R. v. Alexander, 2006 CanLII 26480 (ON SC)
COURT FILE NO.: M107/05
DATE: 20060801
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N: | ) |
|
HER MAJESTY THE QUEEN
‑ and -
NADINE ALEXANDER
| ) ) ))))))) |
W. Sabean for the Crown/Respondent
E. M. Battigaglia for the Accused/Applicant
HEARD: January 30, 2006[1] |
T. DUCHARME J.
REASONS FOR DECISION
[1] This is an application by Ms. Alexander for an order in the nature of certiorari to quash the decision of the Honourable Madam Justice M. Omatsu of the Ontario Court of Justice, ordering her to stand trial on charges of conspiracy to commit fraud, fraud over $5,000, fraudulently obtaining credit and unauthorized use of computer.
[2] While, among the grounds of relief sought, the applicant sought the quash her comitial on the change of mischief, the applicant was not committed to stand trial on a charge of mischief. Rather she was committed on a charge of unauthorized use of computer contrary to section 342.1. The confusion here apparently arose because the information alleged that she did:
fraudulently and without colour of right obtain, directly or indirectly a computer service to wit: the Royal Bank Financial Group computer system with intent to commit the offence of mischief contrary to s. 430 of the Criminal Code by wilfully stealing client data from the bank data base, contrary to the Criminal Code.
[Emphasis added.]
Neither party raised this point in argument. However, following an inquiry from the Court, the parties agreed that I should treat the application as an application to quash the applicant’s committal on charges of conspiracy to commit fraud, fraud over $5,000, fraudulently obtaining credit and unauthorized use of a computer.
Overview
[3] This matter arose out of an investigation conducted by various financial institutions and Canada Post involving the fraudulent use of credit cards that had been mailed to, but never received by, various cardholders. This investigation eventually focussed on Postal Station “L” in the City of Toronto. At this station, Mr. Wilberforce Biinna, a postal worker, was observed removing letters containing credit cards from the mail. Assisted by his wife, Flora Biinna, he would remove the selected letters from the mail and take them to the residence of a Mr. Colim, where the envelopes would be steamed open and later resealed. The letters would be returned to the mail system at the beginning of Mr. Biinna’s next shift. An investigation by the Royal Bank revealed that the applicant, through her employment at the Royal Bank, had made unauthorized inquiries about four credit cards that were not received by the cardholder and were fraudulently activated or used. The theory of the Crown was that these inquiries were made to obtain information required to activate the new cards and to determine whether the cards could be safely used.
I. ISSUES
[4] This application raises four issues:
(1) Did the preliminary inquiry justice exceed her jurisdiction in finding that there was some evidence before the Court of that the applicant committed fraud over $5,000;
(2) Did the preliminary inquiry justice exceed her jurisdiction in finding that there was some evidence before the Court of that the applicant fraudulently obtained credit;
(3) Did the preliminary inquiry justice exceed her jurisdiction in finding that there was some evidence before the Court of a conspiracy between the applicant and any of the persons named in the first count;[2] and
(4) Did the preliminary inquiry justice exceed her jurisdiction in finding that there was some evidence before the Court of that the applicant committed the offence of unauthorized use of computer.
II. EVIDENCE AT THE PRELIMINARY INQUIRY
A. Evidence Relating to the Co-Accused
[5] The evidence was that Mr. Wilberforce Biinna was employed as a postal worker at Postal Station “L” in the City of Toronto. In October 2003, surveillance revealed Mr. Biinna removing some envelopes from the mail, which he then placed in his personal car. His wife would then arrive at the station and remove the envelopes from the car. When Mr. Biinna finished his shift, he drove to his house and his wife brought the envelopes out to him. He took them to 77 Huntley Avenue, the residence of Mr. Colim. When Mr. Biinna returned to work the next day he attempted to return the envelopes to the mail system but they were seized. Forensic analysis of these envelopes revealed that they had been steamed open and then re-sealed with a glue stick.
[6] The evidence with respect Ms. Oloyede and Ms. Barnett was they were also Royal Bank employees who had made unauthorized inquiries about Visa client profiles with respect to cards that had been mailed but not received. There was no overlap with the inquiries made by the applicant, except that Ms. Oloyede had made an inquiry about the Visa client profile of Enrico and Romilda D’Amico, on July 25th, 2003, between 10:30 a.m. and10:32 am. The D’Amicos were a married couple that had a joint account and their cards were fraudulently used in the amounts of $18,069.77 and $4,782.00. There was no evidence with respect to any of the other alleged co-conspirators.
B. Evidence About the Applicant
[7] The applicant was employed by the Royal Bank as an Account Service Representative assigned to the branch at Weston Road and Lawrence Avenue in Toronto. Her duties were primarily related to the branch and involved supervising the tellers. She did not work on the Visa side of the bank’s operations. The bank has call centres for fielding telephone inquiries from clients.
[8] The applicant’s supervisor card number was used to access the Visa client profiles of Salvatore Giannone, Enrico and Romilda D’Amico and a Mr. Montenegro. None of these clients banked at the applicant’s branch and all of them were mailed Visa cards that they did not receive. All of these inquiries were made by Visa card number. Such inquiries to the Visa client profile system will reveal whether the card is still valid or not, whether the card is blocked or free to be used and the available credit. They also would provide the information necessary to activate the new card.
[9] Mr. Giannone’s replacement card was mailed to him on July 29, 2003. The applicant’s supervisor card number was used to access Mr. Giannone’s Visa client profile on August 11, 2003, and again on August 12, 2003, at 12:18 p.m. Mr. Giannone’s card was activated on August 12, 2003, at 10:45 a.m. On August 15, 2003, the card was used to transfer $3,570.59 to a bank account in Skokie, Illinois.
[10] The D’Amicos’ replacement cards were mailed to them on July 11, 2003. Ms. Oloyede’s card number was used to make an inquiry about the Visa client profile of the D’Amicos on July 25, 2003, between 10:30 a.m. and 10:32 am. Their cards were activated on July 26, 2003. The applicant’s supervisor card number was used to access their Visa client profile on July 30, 2003, at 4:17 p.m., and on July 31, 2003. Their cards were fraudulently used on August 2 and 3, 2003.
[11] Mr. Montenegro’s replacement card was mailed to him on July 18, 2003. The applicant’s supervisor card number was used to access Mr. Montenegro’s Visa client profile on August 13, 2003, at 12:34 p.m. Mr. Montenegro’s card was activated on August 12, 2003, at 11:52 p.m. The bank blocked the Montenegro account and no fraudulent use was made of the card.
C. Issues Where There Was No Evidence
[12] There was no direct evidence relating to the following points:
(1) that the applicant knew any of the other conspirators;
(2) that the applicant had any contact with any of the other conspirators;
(3) that the applicant had any knowledge of the conspiracy; and
(4) that the co-conspirators had any contact with the Visa cards that had been mailed to Mr. Giannone, Mr. and Mrs. D’Amico or Mr. Montenegro.
III. REASONS FOR COMMITTAL
[13] The preliminary inquiry judge gave brief oral reasons at the end of four days of evidence. The relevant portions of her reasons are set out below:
Conclusions I have made regarding Ms. Alexander, first on Giannone, one that was proven that was Ms. Alexander had unauthorized access and the card was subsequently activated and used, although no established amount of loss.
Regarding Montenegro, Ms. Alexander made a call before activation, but the bank stopped, therefore no loss.
. . .
Applying the applicable law to the evidence I have heard in this hearing regarding Ms. Alexander, there is sufficient evidence of unauthorized use of the computer and that is as regards Giannone and Montenegro.
Evidence of loss over five thousand dollars, fraud over regarding Ms. D’Amico. Evidence that Ms. Alexander’s activities furthered the fraudulent use therefore conspiracy made out.
So in conclusion as regards to Ms. Alexander there is a committal on conspiracy to commit fraud, co-conspirator to obtain credit through false pretences and co-conspirator to fraud over and attempt fraud.
. . .
In both cases the obtaining of credit by fraud for both defendants.
And in all the evidence there is no issue in my mind that the defendants had unauthorized use of the computer and there will be committal on that charge as well.
[Emphasis added.]
[14] From the foregoing, the basis for the committal on the conspiracy to commit fraud and the unauthorized use of the computer seems clear. The committal on the fraud charge and the charge of fraudulently obtaining credit seem to be related to the applicant’s role in the loss of more than $5,000 from the D’Amicos. This is not as clear as the preliminary inquiry judge said, “there is committal on . . . co-conspirator to obtain credit through false pretences and co-conspirator to fraud over and attempt fraud.” I take it that the preliminary inquiry judge misspoke when she used the term “co-conspirator” and that Ms. Alexander was committed on these charges as a party. Finally, while the reasons seem to suggest that the applicant was committed on a charge of attempted fraud, no such charge appears on the indictment. As neither party has raised this issue, I shall assume that the preliminary inquiry judge merely misspoke and there has been no committal on attempted fraud.
IV. THE ROLE OF A PRELIMINARY INQUIRY JUDGE
A. The Test for Committal
[16] One of the purposes of the preliminary inquiry is to determine whether there is sufficient evidence to commit an accused person to stand trial. Subsection 548(1) of the Criminal Code, R.S.C. 1985, c. C-46, requires the preliminary inquiry judge to order the accused to stand trial, “if in his opinion there is sufficient evidence” and to discharge the accused, “if in his opinion on the whole of the evidence no sufficient case is made out.” Thus, the question to be asked by a preliminary inquiry judge, under s. 548(1) of the Criminal Code, is the same as that asked by a trial judge considering a motion for a directed verdict, namely, "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty." Under this test, a preliminary inquiry judge must commit the accused to trial "in any case in which there is admissible evidence which could, if it were believed, result in a conviction."[3]
[17] In order to commit an accused for trial on a charge, a preliminary inquiry judge must find evidence of each essential element of the offence, which, if believed by a properly instructed jury, could result in a conviction. The preliminary inquiry judge may not assess the credibility of witnesses or weigh the evidence for competing inferences in determining whether there is sufficient evidence for committal. The test is the same whether the Crown is relying on direct evidence or circumstantial evidence. However, in each of these circumstances the process engaged in by the preliminary inquiry must be different.
[18] Where the Crown is relying on direct evidence with respect to the essential elements of the offence, the task of the preliminary inquiry judge is quite straightforward. As McLachlin C.J.C. explained in Arcuri, supra, at 31:
By definition, the only conclusion that needs to be reached in such a case is whether the evidence is true... It is for the jury to say whether and how far the evidence is to be believed... Thus 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. If there is direct evidence as to every element of the offence, the accused must be committed to trial.
[Emphasis added.]
[19] Where the Crown seeks a committal on the basis of circumstantial evidence, the task of the preliminary inquiry judge becomes somewhat more complex. This was also explained in Arcuri, supra, per McLachlin C.J.C., at 31-32:
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 the 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.
[Emphasis added.]
This limited weighing means that inferences to be drawn from circumstantial evidence need not be “compelling”[4] or even “easily drawn”[5] in order to be reasonable. Competing inferences are for the trier of fact to resolve. A preliminary inquiry judge commits jurisdictional error where he weighs competing inferences or chooses among them.[6] If the trier of fact could reasonably draw an inference based on the evidence, then the matter should be left for their determination. As Major J. put it in Regina v. Sazant, 2004 SCC 77 (CanLII), [2004] 3 S.C.R. 635 at para. 18, “where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered.” Thus, if a reasonable inference in favour of the Crown is available to be drawn, then, regardless of its strength, a judge conducting a preliminary inquiry is required to draw it.
[20] However, despite the very 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 inferences relied upon by the judge to commit the accused must be both: (1) based on the evidence heard at the preliminary inquiry; and (2) 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.
B. The Drawing of Inferences
[21] While the jurisprudence is replete with references to the drawing of “reasonable inferences,” there is comparatively little discussion about the process involved in drawing inferences from accepted facts. It must be emphasized that this does not involve deductive reasoning, which, assuming the premises are accepted, necessarily results in a valid conclusion. This is because the conclusion is inherent in the relationship between the premises. Rather, the process of inference drawing involves inductive reasoning, which derives conclusions based on the uniformity of prior human experience. The conclusion is not inherent in the offered evidence, or premises, but flows from an interpretation of that evidence derived from experience. Consequently, an inductive conclusion necessarily lacks the same degree of inescapable validity as a deductive conclusion. Therefore, if the premises, or the primary facts, are accepted, the inductive conclusion follows with some degree of probability, but not of necessity. Also, unlike deductive reasoning, inductive reasoning is ampliative as it gives more information than what was contained in the premises themselves.
[22] A good starting point for any discussion of inference drawing is the definition offered by Justice Watt:
An inference is a deduction of fact which may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. It is a conclusion that may, not must be drawn in the circumstances.[7] [Emphasis in original.]
Equally important is Justice Watt’s admonition that, “The boundary which separates permissible inference from impermissible speculation in relation to circumstantial evidence is often a very difficult one to locate.”[8]
[23] The process of inference drawing was described by Doherty J.A. in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 at 209 (Ont. C.A.) as follows:
A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation. As Chipman J.A. put it in R. v. White (1994), 1994 NSCA 77 (CanLII), 89 C.C.C. (3d) 336 at p.351, 28 C.R. (4th) 160, 3 M.V.R. (3d) 283 (N.S.C.A.):
These cases establish that there is a distinction between conjecture and speculation on the one hand and rational conclusions from the whole of the evidence on the other.
[Emphasis added.]
The highlighted sentence suggests that there are two ways in which inference drawing can become impermissible speculation and I will discuss each in turn.
[24] The first step in inference drawing is that the primary facts, i.e. the facts that are said to provide the basis for the inference, must be established by the evidence. If the primary facts are not established, then any inferences purportedly drawn from them will be the product of impermissible speculation. The decision of Lord Wright in Caswell v. Powell Duffryn Associated Collieries Ltd., [1940] A.C. 152 at 169-70 (H.L.) is often cited as authority for this long-standing principle:
The Court therefore is left to inference or circumstantial evidence. Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.
[Emphasis added.]
[25] While the foregoing point may seem obvious, it can arise in subtle ways. Thus, in R. v. Portillo (2003), 2003 CanLII 5709 (ON CA), 176 C.C.C. (3d) 467 (Ont. C.A.), the Crown led footwear evidence consisting of two primary facts: (1) two partial shoeprints found at the scene were similar to impressions from two shoes found by the police in the course of their investigation; and (2) the shoes were found in the vicinity of the appellant’s apartment. The Crown did so in order to support the inference that the appellant had been at the scene of the homicide in close proximity to the body. That conclusion could be drawn only if it could reasonably be inferred that: (a) the shoes found by the police made the prints at the scene; and (b) that the shoes belonged to the appellant. Expert evidence called by the Crown, standing alone, could not support the first inference, and the fact that the shoes were found in the vicinity of the appellant's apartment, standing alone, could not support the second inference. While describing the Crown’s argument as “seductive,” after a careful analysis of the necessary underlying inferences, Doherty J.A. rejected the Crown’s reasoning as circular, saying, at 476-477:
The "footwear" evidence could assist in proving either of the factual inferences needed to give the evidence relevance, only if the Crown could first prove the other factual inference for which the "footwear" evidence was offered.
As indicated above, the evidence connecting Wilfredo Portillo to the homicide scene could not assist the jury in determining whether the shoes made the prints found at the scene unless other evidence established that the shoes belonged to Wilfredo Portillo. The only other evidence connecting Wilfredo Portillo to the shoes was the evidence that they were found in the vicinity of Wilfredo Portillo's apartment. That fact alone could not reasonably support the inference that the shoes belonged to Wilfredo Portillo as opposed to the many other people who had equal access to that area. Similarly, the evidence of the prints found at the scene could only assist in identifying Wilfredo Portillo as the owner of the shoes if there was other evidence from which it could be inferred that the prints were made by those shoes. The only other evidence, was the expert’s evidence that the treads on the shoes were similar to the partial prints found at the scene. That evidence, standing alone, could not reasonably support the inference that those shoes made those prints. This is particularly so given the expert's frank concession that he could not say how many shoes had the same tread pattern. His evidence amounted to no more than an assertion that the shoes found near Wilfredo Portillo's apartment were among an undetermined number of shoes that could have made the prints at the scene of the homicide.
The "footwear" evidence could not, absent assumption of facts not proved, or speculation, support either the inference that the shoes made the prints found at the scene or that the shoes belonged to Wilfredo Portillo.
[Emphasis added.]
Therefore, Justice Doherty concluded that the evidence was not relevant and should have been excluded.
[26] The second way in which inference drawing can become impermissible speculation occurs where the proposed inference cannot be reasonably and logically drawn from the established primary facts. This possibility stems precisely from the fact that an inductive conclusion is not necessarily valid. As McLachlin C.J.C. put it in Arcuri, supra, at 31-32:
[W]ith 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.
[Emphasis added.]
Consequently, one can overreach and draw an inference that should not properly be drawn from the primary facts.
[27] Courts have repeatedly cautioned against confusing a reasonable inference with mere speculation. Where an inferential gap exists, it can only be properly overcome by evidence. This point was powerfully made by Doherty J.A. in R. v. Huynh (2005), 2005 CanLII 34563 (ON CA), 200 C.C.C. (3d) 305 (Ont. C.A.). This case involved an appeal of the committal for extradition of an individual charged with conspiracy and money laundering relating to the designated offence of trafficking in a controlled substance. The material relied on in support of the extradition justified the inference that the appellant had conspired with others to covertly transfer very large amounts of cash from the United States to Canada. He did so by concealing the money in a secret compartment fashioned in the gas tank of his vehicle. While there was no direct evidence as to the source of the cash, the Crown argued that it could be reasonably inferred that the cash was the proceeds of trafficking in a controlled substance based on: (a) the amount of cash involved; (b) the frequency with which cash was being transferred from the United States to Canada; (c) the manner of concealment of the cash, suggesting a level of sophistication and a commercial operation; (d) the coded conversations of participants and their obvious concerns about surveillance; and (e) the anticipated evidence of a DEA officer that the modus operandi was consistent with the activities of drug dealers. In rejecting the Crown’s contention, Doherty J.A. reasoned as follows:
The material identified by the respondent certainly permits the inference that the cash was the proceeds of some illicit activity. Drug trafficking comes readily to mind as one possible source. The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess. The gap between the inference that the cash was the proceeds of illicit activity and the further inference that the illicit activity was trafficking in a controlled substance can only be bridged by evidence. The trier of fact will assess that evidence in the light of common sense and human experience, but neither are a substitute for evidence. The requesting state has not offered any evidence as to the source of the funds even though its material indicates that one of the parties to this conspiracy is cooperating with the police. . . . I do not think there is anything in the material that would reasonably permit a trier of fact to infer that the cash was the proceeds of drug trafficking and not some other illicit activity.[9] [Emphasis added.]
[28] It is difficult, if not impossible, to define with any precision a bright line distinction between the drawing of reasonable inferences and mere speculation. However, in this regard I would adopt the language of Aldisert J. in Tose v. First Pennsylvania Bank, N.A., 648 F.2d 879 at 895 (3rd Cir.), cert. denied, 454 U.S. 893 (1981):
The line between a reasonable inference that may permissibly be drawn by a jury from basic facts in evidence and an impermissible speculation is not drawn by judicial idiosyncracies. The line is drawn by the laws of logic. If there is an experience of logical probability that an ultimate fact will follow a stated narrative or historical fact, then the jury is given the opportunity to draw a conclusion because there is a reasonable probability that the conclusion flows from the proven facts. As the Supreme Court has stated, "the essential requirement is that mere speculation be not allowed to do duty for probative facts after making due allowance for all reasonably possible inferences favoring the party whose case is attacked." Galloway v. United States, 319 U.S. 372, 395, 63 S. Ct. 1077, 1089, 87 L. Ed. 1458 (1943).[10]
[29] However, it must be emphasized that this requirement of “logical probability” or “reasonable probability” does not mean that the only “reasonable” inferences that can be drawn are the most obvious or the most easily drawn.[11] This was explicitly rejected in R. v. Katwaru, supra, at 444, per Moldaver J.A.:
[I]n the course of his instructions on the law relating to circumstantial evidence, the trial judge told the jury on numerous occasions that they could infer a fact from established facts but only if the inference flowed "easily and logically from [the] other established facts".
The appellant submits, correctly in my view, that the trial judge erred by inserting the word "easily" into the equation. In order to infer a fact from established facts, all that is required is that the inference be reasonable and logical. The fact that an inference may flow less than easily does not mean that it cannot be drawn. To hold otherwise would lead to the untenable conclusion that a difficult inference could never be reasonable and logical.
[Emphasis added.]
Rather, the requirement of reasonable or logical probability is meant to underscore that the drawing of inferences is not a process of subjective imagination, but rather is one of rational explication. Supposition or conjecture is no substitute for evidence and cannot be relied upon as the basis for a reasonably drawn inference. Therefore, it is not enough simply to create a hypothetical narrative that, however speculative, could possibly link the primary fact or facts to the inference or inferences sought to be drawn. As Fairgrieve J. noted in R. v. Ruiz, [2000] O.J. No. 2713 at para. 3 (C.J.), “[s]imply because a possibility cannot be excluded does not necessarily mean that a reasonable trier could be justified in reaching such a conclusion on the evidence.” The inference must be one that can be reasonably and logically drawn; it cannot depend on speculation or conjecture, rather than evidence, to bridge any inferential gaps.
V. THE STANDARD OF REVIEW
[30] The scope of review of a committal at a preliminary inquiry is extremely narrow and is limited to errors of a jurisdictional nature. A reviewing court may set aside a committal for trial only where the judge at the preliminary inquiry acted in excess of his or her jurisdiction. Where a preliminary inquiry judge makes an error of law within his or her jurisdiction, a prerogative remedy will not lie. As McLachlin C.J.C. put it in R. v. Russell (2001), 2001 SCC 53 (CanLII), 157 C.C.C. (3d) 1 at 10 (S.C.C.):
The scope of review on certiorari is very limited . . . [R]eview on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached. Rather certiorari permits review "only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction”: [citations omitted].
[31] A preliminary inquiry judge will commit jurisdictional error if she commits an accused based on inferences that cannot be reasonably drawn from the evidence before her. To commit an accused on such a basis constitutes jurisdictional error, as there is no evidence from which the inference or inferences reasonably can be drawn and thus, there would be an absence of evidence on an essential element.[12] This is not merely an error as to the sufficiency of the evidence, which would not go to jurisdiction. In such a circumstance, the order to stand trial can properly be quashed as there would be no evidence from which the preliminary inquiry justice, acting judicially, could form the opinion that the evidence was sufficient to order the accused to stand trial. Thus, the statutory precondition in section 548(1)(a) of the Criminal Code would not be met and the preliminary inquiry judge is without jurisdiction to order the accused to stand trial.
VI. COMMITTAL ON CHARGE OF FRAUD
A. Was There Any Evidence That Supported the Committal on Fraud?
[32] There was no direct evidence that the applicant accessed the relevant client profiles and there was no direct evidence that the applicant was involved in the fraudulent use of any of the Visa cards. Therefore, the question of committal turns on what reasonable inferences can be drawn from the circumstantial evidence led in this case.
[33] In this case, the evidence permits the inference that the applicant made unauthorized inquiries with respect to the VISA cards of Mr. Salvatore Giannone, Mr. and Mrs. D’Amico, and Mr. Montenegro. Each of these inquiries was made with respect to the specific Visa card numbers as opposed to the name of the client. The fact that inquiries were made of with respect to four different Visa accounts supports the inference that they were not done accidentally, but for the purpose of obtaining information about each of the Visa accounts. The fact that these inquiries were outside the scope of the applicant’s responsibilities suggests that her purpose in obtaining the information was illicit and that the applicant was going to do something with the information she obtained. This inference is further supported by the fact that neither Mr. Giannone nor the D’Amicos had any contact with the applicant’s branch.
[34] The more difficult issue is whether or not one can infer that the illicit purpose of the applicant was fraudulent activity. In considering what inferences are available in this regard, the following evidence is relevant.
(1) None of the cards the applicant inquired about were received by the respective cardholders.
(2) Each inquiry by the applicant was made after the respective card was mailed out.
(3) The applicant was the only employee to have unauthorized access to all four Visa accounts.
(4) The customer profile accessed by the applicant would provide both the information necessary to activate the card and indicate the status of the card, that is, whether the card had been blocked or if it could be used.
(5) The applicant was the only employee to have unauthorized access to the Giannone and Montenegro accounts and was one of two employees who had unauthorized access to the D’Amico accounts.
(6) With respect to the Giannone and Montenegro accounts, the inquiry was made shortly before the respective cards were activated.
(7) In the case of the Giannone account, the inquiry by the applicant occurred a few days before the fraudulent use of the card.[13]
(8) With respect to the D’Amico accounts, the inquiry was made after the card was activated and a few days before the fraudulent use.
(9) Each card was mailed to an address in the postal code region serviced by Postal Station “L”, where Mr. Biinna worked.
[35] Having considered the evidence directly admissible against the applicant, in the context of the evidence as a whole, I conclude that it is reasonably capable of supporting the inference that she accessed these accounts in order to obtain information that would permit someone to fraudulently use these cards. While the precise details of the fraudulent use are unknown, there was sufficient evidence to infer that the applicant was, at least, a party to the fraudulent use of the cards. Thus, in committing the applicant to stand trial on the charge of fraud over $5,000, with respect to the D’Amicos, the preliminary inquiry judge did not exceed her jurisdiction.[14]
VII. COMMITTAL ON THE CHARGE OF FRAUDULENTLY OBTAINING CREDIT
A. Was There Any Evidence Capable of Supporting the Inference that the Applicant was involved in Fraudulently Obtaining Credit?
[36] The evidence outlined in paragraphs 34 and 35, supra, also supports the inference that the applicant was a party to the offence of fraudulently obtaining credit, contrary to s. 362(1)(c)(iv) of the Criminal Code, with respect to the D’Amico account.[15] Thus, in committing the applicant with respect to this charge, the preliminary inquiry judge did not exceed her jurisdiction.
VIII. COMMITTAL ON CONSPIRACY TO COMMIT FRAUD
A. The Law of Criminal Conspiracy
[37] Conspiracy has been defined as "an inchoate or preliminary crime".[16] A criminal conspiracy is an agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. It involves an intention to agree, the completion of an agreement, and a common design that must be proved as against at least two persons: United States of America v. Dynar (1997), 1997 CanLII 359 (SCC), 115 C.C.C. (3d) 481 at 511 (S.C.C.) per Cory and Iacobucci JJ.
[38] The actus reus of the crime of conspiracy lies in the formation of an agreement – tacit or express – between two or more individuals, to act together in pursuit of a mutual criminal objective. Co-conspirators share a common goal borne out of a meeting of the minds, whereby each agrees to act together with the other to achieve a common goal.
[39] The mens rea of the offence is that the agreement must be made with the intention that the mutual criminal objective be committed. As Dussault J.A. put it in R. v. Lamontagne (1999), 1999 CanLII 13463 (QC CA), 142 C.C.C. (3d) 561 at 575 (Qué. C.A.), “the mens rea is the true intent to agree to put the criminal scheme into play.” The commission of this offence must be a common purpose of the conspirators: R v. O’Brien (1954), 1954 CanLII 42 (SCC), 110 C.C.C. 1 (S.C.C.). Thus, in R. v. McNamara (1981), 1981 CanLII 3120 (ON CA), 56 C.C.C. (2d) 193 (Ont. C.A.); aff’d, (1985), 1985 CanLII 32 (SCC), 19 C.C.C. (3d) 1 (S.C.C.), our Court of Appeal stated, at 219, “[m]ere knowledge of, discussion of or passive acquiescence in a plan of criminal conduct is not, of itself, sufficient.” Each of the conspirators must have a genuine intention to participate in the agreement, merely pretending to agree does not make one a conspirator: Dynar, supra, at 512. However, this does not require that all the conspirators must commit, or intend to personally commit, the mutual criminal objective. It is sufficient that the intention is that one or more of the conspirators commit the offence, provided all who are conspirators agree that that is how their common purpose will be achieved: Regina v. Genser (1986), 1986 CanLII 4729 (MB CA), 27 C.C.C. (3d) 264 at 267-8 (Man. C.A.); aff’d (1987), 1987 CanLII 5 (SCC), 39 C.C.C. (3d) 576 (S.C.C.).
[40] Like any other crime, conspiracy can be proven by direct or circumstantial evidence. Thus, as Pigeon J. noted in Atlantic Sugar Refineries Co. Ltd. et al. v. Attorney General of Canada (1980), 1980 CanLII 226 (SCC), 54 C.C.C. (2d) 373 at 381 (S.C.C.), “[i]t must be accepted that a conspiracy may be effected in any way and may be established by inference.” Indeed, it has been suggested that, precisely because of the nature of conspiracy, it will most often be proven by drawing inferences from circumstantial evidence. As Rinfret J. observed in Paradis v. Regem, 1933 CanLII 75 (SCC), [1934] S.C.R. 165 at 169:
Conspiracy, like all other crimes, may be established by inference from the conduct of the parties. No doubt the agreement between them is the gist of the offence, but only in very rare cases will it be possible to prove it by direct evidence. Ordinarily the evidence must proceed by steps. The actual agreement must be gathered from "several isolated doings," . . . having possibly little or no value taken by themselves, but the bearing of which one upon the other must be interpreted; and their cumulative effect, properly estimated in the light of all surrounding circumstances, may raise a presumption of concerted purpose entitling the jury to find the existence of the unlawful agreement.
[41] But great care must be taken as to what evidence can reasonably give rise to a reasonable inference of a conspiracy. As Doherty J.A. put it in R. v. H.A., 2005 CanLII 32566 (ON CA), [2005] O.J. No. 3777 at para. 47 (C.A.):
…a conspiracy is not established merely by proof of knowledge of the existence of a scheme to commit a crime or by the doing of acts in furtherance of that scheme. Neither knowledge of nor participation in a criminal scheme can be equated with the actus reus of a conspiracy: [citations omitted]. Knowledge and acts in furtherance of a criminal scheme do, however, provide evidence, particularly where they co-exist, from which the existence of an agreement may be inferred.
[Emphasis added.]
An examination of the facts of H.A. demonstrates how rigorously this approach is to be applied.
[42] In R. v. H.A., H.A. was charged with conspiracy to extort various individuals with whom he had various disputes by videotaping the victims in compromising sexual positions and then threatening to make photographs from the videotapes public unless the targets paid him what he demanded. H.A. hired a private investigator, Mr. Blake, who in turn enlisted various female "operatives" to seduce these individuals in hotels or apartments that had been rigged with hidden audio and video recording equipment. Mr. Blake also was involved in paying and debriefing the operatives and was aware of the surreptitious videotaping. H.A. hired Y.A., a woman who worked for an escort agency and promised her $1,400.00 if she would have sex with P.M., a lawyer, and tape it. Y.A. testified that she knew there was something wrong with the suggestion, so instead she went to P.M.’s office and told him what she had been asked to do. Despite the evidence of the actions of Blake and Y.A., Doherty J.A. found that it could not support the inference that either of them had conspired with H.A.
[43] With respect to Blake, there was evidence of his involvement with the operatives as well as his knowledge of the surreptitious videotaping. There was no evidence that Blake knew of H.A.’s plan or that he agreed to it. In allowing the appeal against two separate charges of conspiracy, Doherty J.A. reasoned as follows, at paras. 58 and 63:
[a]t the highest, the facts demonstrate that Blake, as H.A.'s employee, performed certain tasks that furthered H.A.'s plan to pressure M.C. into paying him money by threatening public disclosure of the contents of embarrassing videotapes. On the totality of the evidence, the acts done by Blake do not reasonably permit the inference that he conspired with H.A. to bring about the extortion of M.C.
. . .
…I see no evidence to support a finding that Blake was aware of H.A.'s intended use of the videotapes or that Blake mutually agreed with H.A. to bring about that criminal objective. As in count five, all that can be said is that Blake, as a [detective agency] employee, did things which furthered H.A.'s criminal plan. That does not make Blake a conspirator.
[Emphasis added.]
[44] As for the alleged conspiracy between H.A. and Y.A., the trial judge found that Y.A. had agreed to have sex with P.M. and knew that it would be videotaped. However, there was no evidence that Y.A. had any knowledge of the prior relationship between H.A. and P.M. or of H.A.’s belief that P.M. could tell him where certain assets were hidden. Consequently, Doherty J.A. rejected the trial judge’s finding that H.A. and Y.A. had conspired together to extort P.M., saying at paras. 53-54:
[a]bsent that knowledge, it cannot be reasonably inferred that she agreed with H.A. to mutually achieve the criminal objective described by the trial judge.
At most, it could be said that Y.A. knew that H.A. was up to no good and planned to use the videotapes for some nefarious purpose. That knowledge cannot be equated with a meeting of the minds pursuant to which each agreed to jointly work towards the criminal objective of extorting P.M.
[Emphasis added.]
[45] In addition to the caution in H.A., supra, about what can be inferred from knowledge or the doing of acts that further a conspiracy, I would add a further caveat as to the limited probative value of an opportunity to conspire. While an absence of an opportunity to conspire would preclude an inference of participation in a conspiracy, little if anything can be inferred from the mere fact that the parties had an opportunity to conspire. In this regard, the comments of Aldisert J. in Tose v. First Pennsylvania Bank, N.A., supra, at 894, albeit made in a civil context, are equally applicable to criminal conspiracy:
But we must recognize the distinction between opportunity to perform an act and its actual performance. Proof of opportunity to conspire, without more, will not sustain an inference that a conspiracy has taken place. Inferred factual conclusions based on circumstantial evidence are permitted only, and to the extent that, human experience indicates a probability that certain consequences can and do follow from basic facts. Human experience does not support the inference of actual conspiracy from proof of the basic fact of opportunity to conspire. [Emphasis added.]
[46] While only evidence which is directly admissible against an accused can be considered in determining whether an inference could be drawn that she was a member of the conspiracy alleged, the directly admissible evidence should be considered, in the words of Rinfret J. in Paradis v. Regem, supra, “in the light of all surrounding circumstances.” In considering what inferences can be drawn from such evidence, the acts or utterances of the accused are not to “be viewed in isolation, divorced from the context in which they occurred [they should] be interpreted against the picture provided by the acts of the alleged co-conspirators.” See R. v. Filiault (1981), 1981 CanLII 3165 (ON CA), 63 C.C.C. (2d) 321 at 326 (Ont. C.A.) per Martin J.A; aff’d (1984), 15 C.C.C. (3d) 352 (S.C.C.). As Weiler J.A. explained in R. v. Gagnon (2000), 2000 CanLII 16863 (ON CA), 147 C.C.C. (3d) 193, a conspiracy case, at 223, “[i]n order to give meaning to the accused's own acts and utterances it is permissible to consider them against the context of the acts of others which may be hearsay.”
B. Drawing of Inferences in This Case Regarding the Conspiracy Charge
[47] There was no direct evidence of the applicant’s participation in, or knowledge of,
the conspiracy. Rather, the preliminary inquiry judge reasoned as follows:
Evidence of loss over five thousand dollars, fraud over regarding Ms. D’Amico. Evidence that Ms. Alexander’s activities furthered the fraudulent use therefore conspiracy made out.
So in conclusion as regards to Ms. Alexander there is a committal on conspiracy to commit fraud, co-conspirator to obtain credit through false pretences and co-conspirator to fraud over and attempt fraud.
[Emphasis added.]
[48] Put another way, the preliminary inquiry judge appears to have concluded that, because it could be inferred that the applicant’s actions furthered the fraudulent use of the card, it could be inferred that she was a co-conspirator. I say this despite the fact that the preliminary inquiry judge referred to the decision of Doherty J. in R. v. Cebulak (1988), 1988 CanLII 7131 (ON SC), 46 C.C.C. (3d) 437 (Ont. H.C.J.) as standing for the proposition that proof of conspiracy requires proof of a common object. Despite noting this, the preliminary inquiry judge did not identify any evidence that would support such an inference.
C. Was There Any Evidence Capable of Supporting the Inference that the Applicant was a Participant in the Conspiracy?
[49] The committal by the preliminary inquiry judge was based solely on the fact that it could be inferred that the applicant’s acts furthered the fraudulent use of the D’Amicos’ credit cards. But, as the passage from H.A., quoted in paragraph 44, supra, makes clear, a conspiracy is not made out solely by the doing of acts in furtherance of a scheme. To infer the existence of a conspiracy, there must also be evidence that can reasonably support the inference that the applicant knew of the criminal scheme and agreed to participate in it. While there was evidence that permitted the inference that the applicant’s acts furthered the fraudulent scheme of the Biinnas and Mr. Colim, there is no evidence that permits the inference that the applicant knew of the broader scheme or agreed to participate in it. Thus, in committing the applicant to trial on the conspiracy charge, the preliminary inquiry judge exceeded her jurisdiction.
VII. COMMITTAL ON THE CHARGE OF UNAUTHORIZED USE OF COMPUTER
A. The Offence of Unauthorized Use Of Computer
[50] The offence of unauthorized use of computer is created by section 342.1 of the Criminal Code, the relevant portions of which provide:
342.1 (1) Every one who, fraudulently and without colour of right,
(a) obtains, directly or indirectly, any computer service,
…
(c) uses or causes to be used, directly or indirectly, a computer system with intent to commit an offence under paragraph (a) or (b) or an offence under section 430 in relation to data or a computer system, or
…
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or is guilty of an offence punishable on summary conviction.
[51] Thus, the essential elements of the offence under s. 342.1(1)(a) are:
(1) to obtain, directly or indirectly, any computer service
(2) in a manner that is fraudulent and without colour of right.
[52] Thus, the essential elements of the offence under s. 342.1(1)(c) are:
(1) to use, or cause to be used, directly or indirectly, a computer system;
(2) in a manner that is fraudulent and without colour of right;
(3) with the intent to commit the offence created by s. 342.1(1)(a) or
s. 342.1(1)(b) or s. 430.
[53] With respect to the reference to s. 430 in s. 342.1(1)(c), it should be noted that s. 430(1.1) addresses the offence of mischief in relation to data:
430 (1.1) Every one commits mischief who wilfully
(a) destroys or alters data;
(b) renders data meaningless, useless or ineffective;
(c) obstructs, interrupts or interferes with the lawful use of data; or
(d) obstructs, interrupts or interferes with any person in the lawful use of data or denies access to data to any person who is entitled to access thereto.
B. The Charge As Particularized in the Information
[54] The charge as drafted in the information reads as follows:
And further that Nadine Cordia ALEXANDER sometime between and including the 1st day of March in the year 2003 and the 30th day of September in the year 2003 in the City of Toronto, in the Toronto region did fraudulently and without colour of right obtain, directly or indirectly a computer service to wit: the Royal Bank Financial Group computer system with intent to commit the offence of MISCHIEF contrary to Section 430 of the Criminal Code by wilfully stealing client data from the bank data base, contrary to the Criminal Code.
[55] The charge as drafted appears to be an attempt to track the language of s. 342.1(1)(c). Mr. Battigaglia submits that the applicant should not have been committed on this charge as there is no evidence that the applicant stole “client data from the bank data base.” At most, he submits that there is evidence that the applicant viewed the data.
[56] The Court raised two further concerns with the charge as drafted. First, given the decision in R. v. Stewart (1988), 1988 CanLII 86 (SCC), 41 C.C.C. (3d) 481 (S.C.C.), could the actions of the applicant constitute stealing as a matter of law? Second, given that stealing is not one of the ways to commit mischief specified in s. 430(1.1), does the charge, as drafted, disclose an offence known to law?
[57] Ms. Sabean, for the Crown, concedes that the charge as drafted is poorly worded, but she submits that the applicant was properly committed, as there was sufficient evidence to establish the essential elements of the offence of unauthorized use of computer under either s. 342.1(1)(a) or s. 342.1(1)(c). She further submits that the reference to stealing data is surplusage and need not be proven by the Crown.
C. Is “by wilfully stealing client data from the bank data base” a Necessary Element of the Offence as Particularized?
[58] There is no question that the charge is poorly drafted. It is also obvious that the language about stealing client data is not an essential element of the offence created by s. 342.1(1)(c), or for that matter, by s. 430(1.1). But that does not end the matter. The Crown has chosen to particularize the offence and, where that is done, the Crown is required to prove the charge as alleged.[17] As McLachlin J. put it in R. v. Rooke and De Vries (1990), 1990 CanLII 1131 (SCC), 56 C.C.C. (3d) 220 at 223 (S.C.C.):
It is a fundamental principle of criminal law that the offence, as particularized in the charge, must be proved. In Morozuk v. The Queen, 1986 CanLII 72 (SCC), [1986] 1 S.C.R. 31, at p. 37, this Court decided that once the Crown has particularized the narcotic in a charge, the accused cannot be convicted if a narcotic other than the one specified is proved. The Crown chose to particularize the offence in this case as a conspiracy to import heroin. Having done so, it was obliged to prove the offence thus particularized. To permit the Crown to prove some other offence characterized by different particulars would be to undermine the purpose of providing particulars, which is to permit "the accused to be reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence and fair trial": R. v. Côté, 1977 CanLII 1 (SCC), [1978] 1 S.C.R. 8, at p. 13.
[59] Having chosen to put this charge as drafted before the preliminary inquiry judge, the Crown was required to lead evidence that could prove all of the elements of the charge as particularized. The Crown could have sought an amendment but they chose not to. Thus, to commit the applicant on this charge there must be some evidence that could support the inference that she stole client data from the bank’s data base.
D. Is There Evidence that the Applicant Stole Client Data?
[60] Mr. Battigaglia submits that there is no evidence that the applicant stole data, saying that, at most, the evidence supports the inference that she merely viewed the data. I agree with this submission. However, there is a more fundamental problem with the charge as drafted. That is, that the mere accessing and sharing of such data cannot constitute “stealing” given that s. 2 of the Criminal Code defines the word steal as “to commit theft” and R. v. Stewart (1988), 1988 CanLII 86 (SCC), 41 C.C.C. (3d) 481 (S.C.C.) makes it clear that accessing confidential information does not constitute theft. Thus, there was no evidence that permits the inference that the applicant stole client data from the bank’s data base. Thus, in committing the applicant to trial on the charge as drafted, the preliminary inquiry judge exceeded her jurisdiction.
E. Does the Charge As Drafted Create a Valid Offence under s. 342.1(1)(c)?
[61] The question here is whether the charge, as drafted, does properly incorporate an offence under section 430. Certainly, the application of the maxim expressio unius, exclusivio alterius to s. 430 (1.1) does suggest that Parliament, in enumerating various ways in which mischief to data can be committed, did not mean to include the stealing of data as a form of mischief to data. On the other hand, this is a highly technical area and it seems at least possible that if data, or some part thereof, was “stolen”, this same act could possibly alter the data [s. 430(1.1)(a)]; render it meaningless, useless or ineffective [s. 430(1.1)(a)]; or obstruct, interrupt or interfere with its lawful use [s. 430(1.1)(c) and (d)]. Therefore, it would be unwise to attempt to resolve this issue without the assistance of expert evidence with respect to computer data. Fortunately, given my conclusion that there is no evidence that the applicant stole data, I need not resolve whether the charge, as drafted, does create a valid offence.
F. Was the Applicant Properly Committed to Stand Trial Under
s. 342.1(1)(c)?
[62] Despite her thorough submissions, I reject Ms. Sabean’s contention that the applicant was properly committed to stand trial under s. 342.1(1)(a). Certainly there was sufficient evidence before the preliminary inquiry judge to commit the applicant under this section. But this was not the charge before the preliminary inquiry judge and she did not indicate that she was committing the applicant on any other indictable offence that was not contained in the information, as she could have under s. 548(1)(a) of the Criminal Code.
[63] This leaves the question of what, if anything, should be done about committing the applicant to stand trial under s. 342.1(1)(a). The Crown did not bring an application for such an order and, for that reason alone, it would not be appropriate for me to do so. I could remit this matter of a charge under s. 342.1(1)(a) to the preliminary inquiry judge for her further consideration. However, I decline to do so given the amount of time that has passed since the completion of the preliminary inquiry. If the Crown wishes to prosecute the applicant for an offence under this section, they can always prefer an indictment on such a charge under s. 574(1)(b) of the Criminal Code.
VIII. CONCLUSION
[64] In summary, Ms. Alexander’s application for certiorari is granted with respect to the charges of conspiracy and unauthorized use of computer. Therefore, the order of the preliminary inquiry judge committing her to stand trial on these two charges is quashed and Ms. Alexander is discharged on both of those counts. However, the balance of the application for certiorari is dismissed and the order of the preliminary inquiry judge committing her to stand trial on charges of fraud and fraudulently obtaining credit is upheld.
________________________________
T. Ducharme J.
Released: August 1, 2006
COURT FILE NO.: M99/05
DATE: 20060801
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
NADINE ALEXANDER
REASONS FOR DECISION
T. Ducharme J.
|
Released: August 1, 2006
[1] Further written submissions were received from counsel on June 14th and 15th as well as July 27th, 2006.
[2] In addition to the applicant, the conspiracy count on the information listed Flora Biinna, Jocelyn Nkunzimana, Judy Barnett, Kikelmo Oloyede, Solomon Akena Colim, Charles Igbinedion and Wilberforce Biinna.
[3] The passages in quotations are from United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, which was reaffirmed in R. v. Arcuri (2001), 2001 SCC 54 (CanLII), 157 C.C.C. (3d) 21 at 30-31 (S.C.C.), per McLachlin C.J.C. While this test was recently modified in United States of America v. Ferras; United States of America v. Latty, 2006 SCC 33 (CanLII), [2006] S.C.J. No. 33, in the context of an extradition, the Supreme Court of Canada was careful, at para. 48, to distinguish an extradition from a preliminary inquiry.
[4] R. v. G.W., 1996 CanLII 427 (ON CA), [1996] O.J. No. 3075 at para. 62 (C.A.) per Osborne J.A.
[5] R. v. Katwaru (2001), 2001 CanLII 24112 (ON CA), 153 C.C.C. (3d) 433 at 444 (Ont. C.A.) per Moldaver J.A.
[6] R. v. Campbell (1999), 1999 CanLII 2372 (ON CA), 140 C.C.C. (3d) 164 at 165 (Ont. C.A.); R. v. Montour, [2002] O.J. No. 141 at paras. 3-5 (C.A.).
[7] D. Watt, Watt's Manual of Criminal Evidence (Toronto: Carswell, 2006) at 95. (Italicized portions in original.) In this passage the phrase “deduction of fact” is not mean to suggest that the process involved is deductive reasoning. Rather, the word is simply used in the sense of a “factual conclusion.”
[8] Ibid.
[9] In Rodaro et al. v. Royal Bank of Canada et al. (2002), 2002 CanLII 41834 (ON CA), 59 O.R. (3d) 74 at 94 (C.A.), Doherty J.A. applied the same distinction between legitimate inference drawing and speculation in a civil context.
[10] Although Tose and Galloway dealt with directed verdicts, this language is equally applicable to the assessment of the availability of inferences based on the evidence at a preliminary inquiry.
[11] This is especially true at a preliminary inquiry where the judge need only determine whether there is sufficient evidence to permit the trier of fact to draw the inferences necessary to convict.
[12] Regina v. Sazant, supra, at para 16, per Major J. Of course, this assumes that the inferences are the only evidence available with respect to the element of the charge in question.
[13] The Montenegro account was blocked by the bank so there was no fraudulent transaction carried out. However, as Mr. Giannone had not received his card, its activation was dishonest.
[14] The same logic would support a committal on a charge of fraud under $5,000 with respect to the Giannone account. However, as the preliminary inquiry judge did not address that possibility, and the Crown made no application in this regard, that matter is not before me.
[15] As with the fraud charge, the applicant could also have been committed on a charge contrary to s. 362(1)(c)(iv) with respect to the Giannone account. This too is not before me.
[16] Papalia v. The Queen (1979), 1979 CanLII 38 (SCC), 45 C.C.C. (2d) 1 (S.C.C.) per Dickson J. at 17.
[17] R. v. Daoust (2004), 2004 SCC 6 (CanLII), 180 C.C.C. (3d) 449 (S.C.C.); R. v. Rosen (1985), 1985 CanLII 58 (SCC), 16 C.C.C. (3d) 481 (S.C.C.); R. v. Valle-Quintero (2002), 2002 CanLII 45123 (ON CA), 169 C.C.C. (3d) 140 (Ont. C.A.).
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