Court Information

Date: September 2, 2020

Ontario Court of Justice Old City Hall – Toronto

Between: Her Majesty the Queen And: William Gibson

For the Crown: N. Kruger For the Defendant: A. Goldkind

Heard: March 9, 10 and July 21-23, 2020

Reasons for Judgment

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] On November 13, 2019 Mr. Gibson attended at a Home Depot store in Toronto. As he left the store, he was approached by four Home Depot loss prevention officers who believed he had just taken two Milwaukee tool batteries from the store without paying for them.

[2] The four men attempted to perform a citizens' arrest of Mr. Gibson, but he did not cooperate. They followed him to the parking lot and tried to prevent him from getting into his car and leaving. An altercation ensued during which it is alleged that Mr. Gibson brandished a knife, threatened to kill one of the officers, and fled. He was arrested approximately 45 minutes later and charged with theft, threatening death, assault with a weapon and robbery.

[3] The Crown called as witnesses the four Home Depot employees, as well as the police officer who was the first to arrive at the Home Depot who gathered information from the four men. Mr. Gibson did not testify and called no evidence.

[4] There are two principal issues in this case: (1) is the testimony of the four Home Depot employees sufficiently credible and reliable to prove the allegations beyond a reasonable doubt, and (2) even if the Crown has proved beyond a reasonable doubt that Mr. Gibson behaved as alleged after the attempted "arrest", were the four employees legally justified in their attempts to arrest Mr. Gibson; for if they were not, Mr. Gibson enjoyed the right to defend himself in a reasonable fashion.

B. EVIDENCE

(a) Introduction

[5] I will not repeat the evidence of each witness. Rather, I shall set out the overall gist of the testimony and highlight the areas of strength and weakness that arise out of an examination of the evidence for things such as consistency, corroboration, possible motive to fabricate, collusion and inconsistency.

(b) The testimony of the four store employees

[6] The four men in question are named Rujen Tharmalingam (the person said to be the victim of the offences of violence), David Wolczyk, Denzel Brown and Basim Zefar.

[7] None of these men is a peace officer. Rather, they are all plainclothes employees of Home Depot and it is their job to surreptitiously watch the floor for suspicious shoppers and, if they see one take merchandise and leave the store without paying, effect a citizen's arrest for theft, bring the suspected thief back into their office and call the police.

[8] On the day in question these four men were on duty. All but Mr. Wolczyk saw Mr. Gibson in the store. He was dressed suspiciously in a baggy sweater. All three of the men began to pay attention to him and saw him choose two Milwaukee tool batteries, walk to another section of the store then hide the batteries under his sweater then continue to walk around the store. Approximately 10 minutes later, after all four men had been in contact with each other over their cell phones, the three original observers saw him exit without paying for the batteries. All four converged on him just after he left the store.

[9] Mr. Zefar and Mr. Tharmalingam were the first to approach Mr. Gibson. They identified themselves as loss prevention officers, put hands on him and told him he was under arrest for theft. The others were close by. Mr. Gibson ignored what he was told and continued to walk to his car. He shook the men off who were touching him and told them all to "fuck off". According to Mr. Zefar, Mr. Gibson threatened to stab him at this early part of their encounter.

[10] Once at Mr. Gibson's car, Mr. Gibson tried to get into his car as Mr. Wolczyk and Mr. Zefar physically struggled with him, trying to prevent him from getting in his car and driving away. Mr. Gibson dropped his cell phone and his car keys as he was trying to get into his car. Mr. Tharmalingam saw the keys, picked them up, and put them in his pocket. Mr. Gibson then emerged from his car holding a box cutter. He demanded his keys and threatened to stab the men. He finally pointed the knife at Mr. Tharmalingam's abdomen and removed his keys and Mr. Tharmalingam's keys from Mr. Tharmalingam's pocket and drove away just after threatening to kill Mr. Tharmalingam if he got any closer. Mr. Tharmalingam had already dialed 911 and summoned the police.

(c) The strengths and weakness of the employees' testimony

(i) Consistencies and inconsistencies

[11] There are certainly some inconsistencies in the accounts of the four witnesses. Mr. Zefar said that Mr. Gibson was waving the knife about after emerging from the car with it. The others say he merely held it close to his abdomen with the blade pointing away from his body. Only Mr. Zefar reports the initial threat to stab him.

[12] Notwithstanding these inconsistencies, the accounts are remarkably similar, both as concerns the general flow of events and many of the specifics.

[13] Taking both the consistencies and inconsistencies into account, I find that the inconsistencies are indeed the type to be expected from a true account from four different witnesses and I find that the overwhelming consistency among the accounts as referred to above is a further signal of truth and reliability.

(ii) Corroboration by independent evidence

[14] When Mr. Gibson was apprehended less than an hour after the incident, he was found in possession of a boxcutter that exactly matched the description of the box cutter given by the four witnesses. He was also found to be in possession of Mr. Tharmalingam's keys.

(iii) The witnesses' discussion before the preparation of their statements and the giving of their testimony

[15] The evidence demonstrates that the four witnesses spoke to each other before speaking to the police and preparing their typewritten statements on the office computer within a short time of the incident. They discussed their experience again at around the time the trial began. Defence counsel argues that this renders the witnesses' accounts unreliable.

[16] That the witnesses spoke to each other about their experience before making notes of the incident raises the possibility that the consistencies in their testimony are the result of each of them consciously or unconsciously conforming their evidence to each other's, thus eroding the reliability of their testimony. What's more, as loss prevention officers they are in the business of recording events and often testifying about them. They should have known better.

[17] That having been said, the fact that the witnesses did discuss the incident does not automatically disqualify their evidence nor does it necessarily render it unreliable. All the witnesses, except Mr. Brown, whose testimony I will refer to below, were perfectly candid about having spoken to each other. All three of them were able on examination in chief, and in cross-examination, to distinguish between what they had experienced and what they had been told.

(iv) Denzel Brown's copying of Basim Zefar's statement

[18] There is no doubt that Denzel Brown essentially copied Basim Zefar's written statement. Mr. Zefar and Mr. Brown told us as much. I can understand why these four men might have wanted to discuss the event before preparing their statements. After all, they had all experienced roughly the same thing. I can also understand why Mr. Brown would have tried to save time by copying Mr. Zefar's statement while making minor changes to it. But his testimony about this was delivered in a way that was less than honest. Mr. Brown eventually admitted the copying, but only when I questioned him after counsel was finished their examinations. The testimony he had given in response to counsels' questions was not accurate. I agree with Mr. Goldkind that I must be careful about what I accept of his evidence. I am nonetheless convinced that the critical and material aspects of his testimony are truthful and accurate. I believe that Mr. Brown's initial failure to admit the copying arose out of shame and embarrassment and does not detract from the strength of his other evidence.

(v) Motive to fabricate?

[19] Mr. Goldkind argues that I should be concerned that the witnesses may have fabricated their stories as to what occurred at the car because of the way they must have come to regard Mr. Gibson after he treated them so rudely and dismissively when they first approached him. I reject this argument. All four men struck me as relatively thick-skinned and quite used to this kind of treatment.

(vi) The alleged threat to stab at the outset of the confrontation

[20] Mr. Zefar testified that when he first approached Mr. Gibson and tried to arrest him Mr. Gibson told him to fuck off and that he would stab Mr. Zefar if he didn't back off. He further testified that this didn't frighten him because it is common to receive such a threat when arresting suspected shoplifters.

[21] Mr. Goldkind argues that there are two problems with Mr. Zefar's testimony on this point. First, this assertion is not likely true, for if it were, Mr. Zefar would surely not have continued to attempt to arrest Mr. Gibson. Why would Mr. Zefar put his life at risk for a couple of batteries? Second, Mr. Zefar's explanation when confronted with this, i.e., that he was used to hearing such threats because they are common in his line of work, strains credulity.

[22] I find Mr. Goldkind's arguments on this point to be persuasive. I have my doubts that Mr. Gibson uttered the threat to stab Mr. Zefar. I suspect that Mr. Zefar honestly believes that this occurred but is wrong. It may well be that as a result of the experience at the car, which did involve a knife and a threat to stab, Mr. Zefar came to remember falsely that he too had been verbally threatened by Mr. Gibson. This wrinkle in Mr. Zefar's testimony does not, however, lead me to reject the balance of his account.

(vii) The absence of evidence and the allegation of theft

[23] Mr. Goldkind argues that the absence of any video from the Home Depot capturing the alleged theft detracts from the strength of the witnesses' evidence concerning their observations of Mr. Gibson in the store. He also argues that the absence of the batteries from the Crown's presentation raises a doubt as to their observations and raises a reasonable doubt that any theft was committed.

[24] As concerns the absence of any video depicting Mr. Gibson's activities in the store on the day in question, the evidence makes clear that Home Depot is not particularly interested in recording the goings on in its stores. Home Depot seems more interested in giving shoppers the impression that they are being watched or recorded. According to the four witnesses, there are very few working cameras in the store. Most of the cameras are dummy cameras that record nothing. It is thus not surprising that Mr. Gibson was not caught on video, apart from when he exited the store. The absence of video does not lead me to question the honesty and reliability of the evidence of the three witnesses who say they saw Mr. Gibson choose the batteries and hide them under his sweater.

[25] The absence of evidence as concerns the fate of the Milwaukee batteries does cause me concern. In my view, the Crown must satisfy me that Mr. Gibson did not leave the batteries behind in the store before leaving in order to secure a conviction for the theft and for the robbery. The evidence is wanting in this regard. As concerns Mr. Gibson's actions in the store, three witnesses testified that they saw him hide the batteries under his sweater. None of them, however, provided evidence that satisfies me that their subsequent observations were good enough to negative the possibility that Mr. Gibson left the batteries behind before leaving the store. This doubt is further strengthened by the fact that the batteries were not found with Mr. Gibson when he was arrested a short time later.

(d) Conclusion

[26] The accused is presumed innocent and the burden of proof is on the prosecution throughout. To secure a conviction, the Crown must prove the allegation against the accused beyond a reasonable doubt.

[27] For the reasons set out above, subject to the issue of self-defence as it relates to the arrest, which I shall discuss below, the evidence of the four loss prevention officers convinces me beyond a reasonable doubt that Mr. Gibson did indeed threaten death to Mr. Tharmalingam and did indeed assault him with a weapon.

[28] As concerns the theft and robbery, I am not persuaded that Mr. Gibson left the store while still in possession of the merchandise.

C. THE ARREST

(a) The law of citizens' arrest

[29] The four loss prevention officers, although not peace officers, nonetheless have a limited power to arrest which is derived from s. 494 of the Criminal Code which reads as follows:

494 (1) Any one may arrest without warrant

(a) a person whom he finds committing an indictable offence; or

(b) a person who, on reasonable grounds, he believes

(i) has committed a criminal offence, and

(ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person.

Arrest by owner, etc., of property

(2) The owner or a person in lawful possession of property, or a person authorized by the owner or by a person in lawful possession of property, may arrest a person without a warrant if they find them committing a criminal offence on or in relation to that property and

(a) they make the arrest at that time; or

(b) they make the arrest within a reasonable time after the offence is committed and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.

Delivery to peace officer

(3) Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.

For greater certainty

(4) For greater certainty, a person who is authorized to make an arrest under this section is a person who is authorized by law to do so for the purposes of section 25. (emphasis added)

[30] Mr. Goldkind argues that on the evidence of the officers, Mr. Gibson's theft of the batteries, if it occurred at all, occurred in the store when he first hid the batteries under his sweater and walked to another section of the store. He further argues that the officers at the Home Depot acquired the right to arrest Mr. Gibson when they observed him hide the batteries and then move them, and that they lost this power before he left the store. According to him, s. 494, properly interpreted, only grants authority for a citizen's arrest where the citizen observes the crime and performs the arrest forthwith.

[31] He further argues that because the officers had no right to arrest Mr. Gibson when they did, he had every right to defend himself pursuant to s. 34 of the Criminal Code.

[32] I agree with Mr. Goldkind's position that the officers could well have arrested Mr. Gibson as soon as he hid the merchandise under his sweater and moved to another part of the store. Pursuant to s. 322 (2) of the Criminal Code "a person commits theft when, with intent to steal anything, he moves it or causes it to move or to be moved, or begins to cause it to become movable." The Crown need not prove that an accused left the store without paying if, on the basis of other circumstantial evidence, it can prove that an accused hid property in his sweater and moved to another area of the store, all the while intending "to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it": Criminal Code s.322 (1)(a); R. v. Kessel, [1991] O.J. No. 2413 (Ont. C.J.); R. v. McLean, [1995] A.J. No. 1008 (Alta P.C.). Proof may be difficult, however: R. v. Nesbitt (1972), 2 O.R. 585 (C.A.).

[33] But even though the loss prevention officers could have arrested Mr. Gibson in the store, in my view the theft of the batteries was an ongoing transaction that was still underway when the men arrested Mr. Gibson, just past the cash registers. In R. v. Abel, [2008] B.C.J. 197 (C.A.) at paras. 28-63, S. D. Frankel J.A. provides a complete review of the history of the law concerning citizens' arrests and, in particular, the meaning of "finds committing". Paragraph 44 is particularly instructive:

Henri Elzéar Taschereau, one of the judges of the Supreme Court of Canada, in his commentary, The Criminal Code of the Dominion of Canada, as amended in 1893, 3d ed. (Toronto: Carswell, 1893), had this to say about "finds committing" (at 621):

It has been held that where a statute gives a power to arrest a person found committing an offence, he must be taken in the act, or in such continuous pursuit that from the finding until the apprehension, the circumstances constitute one transaction: R. v. Howarth, 1 Moo. 207; Roberts v. Orchard, 2 H. & C. 769; and therefore, if he was found in the next field with property in his possession suspected to be stolen out of the adjoining one, it is not sufficient: R. v. Curran, 3 C. & P. 397; but if seen committing the offence it is enough, if the apprehension is on quick pursuit: Hanway v. Boultbee, 4 C. & P. 350. The person must be immediately apprehended; therefore, probably the next day would not be soon enough, though the lapse of time necessary to send for assistance would be allowable: Morris v. Wise, 2 F. & F. 51; but an interval of three hours between the commission of the offence and the discovery and commencement of pursuit is too long to justify an arrest without warrant under these statutes: Downing v. Capel, 36 L.J.M.C. 97.

[Emphasis added, italics in original]

See also: Crankshaw's Criminal Code of Canada, 2nd ed. (Toronto: Carswell, 1902) at 35; Tremeear's Annotated Criminal Code of Canada, 2nd ed. (Toronto: Carswell, 1908) at 33.

[34] Frankel J.A.'s careful review of the law drives me to the conclusion that the three loss prevention officers who believed they witnessed Mr. Gibson hide the batteries had the authority to arrest him when they did, as the act of apparently stealing the batteries was still ongoing as Mr. Gibson left the store without paying. The theft of the batteries was not a moment in time, but rather, an ongoing transaction that had not yet ceased when Mr. Gibson left the store.

[35] The fourth officer, David Wolczyk, who had not personally seen the hiding of the batteries, developed the power to participate in the arrest pursuant to s. 494(1)(b). He had been told of the alleged theft and assisted while Mr. Gibson was being freshly and lawfully pursued by his colleagues.

(b) What is the effect of the acquittal on the theft charge?

[36] While the Crown has failed to prove the alleged theft beyond a reasonable doubt, what matters as concerns the officers' right to arrest Mr. Gibson was whether they had reasonable and probable grounds to believe he had stolen the batteries. As I set out earlier, I accept the evidence of the officers in this regard. The fact that the Crown's case falls short of proving the theft beyond a reasonable doubt does not mean that the observations of the loss prevention officers fall short of providing reasonable and probable grounds for the arrest.

[37] The actions of the arresting officers were lawful and perfectly reasonable in the circumstances and Mr. Gibson had no right to resist his lawful arrest, whether he had in fact stolen the batteries or not.

[38] Mr. Goldkind argues, without any authority to support his position, that Mr. Gibson had the right to defend himself against the actions of the four men if he had not in fact stolen the merchandise.

[39] I reject this argument. Section 25 of the Criminal Code makes clear that the authority to arrest in these circumstances is not any less than the authority of a peace officer in the same circumstance. Mr. Gibson's duty to comply with his lawful arrest stands on the same footing.

D. CONCLUSION

[40] The arrest of Mr. Gibson by the four loss prevention officers was lawful and reasonably conducted. Mr. Gibson had no right to act the way he did. The alleged assault with a weapon and threatening have been proven beyond a reasonable doubt and I find Mr. Gibson guilty of those offences.

[41] As for the alleged theft, I believe that Mr. Gibson hid the batteries as the three men described and then walked through the store with them, thus committing the actus reus of theft. I am not satisfied, however that he left the store with the merchandise. I thus have a reasonable doubt that when Mr. Gibson hid the batteries and moved them, he harboured the intention to steal them. It is reasonably possible that he was thinking about stealing them, reserved his decision in the matter, and then finally decided not to and left the merchandise behind.

[42] Mr. Gibson is thus not guilty of the theft and must also be acquitted of the alleged robbery, which is based on the same alleged theft.

Released on September 2, 2020

Justice Russell Silverstein