whodelivered the package to her, and her knowledge that she was part of an unlawful arrangement to move contraband into the jail. TheCourt of Appeal found that the trial judge’s finding was firmly grounded in that evidence. [36] Here, Mr.

Kandola accepted the pills from a customer who was known to him and he believed, based on his knowledge andexperience, that they were Kamini, in his mind a lawful and harmless herbal remedy. There is no evidence before me that Mr. Kandola

ever adverted to the possibility that an illegal drug might be mixed into those pills, and that having adverted to that risk, he went ahead and “took the chance.” On the opposite side of the ledger, there is evidence before me that Mr. Kandola made this sale at the front counter of his storefront business, openly and in a non-surreptitious manner, in the normal and ordinary course of his business, and to a man who was apparently a customer who had just walked in off the street. [ 37 ] I will turn now to the doctrine of willful blindness.

I remind myself that the defence of honest mistake of fact is negated where the court finds that the doctrine applies to impute actual knowledge to the accused. [ 38 ] In this particular case, to find Mr.

Kandola guilty of these offences I must be able to conclude on the evidence that he “shut his eyes because he knew or strongly suspected that looking would fix him with knowledge.” The critical aspect of the doctrine is that the accused must have strongly suspected not just that he was selling something that might be illegal, but quite specifically that he knew or strongly suspected that the pills contained a prohibited controlled substance, and that an inquiry would fix him with that knowledge, such that it can almost be said that he “actually knew” this to be so. [ 39 ] I have found that the Crown has not proved beyond a reasonable doubt that Mr.

Kandola knew that the pills contained opium or that he was reckless in that respect. In doing so, I have accepted Mr. Kandola’s evidence that he honestly believed that the pills were Kamini, which he knew to be a harmless Indian herbal remedy. I cannot find in this evidence proof beyond a reasonable doubt that Mr. Kandola deliberately failed to inquire to determine whether the pills contained a controlled substance, the possession and sale of which is prohibited in the CDSA . To the contrary, I find that this possibility did not enter Mr. Kandola’s mind. I am unable to infer that Mr.

Kandola’s conduct was an effort to make himself “deliberately ignorant” of the true nature of the substance he sold to Inspector Dhot. [ 40 ] I find Mr. Kandola not guilty of the two counts of trafficking in a controlled substance. _________________________ The Honourable Judge M. Jetté Provincial Court of British Columbia