Court File and Parties
COURT FILE NO.: CNJ 8494 DATE: 2017/02/28 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – BREANNA FLYNN Defendant
Counsel: V. Karadzic, for the Crown J. Marentette, for the Defendant Breanna Flynn
HEARD: January 9, 10, 11, and 12, 2017
D.A. Broad, J.
REASONS FOR JUDGMENT
Background
[1] Breanna Flynn (the “accused”) is charged with one count of theft over $5,000 pursuant to s. 334 (a) of the Criminal Code of Canada and one count of possession of property, namely Canadian currency, of a value exceeding $5,000, knowing that it was obtained by the commission in Canada of an indictable offence, pursuant to s. 355 (a) of the Criminal Code.
[2] The accused was employed as a financial operations assistant at the Wilfrid Laurier University bookstore in Waterloo, Ontario for four years before her employment was terminated in October, 2014. She was a graduate of the Office Administrative Executive course at Fanshawe College. Her employment history included a period of employment at Musashi Auto Parts performing various accounting functions, including bank reconciliations, a couple of contract positions and four years at Waste Management Canada where her duties included counting sales receipts and preparing bank deposits. The accused left Waste Management prior to becoming employed at Wilfrid Laurier University.
[3] On the morning of September 16, 2014 two deposits which the accused had prepared and one other deposit were found to be missing from a safe at the Wilfred Laurier University bookstore in which they had been stored. The total amount found to be missing from the safe was $31,298.20.
[4] On September 30, 2014 police officers arrested the accused as she arrived at work and conducted a search incident to arrest of her vehicle as well as a purse and a bag found in her vehicle.
[5] A search of the accused’s home was conducted under warrant on October 1, 2014. In a shoebox in the master bedroom of the home was found $27,962 in Canadian currency together with three plastic “Brinks” deposit bags marked with serial numbers matching the sequential serial numbers on the Brinks bags which were missing from the bookstore safe.
[6] The accused pleaded not guilty and the matter was tried before me without a jury over four days.
Basic Principles
[7] It is useful to review the basic principles which apply to this prosecution and the nature of the burden of proof which rests on the Crown.
[8] The first principle is that the accused is presumed to be innocent of the charges, unless or until the Crown has proven each of the essential elements of the individual counts in the indictment beyond a reasonable doubt.
[9] A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence (see R. v. Lifchus, [1997] 3 S.C.R. 320 at para. 36).
[10] In order to convict her, it is not enough to find that the accused probably or likely committed the offences with which she is charged. However, the Crown is not required to prove with absolute certainty that she committed the offences.
[11] The existence or non-existence of reasonable doubt is to be based on the totality of the evidence. It is not necessary for the Crown to prove each individual piece of evidence beyond a reasonable doubt.
[12] The paramount question is whether, on the whole of the evidence, I am left with a reasonable doubt about the guilt of the accused. That is the central consideration before me. A verdict of guilt must not be based on a choice between the evidence of the accused and the Crown’s evidence, as such an approach would undermine the presumption of innocence and the requirement of proof beyond a reasonable doubt (see R.v. Vuradin, 2013 SCC 38 at para. 21).
[13] Although it is fundamental that an accused is not required to testify, where she chooses to do so, as the accused did in this case, the law requires that I take the following approach:
(a) if I believe the accused’s evidence that she did not commit the offences charged, I must find her not guilty;
(b) even if I do not believe the accused’s evidence, if it leaves me with a reasonable doubt about her guilt, or about an essential element of an offence with which she is charged, I must find her not guilty of that offence; and
(c) even if the accused’s evidence does not leave me with a reasonable doubt of her guilt, or about an essential element of an offence with which she is charged, I may convict her only if the rest of the evidence that I do accept proves her guilt of it beyond a reasonable doubt.
(see R.v.W. (D.), [1991] 1 S.C.R. 742 (S.C.C.))
[14] Defence counsel acknowledged in submissions that, if neither of the first two branches of the W. (D.) analysis result in a finding of not guilty, the third branch has been satisfied by the evidence led by the Crown. The focus is therefore on whether I believe the accused’s evidence that she did not commit the offences, or failing that, whether the accused’s evidence leaves me with a reasonable doubt about her guilt, or about an essential element of one or both of the offences with which she is charged.
Crown Evidence
[15] The accused’s direct supervisor at the Wilfrid Laurier University bookstore (the “bookstore”) was Deborah Da Costa, who held the position of Director of Retail, Printing and Distribution Services. She testified that the bookstore was open for operation Monday through Saturday, but was closed on Sundays except in the case of rare special events. She indicated that there was no such special event on September 14, 2014. The bookstore’s hours of operation were typically from 8:00 a.m. to 7:00 p.m. Monday through Thursday, 8:00 a.m. to 5:00 p.m. on Fridays and 11:30 a.m. to 4:30 p.m. on Saturdays. During busier times, such as during the month of September, the hours might be extended.
[16] In September, 2014 there were two finance operations assistants employed at the bookstore, the accused Breanna Flynn, who was employed on a full-time basis, and Susan Chilton who worked four hours a day. They each worked Monday to Friday and neither of them worked on Saturdays.
[17] The cash office, where the accused and Ms. Chilton both worked, was located behind the cash counter. There was one entrance to the cash office off the hallway behind the cash counter. The cash office was described by Ms. Da Costa as “tiny” being approximately 7 feet by 7 feet. There were two work areas in the cash office, one for each of the accused and Ms. Chilton.
[18] The cash office held two safes with combination locks, one stacked on top of the other and located behind the door to the cash office.
[19] The cashiers of the bookstore deposited their bagged cash and credit card and debit card receipts through a slot on the outside wall of the cash office. When placed through the slot the cash bags dropped into a locked cupboard inside the cash office. Only the accused and Ms. Chilton had keys to this cupboard. Ms. Da Costa testified that in September, 2014 there was a surveillance camera which covered the entire back hallway, including the doorway to the cash office. There was no surveillance camera in the cash office itself.
[20] The responsibilities of the accused and Ms. Chilton included the processing of daily sales by different tender types, namely cash, credit or debit, and preparing deposits for delivery to the bookstore’s chartered bank. Personnel from Brinks, a security service, attended every weekday to pick up numbered deposit bags which had been prepared by the accused or Ms. Chilton. For security purposes, there was no set time for Brinks personnel to attend.
[21] For one or two weeks at the beginning and end of each semester, including in the month of September, an independent contracting company named “Follett” set up in the bookstore to purchase and sell used textbooks. During these times Follett personnel were permitted to utilize the bottom safe in the cash office to store their cash receipts. Follett personnel were not in possession of the combination for the safe. An employee of the bookstore Mary Andraza was responsible for coordinating Follett’s activities. If Follett personnel required access to the lower safe in the cash office and neither finance operations assistant was there, Ms. Andraza would be required to open the safe. Typically the lower safe was left open for Follett personnel to place their receipts in, following which it was locked.
[22] Ms. Chilton testified that she worked from 9:00 a.m. to 1:00 p.m. Monday to Friday, and that the accused’s hours were from 8:30 a.m. to 4:30 p.m.. The only time that the two of them did not work together was when one was on vacation.
[23] Ms. Chilton indicated that she would typically conduct the initial cash count on each bag that was deposited by the cashiers into the dropbox. However the accused would do this if Ms. Chilton was away. Ms, Chilton testified that she would enter the receipts from each bag onto a spreadsheet. The information would then be entered onto a sales summary.
[24] All of the cash, sorted by denomination, would be added up for each day. The practice of the accused and Ms. Chilton was that if a deposit prepared by one of them exceeded $5,000, the other would verify it. Either Ms. Chilton or the accused would fill out a deposit form and all of the cash would be listed on a deposit slip provided by the bank. The cash would be placed into sealed and sequentially numbered bags supplied by Brinks. The serial number of each bag and the amount of cash in it would be written in a logbook supplied by Brinks. Upon pick up the Brinks representative would sign the logbook, thereby acknowledging receipt of the bag, however he or she would not count the bag’s contents.
[25] Ms. Chilton testified that, in addition to the deposits representing receipts from the bookstore, there were also often deposits containing receipts from the University’s copying and printing operation called the “Hub” and the sports store called “Hawks”.
[26] Ms. Chilton testified that on Friday, September 12, 2014 she worked her usual shift from 9:00 a.m. to 1:00 p.m.. She counted the receipts for the previous day September 11, 2014 which she described as quite large. She also prepared the cash count spreadsheet for the receipts for that day. At the end of her shift she left the bag containing the receipts for September 11 on the desk in the cash room and asked the accused to verify it.
[27] Ms. Chilton indicated that the verification process involved counting the cash and comparing the count to the total that had been entered on the spreadsheet, and typically took fifteen minutes.
[28] Ms. Chilton called in sick on Monday, September 15, 2014 and did not attend for work on that day. When she returned to work at 9:00 a.m. on Tuesday, September 16, the accused was in the cash office and instructed Ms. Chilton to open the bottom safe and count the cash. Ms. Chilton testified that when she opened the bottom safe all she found was the Brinks logbook. There was no cash nor were there any cash bags in the safe. She asked the accused if she was sure that there was money in the safe to which the accused responded “what do you mean there’s no money?” The two of them then began searching the top safe and the rest of the office including all of the cupboards. Ms. Chilton testified that the accused asked her if they should tell Ms. Da Costa, to which Ms. Chilton responded “absolutely”.
[29] Ms. Chilton and the accused went to Ms. Da Costa’s office to report that the deposits were missing. Ms. Da Costa attended at the cash office to assist in the search.
[30] Ms. Chilton testified that she and the accused had the practice of “half-locking” one or both of the safes during the day, whereby the door would be closed and the combination wheel moved to zero. The safe could be opened by moving it in a certain direction, which would avoid having to re-enter the full combination. However, both safes would be locked at the end of each day. When Ms. Chilton opened the lower safe upon her return to work on September 16 it was fully locked and she had to enter the full combination to open it.
[31] Ms. Chilton testified that during the previous April the accused had advised her that she owed approximately $10,000 in unpaid taxes. The accused advised that she had not paid taxes for a couple of years as the University was not withholding sufficient tax from her paycheque. When Ms. Chilton asked the accused what she was going to do about it, the accused responded “they can come after me.”
[32] Ms. Chilton testified that the accused’s husband had left her in January, 2014, and by September, 2014 the accused was living by herself in a semi-detached dwelling.
[33] Detective Brendan Westmorland of the Waterloo Region Police Service testified that he was assigned to the investigation into the missing deposits at the bookstore on September 17, 2014. He met with Special Constable Gouw of the Wilfrid Laurier University on-campus police service to be briefed on his investigation to that point.
[34] Detective Westmorland took written statements from six bookstore employees, including the accused. In her statement dated September 16, 2014 the accused wrote that on the previous day she started to complete the processing of deposits for September 12, 2014. Between 11:00 a.m. and 11:30 a.m. Brinks arrived and she told them that there were no deposits for them to take as the deposits for September 11 and 12 had not been completed. She did not realize that one deposit was ready, being bag AA14164564 containing $82.00. The accused stated that she completed both deposits between noon and 1:00 p.m. and locked them in the bottom safe. Bag AA14164565 containing $18,677.10 was sealed. Bag AA14164566 containing $12,539.10 was left open, with the intent to have Ms. Chilton verify the deposit the next day. At this point she realized that the bag containing $82.00 was ready and she moved it into the bottom safe with the two other deposit bags. She stated that she left the bottom safe in a half latched position until 4:30 p.m. when she fully locked the safe and left for the day. The accused stated that she was in the top safe in the afternoon only to fill the student change box, and it also remained in a half latched position until 4:30 p.m. when she fully locked it. The accused stated that following her arrival on September 16 both safes were opened by Ms. Chilton at 9 a.m. whereupon it was discovered that the bottom safe contained only the Brinks book and the deposit bags were not there. She noted that she and Ms. Chilton searched the office and then went into report the missing deposit bags to Ms. Da Costa.
[35] Following his investigation Detective Westmorland formed reasonable and probable grounds to arrest the accused and he and Detective Hanfield carried out the arrest on September 27, 2014, conducting a search of her purse and vehicle incident to her arrest.
[36] The search of the accused’s purse revealed $153.35 in Canadian currency, and an envelope containing a statement of account in the sum of $125.84 from Employment and Social Development Canada in the name of the accused with a due date of September 27, 2014 and six $20 and one $5 Canadian bills (total $120.00), an envelope marked Waterloo North Hydro containing six $20 Canadian bills, a Waterloo North Hydro account for the accused’s residence at 49 Aspen Cres., Elmira, Ontario in the sum of $475.14 due October 3, 2014, as well as a Notice of Assessment from Canada Revenue Agency dated July 2, 2014 in the name of the accused showing arrears of taxes owing in the sum of $12,791.67.
[37] A search of the accused’s vehicle disclosed of number of other tax related documents and documents related to the sale of her former residence.
[38] Police conducted a search under warrant of the accused’s residence on October 1, 2014. In a cabinet drawer in a bedroom closet police found a plastic Brinks bag with two additional Brinks bags stuffed inside it. The Brinks bags bore serial numbers AA14164564, AA14164565 and AA14164566. One of the bags contained a two dollar coin.
[39] Located beside the three Brinks bags was a decorative cardboard box with the word “Infinity” printed on it. When the lid of the box was opened there was a cloth laying on top, below which was found several stacks of Canadian currency, comprising a stack of $100 bills, a stack of $50 bills, four stacks of $20 bills and a stack of mixed bills comprised of $5, $10 and possibly $20 bills. Police counted the stacks of bills which revealed the following:
One stack of $100 bills - $ 8,900 One stack of $50 bills - $ 6,750 Four stacks of $20 bills - $ 4,480
- $ 2,260
- $ 1,000
- $ 4,160 One stack of mixed bills - $ 110 Total (including $2.00 coin) - $27,962
[40] Detective Westmorland carried out a comparison of the denominations of currency alleged to have been stolen from the bookstore and the denominations of currency seized from the accused incident to her arrest and from her residence under warrant. He found that for each denomination of bills, other than $100 bills, a fewer number was recovered from the accused than had been stolen. He also found that the same number (89) of $100 bills was recovered as had been alleged to have been stolen.
[41] The total amount alleged to be stolen was $31,298.20 comprised of three deposits – Sept. 8 ($82.00), Sept. 11 ($18,677.10) and Sept. 12 ($12,539.10). The total amount seized from the accused was the sum of $28,260.35. The data respecting the deposits was obtained from the RBC deposit slips and the Brinks logbook in respect of the September 8 and 11 deposits and the bookstore spreadsheet entitled “Cash Count 09-12-14 Reg Deposit”.
[42] The amounts of the missing deposits derived from these sources matched the amounts set forth in the accused’s written statement of September 16, 2014.
[43] The Crown entered into evidence, on consent of the defence, two excerpts from the surveillance video from the hallway outside the cash office at the bookstore for September 15, 2014. The first excerpt, from 14:36:17 hr. to 14:38:25 hr., depicted the location of the accused’s personal bags/purses on top of a cabinet in the cash office, observed through the door. The second excerpt, from 16:30:40 hr. to 16:30:48 hr., depicted the accused leaving the cash office at the end of her shift carrying a purse and a large bag which the Crown alleged may have been capable of carrying three Brinks deposit bags.
Evidence Of The Accused
[44] The accused confirmed that when Ms. Chilton left work at 1:00 p.m. on Friday, September 12, she left the cash deposit from the September 11 sales for her to verify. She stated that since Brinks had already been there that day she did not verify the deposit that afternoon as it was not a priority. Brinks would not be returning until Monday. She stated that she put the deposit from September 11 into a Brinks bag and placed it into the top safe.
[45] The accused learned at 9:00 a.m. on Monday, September 15 that Ms. Chilton would not be in that day. She stated that she began the tasks that Ms. Chilton would normally have performed, and started on the deposit for receipts from Friday, September 12. When Brinks arrived sometime between 10:30 a.m. and 11:30 a.m. she was still working on the September 12 deposit and she therefore turned them away as there were no deposits ready for pickup. She had still not verified the deposit from September 11 which Ms. Chilton had left for verification on the previous Friday.
[46] After completing the deposit from September 12 the accused proceeded to verify the deposit from September 11 and sealed and bagged it. Since the deposit for September 12 exceeded $5,000 it still required verification by Ms. Chilton. The accused stated that she attempted to put the deposits in the top safe. As she thought that Follett may have departed, she decided to check if the bottom safe could be utilized. She learned from Mary Andraza that Follett had completed its operations and the bottom safe was available for use. While she was placing the deposits from September 11 and 12 in the bottom safe she noticed that there was a small deposit in the sum of $82.00 that Ms. Chilton had completed and she did not realize was there. The bottom safe therefore had three deposits in it, the deposit from September 11 which she had verified and sealed, the deposit from September 12 which was unsealed as it required verification, and the small deposit in the sum of $82.00 which had been sealed. The accused stated that she closed the bottom safe and half-locked it.
[47] She recalled then taking her lunch and afterwards working the security gate door for an hour commencing at 3:00 p.m.. She stated that she had not commenced counting the receipts from Saturday, September 13 before the end of her shift.
[48] The accused testified that she kept her purse and bag on top of the cabinet which was depicted in the first excerpt from the surveillance video introduced by the Crown, viewed through the door to the cash office. She stated that she had a lot of personal paperwork in the bag, as she had just recently moved. She also used the bag for bringing her lunch, shoes, coat and anything else that she needed.
[49] The accused testified that she left the cash office on September 15 at approximately 4:30 p.m., as depicted in the second video excerpt, carrying her purse and bag. Prior to leaving she fully locked both safes. She denied that the Brinks bags were in the purse or bag that she carried out of the cash office that day and specifically denied taking home the three deposits that she testified she had placed in the bottom safe.
[50] The accused testified that upon Ms. Chilton’s arrival at 9:00 a.m. on Tuesday, September 16 she told Ms. Chilton that there was a deposit in the bottom safe that needed to be verified. She said that she gave this instruction as Ms. Chilton would not have known that the bottom safe was free to be utilized. When Ms. Chilton opened the bottom safe she asked the accused if she was sure she put the money there, which she confirmed, whereupon Ms. Chilton advised that the money was not there. The two of them searched the office and then went to report the missing deposits to Ms. Da Costa.
[51] In her testimony, the accused acknowledged that the three plastic Brinks bags which she had placed in the bottom safe containing the deposits were found in her bedroom closet. She explained that on September 26, being the Friday before her home was searched by police, she had occasion to pull two bankers’ boxes, stacked on top of each other, out from under a work surface in the cash office in order to access the contents consisting of stored sales summaries. When she pulled the boxes out she found the three missing Brinks bags behind them. She recognized them as the missing deposit bags from looking at the numbers and seeing her handwriting on them. She had no doubt that they were the Brinks bags that had gone missing.
[52] The accused testified that she panicked upon finding the missing bags. She felt that her finding them in her office was not a good situation. She thought that, because the money was no longer in the bags and she was the one who had located them, she would be considered the “prime target”. She made the decision at that point to take the bags home.
[53] The accused testified that she decided not to report the finding to Ms. Da Costa because she did not feel that she would be believed. She stated:
“at this point I didn’t feel like she would’ve believed me if I had even come with her to the - I said I found the empty bags. She would have said where’s the money? Or I felt she would’ve said that. I didn’t know what she would say.”
[54] When asked, the accused responded that it did not occur to her to leave the bags where they were. She decided to take the bags home “to think about how I was going to handle the situation. What I was going to do about it.”
[55] The accused testified that she did not bring the bags back to work on the following Monday “because by that point I felt I had now created another situation...that I had to now say that I had found the bags on Friday and I brought them back on Monday and where had they been?”
[56] The accused further testified that she did not consider destroying the bags “because I felt at some point I was going to have to present this back and I didn’t want to destroy it” and that “I knew it was evidence so I didn’t want to destroy it.” She confirmed that she was afraid to present the bags when she found them because “I felt like I would be suspected as the guilty party.”
[57] The accused testified that when the deposits were initially discovered to be missing she had searched in the location behind the boxes at least three times. She also said that Ms. Chilton was “in and out of there all the time” and therefore could not imagine that she had not searched there as well. She stated that during the search “everybody is looking everywhere” and that anyone else would have pulled those boxes out during the search, and certainly she had done so in the others’ presence. On the basis of this she stated that the bags had not been in that location on September 16.
[58] The accused stated that prior to the search of her home on October 1, she had not told anyone that she had found the bags. She never came up with a plan for how she intended to deal with the bags because she was arrested before she could do so.
[59] The accused then testified with respect to the presence of the currency which was discovered by the police in her bedroom closet during their search under warrant on October 1, 2014.
[60] The accused acknowledged in her testimony that the police located almost $28,000 in a box in her closet, although she did not know “exactly” how much was there. She stated that she put the money there over a period of “probably six or seven years.”
[61] The accused explained that, prior to moving to the home in Elmira, she had been married. She and her husband had a joint bank account into which both of their paycheques were deposited. The joint account was their only bank account. She stated that her husband had the only bank card to access the account and, in order for her to have money, her husband would withdraw cash from the account and give it to her. She would use what she needed to buy gas, groceries and other things and whatever was remaining “went into the box.” She stated that she used it as a way of saving. She stated that her ex-husband was a “spender.” She felt that if the money was not in the box it would be spent by her husband.
[62] The accused said that she never disclosed to her husband when she had money left over from the previous week, explaining that if she did so he would not give her any more money but “it would still get spent, so I felt I was saving.”
[63] With reference to her ex-husband being a “spender”, she stated that although the condition of their finances would vary from week to week, their bank account was overdrawn “pretty well every month”. She stated that she did not put the excess funds that she had received from her husband back into the bank “because I felt a sense of security I guess in having the cash on hand.”
[64] On cross-examination the accused stated that her ex-husband “might have known I was saving [the money]. Like he wasn’t asking me how I was spending it.”
[65] The accused denied that she was saving the money for anything in particular. She stated that on a weekly basis “$200 could go in, some weeks more, some weeks less.” She said that she did not keep the money in a bin in the basement with the intention of keeping her husband from finding it. She stated that she was not intending to hide the cash but was trying to save it. She stated “I’m not trying to hide it from him, it’s not some big secret. I mean if he wanted to figure it out, if he wanted to ask me where the money was, he could’ve asked me and said I was saving it.”
[66] The accused testified that, although she repeatedly put cash into the box for six or seven years, she never counted it. She stated that she only derived a sense of how much it was building up to right before she moved following the breakup of her marriage as she was packing her belongings to put into storage. At that time she transferred the money from a bin in the basement where she also stored canning supplies into the “Infinity” box. The box full of money was put into storage with the rest of her belongings.
[67] The accused confirmed that she never told her ex-husband about the cash she was storing in the bin.
[68] When asked if she did anything with the money when she was preparing to move, besides putting it into a different box to put it into storage, she responded “I may have sorted it but I don’t recall doing anything else with it.” When asked if she remembered separating it out into denominations she responded “no, but when I moved in I may have done that… or when I was packing it up, I don’t know. I may have.”
[69] The accused confirmed that she never counted the money but when she was handling it she got a rough sense of how much there was, believing that it comprised between $18,000 and $20,000.
[70] She acknowledged that she “probably” put elastic bands around the bundles of $20 bills depicted in the police photo entered into evidence.
[71] The accused stated that she never discontinued her practice of putting cash away in the box prior to her being arrested. She stated that she “was still doing the same practice of withdrawing money and if I didn’t spend it all, I was saving it.”
[72] Notwithstanding that by the winter of 2014 she had separated from her husband, and by March of that year she had her own bank account and no longer had to worry about her husband’s spending habits, she continued her previous practice of withdrawing cash from her bank account and putting it in the box. She stated “I wouldn’t say I had a concern about it but it was just how I saved money. I would generally take out cash to do whatever I needed to do with it, and whatever was left I would save as cash. I wouldn’t deposit it back in.”
[73] When asked why she did not deposit the large sum of cash in her bank account to which she had exclusive access to, she stated “it was a practice I was used to. I always had cash. I was used to saving cash in that manner. So it was just something I continued to do.”
[74] On cross-examination the accused testified that, during the period of her employment with Wilfrid Laurier University until the spring of 2014, she never filed income tax returns because she expected that the appropriate amount of taxes were being deducted by her employer. She testified that she filed a return for the 2013 year in the Spring of 2014 as a result of her marital separation. Following the filing of her 2013 tax return, she learned that she owed approximately $12,000 in unpaid taxes for three tax years. She attributed this to her employer not deducting the appropriate amount for income tax.
[75] The accused maintained that the three missing deposit bags would not have been able to fit into the bag that she was depicted on the video carrying when she left the cash office, which she agreed could be described as a “very large kind of duffel bag”. She explained that the bags would not have been able to fit with the “amount of stuff that I was carrying around in that black bag”. She stated that this “stuff” comprised all of the documentation relating to the sale of the house she had owned with her husband at the end of June and the purchase of her house at the end of July. She said that she also had all of her tax documentation in the bag.
[76] The accused explained that she travelled about with this documentation because she had recently moved and had not unpacked and it constituted documentation “that I may have had to refer back to that I wanted to keep with me.”
[77] The accused stated that the contents of the bag were “mostly” paper but her lunch would have been in there and that “I may have had a pair of shoes, a jacket, several things in there.” She denied that three Brinks bags with money could have possibly fit in the duffel bag stating “a Brinks bag full of money is large.”
[78] The accused initially stated that she travelled with the duffel bag on a daily basis to work and that this continued until the time that she no longer worked at the bookstore. However, when asked whether she had the bag with her on the date of her arrest she responded “ I may not have no”. She agreed that the same documents that she said she carried with her in the bag were found loose in the trunk of her car on her arrest. She stated “they could have fallen out of the bag”. When what was suggested that they never were in the bag to begin with she responded “I don’t recall saying that I carried that bag with me every single day.”
[79] When asked if she still has the duffel bag the accused responded that she got rid of it because she had left an apple in it which had become rotten.
[80] When Crown counsel asked the accused to agree that the three plastic bags with all of the cash is found in the box in her house would fit into her bag if it was empty, the accused responded “I would not agree. I have no idea if they would have fit in or they would not fit in that bag. They were not in the bag so I don’t know if they would have fit.” She added “I don’t believe they would have fit in the bag. That was my evidence” and “I don’t believe it could have fit in there.”
[81] The accused stated that in the period between the sale of the former matrimonial home at the end of June and the purchase of her new home at the end of July she was living with her sister during the week and with her mother on the weekend. She stated that she felt that a storage facility “was the most secure place I could put [the cash] at the time, besides the bank, which I did not choose to do.” When asked why she chose not to put the money in the bank she stated “because I did not choose to do that… I had saved in cash and I continued to save in cash. That is what I did. I had always saved cash back from when I was a child, that’s what I did.”
Analysis
[82] This case falls to be decided on the principles laid down by the Supreme Court of Canada in W. (D.) as set forth above. I will repeat those principles again. If I believe the accused’s evidence that she did not commit the offences alleged against her, I must acquit her. Even if I do not believe the accused I must acquit her if her evidence leaves me with a reasonable doubt. Even if the accused’s evidence does not raise a reasonable doubt, I must only convict her if the rest of the evidence that I do accept persuades me of her guilt beyond a reasonable doubt.
[83] The accused acknowledged that the three empty Brinks bags, in which the deposits comprising a total of $31,298.20 had been placed, were found by police in her bedroom closet. She acknowledged that the bags were found in close proximity to stacks of Canadian currency, sorted into denominations, with some stacks secured by elastic bands, comprising $27,962.00. She also acknowledged that she was working alone in the cash office at the bookstore on September 15, 2014. She stated that she had placed the three deposits in the lower safe and had locked the safe fully by turning the combination before leaving her workstation at 4:30 p.m., making her the last person to have touched the cash deposits before they were secured in the safe.
[84] The accused testified that the currency found in her closet comprised cash savings that she had accumulated for six or seven years from excess cash that her ex-husband had withdrawn from their joint chequing account to give to her for day-to-day purchases. She stated that she kept unspent cash she had received from her ex-husband on a weekly basis in a bin in the basement of their home as a way of saving. She said she did this because of her ex-husband’s spending habits. She wanted to make sure that she had money on hand, as the joint account that she shared with him was always overdrawn at the end of the month.
[85] She stated that she never counted the money over the six or seven years that it was building up, even when she “may have” sorted the money into denominations when she was either preparing to put the money into a storage facility after the sale of the former matrimonial home, or after retrieving the money from storage following the purchase of her new home. She only derived a “rough sense” of the amount that she had accumulated as she was packing her belongings to put into storage. She thought that it amounted to $18,000-$20,000.
[86] The accused testified that following her marital separation and the setting up of her own bank account, thereby eliminating any concern regarding her ex-husband’s spending habits, she not only chose not to deposit any of the cash into her bank account for safekeeping and to earn interest, she continued to withdraw cash from her bank account for spending money and to put excess cash into the box in the closet, only to go back to the bank to withdraw more cash the following week.
[87] The accused testified that she found the three empty Brinks bags ten days after the three deposits were discovered to be missing, in the cash office behind two bankers’ boxes. She stated that, instead of reporting her find to her superior Ms. Da Costa, she “panicked” and took the bags to her home, placing them in the drawer in her closet right beside the cash. She said she panicked because she thought that if she reported finding the bags to Ms. Da Costa she would be considered the prime suspect in the theft of the deposits. She did not think to leave the bags where they were, and she did not consider destroying the bags because they constituted evidence. She testified that she, Ms. Chilton and others had searched in the area where she found the bags and they were not there, leading to the necessary inference from her rendition that the true perpetrator of the theft, or someone who had obtained possession of the bags through that person, must have, for some unknown reason, re-entered the cash room, past the surveillance camera, and placed the empty bags behind the boxes sometime between September 16 and September 26, 2014.
[88] On the first branch of the W. (D.) analysis, I do not believe the evidence of the accused with respect to how either the currency in excess of $27,000 or the empty Brinks bags came to be in found in close proximity to one another in a drawer in the bedroom closet of her home on October 1, 2014. I disbelieve and reject her evidence on these issues because it is inherently implausible, it defies logic and common sense, and contains incredible coincidences. The following implausible conclusions or inferences, and coincidences, which may be considered cumulatively, are noted:
(a) it is implausible that a graduate from the Office Administrative Executive course, with multiple years of work experience performing accounting functions including bank reconciliations, would deliberately choose to forego the use of a bank to save substantial amounts of money, and would accumulate in a bin and then a shoebox an amount that she believed to be $18,000-$20,000;
(b) it is implausible that a person in the position of the accused, who professed to be concerned about her financial security and who did not trust her husband not to spend excessively, would for six or seven years not choose to maintain her own bank account which would permit her to control the use of her own earnings;
(c) it is implausible that once the risk of her husband overspending and jeopardizing her financial security was eliminated upon the marital separation and the opening of her own bank account, the accused would not only leave the cash, which she believed to be up to $20,000, in a bin and not deposit it in her bank account to which she had the sole access, but would continue to add to it by-weekly by means of cash withdrawals from her bank account;
(d) it is implausible that a person with the accused’s education and experience in financial matters would expose her life savings to the risk of loss by putting it in a storage facility for one month;
(e) it is implausible that the accused, who professed such concern for her financial security in light of her husband’s excessive spending and a desire to build up her own personal nest egg, would save substantial cash in a bin or box for six or seven years and would not once during that period count the money to determine the extent of her savings;
(f) it is implausible that the accused would go to the trouble of sorting and stacking the bills in denominations, and placing elastic bands around some of the stacks, without counting the money;
(g) it is implausible and an incredible coincidence that the accused would find the three missing Brinks bags in the cash office in an area that the accused and her coworkers had thoroughly searched on September 16, for which the only possible explanation, on the accused’s version, would be that the true perpetrator of the theft, or someone who had obtained possession of the bags through that person, must have, for some unknown reason, re-entered the cash room, past the surveillance camera, and into the cash office undetected, placing the empty bags behind the boxes for some unknown reason;
(h) it is implausible that the accused would not go to her superior to report finding the empty Brinks bags for fear that she would be targeted as a suspect, when she had no such reticence in reporting the missing deposits on September 16, notwithstanding that she was the only finance operations assistant on duty the previous day and was the person having responsibility for locking the safe;
(i) it is implausible and a coincidence that the accused would not only choose to take the Brinks bags home and take them upstairs to her bedroom but she would place them in a drawer in her bedroom closet directly beside the cash which she had earlier sorted and stacked into denominations;
(j) it is an incredible coincidence that the number of $100 bills which the accused said she saved over a 6 to 7 year period matched exactly the number of $100 bills which were reported missing from the bookstore’s deposits, and for each of the other denominations of bills, a fewer number was recovered from the accused than had been reported missing.
[89] The Crown did not lead evidence directly contradicting the accused’s story respecting how the currency and the Brinks bags found their way into her bedroom closet. No such evidence could be expected, as the accused’s actions which she described were entirely solitary on her part and there is no one who would be in a position to contradict her story. Notwithstanding this I am in a position to reject the accused’s evidence on the basis of its inherently implausible nature, and its defiance of logic and common sense, as was done in the case of R. v. D. (D.A.), 2014 ONSC 3254 (S.C.J.). At para. 48 of that case, Aitken, J. stated:
[The accused] was under no obligation to explain his behaviour or, in fact, to explain anything; but having chosen to testify, the inherent inconsistencies in his testimony, and the affront to logic and common sense contained in much of his evidence resulted in my not accepting his evidence on many points at issue, and in his evidence not raising a reasonable doubt about the essential elements of any of the offences.
[90] Although I am able to and do disbelieve the accused’s story due to its inherent implausibility, I also find that the manner in which the accused testified also contributed to her lack of credibility. She was often argumentative, defensive and evasive in cross-examination and advanced and maintained positions which made little sense. For example, not only did she maintain that it would have been impossible to fit the three Brinks bags into her duffel bag with all of the papers that she said she carried around in it, she went beyond that to assert that the three bags would not have been able to fit in her bag even if it were empty. The three Brinks bags were marked as exhibits and they measure 12 inches high by 9 ½ inches wide and can be extended, when empty, to a maximum depth of 8 inches at their widest point. On the video the depth of the bag which the accused was depicted carrying appeared to extend from her hip to just above her knee. The length of the bag appeared to be at least equal to or longer than its depth, and to be several inches thick. It should also be recalled that one of the three Brinks bags contained only $82.00.
[91] It is, of course, important to recall that a trier’s subjective perception of demeanour can be a notoriously unreliable predictor of the accuracy of the evidence given by a witness and accordingly, demeanour evidence alone cannot suffice to found a finding of guilt (see R. v. M. (S.), 2012 ONSC 4686 (S.C.J.), per Hill, J. at para. 74, and the authorities therein cited).
[92] The implausibility of the accused’s story, its defiance of logic and common sense and the coincidences upon which it rests, combined with the unsatisfactory manner in which she gave evidence at some important points in her testimony, leads me to reject the accused’s explanation for the presence of the Brinks bags and currency in her bedroom closet, and her denial that she removed the Brinks bags containing the cash from the cash office of the bookstore.
[93] Turning to the second step in the W. (D.) analysis, I also find that the accused’s evidence does not leave me with a reasonable doubt. As indicated above, reasonable doubt is not far-fetched or frivolous doubt. It is doubt based on reason and common sense and which logically arises from the evidence or lack of evidence led at trial. I find that the accused’s evidence is far-fetched, due to its inherent implausibility and the coincidences upon which it relies.
[94] As indicated above, defence counsel acknowledged that, in the event that the application of first two steps in the W. (D.) analysis do not result in acquittal, the Crown has, on the evidence, satisfied the onus on it of proving the accused’s guilt beyond a reasonable doubt, at the third step.
[95] The evidence of the Crown was entirely circumstantial. No one gave direct evidence of observing the accused stealing the money. The accused did have the opportunity, albeit not the exclusive opportunity, to carry out the theft through her position as the only financial operations assistant on duty at the bookstore on September 15 with responsibility for the safekeeping of the cash and locking the safes at the end of her shift. The only reasonable inference that may be drawn from the discovery of the missing Brinks bags and $27,962 in stacked Canadian currency in her bedroom closet, with exactly the same number of $100 bills as the number of $100 bills which were missing from the bookstore’s deposits, and a fewer number of each of the other denominations of bills having been recovered from the accused’s closet than had been reported missing, is that the accused stole the three deposit bags containing $31,298.20 in Canadian currency from the Wilfred Laurier University bookstore on or about September 15, 2014.
Disposition
[96] For these reasons I find the accused guilty of both counts in the indictment.
D.A. Broad, J.