ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13/697

DATE: 20150921

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 <a href="https://www.canlii.org/en/on/onscdc/doc/20