R. v. McIntosh, 2012 ONCJ 216

COURT FILE No.: Kitchener 11-1704 DATE: 2012·04·16 Citation: R. v. McIntosh , 2012 ONCJ 216 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ROBERT ELLIOTT McINTOSH Before Justice G. F. Hearn Heard on December 16, 2011 and March 19, 2012 Reasons for Sentence released on April 16, 2012 Mr. T. Sferruzzi/Ms. L. Robinson .............................................................................. for the Crown Mr. G. Christakos ............................................................... for the accused Robert Elliott McIntosh HEARN J.: BACKGROUND: [ 1 ] Mr.

McIntosh came before the court on December 16, 2011 and at that time entered a plea of guilty to one count of theft over. The offence relates to the theft of a number of Blackberry Smart Phones, the property of Research In Motion, between the 1 st day of January, 2010 and the 28 th day of July, 2010. The count to which Mr.

McIntosh pled particularizes that there were twelve phones stolen during that period of time with the value of $449.00 each for a total value of $5,388.00. [ 2 ] Facts were read in on that date and there was some issue taken with respect to the number of phones alleged to have actually been stolen by Mr. McIntosh who during the relevant period of time was an employee of RIM. As a result of an acknowledgement of the theft of at least the twelve phones by Mr.

McIntosh and the Crown’s position that there were additional phones taken the matter has been put over from time to time for clarification of the facts. [ 3 ] A brief

summary of the facts read in on December 16, 2011 indicate that on June 25, 2010 while conducting a RIDE spot check program in Kitchener an officer noted, while investigating a driver of a vehicle stopped within the program, a Blackberry cell phone which had a sticker on it indicating that it was the property of RIM. The driver was further investigated for the drinking and driving offence and in the early part of July the police contacted Research in Motion and were in fact able to confirm that the phone that had been found within the vehicle was stolen property.

The driver was further investigated and indicated that he had purchased the phone from a hairstylist who worked in a mall in Kitchener and also indicated that he had seen the stylist with a number of such phones. [ 4 ] One thing led to another and the hairdresser Ahmad Sanie was investigated and ultimately provided the police with a statement indicating that he had purchased the phones from an employee at Research in Motion. That employee was Mr. McIntosh. [ 5 ] The hairstylist still had twelve such phones in his possession and advised the police further that Mr.

McIntosh indicated to him the phones were not stolen and that he was allowed to “give them away”. Mr. Sanie stated he had been provided with a number of such phones, in the range of sixty, by Mr. McIntosh and had paid Mr. McIntosh $250.00 for each phone which he then resold. He indicated that he had provided Mr. McIntosh in return for such phones approximately $15,000.00 to that date. [ 6 ] As a result of the investigation the police contacted RIM again and advised them of their findings. Mr. McIntosh was then placed under arrest and provided an inculpatory statement to the police.

During the course of that statement Mr. McIntosh indicated that he had in fact provided some phones to Mr. Sanie and met with him approximately five times. [ 7 ] On December 16, 2011 after the facts were read in an issue arose as to exactly how many additional phones other than the twelve alleged in the count before the court Mr. McIntosh had actually stolen from RIM and provided to Mr. Sanie. Mr. Sanie had indicated that approximately sixty phones had been provided and Mr. McIntosh took issue with that.

The matter was then adjourned from time to time in order to allow the Crown and defence to further investigate the matter and finally on March 19, 2012 the matter came back before the court. At that time the Crown and the defence agreed that in addition to the twelve phones set out in the count

before the court Mr. McIntosh acknowledged having provided Mr. Sanie with a further twenty such phones each with a value of $449.00. The total number of phones then that Mr. McIntosh acknowledges having stolen from RIM and provided to Mr. Sanie was thirty-two, with twelve having already been recovered. [ 8 ] In addition, Mr. McIntosh did not acknowledge having received the sum of $15,000.00 from Mr. Sanie as Mr. Sanie alleged and indicated that he had in fact only received $2,000.00 from Mr. Sanie for the phones. The Crown has accepted that fact and the benefit to Mr.

McIntosh as a result of the transaction with Mr. Sanie is then $2,000.00. [ 9 ] Finally, it was agreed that at the relevant time Mr. McIntosh was an employee of Research in Motion and was involved with promotional work. As part of that promotional work he was authorized to provide celebrities and others with cell phones on a complimentary basis for short periods of time. Those phones were then to be returned to Mr. McIntosh and thereafter back to RIM for recycling. It was the returned phones that comprised the thirty-two phones acknowledged to have been taken.

These phones apparently were destined to be returned to RIM for dismantling and for the recycling of various parts after they had been used on the promotional basis noted. It has also been agreed that the twenty phones had a value of $449.00 each for a further loss of $8,980.00 to the employer. [ 10 ] As a result of his conduct, in addition to being charged with the matter before the court Mr. McIntosh also was terminated from his employment. CIRCUMSTANCES OF THE OFFENDER: [ 11 ] Mr. McIntosh is 48years of age and has no criminal record.

Although there is not a pre-sentence report before the court, there is a very thorough psychiatric report dated October 19, 2011 from Dr. Gary Chaimowitz who is the head of Forensic Services at St. Joseph’s Health Care in Hamilton and an associate professor of psychiatry with McMaster University. Dr. Chaimowitz conducted a psychiatric assessment of Mr. McIntosh following his arrest and his report is thorough and sets out a good deal of the background of Mr. McIntosh. The report also sets out the circumstances under which Mr.

McIntosh entered into the criminal activity before the court which certainly appears to have been very much out of character for him. [ 12 ] At the time Mr. McIntosh was dealing with the returned phones and turning them over to Mr. Sanie for resale he was under considerable financial pressure. He had declared bankruptcy in 2006 and although he had a good paying position with RIM, his finances were still a concern. In addition, his mother to whom he was quite close was ill and her limited resources put further strain on Mr. McIntosh’s resources, both financial and emotional.

He advised the doctor and his counsel advised the court that the $2,000.00 he in fact received for the phones was given to his mother to assist her in paying her bills while she was ill. Unfortunately, his mother has now passed away. [ 13 ] During the course of the psychiatric assessment Mr. McIntosh accepted full responsibility for his actions. He has shown insight into his conduct and appreciates that it was wrong and sets out in the assessment the factors that led to his poor decision-making on this occasion. [ 14 ] Mr. McIntosh has no substance abuse issue and no history of mental illness.

He has siblings with whom he has a good relationship and had a very close relationship with his mother who ultimately succumbed to her illness in August of 2010. [ 15 ] Following his arrest he was placed on medication to deal with his issues and the stress created by his actions which have caused anxiety and on occasion an inability to function. That situation has improved since he has been on the medication prescribed. [ 16 ] As noted by Dr. Chaimowitz, Mr. McIntosh presented previously with a pro-social history who took

part in the criminal activity before the court as a result of stressors, both with respect to his own financial situation but most importantly with respect to his mother’s resulting from her illness. The doctor concludes that the offences occurred while Mr. McIntosh was experiencing emotional distress related to the potential loss of his mother which was his primary support group and associated financial difficulties. [ 17 ] In addition to seeking counselling and psychiatric support following his arrest, Mr. McIntosh has been diligent and obtained further employment as a marketing manager for a large corporation.

He receives a significant salary as a result of that employment and filed as Exhibit #1 is a copy of his offer of employment. That employment requires that he travel across the border and a conviction, if registered, might very well cause that employment to be terminated. Save and except for his conduct with respect to the matter before the court, while employed at RIM he was considered to be a reliable, hardworking and trustworthy individual who had been presented with an award as a result of the demonstration of persistence in leadership, attitude and results.

A letter from a former employee at RIM has been marked as Exhibit #3 attesting to the attributes of Mr. McIntosh as an employee of that company. [ 18 ] Mr. McIntosh has also written a letter to the court offering his apologies for the crime he has committed. His remorse is expressed not only by his plea but by the contents of that letter. That letter sets out Mr. McIntosh’s own feeling with respect to his actions and the insight he has into his conduct.

The letter which is marked as Exhibit #4 also sets out the consequences a conviction might have not only on his employment but also on his ongoing volunteer work. [ 19 ] With respect to his volunteer work, he has been actively involved with the Milton Hospital in community service work and has worked at the hospice where his mother spent her final days.

His volunteer work at both locations has been significant and I am fully satisfied that he undertook such volunteer work not to impress the court but because of the commitment that he has both to the community and to the people that dedicated themselves to the care of his mother in her final months. [ 20 ] Exhibit #2 is a sentencing brief prepared by counsel for Mr. McIntosh which sets out among other things the nature of the volunteer work. (See Tabs 2 and 3). All of which is extremely impressive.

POSITION OF THE PARTIES: [ 21 ] The Crown takes the position as a result of the breach of trust here and notwithstanding the positive antecedents of Mr. McIntosh that a period of custody is appropriate. The Crown however acknowledges that that period of custody is such that it could be

served within the community in the form of a conditional sentence. [22] Defence counsel takes the position that Mr. McIntosh entered into the conduct that leads to the charge before the court asa result of a number of stressors and represents conduct that is completely out of character for him. Those stressors have been addressedand Mr. McIntosh has taken all the appropriate steps following his arrest to address the issues that led him into difficulty. He hasundertaken a course of counselling, subjected himself to a psychiatric assessment and has been an active member of the community doingvolunteer work.

Further, he has been able to obtain employment which will almost certainly be jeopardized if in fact a conviction isregistered and his ability to travel compromised in any way. Defence counsel submits that this is one of those rare and exceptionalsituations where a conditional discharge is appropriate and is a disposition which can address all relevant principles of sentencing. PRINCIPLES TO BE APPLIED: [23] The principles of sentencing relevant to this matter are set out in the Code in s. 718 to s. 718.2.

Section 718 reads asfollows: “718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.” [24]

Section 718.1 states a sentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender. [25] The issue of proportionality is a principle rooted in notions of fairness and justice. The sentence must reflect theseriousness of the offence and the degree of culpability of the offender and the harm occasioned by the offence. The court must considerboth aggravating and mitigating factors, look at the gravity of the offence and the blameworthiness of Mr. McIntosh and the sentenceultimately imposed must properly reflect in terms of gravity that which the offence generally bears to other offences. [26]

Section 718.2 sets out that a court that imposes a sentence shall take into consideration the following principles: “718.2 (a)(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; ... (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders.” [27] There is present here not only the issues of general deterrence and denunciation to be addressed but also the aggravatingstatutory circumstances with respect to a breach of trust. Mr. McIntosh was in a position where he was able to utilize the returned phonesas he wished. He was in a position of trust with his employer and all of the good qualities of Mr.

McIntosh put him in that position withhis employer who, from the material before the court, seems to have held Mr. McIntosh in high regard. [28] Still, rehabilitation is certainly a factor to consider as well as the fact that Mr. McIntosh comes before the court as a first-time offender. Although not a youthful first-time offender, the principle of sentencing set out in s. 718.2(

e) is an important factor toconsider here. [29] In Regina v. Batisse, (2009) 2009 ONCA 114 , 93 O.R. (3d) 643, the Court of Appeal in dealing with s. 718.2(e)noted at paragraphs 32 and 33 as follows: “... it is an important consideration because the appellant was a first offender. As such, the restraint principle requires that the sentencingjudge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short aspossible and tailored to the individual circumstances of the accused: see R. v. Priest, (1996), (ON CA), 30 O.R. (3d)538 (C.A.), at p. 545.

Second, the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of thesentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas, (2006), (ON CA), 207O.A.C. 226, at paragraph 5:

‘General deterrence cannot be the sole consideration. Appropriate consideration must be given to the rehabilitation of the offender.’” [30] Further, in light of the Crown’s submissions I have considered the provisions of the Criminal Code as it relates toconditional sentences and I have also considered s. 730 of the Criminal Code which deals with the issue of discharges.

Section 730 ofthe Code states as follows: “730.

(1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for whicha minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court beforewhich the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, insteadof convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation ordermade under subsection 731(2).” [31] Section 730(1) sets out effectively two condition precedents to the court’s jurisdiction when considering the imposition ofa conditional or absolute discharge.

One is that the discharge must be “in the best interests of the accused” and secondly, the court mustconsider whether or not the granting of a discharge would be “contrary to the public interest”. [32] I have reviewed the cases setting out how those principles have been dealt with and in Regina v. Sanchez-Pino (ON CA), [1973] O.J. No. 1903 the Court of Appeal in dealing with the “best interests of the accused” stated as follows: “That deterrence of the offender himself is not a relevant consideration in the circumstances except to the extent required by conditionsin a probation order.

Nor is his rehabilitation through correctional or treatment centres except to the same extent. Normally, he will be aperson of good character, or at least of such character, that the entry of a conviction against him has significant repercussions.” [33] In the same case the Court of Appeal also commented on the phrase “contrary to the public interest” and noted: “One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be mindedto commit a like offence – a standard part of the criteria for sentencing. Obviously the

section is not confined to “simple cases ofpossession of marijuana”. It is not confined to any class of offences except to the extent I have noted. On the other hand it is commonsense that the more serious the offence, the less likely it will appear that an absolute discharge or even a conditional one is not contrary tothe public interest. In some cases, the trivial nature of the offence will be an important consideration; in others, unusual circumstancespeculiar to the offender in question may lead to an order that would not be made in the case of another offender.” In Regina v.

Fallofield (1973) (BC CA), 13 C.C.C. (2d) 450 the British Columbia Court of Appeal made a number ofobservations with respect to the application of s. 730. Among others the court noted that there is nothing in the language of the sectionthat limits it to a technical or trivial violation. Further, in the context of the second condition the public interest and the deterrence ofothers the court stated, “While it must be given due weight it does not necessarily in and of its own preclude the judicious use of thedischarge provisions.” [34] In sentencing Mr.

McIntosh I keep in mind the principles that I have set out previously, but also I keep in mind thatsentencing is an individual exercise. It is not an exact science and it is a product of not only the principles of sentencing but also thecircumstances of the offence as well as the offender. As noted by the court in Regina v. Hamilton, (ON CA), [2004]O.J. No. 3252, a decision of the Ontario Court of Appeal, at para. 87: “Sentencing is a very human process. Most attempts to describe the proper judicial approach to sentencing are as close to the actualprocess as a paint-by- numbers landscape is to the real thing.

The fixing of a fit sentence is the product of the combined effects of thecircumstances of the specific offence and the unique attributes of the specific offender.” AGGRAVATING FACTORS: [35] The aggravating factors here are as follows:

(1) The conduct of Mr. McIntosh represents a breach of trust. Simply put, Mr. McIntosh defrauded hisemployer by selling the returned phones to Mr. Sanie as acknowledged. The fact that the phones were destined forrecycling is of no consequence and represented perhaps at the time some form of unreasonablerationalization by Mr. McIntosh to account for his conduct. He knew it was wrong and he was able to undertake thiscriminal activity by effectively breaching the faith his employer had placed in him when charging him with the responsibilities of his employment as it did.

(2) The amount of the theft, although not exceptional, is not insignificant and is approximately $9,000.00.

(3) The conduct of Mr. McIntosh, although, granted, being out of character for him was not an isolatedinstance of misconduct. By his own admission, he provided phones to Mr. Sanie on five separate occasions, received$2,000.00 in return and his conduct took place over a number of months as set out in the information. On many occasions during that period of time Mr. McIntosh would have had an opportunity to stepback, assess his conduct and cease, but he did not. MITIGATING FACTORS: [36] The mitigating factors here are as follows:

(1) Mr. McIntosh comes before the court as a first offender with no criminal record whatsoever or, as faras I am aware, any involvement in the criminal justice system.

(2) He has entered a plea of guilty to the charge and accepted responsibility. The plea itself has saved the court a significant period of time and is a clear indication of Mr. McIntosh’s remorse. In addition to his plea, I am satisfied that his remorse is otherwise genuine and sincere as evidenced by his letter and his demeanour throughout this matter.

(3) Mr. McIntosh has already suffered significant consequences as a result of his misconduct. He lost his employment and he has suffered humiliation and embarrassment associated with that loss, to the knowledge of his co- workers and his employer, all of whom held him in high regard.

(4) There were a good deal of stressors in place at the time of the commission of the offence before the court. Mr. McIntosh was not only suffering some financial stressors of his own, he was also faced with the financial and emotional strain of attending to his terminally ill mother. I accept the monies that he received, some $2,000.00, for the stolen phones was used to meet his mother’s obligations and I accept that he made no personal gain from his actions at all.

(5) Subsequent to his arrest Mr. McIntosh has acted appropriately and taken steps to address the issues which led to his conduct and to afford himself some further understanding into those issues. He has subjected himself to a psychiatric assessment, has been involved with some counselling and has been prescribed medication to deal with the issues that were in place at the time and have been contributed to by the proceedings before the court. He is an excellent candidate for rehabilitation.

(6) Mr. McIntosh has undertaken volunteer work for very good causes within the community, some close to his own family and that volunteer work has contributed in a very positive way to members of the community. He has commenced his own initiative in making reparation to the community in that manner. I take into account that the nature of his volunteer work may be impacted if a criminal conviction is registered.

(7) Mr. McIntosh has been able to obtain employment for which he is well remunerated and well qualified. Given the duties and responsibilities of his employment and fully appreciating there is nothing before the court from the employer to indicate he definitely will be terminated, I am satisfied that he will not be able to fulfill the obligations of his employment if a conviction is registered as set out in the letter that he prepared for the court. [ 37 ] The sentencing of Mr. McIntosh is a troublesome matter.

I have considered the aggravating and mitigating factors as well as the principles of sentencing here and with respect to the request for a discharge I am certainly satisfied that it is in Mr. McIntosh’s best interests for such a disposition to be in place. I am also satisfied ultimately that it is not contrary to the interests of the public to grant a discharge in this particular matter. [ 38 ] Sometimes good people do bad things. Mr.

McIntosh acted out in an inappropriate and criminal manner during a short period of time over a number of months and I am satisfied that that conduct was precipitated by the stressors that were in place at that time. I am satisfied that the actions here were completely out of character for Mr.

McIntosh and represented a lapse of the otherwise good judgment which he had shown all of his adult life. [ 39 ] Giving ample consideration to the principles of sentencing of general deterrence and denunciation and fully appreciating that this is a breach of trust situation, I am still satisfied that it is appropriate to consider a conditional discharge in this matter and I grant a discharge as a fit and proper disposition. When the court looks at the factors surrounding the commission of the offence, the antecedents of Mr.

McIntosh and the very positive things he has done since his arrest, it would be unfortunate and, in my view, inappropriate to jeopardize his continuing involvement in volunteer work as well as in his employment by registering a conviction. A discharge with a lengthy period of probation can address all principles of sentencing by virtue of its terms and length. [ 40 ] Given all of those factors, I find that a discharge is not only not contrary to the public interest but is very much in the public interest in the case of Mr. McIntosh. As a result, a conditional discharge will be granted and Mr.

McIntosh will be placed on probation for a period of 18 months on the following terms: • He will keep the peace and be of good behaviour; • He will appear before the court when he is required to do so; • He will notify the probation officer or court in advance of any change of name or address, telephone number or employment or occupation; • He will report to a probation officer today, if possible, and if not, within two working days of today’s date and thereafter be under the supervision of the probation officer and report at such times and places as the probation officer requires; • He will attend and take

part in any counselling or programming that may be recommended by the probation officer or for any area identified by the probation officer and he will provide proof as may be required by his probation officer of his attendance at and his participation in any program that is recommended; • He will seek and maintain full-time employment; • He will perform 75 hours of community service work which will be performed at a time and rate to be agreed upon with his supervisor or probation officer and which community service will be performed within the first 15 months of the probation order; • He will make restitution in the full amount of $8,980.00, which restitution is to be paid at a time and rate to be agreed upon with his probation officer but which restitution is to be paid in full within the first 15 months of the probation order.

[ 41 ] In addition, there will be a s. 738 order in favour of Research in Motion, the address to be provided by the Crown, for the full amount of $8,980.00. [ 42 ] The victim fine surcharge will be waived in this matter and the other charge before the court will be marked withdrawn. [ 43 ] Mr. McIntosh, you appreciate that I am not registering a conviction today but making a finding of guilt only and granting a conditional discharge. If you fail to comply with the terms of the probation order that I have imposed, then you could be back before the court facing additional charges.

As well, you could jeopardize the discharge that I have granted. Released: April 16, 2012 Signed: “Justice G. F. Hearn”