Her Majesty the Queen - v. -, 2015 SKPC 134

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 134 Date: September 21, 2015 Information: 31082487 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Eric James Harmon Appearing: Mr. Rob Parker For the Crown Mr. Mervin Shaw, Q.C. For the Accused JUDGMENT D. KOVATCH , J BACKGROUND [ 1 ] The accused, Eric James Harmon is charged with theft of money, greater than $5,000.00 from Stephanie Beultler, contrary to s. 334 (

a) of the Criminal Code . It is alleged the incident occurred on December 17, 2012. He elected trial by the Provincial Court. The issue is whether the Crown has proved the charge beyond a reasonable doubt. More specifically, the issue is whether the accused had the requisite intent to commit the offence of theft.

THE EVIDENCE [ 2 ] At the outset, the defence admitted certain facts. It admitted that on December 17, 2012, the offence date, the accused attended at the Royal Bank, Main Branch in Moose Jaw, Saskatchewan. He withdrew cash from two bank accounts: $7,140.00 from a savings account and $275.00 from a chequing account. The funds were taken out of an account held by one Stephanie Beultler. She is a person not known to the accused. At no time did the accused represent himself to be Stephanie Beultler.

The defence further admitted that on April 25, 2013, Detective Sergeant Randy Jesse, of the Moose Jaw Police, took a videotaped statement from the accused. The defence admitted that the statement was taken voluntarily and in accordance with the accused’s rights pursuant to the Canadian Charter of Rights and Freedoms . Accordingly, the defence agreed that the videotaped statement was admissible in evidence, that it would be played before the Court, and the DVD entered as an exhibit. [ 3 ] The first Crown witness called was Ms. Debbie Gibson.

She testified that she has been employed by the Royal Bank of Canada for 40 years. She works as an account manager. I gather that most often this position does not involve the work of the regular tellers. However, on occasion, when the branch is particularly busy, she will open a wicket and work as a teller. The afternoon of December 17, 2012 was one of those occasions where the branch was particularly busy. She was at a wicket when she was approached by the accused, Mr. Harmon. She indicated that Mr. Harmon did not have a plastic account card with the magnetic strip that provided information to the computer.

She said she knew this because the card would have contained complete personal information on the accused, his accounts and the location of those accounts. She said that the accused had a passbook or bank statement, something with an account number on it. She entered this account number and the Moose Jaw Main Branch transit number and the account of Stephanie Beultler came up on the computer. (No evidence was led that the accused had an account with another branch of the Royal Bank, with the same account number as Ms. Beultler’s. However, in his questioning and argument, Mr.

Shaw certainly suggested this was the case. As I understand the situation, it was suggested that the teller would have to enter the correct account number and the correct transit or branch number to obtain the personal and account information on the accused. By entering the account number that she did, and the Moose Jaw Main Branch transit number, the personal and account information of Ms. Beultler was brought up.) [ 4 ] Ms. Gibson testified that she was surprised that the name Stephanie Beultler came up for the male person standing before her.

However, the person standing before her had some feminine features or characteristics, and was carrying a woman’s purse. So she concluded this person could be Stephanie Beultler, and Ms. Gibson did not ask any further questions. [ 5 ] Ms. Gibson testified that the accused asked for his bank balances. He said he wanted to give an accounting to his fiancee. He said something about them going to Italy to be married. As a result, Ms. Gibson printed account histories for the chequing and savings accounts of Stephanie Beultler, and provided those to the accused. Mr.

Harmon did not ask for any money at that time, but took the account histories and left the area for a period of time. [ 6 ] The Crown entered account histories for Stephanie Beultler’s account for the months of December 2012 and January 2013, as Exhibits P-2 and P-3. These account histories were printed on January 31, 2013. Obviously, they are not the same pieces of paper as were given to the accused on December 17, 2012. However, Ms. Gibson testified that these are the same types of documents for the same accounts, as were presented to Mr. Harmon on December 17, 2012. At the top of each

summary is the account number and then: “Account short name Beultler S.”. Exhibit P-2 clearly shows a balance in the high interest savings account on December 17, 2012 of $7,148.34. Exhibit P-3 is a

summary for Ms. Beultler’s RBC No Limit Banking Account. It shows a balance and a withdrawal on December 17 of $275.00. [ 7 ] Ms. Gibson testified that about 15 or 20 minutes later, the accused came back to her and said: “I’m going to take some money out”. She said she decided to take him from the wicket into her office for some greater privacy because it was quite a lot of money that he was taking out. She testified that she prepared the withdrawal forms, went over them with Mr. Harmon, and he executed the withdrawal forms.

Photocopies of the two withdrawal forms executed on December 17 were entered as Exhibit P-1. At the top of the withdrawal forms is the Royal Bank logo and the bank information. Then there is “AUTHORIZATION TO WITHDRAW FUNDS”. There is then information about the date and time of the withdrawal. The account number is then listed and the actual cash amount of the withdrawal. Each withdrawal form then says: “Client Name: Stephanie Beultler”. There is no information for about one inch below the client name information. Then each form says: “client signature” and has a signature blank.

It would appear that the signature begins with an E. It is not easy to read a name from the signature. [ 8 ] Ms. Gibson testified that she then counted out all of the cash for Mr. Harmon. She indicated it was the standard practice to count out all of the cash for the individual making the withdrawal. After counting out the cash, she put the amount in an envelope and Mr. Harmon left the branch.

[ 9 ] Under cross-examination, Ms. Gibson admitted that she made a number of mistakes in dealing with Mr. Harmon. She assumed that he could be Stephanie Beultler. She also admitted that she could have asked for identification and more information. Ms. Gibson agreed that at no time did Mr. Harmon say he was Stephanie Beultler. She was adamant however, that at no time did he say he was Eric Harmon. [ 10 ] The second Crown witness was Sergeant Randall Jesse. He entered and played the videotaped statement.

In general, I would describe that statement as being full of contradictions, and portraying no coherent description of what happened. Mr. Harmon says he asked for the funds and the teller emptied the account and gave him funds. He said he never heard of Stephanie Beultler and never said that he was her. He agrees it is his signature on the withdrawal forms. Mr. Harmon said: “I don’t go out and crookedly do things”. He also said he should sue the person who screwed up, and “you should ask her”.

He denied that he saw any bank funds, that funds were counted out before him, or that he saw any bank balances on the account histories or otherwise. [ 11 ] In the course of the statement, Mr. Harmon mentioned withdrawing $3,500.00 from the Bank of Montreal. He was in Moose Jaw for a period of approximately three weeks during December 2012. Much of the statement involves Sergeant Jesse questioning him on the disposition of more than $10,000.00 during this three week period. He told Sgt. Jesse that he spent money fairly extravagantly. However, later, he admitted that he had fallen upon hard times and had no money.

He also testified about having a sugar daddy in Montreal who was sending him money. When Sgt. Jesse asked him for the name and contact information for this individual, Mr. Harmon refused to provide it. He said this individual was married, and he would not want to embarrass him. Mr. Harmon then began to say that he was very sick and disabled and very tired. He said he couldn’t remember details. Clearly, during the statement, he provided no details as to how he came into possession of this money or what he did with the money.

It should be noted that the videotaped statement was taken in April 2013, approximately four and a half months after the events. [ 12 ] Later in the statement, Mr. Harmon said he never stole any money. Further that he never said I’m going to go out and steal that. Shortly after that, he compared getting extra money from a teller to winning a lottery. Sgt. Jesse then confronted him with the mistake scenario. Sgt. Jesse suggested to Mr. Harmon that he asked to empty the accounts, and received $7,415.00. Further, that Mr.

Harmon knew that he never had that kind of money, knew it was all a mistake, and took advantage of the situation. Mr. Harmon made no response to this. Mr. Harmon then said: “I think the teller should be fired for making a sick person’s life difficult”. He said the teller made a big mistake and he was very upset by this. He later reiterated that he didn’t do anything wrong, and spoke of being suicidal and very depressed. Sgt. Jesse then asked if he would pay the money back, and Mr. Harmon said that if he can, he would, if it’s affordable.

He then stated that he would take the Royal Bank to Court, he would hire a lawyer and sue them. He said he was upset with the teller for the mistake. [ 13 ] That was all of the evidence for the Crown. The defence called no evidence. ANALYSIS OF FACTS AND FACTUAL DETERMINATIONS [ 14 ] There is no evidence that when Mr. Harmon went to the Royal Bank on December 17, 2012, that he had any improper motives or intention of stealing any funds. I am compelled to conclude that he approached Ms. Gibson, the teller, and asked for histories of accounts. She entered an account number, and the information of Ms.

Beultler and her accounts came up. This was printed and given to Mr. Harmon. Minutes later, Mr. Harmon came back and requested that those accounts be emptied. Ms. Gibson again mistakenly believed that Mr. Harmon was entitled to receive those funds, emptied those accounts, counted out the funds, and presented them to Mr. Harmon. To the moment of the withdrawal and the presentation of the funds to Mr. Harmon, I cannot conclude that he did anything wrong or criminal. There is no evidence that he misrepresented himself as Ms. Beultler, or asked to receive her property. I would conclude that Ms.

Gibson mistakenly paid to Mr. Harmon the funds from Ms. Beultler’s account. [ 15 ] However, I am not able to conclude that Mr. Harmon is innocent of any wrongdoing and innocent of these charges. Firstly, as mentioned above, the statement is fraught with contradictions and presents no rational explanation. In the statement, Mr. Harmon attempted to deny that he ever heard of Stephanie Beultler, and denied any knowledge of the amount of funds received. However, I must ask why Mr. Harmon would approach the teller and ask for account histories.

The obvious answer to that question is that he did not know how much money he had in his own accounts. He wanted the histories to ascertain his bank balances and to make withdrawals from his accounts. In order to believe Mr. Harmon’s account and the argument of his defence counsel, I would have to conclude that Mr. Harmon was presented with the histories, that he never read them, never saw that they were accounts for Stephanie Beultler, and never ascertained the amounts in the accounts. This makes no sense. Why would he ask for account histories, and then not read them at all?

I conclude that he received the histories and read them. At that time, he recognized that he had histories for the accounts of Stephanie

Beultler and ascertained the amounts of the accounts. He approached the same teller and simply asked to receive the funds from thoseaccounts. He clearly conveyed to Ms. Gibson that he wanted to withdraw all funds or a substantial amount, as that is why Ms. Gibsontook him to a private office. [16] As mentioned above, the withdrawal forms contain the entry: “Client Name: Stephanie Beultler”. Immediately below that isthe place for the client’s signature where Mr. Harmon executed. Each form also contains the amount of the withdrawal. Ms. Gibsontestified that she counted out the funds before Mr.

Harmon and put the funds in an envelope. Again, Mr. Harmon is saying he had noknowledge as to the amount of the funds and that the funds weren’t counted out in front of him. In my view, this simply doesn’t accordwith reality. It certainly doesn’t accord with sound business practice. The sound business practice and the standard practice of tellers, inmy view almost everywhere, is to count out the funds before the individual to show that they are getting the amount of funds actuallybeing withdrawn. Once again, I am forced to conclude that at the time of the withdrawal Mr.

Harmon was well aware that the fundsbeing paid to him were being paid from Stephanie Beultler’s account, and he was well aware as to the amount. [17] Lastly, and perhaps most importantly, any suggestion from Mr. Harmon that he did not recall the events when he received$7,000.00 cash, did not recall receiving that amount of money, did not recall what he had spent that amount of money on, or that he couldhave had that amount of money in his own account are simply incredible and unbelievable. [18] I find as a fact that Mr.

Harmon knew he was receiving funds from the account of Stephanie Beultler, and knew he wasreceiving was way more than he ever had in his personal accounts. I find as a fact that he knew the teller was making a big mistake. Hefelt he was entitled to say nothing about this and simply take advantage of this mistake. LEGAL ANALYSIS [19] As mentioned above, I cannot conclude that Mr. Harmon is guilty because he misrepresented matters to the teller, orfraudulently induced her to part with the funds. The funds were paid to Mr. Harmon as a result of the teller’s mistake.

However, Mr.Harmon was not entitled to rely upon that mistake. He received the funds, immediately converted the funds to his own use and spentthose funds, and in so doing is guilty of theft by conversion. [20] Section 322(1) of the Criminal Code reads as follows: 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 it tobecome movable.

(3) A taking or conversion of anything may be fraudulent notwithstanding that it is effected without secrecy or attempt at concealment.

(4) For the purposes of this Act, the question whether anything that is converted is taken for the purpose of conversion, or whether it is,at the time it is converted, in the lawful possession of the person who converts it is not material. [21] This

section was applied and utilized by the Supreme Court of Canada in the case of R v Milne, (SCC),[1992] 1 SCR 697. In that case, the accused, through his company, supplied goods and services to the Hudson’s Bay Company. Theaccused’s company issued an account to the Hudson’s Bay Company, and was paid by company cheque. A month later, the Hudson’s

Bay Company mistakenly sent a second cheque in payment again of the full amount of the account. The accused deposited this cheque to his company’s bank account, and then immediately made payment of the funds out of his company’s account into his own personal account. In short, the Hudson’s Bay Company mistakenly overpaid the accused, exactly as happened here, and the accused attempted to capitalize on the error. At paragraph 30, the Court concluded as follows: In this case, the trial judge found that Mr.

Milne was aware that the second cheque had been issued to his company by mistake, and knew that he had been paid with a prior cheque. Therefore, property in the cheque did not pass to Mr. Milne’s company for the purpose of the criminal law. The trial judge also found that when Mr. Milne wrote cheques to himself on the company’s account that reduced the balance to almost nil, this amounted to converting that money to his own use with intent to deprive the Hudson’s Bay Co. of its property. This conversion was done fraudulently and without colour of right, since Mr.

Milne was aware that the cheque had been issued by mistake. Therefore, Mr. Milne was guilty of theft. [ 22 ] In my view, the Milne case is exactly on point with the case at bar. Accordingly, I find Mr. Harmon guilty of theft over $5,000.00. [ 23 ] Dated at the City of Moose Jaw, in the Province of Saskatchewan, this 21 st day of September 2015. D. Kovatch, J