Andre's Case — Theft Over $5000 — Dismissed

Client:  Andre S., Accused
Complainant:  Andre's Employer, a Telecommunications Company
Charges:  Theft Over $5000; Theft Under $5000 (2x)

Background:  Andre had worked for his employer for 12 years. They suspected that he was stealing. They set up a surveillance video. Supposedly, this video caught Andre stealing over $10,000 in telecommunications equipment. Andre was arrested and charged with theft. On his arrest, he made some unfortunate admissions. In my office, Andre found himself beset with grief and worry. Andre hadn't seen the video, but he was certain that they caught him red-handed. He was also feeling miserable about his admissions. Andre was right to be concerned. With him apparently caught on video, and with his subsequent admissions to the police, I wasn't a fountain of confidence. Andre also had to worry about his potential jeopardy. These allegations — if true — amounted to what we call a "breach of trust." A breach-of-trust theft or fraud can easily fetch jail time, especially a theft of this value. But all that glitters is not gold. "It doesn't look great," I conceded, "but let's keep an open mind and see how the case unfolds."

READ THE POLICE REPORT

Goals:  Andre's goals were to keep his job, to stay out of jail, and, if possible, to beat the charges. I could only help him with the latter two goals. I referred him to an employment lawyer to assist with the first.

Strategy:  I had two immediate concerns. The first was to determine exactly what was on the video. The second was to determine exactly what Andre admitted to the police and under what circumstances. I wrote the Crown the day after Andre hired me, seeking full disclosure of their case. When I received the disclosure, it became clear that Andre did, in fact, admit to stealing from his employer. If the Judge allowed Andre's admissions into evidence, he could be found guilty on those admissions alone. However, the Crown could not use Andre's admissions unless they first proved that the statements were voluntary. And there I would have an argument at trial. I received the surveillance video, but there were a couple of problems. The first problem was that the video camera had not been set up correctly. The angle was wrong. As a result, the video was incomplete. Watching the video, it was not clear what property was being removed and by whom. This was obviously helpful to our defence. The second problem was that the video was not in real time. It played so fast that you could barely discern what was happening. To address this second problem, I asked the Crown for a copy of the video in real time. The Crown agreed to provide it.

Results:  The case got horribly delayed. Why? I was trying to obtain a proper copy of the surveillance video. I telephoned the Crown. I sent letters to the Crown. I had meetings with the Crown. I even had a meeting with a Crown and a Judge. My efforts were in vain. My requests, though well received, kept falling through the cracks afterwards. I never received the video. Eventually, I scheduled the trial, hoping to obtain the video sufficiently in advance of the trial to prepare. The trial arrived — and still no video. By that time, 17 months and 19 days had passed. I brought a Charter application to have the charges stayed because of the excessive delay and because of the Crown's failure to provide the tapes. The Judge agreed. All charges were stayed. (A "stay" is the legal equivalent of an acquittal. Think of it as a permanent freeze of the proceedings.)

READ THE JUDGE'S DISMISSAL OF THE CHARGES