Her Majesty the Queen - v. -, 2018 SKPC 62

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 062 Date: October 29, 2018 Information: 991022879, 991037480, 991063833 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Andrew William Hartle Appearing: B. M. Herder For the Crown T. Talbot For the Accused Sentencing Reasons Q. D. AGNEW , J [ 1 ] What is counterfeit money? [ 2 ] On the face of it, this seems like a simple question: counterfeit money is money which is not real.

It turns out, however, that not only is the issue somewhat more complex, it is one which has never been squarely addressed by the courts. [ 3 ] The accused, Mr. Hartle, appeared before me with counsel and offered guilty pleas to the following charges:

(1) robbery with an imitation firearm; (2) possession of counterfeit money; (3) breach of probation by failing to keep the peace; (4) breach of probation by failing to report; (5) failure to attend court. [ 4 ] Defence counsel advised that s. 606(1.1) had been complied with, and I proceeded to hear the facts as alleged by the Crown. They were not significantly disputed by defence. [ 5 ] In the course of its submissions, the Crown provided a photo booklet of exhibits, which included photos of the counterfeit money. The money was made up of ten bills.

Except in one significant way, they bore a striking resemblance to Canadian currency of $20, $50 and $100 denominations. The difference was that each was marked, very prominently, with a series of what appeared to be Chinese characters. In the photographs provided, the Chinese characters appeared to be in contrasting colours with the “normal” currency colours, and occupied a significant amount of space on each bill’s surface.

On some of the bills, these characters appeared to have been coloured in using ink of a similar colour to the overall tone of the bill, making the characters less obvious. [ 6 ] As a result, I asked counsel to consider whether or not these bills could constitute “counterfeit money” under the Criminal Code . My concern was that, notwithstanding his offered guilty plea, Mr. Hartle could not be convicted of possession of counterfeit money if the pieces of paper in question were not capable of constituting counterfeit money. I adjourned the matter to September 28, 2018 and invited submissions from counsel.

At that time, I concluded that the bills were capable of being counterfeit money, accepted the guilty pleas and sentenced the accused. I indicated to counsel that I would be providing written reasons for my decision that the bills were capable of being considered counterfeit money, but that I believed it more fair to Mr Hartle to sentence him on that date rather than forcing him to wait for my written decision: given my conclusion, my reasons would have no effect on his actual sentence. This is that decision. [ 7 ] Most readers of these reasons will be familiar with the board game “Monopoly”.

I understand that it has been around since about 1935, and has been published in a large number of variants. Most will therefore be familiar with the “money” which is used in that game. Other board games have similar types of “money”, used to keep score or otherwise to enable game play. There may be other uses for such money as well - as teaching aids, for example.

For the sake of simplicity, I will refer to all such “money” as “Monopoly money” - in essence, pieces of paper which are intended to be “pretend money” for the purposes of playing a game or for some other, obviously- legal, purpose. [ 8 ] It should be clear that Monopoly money is not counterfeit money.

That is, no one is going to be convicted of possessing counterfeit money by virtue of having Monopoly money; no game manufacturer is going to be convicted of making counterfeit money because they cause Monopoly money to be printed; even if a person has Monopoly money in their pocket, separate and apart from the game to which it is associated, no one would suggest that they are in possession of counterfeit money. [ 9 ] On the other hand, a person attempting to pass as genuine a near-perfect replica of a current Canadian bill is clearly in possession of counterfeit money. [ 10 ] There is no obvious dividing-line between these two extremes.

Assume a piece of Monopoly money which is different in size, colour and surface markings from a genuine Canadian bill: it clearly does not constitute a counterfeit bill. Suppose a small change is made to it: a change in size, for example - still not the size of a genuine bill, but closer. Then perhaps a change in colour - again, not to the colour of a genuine bill, but closer. Continuing these incremental changes, bringing the Monopoly bill ever closer to a genuine bill, will ultimately cross the line into the realm of counterfeit currency.

The question is, where is that line? [ 11 ] The Criminal Code is of limited assistance.

Section 448 contains an inclusive (as opposed to definitive) definition, the significant portion of which for these purposes is:

448 In this Part, counterfeit money includes (

a) a false coin or false paper money that resembles or is apparently intended to resemble or pass for a current coin or current papermoney [12] The Crown argues, and I accept, that there are two alternative tests in s. 448(a), namely that: (1) the coin or bill “resembles” acurrent coin or bill, or; (2) it is apparently intended to resemble or pass for a current coin or bill. [13] Unfortunately, there is no test specified for how closely the impugned item must resemble current paper money to beconsidered counterfeit.

A blank piece of paper cut in the same size as a $10 bill resembles the bill more than does a piece of metal cutthe same size. A reproduction of a $10 bill which is the size of a billboard would resemble the bill in many ways but would not matchthe bill in one, very important and obvious, way. [14] The Supreme Court of Canada considered non-genuine American coins in R v Robinson, (SCC), [1974] SCR573 [Robinson].

The majority decision held that the accused’s intention or otherwise to use the coins as currency was not relevant;Laskin, J suggested otherwise, arguing that a finding that the accused did not intend to use the coins as currency “would supportacquittal” (p. 583), as the harm sought to be avoided by these sections of the Code is “having or using counterfeit money for currencypurposes” (p. 582). However, he was speaking for himself in this regard; the majority did not suggest this.

The position of Laskin, J wasconsidered and rejected by the majority of the Alberta Court of Appeal in R v Duane (1984), 1984 ABCA 115 , 57 AR 227(CA). The Court of Appeal stated in effect that such an

interpretation would have the effect of making “intention to use” an additionalterm of the mens rea (para. 4). [15] There are several obvious harms which the offence of counterfeiting seeks to avoid (there may well be others): 1. the loss to the individual or merchant, who has exchanged valuable goods or services for a worthless piece of paper. When the“money” is found to be counterfeit, the person holding it will not be compensated - they have lost the entire value of the goods orservices.

In this regard, the harm of counterfeiting is precisely the same as that of theft; 2. a decrease in the acceptability of paper money. Knowing that counterfeit money is in circulation may cause individuals andbusinesses to decline to accept currency.

This potentially creates a crisis of liquidity in the market; 3. as a related but separate effect, circulation of counterfeit money can cause an overall loss of confidence in paper currency,potentially creating a crisis of confidence in the country’s currency as a whole; 4. looking at the economy in its entirety, the introduction of counterfeit currency represents an increase in the money supply. Thisin turn has at least two effects.

The first is inflation: all other things remaining constant, increasing the money supply fuels inflation;furthermore, merchants raise prices to offset the fact that some of their sales will be paid for in worthless bills. The second is a loss ofcontrol over economic policy, as control over the money supply is a tool for managing the economy. [16] This view, that the reason that counterfeiting is an offence is to protect the integrity of the Canadian economy, is alluded to ina number of decisions. See: R v Kelly (1979), (ON CA), 48 CCC (2d) 560 (Ont CA) at para 26; R v Haldane, [2001]OTC 950 (Sup Ct

J) at para 17; R v Crocker, 2011 BCSC 1801 at para 24; R v Christophersen, 2002 ABPC 173 at para 35; R v McGaw,2010 BCPC 422 at para 5. [17] This concern assists in identifying the proper dividing-line between Monopoly money and counterfeit currency: it must meetthe test of s. 448(a), and reasonably be expected to cause one or more of the listed harms. Given that the harm is caused, at leastincrementally, by the passing of even one counterfeit bill or coin, there is no minimum amount required. The objective criterion refers to

the likelihood of the bill or coin being accepted by another person as genuine. This objective test is necessary to rule out the case where someone, whether due to poor eyesight, inattention or some other cause accepts what is clearly Monopoly money; that is, the fact that there might exist one person somewhere who, under ideal circumstances, might accept the bill as genuine should not be sufficient to criminalize the possession of that piece of paper.

At the same time, the test should not be so strict that it opens a significant vulnerability in the protections intended by the Criminal Code . [ 18 ] All of the listed harms of counterfeiting ultimately arise from the false money being passed as genuine.

Accordingly, a piece of paper or a coin will constitute counterfeit money if it is reasonably possible that it will be accepted in a commercial transaction by a person of ordinary prudence and vigilance. [ 19 ] This test also accords with Robinson , in that the intention of the holder or maker to use the bills as currency, or not, is irrelevant; rather, it is the potential for harm which the bills possess in and of themselves, regardless of whether or not they are actually used or intended to be used as currency, which is the deciding factor. [ 20 ] Bearing this definition in mind, were the pieces of paper found in Mr.

Hartle’s possession capable of constituting counterfeit money? [ 21 ] In its submissions, the Crown provided information from the RCMP that bills of the type before me, with the same serial numbers as those before me, were known to have been passed as genuine. Since November, 2017 there are 2,303 of the $20 bills and 6,785 of the $100 bills known to have been passed; there was no information regarding the $50 bills.

I note, however, that the $50 bills were virtually the same as the $20s and $100s in terms of the accuracy of their reproduction of genuine currency. [ 22 ] No information was provided as to how many of the bills identified by the RCMP had been coloured in the way some of the bills before me had been. At least some apparently had been; I do not know if all had been. There are roughly 125 incidents reported, from British Columbia, Alberta, Saskatchewan, Ontario, Quebec and New Brunswick.

As the incidents involving $20s and $100s are listed separately, it is possible that there is some overlap, with a person perhaps passing both a $20 and a $100 bill in the same incident; nonetheless, it is clear that significant numbers of these bills have been accepted as genuine. [ 23 ] I do not mean to suggest that evidence such as this is required in order to conclude that a piece of paper is counterfeit money. A judge examining a single piece of paper which the accused never attempted to pass as genuine, and applying the test set out above, could still conclude that it constituted counterfeit money.

In this case, the RCMP evidence assists in convincing me that the paper here is capable of being counterfeit money; however, from looking at the bills directly, I am satisfied that at least the ones which have had the Chinese characters coloured in would meet the test I have articulated above. With respect to those which do not have the characters coloured in, the situation is not as clear, and it might be an arguable point as to whether or not they constitute counterfeit money.

However, as I indicated, the issue before me is not guilt or innocence, as the accused is offering a guilty plea; rather, the question is simply whether or not the bills are capable of constituting counterfeit money. If there is a reasonable argument to be made, then the accused is entitled to decide whether or not to make it, and I should accept his guilty plea; I should refuse his guilty plea only if it is not possible that he could be convicted.

Here, I am satisfied that (1) there is a reasonable possibility that all of the bills could meet the test I have articulated, and (2) the bills which have the Chinese characters coloured in have a greater possibility of meeting that test. Accordingly, I have accepted the accused’s guilty plea to possession of counterfeit money. [ 24 ] There are two issues which arose either at the hearing or in the course of my deliberations which did not have an impact on my decision, but which I wish to address. Subsection 461(2) [ 25 ] Pursuant to s. 461(2), the Crown filed a certificate from Allison DesRoches.

The Crown argued that Ms. DesRoches’ conclusion, that the bills in question were counterfeit bank notes, was determinative, or at least persuasive. With the greatest of respect, I disagree. Section 461(2) reads as follows:

461(2) In any proceedings under this Part, a certificate signed by a person designated as an examiner of counterfeit by the Minister of Public Safety and Emergency Preparedness, stating that any coin, paper money or bank-note described therein is counterfeit money or that any coin, paper money or bank-note described therein is genuine and is or is not, as the case may be, current in Canada or elsewhere, is evidence of the statements contained in the certificate without proof of the signature or official character of the person appearing to have signed the certificate. [ 26 ] This subsection allows the examiner to offer one of three opinions: (1) the coin, paper money or bank-note is counterfeit; (2) the coin, paper money or bank-note is genuine and current; (3) the coin, paper money or bank-note is genuine and not current.

In other words, S. 461(2) offers the Crown a method of establishing, without having to call the examiner as a witness, that the subject-matter of a charge is not genuine. I do not see the subsection as empowering the examiner to force onto the Court the legal conclusion that a bill in question constitutes, as a matter of law, counterfeit money. [ 27 ] I am supported in this conclusion by the fact that the examiner is only allowed one of those three opinions under s. 461(2).

Thus, if the examiner were presented with a piece of Monopoly money, the examiner would have to give the opinion that it was counterfeit, since the only other options available would be to declare it to be genuine currency, which it obviously is not. The fact that actual Monopoly money would thus be declared “counterfeit” money under s. 461(2) strengthens the conclusion that this subsection is not intended to allow the examiner to decide where the line is between Monopoly money and counterfeit money. The

section allows the examiner instead to draw a line between real and not real Canadian (or other) currency.

Section 457 [ 28 ] There is a related but separate offence in s. 457 of the Code , which deals inter alia with paper in the likeness of a current Canadian bank-note. Subsections 457(1) and (4) state: 457

(1) No person shall make, publish, print, execute, issue, distribute or circulate, including by electronic or computer-assisted means, anything in the likeness of (

a) a current bank-note; or (

b) an obligation or a security of a government or bank.

(4) No person shall be convicted of an offence under subsection (3) in relation to the printed likeness of a Canadian bank-note if it is established that the length or width of the likeness is less than three-fourths or greater than one-and-one-half times the length or width, as the case may be, of the bank-note and (

a) the likeness is in black-and-white only; or (

b) the likeness of the bank-note appears on only one side of the likeness. [ 29 ] “Bank-note” is defined in s. 2 as follows: bank-note includes any negotiable instrument (

a) issued by or on behalf of a person carrying on the business of banking in or out of Canada, and

(

b) issued under the authority of Parliament or under the lawful authority of the government of a state other than Canada, intended to be used as money or as the equivalent of money, immediately on issue or at some time subsequent thereto, and includes bank bills and bank post bills [ 30 ] Counterfeit money of the type under discussion in the case at bar may therefore be a counterfeit of a bank-note within the meaning of s. 2, the bank-notes in question being notes issued by the Bank of Canada pursuant to the Bank of Canada Act , RSC 1985, c. B-2, s. 25 and intended to be used as money. Indeed, I note that Ms.

DesRoches, in her certificate, states that the papers in question here “are counterfeit bank notes ” (emphasis added). However, s. 461(2) draws a distinction between paper money and bank-notes: “. . . stating that any coin, paper money or bank-note described therein is counterfeit money or that any coin, paper money or bank-note described therein is genuine . . .” (emphasis added).

Section 448(a), defining counterfeit money, excludes bank-notes, referring only to “. . . a false coin or false paper money that resembles . . .”(emphasis added). It is therefore not clear whether paper money is a form of bank note, or if they are completely different types of entities. [ 31 ] It is noteworthy that possession of such a bank-note is not an offence under s. 457.

That is, it is an offence to make, print, circulate etc. something which is the printed likeness of a Canadian bank-note, which is printed in colour on both sides and which is the same size as a current Canadian bank-note; it is not an offence to possess it, however. [ 32 ] Significantly, an offence under s. 457, that is, making, distributing etc. a likeness of a banknote, is a

summary offence and thus subject to a maximum of six months’ imprisonment; simple possession, as noted, is not even an offence. By contrast, making or even possessing counterfeit money is an indictable offence and carries a maximum penalty of 14 years’ imprisonment. [ 33 ] It appears, then, that Parliament has drawn a distinction between possessing a likeness of a current banknote, which is not an offence, and possession of counterfeit paper money, which is a very serious offence. [ 34 ] Given that Mr. Hartle was charged, and pled guilty, under s. 450(b), I do not have to decide what the distinction consists of.

Sentence [ 35 ] The accused was on remand in this matter for 261 days. Applying a credit of 1.5 days per day served, he was entitled to credit for 392 days, or 1 year and 27 days. [ 36 ] I accordingly sentenced Mr. Hartle as follows: a. Information 991063833: - count 1 (robbery with imitation firearm) - three years less remand credit of 1 year 27 days, leaving 1 year 338 days to serve - count 4 (possession of counterfeit money) - six months, consecutive - count 5 (breach of probation by failing to keep the peace) - two months, concurrent b.

Information 991022879 (breach of probation by failing to report as directed) - seven days consecutive c. Information 991037480 (failure to attend court) - seven days consecutive [ 37 ] Additionally, I imposed a $200 surcharge on each count on Information 991063833, and $100 on each of the other Informations, for a total of $800, each to be consecutive. In determining the amount of time for an offender to pay, the Court must be

mindful of the fact that the offender may serve to warrant expiry, and give sufficient time beyond that date. I gave Mr. Hartle three years from the date of sentence to pay the surcharges or to enroll in the fine option program. [ 38 ] I also made a 10-year order under s. 109, a DNA order and an order for forfeiture, as well as ordering release of exhibits from the sentencing hearing upon expiration of all applicable appeal periods. ________________________ Q. D. Agnew, J