CITATION: R. v. Hickey and Simoni, 2015 ONSC 86

COURT FILE NO.: CR 104/14

DATE: 20150119

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

JOHN HICKEY AND ALDO SIMONI

Respondents

Tony MacKinnon, for the Crown

Vincenzo Rondinelli, for John Hickey

Marco Forte, for Aldo Simoni

HEARD: December 3, 2014

REASONS FOR JUDGMENT

Coats j.

INTRODUCTION

[1] In June 2014, a preliminary inquiry was held at Milton Courthouse to determine whether the Respondents should be committed to stand trial on charges of break and enter and possession of break-in instruments. On June 30^th, 2014, the preliminary inquiry judge discharged the Respondents on all charges.

[2] The Crown brings this application for an order of certiorari with mandamus in aid, quashing the preliminary inquiry judge’s decision and ordering the Respondents to stand trial on the said charges.

[3] For the following reasons, the application is granted in part. The matter will be remitted to the preliminary inquiry judge with an order in the nature of mandamus, committing both Respondents to stand trial on the charges of break and enter, and committing the Respondent Hickey to stand trial on the charge of possession of tools for the purpose of a break and enter.

OVERVIEW

a. The Robbery

[4] On March 18, 2013, at approximately 1.00 a.m., the Toronto Dominion Bank (hereinafter, “the Bank”) located at 4031 Fairview Street in Burlington was robbed. The police found the Respondents together with three other co-accused hiding in a vacant field about one half of a kilometer to the north-east of the Bank within an hour of the alleged break-in. These three co-accused plead guilty. They are:

• Mentor Vishaj (Vishaj);

• Aleksander Papic (Papic); and

• Besim Rugova (Rugova).

These three shall be referred to as “the known perpetrators.”

[5] The Crown alleged that the Respondents planned the robbery with the three known perpetrators, and that together they broke into the unit above the Bank and cut through the concrete floor to gain access to the Bank’s vault.

[6] The Respondents were charged with break and enter (two counts), possession of break-in instruments, and mischief under $5,000. Mr. Simoni was also charged with possession of a prohibited weapon.

b. The Preliminary Inquiry

[7] The preliminary inquiry was conducted over three days on June 25, 26, and 27, 2014. The following is a summary of the key evidence presented by the Crown.

i. Testimony of Papic

[8] Papic was a reluctant witness. He described how the break-in was done. He stated that he was Serbian and knew Rugova’s family from Serbia. He indicated that Rugova, whom he had never met prior to the robbery, planned and invited him to participate in the robbery. His (Papic’s) motivation for participating was in order to pay off his significant gambling debts, which were owed to bookies back in Serbia who could pose a threat to his family there.

[9] On the night of March 18^th, 2013, Rugova rented a car from Hertz and the two of them drove to the Bank. They parked the car behind some stores about a quarter of a mile away so that nobody would notice the car. Before parking, they dropped off a bag of equipment at the Bank, which included a jackhammer with cement bits, some rope, an eight-foot metal ladder, and possibly a saw. He explained that the jackhammer looks like a very powerful small drill with a hammer function.

[10] Papic then broke into the office above the bank and changed the locks so that they would not be disturbed. He drilled a hole about 12 to 15 inches deep into the cement with the jackhammer, which caved in to reveal the Bank’s vault. While drilling through the cement, Papic conceded that he created a lot of cement dust, and that the dust on his clothing likely came from that process. He indicated that the dust was powdery, and that the amount of dust that gathered on him was noticeable. He also stated that Rugova would have had a similar amount of dust on him.

[11] While drilling through the cement, Papic testified that he heard an alarm, but he continued to work because he had estimated that he could complete the project and leave in sufficient time. Once the hole caved, he dropped the ladder into the vault and climbed inside. He then pulled out a little hammer and hammered the locks on several boxes. He recovered some money and jewellery, which was placed inside a duffle bag. He stated that Rugova also had a duffle bag in which he collected money and jewellery.

[12] Papic and Rugova then climbed up the ladder back into the office space and exited the building. They left the tools inside the vault; however, Papic also stated that it was possible that Vishaj removed the tools and hid them somewhere else.

[13] After exiting the building, Papic and Rugova began walking on train tracks towards the car. Papic stated that he then saw a police officer, and so he and Rugova dropped their bags and ducked into the bushes approximately 15 feet away from where the bags were dropped. Within 15 minutes they were both arrested.

[14] Papic testified that there were a total of three people involved in planning and executing the robbery. He further testified that he was never introduced to Hickey, that Hickey was never in the office or the bank with him, and that he did not see him in the field. He also stated that he never discussed the robbery on the phone or in person with Hickey.

[15] On the other hand, he claimed to have known Simoni’s parents from back home in Albania. He stated that he knew Simoni himself for a couple of years; that Simoni was his friend; and that he met with him in person and spoke to him on the phone on many occasions. He claimed to have never committed any crimes with Simoni, and knew him as a business guy involved in a trucking company. He testified that he never discussed the robbery with Simoni, and that Simoni never entered the office or vault with him. Papic also claimed to have not seen Simoni in the field the night he and Rugova were arrested. He stated further that he was not even aware that Simoni was in the area.

[16] Regarding Vishaj, Papic stated that he was involved in the robbery, but that they did not know each other before this robbery. Vishaj was present in the office with them, and he also climbed into the vault for a little while. Vishaj did not, however, leave with a bag.

[17] Finally, Papic stated that he had some fear about testifying and about the potential repercussions of being labeled a “rat”, but also indicated that he was not scared of Mr. Hickey or Mr. Simoni.

ii. Testimony of Vishaj

[18] Vishaj admitted to having broken into the office space above the Bank and into the Bank vault together with Papic and Rugova. He indicated that he worked in Calgary in a business forming concrete for high-rise buildings, and had come from Montreal by bus that day. He claimed to have met Mr. Rugova, whom he knew several years prior from New York, that day at a bar. After several drinks, he was solicited by Rugova for the first time to participate in the robbery. He indicated that at that point he did not know that there would be any other people involved in the plan.

[19] He recalled having used a jackhammer, which he also described as a drill machine, to help break through the concrete above the vault, but he did not know how the tools got to the office. He remembered there being two jackhammers at the scene, but could not remember any other tools. After breaking through the concrete, he used a ladder to climb into the vault.

[20] Vishaj testified that he did never saw any dust generated from the process of breaking through the concrete. Specifically, he did not have time to look at the dust and therefore never saw it. However, in cross-examination, Vishaj agreed that the process of drilling itself would have created dust from the concrete.

[21] Following the robbery, he indicated that he ran past the train tracks and into the nearby field alone. He did not have time to bring any bags of items with him, and he did not know if anybody else managed to get money out. His plan was to run away on foot, and he had no knowledge of any cars parked nearby. Shortly afterwards, he was arrested in the field. He saw others get arrested but could not see who.

[22] Vishaj testified that only himself, Papic and Rugova were involved in the robbery, and stated that he did not know, and had never seen, Hickey or Simoni before. He did, however, testify to knowing Mr. Simoni’s brother from Calgary for a few years. He indicated that his brother did construction work related to tiles. However, he could not recall his brother’s name. He also stated that he was not talking to Mr. Simoni’s brother around the time that he ran into Mr. Rugova at the bar, and that he could not remember the last time he ever spoke to him. Further, Vishaj indicated that he had never met or known Papic before the robbery.

iii. Testimony of Alexander Hickey

[23] Alexander Hickey testified to being the father of John Hickey. He confirmed that he was the owner of a 2002 bronze Chev Venture that he leant to his son on the week of Monday, March 11^th, 2013. He indicated that any tools found in the car would have belonged to his son, who works in renovations and has his own set of tools. He agreed that these tools would include items such as saws, drills, and hammers, and that his son’s work might involve breaking and drilling into concrete. He did not know specifically if any of the tools found in the van belonged to his son, or whether his son had ever put any tools in the van that week.

[24] Alexander Hickey also stated that his son had other jobs prior to doing renovations, but could not recall what those jobs were. He did recall that in 2007 his son worked with security systems, but could not provide anything more specific on that point.

iv. Testimony of Constable David Allan

[25] Constable Allan testified that on the night of the robbery he received a notification that an alarm at the Bank was activated and the GPS in the bait money was alerting. When he arrived at the Bank, everything appeared normal and secure. Together with other officers that arrived at the scene, he set up a perimeter and waited for the K-9 officer, Constable Lawless, to arrive.

[26] Constable Allan then drove through the back of the strip mall and located two vehicles parked behind a restaurant – a gray Camry, which was registered as a Hertz rental car, and a brown Chev Venture van, which was registered to an Alexander Hickey.

[27] At that point, Constable Allan was called for backup at the field by Constable Brahimir. He then drove up to the field and began walking on the tracks, following Constable Brahimir’s flashlight. The field was pitch black at the time, and he used his flashlight to help navigate the way. At that point, he came across two males lying face down within arm’s length of each other; these males were later identified as Papic and Hickey. He held them there at gunpoint for approximately three minutes until backup arrived to assist in arresting them.

[28] While waiting for backup, Constable Allan searched Papic and found a microphone for a two-way radio inside his coat pocket, as well as some cash, a credit card and ID cards. He did not search Hickey at that time. Shortly thereafter, other officers arrived to help arrest the two men.

[29] Constable Allan then began to search the field for any stolen property. He was joined by Constable Brahamir, who had just completed an arrest for Simoni and Vishaj nearby. Almost immediately, they located a fifth individual, later identified as Rugova, lying face down under a bush about 15 feet away. Rugova was promptly arrested, and a search on his person revealed keys with a Hertz key-tag in his coat pocket. All of the suspects were subsequently taken to the police station where charges were laid against them.

v. Testimony of Constable Ismet Brahamir

[30] Constable Brahamir testified that at approximately 1.00 a.m. on March 18^th, 2013, he received a radio dispatch call of a break and enter alarm at the Bank. On his way to the Bank, he received confirmation that the front and back doors to the bank were secure. He then received further information that a GPS transmitter attached to the bait money was activated.

[31] When he arrived at the scene, Constable Brahamir took up a perimeter with the other officers and waited for the K-9 unit to attend and conduct a track. Shortly thereafter, the K-9 unit arrived and conducted the track with a negative result.

[32] He received information that the GPS had made its way into the field so Constable Brahamir then set off into the field to search for the suspects and the stolen property. The field was pitch black. He started at the top of the tree-line, and, with the aid of his flashlight, he came upon two males lying face-down and side-by-side on the ground. These men, who were later identified as Simoni and Vishaj, were concealed under a tree and speaking Albanian to one another. They were both wearing t-shirts and shivering uncontrollably. He drew his gun when he heard them conversing and held them at gunpoint, instructing them to stop talking and put their hands behind their back. He then called for back-up officers to assist him in making the arrest.

[33] Constable Brahamir recalled that Mr. Simoni had short hair and Mr. Vishaj had longer, thicker hair, but he could not remember any identifying features beyond that.

[34] Once the arrest was completed, Constable Brahamir continued into the field with Constable Allan to search for any property stolen from the Bank. They then discovered Rugova buried under a tree. They arrested Rugova and handed him off to other officers on the scene.

[35] After all the suspects were arrested, K-9 Unit Officer Lawless conducted an article search within the field and eventually located the two duffle bags of stolen property.

vi. Testimony of Constable Matt Lawless

[36] Constable Lawless testified that he was the K-9 handler on duty that night, and that he was called to the Bank at approximately 1.00 a.m. When he arrived, he and his police-dog, Storm, began conducting a track behind the Bank.

[37] After the track produced no results, Constable Lawless received information that officers had located suspects in the field. He then returned to his vehicle and drove from the Bank lot to the field, where he and Storm began to search for additional suspects and property along the tree-line. Storm eventually located two large duffle bags hidden in the tree-line. The bags stood approximately .06 kilometres apart and approximately 100 to 150 feet from where the suspects were apprehended. One bag contained a large amount of paper money, envelopes, and jewellery boxes. The second bag contained a large quantity of various kinds of paper money.

vii. Testimony of Constable Bowman

[38] Constable Bowman testified that he was dispatched to the Bank at approximately 1.00 a.m. that night in relation to an alarm activated inside the premises. Upon arriving at the scene, he joined the other officers in setting up a perimeter. Shortly after, he entered the field in response to a call for assistance from Constable Brahimir. He indicated that it was very dark, and he used his flashlight to find Constable Brahimir - who also had his flashlight on.

[39] After locating Constable Brahimir, he was instructed to find Constable Allan, who was by himself with other suspects. He then left to find Constable Allan and assist him in arresting these suspects, whom he found lying face down on the grass side-by-side. The suspects were within a few feet of each other. He handcuffed Hickey and transported him to the police station.

viii. Testimony of Dr. Elspeth Lindsay

[40] Dr. Elspeth Lindsay was presented as a chemistry expert for the Crown to testify in regards to an analysis and comparison of materials including concrete and concrete dust. Dr. Lindsay explained that she analyzed and compared the dust materials from the suspects’ clothing and from tools located within Hickey’s van. These materials were compared to three samples obtained from inside the bank vault, two of which were concrete and one of which was drywall. She was not, however, provided with any sample to analyze from the office unit above the Bank vault.

[41] From her analysis, Dr. Lindsay made the following conclusions:

• The samples from the vault were consistent with minerals associated with concrete; they all contained calcite, dolomite, and quartz.

• The same minerals were found in all of the suspects’ clothing.

• The minerals found in all of the suspects clothing were the same as those found in the concrete from the vault.

• There was nothing specific or unique about the colour or pigment of the concrete on the clothing of the suspects.

• All of the samples appeared to be a light grey powder, but were revealed to be a light brown powder when examined under a stereo scope.

• The minerals found in all of the suspects’ clothing was on the surface, indicating that the clothing had not been laundered since the minerals were deposited.

• Mr. Hickey’s clothing had the least amount of mineral deposits on it.

• All of the tools had a large concentration of dust on them, which was likely due to the proximity between the tools and the cutting of concrete.

[42] Dr. Lindsay was not able to find any scientific information about the variability of mineral content in concrete generally, and she was unable to say whether the samples necessarily all came from the same source. She also indicated that there was no investigation done as to the type of concrete used for bank vaults generally, or for other purposes, such as roads or bridges. She did, however, concede that different strengths of concrete are used for different purposes.

[43] Dr. Lindsay did agree, albeit in her capacity as a home renovator and not an expert, that using a tool to cut concrete would generate a significant amount of dust, which could be deposited by air transfer on nearby surfaces, including the clothes of the person using the tool and any person standing in close proximity to the tool at the time it is being used.

[44] Dr. Lindsay also examined drywall pieces obtained from inside the vault. These pieces contained the minerals gypsum, dolomite, and quartz. She indicated that this drywall was not present on the suspects’ clothing, evidenced by the lack of gypsum minerals present. She did note that a “hole saw” recovered from Hickey’s van contained minerals consistent with concrete and drywall. Nonetheless, she could not rule out whether these minerals came from the vault or from another source.

c. Position of the Parties at the Preliminary Inquiry

[45] The Crown’s position at the preliminary inquiry was that the circumstantial evidence presented supported a reasonable inference that the accused were either parties or principals to the offence charged. The Crown relied on:

• the presence of concrete dust on the accused’s clothing, which was consistent in composition with the dust on the clothing of the three known perpetrators, as well as the dust taken from samples inside the Bank vault;

• the fact that the accused were found lying face down in the field beside the bank at approximately 2.00 a.m. in complete darkness, near to the three known perpetrators of the offence and the two bags of stolen property;

• Vishaj and Simoni were found next to each other and speaking in Albanian to one another;

• Papic knew Simoni, but was found lying next to Hickey – whom he claimed to not know;

• Hickey’s car was parked beside Rugova’s car, which itself was parked ¼ mile away from the Bank behind a strip mall to avoid detection; and

• Hickey’s van contained tools that also had concrete dust on them consistent in composition with the dust samples taken from the accused’s clothing and from the Bank vault.

[46] These facts taken together, argued the Crown, defy the possibility of reasonable coincidence. Rather, these facts substantially support the reasonable inference that the accused were involved in the offence. No explanation was provided that would rebut this obvious inference. Therefore, the Crown urged the Court to commit the accused to stand trial on all charges.

[47] The Defence argued that there was insufficient evidence led by the Crown to commit the accused to stand trial, and that they should be discharged on all counts. The Crown’s case was entirely circumstantial, and the expert evidence tendered by the Crown was equivocal. Further, there was no evidence led that the tools found in Hickey’s van were connected with the break-in. Reliance on the evidence provided to support the inferences that the Crown asked the Court to make would require the preliminary inquiry judge to engage in impermissible deductive reasoning and speculation.

d. Reasons of the Preliminary Inquiry Judge for Discharging the Respondents

[48] The preliminary inquiry judge reviewed all of the relevant principles in determining whether to commit an accused person to stand trial, including the principles relevant to committal where the evidence lead by the Crown is circumstantial. Ultimately, he concluded that there was insufficient evidence upon which a reasonable jury properly instructed could convict the Respondents. Accordingly, he discharged the Respondents on all charges. His reasons for doing so are as follows.

[49] First, the preliminary inquiry judge pointed to the equivocal forensic evidence regarding the concrete dust and the drywall. Specifically, Dr. Lindsay was unable to provide evidence as to the variability of concrete materials generally. He also found it problematic that the dust found on the suspects’ clothing could not be confirmed as coming from the TD Bank vault or from another source. He indicated that the dust could have come from the work site of Mr. Simoni (who works in paving) or of Mr. Hickey (who works in renovations). He further suggested that dust materials on Hickey’s tools found in the van could explain a transfer of concrete to his clothing, which may have occurred in the normal course of his work. Finally, he pointed to the fact that the colour of the concrete on the accused’s clothing was similar but not unique to the colour of concrete found at the Bank vault, and that concrete and drywall are very common materials found in virtually any construction site.

[50] Second, the preliminary inquiry judge expressed concern that no evidence was presented to support the allegation that the tools found in Mr. Hickey’s van were capable of, or were actually used for, breaking into the Bank vault. There was also no evidence as to what tools were left behind at the scene of the break and enter. Further, he noted that Papic and Vishaj indicated that the tools utilized were drills, while the tools found in Hickey’s van were circular saws.

[51] Finally, the preliminary inquiry judge pointed to the fact that there were no surveillance videos implicating the accused, no fingerprints, and no cell phone or other evidence of the accused involvement in the offence. Further, the testimony of the known perpetrators specifically denied their involvement.

[52] Based on the above factors, the preliminary inquiry judge was of the opinion that it would require deductive reasoning and speculation to support the inferences that the Crown was asking the Court to make. He concluded that the only evidence capable of allowing the inference that the accused were involved in the offence was the after-the-fact behavior of hiding out with the three known perpetrators. This, he stated, was not enough. Accordingly, he discharged the Respondents on all charges.

e. Position of the Parties before this Court

[53] The Crown submits that there were a multitude of reasonable inferences of the Respondents’ participation and guilt that would be available to a jury (see Schedule A for a list of available inferences presented to this Court by the Crown). The preliminary inquiry judge, the Crown argues, committed jurisdictional error by:

• improperly discounting inferences supporting guilt;

• engaging in an impermissible weighing of evidence and competing inferences, which is to be left to the trier of fact;

• Drawing inferences from facts not properly in evidence; and

• Considering various pieces of evidence individually and failing to consider the totality of the evidence in determining whether to commit the Respondents to trial.

[54] The Respondents argue that the preliminary inquiry judge committed no jurisdictional error in this case. The judge was alive to all of the relevant evidence, and that the evidence needed to be considered as a whole. Given that the Crown’s case was entirely circumstantial, the judge was required to engage in a limited weighing of the evidence. In doing so, he determined that the evidence was insufficient to support the inferences that the Crown asked the Court to make, and this determination was within his jurisdiction.

[55] Both parties agree that should this Court find that the preliminary inquiry judge committed a jurisdictional error by failing to consider the totality of the evidence, I should remit the matter back to the judge requiring him to consider all of the evidence. Alternatively, if this Court finds that the preliminary inquiry judge committed a jurisdictional error by impermissibly weighing competing inferences, I should order the Respondents to stand trial.

THE LAW

[56] The principles related to the jurisdiction of a preliminary inquiry judge and the role of a reviewing court in respect of a discharge or committal for trial were clearly outlined by Hill J. in R v. Foster, [2008] O.J. No. 827, 76 W.C.B. (2d) 769 at para 31:

31 Between the parties there is no disagreement as to the governing principles relating to the jurisdiction of a preliminary inquiry judge or the court engaging in certiorari review. The point of departure is the application of some of these guidelines to the record before the provincial court. Therefore, only a summary statement of principles is necessary.

Role of the Reviewing Court

(1) The court reviewing by certiorari a committal for trial exercises limited authority for intervention:

i. The court may, in its discretion, provide a remedy for jurisdictional error alone: R. v. DesChamplain (2004), 2004 SCC 76, 196 C.C.C. (3d) 1 (S.C.C.) at 10; R. v. Russell (2001), 2001 SCC 53, 157 C.C.C. (3d) 1(S.C.C.) at 10, 13; R. v. Dubois (1986), 1986 60 (SCC), 25 C.C.C. (3d) 221 (S.C.C.) at 224, 229-30.

ii. The reviewing court is not empowered to determine whether in its opinion there is any evidence upon which a properly instructed jury acting judicially could convict, but is confined to considering whether there is any evidence before the committing justice upon which acting judicially he or she could form an opinion that the evidence is sufficient to put the accused on trial: R. v. Collin, [2004] O.J. No. 791 (Ont. C.A.) at para. 2; R. v. Tuske, [1978] O.J. No. 1253 (Ont. C.A.) at para. 3; R. v. Coke, [1996] O.J. No. 808 (Ont. Gen. Div.) at para. 12-13.

iii. Supervisory review is not permitted to overturn a committal decision merely because the preliminary inquiry judge "reached a conclusion different from that which the reviewing court would have reached": R. v. Russell, at 10.

(2) While an erroneous ruling regarding the admissibility of evidence does not affect the preliminary inquiry judge's jurisdiction (DesChamplain, at 9-10; R. v. Fisher, [1987] O.J. No. 331 (Ont. C.A.) at 2), in the sense that the court has the right to be wrong (an error of law) acting within its jurisdiction, and recognizing that there exists no closed list of jurisdictional errors, the following constitute such errors:

i. committal where no evidence exists on an essential element of the crime charged (R. v. Skogman (1984), 1984 22 (SCC), 13 C.C.C. (3d) 161 (S.C.C.) at 168) or, equally arbitrarily, failing to consider the whole of the evidence, in deciding whether there is some, as opposed to no, evidence: R. v. DesChamplain, at 11, 14-6; R. v. Sazant (2004), 2004 SCC 77, 208 C.C.C. (3d) 225 (S.C.C.) at 233-5; R. v. Thomson (2005), 2005 8664 (ON CA), 74 O.R. (3d) 721 (Ont. C.A.) at para. 11

ii. failure to observe a mandatory provision of the Criminal Code: R. v. DesChamplain, at 10; R. v. Forsythe (1980), 1980 15 (SCC), 53 C.C.C. (2d) 225 (S.C.C.) at 229

iii. applying an incorrect test for committal and thereby "deciding an issue reserved to another forum": R. v. Dubois, at 230-2

iv. engaging in impermissible weighing of competing inferences: R. v. Sazant, at 234; R. v. Odette, [2007] O.J. No. 4212 (Ont. C.A.) at para. 1, 3; R. v. Clarke, 2002 44997 (ON CA), [2002] O.J. No. 2340 (Ont. C.A.) at para. 4; R. v. C. (A.) (1999), 1999 2372 (ON CA), 140 C.C.C. (3d) 164 (Ont. C.A.) [hereinafter R. v. Campbell] at para. 8.

(3) Once the superior court of criminal jurisdiction exercising prerogative writ authority finds jurisdictional error on the part of the preliminary inquiry court, the court is "to assess the sufficiency of the evidence in order to determine the appropriate remedy": Odette, at para. 4.

Function of the Preliminary Hearing Court

(4) A justice acting under Part XVIII of the Criminal Code pursuant to s. 548(1), "[w]here all the evidence has been taken" at the preliminary inquiry, "shall":

...if in his [her] opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial...

(5) In forming an "opinion" as to the evidence's sufficiency to justify committal, the justice exercises a discretionary, but constrained, assessment of the evidence. The whole of the admissible evidence is to be considered.

(6) If there is sufficient evidence upon which a reasonable and properly instructed jury could find guilt, the preliminary inquiry judge must commit to trial: R. v. Sazant, at para. 16; R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.) at 31. This committal test is the same whether the evidence is direct or circumstantial: Arcuri, at 31, 36; R. v. Monteleone (1987), 1987 16 (SCC), 35 C.C.C. (3d) 193 (S.C.C.) at 198.

(7) The preliminary hearing judge is obliged to determine whether there is some evidence reasonably supporting the existence of each of the elements of the offence charged — even if only a scintilla of evidence: (R. v. Aikens, 2001 4971 (ON CA), [2001] O.J. No. 4158 (Ont. C.A.) at para. 3; R. v. Olubowale, [2001] O.J. No. 961 (Ont. C.A.) at para. 8, 10) provided "it registers in the scales as any evidence at all within the Sheppard test" (R. v. McIlwain (1988), 1988 9870 (ON SC), 67 C.R. (3d) 393 (Ont. H.C.) at 309 (McIlwain approved, R. v. Montour, [2002] O.J. No. 141 (Ont. C.A.) at para. 4; and in R. v. Campbell at 165)). "To be logically relevant, an item of evidence does not have to establish on any standard, the truth or falsity of a fact in issue" — it need only "tend to increase or diminish the truth or falsity of a fact in issue" — "there is no minimum probative value required for evidence to be relevant": R. v. Arp (1998), 1998 769 (SCC), 129 C.C.C. (3d) 321(S.C.C.) at 338.

(8) As a general rule, it is not open to a preliminary inquiry judge to assess the quality, credibility and reliability of evidence: R. v. DesChamplain, at 9; R. v. Sazant, at para. 18; R. c. Cinous (2002), 2002 SCC 29, 162 C.C.C. (3d) 129 (S.C.C.) at 172. In other words, the preliminary inquiry is not "a forum for litigating the merits of the case against the accused": R. v. Russell, at 11. Where more than one inference can be drawn from the evidence, "only the inferences that favour the Crown are to be considered": R. v. Sazant, at para. 18. Because of the limited focus of a preliminary inquiry, the provincial court must commit for trial even if the defence proffers exculpatory evidence: R. v. Sazant, at para. 16.

(9) The prohibition against weighing evidence in assessing the committal question is narrowly modified where the prosecution adduces circumstantial evidence said to point toward guilt. The preliminary inquiry judge, in determining whether the elements of the offence may be reasonably inferred from circumstantial evidence, is permitted to engage in a "limited weighing" of such evidence to the extent of assessing "the reasonableness of the inferences to be drawn from the circumstantial evidence": R. v. Arcuri, at 35.

(10) In circumstantial evidence cases, there may exist not one, but a range or field of reasonable inferences which may be drawn. The ultimate determination as to whether an available reasonable inference ought to be drawn is for the trier of fact — a judge is not to ask whether facts ought to be inferred and is not to make "determinate factual inferences": R. c. Cinous, at 157, 171, 173; R. v. Arp, at 353. In other words, a preliminary inquiry justice acts in excess of jurisdiction where he or she chooses from amongst competing or alternative reasonable inferences: R. v. Figueroa, 2008 ONCA 106, [2008] O.J. No. 517 (Ont. C.A.) at para. 34; R. v. M. (D.), [2008] O.J. No. 326 (Ont. C.A.) at para. 5. A preliminary hearing court is not to apply the rule in R. v. Hodge [(1838), 1838 1 (FOREP), 168 E.R. 1136 (Eng. C.C.R.)] to determine whether a reasonable inference is consistent with guilt and inconsistent with any other rational explanation: R. v. Charemski (1998), 1998 819 (SCC), 123 C.C.C. (3d) 225 (S.C.C.) at 230; R. v. Monteleone, at 198; R. v. Mezzo (1986), 1986 16 (SCC), 27 C.C.C. (3d) 97 (S.C.C.) at 107.

Nature of Circumstantial Evidence

(11) In a preliminary hearing, the prosecution leads relevant evidence in the form of primary facts. From these factual circumstances, the Crown may seek to establish the existence of a fact in issue, i.e. identity of the perpetrator, by submitting that an inference may reasonably and circumstantially be drawn from the primary facts — there exists an inferential gap between the primary fact and the fact to be proved: R. v. Arcuri, at 31-2; R. c. Cinous, at 172-3. Whether the inference is a reasonable one to draw usually involves an application of "human experience and common sense" (R. v. Figueroa, at para. 33; United States v. Huynh (2005), 2005 34563 (ON CA), 200 C.C.C. (3d) 305 (Ont. C.A.) at 307) at times described as informal judicial notice: McWilliams' Canadian Criminal Evidence (4^th ed.), S.C. Hill, D. Tanovich, L. Strezos (Aurora: Canada Law Book, 2003) at 23-6 to 16. The inferences to be drawn will depend on the nature of the primary fact, the fact that is sought to be inferred from it, the position of the parties, and the totality of the evidence: R. v. Figueroa, at para. 33. A single item of circumstantial evidence may be the only evidence of an essential element of the offence: R. v. Arp, at 353.

(12) Circumstantial inferences are ones which "can be reasonably and logically drawn from a fact or group of facts established by the evidence": R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at 209. A trier of fact "cannot be invited to draw speculative or unreasonable inferences": R. v. Figueroa, at para. 35, 42. Most cases "will involve hiatuses in the evidence which can be filled only by inference":Papaschase Indian Band No. 136 v. Canada (Attorney General), 2006 ABCA 392, [2006] A.J. No. 1603 (Alta. C.A.) at para. 87. "The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess": United States v. Huynh, at 307. The same point is made in Canadian Pacific Railway v. Murray (1931), 1931 53 (SCC), [1932] S.C.R. 112 (S.C.C.) at 117, in adopting the following dicta from Jones v. Great Western Railway (1930), 47 T.L.R. 39 (U.K. H.L.) at 45:

The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference. The cogency of a legal inference of causation may vary in degree between practical certainty and reasonable probability. Where the coincidence of cause and effect is not a matter of actual observation there is necessarily a hiatus in the direct evidence, but this may be legitimately bridged by an inference from the facts actually observed and proved. Indeed, as Lord Shaw said in Marshall v. Owners of SS. Wild Rose [26 T.L.R. 608, [1910] A.C. 486, at 494.]: "The facts in every case may leave here and there a hiatus which only inference can fill." The true doctrine in the matter is clearly stated by Lord Penzance in Parfitt v. Lawless[(1872) L.R., 2 P.&D., 462, at 472.]: "It is not intended to be said that he upon whom the burthen of proving an issue lies is bound to prove every fact or conclusion of fact upon which the issue depends. From every fact that is proved legitimate and reasonable inferences may, of course, be drawn, and all that is fairly deducible from the evidence is as much proved for the purpose of a prima facie case as if it had been proved directly." I conceive, therefore, that in discussing whether there is in any case evidence to go to the jury, what the Court has to consider is this, whether, assuming the evidence to be true, and adding to the direct proof all such inferences of fact as in the exercise of a reasonable intelligence the jury would be warranted in drawing from it, there is sufficient to support the issue.

(13) Some inferences are strong and capable of creating practical certainty while others are weaker:Papaschase Indian Band No. 136 v. Canada (Attorney General), at para. 94. A reasonable and logical inference to be drawn from circumstantial evidence need not be an easy one to draw (R. v. Katwaru(2001), 2001 24112 (ON CA), 153 C.C.C. (3d) 433 (Ont. C.A.), at 444) or indeed the most obvious or compelling inference: R. v. Munoz, 2006 3269 (ON SC), [2006] O.J. No. 446 (Ont. S.C.J.) at para. 21-31. The justice is obliged to consider the cumulative effect of the evidence said to point toward guilt on the part of the accused. Especially in a case premised wholly or in large measure upon circumstantial evidence, it is improper to isolate a particular piece of evidence and to then discuss any probative force flowing therefrom without regard to the context of the totality of the evidence: R. v. Coke, at para. 9.

ANALYSIS

[57] The reasons of the preliminary inquiry judge for discharging the accused reveal that he committed two jurisdictional errors:

1. Engaging in an impermissible weighing of competing inferences – a function that is reserved to the trier of fact; and

2. Failing to consider inferences that favour the Crown.

[58] On the first point, the preliminary inquiry judge impermissibly weighed competing inferences in respect of the forensic evidence. This evidence established that dust consistent with concrete was present on the clothing of all five suspects found in the field within an hour of the robbery, as well as on the tools in Hickey’s van parked nearby, and at the Bank vault itself. The dust found in all of these locations was also composed of the same mineral composition.

[59] The preliminary inquiry judge was required to consider whether that evidence alone supported a reasonable inference that the Respondents were involved in the crime. The Crown was not required to produce all evidence in its possession, and the inference to be made did not have to be easy or compelling. Additionally, if multiple inferences were available, only the inferences in favour of the Crown should have been considered.

[60] The preliminary inquiry judge exceeded his mandate in this regard by considering potential alternative explanations for how the dust came to be present on the accused clothing and on Hickey’s tools found in the van. At para 41 of his reasons, he highlighted the fact that the forensic expert could not determine if the dust came from the work site of Mr. Simoni, who works in paving, or of Mr. Hickey, who works in renovations. He went on to speculate that “the presence of concrete dust and drywall materials on Hickey’s tools found in the van could explain a transfer of concrete to his clothing and may have been acquired in the normal course of his work.” None of these facts were in evidence.

[61] Additionally, the preliminary inquiry judge placed emphasis on the fact that the forensic expert could not say “with any degree of scientific certainty” that the dust on the clothing and tools came from the Bank (see paras 43-48). With the greatest respect to him, however, the threshold to establish a reasonable inference is far from “scientific certainty”; the inference need only be reasonable, and to be reasonable, it need not even be easy or compelling.

[62] Further, at para 54, the preliminary inquiry judge indicates that “the forensic evidence of the concrete dust and drywall is equivocal and a properly instructed jury would be advised of the limitations of drawing inferences based on circumstantial evidence.” The very fact that the evidence was equivocal, however, indicates that it gave rise to inculpatory and exculpatory inferences. At the preliminary inquiry, only the inculpatory inferences should have been considered. Additionally, the fact that a jury at trial might be instructed on the limitations of drawing inferences from such evidence is not properly part of the analysis at this early stage of proceedings.

[63] The Respondents suggest that the preliminary judge was not weighing competing inferences but merely testing the sufficiency of the evidence and whether it was capable of supporting the inferences advocated by the Crown. Their oral submissions highlighted several cases in which the Ontario Court of Appeal analyzed the distinction between a jurisdictional review and a sufficiency review. These cases underscored the fact that the reviewing court is limited to the former and cannot delve into its own inquiry of whether the evidence is sufficient for committal: R v. Martin, 2010 ONCA 573; R v. Turner, 2012 ONCA 570; R v. Cavanagh, 2014 ONCA 251.

[64] I have read these cases carefully and I believe that the principles they express are reflected in this analysis. As a reviewing court, I am not attempting here to assess the reasonableness of the inferences available on the circumstantial evidence. Rather, I am determining whether reasonable inferences in favour of the Crown were discounted by an improper weighing of potential exculpatory inferences available to the defence. I conclude that they were.

[65] It was reasonable to infer that the dust found on the Respondents’ clothing and on Hickey’s tools could have come from the Bank vault. It was also possible that the dust came from the Respondents’ work sites. Ultimately, the preliminary inquiry judge refused to endorse the inference in favour of the Crown because an exculpatory inference was also available on the evidence. In doing so, he impermissibly chose between competing inferences. To that extent, a jurisdictional error was committed.

[66] On the second point, I find that the preliminary inquiry judge failed to consider inferences that favour the Crown. While a judge’s reasons need not reflect “a verbalization of the entire process engaged in” to reach a decision (R v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (C.A.)), the preliminary inquiry judge’s analysis in this case made no mention of a multitude of inferences available on the evidence. The following paragraphs are illustrative in this regard:

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

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

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

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

70 …. No evidence presented before me is capable of allowing the inference that they were actually or peripherally involved in the offence other than the after-the-fact behaviour of hiding out with the culprits who admittedly committed the offences…..

[67] These passages illustrate that although the preliminary judge was alive to the relevant evidence, he failed to engage in any discussion as to what, if any, inferences were available from that evidence. The peculiar circumstances in which the Respondents were found are described as “suspicious” and “not rationally explainable as a ‘chance meeting’” - but the discussion stops there without any consideration of what inferences might be available from the individual and cumulative effect of that evidence. Further, the “after-the-fact” behaviour of the accused is said to be capable of supporting an inference of the accused’s involvement in the offence, but there is no further analysis of this point. Ultimately and summarily these facts are found to be insufficient to meet the test for committal.

[68] Before this Court, the Crown produced approximately 21 inculpatory inferences that it argued were reasonably available from the evidence presented at the preliminary inquiry (see Schedule A). However, none of these inferences were referred to in the preliminary inquiry judge’s decision. In fact, the preliminary inquiry judge did not cite any inculpatory inferences available from the evidence; at the same time, exculpatory inferences based on facts not in evidence were suggested in relation to the dust evidence (para 41).

[69] By failing to mention any reasonable inferences that might be available to the Crown – both from the individual pieces of evidence presented and from the cumulative effect of that evidence - the preliminary inquiry judge was not merely testing the reasonableness of inferences available on the evidence; he was ignoring those inferences altogether. This constituted a jurisdictional error.

[70] In summary, therefore, I find that the preliminary inquiry judge committed jurisdictional error by impermissibly weighing competing inferences and by failing to consider inculpatory inferences.

[71] Given my findings that a jurisdictional error occurred, the only issue remaining is the appropriate remedy. The parties have agreed that if the Crown’s application succeeds on that basis that I have determined, I should grant certiorari with mandamus in aid, remitting the matter back to the preliminary inquiry judge with an order that the accused be committed to stand trial.

[72] The availability of a mandamus order in this context is to minimize unnecessary procedural delay where the only possible result is committal (R v. K.(S.), 2014 ONCA 138, [2014] O.J. No. 857 at para. 4; R v. Whynot, (1994) 1994 4130 (NS CA), 129 N.S.R. (2d) 347, 22 W.C.B. (2d) 586 (N.S.C.A.) at para. 21. Therefore, before determining the nature of the order to be granted, this Court must consider whether committal is inevitable.

[73] In regards to the break and enter charges, I refer simply to the inferences provided by the Crown in Schedule A – all of which I find individually and taken together support a reasonable inference that the Respondents were involved in the crime.

[74] In regards to the charge of possession of break-in-tools, the evidence is different as against the two Respondents. The evidence against Hickey is particularly strong. His van was located next to Rugova’s, ¼ of a mile away from the Bank. It contained tools including hammers, circular saws, blades, and drill bits. All of these tools also contained traces of concrete dust consistent in composition with the dust found at the Bank vault. Additionally, two of the known perpetrators testified that they used similar tools to commit the break-in. Papic indicated that they used hammers and a jackhammer - which he described as akin to a powerful drill with a hammer function. Papic further testified that they may have also used a saw.

[75] Taken together, these facts support a reasonable inference that the tools in Hickey’s van were used in the commission of the offence. No doubt Hickey will have exculpatory inferences to raise based on these facts. But that is an issue to be presented and determined before a trier of

fact. On the record before me, the evidence is sufficient to warrant Hickey’s committal on the charge of possession of break-in instruments.

[76] On the other hand, the evidence against Simoni is wanting. In fact, there does not appear to be any evidence – direct or circumstantial – that Simoni was ever in possession of break-in instruments, that he owned break-in instruments, that he knew Hickey, or that he was ever in Hickey’s van.

[77] The only evidence to support this charge against Simoni is the evidence surrounding the circumstances in which he was found and the dust on his clothing.

[78] To support the inference that Simoni was in possession of break-in instruments would require this Court to engage in deductive reasoning. Such reasoning might be along the following lines: a) the fact that Simoni had dust on his clothing suggests that he was a party to the break-in; and b) the fact that he was a party to the break-in suggests that he himself may have used those tools to commit the break-in. Such reasoning involves speculation that the dust on Simoni’s clothing was transferred from Simoni’s use of the tools to commit the break-in itself - rather than from Simoni merely being present when the break-in occurred. This inferential gap is simply too wide.

[79] The only alternative reasoning that could support this charge against Simoni is that Simoni owned the tools in Hickey’s van, or that Simoni drove to the Bank with Hickey, and therefore possibly had effective control over the tools. There is no direct or circumstantial evidence to support either of these rationales.

[80] Therefore, I find that there is insufficient evidence to commit Simoni to stand trial on the charge of possession of break-in tools.

[81] In conclusion, the Crown’s application is granted. The matter will be remanded to the preliminary inquiry judge with an order that both Respondents be committed to stand trial on the charges of break and enter, and that the Respondent Hickey be committed to stand trial on the charge of possession of break-in instruments. The Respondents are required to attend at Assignment Court on February 2, 2015, at 2.00 p.m., in the Milton Superior Court.

Coats J.

Released: January 19, 2015

SCHEDULE A

Evidence and Reasonable Inferences

1. Time

Bank alarm sounds shortly before 1:00 a.m.; Respondents are arrested at 1:53 a.m.

è Temporal proximity to the offence

è 1.53.a.m. is not a common time to be out of one’s residence with innocent explanation

è Corroborated by the temporal proximity of three known perpetrators of the entry

2. Location of parties

a. Respondents are arrested at a location very close to the location of the offence

b. Each Respondent is arrested within arms’ reach of a known perpetrator of the offence

i. Hickey is right beside Papic

ii. Simoni is right beside Vishaj

iii. The third known perpetrator, Rugova, is also in the vicinity

è This provides reasonable support for the inference that all five parties are and have been acting together; they are all found very close together

c. Each Respondent is found in close proximity (60m) to property stolen from the offence

è This provides reasonable support for the inference that the Respondents are in possession of property stolen from the offence, especially in light of the legal doctrine of recent possession

è The reasonableness of this inference is buttressed by the uncontroverted evidence that this property was in the possession of the perpetrators who were lying within feet of the Respondents

d. The Respondents are in a field

è Being located in a field at 1:53 a.m. gives rise to a reasonable inference that one may well be involved in some nefarious activity

è The reasonableness of this inference is buttressed by the uncontroverted fact that the other parties located in this odd location at this odd time were indeed involved in the offence

3. Behavior of the Respondents

a. The Respondents are lying down in a field

è This supports the reasonable inference that the Respondents are hiding, trying to escape detection

è The reasonableness of this inference is buttressed by the evidence of perpetrator Papic who testified he was lying down in order to avoid detection by the police

è These then provide after-the-fact conduct that the Respondents were involved in the offence and trying to avoid being found out for same

è The reasonableness of this inference is buttressed by the evidence of Papic and Vishaj that the reason they were trying to conceal themselves was because of their involvement in the offence

b. The Respondent Simoni was speaking with Vishaj in Albanian at time of arrest

è This supports the reasonable inference that the Respondent and the known perpetrator know each other and are connected to each other, which in turn supports the reasonable inference that Simoni is involved in a joint enterprise with this known perpetrator

c. The Respondents had concrete or drywall dust on their clothing at the time of the arrest, as did the three known perpetrators of the offence

è This supports the inference that all five parties were involved in the same activity

è The activity that resulted in the known perpetrators being covered in the dust was the commission of the offence in question

è It is thus reasonable to infer that the activity that resulted in the Respondents being covered in the dust was also the commission of the offence in question

è This is buttressed by the fact that the dust on the clothing of all the parties could not be excluded as having the place of the offence as its source

4. Vehicles

a. The van in the current possession of the Respondent Hickey is found near the location of the offence

b. The van is parked in the back behind a restaurant

c. The van is parked beside a car rented by the known perpetrator Rugova

d. Papic testified that the reason Rugova’s car was parked behind the restaurant was in order to avoid detection

è These all support the inference that Hickey parked the van beside Rugova’s car for the same purpose, namely to avoid detection while being proximate to the scene of the offence

è These also reasonably support the inference that the parties were working together; the vehicles are beside each other; Papic is linked to Rugova’s car by his own evidence

e. Hickey’s van contains tools including hammers, circular saws, blades, and drill bits which belonged to Hickey according to his father, which contained traces of concrete or drywall dust

è These are tools that are suitable for the purpose of breaking into a place

è The reasonableness of that suitability is buttressed by the evidence of Papic that they used similar tools to commit the offence

è The presence of dust that cannot be differentiated from the dust on the perpetrators and from the place of the offence supports the reasonable inference that these tools were used in the commission of the offence, and also supports the reasonable inference that all parties were working together in a joint enterprise with these tools

This is an offence that required and involved the participation of multiple parties. The parties are bound together in a number of ways:

• All are arrested together, at the same time, same location, doing the same thing

• All of them have drywall/concrete dust on their clothing

• Two vehicles are located together – Rugova’s and Hickey’s

• Papic admits to use of Rugova’s car

• Dust on tools in Hickey’s van similar to that on all five and from the scene

• Simoni and Vishaj speaking Albanian together

• Simoni is known to perpetrator Papic – whom he is NOT lying next to

CITATION: R. v. Hickey and Simoni, 2015 ONSC 86

COURT FILE NO.: CR 104/14

DATE: 20150119

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Applicant

– and –

JOHN HICKEY AND ALDO SIMONI

Respondents

REASONS FOR JUDGMENT

Coats J.

Released: January 19, 2015