COURT FILE NO.: CR-19-1689-00

DATE: 2020 11 23

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

P. Scrutton, for the Crown

• and -

ERIC MALONE

P. Brauti, for the Defence

HEARD: October 13, 14, 15, 16, 2020, in Brampton

REASONS FOR JUDGMENT

André J.

1The Peel Regional Police Force (“PRPF”) charged Sergeant Eric Malone, then a thirteen-year veteran of the force, with the offences of theft over five thousand dollars and breach of trust, following an investigation into a complaint that money belonging to the PRPF had been found in his residence. Sergeant Malone has denied that he knowingly took the money and jewellery recovered from a robbery from the temporary storage locker in the Central Robbery Bureau (“CRB”) where he had placed the items in April 2016. He also testified that, following the recovery of the jewellery and money, he had made no attempts to return the recovered property to their rightful owners. I am therefore left to decide whether Sergeant Malone’s guilt is the only reasonable inference I can draw from the totality of the evidence I accept in this trial.

SUMMARY OF THE EVIDENCE

2On April 13, 2016, two males, Nathaniel Brown-Malabre and Collins Olakami, robbed a jewellery store at a mall in Mississauga and made off with approximately twenty gold chains. They subsequently sold the stolen chains to a jewellery store for approximately $1,500 to $2,000. On April 15, 2016, Sergeant Eric Malone, then a police constable, arrested Mr. Brown-Malabre and recovered a quantity of drugs and cash on him. Another officer, Constable Adam Holland, recovered the stolen chains from the jewellery store where they were sold. Sergeant Malone testified that he ultimately placed the recovered jewellery and money in a temporary property locker in the property room of the CRB where he was assigned. The gold chains have not been seen since.

3Barbara McAlister, Sergeant Malone’s estranged wife, testified that during the spring or summer of 2017, she found a number of items underneath her husband’s bed. She then photographed the items, including a PRPF evidence bag, numbered B985183, which had a large quantity of U.S. and Canadian currency. The number on the evidence bag matched the number of the evidence bag in which Sergeant Malone had placed the money recovered from Mr. Brown-Malabre.

4On June 5, 2018, Richard Dorling, then a close friend of Sergeant Malone’s estranged wife, filed a complaint to the PRPF concerning the envelope and money that Ms. McAlister had photographed in the spring or early summer of 2017. The PRPF subsequently charged Sergeant Malone with the offences of theft over five thousand dollars and breach of trust.

ANALYSIS

5There is no dispute that the Crown’s case against Sergeant Malone is a circumstantial one, given that the stolen property placed in his custody disappeared from a property locker at the CRB where he worked and that some of that property was allegedly located under his bed a year later. In these circumstances, the legal test to determine whether the Crown has proven the officer’s guilt beyond a reasonable doubt is whether his guilt is the only reasonable inference to be drawn from the evidence.

6The Crown relies on the following evidence and submissions in support of his contention that the only reasonable conclusion that can be drawn from the evidence is that the officer deliberately stole the jewellery and cash recovered from Mr. Brown-Malabre:

a) It is agreed that Sergeant Malone recovered $980 from Mr. Brown-Malabre on April 15, 2016. The officer detailed the breakdown of the cash seized (4 x $100; 2 x $50; and, 24 x $20) in his notebook.

b) Mr. Brown-Malabre provided an inculpatory statement about the robbery and his role in it. He told the officers that they had sold the stolen chains to the Jewellery Exchange Store and that he and Mr. Olakami had split the proceeds. Sergeant Malone should therefore have known that the money found in Mr. Brown-Malabre’s possession was his share of the proceeds of sale of the chains. He therefore knew who the money had to be returned to when the opportunity arose yet failed to do so.

c) The officer testified that he placed the jewellery and money in a property storage locker in the property room of the CRB. He did so in clear violation of the PRPF’s established policies regarding the storage of money and jewellery. The officer violated these policies because of a formed intention to steal the jewellery and money recovered.

d) Sergeant Malone prepared an Occurrence Report (“the Report”) following his investigation. The Report lists eighteen items of property associated with the robbery and its investigation. The Report made no mention of the money and jewellery recovered during the investigation and entrusted in Sergeant Malone’s care. This is a deliberate omission, which constitutes evidence that the officer did not wish to relay information that these items had been recovered.

e) Sergeant Malone had ample opportunity between April 15, 2016, the date of Mr. Brown-Malabre’s arrest, and May 2017, after Mr. Olakami pled guilty, to return the jewellery and cash seized from Mr. Brown-Malabre. He failed to do so because he had formed the intention to steal the property.

f) Mr. Brown-Malabre and Mr. Olakami pled guilty to offences relating to the robbery in March 2017 and May 2017 respectively. There were no court orders addressing the forfeiture of the jewellery or money nor was there any mention or advertence to their status or location at either proceeding. The Crown contends that this was a deliberate omission on the part of Sergeant Malone, which was designed to enable him to steal the seized property without anyone knowing.

A. MONEY RECOVERED

7There is no dispute that Sergeant Malone recovered $980 from Mr. Brown-Malabre and that Constable Holland recovered fifteen gold chains from a Mississauga jewellery store that had been stolen during the April 13, 2016 robbery.

8There is also documentary evidence that, when Sergeant Malone returned to the CRB on April 15, 2016 following Mr. Brown-Malabre’s arrest, he prepared a document called a “Robbery Bureau Property Cash Record” in which he gave a breakdown of the denominations of the money he recovered from Mr. Brown-Malabre. He also testified that he gave the report and money to his supervising officer who confirmed that the money he counted corresponded with the information provided by Sergeant Malone on the Robbery Bureau Property Cash Record. This evidence indicates that, at the very minimum, Sergeant Malone created a record of the money he found on Mr. Brown-Malabre in his notebook and the Robbery Bureau Property Case Record, which he prepared. The creation of this record regarding the recovered money does not, in my view, support the Crown’s case that the officer tried to conceal the fact that he misappropriated the property.

B. FAILURE TO RETURN THE SEIZED PROPERTY

9The Agreed Statement of Facts indicate that Mr. Brown-Malabre told Sergeant Malone that the $980 found in his possession was his share of the proceeds of sale of the gold chains. This is significant given Sergeant Malone’s testimony that, after interviewing Mr. Brown-Malabre, he believed the accused’s statement to him that the money found in his possession came from his winnings at a local casino.

10I find this part of the officer’s testimony to be self serving and unworthy of belief. The testimony is self serving because it provides an explanation why Sergeant Malone did not return the money to the store that had paid Mr. Brown-Malabre and Mr. Olakami for the fifteen gold chains. It is simply incredible that a seasoned and experienced officer such as Sergeant Malone would have believed Mr. Brown-Malabre’s concocted story about winnings at a casino in light of the information received during the investigation up to that point. The fact that Sergeant Malone did not make any inquiries at the casino confirms, in my view, that he did not believe Mr. Brown-Malabre’s statement that the money found in his possession had been won at a casino.

C. STORAGE OF THE RECOVERED PROPERTY

11Kelly Jenie, the Central Property Coordinator for the PRPF, described the PRPF’s policy concerning storage of seized property during an investigation. Directive No. 1-B-151(F) (“the Directive”) sets out a procedure for the handling of “In Custody Finds”, which includes money that is either found, recovered, seized, surrendered, or issued by Court Orders, or money that is of evidentiary value.

12Section “F” of the Directive provides that, “All Officers handling in-custody finds shall ensure that the finds are”:

(a) recorded, stored and handled with due care for its preservation, security and status;

(b) considered items of special character requiring added protection and thus stored in a separate locked safe within the property room;

(c) secured in a designated property room and access to such rooms shall be limited to those persons specifically authorized by the Divisional Administrative Sergeant or designate;

(d) given a P.R.P. #16; with the following details on the P.R.P. #16:

1. a Niche generated Tag Number obtained after the report has been added to the Niche Records Management System (R.M.S.), or in the case of live dictation, D.D.S., or D.D.E. operator;

2. Country of origin of the currency;

3. Total value of currency involved;

Note: Roll any coins, if able to do so, and seal them in a property evidence bag.

4. Occurrence number;

5. evidence bag seal number;

6. name of associated accused, and/or owner, and/or finder, if known; and

7. name and badge of submitting Officer; and

Note: Currency from different Countries or origin shall be dictated to D.D.S. and/or D.D.E. on separate templates, and indicated separately on the P.R.P. #16.

(e) placed in a sealed evidence bag;

(f) added to the respective property I.D. template in Niche during D.D.S. and/or D.D.E. dictation by the investigating Officer;

(g) release in accordance with legislation, to its rightful owner;

(h) returned to the finder in the manner outlined in this directive; or

(i) deposited to the Peel Police Services Board (P.S.B.) fund.

13Subsection 2 of section “F” provides the following:

2. When submitting in-custody property to the Evidentiary Property Bureau in the absence of the Property Coordinator, the following procedure shall apply:

(a) Officers shall:

1. complete the “Evidentiary Property bureau Entry Ledger” located adjacent to the Property Lockers outside of the Evidentiary Property Bureau;

2. for narcotics related money, complete the “Evidentiary Property Bureau Entry Ledger” located within the Narcotics Exhibition Submission Area;

3. record the date, time and locker number along with the Occurrence number, their name, badge number and Division/Bureau/Unit; and,

4. for narcotics related money, ensure a completed HC3515, accompanies the submission; and,

(b) once on-site the Evidentiary Property Bureau Coordinator shall:

1. remove the property from the storage lockers and make an entry into the ledger with their name along with the time and date removed; and,

2. maintain and file copies of the ledger within the Evidentiary Property Bureau for audit purposes.

3. Where the ownership of in-custody money is unknown or in doubt, the Officer receiving the money shall ensure inquiries and investigations are conducted to determine ownership.

4. The O.I.C. shall ensure all paperwork and computer entries are completed and the property is submitted to the appropriate property room as soon as practicable, but no later than the end of their shift.

5. For additional information regarding the handling of funds related to Narcotics Occurrence Reports, members shall refer to P.R.P. Directive I-B-153 (F). Property – In-Custody Narcotics Related Property, I—B-703 (F) or any other directives dealing with “Narcotics Related Offences”.

6. For additional information regarding the handling of funds related to Fraud Occurrence Reports, members shall refer to P.R.P. Directive I-B-726 (F) or any other directives dealing with “Fraud Investigations”.

14Section “G” of the Directive provides:

G. Disposal of Sealed Property and Money

1. When disposal of sealed property has been authorized by the O.I.C., and there is no longer a necessity to maintain the continuity of the property, the Property Coordinator may open a sealed contained, or evidence bag, other than narcotics or money, in order to process the property for disposal in accordance with this directive. If the seizure involves narcotics or money, prior to breaking the seal, a Supervisor shall also be present to verify the contents of the sealed container. Should any discrepancies be noted at this time, the O.I.C. shall be notified to attend and submit a follow-up outlining the problem and what action is to be taken to clarify the situation [emphasis added].

Note: With respect to the final disposition of money seizures, in addition to having a Supervisor present, Officers shall only open and verify money in an area that is under constant video recording. Within the Evidentiary Property Bureau there are two designated video recorded money counting stations, the Narcotic Storage Room and Gun Locker – Central Property.

2. If the amount of money to be returned is $1000 or greater, the O.I.C. is responsible for the money return. The O.I.C. shall arrange for a time when both the O.I.C. and the person to receive the money, can attend the police facility. Monday through Friday, between the hours of 0800 to 1600 hours. The person receiving the money shall be required to provide sufficient identification such as a valid Driver’s License, a valid photo Health card, a valid Passport, or any other accepted government issued identification, such as a Citizenship Card. Once arrangements have been confirmed, the O.I.C. shall notify the Property Coordinator whom shall ensure personnel are available.

3. If the amount of money to be returned is less than $1000, then these monies can either be released by either the O.I.C. or a Property Coordinator in conjunction with their supervisor. The O.I.C. shall arrange for a time when the person to receive the money can attend the police facility, Monday through Friday, between the hours of 0800 to 1600 hours. The person receiving the money shall be required to provide identification such as a valid Driver’s License, a valid photo Health card, a valid Passport, or any other accepted government issued identification, such as a Citizenship Card. Once arrangements have been confirmed, the O.I.C. shall notify the Property Coordinator whom shall ensure personnel are available.

4. Prior to any funds being released, two persons, one being a Supervisor, shall verify the quantity of the funds on video (preferably at one of the two designated money counting stations). The funds will then be resealed in an evidence bag and then recounted in front of the individual to whom the funds are being returned, prior to being released. The O.I.C. or Supervisor who is responsible for the return shall acknowledge receiving the funds by signing the P.R.P. #16 and signing the Niche Property screen printout.

5. Once the funds are returned, the Property Coordinator shall update Niche, indicating who picked up the funds and the location where the funds were turned over, eg. 180 Derry Road, 12 Division, etc.

15The Directive also sets out what is required of an investigating officer regarding the storage and eventual disposal of the seized money. Paragraph 5 of Section “F” provides that

5. Investigating Officers shall:

(a) make all necessary inquiries and investigate to determine ownership of money;

(b) contact the owner of the money to arrange a suitable time for retrieval;

(c) prepare the P.R.P. #16 and place the money on D.D.S./D.D.E.;

(d) detail all items of money in the D.D.S./D.D.E. Report and on the P.R.P. #16, including:

(i) Country of origin of the currency;

(ii) the total value of currency involved;

(iii) Occurrence number;

(iv) evidence bag seal number;

(v) name of associated accused and/or owner, and/or finder if known; and,

(vi) name and badge of submitting Officer; and,

(e) ensure that all money is placed in a sealed evidence bag, along with a cash sheet which details the Occurrence number, denominations, quantities and totals;

(f) if applicable, ensure that entries have been made to C.P.I.C.;

(g) complete a P.R.P. Occurrence which clearly outlines the circumstance by which the property came to be in the possession of P.R.P.;

(h) ensure that all money is placed in the appropriate property room as soon as practicable, but no later than the end of their shift;

(i) at the Evidentiary Property Bureau, in the absence of the Property Coordinator:

(i) place property in the Property Locker and complete the “Evidentiary Property Bureau Entry Ledger” located adjacent to the Property Lockers outside of Evidentiary Property Bureau;

(ii) for narcotics related money, complete the Evidentiary Property Bureau Entry Ledger location within the Narcotics Exhibit Submission Area; and,

(iii) record the date, time and locker number along with the Occurrence number, their name, badge number and Division/Bureau/Unit. For narcotics related money, ensure a completed HC3515 accompanies the submission; and,

(j) authorize final disposal of money by adding a follow-up to Niche indicating disposition instructions and forwarding written authorization to the Property Coordinator as requested and, in the case of seized monies, handle the authorization for final disposal as per sections K.1 and K.2 of this directive; and,

(k) complete an “Order for Disposition of Disposition of Property” form available on P.R.P. Intranet “Forms”, Criminal Code Forms, under “Forfeiture Property Order – Federal and Superior” or “Forfeiture Property Order – Provincial and Superior” and include this form in the Crown Brief.

16Section “K” of the Directive provides that:

K. Seized Money

1. Where money is seized in the course of a criminal investigation and charges are laid, the O.I.C. shall:

(a) complete an “Order for Disposition of Property” form available on PRP Intranet “Forms”, Criminal Code Forms, under “Forfeiture Property Order – Federal and Superior” or “Forfeiture Property Order – Provincial and Superior” and include this form in the Crown Brief; and.

(b) upon conviction/acquittal, ensure that a Court Order is issued that provides directions for the seized monies (i.e. Forfeited or Returned to Owner – RTO).

2. Where money is seized in the course of a criminal investigation and no charges were laid or no Court Order was issued (upon completion of Court), the Officer shall provide a Niche follow-up detailing the following:

(a) provide a reason that no Court Order was issued (if charges laid);

(b) provide instructions for final disposition of seized monies taking into account the policy and procedures of P.R.P.;

(c) if final disposition instructions are that the money is to be deposited to the P.S.B. fund, provide sufficient detail to assist Finance and Planning in classifying the funds as per Section K.10. (a – g) of this directive;

(d) obtain approval from their Supervisor;

(e) ensure that the Supervisor’s name and badge number are entered in the instructions for disposal; and,

(f) forward written authorization to the Property Coordinator, as requested.

17Ms. Jenie testified that these provisions are all mandatory to preserve the integrity and transparency of all investigations regarding the seizure of property including money and jewellery.

18Regarding the gold chains and money seized by the PRPF during the investigation of the April 13, 2016 robbery, Ms. Jenie testified that there is no evidence that the gold chains were lodged in the Central Property Room, as mandated by the Directive. Furthermore, in the Occurrence Details #PR160146450 prepared by the Officer in Charge of the investigation, there is no reference to money or gold.

19Ms. Jenie testified that the hours of operation of the Central Property Unit (“CPU”) were 7 a.m. to 4 p.m. If an officer needed to retrieve property from the unit, he or she would call the Staff Sergeant, who would either attend at the unit to retrieve the property or require one of the five property managers of the unit to attend. One of these managers, after retrieving the property, would meet the requesting officer in the vestibule of 180 Derry Road, Mississauga, where CRB and Central Property are located, and hand it over to the officer.

20The Crown contends that Sergeant Malone did not follow this mandatory directive, which required him to store the seized gold chains and money in the Central Property Unit, because he intended to steal these items. Sergeant Malone testified that he did not follow the PRPF’s directive because it was common and accepted practice in the CRB for property during an investigation to be stored in storage lockers located in the Property Room of the bureau. He testified further that this room was always unlocked and also always open. Furthermore, the storage lockers in the room were also unlocked and both police officers and civilians working in the CRB had access to the room. Additionally, police officers used the room as a change room.

21At first glance, Sergeant Malone’s testimony that he did not comply with the PRPF’s mandatory policies regarding storage of seized property because of the common practice at CRB appears to be nothing more than a cynical attempt to explain away the disappearance of the gold chains and money. However, a number of witnesses called by the Crown testified that it was a common practice that the CRB Property Room was used by officers as a temporary storage area for seized items rather than the CPU.

22For example, Sergeant Adam Holland testified that the practice of using the CRB’s Property Room as temporary storage existed long before he was at the Bureau. Sergeant Holland testified that property has been stored in the CRB property room for months. He also testified that the CRB’s property room was available to police officers, civilians, supervisors, and cleaners.

23Inspector Donald Ross, who was Sergeant Malone’s supervisor in 2016, testified that he had no knowledge at the time that police officers in CRB used the property room as temporary storage. He could not recall a property room tag on any door to the room he knew as the change room. He testified that the sign was not on the door under his command and that if an officer seized cash during an investigation it should be filed in the CPU.

24Detective Steve Nickson, who worked in the CRB from 2012 to 2017, testified that it was a common accepted practice that the property room was used to store property seized during a police investigation. He testified that there was no limit on what was stored there or for how long. He also testified that he “signed off” on the Robbery Bureau Property Cash Record, which Sergeant Malone had prepared in the robbery investigation. He expected that the money would be returned to its rightful owner if it had no forensic value. He further testified that no cash was recorded on the “Niche” template in accordance with the PRPF’s directive. He also confirmed that the property room door was always open and that the doors of the filing cabinets where property was stored were never locked. He stated that he had seen cash stored in the filing cabinets in the room. When shown a photo of the money recovered in Sergeant Malone’s house, the officer stated that there was no American currency in the evidence bag he saw in April 2016. He also stated that there were no fifty-dollar bills shown in the photograph and that the evidence bag Sergeant Malone showed him in April 2016 had a number of fifty-dollar bills.

ANALYSIS

25I am mindful of the fact that Sergeant Holland and Detective Nickson may well have tailored their evidence concerning the use of the property room and its availability to virtually everyone connected with CRB, to assist Sergeant Malone in his defence to the charges. However, they used the CRB’s property room much more than Inspector Donald Ross and, to that extent, would be in a much better position to comment about the common practices associated with that room.

26Those practices relating to the temporary storage of evidence in the CRB property room constitute a shocking disregard for the PRPF’s directive concerning the storage of evidence following a criminal investigation. This disregard may well call into question evidence in numerous trials involving the CRB to the effect that continuity of evidence had been established and that only the officer in charge had access to the stored evidence.

27However, the effect of the evidence of Sergeant Holland and Detective Nickson undermines the Crown’s submission that Sergeant Malone’s failure to store the gold chains and money in the CPU was intentionally done for the specific purpose of selling the property. It could equally have been the result of merely following what other police officers had done in the past.

28There is other evidence in this trial that supports a conclusion that the blatant disregard for PRPF’s policies may not necessarily be the result of any dishonest intentions. Indeed, the Agreed Statement of Facts indicate on page 5 that:

An investigation was commenced which revealed that the property at issue was never submitted to Central Property and has yet to be located. The investigation also revealed that officers within the CRB had generally not been following PRPS property procedures. With regard to Det. Malone, it was determined that there was property for which he was responsible for that was misfiled in unrelated case files, property which appeared to be missing but not stolen (e.g. one blood stained running shoe, a ripped hoodie, etc…) and additional property which cannot be linked to any particular file.

D. SERGEANT MALONE’S PREPARATION OF AN OCCURRENCE REPORT

29The Occurrence Report prepared by Sergeant Malone lists eighteen property items associated with the investigation, but made no mention of the jewellery and money recovered during the investigation. This omission, the Crown contends, constitutes circumstantial evidence that the officer stole the property in question and ensured that no one reading the report would know that money and jewellery had been recovered.

30Sergeant Malone attributed his failure to mention the jewellery and money and his failure to follow the PRPF’s policy regarding the return of seized property to the volume of work he struggled with during the period of his investigation of the robbery. A number of Crown witnesses, including Sergeant Holland, Detective Nickson, and even Inspector Ross, all testified that the CRB was very busy at the time. Inspector Ross testified that “hundreds” of Occurrence Reports prepared by various officers would come across his desk. Regarding the absence of any mention of money recovered from Mr. Brown-Malabre in the report, Inspector Ross downplayed the significance of this omission by testifying that the report is simply a preliminary document for the Crown to gauge the strength of its case.

31Although Sergeant Malone did not make mention of the recovered money in the Occurrence Report he prepared, he documented the money recovered from Mr. Brown-Malabre in his notes. He also counted it upon his return to the CRB on April 15, 2016, and prepared a “Robbery Bureau Property Cash Record” detailing the denominations of the money recovered, and presented it to Detective Nickson for verification. These steps, in my view, are at odds with the suggestion that the officer sought to conceal his recovery of the money as part of a cynical attempt to steal it.

E. OPPORTUNITIES TO RETURN THE PROPERTY

32The Crown submits that Sergeant Malone had numerous opportunities to return the gold chains and money and that his failure to do so reflected an intention to steal them. Specifically, the Crown contends that the officer could have returned the property after Mr. Brown-Malabre’s arrest and Mr. Olakami’s arrest four days later, and after both accused pled guilty in March and May 2017, respectively.

33Sergeant Malone testified that he did not return the cash following Mr. Brown-Malabre’s arrest because the investigation was still ongoing. He also testified that he believed Mr. Brown-Malabre’s statement that the $980 retrieved from him came from Casino winnings. I have already noted that I find this latter explanation for the failure to return the money to be preposterous.

34Regarding his failure to return the property after the accused pled guilty for their roles in the room, Sergeant Malone testified that he simply forgot about the items in the CRB property room where he had left them in Locker #2. The reasons for this was that, while the robbery case was still pending, he was assigned to be the supervisor of an attempted murder investigation. As a result, he was transferred off his shift and worked on that case for eight months. Additionally, the robbery case arose at a time when he was experiencing a great deal of stress from marital problems. Furthermore, in March 2017, he was promoted to the rank of Sergeant and, as a result, was moved from the CRB to 11 Division, “D” Platoon on May 1, 2017.

35Sergeant Malone testified that his relationship with his wife deteriorated significantly between January and July 2017. Ms. McAlister confirms this when she testified, under cross-examination, that the relationship was “particularly bad” and that they slept in separate bedrooms. Although she denied being in a relationship at the time with Richard Dorling, she testified that Sergeant Malone assumed that this relationship was the reason for her wish to end their marriage.

36Sergeant Malone testified that he forgot about the property given his workload and work reassignment after receiving a promotion in March 2017.

37Mere forgetfulness about fulfilling such an important aspect of a criminal case does not accord, in my view, with the testimony of Sergeant Holland, Detective Nickson, and Inspector Ross that Sergeant Malone had a general reputation among his peers and colleagues for efficiency, hard work, and professionalism. However, the fact that Sergeant Malone’s notes, which included a breakdown of the money seized from Mr. Brown-Malabre, were given to the assigned Crown weakens the suggestion that Sergeant Malone wished to keep the Crown in the dark about the money and gold chains recovered as part of the investigation in the robbery. Additionally, it is conceivable that, as a result of the problems in his marriage, his assignment out of the CRB, and his promotion, Sergeant Malone could very well have overlooked the property which had been kept in the CRB property room.

F. LOCATION OF THE PRPF EVIDENCE BAG IN THE HOME OF SERGEANT MALONE

The Evidence

38Barbara McAlister testified that she married Sergeant Malone in 2003 and separated from him on January 24, 2017, after they returned to Canada from a one-week vacation in the Dominican Republic. The two had marital problems in 2016 largely stemming from Richard Dorling, a police officer in Waterloo, who had befriended them.

39Following the separation, Ms. McAlister moved out of the couple’s bedroom, but the two continued to live under the same roof until she eventually moved out of the residence in July 2017. Between January and July 2017, the two agreed to split expenses evenly. Ms. McAlister started to have suspicions that she was paying for things that Sergeant Malone had purchased for himself. She started to look around his bedroom. She testified that she found cutlery, bedsheets, a Costco rebate cheque in the amount of $300, and a bag of money under her husband’s bed. She made her discovery in May or June 2017.

40Ms. McAlister pulled the items from under the bed and photographed them. She also photographed the money found under the bed. She did not rip the bag open; it already had a tear in a corner. Ms. McAlister testified that she did not think too much of the bag; she assumed that the money was from her husband’s bank account. After taking the photographs, she placed the bag where she had found it.

41Ms. McAlister later confronted her husband about the items she found. She testified that he told her to “stay the fuck out of my room”. She later told Richard Dorling and another friend about what she had found. She eventually provided the PRPF with the photograph of the money in June 2018, following a verbal altercation between Richard Dorling and Sergeant Malone at her son’s baseball game in June 2018.

42Under cross-examination, Ms. McAlister testified that she went through everything in Sergeant Malone’s bedroom. She could not recall if there was a banker’s box in the bedroom but agreed that had there been such a box in the bedroom, she would have gone through it. She agreed that there was more than CAD $700 and more than US $90 in the bag. Defence counsel put to Ms. McAlister that she testified at the preliminary hearing she could not recall what she had done with the bag of money after finding it. He also put to Ms. McAlister that she had testified at the preliminary hearing that she had not raised the issue of the money during her confrontation with Sergeant Malone after finding the items. She replied that she could not remember bringing up the money. She also agreed that there was no mention about the money in her police statement. She denied finding the money in a banker’s box or ripping open the evidence bag which contained the money. She also denied placing any U.S. money into the bag.

43Ms. McAlister further testified that two friends, who had unrestricted access to Sergeant Malone’s bedroom, helped her move out of the residence. Sergeant Malone was not in the residence when she moved out in July 2017.

44Sergeant Malone testified that in late May, or early June 2017, he received text messages from then Constable Holland to pick up his property at the CRB. His supervisor, Darling Smith, also sent him messages for him to come and pick up some boxes he had at the branch. In mid June 2017, he went for the boxes. There were three in total. He did not pack them and did not know who did. The boxes were stacked against his old desk.

45He had a conversation with Constable Holland. During this conversation, he took off the lid from the top box. He saw dress shoes, running shoes, a water bottle, and a bunch of papers. He looked at the other two and saw a number of file folders and paperwork. Constable Holland helped him to carry the boxes to his cruiser. He then drove to 11 Division in Mississauga where he placed two of the boxes in a temporary property room, which had approximately 60 boxes. He later took the third box with the dress shoes to his home and placed it in front of his bedroom closet on the floor.

46Sergeant Malone confirmed that his wife confronted him in 2017 about items she had discovered under his bed. He claimed, however, that she had made no mention of any money except for the Costco cheque.

47He testified that he only went through the banker’s box after his wife moved out of the residence in July 2017. He retrieved clothes, socks, shoes, two cellphones, two or three discs, and “junk drives” from the box. He did not see any gold chains or money in the box. He did not know if those items had been within it.

48He later brought the discs, cellphones, and “junk drives” back to 11 Division and placed them in the same room where he had placed the other two boxes.

49Sergeant Malone also testified that, prior to going to the Dominican Republic, he purchased U.S. $400 and received another U.S. $100 from his father. When he returned to Canada, he placed the U.S. dollars he had returned with on a ledge above his bed next to his change drawer. He found out just prior to August 8, 2017 that the U.S. dollars had disappeared. He never found it.

50Sergeant Holland testified that, in late June or early July 2017, Sergeant Malone contacted him and said that he had been asked to pick up property at the CRB. He then assisted Sergeant Malone in loading boxes into his cruiser. There were three banker boxes which had been next to the desk of “B Platoon”, of which Sergeant Malone had been a member. He could not recall if Sergeant Malone had looked into the boxes. He did not see Sergeant Malone pack the boxes.

Analysis

51There is no question that Sergeant Malone took the evidence bag, presumably with the money recovered from Mr. Brown-Malabre, from the CRB to his home. The only question is whether he did so intentionally or inadvertently.

52The Crown submits that the former is true. He relies on Sergeant Malone’s failure to store the chains and money in the CPU, his failure to record it in the PRPF’s system and to return it to their rightful owners. Most importantly, the Crown points to an email sent by Darlene Smith to police officers under her command in November 2017, to pick up their property at the CRB. If Sergeant Malone picked up his property after this email, then given Ms. McAlister’s testimony that she found the money in June or July 2017, Sergeant Malone must have taken the money from the CRB before he retrieved his property from the CRB.

53Sergeant Malone denied that he had removed the three boxes in November 2017, as opposed to May or June 2017. His evidence regarding the timing of his removal of the three boxes is corroborated by Sergeant Holland, a Crown witness. Additionally, if Sergeant Malone had stolen the money while the case of Mr. Brown-Malabre was pending or shortly thereafter, one wonders why he would have kept the evidence bag for a number of months, thereby creating the risk of it being found.

54The Crown submits that, given Ms. McAlister’s testimony that she found the evidence bag with money underneath Sergeant Malone’s bed, he knew of its presence in his home and therefore stole it from the CRB. The Crown submits that Ms. McAlister’s credibility is bolstered by the fact that (a) she did not contact the police about the photograph showing the money, and (b) she testified that she did not wish to be a witness in her husband’s trial.

55Undoubtedly, Ms. McAlister testified in a clear and straightforward manner and did not manifest any animosity towards Sergeant Malone. However, her testimony was less than precise about a few important details surrounding her interaction with her husband in 2016 and 2017.

56For example, she testified that she went searching for evidence which may be helpful to her as her marriage deteriorated. She located a few items under her husband’s bed including the envelope which contained the currency in the amount of CAD $720 and U.S. $90. Under cross-examination, Ms. McAlister agreed that the bedsheets and cutlery were valued at approximately $60 each or $120 altogether, to which she was owed $60 based on her agreement with Sergeant Malone to equally split their expenses. Assuming that she was entitled to fifty percent of the $300 Costco cheque, she would be owed approximately $210 by Sergeant Malone for her contribution to the purchase of the sheets and cutlery and her share of the Costco cheque. Therefore, the money she found under the bed would have been three to four times the combined value of the cutlery, sheets and cheque.

57Despite this, Ms. McAlister could not remember whether she confronted Sergeant Malone about the money she photographed. She testified at the preliminary hearing in this matter that she did not recall doing so. She testified in the trial that she put back the money where she had found it but testified in the preliminary hearing that she could not recall what she had done with it.

58Ms. McAlister also appeared to have had problems about details of her relationship with her husband. She could not recall if there was a banker’s box in his bedroom, but nevertheless testified that, if she had seen one, she would have examined its contents. Furthermore, she could not recall withdrawing $10,000 from her husband’s line of credit in 2017, which I find to be a significant sum of money.

59Additionally, Ms. McAlister testified that when she saw the money, it never occurred to her that the plastic bag in which it was found was a PRPF evidence bag that clearly stated, Property Robbery Bureau “Cash Record” with a label indicating in bold print, “Prisoner’s Property”. Her apparent failure to come to that conclusion is, in my view, even more amazing given the fact that she emptied the bag, spread out the currency and took a photo with the two labels clearly visible in the photograph. Finally, Ms. McAlister conceded in cross-examination that she had initially lied to the police when she denied having the original photograph, which she had sent to Mr. Richard Dorling. For these reasons, I have a reasonable doubt about where Ms. McAlister found the money.

60Additionally, the evidence does not establish that the money found by Ms. McAlister is the same money recovered during the robbery investigation. The denominations of the money found in Mr. Brown-Malabre’s possession and that found by Ms. McAlister do not match. Secondly, there was no U.S. currency recovered on Mr. Brown-Malabre. Thirdly, one of the Crown’s police witnesses testified that if U.S. money was found on an accused, it would be placed in a separate evidence bag.

61Sergeant Malone could still be convicted of theft if the circumstantial evidence nevertheless establishes beyond a reasonable doubt that he took the money found in the evidence bag. I have a strong suspicion that he did so, but there are competing inferences to be drawn from the evidence. Ms. McAlister testified that she never saw Sergeant Malone with the money after she took the pictures. She denied helping herself to it. However, she had two helpers when she removed her possessions from the residence who, she testified, went through the residence, including Sergeant Malone’s bedroom, to gather her belongings. If the money was still in the bedroom, these individuals would have had the opportunity to help themselves to it, although there is no evidence before me that either did so.

G. REPORTING OF THE INCIDENT

62Mr. Richard Dorling filed a complaint with the PRPF about an altercation with Sergeant Malone in June 2018 during a baseball tournament. In describing the incident, Ms. McAlister testified that Sergeant Malone had gotten upset when he found out that she had taken their son Ethan to lunch with Mr. Dorling. Sergeant Malone had then walked up to Mr. Dorling, called him a parasite, and accused him of ruining his marriage. Mr. Dorling then called Sergeant Malone a drunk and a “dirty cop”. Sergeant Malone had then walked up to Ms. McAlister and told her that he could not believe she had told that to Mr. Dorling – a comment which she assumed was in relation to Mr. Dorling accusing him of being a dirty copy. In cross-examination, Ms. McAlister testified that Mr. Dorling told Sergeant Malone, “You are a dirty cop who steals money”.

63In my view, neither this utterance or that attributed to Sergeant Malone constitutes evidence that Sergeant Malone stole the money that is the subject of the charge against him. At best, the statement attributed to Mr. Dorling reflects his opinion, based on whatever Ms. McAlister may have said to him. She could not have told him that Sergeant Malone had stolen the money from the PRPF given her repeated testimony that she believed that the money had come from Sergeant Malone’s bank account.

H. EVIDENCE OF GENERAL REPUTATION

64Sergeant Holland, Inspector Ross, and Detective Nickson all testified that Sergeant Malone had an excellent reputation among his peers for professionalism and ethical behaviour. That may be the case, but the evidence adduced by the Crown suggests that the officer did not always abide by the PRPF’s directives or even obey orders of his superiors. For example, his commanding officer cancelled his attendance at his son’s baseball game, but he nevertheless went to the game and rationalized his actions by stating that he was close to his division. Further, the Agreed Statement of Facts suggest that he did not always act in accordance with the PRPF’s directives. For these reasons, this evidence of general reputation has been accorded little weight in my analysis of the Crown’s case in this matter.

CONCLUSION

65In my view, the Crown has failed to prove, based on the totality of evidence that I accept, that Sergeant Malone’s guilt on the charges on the indictment is the only reasonable conclusion to be drawn from the evidence. To that extent, he is found not guilty of the charges.

André J.

Released: November 23, 2020

COURT FILE NO.: CR-19-1689-00

DATE: 2020 11 23

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

ERIC MALONE

REASONS FOR JUDGMENT

André J.