Court File and Parties
COURT FILE NO.: CR-6-2017
DATE: 2018-12-28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Applicant
– and –
TONY JOMMA Defendant
Counsel: D. O. Brisebois, for the Crown James Foord, for the Defendant
HEARD: December 13, 2018
REASONS FOR JUDGMENT
PELLETIER, J
[1] Mr. Jomma is charged with the fraudulent use of electricity between March 31, 2001 and May 5, 2016, contrary to section 326(1)(a) of the Criminal Code. He is alleged to have surreptitiously used the Hydro One utility for a total value of $74,851.47 by the occasional disconnection of the hydro meter at his business, an automobile repair shop in the town of Rockland.
[2] Mr. Jomma pleaded guilty on September 14, 2018 to the lesser offence of theft of less than $5,000.00 worth of electricity and concedes that his actions resulted in the wrongful appropriation of $4, 999.00 worth of hydro. He puts the Crown to the strict proof of the value of the theft.
[3] There is no direct evidence of the amount of hydro stolen. In order to prove the amount, beyond a reasonable doubt as an aggravating factor, or viewed as an essential element of the offence of theft of hydro in an amount exceeding $5,000.00, the Crown relies on circumstantial evidence and inferences which can be extrapolated from those circumstances.
[4] In brief, the Crown relies on an average use over a period of 8 years, going as far back as available records allow, and subtracts the actual billings from the total which the average use would generate for the period covered in the indictment. As compelling as this argument is, and while it could form the basis of a civil claim based on probabilities, I am not persuaded that the calculations set forth transcend probabilities to the point of proof beyond a reasonable doubt.
[5] There is no evidence of the number of occasions when the meter was disconnected. There is no evidence of the electrical load at the repair shop at any given time except when tested by Hydro One personnel upon the discovery of the theft on May 5, 2016. There is no evidence of the equipment requiring an electrical source at various times, or the rate upon which they were functioning. The Court cannot simply declare Mr. Jomma guilty of theft of Hydro in an amount exceeding $5,000.00 without specifying the amount. Arriving at such an amount requires the application of too many variables to permit for a conclusion of fact beyond a reasonable doubt.
[6] I agree that the records demonstrate significant variances in the billed hydro use at various times from an average of 2 KWH per day over a 62 day period in the summer of 2008, to a high average of 254 KWH per day over a 59 day period in the winter of 2011. Seasonal variances, volume of business and far too many other factors come into play in order for the Court to be able to reasonably conclude that an average use minus the amount actually recorded establishes the amount of the theft to the degree of certainty required in a criminal proceeding.
[7] Mr. Jomma may well have stolen $74,851.47 worth of electricity. He may have stolen less. The challenge, insurmountable in my view for the Crown, is establishing how much less he may have stolen. Indeed, the Crown may, in fact, be quite generous in its calculations. The variables, which distance the evidence from the truth cumulatively with the addition of each variable, renders the proof of what was stolen an unattainable objective.
[8] Mr. Jomma’s plea is accordingly accepted. He will be found guilty of theft of hydro in an amount not greater than $5,000.00, specifically $4,999.00 as per his admission.
[9] The matter is adjourned to February 28, 2019 at 2:00 pm in the assignment court to fix a date for sentence unless Crown and Defence counsel agree to speak to sentence on that day.
Pelletier, J.
Released: December 28, 2018
COURT FILE NO.: CR-6-2017
DATE: 2018-12-28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
Tony Jomma
REASONS FOR JUDGMENT
Pelletier, J.
Released: December 28, 2018