SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 13-40000357-0000
DATE: 20141003
RE: R. v. Olujimi Shoga
BEFORE: Justice E.M. Morgan
COUNSEL:
Joshua Tupper, for the Crown
Daniel McMahon and S. Jack, for the Defendant
HEARD: September 29-30 and October 1, 2014
REASONS FOR JUDGMENT
I. Background
[1] Olujimi Shoga is charged under section 334 of the Criminal Code with two counts of theft of property with a value exceeding $5,000.
[2] The property in question belonged to Mr. Shoga’s employer at the time, Costco Wholesale Canada (“Costco”). Both counts relate to incidents which occurred in the early evening of August 25, 2011 at Costco’s Downsview store located at 100 Billy Bishop Way, Toronto (the “Store”).
[3] Mr. Shoga began working for Costco in 2000-2001 as a Loss Prevention Officer (“LPO”) at the Store. By all accounts he was a successful, well-respected employee who was considered to be good at his job. Costco’s Loss Prevention Manager for all of Eastern Canada, Mario LeCavalier, who had originally hired Mr. Shoga and who had followed his career, came from Ottawa to testify and indicated that prior to the incidents in question Mr. Shoga had no problems at work and was considered a successful LPO.
[4] The Crown contends that on August 25, 2011, a large-scale theft of merchandise occurred at the Store, and that a number of flat screen televisions, Blu-Ray and DVD players, “gel topper” mattress covers, and a large quantity of ink cartridges, were taken without having been checked out and paid for at the cashier. Costco’s inventory auditor, Grace Gilmore, testified that she did an audit of these products at the Store on August 26, 2011, the day after the alleged theft, and found that the shortage of merchandise at the Store amounted to a total value of just over $17,300.
[5] At trial there was some controversy, which will be addressed below, over just what, if anything, was stolen from Costco on August 25, 2011. However, the major issue in the case is whether Mr. Shoga was a participant in the theft, or, as the LPO on duty in the Store that evening, was the victim of a well-planned “diversionary theft” by a group of people with whom Mr. Shoga otherwise had nothing to do.
II. Legal issues
[6] It is trite law that the Crown must prove every element of the offense charged. In order to secure a conviction for theft, it must be shown that “[t]he taking was intentional, under no mistake and with knowledge that the [merchandise] was the property of another”: Lafrance v The Queen, 1973 35 (SCC), [1975] 2 SCR 201, at 214. Moreover, since section 334 of the Code specifies that the theft be of property worth over $5,000, the Crown must establish that the goods in issue exceed that value.
[7] As in all criminal cases, it must be kept in mind that, “[t]he onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt is inextricably linked to the presumption of innocence”: R v Lifchus, 1997 319 (SCC), [1997] 3 SCR 320, at para 13. This standard of proof may be described as “higher than the standard applied in civil actions of proof based upon a balance of probabilities yet less than proof to an absolute certainty.” Ibid, at para 14. It incorporates the notion that “a reasonable doubt is not an imaginary or frivolous doubt”, but at the same time insists that “if [I] believe the accused is probably guilty or likely guilty, that is not sufficient”: Ibid, at para 39.
[8] Accordingly, “a reasonable doubt is a real doubt based on reason and common sense upon a review of the evidence”: R v Starr, 2000 SCC 40, [2000] 2 SCR 144, at para 240 [emphasis added]. On the other hand, Mr. Shoga must be acquitted if I am unable to come to a determination “as to exactly where the truth of the matter lay”: R v Nimchuk (1977), 1977 1930 (ON CA), 33 CCC (2d) 209, at para 7 (Ont CA).
III. The August 25th incidents
[9] The two incidents in issue appear to have occurred within about a half hour of each other sometime around 7:00 p.m. on August 25, 2011. They were narrated at trial through the testimony of several Costco employees who were on duty that evening and who were each in the vicinity of the entrance to the Store when the merchandise was taken out. More importantly, the removal of the goods was captured on the Store’s security cameras. Several minutes of video footage were played by the Crown for three of its witnesses, who were able to describe the actions and conversations shown therein.
[10] In the first of the incidents, Margaret Hurdle can be seen manning the entrance door of the Store. She is wearing the distinctive red Costco vest, which identifies the Store’s staff to the customers. All of the customer service employees at the Store wear the red vests; Mr. Shoga, by contrast, wears ordinary clothing in order to blend in with the customers as he investigates suspicious activities and goes about his loss prevention duties in the Store.
[11] Costco operates as a form of club that makes its products available only to its members. As Ms. Hurdle described it in her testimony, a staff person is always stationed at the entrance to greet the customers, to check their membership cards and to take a running tally with a hand-held clicker of the number of people coming into the Store. In addition, there is staff stationed at the exit behind the cashiers in order to check the parcels being taken out of the Store and to match them against the purchasers’ receipts.
[12] In the first part of the security video, Mr. Shoga can be seen approaching Ms. Hurdle and speaking with her. She then removes her red vest and walks off camera around a corner to another part of the Store. Ms. Hurdle testified that Mr. Shoga asked for her help investigating a suspicious female shopper, and requested that she check if anyone meeting this description was in the washroom. Ms. Hurdle stated that from the door of the washroom one cannot see the entrance to the Store. She assumed that having sent her on an errand, Mr. Shoga himself would be watching the entrance in her place.
[13] The video shows that very shortly after Ms. Hurdle walked away from the entrance, so did Mr. Shoga. It is not clear where he went, but he left the entrance unattended. Moments later, a large woman pushing a flatbed trolley loaded with televisions, DVD players and other merchandise can be seen exiting the unattended entrance.
[14] Another witness who had a similar interaction with Mr. Shoga was Carmello Cellucci, who works as a sales associate in the electronics department of the Store. In the video, Mr. Cellucci can be seen in his red vest approaching the entrance position where Ms. Hurdle formerly stood. Mr. Cellucci testified that Mr. Shoga had asked him to cover the entrance in Ms. Hurdle’s absence.
[15] Just as Mr. Cellucci arrives at the entrance, a Black man in a grey shirt can be seen pushing a flatbed trolley stacked with what appear to be cartons of ink cartridges through the entrance door and toward the outside of the Store. At the moment that the man came through the entrance with the merchandise, Mr. Shoga himself had moved out of view. Mr. Cellucci testified that he did not see the man in the grey shirt at first, but at the last minute he noticed him just as he left the Store.
[16] Mr. Cellucci states that he called to Mr. Shoga and that the two of them went out of the Store and into the parking lot in an effort to follow the man with the merchandise. They turned the wrong way in the parking lot and so the man got away from them, at which point Mr. Shoga called 911. The telephone calls to the police emergency line – three in all – were played at trial, and Mr. Shoga can be heard telling the operator that a theft has taken place at the Costco store.
[17] Mr. Cellucci testified that he and Mr. Shoga watched the man in the grey shirt and the large woman load their merchandise in a white van and drive away. He said that Mr. Shoga told him that the 911 operator had instructed them not to approach the suspects, and that the police would investigate when they arrived. The recording of the 911 calls do not contain any such instruction by the police operator; nevertheless, several witnesses, including Mr. Shoga’s LPO superior, Mr. LeCavalier, testified that this was in fact standing policy at Costco. LPOs and other employees were not to approach or interact with suspected thieves unless they had actually seen them remove the goods from the Store’s shelves and exit the Store without paying. Neither Mr. Cellucci nor Mr. Shoga had witnessed the two individuals remove the merchandise from the Store’s shelves, and so they were not in a position to approach them.
[18] As a consequence of not approaching the suspects, Mr. Cellucci and Mr. Shoga failed to get the license plate number of the white van. Neither of the two individuals has ever been indentified and thus could not be called to testify or summonsed at trial. Further, Mr. Cellucci indicated that while in the parking lot looking for the man in the grey shirt, a person described as an Asian male was walking suspiciously around the parking lot and distracted Mr. Cellucci’s attention. Eventually, Mr. Cellucci was satisfied that this must be just another customer at the Store. The Asian man has likewise never been identified and could not be called to testify or summonsed to appear at trial.
[19] In the second security video, a young Costco employee named Neil Moncado can be seen wearing the red vest and manning the entrance at the same spot as Ms. Hurdle had been standing earlier. Mr. Moncado is approached by Mr. Shoga, who motions to him and apparently sends him off on an errand elsewhere in the store. Mr. Moncado testified that Mr. Shoga had asked him for help locating a suspicious person, and sent him to the clothing department in the middle of the Store. According to Mr. Moncado, one cannot see the Store entrance from the clothing department.
[20] Very shortly after Mr. Moncado leaves the entrance, Mr. Shoga himself walks away leaving the entrance unattended. At that very moment, the same Black man in the grey shirt that appeared on the previous video appears again pushing a flatbed full of merchandise – TV sets, Blu-Ray and DVD players, etc. – out of the entrance and toward the parking lot.
[21] All three of the flatbeds stacked with merchandise – the first one belonging to the large woman and the second two belonging to the Black man – exited the entrance door at a time when no staff person was there to stop them. The video does not show, and none of the witnesses could say, where the merchandise on the flatbeds had come from. It is the Crown’s contention that this merchandise was stolen from the Store, as it exited in a way that circumvented the proper exit and that ensured that the customer’s receipts would not be checked.
[22] Defense counsel points out that the entrance door is equipped with an alarm system, and that the security videos do not show any alarm going off as the supposedly unpaid-for merchandise goes through the entrance. Mr. LeCavalier testified that the alarm system, known as the sensormatic bars, was rather expensive to install and acted as an important loss prevention mechanism in the Store.
[23] Mr. LeCavalier also indicated that he thought it was the manufacturer’s job to ensure that the merchandise was security tagged for the sensormatic system, and that it was not the store’s responsibility to see that the goods were packaged in a way that would make the alarm effective. Mr. Cellucci, by contrast, testified that staff at the Store were given security tags to place on the merchandise themselves, and that these tags would set off the alarm if they were not de-activated by the cashier at the point of sale.
[24] No one ventured a reason as to why, if the merchandise was indeed stolen, the alarm was not activated when it exited the entrance to the Store. Whether the tags were the responsibility of the manufacturer or of the Store staff, there was no explaining why an expensive security system would be installed without ensuring that it worked. Defense counsel observes that it might be understandable if one or two items were overlooked by the staff in placing security tags on the Store’s merchandise; but it is hard to understand how three flatbeds loaded with stolen merchandise could have passed through the sensormatic bars without setting off the alarm.
IV. Was there a theft?
[25] Costco’s Loss Prevention Regional Manager for the eastern United States and Canada, Thomas Farano, testified that he came up from his office in New York to take the lead in investigating the August 25, 2011 incident. He arrived in Toronto several days later and watched the security videos and interviewed a number of Costco employees.
[26] Mr. Farano appears to have immediately distrusted Mr. Shoga. In cross-examination, he conceded that one of the first things he did was to accuse Mr. Shoga of lying about having called 911 on August 25th, despite Mr. Shoga having told him that indeed he did call the emergency number. As if turns out, of course, Mr. Shoga did call 911; the tapes of the three emergency calls were obtained by the Crown and played out loud in court.
[27] Mr. Farano also testified that he could assess the amount of goods that were stolen by watching the security videos and observing which products were on the three flatbeds that left through the entrance of the Store, and the quantity of those products. He testified, for example, that six flat screen television sets had been stolen that day; and, indeed, when one watches the security footage one can see that there are four flat TV boxes on one of the flatbeds and two on another.
[28] According to Ms. Gilmore’s inventory audit, however, there was a shortfall in the Store of only four TV sets. How did this supposedly coordinated team of thieves make off with six unpaid-for televisions, and have the Store’s inventory show that only four were missing? Ms. Gilmore could only guess at the answer. She indicated that the store sometimes had overages of inventory, and not just shortfalls, suggesting that it is possible that six were stolen on August 25th but that two were somehow gained in the days or weeks preceding that date – perhaps by having been delivered erroneously to the Store instead of to another Costco location.
[29] Ms. Gilmore explained that the inventory audits were typically done on a two week cycle, and that a counting of specific merchandise like flat screen TVs would have last occurred around the middle of August. It is therefore conceivable that other losses, or even gains through excess deliveries, took place during this two week period and that the August 26th inventory audit is not a completely accurate reflection of the merchandise losses the previous day.
[30] That said, Ms. Gilmore’s August 26th audit showed that in the electronics department, 19 items (TVs, DVD players, Blu-Rays) are missing from the Store’s inventory, for a total dollar loss of $6,345.81; in the office supply department, 182 items (ink cartridges) are missing from the Store’s inventory, for a total dollar $10,405.18; in the bedding and linen department, 8 items (gel topper mattress covers) are missing, for a total dollar loss of $624.96. These are precisely the items that were seen to be moved through the entrance of the Store, and the quantities, although not a perfect match, are in close proximity to those that were on the three flatbeds.
[31] Although it remains something of a mystery why the sensormatic bars did not sound an alarm when unpaid-for merchandise went through them, I do not consider this to cast any real doubt on the fact that goods were taken from the Store without going through the cashier. Mr. LeCavalier testified that Costco has not been able to locate any records that would show whether the sensormatic system was even working on the day in question. Given the video images of flatbeds full of merchandise exiting the unguarded entrance, and the closeness with which the inventory losses match what was on the flatbeds, I am satisfied that the Crown has proved that a theft of over $5,000 worth of merchandise did take place.
V. Perpetrator or victim?
[32] The real question in this case, as indicated at the outset, is whether Mr. Shoga was involved in the theft. A well-orchestrated “diversion theft” took place at the Store on August 25, 2011. Was it executed by Mr. Shoga and others, or was it executed against Mr. Shoga by others?
[33] It is the Crown’s position that Mr. Shoga was instrumental in sending Costco staff on a “wild goose chase” in order to remove them from the entrance and to thereby facilitate the theft. Crown counsel concedes that the evidence is entirely circumstantial, but he submits that the videos and the corroboration of the videos by Ms. Hurdle, Mr. Cellucci, and Mr. Moncado, demonstrate that Mr. Shoga “quarterbacked” the elaborate theft.
[34] Counsel for the defense summed up the case by observing that the Crown has established that Mr. Shoga’s conduct is, at most, suspicious. On one view of the security videos, he was at exactly the right place in the Store, at exactly the right times in the evening, to have aided the other participants in creating the diversion necessary for the theft. On another view of the videos, however, he was merely at the right place at the right times to be unwittingly useful to the thieves in creating their diversion.
[35] There is no easy way to choose between these two possibilities, and I do not have to. Even if I were to conclude that the former view is more likely correct than the latter, the Crown would not have satisfied the burden of proof. After all, “more is required than proof that the accused is probably guilty – a jury [or judge as trier of fact] which concludes only that the accused is probably guilty must acquit”: Lifchus, at para 36. I am not satisfied beyond a reasonable doubt that Mr. Shoga participated in the theft of Costco’s merchandise.
VI. Disposition
[36] Accordingly, Mr. Shoga is not guilty on the two counts with which he was charged.
Morgan J.
Date: October 3, 2014