HER MAJESTY THE QUEEN - v. –, 2011 NBPC 34

IN THE PROVINCIAL COURT OF NEW BRUNSWICK JUDICIAL DISTRICT OF ST. STEPHEN Citation: 2011 NBPC 34 Date: September 30 th , 2011 Case No. 02745704 BETWEEN: HER MAJESTY THE QUEEN - AND – SAVITA SINGH-MURRAY, JOSEPH VAUGHN MCCLUSKEY, MOHAMED HABIB YUSUF and RAVINDRA HARIPRASAD Before: The Honourable Judge William J. McCarroll Date of Decision: September 30 th , 2011. Appearances: Monica McQueen and Jill Hartlen for Her Majesty the Queen Randall A. Wilson for Savita Singh-Murray Joel Hansen for Joseph Vaughn McCluskey Patrick Hurley for Mohamed Habib Yusuf John King for Ravindra Hariprasad MCCARROLL, Prov.

Ct.J. [ 1 ] The defendants are charged that they did between the 5 th day of October, 2007 and the 11 th day of May, 2009, both dates inclusive, at or near St.

Stephen, County of Charlotte, and Fredericton, County of York, all in the Province of New Brunswick, and elsewhere within the Province of New Brunswick, at or near Milton, Oakville and Scarborough, all in the Province of Ontario, and elsewhere within the Province of Ontario, did unlawfully conspire together, the one with the others and with others unknown, to commit unlawful acts in the United States of America, to wit: encouraging or inducing an alien to come to, enter or reside in the United States, knowing or

in reckless disregard of the fact that such coming to, entry or residence is or will be in violation of the law, the whole contrary to Title 8,United States Code,

Section 1324(a)(1) and (2), conduct which, if committed in relation to Canada would constitute an indictable offencecontrary to

section 117 and

section 131 and 124(1)(

a) of the Immigration and Refugee Protection Act, S.C. 2001, c.27, when read inconjunction with section 18(1) of the said Act and with regulation 27 of the Immigration and Refugee Protection Regulations(SOR/2002-227), as amended, and did thereby, pursuant to Section 465(3) of the Criminal Code, commit an indictable offence contraryto and in violation of Section 465(1)(

c) of the Criminal Code and amendments thereto. [2]

Section 465 of the Criminal Code defines a conspiracy. It reads as follows: 465.

(1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy: (

c) every one who conspires with any one to commit an indictable offence not provided for in paragraph (

a) or (

b) is guilty of anindictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, beliable. [3] And referring specifically in this case to Section 465(3) which reads: Every one who, while in Canada, conspires with any one to do anything referred to in subsection (1) in a place outside Canada that is anoffence under the laws of that place shall be deemed to have conspired to do that thing in Canada. [4] The Supreme Court of Canada dealt with the issue of what constitutes a conspiracy in R. v. O’Brien (1954), (SCC),110 C.C.C. 1; Papalia v.

The Queen, [1972] 2 S.C.R. 256 and United States of America v. Dynar, (SCC), [1997] 2S.C.R. 462. [5] In the case of O’Brien the Supreme Court adopted the following definition of conspiracy first put forward in the 1868 House ofLords decision of R. v. Mulcahy (1868), L.R. 3 H.L. “A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do alawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect,the very plot is

an act in itself, and the act of each of the parties…punishable if for a criminal object.” [6] In Papalia v. The Queen, the Supreme Court provided further guidance as to what constitutes a conspiracy. “The word “conspire” derives from two latin words, “con” and “spirare”, meaning “to breathe together”. To conspire is to agree. Theessence of criminal conspiracy is proof of agreement. On a charge of conspiracy the agreement itself is the gist of the offence: Paradis v.R., at p. 168. The actus reus is the fact of agreement: D.P.P. v. Nock, at p.66.

The agreement reached by the co-conspirators maycontemplate a number of acts or offences. Any number of persons may be privy to it. Additional persons may join the ongoing schemewhile others may drop out. So long as there is a continuing overall dominant plan there may be changes in method of operation,personnel or victims, without bringing the conspiracy to an end.

The important inquiry is not as to the acts done in pursuance of theagreement, but whether there was, in fact, a common agreement to which the acts are referable and to which all of the alleged offenderswere privy.” [7] And finally in the United States of America v. Dynar, the Supreme Court had this to say: “There must be an intention to agree, the completion of an agreement and a common design…conspiracy is in fact a more “preliminary”crime than attempt, since the offence is considered to be complete before any acts are taken that go beyond mere preparation to put thecommon design into effect.

The Crown is simply required to prove a meeting of the minds with regard to a common design to dosomething unlawful, specifically the commission of an indictable offence.” [8] The fact that this charge is laid pursuant to Section 465(3) presents an additional onus on the Crown to prove beyond a reasonabledoubt that the accuseds conspired to commit an offence contrary to a United States law and that the conduct which would haveconstituted that offence in the United States would also be an offence in Canada. [9] The Supreme Court of Canada decision Bolduc v.

Quebec (Attorney-General), (SCC), [1982] 1 S.C.R. 573provides direction as to how to approach this issue. Simply put, the Crown must prove not that the Canadian and American offences areidentical in all their facets, but rather that the way the accuseds committed the offence would be considered criminal under bothAmerican and Canadian law. [10] The American law referred to in the charge and the

section relied upon by the Crown is

Section 1324(a)(2) of Title 8, United StatesCode, dealing with the “Bringing in and Harboring Certain Aliens”. That

section reads as follows: “

(2) Any person, who, knowing or in reckless disregard of the fact that an alien has not received prior official authorization to come to,enter, or reside in the United States, brings to or attempts to bring to the United States in any manner whatsoever, such alien, regardlessof any official action which may later be taken with respect to such alien shall, for each alien in respect to whom a violation of thisparagraph occurs (

A) be fined in accordance with Title 18 or imprisonment not more than one year or both.”

[11] The Canadian equivalent to the American legislation is

section 117 of the Immigration and Refugee Protection Act, S.C. 2001,chapter 27. It reads as follows: “No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of avisa, passport, or other document required by this Act.” [12]

Section 117 has been interpreted by the higher courts as requiring proof of a specific intent. [13] When encompassed by and included in a conspiracy charge, the specific intent requirement according to United States of America v.Dynar, previously cited, is as follows: “If there is evidence of a belief by the accused that the person being smuggled is without documents, it is not necessary for the Crown toprove that the person who is the subject of the conspiracy did not have the required documents.

For purposes of proving conspiracy, abelief by a member of the conspiracy that the person being smuggled did not have the required documents is sufficient to establish thatthe purpose of the conspiracy was to breach

section 117 of the I.R.P.A.” [14] Binding case law makes it clear that the above requirements of “proof of belief” may be proven by circumstantial evidence, or byapplying the doctrine of “wilful blindness”. [15] In this case the Crown is relying on circumstantial evidence to establish the belief by the accuseds that the persons being smuggledwere without documents and the Crown takes the position that a belief by members of the conspiracy that the person or persons beingsmuggled did not have the required documents is sufficient to establish that the purpose of the conspiracy was to breach

section 117 ofthe Immigration and Refugee Protection Act, referring back to the words of Mr. Justice Malloy in the Dynar decision. [16] The Crown maintains it is not relying on the “doctrine of wilful blindness” to prove the issue of belief. It argues that it has provenbeyond a reasonable doubt based on inferences drawn from circumstantial evidence that the accuseds did in fact believe that the migrantsdid not have valid documents to enter the U.S. The Court accepts the Crown’s argument and finds that the proof of belief requirement asenunciated in the United States of America v. Dynar has been met.

One only has to look at the exorbitant amounts of money being paidby the migrants and the manner of transportation to come to this conclusion beyond a reasonable doubt. [17] Turning to the proof requirements for a conspiracy charge in general the Supreme Court of Canada decision R. v. Carter, (SCC), [1982] 1 S.C.R. 938 and the N.B. Court of Appeal decision R. v. Black (2010), 2010 NBCA 36 , 255 C.C.C.(3d) 62 (N.B.C.A.) are very helpful. A three stage inquiry must be conducted to determine whether the acts or statements of co-conspirators can be admitted as evidence establishing ultimate guilt or innocence.

This so-called “Carter” inquiry begins with twoquestions which must be answered in sequence and in the affirmative before the acts and statements of all co-conspirators done or madein furtherance of the conspiracy may be considered in determining guilt beyond a reasonable doubt. [18] Step one requires the Court to be satisfied beyond a reasonable doubt based on all the evidence that the conspiracy exists. [19] Once satisfied beyond a reasonable doubt, based on all the evidence, that the conspiracy exists the Court must then decide on thebalance of probabilities whether each accused is a member of the conspiracy.

At this stage of the proceedings the Court can onlyconsider evidence that is directly admissible against each individual, i.e., conversations and acts in furtherance of the conspiracy;evidence seized as a result of valid search warrants and/or wiretaps or taped conversations.

The law is clear however that statements, inparticular, confessions made by co-accused to the police implicating other members of the conspiracy are not admissible against othermembers of the conspiracy, but only against the maker of the statement. [20] Moving on to step three of the Carter test if the Court is satisfied that there is in fact a conspiracy and that each accused is probablya member of the conspiracy, it can then consider the acts and/or declarations of the other co-conspirators (which would normally beconsidered hearsay) in furtherance of the conspiracy to decide ultimate guilt or innocence beyond a reasonable doubt. [21] Before moving on to a consideration of the first part of the Carter test an assessment of the reliability and credibility of the keywitnesses is appropriate.

The key witnesses in this case are Lloyd Laking, Sergeant Chubbs and Sergeant Doyle. [22] I will deal with Lloyd Laking first. It’s fair to say that without Lloyd Laking this conspiracy to smuggle humans into the UnitedStates may have gone unnoticed by the police. Defence counsel have made no attempt to conceal their contempt for Mr. Laking. Tothem, he is a pariah, a totally despicable character with no little or no credibility. He has 75,000 reasons to lie. Unlike Judas, who soldout Jesus for 30 pieces of silver, Mr.

Laking’s price was $75,000.00 to sell out his long time friend, Joseph Vaughn McCluskey. [23] The Crown described Mr. Laking as an unsavory witness but one who for the most part told the truth. He was far from a “pure”witness to use the Crown Attorney’s words. I have reviewed Mr. Laking’s testimony in great detail. There is no question hisrecollection of dates was a problem, as well as his attempts to dodge the question of his sexual interest in one of the co-conspirators,Savita Singh-Murray.

In fact, one could argue that he was caught in a lie in relation to that issue. [24] There is no question he was a witness who had a special interest in the outcome of the case, more so than any of the otherwitnesses. Because of this the Court, mindful of the warning in the case of R. v. Vetrovec, (SCC), [1982] 67 C.C.C. (2d)1 (S.C.C.) when dealing with witnesses of this type, looked for corroboration wherever possible, and found that most of his testimonywas corroborated by reliable evidence. Not only that, in terms of the conspiracy alleged in the charge, his involvement was relativelyminor.

[ 25 ] According to the evidence Mr. Laking initially was not aware of or involved in this criminal conspiracy. He came upon it quite by accident because of his close association with Joseph Vaughn McCluskey. He and Mr. McCluskey had been friends for decades and there is no suggestion in the evidence that their friendship was not ongoing at the time he inserted himself into this situation. It was Mr. McCluskey who requested the assistance of his old friend Mr. Laking and Mr. Laking responded accordingly. [ 26 ] The bottom line is this. I have reviewed Mr.

Laking’s testimony very carefully, and as much as the Court views him in the same light as defence counsel as an unsavory witness with a criminal record and 75,000 reasons to lie or enhance his testimony, I find his testimony for the most part to be credible and reliable as it relates to his association with Ms. Singh-Murray, Joseph Vaughn McCluskey and the conspiracy. His evidence in relation to the young dark skinned woman known as Sasha, staying with Mr. McCluskey, is likewise credible. Photographs support his testimony in this regard. [ 27 ] Mr.

Laking’s involvement commenced when his assistance was requested by an old friend and he responded to that request, which led to the initial meeting with Ms. Singh-Murray at McCluskey’s apartment, subsequent meetings and faxes and the final face-to-face meeting with the undercover officers at Tim Hortons in Fredericton on June 18 th , 2008. Mr. Laking did not create the evidence. It was already there waiting to be discovered.

He simply took advantage of an old friend and an opportunity to make a substantial amount of money. [ 28 ] Turning to an evaluation of the testimony of the other key witnesses, undercover officers Chubbs and Doyle, I found their testimony to be credible and for the most part reliable. I have concerns about the accuracy of Doyle’s evidence relating to his first phone conversation with Savita Singh-Murray on May 13 th , 2008. He testified that Ms. Singh-Murray talked about a young female that she had that she wanted smuggled into the United States.

I believe the officer was referring to “Sasha”, whom I’m satisfied was Sachie Chitraban who did not arrive in Fredericton until June of 2008. I found his testimony quite confusing in relation to this issue. All in all, however, I found the testimony of Sergeant Doyle and Sergeant Chubbs to be straightforward and reliable. Both officers made copious notes of their meetings with Ms. Singh-Murray and the other co-conspirators and I find their evidence to be credible and reliable. [ 29 ] As far as the other Crown witnesses are concerned, I have no difficulty accepting their testimony as accurate and reliable.

In particular, I refer to the testimony of Mr. Neville, an expert in U.S. Immigration Law, whose testimony related to the underlying similarity between

Section 117 of the Immigration and Refugee Protection Act of Canada and

Section 1324(a)(2) of Title 8, United States Code . I found him to be a very knowledgeable and reliable witness and based on his testimony I am satisfied there is sufficient similarity between the Canadian and American legislation to satisfy the requirements of this conspiracy charge. [ 30 ] Having completed my assessment of the credibility and reliability of the key Crown witnesses I will now turn to the first of the Carter tests. [ 31 ] The Court must be satisfied beyond a reasonable doubt that the conspiracy as charged exists.

I find as a fact that the evidence as a whole satisfies me beyond a reasonable doubt that there was in fact a conspiracy to smuggle humans into the United States from Canada as alleged in the Information and during the timeframe alleged in the Information. [ 32 ] In coming to this conclusion I have considered the evidence of Lloyd Laking, Sergeant Chubbs and Sergeant Doyle as well as the recorded and unrecorded conversations with Savita Singh-Murray and the circumstances surrounding the attempt to smuggle the Nabis into the United States on December 4 th , 2008 involving initially Savita Singh-Murray and thereafter Mohamed Yusuf and Ravindra Hariprasad. [ 33 ] Based on all of the evidence I am satisfied beyond a reasonable doubt that a conspiracy existed to smuggle humans from Canada into the United States during the timeframe in the Information. [ 34 ] Moving on to the second part of the Carter inquiry, the Court must decide on the balance of probabilities whether each accused is a member of the conspiracy.

In this regard I can only consider evidence which is directly admissible against each of the alleged conspirators or unindicted co-conspirators. [ 35 ] Applying the admissible evidence to the four named accused, and to the unindicted co-conspirator, Sachie Chitraban, I am satisfied beyond a reasonable doubt that all of the above were probably members of the conspiracy as set out in the Information.

My reasons are as follows. [ 36 ] With regard to Savita Singh-Murray the evidence is overwhelming that she was a part of the conspiracy to smuggle humans into the United States during the dates alleged. [ 37 ] I have considered the initial meeting between Ms. Singh-Murray and Laking at McCluskey’s apartment wherein the smuggling of humans into the United States was the topic of discussion at the behest of Ms. Singh-Murray. Prices were discussed as well as methods of delivery of the human cargo. It was clear from the evidence of that first meeting that Ms.

Singh-Murray was attempting to find someone, in this case, Laking, to smuggle humans illegally into the United States. [ 38 ] There was a further meeting at a church yard in Andersonville between Laking and Ms. Singh-Murray where the topic of discussion was the smuggling of humans into the United States. At that time Ms. Singh-Murray was offering to pay Laking up to $5,000.00 to smuggle humans into the United States. They agreed to carry on further discussions.

In order to accommodate those further discussions a code name of “Adam” was agreed upon for Lloyd Laking. [ 39 ] In November and December of 2007 Laking received four faxes from a person I am satisfied was Ms. Singh-Murray, all of which related to upcoming smuggling operations in relation to both humans and drugs. The first of those faxes from Ms. Singh-Murray used the code name “Adam”, referring to Mr. Laking. [ 40 ] Perhaps the strongest evidence of her involvement in this conspiracy comes from a recorded meeting which took place at a Tim Hortons restaurant in Fredericton on June 18 th , 2008. Mr.

Laking, undercover officers Doyle and Chubbs posing as truck drivers for

hire, and Ms. Singh-Murray, discussed the conspiracy in great detail. It is not necessary to go into detail about the recorded conversation as it speaks for itself, but it is clear from her own words, that Ms. Singh-Murray was at that time an active member of this human smuggling conspiracy, which had connections through her brother-in-law to Ontario. She admitted that she had a girl in Fredericton at that moment waiting to be smuggled into the United States that had been sent to Fredericton from Ontario.

The undercover officers refused her clear request to smuggle that girl into the United States because according to them it was not worth it to smuggle just one person. [ 41 ] After the meeting at which I’m satisfied they agreed to do business together, Ms. Singh-Murray went directly to Vaughn McCluskey’s apartment and retrieved the girl, whom I am satisfied by other reliable evidence was Sachie Chitraban. [ 42 ] Over the next few months there were ongoing phone conversations between Ms.

Singh-Murray and the undercover officers, all having to do with the smuggling of humans. [ 43 ] During a phone call in November of 2008 Ms. Singh-Murray provided the phone number for her Ontario contact to the undercover truck driver. She told him to ask for “John”, (obviously another code name) and to call him in the afternoon and that there were two people waiting to be smuggled into the United States. This evidence clearly implicates Ms.

Singh-Murray in the attempted smuggling of the Nabis, because it was she who in effect through the name and phone number set up the meeting between the undercover officers and her brother-in-law, “John”, (Mr. Yusuf) in Ontario. [ 44 ] After the botched attempt to smuggle the Nabis, Ms. Singh-Murray complained to the undercover officers that she had not been paid her share for her

part in setting up the Nabi smuggling, further evidence of her involvement in the conspiracy stretching to Ontario and including her brother-in-law. [ 45 ] Further phone calls and in person meetings with the undercover officers revealed that as late as the spring of 2009, she was still involved in the human smuggling operation. [ 46 ] Upon her arrest a fax machine was seized at her residence and an analysis of her cell phone records showed several phone calls which I am satisfied were related to the ongoing smuggling operation. [ 47 ] Based on this evidence and the totality of the evidence, I am satisfied on the balance of probabilities that Ms.

Singh-Murray was a member of this conspiracy to smuggle humans to the United States. [ 48 ] The evidence against Mr. Yusuf is overwhelming. His conversations with the undercover officers and overt actions in relation to the Nabis clearly show his involvement with this conspiracy. In addition to the Nabi smuggling incident, Mr. Yusuf claimed credit for the smuggling efforts related to Sachie Chitraban. [ 49 ] He spoke to the undercover officers about future smuggling opportunities where if they cut Savita Singh-Murray out of the deal, they could take her share of the profit, which according to Mr.

Yusuf amounted to $500.00 per person smuggled. [ 50 ] He told the officers he was the person responsible for getting the migrants into the United States. He referred to himself in businesslike terms as a middleman. [ 51 ] At the time of his arrest cell phones were seized and analyzed and clearly showed a connection to the other members of the conspiracy.

In particular, a series of phone calls between June 11 th and 18 th , 2008 to and/or from the McCluskey residence in Fredericton, where Sachie Chitraban was staying waiting to get smuggled into the U.S., shows his connection to that specific smuggling incident which was to be completed by his sister-in-law, Savita Singh-Murray.

In his conversation with the undercover officers, he took credit for that operation. [ 52 ] He bragged to the officers about the numbers of migrants he smuggled into the United States on a weekly basis. [ 53 ] All of the above evidence, as well as the totality of the evidence directly admissible against Mr. Yusuf, clearly shows his involvement in the conspiracy on the balance of probabilities. [ 54 ] Turning to Ravindra Hariprasad, the evidence is overwhelming as to the attempted smuggling of the Nabis. He was the driver of the vehicle containing the Nabis.

He paid the undercover officers for their smuggling services. The amount he paid them was far in excess of what it would cost someone who had papers and was being legally transported to the United States. The manner of the transfer of the Nabis in the parking lot in Ontario, from the van to the transport truck, was clearly suspicious to the point that it is inconceivable that Mr.

Hariprasad would not have known what was going on and that these people did not have proper papers. [ 55 ] At the time of his arrest, his cell phones were seized and analyzed and the phone calls to and/or from the McCluskey residence between June 11 th to the 18 th , 2008, while Ms. Chitraban was waiting to be smuggled, clearly shows his involvement with that particular incident. It is of note that it was he who agreed to be her guarantor for immigration purposes just a few days before and had agreed that she would remain at his house in Ontario.

Within a few short days she was sitting in Fredericton waiting to be smuggled into the United States. After her departure on the 18th of June, 2008 with Ms. Singh-Murray, there were no further calls to or from McCluskey’s apartment to Mr. Hariprasad’s cell phone. [ 56 ] Mr. Hariprasad’s connection to Mr. Yusuf, a co-conspirator, is clearly proven by his dealings with Mr. Yusuf on the day of the delivery of the Nabis, as well as the analysis of his phones which showed repeated phone calls to/from Mr. Yusuf’s cell phones. All of this evidence satisfies me on the balance of probabilities that Mr.

Hariprasad was a member of this conspiracy. [ 57 ] The evidence against Mr. McCluskey is likewise very strong as it relates to the probability of his involvement in the conspiracy. It was his conversation with Laking that ultimately led to the meeting between Laking and Ms. Savita Singh-Murray at his apartment in Fredericton, where human smuggling was discussed. Mr. McCluskey harbored Sachie Chitraban in his apartment in Fredericton for a

number of days at the request of Savita Singh-Murray. He took money from her for her services. On June 18 th , 2008 after her meeting with Mr. Laking and the undercover officers Ms. Savita Singh-Murray went directly to McCluskey’s apartment and left with the young lady whom I am satisfied was Sachie Chitraban. This occurred almost immediately after Ms. Singh-Murray was unsuccessful in convincing the undercover officers to smuggle Ms. Chitraban into the United States. During the time that Ms.

Chitraban was at McCluskey’s apartment in Fredericton, numerous phone calls were made to/or from his phone to phones registered in the names of Ravindra Hariprasad and Mohamed Yusuf. [ 58 ] Based on all of this evidence and the totality of the evidence, on the balance of probabilities I am satisfied that Mr. McCluskey was probably a member of the conspiracy. [ 59 ] As far as the girl who was staying at Mr. McCluskey’s apartment is concerned, I am satisfied that she was Sachie Chitraban and that she was there for one reason, to be smuggled into the United States with the assistance of Ms. Singh-Murray.

I have no doubt that as the smugglee she was probably a member of the conspiracy. [ 60 ] Having come to the conclusion that the aforementioned parties were probably members of the conspiracy to smuggle humans into the United States during the dates alleged in the Information, the Court can now turn its attention to the final part of the so-called Carter test. [ 61 ] At this point the Court is permitted to consider the acts done by and/or declarations made by the other named and unnamed conspirators to determine guilt or innocence beyond a reasonable doubt. [ 62 ] It is only necessary to refer to the overwhelming evidence against Ms.

Singh-Murray which I have already referred to previously to justify the Court’s conclusion that the Crown has proven its case beyond a reasonable doubt. Ms. Singh-Murray spoke of her connections to Ontario in the person of her brother-in-law, whom she referred to by the code name “John”. She provided the phone number and the code name “John” to the undercover officer for the purpose of smuggling the Nabis into the United States. She told the officer that the best time to call her contact “John” (Mohamed Yusuf) was during the afternoon.

She complained continuously to the undercover officers after the Nabis were taken into custody that she had not received her share of the money for the botched smuggling attempt. The evidence against Ms. Singh-Murray in its totality as it relates to her involvement in this conspiracy is, as I said, overwhelming.

I am satisfied beyond a reasonable doubt that there was an agreement in place between herself and her brother-in-law, Mohamed Yusuf - code name “John”, to smuggle humans into the United States and I am further satisfied that she knew that the people she was a party to smuggling did not possess the required documents allowing legal entry into the United States. [ 63 ] As far as Mohamed Yusuf is concerned the evidence is overwhelming as to his guilt beyond a reasonable doubt.

One only has to look at what took place between himself and the undercover officers on two occasions in Ontario to come to the conclusion beyond a reasonable doubt that he was a member of this conspiracy. It is clear from all of the evidence he was working with his sister-in-law, Savita Singh-Murray, in this endeavor. He took credit for the smuggling attempt in Fredericton in 2008 where Ms. Sachie Chitraban was to be smuggled into the United States with the assistance of his sister-in-law, Savita Singh-Murray.

He suggested to the undercover officers they might consider cutting his sister-in-law, Savita Singh-Murray, out of future human smuggling operations so they could claim her share of the profits of $500.00 per person. He bragged about the numbers of people he smuggled on a weekly basis. His agreement to work with his sister-in-law, Savita Singh-Murray, in this endeavor is made clear by her providing to the undercover officers his contact phone number and code name “John” for the purposes of smuggling the Nabis illegally into the United States.

Considering the totality of the evidence, I am satisfied beyond a reasonable doubt that Mohamed Yusuf was an integral part of this conspiracy to smuggle humans during the dates charged and that he believed at the time the smugglees did not have the required documents and I find him guilty as charged. [ 64 ] As far as Ravindra Hariprasad is concerned, based on all of the evidence, I find him guilty as charged. I am satisfied he was working with Mohamed Yusuf and Savita Singh-Murray at least on two occasions to smuggle humans into the United States knowing full well they did not have the required documents.

The evidence connecting him with the attempted smuggling in New Brunswick of Sachie Chitraban (for whom he had posted a bond only a few days before) is very strong and provides crucial evidence as to his connection with Mohamed Yusuf. Between June 11 th and June 18 th , 2008, numerous phone calls were made to/from the McCluskey apartment in Fredericton (where Sachie Chitraban was staying waiting to be smuggled), to the two cell phones registered to Mr. Ravindra Hariprasad. The calls ceased after Ms. Savita Singh-Murray drove to Mr.

McCluskey’s apartment on June 18 th , 2008 and left with the young lady, who I am satisfied was Sachie Chitraban. The connection between Mr. Hariprasad and Mohamed Yusuf in this smuggling endeavor is evidenced by the fact that at the same time these calls were being registered to McCluskey’s and Hariprasad’s phones, they were also going to/from Mr. Yusuf’s cell phone. The phone communication between McCluskey’s phone and Mr. Yusuf’s cell phone ceased on June 18 th , 2008 after Ms. Singh-Murray left with the girl, Sachie Chitraban. Mr.

Mohamed Yusuf claimed credit for that smuggling operation involving Sachie Chitraban when he spoke to the undercover officers on November 20 th , 2008. This clearly shows the connection between Mr. Yusuf, Mr. Hariprasad and Savita Singh-Murray in the whole operation. [ 65 ] Mr. Hariprasad’s involvement in the attempted Nabi smuggling is uncontradicted. He took an active part with Mohamed Yusuf in this endeavor driving the Nabis to the transfer point, paid the undercover officer thousands of dollars, and then turned them over to the truckers to be smuggled into the United States.

The seizure and analysis of his cell phone revealed an ongoing connection to Mohamed Yusuf, the self-described middleman in this smuggling operation. [ 66 ] After considering all of the evidence in relation to Mr. Ravindra Hariprasad’s involvement in this conspiracy to smuggle humans into the United States during the stated dates, I am satisfied beyond a reasonable doubt that he believed the migrants did not have proper papers to legally enter the United States and that he was an active member of the conspiracy during the dates alleged and I find him guilty as charged. [ 67 ] The evidence against Mr.

McCluskey, although sufficient to have made a finding of probable guilt, is not in my opinion sufficient to make a finding of guilt beyond a reasonable doubt. It is my impression that he was simply being used by Ms. Singh-Murray without a full appreciation of what was really going on. I find him not guilty.

DATED at the Town of St. Stephen, in the County of Charlotte and Province of New Brunswick, this 30 th day of September, 2011. William J. McCarroll Judge of the Provincial Court of New Brunswick