R v Gill, 2023 ABCJ 263

In the Alberta Court of Justice Citation: R v Gill, 2023 ABCJ 263 Date: 20231204 Docket: 220358600P1 Registry: Edmonton Between: His Majesty the King Crown - and - Gurpreet Singh Gill Accused Decision of the Honourable Justice O.A. Shoyele Table of Contents Introduction . 2 Findings of Fact 2 Issues . 4 Law .. 4

Summary of Defence’s case . 5

Summary of Crown’s case . 6 Analysis . 7 Actus Reus . 7 WD Step 1 . 8 WD Step 2 . 10 WD Step 3 . 10 Mens Rea . 17 Disposition . 18

Introduction [ 1 ] Mr. Gurpreet Gill [Mr. Gill or Accused] stands charged as follows that: On or about the 29th day of August 2012, at or near Edmonton, Alberta, did sign a writing [which] purports to be an affidavit or statutory declaration to wit: a titles affidavit of value, with the named affiant as Sushma Kumar, and to have been sworn or declared before him when [the] writing was not so sworn or declared, contrary to

section 138 (

a) of the Criminal Code of Canada . Findings of Fact [ 2 ] The Accused came to Canada in July 2004, from Punjab in Northern India. He commenced his practice of law in Edmonton, Alberta in September 2009 under the name, VLG Lawyers. [ 3 ] Beginning in 2009, Mrs. Sushma Kumar [“Mrs. Kumar,” “Sushma” or Complainant] and her husband Dr. Ramneek Kumar [Dr. Kumar] [collectively referred to as “the Kumars”], as well as Mr. Gill and his wife, Manpreet Gill [collectively referred to as “the Gills”], developed a special relationship wherein they socialized together frequently. Mr.

Gill also served as the Kumars’ lawyer in real estate and immigration matters. [1] [ 4 ] Sometime in 2012, the Kumars were approached by Mr. Gill to explore purchasing a land together for investment purpose in Saskatchewan [Saskatchewan Land]. As a result, Dr. Kumar and Mr. Gill travelled to Saskatchewan, on or about August 25, 2012, to observe and gather information about the property. The Saskatchewan Land property was owned by one Mr. Obi Agbarakwe [“Obi” or “Mr. Agbarakwe”] and his wife Vasundhara Agbarakwe [“Vasundhara” or “Mrs. Agbarakwe”].

Both Obi and Vasundhara will be referred to collectively as “the Agbarakwes” in this Judgment. Mr. Agbarakwe, who was then licensed to practise law in the province of Saskatchewan, was well known to Mr.Gill, who had no license to practice law in the province of Saskatchewan. [ 5 ] The Agbarakwes’ property that was up for sale was 50-acres of land within a larger parcel of land that was owned by some other people in Saskatoon, Saskatchewan.

Both the Agbarakwes and the Gills agreed to use an existing numbered company, 1021528 Alberta Ltd. [or “the numbered company”] belonging to the Accused’s wife, Manpreet Gill [“Manpreet” or “Mrs. Gill”], with each family/party contributing $50,000.00 towards the purchase. [2] [ 6 ] On August 29, 2012, a Titles Affidavit of Value regarding the subject Saskatchewan Land was signed and commissioned, going by the date that appeared on the document.

It is the authorship of the affiant’s signature that is at the core of these proceedings. [ 7 ] Also, on August 29, 2012, the sellers of the Saskatchewan Land – Vasundhara and Obi Agbarakwe – went into Mr. Gill’s office to execute the related “Transfer Authorizations,” which transferred the property to the numbered company (Exh. 8). The Accused testified that he commissioned a relevant Affidavit of Execution signed by Mrs.

Agbarakwe, in her capacity as one of the sellers of the subject property, on the same day. [3] [ 8 ] On August 31, 2012, the Kumars gave a cheque in the sum of $50,000, as co-purchasers of the Saskatchewan Land, to Mr. Agbarakwe in Mr. Gill’s office. [4] There is no evidence before the Court demonstrating that any evidential document or receipt for the $50,000 was issued to the Kumars indicating the purpose of that financial transaction. [ 9 ] During the Complainant’s cross examination, evidence revealed that a document, entitled “Transfer

Summary,” dated September 7, 2012, issued by the Information Services Corporation of Saskatchewan, still indicated that the owners of the Saskatchewan Land were the Agbarakwes. [ 10 ] Mrs. Kumar became concerned, at some point in the interim, that the Kumars had no proof of the payment of their $50,000 for the land deal and requested some type of documentation to demonstrate their proprietary interest in the Saskatchewan Land. [5] [ 11 ] On October 12, 2012, Mr. Gill invited the Kumars to his office and Mrs.

Kumar signed the Resolution of Board of Directors Regarding Shares Transfer of 1021528 Alberta Ltd. (operating as Alberta Hotel), being the numbered company that belonged to Mrs. Gill as the sole shareholder and director, which was agreed on for use in purchasing the Saskatchewan Land. Mrs. Kumar did not deny authorship of the signature on this shares transfer resolution document. [ 12 ] Sometime in 2015, the Kumars tried unsuccessfully to get their money out of the land deal.

This was when the relationship between the Kumars and the Gills deteriorated or soured. [ 13 ] Consequently, in September 2017, the Kumars commenced a civil litigation, naming Gurpreet Gill, Manpreet Gill and 1021528 Alberta Ltd (operating as Alberta Hotel), as the defendants, in which they sought recovery of their payment. (Statement of Claim, September 19, 2017. [6] [ 14 ] After proceedings commenced – and as part of the civil litigation – there was an exchange of documents between the lawyers involved on both sides; it was sometime during that period that Mrs.

Kumar first became aware of the “Titles Affidavit of Value” that bore her signature, when her lawyer showed the document to her. The jurat on the document had been completed by Mr. Gill and was dated August 29, 2012. [ 15 ] During the within trial, the Defence called four witnesses, namely the Accused, Mr. Preet Sekhon [Mr. Sekhon], Mr. Harkaran Sandhu [Mr. Sandhu], and Mr. Davinder Singh [Mr. Singh]. The Crown called only the Complainant as her witness. Issues

[16] Mrs. Kumar claims that she neither signed the Titles Affidavit of Value nor saw the Accused on August 29, 2012.[7] [17] Mr. Gill, on the other hand, claims that he is innocent and acted properly when he signed the Titles Affidavit of Value, inMrs. Kumar’s presence and after witnessing her signature on August 29, 2012.[8] [18] The issues for analysis in this matter are: (

i) Did Mr. Gill sign a writing that purports to be an affidavit sworn before him when the writing was not so sworn? (Actus Reus) and (ii) Did Mr. Gill intend to cause the external circumstances articulated in (

i) above? (Mens Rea). Law [19]

Section 138(

a) of the Criminal Code provides: Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than two years or is guilty of an offencepunishable on

summary conviction who […] signs a writing that purports to be an affidavit or statutory declaration and to have beensworn or declared before him when the writing was not so sworn or declared or when he knows that he has no authority to administer theoath or declaration … [20] In David Watt & Michelle Fuerst, The 2024 Annotated Tremeear’s Criminal Code (Toronto: Carswell, 2023) at 309[Tremeear’s Annotations], the following relevant annotations were made in relation to s 138 of the Criminal Code: The essence of each dual procedure offence is the creation of a spurious or pretended affidavit or statutory declaration.

In each case, Dmust either sign the writing in a particular capacity (ss. 138(a) ... No ulterior or specific mental element, as for example, the intent tomislead is required. Under s. 138(a), the external circumstances require that D sign a writing that purports to be an affidavit or statutory declaration sworn ordeclared before D. The writing must either not have been so sworn or declared, that is to say, before D, or D must have no authority toadminister the oath or declaration.

The mental element requires proof of an intention to cause the external circumstances of the offence including, where applicable,specific knowledge of the lack of authority to administer the oath or declaration.” [Emphasis added] [21] The Supreme Court of Canada in R v Villaroman, 2016 SCC 33 at paras 50, 66, wrote: When dealing with the defence position, the judge correctly stated the law, in my opinion.

The judge properly noted that “the accusedcannot ask this Court to rely on supposition or conjecture, that flows from a purely hypothetical narrative to conclude that the Crown hasnot proven he is guilty of the offences with which the Crown has charged him”: para. 47. The judge’s citation of [R v McIver, (ON CA), [1965] 2 OR 475 (Ont CA), aff’d (SCC), [1966] SCR 254] was intended to make the same point,i.e., that a reasonable doubt cannot arise from speculation or conjecture. This is perfectly correct.

As the Court said in [R v Lifchus, (SCC), [1997] 3 SCR 320], “a reasonable doubt must not be imaginary or frivolous”; need not be proof to an absolutecertainty; and must be based on “reason and common sense”: paras. 31 and 36. The burden on the Crown does not extend to “negativingevery conjecture”: R. v. Paul, (SCC), [1977] 1 S.C.R. 181, at p. 191. [....] The judge did not ignore hypothetical alternative explanations advanced by the respondent’s counsel.

He found that they werespeculative, noting that the Crown does not have the burden “of negativing every conjecture to which circumstantial evidence might giverise and which might be consistent with the innocence of the accused”: para. 81; citing Paul, at p. 191.

Summary of Defence’s case [22] The Defence conceded that on August 29, 2012, Mr. Gill commissioned two affidavits in connection with the SaskatchewanLand transaction: (

a) Mrs. Agbarakwe’s Affidavit of Execution, and (

b) Mrs. Kumar’s Titles Affidavit of Value.[9] [23] Defence Counsel noted that Mrs. Kumar admitted that she signed various documents in the Accused’s presence over a periodof several years when he acted as her lawyer. However, over 10 years later, claimed that she did not sign the subject Titles Affidavit ofValue. [24] The Defence opined that the variability in the handwriting with which the Complainant signs her name is at the heart of theallegation because she does not always sign her name the same way, referencing Exh. 6, which contains various samples of Mrs.Kumar’s signature.[10] He pointed out that Mrs.

Kumar’s testimony denying the signature on the Titles Affidavit of Value is notforensically supported. [25] The Defence argued that Mr. Gill was not counsel for the Kumars in the Saskatchewan Land transaction. Mr. Agbarakwe,who owned the property with his wife, and who was authorized to conduct real estate transactions in Saskatchewan, acted as solicitor.Regarding this submission, this Court notes that while there is no clear evidence of a retainer agreement between the Kumars and eitherMr. Gill or Mr. Agbarakwe, it was not unreasonable for the Kumars to have informally relied on Mr.

Gill in this transaction based ontheir erstwhile special relationship and how they came about information regarding the Saskatchewan Land transaction.[11]In any event,in my opinion, nothing turns on this point having regards to the central issues at stake, as identified earlier.

[26] The Accused admitted that not all aspects of his practice were optimal, and his memory was not perfect. Record keeping at thestart of his practice in 2009 was by manual ledger. Later, with the help of a Law Society of Alberta’s practice advisor, he switched tocomputer systems.[12] He admitted that he could only ascertain the date of Mrs. Kumar’s signature on the Titles Affidavit of Value byreference to the date on the document.[13] At any rate, according to the Accused, there would have been no written record of Mrs.Kumar’s appointment on August 29, 2012. [27] Mr. Gill testified that he remembers Mrs.

Kumar being present when she signed the original Titles Affidavit of Value and hewitnessed her signature; in other words, he had a specific memory of the event.[14]

Summary of Crown’s case [28] The Crown does not seek a conviction for forgery; rather, she seeks conviction of the Accused for an offence committedunder s 138(

a) the Criminal Code, based on the Crown’s evidence that, “Sushma Kumar did not sign the relevant document and did notswear / declare [the Titles Affidavit of Value] document in front of Gurpreet Gill.” (Crown’s Written Submissions, para 62). [29] The Crown submitted that: i. None of the Defence witnesses testified to seeing Mrs. Kumar sign and swear /declare the Titles Affidavit ofValue in front of Mr. Gill; and ii. Given the nature of the Defence witnesses’ limited engagement with Mrs.

Kumar more than 10 years ago,their identification evidence is not reliable. [30] The Crown further stated that, given the Accused’s evidence before this Court, it does not logically make sense that: i. On August 29, 2012, the sellers/owners of the Saskatchewan Land (i.e., the Agbarakwes) who were knownto Mr. Gill, had their documents sworn in the presence of Mr. Gill; and at the same time, Mrs. Kumar separately brought in the TitlesAffidavit of Value already printed out and swore it in front of him; ii. The Agbarakwes would attend Mr.

Gill’s office on August 29, 2012, to complete their TransferAuthorizations, as well as provide the Titles Affidavit of Value to Mrs. Kumar in order to also attend on that same day for her to executesince – according to the Accused’s evidence – anyone can sign the Titles Affidavit of Value; and iii. Mr.

Gill would not keep a copy of all documentation related to the real estate purchase that his spouse’scompany was involved in because, for him, the transaction was not just a routine commissioning as his family has a vested financialinterest in it.[15] See, Crown’s Written Submissions, paras 43-49. [31] Additionally, the Crown argued that: i. Even if this Court is left with a doubt as to whether or not Mrs. Kumar attended VLG Lawyers on August29, 2012, it is critical for the Court to note that neither Mr. Sekhon or Mr. Singh testified to seeing Mrs. Kumar signing or swearing/declaring any document; and ii.

Although the Court can take notice that signatures could change over time, Mrs. Kumar was very clear thatshe did not attend and swear / declare this document in front of Mr. Gill on August 29, 2012. In support of her position, the Complainanttestified that her youngest son had not yet started school as of that date, and as primary caregiver, she was with him all day. None of theDefence witnesses testified about her having either one or two small children with her in their claim that they saw her at Mr. Gill’s office.

Analysis Actus Reus [32] In order to determine whether the Crown has established the actus reus of this offence, it is necessary for this Court to assessthe credibility and reliability of all the witnesses called by both parties. [33] To conduct that exercise, I will need to deploy the test established in the seminal case of R v WD, (SCC),[1991] 1 SCR 742 at para 11,[16] which directs as follows: 1. First, if you believe the evidence of the Accused, obviously you must acquit. 2. Second, if you do not believe the testimony of the Accused but you are left in reasonable doubt by it, you must acquit. 3.

Third, even if you are not left in doubt by the evidence of the Accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the Accused. WD Step 1 – Do I believe the evidence of the Accused? [34] The Defence Counsel argued that although Mr. Sekhon “[conceded] the possibility of mistake, he was certain that Mrs.Kumar was at the office on the same date as shown on the marriage certificate,” which he went to notarize at Mr. Gill’s Office.[17]

[ 35 ] He pointed out that Mr. Singh, a self-employed subcontractor who provided cleaning services for Mr. Gill in 2010, shortly after Mr. Gill’s practice started, testified that he did not have documentary corroborating material of his presence at Mr. Gill’s office on August 29, 2012. He conceded that, “it might sound unusual to some” that Mr. Singh used “a legendary field hockey player’s birthday [as well as] the fact that his newborn son had yet to turn one,” as a frame of reference to remember what happened on August 29, 2012. [18] However, Counsel submitted, those events were obviously of significance to Mr.

Singh. [ 36 ] Further, the Defence Counsel noted that Mr. Sandhu’s account of having met Mrs. Kumar in 2016 is logical and generally consistent within the evidential context. [ 37 ] In sum, Counsel for the Accused submitted that the three defence witnesses – Mr. Sekhon, Mr. Singh and Mr. Sandhu – swore at trial that they at least knew Mrs. Kumar from prior encounters; and overall, they presented themselves as honest, credible, and reliable. [ 38 ] The Crown pointed out that the following specific inconsistencies in the Defence witnesses’ testimony causes their evidence to lack credibility and reliability: i. Mr.

Gill’s testimony was inconsistent when he testified that it was Dr. Kumar who called to say Mrs. Kumar would be coming into his Law Office, [19] but then again stated that the arrangement for her to come in was made by Mr. Agbarakwe. [20] ii. In cross-examination, the Accused spoke about the land deal and the extensive due diligence he did on his wife’s behalf; [21] nonetheless, gave inconsistent evidence, that on one hand, Mrs. Kumar was just going to casually show up at his Law Office and may have to wait, [22] but on the other hand, that there would have been an appointment record. [23] iii. Mr.

Sekhon testified that when he attended Mr. Gill’s office on August 29, 2012, at about 4:30pm/5:00pm, there was no receptionist , but he remembers Mrs. Kumar being there at the same time, and he let her go ahead of him to see Mr. Gill. [24] iv. Mr. Sekhon testified that he first met the Kumars in 2008 at a VLG Lawyers’ party; however, Mr. Gill did not start his practice at VLG Lawyers until September 2009. v. Mr. Singh testified that: (

a) he went to VLG Lawyers office at 4:00pm/4:30pm on August 29, 2012, to look at the carpet. While he was there he saw that there was a woman and a man waiting in the reception area, and there was a receptionist ; (

b) he remembers this date, because August 29 is the birthday of a famous field hockey player, that he and his family celebrates this birthday every year; and (

c) he remembers it was 2012, because it was his son’s first year (that is, his son was turning one year old in October of that year). [25] [ 39 ] Finally, the Crown contended that Mr. Singh’s testimony about meeting Mrs. Kumar once, approximately 11 years ago, on August 29, 2012, and then seeing her a few times later at temple is not reliable with respect to his identification of the Complainant. [ 40 ] Based on the submissions of both Counsel, I agree as follows: i. In relation to Mr.

Singh’s evidence, I find that it is objectively unusual and atypical to use a relatively obscure hockey player’s birthday as mnemonic for an event that happened approximately 11 years ago; ii. The multiple, significant, and material inconsistencies identified by the Crown – and itemized in paragraph 38 above – as existing in the Defence’s case are valid. [ 41 ] Further, when Mr. Sekhon was asked by the Crown whether it was possible that he saw Mrs. Kumar on a different date other than August 29, 2012, the witness replied, “I cannot say about that, it’s possible or not.” [26] [ 42 ] This Court also notes Mr.

Sandhu’s evidence that he had a meeting with one Jessie, a real estate broker, and a woman named Mrs. Kumar during the third week of March 2016 at the Ziaka Restaurant in Edmonton, Alberta, to discuss the possibility of his purchasing some land. Mr. Sandhu claimed that at the meeting, Mrs. Kumar gave him a set of documents (i.e., Exh. 10), which included a copy of the Titles Affidavit of Value. The problem with Mr. Sandhu’s evidence is that it does not speak to the event or facts of August 29, 2012. Rather, it speaks in a lonely manner to a 2016 event that the Complainant denied any recollection of. I find Mr.

Sandhu’s evidence unhelpful in determining the relevant issues specifically generated by the provisions of s 138(

a) of the Criminal Code in this case. [ 43 ] As such, at Step 1 of the WD test, the inconsistencies in the evidence of the Accused’s witnesses, coupled with the referenced ambivalence [27] and categorical admission of mistake by Mr. Sekhon, when considered from a composite perspective, make the Defence witnesses’ testimony concerning and, consequently, unreliable in relation to the core issue in this trial.

WD Step 2 – Is the Court left in reasonable doubt by the Accused’s evidence? [ 44 ] My exclusive assessment of the Accused’s evidence does not leave me in reasonable doubt such that I will acquit him based on his exculpatory evidence. [ 45 ] That conclusion takes me to Step 3 of the WD test and analysis. WD Step 3 – Evaluation of totality of evidence [ 46 ] In the Crown’s evidence, the Complainant denied knowledge of or acquaintance with some of the witnesses, who testified on behalf of the Accused.

After she was recalled by the Crown, pursuant to the implications of the legal principle established in Browne v Dunn , (1893), 6 R 67 (HL 1893), Mrs. Kumar stated that she had never met the witnesses who the Accused called, neither at the Accused’s office, nor at the temple she attends for spiritual purpose.

[47] In the Defence’s opinion, Mrs. Kumar’s zeal in pursuing the thesis that she did not author the signature on the affidavit,“throughout her evidence cast doubt as to her trustworthiness” and also raised “significant problems with the accuracy of her evidence(reliability) and its veracity (credibility).” (Defence’s Written Submissions, para 22). [48] Expectedly, the Crown contended otherwise and posited that Mrs. Kumar was credible and reliable in her testimony. [49] From my assessment and review of her evidence, it is clear that Mrs.

Kumar is the less sophisticated person out of all theparties engaged in this transaction. The English language is not her first language. While she struggled to explain herself in anelaborately verbose and elongated manner, I find that she succeeded in credibly presenting her position. She effectively communicatedher consternation at the signature on the Titles Affidavit of Value. Discordance in chronology [50] As a backdrop, this Court notes that the “Titles Affidavit of Value” was allegedly signed on August 29, 2012, while the$50,000 payment was made by the Kumars – and the relevant cheque issued – at Mr.

Gill’s office on August 31, 2012. [51] From this sequence, it appears the Affidavit was signed a few days before the cheque was issued by the Complainant’shusband. [52] The Defence Counsel stated that the Transfer Authorizations and Titles Affidavit of Value must have been prepared by Mr.Agbarakwe and they all contain the same date – i.e., August 29, 2012. He indicated that Mr. Gill testified that he did not draft any of thedocuments himself and that, as far as he knew, Mr. Agbarakwe did.[28] [53] The Defence further surmised that Mr.

Agbarakwe must have chosen August 29, 2012, and written that date into the TransferAuthorizations and Titles Affidavit of Value. And that only Mr. Agbarakwe (and perhaps Dr. Kumar) could explain the choice of August29, but a reasonable inference is that the closing date and convenience to the parties were considerations. The Defence submitted thatMrs. Kumar must have obtained the Titles Affidavit of Value from her husband or Mr.

Agbarakwe before or on August 29 on theunderstanding that she had to have it notarized on the 29th. [54] In my opinion, the Defence’s submissions above are purely speculative arguments, given the absence of admissible evidenceon these points before the Court: R v Villaroman at paras 50, 66. [55] Regardless, the relevant issue here is not about who prepared and inserted dates in the document – although it remainsincredulous that the Complainant or her husband, who had no proprietary interest in the Saskatchewan Land as of August 29, 2012,would be a part of preparing a legal document related to the subject land, advertent to their circumstances as non-legal professionals. [56] The existing jurisprudence regarding the drawing of inferences suggests the following legal principles: i. “It is not an error for a trial judge to consider the implausibility of a particular scenario when considering ifthe circumstantial evidence is ‘consistent with any other rational explanation’”: R v Yousif, 2011 ABCA 12 at para 5. ii. “Inferential reasoning is a necessary feature of a circumstantial case.

An inference is a deduction from theevidence. Inferences are to be drawn from facts which have been proven.

Drawing an inference involves a process of reasoning: ‘…a factor a proposition sought to be establish[ed] is deduced as a logical consequence from other facts…already proved or admitted’”: R vShields, 2014 NSPC 21 at para 105, citing R v Latif, [2004] OJ No 5891 (SCJ) at para 4. iii. “I recognize that the onus of proof must rest with the Crown to establish the guilt of the accused beyond areasonable doubt, but I do not understand this proposition to mean that the Crown must negative every possible conjecture, no matterhow irrational or fanciful, which might be consistent with the innocence of the accused": R v Torrie, (ON CA), [1967]3 CCC 303 at 306 (Ont CA) per Evans JA. iv. “Reasonable doubt can be logically based on the evidence or lack of evidence, must be reasonable given thatevidence or lack thereof, and assessed logically in light of human experience and common sense”: R v Roberts, 2020 NSCA 20 at para25. [57] I find that it flies in the face of logic that the Complainant would sign or be chosen to sign a document dealing with the valueof a land that she had nothing to do with as of August 29, 2012.

The Court’s conclusion is partly based on the reasoning that the Kumars,or more specifically, the Complainant did not become a “buyer” until legal consideration in form of payment of $50,000 had moved – inthe Law of Contract parlance – to the owner / seller of the subject property. [58] Also, this Court finds that it was not unavoidably necessary or exigent for the document to be signed on August 29th, 2012. Isay this because the Titles Affidavit of Value is only a penultimate step to the completion of registration of title being assumed by thetransferee (i.e., the new owner of the property involved).

In other words, from a practical, common sense perspective, the Complainantneither had any reason to insist on signing a document that could be signed much later in the transactional process nor basis to sign theaffidavit at a point when her proprietary interest in the subject property was either uncertain, non-existent, or dubious. [59] The chronological incongruity, which stemmed from a situation where the Complainant (Mrs.

Kumar) is alleged to havesigned the Titles Affidavit of Value on August 29, 2012, prior to the payment of the sum of $50,000 as legal consideration forproprietary interest in and for the Saskatchewan Land’s purchase on August 31, 2012, when Dr.

Kumar issued the relevant cheque,supports the inference that the Complainant did not sign the subject document. [60] As discussed below, this Court’s conclusion on the chronological discordance issue becomes more compelling, when viewedin light of the fact that the owners with proprietary interest in the relevant land were evidentially proven to be present at the Accused’sLaw Office on the same date (i.e., August 29, 2012) to execute other documents that relate to the land in issue.

Eligibility of Mrs. Kumar to attest the Affidavit [ 61 ] Generally speaking, an “affidavit of value of land” or a Titles Affidavit of Value is sworn for the purpose of assessing the value of a real property and improvements thereon, in order for the Land Registry – in this case the Saskatchewan Land Registry – to determine and charge the applicable fee amount on the land. [ 62 ] Mr. Gill testified that he has no license to practice law in the province of Saskatchewan.

He also indicated that he spoke with the Registrar in that province who directed him to Saskatchewan’s online protocol manual, which indicated that “ anyone having the knowledge of it” [29] could sign the Titles Affidavit of Value of a land that is situated in that province. [ 63 ] Thus, Mr.

Gill’s testimony supports the proposition that it is a critical factor that anyone who would become a deponent of an affidavit of land value in Saskatchewan province must have a level of acquaintance with or knowledge of the real value of the property in question. [30] [ 64 ] Also, this Court believes that for protection of the integrity of both common law and statutory property law regimes in Canada, it is neither professionally sanguine nor appropriate to simply pick out a complete stranger and ask them to attest to the value of a real property, particularly where – as the facts in this case demonstrate – the actual owners or sellers of the land with property title and/or the legal buyer were both presumptively and easily accessible, as well as available.

In other words, even if “anyone” could swear a Titles Affidavit of Value, they should be acquainted with the value of the relevant property, not in a generalized way as an ordinary member of the public would be but as someone with a legitimate proprietary or professional valuation interest. [ 65 ] It is not enough – if not bizarre – to simply assert that because the registry’s policy manual states that “anyone” could depose to the land value of a specified real property being proposed for land registration, then it is appropriate to select someone with no idea about what the value of the real property is to swear the affidavit of value in relation to the property. [ 66 ] Based on the evidence before the Court in this case, it is absolutely clear that Mrs.

Kumar did not travel to Saskatchewan and – as of August 29, 2012 – had no realistic acquaintance with or knowledge of the value of the subject Saskatchewan Land. [ 67 ] The germane questions for the Court then become: i. Given that as of August 29, 2012, Mrs. Kumar was not a Director of the numbered corporation designated by agreement of parties as the purchaser of the Saskatchewan Land, why would she unilaterally assume the role of a busybody – in relation to another legal person’s property – or be assigned to depose to the value of such a property? OR, ii. Put slightly differently, why would Mrs.

Kumar – who is neither a professional land appraiser nor someone acquainted with the Saskatchewan Land value – swear or be made to sign the Titles Affidavit of Value on a date (or at a point) when she was yet to have any proprietary interest in the Saskatchewan Land? AND, iii.

Why would a professional Alberta lawyer in the Accused’s position (who had no licence to practice law in the province of Saskatchewan) allow the Complainant to sign the relevant Titles Affidavit of Value when he knew or ought to have known that – as of August 29, 2012 – the Complainant had no realistic acquaintance with or knowledge of the value of the subject Saskatchewan Land? The response and reasonable inference from that professional faux pas is addressed below. [ 68 ] The Defence argued that it makes sense that: (

i) Mrs. Kumar would want to play some role in her purchase of the land because she was one of the named buyers; (ii) the role she chose, or was chosen, to play was to depose to the value of the land; (iii) the Titles Affidavit of Value is a pre-printed document which evidently does not require extensive knowledge or expertise on the part of the deponent; (iv) Mr. Gill’s explanation was that the affidavit was necessary for the registration process but of relatively little substantive import; [31] and (

v) Mrs. Kumar could depose to the value without much consequence. [32] [ 69 ] I do not agree with the Defence’s submissions in the preceding paragraph. [ 70 ] First, there is no clear evidence before me that as of August 29, 2012, the Complainant was a “named buyer” in relation to the Saskatchewan Land. The evidence of the Accused was that his wife’s numbered corporation was going to be the “buyer” of the Saskatchewan Land for some technical reasons agreed upon by participating parties. [ 71 ] In the context of this first factor, it would have made better sense for Mrs.

Gill, who “owned” the purchasing corporation as the sole shareholder and Director, or the Agbarakwes, who were the sellers, to have deposed the Titles Affidavit of Value to the land that was critical to obtaining certificate of title for the numbered company. [33] [ 72 ] Second, the evidence before this Court reveals that Mrs. Kumar did not become a Director of the numbered company, which was agreed upon to be the purchaser of the Saskatchewan Land, until October 12, 2012, when the Board of Directors’ Resolution transferring shares to her was executed in Mr.

Gill’s office. [34] [ 73 ] Since the Kumars and the Gills had agreed to purchase the Saskatchewan Land through Mrs. Gill’s corporation, it seems to me, again, that the better candidates for the swearing of the affidavit dealing with the value of the Saskatchewan Land are either the sellers or the corporate purchaser of the real property. In which case, Mrs. Gill who was the sole shareholder and director of the corporation, as of August 29, 2012, was the eligible and appropriate corporate officer to have signed or sworn the relevant affidavit of value. [ 74 ] Mrs.

Kumar, who did not become a member or Director of that corporation until October 12, 2012, was neither legally eligible nor the appropriate corporate officer to attest to the valuation of the Saskatchewan Land being proposed for purchase, particularly in the absence of evidence, on this record, that Mrs. Gill was unable to act in that capacity. [ 75 ] Third, the execution of legal documents dealing with real property transactions is a solemn one that legal professionals should

treat with all seriousness. Such commercial transactions should not be perceived as amenable to flippant assignment of roles to individuals or be treated as one where any individual can whimsically choose to perform in a role-playing capacity, even where they have no demonstrable proprietary interest in the relevant land transaction. Real property transactions are not theatrical skits. [ 76 ] There apparently was something anomalous about the choice of Mrs. Kumar as the person to swear the Titles Affidavit of Value on August 29, 2012, well before she became a director at Mrs.

Gill’s purchaser corporation on October 12, 2012. [ 77 ] I have no other evidence before me to demonstrate any alternative reason why Mrs. Kumar, the Complainant, was specifically chosen (or chose herself) to sign the Titles Affidavit of Value document, which does not confer ownership of the Saskatchewan Land on her and/or her husband. [ 78 ] In the result, I conclude that Mrs.

Kumar’s apparent ineligibility to swear the Titles Affidavit of Value along with her lack of realistic acquaintance with the value of the Saskatchewan Land, inferentially accords with her claim that she did not sign the affidavit on August 29, 2012. Attendance at Mr. Gill’s Office [ 79 ] The Defence contended that Mrs. Kumar’s execution of Exh. 2, turns on her presence at or absence from Mr. Gill’s Law Office on August 29, 2012. Counsel indicated that Mrs. Kumar contacted her son’s school to find out when school started in 2012. And based on the school’s reply, she suggested that she could not have been at Mr.

Gill’s office because she was engaged in dropping off and picking up her eldest son. Even if the school’s

schedule is accurate, opportunities existed for her to see Mr. Gill at a time when she was unoccupied with her children on August 29, 2012. This kind of ex post facto reconstruction, the Defence posited, is unreliable. [ 80 ] The Defence Counsel observed that witnesses who testified for the Accused have indicated that Mrs. Kumar was at the Accused’s office on August 29, 2012, but not at the same time as the Agbarakwes. Interestingly, this Court notes, there was no clear evidence elicited from the Defence witnesses on the approximate time the Agbarakwes were at Mr.

Gill’s office. [ 81 ] The Defence submitted that Mrs. Kumar’s denials of having ever known or met the three Defence witnesses, Mr. Sekhon, Mr. Singh, and Mr. Sandhu, are implausible. Her statements are incompatible with Mr. Sekhon’s and Mr. Singh’s visual recognition of the Complainants, and their contextual descriptions of the circumstances in which they met. Even if Mr. Singh was mistaken about the date of his appointment at Mr. Gill’s office, his unprompted identification of Mrs. Kumar rings true. [ 82 ] The evidence of Mr. Gill is unequivocal that on August 29, 2012, Mr.

Agbarakwe (and his wife Vasundhara) attended at his office to execute Transfer Authorizations related to the Saskatchewan Land being sold to Mrs. Gill’s corporation (i.e., the numbered company). Mr. Gill did the commissioning of those documents – “Transfer Authorization” (Exh. 8) – in his office on that day as a notary public. [ 83 ] That evidence of Mr. Gill, in effect, confirms that the Agbarakwes were in attendance at his Law Office on the same day the Accused claims Mrs. Kumar attended his Law Office to sign the Titles Affidavit of Value. [ 84 ] The Crown submitted that it makes no logical sense for Mrs.

Kumar to attend at Mr. Gill’s office on August 29, 2012, to sign the Titles Affidavit of Value, when the Agbarakwes were already there to sign other documents. [ 85 ] I agree that it is oddly puzzling that: first, the execution of the “Transfer Authorization” between the Agbarakwes and Mrs. Gill’s numbered company happened on the same day – i.e., the 29th day of August 2012 – that Mrs. Kumar was alleged to have signed the Titles Affidavit of Value at Mr. Gill’s office; and second, that the Agbarakwes were unable to depose to the value of their own land without Mrs.

Kumar, who knew virtually nothing, or at best very little, about the land’s value as of that date. [35] [ 86 ] In the Court’s opinion, the Defence witnesses’ testimony that Mrs. Kumar and the Agbarakwes were not at the Accused’s office at the same time is not as critical as the inference to be drawn from the fact that – given the Agbarakwes’ status as the vendors/sellers of the Saskatchewan Land – their presence at Mr. Gill’s office on August 29, 2012, made them the more appropriately suitable candidates than Mrs.

Kumar to attest to the value of that land. [ 87 ] To recapitulate, I came to that opinion because the Agbarakwes as the owners of the Saskatchewan Land are more realistically acquainted with the value of the property that belonged to them. It was simply redundant and unreasonable to require the presence or attendance of Mrs. Kumar at Mr. Gill’s office on that same day, and only for Mrs. Kumar to bring along a document that was prepared by the same Mr. Agbarakwe just for Mrs. Kumar to sign and swear to the value of a property she did not own as of that date.

From the Court’s perspective, this simply circles the analysis back to the questions: Why Mrs. Kumar? Why not either one of the Agbarakwes (being the property owners), or Mrs.

Gill (the owner of the purchaser corporation)? [ 88 ] Further, while all witnesses who testified on behalf of the Accused gave evidence that the Complainant was in the Accused’s office on August 29, 2012, it is critical that none of them testified categorically that they actually observed or saw the Complainant append her signature to the Titles Affidavit of Value in this case. [ 89 ] Put differently, even if the Defence witnesses are given the benefit of the doubt, in terms of the reliability of their testimony, the absence of evidence that they directly witnessed the Complainant signing the affidavit supports the inference that the Complainant did not author the signature on that document.

In other words, the Complainant’s sheer presence at the Accused’s office is not conclusive of her authorship of the allegedly forged signature. [ 90 ] I find that the inconsistent testimony of the Defence witnesses falls far short of demonstrating that they observed the Complainant attended at Mr. Gill’s Law Office to sign the subject Titles Affidavit of Value. [ 91 ] Further, while there is no forensic confirmation of forgery regarding Mrs. Kumar’s signature on the document dated August 29, 2012, she was very unequivocal in identifying signatures that were authored by her in Exh. #6.

And with the same tenacity, denied

authoring the signature on the “Titles Affidavit of Value.” [36] I accept her evidence, which I found credible, in this regard. [ 92 ] Based on the totality of evidence before me in this case – which I have assessed objectively from a logical, human experience – this Court finds that there was simply no demonstrable reason and/or justification for Mrs. Kumar to append her signature to the Titles Affidavit of Value as of August 29, 2012. [ 93 ] It is, therefore, reasonable to draw the inference that Mrs.

Kumar was not the author of the signature on that Titles Affidavit of Value document, dated August 29, 2012, that was notarized by Mr. Gill. Mens Rea [ 94 ] The Defence submitted that there is no evidence that Mr. Gill stood to gain anything from the alleged offence. The Titles Affidavit of Value was just a means to enable the sale and registration of the property in the names of the new buyers. [ 95 ] I agree with the Defence counsel that from a motive perspective, the evidence does not demonstrate that Mr.

Gill had anything to derive as gain from the commission of the offence. [ 96 ] That said, it is not the profit or gain that would accrue to Mr. Gill that is at stake here; rather, it is the criminal nature of commissioning a signature of an unknown origin on a spurious document – which the alleged author denies being a part of – that constitutes the material issue in these proceedings. [ 97 ] Thus, for the purpose of establishing the commission of an offence under s 138(

a) of the Criminal Code , the Accused need only to have “sign[ed] the writing in a particular capacity [and] No ulterior or specific […] intent to mislead is required. ” (See “ Tremeear’s Annotations – Criminal Code , s 138 – Commentary”). [ 98 ] And as stated earlier, “[t]he mental element [of a s 138(

a) offence] requires proof of an intention to cause the external circumstances of the offence including, where applicable, specific knowledge of the lack of authority to administer the oath or declaration”: Tremeear’s Annotations, ibid . [ 99 ] In the present proceedings, I find that the mental element of the offence is established through the evidence of the conversation excerpted below: Q (MR. PRITHIPAUL): So, the form, the affidavit of value of land, did Sushma come with it or is it a form that was in your possession before she came? A No, Sushma brought this.

Q And your understanding is that she obtained it from? A Obi. Q Okay. THE COURT: So the other question I have, a quick one here is it reads a commissioner for oaths in and for Saskatchewan [or Notary Public]. Is Mr. Gill a commissioner for oaths in and for Saskatchewan? A I’m not but they said notary public will be fine. Q (MR. PRITHIPAUL): Yes. So, in other words, you were not commissioning as a commissioner, you were commissioning it as the notary public? A In Edmonton. Q In Edmonton? A Yes. Q And notary public, is that term used in the jurat? A Yes, if you see under my signatures it says notary public.

Q So you were not commissioning it, it was clear to the reader that you are not commissioning it as a commissioner but as a notary public?

A As a notary public, yes. THE COURT: Okay. A And I put my stamp also so that it’s reflected it’s Alberta. THE COURT: Thank you. Trial Excerpt, 94, lines 12-41. [ 100 ] In essence, the Accused admitted that he notarized the alleged Titles Affidavit of Value regarding the Saskatchewan Land. [ 101 ] This Court acknowledges the fact that a Notary Public in Alberta can commission documents for out of jurisdiction purposes or use: Notaries and Commissioners Act , SA 2013, c N-5.5 , s 4(3). [ 102 ] However, based on my conclusion that Mrs.

Kumar was not the author of the signature on the Titles Affidavit of Value, I find that Mr. Gill had specific knowledge of his lack of authority to administer the relevant oath or declaration, as contemplated within the provisions of s 138(

a) of the Criminal Code . [ 103 ] I conclude that the Crown has proven the mens rea beyond reasonable doubt that Mr. Gill intended to cause the external circumstances of the offence, which is that Mr. Gill signed or notarized a Titles Affidavit of Value that purported to be an affidavit sworn before him when the document had not been so sworn before him by the Complainant. Disposition [ 104 ] The Crown has shown that: i. There are multiple inconsistencies as well as incoherence in the testimony of the Defence witnesses, including the Accused himself regarding Mrs. Kumar’s attendance or presence at Mr.

Gill’s Law Office. ii. None of the witnesses testified to observing or seeing Mrs. Kumar sign the Titles Affidavit of Value in Mr. Gill’s Law Office on August 29, 2012; and iii. Mr. Gill intended to cause the external circumstances of the offence, under s 138(

a) of the Criminal Code when he notarized a writing which purported to be an affidavit sworn before him when the document had not been so sworn before him by the Complainant. [ 105 ] Based on the totality of the evidence before this Court, including the absence of any official record to the contrary, I conclude that Mrs. Kumar was not at Mr. Gill’s Law Office on August 29, 2012: R v Villaroman at para 30 . [ 106 ] Further, even if I had reasonable doubt about the Complainant’s absence at Mr.

Gill’s Law Office on August 29th 2012 – which I do not – I am satisfied that the constellation of the evidence, including that which demonstrates that none of the Defence witnesses saw Mrs. Kumar sign the document at Mr. Gill’s Law Office, supports the inference that Mrs. Kumar was not the author of the signature on the Titles Affidavit of Value that was commissioned by Mr. Gill on August 29, 2012. [ 107 ] I am satisfied that the Crown has proven beyond reasonable doubt that the Accused is guilty of the offence for which he is charged pursuant to s 138(

a) of the Criminal Code . [ 108 ] In the result, I find the Accused guilty as charged. Heard on the 1 st of June, 2023 and the 30 th day of August, 2023 Written Submissions received on 11 th of October; 13 th of October and 20 th of October, 2023 Dated at the City of Edmonton, Alberta this 4 th day of December 2023

O.A. Shoyele A Justice of the Alberta Court of Justice Appearances: S. Smith for the Crown R. Prithipaul for the Accused