R. v. Wainwright Date:, 2012 BCPC 123

Citation: R. v. Wainwright Date: 20120430 2012 BCPC 0123 File No: 150161-3-C Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RICHARD E. WAINWRIGHT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. F. CHAPERON Counsel for the Crown: Ms. Marion K. Brown Counsel for the Defendant: Mr. K. T. Karaszkiewicz Place of Hearing: Victoria , B.C. Date of Hearing: October 11, 12, 13, 2011; December 7, 8, 9, 2011 Date of Judgment: April 30, 2012

INTRODUCTION [ 1 ] The accused is charged with one court of forgery occurring between September 1, 2006 and November 30, 2006, and one count of fraud occurring between September 1, 2006 and October 31, 2009, the period of his employment by the Provincial Government in various positions subsequent to his hiring in October 2006. [ 2 ] The substance of the forgery charge as alleged by the Crown is the falsification by the accused of a Criminal Record Check to conceal from his prospective employer his criminal record for offences of dishonesty.

The accused’s criminal record in the name of Richard Ernest Wainwright is one of the admissions contained in Exhibit 9 at Tab A of that exhibit. At the time of the forgery allegation contained in Count 1 the accused was still serving an 18 month Conditional Sentence for those prior convictions. THE EVIDENCE [ 3 ] Robert Aitkin is an investigator with ICBC’s Special Investigations Unit. [ 4 ] The accused first came to Mr. Aitkin’s notice because of a new investigative tool ICBC had begun using called Facial Recognition Technology. Mr.

Aitkin testified that when someone applies for a driver’s licence his or her photo is compared to all the other images in the database no matter what name is used in the application. What drew Mr. Aitkin’s attention in this case was the use of two different surnames but the same Christian names and date of birth. Other factors such as hair and eye colour as were height and weight were also similar. Mr. Aitkin reviewed and compared the photos on a B.C.

Identity card and Driver’s Licence in the name Richard Ernest Perran and several drivers’ licence images in the name of Richard Ernest Wainwright, both of whom had the same date of birth. They appeared to be the same person and that person had drivers licences in two different names at the same time. [ 5 ] Mr.

Aitkin then queried the police data bases PRIME and CPIC for both names and found that Wainwright had a criminal record from Kamloops for five convictions while the name Perran turned up no criminal record. [ 6 ] He testified that this excited his interest because assuming another name is sometimes done to get out from under a criminal conviction. [ 7 ] Mr. Aitkin then checked a B.C.

Government list of employees and found that a Richard Perran was employed there as was a Gillian Perran and that Richard and Gillian Perran had shared residence addresses, one in Kelowna and one in Nanaimo. [ 8 ] After contacting the RCMP Commercial Crime Unit in Kamloops and Kelowna, he contacted the B.C. Provincial Government security and risk mitigation manager and then Sgt. Cowan of the RCMP Commercial Crime Unit in Victoria. Mr.

Aitkin said he contacted the RCMP because of the criminal history and its nature in the name Wainwright and the fact that a person with a similar name had done a Criminal Record Check and he believed them to be one and the same person. Since he was now a government employee he wanted the Commercial Crime unit made aware of this. [ 9 ] Sgt. Andrew Cowan is with the RCMP fraud squad which deals with issues of identity theft. He participated in the search of the accused’s Victoria residence on View Street on April 7, 2009.

On April 6, 2009 he had met with Robert Aitkin from ICBC along with Corporal Barrow another RCMP member. As a result of this meeting Sgt. Cowan prepared an Information to Obtain a Search Warrant for the accused’s residence and when this Warrant was granted he participated in the search of the accused’s residence. Also on April 7, 2009 he went to a government office at 765 Broughton Street in Victoria and when the accused was brought there from his workplace he arrested him and searched him incidental to that arrest.

That search turned up a number of identification documents in the name of both Perran and Wainwright including a Class 7 licence in the name Richard Ernest Perran and a Class 5 licence in the name of Richard Ernest Wainwright. He said that these would be no benefit to someone with a Class 5 licence also having a Class 7 learner’s licence. When Sgt.

Cowan was asked about a name change subsequent to a marriage and its relation to any Criminal Record Check, he said such a change would have to be disclosed and if it was not disclosed the record would be missed. [ 10 ] Corporal Jenkins of RCMP Commercial Crime Unit also participated in the search of the accused’s residence and later became lead investigator on the file. [ 11 ] He testified that in the master bedroom of the residence all of the items in the room belonged to a female while in the second bedroom all the personal items belonged to a male. It was from this second bedroom that many items were seized.

None were seized from the other bedroom. Amongst the items seized were numerous documents including identification in the name of both Perran and Wainwright. An Apple laptop computer was also seized from this second bedroom. The identification seized included two different SIN one in the name of Perran and one in the name of Wainwright. A second HP Tower computer was seized from the living room of the residence.

In an accordion folder found in the second bedroom were many documents in the name of Wainwright and Perran including several Criminal Record Check documents dated October 2, 2006 in the names of Richard Ernest Perran and Richard Ernest Wainwright-Perran. [ 12 ] Corporal Jenkins himself did an off-line Criminal Record Check on August 21, 2009 in the names of Richard Ernest Perran, Richard Ernest Wainwright and Richard Ernest Wainwright-Perran using the same date of birth, August 6, 1965 for all three names.

He wanted to learn the criteria the Nanaimo RCMP had used when they make their search in October 2006. [ 13 ] He learned that the only search in October 2006 had been made in the name of Richard Ernest Perran, date of birth August 6, 2965 on October 2, 2006 by the Nanaimo B.C. RCMP. The admissions in Exhibit 9 contain the affidavit of Gay Wilson an analyst in the CPIC Office Search Unit with the result of her search made at Corporal Jenkin’s request. [ 14 ] However, the Criminal Record Check on the accused’s government personnel file at Exhibit 4, Tab 91 was in the name of

Richard Ernest Wainwright-Perran with all the names typewritten and the maiden name shown as Wainwright. It was this Criminal Record Check that was submitted to comply with the Criminal Record Check requirement in the B.C. Government’s offer of employment.

Also, in the accused’s personnel file was Exhibit 4, Tab 96, an original expense claim by Richard Wainwright-Perran seeking reimbursement for the $20.00 fee paid for the Criminal Record Check together with a receipt from the Nanaimo detachment in the name of Richard Perran. [ 15 ] Corporal Jenkins also conducted a CPIC search with the same criteria used by the Nanaimo RCMP but using the name Wainwright-Perran and the result of that search was a possible hit as someone with a criminal record. [ 16 ] Corporal Jenkins also participated in the seizure of four computers from the accused’s residence and requested that clones be made of the computer hard drives so he could work on them.

What he found on examining the cloned hard drives were scanned images and templates used in counterfeiting, he testified. He also found the actual applications in October 2006 to Victoria Police and the Nanaimo RCMP for Criminal Record Checks in the name of Richard Ernest Perran and one to the Nanaimo RCMP in the name Richard Ernest Wainwright-Perran. [ 17 ] Corporal Jenkins had found two SIN documents in the accordion folder in bedroom 2 and these were two different numbers in two different names. SIN 745082832 was in the name Perran and SIN 721073674 was in the name Wainwright.

Jenkins contacted the federal agency responsible for SIN cards and asked them to investigate why there were two different SIN cards in two different names for the same person. [ 18 ] Jenkins also found Canadian Passport applications in both names which gave a place of birth as Montreal P.Q. [ 19 ] The Criminal Record Check documents all had the birth place as Britain. [ 20 ] Jenkins also found the document at Exhibit 1 Tab 18 (138) (2) which was a British Deed Poll name change from Wainwright to Perran and that at Exhibit 1 Tab 18 (138) (1) a letter dated July 10, 2006 to McGill University asking for his degree in the name of Richard Wainwright to be reissued in the name of Perran and giving as the reason that a former client at the Ministry of Social Services had assaulted him and then had gotten a relative to provide him with information from government data bases about the accused. [ 21 ] Elwyn Anderson and Robert Aspinal who worked at the Nanaimo RCMP in October 2006, both gave evidence about the October 2, 2006 Criminal Record Check.

Anderson was a front desk supervisor and Aspinal was a front desk clerk whom Anderson supervised. [ 22 ] Mr. Anderson described the procedure for completing a Criminal Record Check, namely the proper completion of the Criminal Record Check form and the payment of the $20.00 fee. This form had to be signed once and initialed in 4 places. The forms could be filled out manually or electronically. Someone would go over the form and then do the record check on the surname, given names and date of birth provided. He would also obtain photo I.D. from the applicant. [ 23 ] Mr.

Anderson identified Exhibit 1 Tab 18 (21) (10) as an application for a record check in the name of Perran which had the middle name Ernest written in in ink. He said it was he who had filled in the second given name, Ernest in pen. This record check form had no maiden name filled in. [ 24 ] Mr. Anderson found no criminal record in the name of Richard Ernest Perran. He testified that he also prepared the receipt found at Exhibit 4 Tab 96 in the name Perran. [ 25 ] Mr.

Anderson looked at the Criminal Record Check from the accused’s government personnel file in the name of Wainwright-Perran which is found at Exhibit 4 Tab 91 and which had the middle name Ernest typewritten. This form showed a maiden name of Wainwright. Mr. Anderson’s evidence was that if he had processed this Criminal Record Check he would have provided a receipt in the name of Wainwright-Perran not in the name Perran. [ 26 ] Mr.

Aspinal the front desk clerk in October 2006 testified that the completed Criminal Record Check was picked up and not faxed or mailed because there was no fax number on the document nor any indication it was mailed. [ 27 ] Corporal Barrow testified he participated in the search of the accused’s residence and seized an accordion file and its contents from a closet in bedroom 2. [ 28 ] Frances Porelle is a civilian member of the RCMP in Ottawa.

She was qualified as an expert in the examination and identification of counterfeit documents. [ 29 ] She examined the following Criminal Record Check documents which had been sent to her office in October 2009 by Corporal Jenkins of Victoria: Exhibit 1 Tab 18 (21) (10) and Exhibit 1 Tab 18 (21) (11) (both of which were found in the accordion folder in the accused’s residence) and Exhibit 4 Tab 91(which had been in the accused’s government personnel file) [ 30 ] In her expert opinion the Criminal Record Check document in the name of Perran found at Exhibit 1 Tab 18 (21) (10) was an original document.

The handwritten name Ernest was in blue ballpoint ink and the RCMP stamp impression was in black ink. [ 31 ] The two Criminal Record Check documents at Exhibit 1 Tab 18 (21) (11) from the accused’s apartment and Exhibit 4 Tab 91 from the accused’s personnel file were not original documents but copies. The blue writing on both and the RCMP stamp were reproduced with coloured toner. She said Laser printers and photocopiers use toner and that printers or photocopiers can be used to print the same document or an altered document and that once one has a digital image it can be manipulated to alter the document using a

computer program for that purpose. [ 32 ] In her expert opinion only Exhibit 1 Tab (18) (21 (10) is an original and the other 2 are copies which contained some differences from the original [ 33 ] Corporal Chan testified as an expert in the field of the extraction, preservation, and analysis of stored computer data using forensic software tools.

In this case he used a tool called “EnCase”. [ 34 ] He was asked by Corporal Jenkins to examine various documents on Seagate hard drive, including an image of an original Criminal Record Check in the name of Perran, and an image of a partially completed check in the name of Wainwright-Perran. He was also asked to look at information on the computer tending to identify the accused as its user. He did not do his analysis on the original hard drive but on a forensic copy which he said is an exact duplicate.

He did an analysis on other documents as well but the Crown is not relying upon those documents. [ 35 ] To Corporal Chan’s knowledge at least 3 people before him had access to the hard drive, namely Corporal Stearn, Constable Gibson who made the Forensic copies, and Constable Fraser. [ 36 ] Both Fraser and Stearn testified but Gibson did not due to illness. [ 37 ] Constable Chan said a computer exhibit’s integrity can be determined in two ways. The first way is to establish the chain of custody. The second way is to ensure HASH values match.

These HASH values are a series of numbers and letters which are unique to a particular set of data and these values are used to ensure the integrity of the data, that is that it has not been altered. Since Chan’s HASH value matched that of Corporal Fraser who had worked on the data before him he said he knew the data had not been changed. [ 38 ] Regarding the chain of custody Chan confirmed that he physically confirmed the serial numbers of the hard drive and confirmed it is in RCMP custody in a locked exhibit locker in Vancouver.

Like Porelle, Chan confirmed how easy it was to use a computer program to combine elements of 2 or more documents into one altered document. [ 39 ] Corporal Fraser who is also with the RCMP in Vancouver Commercial Crime had the data before Chan. He testified he received a box from Constable Keith Gibson containing the hard drives including the Seagate hard drive. He received that box directly from Constable Gibson on June 25, 2009. [ 40 ] Like Chan after him he commenced doing a HASH value but never completed the process because of his reassignment to another file.

He did come back to the hard drives in December 2009 and completed his HASH values then. He also made cloned or forensic copies of the drives including the Seagate hard drive. He uploaded files into the server which Chan later downloaded. Fraser reviewed the HASH values Gibson had obtained and found they matched the ones he obtained. [ 41 ] Constable Stearn who is a “Tech” Crime officer with the RCMP received the actual computers from Corporal Jenkins on May 5, 2009.

He was qualified to give expert evidence on forensic computers and digital evidence. [ 42 ] His evidence was that when Forensic copies are made the date is unchanged. However, before he could actually start work on the computers he was in a motor vehicle accident and passed them on to Constable Gibson to make the forensic copies. [ 43 ] Chantelle Webb was a Manager of Field Services for the Ministry of Social Development in October, 2007. She oversaw the hiring process.

Her evidence was that if a Criminal Record Check had returned with the accused’s criminal record disclosed he would not have been hired because of the type of convictions he had. She said that the accused eventually got a permanent job with the Ministry of Children and Family Development. [ 44 ] Next to testify was Arif Lalani who in April 2009 was a senior manager in the Ministry where the accused was then working. He testified that he received a call from Patrick Doyle to bring the accused over to his office as the RCMP were there.

He did so but then immediately left. [ 45 ] The following Friday the accused contacted him and asked to meet with him to “explain what had happened”. [ 46 ] When Mr. Lalani met the accused in his office he said the accused was remorseful and told him it all had to do with his past in Kelowna when he had a drug habit and had gotten in with bad people. The name change on his driver’s licence was a way to get away from his past. Mr. Lalani said the accused appeared nervous and distraught and that following week he went on medical leave. [ 47 ] At that time the only information Mr.

Lalani had was that the accused had a driver’s licence in 2 different names. [ 48 ] In May after a Workplace review the accused was reprimanded but continued to work all the following summer. [ 49 ] In October Mr. Lalani met with John Toogood a criminal investigator with the Ministry of Social Development and Sara Jones from the Public Service Administration. At that meeting Toogood provided more information about the accused including documents relating to the accused’s Criminal Record Check. At that point the accused was suspended with pay and his access card removed. Eventually Mr.

Lalani was advised by his Deputy Minister to dismiss the accused, the man he had known as Richard Perran. [ 50 ] Lalani testified that he had had concerns since April as to whether the accused should be in his position. He also said that the accused had denied to him that he even used the name Wainwright in government even though he had been employed under that name by the government in the 1990’s. Lalani also checked the records of the accused’s previous employment with the B.C.

Government and found no record of any assault upon him by a client in the course of his work. [ 51 ] John Toogood who is a criminal investigation supervisor with the Ministry of Social Development, formerly the Ministry of Housing and Social Development testified that on July 27, 2009 he was asked by his supervisors to contact the RCMP with respect to

documents they had seized in the course of their investigation. He learned the accused currently worked for the Ministry of Children andFamily Development but had previously worked for the Ministry of Housing and Social Development. [52] By mid-August he knew the documents in question related to Criminal Record Checks and he turned his attention to how aperson with a criminal record was able to get a job in government. [53] He received Exhibit 4 Tab 96 which is the Nanaimo RCMP receipt for a criminal record check in the name Perran and a claimfor reimbursement of that fee in the name of Wainwright – Perran.

He also received the document at Exhibit 1 Tab 18 (21) (10) which isthe original Criminal Record Check in the name of Perran and Exhibit 1 Tab 18 (21) (11) which is an altered Criminal Record Check inthe name Wainwright – Perran both of which he understood had been seized from the accused’s residence. [54] On October 1, 2009 he received another Criminal Record Check from the Public Service Administration when he requested tosee the record check they had on file for the accused.

He was given Exhibit 4 Tab 91 and this he turned over to Corporal Jenkins alongwith other documents from the accused’s personnel file including his request that his name be changed to Perran from Wainwright –Perran. [55] Mr. Toogood said that from 1993-1997 when the accused worked there the Ministry was called the Ministry of SocialServices and that only during this time period was there a Ministry of that name. [56] Mr. Toogood also saw Exhibit 1 Tab 18 (138) (1) which was the accused’s letter to McGill University explaining his reasonfor seeking a change of name on his degree.

He said he’d been the victim of a workplace assault by a client during his work at theMinistry of Social Services and that this client had caused other serious incidents. The letter to McGill was dated July 10, 2006 longafter any Ministry of that name had existed. [57] Mr. Toogood interviewed the accused’s supervisors and co-workers from that period of his employment and found that noneof them knew of any such workplace assault. His evidence also was that in instances of client assault an incident report would beprepared.

He also did checks with Workers Compensation and the Occupational Health and Safety Branch but found no record of anysuch assault. THE COMPUTER EVIDENCE AND ITS CONTINUITY [58] The Crown is relying only on two images on pages 10 and 11 of Corporal Chan’s report (Exhibit 7). One of those images isan identical computer copy of the Criminal Record Check at Exhibit 1 Tab 18 (21) (10) which the expert evidence of Frances Porelle hasidentified as an original document. Elwyn Anderson’s evidence also has identified it as the original document he dealt with in October,2006.

The second image is of a partially completed Criminal Record Check in the name of Wainwright-Perran. The original of the firstimage was found by police during their search of the accused’s residence in an accordion file folder in the bedroom containing only maleclothing.

No copy of the image at page 11 of the report was found in that residence although several Criminal Record Check documentsin the name of Wainwright – Perran were found, one of which was sent to the document examiner Frances Porelle in Ottawa and whichshe found to be a forgery (Exhibit 1 Tab 18 (21) (11). [59] The Crown also seeks to rely on information from the hard drive tending to identify the accused as the user of the computer. [60] The Defense has asked me to disregard that evidence because of a gap in continuity due to the failure of Constable Gibsons totestify because of illness. [61] The Crown says that “proof of continuity” of exhibits is not a required legal element of any offence and a gap in continuity inevidence regarding such an exhibit is just one factor to be considered in deciding whether or not the exhibit tendered at trial is the sameitem seized from the accused”.

Support for this view is found in R. v. Adam 2006 Carswell BC 2382, 2006 BCSC 1430

(2007) BCWLD1987 at page 7: In short, there is no specific requirement as to what evidence must be led to establish continuity, or by whom it must belead. There is also no specific requirement that every person who may have possession during the chain of transfer should himself orherself give evidence. If there is a gap in continuity and if the trier of fact is not satisfied beyond a reasonable doubt that substances takenfrom the accused were the substances analyzed as being prohibited, then the evidence may still be admissible but this would affect theweight given to the exhibit and the evidence: R. v.

Andrade (1985), (ON CA), 6 O.A.C. 345, 18 C.C.C. (3d) 41 (Ont.C.A.). The weaker the evidence regarding continuity and the stronger the evidence suggesting contamination, the lower the weight thatshould be given to the drug exhibit or analysis thereof. [62] In this case the HP Tower computer containing the Seagate hard drive was in the possession of Corporal Jenkins the leadinvestigator. He never used the original hard drive and passed it along to Constable Stearn in the Technological Crimes Unit.

ConstableStearn’s testimony is that he removed the two hard drives, one of which was the Seagate hard drive and placed them in a locked exhibitroom. [63] Constable Stearn was qualified as an expert in forensic computers and digital evidence. His expert opinion was that damageto a computer hard drive could result in loss of data, unviewable files or images with black areas, poor colours or lines through imagesbut that damage could not create new images or new items in images.

He also said that forensic copying doesn’t alter the hard drive. [64] Constable Stearn believed Constable Gibson was the next person to work with the hard drive and that Gibson made theforensic copies of the hard drive and that Gibson also established the HASH value or “digital fingerprint” of the hard drive.

[ 65 ] Corporal Fraser of the Vancouver RCMP Integrated Technological Crime Unit testified he received the Seagate hard drive directly from Constable Gibson. He also received an “asset” hard drive containing a forensic copy of data from the Seagate hard drive.

Fraser also established a HASH value for the data on the original Seagate hard drive and a HASH value for the forensic copy he received from Gibson and found they were identical. [ 66 ] Corporal Fraser made another cloned copy of the hard drive which he then sent to Corporal Jenkins and he also uploaded the forensic copy to an RCMP server for the forensic analyst Corporal Chan to use.

He made a further back-up copy for the Technological Crimes Unit. [ 67 ] The HASH values of all were identical. [ 68 ] Fraser kept the original Seagate hard drive in a locked drawer to which he had the only key. [ 69 ] Corporal Chan also was qualified as an expert in the extraction, preservation and analysis of stored computer data. [ 70 ] Corporal Chan also obtained and recorded HASH values and compared those to previous HASH values to ensure there was no change. [ 71 ] I note that all HASH values obtained by the officers who testified were identical. [ 72 ] Corporal Chan however said that another way of ensuring data integrity is by chain of possession.

In this case the hard drives went directly from Corporal Jenkins to Constable Stearn and then to Constable Gibson.

Corporal Fraser testified he received them directly from Constable Gibson and passed the data along to Corporal Chan. [ 73 ] Also of note is the fact that the image on page 10 of the Chan report which is an identical copy of the original Criminal Record Check (Exhibit 1 Tab 18 (21) (10) has a last written date of October 17, 2006 as does the second image of an incomplete Criminal Record Check at Page 11 of his report. [ 74 ] Corporal Chan said that the notation “last written date” for an image is a date on which the image was in another device such as a scanner. [ 75 ] The last written dates, October 17, 2006, is just a few days before the record check at Exhibit 4 Tab (91) was received at the Ministry of Housing and Social Development and forwarded to the P.S.A. where it was marked with the accused’s employee number and stored until October 1, 2009 when it was turned over to Jennifer Pechello a Senior Analyst with the P.S.A.

She in turn gave it to John Toogood the MHSP investigator who in turn gave it to Corporal Jenkins of the RCMP (Exhibit 9 Admissions of Fact paragraphs 6-13). [ 76 ] I agree with the Crown’s submissions that there is strong evidence the images and information in question existed when the hard drive was in the accused’s possession. Accordingly they will be one more piece of circumstantial evidence I will consider.

I also agree that there is no evidence of any alterations to the hard drive while in police custody and that it would be speculation only to conjecture whether Constable Gibson altered the data on the hard drive.

Count Number 1 Forgery-Identity and Mens Rea [ 77 ] The Crown’s case with respect to both the forgery allegation and the fraud allegation is based on circumstantial evidence. [ 78 ] There have been admissions made (Exhibit 9) that the accused used both the names Richard Ernest Perran and Richard Ernest Wainwright and that he had two different social insurance numbers, one under each name, and that when arrested he was carrying identification in each of those names. [ 79 ] He was also carrying two different driver’s licences which were seized upon his arrest.

One was in the name Perran and was a Class 7 Learner’s licence and one was a Class 5 Interim Licence in the name Wainwright which had been issued February 13, 2009. These items were seized on April 7, 2009 by Sergeant Cowan when the accused was arrested. [ 80 ] The same address appears on identification seized in both names namely 703-1010 View Street Victoria.

This is also the address searched by the police on April 7, 2009. [ 81 ] With respect to the allegation of forgery I agree with the Crown’s submission that there is circumstantial evidence which is compelling that the accused was the person who submitted the genuine Criminal Record Check to the Nanaimo RCMP for completion (Exhibit 1 Tab 18 (21) (10) and that he then produced an altered version, the forged version, which was submitted to the P.S.A. (Ex 4 Tab 91). [ 82 ] The genuine Criminal Record Check was found at the accused’s residence in an accordion folder with one blue-toned copy of the genuine form and seven copies of the forged form.

Also the names and dates of birth of various identification seized from the accused on his arrest match the names and date of birth on the genuine and forged forms. Many documents in the accused’s residence also contained the accused’s name and the Nanaimo address on the genuine and forged forms. [ 83 ] At Exhibit 1 Tab 18 (76) (12) is a copy of the accused’s letter to Val Elsom in Victoria seeking employment at the Ministry of Employment and Income Assistance. That letter is in the name of Richard Wainwright – Perran.

At Exhibit 1 Tab (18) (54) is found a letter from MEIA confirming his appointment and enclosing a Criminal Record Check form which had to be completed as a requirement of the job. This letter of appointment was also found in the accused’s personnel file with the Public Service Administration. [ 84 ] The genuine Criminal Record Check form and 7 forged copies were found at the accused’s residence as was one Criminal Record Check form which was partially completed. This form contained the name and address of Val Elsom to whom the accused had directed his application for a job with the B.C. Government.

[ 85 ] In the forged document that was submitted to the MEIA and which was later placed on the accused’s personnel file at the P.S.A., Val Elsom’s Ministry address is altered to “care of” the accused’s former address in Nanaimo. [ 86 ] I infer that this alteration suggests the accused did not want the completed form sent directly to Val Elsom at the Ministry. Indeed Mr.

Aspinal’s testimony was that the completed form was not faxed or mailed but was picked up by the applicant. [ 87 ] A copy of the City of Nanaimo receipt #00946 for payment of the Criminal Record Check fee was submitted to the MEIA in support of the accused’s claim for reimbursement and this was also placed on his personnel file with the P.S.A.

A second copy of the receipt was found at his residence attached to an altered version of the Criminal Record Check which is the same as the one submitted to the Ministry which also found its way to the accused’s personnel file with the P.S.A. (Exhibit 4 Tab 91). [ 88 ] All documents seized from the accused’s residence were seized from bedroom number two which contained only male clothing. [ 89 ] On the Seagate hard drive seized from the computer in the living room of the accused’s residence was an image of the genuine Criminal Record Check form and an image of an incomplete Criminal Record Check form with Val Elsom’s Ministry address (Corporal Chan’s evidence and Report Exhibit 7). [ 90 ] The circumstantial evidence is compelling that the accused produced the forgery submitted it and a claim for reimbursement for the $20.00 fee paid to the MEIA in order to satisfy the requirement for a Criminal Record Check contained in the letter offering him a job.

The evidence does not support any other reasonable conclusion. [ 91 ] I also infer the accused submitted the forged form to complete the requirements of the job offer knowing it was forged.

At the time he applied to the MEIA for a job and received the offer of employment contingent on him obtaining a Criminal Record Check he was still serving and 18 month conditional sentence for uttering a counterfeit and unlawful possession of identification documents and credit card data. [ 92 ] I also infer he intended the forged record check to induce the MEIA to confirm his appointment to a position of trust which required that a Criminal Record Check be done.

Count Number 2 Fraud Identity and Mens Rea [ 93 ] The submission of the forged Criminal Record Check to the MEIA was the “deceit, falsehood, or other fraudulent means” by which the fraud was committed. The strong circumstantial evidence relating to the forgery is also circumstantial evidence he committed the fraud.

At the accused’s residence a copy of the forged Criminal Record Check is attached to a copy of the City of Nanaimo receipt submitted to the MEIA to receive reimbursement for the $20.00 fee paid for the Criminal Record Check. [ 94 ] The same forged Criminal Record Check and City of Nanaimo receipt were submitted to the MEIA and eventually were placed on the accused’s personnel file at the P.S.A. and which were turned over to John Toogood on October 1, 2009 and which he then turned over to Corporal Jenkins (Exhibit 4 Tabs 91 and 96). [ 95 ] In this case I find the accused submitted the forged record which discloses no criminal record to induce the MEIA to hire him for a position of trust even though he had a criminal record for dishonesty thus putting the employer’s pecuniary interest at risk.

As in R. v. Theroux the mens rea can be inferred from the very nature of the act committed. (R. v. Theroux Paragraphs 38, 39 and 40). The trial judge found that the appellant deliberately lied to his customers, by means of verbal misrepresentations, a certificate of participation in the insurance scheme, and brochures advising that the scheme protected all deposits. The lies were told in order to induce potential customers to enter into contracts for the homes the appellant was selling and to induce them to give him their money as deposits on the purchase of these homes.

The trial judge also found that the appellant knew at the time he made these falsehoods that the insurance for the deposits was not in place. Finally, he found that the appellant genuinely believed that the homes would be built and hence that there was no risk to the depositors. "No risk" used in this sense is the equivalent of saying the appellant believed the risk would not materialize. Applying the principles discussed above, these findings establish that the appellant was guilty of fraud. The actus reus of the offence is clearly established. The appellant committed deliberate falsehoods.

Those falsehoods caused or gave rise to deprivation. First, the depositors did not get the insurance protection they were told they would get. That, in itself, is a deprivation sufficient to establish the actus reus fraud. Second, the money they gave to the appellant's company was put at risk, a risk which in most cases materialized. Again, this suffices to establish deprivation. The mens rea too is established. The appellant told the depositors they had insurance protection when he knew that they did not have that protection. He knew this to be false.

He knew that by this act he was depriving the depositors of something they thought they had, insurance protection. It may also be inferred from his possession of this knowledge that the appellant knew that he was placing the depositors' money at risk. That established, his mens rea is proved. The fact that he sincerely believed that in the end the houses would be built and that the risk would not materialize cannot save him. [ 96 ] The accused had to have known it was deceitful to represent himself as not having a criminal record when indeed he was still

serving a conditional sentence at the time he submitted his deceptive record check to induce the B.C. Government to hire him for a position of trust and to pay salary to someone who was not eligible for hiring because of that record. ACCUSED’S USE OF TWO DIFFERENT NAMES [ 97 ] It is not illegal to use two different names but in this case I find that the accused used two different names to “get out from under a criminal record” as Mr. Aitken put it in his evidence. [ 98 ] The accused has also given two different explanations for using two names. To Mr.

Lalani his workplace supervisor at this last government position he said he had adopted the name Perran to avoid bad associates from his period of drug addiction. He also told Mr. Lalani he never used the name Richard Wainwright in government even though he had been employed by the government under that name in the mid 1990’s. [ 99 ] In his letter to McGill University dated July 10, 2006 the accused said he wanted his social work degree issued in the name of Perran because he had been assaulted by a client in his workplace and that that client had also caused other serious incidents.

This had occurred while he was an employee of the Ministry of Social Services. [ 100 ] Mr. Toogood’s evidence was that a Ministry of Social Services only existed in the period 1993-1997 and that although he interviewed the accused’s supervisors and co-workers from that time no one had heard of any assault. He also did not find any incident report of such an incident and in cases of an assault by a client on an employee such a report would be prepared. [ 101 ] He also checked with the Workers” Compensation Board and the Occupational Health and Safety branch of the B.C.

Government and found no record of any such assault. CONCLUSION [ 102 ] I am invited by the accused to accept that the accused may have believed his record was not relevant because it was not among the offences listed in the Criminal Records Review Act. However, that Act then applied only to children and also allowed employers such as the B.C.

Government to establish its own process for Criminal Record Checks and the accused in th letter offering employment was informed of a process unrelated to the then CRRA. [ 103 ] Moreover, his obtaining a clear Criminal Record Check in the name Perran and then altering it to the name Wainwright-Perran is consistent with an inference that he knew his record would be a bar to employment by the B.C. Government. [ 104 ] The accused also says that Ms. Chantal Webb could not point to a particular directive that said a criminal conviction would be a ban to employment in a position with access to vulnerable people.

However, the admissions in Exhibit 9 paragraph 5 and [ 105 ] Appendix C clearly indicate what would happen if a manager sought advice from the P.S.A. concerning a Criminal Record Check. They would be referred to Policy 14 which defines positions of trust as activities involving the care, custody counselling or legal responsibility for clients or residents in government care.

The policy goes on to say that the presence of any recorded incident or pattern of behaviour which may put at risk the safety and well being of vulnerable people is an appropriate disqualification of candidate suitability. [ 106 ] The accused’s criminal record for uttering counterfeit and possessing stolen credit cards and other stolen identification, possession of stolen property and fraudulent use of a credit card would surely indicate a “pattern of behaviour which could put at risk the safety and well being of vulnerable people”. [ 107 ] The reason neither Ms.

Webb nor any other manager sought this advice was that the accused concealed the fact he had a criminal record. [ 108 ] I find the Crown has proved beyond a reasonable doubt that the accused forged a Criminal Record Check to obtain employment to a position of trust and by doing so defrauded his employer. [ 109 ] The Crown’s case is circumstantial but the evidence presented is quite simply overwhelming. _____________________ L.F. Chaperon Provincial Court Judge