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City: Kingston, ON
Our Client: Ms. R.
Complainant: Ms. B. and Kingston Police Force
Charge(s): Theft Under $5000 and Possession of Stolen Property Under $5000

Paralegal: Mark Cardy
Background: One morning, Ms. B. was at an ATM attempting to make a withdrawal of $800.00. The machine flashed the message that an invalid PIN had been detected, and the transaction was declined. Ms. B. made a second attempt – same thing happened. Now getting really irate, she made a third attempt. The machine dispensed her card, she took it from the dispenser, and frustrated and annoyed with the failed attempts, stalked away. A second later, the machine dispensed the $800. Ms. R. had been waiting in line behind Ms. B. She walked up to the machine, she paused, then she took the $800 from the dispenser. She took the statement paper from the dispenser and then inserted her own bank card into the machine. She put the $800 into her wallet, made a withdrawal of $40 and left the bank. The bank was open for business at that time. That afternoon Ms. B. went to the bank to complain about the ATM failing to dispense the $800 that she had requested. Three days later, the bank pulled the surveillance video and electronic journal from the ATM and subsequently called the police. Based on the evidence of the video and journal, the police contacted Ms. R. She went to the police station where she was charged with Theft Under $5000 and Possession of Stolen Property Under $5000. Ms. R. admitted her guilt but explained how she was going through financial difficulties. She had lost her job. Although she had found another job, they had gone on strike for a month and had only just returned to work. She was in the middle of a nasty divorce. The pipes in her house had frozen. Two years ago she had lost everything in a fire. Her dog required costly surgery, Her boyfriend had injured himself so was unable to return to work and he did not have sick leave. She apologized for her behaviour, admitted it was a poor error in judgement and said that it was not in her character. The officer thought that Ms. R. was genuine and remorseful. She stated that she wished to rectify things with the victim by reimbursing her. She stated that if she could go back in time she would have turned the money in to the bank.

Goal: Ms. R. had never been in trouble before. She was afraid that these charges would affect her employment. The goal was to avoid a criminal record.

Strategy: Ms. R. had readily admitted her guilt so a trial was ruled out. We would argue that Ms. R. was no criminal and that she was a suitable candidate for “diversion” by way of the Direct Accountability program. We would propose that Ms. R. repay the $800 and make a charitable donation.

Result:   After much negotiation during which the Crown wanted to add additional conditions, the diversion that we had proposed was finally accepted. The theft and possession of stolen property charges against Ms. R. were withdrawn.