Crown: J. Flaherty, Office of the Crown Attorney, Toronto
Defence: Craig Penney, Criminal Theft/Fraud Lawyer, Toronto
¶ 1 THE COURT: The only thing I can put it down to, Mr. D.N., is that you are a young fellow and maybe you had some maturing to do at the time this came up.
¶ 2 I am just looking at what I said to [the third co-accused], and the same thing applies to you, is that it is not just the recovery of the laptop. When three laptops go missing in an office like this, it probably shuts down an awful lot of the work of the office. It will put three employees out of business completely, and the loss of the information, and the projects they are working on, and the files, are probably worth many, many times what the laptops are worth. It is just the security aspect of it. Once all these personal files get out, I do not know if it is life insurance or some other kind of insurance, but that is all very sensitive information that is probably on these computers.
¶ 3 As inside jobs go, this is one of the classics, where people are hired to guard, walk off with the very property they are hired to guard, and you could only do that with the kind of technology that [the third co-accused] had to open the office.
¶ 4 So, on the one hand, I cannot imagine what you were thinking of, because at the same time you had some plans for a future career in policing, but on the other hand, I guess I do give you credit for doing all the community service that you have done, and there are many, many letters here in this package of all the different ways that you participated in a whole number of charities.
¶ 5 You have given the laptop back, and it is sort of better late than never. I really have no idea what this cost this firm, but even getting the laptop back, I am sure it was not only thousands of dollars of lost time, but the integrity of the whole set of confidential records of an insurance company are badly undermined here.
¶ 6 Having said all that, I cannot see any reason for differentiating between yourself and [the third co-accused]. It is not the usual kind of sentence for a position of trust. I can tell you, within the last 15 years — the law seems to be in a state of flux right now because 15 years ago you would get time in custody for a position of trust theft of something valuable like this, and I think what is happening is that, well, I think Courts are taking into account that there is a lot of damage that happens to a person that is involved in this, including losing your job and having that black mark on your record, because if anybody ever chooses to contact your previous employment, they will find out about that, but you know, maybe some time in the future you can put this behind you if you work hard enough and really start to understand the importance of preserving and keeping a clean record, particularly if you want to go into policing.
¶ 7 So, I am going to take a chance that is all I need to do, Mr. D.N., to ensure you never come back into the Court system.
¶ 8 There will be a conditional discharge, a period of probation for three years. The terms are you keep the peace and be of good behaviour. You are not to be employed as a security guard or a peace officer during that period of time. You are not to be found on the property of ...
¶ 9 I take it it was intended that there be no reporting at all, Counsel —
¶ 10 CROWN: Yes, sir.
Crown: J. Flaherty, Office of the Crown Attorney, Toronto
Defence: Craig Penney, Criminal Stolen Property Lawyer, Toronto
¶ 1 THE COURT: Okay, E.L. We are starting with the arraignment on the theft.
¶ 2 CLERK: E.L., charged on or about the 17th day of October in the year 2007, in the City of Toronto in the Toronto Region, did steal laptop computers, the property of [the] Insurance [company], of a value exceeding $5,000, contrary to the Criminal Code.
¶ 3 Counsel waiving the reading of the election?
¶ 4 MR PENNEY: Yes, we do, and we elect to proceed before His Honour today.
¶ 5 CLERK: And how does he plead?
¶ 6 MR PENNEY: He pleas not guilty to the charge as read but guilty to the offence of possession under $5000.
¶ 7 THE COURT: Pursuant to section 606(4), and that is on the basis that the facts will make out the elements of the offence of possession, and that is on consent, Mr. Flaherty?
¶ 8 CROWN: Yes, it is, sir. The facts in support of the plea are as follows. It was October the 7th, 2007, 2:45 a.m., at [the complainant's address]. At this time the accused was employed as a uniformed security officer, situated at that address here in the city and he was in the company of two other security officers, [the third co-accused] and D.N.
¶ 9 They went to the floor where the victim insurance company is situated. The office was closed, locked and alarmed. It was at this time that the accused [the third co-accused] used his security key to access the locked office which contained the computer equipment. This entry tripped a silent alarm that went unnoticed by another officer detailed to monitor the alarm bank. Then [the third co-accused] went about, along with Mr. D.N. and Mr. E.L., taking the three computers from that insurance company and they made their way, the three of them, to the underground parking level where they placed them in vehicles.
¶ 10 The images were captured on surveillance, the movement of people, but the property itself wasn't seen because it was said to be concealed under body armour that each other of the security officers was wearing.
¶ 11 [The third co-accused] provided an inculpatory statement that led to the charging of Mr. D.N. and Mr. E.L. with the theft itself, and further, as Your Honour is aware, there have been guilty pleas by both [the third co-accused] and Mr. D.N. admitting their involvement in the incident. Those are the facts.
¶ 12 MR PENNEY: Your Honour, I've reviewed those facts extensively with Mr. E.L. and can advise that the facts are substantially correct.
¶ 13 THE COURT: On that basis I will make a finding of guilty. No record?
¶ 14 CROWN: There's no record for Mr. E.L.
[At this point, submissions were made.]
¶ 15 THE COURT: I think you have read the dialogue we have had, Mr. E.L., and one of the major concerns I have was that the other two got the computers back to the company that they took and yours, apparently, was disposed of in the usual way and sometimes you take a computer out of an insurance company or a place like this, it has clients' files and ledgers and accounting data that can't be replaced and I have known some of these break and entries to have the effect of actually causing a company to close down. They can't even recover it and they can't service their clients. Luckily for you, and we shouldn't be giving credit for good luck, but luckily for you, this computer was not one that was used for anything other than training.
¶ 16 There are other victims here besides the company, both in terms of the breach of trust and in terms of how their privacy has been invaded and how disturbing that is for a company that thinks that they have security on the building. I am quite sure that the company you were working for in security has suffered a loss of reputation that is profound because of the three of your collective actions. You can imagine a company trying to increase their share of business in the security area and having to deal with the fact that three of their employees broke in and stole computer equipment that was the very equipment that their company was hired to protect and I think you have some sense of the kind of grief your family suffered over this. It probably caused tensions between your mother and father.
¶ 17 CLIENT: Extremely, yes, sir.
¶ 18 THE COURT: Not to speak of the stress on your sister or stepsister here. So, what it amounts to, Mr. E.L., is that you may be trying to advance your career and think about the future, but you have set yourself back considerably here in terms of some poor judgment and a situation where you are really hired to have integrity about the belongings of others in that capacity. It is worth noting that as recently as ten years ago this kind of act would call for a jail sentence. I don't know what is happening with this, but in my judgment the Court of Appeal is not dealing with these cases the way they used to and, I wouldn't say that represents any kind of moral ambivalence about it, but I think it is a recognition that perhaps jail should be reserved for individuals involved in more violent crime. It is just lucky for you that the jurisprudence has taken the turn it has because the conditional discharge for this kind of activity is at the very lowest end of the range and almost out of reach in some ways, but I am thinking about your future, Mr. E.L. You seem to be getting another career underway and you have done a lot here to rebuild the bridges you tore down, including paying back the restitution and doing some community service and, I guess, in all the circumstances including being consistent between you and the other individuals involved, I can barely see my way clear to a conditional discharge in this case.
¶ 19 So, here is what the sentence is going to be. It is a conditional discharge and a period of probation for 36 months; that is three years. You are required to keep the peace and be of good behaviour. There is no reporting. You are not to be employed as a security guard or a peace officer during that period of time, the period of three years. You are not be to be found on the property of 344 Bob Street. They are the only two conditions I am imposing, unless counsel have any other suggestions.
¶ 20 CROWN: No, thank you, Your Honour.
¶ 21 MR PENNEY: I'm applying for the waiver of the victim fine surcharge, Your Honour.
¶ 22 THE COURT: I will waive the victim fine surcharge in these circumstances. Good luck, Mr. E.L.