Ontario Court of Justice

Date: 2016-09-09

Court File No.: Peterborough 14-2135

Between:

Her Majesty the Queen

— AND —

Janice Buttery

Before: Justice S. W. Konyer

Heard on: July 20, 2016

Reasons for Judgment released on: September 9, 2016

Counsel

Mr. S. Humphrey — counsel for the Crown

Mr. J. Marchand — counsel for the defendant Janice Buttery

KONYER J.:

[1] Janice Buttery is charged with defrauding her employer, the LCBO, between October 10 and 25, 2014. During this time, Ms. Buttery worked at the LCBO store located on Landsdowne Street in Peterborough, and her duties included working as a cashier. It is not disputed that on eight separate occasions during this time period, Ms. Buttery scanned items purchased by customers through her cash register, accepted cash payments for the items, and then immediately voided the sales. The combined effect of these actions is that these eight sales was not processed through the LCBO computer system. In other words, as far as the LCBO was concerned, none of these sales occurred.

[2] In each of the eight transactions in question, customers handed cash to Ms. Buttery and left the store with the products they had purchased. In accordance with LCBO policy, Ms. Buttery and a supervisor reconciled the cash balance in her register against the purchases made at the end of each shift. On each of the eight occasions in question, these figures reconciled with each other, at least within normal limits, meaning that the cash received by Ms. Buttery for the eight sales that she voided was never turned over to the LCBO. The inescapable inference, at least according to the prosecution, is that Ms. Buttery kept this money, thereby defrauding the LCBO.

[3] The case against Ms. Buttery is circumstantial. Accordingly, I can convict only if her guilt is the only reasonable inference available from the proven facts. If another inference is reasonably available, then the Crown will not have proven the case against her beyond reasonable doubt. This was a short, one witness trial with a number of admissions. The only witness to testify was John Kennedy, an investigator employed by the LCBO who conducted an investigation by reviewing store records and video surveillance footage. The defence called no evidence. In order to determine whether the Crown has proven the case against Ms. Buttery beyond a reasonable doubt, it is necessary to review the evidence of allegedly fraudulent conduct. An examination of the first of the eight incidents in question is illustrative.

The October 10, 2014 Incident

[4] On October 10, 2014, Ms. Buttery was working as a cashier. Her activities were captured on a video surveillance system, and an electronic journal was maintained by the computer system linked to her cash register. At about 3:30 p.m., a customer approached her cash with a bottle of Bacardi liquor. The surveillance shows that Ms. Buttery scanned the barcode for this item, and that the customer placed cash on the counter which was picked up by her. The price for this bottle was $24.95.

[5] Ms. Buttery did not, however, complete the sale by hitting the "Total" button on her register, which would have caused the cash drawer to open and would have generated a receipt. Instead, she simply bagged the customer's purchase, and the video shows that the customer then left. Ms. Buttery then placed the cash into a slot in the cash drawer without opening the drawer, and began serving the next customer in line.

[6] Before serving the next customer, Ms. Buttery conducted a "line void" of the Bacardi bottle. The line void function on the cash register is a tool that is available for correcting mistakes that are made by a cashier, for example entering the incorrect number of items being purchased. To void an incorrectly entered item, a deliberate series of keystrokes must be entered. The video and electronic journal confirm that Ms. Buttery voided the Bacardi bottle before entering the next customer's purchase.

[7] The next customer purchased three items and paid for these items with a debit card. Because Ms. Buttery never completed the sale of the previously purchased bottle of Bacardi, however, the electronic journal recorded these two sales as a single transaction. The electronic journal entry shows a Bacardi bottle entered, the same bottle then voided, then the next three items entered and paid for by debit.

[8] The end result of this sequence of actions is that the Bacardi bottle effectively disappeared from the store without being recorded as sold. The electronic journal did not record the sale, the item would not have been deducted from the inventory records, and the cash provided by the customer would have constituted an overage had it appeared in Ms. Buttery's cash drawer at the end of her shift.

[9] At shift end, each cashier is required to take their cash drawer to an enclosed office within the store, where the cash is counted by both the cashier and an on-duty supervisor, and then reconciled with the electronic records from that cash for the time period where it was operated by the particular cashier. Each cashier has a unique code which they are required to enter before using a register. The reconciliation report for Ms. Buttery's register for October 10, 2014 shows that she was short $0.05 for her shift. Accordingly, it is clear that the $24.95 paid by the customer for the bottle of Bacardi at 3:30 p.m. that day never made it to Ms. Buttery's cash drawer at the time it was reconciled.

Analysis and Findings

[10] In my view, the only reasonable inference available from this sequence of events is that Ms. Buttery kept the cash and concealed this purchase by manipulating the electronic records. There are too many discrete steps involved for this to have been accidental. She failed to complete the original sale, she voided the purchase for no reason whatsoever after the customer left having paid cash for the bottle, she placed the cash inside the register drawer without opening the drawer, which would have triggered a completion of the sale, and she continued the transaction into the next customer's purchase, thereby making the voiding of the Bacardi bottle appear less deliberate. Even if all of these steps had been taken accidentally, however, then this money would have appeared as a surplus when her cash drawer was reconciled at the end of her shift.

[11] My conclusion that her conduct was deliberate and not accidental is bolstered by the fact that a similar sequence of events occurred, with slight variations, eight times over the subsequent fifteen day period. In my view, it would be unreasonable to conclude that Ms. Buttery accidentally voided items paid for in cash, never debit or credit, eight times over this short period, and that the surplus money never appeared when her cash was reconciled at the end of shift. The only reasonable conclusion that can be drawn from these undisputed facts, in my view, is that Ms. Buttery kept the cash while taking deliberate steps to erase these purchases from the LCBO records.

[12] The defence has argued that I cannot be satisfied beyond reasonable doubt that Ms. Buttery is the person who took the excess money which should have been in her till as a result of the line voids that occurred on these eight occasions. Because the cash float is reconciled by the cashier together with a supervisor, it is argued that it is reasonably possible that it was a supervisor rather than Ms. Buttery who deprived the LCBO of these funds. A reasonable doubt, however, is a real doubt, one which must be derived from the evidence or lack of evidence. It cannot be a frivolous or speculative doubt. On the record before me, it would be entirely speculative to suppose that each of the impugned line void transactions was accidental, and that a supervisor, on each of these eight occasions, removed an amount of cash corresponding to each line void. This sort of speculation with no evidentiary foundation does not leave me with any real doubt that Ms. Buttery was the person responsible for removing the money corresponding to the line voids.

Distinction from R. v. Samaradis

[13] This case is distinct from the situation in R. v. Samaradis, 2008 ONCJ 602, which was also an allegation of fraud by an LCBO employee by way of similar line voids. In that case, the accused was a casual employee who was alleged to have been involved in a number of different fraudulent transactions, one of which involved a line void fraud similar in nature to the allegations against Ms. Buttery. The Crown did not call as witnesses the managers who would have been responsible for authorizing line voids by Mr. Samaradis, and the court concluded that, in the absence of evidence from the manager that the line voids were unauthorized, a reasonable doubt existed that Mr. Samaradis had a fraudulent intent in processing the line voids.

[14] In Ms. Buttery's case, no managerial approval was required for her to void purchases, and for the reasons already given I am satisfied beyond reasonable doubt that there is no other reasonable inference to be drawn on the facts before me than that she deliberately took steps to conceal these cash purchases from her employer. Accordingly, she is found guilty on the sole count of fraud under $5,000.

Released: September 9, 2016

Signed: "Justice S. W. Konyer"