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The case highlights the frailties of ‘earwitness evidence’ and cross-racial investigations of crime

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Drugs, cash, and contraband cigarettes were seized in the 2020 probe. Photo by CFSEU

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Three Indo-Canadian men arrested in a major RCMP-led drug investigation have been acquitted after a judge rejected English-speaking police officers’ identification of who was talking with foreign accents in secret recordings of a large-scale drug conspiracy.

The case highlights the frailties of “earwitness evidence” and cross-racial investigations of crime.

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It started in July 2019 with information that a man in Vaughan, north of Toronto, was selling fentanyl.

A special multi-force anti-organized crime unit called the Combined Forces Special Enforcement Unit began an investigation, codenamed Project OSwordtail, with the prefix O meaning it is an Ontario-based RCMP investigation.

After a year of undercover infiltration, video surveillance, wiretapped phone calls and a hidden microphone in a warehouse, officers in and around Toronto moved in for arrests and searches of homes and businesses.

In the August 2020 announcement, police said they busted criminal groups involved in importation, exportation and distribution of cocaine, fentanyl, heroin, opium and ketamine. More than 35 kilograms of cocaine and five kilograms of fentanyl, heroin, and opium were seized, along with three vehicles with hidden compartments.

Prosecuting John Palumbo, the Vaughan man who was the first focus of the probe, was easy. It was his cellphone and warehouse in Vaughan that were wiretapped by police. He sold a kilo of cocaine to an undercover officer for $76,000 and arranged to sell 30 kilos more, court heard. He quickly pleaded guilty to trafficking cocaine and possessing proceeds of crime.

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Palumbo had told an undercover cop he was getting the cocaine from his “guy” and he made those arrangements independent of the officer.

That made figuring out who his “guy” was the tricky part.

Police alleged it was Ravi Shanker, who operated a liquidation business in Brampton, court heard. Police alleged he plotted drug sales with Havinder Singh and Sukhsimrat Pawar. All three men were charged with conspiracy to traffic cocaine and trafficking cocaine.

Wiretap recordings of Palumbo speaking on his phone and at meetings in his warehouse were played in court.

A hidden camera outside the front of Palumbo’s warehouse recorded people coming and going. Shanker, Singh, and Pawar were among the people visiting the facility. They didn’t deny they came and went, but the video didn’t record any drug transactions.

The primary evidence of the identity of Palumbo’s supplier was captured only on audio recordings and required voice identification of the person talking.

Police testified they were sure it was Shanker.

“Some of the pitfalls in the use of electronic audio techniques as means of generating audio identity evidence are under scrutiny particularly, in this case, as they concern English-speaking officers seeking to identify crime suspects speaking with foreign accents unfamiliar to the officers,” Judge Beth Allen wrote in her Ontario Superior Court of Justice decision released Oct. 13.

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“The fear, of course, is a wrongful conviction. Much has been spoken of and written about the frailties of eyewitness evidence. But not so for voice identification evidence.”

It’s called “earwitness evidence.”

“Shanker’s counsel raised the issue of voice identification particularly in relation to persons who may be speaking with a foreign accent unfamiliar to the wiretap investigators,” Allen wrote.

“The evidence is that Shanker is believed to have a Punjabi accent although I, understandably, did not hear his voice as a witness in court as he exercised his constitutional right to silence. My focus is on the police and whether they accurately and reliably identified the voice as that of Shanker in the audio probes and phone interceptions.”

Five police officers testified about the voice. None were Punjabi speakers. The officers variously described the voice as being “Asian,” “East Indian,” “Southeast or South Indian” and “South Asian.”

One officer said the voice was distinctive but had difficulty explaining its distinctiveness, apart from saying it had a South Asian accent and was “very monotone,” according to court. Another said the voice was “unique,” with a certain dialect or tone, but said he did not recognize the accent.

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Allen said courts must be cautious with earwitness evidence.

“Studies show, and Canadian courts have warned, that voice identification evidence is even more risky to rely on than eyewitness identification and must be treated with the utmost caution.”

Allen said the prosecution proved there was a drug conspiracy between Palumbo, the undercover officer pretending to be a narco, and the supplier of the cocaine, but failed to prove the voice of the supplier was that of Shanker. Allen wondered in her written decision why police didn’t use a hidden video camera rather than just a microphone to monitor such high-volume transactions.

Court heard alternate explanations for the men’s visits to Palumbo. Singh, the only one to testify, said he ran a long-haul trucking company and needed personal protective equipment for his drivers during COVID-19 restrictions.

He testified that he contacted Shanker, known in the Punjabi community as a liquidator, who said he would arrange to buy protective supplies from Palumbo.

With the judge unable to find that Shanker was supplying the cocaine, the other two men, who were only seen with Shanker at the warehouse on various occasions, couldn’t be found to be involved in the cocaine deals either.

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All three were found not guilty of conspiracy to traffic cocaine and of trafficking cocaine.

Pawar was also charged with possession of opium for the purpose of trafficking after 214 grams of it was found at his Brampton home when it was searched by police after his arrest. Pawar conceded it was his and he was found guilty of that charge alone.

Alan Gold, lawyer for Shanker, said the decision was a good one.

“They were blind to the issues of cross-racial voice identity, in the same way police have been blind to cross-racial visual identity,” Gold said in an interview.

“Justice has been done.”

RCMP Cpl. Christy Veenstra said “we are aware of the Superior Court’s decision and are reviewing the findings.”

• Email: ahumphreys@postmedia.com | X: AD_Humphreys

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