COURT FILE NO.: CR-13/697

DATE: 20150921

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Moving Party

– and –

SRIMOORTHY PATHMANATHAN AND THIRUMAL KANTHASAMY

Defendants/ Respondents

C. Henderson, for the Crown

C. Martell for Thirumal Kanthasamy

A. Zielinski for Srimoorthy Pathmanathan

HEARD: September 14, 2015

ENDORSEMENT ON CERTIORARI APPLICATIONS

Ricchetti J.:

OVERVIEW

[1] The 117 count information arises from a number of robberies of the contents of tractor trailers which took place between March 13 and August 27, 2009 involving a number of individuals. The two Respondents are alleged to be parties to certain of these robberies.

[2] The preliminary inquiry took place between February 16, 2011 and November 4, 2014 on 27 different days. The presiding justice over most of the evidentiary portion of the preliminary inquiry was Justice Andre. Justice Andre was appointed to the Superior Court of Justice before completion of the preliminary inquiry. As a result, Justice Currie completed the preliminary inquiry and rendered a decision on committal.

[3] Identity of the Respondents as party to the robberies was the central issue.

[4] The Respondents agreed to committal on some charges involving various dates on which they were alleged to have participated in the robberies. On some charges, the presiding judge determined there was sufficient evidence to commit the Respondents to trial.

[5] At issue in this Crown certiorari application are charges relating to a robbery which took place on July 2, 2009. Justice Currie discharged these Respondents on all charges relating to the July 2, 2009 robbery.

[6] The Crown brings this application for mandamus, with certiorari in aid, to seek a committal for both Respondents on the charges relating to the alleged robbery on July 2, 2009.

[7] For the reasons which follow, the Crown's application is granted.

THE POSITION OF THE PARTIES

[8] The Crown's primary position is that the presiding justice failed to consider all of the evidence at the preliminary hearing and, thereby, exceeded his jurisdiction. In particular, the Crown submits that Justice Currie failed to consider the similar fact evidence of the other robberies in deciding whether to commit or discharge these Respondents on the July 2, 2009 related charges. Put another way, the Crown submits that the presiding justice failed to recognize that the similar fact evidence, along with the other evidence of the location of their cell phones, was some evidence from which a reasonable inference could be drawn that these Respondents were parties to the robbery on July 2, 2009.

[9] The Respondents' position is as follows:

a) if presiding justice failed to consider the similar fact evidence, it is not a jurisdictional error;

b) the presiding justice did consider the similar fact evidence and he declined to draw the inference and, therefore, there committed no jurisdictional error; and

c) even if the presiding justice committed a jurisdictional error, the presiding justice correctly concluded that there was no evidence from which a reasonable inference could be drawn regarding the involvement of these Respondents in the July 2, 2009 robbery.

THE EVIDENCE AT THE PRELIMINARY INQUIRY

[10] The evidence at the preliminary inquiry is set out in the Crown's factum. The Respondents take no issue with the Crown's summary of the facts.

[11] For the purpose of this ruling, let me summarize certain portions of the evidence at the preliminary inquiry.

[12] The July 2, 2009 Robbery:

a) On July 2, 2009, at around 1:30 pm, the tractor trailer driver arrived at Matheson Blvd. E. (east end of the GTA) to pick up a shipment of electronic equipment;

b) While at his loaded tractor trailer truck, a man came up to the driver, put a gun to his side and moved the driver to the sleeper where his face and eyes were covered and he was tied up with tape;

c) There were at least 4 men in his truck as it drove off;

d) The truck was driven away for about one and a half hours;

e) The truck was stopped. It was unloaded over the course of about one half hour;

f) The robbers left; and

g) The driver got out. He found himself and the empty truck in the Salem Road and Hwy 401 (west end of the GTA) area.

[13] The July 2, 2009 Cell Phone evidence:

a) The cell phone evidence puts both Respondents in the vicinity of the July 2, 2009 robbery at the time of the robbery;

b) The cell phone evidence shows both the Respondents' cell phones were not used for several hours which approximately coincide with the time the driver was tied up and the transport truck was driven to a new location. In Mr. Pathmanathan's case, his cell phone received 5 calls during this period but each went unanswered;

c) When next used, both Respondents' cell phones were in the vicinity of Salem Road and Hwy 401. The timing of the cell phone evidence coincides with the timing after the robbery was complete and the robbers left the truck driver and transport trailer at the side of the road;

d) In Mr. Pathmanathan's case, the cell phone evidence was that he returned westbound towards Toronto along Hwy 401 and eventually at the Neilson and Wingarden area of Scarborough; and

e) In Mr. Kanthasamy's case, the cell phone evidence was that he too travelled westbound eventually to the Neilson and Wingarden area of Scarborough.

[14] Other robberies in the Information, other robberies and each other:

a) On July 21, 2009 there was a robbery of a tractor trailer at the Quinte Mall in Belleville. The driver was approached by the robbers while in his truck, a gun was pointed at him, he was put in the bunk area of the truck, had his face covered and was tied up with tape. The tractor trailer was driven to the Markham area. The cell phone evidence was that Mr. Pathmanathan drove out Scarborough to the Quinte Mall area and then returned to the GTA, at times which were consistent with this robbery. The cell phone evidence was that Mr. Kanthasamy also went from the GTA to the Quinte Mall and then returned westward towards the GTA, again, at times which were consistent with this robbery;

b) On July 25 2009 a security guard at a truck yard, was robbed at gunpoint. The guard was put into the sleeper compartment of a tractor trailer tied up with tape, while the robbery of the contents of the tractor trailers took place. At one point, the robbers drove out of the yard with the security guard to take money from the security guard's bank account at an ATM. They returned to the truck yard and locked the security guard in an empty tractor trailer container. The robbers left with a tractor trailer and later abandoned the tractor trailer. Mr. Pathmanathan's cell phone records put him in the vicinity of the truck yard at the time of the robbery, in the vicinity of the ATM when it was used by the robbers and in the vicinity of where the tractor trailer was later recovered. Mr. Kanthasamy's cell phone records show that he was in the vicinity of the truck yard during the time of the robbery;

c) On July 28, 2009 a truck driver, while on a night delivery in Ottawa, he was asleep in his tractor trailer at an LCBO when he was approached by robbers at gun point. The driver was taped up, his bank card taken and forced to divulge his pin number. The tractor trailer went to Coteau du Lac, Quebec (just west of Montreal). Mr. Pathmanathan's cell phone records show that he went from the Scarborough area eastward at approximately the same time the tractor trailer was heading eastward towards Ottawa. Mr. Pathmanathan's cell phone was next used in the morning after the robbery in the Montreal area. Mr. Kanthasamy's cell phone records show that he travelled eastbound on the same night the truck driver did. The next use of Mr. Kanthasamy's cell phone was next morning in the Montreal area;

d) Mr. Mashood, one of the robbers in a number of tractor trailer robberies, pled guilty to certain charges. He implicated Mr. Pathmanathan in a May 2, 2009 tractor trailer robbery (which robbery appeared to be very similar to the July 25, 2009 robbery);

e) Mr. Amarasingam, another robber in a number of tractor trailer robberies, pled guilty to certain of the robberies. Mr. Amarasingam also implicated Mr. Pathmanathan in the May 2, 2009 tractor trailer robbery;

f) Mr. Mashood implicated Mr. Pathmanathan and Mr. Kanthasamy in the July 28, 2009 robbery;

g) Mr. Pathmanathan had cell phone contact with Mr. Amarasingam on July 2, 2009 just before the robbery; and

h) Mr. Kanthansamy had cell phone contact with Mr. Mashood on July 2, 2009 just after the robbery.

THE ARGUMENTS AT THE PRELIMINARY INQUIRY

[15] There is no dispute that the Crown, on several occasions, submitted that a reasonable inference arose from all the evidence, including the similar fact evidence, that the Respondents were parties to the July 2, 2009 robbery. However, at no time did the Crown seek a specific ruling regarding the admissibility of the similar fact evidence.

[16] The Respondents' counsel did not raise any objection to the use of the similar fact evidence at the preliminary inquiry.

[17] Mr. Kanthasamy's counsel suggested that the similar fact evidence from the subsequent robberies in July and August could not be used for the July 2, 2009 robbery because the July 2, 2009 robbery was the first robbery. The Crown disagreed with this submission. This defence submission, at least implicitly, accepted that similar fact evidence was available for the court to consider on the issue of committal or discharge.

THE REASONS FOR THE DISCHARGE

[18] With respect to Mr. Kanthasamy, the presiding justice gave the following reasons for discharge:

Once again, dealing with this circumstantial evidence, that is the location of the phones, and applying the limited weighting that I can, in relation to that evidence, I am of the view that it would be insufficient evidence for a trier of fact to conclude by way of inference that Mr. Kanthasamy was a party to this offence. In the result, Mr. Kanthasamy will be discharged on counts 88 through 91.

[19] It is conceded that there is nothing in the balance of the reasons of the presiding justice where he expressly considers the application of the similar fact evidence with regard to Mr. Kanthasamy and the July 2, 2009 robbery charges.

[20] With Respect to Mr. Pathmanathan, the presiding justice gave the following reasons for discharge:

Bearing in mind the test for committal and appreciating that that test is a low threshold i am, however, of the view that the evidence in relation to the proximity of Mr. Pathmanathan's phone to a location near where the robbery transpired and later in an area near where Mr. Alic was later found is not sufficient for trier of fact to draw the inferences necessary to enter a finding of guilt on these related counts. Even bearing in mind the similarity of Mr. Alic's testimony to some of the other matters before the court and notwithstanding the temptation to tie these counts in with a number of others upon which there is evidence sufficient for committal for trial it's my view that without something further tying Mr. Pathmanathan to this robbery and associated incidents on July the 2nd, it would be speculative as opposed to inferential for a trier of fact to conclude that Mr. Pathmanathan was guilty of these offences. In the result, Mr. Pathmanathan will be discharged on counts 12 through 15.

[21] It is conceded that there is nothing in the balance of the presiding justice's reasons where he expressly considers the similar fact evidence with regard to Mr. Pathmanathan with respect to the July 2, 2009 robbery charges.

LAW

The Test for Committal at a Preliminary Inquiry

[22] If there is some admissible evidence on each essential element, the presiding judge must commit the defendant to trial. The failure to do so is a jurisdictional error. See. R. v. Sazant 2004 SCC 77, [2004], S.C. J. No. 74 (S.C.C.).

[23] The presiding judge must consider all of the evidence. See: s. 548(1) (b) of the Code. The failure to do so is a jurisdictional error. See: Sazant, supra. Failure to consider any circumstantial evidence capable of identifying an accused as the perpetrator is a jurisdictional error. R. v. C.T. [2006] O.J. No. 75 (C.A.).

[24] The presiding judge does not weigh the evidence for competing inferences or choose one inference over another - that assessment is for the trier of fact. See: Arcuri supra. If there are competing inferences, the presiding judge is not to weight the competing inferences but to only consider any reasonable inference(s) that favour the Crown. R. v. Sazant, 2004 SCC 77, [2004] 3 S.C. R. 635 at para. 18. The inference need not be “compelling” or even “easily drawn” in order to be reasonable. R. v. Munoz, 2006 3269 (ON SC), [2006] O.J. No. 446 (S.C.J.) at paras 21-22 and R. v. Dwyer, 2013 ONSC 1036, [2013] O.J. No. 961 (C.A) at para 10.

[25] Where the evidence on an essential element is entirely based on circumstantial evidence, the presiding judge must, by necessity, embark upon a limited weighing of the evidence to determine whether a properly instructed jury could draw a reasonable inference from all the evidence. See: Arcuri, supra paras. 1 and 23.

[26] It is an error to isolate particular piece of evidence and consider whether a reasonable inference can be draw by the presiding judge. It is the entirety of the evidence, all of the circumstantial evidence and the evidence as a whole, which must be considered by the presiding judge to determine whether a reasonable inference can be drawn. R. v. Muir 2008 ONCA 608, [2008] O.J. No. 3418 (C.A.) at para 1.

[27] It is an error for a presiding judge to make a “decision on the discharge of an accused to be made without full regard to all of the evidence. It is a jurisdictional error for a preliminary inquiry judge to fail to consider the “whole of the evidence” as required under s. 548(1) (b), and the Ontario Court of Appeal erred in concluding otherwise.” See: R. v. Deschamplain [2004] 3 S.C.R. 602 at para. 18. However, where the presiding judge considers all of the evidence and concludes, even erroneously concludes, that the totality of the evidence is insufficient for a committal, it is not a jurisdictional error. See Deschamplain para 23.

Certiorari Applications

[28] There is no real disagreement regarding this court's jurisdiction on a certiorari application. This court may only grant relief where the lower court has acted in excess of its jurisdiction. See: R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.).

[29] This court may not overturn a decision simply because this court might have come to a different conclusion than the presiding judge 's conclusion. See: R. v. Russell (2001), 157 (3d) 1 (S.C.C.). As stated in Russell, supra, at para. 26: “It is well-settled law that errors as to the sufficiency of the evidence are within the jurisdiction of the preliminary inquiry judge, as long as there is some evidence supporting the committal…”

Reasons

[30] The adequacy of the presiding judge's reasons must be considered from both a functional and contextual assessment of the adequacy of the reasons. On that approach, a deficiency in the reasons will in some cases render the reasons inadequate, but that same deficiency will not have that effect in other cases where the context is different. See R. v. J.J.R.D., (2006), 2006 40088 (ON CA), 218 OAC 37 (ON CA) at para 39.

[31] While silence in a presiding judge’s reasons is not, by itself, reason to intervene, a presiding judge has a duty to provide some clear indication that the obligation to consider the whole of the evidence was met. See Deschamplain, at paras 24 and 34 and 37:

24 Silence in the reasons alone may not necessarily be sufficient to justify the intervention of a reviewing court. As this Court has previously held, there must be some rational basis in the record to justify such intervention: see Macdonald v. The Queen, 1976 140 (SCC), [1977] 2 S.C.R. 665, at p. 673 (involving reasons from a court martial); and R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 29-30 (involving reasons from a trial verdict).

34 It is now plain from Canadian jurisprudence that a trial judge is not required to give extensive reasons for a decision, but is bound to indicate what he or she understands the nature of the case to be so that the parties are aware that the case they argued was the one decided: see Sheppard, supra. Similarly, a preliminary inquiry judge is not required to render extensive reasons but must demonstrate that he or she met the statutory and mandatory duty to consider the whole of the evidence. It hardly needs saying that had the proceedings been a trial and not a preliminary inquiry, an acquittal of the respondent for the reasons given by Serré J. not to commit would likely be sustained. However, the mandatory duty imposed on the judge at a preliminary inquiry to consider the whole of the evidence requires some clear indication that this obligation was met. In my view, the reasons at issue here do not satisfy this requirement.

(emphasis added)

ANALYSIS

[32] Before I proceed with the analysis, there is no dispute that the Crown, on numerous occasions, submitted to the presiding judge that he should consider the similar fact evidence of the other robberies as part of the evidence as to whether a reasonable inference could be drawn that the Respondents were parties to the July 2, 2009 robbery. The Crown submitted when the evidence was considered as a whole, because of the high improbability of coincidence given the similarities, a reasonable inference could be drawn that the Respondents were parties to the July 2, 2009 robbery.

[33] The Respondents’ counsel did not object to the Crown’s submission on the use of similar fact evidence. Further, it is apparent that:

a) No defence counsel asked for a specific ruling on the issue of the relevance or admissibility of the similar fact evidence;

b) counsel for the Respondents did not submit that the presiding judge should not consider the similar fact evidence.

[34] Clearly, the issue of the similar fact evidence and its potential application in this case was squarely an issue to be dealt with by the presiding judge. The presiding judge failed to specifically deal with this evidentiary issue.

IS THE FAILURE TO CONSIDER THE WHOLE OF THE EVIDENCE A JURISDICTIONAL ERROR?

[35] I can quickly deal with the Respondents' first submission. The law is clear, failure to consider the "whole of the evidence" is a jurisdictional error. The portions of Deschamplain supra referred to above make this clear.

[36] The issue is whether the presiding judge did or did not consider the similar fact evidence, if the evidence was admissible.

DID THE PRESIDING JUDGE CONSIDER THE SIMILAR FACT EVIDENCE AND CONCLUDED THAT A REASONABLE INFERENCE COULD NOT BE DRAWN?

Mr. Kanthasamy

[37] There is nothing in the presiding judge’s reasons which would suggest that he considered the similar fact evidence. The presiding justice appears to make a determination based solely on whether a reasonable inference could be drawn solely from the cell phone evidence.

[38] In these circumstances, I am satisfied that there was a failure of the presiding judge to provide some clear indication that he complied with his mandatory duty to consider the whole of the evidence. He does not reject the similar fact evidence. He does not accept the similar fact evidence. His reasons are silent. I am not prepared to speculate that the presiding justice did consider the similar fact evidence.

[39] I am satisfied that the presiding judge exceeded his jurisdiction with respect to the discharge of Mr. Kanthasamy on the July 2, 2009 charges.

Mr. Pathmanathan

[40] With Mr. Pathmanathan, the situation is somewhat different. The presiding judge does make some reference to the similar fact evidence:

Even bearing in mind the similarity of Mr. Alic's testimony to some of the other matters before the court and notwithstanding the temptation to tie these counts in with a number of others upon which there is evidence sufficient for committal for trial it's my view that without something further tying Mr. Pathmanathan to this robbery and associated incidents on July the 2nd, it would be speculative as opposed to inferential for a trier of fact to conclude that Mr. Pathmanathan was guilty of these offences.

(emphasis added)

[41] The phrase “notwithstanding the temptation to tie these counts in” would suggest that the presiding judge was tempted to but did not tie these counts (the July 2, 2009 charges) with the other robberies.

[42] Mr. Pathmanathan’s counsel would have me read this passage that the presiding judge rejected that similar fact evidence as admissible in this case.

[43] I do not read the presiding judge’s reasons in this manner. First, there is nothing in the reasons of the presiding judge which indicates that he considered whether the similar fact evidence was admissible in this case. There is simply no analysis of the similarities and dissimilarities between the various robberies. There is no analysis of the probative or prejudicial value of this evidence. The conclusion that the presiding judge rejected the similar fact evidence based on this sentence is mere speculation. The second difficulty is that the presiding judge acknowledges the similarity of the driver’s evidence to the evidence in the other robberies but then does nothing with this similarity. He refers to the “temptation” arising from the similarity. He does not state how, if at all, he used the similarity or whether the “notwithstanding the temptation” was a rejection of the similar fact evidence. No explanation was given.

[44] There is nothing to suggest a full and proper consideration of the admissibility of the similar fact evidence was undertaken and decided by the presiding justice, let alone, if such evidence was admissible, that similar fact evidence was considered by him.

[45] I am satisfied that the presiding judge failed to properly consider the admissibility and relevance of the similar fact evidence which was potentially available to him to make the decision on Mr. Pathmanathan’s committal or discharge. He exceeded his jurisdiction in failing to decide this issue and consider this evidence, if admissible.

IF THE PRESIDING JUDGE EXCEEDED HIS JURISDICTION, WAS THERE ANY EVIDENCE ON WHICH THE RESPONDENTS SHOULD BE COMMITTED ON THE JULY 2, 2009 CHARGES?

[46] Notwithstanding that the Respondents did not object to the Crown’s submissions that the similar fact evidence was admissible at the preliminary inquiry, the Respondents now submit that the similar fact evidence was not admissible for the presiding justice to consider.

[47] In order to determine whether there was any evidence on which the Respondents should be committed to trial, this court must first determine whether the similar fact evidence was admissible.

Was Similar Fact evidence admissible evidence at the Preliminary Inquiry?

[48] The Crown sought to use the similar fact evidence to establish the Respondents’ identity as part of the perpetrators of the robbery on July 2, 2009.

[49] Similar fact evidence is presumptively inadmissible. The Crown bears the onus to establish its admissibility on the balance of probabilities.

[50] Essentially, the court is to weight the probative value versus the prejudicial value of the admission of the similar fact evidence. On the probative value, the similarity between or amongst the acts must be decided by considering all the relevant factors such: as proximity in time and place; number of occurrences; similarities in detail and circumstances. On the prejudicial impact, this might arise from the moral or reasoning prejudice because the trier of fact may use the similar fact evidence to conclude that the accused is a person of a disposition who would have or could have committed the offence.

[51] There has been much written on the admissibility of similar fact evidence, including where the Crown seeks to rely on the similar fact evidence to establish the identity of the accused as the perpetrator.

[52] The admissibility of similar fact evidence derives its probative value from the fact that there is on objective improbability of coincidence that different persons committed the various acts. R. v. Arp 1998 769 (SCC), [1998] 3 S.C.R. 339, a case where similar fact evidence was sought to be used to establish the identity of the perpetrator, sets out the relevant law with respect to the admissibility of similar fact evidence in such circumstances:

43. It follows that where identity is at issue in a criminal case and the accused is shown to have committed acts which bear a striking similarity to the alleged crime, the jury is not asked to infer from the accused’s habits or disposition that he is the type of person who would commit the crime. Instead, the jury is asked to infer from the degree of distinctiveness or uniqueness that exists between the commission of the crime and the similar act that the accused is the very person who committed the crime. This inference is made possible only if the high degree of similarity between the acts renders the likelihood of coincidence objectively improbable. See Hoch v. The Queen (1988), 165 C.L.R. 292 (Aust. H.C.). That is, there is always a possibility that by coincidence the perpetrator of the crime and the accused share certain predilections or that the accused may become implicated in crimes for which he is not responsible. However, where the evidence shows a distinct pattern to the acts in question, the possibility that the accused would repeatedly be implicated in strikingly similar offences purely as a matter of coincidence is greatly reduced….

44. Because similar fact evidence is admitted on the basis of an objective improbability of coincidence, the evidence necessarily derives its probative value from the degree of similarity between the acts under consideration. The probative value must, of course, significantly outweigh the prejudice to the accused for the evidence to be admissible….

45. Instead, a principled approach to the admission of similar fact evidence will in all cases rest on the finding that the accused’s involvement in the alleged similar acts or counts is unlikely to be the product of coincidence. This conclusion ensures that the evidence has sufficient probative force to be admitted, and will involve different considerations in different contexts. Where, as here, similar fact evidence is adduced on the issue of identity, there must be a high degree of similarity between the acts for the evidence to be admitted. For example, a unique trademark or signature will automatically render the alleged acts “strikingly similar” and therefore highly probative and admissible. In the same way, a number of significant similarities, taken together, may be such that by their cumulative effect, they warrant admission of the evidence. Where identity is at issue ordinarily, the trial judge should review the manner in which the similar acts were committed ‑‑ that is to say, whether the similar acts involve a unique trademark or reveal a number of significant similarities. This review will enable him or her to decide whether the alleged similar acts were all committed by the same person. This preliminary determination establishes the objective improbability that the accused’s involvement in the alleged acts is the product of coincidence and thereby gives the evidence the requisite probative force. Thus, where the similar fact evidence is adduced to prove identity, once this preliminary determination is made, the evidence related to the similar act (or count, in a multi‑count indictment) may be admitted to prove the commission of another act (or count).

48 Thus, where similar fact evidence is adduced to prove a fact in issue, in order to be admissible, the trial judge should evaluate the degree of similarity of the alleged acts and decide whether the objective improbability of coincidence has been established. Only then will the evidence have sufficient probative value to be admitted. Where the fact in issue is the identity of the perpetrator of the crime, then in the usual course of events the trial judge must assess the degree of similarity demonstrated by the manner in which the acts in question were committed to determine whether it is likely the same person committed the alleged similar acts. Once it is determined on a balance of probabilities that the same person committed the alleged similar acts, the similar fact evidence may be admitted to prove that the accused committed the offence or offences in question.

50 In summary, in considering the admissibility of similar fact evidence, the basic rule is that the trial judge must first determine whether the probative value of the evidence outweighs its prejudicial effect. In most cases where similar fact evidence is adduced to prove identity it might be helpful for the trial judge to consider the following suggestions in deciding whether to admit the evidence:

(1) Generally where similar fact evidence is adduced to prove identity a high degree of similarity between the acts is required in order to ensure that the similar fact evidence has the requisite probative value of outweighing its prejudicial effect to be admissible. The similarity between the acts may consist of a unique trademark or signature on a series of significant similarities.

(2) In assessing the similarity of the acts, the trial judge should only consider the manner in which the acts were committed and not the evidence as to the accused’s involvement in each act.

(3) There may well be exceptions but as a general rule if there is such a degree of similarity between the acts that it is likely that they were committed by the same person then the similar fact evidence will ordinarily have sufficient probative force to outweigh its prejudicial effect and may be admitted.

(4) The jury will then be able to consider all the evidence related to the alleged similar acts in determining the accused’s guilt for any one act.

Once again these are put forward not as rigid rules but simply as suggestions that may assist trial judges in their approach to similar fact evidence.

51 The test for admissibility of similar fact evidence adduced to prove identity is the same whether the alleged similar acts are definitively attributed to the accused, or are the subject of a multi‑count indictment against the accused. See Boardman, supra, at p. 896, per Lord Wilberforce.

[53] The issue of similar fact evidence was again dealt with by the Supreme Court in R. v. Handy, 2002 SCC 56, [2002] 2 SCR 908. The case did not involve the use of similar fact evidence for the purpose of identification but for proving the actus reus of the offence. The Supreme Court reaffirmed that, where identification is at issue, a high degree of similarity between the acts is required. See Handy para 77. The Supreme Court went on to provide a list of factors which might be considered in a similar fact application:

82 The trial judge was called on to consider the cogency of the proffered similar fact evidence in relation to the inferences sought to be drawn, as well as the strength of the proof of the similar facts themselves. Factors connecting the similar facts to the circumstances set out in the charge include:

(1) proximity in time of the similar acts: D. (L.E.), supra, at p. 125; R. v. Simpson (1977), 1977 1142 (ON CA), 35 C.C.C. (2d) 337 (Ont. C.A.), at p. 345; R. v. Huot (1993), 1993 8652 (ON CA), 16 O.R. (3d) 214 (C.A.), at p. 220;

(2) extent to which the other acts are similar in detail to the charged conduct: Huot, supra, at p. 218; R. v. Rulli (1999), 1999 3712 (ON CA), 134 C.C.C. (3d) 465 (Ont. C.A.), at p. 471; C. (M.H.), supra, at p. 772;

(3) number of occurrences of the similar acts: Batte, supra, at pp. 227-28;

(4) circumstances surrounding or relating to the similar acts (Litchfield, supra, at p. 358);

(5) any distinctive feature(s) unifying the incidents: Arp, supra, at paras. 43-45; R. v. Fleming (1999), 1999 18921 (NL CA), 171 Nfld. & P.E.I.R. 183 (Nfld. C.A.), at paras. 104-5; Rulli, supra, at p. 472;

(6) intervening events: R. v. Dupras, 2000 BCSC 1128, [2000] B.C.J. No. 1513 (QL) (S.C.), at para. 12;

(7) any other factor which would tend to support or rebut the underlying unity of the similar acts.

[54] The Supreme Court in Handy proceeded with a three step approach to determine admissibility of similar fact evidence as follows:

(a) The Probative Value of the Evidence

At this point, the court considers the issue for which the Crown seeks to adduce the similar fact evidence. Then the court evaluates the cogency of the similar fact evidence in relation to that particular question which involves a consideration of the various connecting factors and the factors which make the connecting factors less persuasive.

(b) Assessment of the Prejudice

At this point the court evaluates the moral prejudice and reasoning prejudice of the similar fact evidence.

(c) Weighing up Probative Value Versus Prejudice

The starting point, of course, is that the similar fact evidence is presumptively inadmissible. It is for the Crown to establish on a balance of probabilities that the likely probative value will outweigh the potential prejudice. The court then weighs the probative value versus the prejudicial value.

[55] In R. v. MacCormack 2009 ONCA 72, [2009] O. J. No. 302 (C.A.) the Court of Appeal dealt with the use of similar fact evidence to establish the identity of the perpetrator. The Court of Appeal provided an excellent summary of the application of the similar fact evidence in identification cases:

The Admissibility Threshold: The “Similarity” Issue

[48] Evidence of similar acts, whether of other counts charged in an indictment or of extrinsic misconduct, is presumptively inadmissible. The onus falls upon the prosecutor to satisfy the trial judge, on a balance of probabilities, that in the context of the case being tried, the probative value of the evidence on a particular issue outweighs its potential prejudicial effect and thus justifies its reception: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55; R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339, at paras. 42 and 51.

[49] Probative value depends upon the nexus established between the evidence of similar acts and the offence that the evidence is offered to prove. The degree of similarity required to permit the introduction of evidence of similar acts is a function of the issues in the case, the purpose for which the evidence of similar acts is being offered and the other evidence adduced at trial: Handy at paras. 76, 78 and 79; R. v. Shearing, , 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 48.

[50] Where evidence of similar acts is offered to help prove the identity of the person responsible for a crime, a high degree of similarity between the tendered acts and the offence charged is required to render the likelihood of coincidence objectively improbable and to justify the reception of the evidence: Arp at para. 43.

[51] In some cases in which evidence of similar acts is offered to help establish the identity of the person responsible for a crime, the evidence will reveal a unique trademark or signature common to all incidents. Such a striking similarity sponsors admission. But, a signature is not required in every case. A number of significant similarities in combination may, by their cumulative effect, warrant admission: Arp at para. 45; Handy at para. 81.

[52] The admissibility inquiry begins with a focus on the acts themselves. Do the acts have the high degree of similarity required to justify their reception? As similarity increases, so does probative value: R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 21. This phase of the inquiry into admissibility may be characterized as the “similarity” issue.

[53] The similarity inquiry is a case-specific, highly individualized examination involving a consideration of all relevant factors including, but not limited to:

i. proximity in time and place;

ii. similarity in detail and circumstances;

iii. number of occurrences;

iv. any distinctive feature(s) unifying the various incidents;

v. intervening events; and

vi. any other factor that tends to support or rebut the underlying unity of the similar acts.

Handy at para. 82; Perrier at para. 22.

[56] The test for the admissibility of evidence of similar acts offered to prove identity is the same whether the alleged similar acts are extrinsic to the counts in the indictment, or contained in other counts of the same indictment: Arp at para. 51. The same test notwithstanding, some of the factors relevant to an assessment of prejudice may have an attenuated influence in cases in which the similar acts are restricted to other counts in a multi-count indictment. It may be all the more so where the case is tried by a judge sitting without a jury.

[56] In MacCormack, the Court of Appeal went on to specifically deal with the possible applicability and importance of any evidence linking an accused to each of the similar acts on the determination whether the similar fact evidence is admissible:

The Relevance of “Linkage” Evidence to the Admissibility Decision

[57] The “similarity” issue that lies at the threshold of the decision about the admissibility of evidence of similar acts is to be based on an examination of the acts themselves. After all, it is the high degree of similarity between or among the acts that overcomes the improbability of coincidence: Perrier at para. 21; Arp at para. 49. In general, the “similarity” issue is to be decided without reference to evidence linking the accused to each alleged similar act (“linkage evidence”): Perrier at para. 21; Arp at para. 49.

[58] The general rule that linkage evidence is not to be taken into account in determining the “similarity” issue is not unyielding: R. v. Woodcock (2003), 2003 6311 (ON CA), 177 C.C.C. (3d) 346, at paras. 80-81 (Ont. C.A.). There may be cases where examination of the linkage evidence should form part of the “similarity” decision: Woodcock at para. 81. Further, in many cases, the fact that a trial judge first considers whether there was any evidence linking the accused to the alleged similar acts will not amount to reversible error: Woodcock at para. 82. It is not often easy to draw a bright line that distinguishes between evidence that demonstrates similarity among the acts and evidence that shows an accused’s involvement in them.

[59] Like the “similarity” requirement, which indicates a common perpetrator of the similar acts, a demonstrated link between the accused and the similar acts is also a precondition to admissibility: Arp at para. 54; R. v. Sweitzer, 1982 23 (SCC), [1982] 1 S.C.R. 949, at p. 954. In a trial on a multi-count indictment, the link between an accused and an individual count will be relevant to the issue of identity on the other counts that disclose the required degree of similarity in the manner in which those offences were committed: Arp at para. 53. The requirement that there be a link between the allegedly similar acts and the accused demands that there be some evidence upon the basis of which the trier of fact can make a finding that the similar acts were those of the accused. Evidence of mere opportunity to commit the similar acts is not sufficient: Arp at paras. 54 and 57; Harris v. Director of Public Prosecutions, [1952] A.C. 694, at 708 (H.L.).

Are there similarities between the robberies on July 2, 21, 25 and 28th of July, 2009?

[57] The evidence before the presiding judge from the preliminary evidence was extensive. The Crown summarized a number of similarities between the four robberies in July 2009 in its factum. The Respondents did not set out any dis-similarities between the four robberies.

[58] There are a significant number of similarities with the 4 robberies:

• all the robberies involve the theft of a tractor trailer contents;

• all the robberies required one of the perpetrators to have the ability to drive a tractor trailer;

• all the robberies involved a kidnapping of the tractor trailer driver in 3 cases or a security guard guarding tractor trailers in the 4th case;

• all the robberies involved the use of a gun to obtain compliance by the drivers or guard with the robber’s demands;

• all the robberies involved a forcible confinement in a tractor trailer or the tractor trailer’s container;

• The drivers and guard were tied up using tape;

• The use of the tractor trailer sleeper or bunk behind the front seat to confine the drivers, is common in a number of the robberies;

• In two of the cases, the robbers chose to take the driver/security guard’s ATM card, force him to disclose the pin so that the robbers could take money from the hostage’s bank account;

• The tractor trailers with the drivers/security guard were driven by the robbers. In the case of three of the robberies, the tractor trailers were driven to a different location with the driver inside and then abandoned while the drivers were still tied up;

• The conversation between the robbers during the robbery was in a foreign language, in three cases identified as Sri Lankan;

• The tractor trailers were driven a significant distance away from the robberies for the purpose of unloading the tractors;

• Mr. Mashood had an admitted and common involvement in certain of the tractor trailer robberies; and

• The timing of the tractor trailer robberies were within a few weeks of each other.

[59] Based on the above similarities, I am satisfied that there is a very high degree of similarities with the four robberies in July 2009. The accumulation of the above significant similarities is sufficient to establish the objective improbability of coincidence regarding the commonality of the perpetrators to these robberies. Any dissimilarities amongst all four robberies were neither so numerous nor substantial to dilute the probative value arising from the very high degree of similarities of the commonality of the perpetrators to these four robberies.

[60] As a result, I find there is a high probative value to the similar fact evidence.

What is the prejudicial value of the similar fact evidence proposed?

[61] Clearly, there is some degree of prejudice from the admission of the proposed similar fact evidence. A trier of fact may very well conclude or consider that, because the Respondents were involved in the July 21, 25 and 28th of July 2009 robberies, the Respondents were of a disposition or more likely to have been involved in the July 2, 2009 robbery.

Weighing the probative value and the prejudicial value of the proposed similar fact evidence

[62] In this case, the probative value of the proposed similar fact evidence is very high, it overcomes the lesser prejudicial value form this evidence. This was not a close call.

Conclusion on Admissibility of the similar fact evidence

[63] At this point of the analysis, I could and would have ruled that, for the purpose of the preliminary inquiry, the similar fact evidence arising from the latter July 2009 robberies is admissible evidence to establish the identity of the perpetrators on the July 2, 2009 robbery.

[64] However, if necessary, in this case there is also very strong linkage evidence tying the Respondents to all the robberies in question. In MacCormack, the Court of Appeal explained the requirement that only the similarity of the acts are to be considered for admissibility without considering any “linkage” evidence is not an inviolate rule. The Court of Appeal stated:

[81] The rule against considering both evidence of the manner in which allegedly similar acts were committed and evidence of an accused’s involvement in the acts and determining whether the similarity requirement has been met is a general prohibition, not an unyielding or invariable rule that brooks no exception: Arp at para. 49; Woodcock at paras. 79-80. Sometimes, it is difficult to draw a bright line between similarities in the manner in which an act is committed and an accused’s involvement in that act. To apply a test of whether the objective improbability that an accused’s involvement in the alleged acts is the product of coincidence without any regard to the evidence connecting the accused and the acts seems unduly antiseptic.

[65] In this case, had there been any doubt about the similarity of the four robberies and the admissibility of the evidence on that basis alone, the linkage evidence involving the Respondents to those other tractor trailer robberies would have been highly probative and compelling:

a) The cell phone evidence places these Respondents in the vicinity of the July 2, 2009 robbery where the driver was tied up and the tractor trailer taken. The cell phone evidence also places these Respondents in the vicinity of the location where the tractor trailer was abandoned on the July 2, 2009 robbery;

b) Mr. Mashood, admitted his involvement in a prior tractor trailer robbery in May 2009 implicating Mr. Pathmanathan, connected both Respondents as having a role in the July 28, 2009 robbery;

c) On July 2, 2009 both Respondents were communicating with Mr. Mashood or Mr. Amarasingham by cell phone, who were persons admitted to be involved in certain of the tractor trailer robberies;

d) On July 25, 2009 Mr. Mashood’s cell records show that he was in the vicinity of the same area as the truck yard during the robbery and used his cell within a minute of Mr. Kanthasamy using his cell phone in the same area; and

e) The evidence ties Mr. Pathmanathan and Mr. Kanthasamy to each other and to other admitted tractor trailer robbers.

Is there any evidence which a reasonable and properly instructed jury could find Mr. Kanthasamy guilty of being a party to the July 2, 2009 robbery?

[66] In my view there is.

[67] The Respondent errs when counsel states in its factum: "The only evidence of the identity of the perpetrators in this incident was the cell phone location evidence associated with the Respondent and Mr. Pathmanathan's phones..." The other evidence comes from the similar fact evidence of the similar robberies after July 2, 2009, which should have been considered along with the cell phone evidence.

[68] The cell phone evidence arguably puts Mr. Kanthasamy at the location of the robbery on July 2, 2009 at the approximate time of the robbery. The cell phone evidence arguable puts Mr. Kanthasamy at the Salem and Hwy. 401 area where the tractor trailer was dropped off after the robbery and at approximately the time the tractor trailer was dropped off by the robbers. Mr. Kanthasamy's cell phone was not used during the same period of time the robbers had taken the tractor trailer with the driver at Matheson Drive and had driven to the Salem and Hwy. 401 area. The cell phone evidence established that both Respondents returned to generally the same area in Scarborough after the robbery.

[69] When this cell phone evidence, along with the similar fact evidence which includes linking Mr. Kanthasamy with other admitted robbers, I can and do conclude that a properly instructed jury acting reasonably, could conclude that Mr. Kanthasamy was one of the perpetrators in the July 2, 2009 robbery. In other words, a reasonable inference could be drawn from all the evidence that Mr. Kanthasamy was a party to the July 2, 2009 robbery.

Is there any evidence which a reasonable and properly instructed jury could find Mr. Pathmanathan guilty of being a party to the July 2, 2009 robbery?

[70] In my view, there is.

[71] The logic and conclusion is identical to that for Mr. Kanthasamy. In summary, Mr. Pathmanathan's cell phone evidence, the similar fact evidence which include Mr. Pathmanathan's association with admitted tractor trailer robbers, is sufficient for me to conclude that a properly instructed jury could reasonably conclude that Mr. Pathmanathan was one of the perpetrators in the July 2, 2009 robbery.

CONCLUSION

[72] I conclude that preliminary justice's rulings to discharge these Respondents, Srimoorthy Pathmanathan and Thirumal Kanthasamy, on all charges relating to the July 2, 2009 robbery, including the charges of robbery, conspiracy to commit robbery, kidnapping and use of imitation firearm are hereby quashed and an order of Mandamus is granted directing the matter back to the preliminary justice to commit these Respondents on those charges.

Ricchetti, J.

Released: September 21, 2015