Court File and Parties

Court File No.: City of Burlington 10-3918-02 Date: 2012-06-27 Ontario Court of Justice

Between: Her Majesty the Queen — and — Szabolcs Szigeti

Before: Justice Stephen D. Brown

Heard on: January 13 and April 3, 2012

Reasons for Judgment released on: June 27, 2012

Counsel:

• John Dibski, for the Crown
• Robert North, for the accused Szabolcs Szigeti

Judgment

Brown, J.:

[1] Introduction

Mr. Szigeti was charged with two counts of Possession of Stolen Mail contrary to s. 356(1)(a) of the Criminal Code alleged to have been committed on December 12, 2010. He is charged with Attila Bohm and Mark Gorcsi as co-accused on these offences but was tried alone before me, having elected to do so.

Mr. Dibski subsequently withdrew count number two, it being included in count one.

1. Issues Before the Court

[3] The sole issue to be decided in this case is whether the Crown has proven beyond a reasonable doubt that the partially covered Canada Post box containing items of mail that was found in the back of the van was there with the knowledge of Mr. Szigeti.

2. Evidence Before the Court

2.1 Evidence of Brandon Keeping

[4] Brandon Keeping is a constable with the Halton Regional Police Service and has been so employed since August 2008. On December 12, 2010 he was in a marked patrol car when he received a dispatch at approximately 10:05 p.m. directing him to an area of 434 Plains Road in Burlington regarding a suspicious van in a Tim Horton's parking lot and that a witness had seen a Canada Post mail box being moved from one vehicle to this van.

[5] He proceeded westbound on Plains Road and observed a gray minivan matching the description driving eastbound on Plains Road within a one kilometre distance east from the Tim Horton's restaurant that was his destination.

[6] He initiated a vehicle stop of the van and as he exited his cruiser and approached the van, he shone his flashlight in the rear portion of the 2000 Dodge Caravan and saw a partially covered Canada Post Office box lying on the side behind the second row of seats.

[7] He could plainly see the mailbox through the rear window and the rear drivers' side window, even though it was partially covered with a sheet.

[8] He requested the assistance of more units and had all three occupants of the van exit the vehicle and line up against a wall. The accused was the driver and owner of the van, Attila Bohm occupied the front passenger seat, and Mark Gorcsi was sitting in the seat behind the front driver's seat and that seat wasn't secured to the floor and had been moved forward six inches to one foot, presumably to accommodate the mailbox.

[9] A search of the vehicle also revealed a plastic bag full of mail envelopes located at the feet of Mark Gorcsi and later at the police station, a master key capable of opening mailboxes was found inside the sock of Attila Bohm.

[10] In cross-examination, Constable Keeping agreed that it was a very cold and snowy winter evening. He as well agreed that he was looking for a Canada Post mailbox because of the information that he received from his dispatcher and that in his notes he stated that the mailbox was "covered" with a sheet although he testified that it was one half to three quarters covered with the sheet and he was still able to see the colours of the red and grey that is the colour of post office boxes.

2.2 Evidence of Tim Nichols

[11] Tim Nichols is a detective constable with the Halton Regional Police and has been with that service for 22 years.

[12] On consent, a summary of the contents of the bag and the mailbox was entered as Exhibit 4. It shows that several companies in Mississauga mailed company cheques by depositing them in mailboxes close the companies' businesses on December 9th and 10th, 2010. The mailbox was stolen from the Toronto area.

[13] These cheques totalled in excess of 1.7 million dollars in Canadian funds and another approximately $159,000 in U.S. funds. Many of the cheques that were found in the bag were not in their original envelopes but had been switched to new envelopes and readdressed to the same addressees.

[14] A DVD security video was entered as Exhibit 5 which shows a van that is identical to the van of Mr. Szigeti, including a burnt out tail light, stopping at a mailbox that was one of the mailboxes into which the cheques were deposited. The license plate is not visible but in all other respects the van is identical to the one operated by the accused when stopped by Constable Keeping.

[15] It shows an unidentified male, who does not fit the description of the accused, getting out of the passenger side door and using a key to empty the mailbox and pass it back to someone in the van. Then some mail is passed back to the male and subsequently re-deposited into the mailbox. This security footage was taken on December 10th at 1:16 p.m.

[16] Detective Constable Nichols had been put in charge of an investigation into mailbox thefts in the summer and fall of 2010. He indicated that the mailbox found in the accused's van was a fit for the fabricated master key that was found on Mr. Bohm. He stated that Canada Post has master keys that work in a series of mailboxes in the region so that a post office worker can use maybe one or two master keys to empty mailboxes on their route. These master keys vary from region to region. He opined that one of the reasons for stealing a mailbox was to have a locksmith make a master key that would then work on a number of other mailboxes in the specific region, allowing the perpetrator to empty several mailboxes in an area with the one fabricated master key.

[17] He also stated that his investigation revealed that the people committing these thefts would only deposit company cheques that were below a level that would attract attention from the banks, and would re-deposit the larger company cheques back into the mail system so that the companies would not notice as quickly that some of their cheques had been stolen.

[18] This was consistent with the evidence in this case wherein some company cheques had been removed from the company envelopes and when found to be too large for easy deposit were then put in new envelopes and re-addressed back to the original recipients.

[19] Detective Constable Nichols indicated that Attila Bohm was suspected of being involved in organized crime and was charged with human trafficking. Mr. Gorcsi was charged as an adult but was subsequently identified quite some time after his arrest as being a youth subject to the provisions of the Youth Criminal Justice Act whom I will refer to as M.V. who was also involved in the same activities as Mr. Bohm.

[20] The human trafficking investigation was an RCMP investigation into a group of individuals who would bring young men over to Canada from Hungary, set them up with bank accounts and obtain welfare funds for them and then use their bank accounts to deposit and launder the money from the post office box thefts after the men had been deported or returned to Hungary. Both co-accused had pleaded guilty to these offences and were sentenced in other courts. Mr. Bohm has since been deported back to Hungary.

2.3 Evidence of Helen Ebeyer

[21] Helen Ebeyer was the employee of Tim Horton's who gave a statement to Constable Keeping on December 13, 2010. Her statement was admitted as evidence with the consent of the defence, although she did not testify before me.

[22] In her statement, she said that she was going to the back door to get a shovel to shovel the back area when she heard a loud bang. After a short period of time she looked out the back door and saw a black cargo van with a blue emergency light above the driver's door that was off. A man outside said that they had trouble with the van and asked her if they could leave it there overnight. She said no because the snowplough was coming.

[23] As she was closing the door, she noticed a red mailbox on the ground behind the van and also a grey minivan backed up to the rear of the black van. The rear bench seat of the grey van was on the ground next to the mailbox and she noticed other men standing around as well. She opened the door again because she knew something was wrong and she wanted to get the licence plate. She was looking at the licence plate when the man who talked to her first walked towards her while he was speaking on his cell phone seeming to pretend that he was on the phone to a tow truck. She closed the door and as she was panicking, she forgot the plate number.

[24] Another employee went out the front to try to get the plate number but by then they were pulling out of the parking lot. Ms. Ebeyer couldn't describe any of the individuals other than the man who talked with her first, whom she said was a bigger man about six feet tall with a Slovak type accent.

[25] She estimated that there were three men outside; one with the black van and two with the grey minivan which was a Ford or a Dodge make.

[26] After this evidence, the Crown closed its case.

3.0 Evidence of Szabolcs Szigeti

[27] Mr. Szigeti testified that he is 30 years of age, has been married for seven years and has three children, ages 10, 5 and 3, and lives in Hamilton with his family.

[28] He was born in Hungary and has a grade 8 education. He came to Canada in March 2009 as a refugee claimant because of systemic racism that he claims to have experienced in that country directed against the Roma.

[29] He is not working and is on welfare. He testified that he couldn't work because he doesn't speak English and he had his gall bladder removed in 2010. He has no criminal record.

[30] He said that he knew Mr. Bohm and Mr. Gorcsi from a coffee shop frequented by Hungarians and had known them for five or six months before this incident. He described them as normal friends, not the best or the worst.

[31] He knew Mr. Gorcsi by that name and not by the name that eventually surfaced after his arrest.

[32] He stated that Mr. Bohm had a dark blue van that doesn't have windows in the back. On a couple of occasions in December 2010, Mr. Bohm would ask to borrow Mr. Szigeti's van, citing mechanical difficulties with his own. On one occasion, he borrowed it for about one half of an hour and on another he borrowed it from about 9:00 a.m. or 10:00 a.m. to about 6:00 p.m. to 8:00 p.m. This last occasion was about two or three days before the arrest.

[33] He said he loaned him the van because he was a friend. He didn't charge him for its use and Mr. Bohm would bring it back with the same amount of gas that he took it with.

[34] He said that on the day of the arrest, because the weather was poor, he didn't go to the coffee shop and didn't see Bohm or Gorcsi. He did get a call from Mr. Bohm saying that they were in the ditch on the QEW and asked him to go and help them. This was about 9:00 p.m. Mr. Szigeti set off towards Toronto and when he arrived at the location of their truck, it was being pulled out by a tow truck.

[35] Mr. Bohm's van was extracted and the accused then followed him down the highway to the next exit. They got off the highway in Burlington and after a short distance they stopped the van and said that there was a wheel problem and asked the accused to drive them home. They parked the van at a Tim Horton's coffee shop on Plains Road and then told him that they had bought a fridge and they didn't want to leave the fridge in the van overnight in the cold, so they asked the accused to let them load that in the minivan and he agreed.

[36] He said that it was dark and stormy when they were transferring the "fridge" and that he didn't pay attention to it and didn't get out of his van to help them because of his recent surgery. He said the transfer took about 10 or 15 minutes and he said that any time that he did glance at it, it was covered with a blanket. He said he was unaware that Mr. Gorcsi had a shopping bag with him and didn't know that he had brought that into the minivan.

[37] In cross-examination, he stated even though he was suffering from the effects of his surgery in August and needed rest, and even though it was a terrible night for driving and it was a blizzard, he headed out to assist his friends that evening when they called.

[38] He testified that he was not operating the van when it was captured on video surveillance at the mailbox on December 10th and suggests that this must have been when he lent the van to Mr. Bohm.

[39] He testified that at no time was he aware that the item in his minivan was anything other than a fridge as the co-accused had told him.

[40] While they were loading the item into his minivan, he remained in the van fiddling with the radio and not paying attention, even though he had said to them that he wanted to get home and suggested to them that they leave the item in their van overnight.

[41] He has no explanation as to why he was going eastbound on Plains Road, essentially headed in the direction of Toronto when he was stopped by Officer Keeping. He said that he was just following directions and that he was unfamiliar with the Burlington area and had never been there before this incident.

[42] He said that when he was asked by Mr. North what it looked like, he said it was covered with a blanket. When asked when he looked back to see it, he said that he saw it in the rear view mirror that it was covered when they were lifting it.

[43] He said he didn't pay too much attention to how they lifted it and when pressed on this by the Crown, he was quite vague in his details. For instance, when he was asked if he saw it in their hands, he said that he did but he didn't remember where they were holding it. He couldn't remember if they were standing with one at each end of the fridge or one on each side of the fridge.

[44] He said that no one got into the van to slide it forward when it was placed in the van. He said that both of them moved the middle seat to make room for the fridge.

[45] When confronted with the evidence of Ms. Ebeyer that there were three men outside the van, he had no explanation for that. He said that he remained in his minivan at all times.

[46] He stated that Officer Keeping lifted up the blanket and saw the mailbox. This suggestion wasn't put to Officer Keeping in cross-examination and he clearly stated that he saw the mailbox as he looked in the window without the necessity of having to lift it up.

4.0 Analysis

[47] As stated by Hill J. in R. v. McIntosh at paragraph 53:

Not everyone who drives or rides in a car containing concealed illegal objects necessarily knows the presence or nature of those objects: R. v. Amado, [1996] B.C.J. No. 1943 (S.C.) at para. 33. In unlawful possession cases, where the prohibited item is concealed or not readily visible in a vehicle driven by the accused, the courts have generally required more than simply evidence of the proximity of the accused and the item: R. v. Green and Rawlins (1993), 5 M.V.R. (3d) 280 (Ont. C.A.) at 281; R. v. Bauer, 2003 BCCA 138, [2003] B.C.J. No. 505 (C.A.) at para. 18; R. v. Anderson at para. 26; R. v. Iturriaga, [1993] B.C.J. No. 2901 (C.A.) at para. 9.

[48] He as well states in paragraph 43 that:

In crimes of unlawful possession, it is "not necessary for the prosecution to prove the required knowledge by direct evidence…it could be inferred from the surrounding circumstances": R. v. Aiello (1978), 38 C.C.C. (2d) 485 (Ont. C.A.) at 488; see also R. v. Anderson, [1995] B.C.J. No. 2655 (C.A.) at para. 15-16. Frequently then, such cases are proven by circumstantial evidence: see R. v. Meggo, [1998] O.J. No. 2564 (C.A.) at para. 1.

[49] Here the question remains whether the item was concealed or whether it was visible to the accused. In McIntosh, supra, the handgun and drugs were concealed in a back portion of the glove box. In the case at bar, the item takes up most of the back portion of the minivan, to such an extent that the rear seat has to be removed and the middle seat pushed forward off of its latches to make room for the item.

[50] There is evidence from the accused that he was unaware of the true nature of the item, thinking that it was a fridge as his friends had told him, and saying that at any time he did glance at the item, it was only briefly and it was covered with a blanket at all times.

[51] I am mindful of the dictates of the Supreme Court of Canada in R. v. W.D., [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397 (S.C.C.). Mr. Justice Cory, for the majority, indicated that in a case where credibility is important, the trial judge is required to instruct the jury or himself, if it is a judge alone matter, that the defendant must be acquitted if the defendant's evidence is believed. The defendant is entitled to an acquittal even if the trier of fact disbelieves his evidence, but his evidence raises a reasonable doubt with respect to his guilt. Thirdly, even if the trier of fact is left in no doubt by the evidence of the accused, the trier of fact must, nevertheless, ask himself, on the basis of the evidence which he does accept, if he is convinced beyond a reasonable doubt by that evidence of the guilt of the defendant.

[52] The burden of proof in this case, as in every criminal allegation, is upon the Crown to prove the facts in support of the guilt of the defendant on the basis of proof beyond a reasonable doubt. A reasonable doubt, as per Mr. Justice Cory's comments in R. v. Lifchus, [1997] 3 S.C.R. 320, 118 C.C.C. (3d) 1, is defined as "a doubt based on reason and common sense which must logically be based upon the evidence or lack of evidence." Alternatively, it has been defined by Mr. Justice Iacobucci of the Supreme Court of Canada in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 as "falling much closer to absolute certainty than to proof on a balance of probabilities."

[53] In assessing a witness's credibility and reliability, I must consider the witness's perception, memory and sincerity. I must consider the witness's ability to observe, store, recall and report evidence accurately, reliably, and truthfully. I must consider the witness's interest or bias, if any, including animosity. I must consider the witness's evidence in the context of its internal consistencies or inconsistencies, its consistencies or inconsistencies with other evidence from other witnesses and, finally, its consistency with reason and the probability of truth. The Court can expect discrepancies and inconsistencies from time to time. Such is the nature of our human personalities and frailties. Some inconsistencies and discrepancies have a need to be resolved and some do not. The evidence must be considered in totality as a whole. I am able to accept some, all, or none of a witness's evidence. My failure to refer to any specific witness's evidence or document filed as an exhibit, or case law cited to me, does not mean that I have not considered that evidence or law in coming to my conclusions.

[54] The assessment of evidence that is required in coming to a conclusion in this case does not involve the choosing of one witness's evidence over the other. I am not required to choose between two competing versions of events. I am able to accept or reject some, all, or none of a witness's evidence.

[55] The assessment of credibility is made somewhat more difficult by the reliance on a witness's evidence that is presented by way of agreed statement of fact, such as in this case where the evidence of Ms. Ebeyer was adduced by the statement given by her on the day after the event to Constable Keeping. As the statement was agreed to be entered as an exhibit and not through viva voce evidence, I am unable to assess the witness's demeanour or their responses to questions in cross-examination. That does not however require me to afford it lesser weight.

[56] I can still assess this witness's ability to observe and recall and to determine that they are an independent and an unbiased witness. Ms. Ebeyer had a good opportunity to observe the events, was concerned by what she saw so much so that she called the police, and otherwise was an independent and impartial witness who had never seen the accused before, could not identify him or the other co-accused and frankly admitted that in her statement.

[57] The parts of her evidence that I do accept without hesitation are that there were three men outside of the two vehicles during the transfer of the mailbox from one vehicle to the other. As well, she observed the mailbox in plain view, uncovered and located beside the seat of the grey minivan. It was apparent to her that something illegal was going on and I am certain that it would as well be apparent to any one of the three men involved in this that a Canada Post mailbox was being transferred from Mr. Bohm's vehicle to Mr. Szigeti's van.

[58] This evidence is as well consistent with Mr. Szigeti's evidence that there were only three people at the scene of the transfer in the Tim Horton's parking lot. The suggestion that maybe Ms. Ebeyer was mistaken about the number of people there or that others may have been involved in the transfer, I do not find attractive or reasonable.

[59] All of these events took place in a fluid situation. The time span between when Mr. Bohm found his vehicle to be too damaged to drive home and the stop at Tim Horton's was too short to have allowed him to elicit the assistance of others and frankly there was no need to do so.

[60] He and M.V. had no difficulty transferring the post office box from one vehicle to another and did so in the span of 10 to 15 minutes. Mr. Szigeti did not testify that any one else was present at the scene. If someone else was present and helping in the transfer of the mailbox, it would be logical to me for Mr. Szigeti to have noticed this despite his testimony that he was not paying attention and fiddling with his radio. Another individual or individuals would presumably have had to arrive by vehicle which would have been apparent in the darkened parking lot.

[61] Mr. Szigeti's version of the events leaves me with a healthy scepticism regarding his reliability. It is unlikely that he would have set out as he said he did in a blizzard relatively late at night while recovering from his gall bladder surgery. I find it odd that he did not ask when called by his friends whether they had called a tow truck and whether their vehicle was disabled. They had called from a cell phone and presumably and actually had called a tow truck because, on his evidence, the tow truck was extricating the vehicle from the ditch when he arrived.

[62] It wasn't until after driving a few kilometers that he says that his co-accused determined that their vehicle was damaged and could not be driven home. They would not have known this when they called him so what was the purpose of their call, and his lack of enquiry as to these basic questions such as why don't you call a tow truck and is your van so damaged that it can not be driven?

[63] His explanation that he did not get out of the van because he thought that the cold could cause an infection of his surgical incision defies belief.

[64] He as well seemed to recall quite well the events leading up to this incident but his memory of events became hazy when pressed by Mr. Dibski to describe the position of his co-accused as they were transferring the mailbox. In my view, he was evasive in responding to this questioning.

[65] In addition, I find that although a rudimentary attempt was made to cover the mailbox with a sheet, I accept Constable Keeping's evidence that the red and grey colours of the mailbox were clearly visible when he approached the van and looked into the rear and side windows. I accept his evidence that the mailbox was not completely covered by the sheet, even taking into account that his notes indicate that the mailbox was covered by a sheet. Covered by a sheet can mean totally or partially covered and I don't find it contradictory that Constable Keeping described in his notes that the mailbox was "covered" by a sheet, yet expanded on this in his evidence to describe it as covered yet visible to him because it wasn't totally covered.

[66] His actions in immediately calling for backup support his evidence that he saw a stolen mail box in the van occupied by three males. He was alone with three males in a blizzard and he knew that they were in possession of the mailbox that was the subject of his dispatch to that area, driving the same van that was described in the dispatch.

[67] After assessing the evidence as a whole, I reject the accused's evidence and find that it was contrived and unbelievable. On the first test in W.D., I reject his evidence. As well, on the second test, I also find that his evidence does not raise a reasonable doubt in my mind.

[68] Finally, after assessing the whole of the evidence, I do find that the Crown has proven the requisite knowledge of the accused that he was carrying a stolen Canada Post mailbox in his van on the night in question and, as such, I find him guilty of the offence as charged.

[69] That said, I have not rejected Mr. North's assertion that the accused was an unsophisticated and minor player in this event. It is clear to me that Mr. Bohm and M.V were much higher up in this hierarchy of organized crime than was Mr. Szigeti. I do however reject the defence position that the accused was an unsuspecting and unwilling dupe used by his more sophisticated co-accused to assist them in transferring a "fridge" from one vehicle to another on that evening.

[70] Had it not been for the evidence of Ms. Ebeyer which I have accepted, I may have reached the decision that Mr. North urged on me to look at his client's actions with a great deal of suspicion, but allow that it had not reached the very high standard of proof beyond a reasonable doubt.

5.0 Conclusion

[71] The accused is therefore found guilty of count one in the information.

Released: June 27, 2012

Signed: Justice Stephen D. Brown