R. v. Schell, 2011 ONCJ 609

Citation: R. v. Schell , 2011 ONCJ 609 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. MICHAEL SCHELL R E A S O N S F O R J U D G E M E N T BEFORE THE HONOURABLE JUSTICE R.E.W. CARR, on October 24, 2011, at TIMMINS, Ontario

APPEARANCES : G. Verbeek Counsel for the Crown K. Alexander Counsel for Michael Schell ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S W I T N E S S E S Examination Cross- Re- WITNESSES in-Chief Examination Examination E X H I B I T S EXHIBIT NUMBER ENTERED ON PAGE Transcript Ordered: October 25, 2011 Transcript Completed: November 14, 2011 Ordering Party Notified: November 15, 2011

Legend [ sic ] – Indicates preceding word has been reproduced verbatim and is not a transcript error. (ph) – Indicates preceding word has been spelled phonetically. CARR, J. (Orally): Michael Schell stands charged with having stolen money from Gary Lacroix in the City of Timmins in or about the month of September 2009. The case at its simplest can be quickly summarized. Gary Lacroix was, at the material time, an absentee landlord of a 19-unit apartment building in Timmins.

He lived near Kirkland Lake and, therefore, hired the defendant, Michael Schell, to collect rents and vending machine proceeds from the apartment building and to deposit the funds into Mr. Lacroix’s account at the Royal Bank in Timmins. The defendant was hired in September of 2009 and September was to be his first month on the job. Mr. Schell collected cash and cheques from the tenants but the money never made its way into the landlord’s bank account. Mr. Schell was charged accordingly.

The defendant says that he brought the money – cash and cheques, to the bank, gave the proceeds to a teller on September 14 th in the morning and left. The cash, some $1400, was never recovered. The cheques in the $10,000 range were not cashed but some tenants refused to re- issue the cheques. It is not clear, exactly, as to how much Mr. Lacroix lost but the charge alleged monies not exceeding $5,000. THE FACTS The defendant was hired by Luc Pilon, his predecessor on the job, to collect the apartment rents and take them to the Royal Bank. Mr.

Pilon gave the bank book to the defendant, but according to the defendant, he was given no instruction by Mr. Pilon or by the landlord as to how to make deposits, and there was no evidence to the contrary. The bank book contained three deposit slips which, according to bank protocol, were to have been filled out in triplicate by the depositor/bank customer and taken to the business wicket at the Royal Bank where the teller would total the cheques and then confirm the total on the slips as well as count the cash.

The teller would appropriate the cheques and cash, initial and stamp the slips, and return the bank book minus the first two slips, to the customer when the transaction was completed. Because all three slips were “carbonized” the information on all three should be exactly the same but for the stamp which was to be applied to each of the three slips, individually. When confronted by Mr. Lacroix on September 21 st , (the day before the investigating police officer spoke to the defendant), the defendant told the landlord that he took the cheques and the cash to the bank and left it with the teller. He gave Mr.

Lacroix a slip

from the bank book confirming the deposit. The defendant had all three slips in his book. None of the slips were stamped by the bank nor were they initialled by the teller, and one of the slips had information on its face which was not contained on the other slips. These significant departures from Royal Bank business account deposit protocol all point to the fact, argues the Crown, that the defendant did not make the deposit. In fact, the Crown proffers that Mr. Schell never went anywhere near the Royal Bank but simply pocketed the cash and got rid of the cheques.

The defendant was behind in his rent and was in debt in September of 2009. The defendant told, for the most part, the same story to the investigating officer on September 22 nd and to the court at trial. In court, the defendant said that he went to the bank on the morning of September 14 th with the cash, cheques and bank book, and gave all of the above to the teller. He filled in most of the information on the bank book slips after he was given instruction by the teller, however, some of the information, he said at trial, was not filled in by him.

He waited for the teller to do her job, talking to someone in the next wicket during that time. When the teller “handed me back the book, I said, ‘Have a nice day.’ I put it back in the case and I walked out of the bank.” According to Officer Kilby, the story differed in that the defendant told him that the teller did the writing on the slips. The defendant reiterated in court that he was given no help at all by Mr. Lacroix or by Luc Pilon, as to deposit procedure/protocol.

He also advised that he was functioning at a grade three level in terms of literacy and that he had absolutely no commercial/business banking experience at all. Patty McGirr, a manager at the Royal Bank, confirmed that the defendant’s story does not square at all with Royal Bank protocol. As mentioned, the defendant retained all three slips, the slips contained no teller’s initials nor were there stamps on any of the slips. Ms. McGirr pointed out that some information was on one slip but not the others and that this indicates that the information was added separately, given that the slips are carbonized.

She maintained that all of the tellers at the Royal Bank were bonded employees – implying that they are honest and honourable people. She did concede, however, that bank employees in the City of Timmins have been prosecuted for fraud over the last number of years. At the end of the day, the court must apply the principles enunciated in the leading case of R. v. W.D. to the facts of the case in terms of its ultimate analysis and judgement.

However, before we get to the W.D. analysis, the court must consider the defendant’s argument that a vital piece of evidence is missing and that he has been severely prejudiced by this omission. THE CHARTER ISSUE Ms. McGirr confirmed that the seven video cameras were, on the day in question, strategically placed in the bank. The cameras recorded all activities in the bank on the day in question. Everyone who entered and left the premises would be captured on videotape as well as all transactions conducted by these people at every wicket in the branch.

Investigating officer, Kilby, attended at the bank on September 29 th , 2009. At this time he was aware of the defendant’s position to the effect that the defendant had attended at the bank on September 14 th with the cash, cheques and bank book, and that he left the bank without the cheques and cash, leaving same with the teller.

Officer Kilby was alerted on September 29 th by Ms. McGirr to the fact that video cameras covered the entire branch and that all persons entering the bank and conducting business with the bank would have had their activities recorded by the video equipment including all business conducted by tellers at the wickets. Officer Kilby was told by Ms. McGirr that the videotape would be made available to him following a written request on Timmins Police Service letterhead and he knew then that the tape would clearly show whether or not the defendant attended at the bank on the day in question.

Officer Kilby understood the importance of the videotape and spoke with his sergeant and staff sergeant at the time but, and as a result of these consultations, no action was taken to obtain the tape. Ms. McGirr confirmed at trial that the videotape is easily requisitioned and obtained – on-line - if requested and that on-line review of videotape evidence is often requisitioned in the event of discrepancies at the ATM machine. The video recordings are on a loop and, therefore, have a limited shelf life although Ms. McGirr did not know how long the shelf life was.

The defendant was not arrested immediately and although he was interviewed on September 22 nd , 2009, the information was not sworn until December 18 th , 2009. When Officer Kilby was asked, “...do you think that it would have been perhaps some advantage to have gone and picked up the tape at that time?” he replied, “I did what I was told by my superiors.” It should come as no surprise that as soon as the defendant retained counsel he, Mr. Alexander, specifically requested of the Crown a copy of the videotape. This request, in my view, should have been reasonably anticipated by the police.

By this time, however, the tape had been recycled and lost forever. Mr. Alexander argues that as a result of the loss of the videotape, the defendant has suffered much harm in that he no longer can make full answer and defence to the charge and that his Charter rights; sections 7 and 11(

d) in particular, have been violated.

Section 7 reads as follows: “Everyone has a right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Section 11(

d) reads as follows: “Any person charged with an offence has the right...(

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.” Mr. Alexander further argues that the only appropriate and just remedy in these circumstances is an order staying the charge s . Section 24(1) reads as follows: “Anyone whose rights or freedoms as guaranteed by this charter have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” The videotape was relevant to the case at bar.

Indeed, it goes to the very issue before the court: as to whether or not the defendant attended at the bank on September 14 th , 2009 and gave the money and cheques to the teller. As mentioned, Officer Kilby immediately saw this as being relevant. Remember that he (Kilby) spoke to two superiors about this evidence. Ms. McGirr saw the tape as being relevant.

In R. v. Delude, the Ontario Court of Appeal, 2004 CanL11 30967, the videotape was taping in “single photo frame” images 15seconds apart, and the issue there was whether or not the defendant failed to comply with a demand for a breath sample. Even in Delude, the Ontario Court of Appeal found the tape to be relevant, albeit in these circumstances marginally so. Here, we do not know if the video is in single photo frame images spaced apart or if it is a continuous running portrayal of theevents in normal time sequence.

But even if the video here was as in Delude (images at 15-second intervals), the images would clearlyconfirm or put the lie to the defendant’s story. In my view, the relevance is high in this case and there is no excuse for the failure of theTimmins Police Service to request from the bank a copy of the videotape. Officer Kilby knew of its importance from the get-go and spoke to two (emphasis mine) superiors about the tape but theyinstructed him to take no steps to procure or secure the tape - not to send a simple letter, even by fax, to the Royal Bank requesting access to the tape for September 14th, 2009.

In my view, any reasonable cost/benefit analysis with respect to the proposed action would weighmuch in favour of securing the tape. The cost, in terms of time and money, would have been marginal and the benefits obvious. The police would not even have had to spend the time necessary to view the tape upon receipt of same but needed only topreserve it for the defendant if requested.

Of course, and as we know, the information was not sworn until December 18th, 2009, some three months later, and thedefendant, through counsel, asked for a copy of the tape as soon as counsel was retained, and as mentioned this was, surely, adevelopment which the police should have reasonably foreseen in September of 2009 when the existence of the tape was first madeknown to Officer Kilby and further discussed by him with his sergeant and staff sergeant.

For the reasons aforesaid: the fact that the police knew as early as September 29th of the existence and easy procurability of thistape and of its importance, as well as the fact that the defendant was not charged for some three months after that, no blame can be laid atthe feet of the defendant for failing to request the tape in a timely manner. Accordingly, I am persuaded that the defendant has established, on a balance of probabilities, that his right to make full answerand defence, (s. 7 of the Charter), and his right to a “fair hearing”, (s.11(

d) of the Charter) have been compromised. Of course, these findings beg the question of appropriate remedy in these circumstances. The defendant, relying upon s.24(1) of the Charter, requests a stay of proceedings. The Crown does not agree. In the leading case of R. v.

Carosella (SCC), [1997] 1 S.C.R. 80, Supreme Court of Canada held that, “Thepower to grant a stay is one that should only be exercised in the clearest of cases.” In that case, as in the case at bar, “credibility was amajor issue,” and the trial judge held that “the destruction of the notes was significant and had seriously prejudiced the accused...and as aresult substantially impaired the defendant’s ability to make full answer and defence.” “The presence of either of the following two factors justifies the exercise in discretion in favour of a stay: - no alternative remedy would cure the prejudice to the accused’s ability to make full answer and defence, and - irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.” In my view, the destruction of the tape was/is significant, the prejudice is serious and the defendant’s ability to make fullanswer and defence has been substantially diminished or impaired.

I am also convinced that there is no alternative remedy here – a delay and new trial date would not avail the defendant, and to proceed in these circumstances would, in my view, result in irreparable prejudice to the integrity of the judicial system. Notwithstanding Mr. Verbeek’s able argument to the contrary, I am persuaded that this is one of those clear cases in which a stay should result and, accordingly, the court will not proceed to the R. v. W.D. analysis given the absence of this most important missing piece of evidence.

The defendant attended in court for trial on a day when the matter could not be reached – through no fault of the Crown. The defendant travelled from Elliot Lake and he asks for costs from the Crown. The motion for costs shall not succeed. **********