WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 539(1), (2), (3) or (4) of the Criminal Code shall continue. These sections of the Criminal Code provide:

539(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged; or

(d) if he or she is ordered to stand trial, the trial is ended.

(2) Where an accused is not represented by counsel at a preliminary inquiry, the justice holding the inquiry shall, prior to the commencement of the taking of evidence at the inquiry, inform the accused of his right to make application under subsection (1).

(3) Everyone who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction

(4) [Repealed, 2005, c. 32, s. 18(2).]

R.S., 1985, c. C-46, s. 539; R.S., 1985, c. 27 (1st Supp.), s.97; 2005, c. 32, s. 18.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kanthasamy, 2015 ONCA 719

DATE: 20151027

DOCKET: C61039 & C61047

Watt, Hourigan and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thirumal Kanthasamy and Srimoorthy Pathmanathan

Appellants

Counsel: Cate Martell, for the appellant Thirumal Kanthasamy Christopher Assié, for the appellant Srimoorthy Pathmanathan Alison Wheeler, for the respondent

Heard and released orally: October 20, 2015

On appeal from the judgment of Justice Leonard Ricchetti of the Superior Court of Justice, dated September 21, 2015, quashing the order of Justice Paul R. Currie of the Ontario Court of Justice, dated November 1, 2013, discharging the appellants on certain charges at the conclusion of a preliminary inquiry.

ENDORSEMENT

[1] The appellants appeal an order of a judge of the Superior Court of Justice quashing their discharge at the conclusion of a preliminary inquiry on charges relating to a tractor trailer robbery on July 2, 2009. They were ordered to stand trial in connection with several other occurrences of a similar nature.

[2] The case for the Crown consisted entirely of circumstantial evidence, although two former co-accused implicated the appellants in the commission of other robberies for which they were ordered to stand trial.

[3] The principal complaint advanced by the appellants is that the motion judge treated evidence relating to other counts as evidence of similar acts on the counts on which he ordered committal, after the preliminary inquiry judge had ordered a discharge at the conclusion of the preliminary inquiry.

[4] While it may be fair to say that the motion judge did not expressly apply the Perrier analysis to the evidence, he effectively undertook it when he examined the linkage between the appellants and the various robberies.

[5] At all events, we are satisfied that the other July robberies shared significant similarities leaving available an inference that the same group, of which the appellants were members, committed those robberies. The jurisdictional error alleged and identified by the motion judge, was the failure to consider the evidence as a whole. The motion judge’s conclusion on that issue was correct. We would not interfere with it.

[6] The appeal is dismissed.

“David Watt J.A.”

“C.W. Hourigan J.A.”

“Grant Huscroft J.A.”