



COURT OF APPEAL FOR
    ONTARIO

CITATION: R. v. Sandhu, 2020 ONCA 479

DATE: 20200722

DOCKET: C62953,
C62960,
    C63063 & C63092

Watt, Pardu and Roberts JJ.A.

DOCKET:
    C62953

BETWEEN

Her Majesty the Queen

Respondent

and

Randeep Sandhu

Appellant

DOCKET:
    C62960

AND BETWEEN

Her Majesty the Queen

Respondent

and

Waseem Iqbal

Appellant

DOCKET:
    C63063

AND BETWEEN

Her Majesty the Queen

Respondent

and

Ashok Sharma

Appellant

DOCKET:
    C63092

AND BETWEEN

Her Majesty the Queen

Respondent

and

Dimitri Alexiou

Appellant

Faisal Mirza, for the appellant Randeep
    Sandhu (C62953)

Ravin Pillay, for the appellant Waseem
    Iqbal (
C62960)

Lance Beechner, for the appellant Ashok
    Sharma (C63063)

Breana Vandebeek, for the appellant
    Dimitri Alexiou (C63092)

Jeremy Streeter, Marina Elias and Amanda
    Karen Webb, for the respondent

Heard: February 27, 2020

On appeal from the convictions entered
    on October 6, 2016 and the sentences imposed on December 16, 2016 by Justice J.
    David McCombs of the Superior Court of Justice.

By the Court:

[1]

After a lengthy trial before a judge of the
    Superior Court of Justice sitting without a jury, the appellants were found
    guilty of trafficking and of possession for the purpose of trafficking in
    cocaine. The trial judge entered convictions on the counts of trafficking and
    interim stays on the preliminary offence of possession of cocaine for the
    purpose of trafficking. He then imposed sentences of between 6 and 12 years in
    the penitentiary.

[2]

The appellants appeal their convictions. The
    appellants Sandhu and Alexiou also applied for leave to appeal sentence, but
    did not pursue those appeals in their factums or during oral argument.

[3]

At the conclusion of oral argument, we dismissed
    the appeals. We said we would provide reasons for our conclusion. Those reasons
    follow.

The Background Facts

[4]

As a result of information provided by a
    confidential informant (CI), members of the Toronto Police Service (TPS) began
    an investigation of the appellant Sandhu, designated Project Odyssey. The CI
    provided information to a member of TPSs Intelligence Services Unit. The CIs
    handler passed on this information, but not the identity of its source, to TPSs
    Major Drug Squad.

[5]

Project Odyssey involved about a dozen officers
    who conducted surveillance on a number of individuals, principally (but not
    exclusively) the appellants. The activities observed occurred at various places
    between the GTA and the Bluewater Bridge border crossing at Sarnia. Police
    observed and photographed several individuals and vehicles. Drivers switched vehicles.
    Meeting places included parking lots. Brief conversations took place. Exchanges
    occurred. Bags were purchased, loaded, put into the trunk of one vehicle, then
    transferred to another.

[6]

These observations took place over about a week
    and resulted in the arrest of nine individuals, six of whom (including the four
    appellants) were tried jointly.

[7]

On two separate days, seizures at three
    different locations yielded 71 kilograms of cocaine, 3 kilograms of
    methamphetamine, 345 grams of GHB and a small amount of marijuana.

[8]

The principal evidence adduced at trial
    consisted of testimony from surveillance officers who described the
    observations they made and identified photographs they took during Project
    Odyssey.

[9]

None of the appellants testified or called any
    evidence at trial.

[10]

The issue for the trial judge to decide was
    whether the cumulative effect of the evidence and reasonable inferences
    available from that evidence established the elements of the offences charged
    with the required degree of certainty.

The Initial Observations

[11]

During the first few days of Project Odyssey 
    in early May, 2013  surveillance officers observed various activities among
    the appellants Sandhu, Iqbal and Sharma. Attendance at trucking facilities.
    Observations of tractor-trailer units. The use and interchange of different
    vehicles. Attendance at various places with papers in hand. Brief
    conversations.

The Activities of May 6

[12]

On May 6, 2013, surveillance of Sandhus residence
    began in the early morning. At first, Sandhu was alone in his vehicle. Within
    an hour, he was joined at different times by two other men  one believed to be
    Thakur and the other unknown to investigators. They drove around to several places.
    Stopped at parking lots. At a Tim Hortons outlet. At gas stations. The unknown
    passenger made some telephone calls from phone booths. Shortly thereafter, Sandhu
    drove the vehicle to Iqbals house, where he parked outside with the lights off
    for about ten minutes. At some point thereafter, Thakur left the vehicle.

[13]

Sandhu and his unknown passenger drove to
    Sarnia. En route, they stopped at a gas station where the passenger made two
    calls from a phone booth. After one change of drivers, they arrived at the
    Holiday Inn in Sarnia, a property that faces the inspection area of the Canada Customs
    yard adjacent to the Bluewater Bridge. Over the next two hours, the vehicle
    remained in Sarnia at different parking lots.

[14]

Around 10:20 a.m., Sandhu and his passenger left
    Sarnia and drove eastbound towards Toronto. They changed drivers once before
    arriving at a Walmart in Milton. They entered the store. Minutes later they
    returned to their vehicle with three black carry-on suitcases. The suitcases
    appeared to be empty. The men put the suitcases into the back of their vehicle,
    then drove to a tire company where they parked. The driver of a tractor-trailer
    that had been observed at the Canada Customs yard in Sarnia approached the
    drivers side of Sandhus vehicle. The vehicles left the tire company together
    and travelled in tandem to an area near a pipeline business.

[15]

Surveillance officers saw what appeared to be
    feet and a portion of a black suitcase along the side of the truck. Sandhu and his
    passenger left the area in the same vehicle. The truck remained on the shoulder
    of the road.

[16]

Sandhus vehicle proceeded to a different
    Walmart, this time in Mississauga. Sandhu went into an adjacent Canadian Tire
    store and emerged a few moments later along with Thakur and the appellant Iqbal.
    All three men boarded a different vehicle, a Jeep, which Thakur drove to the Walmart
    parking lot and parked directly beside Sandhus vehicle.

[17]

The men exited the Jeep. The trunks of both
    vehicles were opened. Iqbal looked and then reached into the trunk of Sandhus
    vehicle. Sandhu took the three black suitcases  which now appeared weighted  out
    of the trunk of his vehicle and put them in the Jeep.

[18]

Sandhu handed Thakur a cell phone. Iqbal shook Thakurs
    hand. Sandhu and Iqbal got into Sandhus vehicle with the unknown man who had
    travelled to Sarnia that morning, and drove to another parking lot in the same
    complex. Thakur remained in the parking lot and appeared to be keeping watch on
    his own vehicle, which contained the suitcases but no occupants.

[19]

About ten minutes later, another vehicle arrived
    and parked behind and beside Thakurs vehicle. The vehicle had three occupants:
    the driver (a man unknown to police) and two passengers. One passenger was the
    appellant Alexiou, who had arrived earlier that
morning on a flight from Montréal. The other was a man
    later identified as
Gursharan
Singh
.

[20]

Alexiou exited the vehicle and walked over to
    the Jeep. After opening its rear hatch and looking inside, Alexiou boarded the
    Jeep. Singh joined him. Thakur got into the vehicle in which Alexiou and Singh had
    arrived. Both vehicles left the Walmart lot and drove to a restaurant in the same
    shopping complex. Meanwhile, Iqbal arrived at the Walmart lot, in yet another
    vehicle, and parked next to Sandhu.

[21]

Four men then entered the restaurant: Alexiou, Thakur,
    Singh and the driver of the car in which Alexiou and Singh had arrived. Alexiou
    soon came back out, followed by Singh and Thakur. After a brief conversation,
    they re-entered the restaurant.

[22]

A few minutes later, all four men emerged. The
    unknown driver returned to the car in which he had arrived and drove off.
    Alexiou, Thakur and Singh boarded the Jeep. They drove back towards the Walmart
    lot and circled it before pulling up beside a taxi parked near a bank in the
    same complex.

[23]

Alexiou removed the three black suitcases from
    their vehicle and put them in the trunk of the taxi. Alexiou got into the taxi,
    on the passengers side. The two vehicles then travelled in tandem towards
    downtown Toronto.

[24]

As the taxi headed downtown, police officers
    boxed in the vehicle, arrested Alexiou and seized the three black suitcases he
    had put into the trunk. One bag bore a Walmart store label and price tag. Each
    bag contained 11 one-kilogram bricks of cocaine, for a total of 33 kilograms.

[25]

When police searched Alexiou incident to his
    arrest, they found a key marked OMNIA and a white swipe card. These items
    were quickly linked to the King Edward Hotel and Residences, in particular, to Unit
    437. A search of the apartment yielded 28 kilograms of cocaine, 3 kilograms of
    methamphetamine and 345 grams of GHB. Officers also located a debt list and three
    digital scales.

The Events of May 8

[26]

Around noon two days later, police saw the same
    truck they had seen on May 6 crossing the Bluewater Bridge at Sarnia. After
    clearing Customs, the driver drove east until he reached the parking lot of Bayer
    Inc. on Belfield Road. The appellants Sandhu and Sharma were already there,
    waiting in Sharmas vehicle.

[27]

The truck driver got out, opened the hood of his
    truck and looked into the engine compartment. While he remained by the hood
    area, Iqbal pulled into the lot and parked next to Sandhu and Sharma. He was driving
    the same vehicle as on May 6.

[28]

Sandhu left Sharmas vehicle, walked to the
    passenger side of the truck and opened the door. He reached into the cab of the
    truck while the driver remained in the drivers seat. Sandhu removed a bag that
    appeared to be weighted, stepped down from the truck and walked towards the
    vehicle in which he had arrived.

[29]

When the trunk of the vehicle popped open, Sandhu
    put the bag in the trunk and got into the passenger side of the vehicle. This
    vehicle and that driven by Iqbal proceeded in tandem to the same shopping
    complex in which they had parked two days earlier. The drivers parked their
    vehicles side-by-side, remained there for a couple of minutes, then drove in
    tandem to a nearby restaurant. There, Sandhu and Sharma got into Iqbals
    vehicle and all three drove to Iqbals home, located a few minutes away. Iqbal
    left the others and entered his house.

[30]

The appellants Sharma and Sandhu then drove back
    to the restaurant and went inside. Twenty minutes later, they came back outside
    and walked over to the vehicle in which they had originally driven to the
    parking lot at Bayer Inc. They stood around for another 20 minutes. During this
    time officers observed Sharma open the trunk and Sandhu reach inside, appearing
    to rummage through the contents of something. Sharma was seen looking into the
    trunk as he did so.

[31]

Sharma and Sandhu returned to the Walmart parking
    lot. They drove up and down the rows of vehicles, eventually parking beside a
    vehicle driven by a man later identified as Chung Mok. The vehicles drove in
    tandem to an adjacent lot where Sandhu retrieved the bag he had removed from
    the truck earlier. The bag appeared heavy. Sandhu put it in the back seat of Moks
    vehicle. After moving the bag from the back seat to the trunk, Mok drove away.

[32]

About two hours later, police arrested Mok as he
    left his home. A warranted search of his home revealed ten one-kilogram bricks
    of cocaine. One brick appeared to have been cut open, as if to test its
    contents. Nine of the bricks were found in a gym bag which looked similar to the
    bag handled by Sandhu and Mok earlier that day.

The Grounds of Appeal

[33]

The appellants advance three grounds of appeal.
    They say the trial judge erred:

i.

in the procedure followed and conclusion reached
    on an application by Sandhu for a determination that CI privilege did not apply
    to a particular individual, with the result that the Crown should have been
    required to call or produce that individual to give evidence at trial;

ii.

in declining to stay the proceedings on the
    basis of alleged police misconduct; and

iii.

in entering findings of guilt and convictions
    that were unreasonable.

Ground #1: The CI Issues

[34]

Trial counsel for Sandhu (not counsel on appeal)
    raised this issue on the twelfth day of trial. The Crown had not yet completed
    its case. After discussion with counsel, the trial judge directed that the
    issue should await the close of the Crowns case. He ruled that he would decide
    the issue before putting the defence to their election about calling evidence.

The Background Facts

[35]

As noted, the catalyst for Project Odyssey was a
    tip, provided to TPS by a CI, that Sandhu was about to receive a large shipment
    of cocaine.

The Application at Trial

[36]

Trial counsel for Sandhu sought a declaration
    that a person, whom Sandhu identified by name and who had been described
    throughout the surveillance evidence as U/KM1, was either a police agent or a
    material witness and thus was not entitled to CI privilege. This persons
    evidence, Sandhu claimed, was essential to demonstrate his genuine belief that
    the contraband involved was not cocaine, but electronic equipment.

[37]

The Crown invoked s. 37(1) of the
Canada Evidence Act
,
R.S.C., 1985, c. C-5,
to
    resist the disclosure of any information that might tend to identify the CI and
    sought summary dismissal of the application based on an affidavit from the CIs
    handler at TPSs Intelligence Services. The Crown contended
there was no air of reality to Sandhus claim that U/KM1 was the
    CI, much less that the CI privilege did not apply because the person was a
    police agent or met the innocence at stake exception.

[38]

The trial judge rejected the Crowns application
    for summary dismissal of Sandhus motion.

The Procedure Followed

[39]

With the agreement of counsel, the trial judge
    conducted an
in camera
and
ex parte
hearing to determine
    whether the CI was a police agent. Before the hearing, trial counsel for Sandhu
    was permitted to file an application record, a book of authorities and written
    submissions outlining Sandhus position on the issues and the outcome of the
    hearing. Counsel provided the judge with a list of 77 questions to be put to
    the CIs handler about the CIs identity, relationship with the police,
    background, motives and potential role in the commission of the offences. The
    trial judge, during a hearing that lasted one and one-half days, conducted a vigorous
    cross-examination of the handler, including all areas suggested by trial
    counsels questions.

[40]

Counsel for the appellants did not ask the trial
    judge:

i.

to appoint
amicus
for the
in camera
,
ex parte
hearing;

ii.

to prepare a summary or provide a redacted transcript
    of the hearing; or

iii.

to permit oral submissions at the conclusion of
    the hearing on the issue of whether the CI was a police agent.

[41]

Trial counsel for the Crown prepared a summary
    of the evidence adduced at the
in camera
,
ex parte
hearing. The trial judge, who described
    the Crowns summary as accurate and complete, permitted counsel for Sandhu to
    review the summary prior to making her reply submissions on Sandhus innocence
    at stake motion. Counsel did not seek an expansion of the summary, nor make any
    meaningful reference to it in her submissions.

[42]

The appellant Sandhu gave evidence on the hearing,
    held in open court, to determine whether the innocence at stake exception applied.
    Sandhu alleged that the CI, whom he named, was a material witness to the
    relevant events. This evidence could support Sandhus assertion that he
    believed the contents of the suitcases were merely electronics, not drugs.

The Reasons of the Trial Judge

[43]

The trial judge was satisfied that CI privilege
    applied to the CI in this case. The CI was not a police agent or a material
    witness whose testimony was essential to demonstrate Sandhus innocence.

[44]

The trial judge rejected Sandhus testimony on
    the innocence at stake/material witness motion. His evidence was simply not
    believable. Deficient in detail. Selective in recall. Inconsistent when
    confronted with contradictory evidence. And limited to the events of May 6, as
    U/KM1 was not present for the May 8 trip to Sarnia.

The Arguments on Appeal

[45]

As we understand it, Sandhu contends that the
    trial judge erred in several respects, not only in his conduct of the
in
    camera
,
ex parte
hearing, but also in his supervision of the in-court innocence at stake/material
    witness inquiry and his subsequent use of the evidence given there in
    determining whether Sandhus guilt had been proven beyond a reasonable doubt.
[1]


[46]

Sandhu alleges several specific errors, the
    cumulative impact of which, he submits, requires a new trial. He says the trial
    judge erred in conducting the
in camera
,
ex parte
hearing to determine the CIs status as
    a police agent by:

i.

failing to appoint
amicus
or a special
    advocate to protect the appellants interests at the hearing;

ii.

failing to prepare a judicial summary or a
    redacted transcript of the proceedings to facilitate informed argument by defence
    counsel on both applications made at trial; and

iii.

failing to provide reasons sufficient to permit
    meaningful appellate review of his conclusion that the CI was not a police
    agent.

[47]

In this court, Sandhu also seeks an order under s.
    683(1)(a) of the
Criminal Code
that we prepare a judicial summary or
    redacted transcript of the
in camera
,
ex parte
hearing to facilitate argument of this ground of appeal.

[48]

In connection with the open court innocence at
    stake/material witness hearing, Sandhu says the trial judge erred in three
    respects:

i.

by permitting Crown counsel to cross-examine Sandhu
    at large, rather than confining cross-examination to issues directly relevant
    to the
voir dire
;

ii.

by using evidence given on the
voir dire
to
    determine whether the Crown had proven the appellants guilt at trial; and

iii.

by failing to provide reasons sufficient to
    permit meaningful appellate review of the ruling made at the conclusion of the
    innocence at stake/material witness
voir dire
.

Discussion

[49]

This issue arose when trial counsel for Sandhu
    applied for a declaration that the CI was either a police agent or a material
    witness. When the trial Crown objected, it fell to the trial judge to determine
    whether the CI privilege barred disclosure of the CIs identity.

[50]

A hearing to determine the applicability of the
    CI privilege proceeds on the basis that the privilege does, in fact, apply:
R.
    v. Durham Region Crime Stoppers Inc
., 2017 SCC 45, [2017] 2 S.C.R. 157, at
    para. 35;
R. v. Basi
, 2009 SCC 52, [2009] 3 S.C.R. 389, at para. 44;
    and
Named Person v. Vancouver Sun
, 2007 SCC 43, [2007] 3 S.C.R. 253,
    at para. 47. No one outside the circle of privilege  the police, the Crown and
    the court  may access information over which the privilege is claimed until
    the presiding judge has decided that the privilege does not exist or that the
    single exception  innocence at stake  applies:
Durham Regional
, at
    para. 35;
Basi
, at paras. 43-44.

[51]

At this first stage hearing, participation is
    limited to those within the circle of privilege. The hearing is conducted
in
    camera
and
ex parte
:
Basi
, at paras. 38, 44 and 53;
Named
    Person
, at paras. 41, 46 and 49.

[52]

As we will explain, we are satisfied that the
    trial judge did not err in the procedure he used to conduct the first stage
    hearing.

[53]

First, the procedure followed  an
in camera
,
ex parte
hearing, including
    only those within the circle of privilege  is consistent with the governing
    authorities. It was also the procedure proposed by trial counsel for Sandhu,
    the party asserting the inapplicability of the privilege. Provided an
    evidentiary basis exists upon which the applicability of the privilege may be
    determined, there is no
per se
rule that the CI must testify on the
    hearing.

[54]

Second, prior to the hearing, the trial judge
    permitted defence counsel to file written submissions outlining their position and
    the result they sought.

[55]

Third, also prior to the hearing, the trial
    judge invited and received questions formulated by defence counsel to be put to
    the CI handler. During the hearing, which lasted one and one-half days, the
    trial judge covered all areas contemplated in these questions through what he called
    a vigorous cross-examination. Among other subjects, the questions related to
    the CIs identity, relationship with the police, background, motivation and
    potential role in the commission of the advances charged.

[56]

Fourth, the procedure adopted to protect the
    interests of accused, despite their absence from the hearing, falls within and is
    best left to the discretion of the trial judge:
Basi
, at paras. 55,
    58. Like other exercises of discretionary authority, the choices made by the
    trial judge are subject to substantial deference in this court.

[57]

In this case, the appellants now say the trial
    judge erred in failing to appoint
amicus
or special advocate to
    represent their interests at the
in camera
,
ex parte
hearing and should have provided them
    with a judicial summary or redacted transcript of the evidence given.

[58]

None of the measures now said to have fatally
    wounded the procedural fairness of the
in camera
,
ex parte
hearing were sought
    at trial. Not
amicus
. Not a special advocate. Not a judicial summary
    of the evidence adduced. Not a redacted transcript.

[59]

The appellants have no unqualified right to any
    of these measures. Each is a matter for the trial judge who is in a better
    position than an appellate court confined to a lifeless transcript to decide
    how best to mitigate any potential unfairness arising from the
in camera
and
ex parte
nature of the proceedings:
Basi
, at para. 58.

[60]

It is worth repetition that this is not a case
    in which the trial judge undertook no evaluative measures. Pre-hearing
    submissions about the scope of the inquiry and the conclusion that should be
    reached. Solicitation of questions for the CI handler. Cross-examination based
    on those questions. Access to a Crown summary described as accurate and
    complete prior to final argument.

[61]

Absent a request for a judicial summary or
    redacted transcript at trial, combined with our conclusion that the failure to
    do so does not reflect error, we do not consider it in the interests of justice
    to compose such a summary or order production of a redacted transcript to
    facilitate argument of the appeal under s. 683(1)(a) of the
Criminal Code
.

[62]

Once the trial judge determined that CI
    privilege applied, it fell to the appellant Sandhu to establish that the
    disclosure sought fell within the innocence at stake exception to the CI
    privilege rule.

[63]

It is uncontroversial that the standard to be
    met to pierce CI privilege  the innocence at stake test  is onerous. Infringement
    should only be permitted where core issues going to the guilt of the accused
    are involved and there is a risk of a wrongful conviction:
R. v.
    Brassington
, 2018 SCC 37, [2018] 2 S.C.R. 617, at para. 36;
R. v.
    McClure
, 2001 SCC 14, [2001] 1 S.C.R. 445, at para. 47.

[64]

To engage the innocence at stake exception, an
    accused must establish that the privileged information is not available from
    any other source and that there is no other way for them to raise a reasonable
    doubt about their guilt:
Brassington
, at para. 37;
Named Person
,
    at para. 27. The accused must furnish a solid evidentiary basis; speculation
    will not do:
Named Person
, at para. 27;
R. v. Barros
, 2011
    SCC 51, [2011] 3 S.C.R. 368, at para. 34; and
R. v. Leipert
, [1997] 1
    S.C.R. 281, at para. 21.

[65]

The CI privilege rule does not permit an
    exception for the right to make full answer and defence, nor does it permit any
    balancing of interests:
Named Person
, at paras. 28, 49;
Leipert
,
    at para. 12;
Barros
, at para. 35; and
Durham Regional
, at paras.
    14-15.

[66]

In this case, the appellant Sandhu testified in
    support of his application to invoke the innocence at stake exception. The
    trial judge, for cogent reasons, did not believe him. Even if believed, it is
    debatable whether Sandhus testimony would have warranted breach of the
    privilege.

[67]

Crown counsel was entitled to cross-examine Sandhu
    on the
voir dire
, to challenge his credibility and the reliability of
    his evidence. Trial counsel for Sandhu acknowledged this much and made no
    complaint about the fairness or scope of the Crowns cross-examination of her
    client. Nor do we.

[68]

Further, we cannot conclude that the trial judge
    relied on any evidence given on the
voir dire
in making his findings
    of guilt at the conclusion of the trial. As the application was proceeding, he
    made it clear that the evidence given by Sandhu could not and would not be
    available for consideration on the trial proper.

Ground #2: Failure to Stay Proceedings for Police
    Misconduct

[69]

The appellant Alexiou reinvigorates an argument
    he advanced at trial. He sought a stay of proceedings based on alleged police
    misconduct. Perjury. Fabrication of notes. Collusion and testimonial
    corrections. Improper note-taking procedures.

[70]

Several reasons persuaded us that this ground of
    appeal was unavailing.

[71]

First, the nature of the decision under review.

[72]

This application was brought at trial. It
    required the trial judge to make findings of fact about certain events. To do
    so, it was necessary for the trial judge to make findings about the credibility
    of various police witnesses and the reliability of their evidence on these and
    related issues. As an ear and eye witness to their testimony, he did so. Those
    findings were open to him. We are unable to discern any palpable or overriding
    error or any material misapprehension of evidence in those findings. Nor are
    they unreasonable. They are subject to significant deference in this
court:
R. v. Donnelly
, 2016 ONCA 988, at para. 44.

[73]

Second, the remedy sought.

[74]

A stay of proceedings is the most drastic remedy
    a criminal court can order. It permanently halts a prosecution:
R. v. Regan
,
    2002 SCC 12, [2002] 1 S.C.R. 297, at para. 53;
R. v. Babos
, 2014 SCC
    16, [2014] 1 S.C.R. 309, at para. 30. Nonetheless, there are rare occasions  the
    clearest of cases  where a stay of proceedings for an abuse of process will
    be warranted. These cases generally fall into two categories:

i.

where state conduct compromises the fairness of
    the trial; and

ii.

where state conduct creates no threat to trial
    fairness but risks undermining the integrity of the judicial process.

See
Babos
, at para. 31;
R.
    v. OConnor
, [1995] 4 S.C.R. 411, at paras. 68, 73.

[75]

For both categories, the test for whether a stay
    of proceedings is warranted consists of three requirements:

i.

prejudice to the accuseds right to a fair trial
    or to the integrity of the justice system that will be manifested, perpetuated
    or aggravated through the conduct of the trial or its outcome;

ii.

no alternative remedy capable of redressing
    prejudice; and

iii.

where uncertainty remains after the first two
    steps have been taken, whether the balance of interests in favour of a stay,
    such as denouncing misconduct and preserving the integrity of the justice
    system, outweighs the interest of society and having a final determination on
    the merits.

See
Babos
, at para. 32;
Regan
,
    at paras. 54, 57.

[76]

Alexious abuse of process claim at trial was
    focused on allegations of state misconduct,
specifically by TPS officers. Based on the evidence before
    him,
the trial judge made certain
    findings of fact about the police officers conduct. These findings led the
    trial judge to conclude
that
    continuing the proceedings would not cause prejudice to any accuseds right to a
    fair trial, nor to the integrity of the justice system.

[77]

We see no reason to
    interfere with this conclusion. No misdirection in law. No reviewable error of
    fact. To the contrary, the judges factual findings were amply supported by the
    record.
His ultimate conclusion flowed inevitably from
    these findings.

[78]

Consequently, this ground of appeal fails.

Ground #3: Unreasonable Verdict

[79]

The final ground of appeal alleges that the
    findings of guilt entered at trial were unreasonable.

[80]

We do not agree.

[81]

A verdict or a finding of guilt may be
    unreasonable in either or both of two ways:

i.

the verdict may be one that no properly
    instructed jury or trier of fact, acting judicially, could reasonably have
    rendered; or

ii.

the verdict represents inferences drawn or
    findings of fact made that are plainly contradicted by evidence relied upon by
    the judge for that purpose, or are demonstrably incompatible with evidence not
    otherwise contradicted or rejected by the trial judge.

See
R. v. R.P.
,
2012 SCC 22, [2012] 1 S.C.R. 746, at para.
    9.

[82]

The evidence in this case was entirely
    circumstantial. The task for the trial judge was to consider the cumulative
    effect of the evidence as a whole to determine whether it met the requisite standard
    of proof. The trial judge was not assigned to examine each piece of evidence
    separately and in isolation, and then to cast it aside if the ultimate
    inference sought did not follow from each individual item alone. Frequently,
    individual items of evidence, examined separately, are of limited probative
    value. But all the evidence must be considered, each item in relation to the
    others
and to the evidence as
    a whole, and it is all of them taken together that must be adjudged against the
    standard of proof required to sustain a conviction:
R.
    v. Button
, 2019 ONCA 1024, at para. 9.


[83]

This case, reduced to its essence, turned on the
    inferences the trial judge would draw from the conduct of the various
    appellants as it was observed, noted and, in many cases, photographed by the
    surveillance officers. It was plain and obvious that cocaine was entering
    Ontario by truck at Sarnia. The truck was driven towards Toronto, the cocaine
    removed from the truck and put in different vehicles for transport to other
    locations. It beggars belief that the appellants knew not what they were about.
    The irresistible inferences available were not the subject of any contrary
    evidence. None of the appellants testified.

[84]

This ground of appeal fails.

Disposition

[85]

As we explained at the conclusion of oral
    argument, the appeals from conviction are dismissed. The sentence appeals of
    Sandhu and Alexiou, which were not pursued at the hearing, are dismissed as
    abandoned. All victim surcharges imposed at trial are set aside.

Released: DW July 22, 2020

David
    Watt J.A.

G.Pardu
    J.A.

L.B.
    Roberts J.A.





[1]
The other appellants adopt Sandhus position on this ground of
    appeal, to the extent it applies to their cases.


