Sentencing — Quantum — Offences — Criminal Code — Offences against rights of property — Theft and offences resembling theft — Theft under $5,000 (previously $1,000) — Offender given a conditional discharge, 15 months' probation, and ordered to perform 75 hours of community service for theft of two pairs of thong underwear from his place of employment.
Sentencing — Particular sanctions — Discharge — Conditional discharge — Community services — Offender given a conditional discharge, 15 months' probation, and ordered to perform 75 hours of community service for theft of two pairs of thong underwear from his place of employment.
Sentencing — Sentencing considerations — Guilty plea — Offence involving breach of trust — Remorse — Co-operation with authorities — Offender given a conditional discharge, 15 months' probation, and ordered to perform 75 hours of community service for theft of two pairs of thong underwear from his place of employment.
Statutes, Regulations and Rules Cited:
Criminal Code s. 662.1(1), s. 718, s. 718.2
Charges: Theft under.
Counsel:
J. York, Counsel for the Crown
S. Robichaud, Student-at-law for D. Pxxx
J.C. MOORE J. (orally):—
¶ 1 MS. YORK: All right. Anyone out of custody that we can deal with?
¶ 2 MR. ROBICHAUD: Please.
¶ 3 MS. YORK: All right. What's the name?
¶ 4 MR. ROBICHAUD: Pxxx. Gabriel (sic) Pxxx, Your Honour.
¶ 5 MR. ROBICHAUD: I'm providing ...
¶ 6 THE CLERK OF THE COURT: Counsel's name?
¶ 7 MR. ROBICHAUD: For the record, it's Sean Robichaud, R-O-B-I-C-H-A-U-D. I'm a student-at-law with Pinkofskys. I'm here for Mr. Pxxx today. Mr. Pxxx is to enter a guilty plea. I'm passing to the court some ...
¶ 8 THE COURT: First of all, sorry, do you have any idea where he is on the list?
¶ 9 THE CLERK OF THE COURT: He's number 28, Your Honour.
¶ 10 THE COURT: Twenty-eight? Sorry.
¶ 11 MR. ROBICHAUD: I just have three very brief cases I'd like to pass to the Court and my friend for consideration.
¶ 12 THE COURT: Is this a plea?
¶ 13 MS. YORK: This is a plea.
¶ 14 MR. ROBICHAUD: This is a plea, Your Honour. Your Honour, this was judicially pre-tried in front of you quite some time ago back in February, and at that time it wasn't - Mr. Pxxx wasn't before the court unfortunately and so it had to be remanded to a date that you were available. Mr. Pxxx is here today and would like to plead guilty pursuant to what was discussed at that judicial pre-trial.
¶ 15 THE COURT: Okay.
¶ 16 MR. ROBICHAUD: Perhaps it would refresh Your Honour's memory once the facts are read in.
¶ 17 THE COURT: Are you prepared to deal with it now, Ms. York?
¶ 18 MS. YORK: Yes, I - the - it doesn't indicate what the Crown was seeking at the pre-trial, but there has been a Crown pre-trial in November, the Crown is seeking a fine in the matter. It's a breach of trust I understand.
¶ 19 THE COURT: Did you understand the Crown's position?
¶ 20 MR. ROBICHAUD: Yes, I do, Your Honour, and from my understanding of the judicial pre-trial is that that was the Crown's position and it's the position of the defence, a conditional discharge - and that's precisely why I passed up the cases because this does involve a theft from an employer and I'd like to make some distinguishing remarks about that.
¶ 21 THE COURT: Okay. If you are ready to proceed, then I guess Mr. Pxxx can be arraigned.
¶ 22 THE CLERK OF THE COURT: DxxxxPxxx, you stand charged on or about the 28th day of July in the year 2004, in the City of Toronto in the Toronto Region, did steal one black jockey thong and one white Stanfield thong underwear, the property of Hudson's Bay Company of a value not exceeding $5000, contrary to the Criminal Code. How does the Crown elect to proceed?
¶ 23 MS. YORK: By summary conviction.
¶ 24 THE CLERK OF THE COURT: And how do you plead to the charge read, guilty or not guilty?
¶ 25 THE ACCUSED: Guilty.
¶ 26 MR. ROBICHAUD: Your Honour - sorry - I just want to indicate to the court, I explained to Mr. Pxxx about the - that he's giving up his right to a trial, he's done so - pleading guilty on his own free will today, and he understands that Your Honour is the ultimate decider - arbitrator on decision made on this sentence.
¶ 27 THE COURT: Okay. Thanks.
¶ 28 MR. ROBICHAUD: Thank you.
¶ 29 THE CLERK OF THE COURT: Sit down now sir.
¶ 30 MS. YORK: On July the 28th, of 2004, an internal coordinator observed the accused via - via internal surveillance - observed the accused to take two items of underwear from the men's clothing department. Sorry, this synopsis is very - what - in the Information - what store are we talking about - the Hudson's Bay. The accused works at the store, he stole some underwear while he was working. He went into the stock room, hid the items, he never paid for them. They were worth $53.00, and it appears they were recovered. Those would be the facts.
¶ 31 THE COURT: Is that correct?
¶ 32 MR. ROBICHAUD: Those facts are admitted, Your Honour.
¶ 33 THE COURT: All right. There will be a finding of guilt.
¶ 34 MR. ROBICHAUD: Your Honour, Mr. Pxxx is a man who has come from Brazil in 1997. He's not yet a Canadian Citizen. He's currently 32 years old. Right now he's in the process for waiting to hear from immigration. He's attempting to become a citizen. This, of course, is not the right track to do so and what I'm going to ask Your Honour to consider in light of this and some other factors is to impose a conditional discharge upon Mr. Pxxx.
¶ 35 He has no criminal record whatsoever. He has not been in trouble with the police before, and he has some - he has made efforts to seek employment since then, and he has a limited education, as such, he somewhat limited to avenues of employment where background checks would be done such as retail like the present case.
¶ 36 Now, Your Honour, of course, the hurdle that Mr. Pxxx faces - for Your Honour to consider such a sentence - is the nature of his employment at the time that these - these facts took place. And the first case I'd like Your Honour to refer to is Her Majesty and Ward (ph), which is a 1975 decision from the Ontario Court of Appeal, and that's the first case I have submitted to the Court.
¶ 37 In this case similar fact situation where the employee - employee had stolen some items which had a value of approximately $20 and this was back in the day where inflation - it may have been about the same amount. On his trial, he pleaded guilty. This was the situation where the individual was an employee, there was a position of trust there, notwithstanding that the Court of Appeal found that the absolute or conditional discharge was an appropriate sentence and overruled the trial judge's decision to impose a more severe sentence.
¶ 38 And the next case - just to set out specifically what factors are to be taken into consideration is Her Majesty and Myers 1977 Ontario Court of Appeal, where again, a theft under $200 before the amendments were made. The trial judge registered a conviction against the appellant - I'm sorry it was theft over. It was actually hot-wiring a bus in this particular case. And notwithstanding the more severe type of offence the Court of Appeal still found that a conditional discharge was appropriate.
¶ 39 And specifically they made mention to 662.1(1) of the Code, which empower the Court to grant the appellant a discharge if he considers it to be in the best interest of the accused and not contrary to the public interest and that is the two part test that respectfully should be applied in the particular case. And with texture to that test in application for Mr. Pxxx is the best interest of the accused in this particular case, he's very much seeking to become a Canadian Citizen, this would be a large hurdle for him - in becoming such, and respectfully, despite the fact that this is a situation where he was an employee it's not contrary to the public interest. There is certainly an issue with general deterrence but as I would get to I don't think that Mr. Pxxx would be - would be doing this sort of offence again, of course, that's specific deterrence.
¶ 40 But essentially, Your Honour, what I'm respectfully submitting to the Court is that this two-part test is applicable to Mr. Pxxx, it is in the accused best interest, and as well it's not contrary to the public's interest.
¶ 41 I would also like to point out to Your Honour that upon his arrest not only did he admit - readily admit what he had done, he also admitted that he had committed some other offences of which there was suspicions but no sort of tying Mr. Pxxx to.
¶ 42 He also returned all these items the next day. And I have a list, which was provided in disclosure. I'm sure my friend has a copy already. A list of merchandise recovered from Mr. Pxxx totalling a thousand dollars. And at the bottom there's a note from the loss prevention manager saying, 'received from accused next day, items that he admitted to stealing previously', notwithstanding - but for Mr. Pxxx's actions on this, those items likely would never have been recovered.
¶ 43 I'm asking Your Honour to consider that as a sign of remorse and a mitigating factor in the circumstances. Your Honour, if I could just very briefly refer you to the last case I provided, Her Majesty and Callaghan and this would be my final submission on the point - is that at page seven, paragraph 17, the Court also noted that 718.2 also applies in that the Court should also take into consideration - I'm sorry I meant to - yes - of course the sentence shall be increased or decreased to account for any relevant or mitigating circumstances relating to the offence or the offender. And, of course, here - they point out position of trust, but I respectfully submit that that's rebutted by his actions, his remorse, and what he did in the circumstances, in addition to the mitigating factors of who he is as a person, how he acted in the circumstances, cooperative with the police, his lack of criminal record and otherwise good behaviour or character. And those are my submissions, Your Honour.
¶ 44 THE COURT: Thank you. Ms. York.
¶ 45 MS. YORK: Well, except for the Ward case that my friend has provided the other two do not involve breech of trust and of course that changes the whole matter. The Court of Appeal has said many, many times that people ought to go to jail for breach of trust when they're considering theft, so I don't - the other two cases don't seem to have any relevance here, but it is a small amount and he certainly did assist his employer, so that does speak highly. But the Crown is seeking a $300 fine, two years probation, not to enter these - any Bay stores in the City of Toronto.
¶ 46 THE COURT: Okay. Thank you. Sir, could you stand up please. Sir, did you want to say anything before I impose the sentence in this matter? You do not have to, but you may.
¶ 47 Sir, in deciding what sentence to impose I take several factors into consideration: (1) your plea of guilt, (2) your cooperation with the police and your employer after the fact, (3) your personal circumstances, (4) the fact that you have no record, (5) submissions made on your behalf, (6) the case law that has been provided to me, (7) the positions that is being taken by the Crown - which is one of a fine - and counsel on your behalf, which is a discharge.
¶ 48 I am certainly mindful of the conditional discharge provisions of the Code. I am also mindful of the provisions under s. 718 of the Code. It is true that at the time you stole these items you were employed by the Hudson Bay store and you took items from the Hudson Bay Store. What is a bit different about this situation of course is the fact that you did what anybody could do in the sense that these were items taken from the shelf and then secreted. It can obviously be distinguished from a situation which you stole money or some other items that the general public does not have access to at the Hudson Bay store. So, there is that consideration to be taken into account, despite the fact you did steal from an employer.
¶ 49 And the second thing - I am not sure whether it makes the situation worse or better - you did hand over many items that were stolen, but they amount to over a thousand dollars, and in fairness to the Crown, Ms. York did not even mention that. Quite frankly, I think it makes it worse. But, Ms. York was being very fair and she did not mention it at all.
¶ 50 All things considered, you will be given a discharge. You are on probation for 15 months. You are to report forthwith and thereafter as required. You are not to enter any of the Hudson Bay stores in Toronto. You are to perform 75 hours of community service work at a rate of not less than five hours per month to commence within 60 days of today's date. And, those 75 hours must be completed within the period of probation. Was there anything else?
¶ 51 MS. YORK: No, I don't believe so, Your Honour. Thank you.
¶ 52 MR. ROBICHAUD: I thank Your Honour. I thank my friend.
QL UPDATE: 20060111
qp/s/qw/qlsxl