DATE: 20010510
DOCKET: C33338
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) v. MARIO BRUM (Appellant)
BEFORE: WEILER, AUSTIN and BORINS JJ.A.
COUNSEL: Cydney G. Israel, for the appellant
Erika Chosik, for the respondent
HEARD: May 8, 2001
On appeal from the conviction imposed by Justice John R.R. Jennings, sitting without a jury, dated September 24, 1999 and from the sentence imposed by Jennings J. dated December 20, 1999.
O R A L E N D O R S E M E N T
[1] The appellant was a Loomis Armoured Car Service employee. He was convicted of theft contrary to s. 334 of the Criminal Code for stealing $62,960 in $20 bills and $34,252.01 in deposited cash and cheques from a Toronto Dominion Automated Banking Machine (“ABM”). The ABM was broken into at 1:00 a.m. by means of an “inside job” using two combinations, an upper and a lower, to the machine. No one was scheduled to service the ABM at the time of the break-in.
[2] Ms. Wright, an employee of Loomis, identified the appellant as the person shown by the surveillance camera from having worked with him over two years. The man in the surveillance video obscured his face with a baseball cap. A baseball cap that was similar to the one used in the theft was seized from the appellant’s bedroom, along with forty‑four $20 bills in new condition. A round-headed crowbar similar to one that the perpetrator had at the scene was found in the appellant’s shed.
[3] Central to the Crown’s case was that the perpetrator had to know both the upper and lower combinations to the machine. To that end, Exhibit 12 was introduced. It shows that Holder Type refers to the usual combination held by the Loomis employees. The appellant is usually an upper combination holder. The exhibit also shows that on December 17, nine days before the theft, the appellant received the lower combination. The combinations for the machines change every several weeks. Several other employees in a seven-week period may have had both combinations. What Exhibit 12 did not show was that the appellant had received both combinations on that day.
[4] No defence was presented in this case.
[5] The trial judge found that while none of the evidence taken on its own was sufficient to prove guilt beyond a reasonable doubt, the “totality of the evidence, however, which was not challenged, when coupled with the unchallenged evidence that Mr. Brum was (a) issued both combinations, (b) has his own PIN and (c) knew the keypad code giving him the opportunity to access the ATM, lead me irresistibly to the only conclusion that he is the thief.”
[6] The appellant submits that the trial judge erred in relying on the incorrect fact that both combinations were issued to the appellant. At p. 87 of the transcript, the Crown told the trial judge that Exhibit 12 looks like the appellant may have received both combinations but it does not prove that. Further documentation was required. Despite the efforts of the Crown, that documentation was never produced by Loomis. The appellant submits that we do not know how the trial judge would have decided this case if he had not misapprehended the evidence respecting Exhibit 12. We agree.
[7] The appeal is allowed, the conviction and the restitution orders are set aside and a new trial is ordered.
Signed: “Karen M. Weiler J.A.”
“Austin J.A.”
“S. Borins J.A.”