1
Oral Reasons for Judgment
Boswell, J.
July 4, 2013
R E A S O N S F O R J U D G M E N T
BOSWELL, J. (Orally):
Introduction
The audacity of some people is simply astounding.
On May 23rd, 2010, Cheong But and his wife,
Lygech Ngo, were robbed of about $250,000 in
jewellery, none of which has ever been recovered.
This was no random street mugging. This robbery
was executed by a sizeable group of individuals
working together according to a thoroughly
considered plan. The accused is charged with
being a party to the robbery. The Crown asserts
that she aided the principles of the offence by
renting a vehicle that was used during its
commission. The central issue is whether at the
time she rented the vehicle she knew that an
offence of the type committed was planned and she
intended by renting the vehicle to aid in its
commission.
The Robbery
The 400 Market is a flea market - some people
might call it a bazaar - located just south of
Barrie. On Saturdays and Sundays a variety of
2
Oral Reasons for Judgment
Boswell, J.
vendors set out their wares inside the market,
which is open to the public between the hours of
9 a.m. and 5 p.m. Since 1997, Mr. But and Ms.
Ngo have operated a booth in the market from
which they sell jewellery. I will refer to them
throughout this judgment as the "jewelers" for
ease of reference.
The jewellers were creatures of habit. They
followed the same routine every Saturday and
Sunday, in terms of departure and return times,
as well as the route they travelled between their
home and the market.
On May 23rd, 2010, the jewellers were followed
home by a group consisting of at least four
males. It appears that this gang of thieves had
planned the operation well. They appear to have
conducted a trial run the day before. When Mr.
But pulled their car into their garage on their
quiet residential street, the thieves were
immediately upon them. Ms. Ngo had no sooner
stepped out of the car when she was accosted by a
knife-wielding male. He was dressed in black and
had a dark bandanna covering most of his face.
He pricked her in the hand with the knife and
ordered her to get down on the floor of the
garage. She complied. In the meantime, another
similarly attired and disguised male pinned Mr.
But in the car. Mr. But had some mobility in the
vehicle and he was able to make out the presence
of at least two additional males. His keys were
3
Oral Reasons for Judgment
Boswell, J.
on a lanyard and he swung them at the assailant
near his wife. That assailant's facial covering
slipped down, allowing Mr. But to get a better
look at his face. He later identified the
assailant from a photo line-up as a man named
Antonio Gomez-Duarte, who I will refer to now as
"Gomez".
Within a few minutes the assailants were gone,
along with five black bags and a black knapsack
full of jewellery, as well as a blue lunch bag.
Ms. Ngo rushed to close and secure the garage
door and the incident was over.
That the robbery of Ms. Ngo and Mr. But occurred
as described is not contested. The accused, Ms.
Uribe, is not alleged to have been one of the
principals involved in the robbery. Rather, the
Crown's theory is that she participated in the
crime as an aider.
Aiding
The Crown's case rests on section 21(1)(b) of the
Criminal Code of Canada. Section 21 provides as
follows:
21.(1) Everyone is a party to an
offence who:
a) actually commits it;
4
Oral Reasons for Judgment
Boswell, J.
b) does or omits to do anything
for the purpose of aiding any
person to commit it; or
c) abets any person in
committing it.
Culpability as an aider has two essential
elements. As Dickson J., as he then was, set out
in R. v. Dunlop, 1979 20 (SCC), [1979] 2 S.C.R. 881"In this Court the question of
aiding and abetting was canvassed
in Preston v. Regina [[1949] S.C.R.
156]. The appellant and another
were accused of having set fire to
a school. Mr. Justice Estey
delivered the majority judgment in
this Court, in the course of which
he stated (p. 159) that in order to
find the appellant guilty of
aiding, abetting, counselling or
procuring, it was only necessary to
show that he understood what was
taking place and by some act on his
part encouraged or assisted in the
attainment thereof."
Ms. Uribe rented a white Dodge Caliber on May
21st, 2010, from Avis Car Rental. As I will
describe momentarily, that same Dodge Caliber was
used as a scout and getaway car in the robbery of
5
Oral Reasons for Judgment
Boswell, J.
the jewellers. There is a clear connection
between Ms. Uribe's actions, in renting the
Caliber, and the commission of the robbery. The
connection need not be causative in nature.
Indeed, the circumstances in which aiding may be
found are quite wide and generous, as Justice
Doherty J.A. reflected upon in R. v. Dooley
[2009] ONCA 910, leave to appeal refused [2010]
S.C.C.A. 179"Any act or omission that occurs before
or during the commission of the crime,
and which somehow and to some extent
furthers, facilitates, promotes, assists
or encourages the perpetrator in the
commission of the crime will suffice,
irrespective of any causative role in
the commission of the crime. The
necessary connection between the
accessory's conduct and the
perpetrator's commission of the crime is
captured by phrases such as 'actual
assistance or encouragement', 'or
assistance or encouragement in fact',
or, as the appellant's argue, conduct
that "has the effect" of aiding or
abetting: R. v. Mariani (2007), 220
C.C.C. (3d) 74 (Ont C.A.), at Page 93"
and other citations.
6
Oral Reasons for Judgment
Boswell, J.
One way or another, whether knowingly or
unwittingly, Ms. Uribe provided assistance to the
principals of the robbery. It is not sufficient
for the Crown to make its case against Ms. Uribe
that her actions had the effect of aiding in the
commission of the robbery: R. v. Wobbes (2008),
O.N.C.A., 567, at paragraph 29. Liability as an
aider involves both a conduct component and a
culpable mental state component. While the actus
reus of the offence is not in dispute, the mens
rea - the culpable mental state component - is
very much a live issue. Again referencing R. v.
Dooley, as above, Justice Doherty succinctly
described the culpable mental state component of
aiding as follows, at paragraph 118"The nature of the conduct that can
amount to an act of aiding or
abetting is coloured by the mental
state accompanying that act. The
Crown must prove that the alleged
aider or abetter acted 'for the
purpose' of aiding or abetting -
meaning that they acted with the
intention of aiding or abetting the
perpetrator in the commission of
the crime. This requirement can
only be met if the aider or abetter
has knowledge of the crime that the
perpetrator intends to commit.
Without that knowledge, the alleged
aider or abetter cannot
7
Oral Reasons for Judgment
Boswell, J.
act 'for the purpose' of aiding or
abetting the perpetrator in the
commission of the crime."
To establish Ms. Uribe's guilt as an aider to the
robbery, the Crown must prove, beyond a
reasonable doubt, that when she rented the
Caliber she had knowledge of the crime that was
going to be committed and that she intended, by
renting the Caliber, to aid in that crime.
Drawing Inferences
The case against the accused is entirely
circumstantial. Given the lack of direct
evidence, it is necessary that the Court be able
to infer the requisite knowledge and intent from
all of the surrounding circumstances. Moreover,
where the case is based entirely on
circumstantial evidence, it is necessary that the
requisite intent be the only reasonable inference
to be drawn from all the proven facts: See R. v.
Griffen 2009 SCC 28, [2009], 2 S.C.R. 42.
It is important - indeed central to the
disposition of this case - to distinguish between
proper legal inference and speculation. Justice
David Watt, in Watt's Manual of Criminal Evidence
(2013) at paragraph 9.01, discusses
circumstantial evidence and the drawing of
inferences as follows:
8
Oral Reasons for Judgment
Boswell, J.
"Circumstantial evidence is any
item of evidence, testimonial or
real, other than the testimony of
an eyewitness to the material fact.
It is any fact from the existence
of which the trier-of-fact may
infer the existence of a fact in
issue. It is for the trial judge
to determine whether circumstantial
evidence is relevant.
Where evidence is circumstantial,
it is critical to distinguish
between inference and speculation.
Inference is a deduction of fact
that may logically and reasonably
be drawn from another fact or group
of facts found or otherwise
established in the proceedings.
There can be no inference without
objective facts from which to infer
the facts that a party seeks to
establish. If there are no
positive proven facts from which an
inference may be drawn, there can
be no inference, only impermissible
speculation and conjecture.
In circumstantial evidence cases,
three types of argument are made in
support of relevance:
9
Oral Reasons for Judgment
Boswell, J.
i) prospectant;
ii) concomitant; and
iii) retrospectant.
Prospectant use of circumstantial
evidence involves an argument that
the past or previous occurrence of
an act, state of mind, or state of
affairs justifies an inference that
the act was done, or the state of
mind or affairs existed at the time
that is material in the
proceedings.
Concomitant use of circumstantial
evidence involves an argument that
circumstances existing
contemporaneously with the material
transaction render the facts
alleged by either of the parties
more or less probable.
Retrospectant use of circumstantial
evidence invokes reasoning that the
subsequent occurrence of an act,
state of mind, or state of affairs
justifies an inference that the act
was done, or state of affairs or
mind existed in the past at the
material time."
10
Oral Reasons for Judgment
Boswell, J.
The Crown's case is based primary on
retrospectant circumstantial evidence. The Crown
asserts that, when considered as a whole, the
evidence leads to the inexorable inference that
Ms. Uribe knew the robbery was going to be
committed and intended to aid in it by renting
the Caliber. The defence position is entirely
different. Ms. Uribe's counsel asserts that the
evidence in this case, whether considered
piecemeal or taken together, does not give rise
to the inference urged by the Crown and in fact
does not rise above speculation and conjecture.
I will review each party's position in somewhat
greater detail, but first I will set out the
evidence upon which the Crown relies to support
the proposed inference.
The Circumstantial Evidence
The Principals
Prior to May 23rd, 2010, York Region Police were
already suspicious that Gomez was involved in a
number of other robberies. They had him and some
of his associates under surveillance. One of
those associates was the husband of the accused,
Luis Enrique Soto-Cortes, who I will now refer as
"Soto".
The police installed GPS tracking devices on
three vehicles at times between May 10th and May
11
Oral Reasons for Judgment
Boswell, J.
21st, 2010: A Chevrolet Equinox, a Nissan
Pathfinder and a Jeep Cherokee. Surveillance on
the Equinox led police to conclude that it was
almost exclusively operated by Gomez. The
Cherokee was usually operated by Aldo Alfonso
Mancipe-Aguirre, another suspected principal in
the robbery, who I will now refer to as
"Mancipe". The Pathfinder was registered to the
accused, Ms. Uribe, but frequently driven by
Soto.
The three vehicles were often seen together in
the days prior to the robbery. Police
surveillance appears to have regularly placed
Soto, Gomez and Mancipe together, along with a
number of other individuals including Javier
Rojas-Ardila, who I will now refer to as
"Ardila". Eduardo Mareno, who I will refer to
now as "Mareno", and Gomez's sister, Nidia
Gomez-Duarte, who I will now refer to as "Nidia".
For instance, on the 19th day of May, 2010,
police surveillance officers observed the
Equinox, Pathfinder and Cherokee at a Walmart
parking lot in Toronto at 8:30 p.m. Present were
Gomez, Soto, Mancipe and two other unknown males.
All five left the Walmart lot and travelled to
another nearby parking lot where they met in
darkness for roughly half an hour. They returned
to the Walmart lot at 10:49 p.m. Mr. Mancipe
boarded the Cherokee. He used gloves to open the
door and then he removed them.
12
Oral Reasons for Judgment
Boswell, J.
Two days later, on May 21st, 2010, surveillance
officers observed the Cherokee in the parking lot
of a Hooters restaurant in Toronto at 4:12 p.m.
At 5:04 p.m., four males exited the Hooters
together. They were identified as Gomez,
Mancipe, Ardilo and Mareno. Gomez boarded the
passenger side of the door of the Cherokee using
a tissue to open the door. Then Mancipe used a
rag to wipe down the Cherokee around the doors.
The obvious inference is that Mancipe and Gomez
were taking active steps to avoid leaving
fingerprints on the Cherokee. The reason why is
revealed after the robbery.
The day before the robbery, May 22nd, 2010, the
GPS device on the Equinox provided data that
suggests a practice run occurred in advance of
the robbery. The Equinox attended at the parking
lot of the 400 Market at about 5 p.m. It waited
there for 30 minutes, then headed down to a
nearby car park where it sat for another 30
minutes.
Mr. But testified that the 400 Market was only
open on weekends. It closed at 5 p.m. and they
needed to clear out by 6 p.m. He said his usual
route home involved taking Highway 400 south to
Major Mackenzie Drive, east on Major Mackenzie
Drive to Peter Rupert Avenue, and south on Peter
Rupert to 258 Golden Forest Road where he and his
wife resided.
13
Oral Reasons for Judgment
Boswell, J.
On May 22nd, 2010, the Equinox travelled south on
Highway 400, then east along Major Mackenzie
Drive. It stopped and waited in a parking lot at
Major Mackenzie Drive and Jane Street for about
30 minutes. It then continued east along Major
Mackenzie Drive, then south along Peter Rupert
Avenue and ultimately to 258 Golden Forest Road.
On May 23rd, 2010, the day of the robbery, Mr.
But and his wife had a couple of errands to do
after work. Instead of their usual direct route,
they drove west on Innisfil Beach Road after they
left the 400 Market. They travelled to Thornton
where they stopped for gas at a Sunoco station.
They then proceeded west on County Road 21 to a
farm where they purchased some manure. They then
made their way south to Highway 89, which they
took east to Highway 400. They travelled south
on Highway 400 to Major Mackenzie Drive, which
they took east to Peter Rupert Avenue. They
proceeded along Peter Rupert to their home at 258
Golden Forest, arriving, according to Mr. But and
Ms. Ngo, at about 7:50 p.m.
Meanwhile, GPS tracking data indicates that the
Jeep Cherokee also travelled to the 400 Market on
May 23rd, 2010, arriving at 4:37 p.m. It
proceeded to a nearby car park and remained
stationary until 6 p.m. At that time it
travelled west across Innisfil Beach Road to the
Sunoco station in Thornton. It then travelled
west across County Road 21. Eventually, it made
14
Oral Reasons for Judgment
Boswell, J.
its way south to Highway 89 which it took east to
Highway 400. It then travelled south to Major
Mackenzie Drive, which it took east to Peter
Rupert Avenue. It carried on to 258 Golden
Forest Road where it arrived at about 7:58 p.m.,
just in time for the robbery.
A neighbour, Mr. Dugal, was out walking near 258
Golden Forest on the evening of May 23rd, 2010.
He saw a Jeep Cherokee come down the street.
Three or four "guys" got out. They were dressed
in black and wore masks covering their faces.
They rounded a curve on Golden Forest. A minute
later he saw the Cherokee again. It was in front
of a house on the corner. Number 258 is a corner
residence. He saw someone board the Cherokee and
it sped away.
There is no doubt that the jewellers were
followed home by the Equinox on May 22nd, 2010,
as a practice run for the robbery that took place
on May 23rd, 2010. There is no doubt that they
were followed home by the Cherokee on May 23rd,
- It is not known who the occupants of the
Equinox or Cherokee were on either May 22nd or
23rd save for Mr. Gomez who was identified as one
of the robbers by Mr. But.
Following the robbery, the Cherokee was abandoned
a relatively short distance from 258 Golden
Forest, on Thornhill Woods Drive, where police
recovered it the next day. Although fingerprints
15
Oral Reasons for Judgment
Boswell, J.
were located on the Cherokee by forensic
identification officers, they were unable to
match the prints to known samples they had from
Gomez, Soto, Mancipe, Ardila or the accused. The
significance of the wiping down of the Cherokee
by Gomez and Mancipe is now immediately apparent.
The Dodge Caliber
The Cherokee was not the only vehicle involved in
the robbery. I have a strong suspicion that a
Chevrolet Impala was also involved. I have no
doubt that a white Dodge Caliber was involved.
On both May 22nd, 2010, and May 23rd, 2010, Mr.
But noticed and remarked to his wife on a white
Dodge Caliber stopped illegally on Peter Rupert
Avenue just south of Major Mackenzie Drive. On
both dates, it was pulled over to the side of the
road, apparently empty, with its emergency lights
on.
On May 21st, 2010, the accused and her common-law
spouse, Soto, rented a white Dodge Caliber from
an Avis Car Rental location on Dundas Street West
in Toronto, bearing Ontario license plate number
AWLM 872.
On May 23rd, 2010, at 8:40 p.m., Detective
Constable Alan Tucker of the York Region Police
Service was asked to conduct surveillance on the
Equinox at a location near Keele and Wilson
16
Oral Reasons for Judgment
Boswell, J.
Streets in Toronto. He observed the Equinox at a
Pizza Pizza shop at Keele and Wilson at 9:40 p.m.
At 11:27 p.m., a white Dodge Caliber, with
licence plate number AWLM 872, arrived and parked
close to the Equinox. Two male occupants got out
of the Caliber and went into the pizza shop. A
few minutes later, they exited the pizza shop.
One male boarded the Caliber and the other male
boarded the Equinox. They left the parking lot
and headed to Islington Avenue.
Another officer, Steven Pleskina, observed the
Caliber and Equinox arrive at an apartment
building at 1276 Islington Avenue in Toronto at
12:03. The accused and Soto resided, at the
time, in unit 807 in that building. Security
cameras inside the rear entrance to the building
recorded Mancipe and Ardila entering at 12:10
a.m.
The rented Caliber was seized by the police
several hours later. The fingerprints of Soto,
Mancipe and Ardila were all found on the Caliber.
Inside its glove box was the owner's manual from
the Jeep Cherokee, two knives and a two-way radio
with Nidia's prints on it.
I am satisfied that the white Caliber rented by
the accused and Soto was utilized in the course
of the robbery as a scout car and subsequently a
getaway car.
17
Oral Reasons for Judgment
Boswell, J.
Surveillance at 1276 Islington
Following the robbery, the police were able to
obtain the data from a number of surveillance
cameras at 1276 Islington Avenue. The building
was equipped with numerous cameras that covered,
amongst other areas, the elevators (cameras 8, 9
and 10), the lobby on the first floor (camera 7
and 13) and the area to the immediate rear of the
building (camera 11).
The robbery took place in Maple at about 8 p.m.
It is not alleged that Ms. Uribe participated
directly in the robbery. Indeed at 8:32 p.m.,
surveillance cameras on the first floor of the
apartment building captured her arriving at the
building with her stepmother and two nieces.
At 8:42 p.m., however, Ms. Uribe was observed
entering an elevator on the 8th floor and
travelling down to the 1st floor. She appeared
to be talking on a cell phone in the elevator.
She exited to the rear of the building, where
camera 11 recorded her pacing in the parking lot.
At 8:56 p.m., the stolen jewellery arrived at
1276 Islington. Cameras 7 and 13 captured five
individuals entering the lobby of the 1st floor
of the building, from the rear parking lot,
carrying five black bags and a blue lunch bag.
There may be some weak debate about whether these
were in fact the bags of jewellery stolen in the
18
Oral Reasons for Judgment
Boswell, J.
robbery. There are a number of factors that, in
my view, are convincing proof that they are the
stolen bags: 1) the proximity of their arrival at
1276 Islington to the time of the robbery; 2)
there are five black bags and a black knapsack,
the exact same number of black bags stolen in the
robbery; 3) Ms. Ngo and Mr. But each testified
that the bags were the same in appearance as the
bags in which their jewellery inventory was kept;
- the presence of the blue lunch bag among the
black jewellery bags is particularly telling; and
- Gomez was one of the individuals seen carting
the bags into the building. He was identified by
Mr. But as one of the principals to the robbery.
In addition to Gomez, the stolen bags were
carried into the apartment building by
individuals identified by the police as Maria
Diaz, Jose Morales, Hector Nova and Yimy Hurtado.
Mr. Hurtado can be seen on video pulling a hoodie
over his head while he enters the building. He
apparently did not appreciate that the elevators
were equipped with surveillance cameras as well
because he removed the hoodie once in the
elevator.
The five baggage carriers took the elevator to
the 10th floor.
About a minute after the baggage carriers entered
the elevator, Ms. Uribe came back into the
building from the rear parking lot.
19
Oral Reasons for Judgment
Boswell, J.
At 9:04 p.m. a Chevrolet Impala entered the rear
parking lot. A minute later, Soto entered the
building carrying a bag of ice. Earlier in the
day, at 1:21 p.m., Soto and Ardila exited the
building to the rear parking lot. Two minutes
later the same Impala was captured on video
travelling through the parking lot.
At 9:10 p.m., Nidia and Moreno entered the rear
of the building and took the elevator upstairs.
Moreno left again at 9:17 p.m., but re-entered
through the back door a minute later with Ardila
and Mancipe. They took the elevator to the 10th
floor.
At 10:23 p.m., Nidia and Mancipe left the
building through the back door.
At 10:51 p.m., Ms. Uribe can be seen on video
escorting her stepmother and nieces out of the
building. They all exited out of the back door
together.
At 10:58 p.m., the white Caliber was observed by
police arriving back at the building. Nidia and
Mancipe entered the building immediately
thereafter. They encountered Ardila at the
elevator. Nidia boarded the elevator and took it
to the 10th floor. Mancipe and Ardila left the
building and boarded the Caliber. Officer Tucker
observed the Caliber arrive at the Pizza Pizza
20
Oral Reasons for Judgment
Boswell, J.
shop at Keele and Wilson Streets at 11:27 p.m.
with two males on board. They purchased a pizza,
then one returned to 1276 Islington in the
Caliber, and the other returned in the Equinox
which had been parked in the same Pizza Pizza
lot.
At 11:30 p.m., Ms. Uribe arrived back at the
building and entered through the rear door. She
took the elevator to the 8th floor where Soto
boarded with her. Together they went to the 10th
floor.
At 11:43 p.m., security cameras in the elevators
again captured Ms. Uribe travelling to the 10th
floor. She was observed boarding the elevator on
the 8th floor and getting off at the 10th floor.
It is unclear how she got back to the 8th floor
from the 10th floor, but I note that there are no
surveillance cameras in the stairwells of the
building.
At just after midnight, the Equinox and Caliber
arrived back at the apartment building. Mancipe
and Ardila entered the building through the back
door and travelled by elevator to the 10th floor.
Officer Pleskina was conducting surveillance on
1276 Islington by this time. He identified the
two males arriving in the Equinox and Caliber as
Mancipe and Gomez. I find that he incorrectly
identified Ardila as Gomez.
21
Oral Reasons for Judgment
Boswell, J.
At 12:57 a.m., Ms. Uribe was once again observed
by surveillance cameras travelling to the 10th
floor. On this occasion, she appeared to board
the elevator on the 7th floor and travelled to
the 10th. Again, it is unclear when or how she
made her way to the 7th floor. At 1:27 a.m., she
was observed leaving the 10th floor and
travelling to the 8th floor.
There were no surveillance cameras in the
hallways at 1276 Islington, so there is no video
documenting where Ms. Uribe, Soto, Nidia, Gomez,
Mancipe, Ardila, Nova, Diaz, Morales, Hurtado and
Moreno went when they arrived at the 10th floor.
But there is a clear connection between unit 807,
occupied by Ms. Uribe and Soto, and unit 1012,
occupied by Cesar Augusto Prieto Torres.
In 2009, Mr. Torres was released from Canadian
Immigration detention on condition that he reside
with Soto. In December 2009, he rented unit
- In February 2010, he applied for an
Ontario driver's licence. He listed his address
as 807-1276 Islington Avenue. The police
obtained a warrant to search apartment 1012 on
June 11th, 2010. Interestingly, amongst his
personal papers seized by the police, was a print
out with a list of local gold smelters.
I am satisfied that the stolen jewellery was
taken to unit 1012 following the robbery and that
a gathering took place in that unit which went on
22
Oral Reasons for Judgment
Boswell, J.
until about 4 a.m. I am further satisfied that
Ms. Uribe attended the gathering.
The Arrests
The gathering appears to have broken up just
before 4 a.m. on May 24th, 2010. Maria Diaz and
Jose Morales appear to have left first. They
exited the building and were immediately
arrested. About a minute later, Gomez and Yimi
Hurtado exited the building and they too were
arrested.
At 4:10 a.m., Nidia, Soto, Moreno and Mancipe
exited the building. Moreno and Mancipe were
immediately arrested. Nidia and Soto ran back
into the building and fled in separate
directions.
At about 5 a.m., officers attended at unit 807
where they located Ms. Uribe, Mr. Ardila and
Nidia.
Soto was arrested on May 31st, 2010. He and Ms.
Uribe were in her Nissan Pathfinder at the
Newmarket Court House. She was in the driver's
seat and Soto was in the passenger seat. Only
Soto was arrested at that time. The passenger
side of the Pathfinder was searched incident to
his arrest. In the glove box the police located
$2,000.00 in American Express travellers cheques.
The cheques were signed by Helen Prosdocimi.
23
Oral Reasons for Judgment
Boswell, J.
Ms. Prosdocimi testified that she had purchased
the travellers cheques on April 7th, 2010. They
were stolen from her that same day.
The Pathfinder was impounded by the police. Ms.
Uribe attended at 1 District to obtain a release
of the Pathfinder on June 17th, 2010. She was
arrested at that time.
Positions of the Parties
The Crown's position is that Ms. Uribe knew of
the planned robbery and intended to aid in its
commission when she rented the Caliber on May
21st, 2010.
Ms. Uribe's knowledge and intention must be
inferred through an examination of retrospectant
circumstantial evidence. Her association with
the principals to the offence, her appearance in
the parking lot of 1276 Islington just as the
stolen goods were arriving, her attendance at the
gathering afterwards on the 10th floor, and being
found with Nidia at the time of, or shortly after
the arrests were being made, when taken together,
lead, in the Crown's view, to the conclusion that
Ms. Uribe aided in the commission of the offence
when she rented the Caliber. In other words, she
knew it was to be used in a robbery and she
intended to provide assistance.
24
Oral Reasons for Judgment
Boswell, J.
The defence position is that the evidence does
not provide a sound or sufficient basis to
support the inference suggested by the Crown.
The Caliber was rented by both Ms. Uribe and
Mr. Soto-Cortes. Ms. Uribe was never seen
driving it. She was never observed on
surveillance with any of the principals save for
Soto and Ardila. Her vehicle, the Pathfinder,
was not used in the robbery or in the practice
run on May 22nd, 2010. Although she went outside
shortly before the baggage carriers arrived with
the stolen jewellery, she was not actually seen
with them at any time. Her presence at 1276
Islington is not suspicious given that she lived
there. It is not unusual for her to have been
going in and out of the building or to be riding
up and down the elevator. Moreover, there is no
way to tell where she went on the 10th floor.
The evidence, whether considered individually or
in total, is not sufficient, in the defence
submission, to provide an adequate evidentiary
basis from which to draw the inferences required
to support a finding of guilt. It is mere
surmise, speculation and/or conjecture that Ms.
Uribe knew anything about the robbery at the time
the Caliber was rented.
25
Oral Reasons for Judgment
Boswell, J.
Discussion
The Robbery Counts
When assessing circumstantial evidence, it is
important to consider the whole of the evidence,
and not just the separate parts individually. A
particular item of circumstantial evidence may
have seemingly little probative value, or may
appear entirely innocuous on its own. But it is
the cumulative affect of the evidence that is
significant, as the Court of Appeal makes clear
in this passage from R. v. Uhrig [2012] O.N.C.A.
470 at paragraph 13:
"When arguments are advanced, as here,
that individual items of circumstantial
evidence are explicable on the bases
other than guilt, it is essential to
keep in mind that it is, after all, the
cumulative effect of all the evidence
that must satisfy the standard of proof
required of the Crown. Individual items
of evidence are links in the chain of
ultimate proof: R. v. Morin [1988] 2
S.C.R. 345, at Page 361. Individual
items of evidence are not to be examined
separately and in isolation, then cast
aside if the ultimate inference sought
from their accumulation does not follow
from each individual item alone. It may
be and very often is the case that items
26
Oral Reasons for Judgment
Boswell, J.
of evidence adduced by the Crown,
examined separately, have not a very
strong probative value. But all the
evidence has to 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 may constitute
a proper basis for a conviction: Cote v.
The King 1941 348 (SCC), [1941], 77 C.C.C., 75 (S.C.C.)
at Page 76.
I agree with defence counsel that there is
nothing inherently nefarious about the rental of
a car. Indeed, people do it all the time. I
agree that there is nothing sinister about riding
the elevator up and down in one's own apartment
building. I agree that being present in the
parking lot of one's apartment building is
neither criminal nor even suspicious on its own.
I further agree that no one is guilty by mere
association, nor can guilt be founded on mere
presence at the scene of the crime: R. v.
Dunlop, as above.
But what is important is the effect of the
evidence when considered together. The Crown
urges the Court to conclude that Ms. Uribe
intended to aid in the robbery when she rented
the Caliber with her spouse. Such a conclusion
necessarily includes a finding that she knew, at
the time of the rental, that a robbery was
planned. Is such a conclusion impermissible
27
Oral Reasons for Judgment
Boswell, J.
speculation, or is it proper legal inference?
I return to the instruction of Justice David
Watt: "Inference is a deduction of fact that may
logically and reasonably be drawn from another
fact or group of facts found or otherwise
established in the proceedings. There can be no
inference without objective facts from which to
infer the facts that a party seeks to establish.
If there are no positive proven facts from which
an inference may be drawn, there can be no
inference, only impermissible speculation and
conjecture."
With that instruction in mind, I am satisfied
that the following facts have been established by
the Crown:
(i) Ms. Uribe rented the Caliber on May
21st, 2010. She paid with her credit
card. She was listed as the primary
driver and Mr. Soto-Cortes was listed
as the secondary driver;
(ii) Ms. Uribe already had a vehicle. She
was the registered owner of a Nissan
Pathfinder. The Pathfinder was in
operating condition between May 21st
and 23rd, 2010. The police installed a
GPS tracking device on it and the data
from that device shows that it was in
transit on those dates;
28
Oral Reasons for Judgment
Boswell, J.
(iii) Ms. Uribe was never observed driving
the Caliber. Her fingerprints were not
found on the interior or exterior of
the vehicle. Numerous items were
located inside the car, but none that
were identified as belonging to her;
(iv) The Caliber was utilized as a scout car
and get away vehicle in the robbery.
Inside the car were the ownership
manual for the Cherokee, two knives,
and a two-way radio with Nidia's prints
on it;
(v) The stolen jewellery was transported to
1276 Islington Avenue, to an apartment
building where Ms. Uribe lived. It was
taken to the 10th floor. She resided
on the 8th floor;
(vii) Just prior to the arrival of the
jewellery, Ms. Uribe was with her
stepmother and two nieces. They had
just arrived and gone to the 8th floor.
About ten minutes after their arrival,
Ms. Uribe left her guests and travelled
back down to the first floor and went
out to the parking lot. She was
observed on a surveillance camera
speaking on her cell phone in the
elevator. She spent about ten minutes
29
Oral Reasons for Judgment
Boswell, J.
in the parking lot. Then the jewellery
arrived with five carriers. The five
carriers entered the building and went
up the elevator to the 10th floor. Ms.
Uribe entered the building about a
minute later and went to the 8th floor
and back to her guests. I infer from
the circumstances that she facilitated
entry to the building to Gomez and the
other four baggage carriers. The video
evidence makes it apparent that she
went out to the parking lot with
nothing more than a phone. She is seen
pacing in the lot near the recycling
bins. When she re-entered the
building, her hands are similarly
empty. In other words, it is not as
though she went and retrieved something
that she, or her guests, had left in
her vehicle. Soto had not yet arrived
back at the apartment building. She
went down and opened the back door of
the building to let the baggage
carriers in;
(vii) Ms. Uribe left the building with her
guests at 10:51 p.m. She was not
driving the Caliber. Indeed, although
she and Soto were both at 1276
Islington at 10:51 p.m., the Caliber
was not. Nidia and Mancipe arrived in
the Caliber at 10:58 p.m. At 11:02,
30
Oral Reasons for Judgment
Boswell, J.
Mancipe and Ardila left in the Caliber
and went to Pizza Pizza where they
bought a pizza and retrieved the
Equinox;
(ix) Ms. Uribe returned to the building at
11:30 p.m. She went to the 10th floor.
She was back and forth to the 10th
floor three times between 11:30 p.m.
and 1:30 a.m.;
(ix) The parties involved in the robbery:
Soto, Gomez, Mancipe, Ardila, Nova,
Diaz, Hurtado, Morales and Nidia all
spent significant amounts of time on
the 10th floor of 1276 Islington Avenue
following the robbery. Soto brought
ice. Mancipe brought a pizza. I infer
that there was a post-robbery gathering
occurring on the 10th floor, which did
not begin to break up until about or
almost 4 a.m. Ms. Uribe attended that
post-robbery gathering;
(x) The parties to the robbery were
arrested as they exited the apartment
building around 4:00 a.m. Soto ran.
Nidia ran. Nidia as located an hour
later in Ms. Uribe's apartment, along
with Ms. Uribe and Ardila. Soto was
arrested a week later in Ms. Uribe's
company at the Court House in
31
Oral Reasons for Judgment
Boswell, J.
Newmarket.
It is possible, of course, that Ms. Uribe had no
idea that the five individuals who she helped
enter 1276 Islington Avenue were carrying stolen
goods. It is possible that when she attended the
gathering on the 10th floor the robbery was not
mentioned. It is possible that she did not know
Nidia had fled from the police when she arrived
at Ms. Uribe's door after 4 a.m. on May 24th,
- But, again, circumstantial evidence must
be viewed in total. Each piece of evidence
serves to inform the others in some measurable
way.
I come to consider the rental of the Caliber.
Ms. Uribe had a vehicle already - a Nissan
Pathfinder. On May 21st, 2010, she went with
Soto and rented the Caliber. It appears she
never drove it. In my view, the purpose of the
rental was clearly to utilize the car in the
course of the robbery. The time period fits
neatly. The car was clearly used on both May
22nd and May 23rd in the planning and execution
phases of the crime.
I have no doubt that Mr. Soto-Cortes knew of the
purpose for which the Caliber was rented. I am
satisfied that he was a principal party to the
robbery. I am also satisfied that the vehicle
was used by his close associates in the course of
32
Oral Reasons for Judgment
Boswell, J.
the robbery - Mancipe and Nidia and perhaps
others. I am further satisfied that Ms. Uribe
was aware that people other than Soto were
driving the Caliber.
Being satisfied that the purpose of the rental
was to assist in the robbery scheme, there are
three possible scenarios: First, it is possible
that Ms. Uribe knew the purpose for which the
vehicle was rented, but Mr. Soto-Cortes did not.
I consider this highly unlikely and not worth
serious consideration. Second, it is possible
that both Ms. Uribe and Mr. Soto-Cortes knew the
purpose for which the vehicle was rented.
Finally, it is possible that only Mr. Soto-Cortes
knew the real purpose for which the vehicle was
rented.
In only one of the three possible scenarios would
Ms. Uribe not know the real purpose for the
rental of the Caliber. Of course, one would
expect that when Ms. Uribe went to Avis Car
Rentals with her spouse on May 21st, 2010, she
would have been curious to know why they were
renting a vehicle when she already had one. If
she did not know the truth about why the vehicle
was being rented, it would have been because her
husband lied to her and kept the robbery plan a
secret from her. But if he were keeping the
robbery a secret from her, it seems highly
unlikely that 1) stolen goods would be returned
to the building in which he lived with her, by
33
Oral Reasons for Judgment
Boswell, J.
persons familiar to her; 2) she would be asked to
facilitate entry into the building by the
individuals conveying the stolen property; 3)
other individuals would be openly driving the
Caliber; and 4) he would take her with him to the
post-robbery gathering on the 10th floor of their
apartment building.
It is not impossible that Soto lied to his wife,
but I find that it is extremely improbable in all
the circumstances. It is also possible that Soto
lied to Ms. Uribe and that she learned of the
robbery at some time after it had been committed.
But I reject this possible inference as
unreasonable. Ms. Uribe did not simply learn
about the robbery by chance at some time after it
was a fait accompli. She was engaged in
facilitating entry of the stolen goods into 1276
Islington. She was engaged in a post-robbery
gathering of the participants. It makes no sense
that Soto would lie to her about the purpose of
the Caliber and then do an about-face and engage
her in the immediate post-offence activity.
In my view, the only reasonable inference is that
Ms. Uribe knew the rental vehicle was to be used
in a robbery.
Once her knowledge of the robbery plan is
inferred, one may readily conclude, as matter of
common sense, that when a sane and sober person
does something that has predictable consequences,
34
Oral Reasons for Judgment
Boswell, J.
that person usually intends or means to cause
those consequences. In other words, if Ms. Uribe
knew the vehicle was to be used in a robbery, and
she facilitated its rental, and it was indeed
used in the robbery, then the only reasonable
inference is that she intended to aid the
robbery.
I am satisfied, beyond a reasonable doubt, that
Ms. Uribe knew the purpose for which the vehicle
was rented and she aided in the robbery by
renting the vehicle for that purpose. In the
result, I find her guilty on Counts 4 and 6.
The Stolen Travellers' Cheques
I am not able to find Ms. Uribe guilty of
possession of the travellers' cheques. There is
no evidence that she participated in the theft of
those cheques as a principal or aider.
To find her guilty of possession, the court must
be satisfied that she had knowledge and control
over the cheques: See R. v. Grey, [1996], O.J.
No. 1106 (C.A.), at paragraph 15. There is no
direct evidence that she had knowledge of the
cheques. There is only the circumstantial
evidence that they were found in the glove box of
a vehicle that she owned.
In this instance, I am unable to draw the
necessary inference of knowledge. In the absence
35
Oral Reasons for Judgment
Boswell, J.
of evidence that she participated in the theft of
those cheques, I must infer that someone other
than her placed them in the glove box. The
record supports a finding that Soto, and not Ms.
Uribe, was the primary driver of the Pathfinder,
at least during the period of surveillance
conducted by the police. She certainly did not
have exclusive use of the vehicle. I am not able
to conclude, beyond a reasonable doubt, that she
had knowledge of the presence of the cheques in
her vehicle. For that reason, she is acquitted
on Count 10.
36
Oral Reasons for Judgment
Boswell, J.
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)
Evidence Act
I, Dianne Letts, certify that this document is a
true and accurate transcript of R. v. Lilia Uribe
in the Superior Court of Justice held at 50 Eagle
Street West, Newmarket, Ontario taken from
Recording of July 4, 2013,
CD #4911_105_20130704_092009
(Date) Dianne Letts, C.S.R.
Certified Court Reporter
NOTE: Photostat copies of this transcript
are not certified and have not been paid for
unless they bear an original signature in blue
and accordingly are in direction violation of
Ontario Regulation 587/91, Courts of Justice Act,
January 1, 1990.
Court File No.: 11-03779
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
LILIA URIBE
O R A L R E A S O N S F O R J U D G M E N T
BEFORE THE HONOURABLE JUSTICE C. BOSWELL
On July 4, 2013, at NEWMARKET, Ontario
APPEARANCES:
L.A. McCallum, Ms., Counsel for the Crown
P. Bacchus, Ms., Counsel for the Accused