Court File and Parties
Court File No.: Newmarket Date: 2013-10-25 Ontario Court of Justice
Between: Her Majesty the Queen — and — Bronwen Anstace Falko
Heard: October 25, 2013 Judgment: October 25, 2013
Decision
KENKEL J. (Orally):
Charges and Crown's Allegation
[1] Ms. Falko is charged with theft and possession of stolen property in relation to items taken from a Walmart store.
[2] Video and direct evidence shows that the young man Ms. Falko was with in the store stole eyeliner, a watch and infant clothing. The Crown alleges that Ms. Falko aided the thefts and was working together with the young person pursuant to a common intention to steal those items from the store. Ms. Falko testified that she was unaware of the young person's plan to steal when she agreed to drive him to the store and was not aware that he was stealing inside the store. The young person who has already pled guilty in this matter testified that the accused took no part in the theft.
Findings of Fact
[3] I've considered all of the evidence at trial as a whole and make the following findings of fact in that context.
[4] I am unable to accept the evidence of the youth witness on the central points for the following reasons:
He repeatedly stated that he had problems remembering the details of the incident. I find his recollection is weak and unreliable.
The witness lied to security about his name after arrest and lied to police about his name. He was plainly involved in this offence of dishonesty. Given those circumstances and his responses to questions at trial I do not find the young person to have been an honest witness.
His evidence regarding the theft of the eyeliner was illogical and internally contradictory. He said that he did not discuss the item with Ms. Falko before taking it but then when he was asked why he would take her eyeliner that she selected he said maybe he did ask her to help him pick something out for his sister. He was unable to answer why he put the eyeliner that was supposedly for his sister into Ms. Falko's purse. He testified he didn't want her to know he was stealing yet he put the first item he stole in her purse. He then suggested that putting stolen items in his jacket would have been too obvious but that's contrary to his actions that day where he put numerous stolen items in his jacket pockets minutes after putting the eyeliner in Ms. Falko's purse.
His evidence that Ms. Falko was not aware of and not involved in the theft of the infant clothing is contradicted by the video evidence of their actions that day. When asked whether he still maintained he didn't want Ms. Falko to know about the thefts where the video shows him stealing the clothing items directly in her presence the young person simply answered, "As stupid as it sounds, yeah".
The fact that the young person exited the store through the security gates alone with Ms. Falko's purse and all of the stolen items in the cart, while Ms. Falko waited inside the store is an unusual circumstance that is inconsistent with the youth's evidence that Ms. Falko was unaware of the thefts and not reasonably explained by the young person's evidence that it was raining and he was going to get her car. Credible external evidence shows it wasn't raining and in any event there would be no reason for Ms. Falko to part with her purse and the items she just purchased and watch from inside the store as opposed to the store entrance way while the young person took the items to her car.
[5] I also find I'm unable to accept the evidence of Ms. Falko on the central points for the following reasons:
Video evidence shows Ms. Falko selected the eyeliner and threw it in her cart but then moved it close beside her purse. She then moved to the front of the cart between the young person and the main aisle but remained closeby. She was not asked whether she would have heard the unusual sound of a package ripping open while she was that close to it, but it's notable that this is the only time inside the store that the youth stands by the purse at that end of the cart. The fact that the eyeliner was placed inside her purse is inconsistent with her evidence that she was unaware of the theft, inconsistent with the youth's evidence as explained earlier but is consistent with her being a participant in the theft of that item for her benefit.
The video next shows the young person openly stealing a watch. He then walked towards Ms. Falko and showed her the watch out of the packaging before discarding the packaging on a display and concealing the watch. While it's true that Ms. Falko was not looking at the time the watch was concealed, she knew he had no money when she drove him to Walmart and would have known that the watch should not have been out of the packaging.
The actions of both Ms. Falko and the young person inside the infant clothing department are odd and inconsistent with casual shopping. They rotate in a circular motion wherein it appears that Ms. Falko looks at an area then at a particular item and she then circles towards the main aisle while the young person now behind her takes the item, folds it and places it underneath his clothing. This action is repeated for the items taken. It's simply not credible that the young person would have randomly stolen items she too had looked at earlier, that they would have by chance adopted the odd circular motion which resulted in her blocking the view from the main aisle each time when he was stealing items.
The young person makes little effort to conceal the removal of items from hangers and placement under his coat. Ms. Falko was closeby while he's doing this and while she's not always visible on the video, the video evidence including frames moments before and after concealment show that Ms. Falko would have been obliquely and at times directly facing the young person while he was in the act of putting items under his coat. Ms. Falko's evidence that she was unaware of the thefts in that context is not credible.
The infant items taken were consistent with the age of Ms. Falko's child. Although she testified that she does not even like baby clothes from Walmart she spent time looking at items in that area and indeed selected a few for purchase.
Ms. Falko could not remember why she did not exit with her cart and purse. She agreed that the young person's evidence that it was raining was not true and she guessed it might have been snowing at the time but that evidence was contradicted by credible external evidence. Even if it had been snowing and he was to get the car, there was no reason she would give him her purse instead of just handing him the keys unless she knew her purse too contained stolen items and she didn't want to risk being associated with it if an alarm was triggered. The fact that she remained inside the store proper and did not go past the security gate is consistent with knowledge of the thefts and does not appear consistent with any other logical explanation.
Conclusion and Verdict
[6] I'm mindful that knowledge of a theft by another party and mere presence at the scene is not sufficient to prove participation and criminal liability. However, considering all of the credible evidence I find that the direct and circumstantial evidence reasonably leads to only one conclusion – that Ms. Falko drove the young person to Walmart with the intent that he commit thefts therein for her benefit. He concealed the items for herself and her son that she selected and he then exited the store while she waited to see if he was apprehended. I am unable to find any credible evidence that reasonably could leave a doubt in that regard.
[7] There will be a finding of guilt on both counts. As the counts and circumstances of the offences engage the rule against multiple convictions for the same delict, I'll invite the Crown to indicate which charge they would like stayed.
Released: 25 October, 2013 Justice Joseph F. Kenkel