ONTARIO COURT OF JUSTICE

Date: October 21, 2015

Court File No.: Toronto 4817 998 14-75002639-01;-02

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

MELISSA MELANIE BLACKWOOD and SILVIA BLACKWOOD

Before: Justice Richard Blouin

Heard on: September 16, 17, 18, 22 and 24, 2015

Reasons for Judgment released on: October 21, 2015

Counsel

Mr. Gabriel Ho — counsel for the Crown

Mr. Sam Goldstein — counsel for the defendant Melissa Melanie Blackwood

Ms. Shelley Flam — counsel for the defendant Silvia Blackwood

BLOUIN J.:

Introduction

[1] Silvia Blackwood and her daughter Melissa are charged with Theft Over $5000 and Fraud Over $5000 from a seafood retailer in mid-town Toronto named, Pisces Gourmet. It is alleged that they, as managers, skimmed money from the cash register between February 1, 2013, and October 8, 2013. The Crown called four witnesses, and produced, on consent, two written summaries of images captured on surveillance cameras in the store. The defendants did not testify.

Pisces Employees

Merly Tubon

[2] Ms. Tubon took over managing Pisces Gourmet six weeks after Silvia Blackwood was fired by Mr. Soberano in October 2013. She had worked at the store for a number of years and was trained by Silvia. Especially germane to this case, she was taught to get a printout of sales from the cash register tape at or near the end of the day, and to put that printout into a bag, and then a safe, along with the cash and credit (and debit) slips. She was to leave a $400 float for the next day, and was not to count the cash. Even before Silvia was terminated, when she left early (about 5 to 6 times per month), Ms. Tubon would be given the responsibility of cashing out as indicated above.

[3] Ms. Tubon was asked how Melissa cashed out on Tuesdays and Wednesdays when they worked together. At first she said that she did it the same way. She then expanded by saying that Melissa would count (later she agreed that she assumed or speculated that she was counting) the money near the cash register, and then go downstairs to count the money. This was contrary to protocol. On one occasion Melissa told her not to come in the lunch room because she was counting money. Ms. Tubon was asked how Silvia cashed out, and she said the same way as I do. Then she added that she counted the cash near the cash register (which this witness did not do).

[4] Ms. Tubon was also asked how Melissa cashed out customers in relation to the normal process that Ms. Tubon employed. She said "same thing". First she punches the sale into the cash register, and then goes to the debit-credit machine to complete the sale. She did allow for some variance of that procedure, when the cash register was busy, employees would not go there first but to the debit-credit machine, and then "punch in" later. In cross-examination, she agreed that many employees had access to the cash register, and cashed out customers they had interacted with.

[5] According to Ms. Tubon, Melissa Blackwood would put the cash receipts in a plastic bag and took it downstairs every day they worked together (Tuesdays and Wednesdays).

Danny Soberano

[6] Danny Soberano is one of the partners in the business. In December 2012 he received an anonymous letter regarding money being taken down to the washroom and that he should keep an eye on Melissa. As a result, he and his partner set up a closing procedure which involved putting cash and receipts in a bag and safe, and not counting the cash. In late April or early May, he spoke to Silvia about his concerns. The partners conducted some investigative steps on their own. One of those steps was to have the general manager, George Koyionis go into the store and close early. Since Mr. Koyionis testified later, this was not hearsay. The other steps amounted to hearsay. In October of 2013 he called in Silvia, told her about the missing money and how it was being done. He fired her and her daughter. He asked his auditor Anita Nahon to review the cash register tape to compare against incoming income.

George Koyionis

[7] Mr. Koyionis arrived at the store unannounced at 2:30-3:00 p.m. on September 30, 2013. He cashed out for the day, left a float and took the rest of the cash and receipts with him. He discovered an overage in cash and receipts that could be consistent with items not punched in to the cash register. The inference to be drawn is that no one had the opportunity that day to remove the excess cash.

Anita Nahon

[8] Ms. Nahon was asked to conduct an audit to determine if there was evidence of financial irregularity. I accept her evidence that there was significant loss to Pisces. Tab 1 of Exhibit 2 reflects a loss of $11,539 in September 2013 alone.

Surveillance Cameras

[9] Pisces Gourmet had a number of surveillance cameras. Two written summaries of those images were admitted into evidence on consent.

[10] Exhibit 1(a) is a Viewing Report Summary which was prepared by both parties to represent images that would be seen if the surveillance video was examined. Relevant to this case, it covered images recorded between September 12, 2013 and October 5, 2013. The surveillance video itself was not put forth in evidence. During that period, the summary indicates that Melissa Blackwood "took purse downstairs" ten times around closing time when she was dealing with cash and paperwork; Silvia Blackwood did so once. It was cleared up in submissions by Ms. Flam that "purse downstairs" meant the employee's own personal purse, and not a purse or bag that contained cash and paperwork from the business. As explained to me, no video evidence existed to show either defendant taking money downstairs as Ms. Tubon testified that Melissa did everyday she worked with her (Tuesdays and Wednesdays each week).

[11] Exhibit 1(b) is a "No Punch In" Report Summary which chronicled the surveillance camera images that showed employees not punching a sale into the cash register between September 13, 2013 and September 27, 2013. Again, the surveillance video was not entered as an exhibit. During that approximate two weeks, 129 times employees did not record the sale in the cash register. The Crown submits that since Melissa did not punch in 54 times during that period, and Silvia did not 22 times, the frequency suggests that it was not an accident. It shows, he contends, that the defendants were intentionally creating overages in the cash that could be removed by them while still showing a balance between recorded sales and money taken in.

Fraud

[12] R. v. Théroux, [1993] 2 S.C.R. 5, confirms that the external circumstances of fraud are established by proof of:

i) a prohibited act of deceit, falsehood, or other fraudulent means; and

ii) deprivation caused by the prohibited act.

Item ii, above, may consist of actual loss or placing the victim's pecuniary interests at risk. As is the case with "deceit" and "falsehood", the external circumstances of fraud by "other fraudulent means" is determined objectively, by reference to what a reasonable person would consider to be a dishonest act.

Findings

[13] The first issue I must decide is that of loss, or risk of loss. The defendants submit the Crown has not proven financial deprivation. The Crown argues that actual loss was quantified by an audit done by Anita Nahon, and thereby proven. In my view, this was not a close call. Given that sales were not being rung into the cash register, even if accidentally, a daily audit would have shown overages in the amount of money taken in (cash, credit, and debit) by the store. That there are no significant overages leads me inexorably to one conclusion only – that someone was skimming cash. The question is who. That same question must be answered regarding the alternate charge of Theft.

[14] Let me say at the outset that I found it difficult to interpret exactly what visual information Exhibits 1(a) and (b) were purporting to represent. That said, it was made clear to me that the surveillance video never captured anyone overtly stealing money. In fact, as I understand the Exhibits, the surveillance video never captured either defendant taking the daily receipts (including cash) downstairs to the basement of the store. This is important since Ms. Tubon's evidence was that Melissa Blackwood would take money downstairs to count. Exhibit 1(a) reflects that Melissa would take "purse downstairs" (which later in submissions was explained to be her purse). That either woman would take her purse downstairs where the washroom is located is hardly surprising. There was no video evidence to confirm Ms. Tubon's position that Melissa (or Silvia) took the money and receipts downstairs either inside or outside a plastic bag. There was no evidence elicited that established that either defendant put money in their purse.

[15] In my view, if Ms. Tubon's evidence was true, it would be surprising to have no video confirmation of either defendant taking money to the basement. In addition, I had some concerns surrounding Ms. Tubon's answers to a number of questions regarding normal work practices of the defendants (mostly Melissa) in relation to her (Ms. Tubon's) normal practices. At first she said they cashed out customers "the same", and then, when pressed, went on to provide a number of ways they were different. In short, I am not able to rely upon the evidence of Ms. Tubon.

[16] I also was struck by Ms. Tubon's evidence that, much of the time, Silvia would leave early and allow Ms. Tubon to cash out at the end of the day. Not only does that approach remove the opportunity available for Silvia Blackwood to skim money at the end of the day, as it is alleged she did, it provides an opportunity for Ms. Tubon to do so. However, I do not want that point to be taken as a finding that Ms. Tubon was removing money. There is no evidence of that. It is only meant to illustrate that while the defendants had the greatest access to the cash because of their management positions, it wasn't exclusive access. In fact, after the money was picked up by the driver from the store each day, others had access to it, including Ms. Nahon. And they were not the only employees to omit registering sales to the cash register. In fact, Ms. Tubon did not punch in sales on five occasions over a two-week period in September of 2013.

[17] In the final analysis, while I conclude the actions of both defendants creates significant suspicion (many examples of not punching in sales, and many access opportunities to the cash), I cannot conclude guilt beyond a reasonable doubt. I'm not even sure that I could find the case has been proven on the lower civil standard of probability. Accordingly, both defendants are found not guilty on both counts.

Released: October 21, 2015

Signed: "Justice Blouin"