COURT FILE NO.: CR-19-60-00
DATE: June 8, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ANDREI MOSONYI
Andrew Scott, for the Crown
Jason Easton, for the Accused
HEARD: May 18- 20, 2022
REASONS FOR DECISION
HURLEY, J
[1] Mr. Mosonyi is charged with six offences, all stemming from his alleged involvement in the theft of copper plates from Canadian National Railway (“CNR”) boxcars in the fall 2016.
[2] There are two charges, conspiracy and possession of stolen property, which cover the same period of time, being September 13, 2016 to December 8, 2016. The remaining four counts relate to the break and enter of boxcars on specific dates – November 3, 17 and 24 and December 8, 2016.
[3] The Crown’s case consisted of the testimony of the investigating officer Sgt. Karine Scelzo who is employed by the CNR police; two purported accomplices, Neculia Ghitiu and Cristea Cristea; cellphone communications; physical and electronic surveillance; and several agreed statements of fact (which I will refer to as an “ASF”). In addition, the Crown brought a similar fact application arising out of Mr. Mosonyi’s guilty plea to possession of stolen property in January 2017.
[4] Mr. Mosonyi did not testify nor call any evidence.
[5] On May 30, 2022, I found Mr. Mosonyi guilty of count six, possession of stolen property. I found him not guilty of the remaining charges. I told counsel that I would provide them with written reasons.
The thefts
[6] In November 2016, copper plates were stolen on three occasions from boxcars on a train that travelled from Montreal to Toronto. There were also two attempted thefts in December on the same train route.
[7] The ASF stated:
Sometime between November 3^rd^ and 4^th^ 2016 CN was the victim of theft aboard train M37731-03 bound for Toronto (MacMillan Yard). The seal on railcar CAN 406181 was cut. Forty-eight (48) copper cathodes weighing 9,030 lbs were missing, worth approximately $22,677.94
Sometime between November 17^th^ and 18^th^, 2016 CN was the victim of theft aboard train M37721-17 bound for Toronto (MacMillan Yard). The seal on railcar FBOX 505919 was cut. Forty-four (44) copper cathodes weighing 8,249 lbs were missing, worth approximately $20,716.54.
Sometime between November 24^th^ and 25^th^, 2016 CN was the victim of theft aboard train M37721-24 bound for Toronto (MacMillan Yard). The seal on railcar FBOX 505663 was cut. Fifty-six (56) copper cathodes weighing 10,599 lbs were missing, worth approximately $27,578.00.
On December 2^nd^, 2016 CN was the victim of attempted theft aboard train M37721-02 bound for Toronto (MacMillan Yard). The seal on railcar FBOX was cut. No freight was missing. It was a railcar that contained aluminum girders weighing 1,6525 lbs each.
On December 8^th^, CN was the victim of attempted theft aboard train M37721-02 bound for Toronto (MacMillan Yard). The seal on railcar FBOX 505717 was cut. There was no freight missing. The railcar contained aluminum girders weighing 1,625 lbs each.
The similar fact evidence
[8] The defence agreed that Mr. Mosonyi’s plea of guilty to possession of stolen property in the Ontario Court of Justice in Toronto on October 26, 2017 was properly admissible as similar fact evidence.
[9] The offence date was January 12, 2017. The facts read in at the time of plea were:
January 12, 2016 [it should be 2017] in Belleville, Ontario, persons unknown broke into and entered a Canadian National Railway boxcar that contain piles of copper plates. The train then began making its way along the Kingston subdivision and rail line towards Vaughan Ontario, continued to the Meadowvale Road service area and at that point in time, the copper plates were thrown out of the car and the plates remained next to the train tracks. Canadian National [Railway] police became aware of the missing plates when the train reached Vaughan, contacted 41 division. Officers conducted observations and plainclothes officers observed the accused and the rental UHaul truck attend a gas station, purchase water and food. All three were wearing boots and clothing suitable for working outdoors. At 7 p.m., they attended the area of the service road with that pickup truck, loaded the copper plates into the back of the truck. They then left the area with the copper plates and police stopped the truck and placed the accused under arrest. Twenty-four copper plates were located at the rear of the pickup truck, it was valued between 13,000 and 15,000, given the current price of copper.
[10] Mr. Mosonyi denied participating in the theft but admitted to being in possession of stolen property. He received a suspended sentence and probation for 18 months.
[11] Mr. Mosonyi was with Mr. Ghitiu and Mr. Cristea when he was arrested. Mr. Ghitiu also pleaded guilty to possession of stolen property on October 26, 2017. Mr. Cristea was, by that time, in custody in Quebec and transferred the charges to that jurisdiction for plea.
[12] An ASF contained these additional facts:
On January 11^th^, 2017 at approximately 23:45 investigators went to Mr. CRISTEA’s address (69 rue des Violettes, Blanville) to perform maintenance on the GPS tracker that had been installed on his vehicle. The vehicle was not present at the residence.
Cell phone records showed Mr. CRISTEA’s phone was in the area of Whites Road and Sheppard Ave in Pickering. Around this time train M-32771 was also stopped in Pickering, ON.
At approximately 03:00 hours on January 12^th^, 2017 CN personnel inspected train cars that had arrived at the MacMillan Yard in Toronto from Montreal. It was determined there has been a theoft aboard train M37721-11. The seal on railcar FBOX 506478 was cut and 55 copper cathodes weighing 10,321 lbs were stolen, worth approximately $27, 491.00
At around 14:40, Toronto Police Service found several copper sheets alongside CN tracks, near the corner of Sewells Road and Steeles Road, Scarborough (Toronto, Ontario) at the corner of Meadowvale Road and Sheppard Road, Scarborough (near the Toronto Zoo, Ontario).
At approximately 17:00 Toronto Police major crimes investigators located the three suspects who were observed driving a U-Haul Rental vehicle (Ford Super Duty Pick-up Truck with Arizona License plate AH 1059).
At approximately 19:00, the suspects U-Haul rental vehicle returned back to Meadowvale Road area to load the copper sheets in the bed of the truck.
At 19:48 the vehicle is stopped by Toronto Police officers, who observe the copper sheets in the bed of the U-Haul rental vehicle.
At approximately 19:50, the three occupants of the U-Haul pick-up truck, Cristea CRISTEA, Neculai GHITIU and Andrei MOSONYI are arrested by the Toronto Police Service after they have just loaded 25 cathodes in the back of the U-Haul rental vehicle, a Ford Super Duty.
The evidence of Mr. Ghitiu and Mr. Cristea
[13] Both Mr. Guitui and Mr. Cristea were admitted accomplices in all the thefts and have criminal records for offences of dishonesty. I consider them unsavoury witnesses. As such, I instruct myself as I would a jury. I must approach their evidence with the greatest care and caution; it is dangerous to base a conviction on unconfirmed evidence of this sort; I should consider whether their testimony is confirmed by other evidence in deciding whether the Crown has proven Mr. Mosonyi’s guilt beyond a reasonable doubt; and I should look for independent evidence tending to show that their testimony implicating Mr. Mosonyi is true. But, if I find their testimony trustworthy, I may rely on it even if it is not confirmed by other evidence
i. The testimony of Mr. Ghitiu
[14] Unfortunately, Mr. Ghitiu died before trial. The transcripts of his guilty pleas and testimony at Mr. Mosonyi’s preliminary inquiry were admitted on consent.[^1]
[15] Mr. Ghitiu pleaded guilty on April 8, 2019 in the Ontario Court of Justice at Belleville to conspiring with Mr. Cristea and Mr. Mosonyi to commit the indictable offence of theft over $5,000 between September 13 and December 8, 2016 and one count of break and enter with an offence date of December 8, 2016.
[16] Following his pleas, Mr. Ghitiu confirmed under oath the accuracy of the facts read in by the Crown. According to the prosecution, there were 64 thefts of copper plates from CNR trains between October 2013 and January 2017. Mr. Cristea was the principal architect of this larcenous scheme. The total value of the stolen property was $1,453,943. It was disposed of at a business called Talmetal.
[17] Mr. Ghitiu admitted to five thefts of copper plates from CNR boxcars on September 13, November 4, 17 and 24, 2016 and January 12, 2017 and two attempted thefts on December 2 and 8, 2016.
[18] Although the facts read in at the plea are confusing in some respects, they essentially implicate Mr. Mosonyi in all of the offences with the exception of September 13 and December 2, 2016 and allege that he was in the boxcar with Mr. Ghitiu when the offences were committed. The train stopped in Belleville where the seal on a boxcar would be broken and the two of them would get into the boxcar. The copper plates were thrown from the train as it travelled towards Toronto and recovered later by the three conspirators.
[19] With respect to the attempted thefts, Mr. Guitiu admitted that he broke the seals on boxcars on December 2 and 8, 2016 but, because they did not contain copper, nothing was stolen. On the former date, Mr. Ghitiu and Mr. Cristea broke the seal on a boxcar. On the latter, they travelled from Montreal to Belleville in a car owned by Mr. Guitiu’s spouse. They parked at a Tim Hortons near the train station. Mr. Mosonyi arrived in another vehicle and got into Mr. Guitiu’s car. They travelled together to the railyard. There is a conflict between what Mr. Guitiu acknowledged at his plea and an ASF about what happened after the car stopped at the railyard. My finding on this factual issue is based on the ASF: that two individuals left the car, headed towards a specific boxcar and the police heard “the noise of a railcar door banging out”, following which one of the males ran back to the car.
[20] In cross-examination at Mr. Mosonyi’s preliminary inquiry, Mr. Ghitiu confirmed that the facts read in on his plea were accurate. He testified that Mr. Mosonyi was involved in five thefts but also said this:
Q: Mr. Mosonyi was not involved with any of the thefts from the Toronto area, was he?
A: It was with others… we did not do anything… and three times we did it and the last time we were caught.
[21] Mr. Ghitiu described Mr. Cristea as the “chief of the operation”.
[22] Mr. Ghitiu received what can only be described as a lenient sentence. The Crown asked for a conditional sentence of nine months. The judge imposed a jail sentence of 30 days and a conditional sentence of unknown length.[^2]
ii. The testimony of Mr. Cristea
[23] Mr. Cristea did not testify at Mr. Mosonyi’s preliminary inquiry, but he did at trial. He denied being the principal actor in the scheme. Rather, he ascribed this role to a person named Romeo Honorious Dimitrui who he first met in 2016. He claimed that Mr. Dimitrui employed two crews of thieves to steal copper plates from CNR boxcars on the Montreal-Toronto route. It was Mr. Dimitrui who introduced him to Mr. Ghitiu.[^3]
[24] Mr. Cristea testified that Mr. Mosonyi was involved in all of the thefts in the fall 2016. But that is not what he said in a sworn statement to an officer with the Surete du Quebec, Mark-Antoine Bigue, on September 21, 2021.[^4]There is this exchange:
Officer Bigue: I’m just going to say that in January, you met Romeo, Andrei [this is Mr. Mosonyi’s first name] in Toronto you all eventually agree to work together. How many times did you work with Andrei?
Mr. Cristea: I was with Andrei twice, that’s all.
Officer Bigue: Just twice, what were those two times?
Mr. Cristea: Uh, one time before, before falling in January.
Officer Bigue: Yeah.
Mr. Cristea: I think it was in 2016 because we fell in 2017, I think.
Officer Bigue: Yes, you fell in January.
Mr. Cristea: Yes
Officer Bigue: But you were arrested in January 2017
Mr. Cristea: Yes, I think it was in December, in the month of December, I can’t really remember. I know that I was there one time.
Officer Bigue: Yes
Mr. Cristea: After that, I said no, I’m not going, it’s already cold, I won’t go.
[25] The officer challenged him on his belief that Mr. Mosonyi only helped with two thefts:
Officer Bigue: Because I have that information. I also know that you came another time with them, because I saw you. I have surveillance that saw you and that saw that all three of you were together. So that means that you came at least three times together, and I have other dates, so now I want to know, what exactly do you remember?
Mr. Cristea: Exactly?
Officer Bigue: How many times were you with them?
Mr. Cristea: With Andrei?
Officer Bigue: With Andrei, to do the job?
Mr. Cristea: Oh, with, the job, just two times, I know, two times, once in December, once in January. More often, but not for…
Officer Bigue: Not for any theft.
Mr. Cristea: Yes, I may have been in Toronto, uh, I know, I know.
Officer Bigue: Just two times?
Mr. Cristea: Yes.
Officer Bigue: Two times that he got onto the train and that you picked him up.
Mr. Cristea: Yes
Officer Bigue: The thefts?
Mr. Cristea: Okay, yes
[26] Mr. Cristea also told the officer that he had been in Belleville only twice.
[27] According to an ASF, Mr. Cristea was stopped by the police driving his Savannah GMC van after it was observed by a police helicopter near train tracks in Markham shortly before 3:30 a.m. on November 4, 2016. Mr. Ghitiu and Mr. Mosonyi were in the van. Mr. Mosonyi was given a ticket for not wearing a seatbelt.
[28] Mr. Cristea testified that he had stopped by the tracks to allow Mr. Ghitiu to see if a train was coming. The helicopter surveillance depicted a person leaving the vehicle, going to the tracks and coming back. Mr. Cristea claimed that they did not steal any copper plates that night.
[29] As I indicated earlier, it was an agreed fact that 48 copper plates were stolen from a train that had travelled from Montreal to Toronto on that date.
[30] Mr. Cristea’s testimony also conflicted with other agreed facts. On December 8, 2016 the police observed him driving to the CNR railyard in Belleville with Mr. Ghitiu and Mr. Mosonyi. He testified that they drove by the railyard, but nobody got out of the vehicle. According to an ASF, two people did and went towards a boxcar. The ASF also stated that a seal was broken on a boxcar which contained aluminum on December 2, 2016. A tracking device that had been placed on Mr. Cristea’s van pursuant to a judicial authorization showed that the car was by the Belleville train station on that date. Mr. Cristea testified that he never participated in any attempted thefts; he always knew if a boxcar contained copper plates.
[31] In cross-examination, Mr. Cristea agreed that, when he was in Toronto with Mr. Ghitiu, Mr. Mosonyi purchased cocaine for them because he knew a dealer and there were times he was in Toronto with Mr. Mosonyi for this purpose and not in relation to the theft of the copper plates. He claimed that, because they did not have any money, the cocaine was purchased after the copper plates were sold. He said that they took the copper to a recycling business in Barrie whose name he did not know. The Crown did not introduce any cellphone evidence indicating that they were in the Barrie area after the thefts.
[32] Mr. Cristea has 18 convictions for crimes of dishonesty over the period 2004 to 2019. In June 2018, he pleaded guilty to conspiracy, six counts of break and enter and one of possession of stolen property for the thefts of the copper plates in the fall 2016 and January 2017. He received a global sentence of 350 days with 100 days of presentence custody.
The cellphone evidence
[33] This evidence was introduced through Sgt. Scelzo. Rather than call the analyst, the parties filed an ASF which stated:
Annie Picard was employed as a technical analyst for the Surete du Quebec at the relevant times.
Ms. Picard was provided with the production orders results (which included cell site locations) for the following phone numbers:
• 647-533-6295
• 514-882-0789
• 514-974-0046
• 438-995-3729
Ms. Picard was also provided with the tracking data for phone number 514-974-0046, the tracker attached to Mr. Cristea’s GMC Savanah Van, and the GPS coordinates registered to the relevant trains.
Ms. Picard consolidated the data for the investigators and provided them with all the phone and tracker activity surrounding the incident dates as depicted in Analyst Book #1 (tabs 1-6).
Ms. Picard also did some analysis regarding the production order results for 647-533-6295. Specifically, she isolated all the communication between 647-533-6295 and that of the phones associated to the co-accused Cristea = 514-974-0046 and Ghitiu = 438-995-3729).
All communication between 647-533-6295 and 514-974-0046 (Cristea) have been provided in the book titled ‘Phone Records 647-533-6295’ at tab 5. There are approximately 74 communications between these phones between the dates of 2016-10-09 and 2017-01-12.
All communication between 647-533-6295 and 438-995-3729 (Ghitiu) have been provided in the book titled ‘Phone Records 647-533-6295’ at Tab 6. There are approximately 69 communications between these phones between the dates of 2016-10-15 and 2016-12-11.
The analysis shows that the communications mainly take place around the dates of the thefts or attempted thefts.
[34] When the three of them were arrested on January 17, 2017 the police seized cell phones from each of them. The numbers were: 514-974-0046 for Mr. Cristea, 514-882-0789 for Mr. Ghitiu and 647-533-6295 for Mr. Mosonyi.
[35] The number of Mr. Mosonyi’s phone was registered to a “Paul Whites” with an address of 1200 Birchmount Rd., Toronto. It was a prepaid cell phone plan which had been active since May, 2016.
[36] Mr. Cristea testified that he had the same phone number in 2016 and 2017. There was no direct evidence that Mr. Ghitiu and Mr. Mosonyi used the same numbers before January 11, 2017. However, their usage followed a similar pattern on the alleged offence dates in 2016 and 2017 and were, in turn, linked to when the train departed Montreal, stopped in Belleville, and arrived at its destination in Toronto.[^5]
[37] The cellphone evidence consisted of the dates, times and duration of communications among these three phones on the dates of November 2-4, 15-18, 23-25 and December 2-3, 8-9, 2016 and January 11-12, 2017. The municipal addresses of cell towers were included in the records. The records also indicate that there were texts exchanged by the users of the phones on the specified dates, but the contents of these messages were not adduced in evidence.[^6]
[38] One important difference in the usage of the phones related to Belleville. The phone number believed to belong to Mr. Mosonyi was activated in Belleville along with the phone numbers ascribed to Mr. Cristea and Mr. Ghitiu on January 11, 2017 shortly before the train stopped there at 9:38 p.m. It was activated again near the town of Brighton at 10:33 p.m. After that, there was no further activity on the phone until 6:58 a.m. The phone was activated only once before that date near Belleville on December 8, 2016 at 6:02 p.m. The train arrived in Belleville at 8:17 p.m that evening.
[39] One difficulty in interpreting the cellphone records is that there was no testimony about the physical location of the cell towers (other than municipal addresses) and how the data can establish the location of a person using the phone at a specific time.
[40] This, in my view, raises the issue of judicial notice. In R v. J.M., 2021 ONCA 150, Brown, J. A. summarized the legal principles at para. 31:
The basic principles regarding the substantive dimension of judicial notice can be summarized as follows:
(i) Judicial notice is the only exception to the general rule that cases must be decided on the evidence presented by the parties in open court.
(ii) Judicial notice involves the acceptance of a fact or state of affairs without proof.
(iii) Facts judicially noticed are not proved by evidence under oath; nor are they tested by cross-examination.
(iv) Since judicial notice dispenses with the need for proof of facts, the threshold for judicial notice is strict; and
(v) Judicial notice applies to two kinds of facts: (a) those that are so notorious or "accepted", either generally or within a particular community, as not to be the subject of dispute among reasonable persons; and (b) those that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy. The sources may include both large bodies of scientific literature and jurisprudence. [Citations omitted]
[41] Cellphone evidence is now common. It can be contentious, especially where one side disputes the specific location of a cellphone when a call was made or received.[^7] There was no such dispute in this case but the defence submitted that the evidence could only be used to identify the general location of the cellphone. I agree. The Crown argued that I could go further and use a technological aid, like Google Maps, to identify the geographical location of the cell towers and assume that the phone was in a certain proximity to that tower when it was used. I find that such an exercise would not fall under the doctrine of judicial notice.
[42] However, there is a pattern of the cellphone usage when it is linked to the train route which permits me to draw certain conclusions about where Mr. Cristea, Mr. Ghitiu and Mr Mosonyi were on the relevant dates. I will now outline that evidence. This is not intended to be an exhaustive summary of it but rather to highlight the most relevant dates and times.
i. November 3-4, 2016
The train left Montreal around 3 p.m. Mr. Cristea and Mr. Ghitiu used their phones in Quebec after it did. Mr. Cristea used his phone in Ontario, alongside the train route, at 5:11 p.m. The train arrived in Belleville at 8:34 and left at 8:55 p.m. Mr. Cristea and Mr. Ghitiu used their phones in Belleville at, respectively, 8:38 and 8:41 p.m. Their phones are used again along the train route. The train arrived at its destination in Toronto, the MacMillan Yard, at 12:12 a.m. Before its arrival Mr. Mosonyi’s phone was used in the Greater Toronto Area (“GTA”) at 10:41 p.m. Mr. Cristea’s phone was used in the same general location at 10:47 p.m. Their phones were used again in proximity to each other, closer to the train route, between 11:30 p.m. and 12:05 a.m. The phones of Mr. Cristea, Mr. Ghitiu and Mr. Mosonyi were used in proximity to the MacMillan Yard after midnight to about 1:21 p.m. The phones of Mr. Cristea and Mr. Mosonyi are used again in the Markham area by the train route at 3:11 and 4:03 a.m.
ii. November 17-18, 2016
The train departed Montreal at 12:43 p.m. The phones of Mr. Cristea and Mr. Ghitiu were used in Quebec along the train route. The train arrived in Belleville at 9:56 and departed at 10:19 p.m. The phones of Mr. Cristea and Mr. Ghitiu were used in the Belleville area before its arrival and soon after its departure. Mr. Ghitiu’s phone was used at 12:25 a.m. near Oshawa alongside the train route. The phones of Mr. Cristea and Mr. Mosonyi were used in proximity to each other in the GTA shortly before and after midnight. The train arrived at the MacMillan Yard at 2:14 a.m. The phones of Mr. Cristea and Mr. Ghitiu were used in proximity to each other and the MacMillan Yard from 2:19 to 3:14 a.m. The phones of Mr. Cristea, Mr. Ghitiu and Mr. Mosonyi were used in proximity to the train route between 4:00 and 4:30 a.m around Pickering.
iii. November 24-25, 2016
The phones of Mr. Cristea and Mr. Ghitiu were used in Quebec soon after the departure of the train from Montreal at 1:58 p.m. The train arrived in Belleville at 7:00 and departed at 7:31 p.m. The phones of Mr. Cristea and Mr. Ghitiu were used before its arrival and soon after its departure. The phones of Mr. Cristea and Mr. Mosonyi were used in proximity to each other in the GTA at around 9:00 p.m. Later, between 10:00 and 11:00 p.m. they were used closer to the train route. The train arrived at the MacMillan Yard at 12:03 a.m. The phones of Mr. Cristea, Mr. Ghitiu and Mr. Mosonyi were used in proximity to the train route at around 2:00 a.m in the Markham area.
iv. December 2-3, 2016
The train left Montreal at 1:05 p.m. The phones of Mr. Cristea and Mr. Ghitiu were used in Quebec after its departure in proximity to the train route. The train arrived in Belleville at 9:35 and left at 9:41 p.m. The phones of Mr. Cristea and Mr. Ghitiu were used before and after its departure. The cell tracking device indicates that Mr. Cristea’s van was in Belleville around the time of the train’s arrival. The train arrived at the MacMillan Yard at 1:34 a.m. Mr. Cristea’s phone and van were in the GTA before the arrival of the train and Mr. Mosonyi’s phone was used in proximity to this location at 1:57 a.m.
v. December 8-9, 2016
The train departed Montreal at around 2:30 p.m. The phones of Mr. Cristea and Mr. Ghitiu were used in Quebec after its departure. Mr. Cristea’s phone was used along the train route. The train arrived in Belleville at 8:17 p.m. and the phones of Mr. Cristea and Mr. Ghitiu were used in Belleville around this time. The phones were used again in the GTA from about 11:00 to 11:30 p.m. in proximity to each other. The train arrived at the MacMillan Yard at 12:31 a.m.
vi. January 11-12, 2016
The train departed Montreal at 2:31 p.m. Mr. Cristea’s phone was used in Montreal both at the original departure point (Cour RDP) and at another railyard in the Montreal area (Cour Taschereau) approximately three hours later. The train arrived in Belleville at 9:38 p.m. The phones of Mr. Cristea, Mr. Ghitiu and Mr. Mosonyi were used in Belleville before its arrival. The phones of Mr. Cristea, Mr. Ghitiu and Mr. Mosonyi were used in proximity to the train route after its departure from Belleville at 9:50. The train arrived at the MacMillan Yard at 2:03 a.m. The phones of Mr. Cristea and Mr. Ghitiu were used in proximity to the train route before the arrival of the train and again between 3:30 a.m. and 4:00 a.m. in the Markham area.
Other Evidence
[43] There was no forensic evidence which linked Mr. Mosonyi to any of the thefts or attempted thefts. Sgt. Scelzo testified that there was physical surveillance of Mr. Cristea on a “few occasions” but there was evidence of only two dates, December 2 and 8, 2016, adduced at trial. Mr. Mosonyi was not observed on December 2. The search of Mr. Cristea’s van resulted in the seizure of equipment that could be used to break the seals on the boxcars and unload (or load) the copper plates that were stolen. There were also documents in this vehicle which connected Mr. Cristea to certain locations along the train route on dates when thefts took place.
Analysis
[44] The testimony of Mr. Cristea and Mr. Ghitiu, standing alone or together, would not be sufficient to find Mr. Mosonyi guilty of any of the charges. They were, as I stated before, unsavoury witnesses. This does not mean that I automatically reject their evidence in its entirety. Like any witness, I can believe some, all or none of their testimony. I am required to look for confirmation in the evidence that is independent of them. The evidence need not directly implicate Mr. Mosonyi in the crimes but it should be capable of restoring my faith in the relevant aspects of their testimony: “to be confirmatory … it may not cut a direct path to guilt, it need only be capable of assuring the trier of the fact that it is safe to rely upon the word of a disreputable witness”. [^8]
[45] I start with the modus operandi. On the totality of the evidence, I find that Mr. Cristea and Mr. Ghitiu planned and committed the thefts. Each crime started in Montreal when Mr. Cristea identified a boxcar which contained copper plates. They followed the train expecting or knowing that it would stop in Belleville for a period of time. When it did, Mr. Cristea or Mr. Ghitiu broke the seal on the targeted boxcar and Mr. Ghitiu got into it. He was either alone or with another confederate. There were likely two groups of thieves engaged in this criminal enterprise in 2016.
[46] Mr. Cristea followed the train as it made its way to Toronto. The train stopped along the route and, when it did, Mr. Ghitiu, with or without a helper, threw the copper plates on the side of the rail tracks. When the train arrived at the MacMillan Yard, Mr. Cristea picked up Mr. Ghitiu and later on, under the cover of darkness, went to the location where they believed the copper plates were. Once they found the plates, they loaded them in a vehicle large enough to carry them.
[47] The more difficult question in this case is the extent of Mr. Mosonyi’s involvement in this illegal operation.
[48] The similar fact evidence has probative value, but it does not rise to the level where I can rely upon it as proof that Mr. Mosonyi participated in each of the crimes in a similar manner. The necessary linkage is not present in this case because there is evidence of more than one group of thieves and both the cellphone communications and the contradictions in the evidence of Mr. Ghitiu and Mr. Cristea preclude the finding which the Crown submits I can make – that Mr. Mosonyi’s involvement in the January 12, 2017 offence identifies him as a co-conspirator in the fall 2016 offences. [^9]
[49] The similar fact evidence does rebut, to some degree, the claim of “innocent” association which Mr. Mosonyi advanced at trial – that, by coincidence, he was with Mr. Cristea and Mr. Ghitiu on the dates of the thefts solely because he knew a cocaine dealer.
[50] I cannot use the evidence to conclude that because Mr. Mosonyi was involved in a similar crime with Mr. Cristea and Mr. Ghitiu on January 12, 2017 he had a propensity to commit the same type of crime in the fall 2016 but, when considered in the context of the other evidence which also connected Mr. Mosonyi to Mr. Cristea and Mr. Ghitiu on dates when similar activity occurred, it is another piece of circumstantial evidence that I can take into account in deciding if the Crown has proven Mr. Mosonyi was involved in the crimes.
[51] The testimony of both Mr. Cristea and Mr. Ghitiu was contradictory on the nature and extent of Mr. Mosonyi’s participation in the thefts. Although both said that he was involved in all the crimes, Mr. Cristea seemed certain that it was only twice when he spoke to Officer Bigue last year. In cross-examination at the preliminary inquiry, Mr. Ghitiu also changed his evidence, reducing the number of times Mr. Mosonyi participated. The cellphone evidence, while it puts them together in the GTA, militates against the finding that Mr. Mosonyi was breaking into boxcars with Mr. Ghitiu when the train stopped in Belleville on the dates specified in the indictment. It was, however, confirmatory of the testimony of Mr. Cristea and Mr. Ghitiu in an important aspect - Mr. Mosonyi was with them in proximity to the train route after the train arrived in Toronto.
[52] On the totality of the evidence, I have a reasonable doubt about Mr. Mosonyi’s guilt with respect to the conspiracy and break and enter charges. I came to a different conclusion on the charge of possession of stolen property. Mr. Mosonyi’s presence in Mr. Cristea’s van on November 4, 2016, his attendance in Belleville on December 8, 2016 and the cellphone communications before and after the train’s arrival in Toronto on dates of three thefts from boxcars, when combined with the similar fact evidence and the testimony of Mr. Cristea and Mr. Ghitiu, convinced me that he is guilty of being a party to the possession of copper plates that he knew to be obtained by crime on November 4, November 18 and November 25, 2016, all of which fall within the timeframe covered by count six. I find that the Crown proved beyond a reasonable doubt that, on each of these dates, Mr. Mosonyi joined Mr. Cristea and Mr. Ghitiu to help them load the copper plates into a vehicle and that he knew Mr. Ghitui had thrown them from a boxcar as the train travelled from Belleville to Toronto. The indictment states that the copper plates were the property of Canadian Copper Refinery. There was no evidence at trial about this company’s ownership of the copper plates. In the particular circumstances of this case, I am satisfied that the identity of the owner of the property was not an essential element of the offence but surplusage. It was not disputed that the copper plates were stolen property and the case was argued on this basis.
[53] I would be remiss if I did not publicly acknowledge the hard work of Mr. Scott and Mr. Easton in this case. They focused on the key issues and agreed on the admission of many facts. If they had not, the trial could have taken several weeks. Their cooperation resulted in a significant benefit to the administration of justice without in any way compromising Mr. Mosonyi’s ability to make full answer and defence to the charges. I commend both of them for this constructive approach at a time when the criminal justice system is under significant strain due to the consequences of the Covid-19 pandemic.
HURLEY, J
Released: June 8, 2022
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MOSONYI, Andrei
REASONS FOR DECISION
HURLEY, J
Released: June 8, 2022
[^1]: The defence agreed that the evidence was admissible under the principled exception to the hearsay rule and s. 715(1)(a) of the Criminal Code. [^2]: I was not told the length of the conditional sentence or the terms of it. [^3]: There was no other evidence at trial about Mr. Dimitrui’s involvement in the crimes. Sgt. Scelzo testified that he was a suspect and had fled the country. [^4]: The SQ became involved in the investigation in November 2016. [^5]: It should be noted that the analysis of the cell phone evidence was restricted to dates and times that the cellphones were used in proximity to the train route on the dates of the thefts and attempted thefts. I do not know what, if any, other cellphone communications took place among Mr. Cristea, Mr. Ghitiu and Mr. Mosonyi in 2016 and 2017. [^6]: No explanation was given for this other than it was not done. The Crown submitted that I could not draw any inference from the absence of such evidence. I do not necessarily agree with its position, especially in a conspiracy case. It could constitute the absence of evidence which a trier of fact could consider in deciding whether the prosecution has proven the case beyond a reasonable doubt. In any event, I do not have to resolve this issue because of my findings on the conspiracy charge. [^7]: See R v. Chedda, 2021 ONCA 521 for a discussion of the accepted limitations of cell phone evidence. [^8]: R v. MacIsaac, 2017 ONCA 172 at para. 44. [^9]: The applicable legal principles of "group" similar fact evidence were recently reviewed in R v. Atwima, 2022 ONCA 268 at paras. 36-50