Court File and Parties

COURT FILE NO.: CR-16-3588 DATE: 20160617 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Darren John Pundyk

Counsel: Tim Kavanagh, for the Crown Laura L. Joy, for Darren John Pundyk

VERBEEM J.

[1] This is an application by Darren John Pundyk for an order in the nature of certiorari to quash the decision of the Honourable Justice R. Marion of the Ontario Court of Justice, dated February 2, 2016, ordering him to stand trial on charges of:

(a) robbery with a handgun, contrary to s. 343(3) of the Criminal Code, R.S.C. 1985, c. C-46 (the Code);

(b) possession of a break-in instrument, specifically a crowbar, contrary to s. 351(1) of the Code;

(c) possession of a weapon, specifically a crowbar, for the purpose of committing an indictable offence contrary to s. 88(1) of the Code; and

(d) disguise, specifically a balaclava, with intent to commit an indictable offence, contrary to s. 351(1) of the Code.

[2] The applicant seeks to quash the order of committal on the basis that the preliminary inquiry judge exceeded his jurisdiction by committing the applicant, despite the absence of any evidence on the essential element of identity.

Overview

[3] The charges against the applicant and the co-accused, Roberto Willman, arise out of the alleged robbery of a Baskin Robbins store located at 3090 Dougall Avenue in the City of Windsor on December 14, 2014, at approximately 9:38 p.m. The robbery involved two masked men, one carrying a crowbar and the other carrying what appeared to be a handgun.

The Evidence Before the Preliminary Inquiry Judge

[4] Evidence was adduced at the preliminary inquiry on January 5 and 21, 2016. The Crown called evidence from three Windsor police officers and from Jodie Chappus, who deposed to her interactions with each of the co-accused before and after the alleged robbery, Ann Marie Bitzer, who resides near the location of the alleged robbery, and Dominick Jaworski, who was working at the Baskin Robbins at the time of the alleged robbery. The parties adduced additional evidence through an agreed statement of facts.

[5] No direct evidence was adduced to identify Mr. Pundyk as one of the individuals involved in the robbery. The Crown seeks to establish the applicant’s identity as one of those individuals, through inferences it submits are available, on the whole of the evidence that was before the preliminary inquiry judge. The central issue in this application is whether the inferences the Crown seeks can reasonably be drawn by a properly instructed jury, or whether those inferences are the product of speculation and conjecture.

[6] Turning specifically to the evidence, Dominic Jaworski interacted with the individuals who committed the robbery. He testified that both men wore masks and he could not identify their skin colour or any distinct marks, features or accents. He estimated that each of the men were approximately 5’9” with a medium build.

[7] He testified that the two men entered the Baskin Robbins through its front door and came around to the employees’ side of the serving counter. One of them pried open the drawer to a cash register that was on the counter, then they took bills from the register and exited the premises by its rear door. Store surveillance video, a copy of which was made an exhibit at the preliminary inquiry, captured the robbery. The video surveillance confirms Mr. Jaworski’s account. The robbery transaction began at 9:38 p.m. and the perpetrators left the store at 9:40 p.m.

[8] The agreed statement of facts that the parties submitted to the preliminary inquiry judge may be summarized as follows:

(a) On December 14, 2014, at approximately 9:52 p.m., Mohammad Tariq, a cab driver, was dispatched to the corner of Bruce Avenue and Nottingham Drive in Windsor, Ontario, for a pick up. He arrived at that location at approximately 9:56 p.m. where a lone male hailed him from the side of the road. Before entering the cab, the male picked up a bag of items from the ground under a nearby tree. A video recording from the interior of the cab demonstrates that the male bore a very strong likeness to the accused, Roberto Willman. The male was eventually dropped off at 350 Elliott Street East at approximately 10:18 p.m.

(b) Linda Pomainville, the assistant manager of a multi-unit residential building located at 350 Elliott Street East, provided video recordings to police of the entrance to that building, taken on December 14, 2014. The video recording, which is reproduced in colour, demonstrates a man bearing a very strong resemblance to Roberto Willman arriving at 350 Elliott Street East at approximately the same time that Mr. Tariq indicates that he dropped his passenger off at that location. The clothes worn by the man in the video from 350 Elliott Street East are very similar to the clothes worn by one of the alleged perpetrators of the robbery at Baskin Robbins.

(c) Police attended the Baskin Robbins store on December 14, 2014, after the robbery. The store’s owner, Ayesam Adhami, arrived at the store shortly after police responded to the robbery call. While inspecting the area behind the cash register, he noticed a key fob on the floor. He directed police to that item and confirmed that he did not recognize it. The police confirmed the key fob did not belong to anyone in the store who had access to the area behind the cash register. The item was seized. On December 15, 2014, a Windsor Police officer attended the parking lot and areas surrounding the Baskin Robbins business, with the key fob, and attempted to locate the specific vehicle with which it was associated. Ultimately, the officer determined the key fob was associated with a Dodge Caliber vehicle parked at the side of the road on Nottingham Drive, just east of Bruce Avenue. The vehicle was seized and arrangements were made to tow it to a secure police bay. The Baskin Robbins store that was robbed is in a plaza very close to the corner of Bruce Avenue and Nottingham Drive.

(d) The Dodge Caliber vehicle that was seized was registered to Daniel Pundyk, the applicant’s father. When contacted by police, Daniel Pundyk confirmed that he was the registered owner of that vehicle and advised police that his son, Chad Pundyk, normally operated the vehicle. Daniel Pundyk stated that he did not know who was using the vehicle on December 14, 2014. Subsequently, Chad Pundyk provided police with a recorded statement under oath, during which he stated that he was not using the Dodge Caliber on December 14, 2014. Instead, he believed his brother Darren Pundyk, the applicant, had the vehicle on that day. Chad Pundyk stated that he had last operated the Dodge Caliber approximately two weeks prior to December 14, 2014 and at that time he gave the vehicle to the applicant. No one other than Chad Pundyk and the applicant normally used the Dodge Caliber. The Dodge Caliber was not reported stolen.

[9] Anne Marie Bitzer testified that she lives in the City of Windsor near the intersection of Nottingham and Bruce and close to the Walmart Plaza on Dougall Avenue, which is near the Baskin Robbins store. On December 14, 2014, at 9:45 p.m., she observed a lone male standing by a stop sign located at the corner of Bruce and Nottingham. Eventually, the man left the corner and walked south on Bruce Avenue, where she observed him standing by a vehicle owned by one of her neighbours and sitting on the front porch of a different neighbour’s residence. Next, she observed the man walk towards Nottingham after putting a black bag on the ground underneath a pine tree. Her husband asked the man if he was okay. The man replied that he was waiting for his buddy and asked if they knew the number to a cab service. Ms. Bitzer’s husband provided him with the number for Veterans Cab and, shortly thereafter, Ms. Bitzer observed a cab arrive in the area. On its arrival, the man retrieved the bag from under the tree and entered the cab. The cab started to proceed northbound on Bruce. The vehicle then changed direction and travelled along Nottingham towards Dougall Avenue. Ms. Bitzer was walking towards her garage when the cab left the area, and at that point she heard someone say, “Hey” and a whistle.

[10] Jodie Chappus testified that during the month of December 2014, she resided in an apartment located at 350 Elliott Street East in Windsor, Ontario. Her acquaintance, Jacqueline Wallace lived in a different apartment unit in the same building.

[11] Ms. Chappus met the applicant and the co-accused Willman. At that time, they were both staying with Ms. Wallace in December 2014, prior to the offence date. They both attended, together, at Ms. Chappus’ apartment for breakfast one morning which, again, was some time prior to the offence date. She testified that late in the night, on December 14, 2014, she received a request, by phone, to attend at Ms. Wallace’s apartment. When she arrived, Ms. Wallace, Rob Willman and an individual named Jeremy Forsythe were present. During her attendance there, Mr. Willman stated that he and the applicant committed a robbery at a Baskin Robbins store, during the robbery they lost the car keys, and they became separated. Ms. Chappus left the Wallace apartment shortly after Mr. Willman’s disclosure of the robbery event.

[12] The preliminary inquiry judge correctly observed that Ms. Chappus’ evidence concerning Mr. Willman’s statements about the robbery, including Mr. Pundyk’s alleged participation in it, were only admissible against Mr. Willman.

[13] Ms. Chappus also testified that Darren Pundyk attended at her apartment at 350 Elliott Street East around lunchtime on December 15, 2014, the day after the alleged robbery, and they discussed a number of topics including the Baskin Robbins’ robbery. Their conversation was inadvertently recorded by Ms. Chappus on her “iPod” and a copy of that recording, which has a play time of slightly more than 40 minutes, was received as evidence at the preliminary inquiry. A transcript of the recording was not provided to the preliminary inquiry judge, however, portions of the recording were played in court during Ms. Chappus’ cross-examination and the preliminary inquiry judge received the entire recording in evidence on January 21, 2016, several days before rendering his decision on committal.

[14] From the recording it is clear that, during the course of their conversation, Ms. Chappus questioned Darren Pundyk about his potential involvement in the Baskin Robbins robbery and it is equally clear that Darren Pundyk never expressly admitted to participating in the robbery. The recording evidences that Mr. Pundyk’s stated purpose for attending at Ms. Chappus’ apartment was to solicit her assistance in contacting Rob, and Mr. Pundyk asked Ms. Chappus, several times, to get a hold of Rob.

[15] During the course of the recording, when Mr. Pundyk originally asked Ms. Chappus to “get a hold of Rob”, he stated, “He has all my phones, everything. When he took the shit out of the car he brought it all with him.” Ms. Chappus replied, “He said he left it in the car last night.” Mr. Pundyk then stated, “The car’s fucking towed already. The car was towed.” Ms. Chappus stated, “That’s your dad’s car.”

[16] The recording evidences that when Ms. Chappus initially questioned Mr. Pundyk about his potential involvement in the robbery, she advised him that Rob said that he (Mr. Pundyk) was involved in a robbery. Mr. Pundyk replied, “I didn’t rob nothing.”

[17] Later in the conversation, Mr. Pundyk declared, “I didn’t steal from no one.”

[18] Shortly thereafter, Ms. Chappus advised Mr. Pundyk that there were a few people who wanted to toast him for taking the dope, robbing the Baskin Robbins and threatening Jeremy with a golf club. Mr. Pundyk immediately challenged the golf club assertion but did not directly respond to the other two allegations at that specific time.

[19] About a minute later, Ms. Chappus asked the applicant, “What were you, Jeremy and Rob doing last night?” Mr. Pundyk replied, “I didn’t do nothing – I went out there and gave him a phone and left myself with no phone.”

[20] A few minutes later, Ms. Chappus asked Mr. Pundyk, “So you don’t remember robbing the store?” Mr. Pundyk replied, “No. I’ll never admit guilt anyway. Even if I’m guilty, I’ll never admit guilt.”

[21] Later in the conversation, Ms. Chappus advised the applicant that “Rob” said that Mr. Pundyk had made him commit the robbery [of course that statement is not admissible against the applicant]. Mr. Pundyk replied, “Like I scared him, like some kind of psychopath.” He went on to state, “That day – what you say was my car – I wasn’t there – I was in Walmart.” Ms. Chappus asked him if he knew where he put the car to which the applicant said, “No” and Ms. Chappus said, “I do.”

[22] At various points during the conversation, the applicant advised Ms. Chappus, in the context of discussing Rob, that: he (the applicant) saw him “drive right by me [the applicant] in a cab”; that he (the applicant) “saw him get into a cab”; and, the applicant found his own wallet on the ground where “he” got into the taxi. Ms. Chappus asked Mr. Pundyk where Rob would have gotten the money for a cab and Mr. Pundyk said, “Assuming he robbed the store he would have had money.”

[23] In his Reasons for Committal, dated February 2, 2016, Mr. Justice Marion identified that Mr. Pundyk’s identity as one of the perpetrators of the robbery was in issue. He went on to succinctly and accurately summarize the evidence given on that issue by the witnesses who testified before him, as well as the content of the agreed statement of facts. At page 5 of his Reasons, he states:

“What connects Mr. Pundyk to the scene is the following and there is in evidence that he was an associate of Mr. Willman and the next day after he himself spoke to Ms. Chappus at her residence at 350 Elliott Street and he, when speaking to her, however when she questioned him regarding the robbery he denied his involvement.”

Then at page 6, after reviewing the content of the agreed statement of facts in detail, he states:

“Essentially the inference made with respect to Mr. Pundyk is that the accused drove the car and parked the vehicle near Baskin Robbins and inadvertently the keys were left at Baskin Robbins and on the floor. Subsequent to the robbery, they split up and Mr. Willman took a taxi cab to leave the scene.”

Finally, at page 7, he concludes:

“In my opinion the circumstantial evidence, if believed, connecting Mr. Pundyk to the robbery is sufficient for a reasonable jury if properly instructed to return a verdict of guilty. He is therefore committed to stand trial in Superior Court as charged.”

The Position of the Parties

[24] The applicant submits the preliminary inquiry judge committed a jurisdictional error in committing him to stand trial.

[25] He correctly states that there was no direct evidence before the preliminary inquiry judge that identifies him as one of the individuals that participated in the robbery. He also contends that there is no circumstantial evidence from which an inference of identity, as it relates to him, could reasonably be drawn by a properly instructed jury. He submits that the evidence relied upon by the Crown to establish identity can be distilled to the following:

a) the recovery of a key fob from the Baskin Robbins store, which was associated with a vehicle that the applicant operated two weeks prior to the robbery;

b) the discovery of that vehicle parked in a residential area near the robbery scene the day after the robbery with no evidence as to how long it had been parked there; and

c) an audio recording of a conversation between the applicant and Ms. Chappus, in which the applicant repeatedly denies involvement in the criminal conduct with which he is charged.

[26] The applicant submits that contrary to the finding of the preliminary inquiry judge this evidence is incapable of reasonably supporting an inference that: Mr. Pundyk drove the car and parked it near the Baskin Robbins and inadvertently the keys were left at the Baskin Robbins and on the floor. Subsequent to the robbery, the co-accused split up and Mr. Willman took a taxi cab to leave the scene.

[27] He submits that there is no evidence to bridge the gap between the fact of the applicant’s possession of the keys to the Dodge Caliber two weeks prior to the robbery and the Crown’s proposed inference that he operated that vehicle the night of the robbery, or the gap between that evidence and the Crown’s proposed inference that the applicant parked that vehicle in the location where it was ultimately found on December 15, 2014. In addition, there is no evidence as to how long the vehicle had been parked in that location.

[28] Ultimately, the applicant states that the preliminary inquiry judge committed him on the basis of a hypothetical narrative that was not reasonably founded in the evidence. While that narrative may seem plausible, it is the product of speculation, and is not based on the evidence.

[29] The Crown submits that there was sufficient evidence before the preliminary inquiry judge to commit Mr. Pundyk to stand trial. While acknowledging that there is no direct evidence on the issue of identity, the Crown submits that when preferring the inferences that can be reasonably drawn from the established facts, in evidence, that favour the Crown, it is reasonable and logical to conclude that a properly instructed jury could convict the applicant for the offences charged.

Applicable Legal Principles

[30] The following principles apply to the determination of the issue raised in this application:

1. The purpose of a preliminary inquiry is to ensure there is sufficient evidence to commit the accused to trial: see R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 20; R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804; R. v. Skogman, [1984] 2 S.C.R. 93, at pp. 105-106. A justice presiding over a preliminary inquiry is mandated to order the accused to stand trial if, in his opinion, there is sufficient evidence to put the accused on trial for the offence charged, or any other indictable offence in respect to the same transaction. Conversely, the justice is mandated to discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made to put the accused on trial for the offence charged or any other indictable offence in respect to the same transaction: see s. 548 of the Code.

2. The test for committal is the same whether the evidence adduced at the preliminary inquiry is direct or circumstantial: see Mezzo and The Queen, [1986] 1 S.C.R. 807, at pp. 842-43; and R. v. Monteleone, [1987] 2 S.C.R. 154. If there is sufficient evidence upon which a reasonable and properly instructed jury could convict, the preliminary inquiry judge must commit the accused to stand trial: see United States of America v. Shephard (1976), [1977] 2 S.C.R. 1067, at p. 1080.

3. The preliminary inquiry judge is not permitted to assess credibility or reliability and “…where more than one inference can be drawn from the evidence, only inferences that favour the Crown are to be considered”: see R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18.

4. The nature of the preliminary inquiry judge’s task varies according to the type of evidence that the Crown has advanced. Where the Crown’s case is based entirely on direct evidence, the judge’s task is straightforward. The only conclusion that needs to be reached in such a case is whether the evidence is true, which is a matter for the trier of fact. Accordingly, if the judge determines that the Crown has presented direct evidence as to every element of the offence charged, the judge’s task is complete, and the accused must be committed to trial even if the defence proffers exculpatory evidence: see R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828; at para. 22.

5. Even where the evidence approaches the tradition expression “a scintilla of evidence” but falls short of what may be classified as fanciful, there can be gleaned from the record “some evidence” to support the action of committal provided that there is “some evidence” with respect to all essential elements of the charge in question: see Skogman, at pp. 107-108.

6. Where the Crown seeks committal on the basis of circumstantial evidence, the task of the preliminary inquiry judge becomes somewhat more complex. In Arcuri, Chief Justice McLachlin states at para. 23:

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

7. Despite the circumscribed scope of the preliminary inquiry judge’s function with respect to the drawing of inferences, the weighing of the evidence involved, while limited, is of great importance. Any inference relied upon by the judge to commit the accused must be both:

(a) reasonably based on the evidence heard at the preliminary inquiry; and

(b) reasonable.

Such inferences cannot be based on speculation, no matter how seemingly reasonable. If the committal of an accused depends on an inference or inferences that cannot be reasonably drawn from the evidence, the accused must be discharged as there would be an absence of evidence on an essential element. However, if the trier of fact could reasonably draw an inference based on the evidence, then the matter should be left for their determination: see R. v. Munoz (2006), 86 O.R.(3d) 134, [2006] O.T.C. 112 (Ont. S.C.), at paras. 21 and 22.

8. Courts must guard against confusing a “reasonable inference” with mere speculation. Where an inferential gap exists, it can only be properly overcome by evidence. The trier of fact will assess that evidence in light of common sense and human experience, but neither are a substitute for evidence: see Munoz, at para. 29; and The United States of America v. Huynh (2005), 200 C.C.C. (3d) 305, [2005] O.J. No. 4074(C.A.), at para. 7.

9. Whether an inference is easy, hard or difficult to draw is of “no moment” to a decision on committal. Provided the inferences advanced by the Crown are within the field of available inferences and provide evidence of each essential element of the offence, committal follows: see R. v. Kamermans, 2016 ONCA 117, [2016] O.J. No. 685, at para. 20.

10. With respect to the scope of review, no appeal may be taken from a preliminary inquiry judge’s decision to commit an accused to stand trial. While the decision can be challenged by way of certiorari, the scope of review is limited to jurisdictional errors. Errors of law are not reviewable. Nor can the reviewing court overturn the decision of the preliminary inquiry judge on the basis that it would have reached a different decision. The reviewing court may only act to quash a committal for trial where the preliminary inquiry judge acted in excess of his or her jurisdiction: see R. v. Russell, at para. 19; and The Queen and Deschamplain, at para. 17.

11. The preliminary inquiry judge’s determination of the sufficiency of evidence in support of an order for committal is entitled to great deference on review: see Sazant, at para. 24. However, it is a jurisdictional error for a preliminary inquiry judge to commit an accused to trial where there is no evidence on an essential element of the charge: see Skogman, at p. 104.

12. Similarly, the preliminary inquiry judge will commit a jurisdictional error if he/she commits an accused based on inferences that cannot be reasonably drawn from the evidence before him/her, since that would necessarily result in an an absence of evidence on an essential element of the offence: see Munoz, at para. 33.

Disposition of the Application

[31] Based on the issue raised in the Notice of Application, the standard of review in this instance is narrowly limited to determining whether the preliminary inquiry judge acted without jurisdiction by concluding, in essence, that there was “some evidence” before him from which a properly instructed jury could reasonably infer that the applicant was one of the individuals who committed the robbery at issue.

[32] If the inferences the Crown seeks are reasonably available on the evidence then only those inferences could have been considered by the preliminary inquiry judge regardless of their strength or the relative strength of any competing inferences that were (and are) reasonably available on the evidence.

[33] For the following reasons, I find that the preliminary inquiry judge did not commit an error of jurisdiction by committing the applicant to stand trial on the charges that he did. In other words, I am satisfied that the evidence before the preliminary inquiry judge is capable of supporting a reasonable inference of identity as it relates to the applicant and therefore there is “some evidence” upon which a properly instructed jury acting reasonably could convict.

[34] At the outset, I observe that the inferences arising from the evidence that favour the Crown are not the only inferences that can be drawn from the evidence and they are not inferences that must be drawn from the evidence. However, the weighing of competing inferences is an issue for the trier of fact. The preliminary inquiry judge was tasked with determining whether the inference of identity that the Crown sought - that is, that the applicant was one of the persons involved in the commission of the robbery at Baskin Robbins - could reasonably be drawn from the evidence before him. He found that it could and, in my view and for the following reasons, that finding was available to him on the evidence.

Dominic Jaworski’s testimony provided direct evidence on all the elements of the offences for which the applicant was committed, except for identity. He deposed to the specifics of the robbery and he indicated that the two individuals who committed the robbery were wearing masks and carrying offensive weapons, specifically a crowbar and a firearm.

[35] Ms. Chappus’ evidence, if believed, establishes that the applicant and Mr. Willman were associated with one another prior to the robbery. She states that at one point prior to the robbery they resided together at Ms. Wallace’s apartment and they attended in each other’s company at Ms. Chappus’ apartment in December 2014 prior to the offence date. The evidence of “mere association” between Mr. Willman and the applicant prior to the robbery is not in and of itself evidence from which guilt may be inferred. However, in my view, that evidence informs the context in which the other evidence adduced at the preliminary inquiry may be viewed.

[36] On the issue of whether there was “some evidence” before the preliminary inquiry judge from which a jury could reasonably infer identity as it relates to the applicant, I find as follows.

[37] First, there was some evidence from which a jury could reasonably infer that one of the individuals who committed the robbery left the Dodge Caliber key fob at the Baskin Robbins store during the commission of the robbery. In particular, the agreed statement of facts evidences that the key fob was recovered shortly after the robbery in an area of the store that was only accessed by store employees and the persons who committed the robbery, specifically on the employees’ side of the serving counter directly below the cash register which had been pried open by one of the masked robbers. The Baskin Robbins store video surveillance which captured the robbery, which was filed as an Exhibit, confirms that both of the robbers were physically present in the area of the store where the key fob were recovered. Pursuant to the agreed statement of facts, the key fob did not belong to any of the Baskin Robbins employees. In my view, the combined effect of that evidence could reasonably support the inference sought by the Crown - that is, that the key fob was left at the Baskin Robbins store by one of the participants in the robbery.

[38] Second, there was some evidence from which a jury could reasonably infer that on December 14, 2014, the applicant was in possession of the Dodge Caliber vehicle associated with the key fob recovered from the robbery scene.

[39] In particular, the agreed statement of facts evidences that the vehicle was owned by the applicant’s father on the date of the robbery. Accepting as true the evidence of the applicant’s brother, Chad Pundyk, as set out in the agreed statement of facts, the applicant is one of two people who normally used that vehicle, the other being Chad Pundyk. Chad Pundyk did not use the vehicle on December 14, 2014, and he last used the vehicle two weeks prior to that date. Chad Pundyk gave the Dodge Caliber to the applicant two weeks prior to the offence date. There was no evidence before the preliminary inquiry judge that the applicant returned the vehicle to Chad Pundyk or Daniel Pundyk prior to the offence date. Further, Chad Pundyk held an honest belief that the applicant operated the Dodge Caliber on December 14, 2014. The vehicle was not reported stolen by anyone prior to the robbery.

[40] On December 15, 2014, through the use of the key fob, police located the Dodge Caliber parked on Nottingham Drive just east of its intersection with Bruce Avenue. The agreed statement of facts evidences that that intersection is very close to the plaza where the Baskin Robbins is located. After it was located by police on December 15, 2014, the vehicle was seized and towed. Ms. Chappus’ audio recording evidences that the applicant was aware the vehicle had been towed by the time he attended at her apartment around lunch time on December 15, 2014. As I will explain below, the content of the applicant’s utterances to Ms. Chappus, on December 15, 2014, reasonably supports an inference that on the night of December 14, 2014 the applicant was in the immediate vicinity of the location where the Dodge Caliber was eventually located, at Nottingham and Bruce, at the same time that the individual bearing a very close resemblance to Mr. Willman entered a cab at that intersection.

[41] I accept the Crown’s submission that while there are other inferences which may be reasonably drawn from the foregoing cluster of evidence, a reasonable inference that the applicant was in possession of the Dodge Caliber and that he was associated with its use on December 14, 2014 may be drawn from that evidence.

[42] Third, there was some evidence from which a jury could reasonably infer that Roberto Willman was one of the robbers. In particular, within minutes after the robbery was committed, a lone male was observed to wander about the vicinity of the intersection of Bruce and Nottingham, which was very close to the Baskin Robbins store and where the Dodge Caliber associated with the key fob that was recovered from the robbery scene was located after the robbery. Minutes later, a cab was dispatched and arrived at the intersection of Bruce and Nottingham and the individual retrieved a bag from under a tree and entered the cab. Video surveillance from the cab indicates the individual bore a very close resemblance to the accused Willman. The individual was ultimately dropped off at 350 Elliott Street East. At approximately the same time the individual was dropped off at that address, video surveillance from 350 Elliott Street East, reproduced in colour, evidences that a man bearing a very close resemblance to the accused Willman entered the apartment building and he was wearing clothing that was very similar to clothes worn by one of the two robbers, as evidence by the Baskin Robbins surveillance video.

[43] Fourth, there was some evidence from which a jury could reasonably infer that the Dodge Caliber was used by a person or persons who participated in the robbery. Again, it is not the only inference which may be reasonably drawn but it falls within the field of inferences that a trier of fact may reasonably draw from the evidence. In particular, the key fob associated with that vehicle was recovered from the crime scene in an area that was only accessed by the individuals who committed the robbery and the store’s employees, and it did not belong to any of the store’s employees. The vehicle was located through the use of the key fob the day after the robbery, parked very close to the crime scene. Within minutes after the robbery, an individual who bore a very close resemblance to the accused Willman was observed by a cab driver, in the specific area where that vehicle was parked. Subsequent video surveillance of that person taken at 350 Elliott Street East evidences that he was wearing clothing very similar to clothing worn by one of the robbers.

[44] Fifth, there was some evidence from which a jury could reasonably infer that the applicant was in the vicinity of the robbery location around the time the robbery occurred and that the applicant was in the area of the intersection of Bruce and Nottingham shortly after the robbery occurred. In particular, the audio recording captured by Ms. Chappus, evidences that the applicant stated he was at Walmart at the time of the robbery. Anne Marie Bitzer testified that Walmart is very close to the Baskin Robbins store which was robbed.

[45] The audio recording also evidences that in the context of discussing the accused Willman and the Baskin Robbins robbery on December 14, 2014, the applicant states, “I’m walking and he drove right by me in a cab.” Later, in the context of discussing Mr. Willman, the appellant states that he saw him get in a cab and that he (the applicant) recovered his own wallet on the ground from the specific area that the other person was at, when the applicant observed him entering the cab. The agreed statement of facts evidences that a cab picked up an individual bearing a very close resemblance to Mr. Willman at the intersection of Bruce and Nottingham very shortly after the robbery occurred.

[46] I accept the Crown’s submission that one of the inferences, but not necessarily the only inference, that a properly instructed jury may reasonably draw from that cluster of evidence is that the applicant’s observation of Mr. Willman entering the taxi cab was made at or near the intersection of Bruce and Nottingham shortly after the robbery occurred.

[47] In addition, there was also evidence before the preliminary inquiry judge that an individual bearing a strong resemblance to Willman attended at 350 Elliott Street East less than an hour after the robbery, from the cab and apartment building videos, respectively. Ms. Chappus’ evidence, if believed, establishes that the applicant attended her apartment less than 24 hours after the robbery to solicit her assistance in contacting Mr. Willman. Further, the audio recording evidences that the applicant stated that he had attended at Ms. Wallace’s apartment late on December 14 or early on December 15, 2014 in order to locate Mr. Willman.

[48] Finally, the audio recording evidences that while the applicant denied involvement in the Baskin Robbins robbery, when he was questioned about it by Ms. Chappus, he subsequently stated that he did not remember being involved in the robbery and even if he was guilty he would never admit guilt.

[49] In the result, I am satisfied that an inference that the applicant was one of the two individuals who participated in the robbery at the Baskin Robbins store, on December 14, 2014, is one of the inferences within the field of inferences that can be reasonably drawn from the evidence, as a whole, that was before the preliminary inquiry judge including the evidence that Willman and the applicant were associated with one another prior to December 14, 2014 when combined with the evidence that supports reasonable inferences favouring the Crown that:

(a) the applicant was in possession of the subject Dodge Caliber vehicle on December 14, 2014;

(b) the key fob to access that vehicle was left at the Baskin Robbins store by one of the robbers on December 14, 2014;

(c) the accused Willman was one of the robbers;

(d) within minutes after the robbery, the accused Willman attended at the intersection of Bruce Avenue and Nottingham Drive, which is very close to the Baskin Robbins store and it is the location where the Dodge Caliber was located after the robbery, and that he entered a cab at that location a short time after arriving there;

(e) the applicant was in the vicinity of the intersection of Nottingham and Bruce when the accused Willman entered the cab, after the robbery, and the applicant recovered his own wallet from the specific place from which Willman entered the cab; and

(f) the accused Willman was transported from that intersection to 350 Elliott Street East and the applicant attended at that address looking for the accused Willman late on December 14, 2014 or early December 15, 2014.

[50] Accordingly, I am satisfied that the inference of identity that the Crown seeks, and as expressly identified by the preliminary inquiry judge at page 6 of his Reasons (as I quoted earlier), is not the product of a speculative albeit plausible hypothetical scenario. Rather, it is a finding that could reasonably be inferred by a properly instructed jury based on the circumstantial and other evidence which was before the preliminary inquiry judge. There is, at the very least, “a scintilla of evidence” on the issue of the applicant’s identity and accordingly, there was “some evidence” of that essential element before the preliminary inquiry judge which he found was sufficient to commit the applicant.

[51] Therefore, in my view, he did not act without jurisdiction in committing the applicant to stand trial.

[52] Finally, the applicant places significant emphasis on the case of R. v. Raja, [2009] O.J. No. 3193, where the court considered a Crown application for an order of certiorari quashing the order of the preliminary inquiry judge that discharged the respondent on a charge of robbery and related offences. The primary issue was the identity of the accused as one of three individuals who committed a robbery in an apartment. The evidence on that issue was circumstantial.

[53] After reviewing the law concerning when, and on what basis, an inference can be drawn and the limited permissible weighing of circumstantial evidence which a preliminary inquiry judge may engage, the preliminary inquiry judge reasoned, in part:

...reduced to its essentials, I am being asked to presume Mr. Raja’s participation in the robbery in [the complainant’s] apartment from his presence in the building at the relevant time and his association with Mr. Ali, a person in relation to whom there is some evidence of involvement in the charged offences. I do not believe that such an inference would be a reasonable conclusion that flows logically from the evidence placed before me.

[54] On review, the Superior Court of Justice denied the certiorari application. Mr. Pundyk submits that the circumstantial evidence was more compelling in Raja than it is in this instance and accordingly, committal cannot be justified.

[55] Notably, however, Raja did not deal with the issue of whether there was any evidence on the essential element of identity before the preliminary inquiry judge. Rather, the issue was whether the evidence was sufficient to permit a reasonable inference of identity to be drawn (see paras. 29-32). In that regard, the reviewing justice states at para. 30:

As noted, a preliminary inquiry judge’s determination of sufficiency is entitled to ‘the greatest deference’: Russell, supra, at para. 48. While I may disagree with the preliminary inquiry judge’s conclusion on the sufficiency of the evidence, that is not a sufficient basis upon which to overturn the decision. If the preliminary inquiry judge erred in her conclusion on the sufficiency of the evidence, the error was one of law and certiorari does not lie.

[56] Ultimately, the reviewing justice concluded, at para. 36:

In delivering reasons, a preliminary inquiry judge is not obliged to deal with every piece of evidence. What is important is that when read as a whole, the judge’s reasons demonstrate that the statutory and mandatory duty to consider all of the evidence has been met: see Dechamplain, supra, at paras. 33 and 34. In my view, the preliminary inquiry judge’s reasons in this case, when read as a whole, provide a clear indication that the duty has been met.

[57] I do not interpret the result of the certiorari application in Raja to be an expression of the reviewing justice’s agreement with the preliminary inquiry judge’s determination of the sufficiency of the evidence on the identity element of the offence. That inquiry did not fall within the scope of review. Rather, the reviewing court concluded on the reasons as a whole that the preliminary inquiry judge considered all of the evidence before her and therefore acted within the scope of her jurisdiction when arriving at the result that she did.

[58] Similarly in this instance, after reviewing the evidence that was before the preliminary inquiry judge and his reasons as a whole, I am satisfied that he considered all of the evidence before him, that there was some circumstantial evidence before him capable of supporting a reasonable inference on the essential element of identity as it relates to the applicant, and accordingly the preliminary inquiry judge acted within the scope of his jurisdiction in committing the applicant to stand trial on the charges that he did.

[59] As a result, the application is dismissed.

Gregory J. Verbeem Justice

Released Orally: June 17, 2016