COURT FILE No.: Toronto Region

Citation: R. v. Jackson, 2012 ONCJ 38

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

M. Savage,

for the Crown

— AND —

JEREMIAH JACKSON

M. Bornfreund,

for the accused

HEARD: November 7, 2011, January 5, 27, 2012,

FELDMAN J.:

[1] Jeremiah Jackson entered not guilty pleas to three counts of Fraud under $5000 and one count of Fraudulent Use of a Credit Card. It is alleged that while employed as a cashier at Wal-Mart, he worked in concert with others in permitting them to purchase gift cards with fraudulent credit cards.

Agreed Statement of Facts

[2] Both counsel are agreed that on May 13, 2010, ten fraudulent transactions were either attempted or completed at Mr. Jackson’s cash register between 8:49-10:28 p.m. Seven transactions involved 3 co-accused. On May 15, four transactions were attempted or completed by unknown suspects. The authorized card holders for the credit card numbers on those cards did not authorize those transactions.

[3] On May 13, at 8:49-8:51 p.m., the defendant’s former co-accused, Ray Moses, completed two transactions worth $68.53 and $400.00, respectively, with him.

[4] Mr. Moses earlier pled guilty to one count of Fraud under $5000 and one of Possession of Property Obtained by Crime. The Crown is seeking a 3-month sentence for Mr. Moses, who is a witness at this proceeding.

[5] At 8:04 and 8:05 p.m., a second former co-accused, Javan Archer-Lyons completed two fraudulent transactions of $155.86 and $850.00 with the defendant. Mr. Archer-Lyons entered a guilty plea to one count of Fraud under $5000 and received a 6-month conditional sentence.

[6] At 8:10, 8:11 and 8:12 p.m. a third co-accused, Chantelle Frederick, completed one fraudulent transaction with the defendant for $84.02, but had two others declined. Her charges were withdrawn.

[7] The remaining transactions, some of which were declined on either May 13 or 15, were conducted as between the defendant and unknown persons. All of the transactions are set out in Exhibit 1, the Agreed Statement of Facts.

[8] During an incomplete transaction on May 15, at 6:43 p.m., involving an unknown person, a fraudulent credit card recovered by Thadshaini Kanageshwaran, a customer service manager who was assisting the defendant in activating a gift card, was the same card relied on previously at 6:39 p.m. by Mr. Jackson in completing that transaction.

[9] On June 3, 2010, Mr. Jackson was arrested at work. Police took his Blackberry Smartphone from him. While the defendant was in custody at the police station, his Blackberry received a ‘pin’ message at 4:00 p.m. from Mr. Moses that read, “we’re coming wua time you done 5:30?”

[10] Between 5:05 and 6:00 p.m., Moses, Archer-Lyons and Frederick arrived together at Wal-Mart intending to use fraudulent credit cards. They were all arrested between 6:00 and 6:10 p.m. At the time of their arrests, Mr. Archer-Lyons was in possession of two fraudulent credit cards, Ms. Frederick only one. Mr. Moses was found in possession of someone else’s tax refund cheque.

The Evidence of Ray Moses

[11] Ray Moses has a significant criminal record, set out in Exhibit 6, that includes property offences, attempted robbery during which he used an imitation firearm, a number of failures to comply with probation or court orders and numerous driving while under suspension findings, in addition to making a false statement under the Highway Traffic Act. These reflect on his general credibility, as does his explanation why he was walking around with someone else’s tax refund in his pocket having suggested to the court that he had no intention of negotiating it.

[12] There is no issue here that his evidence is that of an accomplice.

[13] Mr. Moses testified that his role in the scheme was to recruit people and supply them with fraudulent credit cards to be used to purchase mainly gift cards from Wal-Mart. He says he obtained the cards from a friend of the accused in the Wal-Mart parking lot on the day matters were arranged and he sent his people in to deal only with the defendant at his cash register. He described the cards as looking phony in the sense of being poorly printed with the face colouring seemingly off and the wording on the back not appearing legitimate. He says he has spoken to the accused directly once or twice about these arrangements. He claims also to have spoken to the accused in 2009 in the shared parking lot of the adjoining apartment buildings on York Mills where they both lived at the time.

[14] Mr. Moses indicated that messaging between he and Mr. Jackson allowed him to describe the recruits, while the defendant would have messaged him earlier about the time of his shift, what he was wearing and the till number.

[15] Mr. Moses told the court that he instructed his recruits to purchase a gift card of no more than $4-500 as the accused had informed him that anything higher would require the attention of a manager to enter a certain password into the system. This was confirmed by Ms. Kanageshwaran.

[16] Once obtained, the cards were used at other Wal-Mart locations to purchase items, often electronics, that could be sold and the money divided up. This is confirmed by video surveillance evidence that on May 13 at another Wal-Mart store, Moses, Archer-Lyons, Frederick and one Anthony used their gift cards to purchase goods.

[17] Mr. Moses testified that on June 3, when he and his recruited co-accused were arrested, he had earlier messaged the accused to learn the time of his shift and to ask if it would be alright if they cashed out from the proceeds and if he himself took $200. He claimed the accused approved his request. It was on this date that his message to Mr. Jackson, referred to earlier, was found by the police on the defendant’s Blackberry following his arrest.

The Evidence of Thadshaini Kanageshwaran

[18] Ms. Kanageshwaran told the court it is Wal-Mart’s policy and part of the training of staff that for every credit card purchase over $100, cashiers are to ask customers for a piece of identification, to check the card’s expiry date and to determine whether the name and signature on the driver’s license matches that on the credit card. She says all staff is trained to identify fraudulent credit cards.

[19] On May 15, she recalls being called over by Mr. Jackson to help him activate a gift card as he was having trouble with one of the action codes that are ordinarily written down and attached to the cash registers for that purpose. The defendant had not yet asked the customer for the method of payment.

[20] Ms. Kanageshwaran asked the unknown customer how he intended to pay. He told her he wished to use a credit card to purchase a $400 gift card. She obtained his credit card. She then asked for his driver’s license. He said he had to return to his car to get it and left, but failed to return.

[21] Ms. Kanageshwaran could tell by looking at it that the credit card was fraudulent. The name was typed over the digits. She kept the card.

[22] A surveillance video captured this sequence at 6:43 p.m. The unknown customer had completed a transaction using this card at 6:39 p.m., but the flap over the action code after that and the flight of the suspect left the subsequent transaction incomplete.

[23] It is clear from the video that the accused stood beside Ms. Kanageshwaran and initially took the credit card from the customer, but that the manager retrieved it from him in order to attempt to complete the transaction. What is significant is that the accused, in his evidence, admitted looking at the fraudulent card.

The Evidence of Jeremiah Jackson

[24] Mr. Jackson was 19 years old at the time of these events. He had been working at Wal-Mart for only 2 weeks. May 13 was his first shift in the express lane. He says he doesn’t know any of the recruits. He denies knowing Ray Moses, although he agrees he lived for a time in one of the adjoining apartment buildings on York Mills Rd. referred to by Mr. Moses. He cannot explain the fact or understand the content of Moses’ Blackberry message to him on June 3, but says he accepted his pin as he thought it might be a girl from a broadcast message sent to him by one of his friends.

[25] Mr. Jackson believes it coincidental that on his first shift on May 13, five people obtained significant funds from him using fraudulent cards. He says implausibly that the first credit card used, one that he admitted looking at, was not obviously counterfeit, despite having been trained by Wal-Mart to spot such cards, and notwithstanding it was impossible to read the numbers on the front of it. He claims not to have had his suspicions raised that day by the purchase of multiple gift cards for significant funds, indicating self-servingly, but in my view of the evidence, unlikely, that this was common in his brief experience.

[26] It is a significant fact apparent on the video that never once did the defendant ask for identification in relation to all of the fraudulent credit card transactions and despite the problems he had in completing a portion of them. For example, as noted earlier, the May 15 transactions at 6:39 and 6:43 p.m. involved use of the same fraudulent credit card on which the name was illegible, which meant that there was no basis upon which to match the customer’s identification. Implausibly, the defendant testified that while he looked at the card, he did not think it was fraudulent

[27] In all of these cases, the generally high value of the gift cards purchased did not appear to generate an interest in the defendant to ask for identification. In fact, he said that the policy of asking for identification was discretionary, a position neither adopted nor encouraged by Ms. Kanageshwaran. Importantly, it was a strange exercise of discretion to be taken by a new employee strangely coincidental with the flood of fraudulent transactions at the defendant’s till in such rapid order. This pattern of not checking identification in these circumstances raises a strong inference, perhaps the only one, that Mr. Jackson was complicit in this rush to defraud Wal-Mart.

[28] The defendant says he cannot make sense of the pin message sent by Mr. Moses, although it is consistent with the evidence of that witness that he checked with the defendant to determine whether and when he was working before sending in the recruits. In addition, Mr. Jackson can be seen typing on something around that time while standing beside the cash register. His explanation that he was using a calculator to check the tax on purchases for his own well being because he was suspicious of the cash register when it gave change and wanted to ensure it was on par falls somewhere on the believability spectrum of questionable to absurd. To suggest that this neophyte employee believed the computerized register required his manual oversight begs credulity. It is more likely a case of contrived and self-serving evidence offered as a lame answer to the inference he was messaging someone.

[29] In making findings of credibility and fact, I must weigh the evidence to determine whether or not the prosecution has met its onus to the requisite standard.

The Reasonable Doubt Standard

[30] The standard of proof beyond a reasonable doubt is bound up with the fundamental principle in criminal trials of the presumption of innocence: R. v. Lifchus (1997), 1997 CanLII 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.). This standard has been described as proof to a near certainty: R. v. Starr, 2000 SCC 40. The burden of proof rests with the prosecution throughout the trial and never shifts to the accused: R. v. Lifchus.

[31] Where credibility is important, as in this case, the Supreme Court of Canada requires that the rule of reasonable doubt be applied to that issue: R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397. There, Cory J. directed that the trial judge must acquit if the evidence of the accused is believed or if he or she is left in reasonable doubt by it, even if the judge does not believe that evidence. Even if he is not left in reasonable doubt by the evidence of the accused, the judge must ask him or herself whether he is convinced beyond a reasonable doubt of the guilt of the accused on the balance of the evidence which he or she does accept.

Findings of Credibility and Fact

[32] Mr. Moses’ general credibility is diminished by issues of character. As well, he is an accomplice to these events. Experience demonstrates that some accomplices will seek to minimize their own involvement in a crime and shift the blame to others: R. v. Anderson-Wilson, 2010 ONSC 489, [2010] O.J. No. 377 (Ont. S.C.). In this regard, while he has not yet been sentenced, he is aware of the range of sentence the prosecution will be seeking.

[33] Importantly, in Anderson-Wilson, Hill J. affirmed, at para. 67, that it may be unsafe to find guilt relying on the accomplice’s evidence unless it is independently corroborated in a material way.

[34] There are, however, aspects of this witness’s evidence that permit the inference of its objective reliability. He described a scheme in which he supplied obviously sham credit cards to those whom he recruited to purchase significant amounts of gift cards solely through the defendant where they would not be challenged and with which they would subsequently purchase items at different Wal-Mart outlets. He said he did this mostly by messaging Mr. Jackson to coordinate these activities. That it happened in this way is borne out by the evidence.

[35] The credit cards that make up exhibits 2 through 4 are obviously bogus and would be apparently so to a lay person, let alone an employee trained, as was the defendant, to spot counterfeit cards. It was certainly obvious to Ms. Kanageshwaran on May 15.

[36] On May 13 and 15, Mr. Jackson did not check the identification of any person connected to the fleet of fraudulent transactions despite clear management instructions to do so where purchases were over $100 and in relatively rapid succession, as in this case, and in a manner necessary to the success of the scheme described by Mr. Moses.

[37] Video surveillance of use of the gift cards at another Wal-Mart location on May 13 also backs up Mr. Moses’ evidence in this regard. As well, the content of his pin message to Mr. Jackson permits a strong inference that they were working in concert and points to knowledge on the part of the defendant, as Moses alleges.

[38] On a review of all the evidence, in relation to the material issues of fact pointing to a scheme, the defendant’s role in it and his knowledge that he was facilitating fraudulent transactions, I accept the evidence of Mr. Moses.

[39] By contrast, I would not rely on Mr. Jackson’s evidence. Despite being trained to spot fraudulent credit cards, the defendant said he found nothing wrong with the cards he saw and handled on May 13 that had illegible names or numbers on their front. It was similarly the case on May 15. I don’t accept that evidence.

[40] As well, the timing and content of the focused pin message from Mr. Moses permits the strong inference, perhaps the only one, that the defendant was in communication with Moses about his work schedule and that he had knowledge of the scheme. On all the evidence, I don’t accept his self-serving evidence that he thought the message was from a girl on a broadcast. In addition, in the circumstances, I reject his evidence that he was typing on a calculator while at work as absurd and contrived.

[41] Finally, on all the evidence, I don’t accept the defendant’s testimony that it was a mere coincidence that as a neophyte employee he was merely exercising his discretion in not asking for identification from any of the recruits using fraudulent credit cards in a serial manner where the purchase was above $100, contrary to a common sense store policy. I infer, rather, that he was complicit in the scheme.

Conclusion

[42] The evidence and the guilty pleas of Mr. Archer-Lyons and Mr. Moses establish the fraudulent scheme alleged by the Crown. As well, on all the evidence, I am satisfied beyond a reasonable that Mr. Jackson had knowledge of and was a central part of that scheme. His evidence does not leave me in reasonable doubt in that regard. There will be findings of guilt.

Released: January 27, 2012

Signed: “Justice L. Feldman”