DATE: 20020121 DOCKET: C36083
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) –and– PETER MONTOUR
BEFORE:
FINLAYSON, CARTHY and WEILER JJ.A.
COUNSEL:
John M. Rosen, for the appellant
Howard Leibovich, for the respondent
HEARD:
January 14, 2002
RELEASED ORALLY:
January 14, 2002
On appeal from the order of Justice Linda M. Walters dated March 30, 2001 granting certiorari upon grounds involving a question of law alone.
E N D O R S E M E N T
[1] The appellant was charged, together with Michael Bonduro and Vincent Montani, with the offences of extortion, conspiracy to commit extortion, threatening death and conspiracy to threaten death in relation to the victim, Richard West. West was a stock trader and promoter who entered into a business venture with George Lodick and Paul Trennum. Following a dispute with Lodick and West, Trennum left the venture. Nonetheless, Trennum claimed that he was owed a debt amounting to 1.5 million shares in the venture, and he would call West from time to time to assert his claim for shares. When Trennum subsequently went to work for Bonduro, he told him about the business venture and his dispute with West and Lodick. Trennum also told Bonduro that he would invest money in Bonduro’s failing company by selling the shares he was owed, provided that he was able to obtain the shares from West.
[2] The appellant was involved in failed negotiations to settle West’s outstanding debt. At the time, the appellant was indebted to Bonduro, who was very interested in West’s debt. The appellant lied and misled the victim. He encouraged and drove the victim to meet Montani in a deserted parking lot. In fact, if not for the appellant, the victim would not have attended the meeting. After Montani threatened the victim, he thanked the appellant for setting up the meeting. Shortly thereafter, the appellant told the victim that he could only help him until the upcoming Friday.
[3] This evidence from the preliminary inquiry is reasonably capable of supporting the inference that the appellant knew of the planned threat and extortion of the victim and was thus a part of the conspiracy. The preliminary hearing judge, however, chose an inference of a different nature and found that the appellant was an innocent dupe of Bonduro and that he merely facilitated the meeting without knowing its purpose.
[4] In R. v. Campbell (1999), 1999 2372 (ON CA), 140 C.C.C. (3d) 164 at 165, this court stated:
As Campbell J. said in R. v. McIlwain (1988) 67 C.R. (3d) 397 (Ont. H.C.J.) at 399, the preliminary hearing is not the forum for weighing competing inferences or for selecting from among them. That is the province of the trier of fact at trial. In R. v. Dubois (1986), 1986 60 (SCC), 25 C.C.C. (3d) 221 (S.C.C.), Estey J. made it clear that it is jurisdictional error for a preliminary hearing judge to enter upon this province.
[5] Accordingly, the preliminary hearing judge was in error in drawing an alternative inference and the motions judge was correct in quashing his decision.
[6] The appeal is dismissed.
Signed: “G.D. Finlayson J.A.”
“J.J. Carthy J.A.”
“K.M. Weiler J.A.”