R. v. Kanagarajah et al., 2012 ONCJ 636

COURT FILE No.: Region of Durham: 998 10 25055 DATE: 2012-10-12 Citation: R. v. Kanagarajah et al. , 2012 ONCJ 636 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — Rajitha Kanagarajah, Ramanan Kenegarajah, Anantha Neeranjan, Hariharan Nesarajah, and Kuhen Neshan Before Justice J. De Filippis Heard on May 10, 12, 17, June 7, 9, July 25, October 14, November 1, 7-9, 18, 25, 28-30, December 1, 5-9, 2011; March 2, 9, 16, 22, July 25, 26, 2012 Reasons for Judgment released on October 12, 2012 Mr. M.

Flagg ............................................................................................................. for the Crown Ms J. Rekai ............................................................................. for the accused Rajitha Kanagarajah Mr. R. Pillay ......................................................................... for the accused Ramanan Kenegarajah Mr. D. Basile .............................................................................. for the accused Anantha Neeranjan Mr. D.

Santoro ......................................................................... for the accused Hariharan Nesarajah Mr. B. Olmstead ................................................................................. for the accused Kuhen Neshan De Filippis, J.: 1. Introduction [ 1 ] The five defendants were tried on an Information containing over 100 fraud related counts in a hearing that lasted 28 days over a period of about 18 months. [1] The Crown called 47 witnesses and tendered 134 exhibits, including six books of documents. The defendants elected not to call evidence.

During the trial I ruled on the admissibility of certain records contained in the six books of documents. I entertained and dismissed an application for bail brought by the two defendants who are in custody [2] . I also conducted a voir dire and found that three police officers had breached my order not to discuss their evidence with each other. [ 2 ] It will be helpful to begin by setting out the relationship among the defendants, a

summary of the charges, and the position of the parties. Ramanan Kenegarajah (whose surname once was Kanagarajah) is the brother of Rajitha Kanagarajah. The latter is married to Hariharan Nesarajah.

Kuhen Neshan is married to Anantha Neeranjan. [ 3 ] There are several counts that implicate some or all defendants in offences over many years: Count 1 - all defendants, between 2001 and 2010- fraud on the public, over $5,000.00, Count 2 - all defendants, during this same nine year period - conspiracy to commit fraud through the use of fraudulent credit cards; Counts 3 to 10 - Neshan and Kenegarajah, during this same nine year period - fraud with respect to eight specific financial institutions; Count 64 - Neshan and Kenegarajah, during this same nine year period - Personation; Count 92 - all defendants, between 1997 and 2010 - Money Laundering; Count 54 - all defendants, between 2005 and 2010 - being a member of a criminal organization; Count 94 - Neshan, Kenegarajah, and Neeranjan, between 2009 and 2010 - fraud on Avis (car rental); Count 95- Neshan and Kenegarajah, during this same two year period - unlawful possession of a credit card in the name of Decruz (from Sears); [ 4 ] There are numerous counts that allege offences on March 3, 2010: Counts 11 to 53 - Neshan and Kenegarajah - possession of 43 specific credit cards obtained by the commission of an offence; Count 55 - Neshan, Kenegarajah, and Neeranjan - possession of property by crime (furniture, electronics, and appliances); Count 56 - Neshan and Kenegarajah - possession of property by crime (furniture, electronics, and appliances); Count 57 - Neshan, Kenegarajah, and Neeranjan - possession of property by crime (money); Count 58 - Neshan and Kenegarajah - possession of property by crime (money); Count 61- Neshan and Kenegarajah - possession of identification information for use as fraud; Count 65 – Balan, Neshan and Kenegarajah – unlawful possession of possession credit card data; Counts 66 to 72 – all defendants - fraud over $5,000.00 on seven institutions.

Counts 73-91: Neshan and Kenegarajah -

possession of credit card data with respect to nine persons and various institutions. [ 5 ] In addition, Nesarajah is charged that on February 3, 2010, he failed to comply with a court order (count 93) and obstructed a police officer, by using post office boxes as his home addresses to prevent identification. Balan, Neshan, Neeranjan, and Kanagarajah are charged with similarly obstructing justice on March 3, 2010.

Neshan is also charged with obstructing police on February 24, 2010. [ 6 ] The Crown submits that the five co-defendants, as members of an extended family group, together with Jeya Balan engaged in fraudulent activity over a decade that resulted in the loss of hundreds of thousands of dollars. It is alleged that Neshan and Kenegarajah were the leaders and that all defendants contributed to the enterprise and benefited by it. [ 7 ] Neshan and Kenegarajah put the Crown to the strict proof of the counts related to the specific offences in 2009 to 2010 but make no further submissions.

They, and the other defendants, object that the Crown made this “simple” case complicated by reaching back to 2001 with related conspiracy counts. They argue that there is no evidence of a broad conspiracy or criminal organization. In any event, Neshan and Kenegarajah submit that the charges are compromised because of evidence of multiple conspiracies and jurisdictional problems. [ 8 ] Nesarajah argues that there is no proof he is part of a conspiracy with Neshan and Kenegarajah.

Moreover, he claims that given the evidence implicating those co-accused, as well as their access to his home, there must be a reasonable doubt about his guilt on all charges, notwithstanding the evidence seized from his apartment. In any event, he seeks to exclude that evidence because the police violated his Charter rights. Nesarajah’s wife, Kanagarajah, joins her husband in the Charter motion and pleads ignorance of the items found in her home and the activities of all do-accused.

Neeranjan, the wife of Neshan, submits that there is no proof she had knowledge of her the activities of the co-accused, including her husband. [ 9 ] It is important to point out at the outset that, for the most part, the credibility and reliability of the evidence tendered by the Crown is not in issue. This applies, in particular, to the voluminous documentary evidence and the “real” evidence seized upon arrests or pursuant to search warrants. Defence counsel unsuccessfully challenged the admissibility of the documents but otherwise rarely question them.

The six books of documents filed as exhibits at this trial contain the invoices, receipts, credit card statements, home purchase agreements, vehicle leases, tax statements, letters, and other records that will be reference in the

summary of evidence below. Similarly, apart from the credibility of officers involved in the breach of the court order, Defence counsel did not seriously or successfully challenge most of the witnesses called by the Crown. Consequently, this is not a case in which the quality of the evidence is a significant factor; instead, the issues to be decided concern inferences to be drawn from that evidence and the application of established legal principles, including Charter challenges.

Accordingly, in what follows, I have not considered it necessary to attributed all the evidence to particular witnesses and documents. 2. The Case for the Prosecution 2.1. Initial Suspicions About “Bust Out” Frauds: 2001 [ 10 ] In November 2001, Rick Neals, then the Manager of Security for American Express discovered two credit card accounts with high balances that had recent address changes made to them and for which the balances owed had not been paid. It was determined that these accounts represented “bust out” frauds.

The losses were $4,463.00 and $18,857.61 respectively. [ 11 ] A “bust out” fraud typically involves the following: An account and a credit profile is created with a low credit limit. In the short term, the cardholder makes small purchases and small payments, followed eventually by large purchases and cash advances. The “cardholder,” who was either a fictitious person or a real individual whose personal information had been stolen, or alternatively the financial institution, would be left with a large unpaid balance and no recourse to collect the debt.

Collection efforts are rendered pointless because the “cardholder’s” address was invariably a post office box, which itself had been rented in one of the fictitious names. [ 12 ] Neals testified that he spoke to two employees in the corporate division who he believed could have tampered with the accounts; Kugan Neshan and Kelly Natola.

Natola reported to him, and testified at trial, that she had no knowledge of the events in question and explained how the password for her access to the Card Member Inquiry File could have been misappropriated: She had previously attended a two-week training course with about fifteen other employees. One of them, Neshan, had distributed a document he created so that everyone could use it to record their passwords and identification numbers. Natola stated that she had no idea that her password and identification had been used to access the delinquent accounts.

Neals stated that he accepted this explanation because on two occasions when the compromised accounts had been viewed, Natola had not been at work (the accounts cannot be accessed off- site). [ 13 ] Neals testified that he investigated the identification number and password belonging to Neshan and identified 21 credit card accounts that had been accessed by him. Fourteen of these accounts resulted in unpaid balances that totalled $236,460.08. One of them (3733 113871 21007) had been used to purchase three airline tickets for international travel at a cost of $17,975.02.

Neshan’s name was on one of the tickets and the other two were for his spouse, Anantha Neeranjan and their child. All 21 cards had been sent to one of five Toronto addresses: 15521-265 Port Union Road ; 219-2671A Eglinton Avenue East ; 554-230 Markham Road ; 21 Rockport Drive and 3950 Lawrence Avenue East. [ 14 ] Neals reported his findings to police. On December 21, 2001, a search warrant was executed at 21 Rockport Drive. The door to this home was opened by a woman who identified herself with a valid Ontario Driver’s Licence as Rajitha Kanagarajah (the wife of Nesarajah and sister of Kenegarajah).

A new Mercedes Benz was parked at the house. The motor vehicle had been leased by the Rajitha Kanagarajah with one of the 21 suspicious accounts. Among the items seized at the home was gold and silver Jewellery, a rolex watch, gift certificates from various retailers totalling $2,641.65, identification in the name of Kushen and Neeranjan, and financial records pertaining to several bank accounts that contained over $200,000.00 in cash or Guanteed Income Certificates. [ 15 ] The police made inquiries about Neshan in connection with the execution of the search warrant. Several weeks later, a

man purporting to be Neshan turned himself in at 41 Division of the Toronto Police Service. It was soon learned that his true identity was Kanagaramanan Kanagarajah (now known as Ramanan Kenegarajah - because later legally changed his name). Kenegarajah later pleaded guilty to personation and attempt to obstruct justice. [ 16 ] It appears no further attempts were made by police to locate Neshan. However, his name came up again four years later, in 2005, in respect of an investigation unrelated to the present trial.

As a result of that investigation, he was seen at a gas station at 962 Simcoe Street North in Oshawa. Selvanathan Premkumar, who is a cousin of both Neshan and his wife, Neeranjan, testified that he was the owner of the gas station. When asked why Neeranjan’s name was also on title to the franchise, he explained that “put her name on it,” but she never worked there, did not have anything to do with the business, and did not receive any income from it. As will be discussed later in these reasons, the Crown points to this gas station as one means by which Neshan laundered money. 2.2.

Events in British Columbia: 2007-2008 [ 17 ] In July 2007, the RCMP in Burnaby, British Columbia, looked into reports that two men, known as “Kugen” and “Ramanan, were involved in financial impropriety at a Hindu temple. Cst. Royce testified that he eventually concluded they were Kugen Neshan and Kanagaramanan Kanagarjah. Before positively identifying the latter, however, he conducted a search of government records and found a driver’s licence with a photo of Kanagarajah (now Kenegarajah) and the name of his brother in law, Hariharan Nesarajah. That is an exhibit in this proceeding. Cst.

Royce searched the land titles registry and found three homes owned by Neeranjan, Neshan’s wife. The officer located the men and maintained surveillance on them. [ 18 ] On April 24, 2008, Cpl Royce, together with another officer, followed Kenegarajah from a home that was under surveillance. Kenegarajah drove a Volvo for 40 kilometres to a shopping mall in Vancouver. He was followed into the mall and observed to make two cash withdrawals from a Scotiabank ATM machine. He then returned to his vehicle and drove in the direction of Richmond.

En route, Kenegarajah began to make erratic driving manoeuvres that appeared, to the officers following him, to be counter surveillance measures. Kenegarajah was stopped for making “unsafe turns. While speaking to him, Cst. Royce observed a large number of twenty dollar bills in Kenegarajah’s left front pocket and ABM receipts protruding from the other shirt pocket. Kenegarajah produced a driver’s licence with the name Kanag Kanagaraj and an address of 11753 Sheppard Avenue. [ 19 ] Cst. Royce, believing a fraud had taken place, arrested Kenegarajah.

He seized six credit cards in other persons’ names from Kenegarajah’s wallet as well as $1,960 in twenty dollar bills from his shirt pocket. Cst. Royce testified that the Crown in British Columbia ultimately did not prosecute the Kenegarajah for the offences. 2.3. Durham Regional Police Investigate the Defendants: 2009 - 2010 [ 20 ] On November 24, 2009, Dr. Wayne Niou, from Burnaby, British Columbia, contacted JP Morgan Chase to advise that three credit card accounts had been opened in his name without his consent; a Marriott Visa account, a Sears MasterCard, and a Sears “private label” store card.

The latter had been used at Active Green & Ross Tire and Auto Centre, 5803 Highway 7 in Markham, Ontario, on August 21, 2009. Investigators obtained the receipt in question and it shows that the tire service had been billed to a “Sri Spuvanes” of 230 Markham Road, Scarborough on a 2008 Land Rover with Ontario licence plates BDKW 739. [ 21 ] Det. Caplan of the Durham Regional Police Service had by this time begun to look into the “bust out” frauds in Durham Region. When the complaint by Dr.

Niou was brought to his attention he looked into the Land Rover and determined, by checking the Ministry of Transportation databases, that it was leased to Rajitha Kanagarajah at 75 Bayly Street West, Ajax. He found the latter to be a post office box at a commercial plaza. The vehicle also was associated with 265 Port Union Road, Toronto, also a post office box at a Shoppers Drug Mart. Det. Caplan also learned that another vehicle was registered to Kanagarajah - a 2001 Audi A6, Ontario licence plate AZVM 679 at the same Port Union Road post office box.

Subsequently, police observed Neshan and Kenegarajah operating the Land Rover on many occasions and Nesarajah and, his wife, Kanagarajah were seen to operate the Audi. [ 22 ] Det. Caplan entered details about these motor vehicles and the names of Rajitha Kanagarajah, Kuhen Neshan, Rajitha Kanagarajah, and Hariharan Nesarajah into a police data bank for Ontario with the request that he be advised if any officer comes into contact with them. At this time it was also learned that Ramanan Kanagarajah had legally changed his surname to Kenegarajah. [ 23 ] On February 3, 2010 one of the target vehicles was found. Cst.

Gillman testified that he had been on general patrol at 2:30 a.m. in the area of the “Harp and Crown” pub in Pickering and the Audi (AZVM 679) in the parking lot. When he “ran” the licence plate on his police computer, he saw the “flag” that had been previously posted by Det. Caplan. He contacted Det. Caplan and was told to stop the vehicle and ascertain the identity of the driver. The officer did so and learned that the driver was Hariharan Nesarajah.

Nesarajah was later followed in the motor vehicle to a condominium building at 11753 Sheppard Ave., East. [ 24 ] On February 8, the Land Rover was followed to a gas station at 9501 Sheppard Avenue East. Neshan put $92.09 worth of gas into the vehicle and paid for the transaction using a credit card at the pump. Det. Caplan testified that immediately afterward, he went to the same pump and put $.20 worth of into his own vehicle in order to “mark” the transaction. On this basis, it was determined that Neshan had used a Sears MasterCard to purchase the gas.

The invoice shows that the card belonged to Arvind Darshan, 660 Eglinton Avenue East, Unit 50102, East York. Following the gas transaction, surveillance followed the vehicle to 87 Portelli Crescent and 30 Bissland Drive, both recently built homes in new subdivisions, separated by about 900 metres. The subjects were observed parking the Land Rover in the garage at 30 Bissland and leaving in a Buick Enclave with Ontario licence plate BBLM 239.

The credit card that had been used by Neshan to purchase gas was later seized by police at 30 Bissland Drive. [ 25 ] The Buick Enclave had been renewed on a monthly rental by “Kanag Kanagaraj with an address of 311-11753 Sheppard

Ave., East, using a JP Morgan Chase Sears MasterCard #6281 8109 1874 7378. The customer later requested an address change to 1640 Pennel Drive, Oshawa and added another authorized user by the name of “Kan Kenegaraj”. In fact, this belonged to a man named Johnson DECRUZ. It was eventually seized by Cst. Edgar during the execution of a search warrant at Bissland Drive, Ajax (see count 52). [ 26 ] Land Registry and other documents filed as exhibits reveal the following information about the aforementioned residences: 87 Portelli Crescent was owned by Sri Gnanasundram.

The property was purchased in 2007 for $355,636.22 with monthly mortgage payments in the amount of $1,805.45. 30 Bissland Drive was purchased in 2007 Vivehy Vigneswaran, Thavanesan Rasiah, and Rakjumar Rasiah. These three individuals obtained the property through the assignment the Agreement of Purchase and Sale between the builder and the original purchaser, Sri Gnanasundram.

The purchase price was $599,863.43. 1640 Pennel Drive was owned by Rajitha Kanagarajah and purchased in 2008 for $360,076.00 Mortgage with monthly mortgage payments in the amount of $1,882.22. [ 27 ] Avery Broderick was a tenant at 87 Portelli beginning in November 2007 at a monthly rent of $1,795. Broderick testified that he frequently received mail for “Sri” with last name “something like Ganasundram.” The landlord had asked Broderick to put aside such mail and give to his “rep” when he came to visit two or three times a year.

When asked if he saw this representative in court, Broderick pointed to Ramanan Kenegarajah. [ 28 ] The real estate transaction for 30 Bissland Drive was handled by a lawyer named Thangavel Kesevan. The latter testified that he has since been disbarred for his role making false and misleading misrepresentations to mortgage lenders in twelve other real estate transactions. Kesavan also stated that he only met one of the “purchasers”, Vigneswaran. The latter testified that he paid $2,200 a month on the mortgage by making a cash deposit into someone else’s bank.

He confirmed the house was obtained from Sri Gnanasundram (who also owned the nearby home at 87 Portelli Cres). Vigneswaran identified this person as the aunt of Kuhen Neshan. He stated he has known Neshan since he was a boy as they grew up in the same village in Sri Lanka. Vigneswaran testified that Neshan became a tenant in the home and paid the $2,075 monthly by depositing cash directly into Vigenswaran’s account at a TD Canada Trust. [ 29 ] Vigneswaran said his portion of the $137,000 down payment toward the house was $110,000.

He testified that he saved this money from his $60,000 per year job at Canada BreadVigneswaran said that he did not retain a copy of the purchase documents for 30 Bissland. Police later found them at the home when a search warrant was executed. The Rasiah brothers testified that they each gave $10,000 to Vigneswaran as part of the purchase price. They also stated that they had never been to the house, did not know where it was, or what it looked like. Thavanesan Rasiah claimed an annual income of $41,141 as a restaurant cook.

Rajkumar Rasiah claimed an annual income of $11,952 as a machine operator. [ 30 ] In support of her successful application for the $334,800 mortgage on 1640 Pennel Drive, Rajitha Kanagarajah presented a letter confirming she earned $118,000 annually as the operations manager of a company called World Golden Stone Inc. This letter was signed by “President Richard Frank”. Kirupananthan Nagarajah testified that he is the owner of World Golden Stone Inc. and that he has never heard of a President Richard Frank.

He also stated that he does not know and has never employed Rajitha Kanagarajah. [ 31 ] Bill Aivalis was a tenant at 1640 Pennel Drive and paid $1,500 monthly rent plus utilities. This was arranged through a real estate agent. He was told the owner was Rajitha. He testified that he had never met this person – who he believed to be a man. He also stated that he had paid the rent on several occasions to a woman he believed to be the owner’s sister. He identified that person in court and pointed to Rajitha Kanagarajah. He said he would meet her at a McDonald’s restaurant near Highway 401 and Port Union Road.

This is within walking distance of the condominium associated with Kanagarajah and her husband, Nesarajah, namely11753 Sheppard Avenue. Aivalis testified that he paid her by cheque four times, by cash up front once and a sixth time he met his real estate agent to give her a cheque at Victoria Park and Eglinton Avenue.

A cheque from Aivalis was found under a mattress in unit 311 at the condominium when a search warrant was executed. [ 32 ] Later in the investigation, Durham Regional Police found two other properties associated with the defendants: 47 Portelli Crescent, Ajax was purchased in 2007 by Neshan’s wife, Neeranjan, at a price $425,185.93 and a mortgage of $392,616.27. Kumar Sriskanda testified that he also facilitated this transaction and identified Neeranjan as the person he dealt with as the purchaser.

As part of her mortgage application, Neeranjan provided a letter from her “employer”, which she stated was “Appropriate Inc. and earned $68,000.00 per year. In addition, a part of the $42,000 down payment was a “gift” of $15,000. The Declaration of Gift records that the money came from her “brother” “Kugan Neeranjan. 24 Steamer Drive, Whitby was purchased by David Bodley from Rajitha Kanagarajah on January 15, 2010 for $290,000. 2.4.

Surveillance: A Pattern Emerges [ 33 ] After reviewing the land registry documents and files for certain dormant investigations, the Durham Regional Police Service instituted a surveillance program with respect to the defendants, especially, Kenegarajah and Neshan. This program was aided by GPS tracking devices that had been installed on the Land Rover and Audi motor vehicles. Regular surveillance in the two months preceding the arrests on March 3, 2010 quickly revealed a pattern of activity by Neshan and Kenegarajah.

On a number of weekday mornings, the two men, operating the Land Rover or Buick Enclave departed 30 Bissland Drive in Ajax and dropped off a child at a Montessori school in Markham. They then travelled to various banks and retail stores in the Greater Toronto Area, stopping throughout the day at the condo building at 11753 Sheppard, at 30 Bissland and other residences. The two men were never observed to go to work and earn income from a legitimate place of employment or business. In addition to these observations, the police obtained other evidence during the course of surveillance.

As a result of this surveillance activity, the police uncovered a pattern of conduct consistent with bust out frauds; visits to numerous post office boxes and banks, use of credit cards in other people’s names to purchase items and withdraw cash at automated banking machines, and the payment of small amounts on account of those credit cards. [ 34 ] On February 10, 2010, Neshan and Kenegarajah left 30 Bissland at 8:15 AM. During the next several hours they were followed to a TD Bank branch at 375 Kingston Road in Pickering. Constables Edgar and Shaddick testified they saw Neshan conduct a

transaction at a ATM. He then went across the street to a CIBC branch and conducted another ATM transaction. The two men then returned to 30 Bissland and switched vehicles to the Buick Enclave. They left the residence at about 10:15 a.m., with a woman, and were followed to 8600 Dufferin (Greenpark Homes). In the afternoon, the motor vehicle was followed to the Montessori School on Dennison Street in Markham. The woman left the car, went into the school, and returned with a child. The next day the two men were followed from 30 Bissland to a gas station. Gas was put into the vehicle they operated.

This transaction was marked by police and documents produced at trial reveal that $61.34 in gas was purchased using a JP Morgan Chase Sears MasterCard in the name of Arun Venkateswara, of 87 Portelli Crescent. This balance was never paid (see count 20). [ 35 ] On February 5 at 1 PM, Neshan, Kenegarajah, a woman, and two children were followed to a Milestone’s Restaurant, Neshan was observed to pay for the meal with a credit card. Cst. Chapman obtained a copy of the receipt from the restaurant manager.

It was a JP Morgan Chase Visa Marriott Rewards card in the name of “Kulbir Singh” at an address was shown to be a post office box in a Main Drug Mart. (see count 91). JP Morgan Chase wrote off $544.66 as a fraud loss on the card. [ 36 ] The next morning, after dropping off a child at the Montessori school, Neshan and Kenegarajah travelled to several banks. Kenegarajah was seen to enter the ICICI bank at Middlefield Road and Steeles Avenue. At about 10:30 a.m., he and Neshan attended the TD Bank at the Pacific Mall (7077 Kennedy Road) in Markham.

Photographs from the bank surveillance camera show that Kenegarajah conducted transactions with a teller. The two men went to Active Green & Ross Auto Care Centre at 3505 Kenney Road in Toronto. The Land Rover was observed in the air being serviced. Det. Caplan spoke to the counter person right after the two targets had done so and asked about snow tires. The officer looked at the business computer and saw the last vehicle to be serviced was the 2008 Land Rover under the customer name of “Sri Puvaneswaran”.

At 12:06 p.m., Neshan and Kenegarajah went to the TD Bank at Kennedy Commons and conducted the following transactions: A $96.00 payment on BMO MasterCard 5191 2301 2228 8070 in the name “Kulim Dosangh”. This credit card was seized from Kenegarajah on his arrest (see count 42); Kenegarajah made $10.00 payments on four other BMO MasterCards (see count 38) and a $20.00 payment on a CIBC Visa.

While Kenegarajah was inside the bank, a man later identified as Balan met with Neshan and handed him a white envelope. [ 37 ] After Kenegarajah exited the bank and returned to the motor vehicle, he and Neshan travelled to the Sears store at the Woodbine Centre Mall. At 2:47 PM they were observed inside talking to a store clerk about a range they previously purchased but never picked and obtained a return of the purchase price.

The Sears invoice shows that this range had been purchased with JP Morgan Chase Sears MasterCard and the last four digits “9886,” under the name “Sai Puvaneswaran” with an address in Toronto. At two page document later seized from the Land Rover at the time Neshan and Kenegarajah were arrested provides details of a refund obtained for the purchase of this range in the name of Sai Puvaneswaran on August 26, 2009. JP Morgan eventually wrote off the loss of $5,214.02 .

Later in the day the two men went to another bank where $10.00 payments were made to each of three BMO MasterCard credit cards: (1) 5191 2301 3216 9542 in the name of Malai Malagee ; (2) 5191 2301 2748 5542 with no contact information available; and (3) 5191 2301 2802 1764 in the name of Varathan Kumar. Neshan and Kenegarajah then returned to 30 Bissland Drive. [ 38 ] On February 17, after dropping off a child at the Montessori school and stopping at a bank, Neshan and Kenegarajah travelled to 8600 Dufferin Street.

At 12:36 p.m., Neshan then filled up with gas at an Esso station and then and went to lunch at a restaurant. A JP Morgan Chase Marriott Visa card was used to pay for his meal. Police obtained a copy of the credit card transaction from the manager; it reveals that the card was in the name of Kulbir Singh (see count 91). At 7:15 PM, after surveillance ended a JP Morgan Chase Sears MasterCard was used to purchase $84.21 of gas at a Petro Canada station in Whitby. The invoice shows that the card in the name of Balaji Raman, with an address that turned out to be a shopping centre.

Biographical information about this person is contained in one of the ledgers seized from the Land Rover when Neshan and Kenegarajah were arrested. [ 39 ] On February 18, Neshan and Kenegarajah were followed in the Land Rover to a TD Bank in Markham, arriving at 9:41 AM. Neshan entered the bank and made three $10.00 payments to three BMO MasterCard credit card accounts in names of Navin Pillai, Arul Chand, and Ram Roshan.

Immediately after these transactions were completed, the two men went to the Sears store at the where paid $10.00 on each of two credit card accounts in the names of Gilbert Wong and Johnson DeCruz (see count 52). [ 40 ] The next day, Neshan and Kenegarajah departed from 30 Bissland Drive and went to a business in Markham that rents post office boxes. Kenegarajah entered the establishment and on his return to the motor vehicle a few minutes later was observed carrying mail. Immediately after, the parties travelled to another plaza.

Kenegarajah went inside the Shoppers Drug Mart store at that plaza and renewed the rental of post office box #55401. At 1:20 p.m., the two men arrived at a third plaza, “Milliken Crossing”, and Kenegarajah entered the Shoppers Drug Mart and a prescription filled at a cost of $97.85. He used the BMO MasterCard (5191 2301 2228 8070) in the name of Kulim Dosangh to pay for the prescription. On leaving the drug store Kenegarajah threw papers into a garbage can. These were retrieved by one of the surveillance officers, Cst. Edgar.

The documents seized show following: BMO Gold Air Miles MasterCard Rejection Letter dated February 11, 2010 in the name of Nirmalan Singh at an address in Markham. This card was later seized from Kenegarajah (see count 76) Canadian Tire MasterCard statement dated January 17, 2010 (5446 1221 9930 2459) in the name of Peter Tharmakumar at a Newmarket address that turned out to be a post office box at a Shoppers Drug Mart) with a balance of $7,212.23 (see count 27).

This card seized was later seized at 30 Bissland BMO MasterCard statement dated January 23, 2010 (2010 5191 2301 2387 2138) in the name of Peter Tharmakumar at an address in Newmarket, with a balance of $10,041.67 (see count 83)

Sears MasterCard statement dated January 12, 2010 (5307 8525 5932 6015) in the name of Nagapalani Sri at an address that turned out to be a post office box with a balance of $2,479.00 (see count 45) Sears MasterCard statement dated December 17, 2009 (6281 8106 1512 7585) in the name of Nasir Khan at an address in Newmarket, with $26.24 Credit Limit: $3,000.00. This card was later seized at 30 Bissland BMO Gold Air Miles MasterCard Rejection Letter dated February 11, 2010 in the name of Nirmalan Singh at an address in Markham.

This card was later seized from Kenegarajah (see count 76) [ 41 ] On February 22, Neshan and Kenegarajah left 30 Bissland and dropped off at the Montessori school, returning at the end of the school day to pick up the child and travel back to the Bissland home. Between these two events the men were followed to several locations, including residences, and were seen in the company of Neshan’s wife, Neeranjan. As was the case in previous surveillance, the two men were not seen to go anywhere at which they were employed or carrying on a business.

The following day, the two men were followed to a number of places, one of which was a grocery store. They exited with Kenegarajah carrying bags. Groceries, at a cost of $138.32, had been purchased with the credit card in the name of Kulbir Singh (see count 91). [ 42 ] On February 24 Neshan and Kenegarajah were followed to Toronto and seen to meet with Balan. Neshan entered Balan’s motor vehicle, a Honda. Afterwards, Cst. Fardell of the Toronto Police stopped this vehicle and obtained identification from the occupants.

The officer testified that the the driver identified himself as Balan and the passenger as Salvanathan Premkumar with an address in Scarborough. The men were allowed to go on their way and followed by the surveillance team a bank, which Neshan entered. Cst. Mitchell had assisted in this traffic stop. When asked if the man who identified himself as Premkumar was in court, he pointed to Neshan (see count 60). [ 43 ] Later the same day, Neshan was once again seen with Kenegarajah. They went to a La-Z-Boy store in Markham. Cst. Edgar obtained a copy of the receipt for purchases they made.

The receipt records a total expenditure for furnishings in the amount of $1,694.97, paid on a visa card in the name of Sli Anugam (see count 78). The two men were observed to load the items purchased into Buick Enclave. This vehicle then went to the Fairview Mall in Scarborough and Kenegarajah was followed into “La Swiss” jewellery store. He bought a Breitling watch at a cost of $8440.54, paying for it with $2,740.54 in cash and the balance, 5,700.00 on a Visa credit card in the name of Kanagaraj Kanag. This card was later found at 30 Bissland. Visa wrote off the loss.

The Buick Enclave was followed from the Mall to the condominium at 11753 Sheppard Avenue East and then back to 30 Bissland Drive, arriving at 2 PM. Neshan and Kenegarajah were observed to unload items from the vehicle and carry them into the house. [ 44 ] On February 25, after the usual morning trip to the Montessori school, Neshan and Kenegarajah were followed to 11753 Sheppard Avenue East. Neshan ran to the front door and into the building. Kenegarajah remained in the vehicle. The parties were later seen at mall on Finch Avenue. Kenegarajah and Neshan went into the mall.

Neshan purchased a jacket at a cost of $110.74 a MasterCard (5307 8524 5819 5743) in the name of Sli Anugam. [ 45 ] On the morning of March 1, Neshan and Kenegarajah were observed to drop off the child at the Montessori school, traveling in the Land Rover. They then went to a TD Bank on Markham Road. At 10:01, Kenegarajah was observed to exit the bank and return to the vehicle. At 10:27 the Land Rover pulled into the Kennedy Commons plaza and stopped at another TD Bank. This time, Neshan entered the bank and returned to the vehicle 10 minutes later.

When the two men were arrested on March 3, ledgers found in the Land Rover included two receipts for transactions at the first TD Bank on Markham Road. The first receipt reflects a deposit of $1,500 cash (75 x 20.00 bills) into account #1882-3293261 in the name of Kanag R. This is a Line of Credit. About six weeks earlier, the proceeds of the sale of 24 Steamer Drive, from Rajitha Kanagarajah were put into this account. It is also the account from which Kanagarajah borrowed funds to buy property in British Columbia from Anantha Neeranjan.

The second receipt reflects a deposit of $3,380 cash (169 x 20.00 bills) into account #9725-6283513 in the name of Grounder. [ 46 ] On March 2, at the La-Z-Boy Gallery in Markham, Neshan and Kenegarajah were observed to purchase additional furnishings at a cost of $1,497.99 with a MasterCard with the last four digits 5743. This receipt shows that the card used in this transaction is the same as the one used at the La-Z-Boy one week earlier; namely, Sli Anugam at an address in Pickering. 2.5.

Arrests and Incidental Searches [ 47 ] The police decided to conclude this investigation on March 3, 2010 and search warrants were obtained for several residences. After the usual trip to the Montessori school, Neshan and Kenegarajah were followed to two banks, CIBC and ICICI and then to the home builders at 8600 Dufferin Street, arriving at about 10:20 a.m. Neshan and Kenegarajah were arrested at this location. Among the items seized from Neshan are these: Two BlackBerry smart phones $700 cash CIBC ATM receipt from earlier that morning

Cheque payable to Sri Gnanasundram; CIBC Debit Card, PC Debit Card, and MBNA MasterCard Two MasterCard gift cards (total: $150.00) Purchase Agreements in the name of Balan (to purchase the home from Desert Fox Properties) Photocopies of three cheques from Balan to Dessert Fox Property Inc; February 19, 2010 in the amount of $25,000 (BMO), March 1, 2010 in the amount of $15,000 (TD Bank), and March 3, 2010 in the amount of $10,000 ( ICICI Bank). Sears appliance documents [ 48 ] Among the items seized from Kenegarajah are these: A bundle of U.S. cash a Breitling wrist watch British Columbia Lottery Corp.

Lotto Super 7 “Quick Pic” ticket (January 28, 2005) A medallion for a Temple in Vancouver Personal information for “Sli Anugam” ICICI Bank “Transfer of Funds” slip from earlier that morning in the amount of $10,000 payable to Desert Fox Property Inc.

Six credit cards issued by several banks in the following names: Kirupaneshan Thavaraj (Count 73), Kulim Dosangh (Count 74), Kulim Dosangh (Count 75), Nirmalan Singh (Count 76), Sam Sivalingam (Count 77), Sli Anugam (Count 78) [ 49 ] Among the items seized from the Land Rover are these: Several bags or sets of keys (with about 50 keys) for cars, post office boxes and homes (including one labelled 47 Steamer) Woman’s “Guess” watch with receipt in pink “heart” box and receipt from The Bay ($160 + tax) using credit card in the name of Kulim Dosangh) Ontario driver’s licence in the name Subasikaran Ponnampalan with an address in Scarborough Two iPhones and two BlackBerry smart phones

Five Sears Gift Cards; 4 CIBC business cheques in the name of Franklin Haulage and Movers Bag containing registration documents for the 2008 Land Rover/Ranger Rover in the name of Rajitha Kanagarajah; Two ledger books [ 50 ] The two aforementioned ledger books that were seized from the Land Rover contain the handwritten names, addresses, employment information, phone numbers, credit card numbers, credit limits, expiry dates, bank/credit card company system access passwords and similar data for dozens of individuals.

The names of the individuals and associated credit card are reproduced below: Sivan Sivalingam: BMO Mastercard. This card was later found at 30 Bissland (count 37) Arun Venkatesawar: Sears Mastercard. This card seized was later found at 30 Bissland (count 20) Aswin Venkatesawar: JP Morgan Chase Visa. This card was later found at 30 (count 90) Yesan D’Souza: Sears Mastercard. This card seized was later found at 30 Bissland (count 34). Ravi Pillai: Rogers: BMO Mastercard.

This card was later found at 30 Bissland (count 80) Sai Pulaneswaran: BMO Mastercard Kris Perumal: BMO Mastercard Babu Sethi: BMO Mastercard Toni Sri: CIBC Classic Visa, JP Morgan Chase Marriott Visa, and Canadian Tire Mastercard. Latter two cards were later found at 30 Bissland (counts 26 and 41) Kanmani Muraga: BMO Mastercard with the same address as Nesarajah/Kanagarajah Dr. Vishnu Gounder: Classic Visa. Phusyanth Murugan: JP Morgan Chase Sears Mastercard, Sears Mastercard, and MBNA MasterCard Sli Anugam: JP Morgan Chase Marriott Visa and Capital One Mastercard.

These cards were later found at 30 Bissland (counts 11-13) Gilbert Wong: JP Morgan Chase Cancer Society Mastercard. This card was later found at 30 Bissland. (counts 28 and 30)

Thuryanth Srimurugan: Capital One Mastercard. This card was later found at 30 Bissland (count 36) Mike Rajan: MBNA Mastercard Manohar Singh: CIBC Visa. This card was later found at 30 Bissland (count 81) Tony Pen: CIBC Visa. This card was later found at 30 Bissland (count 46) Johnson Decruz: JP Morgan Chase Sears Mastercard (count 52) Vasanth Vikash: MBNA Mastercard Sai Pulaneswaran: Sears Mastercard. This card was later found at 30 Bissland Sam Anban: BMO Mastercard. This card was later found at 30 Bissland (count 84) Amir Samji: IBM: Capital One Mastercard.

This card was later found at 30 Bissland (count 47) Sam Sivalingam: Canadian Tire Mastercard, HBC Mastercard, and BMO Mastercard. The first two cards were found at 30 Bissland. The third one was seized from Kenegarajah as an incident of arrest. (counts 24, 77, and 86) Nagapalani Sri: JP Morgan Chase Sears.

This card was later found at 30 Bissland (count 45) Pronto Carakudi: JP Morgan Chase Sears, Capital One Mastercard, JP Morgan Chase Sears Mastercard, JP Morgan Chase Cancer Society Mastercard, and American Express These cards were later found at 30 Bissland. (counts 14, 21, 22, and 29) Nirmalan Singh: Two JP Morgan Chase Sears Mastercards. Both cards were later found at 30 Bissland. (counts 48 and 76) Arun Darshan: Capital One Mastercard. This card was later found at 30 Bissland. (count 43) Velu Marathandava: Two JP Morgan Chase Sears Mastercards and Capital One Mastercard.

These cards were later found at 30 Bissland. (counts 35 and 38) Peter Tharmakumar: Two Canadian Tire Mastercards and JP Morgan Chase Marriott Visa. These cards were later found at 30 Bissland. (counts 27 and 83) Rajpaul Nanda: JP Morgan Chase Sears Mastercard. This card was later found at 30 Bissland (count 25). Wayne Niou: JP Morgan Chase Sears Mastercard

[ 51 ] Among the other items seized from the Land Rover are these: TD Canada Trust receipts (7670 Markham Road) to account of “Rasiah T” - $2,300 from cash Letter from “Serbjit Singh, Onex Granite Inc., to advise Rajitha Kanagaraja “is employed with our company as a Field Operations Manager” and earns $87,750.00 annually.

Equifax Credit Report for Kris Perumal Capital One Account Statement – Mike Rajan, Ramanan Kenegarajah Franchise Application – for “Prime Ribs” Restaurant Letter from Nathalie Lacroix to “Tony and Thavanesah Rasiah” regarding application for A&W franchise and attached Business Model Worksheet (January 22, 2009) Purchaser’s Estimate Request & Request to Amend the Agreement of Purchase and Sale between Jeya Balan and Desert Fox Properties Inc. re: lot #160, Plan 65M-3976 - $60,445.00 in extras added (Sept. 2, 2009). [ 52 ] Following the arrest of Jeya Balan, a black leather ledger book inside of which were pages of handwritten identity information and credit card information with the date “Jan/Feb 2010.” The information included BMO Mastercard account numbers in the names of the following (real or fictitious) people; Sivan Kumeran, Balan Ram, Maran Mathandavar, Nesaruban Devaraj, Padmakar Singh, and Prem Adas.

Also found were transaction records and statements for several credit cards (none of which are in the name, Jeya Balan). [ 53 ] Among the items seized from the Audi motor vehicle after the arrest of Hariharan Nesarajah are these: Letter, dated September 24, 2009, from a law firm to Hariharan Nesarajah at 311-11753 Sheppard Avenue East; Canadian Tire Receipt, dated December 27, 2009 for a purchase on the Mastercard account of Siva Rajan; Work Order re the Audi to Rajitha Kanagarajah; Handwritten piece of paper with names, addresses, phone numbers, and email addresses for Hari Ganesh and Siva Rajan. 2.6.

Search Warrant at 311-11753 Sheppard Avenue, Scarborough [ 54 ] A search warrant was executed at 311-11753 Sheppard Avenue East at noon. Hariharan Nesarajah and Rajitha Kanagarajah object to the manner in which the warrant was executed. That issue will be dealt with later in these reasons. For the present purposes, it will suffice to note some of the items seized. These items were seized by individual officers and turned over to one exhibits officer who confirmed and recorded who seized what from where. Each of these officers testified about their activities. [ 55 ] From the master bedroom, Det.

McKay seized the following: Nine receipts in a brown TD envelope; two handwritten lists (withdrawal and bank drafts, cash); List with money amounts; Two brown and one white envelopes containing cash, including nine one hundred dollar bills and several hundred dollars in five, ten, and twenty dollar denominations - all in Canadian currency - and an assortment of American and British currency in small denominations; Receipt Banu Jewellery ($450.00); and an Esquire Swiss watch in a container. [ 56 ] From the master bedroom, Det.

Capener seized these items: BlackBerry Pearl smart phone; iPhone ; Samsumg phone; pawn shop receipts; TD VISA 4500 8800 0151 080; TD transaction receipt in the amount of $86,149.06; ICICI Bank deposit slips (found under the mattress); Two credit cards, a Social Insurance Card and other government identification, all in the name of “Siva Rajan.” [ 57 ] From the living room, Cst. Stone seized a BlackBerry smart phone and Det. Capener seized these items; Motorola “Razr” phone; Motorola cell phone; Samsung phone; iPhone; and a BlackBerry smart phone.

From an analysis of the cell phone records related to one of the Motorola phones, it was determined that the following financial institutions had been contacted: 800-263-2263 BMO MasterCard 440 times 800-265-3675 Sears Financial (Chase) 288 times

800-387-1616 Citi MasterCard (now CIBC) 173 times 800-459-6415 Canadian Tire Financial 132 times 800-465-4653 CIBC Card Services 47 times 800-481-3239 Capital One MasterCard 24 times 888-242-2100 Citizenship and Immigration 37 times 888-876-6262 MBNA Canada 485 times [ 58 ] From the dining room, officers found change of name documentation for Hariharan Nesarajah, a “Vancouver” key chain, Nokia cell phone and charger, Prada sunglasses, and social services documents.

In the second bedroom, another three Blackberry smart phones were seized, along with Silver “Fossil” watch (black face with diamond); Computer equipment; and an envelope with bundles of $20 bills 2.7. Search Warrant at 30 Bissland Drive Drive, Ajax [ 59 ] As is the case with respect to the residence of Nesarajah and Kanagarajah, I heard from the individual officers and exhibits officer involved in the search of 30 Bissland Drive.

The police seized much of the furnishings and electronics in the home as evidence of and proceeds of crime, including, living room and bedroom furniture, eight trees, kitchen appliances, a piano, television sets, BluRay players, exercise equipment, multiple computers and printers, brand new photocopiers, lawn equipment, motorized bikes for children, in-sink garbage disposal units, luggage, liquor, cameras and camcorders. [ 60 ] From “bedroom # 1”, Sgt.

Cousens seized these items: Approximately $8,000.00 in cash in various denominations, some of which was covered with mildew; banking documents, credit cards and credit card documentation; nine watches; three mens’ rings; eight post-dated cheques in the amount of $1,895 each (rent from tenants at 47 Portelli Crescent, Ajax); a BlackBerry smart phone. The credit cards set out below were also found in this bedroom. The signatures on the back of most of these credit cards are almost identical and similar to those on the cards seize from Kenegarajah as an incident of his arrest.

Card Number Name Issuer Count 5491 9809 2027 7884 Sanjeev Sethi MBNA MC 79 5307 8526 3956 6341 Ravi Pillai Chase Sears MC 80 5191 2301 2220 5983 Manohar Singh BMO MC 81 5307 8522 3338 4927 Fatehali Charania Chase Sears MC 82 5191 2301 2387 2138 Peter Tharmakumar BMO MC 83 5191 2301 2359 9301 Sam Anban BMO MC 84 5452 4000 4031 0058 Navpreet Chahal MBNA MC 85 6002 9321 0579 9490 Sam Sivalingam HBC MC 86 5491 9812 8751 6641 M Thavarajah MBNA MC 87 5446 1220 7930 4393 Yesan Dsouza Can Tire MC 88 5243 3711 0327 3943 Peter Tharmakumar HBC MC 89 4349 1202 1544 7887 Aswin Venkateswar Chase Marriott Visa 90 4349 1202 3774 8510 Kulbir Singh Chase Marriott Visa 91 [ 61 ] From “bedroom # 2”, Cst.

Levy seized photographs of Kenegarajah holding bundles of money. Det.

Garcia found the following items: Framed photographs of Kenegarajah with children; $2,440.00 (122 x $20.00); banking documents; Hindu Temple Tax receipt in the name of Kugen Vaishnevi; La-Z-Boy receipt dated March 2, 2010 in the name of Sli Anugam; La Swiss Business Card (Vicky Kevorkian); various mortgage documents, post office box rentals for locations in Markham, Willowdale, and Toronto – all of which Neshan and Kenegarajah were seen to visit while under surveillance; credit applications; blank TD cheques in the name of Rajitha Kanagarajah; Rogers Mobility Stick, three Sears credit cards in the name of Ramanan Pillai; Movado watch; credit card application forms for many of the credit cards seized in the home and elsewhere; mortgage documents; immigration documents (permanent residence card) to Kanagaraamanan Kanagarajah, 11753 Sheppard Ave.

E, Unit 311; [ 62 ] From a suitcase in “bedroom #2”, Cst. Hoover found the following: Numerous Sears credit cards in various names; Watches and rings; a new camera; Earnings statement for Vivehy Vigneswaran (Canada Bread); Letter from “Mr.

Lincoln , Managing Director” of A Great Toronto Truck Driving School, dated July 2008, to “Whom Ever it may concern” to state that Kanagaramanan Kanagarajah is employed as a classified driving instructor and who is “very honest … and hardworking” and earns $48,000 per annum; activation papers and account statements for Canadian Tire MasterCard in name of Peter Tharmakumar, expired boarding pass for Kenegarajah for flight to Vancouver in 2008; Agreement of Purchase and Sale Constable between purchaser Sri Gnanasundram and Imagination Community Inc. for 30 Bissland Drive. [ 63 ] The credit cards referred above that were seized from bedroom # 2 are as follows:

Card Number Name Issuer Count# 4349 1208 7912 1091 Sli Anugan Chase Marriott Visa 11 5457 5675 3036 1810 Sli Anugan Capital One MC 12 5446 1226 2604 3106 Sli Anugan Can Tire MC 13 6281 8102 2995 1099 Pronto Carakudi Chase Sears MC 14 4349 1206 4264 9340 Kana Kanagaraj Chase Marriott Visa 15 6281 8109 8072 4297 Richard Singh Chase Sears MC 16 6002 9321 0570 0221 Rajan Karuda HBC MC 17 6281 8104 3582 8990 Quing Min Chase Sears MC 18 6281 8105 0754 2867 Ramanan Pillai Chase Sears MC 19 6281 8107 9172 4411 Arun Venkateswara Chase Sears MC 20 5457 5694 6249 9618 Pronto Carakudi Capital One MC 21 5307 8528 4218 2522 Pronto Carakudi Chase Sears MC 22 4349 1200 5177 4410 Pronto Carakudi Chase Marriott Visa 23 5446 1221 1164 5340 Sam Sivalingam Can Tire MC 24 5307 8528 7540 4116 Rajpaul Nanda Chase Sears MC 25 5446 1221 8893 0343 Tony Sri Can Tire MC 26 5446 1221 9930 2459 Peter Tharmakumar Can Tire MC 27 5307 8525 7931 6285 Gilbert Wong Chase Sears MC 28 5220 1316 2530 5129 Pronto Carakudi Chase Can Soc.

MC 29 5220 1317 5682 9046 Gilbert Wong Chase Can Soc.

MC 30 5446 1228 6303 2390 Rupini Kuhen Can Tire MC 31 5307 8525 7714 0950 K Thavarajah Chase Sears MC 32 5446 1228 4862 2224 Gilbert Wong Can Tire MC 33 5307 8526 8033 1454 Yesan Dsouza Chase Sears MC 34 5307 8526 9392 1770 Velo Marathandava Chase Sears MC 35 5457 4950 1489 7507 Thuryanth Srimurwgan Capital One MC 36 5191 2301 2171 1551 Sivan Sivalingam BMO MC 37 5457 5691 2400 8583 Velo Marathandava Capital One MC 38 5307 8527 3038 2564 Primal Gopal Chase Sears MC 39 5452 4004 1729 1584 Rupini Kuhen MBNA MC 40 4349 1202 3556 9249 Tony Sri Chase Marriott Visa 41 4349 1201 9929 5302 Navpreet Chahal Chase Marriott Visa 42 5457 5685 6506 0582 Arun Darshan Capital One MC 43 5446 1226 8579 3427 Manohar Singh Can Tire MC 44 5307 8525 5932 6015 Nagapalani Sri Chase Sears MC 45 5307 8521 2241 2383 Tony Pen Chase Sears MC 46 5457 5687 9841 8383 Amir Samji Capital One MC 47 5307 8525 4694 2908 Nirmalan Singh Chase Sears MC 48 3746 178045 31001 Pronto Carakudi American Express 49 5307 8521 3456 9006 Navpreet Chahal Chase Sears MC 50 [ 64 ] From “bedrooms # 4/5”, Cst.

Levy seized these items: Bank documents in various names from the desk including bank applications including a CIBC Account

Summary for Nesaruban Devaraj dated Oct. 7, 2008; BMO MasterCard online application for “Avtar Ahmad” dated Dec. 11, 2008; Handwritten sheets of paper containing biographical, financial and banking information for “Dominic Francis”; “Bentong Yang”; “Avtar Ahmad”; “Balan Ram”; “Daniel Mohan”; and “Sivan Kumaran”; BlackBerry smart phone USB with Bluetooth from desk (still in the package); White envelope – “To My Loving Wife Rupini – Kuhen”; new Esquire Swiss watch in box with Sears tag - $395.00; Jewellery box containing a gold necklace with diamonds and rubies; Two ladies’ dress watches; Designer sunglasses (“Ray-Ban”; “D&G”; “Gucci” (all in original cases); Canon camcorder; Minolta camera. [ 65 ] In the Armoire in bedrooms # 4/5,Cst.

Hilliard found: Photocopies of Documents in the name of Anantha Rupini Neeranjan ( a Malaysia Passport and Permanent Resident Card); BMO MasterCard and banking documents in the name of Anantha Neeranjan; Ontario Health Card in the name of Kuhen Vaishnevi; B.C. Health Card in the name of Kuhen Pranaven; [ 66 ] In the top drawer of the bedside table in bedrooms # 4/5, Cst.

Hoover found: “Ashok Jewellers” box containing gold and diamond necklace; gold bracelet; gold necklace; Bundle of Canadian currency on a plate in top drawer in the amount of $1,890 in various denominations; Brown purse containing $1,066 Canadian currency in various denominations; Brown wallet inside purse containing $1,055 Canadian currency in various denominations; €300; A driver’s licence in the name of Anantha Neeranjan as well as her Sears Card MasterCard; Health Card; CitiBank Card; VanCity Card; BMO Card; BNS Scotia Card; In the top drawer of the other bedside table the officer found: Bag of banking documents and cash in various denominations for a total of $7,620.00CDN, $1,100.00 US, €700, £820 UK, 900 (Swiss); Gold jewellery. [ 67 ] In the walk-in closet attached to “room # 8, Cst.

Vibert seized these items: Purchase Agreement dated June 2, 2003 in the name of Anantha Neeranjan with respect to 671A Eglinton Ave. E. #102, Scarborough, (Great Gulf Homes). In the basement this officer also found and seized 12 bottles of Cognac, scotch and brandy, HP Colour Laser Jet Photocopier (brand new in box); Two “Insinkerator” garbage disposal units (brand new in boxes) [ 68 ] In the kitchen/wet-bar area, Cst. Hoover documentation with respect to Town Centre Montessori Private Schools for Vaishnevi Kuhen (grade 4).

The document provides the following parental information with respect to the student: Father – Kuhen NESHAN, a “businessman” with A&W; Mother – A. Rupini N. Kuhen, a “housewife”. In case of emergency, the school was told to contact Kanag Kanagaraj, an uncle, Jeya Balan, a cousin, or Rajitha Kanagarajah, an aunt. [ 69 ] On top of the wet bar found, Cst. Woolley found a CIBC cheque book in the name of “A. Anthonypillai” 1100 Ellesmere

Road, Scarborough and cash in various denominations for a total of - $950.00 CDN, £20 (UK), and 20 (Malaysian). In a cupboard over the bar area, he also found: Agreement of Purchase and Sale in the name of Vicky Vigneswaran for 19 Alai Circle, Markham in the amount of $1.65 million with a closing date of Februar1, 2010. [ 70 ] Other officers found money in other areas of 30 Bissland Drive. In total, the police seized approximately $110,000 in cash in various denominations, currencies, and packaging. 2.8.

Tax Records [ 71 ] Records obtained from the Canada Revenue Agency show the following: Neshan Kuhen (husband of Anantha Neeranjan) 2001 – Total income: $40,852 at American Express, with an address in Toronto that was, in fact, a post office box. 2002 - Total income: $594 2003 – Total income: zero 2004 - Total income: $15 2005 - Total income: $1,115.00 2006 – Total income: zero 2007 to 2009 – no assessment information found Ramanan Kenegarajah (brother of Rajitha Kanagarajah) 2001- No assessment information found 2002 – Total income, from social assistance: $6,123 2003 – Total income, from social assistance: $6, 123 2004 to 2009 – no assessment information found Anantha Neeranjan (wife of Kuhen Neshan) 2001 to 2003 – total income: zero 2004 - Total income: $410 2005- total income: $70,419.00, with an address in British Columbia 2006 – Total income: $59,789 2007 – Total income: $78,872, with an address British Columbia 2008 to 2009 – no assessment found Hariharan Nesarajah (husband of Rajitha Kanagarajah) 2001- Total income: $17,027 2002 - Total income: $24,089 2003 - Total income: $20,511

2004 - Total income: zero 2005- Total income, from social assistance: $10,254 2006 – Total income, from social assistance: $11,202 2007 – Total income: $12,059 2008 – Total income: $ 10,998 2009 – No assessment found Rajitha Kanagaraha (wife of Nesarajah and sister of Kenegarajah) 2001 - Total income: one dollar 200 - Total income: one dollar 2003 - Total income: zero 20045 to 2005: no assessment information found 2006 – Total income: zero 2007 – Total income: $17,535 2008 to 2009: no assessment information found 2.9.

Breach of Order Excluding Witnesses [ 72 ] As noted at the outset, most of the evidence in this case is not controversial. Where the Crown and Defence differ is with respect to the inferences that might be drawn from some of the facts and the application of certain legal principles. However, there are three Crown witnesses that were the subject of significant challenge. These witnesses breached my order not to discuss their evidence with each other.

The defendants argue that their testimony is tainted and one seeks a stay of proceedings because of what occurred. [ 73 ] At about the mid-point of this trial, a lawyer unconnected with this case, Mr. Tom Hicks, reported to one of the Defence counsel that he had overheard police witnesses in this case apparently discussing their evidence. When this was brought to my attention, I conducted a voir dire to determine if my order had been breached. The officers involved in this matter are Constables Beamer, Shaddick and McKay. [ 74 ] Mr.

Hicks testified that on November 9, 2011, he was outside the courtroom and he heard one officer talking to the other two officers about his cross-examination. There is no dispute that the officer in question is Beamer and that he was discussing his cross- examination by Mr. Basile. I also note that Shaddick and McKay had not yet testified in the trial. According to Mr. Hicks, Beamer mentioned “Neshan” and “Shopper’s Drug Mart” and said that he had been asked three times if the person he saw was, in fact, Neshan. Beamer added that the questions were ridiculous and that the trial judge felt the same way. Mr.

Hicks testified that at this point one of the officers – he could not say which one – saw him and something to the effect “be careful, that guy is a defence counsel”. [ 75 ] When called to testy on the voir dire , each of the three officers in question stated that they were not specifically aware that an order excluding witnesses was in effect but that, given their experience that such orders are routine in criminal trials, they ought to have known about it. Each officer expressed great regret about having made the “mistake” of discussing the trial evidence. [ 76 ] Mr.

Pillay, on behalf of Kenegarajah, submits that orders excluding witnesses are imposed to ensure the fairness of the proceedings. Police officers regularly encounter such orders. All of the police officers involved in the breach of the order in this case were familiar with such orders and, in fact, expected that such an order would be in place in this trial. Mr. Pillay claims t he breach of court order was flagrant and amounts to a clear attempt to circumvent the fairness of the proceedings. Such a brazen violation of a court order by a police officer, it is submitted, is an affront to the defendant’s

section 7 Charter right and to a fair trial and justifies a stay of proceedings. [ 77 ] The Crown submits that the officers’ conduct was foolish but not wilful or engineered to harm the fairness of the proceedings. The exclusion of the evidence of any of these officers, it is submitted, would be an inappropriate reaction to whatever harm was caused as a consequence to the defendants’ fair trial rights. [ 78 ] There is no doubt that my order was breached. The police knew or ought to have known of the witness exclusion order. I cannot say that it was done in a deliberate attempt to undermine these proceedings.

It is more likely that Beamer was frustrated and vented at his colleagues. He should have known better. Similarly, Shaddick and McKay should have declined to participate in the discussion. All acted unprofessionally. That said, this discussion was a few minutes in length in the midst of a 28 day trial. Even if the discussion concerned material and controversial issues, a stay of proceedings would be a disproportionate response. This is not one of

those exceptional cases in which such a remedy is warranted. [ 79 ] I have scrutinized the evidence of the three officers. They played a relatively minor role in this case and their actions and observations are usually confirmed by others. In the few instances where it is not confirmed I have chosen to ignore their testimony. In addition, I forwarded a transcript of the voir dire to the Crown Attorney for this Region for whatever action he deems appropriate. [ 80 ] As an officer of the court, Mr. Hicks did the right thing in bringing matter to the attention of the court. 3.

The Position of the Defence 3.1 Ramanan Kenegarajah [ 81 ] Mr. Pillay, on behalf of Ramanan Kenegarajah, while not conceding any count, made submissions with respect to only some of them. In particular, no argument was presented with respect to the many substantive counts arising from the evidence uncovered by the Durham Regional Police Service through surveillance and search and seizure. [ 82 ] The arguments presented by Mr.

Pillay concern the following charges: Count 1 - all defendants, between 2001 and 2010- fraud on the public, over $5,000.00, Count 2 - all defendants, during this same nine year period - conspiracy to commit fraud through the use of fraudulent credit cards; Counts 3 to 10 - Neshan and Kenegarajah, during this same nine year period - fraud with respect to eight specific financial institutions; Count 54 - all defendants, between 2005 and 2010 - being a member of a criminal organization; Count 64 - Neshan and Kenegarajah, during this same nine year period - Personation; Count 92 - all defendants, between 1997 and 2010 - Money Laundering; [ 83 ] It is submitted that, apart from count 2, the aforementioned charges violate the single transaction rule in that they allege many separate and distinct offences over a nine-year period.

It is also asserted that while each of these counts names all of the defendants as accused, many of the transactions to which they relate involve only one or two of the defendants. As such it is argued that the counts are invalid and cannot form the basis of convictions. [ 84 ] Count 2 alleges a nine year conspiracy commencing January 1 st 2001 and ending March 3 rd 2010 and names all defendants as conspirators. Mr. Pillay submits that that Kenegarajah does not surface until 2008 when he was arrested by Cpl.

Royce in British Columbia and that there is no evidence about him, Neeranjan, and Nesarajah until the resumption of the investigation in 2010. It is argued that this evidence fails to prove the conspiracy alleged. In this regard, it argued that the presence of Rajitha Kanagarajah at 21 Rockport Drive in 2001 when a warrant to search the premises was executed is not evidence of her knowledge or participation in criminal activity. Similarly, it is claimed that the numerous financial instruments in the name of Anantha Neeranjan, seized at the time, do not implicate her as a party to a conspiracy. [ 85 ] Mr.

Pillay submits that the Crown has not proven the criminal organization charge (count 54) because it failed to establish that three or more persons were involved. It is submitted that while there are financial instruments and real estate holdings in the names of Rajitha Kanagarajah and Anantha Neeranjan, there is no evidence of their participation in these transactions or their knowledge that their names were used in these transactions.

With respect to Nesarajah, it is suggested that while there is evidence he may have engaged in fraud, it is insufficient evidence to establish that he is part of a criminal organization. Similarly, it is argued that Balan’s activities with Neshan and Kenegarajah was “for the immediate commission of a single offence”, not an ongoing criminal enterprise. [ 86 ] Mr.

Pillay points out that all of the offences are alleged to have been committed in Ontario and there is no mention of British Columbia in the Information and, citing section 478(1) of the Criminal Code , submits that to the extent any of the offences were committed entirely in British Columbia, the defendant must be acquitted. Moreover, it is argued that the evidence uncovered by Cpl. Royce in 2008 in British Columbia should be excluded because it was obtained in violation of Kenegarajah’s Charter rights.

The evidence in question is six credit cards and a TD debit card (none of which were in the defendant’s name) and a quantity of currency. Mr. Pillay argues that Cpl. Royce unlawfully detained and searched his client. 3.2. Kuhen Neshan [ 87 ] Mr. Olmstead, on behalf of Kuhen Neshan, adopted the submissions of Mr. Pillay and added the following: “In general,

it is asserted that the whole prosecution against Mr. Neshan was over-broad, and the only ‘valid’ charges relate to the alleged fraudulentactivity that took place in Ontario between the fall of 2009 and March 2010. The defence makes no submission with respect to thevarious fraudulent use/possession of credit card/money laundering offences during this period, but puts the Crown to the strict proofthereof.” [88] In furtherance of this general submission, Mr.

Olmstead noted that Natola testified that at an American Express trainingseminar in 2001, Neshan handed out the piece of paper to collect passwords and acknowledged this was it was done openly and with theknowledge of the instructor. It is argued that Neshan’s actions were not surreptitious and the Crown “has not proved the ‘Amex’allegations beyond a reasonable doubt”. In any event, Mr. Olmstead submits that the only evidence – which he calls “narrative” – aboutNeshan’s whereabouts from 2001 to 2009, is that he was under constant surveillance by the RCMP in British Columbia.

There is noevidence putting Neshan in Ontario during this period. Accordingly, any criminal activity by Neshan in British Columbia during thisperiod is outside the jurisdiction of the court. [89] Mr. Olmstead also asserts that there is no evidence that Neshan was acting in concert with anyone at this time and “hencethere is no evidence of conspiracy in 2001”. In this regard, it is noted that a conspiracy cannot be founded simply between a husband andwife: R. v. Rowbothan (1998), (ON CA), 41 C.C.C. 3d 1 (Ont. C.A.).

With respect to the activities of the defendants inOntario in 2009-2010 “the question is whether the offence charged is the same conspiracy that the Crown has tried to prove. Here, thereis no evidence or agreement, save and except inferences to be drawn from substantive acts. Mere knowledge of criminal conduct does notmake someone a co-conspirator.” [90] With respect to the criminal organization count, Mr.

Olmstead repeats his colleague’s point that three or more people arerequired and adds that assuming Neshan and Kenegarajah were involved in a credit card conspiracy, “this does not make themautomatically members of a criminal organization. …all the accused are related by blood or marriage so normal contact is to be expected.Mr. Balan’s involvement was no more than de minimus conduct, and the two wives played no overt role in any criminal organization…that leaves Mr. Nesarajah as the only possible third member [and]. ….he was only seen in contact with Mr. Neshan and Mr.

Kenegarajahone time, at the hospital”. 3.3 Anantha Neeranjan [91] Mr. Basile, on behalf of Anantha Neeranjan, argues that even assuming his client knew about the criminal activity of theother defendants, she “could not be said to be guilty of conspiracy, as conspiracy is not established by mere proof of knowledge of theexistence of a scheme to commit a crime, or by merely doing various acts in furtherance of that scheme. Proof of a criminal conspiracyrequires proof of an intention to agree, the completion of an agreement to do an unlawful act or to do a lawful act by unlawful means anda common design”.

In this regard, it is pointed out that although the searches by the Durham Regional “yielded a substantial amount ofcredit and debit cards, statements of account, receipts, etc., and the bust-out ledger (in the Rover)…. none of these items were linked toMs Neeranjan”. [92] Count 67 alleges that Neeranjan defrauded Maple Trust of an amount exceeding $5000 dollars by inducing the institutionto release mortgage funds to purchase 47 Portelli Crescent by means of a falsified employment letter as well as a document enumeratinga gift of $15,000.

It is submitted that the Crown “has not led any evidence to suggest that Ms Neeranjan was not so employed andremunerated at that rate or that in fact it was Ms. Neeranjan’s who tendered the employment letter, nor has it provided any evidence torefute the existence of a gift in the above amount”. In addition, it is asserted that there is no evidence Neeranjan “ever set foot” inside 47Portelli or “was or could have been aware of it being used as a potential mail drop location”. [93] With respect to the search and seizure of 30 Bissland Drive, Mr.

Basile submits that the evidence does not clearlyestablish who lived at the residence and what rooms any such people occupied. Moreover, there is “no evidence of Ms Neeranjanknowing that the credit cards were…fraudulent… [or] knew the cash was there.

It is noteworthy that most of the cash found…was in aroom that someone else occupied, not Ms Neeranjan( only 6 to 7 thousand dollars was found in a room that the police have described asthe Master bedroom)…. there is a complete lack of evidence linking stolen items or criminal activity to Ms Neeranjan [and] no evidenceagainst Ms Neeranjan pertaining to count 94 (Fraud Over $5000 in relation to Avis Car Rentals)”. Mr.

Basile adds that it has not beenshown that Neeranjan knew that furnishings and other property at 30 Bissland was proceeds of crime (count 92) or that she attempted toobstruct justice by using post office boxes to conceal where she lived and what she did (count 59). 3.4. Hariharan Nesarajah [94] Mr. Santoro, on behalf of Hariharan Nesarajah, “accepts that the evidence presented by the Crown discloses a conspiracyto defraud credit card companies perpetrated by Kuhen Neshan and Ramanan Kenegarajah.

The evidence does not implicate HariharanNesarajah as a member of this conspiracy… [or]…. in any criminal organization offences arising from the fraudulent credit card relatedactivities….the Crown is asking this Court to draw inferences of guilt against Mr. Nesarajah from evidence seized from Apartment 311-11753 Sheppard Avenue East in Toronto”. Mr. Santoro submits that the evidence in this case, including the seizures made at 311-11357Sheppard Ave, does not establish his client’s knowledge and/or participation in criminal activity.

In any event, it is argued that theevidence obtained by police at the condominium unit should be excluded because police breached

section 8 of the Charter. [95] The search uncovered forged government-issued identification (a SIN card and Canadian Citizenship Card, the latter withNesarajah’s picture on it) and credit cards in the name of “Siva Rajan”. These seizures, Mr. Santoro states, form the crux of the Crown’scase against Nesarajah and adds that “on the evidence presented, this court is entitled to draw the inference that the Siva Rajan cardswere obtained and used by Mr. Ramanan Kenegarajah and/or Mr. Kuhen Neshan with neither the knowledge nor the consent of Mr.Nesarajah. Since this inference is consistent with Mr. Nesarajah’s innocence, the rule in Hodge’s Case demands an acquittal.”

[ 96 ] According to Mr. Santoro, the innocent inference can be drawn from the following facts: Kenegarajah used Apartment 311-11753 Sheppard as a residence Kenegarajah has listed this apartment as his own home address in documents filed with the Canada Revenue Agency. When stopped by police on April 24, 2008 Kanagarajah stated this was his address The Siva Rajan cards were apparently last used in 2008 i.e. when Kanagarajah told police he was living in the apartment in question Neshan and Kenegarajah were observed attending the building on several occasions Neshan is the owner of the apartment unit Mr.

Kenegarajah appropriated Mr. Hariharan Nesarajah’s identity (including name and birthday) solely for his own benefit and without his consent. He obtained a BC Drivers’ License in Mr. Nesarajah’s name. Furthermore, in December of 2001, Kenegarajah was arrested at Pearson Airport by the Toronto Police Service and identified himself as Hariharan Nesarajah. Kenegarajah clearly has criminal use for forged government issued identification with the pictures of persons other than themselves.

There is evidence before this court that Kenegarajah used a false Ontario Driver’s License with another person’s name and picture to get a fraudulent credit card. 10 Therefore despite the fact that the one of the cards has Mr. Nesarajah’s picture on it, Kenegarajah would himself have had a criminal use for this identification. The cards were not found in plain view, but in a wallet on a shelf in a closet in a bedroom, increasing the likelihood that Nesarajah was not aware of their existence. [ 97 ] Mr.

Santoro suggests that there is not evidence that Nesarajah made hundreds of calls from any cell phone found in his apartment. Counsel also objects to the Crown’s assertion that Nesarajah is linked to the Siva Rajan credit cards because of a Canadian Tire receipt and hand written notes found in the Audi motor vehicle he was observed to drive. Mr. Santoro claims the receipt does not contain the name “Siva Rajan” and that the notepaper records “Sivarajan” (one word). [ 98 ] Mr. Santoro seeks the exclusion of evidence seized at his client’s condominium unit.

He does not challenge the validity of the search warrant but objects to the manner in which it was executed. He claims that the police seized items without reference to the terms of the warrant and the resulting over-seizure taints everything. 3.5. Rajitha Kanagarajah [ 99 ] Ms Rekai, on behalf of Rajitha Kanagarajah, adopts the Charter argument presented by Mr. Santoro with respect to the search of the condominium unit she shared with her husband.

Moreover, she “does not contest the evidence, presented by the Crown that purports to disclose an enterprise in common between Kuhen Neshan and Ramanan Kenegarajah, to defraud credit card providing companies”. Ms Rekai maintains that it has not been proven that her client knew about or participated in these activities. In this regard, Ms Rekai makes the following points: Neshan is the registered owner of 11753 Sheppard Avenue East #311 with her husband and daughter.

There is no evidence that Kanagarajah had any knowledge of the employment letter submitted with her mortgage application for 1640 Pennel Drive – “The witness brought by the Crown admitted in cross-examination that this document was never reviewed with Ms. Kanagarajah”. The lease of the "Land Rover" in Kanagarajah’s and the payment of the lease by her “does not evidence any criminal behaviour on the part of Rajitha Kanagarajah”.

There is no evidence that the gift by Neeranjan to Kanagarajah of her interest in a British Columbia property, dated 23 July 2009, would be "relied upon by mortgage lenders in the process of deciding whether (and how much) to extend credit to Rajitha Kanagarajah". Mr. Aivalis identified Kanagarajah as receiving rent cheques and mail with respect to the Pennel Drive address but there is “no evidence that Ms.

Kanagarajah had any knowledge of the contents of those letters or used them in any unlawful way”. “The Crown alleges that the finding of documentation regarding the sale of 24 Steamer Drive Whitby in the premises of 30 Bissland Drive in Ajax is indicative of a relationship between the illegal activities of Ramanan Kenegarajah and his sister Rajitha Kanagarajah.

The find of certain documentation belonging to one sibling in the possession of another sibling is equally indicative of an innocentsibling relationship as anything else”. A number of credit cards or notations in the ledger books seized by from the Land Rover are connected to 311-11753 Sheppard Ave “butwere never found in the possession of Rajitha Kanagarajah… [and] here is no evidence that Ms. Kanagarajah had any knowledge orcontrol of any of these documents”. 4. Applicable Legal Principles 4.1. Criminal Law Standard of Proof [100] The defendants are presumed to be innocent.

That presumption remains until such time as the Crown has shown them tobe guilty. This must be proven beyond a reasonable doubt and applies to each element of each offence. 4.2. Fraud [101] Fraud is alleged in count 1 (main charge), counts 3-10 (financial institutions), counts 66-69 (financial institutions remortgages/real estate transactions), and count 94 (Avis); Fraud has two elements - dishonest act and deprivation.

The dishonest act isestablished by proof of deceit, falsehood or other fraudulent means; and deprivation is established by proof of detriment, prejudice, orrisk of prejudice to the economic interests of the victim, caused by the dishonest act. The mens rea is the subjective awareness that onewas undertaking a prohibited act (the deceit, falsehood or other dishonest act) which could cause deprivation in the sense of deprivinganother of property or putting that property at risk. See R. v. Théroux, (SCC), [1993] 2 S.C.R. 5 4.3.

Money Laundering [102] Count 92 on the Information alleges that: Between the 1st day of January in the year 1997 and the 3rd day of March in the year 2010 … in the Province of Ontario … [the co-defe

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