Siddiqui v. Mir, 2006 CanLII 1457 (ON SC)
Aly v. Halal Meat Inc. et al, 2012 ONSC 2749 (CanLII)
May 7, 2012Ricciuto v. Somers, 2013 ONCA 153 (CanLII)
March 14, 2013COURT FILE No.: Halton, 11-75
DATE: 2012·05·07
Citation: R. v. Es-Sayyid, 2012 ONCJ 430
ONTARIO COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
— AND —
Ash-Shaymaa ES-SAYYID
Reasons for Judgment released on May 31, 2012
Heard on December 20, 2011 and April 3, 2012Before Justice Frederick L. Forsyth
Michael Malleson, Mary Ward ……………………………………………………………………….. for the Crown
Anser Farooq ……………………………………………………………. for the accused Ash-Shaymaa Es-Sayyid
FORSYTH, J.:
SUMMARY OF THE EVIDENCE
[1] Ms. Es-Sayyid was charged with one count of theft under $5,000 arising out of an incident on December 28, 2010 in the Town of Oakville at a Walmart store pursuant to s. 334 (b) of the Criminal Code. The Crown elected to proceed summarily and the accused entered a plea of not guilty. Her trial commenced on December 20, 2011.
[2] The first witness called by the Crown by P.C. Tim Corbeil who testified in chief that he has been a Halton Regional Police officer since 2006 and he was dispatched to the Oakville Walmart store on Hays Boulevard on December 28, 2010 at approximately 11:20 a.m., arriving at 11:29 a.m. At that time, he spoke with the loss prevention officer, Ashley Falconi who provided him with sufficient information, in his opinion, for him to decide that her arrest of the accused was lawful. Therefore, at approximately 11:41 a.m., he continued to process the accused on the arrest for this charge which had been effected by Ms. Falconi before his arrival. He provided her rights to counsel to her and there is no issue with respect to that. He was informed that the accused had paid for some items and not for others before leaving the store.
[3] Mr. Farooq had indicated that there was no issue with respect to the voluntariness of any utterances made by the accused to P.C. Corbeil. Mr. Malleson asked the officer to tell the court what the accused had told him when he first began to investigate her. He said that she had told him that she did not need to steal the items and that she had forgotten and that her children had put the items in her cart, that is to say the un-purchased items. Specifically, he said that she told him there was a Wii accessory kit that one of her children had placed into the cart. After processing her, he released her on an appearance notice directly from the store.
[4] In cross-examination by Mr. Farooq, he was asked if anybody had shown him broken tags in connection with any of the allegedly stolen merchandise. The officer said that he could not recollect observing any tags and he could not recollect if anyone had told him that any of the tags had been broken off the shirts by the accused. The officer said that he had no note to that effect and he had no recollection of that. He confirmed that the only store person to give him any evidence on this charge was Ms. Falconi. He said that the Wii box was approximately one foot high and about eight inches wide.
[5] He was asked whether or not he had been informed that the accused had actually left the store before she was arrested or whether she had been detained inside the store. The officer referred to his notes, which earlier had been qualified by the court, and he was permitted to refresh his memory from them. He said that he had been told that the accused had left the store. He said that his note indicated that she had proceeded through the cash register without making “the purchase.” At that point, Mr. Farooq said, “Okay. She’s proceeded to the cash register but she hadn’t left the store.” Mr. Malleson objected on the basis of hearsay but the officer answered, “I’m not sure.”
[6] Mr. Farooq asked him if anyone had advised him whether or not there was a video surveillance of the alleged incident and P.C. Corbeil said that he had not been so advised. He was asked if he made any inquiry with respect to that and he said that he had no recollection. At the conclusion of the cross-examination, Mr. Malleson had no re-examination.
[7] The next witness called by the Crown was Ashley Falconi who testified in chief that she currently works at Humber College and also at an equestrian store. However, on December 28, 2010, she was a loss prevention officer at Walmart in Oakville and had been in that position since March of 2008. She made notes with respect to her observations of this matter and her notes were qualified and the court permitted her to refresh her memory from her notes when required to do so during her testimony.
[8] She said that her involvement in this case had begun when she received a call from one of her Walmart store associates on December 28, 2010. She identified this caller as a male who said that he had observed a female individual put some clothing items or take the clothing off their hangers and put them in the baby seat in her shopping cart and put her jacket on top of the clothing. As a result of that information, Ms. Falconi said that she proceeded to the grocery department to pick up observation of the accused and that is where she observed her selecting a bottle of Pledge and also a pack of Gushers candies. She said that she put those two items into the baby seat and “again put the jackets back on top.” Specifically, she said she had seen the accused put these items into the baby seat that was in the shopping cart.
[9] Next, she said that she observed the accused select a bottle of Swiffer cleaner and place it behind the baby seat and she put another jacket on top of it. She was asked how much time elapsed between the selection of the Pledge and Gusher candies and then later the Swiffer cleaner. She said she couldn’t remember exactly but it would have been within a couple of minutes.
[10] For clarification, the court asked her to describe the shopping cart and baby seat a bit more clearly. Ms. Falconi said that she wasn’t really quite sure how the cart worked but she knew that there was a baby seat in the cart and there would be room between the fold out part of the seat and also some room in front of the seat. She said that there was no baby in the seat at the time when she was making these observations. She also added that she had seen a Wii game console on the bottom of the shopping cart.
[11] Her next observation was that the accused had proceeded to the front checkout counters and proceeded to pay for some merchandise that she had previously selected from her cart. However, she said that the accused did not make any attempt to pay for the merchandise that she had concealed. She said that this included the Pledge, the Gusher candies, the Swiffer cleaner, and the Wii Sport 15 Pack.
[12] Ms. Falconi then testified that the accused had exited out of the general merchandise doors and once she had exited fully out of the store, Ms. Falconi approached her, identified herself as a loss prevention officer and arrested her for theft under $5,000. She then took the accused to their training room in the back of the store. She explained that she normally would have taken her to the loss prevention office but because the accused had her children with her, she wanted to take her to a bigger room. The Crown asked her to describe and list the items that were allegedly stolen and she did so, saying that the total value of the stolen items was $83.21. She also said that the accused had legitimately purchased $124.84 worth of items. On consent, the Crown entered photocopies of photographs of the allegedly stolen items as Exhibit #1. These items included two cardigan sweaters – one white and one dark coloured.
[13] The Crown asked Ms. Falconi if she had ever observed the accused children’s placing any items “anywhere?” She said she had not made that observation. The Crown asked her if it was possible that the kids could have put the candies, the Swiffer cleaner and/or the Pledge into the cart but Ms. Falconi said that she could not agree with that suggestion because she had observed the accused placing all of these items herself into the cart.
[14] In cross-examination by Mr. Farooq, she was asked whether or not she had seen who had placed the Wii box onto the bottom of the shopping cart. She said that she had not made that observation and therefore agreed that it was possible that the kids could have put that on the cart. She also agreed that she had not observed the person who had placed the two shirts, which I think Mr. Farooq meant to be the two sweaters, into the cart. She also agreed that she had not observed the identity of the person who had placed the toothbrush holder into the cart.
[15] She was asked if the electronic products, such as the Wii pack, have a bar code on them that causes a beeping noise if a person tries to leave the store without having paid for it. Ms. Falconi agreed that most of them do have that feature but qualified her answer by saying that it was up to the employees in that department as to whether or not they do have such an activation code and the determining factor is the value of the item. She did say that, in her opinion, this particular Wii pack should have had a beeper on it but she couldn’t say for sure. She agreed that no alarm had been activated, even though she testified that the accused had entirely left the store and had been outside of the store when she was arrested. Mr. Farooq asked her if she was certain that the accused had, in fact, walked completely out of the store before arrest and Ms. Falcon said that she was very certain.
[16] He then asked if anyone else might have made the same observation and her answer was “besides our cameras?” Mr. Farooq then asked “and was that video preserved?” Ms. Falconi said that it was hard to say because when she went back to the store to retrieve the video, there was none. Mr. Farooq then asked why she would give the answer “besides our cameras?” when she knew when he asked her that question that there was no video available. She responded to that by saying “actually no one requested a video.” Mr. Farooq tried again and reminded her that she had testified that she had checked herself to see whether or not a video was available and she said that she had checked to see if it had been saved and there was nothing.
[17] Naturally, he asked what she meant by that answer and she said that it could mean a couple of things. One explanation could have been that she may have saved it herself on the day of the incident and a second explanation was that it could have been deleted because she hadn’t worked at the store since February 2001 and therefore she surmised that another loss prevention officer could have deleted it by accident. She then ventured the opinion that since she had told the police officer that she had made these observations herself, in her experience, the officer would not always request the video surveillance tape.
[18] Mr. Farooq pursued the matter by asking Ms. Falconi if this video could have been lost or destroyed and she said it could have been deleted by accident. She was asked who would have had access to the surveillance camera to delete the video and she said, at the time only she and one other loss prevention associate would have had such access. When asked, she provided his name as Kenny Davey. She was then asked if she had actually deleted the video and she said she had not done so.
[19] Mr. Farooq asked Ms. Falconi what she had told P.C. Corbeil and she said that she told him she had observed the accused to select the items that she had previously described and then she specified that they were the Pledge, the Wet-Jet (Swiffer) and the Gusher candies. She said that she told the officer that the accused had put them in her cart and gone to the checkout where she paid for previous merchandise that she had selected but then left the store without having paid for those items.
[20] Mr. Farooq asked her if she told the officer that she had observed the accused removing price tags from shirts. Ms. Falconi said she had not told the officer that she had observed that particular action. Nor did she recall telling the officer that she had seen three children in the presence of the accused while she was shopping. Again, she repeated her evidence that she did not remember telling the officer that she had seen the accused removing price tags from shirts. She said that she did tell the officer that she had seen the accused concealing items in the baby seat but not the shirts. In a rather enigmatic piece of evidence she then added that what she had actually told the officer was simply something that one of her work associates had told her that he had seen and she was therefore just relaying that information to the officer. Mr. Farooq asked for the name of the associate and she said she could not remember but she was fairly certain that it was a male associate.
[21] Ms. Falconi had to agree with Mr. Farooq that it was an oversight on her part not to have written down the name of her colleague who had approached her and told her that he had observed the accused removing tags from shirts. She insisted however that she did tell the officer in her statement that she provided that an associate had called her and told her what he had seen. However, she continued to deny ever telling the officer that she herself had seen the shirts taken or the tags removed from shirts.
[22] Mr. Farooq then asked her if she would be surprised if the officer’s notes indicated that she had told him that she saw the price tags being removed and the shirts being placed into the shopping cart. Ms. Falconi answered “perhaps there was a miscommunication.” Mr. Farooq then asked her if she had cleared up that miscommunication on the day of her testimony as she sat outside the court with the officer and also with the Crown attorney present. She agreed and said that she had told the Crown attorney that she did not remember seeing the accused taking tags off shirts and concealing the shirts. She agreed that she had also told P.C. Corbeil at the same time outside the body of the court.
[23] Mr. Farooq then asked Ms. Falconi what the officer had said in response to being told by her this information. Although it was hearsay, Mr. Malleson did not object and she stated that the officer had told her that in his own notes, he had never written down that it was Ms. Falconi who had observed the accused taking the tags off the shirts. He said that he told her that in his statement all he noted was that the accused was observed doing so.
[24] Mr. Farooq asked her if she had noticed where the children of the accused were when the accused was placing items in the shopping cart under her observation. Ms. Falconi said that she did not know where they were because she was watching the accused and she could not recall whether there was a child in the arms of the accused. She added that she believed that the children were running around but she said that she couldn’t say for sure. At one point in the cross-examination, Mr. Farooq finally straightened out the nomenclature of what he had been calling shirts and agreed with the court’s suggestion that he must have been talking about the sweaters that were photographed as part of Exhibit #1.
[25] She was asked if the price tags were still on those sweaters when she seized them and she said that she could not remember, although she was almost certain that she did check for price tags but she did not make a note of that in her statement and said it wasn’t something that she would normally write down. Mr. Farooq of course asked her to comment on what seemed to be a rather obvious anomaly in her evidence in the sense that she had testified that she had been told by an associate that the accused had been observed removing price tags from these sweaters and yet Ms. Falconi was saying that she didn’t make a note of whether or not the price tags were on or off the sweaters when she seized them. Ms. Falconi did not have any explanation for that apparent anomaly. Although she could not remember the name of the work associate who had provided the information to her, she said that it happened quite consistently that this person would call the loss prevention officers and tell them that he had seen a shopper doing certain things.
[26] Mr. Farooq then suggested directly to her that there was never any associate on this occasion who had called her and given information to her about the accused taking items or taking price tags from items. Ms. Falconi said that she would very much disagree with that suggestion. When Mr. Farooq again asked her to describe this person, she pointed out that she had received the information on a phone call and not in person. She looked at her own statement then and pointed out that she had made a note to the effect that she had received a call from an associate about those observations.
[27] Mr. Farooq then asked her again to give as much information as she could about the surveillance video situation. Ms. Falconi stated, “Like I said, I’m pretty sure that I never even looked up the video because I observed her on the floor – like, on the store floor. If I had watched all of this via camera, then I a hundred per cent would have saved and download it onto a disc, but because it was myself on the floor, that’s not normally something I would have done.” She agreed with Mr. Farooq that at the point where she had stated that she observed the accused to actually leave the store without having paid for some of the items, before Ms. Falconi went outside and arrested her, it would have all been captured by the video camera if it was operating. Mr. Farooq then asked her if she knew whether or not the video surveillance camera had been operating on that day in question and she said that she believed so.
[28] This concluded the cross-examination of Ms. Falconi and the Crown did not have any re-examination. Mr. Malleson then closed the case for the Crown.
[29] Mr. Farooq called a Defence and P.C. Tim Corbeil was his first witness. In chief, Mr. Farooq asked him if Ms. Falconi had told him anything with respect to shirts and tags being removed by the accused. Once again, Mr. Farooq used the word shirt instead of sweater but I am always going to be thinking of the evidence as sweaters, not shirts, in this case. The officer said that he believed the accused was observed by the complainant, meaning Ms. Falconi, to be concealing items into a baby seat and that she had been observed removing tags from two shirts and hiding them in the seat. He said that that was what he had written in his notes as information received from Ms. Falconi.
[30] The following exchange then took place between Mr. Farooq and the officer:
- And she told you, in fact, that she had seen those tags being removed.
A. They were seen removed, yes. - Okay. Did she …
- So I don’t know if it was her or if it was another person.
[31] The court intervened and reminded the officer that the question had been whether or not Ms. Falconi had told him that she had seen the accused do these things. The officer’s answer was:
“Not that I believe. Not – I’m not positive. What I have in my notes is ‘Accused was observed …’ so I’m assuming that she was the one that observed them.”
[32] Mr. Farooq then asked the officer if Ms. Falconi had told him that some other male work associate had told her that the accused had been seen removing price tags from the sweaters, would he have made a note of that and P.C. Corbeil agreed that he probably would have done so. Mr. Farooq asked him if he would agree that if she had told him that a male worker had also observed the accused removing price tags from sweaters, or any merchandise, he would have gone to speak to that male associate. P.C. Corbeil answered by saying, “I could have.” He agreed that he did not, however, and he pointed out that Ms. Falconi told him that she had observed the accused to be concealing items and then not paying for them. Therefore, to him, the arrest was lawful and that was all he had in his mind at the time. He said that whether the tags had been removed or not, that was a different element to the offence but he was just concerned with the fact that Ms. Falconi had made personal observations to provide grounds for a charge of theft with respect to the items that were not paid for by the accused before she left the store. He said that he then felt he had the grounds he needed to continue the arrest and process the accused.
[33] The officer agreed with Mr. Farooq’s suggestion that he had been sitting outside of the court on this trial day and he had spoken with the Crown and Ms. Falconi while she pointed out to the two of them that she had not personally seen price tags being removed by the accused. Mr. Farqooq worked the officer over on the way in which he had written his notes by suggesting to him that in his notes he had said that Falconi observed certain things and then he stated that she had further observed certain things. Therefore, he was suggesting to the officer that the impression anyone would get from reading his notes was that he was recording the fact that Falconi had told him that she had seen the accused removing price tags. P.C. Corbeil steadfastly resisted these suggestions and pointed out for the third or fourth time that Ms. Falconi had not told him that somebody else had given her the information about the price tags being removed. Finally, this came to an end when Mr. Farooqsuggested that if Ms. Falconi had told him that somebody else had given her the information, he would have made a note of that.
[34] In cross-examination by the Crown, the officer quickly agreed with the suggestion by the Crown that when he was talking to Ms. Falconi, he was mainly concerned about acquiring reasonable and probable grounds to continue her arrest of the accused. He said that he wasn’t really trying to determine the exact words that had been spoken by one witness or another, but just what had been observed by store security in general. There was no re-examination of the officer by Mr. Farooq.
[35] The next witness for the defence was the accused, Ms. Es-Sayyid who was sworn in on the Koran. She testified in chief that she is married and has three children, ages five, four, and almost two years of age. She stays at home caring for her children while her husband is an owner of a garage door company doing installation and repairs on garage doors.
[36] She said that on December 28, 2010, she had gone to a medical clinic to take all three of her children in to see a doctor because they were all sick on that date. This was a walk-in clinic and she said she was informed by the nurse that it would be an hour to an hour and a half wait for a doctor. She said that she believed that she had arrived at the clinic at approximately 11:00 a.m. or before that time and that the clinic was about a five minute drive from Walmart. The clinic is called the Glenashton Medical Clinic and it is on Glenashton Drive in Oakville.
[37] At this point in the examination in chief, Mr. Farooq attempted to introduce a document from the Glenashton Medical Clinic but the Crown objected and in fairness to the Crown, he had not been given any notice of the document until just a few seconds before Mr. Farooq was attempting to introduce it. At that point in time, the document was not entered as an Exhibit.
[38] The accused testified that she had just moved into a new house on December 1, 2010 and she had to do some shopping to get some stuff for the new house. She said that while she was at Walmart and shopping, the doctor’s office called her twice so she was hurrying and trying to shop for what she needed. She said that she had a list of what to buy.
[39] She said that when she first entered the store, her one-year old son was sleeping in the car seat in the car. Therefore, she had to bring him in, inside the car seat, and she placed him and the car seat inside the top of the shopping cart. The other two children, she said, were both sitting in the part on top where small children can sit with their feet sticking out between the rungs. At this point, there was some confusion amongst counsel and the court about just what she was trying to describe with respect to the positioning of all three of these children. Eventually, she was able to explain the car seat with the baby in it had been placed by her on the bottom portion of the shopping cart, which is underneath the smaller top portion, which is where the other two children were sitting. She was actually asked to draw a diagram of the Walmart cart that she had been using and it was entered as Exhibit #2.
[40] She was asked what happened next and she said she shopped and picked up the “stuff” that she needed and then about five minutes later, her son awoke in the car seat on the bottom of the cart. She explained that she needed to get a sweep broom for the house and some other items. While she was shopping her son was still sleeping in the car seat and the daughter and other son were sitting in the top part of the shopping cart. She then said that as they had gone in to the store her son had awakened so she asked her oldest son to come and walk with her while she put the baby into his place in the cart and that’s how they began to do the shopping. English is not her mother tongue and I found her evidence, on occasion, was not given in a totally logical sequence.
[41] She explained that they eventually got to the electronics department and her son – the five year old – did ask her for a Wii accessory kit and she denied him that request. She identified that as the item that had been shown to the court in Exhibit #1. She then volunteered that after she denied him that request she wondered whether he might have taken that box and put it under the shopping cart but if he did, she wouldn’t have seen it because the baby cart was there.
[42] After leaving the electronics department she said that she had to get some milk and eggs and vegetables and she went over to that department with the same arrangement with the two children in the cart and the five year old walking beside her.
[43] Next, she said she received a couple of phone calls from the nurse at the doctor’s office telling her that her appointment time had come up because she had asked the nurse to give her a call when it was her turn and the nurse had complied. She was told that there was just one person ahead of her at that point and that she should get over to the clinic in about ten minutes or so. Therefore, she said she finished picking up the things that she needed and proceeded to go through the cashier.
[44] At this point, she said that she had forgotten to mention that wherever her daughter was sitting, whatever she placed in the cart beside her daughter or in front of her daughter, her daughter had picked up and thrown to the back of the cart and therefore these things would land on the baby’s car seat which was still on the bottom of the cart. She was asked to explain that a little more carefully and she said that at one point her daughter was uncomfortable with her legs in her seated position in the cart, so she took some items that were in there near her and threw them into the back side of the cart which automatically dropped them into the baby car seat on the bottom. She explained that there was an open area after you get past the part of the cart where the kids could be sitting and this is how these items would end up in the bottom of the cart.
[45] Mr. Farooq attempted to get her to describe the cart a little more carefully and she said it had two levels, sort of like two floors. She said there was a smaller box and then a long box at the bottom. Therefore, the bottom was extended beyond the top. Therefore, if things were taken from the top area, they could be thrown underneath it and they would land in the longer, extended part of the cart on the bottom.
[46] She explained that her daughter was sitting in the smaller or top layer box of the cart and the younger son was sitting in front of her, facing her, and that the five year old, the oldest child, was walking beside her. She then explained again when asked to do so by the court that these two children sitting on top would take whatever she put in the cart from the shelves and would basically throw these items to the bottom layer of the shopping cart. Also, she said they removed their jackets at one point because they were hot and she then took their jackets and placed them in the lower portion of the cart.
[47] After all of this, she said she proceeded to the checkout counter and paid for the items that she actually saw in the cart. She said that she did not notice the Wii kit because her son’s car seat was blocking her vision at the bottom of the shopping cart. She put the items that were still visible to her in the shopping cart onto the cash desk and paid for those items.
[48] First, she was standing at the handle end of the cart and then she moved around to the front of the cart and got a couple of other items and paid for them. At this point, she said she received her second phone call from the doctor saying that it was her turn now and if she didn’t get to the clinic right away, she would have to wait another half hour or 45 minutes, so she hurried away from the cash register after paying for the items that she had been able to observe in plain view and that’s when Ms. Falconi caught up to her and told her that there were some items for which she had not paid.
[49] Mr. Farooq asked her where exactly in the store she had been standing when Ms. Falconi approached her and she said just before the doors. She explained that there are two sets of doors and she hadn’t even yet gone through the first set. She explained that what she intended to do was to put the kids’ jackets back on them before going through the two sets of doors but Ms. Falconi had approached her and arrested her before she could do that.
[50] Mr. Farooq took the accused’s mind back to the evidence about the kids’ jackets and she explained that she herself had unzipped the jackets and then put them at their feet where they were sitting in the top of the cart but they, then, ended up kicking them or throwing them down onto the bottom of the cart.
[51] She explained that she had told Ms. Falconi, once it was suggested to her that she hadn’t paid for some items and the Wii kit was shown to her, that she didn’t even realize that the Wii kit had been in her cart. She offered to pay for it or return it to the store but she was told that wasn’t the way things worked. Mr. Farooq asked her about the two sweaters that were shown in Exhibit #1 and she said that she definitely had placed one, the black sweater, into her cart but she denied ever having seen the white sweater. She was asked about the Wii kit and she said her son probably had put it on the bottom of the cart because he was the only one who was walking with her on the floor and she initially denied his request to buy it.
[52] Mr. Farooq took her through all of the allegedly purloined items and specifically she said that she remembered the Pledge but she had never seen the toothbrush holder. She remembered the WetJet and the Gusher candies that her son had put in the cart. This completed the examination in chief of the accused.
[53] In cross-examination, Mr. Malleson took the accused to task on her evidence that she wasn’t sure whether or not she had seen her five year old son put the Wii pack into the bottom of the cart, given that she admitted that she asked him whether he had done that while they were sitting in the arrest room at the back of the store. Therefore, by the time of her trial testimony, the Crown seemed to be suggesting that she ought no longer to be uncertain about whether or not he had put that Wii pack into the cart because in the arrest room she said that he told her that he had done so. Quite frankly, I felt that the cross-examination in this area was a little bit highly technical in the sense of asking the accused to parse every word that she had used in her testimony against the idea that she should not have been testifying that she was uncertain about whether or not her son had put the Wii pack into the cart. I took from her evidence that she was simply saying that at the time when she was arrested she did not know that the Wii pack was in the bottom of the cart and she was surmising that since she did see that it was there, her son had put it there without her knowledge after she had refused to grant his request to purchase it.
[54] Next, the Crown, quite properly, questioned her about the fact that she was aware of the Gusher candies being in the cart because she had actually seen her son put them in the cart and yet she didn’t pay for them at the cash desk. The accused said that what she had done at the cash desk was pay for whatever she could see and she must have overlooked the Gusher candies because at the time her phone had rung for the second time and she was trying to take the message from the medical clinic as well as placing things from the shopping cart onto the cash register. Therefore, she said she took whatever she could see and she wasn’t even looking to see what she had paid for until later on she learned she hadn’t paid for the Gusher candies and the Pledge and the Swiffer WetJet.
[55] With respect to the white sweater, as opposed to the black sweater, she just simply maintained that she had no idea how that sweater ended up in her cart. She actually denied the fact that there were supposedly two sweaters in her cart.
[56] At this point Mr. Malleson now expressed an interest in having the letter from the medical clinic that Mr. Farooq had tried to introduce through this witness in chief, introduced as an Exhibit in cross-examination. He asked the accused when she had obtained the letter and she said that it was a month or two after she was arrested. He then suggested to her that her main point about this whole medical appointment scenario was that she was saying that the doctor’s office had called her twice while she was in the midst of shopping and the second time was while she was at the cashiers desk, to tell her that she was now late for her appointment or would be late if she didn’t get over to the clinic in about 10 minutes. She agreed that that was exactly what she was saying to the court.
[57] He then asked her if she had asked the medical clinic to put all of that information about the phone calls into their letter. The accused said that they had told her that it was not their position to do that. They told her that the only person who could write a note for her would be the doctor who was on duty at that time. After that exchange the Crown asked for the document to be made Exhibit #3 and, on consent, that was done.
[58] For the record, I will state the contents of Exhibit #3 in this summary of evidence. It is a note on the letterhead of Glenashton Medical Centre, 333 Glenashton Drive, Unit #2, Oakville, Ontario. There is a check mark on the box beside the name Dr. A. Mundenchira. There is a name of the accused spelled out in full and the date 14 March 2011. The contents are as follows:
To Whom It May Concern
Patient was seen in my clinic with her sick children on December 28/2010. She was late for her appointment. Thank you. Sincerely, (Signature presumed to be that of Doctor).
[59] At this point, the accused blurted out in an unsolicited fashion that if she had any doubts about her guilt, she wouldn’t have been spending $5,000 to get a lawyer and she just wanted to let the court know that. Of course, that was self-serving evidence and I will disabuse my mind of that statement to the best of my ability.
[60] The Crown then referred her to the testimony of Ms. Falconi about how she, the accused, had been seen to be placing jackets over some of the items in her cart and he asked her if she did actually do that. The accused said that she did not. As she had testified earlier, of course, she had explained her children had thrown or kicked the jackets down onto the bottom of the cart where some of the items had been thrown.
[61] At this point the Court and Mr. Malleson engaged in a discussion about whether or not Ms. Falconi had given evidence about seeing any more than one jacket placed over items and the Crown agreed that it was probably an accurate statement to say that she had only testified to seeing one jacket as opposed to jackets. However, that didn’t make any difference to the accused. She was still denying Ms. Falconi’s evidence to the effect that she, herself, had intentionally put a jacket over top of some of the items that she had selected.
[62] This concluded the cross-examination of the accused and Mr. Farooq had no re-examination. The Court, however, did have some questions for clarification.
[63] The accused clarified that she was testifying that the Pledge and Swiffer WetJet and Gusher candies had initially been placed in the upper part of the shopping cart but ended up on the extended part below after the kids had thrown them there. She said that although she admitted that she had seen her daughter throw some of these items into the extended part of the cart, she had not expected them to fall underneath the baby’s car seat which was also down there. Therefore, when she got to the cash desk, she simply pulled out what she could see from the extended bottom of the cart and just didn’t think about what might have been under the baby’s seat. She had testified that she was pre-occupied by the second phone call from the doctor’s office which had informed her that she would have to wait another 30 or 45 minutes if she didn’t get the kids over there in the next 10 minutes.
[64] Upon the conclusion of the clarification questions by the court, neither counsel had any further questions. Mr. Farooq informed the court that he would not be calling any additional evidence in the case for the defence. However, he was not prepared to close the case for the defence at that point because he was now concerned that he might have to bring a Charter motion ad hoc as a result of the evidence of Ms. Falconi about the surveillance camera and the lack of availability of any video tape that may well have captured the scene at the exit doors of the store where there is a head to head credibility contest between the accused and Ms. Falconi about whether she was inside or outside of the store when she was apprehended. The Crown objected to the timing of the application but I had no difficulty in deciding that this evidence was probably not easily discernible from Crown disclosure of Ms. Falconi’s statement, given the obvious aspects of ambiguity in her statement which she partially acknowledged herself in cross-examination with respect to the interpretation to be put upon some of her notes of her observations. Therefore, I granted Mr. Farooq the opportunity of bringing a Charter application if he decided to do so.
[65] After some considerable discussion on the subject, the case was remanded to April 3, 2012 for the court to continue the trial, either by way of presentation of a defence s. 7, 24(1) Charter application and/or to receive final submissions from both counsel on the merits of the trial.
THE CHARTER MOTION
[66] Eventually, Mr. Farooq did prepare, serve and file a notice of motion returnable April 3, 2012 before this court, alleging a breach of the accused’s s. 7 and 11(d) rights pursuant to the Charter of Rights and Freedoms. The remedy sought by Mr. Farooq was a stay of proceedings pursuant to s. 24(1).
[67] In the listed grounds for the application, at para. 7, he alleged that the applicant’s rights under s. 7 of the Charter were infringed by P.C. Corbeil’s failure to ensure that he preserved and produced to the Crown attorney’s office all relevant evidence that was related to the applicant’s case. Mr. Farooq argues that this failure resulted from an unacceptable degree of negligence by the police.
[68] In addition, Mr. Farooq submitted in para. 8 of his application that the officer did not seek the identification of, and an evidentiary statement from, an alleged store associate of Ms. Falconi who had allegedly observed the accused removing tags from two shirts and concealing them. Even up to the present Mr. Farooq continues to refer to the sweaters as shirts.
[69] At para. 9 he states that the defence made disclosure requests on behalf of the applicant defendant on March 7, March 24, and June 14, 2011 seeking the surveillance CD.
[70] At para. 10, Mr. Farooq sets out what he states was the Crown’s case management response to his request for disclosure of the surveillance CD. On June 24, 2011, Lori McKibbons sent a letter to him which in part stated, “surveillance footage was not obtained. The loss prevention officer, Ashley Falconi observed the Accused first hand – not through their camera system.”
[71] Mr. Farooq argues that since there is a serious credibility issue, irreconcilable between Ms. Falconi and the accused, on the issue of whether or not she was arrested before or after she had left the store premises, the accused is unable to make full answer and defence on this particular issue without the assistance of that surveillance tape.
[72] Quite correctly, Mr. Farooq submits that if the applicant establishes on a balance of probabilities that evidence was lost or destroyed through negligence, presumably of course of either Ms. Falconi or P.C. Corbeil, then a s. 7 breach of the accused’s rights will be established.
[73] At para. 27 of his factum, Mr. Farooq sets out the foundation for his application:
In determining whether there is a satisfactory explanation by the Crown for the loss of the evidence, the Court should consider whether the police took reasonable steps under the circumstances to preserve the evidence for disclosure. Consideration should be given to the relevance that the evidence was perceived to have had at the time. The degree of care expected of the police increases the relevance of the evidence increases. The failure of the police to consider whether the preservation of evidence is necessary to meet the disclosure obligations of the Crown does not provide a satisfactory explanation for the loss of evidence.
- v. La supra at para. 21.
- v. Bero supra at para. 37.
Re. R.C.S. and the Queen (2004), 2004 NSSC 232 (CanLII), 192 C.C.C. (3d) 235 (N.S.S.C.) at para. 39.
[74] At paras. 28 and 29 in his factum, Mr. Farooq argues that the police did not take reasonable steps to preserve the Walmart surveillance video and therefore it was because of P.C. Corbeil’s inaction, which amounts to negligence, that the original video tape was not available to be disclosed. He has incorrectly numbered his paragraphs in his factum on page 7 as 26 and 28, when in fact they should be 28 and 29. Also, in para. 28, he referred to an original video interview that was not available and I don’t know of any such interview that was part of the evidence of this case. I can only assume that he meant the video surveillance of the doors of the store, for example, or for that matter perhaps of the movements of the accused within the store.
[75] In the remedy portion of his factum, Mr. Farooq, at paras. 33 and 34, states:
- It is clear that through the loss of this evidence the applicant’s ability to answer to the charges against her has been irreversibly compromised.
- In R. v. S. (R.C.), Justice LeBlac states at para 24:
“Even where the Crown has discharged its duty by disclosing all relevant information in its possession and explaining the circumstance of the loss of a any missing evidence, as accused may still rely on his or her s.7 right to make full answer and defense. Thus in extraordinary circumstance, the loss of a document may be so prejudicial to the right to make full answer and defense that it impairs the right of an accused to receive a fair trial. In such circumstance, a stay may be the appropriate remedy, providing the criteria to which I refer above have been met.”
[76] At para. 35, Mr. Farooq submits that this breach is “the clearest of cases” and therefore warrants this court entering a stay of proceedings against the Crown because the Charter breach is so serious that the failure to preserve and produce the video surveillance evidence prevented the applicant/defendant from obtaining a significant portion of disclosure and therefore compromised her right to a fair trial. He argues that the surveillance tape would have been the only corroboration available for the applicant/defendant’s position that she had never left the store before being arrested and, for that matter, it may well have corroborated some of her evidence with respect to the actions of her children throwing some of the items onto the bottom of the cart and so on, as she has testified herself on this trial.
THE CROWN RESPONSE TO THE CHARTER APPLICATION
[77] The Crown filed, in accordance with the rules of the court, a respondent factum. The Crown takes the position that all relevant material in its possession was disclosed to the accused’s counsel. The Crown emphasizes that it has never been in possession of a surveillance tape or a statement of any other alleged eye witness to the alleged shoplifting offence to which the applicant refers. In fact, the Crown submits neither the police nor the Crown is aware of the identity of this particular additional alleged eye witness.
[78] The Crown refers the court to the evidence of Ms. Falconi wherein she admitted that this was an oversight on her part not to obtain the name of the associate who had given her information on the telephone. Ms. Falconi further stated that there may have been some misunderstanding on the part of the officer with respect to her communication to him about whether or not there was another alleged eye witness. Her notes were not clear on the subject.
[79] Most emphatically, the Crown argues that Mr. Farooq did not exercise the due diligence required by the Supreme Court of Canada’s edicts in R. v. Dixon (1998), 1998 CanLII 805 (SCC), 122 C.C.C. (3d) 1. Ms. Ward, for the Crown, submits that Mr. Farooq never wrote to the Crown asking for the name of any associate of Ms. Falconi who may have been referred to by her in her disclosed statement.
[80] The Crown argues that the issue of whether or not there was a surveillance tape even operating that would have captured the movements of the accused within the store and especially at the exit doors where Ms. Falconi said she arrested her, is purely speculative given the nature of the evidence of Ms. Falconi.
[81] Ms. Ward argues that the written communications attached to the Charter application by the applicant/defendant reveal that there was a lack of due diligence by the defence with respect to pursuing the existence of the surveillance tape and any other witness statement. Ms. Ward, in her respondent factum, sets out the nature of the communication with respect to disclosure as being a letter from Mr. Farooq which contained within it the request “Please provide our office with the following disclosure: CD surveillance tape.” The Crown responded on June 24, 2011: “surveillance footage was not obtained. The loss prevention officer Ashley Falconi observed the Accused first hand – not through their camera system.” To this exchange, there was no follow up letter sent by Mr. Farooq, submits the Crown, in which he could have asked the Crown to inquire into the existence of a tape or otherwise and, if so, request a copy of the tape if it existed.
[82] Ms. Ward argues that there is no response from Mr. Farooq suggesting any dissatisfaction with the Crown’s response on the subject. She submits that there was no response whatsoever in the six month period that followed the Crown’s June 24, 2011 response and the trial date of December 20, 2011. For all of these reasons the Crown submits that the application must fail on the basis of a demonstrated lack of due diligence being exercised by Mr. Farooq on the issue of whether or not there was a surveillance tape and/or another material witness.
[83] In conclusion, the Crown submits that there has been no Charter breach of the accused’s rights and that all relevant information that was in the Crown’s possession was disclosed and that there was no further duty on the Crown to take any additional steps given the lack of any request to do so by Mr. Farooq. Therefore, the Crown submits that the Charter application should be dismissed.
ANALYSIS OF THE CHARTER APPLICATION
[84] I agree with Mr. Farooq that the evidence of Ms. Falconi leads this court to conclude that she was somewhat negligent in the manner in which she prepared her statement, which of course would be the foundation of the evidence for the prosecution in this case. She most certainly should have pursued the identity of her colleague who had given her information about his observations of the accused and should certainly have provided that information to the officer who in turn would have provided it to the Crown, who in turn would have disclosed it to Mr. Farooq on behalf of the defendant. However, I find that the nature of the evidence that the court could have expected from this associate, according to Ms. Falconi, would have only been to add fuel to the Crown’s fire with respect to the alleged purloining activities of the accused. By that, I mean that there is nothing about the nature of what he supposedly told Ms. Falconi that would lead me to believe that his evidence was likely to have been instrumental in providing a defence to the accused. It seems that he was the one who may have testified that he saw her removing price tags from the sweaters, whereas certainly Ms. Falconi did not have such testimony. I only mention this because it’s a relevant factor to consider on this application, that is to say, the potential importance of the evidence to the ability of the accused to make full answer and defence.
[85] I do not resile from my initial finding that most certainly Ms. Falconi was negligent in not obtaining the identity of that witness and thereby having him provided to the defence for whatever questions they may wish to have asked and, of course, to compare his evidence wherein it may have been appropriate, to the evidence of Ms. Falconi. However, I do not find that this negligence on the part of Ms. Falconi amounts to “unacceptable negligence” as contemplated by the common law as being sufficient to justify the court imposing a stay of proceedings pursuant to s. 7 and 24(1) of the Charter of Rights and Freedoms. I also agree with the Crown that Mr. Farooq could have more diligently pursued that lead and attempted to obtain the identity of that unknown associate in the six month period between the Crown’s response of June 24th to his disclosure request and the trial date in December.
[86] With respect to the surveillance tape or video issue, I find that the evidence before this court can only amount to some form of speculation that there was even such a video camera operating at the relevant time to capture the accused’s movements within Walmart and, in particular, her arrest by Ms. Falconi, while she was still inside the store. While it may be tempting to assume that if a store has a video camera surveillance system it should have been operating at all times while shoppers were in the store, I do not feel that I can take judicial notice of that fact of operation in any particular store at any particular time.
[87] This is most certainly not the type of situation that is present in some of the common law decisions that were presented by Mr. Farooq where the police had actual physical custody of relevant and disclosable material and then failed to preserve it for the Crown to decide whether or not to disclose it to the defence. Neither is it a case where the police were made aware of the actual existence of, as in this case, a video surveillance tape and then took inadequate or dilatory action with respect to attempting to secure that tape, only to find that it had been deleted before their attempt to seize it. In this case, there is no affirmative evidence that there was even a tape operating at the time. Ms. Falconi was simply speculating and being asked to assume that a video surveillance camera was operating at the time and especially covering the area of the doors leading from Walmart, by Mr. Farooq.
[88] In any event, I find the reasoning of my colleague, Justice Feldman, in R. v. Rampersad, 2006 ONCJ 281 (CanLII), Ontario to be very persuasive on this point. In particular, Justice Feldman states at para. 37:
37 It is fair to argue that experience would indicate it is reasonably well known that videotape evidence is sometimes lost as result of technical difficulties or corporate policy that is independent of police investigations. In hindsight, it would have been preferable had P.C. Eagleson considered the risk of losing clearly relevant evidence not yet in her possession or control. That said, it would reflect, in my view, an untenably high standard to consider unacceptably negligent an officer’s failure to preserve evidence, in the possession of a third party, which the defence might seek and that could possibly be lost prior to an arrest and subsequent case preparation. It might be said at its highest to be minimally negligent for an investigator not to direct a third party in possession of potentially relevant evidence to anticipate its seizure by the police and to take steps to preserve it pending an investigation and arrest.
[89] In my view, the fact situation in the case at bar of Ms. Es-Sayyid, does not even attribute to P.C. Corbeil the level of knowledge of the potential existence of a Walmart surveillance tape relevant to his investigation that was present in the Rampersad case. In any event, I find that if there was any negligence at all on the part of Ms. Falconi with respect to her information provided to the officer about the potential of a video surveillance tape, it was minimal and not unacceptable negligence. With respect to the officer, I am loathe to find any level of negligence given the information that he had received which was to the effect that this event had been witnessed personally by the store investigator who had made the arrest.
[90] In addition, Mr. Justice Feldman stated at para. 38:
The absence of the surveillance tape is potentially prejudicial, but not to the degree, in my view, that the accused is unable to rely on other evidence, including his own testimony, to make his case.
I apply that rationale to this case of Ms. Es-Sayyid as well.
[91] I also adopt and obey the principles set down by Mr. Justice Sopinka in the Supreme court of Canada decision of R. v. La (1997), 1997 CanLII 309 (SCC), 116 C.C.C. (3d) 97 and as set out in para. 39 of Rampersad by Mr. Justice Feldman:
39 The principled approach to a s. 7 application in relation to prejudice arising from the loss of relevant disclosure is set down by Sopinka J. in R. v. La (1997), 1997 CanLII 309 (SCC), 116 C.C.C. (3d) 97 (S.C.C.) and succinctly summarized in R. v. B.(F.C.) (2000), 2000 NSCA 35 (CanLII), 142 C.C.C. (3d) 540 (N.S.C.A.), leave to appeal to S.C.C. denied, [2000] S.C.C.A. No. 194. Of significance, some of these principles include the following: the Crown’s duty to disclose gives rise to a duty to preserve relevant evidence; if the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached; a satisfactory explanation may be determined from the circumstances surrounding the loss of the evidence, including whether it was perceived at the time to be relevant and whether the police acted reasonably in attempting to preserve it; in the event a breach is found, the remedy of a para39stay is only appropriate in the clearest of cases; even if no unacceptable negligence is found, in an extraordinary case, there may still be a s. 7 breach if the loss can be shown to be so prejudicial to the right to make full answer and defence that it impairs the right to a fair trial.
[92] Of course, I also adopt the principles set out by the Ontario Court of Appeal in R. v. Bero (2001), 2000 CanLII 16956 (ON CA), 151 C.C.C. (3d) 545 to the effect that a video surveillance tape, which potentially may have captured the movements of Ms. Es-Sayyid in and around the cash register and the doors of the store, would be “information that is reasonably capable of affecting an accused’s ability to defend himself.” However, as I have earlier stated, its initial existence as evidence in this case is still not even certain. I find that we are still in the realm of speculation as to whether or not such a video tape was activated during the relevant time. Certainly this video tape was never in the possession of the police and therefore was not withheld as an item of disclosure from the defendant. In all of the circumstances and I am repeating myself now, I find that whatever level of negligence may be attributed to Ms. Falconi and/or to P.C. Corbeil, although I would tend to limit my finding to the former, was not “unacceptable negligence.”
[93] For all of the above reasons, I find that the section 7 and 11(d) Charter application by the defendant/applicant has failed to establish on the requisite standard of a balance of probabilities that Ms. Es-Sayyid’s Charter rights were breached and the application is dismissed.
POSITION OF THE PARTIES ON THE MERITS
The Defence:
[94] Mr. Farooq submitted that Ms. Falconi was either fabricating or very confused about her evidence. As an example, he refers the court to the cross-examination of Ms. Falconi with respect to what information exactly she had included in her notes by comparison with what she had conveyed to P.C. Corbeil. He therefore submits that the evidence of Ms. Falconi should be considered by the court to be quite unreliable as a foundation for a successful W.D. analysis outcome for the Crown.
[95] On that subject, Mr. Farooq submits that this case indeed is one that invokes the principles of R. v. W.D. (1991), 67 C.C.C. (3d) 397 (S.C.C.). Mr. Farooq submits that after the court engages in the appropriate W.D. analysis on the totality of the evidence, I should conclude that Ms. Falconi’s evidence, on balance, was very shaky and unreliable in certain aspects. He refers the court, as an example, to the failure of Ms. Falconi to even notice the three children of the accused, who were obviously with her while she was shopping because they were with her when she was apprehended by Ms. Falconi later. It is the activities of the children that, to some extent, are the foundation for the defence position that the accused was distracted and that they also placed certain items out of sight in the shopping cart, unbeknownst to her and before she passed through the cash register. On balance, Mr. Farooq asks the court to accept the evidence on the first arm of the W.D. analysis of the accused and if so, then she should be acquitted.
[96] On the other hand, even if the court is unable to totally accept all of the evidence of the accused, Mr. Farooq submits that when the court considers the frailties of Ms. Falconi’s evidence on the second and third arms of the W.D. analysis, the court should arrive at a position of being in a state of reasonable doubt about whether or not the accused passed through the cashier with the items that have been alleged as intentionally stolen by her without paying for them.
Position of the Crown:
[97] Ms. Ward deferred in large part to the factual submissions that were made by Mr. Malleson in writing upon his departure from this jurisdiction. Ms. Ward had responded to the Charter argument because it was served subsequent to Mr. Malleson’s departure to another Crown attorney region subsequent to the December 20, 2011 day of trial evidence. Since Mr. Malleson made his submissions in writing and since Ms. Ward adopts them, I will set them out in their entirety:
The Crown respectfully submits that Your Honour should find Ms. Es-Sayyid guilty beyond a reasonable doubt of theft under $5000.
The evidence of the Crown’s main witness and loss prevention officer, Ashley Falconi, was reliable and not impeached in any meaningful way. Her evidence was refreshed by contemporaneous notes, and there were no meaningful contradictions between her notes and her testimony.
The testimony of the accused was incredible. The accused claimed that she neglected to pay for seven distinct items because she became distracted. Each of the seven items according to her became accidentally concealed. Moreover, these seven items were, according to her, accidentally concealed in three distinct locations within her shopping cart. Regarding the highest value item, the Nintendo Wii pack, the accused claimed that she did not put this item into her shopping cart, but rather her son did. However, she expressed uncertainty as to whether she actually saw her son place the Nintendo Wii pack into her shopping cart. This aspect of her testimony was non-sensical. If there were any veracity to the defendant’s extraordinary claim that seven items were accidentally concealed and forgotten in her shopping cart, surely she would have remembered whether or not she had actually observed her son place the Nintendo Wii pack into the shopping cart.
Moreover, her claim that she was arrested before she left the store, a claim that is contradicted by Mr. Falconi, whose evidence is buttressed in three significant ways: 1) her contemporaneous notes which she used to refresh her memory, 2) no motive to fabricate, and 3) the common industry practice of loss prevention officers to not arrest suspected shop lifters until they leave the store, a common practice she adhered to on the day of the alleged offence.
ANALYSIS OF THE MERITS OF THE S. 334 CHARGE
[98] First of all, with respect to the issue of whether or not the accused was arrested inside the store after leaving the cash register with items that were not paid for, or outside the store under the same circumstances, I would simply make the following observation. Section 322of the Criminal Code defines various forms of the offence of theft and various means by which the offence can be committed. Section 322(2) states:
A person commits theft when, with intent to steal anything, he moves it or causes it to move or to be moved, or begins to cause it to become movable.
I realize that it has long been considered to be a relevant fact on a prosecution for theft involving alleged shoplifting that the accused has not exited the store with the items that are alleged to have been stolen, because it may well be open to the accused to testify that he or she realized before leaving the store that some items had been forgotten about and she/he was intending to return to the cash register to pay for them. In my view, that defence would be equally open to an accused person, subject to an assessment of his or her credibility on the point, if that testimony was offered even after the accused had left the store before being apprehended by store security officers. It would just be a question of the assessment of the credibility of that particular evidentiary position. In my view, s. 322(2) is often overlooked.
[99] In my view it is noteworthy that Mr. Malleson made no reference whatsoever to the exhibit note from the Glenashton Medical Clinic which he introduced through the accused during her cross-examination after her own lawyer had attempted to introduce it, unsuccessfully, in chief. There has been no evidence called by the Crown to contest the authenticity of the note.
[100] I find that its contents are corroborative of the accused’s testimony that she had indeed taken her three children to the medical walk-in clinic a short time before shopping at Walmart. I find it to be corroborative of her testimony that she received telephone calls from the nurse at the walk-in clinic telling her that she had better get back to the clinic because she only had 10 minutes to spare for her appointment, and that she might have a 45 minute wait otherwise. I don’t make this finding because the note contains words precisely to that effect. However, the doctor who signed the note stated that she was late for her appointment on December 28, 2010. I don’t attach any significance to the word appointment as to whether or not there is a discrepancy between the accused’s evidence of going to a walk-in clinic and a person who makes a personal appointment with his or her own personal doctor. I find it to be a matter of indifference as to whether the accused had a personal appointment or was simply told by the nurse of the clinic that she should be back to be available for the doctor on call at the clinic to consult with her in a certain period of time.
[101] Specifically, I find the evidence of the accused to the effect that she was distracted by her concern about getting back to the clinic for the appointment and also by having to care for her three extremely young children, while shopping, to meet the test of common sense. I have no hesitation in accepting her evidence that she was shopping in the company of her three young children and that two of them were sitting in the upper level of the shopping cart while the oldest one, at age five, was walking beside her while she shopped. With the greatest of respect to Mr. Malleson, I do not share his viewpoint that the testimony of the accused was incredible and nonsensical, in particular, with respect to the Nintendo Wii pack item. As I mentioned in my summary of the evidence, it is my view that Mr. Malleson conducted a legally surgical cross-examination on the point of whether or not the accused had seen or not seen her eldest child place the Wii pack into the bottom of the shopping cart. It was clear to me from the totality of the cross-examination that the accused was trying to convey the idea that she had not seen her son place the Wii pack into her cart at the time while she was shopping when he may have done so, but because she had asked him in the store investigator’s office after her arrest whether he had done that very thing and he apparently told her that he had done so, she was reconstructing the event in her own mind. In my view, it is also important when assessing the accused’s credibility that she actually asked her son while in the presence of Ms. Falconi whether or not he had put the Wii pack into the cart. This supports her evidentiary position that up until that point in time, she didn’t really know how it made its way onto the bottom of her cart. That was one item that was certainly not observed by Ms. Falconi to be placed into the bottom of the cart by the accused during her time of observation.
[102] Basically, the accused’s defence to the items for which she did not pay is that they must all have ended up in the bottom of the cart either underneath the baby seat or somehow concealed by it after the two other children who were seated in the top part of the cart had flung them down into that area because they were in the way of their legs where they were sitting. This matter was also compounded by the fact that the children took their coats and threw them down as well, according to the accused.
[103] Ms. Falconi’s testimony was that she had seen the accused place a jacket, not multiple jackets, but one jacket on top of the bottle of soap and candies and Swiffers after selecting those items and putting them into the top part of the cart behind the baby seat. I do not find any serious inconsistency between the accused’s evidence of how she took the coats off the two children who were sitting in the top of the cart and lay them on their legs, which is exactly where the items which had not been paid for were placed as well, and Ms. Falconi’s evidence of seeing her put a coat on top of the items. It would certainly appear to Ms. Falconi that the accused was intentionally placing the coat on top of the items to conceal them.
[104] With respect to the problem of there being two sweaters in the cart and the accused only admitting to placing the black sweater into the cart, and denying categorically that she had ever selected the white sweater, Ms. Falconi could not be of much assistance because she testified that she had not seen either of the two sweaters placed into the cart by the accused or by anyone. Her information came from her associate who was not, as we know, called as a witness in this case.
[105] I also find it to be significant that Ms. Falconi did not find any evidence of price tags having been removed from the sweaters, whereas her associate had told her that he had seen that being done by the accused. I also find it to be significant that normally speaking, Ms. Falconi said, that the Wii box ought to have had an alarm tag on it that would be set off if that item left the store without being purchased. I say that I find that to be significant in connection with the credibility assessment of the accused’s evidence, in conflict with Ms. Falconi’s evidence, that she was arrested while still inside the store. Although Ms. Falconi could not say with absolute certainty that the Wii box had such an alarm tag on it, she testified that it would have been normal practice for an item of that value to have had such an alarm tag on it. I therefore find that the fact that there was no activation of the alarm supports the evidence of the accused that she was actually still inside the store when she was arrested. As I said earlier, the only relevance of that point as far as I am concerned, is with respect to the general assessment of credibility and reliability of Ms. Falconi and the accused and I find that piece of evidence works in favour of the accused’s credibility and reliability.
[106] There was no evidence from Ms. Falconi to suggest that the accused did not or could not have been speaking on a cell phone while in the area of the cash register. The accused has testified that she was phoned by the medical clinic just before she went through the cash desk and that therefore she was in a hurry when she started pulling items out of her car to pay for them.
[107] I also find it to be interesting, although not determinative of guilt or innocence of the accused, that she paid for a higher value of items than those that were left in the cart unpaid for, even including the significant Wii box.
[108] In conclusion, after applying the appropriate analysis pursuant to the guidelines in W.D., supra, to the accused’s testimony, I find that I cannot absolutely and totally accept her testimony holus bolus in all details. Her evidence still leaves me with a considerable degree of suspicion. Therefore, I find that her evidence by itself is not sufficiently credible and reliable to convince me that I should acquit her without even considering the remainder of the evidence in its totality.
[109] Therefore, when I move on to apply the second and third tests to the totality of the evidence prescribed by W.D., supra, I do find that the accused’s evidence, combined with some of the frailties in Ms. Falconi’s evidence – to which I have referred, allows me to find that I should have a reasonable doubt that Ms. Es-Sayyid intentionally did not pay for the items in question and began to move them towards the doors of the store with the intention of stealing them from Walmart. As in all criminal cases, the Crown bears the burden of proof beyond a reasonable doubt and I find that the totality of the evidence in this case, and the manner in which I have referred to it, is capable of raising that reasonable doubt in my mind even though I am left with some suspicion. The accused is therefore found not guilty as charged and the charge is dismissed.
[110] This completes my written reasons for my oral verdicts which I rendered on May 7, 2012 when I dismissed the defendant/applicant’s Charter application and also dismissed this criminal charge against her.
[111] I want to thank all counsel who participated in this case for their thorough and creative presentations.
Released: May 31, 2012