Bert & Ernie's Case — Theft Over $5000 — Sentenced

Between
Her Majesty the Queen, and
Ernie H.

Ontario Court of Justice
Toronto, Ontario
Judge Harris

Sentencing:  26 June 2008
(22 paras.)

¶ 1     P. HARRIS (orally):  Okay, Ernie H. We are starting with the arraignment on the theft.

¶ 2     CLERK OF THE COURT:  Ernie H., 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 I*** Insurance, 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 OF THE COURT:  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     MR. FLAHERTY:  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 344 Bob Street. At this time the accused was employed as a uniformed security officer, situated at that 344 Bob Street address here in the city and he was in the company of two other security officers, Dexter C. and Bert 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 Dexter C. 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 Mr. Dexter C. went about, along with Mr. Bert N. and Mr. Ernie H., 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     Mr. Dexter C. provided an inculpatory statement that led to the charging of Mr. Bert N. and Mr. Ernie H. with the theft itself, and further, as Your Honour is aware, there have been guilty pleas by both Mr. Dexter C. and Mr. Bert N. admitting their involvement in the incident. Those are the facts.

¶ 12     MR. PENNEY:  Your Honour, I've reviewed those facts extensively with Mr. Ernie H. 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     MR. FLAHERTY:  There's no record for Mr. Ernie H.

[REPORTER'S NOTE:  At this point, counsel made submissions.]

¶ 15     THE COURT:  I think you have read the dialogue we have had, Mr. Ernie H., 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     MR. Ernie H.:  Extremely, yes, sir.

¶ 18     THE COURT:  Not to speak of the stress on your sister or step-sister here. So, what it amounts to, Mr. Ernie H., 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 nothing 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 our of reach in some ways, but I am thinking about your future, Mr. Ernie H. 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     MR. FLAHERTY:  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. Ernie H.

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