WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.— (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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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.

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court File and Parties

Court File No.: City of Burlington 13-851

Date: 2014-06-30

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

John Hickey and Aldo Simoni

Before: Justice Stephen D. Brown

Heard on: June 25, 26, 27, 2014

Reasons for Judgment released on: June 30, 2014

Counsel:

• Aris Khoorshed for the Crown
• Marco Sciarra for the accused John Hickey
• Marco Forte for the accused Aldo Simoni

Brown, J.:

1: INTRODUCTION

[1] Both accused are charged that between March 16th and March 18th, 2013 they broke and entered a commercial unit located above the TD Bank located at 4031 Fairview Street in Burlington.

[2] Accordingly, they are charged with Break and Enter to the TD Bank located at 4031 Fairview Street contrary to s. 348(1)(b) of the Criminal Code and Break and Enter of the premises located above the bank, being Unit 211 at 4031 Fairview Street.

[3] They are further charged with possession of break-in tools, to wit; a pry bar, saws, grinders, and drills under circumstances that gave rise to a reasonable inference that the said instruments had been used for such purpose, contrary to s. 351(1) of the Criminal Code.

[4] Finally, they are charged that they did commit mischief by wilfully rendering the property inoperative without legal justification or excuse and without colour of right, property to wit, a lock of John Ball the value of which did not exceed $5000.00 contrary to s. 430(4) of the Criminal Code.

2: EVIDENCE AT THE PRELIMINARY HEARING

[5] A rather brazen bank theft occurred at the TD Bank on Fairview Street in the early morning hours of March 18, 2013. The theory of the Crown is that several individuals executed a well-planned theft that involved scouting out a bank that had vacant premises located above it so that the accused could enter those premises, then break through the floor of the premises into the vault of the bank so that they could loot and plunder it.

[6] The known culprits involved in this are Aleksandar Papic, Besim Rugova, and Mentor Vishaj. They have pleaded guilty to the charges in the fall of last year. The Crown alleges that John Hickey and Aldo Simoni were parties or principals to the crimes.

[7] The evidence at the preliminary hearing establishes at least in regards to the accused that have plead guilty that they were involved in a very sophisticated and well thought out plan to steal large amounts of money and jewellery from the bank and that, absent an alarm that went off and commendable work by the police, they would have succeeded in this plan.

[8] A day or so before the theft, they broke into the upper unit above the bank. They changed the lock on the second floor premise and then commenced to break through the concrete floor of the second floor unit down into the TD Bank vault. Both Papic and Vishaj admitted in evidence to using drills to drill through the 18-inch floor in unit 211 to break through the concrete ceiling of the TD Bank vault located immediately below.

[9] The vault was entered and large quantities of cash and jewellery were taken and placed into two large duffel bags. The entry into the vault triggered an alarm and police attended shortly after 1:00 a.m. on March 18th. Before police could arrive, the culprits ascended into the upper unit and left the building by the back door. They attempted to flee by walking down railway tracks behind the bank, which led them towards the location of the car rented by Rugova, located about one quarter of a mile from the TD bank.

[10] Upon arrival, the police set up a perimeter in the area. After some investigation it appeared that all was well as there were no visible signs of entry into the bank, and the police sergeant in charge ordered the clearing of the perimeter.

[11] However, at about this time, the police were contacted by a security company for the bank and advised that a GPS positioning device that had been in the bank was noted to be moving. An approximate position for the GPS device was given to the police.

[12] The police searched a large field located about one-half of a kilometer to the north-east of the bank and at about 1:53 a.m. discovered near a tree line John Hickey who was located lying face down within feet of Aleksandar Papic and a short distance away Aldo Simoni and Mentor Vishaj, again lying face down within feet of each other trying to conceal themselves in bushes.

[13] Subsequent to this, Besim Rugova was located trying to conceal himself in the tree line. This field was pitch black at the time and access to it could have been gained by walking along railway tracks that ran in an easterly direction behind the bank. All of the suspects were arrested at gunpoint. Upon a search incident to arrest, a switchblade knife was found on Simoni. Although he was charged with Possession of a Prohibited Weapon, Mr. Khoorshed withdrew that charge during these proceedings for reasons that made little sense to me and were, quite frankly, baffling.

[14] A canine search subsequently located the two large duffel bags full of the recently stolen property about 60 meters apart in the vicinity of where the parties were located, hidden in the trees and shrubs.

[15] Located behind a restaurant that was further east of the location where the parties were arrested was a rental vehicle rented by Rugova and beside it, a van owned by the father of John Hickey. Evidence showed that the accused Hickey borrowed that van earlier that week from his father. In the van were found various construction tools, including hammers, circular saws and blades and drill bits.

[16] The clothing of the accused was seized and sent for analysis. Items from Hickey's van were seized and sent for analysis. Concrete and drywall from the TD bank vault was also sent for analysis. Concrete powder and drywall material was found on the clothing of all of the accused and on the tools in Hickey's vehicle. This concrete powder and drywall was examined and compared, and the concrete powder and drywall from the TD bank vault could not be excluded as a possible source from the powder and drywall material found on all the accused's clothing and on the tools in Hickey's van.

[17] Rugova pleaded guilty to these charges, was sentenced and subsequently deported.

[18] Papic and Vishaj pleaded guilty and admitted their participation in the offence, but their counsel at trial made it clear that they were only admitting facts that established their culpability and not that of any other individuals. They are to be deported imminently.

[19] They were called as witnesses for the Crown at this preliminary hearing.

[20] Papic testified that he was recruited to do this job by Rugova and denied that Hickey and Simoni were involved. Similarly Vishaj testified to his involvement in the theft, but denied that he knew Hickey or Simoni or that they were involved. When Constable Brahimir arrested them, Simoni and Vishaj were talking to each other in Albanian. Vishaj did admit to knowing Simoni's brother in Calgary, but denied that he had spoken with him for quite some time prior to this offence.

[21] Papic testified that he had broken into the upstairs premises and that he changed the locks so that they would not be disturbed as they drilled through the floor of unit 211 in order to break through the roof of the bank vault directly below.

[22] He had arrived at the location in a car rented by Rugova that was parked behind a restaurant some distance away to avoid its detection.

[23] Keys to the substituted lock were found on Papic, but on none of the other accused.

[24] He was vague about how the tools were delivered to the location, but he did admit that he used drills to drill through the concrete floor and into the bank vault, used a ladder to enter the bank vault and then hammered the locks of safe deposit boxes and stole cash and jewellery together with Rugova and placed it in duffel bags. He and Rugova took one duffel bag each out the back door of the building.

[25] Papic testified that as he was making his way along the railway tracks he spotted a police officer. In an attempt to avoid detection, he went into the field, abandoned the bag about fifteen feet away from him and hid in the bushes until he was arrested. He said that he was sitting in the bushes, hoping that the police would walk by him and not notice him. He and Rugova were found to have walkie-talkies with them that they used to communicate during the theft. He testified that it was about 35 minutes after he left the vault that he was arrested.

[26] Papic testified that they left the tools used to break into the bank behind at the scene of the break-in. No photographic evidence was introduced nor was any viva voce evidence introduced by the Crown as to what the state was of the upper unit broken into or of the bank vault. It was not possible on the record before me to know whether any tools were left behind at the scene of the break-in.

[27] This omission becomes important when the Crown asks me to link the tools found in Hickey's van as being the tools used in the break-in. If there were no tools left at the scene of the theft, then the tools in Hickey's van take on a greater importance. If the break-in tools were left at the scene of the break-in, then tools found in Hickey's van become less important especially because there was no evidence led that those tools were capable of breaking or cutting through 18 inches of concrete and in light of the fact that Hickey's father testified that his son was involved in construction work.

[28] In cross-examination Papic admitting to knowing Aldo Simoni from Toronto and knowing his family from Albania. He denied that Simoni was involved in the theft or the break-in. He said that he did not know John Hickey.

[29] Constable Lawless testified that his police dog found the duffel bags containing the stolen items sometime after 3:00 a.m. hidden in the field in the vicinity of where he saw some of the accused being arrested earlier on.

[30] No statements were introduced by the Crown.

[31] No evidence was called by the defence at the preliminary hearing.

3: ISSUES BEFORE THE COURT

[32] Counsel differ on whether there is sufficient evidence before the court to commit Hickey and Simoni to stand trial on the charges of break and enter and theft and possession of burglary tools and the mischief charge.

[33] Mr. Sciarra, on behalf of Mr. Hickey, argues that there is insufficient evidence led by the Crown to commit his client to stand trial and that he should be discharged on all counts.

[34] Similarly, Mr. Forte argues that there exists a lack of evidence that would allow me to reasonably infer that his client, Aldo Simoni, was either a principal or a party to the offences charged. Both counsel argue that the expert evidence tendered is equivocal and must not be relied upon to make an impermissible link to allow committal of their respective clients. Both counsel rely upon the decision in R. v. Munoz, [2006] O.J. No. 446 as authority for this proposition.

[35] Mr. Khoorshed for the Crown argued that it is a reasonable inference to be drawn that the presence of concrete dust and drywall material on the accused's clothes, together with the proven facts that both accused were found early in the morning, hiding in the middle of a dark field beside individuals who have plead guilty to the charges and in close proximity to the stolen property in the duffle bags hidden in the field, is sufficient evidence to allow the court to draw the reasonable inference that the accused were parties or principals to the offences charged.

[36] He argues that the presence of concrete dust and drywall on their clothing that could not be excluded as coming from the TD Bank vault is also evidence that, when taken together with all the other evidence, is sufficient to allow a committal to stand trial.

4: ANALYSIS

[37] Ducharme, J. sets out the law very helpfully in the case of R. v. Munoz, supra, where he states at para 18-22 as follows:

One of the purposes of the preliminary inquiry is to determine whether there is sufficient evidence to commit an accused person to trial. Section 548(1) of the Criminal Code, R.S.C. 1985, c. C-46, requires the preliminary inquiry judge to order the accused to stand trial, "if in his opinion there is sufficient evidence" and to discharge the accused, "if in his opinion on the whole of the evidence no sufficient case is made out." Thus, the question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trial judge considering a motion for a directed verdict, namely, "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty." Under this test, a preliminary inquiry judge must commit the accused to trial "in any case in which there is admissible evidence which could, if it were believed, result in a conviction."

In order to commit an accused for trial on a charge, a preliminary inquiry justice must find evidence of each essential element of the offence, which, if believed by a properly instructed jury, could result in a conviction. The preliminary hearing judge may not assess the credibility of witnesses or weigh the evidence for competing inferences in determining whether there is sufficient evidence for committal. The test is the same whether the Crown is relying on direct evidence or circumstantial evidence. However, in each of these circumstances the process engaged in by the preliminary inquiry must be different.

Where the Crown is relying on direct evidence with respect to the essential elements of the offence, the task of the preliminary inquiry judge is quite straightforward. As McLachlin C.J.C. explained in Arcuri, supra, at 31:

By definition, the only conclusion that needs to be reached in such a case is whether the evidence is true ... It is for the jury to say whether and how far the evidence is to be believed ... Thus if the judge determines that the Crown has presented direct evidence as to every element of the offence charged, the judge's task is complete. If there is direct evidence as to every element of the offence, the accused must be committed to trial.

Where the Crown seeks a committal on the basis of circumstantial evidence, the task of the preliminary inquiry judge becomes somewhat more complex. This was also explained in Arcuri, supra, per McLachlin C.J.C. at 31-2:

The question then becomes whether the remaining elements of the offence -- that is, those elements as to which the Crown has not advanced direct evidence -- may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established -- that is, an inferential gap beyond the question of whether the evidence should be believed ... The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.

This limited weighing means that inferences to be drawn from circumstantial evidence need not be "compelling" or even "easily drawn" in order to be reasonable. If there are competing inferences, these are for the trier of fact to resolve. A preliminary inquiry judge commits jurisdictional error where he weighs competing inferences or chooses among them. If the trier of fact could reasonably draw an inference based on the evidence, then the matter should be left for their determination. As Major J. put it in Regina v. Sazant, 2004 SCC 77, [2004] S.C.J. No. 74 (S.C.C.) at para 18, "where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered." Thus, if a reasonable inference in favour of the Crown is available to be drawn, then, regardless of its strength, a judge conducting a preliminary inquiry is required to draw it.

However, despite the very circumscribed scope of the preliminary inquiry judge's function with respect to the drawing of inferences, the weighing of the evidence involved, while limited, is of great importance. Any inferences relied upon by the judge to commit the accused must be both: (1) reasonably based on the evidence heard at the preliminary inquiry; and (2) reasonable. Such inferences cannot be based on speculation, no matter how seemingly reasonable. If the committal of an accused depends on an inference or inferences that cannot be reasonably drawn from the evidence - the accused must be discharged as there would be an absence of evidence on an essential element.

[38] In discussing the drawing of "reasonable inferences" in a circumstantial case, Ducharme J. cautions in R. v. Munoz, supra, against the drawing of inferences from facts not established in evidence. That, he suggests, can lead to the danger of falling into impermissible speculation, a process that can arise when deductive reasoning is utilized. At paragraph 26 he states:

The first step in inference drawing is that the primary facts, i.e. the facts that are said to provide the basis for the inference, must be established by the evidence. If the primary facts are not established, then any inferences purportedly drawn from them will be the product of impermissible speculation. The decision of Lord Wright in Caswell v. Powell Duffryn Associated Collieries Ltd., [1940] A.C. 152 (H.L.) at 169-70 is often cited as authority for this long-standing principle:

The Court therefore is left to inference or circumstantial evidence. Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.

While the foregoing point may seem obvious, it can arise in subtle ways. Thus, in R. v. Portillo (2003), 176 C.C.C. (3d) 467 (Ont. C.A.) the Crown lead footwear evidence consisting of two primary facts: two partial shoeprints found at the scene were similar to impressions from two shoes found by the police in the course of their investigation, and the shoes were found in the vicinity of the appellant's apartment. The Crown did so in order to support the inference that the appellant had been at the scene of the homicide in close proximity to the body. That conclusion could be drawn only if it could reasonably be inferred that: (a) the shoes found by the police made the prints at the scene; and (b) that the shoes belonged to the appellant. The expert evidence called by the Crown, standing alone, could not support the first inference, and the fact that the shoes were found in the vicinity of the appellant's apartment, standing alone, could not support the second inference. While describing the Crown's argument as "seductive," after a careful analysis of the necessary underlying inferences, Doherty J.A. rejected the Crown's reasoning as circular, saying at 476-7:

The "footwear" evidence could assist in proving either of the factual inferences needed to give the evidence relevance, only if the Crown could first prove the other factual inference for which the "footwear" evidence was offered.

As indicated above, the evidence connecting Wilfredo Portillo to the homicide scene could not assist the jury in determining whether the shoes made the prints found at the scene unless other evidence established that the shoes belonged to Wilfredo Portillo. The only other evidence connecting Wilfredo Portillo to the shoes was the evidence that they were found in the vicinity of Wilfredo Portillo's apartment. That fact alone could not reasonably support the inference that the shoes belonged to Wilfredo Portillo as opposed to the many other people who had equal access to that area. Similarly, the evidence of the prints found at the scene could only assist in identifying Wilfredo Portillo as the owner of the shoes if there was other evidence from which it could be inferred that the prints were made by those shoes. The only other evidence, was the expert's evidence that the treads on the shoes were similar to the partial prints found at the scene. That evidence, standing alone, could not reasonably support the inference that those shoes made those prints. This is particularly so given the expert's frank concession that he could not say how many shoes had the same tread pattern. His evidence amounted to no more than an assertion that the shoes found near Wilfredo Portillo's apartment were among an undetermined number of shoes that could have made the prints at the scene of the homicide.

The "footwear" evidence could not, absent assumption of facts not proved, or speculation, support either the inference that the shoes made the prints found at the scene or that the shoes belonged to Wilfredo Portillo. [Emphasis added]

Therefore Justice Doherty concluded that the evidence was not relevant and should have been excluded.

[39] In R. v. Portillo, supra, circular reasoning was found because of the equivocal nature of the forensic evidence, i.e. similarity of footprint impressions with shoes that had a similar pattern to shoes that were found near the accused's home. One cannot be used to buttress the other. In the case at bar, we have similarly equivocal forensic evidence, being the concrete dust and drywall, that cannot be excluded as coming from the TD Bank vault, but, unlike Portillo, this evidence is found on the clothes of the accused.

[40] The evidence of Dr. Lindsay given at the preliminary hearing must be looked at in this regard. Her evidence is problematic for the Crown in that her expertise is in the comparison of materials based on her experience and her qualification as a forensic organic chemist qualified to compare materials based on their chemical compositions.

[41] She acknowledged that she is not an expert in concrete and she readily agreed that she could not determine if any specific binders or other chemical properties existed in the TD Bank vault concrete that would be different from concrete that existed at a site where Mr. Simoni was cutting concrete (he works in paving) or in concrete at job sites where Mr. Hickey, who works in renovations, may have cut concrete. Further, there is no evidence before the Court that the tools found in Mr. Hickey's van were even capable of cutting through an 18-inch concrete floor into a bank vault. The presence of concrete dust and drywall materials on Hickey's tools found in the van could explain a transfer of concrete to his clothing and may have been acquired in the normal course of his work.

[42] Further, there is no evidence before the Court that the tools found in Mr. Hickey's van were capable of or used for breaking into the bank vault. There is no evidence before the Court as to what tools were left behind at the scene of the break and enter, if any. One would think that this would have been readily identifiable and easily called evidence. Absent that evidence, I am asked to speculate that the tools in Hickey's van might have been the tools used to break into the bank when the evidence from the Crown witnesses Papic and Vishaj did not address what became of the tools used and indicated that the tools utilized were drills, as opposed to the circular saws found in Hickey's van.

[43] Dr. Lindsay testified that concrete dust contains minerals mined from the earth and it is an aggregate of calcium, dolomite, and quartz and cement. Similarly, drywall is readily available and contains gypsum, dolomite and quartz. She was unable to obtain any scientific information prior to testifying about the variability of the core substances in concrete and did not give any evidence about the specific variability of the samples of drywall from the TD Bank samples or the samples containing the dust or particles found on the accused's clothing.

[44] She stated that Mr. Hickey's clothing contained the least amount of concrete dust, but this could be explained by the fact that his clothing was particularly dirty with dirt from the field that he was arrested in that could have covered the dust.

[45] She did testify that if the accused's clothing had been laundered she would not have expected to find the same amount of dust as she did locate on their clothes.

[46] Ultimately, she did find that she could not exclude the dust on their clothing as coming from the TD Bank concrete or drywall, but she could not say that it did come from the vault with any degree of scientific certainty. The colour of the concrete was similar but not unusual to colours of other concrete from other locations.

[47] The colour of concrete is not like paint chip analysis in motor vehicle fail to remain investigations where the CFS has an extensive database that can tell them the motor vehicle's year, make and model of a chip of paint left on a hit and run victim.

[48] Concrete and drywall are common materials found in virtually every building construction site. The evidence before me at this preliminary hearing does not address any unique qualities of these common substances. It does not show the tools used to cut through the concrete and drywall or whether the tools found in Hickey's van were capable of that task. The airborne transfer of concrete and drywall dust from tool to clothing that was led through Dr. Lindsay was not pursuant to her qualifications as an expert witness, but through her experience as a 'home renovator'. This is not a criticism of her evidence, but of the fact that the Crown attempted to elicit evidence from her that was beyond her scope of qualifications that were determined before she testified in her 'qualification voir dire'.

[49] Further, the Crown urges me to hold that the presence of concrete dust and drywall particles on the clothes of the accused places them in unit 211 or the bank vault. Even if a jury were to accept that evidence, mere presence at the scene of a crime does not, in itself, make one a party to the offence. See R. v. Dunlop and Sylvester, [1979] 2 S.C.R. 881 (S.C.C.).

[50] That Hickey and Simoni were found hiding in a field, shortly after a bank theft, in direct proximity to the admitted culprits in the theft and close to the large amounts of stolen cash and jewellery in the duffel bags is simply enough on Mr. Khoorshed's submissions to commit them to stand trial on the charges that they are facing. Added to that is the discovery of some concrete dust and drywall bits that cannot be ruled out as coming from the TD Bank vault.

[51] On the law, as so clearly explained in R. v. Munoz, supra, I am asked by the Crown to engage in deductive reasoning and speculation. Why would the accused be hiding in a field from the police, temporally and physically close to the criminal event, side by side with the admitted perpetrators, with concrete and drywall dust on them unless they were guilty of the offences charged?

[52] The answer seems painfully simple. They would not. Therefore, I should simply commit them to stand trial on all charges.

[53] However, on closer examination using the direction of analysis mapped out in Munoz, I realize that it is my duty to consider not just what a jury could do, but what a reasonable jury properly instructed in the law could do with the evidence before me.

[54] This is a case where there are no surveillance videos implicating the accused, no fingerprint, cell phone or other evidence placing them at the scene of the crime and no evidence from their co-accused of their involvement. The forensic evidence of the concrete dust and drywall is equivocal and a properly instructed jury would be advised of the limitations of drawing inferences based on circumstantial evidence.

[55] Any jury or myself would be foolish to think that Hickey and Simoni were not up to some nefarious purpose on March 18, 2013. Any reasonable jury would strongly suspect that they were a part of this bold theft. The link between Vishaj and the brother of Simoni from Calgary (and who, I might add, was present in court for Vishaj's testimony and grinning like a village idiot) is suspicious. That Papic knew Aldo Simoni from Toronto and his family from Albania is a convenient coincidence. That Papic was found within feet of Hickey hiding in the tree line of a pitch black field at around 2:00 a.m. yet failed to admit this or failed to identify or admit to any prior knowledge of him smacks of the age old adage of honour among thieves and the code of conduct of not being a "rat".

[56] That Vishaj who was hiding head to head with Simoni face down in the trees and speaking to Simoni in Albanian when Constable Ismit Brahimir came upon them is also suspicious and not rationally explainable as a 'chance meeting'.

[57] These rascals were up to something. Therefore, there is evidence that they were guilty of the offences charged. Simple. Case closed.

[58] However, this analysis would, in my view, offend the analysis route mapped in Munoz and allow me now to engage in deductive and speculative reasoning. To inform this matter we must examine the presence or absence of any admissible evidence that could link the accused to the essential elements of the charges that they are facing.

[59] There is, in my view, no evidence before me on this record that a reasonable jury, properly instructed in the law, could find that all the essential elements of these offences are met. I recognize that there may be evidence that could have been presented and may be presented at a jury trial that could address these issues. However, I can only base my decision on the evidence before me in this preliminary inquiry, not what might have been presented or what may be the evidence that the Crown chose not to call but decided to save for the trial proper.

[60] To set the tone of this analysis I must first deal with the mischief charge. That charge alleges that the accused rendered property inoperative, being a lock particularized in the information as a lock of "John Ball". At the outset of this hearing I assumed that this related to Papic breaking into and replacing the lock on unit 211 above the bank. I assumed that the accused were alleged to be principals or parties to this offence and that I would hear some evidence about it in the preliminary hearing. The evidence that I heard was that Papic broke into the unit and replaced the lock. Nobody helped him; he did this by himself.

[61] When reviewing the exhibits after submissions, I reviewed the police synopsis that was Exhibit 1 in these proceedings. This synopsis that Mr. Khoorshed tried to get Papic to adopt, unsuccessfully, as to what he agreed to on his plea, contained an allegation that a lock of John Ball was changed at 4180 Harvester Road within walking distance of the bank. Mr. Ball attempted to use his lock and found that a different one was installed. This allowed a car allegedly rented by Mr. Simoni to be secreted in this private area and the keys to the vehicle were left in the car's gas bay door allowing access to people with that knowledge and a key to its location. The Crown requested and, on consent, the synopsis was made an exhibit on the preliminary hearing.

[62] None of this was evidence before me other than a synopsis that was not adopted by the witnesses, and I mention it only to explain the perplexed look on Mr. Khoorshed's face when Mr. Forte brought up that the mischief count was particularized in such a way that it could not result in a committal.

[63] After a hurried consultation with Detective Whittaker, the officer in charge of this case, it appeared to dawn on Mr. Khoorshed that he had proceeded on the premise that the essence of the mischief charge was the replacement of the lock on the second storey unit above the bank, rather than at a different location and a different lock. He then quickly conceded that there was not sufficient evidence for a committal on this count.

[64] The accused will be discharged on Count 4 of the information.

[65] Regarding the charge of possession of break-in instruments contrary to s. 351(1) of the Criminal Code, I have determined that the tools found in Hickey's van are not linked by any evidence to the tools used in the break and enter other than by resorting to deductive and speculative reasoning.

[66] The information particularizes a pry bar, saws, grinders and drills. There is no evidence before this Court of any pry bars or grinders being found in Hickey's van, except in an obtuse reference in the CFS report, which is an exhibit in these proceedings, to small crowbars and hammers and saws being in the report. There was no viva voce evidence concerning these items and it is unclear on the report filed what they mean. There were saws, saw blades and drills seized and analysed from the van that contained dust that could not be excluded as coming from the drywall or concrete of the TD Bank vault. There is no evidence before me that these items could have been used to breach the ceiling of the vault.

[67] Regarding the break and enter charges, what evidence, I ask myself, is there that would allow a reasonable jury properly instructed in the law to conclude that there was participation either as a principal or a party to the offences?

[68] That the accused were hiding in a field, in close proximity to the admitted principals of the offences and to the duffle bags full of money that had been stolen is, in my view, not enough.

[69] The section 21(1) and (2) party exposure to these offences is also wanting on the evidence called at this preliminary hearing.

[70] In my view, there is nothing other than speculative evidence flowing from deductive reasoning that the accused, as is required, could have, pursuant to s. 21(1)(a), actually committed the offence. No evidence presented before me is capable of allowing the inference that they were actually or peripherally involved in the offence other than the after-the-fact behaviour of hiding out with the culprits who admittedly committed the offences. There is no evidence before me that they aided or abetted the principals in the commission of the offences.

[71] Even granting the Crown the most favourable inferences on properly presented circumstantial evidence that I am required to do as a preliminary hearing judge, I am not required to give them free reign to allow impermissible and speculative evidence to be the foundation for committal.

[72] Further, under the section 21(2) definition of a party to an offence, there is no evidence, in my view, that presents itself on this record that would allow me to conclude that a reasonable jury, properly instructed, could conclude that party liability would attach to the facts on this record.

[73] To answer the argument that I may have confused reasonable inference with speculation, I again return to R. v. Munoz, supra, at paragraphs 29 to 31 where I take the following guidance:

The courts have repeatedly cautioned against confusing a reasonable inference with mere speculation. Where an inferential gap exists, it can only be properly overcome by evidence. This point was powerfully made by Doherty J.A. in R. v. Huynh (2005), 200 C.C.C. (3d) 305 (Ont. C.A.). This case involved an appeal of the committal for extradition of an individual on charges of conspiracy and money laundering relating to the designated offence of trafficking in a controlled substance. The material relied on in support of the extradition justified the inference that the appellant had conspired with others to covertly transfer very large amounts of cash from the United States to Canada. He did so by concealing the money in a secret compartment fashioned in the gas tank of his vehicle. While there was no direct evidence as to the source of the cash, the Crown argued that it could be reasonably inferred that the cash was the proceeds of trafficking in a controlled substance based on: (a) the amount of cash involved; (b) the frequency with which cash was being transferred from the United States to Canada; (c) the manner of concealment of the cash suggesting a level of sophistication and a commercial operation; (d) the coded conversations of participants and their obvious concerns about surveillance; and (e) the anticipated evidence of a DEA officer that the modus operandi was consistent with the activities of drug dealers. In rejecting the Crown's contention, Doherty J.A. reasoned as follows:

The material identified by the respondent certainly permits the inference that the cash was the proceeds of some illicit activity. Drug trafficking comes readily to mind as one possible source. The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess. The gap between the inference that the cash was the proceeds of illicit activity and the further inference that the illicit activity was trafficking in a controlled substance can only be bridged by evidence. The trier of fact will assess that evidence in the light of common sense and human experience, but neither are a substitute for evidence. The requesting state has not offered any evidence as to the source of the funds even though its material indicates that one of the parties to this conspiracy is cooperating with the police. ... I do not think there is anything in the material that would reasonably permit a trier of fact to infer that the cash was the proceeds of drug trafficking and not some other illicit activity. [Emphasis added]

It is difficult, if not impossible, to define with any precision a bright line distinction between the drawing of reasonable inferences and mere speculation. However, in this regard, I would adopt the language of Aldisert J. in Tose v. First Pennsylvania Bank, N.A. 648 F. 2d 879, 895 (3rd Cir.), cert. denied, 454 U.S. 893 (1981) at 895:

The line between a reasonable inference that may permissibly be drawn by a jury from basic facts in evidence and an impermissible speculation is not drawn by judicial idiosyncracies. The line is drawn by the laws of logic. If there is an experience of logical probability that an ultimate fact will follow a stated narrative or historical fact, then the jury is given the opportunity to draw a conclusion because there is a reasonable probability that the conclusion flows from the proven facts. As the Supreme Court has stated, "the essential requirement is that mere speculation be not allowed to do duty for probative facts after making due allowance for all reasonably possible inferences favoring the party whose case is attacked." Galloway v. United States, 319 U.S. 372, 395, 63 S. Ct. 1077, 1089, 87 L. Ed. 1458 (1943).

However, it must be emphasized that this requirement of "logical probability" or "reasonable probability" does not mean that the only "reasonable" inferences that can be drawn are the most obvious or the most easily drawn. This was explicitly rejected in R. v. Katwaru, supra, note 5 per Moldaver J.A. at 444:

[I]n the course of his instructions on the law relating to circumstantial evidence, the trial judge told the jury on numerous occasions that they could infer a fact from established facts but only if the inference flowed "easily and logically from [the] other established facts".

The appellant submits, correctly in my view, that the trial judge erred by inserting the word "easily" into the equation. In order to infer a fact from established facts, all that is required is that the inference be reasonable and logical. The fact that an inference may flow less than easily does not mean that it cannot be drawn. To hold otherwise would lead to the untenable conclusion that a difficult inference could never be reasonable and logical.

Rather, the requirement of reasonable or logical probability is meant to underscore that the drawing of inferences is not a process of subjective imagination, but rather is one of rational explication. Supposition or conjecture is no substitute for evidence and cannot be relied upon as the basis for a reasonably drawn inference. Therefore, it is not enough simply to create a hypothetical narrative that, however speculative, could possibly link the primary fact or facts to the inference or inferences sought to be drawn. As Fairgrieve J. noted in R. v. Ruiz, [2000] O.J. No. 2713 (C.J.) at para. 3, "Simply because a possibility cannot be excluded does not necessarily mean that a reasonable trier could be justified in reaching such a conclusion on the evidence." The inference must be one that can be reasonably and logically drawn and, even where difficult; it cannot depend on speculation or conjecture, rather than evidence, to bridge any inferential gaps.

[74] Therefore, after examining all the evidence called on this preliminary hearing, I am not satisfied that the Crown has presented sufficient evidence that could allow a reasonable jury, properly instructed in the law, to convict Hickey and Simoni.

5: CONCLUSION

[75] For all of the above reasons, John Hickey and Aldo Simoni will be discharged of all counts that they are facing in the information. As noted earlier in these reasons, the Crown had withdrawn the charge of possession of a prohibited weapon against Mr. Simoni on the second day of these proceedings.

Released: June 30, 2014

Signed: "Justice Stephen D. Brown"