2010 QCCA 2261, 2010 QCCA 2261

Unofficial English Translation Crevier c. R. 2010 QCCA 2261 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-003694-062 (500-01-008125-012) RECORD OF PROCEEDINGS DATE: DECEMBER 3, 2010 CORAM: THE HONOURABLE ANDRÉ BROSSARD, J.A. JULIE DUTIL, J.A. GUY COURNOYER, J.A. (AD HOC) APPELLANT(

S) COUNSEL SOLANGE CREVIER Mtre Guylaine Lavigne, present CHALIFOUX, MONTPETIT, VAILLANCOURT, PARADIS RESPONDENT(

S) COUNSEL HER MAJESTY THE QUEEN Mtre Alexandre Boucher, absent CRIMINAL AND PENAL PROSECUTING ATTORNEY COUNSEL

Appeal from a guilty verdict rendered on October 2, 2006, by the Honourable Judge Gilles Cadieux of the Court of Quebec, Criminal and Penal Division, District of Montreal. NATURE OF THE APPEAL : GUILT – THEFT AND POSSESSION OF STOLEN GOODS Clerk: MARC LEBLANC Room: PIERRE-BASILE-MIGNAULT HEARING File continued from December 1, 2010. 11:53 a.m. Judgment rendered – see page 3. Marc Leblanc Clerk PER CURIAM JUDGMENT

[ 1 ] The appellant appeals from verdicts rendered on October 2, 2006, by Gilles Cadieux J. of the Court of Quebec, [1] which convicted her of having stolen 20 computers and screens that were the property of the Bombardier company, and of having made and used false documents. The appellant faced charges in two files, which were joined by consent for the purposes of hearing the evidence. [ 2 ] The evidence can be briefly summarized. [ 3 ] The appellant was in the employ of Bombardier from August of 1999 until April 9, 2001, the date of her dismissal.

She was head of the information technologies department. [ 4 ] According to the evidence adduced, the appellant sent an email to Mr. Jean-François Lécaudé on January 3, 2001, asking him to transfer 20 computers to the training school. Lécaudé was an employee of GE Capital who was responsible for receiving the computers provided by GE Capital, configuring them for Bombardier, and forwarding them to the identified users. [ 5 ] Lécaudé telephoned the appellant, with whom he spoke once or twice a week, for clarifications, which she gave him. He gathered the computer equipment and prepared a shipping bill.

Evidence was adduced to establish that it was the appellant’s husband, co- owner of a computer business, who took possession of the computers. [ 6 ] The appellant stated in her testimony that she was not in her office on January 3, 2001, because she was on holiday with her children. However, she could not say where she was. She also denied several elements of the evidence adduced by the prosecution. [ 7 ] In addition, she had an expert witness testify that it was impossible to establish certain facts from the content of the emails filed in evidence, such as the sender’s identity.

Considering the evidence adduced, he believed the documents filed in evidence could even have been written in a word processing program. [ 8 ] Rebuttal evidence was allowed because of the late disclosure of the evidence concerning the appellant’s absence from her place of work on January 3, 2001. [ 9 ] As part of the investigation conducted by her employer, the appellant met with Bombardier’s security manager three times, on March 26 and 27, 2001. These meetings took place before a complaint was filed with the police in May of 2001.

The appellant’s answers and reactions during these meetings with the investigator were part of the evidence adduced against the appellant, without a voir dire having been held. [ 10 ] The appellant criticizes the trial judge for making several errors in fact and law, which have been grouped as follows: ➢ He erroneously qualified the defence submitted as an alibi defence; ➢ He was critical of the appellant’s failure to mention or submit information concerning her absence from work on January 3, 2001; ➢ He refused to order a voir dire to determine whether the security manager was a person in authority; ➢ He accepted evidence that was used in the file in which she was acquitted; ➢ He rendered an unreasonable verdict; ➢ He committed several errors in assessing the evidence. [ 11 ] The trial judgment is well reasoned and the conclusions are clear and could be drawn from the evidence adduced. [ 12 ] The judge believed Lécaudé, who spoke with the appellant on January 3, 2001, and received his instructions for shipping the computers.

As the judge explained, this conclusion renders the expert evidence theoretical. [ 13 ] Conversely, the trial judge did not believe the appellant, and her testimony did not raise any doubt in his mind.

He explained his reasons for this, none of which reveal an error warranting intervention by the Court. [ 14 ] It should also be mentioned that although the trial judge did not approach the file's evaluation from this angle, the evidence adduced established the appellant’s opportunity to have access to the computers that were stolen, an exclusive opportunity even. [ 15 ] In his book Watt’s Manual of Criminal Evidence , Watt J. described evidence concerning the opportunity to commit an offence in these terms: Where D is alleged to have committed an offence as principal, it is necessary for P to prove D's presence at the scene of the crime at the material time .

Any evidence that shows or tends to show D's presence is relevant, material, and admissible. Evidence of opportunity exemplifies the concomitant use of circumstantial evidence. On its own, evidence of opportunity, like evidence of motive, is relevant circumstantial evidence on the issue of participation or complicity, but not dispositive of it. Others may have had equivalent, or better opportunity. Where the evidence discloses D had the exclusive opportunity to commit the crime, however, evidence of opportunity has considerable probative value.

Evidence of exclusive opportunity may be sufficient in and of itself to prove, thereby participation by D as principal. It is for the trier of fact to decide [2] .

(Emphasis added.) [ 16 ] Also, insofar as the appellant’s participation in the theft was established by the sending of the email of January 3, 2001, and the instructions she gave to Lécaudé concerning the shipping of the computers, the question arises as to the characterization of the nature of the defence raised by the appellant.

The appellant’s testimony could, in the circumstances of the case at bar, be characterized as alibi evidence, and the trial judge was justified in drawing an unfavourable conclusion from the failure to disclose this evidence before the trial was held. [3] [ 17 ] As for conducting a voir dire into the circumstances surrounding the appellant’s meetings with Bombardier’s security manager, it was not necessary. “ A ‘person in authority’ is generally someone engaged in the arrest, detention, interrogation or prosecution of the accused”. [4] In the case at bar, the investigator did not try to trick the appellant, [5] and the police authorities were contacted more than one month later. [ 18 ] The appellant also implicitly raises the question of how her reactions during her meetings with the investigator could or should be interpreted.

It is true that extreme caution should be exercised when analyzing the behaviour of someone suspected of a crime when that person is confronted with the allegations. [6] In this case, however, this element is peripheral to the judge’s analysis. [ 19 ] In conclusion, the appellant did not establish errors warranting intervention by the Court. [7] [ 20 ] Lastly, there is a total lack of evidence with regard to counts 4 and 5. According to the indictment, they concern “purchase orders” that constituted false documents within the meaning of

section 366 of the Criminal Code . [ 21 ] There is no evidence in the record, however, of any “purchase order”. [ 22 ] In his judgment, the trial judge instead convicted the appellant on these counts on the basis of the email sent to Lécaudé on January 3, 2001. [8] This email is not a purchase order, however, and even if it were regarded as such, it is not an altered “genuine document” within the meaning of the indictment and of subsection 366(2) of the Criminal Code . [ 23 ] Furthermore, if counts 4 and 5 were amended to replace the words “purchase orders” with the words “shipping notice”, these would not be false documents within the meaning of

section 366 of the Criminal Code . [ 24 ] For these reasons, the appeal is allowed in part, for the sole purpose of acquitting the appellant on counts 4 and 5. [ 25 ] The sentences remain unchanged. ANDRÉ BROSSARD, J.A. JULIE DUTIL, J.A. GUY COURNOYER, J.A. (AD HOC)