A couple of months ago, a case made the news here in Ottawa and it had lots of salacious details to peak people’s interests. A mint employee. Gold. Smuggling. And vaseline to tell you where and how he smuggled it. Earlier this week, he was found guilty, and it is an incredibly interesting case for a totally different reason — it is entirely comprised of overwhelming circumstantial evidence. On that basis alone, I would expect it to be appealed.

The basics of the case are pretty straightforward:

1. A bank employee noticed a man depositing a couple of large cheques from the gold-buying store nearby. $7K apiece. Not exactly chump change. When she noticed on the account that he was an employee of the Mint, she flagged it for her boss and they flagged it for RCMP.
2. RCMP investigated, watched him sell some more at the gold store and deposit the cheques, and then contacted the store to see what it was he was selling. Gold pucks, high purity. Not a collection of Grandma’s old jewellery.
3. They checked with the Mint, found out he was in charge of testing gold purity with a label that creates small gold pucks. And he set the metal detectors off way more than any other employee, had more pucks in his safety deposit box, matched the purity and size of the pucks to the ladle, etc.
4. He didn’t make enough money to have that gold through normal means;
5. And finally for “evidence”, they found jars of vaseline and latex gloves in his locker which he could have used to place the pucks up his butt to smuggle it out of the Mint.

Now, if I recast it as per the judge’s decision, it gets a bit more pointed:

1. Motive — he had possession of $160K worth of gold and had laundered $138K of it;
2. Opportunity — worked alone, had access to high purity gold that matched the mint’s ratings, had Vaseline in his locker, no cameras to catch theft or insertion;
3. Identity — he had the gold and the money, and he is the one who set off the metal detectors.

Seems like a slam dunk, right?

Except there are two things missing from the case, or maybe one-and-a-half if you ignore the right against self-incrimination.

The biggest one is that the Mint had no evidence that anything had been stolen. They don’t have weight measures to show that they put 10 pounds of gold in and it came out at 9.8 pounds, for example. They had no idea he was stealing because they had no idea anything had been stolen. In order to be charged and convicted of theft, you kind of need evidence that something has been stolen. And the Mint has no direct evidence of that…they just now have a theory as to how and why he set off the metal detector so often.

I know, I know, if you read this and see the evidence, you think, “Well that is what must have happened.” Except that isn’t the standard of legal proof.

The second missing piece is that there was no other explanation for the circumstances under which he could get the gold. Except there’s an easy one. What if someone else at the Mint stole the pucks and gave them to him. You might say, “No problem, he’s still guilty.” Except he isn’t. At that point, he hasn’t stolen anything. He is part of a criminal conspiracy, and guilty of a crime, but not of the crimes he was charged and convicted of, although the proceeds of crime would probably stand. Related to this is another half of a missing piece, except on his side. He gave no explanation of how else he came into possession of the nuggets. No alternate theory of the crime, so to speak, but more accurately, no simple explanation that could raise reasonable doubt against overwhelming circumstantial evidence. But here’s the kicker — the right against self-incrimination also includes the right not to be presumed guilty if you don’t testify on your own behalf. Sure, people want the accused to testify in every TV or movie case you’ve ever seen, but the law is clear — nothing can be inferred if he doesn’t testify and give an alternate explanation. The state has the burden of proof, not the accused.

So, let’s go back to the evidence. Opportunity is that he worked alone with gold. Hardly damning. The pucks matched the unique ladles the Mint used — evidence it came from the Mint, not that he did it. Had Vaseline in his locker — here’s a shocker, probably a quarter of the women in the Mint probably do too for hands or lip balm, or whatever, based on market share. A thousand innocent explanations or there are a lot of people out there who must be smugglers as they have Vaseline in their possession. No cameras — so the proof is that there was no proof? All of that is basically irrelevant.

What you are left with is he has gold that (likely) came from the Mint, and he can’t explain how. Ergo, he stole it. That is way below the standard of proof. What if instead he was part of a giant criminal conspiracy. Who hired him off the books because he worked at the Mint and knew how to purify gold. And they set up a lab to do the exact same thing. Or maybe he did it himself. And maybe, sure, the gold he was melting down was all stolen jewellery so he can’t admit to it. Could he have stolen a ladle? Sure. If he could steal all that gold, and he’s so amazing at it, he could steal a ladle. Or order one that matched the size and shape of the Mint’s.

Because, don’t forget, the MINT has no idea if anything was actually stolen. They have no evidence that a crime was actually committed. Yet here we have a guy convicted and about to be imprisoned for a crime we don’t know actually occurred. We know, or at least we’re pretty sure, a crime was convicted but we don’t know if it was this crime, or a different one, or committed by someone else and he was involved, or anything of the sort.

These are the cases that fascinate me…I don’t care about huge murder cases, DNA evidence, etc. I care about inferred crimes that don’t meet the standard.

Even if everyone involved thinks they know what must have happened. And that he’s guilty.

Feel free to read the coverage (Source: Mint employee guilty of smuggling $165K of gold in rectum – Ottawa – CBC News), I’m just ranting.