2023 QCCQ 141 (><) | R. c. Semitego

R. c. Semitego							2023 QCCQ 141
COURT OF QUEBEC
CANADA
PROVINCE OF QUEBEC
DISTRICT OF			MONTRÉAL
LOCALITY OF				MONTRÉAL
“Criminal and penal chamber”
N° :		500-01-177363-188
DATE :	January 19, 2023
______________________________________________________________________
UNDER THE PRESIDENCY OF					L’HONORABLE	ERIC VANCHESTEIN, JCQ
______________________________________________________________________
HIS MAJESTY THE KING
Continuing
c.
MUZAMIRO SEMITEGO
Accused
______________________________________________________________________
JUDGEMENT
______________________________________________________________________

[1]
The accused is charged with three counts in connection with credit card fraud and one count of possession of keys belonging to Canada Post Corporation with intent to commit mail theft.

[2]
The accused claims that he did not make the alleged fraudulent purchase and claims that he was never in possession of the credit card used. The same is true for the keys, he had no knowledge of them since they were inside a bag borrowed from a friend.

[3]
The only issue is whether the Crown discharged its burden by proving beyond a reasonable doubt the essential elements of the offenses charged.

CONTEXT

[4]
On April 5, 2018, two men and a woman purchased a sectional leather sofa at the Mobilia store located on boulevard des Promenades in Saint‑Bruno. They are served by M.^me Diane Riendeau, sales consultant there. She was with this group for regarding an hour and a half. They chose a model that they were going to pick up in Pointe‑Claire.

[5]
One of the men paid for the purchase in the amount of $2,988.20 with a BMO Mastercard credit card made out to Yannick Lévesque. To conclude the transaction with the credit card, the customer necessarily had to enter a PIN, which was done since the payment was accepted.

[6]
Ms. Riendeau describes the individual who paid with the credit card as being a black man measuring approximately five feet and ten inches. A few days later, on April 12, 2018, the investigator in the file met her for a photographic identification parade. According to the investigator, M.^me Riendeau identified the accused without hesitation, saying “that she recognizes his face”.

[7]
On the evening of April 5, 2018 at around 10:30 p.m., the accused was arrested driving his vehicle, a Porsche Cayenne, in front of 800 René‑Lévesque West. The police officers who arrest him are patrol officers from the Eclipse group. They recognize the accused for having arrested him two months earlier for breach of conditions. Again, on April 5, 2018, he did not comply with his conditions since he might not be in possession of bank documents not in his name.

[8]
The search of the accused and his vehicle revealed the following items:

−
The sum of $14,888 distributed over his person and in a bag found in the back seat of the vehicle;

−
two cell phones;

−
a bunch of postman’s keys;

−
a credit card made out to Yannick Lévesque;

−
a Capital One credit card in the defendant’s name;

−
a Costco card;

−
a warehouse invoice in the name of another person.

[9]
For his part, the accused thus describes the course of the day of April 5, 2018.

[10]
At the time, he lived in Laval on rue A. In the followingnoon, he went to see a friend to whom he had lent money a few weeks earlier so that he might repay it. He meets with this friend who lives on the South Shore of Montreal between 4 p.m. and 5 p.m. There, he asks this friend if he can borrow his coat because the color went well with the color of his car.

[11]
When he left that place, he went to the BMO bank located at the corner of Sainte‑Catherine and Université streets, where he withdrew $5,000 in cash from his safety deposit box. This money was in wads of $1,000 with strips identifying the amount. He withdrew this money because he wanted to buy a car on Kijiji.

[12]
Afterwards, he goes to have dinner at a restaurant downtown. Around 9:30 p.m., he meets another friend who has to pay him back a loan. The meeting takes place in this friend’s car on René‑Lévesque, between Saint-Mathieu and Guy. He received an amount of $4,000.

[13]
With respect to these loans, the accused explains that he manages the insurance proceeds of $80,000 received by his cousin following the death of his parents. He makes loans to people without charging interest, just a flat rate of regarding $100 per loan.

[14]
The accused claims not to have made the transaction at Mobilia on April 5, 2018 and that he did not know that the card was in the inside pocket of the coat borrowed from his friend. Likewise, he had borrowed the bag which was found in the back seat and inside which he had put some money, but did not know the keys were there.

ANALYSE

[15]
Ultimately, the version of the accused is to affirm that all the incriminating elements found in his possession did not belong to him and that he had no knowledge of them. This general denial related to anything that might incriminate him is not credible and is not accepted by the Court.

[16]
When the accused testified and, particularly in cross-examination, he was hesitant at times to answer certain questions such as his association with the people to whom he lends money, his means of subsistence, his tax returns, on his way of life, in short, on all the subjects that go beyond the version provided in relation to the alleged facts. The same applies when he tries to explain the possession of the cash found on him and in his bag. His explanations on this subject and the sums of money stated in his testimony do not tally. In short, the Tribunal did not receive frank and honest testimony.

[17]
The accused claims to have borrowed the coat where we find the credit card in an inside pocket and the bag where we find the keys, from a friend he met earlier whose last name he cannot even give. In fact, he says he never asks for the surnames of people he deals with.

[18]
The testimony of the accused makes no sense and the Tribunal truly feels that it has been told an implausible story. This testimony has no credibility or reliability.

[19]
The accused’s version is therefore not accepted and it does not raise any doubt in the Tribunal’s mind.

[20]
Nevertheless, does the evidence reveal the accused’s guilt on one or more of the charges?

[21]
The evidence reveals that a purchase was made at Mobilia around 2:59 p.m. with the credit card made out to Yannick Lévesque. M^me Riendeau identified the accused as the one who made the transaction with the credit card. When questioned in 2022 on a specific description of the person who made the transaction in 2018, Ms.^me Riendeau has no memory and that is quite understandable. In fact, the opposite would have been surprising.

[22]
However, contemporaneously, seven days following the event when the investigator showed up to conduct a photo line-up, she had no hesitation in recognizing the accused. This photographic parade was not disputed and it was made in the rules.

[23]
The Court accepts the testimony of Mr.^me Riendeau according to which it was the accused who made the transaction with the credit card denominated in the name of Yannick Lévesque on April 5, 2018. It is the same card which is found a few hours later in the inside pocket of the coat worn by the accused.

[24]
For the Court, this recent possession, combined with the testimony of Mr.^me Riendeau, leads to the conclusion that it was the accused who was the user of the credit card earlier at Mobilia. In these specific circumstances, as the Tribunal does not accept the accused’s version that he was unaware of the presence of the card in the coat he was wearing, there is no other reasonable conclusion which can be deduced that it was the accused who fraudulently used this credit card in the followingnoon, a few hours before being arrested in the evening, in possession of this card.

[25]
Consequently, the accused is therefore guilty of count 1, of having committed a fraud once morest Yannick Lévesque and the BMO bank. He was also found guilty of count 3, either of having fraudulently impersonated Yannick Lévesque and of count 4, or of having used a credit card knowing that it had been obtained following the commission of a offense in Canada.

[26]
The parties agree that, in application of the principles of the judgment Kienapplea conditional stay of proceedings should be pronounced on counts 3 and 4.

[27]
Count 2 reads as follows:

“On or around April 5, 2018, in Montreal, district of Montreal, a, with intent to commit an offense under subsection 356(1)(a)had in his possession a copy of a key corresponding to a padlock or lock adapted for use by the Canada Post Corporation, thereby committing the offense punishable on summary conviction under section 356 (1)a.1)(3(b) of criminal code. »

[soulignement du Tribunal]

[28]
In his sworn statement, Mr.^me Marie‑Ève Lauzière‑Roy, an inspector at Canada Post, says that the keys seized from the accused’s bag, whose photos she received, belong to Canada Post and come from a robbery committed on October 21, 2016 at the regarding a postman who had his bunch of corporate keys taken.

[29]
It is therefore clear that the keys found in the accused’s bag belong to Canada Post.

[30]
However, the mere possession of these keys does not result in a conviction. The prosecutor must demonstrate the specific intent provided for in article 356(1)a.1) Cr.C., namely that the possession was aimed at the commission of one of the offenses mentioned in paragraph a), among others, to steal mail or a mail bag.

[31]
In this case, the bunch of keys is found inside a bag also containing a large sum of money in the back seat of the accused’s vehicle. The context of this case does not make it possible to demonstrate beyond a reasonable doubt the accused’s intention in possessing these keys.

[32]
In the circumstances, the Tribunal has doubts regarding the offense mentioned in count 2.

[33]
The Crown claims that the offense of concealment is lesser and included, which counsel for the accused disputes.

[34]
Given the context in which this bunch of keys was found and that it came from a theft committed two years earlier, the evidence does not demonstrate beyond a reasonable doubt that the accused knew that these keys came from a offense in Canada.

[35]
In the circumstances, this doubt must benefit the accused and he will be acquitted on count 2.

FOR ALL THESE REASONS, THE TRIBUNAL :

[36]
SENTENCED the accused on counts 1, 3 and 4;

[37]
ORDERED a conditional stay of proceedings for counts 3 and 4;

[38]
ACKNOWLEDGED the accused in Count 2.

		__________________________________ ERIC VANCHESTEIN, JCQ
Me Isabelle Major
For the pursuer
Me David Leclair
For the accused
Date d’audience :	December 16, 2022