Court File and Parties

Court File No.: 7534/14 Date: 2016-04-25 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent W. O’Hanley, Counsel for the Crown

- and -

Glenn McLean, Applicant B. Willson, Counsel for Glenn McLean

Heard: April 25, 2016

Before: Varpio, J.

Reasons on Application for Directed Verdict

[1] At the close of the Crown’s case, the defence brought a directed verdict Application regarding counts #2 and #6 of the indictment. The Crown conceded the Application as it pertained to count #2. I therefore am dismissing that count.

[2] Count #6 involves the theft of gasoline. The Crown’s evidence indicates that the Accused drove up to the Canadian Tire gas bar in Elliot Lake on the morning of December 30, 2013. On that date, the Accused was working day shift as an OPP Constable. About an hour into his shift, the Accused drove his cruiser to the gas bar and the video evidence makes clear that he placed the gas hose nozzle into his cruiser and then into what looks like a gas can for several seconds. The gas can was then placed in the back seat of the cruiser. The Accused paid for the gas using an ARI card and drove away.

[3] Staff Sergeant Richard Riopel testified in the trial that each cruiser is equipped with an ARI card. An ARI card is a credit card that is assigned to a unique OPP vehicle and cannot be used for another vehicle. A written OPP policy was filed in support of that proposition.

[4] Sergeant Marty van Kessel testified that he was a Sergeant at the Elliot Lake OPP detachment from 2006 until the present. In that capacity, he was responsible for Fleet Management, which included the management of cars and the like. Sgt. van Kessel indicated that, prior to the Accused’s arrest, he had never seen a gas can at the detachment.

[5] Sgt. van Kessel also testified that there was a gas power washer that arrived at the Elliot Lake detachment in the fall of 2013. This was the only machinery at the detachment (other than motorized vehicles) that was gas-powered. It had been misplaced for a period of approximately 7 years and was “found” that fall, although it was missing a hose and nozzle. As such, it was not operational.

[6] Sgt. van Kessel testified that Inspector Percy Jollymore was the Inspector who had responsibility for the Elliot Lake Detachment. Insp. Jollymore did not like spending money and therefore replacement parts were only ordered before the Inspector’s retirement, which occurred around February of 2014.

[7] Sgt. van Kessel asked those responsible for the OPP records to find the receipts and/or other paperwork regarding the “parts order” but they were not located prior to Sgt. van Kessel’s testimony. Accordingly, the specific date of repair for the gas pressure washer remains uncertain.

Position of the Parties

[8] The defence submits that there is no evidence that the Accused took the gasoline in question for his own personal use. Such a lack of evidence, he submits, is fatal to the Crown’s case. Specifically, the defence indicates that there were machines at the OPP station that were capable of using the gas which was purchased by the Accused. The gas-powered pressure washer, other cruisers, ATV’s and snow machines all used gasoline and could easily have received the impugned gas.

[9] Defence counsel provided me with R. v. DeMarco, [1973] O.J. No. 533 (Ont. C.A.) and pointed to paragraphs 7 - 10:

It is to be observed that the definition of theft requires that the accused's conduct be both fraudulent and without colour of right: The King v. Clark, 5 C.C.C. 235 at p. 240.

The term "colour of right" generally, although not exclusively refers to a situation where there is an assertion of a proprietary or possessory right to the thing which is the subject matter of the alleged theft. One who is honestly asserting what he believes to be an honest claim cannot be said to act "without colour of right", even though it may be unfounded in law or in fact: Reg. v. Howson, [1966] 2 O.R. 63. The term "colour of right" is also used to denote an honest belief in a state of facts which, if it actually existed would at law justify or excuse the act done: Reg. v. Howson, supra. The term when used in the latter sense is merely a particular application of the doctrine of mistake of fact.

The existence of a colour of right negatives fraud. There may be an absence of any fraudulent intention, however, notwithstanding the absence of a colour of right to do the act in question, for example, the taking of another's property temporarily by way of a prank...

Conduct is not fraudulent merely because it is unauthorized unless it is dishonest and morally wrong…

[10] The defence submitted that, in light of DeMarco, there is:

a. No direct evidence that the gas was being used for improper purposes;

b. No direct evidence that the Accused did not have – or believed that he had – a colour of right to the gas (assuming the Accused’s position with respect to “a” fails);

c. No direct evidence that the gas was used for any dishonest purpose; and

d. No evidence capable of supporting such inferences.

[11] Defence also submitted that, since the Crown could not prove how much gas was pumped into the can, the Crown could not prove that the quantum of gas allegedly stolen was beyond the de minimis range.

[12] In response, the Crown conceded that its case is built upon circumstantial evidence regarding whether or not the Accused took the gas for something other than work-related purposes. Specifically, the Crown submitted that there are three pillars of evidence that would allow the Court to draw exactly such an inference:

a. The purchase of gas using an ARI card for anything other than the vehicle to which the ARI card is attached violates OPP policy;

b. The gas in question was placed into a non-OPP gas can; and

c. There is evidence to suggest that all gas-powered OPP machinery at the detachment had a unique ARI card dedicated to that machine.

[13] The Crown submitted that the threshold for drawing inferences at the directed verdict stage is very low and is effectively the same as the now well-known Sheppard test for committals after preliminary hearings. Further, any permissible inference of guilt ought to be drawn at this stage.

Analysis

[14] It has been agreed by the parties – and I concur – that the appropriate test to be used at this juncture is the test that originated in USA v. Sheppard, [1976] S.C.J. No. 106. The test was fleshed out in R. v. Monteleone, [1987] S.C.J. No. 52 at para 8:

Where there is before the court any admissible evidence, whether direct or circumstantial, which, if believed by a properly charged jury acting reasonably, would justify a conviction, the trial judge is not justified in directing a verdict of acquittal. It is not the function of the trial judge to weigh the evidence, to test its quality or reliability once a determination of its admissibility has been made. It is not for the trial judge to draw inferences of fact from the evidence before him. These functions are for the trier of fact, the jury.

[15] Accordingly, where a variety of inferences are capable of being drawn, the Court must, when determining an Application for directed verdict, make any reasonable inferences in favour of the Crown.

[16] As such, I must decide whether or not the Crown’s “three pillars” is capable of generating an inference that the gas in question was dishonestly used for something other than OPP purposes.

[17] I find that it is so capable.

[18] First, it is open to the trier of fact to find that all OPP vehicles are assigned unique gas cards as a result of both the policy filed as an Exhibit and S/Sgt. Riopelle’s evidence.

[19] Second, it is also open to the trier of fact to find that there were no gas cans at the Elliot Lake detachment as a result of Sgt. van Kessel’s evidence. Further, Sgt. van Kessel’s evidence would also permit the trier of fact to find that, as of December 30, 2013, the gas-powered washer was inoperable since the parts may have been ordered in early 2014. Finally, Sgt. van Kessel testified that there was no equipment – other than vehicles and the washer in question – at the Elliot Lake Detachment of the OPP that required gas for their operation.

[20] Accordingly, it is open to the trier of fact to find that Cst. MacLean pumped gas into a non-OPP gas can. It is open to the trier of fact to find that the quantum of gas pumped therein was beyond the de minimis range since the gas pump was placed inside the gas can for a significant period of time on the video.

[21] Third, the trier of fact could also find that Cst. McLean used the gas for non-work functions since all OPP equipment that required gas had ARI Cards associated with them. Such an inference would, by definition, require a finding that the usage was inherently dishonest since the OPP would be paying for gas it did not use.

[22] The defence asked me to consider the other evidence, including the inability of Sgt. van Kessel to fix the date at which parts were received. At this stage, I cannot weigh this evidence since, as Monteleone suggest, this is the function of the trier of fact – a role I acquire at the end of the trial, not at this juncture. The defence request is tantamount to weighing evidence, something that I can only do in a very limited fashion. Accordingly, I will not consider the other evidence as its consideration would take me beyond my permitted functions at this stage.

Order

[23] For the aforementioned reasons, I dismiss the Application.

Varpio J.

Released: April 25, 2016