R. v. Demers, 2018 BCPC 96

Citation: R. v. Demers 2018 BCPC 96 Date: 20180316 File No: 171700-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DONNA MARIE DEMERS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MACCARTHY Counsel for the Crown: L. Nowlan-Card Counsel for the Accused: A. Ferguson, Articled Student Place of Hearing: Victoria , B.C. Date of Hearing: March 16, 2018 Date of Judgment: March 16, 2018 Introduction [ 1 ] THE COURT: Donna Marie Demers has been charged on Information 171700-1 with an allegation that on or about April 16, 2017, she did commit theft of merchandise, being the property of Fairway Market, of a value not in excess of $5,000. The offence is

alleged to have occurred at or near Victoria, British Columbia, and the offence in contrary to s. 334(

b) of the Criminal Code. [2] The task of this court is to determine whether or not Crown has satisfied its burden and proven this offence beyond areasonable doubt against Ms. Demers (hereinafter referred to as the "Accused") Presumption of Innocence [3] The obligation is upon the Crown to prove all elements of each offence beyond a reasonable doubt. If that occurs, then andonly then can the court convict the accused person. Where reasonable doubt exists on any element of the offence charged, the accusedmust be acquitted.

The burden of proof rests upon the prosecution throughout the trial and never shifts to the accused person. [4] Reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. Reasonable doubt is adoubt based on reason and common sense, which must logically be derived from the evidence or absence of evidence. The Crown mustprove more than probable guilt. However, reasonable doubt does not involve proof to an absolute certainty since that would be animpossibly high standard.

The standard of reasonable doubt falls much closer to absolute certainty than to proof on a balance ofprobabilities. In short, if, based upon the evidence before the court, the finder of fact is sure the accused committed the offence, then thefinder of fact should convict since this demonstrates that the finder of fact is satisfied of the accused’s guilt beyond a reasonable doubt. (See R. v. Lifchus, (S.C.C.), [1997] 3 S.C.R. 320, and see R. v. Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144).

The W.(D.) Formulation [5] I must instruct myself that in the trial of criminal matters, it is not a question of which witness' evidence or version of the eventsI believe, but rather whether, on the totality of the evidence, Crown has proven each essential element of each offence beyond areasonable doubt. [6] Where there is evidence of an accused that raises a defence, as in the case, then I must further instruct myself and I must applyto this evidence the well-known process of analysis set out in R. v.

W.(D.), (S.C.C.), [1991] 1 S.C.R. 742, found atparagraph 28, which can be summarized as follows: First, if I believe the evidence of the accused, obviously, I must acquit. Second, if I do not believe the testimony of the accused, but I am left in reasonable doubt by it, I must acquit. Third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence, which I doaccept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [7] I am also guided by the following comments of the Prince Edward Island Court of Appeal in R. v.

J.M.H., 2012 PECA 6,[2012] P.E.I.J. No. 10, at paragraphs 30 to 31: [30] Our courts have stated that proof beyond a reasonable doubt is not satisfied by belief of a complainant coupled with disbelief ofan accused. Correct application of the principle in W.(D.) involves going on from step one to step two to analyze and consider whetherthat evidence nevertheless raises a reasonable doubt and if not, then going on to step three and determining whether the evidence taken asa whole raises a reasonable doubt. (R. v. Ellis, 2006 PESCAD 25, at para 18).

Proper application of the third step involves moving thefocus from the evidence of the accused to the Crown's evidence and assessing it in its own right (in relation to all the evidence) on thecriteria of coherency, reliability, credibility. This goes toward the issue of whether the Crown has satisfied the burden of bringingevidence that can prove guilt beyond a reasonable doubt (R. v. S.F. 2007 PESCAD 17, at paras. 28-31). The Supreme Court of Canadarecently stated in R. v.

J.H.S., 2008 SCC 30 [Can LII], at para 8, that a series of decisions has affirmed and reaffirmed that wherecredibility is a central issue in a jury trial, the judge must explain the relationship between the assessment of credibility and the Crown'sultimate burden to prove the guilt of the accused to the criminal standard. [31] The third step in W.(D.) stresses that the onus is on the Crown to prove the guilt of the accused beyond a reasonable doubt. It ispossible that the trial judge would disbelieve the accused but still find the Crown had not proved guilt beyond a reasonable doubt.

Thekey is whether the correct burden and standard of proof were applied; not what words were used in applying them (R. v. C.L.Y., 2008SCC 2 at para.7) [8] The supplemental test, as enunciated by the British Columbia Court of Appeal in R. v. C.W.H., [1991] BCJ No 2735, adds afourth step to the W.(D.) analysis, namely, if, after consideration of all the evidence, the court is unable to decide whom to believe withrespect to the central issue in a prosecution, then the accused must be acquitted.

Josiah Wood J.A., as he then was, suggests thatlogically this ought to be second in order in the W.(D.) analysis. [9] It is also important to instruct myself that the W.(D.) model is not intended to be a precise formulation to be used at all times orto achieve a level of sanctity or immutable perfection. Once again, I must instruct myself on the main point that the burden never shiftsfrom the Crown to prove every element of the offence beyond a reasonable doubt. The lack of credibility on the part of the accused doesnot equate to proof of his or her guilt beyond a reasonable doubt. (See R. v.

S.(J.H.), 2008 SCC 30 , [2008] 2 SCR 152.) Assessing Credibility and Reliability of Witnesses [10] In this case, I have heard evidence that is conflicting on some material matters. Therefore, I must assess the credibility and thereliability of the witnesses who provided this conflicting evidence. In doing so, I must weigh all of the evidence.

In so weighing theevidence, I may reject or accept some or all of the witness' testimony, after having taken into account a multitude of factors, whichinclude, but are not limited to, appearance or demeanour, ability to perceive, ability to recall, motivation, probability or plausibility, andinternal or external consistency. [11] I must also direct myself that even honest witnesses may make mistakes in their evidence, or have errors of recollection, or may

present upon the stand in a nervous or uncertain manner for reasons unrelated to the truthfulness of their testimony. [12] It is an error in cases of contradictory evidence to simply weigh the evidence of one witness against the evidence of another. (See R. v. Jackson, 2007 BCSC 636; see also R. v. Mann, [2010] AJ No 1094.) Assessment of a Witness' Evidence [13] As noted above, I must have regard to the credibility and the reliability of each witness’ evidence. In R. v.

C.(H.), 2009 ONCA56 , Watt J.A. explained the difference between credibility and reliability at para. 41, reading in: Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’stestimony. Accuracy engages consideration of the witness’s ability to accurately (

i) observe; (ii). recall; and (iii). recount events inissue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the otherhand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995) (ON CA),22 O.R. (3d) 514, at 526 (C.A.). [14] There are many factors to take into account when assessing a witness’ evidence, some of which are: 1. Did the witness seem honest? Was he or she evasive or argumentative with counsel? 2. Did the witness have an interest in the outcome of the case? 3.

Did the witness have a good memory about the event? Did any inability to remember seem genuine or an excuse to not answerquestions? 4. Did the witness appear to be testifying as to what they actually heard or saw or are they adding in details based on other sources? 5. Was the testimony of the witness reasonable and consistent? Was the witness’ evidence consistent with the other evidence in thecase? 6. Do any of the inconsistencies in the witness’ evidence make their testimony more or less believable and reliable? Is theinconsistency about something important or a minor detail? 7.

Was the witness’ evidence plausible? [15] In assessing the credibility and reliability of those witnesses who have provided the conflicting evidence about the allegedoffence, the testimony of each of the witnesses can be considered from three perspectives:

a) their truthfulness; whether they are trying to tell the truth or intentionally lying when testifying;

b) their objectivity; whether they have been influenced by assumptions or emotions which may affect the accuracy of their perceptions;and

c) the accuracy of their observations; their abilities to observe, remember, and communicate accurately. [16] In the case of R. v. Cuhna, 2015 BCPC 60, at paragraphs 5 and 6, the court provides a useful review of the factors to beconsidered when assessing the testimony of a witness from these three perspectives. I have for the purposes of these reasons and mydecision utilized that approach. The Crown's Case [17] Crown called one witness being a loss prevention officer named Shane Sutton. [18] Mr. Sutton is an experienced loss prevention officer with some 21 years of experience.

He has extensive experience working atthe facility being the subject matter of where the offence is alleged to have occurred, that is the Fairway Market located at 2635 QuadraStreet in Victoria, British Columbia (the “Store”). [19] Mr. Sutton (the “Loss Prevention Officer”) was on duty on the day in question. He testified that he observed the Accused in theproduce section.

He observed that she was pulling a red cart which contained a canvas bag capable of being closed and covered up bypulling of both a drawstring and then placing down a flap which could be locked into position. [20] He noted the Accused had a bag of potatoes in her hand.

He noticed that she paused, put the potatoes into the canvas cart andclosed it, and then she went on to select a bag of onions and held those onions for a period of time until she walked to an area about threefeet from one of the two open tills and, at that point, she placed the bag of onions into the canvas bag on the cart. [21] The Loss Prevention Officer indicated that at no time was he more than 20 feet behind the Accused; he continued to observe herand, in particular, he continued to observe the continuity and the location of the canvas bag where the merchandise had been placed. [22] He testified that the Accused moved from the till area still inside the Store towards the delicatessen area.

In the delicatessenarea, I understand, various ready-made foods were being presented. There is also a till at the delicatessen area. [23] The Accused proceeded into that particular area, moved over to look at the prepared foods and then started to make her wayback to what is described as the “customer service area”. The customer service area is still inside the Store and the Loss PreventionOfficer indicated that he observed some discussions which were taking place between the Accused and staff at the customer servicelocation.

The Loss Prevention Officer observed that at no time did the Accused either present any of the product that was contained in

the canvas bag, nor did she appear to make mention of the existence of those items. [ 24 ] At that point, he observed that the Accused started to depart from the Store through what is referred to as the Quadra Street door. The Accused was pulling the cart which contained the two items which the Loss Prevention Officer had observed being placed into the canvas bag.

The Loss Prevention Officer followed the Accused person outside of the Store and, as I understand his evidence, at a point where the Accused was approximately 10 feet from the door, he apprehended her, indicated to her that she was being arrested for non-payment of the goods in the canvas bag and for theft. [ 25 ] He escorted the Accused back to the security room in the Store. At that point, he Chartered and warned the Accused and indicated that she was not obliged to say anything and also indicated that she had the right to consult with a lawyer.

As I understand it, the Accused indicated she understood the warnings that were being presented and also declined speaking to a lawyer. [ 26 ] As a result of conducting a search incidental to arrest, it was determined that the bag of potatoes and the bag of onions were located in the canvas bag; also present in the canvas bag on the cart were a series of meat products both in the form of what appeared to be salamis as well as some buns or bread products and also some other meat products. Those products were all seized. They were then taken to a till and a till run was done on them.

The value of the products was either $51.41 or $50.91, but in any event, it was an amount slightly above $50 in value. [ 27 ] At that point, successful steps were taken by the Loss Prevention Officer to obtain identification of the Accused. He then contacted the Victoria Police Department. There were no outstanding warrants with respect to the Accused.

Accordingly, on the basis of having copies of current identification and having taken photographs of the identification and photographs of the Accused and the contents of the canvas bag, the Accused person was released and left the Store. [ 28 ] The Loss Prevention Officer indicated in his evidence in chief that during the course of the time spent with the Accused, which he estimated to be about 15 minutes, she initially appeared to be quite calm, but as matters proceeded, she became more upset; this occurred after about five or six minutes.

He indicated that, in his view, she completely understood what was taking place while the discussions took place between her and the Loss Prevention Officer. [ 29 ] A question was posed by the Accused to the Loss Prevention Officer about what would happen now. He indicated to her that the approach used by Fairways Market is that charges would be pressed for any thefts over $50, but he indicated that if it was a first offence, Crown may simply deal with the matter by way of a warning.

However, if there were other offences or convictions, then it was the policy of Fairway Market to proceed with charges. [ 30 ] In cross-examination, the Loss Prevention Officer was pressed about certain aspects of his evidence. One of the important aspects was his location and his ability to maintain sight of the Accused at all times. It was suggested to him that there were occasions when his view was blocked.

He denied that such was the case, and held firm and fast to his evidence that he was at all times able to observe the Accused without any visual interference. [ 31 ] Significant time was spent with going through Exhibit 4, which was a diagram of the Store plan presented by defence counsel. I can say for the benefit of counsel that the introduction of those types of diagrams are very useful to the court and save what can be an exhaustive amount of time trying to describe what can be more easily portrayed in diagram fashion.

So, for that, I am grateful. [ 32 ] Indications were made by the Loss Prevention Officer on the diagram showing the route taken by the Accused which, as I previously indicated, was for the most part all at the front of the Store and not at the rear of the Store where the meats apparently are located. [ 33 ] The Loss Prevention Officer was pressed in cross-examination about the location where he actually stopped the Accused.

He indicated that it was in an area, which was past a floral arrangement, and which arrangement I understood to be located right up against the exterior side of the Store and adjacent to the door. That floral arrangement, containing both fresh cut flowers as well as potted plants, was approximately eight feet in length and, it protruded a distance of about a foot from the outer wall of the Store. [ 34 ] As I understand it, the evidence of the Loss Prevention Officer was that when he made his apprehension of the Accused, he did so very specifically to ensure that the Accused was well past the floral arrangement.

He indicated that he was close to the disabled parking stall, which was past the sidewalk area.

He indicated that the policy and the procedure of where to apprehend individuals suspected of shoplifting was in an area, considered by the Store’s loss prevention officers, to be past where a person would reasonably be engaged in looking at the floral arrangement, since that excuse had apparently been raised on other occasions by individuals who indicated that they were not in the process of shoplifting, but rather were in the process of looking at the floral arrangements. [ 35 ] In his cross-examination, however, the distance of some 10 feet from the door was stated to be something in the range of some three to four feet past the floral display.

Thus there was some inconsistency on the part of the Loss Prevention Officer as to the distance from the front of the Store where the Accused was stopped, thereby placing it anywhere from three feet to approximately 10 feet. The Defence's Case [ 36 ] The Accused testified on her own behalf. She described herself as being 67 years of age and being a 10 to 15-year resident of Victoria. She indicated that she has been under the care of a local physician. That physician provided a letter on behalf of the Accused. The letter is from Dr. James Laing dated March 13, 2018.

The letter was admitted for the truth of its contents with the consent of both Crown and Defence. [ 37 ] In that particular letter, it indicates that Ms. Demers has suffered from a long history of psychiatric illness. It further indicates she has had ongoing symptoms from posttraumatic stress disorder. She has suffered from major depression ongoing and is on medication for it. Dr. Laing also indicates that she has an anxiety disorder with panic attacks and that her anxiety is very severe. He further indicates that she is on medication for this condition.

[ 38 ] The letter further indicates that the Accused has suffered from ongoing symptoms related to obsessive compulsive disorder and she continues to have ongoing difficulties related to her mental health and to suffer from these problems. Apparently, she has had multiple psychiatric consultations and treatments over the years. [ 39 ] Ms. Demers testified that she has seen a psychiatrist over a period of some six or seven years. She confirmed her understanding that the diagnosis as set out in Dr.

Laing's letter correctly summarizes her present conditions. [ 40 ] In her testimony she did provide some foundational information and described the events she says gave rise to her posttraumatic stress disorder, which included a childhood incident involving her sister. The full details are not material for the purposes of these reasons. However, her description of how she experiences the symptoms is of some relevance. She indicates that the symptoms are as follows:

a) flashbacks;

b) a constant fear of seeing her sister and describing it as being terrified that she is going to see her sister. I can say that for the purposes of these reasons, the posttraumatic stress disorder seems to have been triggered by the significant maltreatment inflicted by the Accused's sister upon the Accused, as a youngster, including what can be described as serious threats to the Accused and to the life of the Accused;

c) anxiety attacks which are described as including tightness in the chest, inability to breathe, becoming hot and flushed and shaking. [ 41 ] The Accused indicated that when she is in the throes of one of these anxiety attacks that most people would not know that she was anxious. However, as the attacks become more severe, she says that she believes that the symptoms of the severe panic attack are quite evident. She says she has these severe panic attacks about once every couple of months and she says she has experienced these since she was a teenager.

She says the duration of the attacks is approximate a half an hour. [ 42 ] She testified that on the day of the events giving rise to the charges that she experienced a panic attack while in the Fairway Market. She said initially that having visited her daughter, she thought she should get some food. She was walking past the Fairway Market. She said that although she was starting to get an anxiety attack, she decided to go into the Store and to buy what she described as “a few things”.

She said that she was walking up and down the Store’s aisles and then came to the conclusion that the attack was getting to the point that she had to, in her words: "I just -- I have -- just -- I just" -- quoting again, "I have just got to get out of here." [ 43 ] She said that she had some groceries in the cart. She indicated that she had not paid for those groceries, but felt compelled to get outside the Store in order to be able to get some air. [ 44 ] It was at that point she said that she was apprehended by the Loss Prevention Officer.

She indicated that she said to him that she was in the process of looking at the plants in the floral display. She said that he responded in disbelief and used a profanity to emphasize that disbelief. [ 45 ] The Accused further testified that while in the Store, the compelling thought in her mind was to, "Get away, just away." She felt that she had to get outside the Store to be in a safer location and so, as I understand it, to calm down.

She said at the time that her plan was that when she had calmed down, she would go back in to the Store and, in her words, "finish my shopping." She indicated that she had cash and credit cards on hand. [ 46 ] The Accused also indicated that she felt quite weak and shaky as a result of what she described as low blood sugar.

She indicated that she receives medication for a diabetic condition. [ 47 ] She also indicated that she did not have any intention to steal the groceries which she was found to be in possession of outside of the Store. [ 48 ] On cross-examination, she was shown a photograph taken of her while in the security room inside the Store. She indicated that she was crying and refuted Crown's suggestion that, in fact, it appeared that she was smiling in that photograph. She said that that was not the case and said that it was not a smile, but rather she was very upset and, as I previously indicated, she was crying.

It is difficult to see from the photograph, (the quality of the photograph which is reasonably good), whether or not there was something what would be associated with tears, that is moisture in her eyes. [ 49 ] Crown pressed the Accused on the contents of the canvas bag located on her cart. Notwithstanding the observations made by the Loss Prevention Officer, the Accused indicated that the first two items she placed into the canvas bag were the potatoes and the onions.

She continued to say that when doing so, she was trying to work out price per units in a fashion, which she described as "checking out the prices" and "calculating the prices." She also indicates that the meat products, including sausages and the like, were picked up off the shelves after that.

She said that notwithstanding that her panic attack was beginning and thereafter continued into what she described as a "full-blown" panic attack, she was able to conduct some of the price-checking that she was going through. [ 50 ] She did admit that she her memory of some of the events and the sequence of events was not as definitive as she could possibly be.

In other words, she admitted that there was perhaps a lack of full recollection of those events, but she was quite insistent that she would not get the potatoes and the onions at the end simply based on the practices she used when shopping, which she has done for many years. [ 51 ] The Accused’s evidence was not consistent on whether or not she had gone into the Store in order to buy something to address her low blood sugar. It is not entirely clear whether or not the low blood sugar issue was one that was a primary or secondary reason for attending at the Store.

However, she seemed to suggest that her main reason for going into the Store was to obtain some takeout food to address her blood sugar levels. In redirect examination, she indicated again, that she was pretty sure that she was doing her price comparison- price-checking of the onions while in the Store at the time that she was starting her panic attack and prior to picking up the meat products; but as I say, this sequence is contrary to the observations of the Loss Prevention Officer.

The Applicable Law [52]

Section 322 of the Criminal Code provides in part as follows under the hearing, "Theft/Time when theft completed": 322(1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right convertsto his use or to the use of another person, anything, whether animate or inanimate, with intent (

a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of hisproperty or interest in it; (

b) to pledge it or deposit it as security; (

c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or (

d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

(2) 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 itto become movable. ... [53]

Section 334 of the Criminal Code provides as follows: 334 Except where otherwise provided by law, every one who commits theft (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, where the property stolen is atestamentary instrument or the value of what is stolen exceeds five thousand dollars; or (

b) is guilty (

i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or (ii) of an offence punishable on

summary conviction, where the value of what is stolen does not exceed five thousand dollars. [54] Crown has quite appropriately proceeded summarily with respect to this particular offence against this particular Accused. Defence Submissions [55] Defence submits on behalf of the Accused that what is at issue here is whether or not Crown has discharged its burden of proofand proven the mens rea of the offence and, more specifically, proven whether the Accused intended to steal the items or intended todeal with them in such a manner as to bring the offence within the meaning of "theft" under the Criminal Code.

Defence submits thatCrown has failed to prove that element of the offence beyond a reasonable doubt. [56] Defence submits that the decision of our Supreme Court of Canada in Vaillancourt v. R. and Attorney General of Ontario,cited as R. v. Vaillancourt, (SCC), 1987 CarswellQue 18, [1987] 2 S.C.R. 636, [1987] SCJ No 83, is applicable to thiscase. In it the Supreme Court examines the requirement for Crown to establish the mental element of a criminal offence.

In particular,Defence points to the decision of Justice Lamer, as he then was, and specifically at paragraph 93 where he discusses that because of thestigma attached to a conviction like theft, the principles of fundamental justice require a mens rea reflecting the particular nature of thatcrime. [57] Defence also notes that the decision in Vaillancourt was also relied upon by the British Columbia Court of Appeal in R. v.York, 2005 BCCA 74, 2005 CarswellBC 276, [2005] B.C.W.L.D. 2124, [2005] B.C.W.L.D. 2130. [58] In R. v.

York Justice Oppal of the Court of Appeal also makes reference to the decision of the Supreme Court of Canada in R.v. Bernard, (SCC), 1988 2 S.C.R. 833, 45 C.C.C. (3d) 1, C.C., in which the Supreme Court of Canada discusses theblameworthiness required for a conviction. In the Bernard decision, Madam Justice Wilson makes reference to the words of Ritchie J. inR. v. George (1960), (SCC), 128 C.C.C. 289 at 306. In York, the court was dealing with the mens rea requirements forcharges of theft and possession of stolen property.

Justice Oppal states as follows at paragraph 18: [18] In her reasons Wilson J. made reference to these words of Ritchie J. in R. v. George [citation noted above] at 306: In considering the question of mens rea, a distinction is to be drawn between "intention" as applied to acts done to achieve an immediateend on the one hand and acts done with the specific and ulterior motive and intention of furthering or achieving an illegal object on theother hand.

Illegal acts of the former kind are done "intentionally" in the sense that they are not done by accident or through honestmistake, but acts of the latter kind are the product of preconception and are deliberate steps taken towards an illegal goal. The formeracts may be the purely physical products of momentary passion, whereas the latter involve the mental process of formulating a specificintent. [19] Similarly, in R. v.

Vaillancourt [citation omitted but referencing para 92 and 93] Lamer J. (as he then was) made the followingcomments: It may well be that, as a general rule, the principles of fundamental justice require proof of a subjective mens rea with respect to theprohibited act, in order to avoid punishing the "morally innocent". ...

But, whatever the minimum mens rea for the act or the result may be, there are, though very few in number, certain crimes where,because of the special nature of the stigma attached to a conviction therefor or the available penalties, the principles of fundamentaljustice require a mens rea reflecting the particular nature of that crime. Such is theft, where, in my view, a conviction requires proof of

some dishonesty. [ 59 ] Justice Oppal at paragraph 20 of R. v. York goes on to say as follows: I think the law can be summarized as follows. Personal possession is established where an accused person exercises physical control over a prohibited object with full knowledge of its character, however brief the physical contact may be, and where there is some evidence to show the accused person took custody of the object willingly with intent to deal with it in some prohibited manner.

The judge convicted the appellant on the grounds that the appellant knew that the goods were stolen, and that he exercised physical control over them without notifying the police or the rightful owners. The blameworthiness of this conduct fell short of that required for a conviction for a crime of dishonesty. The circumstances here are not all that dissimilar to those in Christie , supra .

The appellant's conduct was inconsistent with any intention to retain or deal with the goods. [ 60 ] Defence also says that, based on the whole of the evidence, I should find the Accused's evidence credible and that she was candid and forthcoming. In particular Defence says that reliance must be placed upon the fact that she was quite candid about her posttraumatic stress and the fact that she is subject to panic attacks. Therefore, I am being urged to accept her evidence of having such an attack on this particular day in the Store.

Thus, it is submitted that I should accept that the Accused was outside the Store not for the purposes of committing the theft of the unpaid items which she had in her possession, but rather to relieve the stress of the panic attack. Furthermore I should accept the Accused's explanation that her intention was to calm down, look at the flowers, and then return inside the Store to complete her shopping, which I take it to mean complete her shopping and the payment for the items in question that she had taken off of the shelves. Therefore, I am being urged to acquit the Accused.

Crown's Position [ 61 ] Crown relies on the analysis in W.(D.) . Crown also indicates that on the whole of the evidence, the Accused's evidence should not be accepted by the court. In Crown's words, “it did not appear to hang together”. Crown says that there were contradictions in that evidence. There were inconsistencies in that evidence, especially with respect to the steps that were taken in order to take the various items off the shelves and to put them into the canvas bag.

Crown points out that the Accused did testify that she maintained what was described as a “keen mind” during the time that she was supposed to be subject to the anxiety attack. Therefore, based on the whole of the evidence, I should not accept that there was a lack of intention on the part of the Accused to steal the items but rather that I should conclude that the Accused intended to commit the theft as evidenced by the concealment of the items and their subsequent removal outside of the Store without disclosing that they were in her possession or attempting to pay for them.

Analysis [ 62 ] With respect to the evidence of the Loss Prevention Officer, I find many aspects of his evidence to both be credible and reliable. In my view, he had an unobscured view of the Accused at all material times. He did not see the first seven items being picked up which were eventually discovered in the canvas bag. He commenced his observations of the Accused while she was inside the produce area at the front of the Store.

I am quite satisfied that any of the other items which were found in the bag had been acquired at an earlier stage and that the last items put into the canvas bag were, in fact, the potatoes and the onions. [ 63 ] However, what is also particularly important is what I find to be some inconsistencies in the evidence of the Loss Prevention Officer when tried to describe the distance at which he apprehended the Accused person outside and away from the Store. He did confirm that the Accused was not running, but he did indicate that she was starting to walk towards the area of Quadra Street.

He also seemed to suggest in his evidence that he made the assumption that she was not intending on going back into the Store based upon the distance that she was from the door of the Store and also his notion that “honest customers” leave their carts inside the store and then proceed to buy flowers rather than proceeding outside the Store with their carts. [ 64 ] I find the evidence of the Accused to be somewhat confusing and inconsistent on some points.

However, she did testify about her intention not to steal and her intention to return into the Store and to complete her shopping, the inference being that she intended to pay for the items in her cart bag, and that she did have cash and credit cards on her person and was able to do so. [ 65 ] What I have to decide is whether or not the anxiety and panic attacks were real and that the Accused was in the throes of one of those attacks at the point she decided to leave the Store. I am satisfied that the Accused’s anxiety and panic attacks were real.

I do not accept that the anxiety attacks were sufficient in order to vitiate any intention, that is the mens rea , on the part of the Accused. That conclusion is certainly not made out by the evidence. [ 66 ] Accordingly, the cases referred to by Defence, being R. v. Leinen , 2013 ABCA 283 , a decision of the Alberta Court of Appeal, and the decision of the Court of Appeal of Quebec in R. v.

Poulin-Chénard , 2007 QCCA 342 , which deal with situations where panic has been recognized as being sufficient in order to vitiate specific intent, in my view, are not applicable to this case. [ 67 ] However, in this case, I am left with a reasonable doubt by the evidence of the Accused on the issue of whether she intended on committing the theft of the items in her canvass bag when she left the Store rather than trying to relieve herself of the stress and of the panic attack she was suffering at the time that she was inside the Fairway Market Store.

Based on that reasonable doubt, I acquit the Accused of the offence. [ 68 ] That concludes my reasons. Thank you. (REASONS FOR JUDGMENT CONCLUDED)