r v. APRIL MAHANNAH, 2012 QCCQ 14496

R. c. Mahannah 2012 QCCQ 14496 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF BEDFORD TOWN OF COWANSVILLE Criminal and Penal Division No. 455-01-010627-101 DATE: November 29, 2012 ______________________________________________________________________ PRESENT: THE HONOURABLE SERGE CHAMPOUX J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

APRIL MAHANNAH Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] April Mahannah is accused of having committed thefts during the period of a year preceding March 10, 2010. The victims of the thefts were reportedly three co-workers and three residents at the establishment where she worked. [ 2 ] She wholly denies the alleged facts. THE FACTS [ 3 ] April Mahannah had been working for an establishment by the name of Villa des Rivières, in Bedford, since 2006.

JC00K1 [ 4 ] I understand it is an establishment, connected with the municipality, that contains 30 apartments for the elderly who are autonomous or who have a slight loss of autonomy. The residents all pay rent and receive in exchange certain services and care, for example, those of a nursing assistant. [ 5 ] Certain housekeeping services for an hour a week per housing unit are paid for out of the rent. Since there are 30 units, 30 hours are provided per week. April Mahannah assumed that responsibility.

She went from room to room once a week, according to a set program, and provided one hour of housekeeping services to each beneficiary. [ 6 ] In the year or two years preceding 2010, the administration became aware of complaints by residents. Thefts allegedly occurred in the residents’ apartments. I noted that there seemed to be a doubt about the existence of the thefts, at least in the beginning.

Possibly because of fear that the residents had simply mislaid the money that had supposedly been stolen or the thefts were, in fact, invented, no step seems to have been taken at first. [ 7 ] Be that as it may, as of about the 2009 Christmas period, two employees—Nathalie Corriveau, nursing assistant, and Marie Raymond, patient attendant, complained that they, too, had had things stolen from their personal effects. [ 8 ] On March 10, Marie Raymond informed her boss, André Carrier, of a theft from her purse, which she had left in the nurse’s office.

The office is, in fact, also the employees’ cloakroom, in a manner of speaking. [ 9 ] André Carrier decided to take the matter into his own hands. [ 10 ] To that end, he took two $20-bills he had and put a light checkmark in red in the corner of each of them. He showed them to two employees, Nathalie Corriveau and Judith Laflamme, and explained to them what he was going to do. [ 11 ] The two bills were placed in an envelope that was voluntarily “soiled” in order to look used. The envelope was placed under a small refrigerator that was on the counter near the nurse’s desk.

Only a small corner of the envelope was visible. It was a trap set to discover the perpetrator of the thefts. [ 12 ] When, in the early afternoon, Nathalie Corriveau saw the accused enter her office, Ms. Corriveau left quickly, as if she had an errand to run. She went to the cafeteria, on the other side of a corridor, where she and Judith Laflamme could observe part of her office. [ 13 ] The accused remained a few minutes in the room, then left. The employees returned to the office and noted that the money and the envelope appeared to have disappeared. They called André Carrier, who arrived in the office.

The police were called, as the plan was

to search the accused when she left, after her shift. [14] That is what happened. Police officers were waiting for the accused in front of the establishment when she left. The accusedwas searched and the two bills were found in an inside pocket of her coat.

She said, according to the police officers, “it’s my money”.According to her, she said that was a sum of money collected for orders of Avon products that had been placed with her. [15] That is essentially the evidence concerning the count of theft of amounts of money belonging to André Carrier. [16] As for the evidence concerning the counts for the thefts that occurred in the apartments of three beneficiaries—counts 4, 5 and6—it consists in the written statements of the three people involved.

In the case of two of them, the evidence consists in the filing, withconsent, of their statement, while in the last case, that of Dora Brault Wazer, a voir dire, which I will come back to later on, was held. [17] As for counts 2 and 3, which concern the thefts of which Nathalie Corriveau and Marie Raymond were allegedly the victims,the evidence consists in their testimony. [18] Each of them recounted that they lost specific sums of money (Nathalie Corriveau, $70 in December 2009 and $20 in March2010; Marie Raymond, $100 in December 2009 and $90 in March 2010, the day April Mahannah was arrested).

They were specific andconvincing in their testimony about the amounts of money lost. In both cases, there is no reason to doubt the losses they sustained. Theyalso explained certain circumstances that helped to fuel their suspicions about the accused. For example, whereas April Mahannah oftencomplained about her financial problems, she suddenly showed off jewellery acquired in a local jewellery store, a few days after one ofthe thefts. Be that as it may, they did not actually see the accused commit any offence whatsoever. [19] The accused and her father testified.

Her father explained that, the day before his daughter was arrested, he gave her two bills of$50 each, as she was having financial problems. The evidence shows that the accused had those bills on her at the time of her arrest. [20] April Mahannah also testified. She said she had strained relations with most of the employees at the Villa des Rivières, exceptfor Judith Laflamme. She did not know why that was so. She did not like her boss, André Carrier. [21] She explained that she had access to the residents’ apartments but had to have the doors opened each time as she did not havethe keys herself.

Furthermore, the residents were generally in their apartments during the work. She indicated that she had excellentrelations with them and that they appreciated her. She said that, in fact, part of her work was to socialize with the residents, who wereoften lonely. [22] The day she was arrested began like all the others. She cleaned some apartments, then took her lunch break. As usual, she atequickly then left to take a walk.

She took advantage of her walk to make some purchases for herself and her son, then she returned towork. [23] Between cleaning housing units, she often goes down to the nurse’s office for a new pair of gloves. That day, she noticed thatthe office blinds were lowered and the lights were off. That seemed unusual to her, but she didn’t think twice about it. [24] She also noticed at one point that the nurse and the cook were together in the cafeteria.

That was not very unusual, however,Later, the situation of both the office blinds and the lights appeared to have returned to normal. [25] She left at the end of her shift. Outside, two male police officers accosted her, followed by a female police officer in uniform.She was asked to follow them, then to empty her pockets. April Mahannah found the two $20-bills in the inside pocket of her coat. It wasmoney for the orders of Avon products that she had taken at the Villa des Rivières. The police officers took the money.

She asked them:“Why are you taking my Avon money?” Regarding the theft in the residents’ rooms, she said she had also heard that rumour. However,dresses and Christmas decorations were reportedly stolen, and perhaps money. Since the people were elderly, she wondered whetherthey had simply misplaced the items. [26] As regards the jewellery she bought for herself at the Fournier jewellery store in December 2009, she said she gave herself apresent with the money she had received as a gift from the residents. She showed everyone what she had bought with the money she hadreceived from them.

DISCUSSION AND DECISION [27] Two issues must be resolved in order to dispose of the dispute. The first is the admissibility of Dora Brault Wazer’s statementand the second is the analysis of the evidence as a whole in accordance with the rule laid down in R. v. W. (D.), (SCC),[1991] 1 S.C.R. 742 for the appropriate method of analyzing evidence. [28] As regards the first issue, a voir dire was held to determine the admissibility of Dora Brault Wazer’s statement.

That lady wasliving at the Villa des Rivières, but unfortunately died before the trial. [29] I understand that, in the framework of the investigation and more particularly the allegations of theft in the residents’apartments, the investigators in the case met with all the residents in order to ascertain whether they had relevant allegations in thatregard. Ms. Brault Wazer was reportedly among the people who made a statement. [30] In R. v. Khelawon (2006 CSC 57), the Supreme Court of Canada opened the door to the use of alternatives to testimony in court,when certain conditions are abided by.

We know that the general rule is that witnesses are heard in the courtroom after being sworn.They then undergo an examination-in-chief, followed by cross-examination, if the other party wishes. [31] That traditional method of proof is recognized as guaranteeing that the evidence thereby gathered is sufficiently reliable to beadmitted.

[ 32 ] However, sometimes it is impossible for a witness to appear, and the evidence the witness can provide is otherwise lost. In short, in Khelawon , the Supreme Court of Canada has stated that such evidence must then meet two main criteria, namely, necessity and reliability. [ 33 ] The issue of necessity does not arise here. Ms. Brault Wazer is dead and it is therefore impossible to have her testify. Without her statement being filed, evidence of the facts she would relate would be lost. [ 34 ] Reliability is something else.

The statement to be filed, Exhibit VD-1, is in French and contains 17 lines of text, with nothing crossed out and no corrections, followed by the signature of the declarant. [ 35 ] Investigator Bastien explained that he met with a number of residents after the accused was arrested. He met with the people concerned and reassured them. Subsequently, an informal discussion was held and, if the person with whom he spoke made accusations, a written statement was taken.

The investigator wrote the statement and he had the person read it before signing. [ 36 ] With respect, I do not believe that that statement meets the established criteria for reliability. That is not fatal, but the statement was not sworn. Furthermore, the evidence shows that the staff and residents of the Villa des Rivières found out about the accused’s arrest in the hours that followed. Therefore, it is possible, even probable, that Ms.

Brault Wazer was aware of those facts. [ 37 ] Since she cannot be cross-examined, we are entitled to believe, or at least suspect, that, prior to the accused’s arrest, the alleged victim was not so clear about the perpetrator of the theft of which she was the victim. We are also entitled to believe that, at the time, no formal complaint had been made. In addition, the investigator made no particular notes regarding the taking of the statement. [ 38 ] Moreover, the investigator is himself a Francophone and the evidence shows that he is not at ease in English. He has no recollection regarding Ms.

Brault Wazer’s mother tongue. So he also is not aware of the extent to which she was at ease in French. The length of the interview to obtain the short statement is also unknown. [ 39 ] For these reasons, I declare the statement INADMISSIBLE. [ 40 ] The second aspect of the case consists in analyzing the evidence in order to decide whether, on its basis, it is beyond a reasonable doubt that the accused is guilty of each of the counts. [ 41 ] Since she testified, the evidence must be analyzed in light of the teachings of the Supreme Court of Canada in R. v.

W. (D.) . [1] A three-stage analysis must be conducted: 1. If I believe the evidence of the accused and it is exculpatory, the analysis must end and the accused must be acquitted; 2. Even if I do not believe all of the accused’s version, if I am left with a reasonable doubt, the accused must benefit from it and must be acquitted; 3. It is only if the first two stages did not make it possible to resolve the case that the evidence as a whole must be examined in order to ascertain whether it demonstrates guilt beyond a reasonable doubt.

Only in such a case can the accused be found guilty. [ 42 ] It must first be noted that April Mahannah did not talk about counts 2 to 6, except generally. Thus, even if I accepted her testimony in full, it would be difficult to acquit her of those counts. [ 43 ] So, at this stage, there remains the first count, which concerns the theft of two $20-bills from André Carrier. [ 44 ] I am very ill at ease with that testimony. The main reason relates to her comments about the two bills, when she took them out of her inner pocket.

Whether the version of police officer Bastien or that of the accused (that it was her own money or money from an “Avon order”) is accepted, the accused never disassociated herself from that money. She never said that she did not understand why the money was in her clothing. [ 45 ] Her explanation about the orders of Avon products is very simply, not credible. Whether residents or other employees placed orders with her and paid her in advance or late is of little importance.

It was inevitable that she keeps some records. [ 46 ] I note from her testimony that April Mahannah claims it was possible someone slipped $40 into the pocket of her coat, without her realizing it, in order to pay for an order or because the person owed that amount on a prior order. [ 47 ] Firstly, if the order was not placed, it was absurd to leave April Mahannah $40. What would the $40 have been for? No one would leave money without an order or without indicating his or her identity.

That defies commonsense and the accused could not have believed that. [ 48 ] If, on the contrary, it was an order, where is it? [ 49 ] The accused said she had a sheet of paper or a note regarding an order, but did not keep it. That, too, is unimaginable. She had

just been arrested for theft, and her lifeline, the only logical explanation that would give her a reason for having that money on her, was that document, and she said she had thrown it away? [ 50 ] Lastly, her orders were recorded in a booklet, she said. She did not have it with her, having left it in the office. That is not true, according to the notes of Officer Malouin (Exhibit P-5).

If the money and the order matched, it is unthinkable for the accused not to have shown that to the police officers who arrested her. [ 51 ] Another element of her testimony was that she had to go down to the nurse’s office after cleaning each apartment in order to get a new pair of gloves, which would explain her presence in the office, observed by Nathalie Corriveau and Judith Laflamme.

I find that a strange way of working, given the number of apartments to be cleaned every day. [ 52 ] Lastly, her evidence clearly indicates that she was having financial problems, which makes it difficult to reconcile her version and the money she had on her. [ 53 ] Moreover, I would add that the accused testified about all these events with surprising detachment.

That raises serious questions in my mind in the circumstances. [ 54 ] For all these reasons, I do not believe the accused’s testimony. [ 55 ] In the second stage of this analysis, I must say that her testimony raises no doubt in my mind regarding the counts. [ 56 ] In the third stage of the analysis, I must examine the evidence as a whole and determine whether the prosecution discharged its burden. [ 57 ] As for the sixth count, for the reasons given earlier, the answer is negative.

For different reasons, the same will be said about the other counts involving the other residents. [ 58 ] Their testimony, in both cases, was admitted, with consent, by the filing of their statements. [ 59 ] The testimony of Jane Cook-Sager indicated $200 was stolen from her room. She ruled out the possibility that employees committed the theft, since she was always present when they visited her.

That statement ruled out the accused, who was an employee. [ 60 ] Alfreda Barry gave a very brief statement alleging the theft of $245 from a drawer She had no idea of the identity of the perpetrator of the offence and suspected “someone with the key”. [ 61 ] In my opinion, that evidence does not meet the criterion of ensuring guilt beyond a reasonable doubt. [ 62 ] As for the theft from the two employees, the evidence is entirely circumstantial.

In the more specific case of the theft from Marie Raymond on March 10, 2010, although a $50-bill was reportedly found on the accused’s person, another credible explanation was provided to justify its presence there. [ 63 ] Do purchases made during the noon break (at Korvette, in particular) justify the absence of the bill? That is possible. The investigation did not demonstrate the cost of the purchases, or whether such a bill was used to pay for them. [ 64 ] The evidence adduced by the two witnesses Corriveau and Laflamme was precise and highly credible.

Nonetheless, the accused was not seen committing the crimes. That evidence may be sufficient in a civil case, where the burden of proof is different, but I do not have to decide that. I find the evidence insufficient in a criminal case. [ 65 ] If that evidence was so clear, why was a complaint not made in December, given that substantial amounts were, in fact, involved.

Furthermore, isn’t it surprising that, for example, if April Mahannah had stolen amounts of money from her co-workers at the Villa des Rivières, she would show off expensive jewellery the very next day? [ 66 ] I am therefore left with a reasonable doubt regarding counts 2 and 3. [ 67 ] As for the first count, I find the evidence crystal clear and made beyond reasonable doubt.

The evidence adduced, the presence of the two bills, marked in front of witnesses, in the accused’s clothing as soon as she left work and after the theft, after she was seen entering and leaving the nurse’s office, in the circumstances adduced, required a solid explanation. [ 68 ] The accused had none that withstood scrutiny and was credible. [ 69 ] Accordingly, the accused is found GUILTY OF COUNT 1 and IS ACQUITTED OF COUNTS 2 TO 6. __________________________________ Serge Champoux J.C.Q. Mtre. Annik Harbour Counsel for the prosecutor Mtre.

Pascale Gauthier Counsel for the accused Dates of hearing: March 30 and September 7, 2012