Court File and Parties
Court File No.: Central East - Newmarket 15-05709 Date: 2017-05-18 Ontario Court of Justice
Between: Her Majesty the Queen — and — Prisca Onosetale
Before: Justice P.N. Bourque
Counsel:
- K. Stuart, for the Crown
- R. Respicio, for the defendant Prisca Onosetale
Reasons for Judgment
Released on May 18, 2017
The Facts
[1] The defendant is charged with theft of the complainant's money. The defendant admits that on February 20 and February 21, 2015, she used a credit card and a debit card of the complainant to make purchases at BSW Beauty Supply and Shopper's Drug Mart and made a cash withdrawal at the TD Bank. The total of purchases and withdrawals is $1,207.43.
[2] The defendant states that these items were in the way of gifts to her from the complainant, and he had consented to her using his credit and debit card in the fashion that she did.
Sylvester Blackwin
[3] ...is some 78 years old. He is a pensioner and by his slow movements and difficulty speaking, he has several medical conditions. He had a personal support worker with him in court who assisted him out of the witness box at the end of his testimony. During the entire course of the events of this case, he was under the care of a personal support worker to see to some of his physical needs.
[4] He stated that he is a pensioner and a widower. He stated that in the summer of 2014, his caregiver attended at his house and he took her out for her birthday. In attendance with her was a woman he had never met before. This was the defendant. He stated that in December 2014, the defendant started to come to his house "all of the time". He stated that on one occasion, he took her to the liquor store and they both bought a bottle of wine which he paid for. He stated that they returned to his house and while there, he changed his clothes and left his wallet upstairs. He said that she went upstairs to the washroom.
[5] He stated that he lost his wallet at some time and reported it to the police.
[6] He also stated that at the end of February 2015, his bank called him and asked him to come down to look at some purchases on his credit cards and some withdrawals. He stated that there were several items that he had not paid for and also some withdrawals. He immediately went to the police.
[7] He was shown various pictures from the BSW Beauty Supply store and the Shoppers Drug Mart and the TD Bank. He recognized the defendant in the pictures. The defendant admitted it was her in the pictures and admitted that she was making purchases and withdrawals with his cards in the total amount of $1,207.43.
[8] Also put into evidence were bank records showing these purchases. There was also put into evidence a picture of a man (unidentified by the complainant) who was using his credit card in the amount of $801.00 on February 4, 2015. The complainant believed that this man was the defendant's boyfriend and this incensed him. There is no evidence presented which would support that assertion.
[9] It was the opinion of the complainant that the defendant had taken pictures of his credit cards and the list of his pin numbers which were in his wallet but he had no direct evidence of this. It was his belief that she had done this on February 20th when she had used his bathroom.
[10] In cross-examination, it became clear that this man knew the defendant much more than he admitted. He admitted that in December 2014, he bought her a cell phone. He also admitted helping her buy some luggage. The defence reviewed with him some of his statements from Capital One. It showed that on February 20, 2015 when he said that he bought her one bottle of wine (in addition to his), that he spent $101.85. That must have either been an expensive gift of wine for her or he bought her several bottles. He denied the defence suggestions that he was having a relationship with the defendant and also that he let her use his credit card. Defence counsel pointed out several parts of his statement where there were purchases at a women's wear store in this period.
Defence
Prisca Onosetale
[11] ...was born in Nigeria and came to Canada as a refugee in 2013. She is a permanent resident. She is now unemployed and on social assistance. She stated that around April or May 2014, she met the defendant when he was driving through her neighborhood in his car. She was living in a rooming house and taking English and Math classes. They went out and started soon thereafter to have a relationship. She would go to his house and they would go out to dinner. Many times he would buy her gifts and she said that he bought her a cell phone, some luggage and a ring. She stated that he, later in the relationship, wanted to have sex with her in the company of another woman. She resisted that. She said that around February 20, 2015, he gave her his CIBC and CAPITAL ONE cards and let her use them to buy things for herself. She stated that she went and bought the items set out in the charges including further items and cash advances totaling several thousand dollars.
[12] She stated that she returned the cards several days later and told him what she had done and he did not seem to have any difficulty with it. She then said that the very evening that she returned the cards, he became "creepy" and wanted her to engage in sex with the defendant and another woman. It was a short time later that the police contacted her. In fact, she did not say that she saw him at all after that.
[13] In cross-examination she stuck to her assertion that she was having a relationship of a sexual nature with the defendant and that he had just simply handed over his credit and bank card, along with the requisite PIN numbers.
Analysis
[14] The crown always has the burden of proving the charges against the defendant beyond a reasonable doubt. In addition, as the defendant has testified and provided a version of events, that if I believe, would afford her a complete defence, I must apply the doctrine of R. v. W.D. If I accept her evidence or am left in a reasonable doubt by it, then I must acquit her. Even if I am not left in any doubt by her evidence, I must still ask myself whether based upon the evidence that I do accept, has the Crown proven the charges beyond a reasonable doubt.
[15] As I review her evidence, there are several aspects of it that cause me to pause. She seemed to be unsure when reviewing the statements of the defendant's credit cards, which items she had purchased. She also seemed unsure of some of the cash advances.
[16] I am particularly concerned about her allegations of him becoming "creepy", and then alleging some sexual improprieties. It was her inference and suggestion that this was behind his going to the police with these allegations.
[17] He is a 78 year old man and she is just over 30 years old. While not inconceivable that he would perhaps want a sexual relationship with her, it is hard to see it happening in any way that she describes. As I stated for the period of time of these events, he was under the care of a personal support worker. He denied knowing her sexually. He went to the police almost immediately after getting his statements. I do not accept this assertion by the defendant.
[18] To believe her, I would have to accept that while he may have bought her some gifts in the past, he was now willing to not only give her a credit card, to perhaps buy herself some gifts, but he also decided to hand over to her his bank card. What was the point of that? I also note that while he had bought her gifts before, he had never given her any of these cards before. This was the first time. The timing and frequency of the use of not only the credit card but the bank card, has an element of "frenzy" about it. One of the withdrawals from his bank account was just after 6:00 a.m. in the morning. They happened almost within 24 hours.
[19] For these reasons, I cannot just accept her evidence and I find that it does not leave me with a reasonable doubt. Even if I accept some sort of relationship, this use of his credit and bank card goes so far beyond any kindness that he had shown her in the past, that it becomes unbelievable. I find therefore that I cannot accept her evidence and it does not leave me with a reasonable doubt.
[20] Having rejected her evidence, I must still consider the Crown evidence. In large part the Crown's essential evidence is confirmed by the Exhibits (the pictures at the stores and ATM machines and the credit card and bank statements) and the fact that she herself confirms using both the credit card and the Bank card to make the purchases and withdrawals as charged, and indeed, to admit to several more.
[21] I have already noted above that I believe that in his evidence in chief, the complainant downplayed the relations between the two and did not admit that he had bought her gifts. I believe however that for the rest of his evidence it had the essential ring of truth. I need not believe his assertion as to how he believed she got possession of his credit and debit card. She did in fact get possession of both of them, and she clearly had the opportunity to get them when she was at his home. She did have them.
[22] I do not accept that he gave them to her. I further do not accept her assertion that he gave them to her (along with the requisite PIN numbers) so she could have free reign to pillage his credit and bank resources. I find that in having the debit and credit card in her possession and using them, I am convinced beyond a reasonable doubt that she did not have his consent to have them or use them.
Conclusion
[23] Having made those findings of fact I find her guilty of the following offences:
Count 2 - being in possession of stolen property namely the credit and debit card of the complainant without his consent;
Count 3 - Defraud the complainant of $135.59 by using his debit card at BSW Beauty Supply;
Count 4 - Defraud the complainant of $205.63 by using his debit card at BSW Beauty Supply;
Count 5 - Defraud the complainant of $132.69 by using his debit card at Shopper's Drug Mart;
Count 6 – Defraud the complainant of $230.52 by using his credit card at Shopper's Drug Mart;
Count 7 – Defraud the complainant of $503.00 by using his credit card for a cash advance at TD Bank.
[24] With regard to the charge of theft of the debit and credit card, I cannot say with requisite certainty how she came to possess them. I find she did not have his consent to have them. I find her not guilty of count 1.
Signed: Justice P.N. Bourque
Released: May 18, 2017