COURT FILE NO.: 7534/14 DATE: 2016-06-13 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Wayne O’Hanley, Counsel for the Crown
- and -
Bruce Willson, Counsel for Glenn McLean GLENN MCLEAN
HEARD: Oct. 13, 14, 16, 19, 20, 21, 2015 March 21, 22, 23, 29, 30, 2016, April 20, 21, 22, 25, 26, 2016 and May 24, 25, 26, 27, 28, 2016
VARPIO, J
Reasons for Judgment
Overview
[1] In the instant trial, Constable Glenn McLean of the Elliot Lake detachment of the Ontario Provincial Police (“OPP”) stood charged with the commission of a variety of offences. These offences dealt with two broad areas:
- Serious domestic violence charges stemming from his relationship with the complainant, Ms. Karen Querat, as well as large frauds allegedly committed with her; and
- The alleged theft of property from the OPP including an Intoxilyzer 5000c and the theft of less than 5 gallons of gas.
[2] The trial was conducted over several months. By the end of defence submissions, the Crown had asked for all of the charges to be dismissed save and except for one count alleging the theft of an Intoxilyzer 5000c. As a result, I will only deal with the evidence that is relevant to the remaining charge.
Accepted Facts
[3] On or about December 16, 2011, Constable McLean took an Intoxilyzer 5000c home from the OPP detachment in Elliot Lake, Ontario. An Intoxilyzer is a machine that measures the concentration of blood alcohol in a person’s body. It is a relatively complicated machine. Only certain police officers are qualified to operate an Intoxilyzer. Those officers who are so qualified must undergo a week-long certification process. Constable McLean was a certified operator of the Intoxilyzer.
[4] Not unlike other equipment, the makers of the Intoxilyzer will periodically update the machine. The Intoxilyzer 5000c in question was decommissioned by the OPP in 2009 and replaced with an Intoxilyzer 8000c. The Intoxilyzer 5000c was still operable. In theory, the OPP could have continued to use the Intoxilyzer 5000c.
[5] One major difference between the Intoxilyzer 5000c and the Intoxilyzer 8000c had to do with the use of alcohol solution. The Intoxilyzer 8000c does not require any external alcohol solution to be added to the machine during the official course of its operation. The Intoxilyzer 5000c requires the inclusion thereof.
[6] After its decommissioning, the Intoxilyzer 5000c was stored in the men’s locker room of the Elliot Lake OPP detachment. It was stored in a silver carrying case. Unused alcohol solution was placed beside the decommissioned Intoxilyzer.
[7] In 2011, Constable McLean played on a recreational hockey team. On December 16, 2011, the team had a party at Ms. Dawn Longe’s residence. Constable McLean decided to bring the decommissioned Intoxilyzer to the party for the purposes of allowing people to blow into the machine. The Intoxilyzer has a function known as a “party blow” whereby multiple people can use the machine. The “party blow” function does not require the use of alcohol solution.
[8] After using the Intoxilyzer, Constable McLean packed the machine away. He did not feel like carrying the Intoxilyzer home after the party and, as a result, he left the Intoxilyzer at Ms. Longe’s residence. A week or two later, he attended at the residence to pick up the machine. He took the machine to his domicile and stored it there.
[9] In August 2012, Constable McLean and his then wife – Ms. Allyson O’Sullivan – separated. Constable McLean moved out of the matrimonial residence. The Intoxilyzer remained at the matrimonial home. In October 2012, Ms. O’Sullivan changed the locks to the residence. Ultimately, the Intoxilyzer was returned to the detachment by Constable McLean’s ex-wife in November of 2013. No one at the detachment had noticed that the Intoxilyzer in question was missing.
Disputed Evidence
Evidence of Sergeant Suzanne Gordon
[10] Sergeant Gordon was Constable McLean’s immediate superior. She testified with respect to a variety of offences, including the remaining charge before the Court. She indicated that, on November 8, 2013, she was off-duty when she received a text from Constable McLean on her personal cell phone. Constable McLean indicated that he needed to speak with her forthwith. Sergeant Gordon was aware of Constable McLean’s matrimonial difficulties and she believed that Constable McLean hoped to speak with her regarding his attendance that day in family court. Sergeant Gordon had a subsequent phone conversation with Constable McLean. Sergeant Gordon took notes of the conversation. During the course of the phone conversation, Constable McLean averred that he had taken the decommissioned Intoxilyzer from the station to his home and that his ex-wife was using the Intoxilyzer to extort more support from him. Constable McLean also mentioned that he had taken the Intoxilyzer to his house during “detachment clean-up” the previous summer. Sergeant Gordon made a specific note to that effect. Sergeant Gordon indicated to Constable McLean that there might be consequences for having taken the Intoxilyzer.
[11] Sergeant Gordon testified that she was unaware of an Intoxilyzer ever having been previously removed from the detachment.
[12] On Tuesday November 19, 2013, Ms. O’Sullivan returned the Intoxilyzer to the station. Sergeant Gordon testified that Ms. O’Sullivan did not return the alcohol solution with the Intoxilyzer. I note that it was conceded by the Crown that Ms. O’Sullivan returned the alcohol solution to the station with the Intoxilyzer.
[13] During the trial, Sergeant Gordon attended with Constable McLean’s personnel file. The file was relevant to the charges then before the court as well as Constable McLean’s defence thereto. The file had not been disclosed and the trial was delayed as a result. The file indicated that Constable McLean had previously been informally disciplined by Sergeant Gordon for misconduct such as leaving keys in a cruiser, leaving the “long-gun vault” open and other such acts.
[14] In this trial, Constable McLean originally faced charges regarding the theft of gasoline. A key component of Constable McLean’s defence to this charge involved the operation of a gas-powered washer. The power washer had gone missing from the detachment for several years, only to reappear (the exact date of the reappearance remained in dispute). Sergeant Gordon sent the following email upon her discovery of its return:
There has been an audit of all MSV, ATV and Marine supplies and MSV clothing – helmets-boots-gloves ect in the second garage. If you wish for something to be ordered or replenished please send me an email.
I am also pleased to advise that over the past two weeks a member??? Has returned the gas powered 1900 PSI power washer into the second garage cage. It was purchased around 2009 and mysteriously went missing. THANK YOU!
Evidence of Sergeant Marty Van Kessel
[15] Sergeant Van Kessel testified mainly regarding the alleged theft of gasoline. He testified that in the course of his 28 years at the OPP, he had “seen it all” including instances where OPP officers had taken hand-held radar devices home for snowmobile testing.
Evidence of Allyson O’Sullivan
[16] Ms. O’Sullivan testified that she is Constable McLean’s ex-wife. She testified that her marriage to Constable McLean dissolved in August of 2012 and that the parties separated at that time. She indicated that the locks/keypad on the home were changed in October of 2012. To her knowledge, Constable McLean did not enter the home after the keypad was changed.
[17] Ms. O’Sullivan testified that, in 2013, she found the Intoxilyzer in the matrimonial home. She knew that the silver box had been in the house for “a couple of years” but did not know what it contained. Inside the silver box, she found the Intoxilyzer. She understood that this equipment was used by the OPP to determine whether or not people were under the influence of alcohol.
[18] During the summer of 2013, Ms. O’Sullivan and Constable McLean were involved in family law litigation. Ms. O’Sullivan testified that Constable McLean did not speak with her about the Intoxilyzer.
[19] In cross-examination, Ms. O’Sullivan was shown a letter from Constable McLean’s matrimonial lawyer dated August 2013. In said letter, Constable McLean’s lawyer asked for the return of the Intoxilyzer so that he could return same to the OPP detachment. The letter also indicated that Ms. O’Sullivan was attempting to “extort” money from Constable McLean by using the Intoxilyzer as leverage. Ms. O’Sullivan testified that her lawyer did not show her said letter. Ms. O’Sullivan also testified that she returned several items to the OPP that were taken by Constable McLean, including a laminator that the OPP did not know was missing. Ms. O’Sullivan returned the Intoxilyzer to Sergeant Gordon on November 19, 2013.
Evidence of Constable McLean
[20] Constable McLean testified that he became a police officer in 1999 with the Elliot Lake Police Service. In 2003, he joined the OPP when that service amalgamated with the Elliot Lake Police Service. In 2005, Constable McLean became an Intoxilyzer technician and was approved for operation on the Intoxilyzer 5000c. In 2009, he was similarly approved as an Intoxilyzer 8000c operator.
[21] In 2009, the Intoxilyzer 5000c was decommissioned. Constable McLean was responsible for packing it up in its case. He stored the Intoxilyzer in the men’s change room of the Elliot Lake detachment. He testified that he was directed to take it out of service, which he did.
[22] He was of the opinion that the Intoxilyzer 5000c would likely be destroyed, although he had no idea how the Intoxilyzer would be destroyed.
[23] On the date that he removed the Intoxilyzer from the station, Constable McLean ended his shift at 6:00 pm whereupon he took the Intoxilyzer from the change room and walked it past several rooms to his motor vehicle. At that time, Constable McLean testified that the day-shift and night-shift were changing over such that there would have been several officers in the detachment.
[24] Constable McLean testified that he did not get permission from anyone to take the machine because he did not think anyone would have an issue with him removing same. Constable McLean offered that there may have been one or two people who might object to the fact that he was going to use the machine for entertainment purposes.
[25] Constable McLean testified that, at the December 16, 2011 party, he set up the machine and had individuals use its “party blow” feature. There were 25-30 people at the party, the majority of whom played Monday night hockey. The Intoxilyzer was the “hit” of the party. After using the machine, Constable McLean packed the Intoxilyzer away. Constable McLean drank alcohol for the rest of the evening and then walked home. Constable McLean anticipated that he would keep the machine for approximately 1 week, which encompassed his days off. At the end of the week, he anticipated that he would bring the machine back to the detachment.
[26] The Intoxilyzer ultimately stayed at the third-party residence for approximately two weeks as Constable McLean got side-tracked with the Christmas holidays. He believed that the machine was safe and that there was no issue keeping the machine at the third-party residence.
[27] At some point during the next two weeks, Constable McLean decided to bring the machine back to his residence. Given the success of the Intoxilyzer at the party, Constable McLean thought that he would bring the Intoxilyzer 5000c to another party that was to happen in a few months’ time, in association with the baseball season. Constable McLean therefore decided to leave the Intoxilyzer at his house.
[28] Constable McLean testified that it was not his intention to keep the machine forever. It was not his intention to steal the Intoxilyzer 5000c. Constable McLean testified that he was not concerned about having the machine at his house in that it was no longer functioning as per its original intended purpose.
[29] Later that spring, the anticipated party did not materialize and Constable McLean left the machine at his residence.
[30] During 2012, Constable McLean’s marriage was in the process of dissolving. The parties separated in August 2012. In October 2012, his wife received exclusive possession of the matrimonial home and she changed the locks and door codes. Constable McLean indicated that he had a hard time extricating some of his personal goods from the residence thereafter, including his police uniform. Over the course of the next year, he would reach out to Ms. O’Sullivan from time to time to negotiate the return of this property. Constable McLean testified that Ms. O’Sullivan would deny said return. Constable McLean testified that he asked his wife about the return of the Intoxilyzer. Ms. O’Sullivan would not agree to its return.
[31] Constable McLean testified that he did not wish to tell anyone at the detachment about the Intoxilyzer since the optics of the machine’s extended removal from the detachment might put him in a bad light. Constable McLean testified that he believed that his “worst case scenario” would involve a reprimand or potential loss of hours.
[32] In the winter months of 2012- 2013, Constable McLean was served with family court materials wherein Ms. O’Sullivan sought an increase in child support. The parties retained lawyers and, in August of 2013, Constable McLean instructed his lawyer to write a letter asking his ex-wife for the return of the Intoxilyzer. The letter was sent and it included a reference to the fact that Constable McLean was concerned that he could lose his job as a result of the missing Intoxilyzer. Constable McLean denied telling his lawyer that he could lose his job as a result of the Intoxilyzer’s absence. Constable McLean testified that he does not know where that reference originated.
[33] Constable McLean indicated that, in November of 2013, he and Ms. O’Sullivan attended family law court. Constable McLean “reluctantly” agreed to allow Ms. Querat to accompany him to court. At this time, Constable McLean decided to communicate with Sergeant Gordon. Constable McLean testified that as he was speaking with Sergeant Gordon, his head was “exploding because of what was going on with Ms. Querat [1] ”. He felt that the Intoxilyzer was a minor issue in comparison with the dissolution of the relationship with Ms. Querat and its consequences. Constable McLean indicated that, at the time of his conversation with Sergeant Gordon, he was concerned about the prospect of counter-allegations by Ms. Querat.
[34] Constable McLean decided to tell his superior what had taken place with the Intoxilyzer. Constable McLean denied mentioning to Sergeant Gordon that the Intoxilyzer 5000c was taken out of the detachment during the summer clean-up. However, Constable McLean made no notation of this conversation. As an aside, Constable McLean claims to have lost many of his notebooks from the relevant times. I note that such a notebook loss is certainly a suspicious turn of events.
[35] Constable McLean also indicated to Sergeant Gordon that he would be preparing a statement for submission with respect to the Intoxilyzer. It should be noted that Constable McLean did not prepare such a statement. In fairness to Constable McLean, a police investigation into Constable McLean’s activities began shortly thereafter which may have caused him to fail to follow through on this statement. I draw no inferences from this “non-submission”.
[36] In cross-examination, Constable McLean denied texting/calling Sergeant Gordon as a “pre-emptive strike”. Constable McLean told the court that he was calling to advise her of the happenings in his family court case. Further, any reference by Constable McLean to “detachment clean-up” was not for the purpose of advising Sergeant Gordon that the Intoxilyzer was taken during same. Instead, Sergeant Gordon misunderstood Constable McLean’s meaning. Constable McLean was simply using the detachment clean-up as a method of marking time, not to specify the time during which the Intoxilyzer left the detachment. Constable McLean was firm in this regard despite not having notes of this conversation.
[37] Constable McLean also testified that he had taken a binding machine and a laminator from the OPP detachment. These items had been kept at his former residence and were ultimately returned to the OPP. McLean indicated that he was not aware that the machines were returned to the OPP until he read disclosure in this file. He was not charged with its theft.
[38] Constable McLean was cross-examined for 2 days. During the course of cross- examination, he was confronted with the notion that he stole the Intoxilyzer 5000c. McLean responded by indicating that it would be “stupid” for him to steal the machine and then show it to 25 or 30 people in a small town like Elliot Lake. The inference McLean wanted the court to draw, obviously, was that “word would get around” in Elliot Lake that Constable McLean was in possession of the Intoxilyzer.
[39] Constable McLean indicated in cross-examination that he had told his friend and fellow officer Phil Nowiski that he had the Intoxilyzer, but did not specifically tell him that he kept the Intoxilyzer at his house.
[40] Constable McLean also admitted in cross-examination that he knew that the Intoxilyzer was to be used solely for law enforcement purposes.
[41] With respect to the two people who may have had a problem with Constable McLean’s removal of the Intoxilyzer 5000c, McLean testified that Sergeant Gordon and/or Sergeant Van Kessel may have taken issue with the removal of the machine. Constable McLean also indicated in cross-examination that he did not think it would be an issue to keep the machine for four months. He testified that he did not think anyone would miss a decommissioned Intoxilyzer.
[42] Also in cross-examination, Constable McLean admitted to lying to Sergeant Martin Beverage as regards Constable McLean’s domestic violence incident with Ms. Querat. Constable McLean also admitted that he lied to Ms. O’Sullivan regarding allegedly taping a phone conversation.
Evidence of Sergeant Peter Rancourt
[43] Sergeant Rancourt was called by the defence. He has been employed by the OPP since February 1988. He was once qualified as a breath technician in 1990. He testified that when he was so qualified, the OPP were using the Borkenstein breath machines. Sergeant Rancourt indicated that when the OPP switched from Borkensteins to Intoxilyzers, the Borkensteins were stored in a Breathalyzer room for an extended period of time at which point the Borkensteins were disposed of and recycled. Sergeant Rancourt testified that he had seen Breathalyzers leave the Blind River office and then get returned. He was aware of incidents where Intoxilyzers were used at transfer parties for entertainment purposes. He had also seen road-side screening devices used at similar events. Further, he had seen radar guns being used in baseball tournaments.
[44] Sergeant Rancourt testified that the members of the OPP would often disregard internal policies dealing with payment for office and/or sundry items like gasoline for the lawn mower.
Evidence of Constable Phillip Nowiski
[45] Constable Nowiski was also called by the defence. He was hired by the Elliot Lake Police Service in 1987 and became an OPP officer in 2003. He testified that he has been a police officer for almost 29 years, all of that time spent in Elliot Lake. He is a friend of Constable McLean’s and most of his evidence dealt with matters that were subsequently dismissed. He did, however, indicate that he has had occasion to borrow jumper cables, booster packs and hand-held radar (for snowmobile drag races) from the detachment. He also testified that he was aware that hand-held megaphones had been used during parades, outside the ambit of OPP official use.
Position of the Parties
Position of the Defence
[46] The defence indicated that there is no evidence that Constable McLean possessed the necessary mens rea for theft. Constable McLean indicated that it was always his intention to borrow the machine. Constable McLean indicated that he did not think anyone would mind if he “borrowed” the machine. The Intoxilyzer 5000c was a decommissioned item and was therefore worthless.
[47] During the course of defence submissions, the Crown conceded that based upon the culture at the Elliot Lake OPP detachment, Constable McLean had a color of right to take the Intoxilyzer out of the detachment for a limited period of time. Defence counsel therefore submitted that, given the wording of the charge on the indictment (“On or about the 16th day of December, 2011”), the existence of the temporary color of right is such that the charge before the court was not proven.
Position of the Crown
[48] The Crown submitted that Constable McLean can be convicted of theft because:
a) He intended to steal the Intoxilyzer when he took it from the detachment on December 16, 2011; b) While the Crown conceded that Constable McLean had the color of right to remove the Intoxilyzer for a brief period of time, that color of right did not extend to the length of time that the item was actually removed by Constable McLean. Specifically, five or ten months of removal went beyond the color of right that the culture provided its member officers [2] ; c) The Crown submitted that the worth of the machine, as well as its status as having been decommissioned, was irrelevant to the charges; d) The fact that the accused did not tell his superiors about the removal of the machines provides evidence that Constable McLean intended to steal the machine outright; e) The fact that Constable McLean took the alcohol solution boxes also demonstrated that he intended to steal the equipment since the alcohol solution boxes were not necessary for the “party blow” feature. The only reasonable inference to be drawn from the solution’s removal is that Constable McLean intended to remove all trace of the machine so as to avoid suspicion; f) Constable McLean did not return the Intoxilyzer immediately after the party; g) I ought to accept that Ms. O’Sullivan was a credible witness. Ms. O’Sullivan indicated in her evidence that Constable McLean did not communicate with her regarding the Intoxilyzer. Constable McLean had ample opportunity to raise the Intoxilyzer issue with Ms. O’Sullivan and his failure to do so provides evidence of his criminal intent; h) Constable McLean’s denial of a “pre-emptive strike” to Sergeant Gordon is not worthy of belief; i) Constable McLean in his cross-examination admitted that he lied to Ms. O’Sullivan as well as to Sergeant Beverage; and j) Sergeant Gordon’s notes clearly indicate that Constable McLean advised her that he had taken the Intoxilyzer home during a summer clean-up. As a result, Constable McLean lied to Sergeant Gordon and evidence is simply not worthy of belief.
Applicable Law and Statutes
[49] The count before the Court reads as follows:
THAT he, on or about the 16 th day of December 2011, at the City of Elliot Lake in the Algoma Region, did steal an Intoxilyzer 5000c, serial number 64003877, the property of the Ontario Provincial Police, contrary to Section 334 (a) of the Criminal Code of Canada.
[50] The Criminal Code of Canada defines theft as follows:
322 (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent
(a) 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;
(3) A taking or conversion of anything may be fraudulent notwithstanding that it is effected without secrecy or attempt at concealment.
(4) For the purposes of this Act, the question whether anything that is converted is taken for the purpose of conversion, or whether it is, at the time it is converted, in the lawful possession of the person who converts it is not material
Credibility and Reasonable Doubt
[51] When the accused testifies, the Court must weigh the evidence and consider whether it is satisfied that the Crown has proven the allegations beyond a reasonable doubt. The Supreme Court of Canada enunciated an appropriate framework for weighing such evidence in the context of a jury charge in case of R. v. W.(D)., [1991] 1 S.C.R. 742 at para 28:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused .
Mens Rea
[52] The Supreme Court of Canada described the mental element of theft in R. v. Lilly, [1983] 1 S.C.R. 794. In paragraph 10 of that decision, Lamer J, writing for a unanimous court stated as follows:
Rather, the accused defence was dependent on whether they, the jury, were satisfied beyond a reasonable doubt that he, the accused, had not, at the time of the transfers, an honest belief that he had the right to that money, and not, as they were told, dependent upon what they, the jurors, thought his rights were.
Particularization of Date and Time
[53] The Supreme Court of Canada discussed the surplussage rule in R. v. Cote; Vezina, [1986] 1 S.C.R. 2. In that case, it was determined that matters described in an indictment which are essential elements of the charge were not considered surplussage and had to be proven. Those items that were surplussage did not have to be so proven. In that case, the specification of trafficking in “heroin”, as opposed to “cocaine”, was held to be essential to the charge as described. In obiter at paragraph 60, the Court discussed a precedent dealing with dates and whether the specification thereof constituted surplussage:
Similarly, in R. v. Greene (1962), 133 C.C.C. 294, 38 C.R. 36, MacKay J.A., on behalf of the Ontario Court of Appeal, wrote at pp. 300-1:
In the present case the appellant does not allege that he was misled or prejudiced in his defence by the wrong date in the information, and while I think it might well have been the better course to amend the information when the evidence disclosed the error in the date, the failure to amend does not invalidate the conviction.
[54] The Supreme Court of Canada discussed the degree of particularization necessary in an indictment when specifying the dates and times of alleged criminal conduct in R. v. G.B., [1990] 2 S.C.R. 30. At paragraph 32 of the decision, the court stated as follows:
It is apparent from these cases that what constitutes reasonable or adequate information with respect to the act or omission to be proven against the accused will of necessity vary from case to case. The factual matters which underlie some offences permit greater descriptive precision than in the case of other offences. Accordingly, a significant factor in any assessment of the reasonableness of the information furnished is the nature and legal character of the offence charged. It is also apparent, however, that in general an information or indictment will not be quashed just because the exact time of the offence is not specified. Rather, the matter will continue on to trial on the merits. While it is obviously important to provide an accused with sufficient information to enable him or her to identify the transaction and prepare a defence, particularity as to the exact time of the alleged offence is not in the usual course necessary for this purpose. It goes without saying, of course, that there may be cases where it is.
Analysis
Defence on the Count as Particularized
[55] As regards to the “technical” defence of whether Constable McLean is guilty of the offence as particularized, it is clear that the Crown intended to specify the count to mean that Constable McLean stole the Intoxilyzer in question in the short period of time around December 16, 2011. Indeed, the term “on or about” typically connotes a short period of time whereby the time reference may not be specific, but is nonetheless relatively capable of being determined with some accuracy.
[56] In this case, the Crown did not seek to amend the indictment. The defence has called its case and submits that its evidence on the point was called so as to meet the case that the theft occurred “on or about December 16, 2011”. While R. v. Greene, supra , suggests that the exact date can typically be amended, the Crown made it clear that its position was that Constable McLean intended to steal the Intoxilyzer on December 16, 2016. Thus, the appropriate time frame to consider Constable McLean’s conduct is at the time he took the machine.
[57] The fact that the Crown conceded that Constable McLean had a colour of right to remove the Intoxilyzer constitutes a full defence to the particularized count since the actus reus not did not actually occur – based upon the concession – until a period of time after the colour of right expired. Since the charge was particularized as being “on or about December 16, 2011”, it cannot be said that a theft occurred at that time since the accused had a colour of right to remove the Intoxilyzer “on or about December 16, 2011”. For this reason alone, the charge is dismissed.
Mens Rea Defence
[58] If I am incorrect with respect to my view of the Crown’s particularization of the offence, I also have a reasonable doubt with regards to Constable McLean’s mens rea for theft. Specifically, I have a reasonable doubt that Constable McLean had the mens rea for theft at any time from December 16, 2011 until the Intoxilyzer’s ultimate return.
[59] At the outset, it should be noted that I accept much of the Crown’s submission with respect to Constable McLean’s testimony. Constable McLean’s refusal to acknowledge that his communication to Sergeant Gordon in November 2013 was a “pre-emptive strike” does not ring true. Anyone in Constable McLean’s position would want to present his superiors with his version of events before Ms. Querat presented hers. Failure to acknowledge this fact in cross-examination struck me as a witness attempting to “gild the lily”.
[60] Also, Constable McLean testified that his “head was exploding” at the time of the conversation with Sergeant Gordon. If his head was “exploding”, how could he possibly remember his exact representations – especially after an undoubtedly stressful day in family court where he had to face his allegedly extortionist ex-wife, while in the company of his allegedly assaultive current partner.
[61] Constable McLean’s explanation for mentioning the “summer clean-up” is equally suspect. Constable McLean also did not adequately explain why he used the “summer clean-up” as a time marker since the Intoxilyzer left the detachment in the winter. Accordingly, when contrasted with Sergeant Gordon’s specific note on the subject, Constable McLean’s explanation for the use of “summer clean-up” is weak.
[62] Further, the fact that Constable McLean took the alcohol solution from the detachment would also suggest that he intended to steal the Intoxilyzer since the “party blow” function did not require use of same.
[63] As regards Constable McLean’s admitted dishonesty, one can understand why Constable McLean may have lied to his ex-wife in a fit of frustration. [3] This fact causes me little concern.
[64] Constable McLean’s lie to Sergeant Beverage is more concerning, however, since the latter was engaged in official duties at the time at the time of the deception. As a police officer, Constable McLean, simply put, ought to have known better. This lie therefore causes me concern.
[65] Given the above, I have considerable difficulty with Constable McLean’s testimony. Nonetheless, portions of Constable McLean’s evidence are quite commonsensical. For example, why would someone stealing a piece of machinery as noteworthy as an Intoxilyzer take it to a party where 30 people were present. This is especially true in a community the size of Elliot Lake Ontario where, presumably, “word” is liable to travel quickly.
[66] Furthermore, I disagree with the Crown’s assertion that the implied licence to use OPP property for personal use necessarily operated for a limited time. One must examine all the evidence presented to the Court when determining whether the colour of right extended for a limited time. For example, I consider the following:
a) No one at the detachment noticed that the impugned Intoxilyzer was missing for 18 months; b) Constable McLean removed a laminator and binding machine from the OPP detachment. Apparently no one noticed that the machines were missing, and Constable McLean was not charged with theft of these machines; c) Sergeant Gordon testified that she did not receive the alcohol solution from Ms. O’Sullivan, despite the Crown having conceded same; d) The OPP were unable to locate a receipt – in a timely fashion – that would allegedly have potentially proven Constable McLean’s guilt with respect to the theft of gasoline; e) The power washer crucial to the theft of gasoline charge had gone missing from the Elliot Lake OPP detachment for several years. The tone of Sergeant Gordon’s email in this regard makes it appear as though its disappearance was not a major concern to the detachment; f) There was considerable mid-trial disclosure in this matter. For example, Constable McLean’s employment file was disclosed mid-trial. The employment file was apparently not disclosed despite the fact that it contained relevant evidence; and g) The evidence of multiple officers was that members of the OPP would remove OPP property for personal use.
[67] The cumulative effect of the foregoing is that the OPP detachment in Elliot Lake had, at the relevant time, a loose culture with respect to permitting the use of OPP equipment for personal use. Members of the detachment did not appear to be concerned about another officer’s personal use thereof. Further, the extended absence of the Intoxilyzer, power washer and laminator (coupled with the failure to notice same and/or apparent lack of concern in that regard), all cause me to believe that many officers did not care if other officers took equipment home for extended periods of time.
[68] In light of this loose culture, Constable McLean could reasonably have had an honestly-held belief that he was able to take the decommissioned Intoxilyzer home for an extended period of time. The machine was not in active use. Further, as Constable McLean testified, someone who intended to steal the machine would have been foolish to bring the Intoxilyzer to a party lest he risk discovery.
[69] Constable McLean maintained that he did not intend to steal the Intoxilyzer. Coupled with the OPP inventory culture described above, Constable McLean’s testimony that he never intended to steal the Intoxilyzer has resonance. The plausible nature of his position – relative to this lax environment – gives me a reasonable doubt in the matter, despite concerns that I may otherwise have with Constable McLean’s testimony. Thus, when I consider the second prong of the test described in W.D ., I must acquit Constable McLean.
[70] For the foregoing reasons I therefore find Constable McLean not guilty of the charge before the court. Count 1 is therefore dismissed.
Varpio J.
Released: June 13, 2016
Footnotes
[1] Without belaboring the fact regarding charges that have been dismissed, Constable McLean testified that the matters involving Ms. Querat came to a head around this time. He claims that Ms. Querat had broken his nose and that he had decided to terminate the relationship.
[2] Constable McLean appears to have lost control of the Intoxilyzer when his ex-wife changed the locks to the matrimonial home because he could no longer gain access to the machine. The time frame from the machine’s removal to the cancelled baseball party was approximately five or six months; the time frame from the Intoxilyzer’s removal to “lock change” was about ten months.